Defending the First Amendment

By March 31, 2009Briefly Legal

The American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington, and the American League of Lobbyists have sent the White House counsel, Gregory Craig, a letter asking President Obama to rescind Section 3 of the President’s March 20th directive, “Ensuring Responsible Spending of Recovery Act Funds.”

This is the provision that prohibits registered lobbyists from speaking to Executive Branch officials on any specific project that might be funded by the American Recovery and Reinvestment Act, i.e., the stimulus bill. (See earlier post.)

The provision is an affront to First Amendment — you can’t speak to public officials? — but as if being unconstitutional weren’t enough, the restriction also will also produce bad government. From the letter:

First, banning lobbyists from in-person and telephonic communications will not advance the stated purpose of ensuring public transparency and accountability and avoiding improper influence or pressure in the decision-making process. For example, non-lobbyists employed by potential recipients of Recovery Act funds, who are permitted oral contact with executive branch officials, may well have contributed significant funds to the presidential campaign and/or to the campaigns of members of Congress who sit on the committees with oversight jurisdiction over the Department of Treasury, the Federal Reserve and the expenditure of Recovery Act funds.

They may hold positions of enormous power in the business world and have influence in Washington far beyond that of the average registered lobbyist. In addition, many of these nonlobbyists may have a substantial pecuniary interest in whether or not the government awards Recovery Act funds for a particular project, application or applicant. Also, nothing in this memorandum prevents a member of Congress from attempting to influence a funding decision, such as recently occurred with OneUnited Bank. Banning lobbyists from engaging in oral communications, but not bank vice presidents, corporate directors, and others who might seek to influence decision makers is unlikely to result in any real public benefit. Limiting the applicability of Section 3 to registered lobbyists wholly misses the risks inherent in communications with such individuals, while significantly restricting the free speech rights of others who may have no such pecuniary conflict.


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