The White House today announced significant changes being crafted in how the administration will regulate stimulus lobbying, in a new post today<http://www.whitehouse.gov/blog/Update-on-Recovery-Act-Lobbying-Rules-...>on WhiteHouse.gov from Norm Eisen, Special Counsel to the President for Ethics and Government Reform.
The administration’s move today to announce additional lobbying restrictions on stimulus spending recognizes that political influence is wielded by more than just registered lobbyists, moving to curb it in the most sensitive circumstances, while preserving the strongest part of the original program: the move to real-time online disclosure of contacts from registered lobbyists.
The new policy, according to the post: (bold added)
First, *we will expand the restriction on oral communications to cover all persons, not just federally registered lobbyists*. For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process. We concluded this was necessary under the unique circumstances of the stimulus program.
Second, *we will focus the restriction on oral communications to* target the scenario where concerns about merit-based decision-making are greatest –*after competitive grant applications are submitted and before awards are made. Once such applications are on file, the competition should be strictly on the merits. To that end, comments (unless initiated by an agency official) must be in writing and will be posted on the Internet for every American to see.*
*Third, we will continue to require immediate internet disclosure of all other communications with registered lobbyists*. If registered lobbyists have conversations or meetings before an application is filed, a form must be completed and posted to each agency’s website documenting the contact.
The first two points are really the same measure: the administration is banning all oral contacts from anyone, not just lobbyists, and targeting that provision to a very specific scenario.
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<http://www.citizensforethics.org/node/38359>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<http://blog.sunlightfoundation.com/2009/04/06/lobbying-disclosure-and...>this point as well, and CREW has already praised <http://www.citizensforethics.org/node/39807> the forthcoming guidance.
It may seem radical to ban all oral communications between administration officials and the public, but this seemingly radical move is tempered by two points: first, the restriction applies to a narrowly defined situation where the administration has deemed merit-based decision making to be most sensitive; and second, the administration connects stimulus spending, in its gravity and sheer size, to the scope of potential corruption:
We concluded this was necessary under the unique circumstances of the stimulus program.
For perhaps the strongest evidence of the sort of merit-based decision making these policies seek to cultivate, we can look to Eisen’s post itself for evidence of our government engaging in good faith, in public, to find the best solutions to fit our most pressing problems. How often before now have we seen informal blog posts announcing a new policy before guidance has been issued, and suggesting it’s still under consideration?
This iterative, public approach to problem-solving should be interpreted as a sign of strength, and suggests that bold steps don’t just bring political risk, as they often can, but can also offer a productive strategy for finding public policy solutions. This is especially true of lobbying reform, where previous reforms have all come too late, as reactions to gross abuses. When the administration is willing to engage in a fruitful dialog to identify the best course of action, disagreements become relationships, and mistakes become lessons.
Other administration officials should follow Eisen’s lead, and see what the public (and stakeholder communities) have to offer.
Frankly, I find the announcement convoluted and possibly wrongheaded.
First, why restrict any speech? Why not simply require disclosure of all attempts to influence Recovery Act spending?
Second, on the surface the restrictions seems unhelpful. It is targeted to competitive grants -- and only the period after an application and before an award, not to the period leading up to the application. The bulk of the Recovery Act money going out the door right now is in the form of formula grants. So these are excluded -- certainly a benefit to states. Moreover, what about contracts, loans, and even tax expenditures? Looks like the bulks of Recovery Act money is excluded now.
Third, the final change announced by Mr. Eisen is very unclear. It could be interpreted as simply referring to the OMB guidance that dealt with disclosure of communications that don't directly deal with how money is spent. And that is fine. Or the first sentence could mean that we're exactly where we started. All communications by lobbyists -- but not non-lobbyists -- must be disclosed when trying to influence contracts, non-competitive grants, loans, etc.
I'll wait to either bash or praise the changes once I see the OMB guidance (or other form of official communication to agencies) as this blog announcement is a bit confusing. Plus I hope blog entries are not official policy documents.
> The White House today announced significant changes being crafted in > how the administration will regulate stimulus lobbying, in a new post > today > <http://www.whitehouse.gov/blog/Update-on-Recovery-Act-Lobbying-Rules-...> > on WhiteHouse.gov from Norm Eisen, Special Counsel to the President > for Ethics and Government Reform.
> The administration’s move today to announce additional lobbying > restrictions on stimulus spending recognizes that political influence > is wielded by more than just registered lobbyists, moving to curb it > in the most sensitive circumstances, while preserving the strongest > part of the original program: the move to real-time online disclosure > of contacts from registered lobbyists.
> The new policy, according to the post: (bold added)
> First, *we will expand the restriction on oral communications to
> cover all persons, not just federally registered lobbyists*. For
> the first time, we will reach contacts not only by registered
> lobbyists but also by unregistered ones, as well as anyone else
> exerting influence on the process. We concluded this was necessary
> under the unique circumstances of the stimulus program.
> Second, *we will focus the restriction on oral communications to*
> target the scenario where concerns about merit-based
> decision-making are greatest –*after competitive grant
> applications are submitted and before awards are made. Once such
> applications are on file, the competition should be strictly on
> the merits. To that end, comments (unless initiated by an agency
> official) must be in writing and will be posted on the Internet
> for every American to see.*
> *Third, we will continue to require immediate internet disclosure
> of all other communications with registered lobbyists*. If
> registered lobbyists have conversations or meetings before an
> application is filed, a form must be completed and posted to each
> agency’s website documenting the contact.
> The first two points are really the same measure: the administration > is banning all oral contacts from anyone, not just lobbyists, and > targeting that provision to a very specific scenario.
> 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 > <http://www.citizensforethics.org/node/38359> 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 > <http://blog.sunlightfoundation.com/2009/04/06/lobbying-disclosure-and...> > this point as well, and CREW has already praised > <http://www.citizensforethics.org/node/39807> the forthcoming guidance.
> It may seem radical to ban all oral communications between > administration officials and the public, but this seemingly radical > move is tempered by two points: first, the restriction applies to a > narrowly defined situation where the administration has deemed > merit-based decision making to be most sensitive; and second, the > administration connects stimulus spending, in its gravity and sheer > size, to the scope of potential corruption:
> We concluded this was necessary under the unique circumstances of
> the stimulus program.
> For perhaps the strongest evidence of the sort of merit-based decision > making these policies seek to cultivate, we can look to Eisen’s post > itself for evidence of our government engaging in good faith, in > public, to find the best solutions to fit our most pressing problems. > How often before now have we seen informal blog posts announcing a new > policy before guidance has been issued, and suggesting it’s still > under consideration?
> This iterative, public approach to problem-solving should be > interpreted as a sign of strength, and suggests that bold steps don’t > just bring political risk, as they often can, but can also offer a > productive strategy for finding public policy solutions. This is > especially true of lobbying reform, where previous reforms have all > come too late, as reactions to gross abuses. When the administration > is willing to engage in a fruitful dialog to identify the best course > of action, disagreements become relationships, and mistakes become > lessons.
> Other administration officials should follow Eisen’s lead, and see > what the public (and stakeholder communities) have to offer.
Do we think this will also apply to communications from Members of Congress? Thatw ould be and interesting and helpful development.
"First, we will expand the restriction on oral communications to cover all persons, not just federally registered lobbyists. For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process. We concluded this was necessary under the unique circumstances of the stimulus program.
Second, we will focus the restriction on oral communications to target the scenario where concerns about merit-based decision-making are greatest –after competitive grant applications are submitted and before awards are made. Once such applications are on file, the competition should be strictly on the merits. To that end, comments (unless initiated by an agency official) must be in writing and will be posted on the Internet for every American to see"
________________________________
From: openhouseproject@googlegroups.com <openhouseproject@googlegroups.com>
To: openhouseproject@googlegroups.com <openhouseproject@googlegroups.com>
Sent: Fri May 29 23:42:05 2009
Subject: [openhouseproject] new stimulus lobbying policy
The White House today announced significant changes being crafted in how the administration will regulate stimulus lobbying, in a new post today<http://www.whitehouse.gov/blog/Update-on-Recovery-Act-Lobbying-Rules-...> on WhiteHouse.gov from Norm Eisen, Special Counsel to the President for Ethics and Government Reform.
The administration’s move today to announce additional lobbying restrictions on stimulus spending recognizes that political influence is wielded by more than just registered lobbyists, moving to curb it in the most sensitive circumstances, while preserving the strongest part of the original program: the move to real-time online disclosure of contacts from registered lobbyists.
The new policy, according to the post: (bold added)
First, we will expand the restriction on oral communications to cover all persons, not just federally registered lobbyists. For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process. We concluded this was necessary under the unique circumstances of the stimulus program.
Second, we will focus the restriction on oral communications to target the scenario where concerns about merit-based decision-making are greatest –after competitive grant applications are submitted and before awards are made. Once such applications are on file, the competition should be strictly on the merits. To that end, comments (unless initiated by an agency official) must be in writing and will be posted on the Internet for every American to see.
Third, we will continue to require immediate internet disclosure of all other communications with registered lobbyists. If registered lobbyists have conversations or meetings before an application is filed, a form must be completed and posted to each agency’s website documenting the contact.
The first two points are really the same measure: the administration is banning all oral contacts from anyone, not just lobbyists, and targeting that provision to a very specific scenario.
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<http://www.citizensforethics.org/node/38359> 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<http://blog.sunlightfoundation.com/2009/04/06/lobbying-disclosure-and...> this point as well, and CREW has already praised<http://www.citizensforethics.org/node/39807> the forthcoming guidance.
It may seem radical to ban all oral communications between administration officials and the public, but this seemingly radical move is tempered by two points: first, the restriction applies to a narrowly defined situation where the administration has deemed merit-based decision making to be most sensitive; and second, the administration connects stimulus spending, in its gravity and sheer size, to the scope of potential corruption:
We concluded this was necessary under the unique circumstances of the stimulus program.
For perhaps the strongest evidence of the sort of merit-based decision making these policies seek to cultivate, we can look to Eisen’s post itself for evidence of our government engaging in good faith, in public, to find the best solutions to fit our most pressing problems. How often before now have we seen informal blog posts announcing a new policy before guidance has been issued, and suggesting it’s still under consideration?
This iterative, public approach to problem-solving should be interpreted as a sign of strength, and suggests that bold steps don’t just bring political risk, as they often can, but can also offer a productive strategy for finding public policy solutions. This is especially true of lobbying reform, where previous reforms have all come too late, as reactions to gross abuses. When the administration is willing to engage in a fruitful dialog to identify the best course of action, disagreements become relationships, and mistakes become lessons.
Other administration officials should follow Eisen’s lead, and see what the public (and stakeholder communities) have to offer.
Tom raises a very interesting point. Given the phrasing of Eisen's post
(which is admittedly not conclusive on what the final policy will be), I
would assume that Members of Congress would be included. But how would that
prohibition be enforced? It would be awfully difficult for agency officials
to refuse to meet with Members and staff, and it would be relatively easy to
circumvent the rule by avoiding specific comment on the merits of a
particular application ("I know I can't talk to you about Constituent A's
application, but I just wanted to let you know that this is a fine company,
and I will be very disappointed if they don't get approved . . .)
The House and Senate Ethics Manuals have sections on ex parte communications
with agency officials regarding proceedings that are on the record under the
APA. The ethics committees try to discourage such communications by warning
that they could result in invalidating the proceedings, but they don't
actually say that such communications are forbidden under congressional
rules.
So a potential problem of this new ethics guidance is that it will encourage
grant applicants to go through their Members of Congress, rather than
directly to agency officials, which is unlikely to be helpful to competition
on the merits. One way of deterring such activities would be to ask the
Obama administration to disclose all contacts by Members of Congress
relating to stimulus funding, just the way that lobbyist contacts are being
disclosed.
Mike Stern
_____
From: openhouseproject@googlegroups.com
[mailto:openhouseproject@googlegroups.com] On Behalf Of Jones, Tom
(Commerce)
Sent: Saturday, May 30, 2009 3:07 PM
To: 'openhouseproject@googlegroups.com'
Subject: [openhouseproject] Re: new stimulus lobbying policy
Do we think this will also apply to communications from Members of Congress?
Thatw ould be and interesting and helpful development.
"First, we will expand the restriction on oral communications to cover all
persons, not just federally registered lobbyists. For the first time, we
will reach contacts not only by registered lobbyists but also by
unregistered ones, as well as anyone else exerting influence on the process.
We concluded this was necessary under the unique circumstances of the
stimulus program.
Second, we will focus the restriction on oral communications to target the
scenario where concerns about merit-based decision-making are greatest
-after competitive grant applications are submitted and before awards are
made. Once such applications are on file, the competition should be
strictly on the merits. To that end, comments (unless initiated by an
agency official) must be in writing and will be posted on the Internet for
every American to see"
_____
From: openhouseproject@googlegroups.com <openhouseproject@googlegroups.com>
To: openhouseproject@googlegroups.com <openhouseproject@googlegroups.com>
Sent: Fri May 29 23:42:05 2009
Subject: [openhouseproject] new stimulus lobbying policy
The White House today announced significant changes being crafted in how the
administration will regulate stimulus lobbying, in a new
<http://www.whitehouse.gov/blog/Update-on-Recovery-Act-Lobbying-Rules-... mits-on-Special-Interest-Influence/> post today on WhiteHouse.gov from Norm
Eisen, Special Counsel to the President for Ethics and Government Reform.
The administration's move today to announce additional lobbying restrictions
on stimulus spending recognizes that political influence is wielded by more
than just registered lobbyists, moving to curb it in the most sensitive
circumstances, while preserving the strongest part of the original program:
the move to real-time online disclosure of contacts from registered
lobbyists.
The new policy, according to the post: (bold added)
First, we will expand the restriction on oral communications to cover all
persons, not just federally registered lobbyists. For the first time, we
will reach contacts not only by registered lobbyists but also by
unregistered ones, as well as anyone else exerting influence on the process.
We concluded this was necessary under the unique circumstances of the
stimulus program.
Second, we will focus the restriction on oral communications to target the
scenario where concerns about merit-based decision-making are greatest
-after competitive grant applications are submitted and before awards are
made. Once such applications are on file, the competition should be strictly
on the merits. To that end, comments (unless initiated by an agency
official) must be in writing and will be posted on the Internet for every
American to see.
Third, we will continue to require immediate internet disclosure of all
other communications with registered lobbyists. If registered lobbyists have
conversations or meetings before an application is filed, a form must be
completed and posted to each agency's website documenting the contact.
The first two points are really the same measure: the administration is
banning all oral contacts from anyone, not just lobbyists, and targeting
that provision to a very specific scenario.
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
<http://www.citizensforethics.org/node/38359> 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
<http://blog.sunlightfoundation.com/2009/04/06/lobbying-disclosure-and... bama-memo/> made this point as well, and CREW has already praised
<http://www.citizensforethics.org/node/39807> the forthcoming guidance.
It may seem radical to ban all oral communications between administration
officials and the public, but this seemingly radical move is tempered by two
points: first, the restriction applies to a narrowly defined situation where
the administration has deemed merit-based decision making to be most
sensitive; and second, the administration connects stimulus spending, in its
gravity and sheer size, to the scope of potential corruption:
We concluded this was necessary under the unique circumstances of the
stimulus program.
For perhaps the strongest evidence of the sort of merit-based decision
making these policies seek to cultivate, we can look to Eisen's post itself
for evidence of our government engaging in good faith, in public, to find
the best solutions to fit our most pressing problems. How often before now
have we seen informal blog posts announcing a new policy before guidance has
been issued, and suggesting it's still under consideration?
This iterative, public approach to problem-solving should be interpreted as
a sign of strength, and suggests that bold steps don't just bring political
risk, as they often can, but can also offer a productive strategy for
finding public policy solutions. This is especially true of lobbying reform,
where previous reforms have all come too late, as reactions to gross abuses.
When the administration is willing to engage in a fruitful dialog to
identify the best course of action, disagreements become relationships, and
mistakes become lessons.
Other administration officials should follow Eisen's lead, and see what the
public (and stakeholder communities) have to offer.
OK, with all due respect to my many civil libertarian and liberal Democrat
friends here, I waited all weekend hoping somebody would say it, but it
hasn't happened (Gary Bass alluded to it and perhaps others did, too, and I
missed their posts), so I will say it: This new policy - assuming Eisen's
post accurately reflects the final product - is an unprecedented assault on
political expression that is protected by the First Amendment. This one
sentence from Eisen ought to have everybody on this listserv up in in arms
demanding Eisen's resignation and a White House repudiation of any intent to
regulate any political expression by any citizen regarding any policy of the
government: *For the first time, we will reach contacts not only by
registered lobbyists but also by unregistered ones, as well as anyone else
exerting influence on the process.*
Or was dissent deserving of protection only when Bush was in the White
House?
I was also struck by this sentence from John's description of the background
to the new policy: "The administration’s move today to announce additional
lobbying restrictions on stimulus spending recognizes that political
influence is wielded by more than just registered lobbyists, moving to curb
it in the most sensitive circumstances ...."
You cannot have Big Government and Open Government at the same time because
the former is constantly moved by its expanding interests to find "sensitive
circumstances" that justify in some official's mind curtailing the latter.
On Mon, Jun 1, 2009 at 10:13 AM, Michael Stern <stern8...@cox.net> wrote:
> Tom raises a very interesting point. Given the phrasing of Eisen’s post
> (which is admittedly not conclusive on what the final policy will be), I
> would assume that Members of Congress would be included. But how would that
> prohibition be enforced? It would be awfully difficult for agency officials
> to refuse to meet with Members and staff, and it would be relatively easy to
> circumvent the rule by avoiding specific comment on the merits of a
> particular application (“I know I can’t talk to you about Constituent A’s
> application, but I just wanted to let you know that this is a fine company,
> and I will be very disappointed if they don’t get approved . . .)
> The House and Senate Ethics Manuals have sections on ex parte
> communications with agency officials regarding proceedings that are on the
> record under the APA. The ethics committees try to discourage such
> communications by warning that they could result in invalidating the
> proceedings, but they don’t actually say that such communications are
> forbidden under congressional rules.
> So a potential problem of this new ethics guidance is that it will
> encourage grant applicants to go through their Members of Congress, rather
> than directly to agency officials, which is unlikely to be helpful to
> competition on the merits. One way of deterring such activities would be to
> ask the Obama administration to disclose all contacts by Members of Congress
> relating to stimulus funding, just the way that lobbyist contacts are being
> disclosed.
> Mike Stern
> ------------------------------
> *From:* openhouseproject@googlegroups.com [mailto:
> openhouseproject@googlegroups.com] *On Behalf Of *Jones, Tom (Commerce)
> *Sent:* Saturday, May 30, 2009 3:07 PM
> *To:* 'openhouseproject@googlegroups.com'
> *Subject:* [openhouseproject] Re: new stimulus lobbying policy
> Do we think this will also apply to communications from Members of
> Congress? Thatw ould be and interesting and helpful development.
> "First, we will expand the restriction on oral communications to cover all
> persons, not just federally registered lobbyists. For the first time, we
> will reach contacts not only by registered lobbyists but also by
> unregistered ones, as well as anyone else exerting influence on the
> process. We concluded this was necessary under the unique circumstances of
> the stimulus program.
> Second, we will focus the restriction on oral communications to target the
> scenario where concerns about merit-based decision-making are greatest
> –after competitive grant applications are submitted and before awards are
> made. Once such applications are on file, the competition should be
> strictly on the merits. To that end, comments (unless initiated by an
> agency official) must be in writing and will be posted on the Internet for
> every American to see"
> The White House today announced significant changes being crafted in how
> the administration will regulate stimulus lobbying, in a new post today<http://www.whitehouse.gov/blog/Update-on-Recovery-Act-Lobbying-Rules-...>on WhiteHouse.gov from Norm Eisen, Special Counsel to the President for
> Ethics and Government Reform.
> The administration’s move today to announce additional lobbying
> restrictions on stimulus spending recognizes that political influence is
> wielded by more than just registered lobbyists, moving to curb it in the
> most sensitive circumstances, while preserving the strongest part of the
> original program: the move to real-time online disclosure of contacts from
> registered lobbyists.
> The new policy, according to the post: (bold added)
> First, *we will expand the restriction on oral communications to cover all
> persons, not just federally registered lobbyists*. For the first time, we
> will reach contacts not only by registered lobbyists but also by
> unregistered ones, as well as anyone else exerting influence on the process.
> We concluded this was necessary under the unique circumstances of the
> stimulus program.
> Second, *we will focus the restriction on oral communications to* target
> the scenario where concerns about merit-based decision-making are greatest –
> *after competitive grant applications are submitted and before awards are
> made. Once such applications are on file, the competition should be strictly
> on the merits. To that end, comments (unless initiated by an agency
> official) must be in writing and will be posted on the Internet for every
> American to see.*
> *Third, we will continue to require immediate internet disclosure of all
> other communications with registered lobbyists*. If registered lobbyists
> have conversations or meetings before an application is filed, a form must
> be completed and posted to each agency’s website documenting the contact.
> The first two points are really the same measure: the administration is
> banning all oral contacts from anyone, not just lobbyists, and targeting
> that provision to a very specific scenario.
> 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<http://www.citizensforethics.org/node/38359>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<http://blog.sunlightfoundation.com/2009/04/06/lobbying-disclosure-and...>this point as well, and CREW has already
> praised <http://www.citizensforethics.org/node/39807> the forthcoming
> guidance.
> It may seem radical to ban all oral communications between administration
> officials and the public, but this seemingly radical move is tempered by two
> points: first, the restriction applies to a narrowly defined situation where
> the administration has deemed merit-based decision making to be most
> sensitive; and second, the administration connects stimulus spending, in its
> gravity and sheer size, to the scope of potential corruption:
> We concluded this was necessary under the unique circumstances of the
> stimulus program.
> For perhaps the strongest evidence of the sort of merit-based decision
> making these policies seek to cultivate, we can look to Eisen’s post itself
> for evidence of our government engaging in good faith, in public, to find
> the best solutions to fit our most pressing problems. How often before now
> have we seen informal blog posts announcing a new policy before guidance has
> been issued, and suggesting it’s still under consideration?
> This iterative, public approach to problem-solving should be interpreted as
> a sign of strength, and suggests that bold steps don’t just bring political
> risk, as they often can, but can also offer a productive strategy for
> finding public policy solutions. This is especially true of lobbying reform,
> where previous reforms have all come too late, as reactions to gross abuses.
> When the administration is willing to engage in a fruitful dialog to
> identify the best course of action, disagreements become relationships, and
> mistakes become lessons.
Mark- I think we need to be a little careful here. As I understand the
possible new policy (which is not a policy yet), it would essentially direct
agency officials that if anyone wants to talk to them about a grant
application, they should refuse to engage in verbal communications and
instead tell said person(s) to put it in writing. It seems to me that this
raises fewer First Amendment concerns than the old/current policy, which
requires agency officials to refuse to talk to some people (registered
lobbyists) and not others. In principle, it seems little different than
having certain types of proceedings conducted on the record, where ex parte
communications with the decisionmaker are prohibited (like judicial
proceedings and certain agency proceedings under the APA). I don't know
much about government procurement, but I suspect that there are limitations
on the types of communications that bidders can have with the contracting
official as well.
I am plenty skeptical about the government ladling out billions of dollars
in stimulus money, whether or not it is "on the merits" (whatever that
means). I doubt that this new policy will make that process much more
efficient or worthwhile from the taxpayer's perspective, but I see it as an
improvement from the First Amendment standpoint.
Mike Stern
_____
From: openhouseproject@googlegroups.com
[mailto:openhouseproject@googlegroups.com] On Behalf Of Mark Tapscott
Sent: Monday, June 01, 2009 11:06 AM
To: openhouseproject@googlegroups.com
Subject: [openhouseproject] Re: new stimulus lobbying policy
OK, with all due respect to my many civil libertarian and liberal Democrat
friends here, I waited all weekend hoping somebody would say it, but it
hasn't happened (Gary Bass alluded to it and perhaps others did, too, and I
missed their posts), so I will say it: This new policy - assuming Eisen's
post accurately reflects the final product - is an unprecedented assault on
political expression that is protected by the First Amendment. This one
sentence from Eisen ought to have everybody on this listserv up in in arms
demanding Eisen's resignation and a White House repudiation of any intent to
regulate any political expression by any citizen regarding any policy of the
government: For the first time, we will reach contacts not only by
registered lobbyists but also by unregistered ones, as well as anyone else
exerting influence on the process.
Or was dissent deserving of protection only when Bush was in the White
House?
I was also struck by this sentence from John's description of the background
to the new policy: "The administration's move today to announce additional
lobbying restrictions on stimulus spending recognizes that political
influence is wielded by more than just registered lobbyists, moving to curb
it in the most sensitive circumstances ...."
You cannot have Big Government and Open Government at the same time because
the former is constantly moved by its expanding interests to find "sensitive
circumstances" that justify in some official's mind curtailing the latter.
On Mon, Jun 1, 2009 at 10:13 AM, Michael Stern <stern8...@cox.net> wrote:
Tom raises a very interesting point. Given the phrasing of Eisen's post
(which is admittedly not conclusive on what the final policy will be), I
would assume that Members of Congress would be included. But how would that
prohibition be enforced? It would be awfully difficult for agency officials
to refuse to meet with Members and staff, and it would be relatively easy to
circumvent the rule by avoiding specific comment on the merits of a
particular application ("I know I can't talk to you about Constituent A's
application, but I just wanted to let you know that this is a fine company,
and I will be very disappointed if they don't get approved . . .)
The House and Senate Ethics Manuals have sections on ex parte communications
with agency officials regarding proceedings that are on the record under the
APA. The ethics committees try to discourage such communications by warning
that they could result in invalidating the proceedings, but they don't
actually say that such communications are forbidden under congressional
rules.
So a potential problem of this new ethics guidance is that it will encourage
grant applicants to go through their Members of Congress, rather than
directly to agency officials, which is unlikely to be helpful to competition
on the merits. One way of deterring such activities would be to ask the
Obama administration to disclose all contacts by Members of Congress
relating to stimulus funding, just the way that lobbyist contacts are being
disclosed.
Mike Stern
_____
From: openhouseproject@googlegroups.com
[mailto:openhouseproject@googlegroups.com] On Behalf Of Jones, Tom
(Commerce)
Sent: Saturday, May 30, 2009 3:07 PM
To: 'openhouseproject@googlegroups.com'
Subject: [openhouseproject] Re: new stimulus lobbying policy
Do we think this will also apply to communications from Members of Congress?
Thatw ould be and interesting and helpful development.
"First, we will expand the restriction on oral communications to cover all
persons, not just federally registered lobbyists. For the first time, we
will reach contacts not only by registered lobbyists but also by
unregistered ones, as well as anyone else exerting influence on the process.
We concluded this was necessary under the unique circumstances of the
stimulus program.
Second, we will focus the restriction on oral communications to target the
scenario where concerns about merit-based decision-making are greatest
-after competitive grant applications are submitted and before awards are
made. Once such applications are on file, the competition should be
strictly on the merits. To that end, comments (unless initiated by an
agency official) must be in writing and will be posted on the Internet for
every American to see"
_____
From: openhouseproject@googlegroups.com <openhouseproject@googlegroups.com>
To: openhouseproject@googlegroups.com <openhouseproject@googlegroups.com>
Sent: Fri May 29 23:42:05 2009
Subject: [openhouseproject] new stimulus lobbying policy
The White House today announced significant changes being crafted in how the
administration will regulate stimulus lobbying, in a new post today
<http://www.whitehouse.gov/blog/Update-on-Recovery-Act-Lobbying-Rules-... mits-on-Special-Interest-Influence/> on WhiteHouse.gov from Norm Eisen,
Special Counsel to the President for Ethics and Government Reform.
The administration's move today to announce additional lobbying restrictions
on stimulus spending recognizes that political influence is wielded by more
than just registered lobbyists, moving to curb it in the most sensitive
circumstances, while preserving the strongest part of the original program:
the move to real-time online disclosure of contacts from registered
lobbyists.
The new policy, according to the post: (bold added)
First, we will expand the restriction on oral communications to cover all
persons, not just federally registered lobbyists. For the first time, we
will reach contacts not only by registered lobbyists but also by
unregistered ones, as well as anyone else exerting influence on the process.
We concluded this was necessary under the unique circumstances of the
stimulus program.
Second, we will focus the restriction on oral communications to target the
scenario where concerns about merit-based decision-making are greatest
-after competitive grant applications are submitted and before awards are
made. Once such applications are on file, the competition should be strictly
on the merits. To that end, comments (unless initiated by an agency
official) must be in writing and will be posted on the Internet for every
American to see.
Third, we will continue to require immediate internet disclosure of all
other communications with registered lobbyists. If registered lobbyists have
conversations or meetings before an application is filed, a form must be
completed and posted to each agency's website documenting the contact.
The first two points are really the same measure: the administration is
banning all oral contacts from anyone, not just lobbyists, and targeting
that provision to a very specific scenario.
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
<http://www.citizensforethics.org/node/38359> 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
<http://blog.sunlightfoundation.com/2009/04/06/lobbying-disclosure-and... bama-memo/> this point as well, and CREW has already
<http://www.citizensforethics.org/node/39807> praised the forthcoming
guidance.
It may seem radical to ban all oral communications between administration
officials and the public, but this seemingly radical move is tempered by two
points: first, the restriction applies to a narrowly defined situation where
the administration has
...
On Mon, Jun 1, 2009 at 11:44 AM, Michael Stern <stern8...@cox.net> wrote:
> Mark- I think we need to be a little careful here. As I understand the
> possible new policy (which is not a policy yet), it would essentially direct
> agency officials that if anyone wants to talk to them about a grant
> application, they should refuse to engage in verbal communications and
> instead tell said person(s) to put it in writing. It seems to me that this
> raises fewer First Amendment concerns than the old/current policy, which
> requires agency officials to refuse to talk to some people (registered
> lobbyists) and not others. In principle, it seems little different than
> having certain types of proceedings conducted on the record, where ex parte
> communications with the decisionmaker are prohibited (like judicial
> proceedings and certain agency proceedings under the APA). I don’t know
> much about government procurement, but I suspect that there are limitations
> on the types of communications that bidders can have with the contracting
> official as well.
> I am plenty skeptical about the government ladling out billions of dollars
> in stimulus money, whether or not it is “on the merits” (whatever that
> means). I doubt that this new policy will make that process much more
> efficient or worthwhile from the taxpayer’s perspective, but I see it as an
> improvement from the First Amendment standpoint.
> Mike Stern
> ------------------------------
> *From:* openhouseproject@googlegroups.com [mailto:
> openhouseproject@googlegroups.com] *On Behalf Of *Mark Tapscott
> *Sent:* Monday, June 01, 2009 11:06 AM
> OK, with all due respect to my many civil libertarian and liberal Democrat
> friends here, I waited all weekend hoping somebody would say it, but it
> hasn't happened (Gary Bass alluded to it and perhaps others did, too, and I
> missed their posts), so I will say it: This new policy - assuming Eisen's
> post accurately reflects the final product - is an unprecedented assault on
> political expression that is protected by the First Amendment. This one
> sentence from Eisen ought to have everybody on this listserv up in in arms
> demanding Eisen's resignation and a White House repudiation of any intent to
> regulate any political expression by any citizen regarding any policy of the
> government: *For the first time, we will reach contacts not only by
> registered lobbyists but also by unregistered ones, as well as anyone else
> exerting influence on the process.*
> Or was dissent deserving of protection only when Bush was in the White
> House?
> I was also struck by this sentence from John's description of the
> background to the new policy: "The administration’s move today to announce
> additional lobbying restrictions on stimulus spending recognizes that
> political influence is wielded by more than just registered lobbyists,
> moving to curb it in the most sensitive circumstances ...."
> You cannot have Big Government and Open Government at the same time because
> the former is constantly moved by its expanding interests to find "sensitive
> circumstances" that justify in some official's mind curtailing the latter.
> On Mon, Jun 1, 2009 at 10:13 AM, Michael Stern <stern8...@cox.net> wrote:
> Tom raises a very interesting point. Given the phrasing of Eisen’s post
> (which is admittedly not conclusive on what the final policy will be), I
> would assume that Members of Congress would be included. But how would that
> prohibition be enforced? It would be awfully difficult for agency officials
> to refuse to meet with Members and staff, and it would be relatively easy to
> circumvent the rule by avoiding specific comment on the merits of a
> particular application (“I know I can’t talk to you about Constituent A’s
> application, but I just wanted to let you know that this is a fine company,
> and I will be very disappointed if they don’t get approved . . .)
> The House and Senate Ethics Manuals have sections on ex parte
> communications with agency officials regarding proceedings that are on the
> record under the APA. The ethics committees try to discourage such
> communications by warning that they could result in invalidating the
> proceedings, but they don’t actually say that such communications are
> forbidden under congressional rules.
> So a potential problem of this new ethics guidance is that it will
> encourage grant applicants to go through their Members of Congress, rather
> than directly to agency officials, which is unlikely to be helpful to
> competition on the merits. One way of deterring such activities would be to
> ask the Obama administration to disclose all contacts by Members of Congress
> relating to stimulus funding, just the way that lobbyist contacts are being
> disclosed.
> Mike Stern
> ------------------------------
> *From:* openhouseproject@googlegroups.com [mailto:
> openhouseproject@googlegroups.com] *On Behalf Of *Jones, Tom (Commerce)
> *Sent:* Saturday, May 30, 2009 3:07 PM
> *To:* 'openhouseproject@googlegroups.com'
> *Subject:* [openhouseproject] Re: new stimulus lobbying policy
> Do we think this will also apply to communications from Members of
> Congress? Thatw ould be and interesting and helpful development.
> "First, we will expand the restriction on oral communications to cover all
> persons, not just federally registered lobbyists. For the first time, we
> will reach contacts not only by registered lobbyists but also by
> unregistered ones, as well as anyone else exerting influence on the
> process. We concluded this was necessary under the unique circumstances of
> the stimulus program.
> Second, we will focus the restriction on oral communications to target the
> scenario where concerns about merit-based decision-making are greatest
> –after competitive grant applications are submitted and before awards are
> made. Once such applications are on file, the competition should be
> strictly on the merits. To that end, comments (unless initiated by an
> agency official) must be in writing and will be posted on the Internet for
> every American to see"
> The White House today announced significant changes being crafted in how
> the administration will regulate stimulus lobbying, in a new post today<http://www.whitehouse.gov/blog/Update-on-Recovery-Act-Lobbying-Rules-...>on WhiteHouse.gov from Norm Eisen, Special Counsel to the President for
> Ethics and Government Reform.
> The administration’s move today to announce additional lobbying
> restrictions on stimulus spending recognizes that political influence is
> wielded by more than just registered lobbyists, moving to curb it in the
> most sensitive circumstances, while preserving the strongest part of the
> original program: the move to real-time online disclosure of contacts from
> registered lobbyists.
> The new policy, according to the post: (bold added)
> First, *we will expand the restriction on oral communications to cover all
> persons, not just federally registered lobbyists*. For the first time, we
> will reach contacts not only by registered lobbyists but also by
> unregistered ones, as well as anyone else exerting influence on the process.
> We concluded this was necessary under the unique circumstances of the
> stimulus program.
> Second, *we will focus the restriction on oral communications to* target
> the scenario where concerns about merit-based decision-making are greatest –
> *after competitive grant applications are submitted and before awards are
> made. Once such applications are on file, the competition should be strictly
> on the merits. To that end, comments (unless initiated by an agency
> official) must be in writing and will be posted on the Internet for every
> American to see.*
> *Third, we will continue to require immediate internet disclosure of all
> other communications with registered lobbyists*. If registered lobbyists
> have conversations or meetings before an application is filed, a form must
> be completed and posted to each agency’s website documenting the contact.
> The first two points are really the same measure: the administration is
> banning all oral contacts from anyone, not just lobbyists, and targeting
> that provision to a very specific scenario.
> 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<http://www.citizensforethics.org/node/38359>lobbyists were being unfairly singled out, and pointed to well-heeled CEOs
> and campaign contributors who are
My reading of the Eisen blog entry is that it does not capture events leading up to submission of a competitive grant award. It only captures the period between the submission of the grant request and the action taken on the request.
So depending on how Eisen's third point gets conveyed into a policy document, it could mean: (a) only federally registered lobbyists need to put comments in writing leading up to a grant application (and face disclosure); or (b) no oral communications by anyone are restricted when leading up to a grant application. Either way, I don't think this is satisfactory.
If the concern is about influencing the period of when completive grants are received and acted upon, then the Eisen policy seems reasonable. Under competitive grants, a team of peer reviewers reads the application, and points are assigned to each section of the request. The applications with the highest scores are recommended for funding. But it is left to the agency head to decide who should receive the grants. There are times when the agency head ignores recommendations. This is why disclosure is important.
I would also not have a problem with restricting communications from anyone during the period when the grant application is being reviewed except to answer agency questions (just like the procurement process). Additionally, if there is fear of politics interceding during this phase, then I think the recommendations by reviewers should be made public if there is any dispute.
But let's be clear. For most of us, the real issue is possible corruption in the overall system, particularly when money is involved. It should not matter whether the influence-peddler is a registered lobbyist or not. Nor should it matter whether the person is trying to influence grants, contract, loans, or any other form of financial assistance. (And keep in mind, the big dollars are not the competitive grants under the Recovery Act or under general spending. It's contacts, entitlements and formula grants).
A common way to influence spending is to lobby in shaping the development of the RFP, thereby making it a perfect fit for one contractor versus another. The solution should be complete disclosure at all stages of the spending process.
Mark Tapscott is right. When it comes to advocacy, restricting First Amendment rights should be avoided. It isn't fair to say that Lockheed or the local human services nonprofit should be restricted in their speech (or who does the speech-making for them). However, it is fair that they or the government disclose interactions they have when those interactions deal with the public fisc.
From: Mark Tapscott [mailto:mark.tapsc...@gmail.com] Sent: Monday, June 01, 2009 12:07 PM
To: openhouseproject@googlegroups.com
Subject: [openhouseproject] Re: new stimulus lobbying policy
I appreciate the response, Michael. Anybody else have any thoughts to offer?
On Mon, Jun 1, 2009 at 11:44 AM, Michael Stern <stern8...@cox.net> wrote:
Mark- I think we need to be a little careful here. As I understand the possible new policy (which is not a policy yet), it would essentially direct agency officials that if anyone wants to talk to them about a grant application, they should refuse to engage in verbal communications and instead tell said person(s) to put it in writing. It seems to me that this raises fewer First Amendment concerns than the old/current policy, which requires agency officials to refuse to talk to some people (registered lobbyists) and not others. In principle, it seems little different than having certain types of proceedings conducted on the record, where ex parte communications with the decisionmaker are prohibited (like judicial proceedings and certain agency proceedings under the APA). I don’t know much about government procurement, but I suspect that there are limitations on the types of communications that bidders can have with the contracting official as well.
I am plenty skeptical about the government ladling out billions of dollars in stimulus money, whether or not it is “on the merits” (whatever that means). I doubt that this new policy will make that process much more efficient or worthwhile from the taxpayer’s perspective, but I see it as an improvement from the First Amendment standpoint.
Mike Stern
From: openhouseproject@googlegroups.com [mailto:openhouseproject@googlegroups.com] On Behalf Of Mark Tapscott
Sent: Monday, June 01, 2009 11:06 AM
To: openhouseproject@googlegroups.com
Subject: [openhouseproject] Re: new stimulus lobbying policy
OK, with all due respect to my many civil libertarian and liberal Democrat friends here, I waited all weekend hoping somebody would say it, but it hasn't happened (Gary Bass alluded to it and perhaps others did, too, and I missed their posts), so I will say it: This new policy - assuming Eisen's post accurately reflects the final product - is an unprecedented assault on political expression that is protected by the First Amendment. This one sentence from Eisen ought to have everybody on this listserv up in in arms demanding Eisen's resignation and a White House repudiation of any intent to regulate any political expression by any citizen regarding any policy of the government: For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process.
Or was dissent deserving of protection only when Bush was in the White House?
I was also struck by this sentence from John's description of the background to the new policy: "The administration’s move today to announce additional lobbying restrictions on stimulus spending recognizes that political influence is wielded by more than just registered lobbyists, moving to curb it in the most sensitive circumstances ...."
You cannot have Big Government and Open Government at the same time because the former is constantly moved by its expanding interests to find "sensitive circumstances" that justify in some official's mind curtailing the latter.
On Mon, Jun 1, 2009 at 10:13 AM, Michael Stern <stern8...@cox.net> wrote:
Tom raises a very interesting point. Given the phrasing of Eisen’s post (which is admittedly not conclusive on what the final policy will be), I would assume that Members of Congress would be included. But how would that prohibition be enforced? It would be awfully difficult for agency officials to refuse to meet with Members and staff, and it would be relatively easy to circumvent the rule by avoiding specific comment on the merits of a particular application (“I know I can’t talk to you about Constituent A’s application, but I just wanted to let you know that this is a fine company, and I will be very disappointed if they don’t get approved . . .)
The House and Senate Ethics Manuals have sections on ex parte communications with agency officials regarding proceedings that are on the record under the APA. The ethics committees try to discourage such communications by warning that they could result in invalidating the proceedings, but they don’t actually say that such communications are forbidden under congressional rules.
So a potential problem of this new ethics guidance is that it will encourage grant applicants to go through their Members of Congress, rather than directly to agency officials, which is unlikely to be helpful to competition on the merits. One way of deterring such activities would be to ask the Obama administration to disclose all contacts by Members of Congress relating to stimulus funding, just the way that lobbyist contacts are being disclosed.
Mike Stern
From: openhouseproject@googlegroups.com [mailto:openhouseproject@googlegroups.com] On Behalf Of Jones, Tom (Commerce)
Sent: Saturday, May 30, 2009 3:07 PM
To: 'openhouseproject@googlegroups.com'
Subject: [openhouseproject] Re: new stimulus lobbying policy
Do we think this will also apply to communications from Members of Congress? Thatw ould be and interesting and helpful development.
"First, we will expand the restriction on oral communications to cover all persons, not just federally registered lobbyists. For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process. We concluded this was necessary under the unique circumstances of the stimulus program.
Second, we will focus the restriction on oral communications to target the scenario where concerns about merit-based decision-making are greatest –after competitive grant applications are submitted and before awards are made. Once such applications are on file, the competition should be strictly on the merits. To that end, comments (unless initiated by an agency official) must be in writing and will be posted on the Internet for every American to see"
From: openhouseproject@googlegroups.com <openhouseproject@googlegroups.com>
To: openhouseproject@googlegroups.com <openhouseproject@googlegroups.com>
Sent: Fri May 29 23:42:05 2009
Subject: [openhouseproject] new stimulus lobbying policy
Big lobbying announcement today:
Preview of New White House Lobbying Policy By John Wonderlich on 05/29/09 @ 10:36 pm | 0 Comments Tags: eisen, LDA The White House today announced significant changes being crafted in how the administration will regulate stimulus lobbying, in a new post today on WhiteHouse.gov from Norm Eisen, Special Counsel to the President for Ethics and Government Reform.
The administration’s move today to announce additional lobbying restrictions on stimulus spending recognizes that political influence is wielded by more than just registered lobbyists, moving to curb it in the most sensitive circumstances, while preserving the strongest part of the original program: the move to real-time online disclosure of
...
Gary, the burden of disclosure should be solely on the agency officials
contacted, not on the person outside of government expressing a particular
view about a proposed government expenditure or policy (except in the case
of registered lobbyists). Otherwise, we end up creating a tremendous
dis-incentive to robust political expression by creating red tape that is
costly in time and money. As for the distinction between political
expression before or after submission of a grant request and the final
action taken on the request, I don't understand why that should make any
difference from the perspective of the individual outside of government with
an opinion about a proposed action within government. Every exception leads
to another exception and pretty soon you're talking about real repression of
expression (thank you, Sen. Dirksen).
On Mon, Jun 1, 2009 at 3:38 PM, Gary Bass <gb...@ombwatch.org> wrote:
> My reading of the Eisen blog entry is that it does not capture events
> leading up to submission of a competitive grant award. It only captures the
> period between the submission of the grant request and the action taken on
> the request.
> So depending on how Eisen's third point gets conveyed into a policy
> document, it could mean: (a) only federally registered lobbyists need to put
> comments in writing leading up to a grant application (and face disclosure);
> or (b) no oral communications by anyone are restricted when leading up to a
> grant application. Either way, I don't think this is satisfactory.
> If the concern is about influencing the period of when completive grants
> are received and acted upon, then the Eisen policy seems reasonable. Under
> competitive grants, a team of peer reviewers reads the application, and
> points are assigned to each section of the request. The applications with
> the highest scores are recommended for funding. But it is left to the
> agency head to decide who should receive the grants. There are times when
> the agency head ignores recommendations. This is why disclosure is
> important.
> I would also not have a problem with restricting communications from anyone
> during the period when the grant application is being reviewed except to
> answer agency questions (just like the procurement process). Additionally,
> if there is fear of politics interceding during this phase, then I think the
> recommendations by reviewers should be made public if there is any dispute.
> But let's be clear. For most of us, the real issue is possible corruption
> in the overall system, particularly when money is involved. It should not
> matter whether the influence-peddler is a registered lobbyist or not. Nor
> should it matter whether the person is trying to influence grants, contract,
> loans, or any other form of financial assistance. (And keep in mind, the
> big dollars are not the competitive grants under the Recovery Act or under
> general spending. It's contacts, entitlements and formula grants).
> A common way to influence spending is to lobby in shaping the development
> of the RFP, thereby making it a perfect fit for one contractor versus
> another. The solution should be complete disclosure at all stages of the
> spending process.
> Mark Tapscott is right. When it comes to advocacy, restricting First
> Amendment rights should be avoided. It isn't fair to say that Lockheed or
> the local human services nonprofit should be restricted in their speech (or
> who does the speech-making for them). However, it is fair that they or the
> government disclose interactions they have when those interactions deal with
> the public fisc.
> ------------------------------
> *From:* Mark Tapscott [mailto:mark.tapsc...@gmail.com]
> *Sent:* Monday, June 01, 2009 12:07 PM
> I appreciate the response, Michael. Anybody else have any thoughts to
> offer?
> On Mon, Jun 1, 2009 at 11:44 AM, Michael Stern <stern8...@cox.net> wrote:
>> Mark- I think we need to be a little careful here. As I understand the
>> possible new policy (which is not a policy yet), it would essentially direct
>> agency officials that if anyone wants to talk to them about a grant
>> application, they should refuse to engage in verbal communications and
>> instead tell said person(s) to put it in writing. It seems to me that this
>> raises fewer First Amendment concerns than the old/current policy, which
>> requires agency officials to refuse to talk to some people (registered
>> lobbyists) and not others. In principle, it seems little different than
>> having certain types of proceedings conducted on the record, where ex parte
>> communications with the decisionmaker are prohibited (like judicial
>> proceedings and certain agency proceedings under the APA). I don’t know
>> much about government procurement, but I suspect that there are limitations
>> on the types of communications that bidders can have with the contracting
>> official as well.
>> I am plenty skeptical about the government ladling out billions of dollars
>> in stimulus money, whether or not it is “on the merits” (whatever that
>> means). I doubt that this new policy will make that process much more
>> efficient or worthwhile from the taxpayer’s perspective, but I see it as an
>> improvement from the First Amendment standpoint.
>> Mike Stern
>> ------------------------------
>> *From:* openhouseproject@googlegroups.com [mailto:
>> openhouseproject@googlegroups.com] *On Behalf Of *Mark Tapscott
>> *Sent:* Monday, June 01, 2009 11:06 AM
>> OK, with all due respect to my many civil libertarian and liberal Democrat
>> friends here, I waited all weekend hoping somebody would say it, but it
>> hasn't happened (Gary Bass alluded to it and perhaps others did, too, and I
>> missed their posts), so I will say it: This new policy - assuming Eisen's
>> post accurately reflects the final product - is an unprecedented assault on
>> political expression that is protected by the First Amendment. This one
>> sentence from Eisen ought to have everybody on this listserv up in in arms
>> demanding Eisen's resignation and a White House repudiation of any intent to
>> regulate any political expression by any citizen regarding any policy of the
>> government: *For the first time, we will reach contacts not only by
>> registered lobbyists but also by unregistered ones, as well as anyone else
>> exerting influence on the process.*
>> Or was dissent deserving of protection only when Bush was in the White
>> House?
>> I was also struck by this sentence from John's description of the
>> background to the new policy: "The administration’s move today to
>> announce additional lobbying restrictions on stimulus spending recognizes
>> that political influence is wielded by more than just registered lobbyists,
>> moving to curb it in the most sensitive circumstances ...."
>> You cannot have Big Government and Open Government at the same time
>> because the former is constantly moved by its expanding interests to find
>> "sensitive circumstances" that justify in some official's mind curtailing
>> the latter.
>> On Mon, Jun 1, 2009 at 10:13 AM, Michael Stern <stern8...@cox.net> wrote:
>> Tom raises a very interesting point. Given the phrasing of Eisen’s post
>> (which is admittedly not conclusive on what the final policy will be), I
>> would assume that Members of Congress would be included. But how would that
>> prohibition be enforced? It would be awfully difficult for agency officials
>> to refuse to meet with Members and staff, and it would be relatively easy to
>> circumvent the rule by avoiding specific comment on the merits of a
>> particular application (“I know I can’t talk to you about Constituent A’s
>> application, but I just wanted to let you know that this is a fine company,
>> and I will be very disappointed if they don’t get approved . . .)
>> The House and Senate Ethics Manuals have sections on ex parte
>> communications with agency officials regarding proceedings that are on the
>> record under the APA. The ethics committees try to discourage such
>> communications by warning that they could result in invalidating the
>> proceedings, but they don’t actually say that such communications are
>> forbidden under congressional rules.
>> So a potential problem of this new ethics guidance is that it will
>> encourage grant applicants to go through their Members of Congress, rather
>> than directly to agency officials, which is unlikely to be helpful to
>> competition on the merits. One way of deterring such activities would be to
>> ask the Obama administration to disclose all contacts by Members of Congress
>> relating to stimulus funding, just the way that lobbyist contacts are being
>> disclosed.
>> Mike Stern
>> ------------------------------
>> *From:* openhouseproject@googlegroups.com [mailto:
>> openhouseproject@googlegroups.com] *On Behalf Of *Jones, Tom (Commerce)
>> *Sent:* Saturday, May 30, 2009 3:07 PM
>> *To:* 'openhouseproject@googlegroups.com'
>> *Subject:* [openhouseproject] Re: new stimulus lobbying policy
>> Do we think this will also apply to communications from Members of
>> Congress? Thatw ould be and interesting and helpful development.
>> "First, we will expand the restriction on oral communications to cover all
>> persons, not just federally registered lobbyists. For the first time, we
>> will reach contacts not only by registered lobbyists but also by
Agreed w/ one caveat. (Isn't that always the case!)
The strategy we first talked about with Sens. Coburn and Obama applied to those who already get government money. I think it is appropriate for those who are getting government money to disclose their efforts to seek more money from the executive branch -- and to include details on subject, who was involved (including outside consultants), how much they spent, and other information.
Heck, if those lobbying Congress can do disclosure, I certainly think government contractors and grantees can disclose their efforts to influence the executive branch for more money.
Having said that I'm mindful of your point not to create disincentives for folks. In fact, I wonder if we're each thinking about different audiences? I'm thinking about the contractors who are always lobbying the executive branch for more money. It sounds like you are thinking about the general public who may want to weigh in on issues about spending.
From: Mark Tapscott [mailto:mark.tapsc...@gmail.com] Sent: Monday, June 01, 2009 4:13 PM
To: openhouseproject@googlegroups.com
Subject: [openhouseproject] Re: new stimulus lobbying policy
Gary, the burden of disclosure should be solely on the agency officials contacted, not on the person outside of government expressing a particular view about a proposed government expenditure or policy (except in the case of registered lobbyists). Otherwise, we end up creating a tremendous dis-incentive to robust political expression by creating red tape that is costly in time and money. As for the distinction between political expression before or after submission of a grant request and the final action taken on the request, I don't understand why that should make any difference from the perspective of the individual outside of government with an opinion about a proposed action within government. Every exception leads to another exception and pretty soon you're talking about real repression of expression (thank you, Sen. Dirksen).
On Mon, Jun 1, 2009 at 3:38 PM, Gary Bass <gb...@ombwatch.org> wrote:
My reading of the Eisen blog entry is that it does not capture events leading up to submission of a competitive grant award. It only captures the period between the submission of the grant request and the action taken on the request.
So depending on how Eisen's third point gets conveyed into a policy document, it could mean: (a) only federally registered lobbyists need to put comments in writing leading up to a grant application (and face disclosure); or (b) no oral communications by anyone are restricted when leading up to a grant application. Either way, I don't think this is satisfactory.
If the concern is about influencing the period of when completive grants are received and acted upon, then the Eisen policy seems reasonable. Under competitive grants, a team of peer reviewers reads the application, and points are assigned to each section of the request. The applications with the highest scores are recommended for funding. But it is left to the agency head to decide who should receive the grants. There are times when the agency head ignores recommendations. This is why disclosure is important.
I would also not have a problem with restricting communications from anyone during the period when the grant application is being reviewed except to answer agency questions (just like the procurement process). Additionally, if there is fear of politics interceding during this phase, then I think the recommendations by reviewers should be made public if there is any dispute.
But let's be clear. For most of us, the real issue is possible corruption in the overall system, particularly when money is involved. It should not matter whether the influence-peddler is a registered lobbyist or not. Nor should it matter whether the person is trying to influence grants, contract, loans, or any other form of financial assistance. (And keep in mind, the big dollars are not the competitive grants under the Recovery Act or under general spending. It's contacts, entitlements and formula grants).
A common way to influence spending is to lobby in shaping the development of the RFP, thereby making it a perfect fit for one contractor versus another. The solution should be complete disclosure at all stages of the spending process.
Mark Tapscott is right. When it comes to advocacy, restricting First Amendment rights should be avoided. It isn't fair to say that Lockheed or the local human services nonprofit should be restricted in their speech (or who does the speech-making for them). However, it is fair that they or the government disclose interactions they have when those interactions deal with the public fisc.
From: Mark Tapscott [mailto:mark.tapsc...@gmail.com] Sent: Monday, June 01, 2009 12:07 PM
To: openhouseproject@googlegroups.com
Subject: [openhouseproject] Re: new stimulus lobbying policy
I appreciate the response, Michael. Anybody else have any thoughts to offer?
On Mon, Jun 1, 2009 at 11:44 AM, Michael Stern <stern8...@cox.net> wrote:
Mark- I think we need to be a little careful here. As I understand the possible new policy (which is not a policy yet), it would essentially direct agency officials that if anyone wants to talk to them about a grant application, they should refuse to engage in verbal communications and instead tell said person(s) to put it in writing. It seems to me that this raises fewer First Amendment concerns than the old/current policy, which requires agency officials to refuse to talk to some people (registered lobbyists) and not others. In principle, it seems little different than having certain types of proceedings conducted on the record, where ex parte communications with the decisionmaker are prohibited (like judicial proceedings and certain agency proceedings under the APA). I don’t know much about government procurement, but I suspect that there are limitations on the types of communications that bidders can have with the contracting official as well.
I am plenty skeptical about the government ladling out billions of dollars in stimulus money, whether or not it is “on the merits” (whatever that means). I doubt that this new policy will make that process much more efficient or worthwhile from the taxpayer’s perspective, but I see it as an improvement from the First Amendment standpoint.
Mike Stern
From: openhouseproject@googlegroups.com [mailto:openhouseproject@googlegroups.com] On Behalf Of Mark Tapscott
Sent: Monday, June 01, 2009 11:06 AM
To: openhouseproject@googlegroups.com
Subject: [openhouseproject] Re: new stimulus lobbying policy
OK, with all due respect to my many civil libertarian and liberal Democrat friends here, I waited all weekend hoping somebody would say it, but it hasn't happened (Gary Bass alluded to it and perhaps others did, too, and I missed their posts), so I will say it: This new policy - assuming Eisen's post accurately reflects the final product - is an unprecedented assault on political expression that is protected by the First Amendment. This one sentence from Eisen ought to have everybody on this listserv up in in arms demanding Eisen's resignation and a White House repudiation of any intent to regulate any political expression by any citizen regarding any policy of the government: For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process.
Or was dissent deserving of protection only when Bush was in the White House?
I was also struck by this sentence from John's description of the background to the new policy: "The administration’s move today to announce additional lobbying restrictions on stimulus spending recognizes that political influence is wielded by more than just registered lobbyists, moving to curb it in the most sensitive circumstances ...."
You cannot have Big Government and Open Government at the same time because the former is constantly moved by its expanding interests to find "sensitive circumstances" that justify in some official's mind curtailing the latter.
On Mon, Jun 1, 2009 at 10:13 AM, Michael Stern <stern8...@cox.net> wrote:
Tom raises a very interesting point. Given the phrasing of Eisen’s post (which is admittedly not conclusive on what the final policy will be), I would assume that Members of Congress would be included. But how would that prohibition be enforced? It would be awfully difficult for agency officials to refuse to meet with Members and staff, and it would be relatively easy to circumvent the rule by avoiding specific comment on the merits of a particular application (“I know I can’t talk to you about Constituent A’s application, but I just wanted to let you know that this is a fine company, and I will be very disappointed if they don’t get approved . . .)
The House and Senate Ethics Manuals have sections on ex parte communications with agency officials regarding proceedings that are on the record under the APA. The ethics committees try to discourage such communications by warning that they could result in invalidating the proceedings, but they don’t actually say that such communications are forbidden under congressional rules.
So a potential problem of this new ethics guidance is that it will encourage grant applicants to go through their Members of Congress, rather than directly to agency officials, which is unlikely to be helpful to competition on the merits. One way of deterring such activities would be to ask the Obama administration to disclose all contacts by Members of Congress relating to stimulus funding, just the way that lobbyist contacts are being disclosed.
Mike Stern
From: openhouseproject@googlegroups.com [mailto:openhouseproject@googlegroups.com] On Behalf Of Jones, Tom (Commerce)
...
From: openhouseproject@googlegroups.com
[mailto:openhouseproject@googlegroups.com] On Behalf Of Jones, Tom
(Commerce)
Sent: Saturday, May 30, 2009 3:07 PM
To: 'openhouseproject@googlegroups.com'
Subject: [openhouseproject] Re: new stimulus lobbying policy
Do we think this will also apply to communications from Members of Congress?
Thatw ould be and interesting and helpful development.
"First, we will expand the restriction on oral communications to cover all
persons, not just federally registered lobbyists. For the first time, we
will reach contacts not only by registered lobbyists but also by
unregistered ones, as well as anyone else exerting influence on the process.
We concluded this was necessary under the unique circumstances of the
stimulus program.
Second, we will focus the restriction on oral communications to target the
scenario where concerns about merit-based decision-making are greatest
-after competitive grant applications are submitted and before awards are
made. Once such applications are on file, the competition should be
strictly on the merits. To that end, comments (unless initiated by an
agency official) must be in writing and will be posted on the Internet for
every American to see"
_____
From: openhouseproject@googlegroups.com <openhouseproject@googlegroups.com>
To: openhouseproject@googlegroups.com <openhouseproject@googlegroups.com>
Sent: Fri May 29 23:42:05 2009
Subject: [openhouseproject] new stimulus lobbying policy
The White House today announced significant changes being crafted in how the
administration will regulate stimulus lobbying, in a new
<http://www.whitehouse.gov/blog/Update-on-Recovery-Act-Lobbying-Rules-... mits-on-Special-Interest-Influence/> post today on WhiteHouse.gov from Norm
Eisen, Special Counsel to the President for Ethics and Government Reform.
The administration's move today to announce additional lobbying restrictions
on stimulus spending recognizes that political influence is wielded by more
than just registered lobbyists, moving to curb it in the most sensitive
circumstances, while preserving the strongest part of the original program:
the move to real-time online disclosure of contacts from registered
lobbyists.
The new policy, according to the post: (bold added)
First, we will expand the restriction on oral communications to cover all
persons, not just federally registered lobbyists. For the first time, we
will reach contacts not only by registered lobbyists but also by
unregistered ones, as well as anyone else exerting influence on the process.
We concluded this was necessary under the unique circumstances of the
stimulus program.
Second, we will focus the restriction on oral communications to target the
scenario where concerns about merit-based decision-making are greatest
-after competitive grant applications are submitted and before awards are
made. Once such applications are on file, the competition should be strictly
on the merits. To that end, comments (unless initiated by an agency
official) must be in writing and will be posted on the Internet for every
American to see.
Third, we will continue to require immediate internet disclosure of all
other communications with registered lobbyists. If registered lobbyists have
conversations or meetings before an application is filed, a form must be
completed and posted to each agency's website documenting the contact.
The first two points are really the same measure: the administration is
banning all oral contacts from anyone, not just lobbyists, and targeting
that provision to a very specific scenario.
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
<http://www.citizensforethics.org/node/38359> 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
<http://blog.sunlightfoundation.com/2009/04/06/lobbying-disclosure-and... bama-memo/> made this point as well, and CREW has already praised
<http://www.citizensforethics.org/node/39807> the forthcoming guidance.
It may seem radical to ban all oral communications between administration
officials and the public, but this seemingly radical move is tempered by two
points: first, the restriction applies to a narrowly defined situation where
the administration has deemed merit-based decision making to be most
sensitive; and second, the administration connects stimulus spending, in its
gravity and sheer size, to the scope of potential corruption:
We concluded this was necessary under the unique circumstances of the
stimulus program.
For perhaps the strongest evidence of the sort of merit-based decision
making these policies seek to cultivate, we can look to Eisen's post itself
for evidence of our government engaging in good faith, in public, to find
the best solutions to fit our most pressing problems. How often before now
have we seen informal blog posts announcing a new policy before guidance has
been issued, and suggesting it's still under consideration?
This iterative, public approach to problem-solving should be interpreted as
a sign of strength, and suggests that bold steps don't just bring political
risk, as they often can, but can also offer a productive strategy for
finding public policy solutions. This is especially true of lobbying reform,
where previous reforms have all come too late, as reactions to gross abuses.
When the administration is willing to engage in a fruitful dialog to
identify the best course of action, disagreements become relationships, and
mistakes become lessons.
Other administration officials should follow Eisen's lead, and see what the
public (and stakeholder communities) have to offer.
