John Wonderlich of the Sunlight Foundation posts regarding potential changes to the Obama policy on stimulus lobbying. There are two basic aspects to these changes, as announced by WH special counsel Norm Eisen on May 29, 2009. First, the administration proposes to extend the ban on oral communications regarding certain stimulus matters “to contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process.” This means that whatever the restrictions are on oral communications, they will apply equally to registered lobbyists, non-lobbyists with an interest in stimulus projects (e.g., company executives), and others who might want to influence the process (Members of Congress?).
Second, there would be a narrowing of the subject matter covered by the ban on oral communications. According to Eisen, the restriction on oral communications would be limited to the period “after competitive grant applications are submitted and before awards are made.” This seems to be a much narrower restriction than under the current policy, which applies, without time limitation, to all oral communications regarding “particular projects, applications, or applicants for funding” under the stimulus bill.
As Wonderlich points out, the first change suggests a recognition by the Obama administration that its attempt to distinguish between communications of registered lobbyists and those of non-lobbyists is unrealistic and unfair:
“Relying on the distinctions of the Lobbying Disclosure Act (which defines who must register as a lobbyist) was too easy to skirt, since the influential are often not lobbyists. This was one of the main complaints from CREW, ACLU, and ALL, who suggested lobbyists were being unfairly singled out, and pointed to well-heeled CEOs and campaign contributors who are clearly influential, but often fall below the 20 percent threshold for lobbying registration. Sunlight has often made this point as well, and CREW has already praised the forthcoming guidance.”
One wonders whether the administration will revisit some of its other policies that arbitrarily discriminate against registered lobbyists.
It is also worth noting that by applying equally to both lobbyists and non-lobbyists, the new policy would also seem to be an improvement from a First Amendment standpoint. The main First Amendment concern with the current policy is that it arbitrarily prevents one group from petitioning the government. The new policy, on the other hand, restricts all oral communications from any source during the period when specific applications are being evaluated. This seems much more like a requirement that a particular proceeding be conducted “on the record,” which would not appear to raise any serious constitutional concerns.