The attempt by the Washington Post to sell access to reporters and to senior government officials is spectacularly inappropriate, as others have chronicled. But it may be much more than that. It might be illegal -- even criminal. And that illegality may provide just the evidence needed to show that the paper is -- offically -- engaged in a very different line of work than the honest dissemination of news.
Lobbyists are in the business of selling access to the powerful. That is why so many politicians become lobbyists after leaving office.
There is a body of federal law intended to limit and regulate this practice. The Lobbying Disclosure Act (2 U.S.C. § 1601 et seq.) certainly does not seem to have crimped the style of big business, but it does create some very specific requirements. And it also sets up civil and criminal penalties if they are violated.
First, look at what the WaPo has done. According to Politico they circulated a flyer that said this:
"Underwriting Opportunity: An evening with the right people can alter the debate," says the one-page flier. "Underwrite and participate in this intimate and exclusive Washington Post Salon, an off-the-record dinner and discussion at the home of CEO and Publisher Katharine Weymouth. ... Bring your organization’s CEO or executive director literally to the table. Interact with key Obama administration and congressional leaders."
Politico also reported that Publisher Katharine Weymouth
...made it clear however, that The Post, which lost $19.5 million in the first quarter, sees bringing together Washington figures as a future revenue source.
So them's the facts. Let's look at the law.
"Lobbying contact" is defined 2 U.S.C. § 1602(8)(A) as
any oral or written communication (including an electronic communication) to a covered executive branch official or a covered legislative branch official that is made on behalf of a client with regard to—
(i) the formulation, modification, or adoption of Federal legislation (including legislative proposals);
(ii) the formulation, modification, or adoption of a Federal rule, regulation, Executive order, or any other program, policy, or position of the United States Government;
(iii) the administration or execution of a Federal program or policy (including the negotiation, award, or administration of a Federal contract, grant, loan, permit, or license); or
(iv) the nomination or confirmation of a person for a position subject to confirmation by the Senate.
That raises a few questions:
- Do we have "oral or written communication"? Sure seems like it.
- Who is a "covered official"? That's answered in (3) and (4), and yes, "key Obama administration and congressional leaders" should fit the bill.
- Were the communications "on behalf of a client"? I'd have to review the case law, but again, sure seems like that is the intent here.
And finally
- Was the communication for one or more of the enumerated purposes? The memo isn't explicit, but it is hard to imaging charging $25,000 for the purpose of discussing this year's Cy Young contenders.
So let's assume we have actual or potential lobbying contacts. The statute also defines "lobbying activities."
The term "lobbying activities" means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others.
The key here is that you don't have to have completed your communications in order to be engaged in lobbying activities: "preparation and planning" are enough.
The next question is whether what the WaPo did falls into any exceptions. And there is indeed an exception for the media:
The term "lobbying contact" does not include a communication that is—
...(ii) made by a representative of a media organization if the purpose of the communication is gathering and disseminating news and information to the public;
But notice that it isn't a blanket immunity based on status. The WaPo is in the clear only if the contact was for "the purpose of the communication is gathering and disseminating news and information to the public." I doubt anyone could argue that one with a straight face here. So the WaPo would likely argue a different exception:
a request for a meeting, a request for the status of an action, or any other similar administrative request, if the request does not include an attempt to influence a covered executive branch official or a covered legislative branch official;
Again, that seems absurd in this context, but I haven't read the case law.
So, for the sake of argument, let's assume they have met the definition of "lobbying activities," and that they have made "lobbying contacts." If so, there are some significant consequences -- they have to register as lobbyists.
No later than 45 days after a lobbyist first makes a lobbying contact or is employed or retained to make a lobbying contact, whichever is earlier, or on the first business day after such 45th day if the 45th day is not a business day, such lobbyist (or, as provided under paragraph (2), the organization employing such lobbyist), shall register with the Secretary of the Senate and the Clerk of the House of Representatives.
They also have to file reports.
There are financial exemptions for de minimus dealings, but one ticket to one "Salon" would blow through them.
And if they don't file?
§ 1606. Penalties
(a) Civil penalty
Whoever knowingly fails to—
(1) remedy a defective filing within 60 days after notice of such a defect by the Secretary of the Senate or the Clerk of the House of Representatives; or
(2) comply with any other provision of this chapter;
shall, upon proof of such knowing violation by a preponderance of the evidence, be subject to a civil fine of not more than $200,000, depending on the extent and gravity of the violation.
(b) Criminal penalty
Whoever knowingly and corruptly fails to comply with any provision of this chapter shall be imprisoned for not more than 5 years or fined under title 18, or both.
Has the Washington Post (or any of its employees) registered as a lobbyist? I don't know. But that would be a pretty embarrassing thing for a "neutral observer" to do.
Is this analysis watertight? Doubtful -- I've never looked at lobbying laws before today. I am NOT an expert. This is just conjecture. YMMV.
The Washington Post seems to have recognized the PR disaster they have created with this classic gaffe (defined as accidentally revealing the truth.) But what may not yet realize is that bad PR could be the least of their problems.