When President Obama issued a memorandum to “ensure the responsible spending of recovery act funds,” he required members of the executive branch to report or make publicly available certain lobbying communications while avoiding engaging in others. However, both his memorandum and later OMB guidance appear to have a big gap: they overlook communications between lobbyists and the executive branch about stimulus policy.

President Obama’s memorandum imposes the following requirements on executive branch officials who are contacted by registered lobbyists about the economic stimulus legislation:

1. No lobbyist can verbally communicate with a member of the executive branch about “particular projects, applications, or applicants for funding.”

2. A lobbyist can communicate in writing with a member of the executive branch about “particular projects, applications, or applicants for funding.” However, the executive branch staffer must publish the written communication — the document — on the agency’s web site within 3 days.

3. A lobbyist can verbally communicate with a member of the executive branch about policy matters. The executive branch staffer must record information about the communication (names, dates, clients, and subject matter) in a form, and post that form online within 3 days.

4. A lobbyist can communicate in writing with a member of the executive branch about policy matters. The executive branch staffer neither needs to record information about the communication nor place the written communication — the document — online.

It is this fourth point that is odd. Why should written communications about policy matters be treated differently from verbal communications about policy matters? Or treated differently from the submission of funding request documents to executive branch staff? The point of placing information online is to allow public scrutiny, and yet there is a huge gap. There is no reason to believe that this omission is any more than an oversight (no pun intended). I didn’t even realize the loophole existed until I tried to diagram the disclosure process.

I suggest considering a new rule: all written communications about stimulus policy matters must be placed online within three days. Placing the documents online would make them easily searchable and increase transparency. It would also save the executive branch staff member the time required to evaluate the document’s contents to determine whether it is related to policy or contains a specific funding request.

It would be interesting to know who is contacting the administration in support or opposition to its stimulus lobbying disclosure requirements. (Documentation of the Sunlight Foundation’s meeting with Norm Eisen on this issue can be found on the White House web site.) Also, it’s not clear to me whether discussions of broad areas of policy — e.g., requesting more funds be devoted to the defence sector — would be characterized as a policy matter or a specific funding request. Reframing the topic shouldn’t be a way to get around the disclosure rules.

From a practical standpoint, I understand that placing online every written communication from a registered lobbyist about  the economic stimulus is a nontrivial task. But asking lobbyists to send written information electronically is not a big ask, and would support President Obama’s goal of ensuring  “the responsible spending of recovery act funds.”