Recovery Lobbying Rules: Reversing the Disclosure Burden


Last week, President Obama released an Executive Memorandum providing suggested rules for transparency and accountability surrounding the distribution of funds available from the American Recovery and Reinvestment Act, the stimulus bill. One section of the Memorandum, which I blogged about here, provides new rules for the road for lobbyists seeking a slice of the stimulus salami. These new rules, while only set to apply for funds administered from the stimulus bill, may provide a road map for future changes to our already widely applied lobbyist disclosure rules. In a marked contrast to our current laws, the rules reverse the burden of disclosure from lobbyists and onto government employees.

The new rules require government employees to report on all contacts made to them by a registered lobbyist. All contacts made regarding specific programs, projects, or fund distribution must be made in written form and submitted to the agency or department. These written submissions will be posted online within three business days of their receipt.

Oral or in-person communications are forbidden if they relate to the specific distribution of funds for specific projects and programs. They are, however, permitted if the communication is general in nature and does not relate to “particular projects, applications, or applicants for funding.” The permitted oral and in-person communications must be supplimented by a filed written statement that includes, “(i) the date and time of the contact on policy issues; (ii) the names of the registered lobbyists and the official(s) between whom the contact took place; and (iii) a short description of the substance of the communication.” This written statement must then be posted online within three business days of receipt. The disclosed written statements, in both cases, will be posted to each individual agency or department’s recovery web site.

Lobbyist disclosure is, of course, nothing new. Our current framework for disclosure comes from the Lobbyist Disclosure Act of 1995 (LDA) and the amendments to it contained in the Honest Leadership and Open Government Act of 2007 (HLOGA), but the idea for lobbyists to disclose their work goes back over a century. The first application of lobbyist disclosure was in 1876 after the uproar surrounding the Credit Mobilier scandal. The passage of a resolution requiring the temporary registration of lobbyists with the Clerk of the House became the first, albeit unsuccessful, attempt at monitoring the influence industry in Washington.

In the 1930s, due to outrage at the tactics of the business community, including the fraudulent grassroots lobbying campaign ginned up by public utility holding companies to oppose a bill in Congress, Congress began selectively requiring certain lobbyists to register and disclose limited details about their activities. The first two industries required to have registered lobbyists were the public utilities, thanks to their deceitful campaign, and the merchant marine. Ten years later, Congress included the Federal Registration of Lobbying Act (FRLA) inside of the much larger Legislative Reorganization Act of 1946 establishing the very first, across the board legal means for lobbyist registration and disclosure. Eventually the holes of the FRLA would be plugged by LDA in 1995, which would be improved by HLOGA in 2007. The one common thread throughout the entire 125 year history of lobbyist disclosure is that the burden of disclosure was always placed on the lobbyist. Not so with the recovery fund lobbying rules.

The new process will make government employees the focus of lobbying disclosure rules for the first time. The recovery lobbying rules in no way effect the Lobbyist Disclosure Act, in fact they rely on lobbyist registration to determine with whom government employees may meet or talk, but they do change the way lobbyist disclosure has worked. For 125 years the disclosure burden has been on private interests attempting to influence policy. Now, the government will share that burden.

In many ways, this approach is identical to the ideal case of lawmakers posting their daily schedules. This idea, pushed by Sunlight in 2006, would get lawmakers to post, each day, the full schedule of their previous day’s meetings, including who they were meeting and whether they were a registered lobbyist. Some lawmakers caught onto the idea and began posting their schedules, but none regularly noted that they were meeting with registered lobbyists. What the idea of posted schedules lacked was the authority of rule, law, or mandate, something the Memorandum covers for the new recovery rules. Hopefully, the structured nature of the new rules provides that kind of real-time, inside look into lobbying that we tried to get out of daily schedules.

Of course, the inclusion of government employees in the lobbyist disclosure regime raises a number of questions. Is there a disincentive for employees to not follow these rules? Lobbyists face serious fines and, in some instances, jail time for filing incorrectly. Would that be an appropriate disincentive for government employees or just overburdening? Is this creating more paperwork for overworked and underpaid government workers? Shouldn’t lobbyists, who usually make more money than government workers, be doing this themselves? Will moving this function of disclosure to government employees create better disclosure than that supplied by lobbyists? I’m sure you can think of many, many more questions.

If successful (we still need to see this in practice), these new rules will create a large amount of new information on lobbying and pull back the curtain on the lobbying around the distribution of stimulus funds. If applied, even in modified form, across the board to the legislative and executive they could pull the curtain back on all lobbying providing the American public with a view into government that they have been missing for far too long.