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Lobbyists win challenge to Galvin requirement
Judge: Secretary's view makes 'absolutely no sense'
February 06, 2013
STATE HOUSE NEWS SERVICEASSERTING THAT PART
of Secretary of State William Galvin’s arguments made "absolutely no sense," a Superior Court judge has ruled in favor of lobbyists who went to court to challenge Galvin’s interpretation of a requirement that they disclose "direct business associations" with public officials.
Beginning last July, Galvin’s office started interpreting “direct business associations” as including conversations that lobbyists had to further their favored legislation.
Judge Janet Sanders said the lobbying law requires lobbyists to disclose "all direct business associations” with public officials without defining "business association." The judge wrote that a business association "would denote a joint enterprise or transaction between one or more individuals of a financial or commercial nature" and "is not commonly understood to be an event as transient as a 'communication' from one person to another, which is the meaning that the Secretary appears to ascribe to the term."
“Obviously we have to live with the law as it is. We want to try to see what the court decision is, and we’ll decide whether we want to take further appeal of it or not,” said Galvin.
Galvin said there are clear benefits to the public’s ability to see who lobbyists contact when seeking an amendment to a bill, an executive office purchasing order, or a lower-level decision, such as a new definition of outdoor advertising.
“There were lobbyists who were paid to influence that decision. Who did they communicate with? If that can’t be revealed then obviously the public is being shortchanged,” Galvin said.
Plaintiff Pam Wilmot, who lobbies for open government legislation in the State House as executive director of Common Cause, said the shear amount of information submitted to Galvin rendered it useless.
“It would literally produce garbage,” said Wilmot. She said that because of the torrent of information, “It tells you nothing. It actually blocks the useful knowledge.”
Lobbyists who comply with Galvin’s interpretation generally list all 160 representatives and all 40 senators, because that’s how many lawmakers that lobbyists contact when trying to move legislation.
“It wasn’t just a matter of a silly interpretation; it was also a matter of the rule of law and where was the line going to change next,” said Wilmot, who worked on drafting a 2009 lobbyist law reform and said that Galvin’s interpretation shifted last summer.
State lobbying regulators in July 2012 sent emails to the plaintiffs, who are all lobbyists, informing them that their answers of "none" or "N/A" when asked to disclose their "direct business association with a public official" would not be correct if they had any communications with any public official or legislator.
Galvin acknowledged that the requirement makes little sense for broad-based legislation, where lobbyists and advocates attempt to drum up support by reaching out to every member of the Legislature.
“The problem, I would agree, is that the law as it’s written encompasses all of the lobbyists, and there are significant distinctions – first of all between executive and legislative lobbyists that I think are very clear, and I think should be remedied, and then there’s even some among the legislative lobbyists,” Galvin said. “It’s one thing to write a letter to 200 legislators… on the other hand, if a lobbyist offers an amendment . . . that’s the type of communication that should be reportable.”
Galvin said that the interpretation changed when his general counsel took jurisdiction of lobbyist reporting after the death of First Deputy Secretary and Supervisor of Records Alan Cote.
“I think that’s one thing we can all agree on, that the law is not terribly well defined in terms of its words,” said Galvin, who said the Legislature denied him the ability to write rules and regulations around the new law. “So it left the interpretation of these words to some kind of guesswork,” he said.
In her nine-page decision, Sanders disagreed with Galvin’s interpretation of “business associations” to mean all registered lobbyists identify each government official with whom they communicated. Sanders concluded, "To put it bluntly, this argument makes absolutely no sense."
Sanders wrote that lobbying is defined broadly in state law but that the lobbying law does not require the level of disclosure of plans and strategies sought by Galvin's office.
"In short, if the legislature had meant a lobbyist to disclose all communications to a government official regardless of whether the two had any separate business relationship, then it would have said so," Sanders wrote.
Delving more deeply into the legislative intent, Sanders pointed out the lobbying reforms were advanced in the wake of questions about the personal and business relationships between former House Speaker Salvatore DiMasi and Richard Vitale, who had sought to influence action on ticket resale legislation.
According to Sanders, a task force named by Gov. Deval Patrick in 2008 and charged with developing recommendations to improve ethics and lobbying laws was organized in the wake of news reports about DiMasi’s associations with Vitale, and recommended requiring lobbyists to disclose “any direct business relationships with public officials.”
Galvin noted that procurement of software played a role in the corruption case, and said he is concerned “especially in the case of executive lobbyists,” whose sole intention might be to convince a lone individual to make a purchasing decision.
Concluding Galvin’s reading of the law does not address the problem the task force sought to eliminate, Sanders wrote, “Clearly, the ‘evil’ that the recommendation sought to eradicate was the danger that a lobbyist and government officials could be involved in a separate commercial or financial transaction, unknown to the public, that could make that official more susceptible to being influenced by the lobbyist.”
Galvin said public officials are already required to report any commercial interaction with a lobbyist on statements to the Ethics Commission, and said those lobbyist-official business relationships are “almost unheard of,” saying he is unaware of any.
The judge also speculated that the “most interesting chapter in this legislative background story” was described by the plaintiffs, who noted that as lobbying law reforms were advancing in the Legislature, Galvin teamed with Sen. James Eldridge to push for passage of language requiring lobbyists to file disclosure statements that included “the names of the persons, organizations, legislative bodies or committees before which he has lobbied.”
“This proposal was sent to a study committee and died there,” the judge wrote. “Apparently the Secretary now seeks to accomplish by administrative fiat that which he was unable to achieve through the legislative process. This he cannot do.”
Galvin said he had yet to review the ruling with counsel and would not respond directly to what was contained within it.
In addition to Wilmot, the plaintiffs in the case against Galvin, who oversees the state's lobbying division, are Robert Gibbons, a health care lobbyist; Ann Lambert, of the American Civil Liberties Union of Massachusetts; Lael Chester, of Citizens for Juvenile Justice; Richard Lord, of Associated Industries of Massachusetts; and Susan Reid, of the Conservation Law Foundation.
Noting the diversity of viewpoints among the plaintiffs, Wilmot said, “I think there were some strange bedfellows in the lawsuit, but I think that is fairly typical in politics.”
Sanders, who was elevated to the Superior Court by Acting Gov. Jane Swift, was involved in a DiMasi appeal in June 2011, ruling against a State Retirement Board decision to strip the former House speaker of his pension before his sentencing.