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Legacy Content / RULES OF THE GAME

One Lobbying Battle Ends, But A War Remains

Advocates Welcome New Stimulus Rules Even As They Ask More Hard Questions About Future Restrictions

June 8, 2009

The Obama administration has deftly defused a nasty argument with some of its allies over restrictions on lobbyists seeking economic stimulus money, but the war over how to regulate lobbyists is far from over.

The recent dispute over lobbying curbs tied to the $787 billion recovery package points up the need to revisit lobbying restrictions across the board, say reform advocates, who predict more rules changes ahead.

"Lobbying disclosure is certainly something that's moving back on the table," said John Wonderlich, policy director of the Sunlight Foundation. Discussions are under way in the administration and on Capitol Hill about reopening the Lobbying Disclosure Act of 1995, Wonderlich added, with an eye toward broadening the definition of who qualifies as a lobbyist and requiring more real-time reporting.


Given the recent uproar over lobbyists' contact with the administration, however, any further changes are sure to kick up a fight. The administration generated enough of a stir when it issued a directive in March that barred executive branch officials from speaking with lobbyists seeking stimulus funds under the American Recovery and Reinvestment Act.

The struggle over the Obama administration's lobbying rules have shone the spotlight on definitions of "lobbying" that appear to draw distinctions without a difference.

The ban angered not just predictable players such as the American League of Lobbyists, but influential labor, civil rights and nonprofit leaders otherwise allied with the administration. The ALL went so far as to call the ban unconstitutional and threatened legal action. As clarified in an Office of Management and Budget memo in April, the ban permitted written communications but required them to be posted on the Internet within three days.

The administration's new rules, released following a review period and announced via a White House blog posting on May 29, have fended off a constitutional challenge -- at least for now. As described by Norm Eisen, Obama's special counsel for ethics and government reform, the new rules both narrow the window when the ban applies and expand it to include everyone "exerting influence" on the process -- not just lobbyists.

"It does away with the discriminatory conduct against lobbyists, and it does away with the broad prohibition on oral communications," said Kenneth A. Gross, a partner at Skadden, Arps, Slate, Meagher & Flom, who represented the ALL in discussions with the administration. The ban now applies only to a blackout period that kicks in after a grant for a competitively bid project has been submitted and ends when awards have been granted.

Still, questions remain about the scope of the oral communications ban, which has yet to be formalized with official guidelines. A key question is whether it will apply to members of Congress, noted Wonderlich. Restraining lawmakers' speech, he added, could raise "significant concerns about the equal roles of the branches [of government] and the ability of Congress to do oversight."

The struggle over the Obama administration's lobbying rules -- which include not just the stimulus constraints but the more comprehensive revolving door and ethics restrictions announced in January -- have shone the spotlight on possibly outmoded definitions of "lobbying" that appear to draw distinctions without a difference.

The Lobbying Disclosure Act requires registration and reporting by anyone who spends 20 percent or more of his or her time lobbying, for example. Yet as opponents of the original ban on stimulus-related talks pointed out, plenty of people wield clout -- corporate executives, public affairs experts, donors who bundle campaign contributions -- who do not meet the definition of lobbyist.

"The line about who has to register as a lobbyist has been exposed as rather ineffective," observed Wonderlich. "And a lot of people are going to be working through ways to make better distinctions about who is a lobbyist and who isn't."

Some established lobbyists might welcome a broader definition. The ALL, for one, argues in its Statement of Principles on the LDA that the same rules and regulations should apply to "all those involved in advocacy-related activities."

Still, any definitions that stray into gray areas and away from bright lines are sure to trigger anxiety in Washington's sprawling advocacy community. The same goes for proposals backed by groups such as the Sunlight Foundation that outline ambitious, real-time reporting requirements, including increased disclosure of lobbying contacts by federal contractors.

While transparency is desirable, argued Gross, "that's what the Lobbying Disclosure Act is for." If a reporting requirement becomes "too intrusive, it can infringe" even on communications that are supposed to be permitted, he added. After the March directive kicked in, Gross said, some lobbyists reported being frozen out of any and all meetings -- even those not subject to the ban -- causing "some trauma" on K Street.

The administration's newly adjusted rules led the ALL to back off plans for legal action, but lobbyists will "remain vigilant," Gross said. "Obviously, if this does not get implemented properly and there are agencies out there that are still... excluding lobbyists, then further action will have to be taken," he added.

Tensions may have died down for the moment, but more turbulence over lobbying rules lies ahead.

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