Take Care When Lobbying Federal Agencies

Posted June 13, 2011 at 7:28pm

Q: I am the chief of staff for a freshman Member of the House with a question about an issue that seems to keep coming up.  We often receive calls from constituents asking our Member to contact federal agencies regarding pending decisions affecting their constituents. Our general rule is that, because of the ethics rules, we do not assist with formal agency matters. However, constituents have recently pushed back, claiming the rules allow a Member to call on their behalf so long as the Member does not explicitly take a position regarding the merits of the matter. Is this right?

A: To a certain extent, the constituents are right. House ethics standards not only permit Members to communicate with agencies on behalf of constituents, they downright encourage it. According to the House Ethics Manual, serving as a “go-between” for a Member’s constituents and administrative agencies is an “important aspect of a House Member’s representative function.” The manual notes that the Constitution guarantees citizens the right to petition the government and that a logical point of contact is one’s elected Representative.

But, despite this encouragement for Members to communicate with agencies, not all such communications are permissible. Members must be careful of what they say to agency employees, how they say it and when they say it. You are right to proceed with caution.

For a given administrative proceeding, to understand the difference between permissible and impermissible communications with agency officials, two factors merit consideration. One is the type of administrative proceeding. The other is the content of the communication.

The primary restrictions on communications with federal agencies are found in the Government in the Sunshine Act. That act prohibits off-the-record communications — known as ex parte communications — with agency officials regarding the merits of matters under their formal consideration. The purpose of the ex parte rule, the Ethics Manual says, is to preserve the due-process rights of all parties to formal administrative proceedings. As the manual states: “Whenever parties to a dispute come before a formal tribunal, they are entitled to a fair, impartial hearing and to equal access to the fact-finder.” Therefore, the rule prohibits off-the-record communications by anyone — not just Members — made on behalf of an interested party.

The first factor is the type of proceeding. The ex parte rule applies only to formal agency proceedings. These include proceedings of a “trial-type” nature as well as rule-making proceedings that must include formal hearings and a decision on the record.

Thus, the House Ethics Manual states, a Member may communicate with agency officials “concerning those matters not subject to formal agency proceedings.”

The House Ethics Manual identifies examples of proceedings covered by the rules as well as those not covered by the rule. Examples of proceedings not covered by the rules include informal rulemaking proceedings, “development of agency policy” and “establishment of budgetary principles.”

One common example of a proceeding covered by the rule is a formal, contested proceeding to award a contract among competitive bidders. In such a circumstance, the manual says, a Member may not call the deciding official and suggest which bidder should be awarded the contract. The Member could, of course, express such a view in writing, as part of the record, consistent with agency procedure because the ex parte rule does not prohibit communications made on the record.

The second factor is the content of the communication. Even in the case of formal agency adjudicatory proceedings, not all ex parte communications from Members are forbidden. The Government in the Sunshine Act explicitly limits the prohibition on ex parte communications to those that are “relevant to the merits of the proceeding.” Therefore, the prohibition does not apply to “general background discussions about an entire industry which do not directly relate to specific agency adjudication involving a member of that industry.” The rule also does not prohibit “status requests,” “routine inquiries” or “referrals of constituent correspondence.” Moreover, a House ethics advisory opinion has stated that a Member may introduce an individual to an agency, arrange interviews and meetings for the individual, provide a character reference and urge prompt and fair consideration of a matter.

However, while communications unrelated to the merits of a formal agency matter are generally permissible, the House Ethics Committee has offered words of caution about such communications. The concern expressed by the committee has been that requests for background information or status requests “may in effect be an indirect or subtle effort to influence the substantive outcome of the proceedings.” The Ethics Manual suggests one way to avoid violating the rule is to communicate solely in writing. However, while this might be a sensible practice, it might not always be practical, and it is certainly by no means required.

In sum, there is no need for a Member’s office to implement a blanket rule against all communications with agency officials regarding pending matters. But Members who do engage in such communications should be mindful of the applicable rules. The rules require deliberate attention. They are anything but intuitive.

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