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A Closer Look at CRS's Recent Report "Lobbying and the Executive Branch"

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The Congressional Research Service just released a report entitled "Lobbying and the Executive Branch: Current Practices and Options for Change." It reaches an unsupported conclusion about the effect of the administration's lobbying disclosure rules, and also contains several factual and analytical errors. Ultimately, the Administration needs to do more to disclose lobbying contacts online, in real time, in one place, and in machine readable formats.

Changing the "relationship"?

The big story is CRS's conclusion that the "[c]reation of restrictions on federally registered lobbyists' access to executive branch departments and agencies has already changed the relationship between lobbyists and covered executive officials." (emphais added) However, the report does not explain the sense in which the term "relationship" is used, or whether these rules have changed the effectiveness of lobbying efforts and opened up the policy-making process to the public.

Unsurprisingly, Obama Ethics Advisor Norm Eisen hailed the report's findings on the White House blog, writing:

We’re pleased that CRS recognized a fact that is apparent everyday to those of us who work in government: The president’s historic restrictions on lobbying are having a significant impact in making sure that the government serves the public interest and not special interests.

Mr. Eisen and CRS may be right that these new rules have rebalanced the role that lobbyists play in Washington. Indeed, the administration notes its efforts with regard to disclosing and limiting lobbying on the Main street and Wall street bailouts, its request that lobbyists not serve on advisory boards, and imposing new ethical requirements. However, we don't have enough information to reach the conclusion that these rules have had a significant impact. There's a lot more that should be done.

Errors in the CRS Report

The report erroneously states (p. 4) that the EESA (a.k.a. TARP or the Wall Street bailout) lobbying rules came into effect in January, when the rules were not issued until September. Although the Treasury Department issued a press release on January 27, 2009, stating that it would issue these rules, an August Investigator General report criticized Treasury for not promulgated the rules, which were published online in September. (Indeed, Mr. Eisen's blogpost says September 10th is the date). Thus far, only four lobbying contacts have been disclosed, with the earliest reported contact being in September. Treasury deserves little credit for its late and lackadaisical approach to disclosing TARP lobbying contacts.

The CRS report also erroneously states (p. 5) that the TARP lobbying rules and the updated stimulus lobbying rules "mirror" one another, and gives the TARP rules only cursory attention. They are, in fact, very different. For example:

  • The stimulus lobbying rules prohibit communications with all persons (with only a few exceptions) during the decisional period, but the TARP lobbying rules apply only to registered lobbyists.
  • The stimulus lobbying rules allow Members of Congress to lobby executive branch officials for funds for specific projects during the decisional period, but the TARP lobbying rules prohibit such communications.

Much more about the TARP and stimulus lobbying rules is available here.

Centralized Database of Recovery Act Lobbying Contacts

The CRS report accurately notes (p. 13, fn 65) that "a central database of registered-lobbyist contacts with executive branch officials does not currently exist." Over the past months, many people have called upon the administration to implement an online searchable lobbying database of all disclosures required under the rules, which is updated in real-time. The public database should be searchable by date, communicant, subject matter of the conversation, and so on. The burden of collecting that data could be reduced by allowing staff to submit reports online. Here's  one way it could look.

CRS Reports Generally

This CRS report has been widely reported in the news and has been acclaimed as providing support for the administration's policies, and yet it was not released by CRS. Indeed, CRS never publicly releases its reports, although most of them eventually find their way to the free archive OpenCRS or are available from fee-based services. (Mr. Eisen's blogpost links to the CRS report on OpenCRS). The Sunlight Foundation has repeatedly called for CRS Reports to be made publicly available, and legislation is pending in the House and Senate to do just that. This is just another illustration of why CRS reports should be publicly available.

(H/T to Electionlawblog for noting the report in the first place.)

Full disclosure: in a previous life, I was a legislative attorney with CRS.