By Tom Spulak - 04/28/09 06:37 PM EDT
President Obama’s recently issued directive to all executive-branch officials is designed to ensure that funds under the American Recovery and Reinvestment Act of 2009 are administered “transparently and accountably.” The pronouncement prohibits officials from participating in oral communications — in-person meetings and telephonic communications — with a registered lobbyist if the lobbyist is attempting to influence funding under the Recovery Act for “particular projects, applications or applicants.”
Guidance subsequently issued by the Office of Management and Budget clarified that registered lobbyists may orally arrange meetings to discuss particular projects, applications and applicants, and also may speak with officials at widely attended events. It also clarified the subjects to which the restrictions apply. A “particular project” is a “discrete and identifiable transaction or set of transactions in which specific parties have expressed an interest.”
What is one to make of the motivation behind the president’s directive, and what is the problem that the administration is trying to address? Unlike the legislative branch, where personal relationships with members of Congress and staff often facilitate requests for assistance, contacts with executive-branch officials — especially career employees — typically do not involve personal relationships. The concerns about lobbyists’ fundraising and other relationship-building practices that are often raised in connection with members of Congress are simply not present in the executive branch.
These restrictions have caused outrage in the lobbying community. Some lobbyists believe that they are being unfairly excluded from participating in the decisionmaking process related to this momentous legislation. Other lobbyists are concerned that in the future the restrictions will be applied more generally to all contacts with officials on any subject.
Three groups — the American League of Lobbyists, the American Civil Liberties Union and Citizens for Responsibility and Ethics in Washington — have formed an unlikely alliance and petitioned the White House to remove the restrictions on lobbyist communications.
The basis for their request is sound and compelling. Strong legal arguments exist to support the argument that a lobbyist’s First Amendment right to petition the government is being abridged. More practically, they note that the restrictions will not achieve the goal of transparency and, in fact, will be counterproductive. That is because non-registered individuals may communicate with officials in an attempt to influence their decisionmaking and often these individuals, such as a corporate CEO, are more influential than their lobbyists. Moreover, as non-registrants, the activities of such individuals will not have to be reported under the Lobbying Disclosure Act of 1995 (LDA).
The groups offer an alternative that would allow all individuals — whether registered lobbyists or not — to communicate orally with officials, provided that the details of such communications are recorded and reported. This is a good compromise regarding this specific legislation and may well be required to maintain the spirit of the administration’s original policy.
It does, however, raise the question about whether these reporting requirements will be applied to all future lobbying contacts with executive-branch officials. Today, under the LDA, lobbyists report general references to those governmental entities with which they interact and a general description of the issues about which they have lobbied. For some time, public interest groups have argued that lobbyists should be required to provide more detailed information about their activities, such as the name, date and subject matter of each interaction with a government official. This type of reporting is required by the Foreign Agents Registration Act. History has shown that compliance with FARA is significantly more cumbersome, complicated and difficult to understand than the current LDA. Converting the LDA to a FARA-like system is likely to result in lower levels of compliance and thus less transparency, not more. And of the additional information that is reported, what more will really be known? At some point, the reporting of the thousands of meetings that occur each day will be trivial and useless.
And will it be limited to the executive branch? Wouldn’t there be an effort to extend these reporting requirements to the legislative branch? How will members of Congress react to such proposals?
The best outcome would be a recognition of the positive role and value that lobbyists play in our system of representative government. Given the fact that lobbyists apparently present an easy political target, that message is unlikely to get through to the American public. That is unfortunate.
Spulak is a King & Spalding partner in the Government Advocacy and Public Policy Practice Group. He served as Democratic staff director and general counsel of the House Committee on Rules, and as general counsel to the House.