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May Lobbyists Still Lobby for Stimulus Funding?

Q: I am a lobbyist with several clients who are interested in funds from the recent stimulus package and have sought my help. I understand that there are brand new restrictions regarding lobbying for these funds, including an outright ban on talking to federal officials. This really concerns me. I’m not sure how I can do my job without speaking to the officials about funding. Do the new rules really prohibit me from doing so?

[IMGCAP(1)]A: As a lawyer myself, I know what it’s like to work in a profession that is not always held in the highest esteem. Our bad rap dates back at least as far as William Shakespeare’s character Dick the Butcher famously suggested killing us all. Lately, though, your profession may have displaced mine as everyone’s favorite punching bag. To some, “lobbyist— is now such a bad word that many lobbyists are afraid to admit what they do.

But reputation is not the only reason they might not want to call themselves lobbyists these days. There are legal ramifications as well, including a bevy of new rules that apply to registered lobbyists but not to anyone else.

The latest singling out of lobbyists came in a March 20 presidential memorandum intended to ensure responsible spending of American Recovery and Reinvestment Act funds. Broadly, the memorandum requires federal agencies to do three things. First, they must develop transparent, merit-based selection criteria for spending the funds. Second, they must avoid imprudent projects. Finally, they must ensure the transparency of their communications with registered lobbyists regarding the funds.

As to this third requirement, the memorandum prohibits oral communications between registered lobbyists and agencies concerning particular projects, applications or applicants for funding under the act. In fact, whenever an agency employee is about to engage in oral communications regarding a particular project, application or applicant, the employee must first confirm that none of the participants is a lobbyist. This includes telephone communications, which could mean agency employees will start answering the phone: “Hello, are you a lobbyist?— As to face-to-face communications, it might make things easier if all lobbyists began wearing a Scarlet L.

It probably gives you little comfort to know that you are not completely forbidden from communicating with the agencies. The memorandum does allow, for example, a lobbyist and an agency official to discuss “general— issues with the act, so long as the talks do not “touch upon— particular projects, applications or applicants. Even for these general policy talks, however, the official must immediately document the time, participants and subject matter. That documentation must then be posted on the Internet within three days.

In addition, lobbyists may still send officials written communications that specifically address projects, applications or applicants. Again, however, agencies that receive such communications must post them on the Internet within three days of receipt.

In a nutshell, the rules mean that you may not communicate orally with agency officials regarding a “specific project, application, or applicant.— As you suggest, this could make your work very difficult. Talking seems an important part of lobbying. Lobbying without talking to the people might make for a good parlor game, but doing it for a living sounds less fun. (You better think of a good “sounds-like— signal for “stimulus.—)

If it’s any silver lining, there is some uncertainty about how long the new restrictions will remain in effect. The memorandum requires the director of the Office of Management and Budget to review implementation of the rules and then provide any recommended revisions within 60 days. It is possible that agencies will find the restrictions so cumbersome as to make them impractical. For example, many agency officials have countless conversations about funding. The new rules could make officials try to count the countless.

In the meantime, the rules might face legal challenges as well. Three unlikely allies have joined forces to request that the restrictions be replaced with a “constructive alternative.— The American League of Lobbyists, the American Civil Liberties Union and Citizens for Responsibility and Ethics in Washington sent a joint letter to the White House, calling the new rules an “ill-advised restriction on speech and not narrowly tailored to achieve the intended purpose.— It is possible that if one of the groups challenged the ban in court, it could succeed. After all, the right to petition the government for redress of grievances is explicitly protected by the First Amendment. Moreover, it does seem difficult to justify prohibiting lobbyists from talking to officials about the bill’s projects while allowing oral communications from everyone else, including potential recipients of such funding.

There is a chance, then, that the limits on your lobbying activities will be short-lived. For the time being, however, your lobbying for specific act funding and clients should be in writing. Given the public disclosure requirements, be careful what you write.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.

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