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Stimulus Lobbying Disclosure Order: No legal problems

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The last month has brought major changes in lobbyists' interactions with the government and the American people's ability to learn about their activities. On March 20th, President Obama issued an order imposing tighter rules on lobbyists angling for economic recovery funds.  The order, explained in this April 7th OMB memo, is intended to “promote transparency in communications with Federally registered lobbyists” and “facilitate Federal agencies' merit-based decision-making” in awarding funds. The rule earned a vote of constitutional support from University of Pittsburgh School of Law professor William Luneburg in a commentary published late last week.

Under the order, lobbyists who wish to speak with a government employee about “particular projects, applications, or applicants” may communicate only in written form. However, conversations regarding general policy issues can be conducted verbally, but the government employee must file a form containing a summary of the discussion. These provisions prompted the American League of Lobbyists, the ACLU, and Citizens for Responsibility and Ethics in Washington (CREW) to write a joint letter in late March that argued the provisions constitute a “violation” of a “constitutionally protected activity:” the First Amendment right to petition the government for a redress of grievances.

Professor Luneburg argues their constitutional concern is unwarranted. He writes:

“[W]hile [the First Amendment] guarantees the right to speak and to petition government officials, it imposes no corresponding duty on those officials (or anyone for that matter) to listen, let alone to consider what is said. . . . If the government has no obligation to consider what is said to it, surely it can agree to listen and consider subject to whatever reasonable conditions it may impose. The carefully nuanced limitations on lobbyists imposed by the Obama directive, in light of the purposes of that directive to ensure merit-based decisions on the disbursement of public funds, certainly meet that reasonableness test.”
The Congressional Research Service, the non-partisan research arm of the Congress, wrote in a 2007 report that we do not know how courts would come down on questions surrounding the imposition of limitations on lobbying activities: “In the area of 'lobbying' activities by paid, professional lobbyists, the 'regulation' of such activity at the federal level has thus involved merely disclosure, reporting, and publicity, as opposed to prohibitions, limitations, or restrictions on such conduct.”

The right to petition the government has a long history, starting with the Magna Carta in 1215. Equally enduring is the need to curb corruption and open the government to citizen participation. Under the President's order, lobbyists can still communicate on every issue under the sun. And just as before, executive branch staff can decide whether to pay attention. Only now, the American people will have a window onto the conversation and the ability “to go online and see what the meeting was about.”