Obama Administration Restricts Lobbyist Communications & Issues Guidance on Stimulus Spending
On Friday, March 20, President Obama issued a Memorandum to the heads of all executive departments and agencies that imposes severe restrictions on the ability of lobbyists to communicate or be involved in the process of the distribution of stimulus funds under the American Recovery and Reinvestment Act of 2009, Public Law 111-5 (the “Recovery Act”). The Memorandum also provides detailed guidance to ensure the “responsible spending” of such funds. The Memorandum is posted at http://www.govexec.com/pdfs/032009e1.pdf.
A key section of the Memorandum prohibits departments and agencies from considering the views of a “lobbyist registered under the Lobbying Disclosure Act” (the “LDA”) concerning “particular projects, applications or applicants for funding,” unless they are in writing. A “lobbyist may not attend or participate in [a] telephonic or in-person contact” regarding any particular funding.
Staff at each executive department and agency are required to inquire in advance whether a lobbyist will be participating when scheduling any phone call or in-person meeting, and must refuse to speak with lobbyists about "particular projects, applications or applicants for funding under the Recovery Act."
In addition, each agency or governmental entity must post all written communications received from “registered lobbyists” on its recovery website within three business days after receipt. Presumably these restrictions are limited to individuals who are listed as lobbyists in the LDA reports filed by their employers, and do not apply to any other employees of the same company or organization.
Oral communications with lobbyists are allowed concerning “general Recovery Act policy issues”; but a written summary of the communication with identifying information must be prepared by department or agency personnel and posted on the recovery website within three business days of the communication. Once again, an inquiry must be made when scheduling and before beginning any oral communications whether a “lobbyist” will be participating. Therefore, while oral communications are allowed concerning “general Recovery Act policy issues,” the substance of those communications will be made public.
Each department and agency is directed to “develop transparent, merit-based selection criteria” that will guide its available discretion in committing, obligating, or expending funds; which shall not be superseded or supplanted by “considerations contained in oral or written communications from any person or entity concerning particular projects, applications, or applicants for funding.”
Each department and agency also is cautioned against funding “imprudent projects.” The memorandum identifies a number of factors that must be affirmatively determined in advance of funding. Among other things, all funding must satisfy the Recovery Act’s “transparency and accountability objectives.”
The Director of OMB is assigned responsibility for assisting and issuing further guidance if needed.
Like the January 21, 2009 Executive Order regarding the special application of the gift and entertainment rules to Presidential appointees, the new Obama Memorandum singles out lobbyists for disparate treatment even though there is no evidence to suggest that businesses and organizations that abide by the LDA disclosure provisions are more likely to influence funding decisions than other private persons or entities, or that their communications are in any way improper. In addition, persons who are not currently listed as lobbyists who meet more than once with department or agency officials who are covered officials as defined in the LDA and spend more than twenty percent of their time during a calendar quarter working on these issues, may trigger LDA registration requirements and thereafter be subject to the same restrictions.
Organizations contemplating stimulus funding under the Recovery Act should evaluate carefully the most appropriate and effective approach to interact with federal departments and agencies to avoid inadvertently running into difficulties under these new rules.
