Tag: lobbying

Andy Stern to Step Down from SEIU, Register as Lobbyist

No? Well, he should.

Wall Street Journal, Nov. 16, “Groups Seek Probe of Lobbying by SEIU’s Stern“:

When union leader Andy Stern turned up as the most frequent visitor to the White House during the first nine months of this year, critics raised questions about whether his activities constitute lobbying.

Today, Americans for Tax Reform and the Alliance for Worker Freedom took action, sending a letter to acting U.S. Attorney for the District of Columbia, Channing D. Phillips, requesting an investigation into “the potentially illegal lobbying activities” of Stern, who heads the Service Employees International Union.

 

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NAM Loses Legal Challenge to Lobbying Disclosure Provisions

We’ll use Jonathan Adler’s summary from Volokh.com as a dispassionate, accurate account of yesterday’s ruling.

D.C. Circuit Upholds Lobbying Disclosure Law:

Yesterday, the U.S. Court of Appeals for the D.C. Circuit rejected the National Association of Manufacturers First Amendment challenges to recent revisions to federal lobbying disclosure rules. Among other things, NAM argued the law requires greater disclosure of NAM’s membership, and that this would chill its members’ involvement in public policy issues. The court found such arguments unavailing, and rejected the challenge. The 48-page opinion in National Association of Manufacturers v. Taylor, by Judge Garland (joined by Judges Ginsburg and Henderson) begins:

More than fifty years ago, the Supreme Court held that the public disclosure of “who is being hired, who is putting up the money, and how much” they are spending to influence legislation is “a vital national interest.” United States v. Harriss, 347 U.S. 612, 625-26 (1954). Today, we consider a constitutional challenge to Congress’ latest effort to ensure greater transparency, the Honest Leadership and Open Government Act of 2007. Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject that challenge.

From Howard Bashman, links to coverage. CQ quotes the NAM spokesman, Hank Cox, saying the group was disappointed with the decision and hasn’t decided whether to appeal further.

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White House Lobbyist Restrictions Aren’t Eased Much at All

The Hill ran a story, “White House eases stimulus lobbyist restriction,” with this thesis:

In a significant change, the Obama administration will now allow lobbyists to meet and have telephonic discussions with government officials regarding economic recovery projects…[snip]

In March, President Obama announced that government officials would not be allowed to consider the views of lobbyists regarding specific stimulus projects unless the requests are put in writing. The materials also had to be posted on an agency’s website within three business days of receipt. Lobbyists have said that the policy was one more example of the administration’s disdain for their industry.

Now, the just-revised rules will allow government personnel to accept meetings and calls from federally registered lobbyists on the implementation of stimulus projects. The head of the Office of Management and Budget, Peter Orszag, issued a new guidance late Friday regarding the administration’s communications with registered lobbyists about economic recovery funds.

The release of the guidance on the cusp of a summer weekend tells you that the Administration did not want to draw attention to the memo, probably for fear of being accused of hypocrisy or yet more OBama è mobile. Glenn Reynolds gibes, “Didn’t see that one coming, did you?

We wanted to congratulate the Administration for realizing it went too far. But in reading the guidance, we see many continued restrictions on free speech and the ability to petition the government for redress of grievances. The Obama Administration is still being cavalier about the First Amendment rights of U.S. citizens, including but not limited to registered lobbyists.

During the period of time commencing with the submission of a formal application by an individual or entity for a competitive grant or other competitive form of Federal financial assistance under the Recovery Act, and ending with the award of the competitive funds, you may not participate in oral communications initiated by any person or entity concerning a pending application for a Recovery Act competitive grant or other competitive form of Federal financial assistance, whether or not the initiating party is a federally registered lobbyist. This restriction applies unless:

(i) the communication is purely logistical (Part A above);
(ii) the communication is made at a widely attended gathering (Part B above);
(iii) the communication is to or from a Federal agency official and another Federal Government employee;
(iv) the communication is to or from a Federal agency official and an elected chief executive of a state, local or tribal government, or to or from a Federal agency official and the Presiding Officer or Majority Leader in each chamber of a state legislature; or
(v) the communication is initiated by the Federal agency official.

So this remains forbidden: “Hi, John? I do hope you’ll take a look at Project 42. It will save the taxpayers $10 million. Thanks!”

And from the FAQ:

Q: I have received a request to meet with representatives of a corporation that has filed an application for a competitive grant. The representatives want to discuss the merits of the corporation’s proposal. The representatives are not federally registered lobbyists. May I speak with them?
A: No. Because the corporation has filed an application for a competitive grant, its representatives may not initiate communications with you orally about the merits of the application or proposal.

Bottom line: The White House forbids legitimate advocacy as improper. And, it’s depriving itself of useful information.

Earlier posts:

UPDATE (5:24 p.m.): The anti-business activists at Citizens for Reponsibility and Ethics in Washington, which protested the original rules, call the revised guidelines “smart policy.” They don’t really say why, though: “It is just good policy that once an application for a competitive loan or grant has been filed, no one – registered lobbyist or not – can lobby the government official responsible for handing out the taxpayer funds.” That’s just an assertion, which in effect endorses this position: One someone applies for a grant or loan under the stimulus, they no longer can petition the Executive Branch.

And they call that policy smart?

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How Dare You Petition the Government, Expanded

From The Washington Post, “White House Broadens Communications Limits“:

The White House is bolstering its restrictions on lobbying for stimulus funds, expanding the ban on oral communications with administration officials to include not only federally registered lobbyists but also consultants and other individuals who seek to exert influence over the spending process.

As summarized in “update,” published on the White House, “Update on Recovery Act Lobbying Rules: New Limits on Special Interest Influence,” a memo, or blog post, on online commentary, from Norm Eisen, White House Ethics Counsel:

First, we will expand the restriction on oral communications to cover all persons, not just federally registered lobbyists.  For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process.  We concluded this was necessary under the unique circumstances of the stimulus program.

Second, we will focus the restriction on oral communications to target the scenario where concerns about merit-based decision-making are greatest –after competitive grant applications are submitted and before awards are made.  Once such applications are on file, the competition should be strictly on the merits.  To that end, comments (unless initiated by an agency official) must be in writing and will be posted on the Internet for every American to see.

Third, we will continue to require immediate internet disclosure of all other communications with registered lobbyists.  If registered lobbyists have conversations or meetings before an application is filed, a form must be completed and posted to each agency’s website documenting the contact.

Our bolding. What exactly is “the merits?” How do we determine what these merits are? Apparently not through oral communication, i.e., “Oh, hi, Bill. That’s a good project.” No phone calls, either.

“A form must be completed…” If the White House wishes to achieve transparency,  it should start by banning the use of the passive voice so communications are clear.

Lobbyists and organizations that lobby complained that the White House’s restrictions on lobbying on stimulus fund projects were discriminatory and unfair because the same restrictions didn’t apply to people like corporate executives or officials. So these memorandumly noted changes address that fairness issue by expanding the ban on orally petitioning the government or expressing one’s views through speech. In the interests of transparency the First Amendment must be sacrificed.

The restrictions are also ambiguous enough that a lobbyist or other petitioner won’t be sure how to fully comply. So if someone runs afoul of White House officials, a phone call to a news outlet or a friendly prosecutor can punish the offender. Ambiguous rules plus capricious application equals negative rule of law.

UPDATE (1 p.m.): Mark Tapscott of the Washington Examiner reaches similar conclusions. From “White House moves to restrict criticism of stimulus projects“:

This is the Camel’s nose under the tent, being poked because of special circumstances. Let government restrict political expression – i.e. lobbying of government officials regarding policy – in one small, supposedly specialized area and not long after the specialized area starts expanding. Eventually, all political expression regarding all policy will become subject to government regulation.

More on this as it develops. And trust me, it will develop.

(Hat tip, Instapundit. And thanks for the links, Mark and Glenn!)

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Defending the First Amendment

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.

And it’s UNCONSTITUTIONAL.

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Shut Up

Remember this?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now reconcile that with this:

(d) An executive department or agency official may communicate orally with registered lobbyists concerning general Recovery Act policy issues; provided, however, that such oral communications shall not extend to or touch upon particular projects, applications, or applicants for funding, and further that the official must contemporaneously or immediately thereafter document in writing: (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 writing must be posted publicly by the executive department or agency on its recovery website within 3 business days of the communication.

(e) Upon the scheduling of, and again at the outset of, any oral communications with any person or entity concerning general Recovery Act policy issues, an executive department or agency official shall inquire whether any of the individuals or parties appearing or communicating concerning such issues is a lobbyist registered under the Lobbying Disclosure Act. If so, the official shall comply with paragraph (d) above.

The provisions are part of President Obama’s March 20th directive to heads of executive departments and agencies with the subject, “Ensuring Responsible Spending of Recovery Act Funds.”

The memorandum contains numerous restrictions on contacts between registered lobbyists and executive branch officials on the $787 billion American Recovery and Reinvestment Act, with an emphasis on transparency, speedy reporting of contacts, etc. The requirements are burdensome, will discourage legitimate communications, and one expects they will be inadvertently breached many times. Still, they would seem to pass constitutional muster.

But the restrictions on speaking to public officials about specific projects are an afront to the First Amendment’s protections of speech and the right to petition the government for redress of grievances. Registered lobbyists live under the same Constitution as the rest of America, and prohibiting one class of people from talking to the executive branch on projects financed by the taxpayers runs counter to this nation’s founding principles and current law.

Politico reports the ACLU, the nonprofit Citizens for Responsibility and Ethics in Washington, and American League of Lobbyists will send a letter to the White House protesting the restrictions. More…

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From the Arguments in NAM v. Taylor, the Lobbying Lawsuit

Quentin Riegel, NAM’s Vice President, Litigation, and Deputy General Counsel was at today’s oral arguments in NAM v. Taylor, the association’s lawsuit challenging the “affiliated organizations” provision of Honest Leadership and Open Government Act of 2007. His report follows:

Tom Kirby of Wiley Rein argued on behalf of the NAM today in the U.S. Court of Appeals for the D.C. Circuit in our challenge to Section 207 of the Honest Leadership and Open Government Act of 2007, which requires the NAM and other organizations with lobbyists to disclose the names of certain members who actively participate in its internal lobbying discussions and related activities.

The panel consisted of Judges Karen LeCraft Henderson, Doug Ginsburg and Merrick Garland. Each side was given 15 minutes. Kirby spent much of his time describing how the statute is unconstitutionally vague and imposes “a virtually impossible burden” on the NAM with the possibility of criminal sanctions for violations. Criminal statutes must be clear so that potential defendants know how to comply. He explained the difficulty of knowing how a government prosecutor will evaluate intent to violate the statute since there is no objective bright-line rule defining “active participation” in lobbying activities. It is impossible to know whether the intent of a member company is to engage in efforts in support of lobbying contacts when that company’s employees participate in NAM meetings, teleconferences or other activities. The vagueness of the statute is particularly problematic for an organization like the NAM that holds over 100 meetings a month and that has nearly 11,000 companies as members. The statute produces strong pressure to over-report, and the NAM cannot tell its members what kinds of activities will or will not qualify as active participation.

Judge Garland asked about the exception for listing the entire membership on an Internet site, but Kirby explained the confidential nature of the NAM’s membership, and the problems of complying with the alternative, which requires quarterly disclosure of different lists of members depending on the level of participation and whether dues or similar amounts are paid during the quarter. He said that the statute produces a “patchwork and virtually random” disclosures that do not satisfy any compelling governmental interest. There is no more central interest in the First Amendment that the statute infringes upon: the efforts of people to engage in petitioning the government for redress of grievances. (continue reading…)

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