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.    

Lobbying Related Programs Today

           The 2009 Administrative Law Conference starts today at the Washington Convention Center, and there are several programs of interest to those who follow lobbying-related legal issues.  First, at 10:45 am today is a panel on “Lobbying in the Obama Administration: What Practitioners Need to Know.”  This panel, which I helped organize, will consist of Stu Pierson (Troutman Sanders), Daniel Schuman (Sunlight Foundation), and Jim Christian (Patton Boggs).  The panel will examine the January 2009 Executive Order on Ethics Commitments by Executive Branch Personnel, the March 2009 Presidential Memorandum on lobbying on Recovery Act funding and revisions of that Memorandum, and will discuss the relationship between those regulations and the requirements of the Lobbying Disclosure Act. 

            Second, in the afternoon at 2 pm is a panel organized by Trevor Potter entitled “What’s Next for Lobbying Regulation?”  Charles Fried (Harvard Law School), Melanie Sloan (CREW), and Nick Allard (Patton Boggs) will discuss the ABA’s new Task Force on Lobbying Regulation, proposals for new lobbying regulations and the constitutional issues associated with current and proposed lobbying restrictions. 

            Both of these panels are co-sponsored by the D.C. Bar Administrative Law and Agency Practice Section, which I co-chair, and its Legislative Practice Committee.   

            Finally, between the two panels will be a luncheon presentation by Norm Eisen, White House Special Counsel for Ethics and Government Reform. 

            All of which should be very interesting to those who follow this area.






Lobbying and the Honest Services Statute

           The trial of Kevin Ring, a former lobbying associate of Jack Abramoff, ended in a mistrial this week when the jury was unable to reach a verdict.  Ring was charged with conspiring with Abramoff and others to deprive the United States and its citizens of the “honest services” of certain executive and legislative officials by providing those officials with various things of value, such as meals and tickets to sporting events.   

A former prosecutor, Peter Zeidenberg, tells TPM Muckraker that the prosecution was “extremely problematic” due to the fact that the gifts provided by Ring did not in themselves violate any law.  Zeidenberg has argued previously that the expansive use of the honest services statute is chilling the lobbying profession’s exercise of its First Amendment rights by, for example, causing many lobbyists to reduce or cease giving campaign contributions out of fear that such contributions could be used by an aggressive prosecutor as the basis for an honest services charge. 

The vagueness of the honest services statute, and its potential application to any conduct that a prosecutor might deem unethical, has long been a source of concern.  Justice Scalia, in dissenting from the denial of certiorari in an honest services case earlier this year, noted that “[i]t is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail.”  The Supreme Court has now agreed to hear three separate honest services cases, which may result in a substantial narrowing, or a complete invalidation, of the statute.  The outcome of those cases may determine whether Ring is retried.

New Treasury Guidelines Prohibit Congressional Lobbying on TARP

           The Treasury Department has released new guidelines on TARP “lobbying.”  The term “lobbying” is in quotes because the guidelines, like those promulgated with regard to the award of stimulus funds, limit communications from outside parties, regardless of whether they happen to be registered lobbyists.  In brief, the guidelines (1) allow unrestricted oral communications at widely attended gatherings or with regard to purely logistical issues; (2) prohibit oral communications with outside parties, whether or not they are lobbyists, regarding pending applications for TARP funding; (3) require agency employees to document certain oral communications from registered lobbyists; and (4) require that these documented communications, as well as written communications from lobbyists, be posted Treasury’s website within three business days.  Daniel Schuman of the Sunlight Foundation has blogged about these new guidelines here 

            I simply want to flag one difference between the new TARP guidelines and the prior stimulus guidelines, one which Schuman also notes.  While the stimulus guidelines appear to allow oral communications between agency employees and Members of Congress (or congressional staff), the TARP guidelines are fairly clear in only allowing communications between Treasury employees and other “federal executive agency officials.”  This means that Members of Congress and their staffs are not permitted to talk with Treasury officials about pending TARP applications. 

            As I have suggested before, I think that this is a sensible provision, one designed to prevent circumvention of the communication blackout periods.  (It will, however, be difficult to enforce).  One wonders, however, why there would be a prohibition on congressional lobbying with regard to TARP funds, but not with regard to stimulus funds.  One possibility is that the question wasn’t fully considered during the drafting of the stimulus guidelines or that the stimulus guidelines were intentionally left ambiguous on the point.  Alternatively, the administration would have to have some explanation as to why congressional lobbying on TARP is worse than lobbying on stimulus.  Perhaps there is a feeling that the former is more susceptible to improper influence, or that the latter more properly involves consideration of political factors.  Perhaps the administration will be asked to explain the discrepancy at some point.

D.C. Circuit Rejects Constitutional Challenge to Lobbying Disclosure

           The D.C. Circuit ruled this week in National Association of Manufacturers v. Taylor, rejecting NAM’s challenge to the constitutionality of section 207 of the Honest Leadership and Open Government Act (HLOGA), which enhanced a previous disclosure requirement of the Lobbying Disclosure Act (LDA) (hat tip: Election Law Blog).  Under this provision, disclosure is required not only of the organization which nominally conducts lobbying activities, but of any other organization which contributes more than $5,000 toward, and actively participates in, such lobbying activities.  In NAM’s case this would mean that it would be required to identify member companies that fund and actively participate in particular lobbying activities.  NAM argued that this requirement violated its First Amendment rights and “would chill NAM members from participating in public policy initiatives for fear of the consequences of public disclosure.”  It also argued that the provision was unconstitutionally vague. 

            The result in the case is not particularly surprising.  However, some of the court’s language, in an opinion authored by Judge Garland and joined by Judges Ginsburg and Henderson, is noteworthy for how strongly it affirms Congress’s authority to require the disclosure of lobbying-related information.  Although the court acknowledges that the LDA/HLOGA requirements do place a burden on NAM’s First Amendment rights, it finds this burden is justified by the “vital national interest” in public disclosure of “’who is being hired, who is putting up the money, and how much’ they are spending to influence legislation.”  (citing United States v. Harriss, 347 U.S. 612, 625-26 (1954)).  It is also largely dismissive of NAM’s attempts to question the utility of the information disclosed under the statute and the clarity of the statutory definition of “lobbying activities.” 

Finding that the government’s compelling interest in lobbying disclosure has been long settled by Harriss, the court is definitive in its rejection of the constitutional challenge.  Its sweeping language is likely to discourage future challenges to the disclosure requirements of LDA/HLOGA: 

Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject [NAM’s] challenge.


            For more than sixty years, Congress has sought to expose the lobbying of government officials to public scrutiny.  Acronyms and intricacies aside, the progression from the FLRA [Federal Regulation of Lobbying Act of 1946] to the LDA to the HLOGA marks the legislature’s attempt to shine increasing light on the efforts of paid lobbyists to influence the public decisionmaking process.  We find nothing unconstitutional in the way Congress has gone about that task. (emphasis added)




Fourth Edition of The Lobbying Manual

             The Fourth Edition of The Lobbying Manual, the ABA’s guide to the federal law of lobbying, is now available for ordering here.  The Lobbying Manual is an invaluable resource for lawyers and lobbyists who need to keep track of the large and growing body of law that governs federal lobbying.  It is edited by well-known lobbying experts Bill Luneburg of the University of Pittsburgh School of Law, who currently serves as chair of the ABA Administrative Law and Regulatory Practice Section, Tom Susman, who heads the ABA’s government relations department, and Rebecca Gordon of the Perkins Coie law firm.  

            There have been many legal developments in the lobbying field since the last publication of The Lobbying Manual in 2005.  These include a number of important amendments to the Lobbying Disclosure Act, to congressional ethics rules and to federal ethics laws contained in the Honest Leadership and Open Government Act of 2007.  In addition, there have been a number of new rules on lobbying instituted by the Obama Administration through executive order.  Finally, there have been significant criminal law developments involving the prosecution of lobbyists and lobbying-related activities.  It is not surprising, therefore, that the new version of The Lobbying Manual appears to contain numerous revisions and updates, including a number of entirely new chapters.  In addition, it contains a largely new section entitled “The Practice of Federal Lobbying” which seems to be devoted to providing practical as well as legal tips on both executive and congressional lobbying activities.

TARP and Stimulus Lobbying by Members of Congress

           Yesterday the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) released a report regarding efforts to prevent “undue external influence” over the TARP program.  On page 13, the report discusses the yet-to-be-issued Treasury rules regarding lobbying on TARP matters: 

At the time of our study, Treasury was still in the process of finalizing its draft policy limiting external communications regarding TARP. A Treasury official stated that the Treasury approval (and subsequent submission to the White House) of this draft policy is awaiting White House approval on similar lobbyist guidelines submitted for American Recovery and Reinvestment Act (“ARRA”) funds. A Treasury official stated that Treasury’s draft policy for TARP funds is similar to the ARRA policy. The TARP policy will state that Treasury employees cannot talk to lobbyists or members of the Congress, with one exception—instances of overarching policy discussions. (emphasis added) 

This paragraph is peculiar for two reasons.  First, although the Obama Administration’s initial policy on stimulus (ie, “ARRA”) lobbying prohibited contacts with registered lobbyists regarding specific projects, it subsequently revised this approach so that registered lobbyists are no longer treated differently than other interested parties.  Instead, under updated guidelines issued on July 24, 2009 , the original guidance to agency officials was “clarified” as follows: 

During the period of time commencing with the submission of a formal application of a formal application by an individual or entity for a competitive grant or other competitive form of Federal financial assistance under the Recovery Act, and ending with the award of the competitive funds, you may not participate in oral communications initiated by any person or entity concerning a pending application for a Recovery Act competitive grant or other competitive form of Federal financial assistance, whether or not the initiating party is a federally registered lobbyist. 

Second, although the updated guidelines generally ban oral communications with “any person or entity” during the blackout period, they contain an exception for communications with “another Federal Government employee.”  Thus, unlike the proposed TARP policy, the stimulus guidelines do not discriminate against lobbyists, and they do not apply to Members of Congress at all, unless one interprets the term “Federal Government employee” not to include Members of Congress. 

Dan Schuman of the Sunlight Foundation, reviewing the updated stimulus guidelines, suggested that the term “federal government employee” might not, at least literally, cover Members of Congress.    However, he argued that this was probably an unintended consequence of the guidelines and, upon further reflection, concluded that the term was probably best interpreted as covering all federal officials in any branch of the government. 

I agree with Schuman that the stimulus guidelines are ambiguous, but I wonder whether this resulted from simple inadvertence.  Given the fact that the guidelines explicitly address the question of when communications with state legislators are permitted (ie, only when they are from “the Presiding Officer or Majority Leader” in each chamber), it seems surprising that the guidelines do not expressly mention communications with federal legislators.  The SIGTARP report suggests the possibility that there may have been an intent, at least at one point, to ban communications with Members of Congress (which, I have previously argued, could otherwise undermine the effectiveness of the attempt to limit outside influence).  It may be that the revised guidelines were left deliberately ambiguous on this point, or that they were written so as to avoid making it obvious that Members of Congress are permitted to intervene in the competitive award process. 

In any event, it would seem odd if the guidelines for TARP lobbying forbade communications with Members of Congress, while those for stimulus lobbying did not.  I guess we will have to await further “clarification” from the administration to find out which it is.     

Constitutionality of Revolving Door Statute Called into Question

            A federal judge has preliminarily enjoined enforcement of the Ohio revolving door statute against a former state legislator who sought to lobby his former colleagues on an uncompensated basis.  (hat tip—Election Law Blog). In Brinkman v. Budish, No. 1:09-cv-326 (S.D. Ohio Aug. 4, 2009), the court found a substantial likelihood that the law, as applied, would violate the First Amendment.  It accepted that the statute furthered a compelling governmental interest in preventing corruption or the appearance of corruption, but concluded that it was not narrowly tailored to advance this interest.  Specifically, the court was not persuaded that the statute, “at least as applied to the situation of a former member seeking to represent an organization on an uncompensated basis, furthers the interest in curbing quid pro quo corruption.”  Moreover, given that the statute prohibited lobbying on matters even if the former member had not personally participated in the matter while in office, the court did not believe that the law was narrowly tailored to curb the inappropriate use of inside information. 

            It is worth noting that federal law (18 U.S.C. 207(e)) prohibits lobbying by former Members of Congress (as well as congressional officers and senior staff) “on behalf of any other person” during a cooling off period.  This prohibition applies even to lobbying that is done on an uncompensated basis.  Thus, the reasoning of this decision would seem to call into question the constitutionality of that aspect of the federal law. 

            The Brinkman court also found merit to the claim that the Ohio statute violated equal protection “because it treats former General Assembly members who seek to represent a state agency on a matter before the General Assembly more favorably than it treats former General Assembly members who seek to represent a private client on a matter before the General Assembly.”  The court was not persuaded by the argument that representing a state agency does not raise the same type of corruption concerns as representing a private organization.  This would also be an issue that could be raised with regard to federal law, which excepts representing the United States from revolving door restrictions.

Secretary and Clerk Close Lobbying Loophole

The Secretary of the Senate and Clerk of the House have just issued a “clarification” that closes the “one free lobbying contact per quarter” loophole that I have discussed here, here and here in the last few days.  Under the clarified guidance, a registered lobbyist cannot be de-listed merely because that “individual did not in the current quarter and does not reasonably expect in the upcoming quarter to make more than one lobbying contact per quarter.” 

In the event that a registered lobbyist no longer reasonably expects to make any future lobbying contacts, the clarified guidance would still permit de-listing.  Although the statute does not directly address this situation, it seems to me a reasonable inference from the statutory definitions is that a “lobbyist” or an employee “acting as a lobbyist” is someone who is expected to make at least an occasional lobbying contact.  Otherwise, someone who technically qualified as a lobbyist at one time (even a junior employee who attended a couple of meetings) could remain so for years merely because he or she provided, or was expected to provide, even incidental support for lobbying contacts made by others.   

            It undoubtedly will be argued that this will enable de-listing of someone who functions as a “de facto lobbyist” behind the scenes, but who avoids lobbying contacts in order to escape the burdens of being designated as a registered lobbyist.  This problem, however, exists in any case for “de facto lobbyists” who never engage in more than one lobbying contact.  Moreover, to make de-listing unreasonably difficult would itself tend to discourage people from registering as lobbyists in the first place.  All in all, it seems to me that the Secretary and Clerk have reasonably resolved this issue.

Secretary and Clerk Acknowledge Review of Lobbying Loophole

From The Hill: 

“These new questions have prompted us to review the guidance to ensure that there are no inadvertent loopholes,” said Beth Provenzano, deputy chief of staff for the Senate secretary’s office. She added that the guidance was thoroughly vetted with Senate and House institutional attorneys before it was issued.

“We are actively reviewing the issue to see if there is a problem,” said the House clerk’s office in a statement.