Last week, I wrote about the number of agencies complying with President Obama’s memorandum on lobbyist communications related to funds appropriated under the American Recovery and Reinvestment Act (ARRA) — the stimulus bill. One of the agencies that came out for the most praise was the Federal Communications Commission (FCC), which I said went “beyond the requirements outlined in the March 20th memorandum.” It turns out that there is a reason the FCC does such a good job of presenting lobbyist communications as mandated by the memorandum. The Commission was already required by law to disclose ex parte communications — off-the-record communications — to the public.
The reason the FCC is required to disclose certain ex parte communications is due to their status as an independent government body. All independent government commissions have restrictions and disclosure requirements on certain types of off the record communications. For the FCC, their ex parte communication rules involve off the record communications made surrounding certain types of proceedings. For our purposes, an important point is asking why the FCC, and independent government commissions, require rules restricting and/or requiring the disclosure of off the record communications. The Frequently Asked Questions (FAQ) page on FCC ex parte communications answers this question nicely:
The ex parte rules govern the manner in which persons may communicate with the Commission concerning the issues in its proceedings. The rules play an important role in protecting the fairness of the FCC’s proceedings by assuring that FCC decisions are not influenced by impermissible off-the-record-communications between decision-makers and others. At the same time, the rules are designed to ensure that the FCC has sufficient flexibility to obtain the information that is necessary for it to make reasonable decisions.
This seems to be the exact argument made in support of the ARRA lobbying rules implemented in the March 20 memorandum. Don’t we want to reduce the influence of off-the-record communications in the recovery fund distribution decision-making process? If we do, than some restriction on off-the-record communication, along with strong disclosure of permissable communication would be a perfectly — not to mention tried-and-true — way to obtain that goal. The rules also provide for “sufficient flexibility” for decision-makers to obtain information about potential projects from those seeking funds, without allowing conversations to be held in private.
The rules implemented in the March 20 memorandum may be new to a lot of government workers and lobbyists, but they clearly have their genesis in the ex parte communications rules aimed at reducing outside influence at independent government bodies. Perhaps other agencies should look to those who already have to disclose off-the-record communications for tips on how to disclosure lobbyist contacts.