A brief, puzzling update (below the fold) on my attempts to get my hands on actual forms SF-LLL, which government contractors or grantees must file when they make a payment or agree to pay “any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with a covered Federal action,” with the latter phrase referring to any contract, grant, cooperative agreement, loan, loan guarantee or loan insurance worth more than $100,000. A reminder: The hope here is that if we can get enough forms SF-LLL, we can start to distinguish between those contracts awarded through the normal procurement process, and those awarded after lobbyists went outside the normal procurement process to influence members of Congress or administration officials. If we can get a complete set of all forms SF-LLL filed with the government, we might be able to build a database from that information, linking it with or incorporating it into sites like FedSpending.org, which tracks government contracts and spending, or OpenSecrets.org, which tracks political influence.

Now, for the update: I got an answer to a Freedom of Information Act request I filed on Feb. 5, 2007, with Hanscom Air Force Base requesting any forms SF-LLL filed by or on behalf of a company, ProLogic, in connection with this award:

ProLogic Inc., Fairmont, W.Va., was awarded on 19 December 2005, a $7,090,838 cost plus fixed fee contract to research how the best to gather required medical data from medical encounters, analyze it, and make to available to users in support of medical planning and operations using a Net-Centric approach identified as MED-STARS. At this time $2,208,000 has been obligated. This work will be complete by October 2008. Solicitations began January 2005 and negotiations were completed in August 2005. The Headquarters Electronic Systems Center, Hanscom Air Force Base, Mass., is the contracting activity. (FA8726-06-C-0005).

The response reads as follows:

1. This is in reference to your FOIA request, dated 5 February, for any and all forms SF-LLL.

2. We do not maintain these forms; therefore, we have no records to give you.

3. If you decide to appeal this response, please write to the Secretary of the Air Force within 60 days from the date of this response, and include your reasons for appeal. Attach a copy of this response and address your letter to:

Secretary of the Air Force
THRU: 66 MSG/SCSF
63 Grenier Street
Hanscom AFB, MA 01731-2303

Line #2 strikes me as being oddly worded. I can understand if they don’t have any forms because ProLogic didn’t lobby on that particular contract, and didn’t file the form. Then the response should be that, after searching their files, there are no “responsive documents,” or some such. But what does it mean that they don’t maintain the forms? Does that mean they get them but send them somewhere else? Throw them out? That if they’re offered them, they refuse to take them? Rather than immediately file an appeal, I emailed back asking for clarification of item 2 of the response.

For the record, here is the portion of the Code of Regulations (32 CFR 28 for those keeping score at home) that requires “persons” (defined below as “an individual, corporation, company, association, authority, firm, partnership, society, State, and local government, regardless of whether such entity is operated for profit or not for profit”) “requesting or receiving” a contract, grant, loan and so on, to file form SF-LLL (shown in appendix B).

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This story, about the problems that the Coast Guard and its contractor, Integrated Coast Guard Systems (a joint venture of Northrop Grumman and Lockheed Martin), are having with their Deepwater program, got me thinking–and about something other than this report on the program by the Inspector General of the Dept. of Homeland Security.

Under federal law (it’s title 31 U.S.C. section 1352, for those of you keeping score at home), contractors and subcontractors, for-profits and non-profits, universities and state and local governments that lobby the federal government for contracts, grants, cooperative guarantees, loans, loan guarantees or loan insurance have to file a form, called SF-LLL, when they lobby the federal government for that contract, grant, cooperative guarantee, and so on. The instructions that come with the form say, “The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress,an officer or employee of Congress, or an employee of a Member of Congress in connection with a covered Federal action.”

That’s a mouthful, but what it means, I believe, is that a company that’s lobbying, say, the Senate Appropriations Subcommittee on Homeland Security for an earmark would have to file an SF-LLL along with its contract proposal to the Department of Homeland Security, and then again every time it makes a payment to its lobbying firm. That’s pretty useful information to have, because the presence or absence of an SF-LLL allows us to distinguish between which contracts, grants and so on are awarded solely through regular procurement procedures, and which recipients of federal funds hired lobbyists seeking House or Senate members, or their staffers, or administration officials, to intervene on their behalf.

It would be helpful to have a nice big pile of SF-LLLs as a reference when looking at federal contracting and grantmaking data. Even more helpful, of course, would be to have that information integrated into the data on sites like FedSpending.org and the Open Secrets lobbying database. However, I suspect that we’re a long way away from having that kind of transparency.

Form SF-LLL says, in a box on the lower left hand side of the page, that “This information is open to public inspection.” I’m curious to see how hard it is to inspect an SF-LLL. Below is a copy of my first serious effort to do so–a request made under the Freedom of Information Act for any SF-LLLs filed in connection with the first Deepwater contract, HSCG23-02-C-2DW001, which Integrated Coast Guard Systems won in 2002. On page seven of this 2002 lobbying disclosure form (that is, the kind filed with the House and Senate), Northrop Grumman notes it lobbied on Deepwater, as does Lockheed Martin on page 19 of this 2002 lobbying disclosure. It does not seem unreasonable to assume that their lobbying would have involved the actual awarding of the Deepwater contract referred to above, but of course I could be mistaken (and hopefully, we’ll find out the answer soon from the Coast Guard).

Over the next couple of days, I’m going to send out some more FOIAs asking for SF-LLLs for different contracts issued by various agencies. Sometimes, like in the Deepwater example here, I’ll focus on a single contract. In others, I’ll see if I can find a broader approach. I’m also going to make some calls around town to lobbyists, to government agencies, to congressional staffs and others to try to trace the history of form SF-LLL (which is actually quite fascnating–and quite relevant to what we’re trying to accomplish here at Sunlight. More on that in a bit).

Here’s the text of the FOIA, sent to the Coast Guard electronically just a few minutes ago:

Donald Taylor
FOIA Officer
U.S. Coast Guard
Commandant (CG-611)
2100 2nd St., S.W.
Washington, DC 20593-0001

Dear Mr. Taylor:

Pursuant to the Freedom of Information Act, 5 U.S.C. § 552, I requesting copies of the following documents:

Any and all forms SF-LLL (as required by 31 U.S.C. § 1352) filed by or on behalf of Northrop Grumman Corp. or Lockheed Martin Corp. in connection with the contract award number HSCG23-02-C-2DW001 made to Integrated Coast Guard Systems, Duns number 0364758330000.

I respectfully request a waiver of all costs associated with fulfilling this submission pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). Disclosure of the requested records will further the “public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest” of the requester, the Sunlight Foundation.

Founded in 2006, the Sunlight Foundation is a 501(c)3, nonpartisan organization dedicated to furthering transparency in government. Sunlight disseminates information about its activities to thousands of concerned citizens, policymakers, and the media via its Web site http://www.sunlightfoundation.com.

Please feel free to call or email me if this request requires further clarification. Thank you for your prompt attention to this matter.

Sincerely,

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Speaking of the Dubai ports deal in the context of the inadequacy of our current lobbyist disclosure laws, it’s probably worth noting that it wasn’t just DP World that was hiring lobbyists. The controversy, recall, erupted in the second half of February, as an increasingly large, bipartisan group of lawmakers questioned the sale of a British firm that handled some U.S. port operations to a company owned by the government of Dubai, which is part of the United Arab Emirates. By March 9, DP World announced it would get out of the U.S. ports business.

What’s unique about the Dubai ports controversy is that, because the story was so sexy (as news folks like to say), it got a lot of coverage, and a lot of aspects of the story were explored. That a Florida-based company, called Eller & Co., brought the Dubai deal to the attention of Congress was reported in the very first AP story, for example. And how that came to be, and who it was who talked to which members of Congress, was revealed in a fine article by Douglas Turner of the Buffalo News dated March 4, 2006, and available through the magic of Nexis. This story, as far as I can tell from Nexis, was the first mention of Joseph Muldoon…

Attorney Joseph Muldoon III represents Eller & Co., a Miami-based shipping firm that is fighting the transaction here and in Britain’s highest court.

In an interview, the attorney said Eller & Co. does not want to become an unwilling partner of DP World’s Miami operations.

Muldoon told The News he unsuccessfully appealed two months ago to Sen. John Warner, R-Va., whom he knows personally, and also saw staff members for Sen. Kay Bailey Hutchison, R-Texas, to stop the sale on national security grounds.

“I’ll check it out,” Muldoon quoted Warner as responding.

“Finally, I went to Sen. [Charles E.] Schumer because he is a member of the Senate Banking Committee, which oversees the Treasury Department board which approved this thing. If this hadn’t been for Sen. Schumer,” Muldoon said in an interview, “this issue would never had gotten any traction.

/SNIP/

It was not until Muldoon called Schumer’s office three weeks ago that it bloomed into an issue that threatens the president’s hold on Republican majorities in the House and Senate.

There’s also an excellent account of this from Peter Overby of National Public Radio from four days later, March 8, 2006, which adds information about Muldoon–not the least bit of which is that he was the lobbyist for Eller & Co. (which, if I’m not mistaken, is the first time Muldoon is referred to as a lobbyist in the coverage).

Yet if you’d looked up Eller & Co. on the Senate Office of Public Records Web site–either on March 4 or March 8, you would have found…nothing. That’s because Muldoon didn’t file his lobbying registration disclosure unitl March 6, and it wasn’t posted on the Senate’s site until March 28–some 19 days after the Dubai ports controversy had been resolved. That’s no fault of Muldoon’s–he certainly followed the law and the rules for filing. It’s the law and the rules that are wholly inadequate to accomplishing the goals of disclosure.

As noted, the press coverage on this story was thorough–even touching on the contacts that one of the Washington lobbyists involved had during the course of the controversy. But most things that happen in Washington don’t get anywhere near this much coverage, if any at all. Members aren’t always so eager to go before the cameras (as they were in the Dubai ports affair) when it’s a tax break they’re doling out. Lobbyists don’t necessarily want to tell a reporter how they landed a fat earmark for a defense contractor client. Public disclosure of lobbying reports is supposed to fill in this gap–even if NPR or the Buffalo News or the Associated Press doesn’t share your interest in an issue, you as a citizen should know who’s trying to influence your elected representatives. Or, as the Lobbying Disclosure Act of 1995 puts it,

[R]esponsible representative Government requires public awareness of the efforts of paid lobbyists to influence the public decisionmaking process in both the legislative and executive branches of the Federal Government…

It seems to me that it’s awfully hard to have public awareness of the efforts of paid lobbyists to influence public decisionmaking if the decisions are taken before the lobbyists filings are available for public inspection…

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It’s been interesting to hear discussions (and be part of a few) about Sunlight’s transparency agenda, particularly from smart lawyer types, policy wonks and activists. For my part, I tend to need concrete examples to prop up my thinking, and thought I’d offer a few examples from how we do things now which I think will make it fairly clear as to why we need to do things differently.

Take our current state of lobbying disclosure, and a recent, relatively high profile matter that caused a lot of consternation among Americans: The Dubai ports deal. Under our current lobbying law, the average citizen would have no way of finding out how many lobbyists the company at the heart of the controversy was employing, or how much they were paying them, or who they were lobbying, until long after the matter was resolved.

For those like me with short memories, the controversy concerned a company based in the United Arab Emirates, DP World International, which would have taken over some operations at six U.S. ports thanks to its acquisition of Peninsular and Oriental Steam Navigation Company, the British firm that had had the contracts to work at the aforementioned ports. The Bush administration approved the sale and the shift to DP World of operations at the ports, after which critics–both Democrats and Republicans–raised some serious concerns about the deal. The fear was that the U.A.E.-owned firm would be more susceptible to infiltration by terrorists, who would have access to U.S. port facilities and foreign (perhaps uninspected) cargo.

As this handy timeline shows, these concerns were first aired by Congress on February 15, 2006 (the first story questioning the deal, from the Associated Press, hit the wires on Feb. 11); by March 9, 2006, a compromise had been struck: DP World agreed to transfer port operations to a U.S. firm (that sale was made this month).

During the high-profile controversy, DP World hired a number of lobbyists to press its case on Capitol Hill and to the administration; here are the firms, plus the dates that their first disclosures were put online by the Senate Office of Public Records:

Alston & Bird……………………………………March 6, 2006
Andreae & Assoc.………………………………Sept. 11, 2006
APCO Worldwide………………………………..March 6, 2006
Bell Pottinger……………………………………..March 23, 2006
Downey McGrath Group Inc.…………………..July 24, 2006
DP World FZE…………………………………….April 5, 2006
P&O Ports North America……………………..April 5, 2006

According to their registration statements, Alston & Bird, Andreae & Associates, DP World FZE and P&O Ports North America, their effective date of registration–when they were either retained to lobby or had their first contact with a government official–was February 15–the day the storm broke. . Under our current rules, they have 45 days to register with the Senate and the House after that effective date–in this case, the House and Senate offices that track lobbyists need not have known who was lobbying over the Dubai ports deal until April 1, 2006–more than three weeks after a compromise had been reached. And, I’m informed by Senate Office of Public Records, that they allow themselves 90 days from the time they receive a report until they get it online, sometimes longer (which might explain the lag for Downey McGrath–whose effective date was Feb. 13 and whose report was received by the Senate on Feb. 24–and Andreae & Associates).

In the case of the Dubai ports deal, it appears that everyone followed the disclosure rules–and yet, if you were relying on the public disclosures mandated by Congress to find out who was lobbying over this issue, you would have had no inkling until March 6, and wouldn’t have known the full roster until Sept. 11–a full 208 days after the controversy broke, and 186 days after it had been resolved.

And, of course, none of the registration disclosures linked above require a lobbying firm to specify what parts of the government–whether it’s Congress, the White House or the Department of Homeland Security–that’s being lobbied.

Not exactly timely disclosure.

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