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Yes We Kant

           Yesterday Norm Eisen, the White House Special Counsel for Ethics and Government Reform, addressed the 2009 Administrative Law Conference sponsored by the ABA Section on Administrative Law and Regulatory Practice.  Eisen gave an energetic and engaging defense of the Obama administration’s ethics policies, particularly as regards to the activities of registered lobbyists, but I don’t think he convinced many of the skeptics in his audience. 

            Many of the questions Eisen received focused on the administration’s differential treatment of “registered lobbyists” (those who have registered under the Lobbying Disclosure Act) as opposed to non-lobbyists who may (1) engage in lobbying but are not required to register (or simply fail to do so) and/or (2) represent “special interests” just as much as lobbyists do.  As to the first category, Section Chair Bill Luneburg pointed out that the definition of a lobbyist under the LDA is “quite arbitrary” and even if one happens to qualify under the definition, there is virtually no enforcement with regard to those who fail to register.  As to the second category, a questioner from the audience asked why the Obama E.O. would prohibit a registered lobbyist for a trade union from working for the administration while it would not prevent the lobbyist’s client (e.g., the president of that union) from taking the same job.  (I have made similar points here, here and here). 

            Eisen acknowledged that these were legitimate issues, and pointed out that in some areas (e.g., TARP and stimulus lobbying) the administration had ultimately come to the conclusion that everyone, whether or not a registered lobbyist, should be treated the same.  However, he could not really explain why there was a need for distinguishing between lobbyists and non-lobbyists for purposes of the E.O.  He did on a couple of occasions cite Immanuel Kant’s “categorical imperative” (really) as a justification for the decision to utilize the LDA’s definition of “lobbyist,” although I think this was in the context of explaining why the administration had not tried to distinguish between corporate and non-profit lobbyists.   

            Unfortunately, the categorical imperative does not explain why “lobbyists” are a category that merits more hostile treatment than the special interests that the lobbyists represent.  Nor does it explain why lobbyists are not in included in the same category as lawyers, who may represent clients just as odious (if not more so). 

            One might think that the Obama administration’s anti-lobbyist policy is simply an attempt to score political points at the expense of an unpopular profession.  As Eisen repeatedly noted, the President campaigned on promises of curbing the influence of lobbyists and the administration is fulfilling those promises with its actions, including the most recent move to bar lobbyists from serving on agency advisory boards and commissions. 

            Another, and more ominous, possibility presented itself toward the end of Eisen’s presentation, however.  In the context of noting this letter he wrote decrying the role of lobbyists who oppose the administration’s health care, banking and energy agenda, Eisen  adverted to the fact that the administration would like the lobbying community to “step up” to address the ways in which the current system causes the “public interest to be thwarted.”  One could infer from this that the administration is seeking to pressure lobbyists to support the administration’s agenda, regardless of the views or interests of the industries they represent.    

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