Lobbying for Recovery Act Funding Restricted

On April 7, the Office of Management and Budget (OMB) issued interim guidance [1] on how to comply with President Barack Obama’s March 20 memorandum [2] that restricts contact between registered lobbyists and executive branch officials regarding the American Recovery and Reinvestment Act of 2009.

The OMB guidance clarifies that federally registered lobbyists may only communicate in writing with executive branch officials when it comes to issues about how Recovery Act money is to be spent. However, those not registered under the Lobbying Disclosure Act, including state lobbyists, are permitted to meet or call executive branch officials about Recovery Act spending.

The OMB guidance memo states that government officials should not avoid meeting with lobbyists, and the policy is not meant to ban lobbying communications. Agencies "should proceed with all communications with Federally registered lobbyists in accordance with the prescribed protocol." The "prescribed protocol" has lobbyists up in arms.

According to the interim guidance, oral communications with federally registered lobbyists are restricted to general and logistical questions related to Recovery Act funding or implementation. Examples of permissible conversations include: how to apply for funding, how to conform to deadlines, to which agency or officials applications should be directed, and requests for information about program requirements. There are also no restrictions on oral communications with federal registered lobbyists at widely attended gatherings, as defined in ethics rules.

However, the interim guidance makes clear that federally registered lobbyists associated with for-profit companies, nonprofit organizations, and state and local government entities are prohibited from conducting oral communications with executive branch officials regarding "particular projects, applications, or applicants for funding." A particular project is considered to be "(i) a discrete and identifiable transaction, or set of transactions (ii) in which specific parties have expressed an interest." OMB’s guidance only applies to communications before Recovery Act funding is awarded, which may allow a lobbyist to speak with a government official about changes to a grant or contract.

If a discussion between an executive branch official and a federally registered lobbyist extends beyond generalities and begins to cover restricted topics about the Recovery Act, the official must end the conversation and ask the lobbyist to submit the comments in writing. The written comments must be posted online within three days. The date of contact, the name of the lobbyist's client(s), and a one-sentence description of the substance of the conversation must be disclosed. In addition, all written documents registered lobbyists send to agencies have to be disclosed and posted on the agency's Recovery Act website [3].

The restrictions on lobbyists were faulted [4] as too broad and raise questions about infringing on First Amendment free speech rights. According to The Hill [5], the American League of Lobbyists (ALL), the American Civil Liberties Union (ACLU), and Citizens for Responsibility and Ethics in Washington (CREW) are considering suing the federal government to block the new policy. The groups argue that the requirements are too burdensome and as a result, officials will not want to meet with lobbyists, creating adverse effects.

Because the rules only apply to federally registered lobbyists, state registered lobbyists are free to discuss specific Recovery Act projects with the administration. The policy also does not apply to individuals who used to be but are no longer federal lobbyists. The same concern arises as with Obama's hiring restrictions [6]: the focus on registered lobbyists. Some advocates note that registered lobbyists are unfairly singled out in these policies, and anyone else who does not meet the federal definition of a lobbyist can meet with federal officials to discuss projects without having these meetings disclosed. In turn, more nonregistered lobbyists will be meeting with agencies about Recovery Act funding.

Communications between lobbyists and agencies are beginning to appear online [3], but currently, there are only a handful listed. To get this information, one must go to each agency's separate Recovery Act web page and then locate any lobbying communication. There are multiple inconsistencies between the agencies, and some do not reference lobbying contacts at all. For example, the Department of Energy refers to lobbying contacts as "interested parties," while others list "lobbyist correspondence." Preferably, the lobbying information would reside at one site for all agencies.