new stimulus lobbying policy
John Wonderlich
Preview of New White House Lobbying Policy
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 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 lobbyists were being unfairly singled out, and pointed to well-heeled CEOs and campaign contributors who are clearly influential, but often fall below the 20 percent threshold for lobbying registration. Sunlight has often made this point as well, and CREW has already praised the forthcoming guidance.
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.
The administration’s previous stimulus lobbying policies have seen significant praise and criticism, and has been subjected to an extensive review process, to which Sunlight has been a party.
Gary Bass
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.
John Wonderlich wrote:
> Big lobbying announcement today:
>
> Preview of New White House Lobbying Policy
> By John Wonderlich
> <http://www.sunlightfoundation.com/people/jwonderlich> on 05/29/09 @
> 10:36 pm <http://blog.sunlightfoundation.com/?p=9144> | 0 Comments
> <http://blog.sunlightfoundation.com/?p=9144#comments>
> Tags: eisen <http://blog.sunlightfoundation.com/taxonomy/term/eisen/>,
> LDA <http://blog.sunlightfoundation.com/taxonomy/term/lda/>
> The White House today announced significant changes being crafted in
> how the administration will regulate stimulus lobbying, in a new post
> today
> 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)
>
> cover all persons, not just federally registered lobbyists*. For
> 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.
>
> 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
>
> *Third, we will continue to require immediate internet disclosure
> of all other communications with registered lobbyists*. If
> 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
> contributors who are clearly influential, but often fall below the 20
> percent threshold for lobbying registration. Sunlight has often made
> an extensive review process
>
>
> >
--
-----------------
Gary D. Bass
Executive Director
OMB Watch
1742 Connecticut Ave., N.W.
Washington, D.C. 20009
TEL: 202-234-8494; FAX: 202-234-8584
Jones, Tom (Commerce)
"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: openhous...@googlegroups.com <openhous...@googlegroups.com>
To: openhous...@googlegroups.com <openhous...@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 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 lobbyists were being unfairly singled out, and pointed to well-heeled CEOs and campaign contributors who are clearly influential, but often fall below the 20 percent threshold for lobbying registration. Sunlight has often made this point as well, and CREW has already praised the forthcoming guidance.
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.
The administration’s previous stimulus lobbying policies have seen significant praise and criticism, and has been subjected to an extensive review process, to which Sunlight has been a party.
Michael Stern
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
Mark Tapscott
Mark Tapscott
Editorial Page Editor
The Washington Examiner
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Suite 500
Washington, D.C. 20007
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Michael Stern
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
Mark Tapscott
Gary Bass
Combined Federal Campaign #10201
Mark Tapscott
Gary Bass
Michael Stern
FYI, I posted my thoughts regarding the application of the new policy to lobbying by Members of Congress at www.pointoforder.com.
Mike Stern
From:
openhous...@googlegroups.com [mailto:openhous...@googlegroups.com] On Behalf Of Jones, Tom (Commerce)
Sent: Saturday, May 30, 2009 3:07
PM
To:
'openhous...@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.