Lobbying Restrictions Generate More Criticism

It appears that the Obama administration’s restrictions on lobbying are drawing criticism even as the administration defends the policies. The controversy surrounds two policy documents: one addresses restrictions on hiring lobbyists and others as political appointees, and the other focuses on communications by lobbyists about use of Recovery Act funds.

On May 5, the White House counsel for ethics and government reform, Norm Eisen, spoke at a half-day conference hosted by George Washington University’s Graduate School of Political Management. He strongly supported President Obama’s executive order on ethics (E.O. 13490 [1]), noting that the order is a tool to help ensure the American people "will not be subjected to the influences ... that have waylaid good policy, but really will attempt to be guided by that point on the horizon that represents the best thing for the country."

The January 21 executive order on ethics prohibits, for two years, an individual registered under the Lobbying Disclosure Act from working in an agency that he or she lobbied. Additionally, the political appointee may not participate in "any particular matter" that the person lobbied on within the past two years and may not participate in the specific issue area in which the particular matter falls. There is also a restriction on all potential employees – regardless of whether they are lobbyists or not – from working on "any particular matter" that is "directly and substantially related" to former employers or former clients, again for two years. Finally, when an appointee leaves government service, there is a ban on lobbying high-level executive branch officials for the remainder of the administration. The director of OMB, in consultation with the White House counsel, may grant a waiver of these restrictions if the "application of the restriction is inconsistent with the purposes of the restriction" or it is in the "public interest" to grant a waiver.

At this time, only three waivers have been granted for lobbyists to work within the administration. A fourth waiver was granted on May 1 for White House advisor Valerie Jarrett [2]. Jarrett was given permission to work on Chicago's bid for the 2016 Olympics, even though she was previously the vice chair of a nonprofit organization working to bring the Olympics to Chicago.

Eisen also argued that there is no "flat ban" on lobbyist communications on Recovery Act spending. "There is a requirement that lobbyist communications about particular applications, applicants, or projects be put in writing. The rationale is that we wanted every American ... to be able to evaluate those proposals on their merits." He was referring to a requirement that the written communications must be posted to the agency’s website.

The controversy is over a March 20 presidential memo [3] that restrictions communications by federally registered lobbyists with executive branch employees on use of Recovery Act funds. The memo, and subsequent guidance from OMB, allows federally registered lobbyists to communicate on general issues about the Recovery Act as well as to ask specific questions in public forums. However, the moment the conversation switches to specific comments about how money should be spent, the communication must be put in writing. The guidance calls on agencies to post all written communications with lobbyists to the agency website within three days of the communication.

This can create unusual situations. For example, a state registered lobbyist or someone who is not a lobbyist can speak orally to an executive branch official about how Recovery Act money should be spent, but a federally registered lobbyist cannot. In response to questions from the audience about this situation and the administration’s desire for more transparency, Eisen suggested he was reviewing various options for modifications to the rules, including requiring disclosure of all communications from lobbyists and non-lobbyists who are seeking to influence how money is spent under the Recovery Act.

Other panelists at the event thought the administration had gone too far in targeting and restricting lobbyists. Several pointed out that the real problem isn’t lobbyists but the corrupting influence of money. For example, Bob Edgar, the president of Common Cause, said, "Most lobbyists are good people who perform a valuable service sharing their expertise on issues with Members of Congress. The problem is our corrosive system of funding political campaigns that makes lobbyists a conduit between Members of Congress and money. We need to change that."

Eisen has been hosting a series of listening sessions, including one on May 6 that included a range of nonprofit organizations, to identify possible modifications and improvements to these policies.