Colleagues Daniel Schuman and Lisa Rosenberg and I just returned from the Eisenhower Executive Office Building, where a meeting was held by administration officials to help evaluate the new lobbying restrictions put in place for stimulus funds. Many other non-profits and coalitions represented various viewpoints on lobbying and ethics reform.
The administration, proactively protecting stimulus funds, instituted stringent new lobbying restrictions, banning oral communications from lobbyists on specific spending projects, and placing new disclosure requirements on executive branch employees who meet with lobbyists on stimulus policy.
To me, this looks like an imperfect law (the Lobbying Disclosure Act) being used as a foundation for imperfect lobbying restrictions, in the face of enormous and unprecedented stimulus spending. Whether the restrictions are proportional to the sudden need for competent spending is certainly up for debate. There seems to be little debate, however over whether the LDA is a sufficient vehicle for lobbying regulation. It isn't. The LDA requirements are easily skirted, enforcement is lax, and many terms are insufficiently defined. (It's probably fair to say that position was the consensus of the groups present, but certainly not presented as administration policy.) In the context of constantly evolving lobbying regulations, (1946, 1995, 2007, etc), the Obama administration's new lobbying policies make an excellent provocation. The shortfalls of lobbying restrictions under the LDA are magnified by the administration's reliance on them as a foundation for stimulus restrictions.
As Obama administration officials doggedly refer to "evidence-based decision making," and inevitably portray unchecked oral communications between officials and lobbyists as a potential barrier to merit-based evaluations, I understand more and more why the policy was built on the LDA framework. Without the distinction between lobbyists and non-lobbyists, what framework can one use for such a regulations?
If the new requirements are guilty of anything, it's over-reliance on the LDA framework and definitions, and that shouldn't be a surprise -- after all, this is the same Obama whose campaign banned contributions from registered lobbyists to his campaign, even returning checks in the mail, and the same administration that has nearly universally banned lobbyists from working in the White House. But what else can ethics regulations and lobbying restrictions be built on, if not the registered lobbyist distinction, as defined by the LDA?
This question led the discussants in today's meeting to begin to delve into the world of nuance that exists between LDA-defined-Lobbyists and everyone else.
Working through who should report, what should be reported, and for what topics will take real work, and will likely involve all three branches, as new laws and regulations circle through court challenges and create real-world results.
Different restrictions or disclosure requirements may be appropriate for different circumstances, and funding decisions may stand as a different class of communications from other types. The current LDA even recognizes different speech situations, albeit bluntly, through a long list of reasonable exceptions to "lobbying contacts," for things like public communications, whistleblowing, subpoenas, etc. (2 USC 1602) If some speech is excepted from lobbying restrictions (negative distinctions), should some speech be covered more stringently (affirmative distinctions)? The same nuances need to be worked out for who reports, what criteria trigger reporting requirements (payment, time spent, profit motives, fundraising, etc), and what gets reported.
I don't think anyone thinks that the current restrictions will build a corruption-proof shield of merit around stimulus money, but, even if nothing else, they're certainly holding the distinctions upon which we've built lobbying and ethics law in stark relief, and demonstrating a firm commitment to dialog on the part of the Obama administration.