The BLT: The Blog of Legal Times

This New Year, Lobbyists Turn Attention to...Accounting?

The White House's new restrictions on registered lobbyists have led some to look at alternatives to registering. As usual in Washington, the fine print contains some loopholes - and one involves a choice that trade associations and corporations make around this time of year.

Corporations and trade associations can choose between two types of expense accounting methods when filing lobbying disclosure reports. The more common choice, called Method A, requires groups to report expenses using definitions in the Lobbying Disclosure Act. Another choice, Method C, allows groups to use definitions in the Internal Revenue Code.

OK, we admit it sounds boring. But the choice can have a huge impact on the amount organizations report as the sum total of their lobbying expenses - and whether some of their employees even count as lobbyists. Both options have their pros and cons. Groups must make their selection in April, when they file first-quarter lobbying disclosure reports for 2010, but as hard as it is to think about accounting over the holidays, lawyers who advise clients on complying with lobbying laws said they should be mulling it over.

"April can’t roll around and ...pick one method or another because they’re two different methodologies," warned Kenneth Gross, a partner at Skadden, Arps, Slate, Meagher & Flom. "You either need to commit yourself to the change or keep information under both methods for the quarter and keep our options open."

So why does it matter? The LDA method requires organizations to report all federal lobbying, a definition that includes more than 2,000 members of the executive branch. But it doesn't require reporting of grass-roots and state-level lobbying expenses, which can be considerable for companies that face state-level regulation, such as insurance companies. Allstate Insurance Co., for instance, uses the LDA method, which doesn't require it to include its state-level lobbying costs.

The IRC method has a far more limited definition of executive branch officials, including only the top two people at each agency. But it requires reporting of grass-roots and state-level expenses, something Gross said is the dealbreaker for many of his clients because those figures can greatly increase the publicly reported lobbying expenses listed on the reports. Companies that use this method tend to have few state-level expenses. One example: Defense giant Raytheon Co.

But with the White House limiting the access of registered lobbyists, their ability to get jobs in the executive branch, and their eligibility to serve on agency advisory boards, clients are looking at alternatives, Gross said. The limited definition of the executive branch used in the IRC method means that some government relations employees might be able to shed the Scarlet "L" under that definition.

"For some companies it’s a tough decision and you have to do the math" to see what the reported expenses would be under both methods, he said.

The Morning Wrap

Terrorist Attack: President Barack Obama yesterday said authorities would track down all responsible for a failed Christmas Day attempt to detonate explosives on a plane, even as Al Qaeda claimed responsibility for the attack, The New York Times reports. Meanwhile, critics are asking why security procedures didn't catch the attacker before he boarded the plane, and the Department of Homeland Security is moving to strengthen the system, the Times reports.

Salary Negotiations: The decade-long fight over judicial pay in New York state took a new twist this week, when New York's Commission on Judicial Conduct censured an upstate county court judge for suggesting that judges refuse to handle some cases from legislators' law firms as a negotiating tactic. The New York Law Journal has the story here. The New York Times story is here.

Gotta Have a Gimmick: The American Association for Justice has brought its fight against efforts to limit malpractice suits to...the Metro. The New York Times reports the trial lawyers' lobby spent $100,000 to buy space in a station regularly used by lawmakers and Capitol Hill staff for a month.

High Hopes: A growing number of state legislatures are considering measures that would relax penalties on marijuana use, the Associated Press reports (via The Washington Post).

Dressed for Court: The case over Janet Jackson's Superbowl halftime wardrobe malfunction is going back to court. The Legal Intelligencer (via law.com) reports that the 3rd Circuit - which was ordered to reconsider the case by the Supreme Court - has ordered both sides to file supplemental briefs.

Broad Climate Bill Draws More Lobbying

Food companies and venture capitalists aren't necessarily the first corporate interests you think of as affected by climate change legislation. But an analysis of lobbying records by the Center for Public Integrity (here via Politico) shows that the array of interests registered to lobby on the issue includes many companies not traditionally associated with it.

The center found that the overall number of businesses and groups lobbying on climate change has held steady. But the registrations by less traditional interests show "a host of smaller battles are brewing — sure to greatly complicate the already immense challenge of writing a successful bill," according to the story. These companies are drawn by the scope of the proposed legislation, which includes incentives for new types of energy, among other things.

This year's sweeping health-care overhaul also drew less traditional lobbying clients who wanted to protect highly specialized interests, as The National Law Journal reported here and here. The scores of small health care campaigns brought millions of dollars into K Streets coffers this year - and the climate change proposals could keep the money coming in 2010.

Mars' Lobbying Lifts Off

Candy giant Mars, Inc. has never been shy about lobbying. The company spent more than $1.8 million last year, almost all of it at Patton Boggs, where it has long been one of the largest lobbying clients. Mars also spent $10,000 at Skadden, Arps, Slate, Meagher & Flom.

But this year, the company is spreading its efforts out a little more. Deborah Atwood, Mars' director of corporate affairs and public policy,and a former official at the Department of Agriculture during the Bush administration, joined the company earlier this year from Crowell & Moring, where she was a senior policy adviser in the public policy group. She represented clients such as the Pesticide Policy Coalition and forestry company ArborGen. Atwood registered as an in-house lobbyist for Mars in July, the first time someone has done so on the company's behalf, according to a search of lobbying disclosure reports.

Earlier this month, Mars hired Ernst & Young to lobby on corporate and international tax issues, including issues related to tax changes proposed by the Obama administration.

In an e-mailed statement in response to questions, Mars said the company "believes it is our responsibility to engage all critical stakeholders, including policymakers, on the broad range of issues that impact our business and consumers, such as nutrition policy, food safety, commodities, agricultural development/food security, taxes, and trade. While we continue to utilize our consultants to assist us in this effort to engage policymakers, we are also engaging on these issues directly and have registered to lobby in accordance with Federal requirements."

Mars reported spending more than $1.1 million in the first three quarters of 2009, with most of it - more than $1 million - still going to Patton Boggs.

Courts Feeling the Impact of Recession

The economic downturn is filling courtrooms with foreclosures, family issues, business disputes and a host of other issues.

The New York Times has a story today saying that recession-related cases are now making their way into the nation's courts. Early statistics from New York state show caseloads are up. It's not surprising that judges are seeing more foreclosures, credit card disputes, and other financial cases. But the Times story also finds that economic stress is driving other issues before the courts, including families whose issues flare up due to hard times.

Other states are seeing more such cases as well, the Times reports.

Law Book Talk: Amy Bach on Ordinary Injustice

One of the most powerful and important books on the law published in 2009 is Ordinary Injustice: How America Holds Court, by lawyer and journalist Amy Bach. She visited courts from Mississippi to Chicago to New York, examining how everyday justice works -- or, to be precise, doesn't work.

When she saw things falling through the cracks, she looked into the cracks and found out why, and what happened. She found not only overzealous prosecution but under-prosecution, as well as overworked defense lawyers and judges. Overall, she found chummy courthouse communities where parties who are supposed to be adversaries have little interest or incentive to call attention to the injustice and incompetence they see. Defendants and the public that is supposed to see justice being done are the victims.

In a time when wrongful convictions and exoneration have become almost routine, and the Supreme Court is taking up numerous cases about prosecutorial wrongdoing and ineffective assistance of counsel, Bach's book documents the reality on the ground in an unprecedented way. This week Supreme Court correspondent Tony Mauro interviewed her about the book, which was published by Metropolitan Books. (Photo of Amy Bach by Rachel Gracie.)

Mauro: This has been an eight-year odyssey for you. What got you started, and how did a theme crystallize for you?

Bach: The book began when I was writing a series of stories about civil rights for The Nation magazine. I had the chance to sit in a bunch of courts and watch, including one in Greene County, Georgia. There I saw a public defender plead 48 people guilty in a little over a day. In court, several cases broke down with people crying saying that they didn’t understand what was happening to them as they were pleading guilty. The reason was that their lawyer was doing little more than communicating a plea deal from the prosecutor. He never talked to them or investigated their individual circumstances. One woman said, “I didn’t know I was going to jail” when the judge was meting out a sentence she had supposedly agreed to. When I talked to the prosecutors, defense attorneys and the judge, I asked them how they thought things went. And they all said, essentially, the same thing: fine. The defense lawyer said something I will never forget: “Nobody could say that they didn’t get their day in court.”

What astonished me, and what made me want to write a book is that smart, committed hard working professionals could routinely act in ways that fell short of what it is people in their positions were supposed to be doing. And not even realize that anything is missing. Or that their behavior had devastating consequences for peoples’ lives. This idea became the central notion of ordinary injustice: Mistakes had become routine and the legal professionals could no longer see their role in them.

Mauro: What basic problem did you find in the justice system, and what are the moving parts?

Bach: My book is about professionals -- people like you and me – who become more attached to people we work with than performing the checks that make the adversarial system work. A certain culture develops where attorneys and law enforcement agree to go along rather than push back and say that someone who works in the system is openly violating the law or not doing his job properly. Nobody is standing up to say that what looks like justice is actually not. At times, problems come to light (usually because of an outsider) and the community blames one person, a “bad apple” if you will. But in fact, an entire community helped to keep this individual’s dysfunction in place. Also, the individual is enabled by certain uniquely American failures of how America holds court. These failures are widespread: prosecutors have too much discretion to bring a case; prosecutors don’t have to coordinate with police; defense attorneys can be incompetent and not be reprimanded if they fall down on the job; and a judge can grab power and disregard peoples’ rights in the absence of proper checks.

Mauro: How widespread is the problem? We hear about the sleeping defense lawyer and the innocent people released from death row, but it seems from your book that these are not aberrations.

Bach: Whenever I speak at a law school or an event, someone asks this question, and maybe follows with an inquiry into why I didn’t focus on all the great prosecutors out there. Why are people inclined to think stories of injustice are aberrant or outliers? Do they doubt an account because it doesn’t jibe with some body of evidence about the justice system’s operation? Because right now that body evidence truly doesn’t exist. Organizations like the Innocence Project have given a wonderful window into how justice goes wrong, but DNA evidence does not exist for the millions of people who experience the criminal justice system. Besides DNA evidence, the only other real scorecard we have are the results of the rarest of events: the big trials which show a community that crime is being addressed. In short, because America leaves its local courts completely unmonitored and unmeasured, we don’t have any idea how widespread the problem is.

Mauro: Talk about Miss Wiggs, and the other individuals you found who are aware of the problems, and why they are thwarted in making the system work better.

Bach: My book features many heroes. Miss Wiggs is one. She is a court clerk in Quitman County, Mississippi who kept a list of cases that were supposed to be presented to grand jury but never were. I used her list as a roadmap to find out why the prosecutor wasn’t pursuing many important cases. One of my favorite “upstanders” is a paralegal in Greene County, Georgia who keeps on appearing before the county government to decry the terrible representation that defendants were receiving. And there’s an attorney in Chicago who initiates an investigation in a case he himself prosecuted decades before. Due to his speaking up, two 17 year old boys who had been convicted of raping and murdering a little girl were released on the basis of DNA evidence. Today his former colleagues despise him. One former detective refers to him as “the most despicable human being I know” – really, for breaking rank. While all these people tried to make a difference, for the most part, individual citizens are no match for legal professionals working in league.

Mauro: As a reporter covering the Supreme Court and appellate courts, what struck me as I read your book is the level of abstraction at which those courts deal with issues like ineffective assistance of counsel and abusive prosecution, compared to the real-world situations you detailed so well. If you were writing a brief to the Supreme Court, what would you tell it?

Bach: I would say to the U.S. Supreme Court that the reason it faces some extraordinary issues is because over five years it has devised a set of precedents that tend to prevent attention to the ordinary. Last month, for example, the Court heard arguments in Sullivan v. Florida. The case involved a 13-year-old boy who was given life without the possibility of parole for a rape of an elderly woman and a burglary of her home. The question before the Court was whether such a severe sentence to a child this age violated the Eight Amendment’s prohibition against cruel and unusual punishment. Not at issue is Sullivan’s guilt – just this abstract question of whether giving a child a punishment with no hope of release is constitutional.

I asked for a copy of the original trial transcript. I expected boxes to arrive. Instead, I got a pamphlet less than an inch thick. Sullivan’s attorney, who was later disbarred, gave no opening statement, barely any closing, and didn’t do proper cross examination of two co-defendants who implicated the boy -- one even had a sex crimes record that was never brought out. And when the trial judge said that he planned to make sure Sullivan would not get out of prison until he was a very old man, his lawyer never spoke up to say: Do you realize you are sentencing him with no possibility of parole? Maybe the judge’s sentence was such an outlier because it was actually a mistake. Maybe Sullivan is even innocent. Maybe the entire issue before the U.S. Supreme Court could have been prevented if the boy had had a decent attorney from the start. But the Court has created a set of rules which make horrible representation an ordinary occurrence. The mistakes are foreseeable. If the U.S. Supreme Court required lawyers to make fewer mistakes, we wouldn’t have some of the extraordinary problems that currently make the front pages.

Mauro: You don't single out a single cure like more money to make the system work as it should. What are your suggestions for bringing the system back to what the Constitution demands and the public should expect?

Bach: Money alone will not solve the problem of ordinary injustice, since community oversight is what’s critical. But currently, citizens and communities are not equipped with the tools to accomplish this. As of now, there is no reporting system in place to evaluate the performance and outcomes of legal professionals in a court system as there are for teachers in a schools or surgeons in hospitals. Without raw data, citizens and communities are not, at present, equipped with the tools to monitor their courts. And legal professionals will not be compelled to improve their performance. I am currently launching a pilot project to measure state criminal trial court performance. Pilot data and validated metrics will ultimately serve as the foundation for legislated state run programs. While the leading scholars may disagree on what exactly should be measured, virtually all concur that courts are the least studied public institution in America. Ultimately, the project will educate policymakers and the public about the obstacles to improved justice systems.

The Morning Wrap

Attempted Attack: In the wake of a failed Christmas Day attack on an airplane bound for Detroit, critics are asking whether the suspect slipped through security holes, and President Barack Obama has ordered a security review, according to a story in The New York Times.

Turmoil in Iran: At least 10 protesters died after police opened fire into crowds Sunday, and hundreds were reportedly injured, The New York Times reports.

Percy Sutton Passes Away: Sutton, a civil rights lawyer who represented Malcolm X and became one of New York's most prominent black politicians, died Saturday. The New York Times obituary is here, and reaction to his death is here. The Washington Post obituary is here.

Slowing Climate Change: Politico reports moderate Democrats want the White House to back off plans to pass a cap-and-trade bill in 2010.

Nominees Pending: Some of the Obama administration's nominees have been stuck in legislative limbo for months, The New York Times reports.

Happy Holidays from The BLT!

The BLT will be on a reduced posting schedule through the New Year, but please keep checking back for news and updates.

General Motors Accelerates Lobbying

General Motors is back.

The auto giant terminated lobbying contracts with more than 13 shops in the second quarter, saying it was cutting outside lobbying in the wake of a federal bailout, though it maintained a robust in-house operation. The National Law Journal wrote about cutbacks in auto industry lobbying in July. Read that story here. The company spent more than $7 million during the first three quarters of 2009 on lobbying, compared to $13 million in all of 2008.

Now, GM is hiring again. This week, lobbying firm GrayLoeffler registered to lobby on GM's behalf. The GrayLoeffler team includes both firm co-chairmen, former Rep. William Gray (D-Pa.) and former Rep. Tom Loeffler (R-Texas).

The Duberstein Group and Greenberg Traurig, both of which had previously represented General Motors before last summer's wave of terminations, posted registrations late last month, lobbying disclosure reports show.

GM spokesman Greg Martin said the company has "gone through the restructuring and bankruptcy and now it’s back to business..,as we have in the past, we will, from time to time retain outside counsel and expertise to help us through a myriad of complex policy issues. "

Martin said the company won't rule out hiring additional lobbyists. All three firms have registered to lobby on issues related to the automotive industry. Currently, Martin said, the lobbyists are helping the company with trade issues concerning China.

Request to Inspect Judge’s Cell Phone, Computers Is Denied

A D.C. Superior Court judge this week rejected defense efforts to inspect the home and work computers of a magistrate judge who is the alleged victim of stalking.

Washington solo practitioner Dorsey Jones Jr. wanted a forensic expert to examine the computers as well as the cell phone belonging to D.C. Superior Court Magistrate Judge Janet Albert. Jones said he wanted to establish the chain of custody for e-mails and text messages sent by and to defendant Taylar Nuevelle. Nuevelle is Albert’s former girlfriend.

Judge Russell Canan denied Jones’ request this week. The judge also denied a motion to appoint a federal district judge to preside over the case. Jones had asked that all Superior Court judges recuse themselves since the victim is a colleague.

Nuevelle, 40, was charged in April with stalking Albert and breaking into her Northwest Washington home. Nuevelle and Albert’s year-long relationship had ended in September 2008.

Jones said in court papers filed this month that he wants to establish the chain of custody for hard copies of e-mails and text messages that the government has provided him as evidence. Jones said that he wants to verify whether any of the original messages were deleted or altered.

In court papers released Dec. 23, prosecutors called Jones’ request an invasion of privacy. The defense failed to articulate a basis for believing “that there have been any alterations or deletions of evidence, nor any reason to believe there is material evidence stored on these devices, which would justify the extraordinary intrusion into the victim’s personal and workplace communications,” Assistant U.S. Attorney Stephanie Brenowitz said in court papers. Click here for a copy.

Moreover, Brenowitz said, Nuevelle’s lawyer should already have access to all text messages and e-mails to and from his client. The prosecutor called Jones’ concerns about alterations and deletions “undocumented speculation.”

As a side note, Brenowitz said Albert’s personal computer had been rendered “inoperable due to numerous instances of spyware, viruses and other foreign programs.” The computer has been reformatted and the amount of information available to be examined is limited, Brenowitz said.

Albert and her lawyer, Robert Spagnoletti of Washington’s Schertler & Onorato, joined the government’s motion to quash defense efforts to access the computers and cell phone.

Federal prosecutors were also opposed to Jones’ motion that all Superior Court judges recuse from hearing the case.

Canan said in court earlier this month that he has no social or personal relationship with Albert, a magistrate judge since 2003 who presides over child abuse and neglect cases. Albert, a former federal prosecutor, has never had a trial in front of Canan. Brenowitz said in court papers there is no evidence that Canan can’t be impartial.

“The fact that a witness is a judge or works in the courthouse does not lead inexorably to the conclusion that there would be an appearance of impropriety if such a case were presided over by any judge of this court,” Brenowitz said in court papers (.pdf).