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Legacy Content / RULES OF THE GAME

Are Lobbyists Being Locked Out?

Obama's Lobbying Rules Are Imperfect, But Advocates' Complaints Mostly Ring Hollow

April 27, 2009

Pity the poor lobbyist.

First, President Obama imposed strict revolving-door rules on lobbyists seeking jobs in his administration. More recently, the White House has banned executive branch officials from even talking to lobbyists eager to steer economic stimulus money to their clients. (Lobbyists must instead communicate in writing.)

Both moves have prompted heated protests on K Street, and not just from predictable players such as the American League of Lobbyists. Some public-sector activists now argue that the administration's revolving-door rules are "causing serious, unintended harms to nonprofit organizations," as they put it in a recent memo to the White House. A coalition that includes civil rights and good-government organizations also has attacked the stimulus lobbying rules as "an ill-advised restriction on speech."


It's easy to see why lobbyists are upset. After all, the president's new lobbying and ethics regime has caused a lot of pain without getting at the root cause of undue influence in Washington -- namely, the political money system that makes lawmakers depend on lobbyists for campaign cash. Obama has said he wants to fix the public financing system and strengthen enforcement, but has yet to follow through. (He's had a few other things on his plate.)

Still, it's hard to feel too sorry for the lobbyists who argue that Obama's ethics rules are either unconstitutionally stringent or should apply to everyone but them. Organizers for nonprofits object that the revolving-door rules, for example, lump public-sector lobbyists together with those representing "pecuniary" interests. They've asked the White House to essentially carve out a blanket exemption for all job seekers who lobby for 501(c)3 nonprofit or 501(c)4 social welfare groups.

"There's a fundamental difference between lobbying for charitable purposes or for a public purpose... versus lobbying for the financial bottom line for the benefit of shareholders," said Lawrence Ottinger, president of the Center for Lobbying in the Public Interest, a national support organization for nonprofit advocacy.

The rules have also hurt recruitment and hiring in the nonprofit sector, maintain Ottinger and his allies, who represent groups as diverse as the American Cancer Society and the Leadership Conference on Civil Rights. The administration's revolving-door limits have sent a "chill through the nonprofit advocacy community," maintained Stephen Rickard, executive director of the Open Society Policy Center, which is helping lead the push to change those rules.

Some opinion leaders have bought this notion that "good," civic-minded lobbyists can somehow be distinguished from "bad," corporate ones. But invariably, one person's worthy cause is another's insidious special interest.

"You have to have bright lines," said Fred Wertheimer, president of Democracy 21, which has lauded Obama's lobbying restrictions from the start. "Defining 'good guy' lobbyists and 'bad guy' lobbyists is in the eye of the beholder."

Fortunately, the Obama administration appears to be standing pat, despite more than one meeting with nonprofit advocates. As White House Chief of Staff Rahm Emanuel recently told the New York Times, "You can't have a value judgment."

The administration's restrictions on communications with lobbyists seeking stimulus money are a little trickier. First Amendment lawyers disagree whether those rules would withstand a constitutional challenge.

The administration directive, issued on March 20 and clarified in an Office of Management and Budget memo on April 7, bars executive branch officials from phone conversations or face-to-face meetings with lobbyists seeking stimulus funds under the American Recovery and Reinvestment Act of 2009. Instead, lobbyist communications must be submitted in writing, and posted on the Internet within three days.

"To state that one class of individuals may not participate in the same manner as all others is clearly a violation and discriminates against an entire group," wrote advocates representing Citizens for Responsibility and Ethics in Washington (CREW), the American Civil Liberties Union and the American League of Lobbyists in a March 31 letter to White House counsel Gregory Craig.

The restriction will actually hurt transparency, the letter argued, because corporate executives not subject to the ban will simply replace their lobbyists in petitioning for stimulus funds.

Even so, the directive is narrowly drawn and probably constitutional. If anything, the fact that lobbyists' clients may still ask for stimulus money by phone or in person is precisely what protects the directive from legal challenge, argues University of Pittsburgh law professor William Luneburg.

The directive "would not seem to be a tremendous hardship; certainly not one sufficient to establish a violation of the Constitution since the persons most affected by the government's action are offered the opportunity to make their case in person," Luneburg wrote in a recent online column.

"There is no gagging going on of lobbyists," concurred Craig Holman, legislative representative for Public Citizen's Congress Watch. The administration's directive "has really leveled the playing field," he added, since everyone seeking stimulus money must lobby for it in the same way: "in writing and in public."

Admittedly, the Obama administration's lobbying restrictions are an imperfect solution to a much bigger problem. But they are hardly the gross violation of civil liberties and public-interest activism that some lobbyists make them out to be.

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