Advocates Say New Recovery Act Lobbying Guidance Doesn’t Go Far Enough

On July 24, Peter Orszag, the director of the Office of Management and Budget (OMB), released further guidance that amends restrictions on lobbying for Recovery Act funds. The document states that it is meant "to supersede all prior written OMB and other agency guidance on the subject." Despite the adjustments within the guidance, which advocates note is a significant step in the right direction, many say the changes do not go far enough to prompt disclosure of all lobbying and other contacts associated with Recovery Act spending.

In a blog post on May 29, Norm Eisen, Counsel to the President for Ethics and Government Reform, announced changes to President Obama's March 20 memorandum that placed restrictions on communications between federally registered lobbyists and executive branch employees regarding the use of Recovery Act funds. The announced changes modified the oral communications ban to include everyone who contacts government officials, but it only applied to competitive grant applications submitted for review. Since then, formal guidance was expected but was not issued until late on July 24.

The guidance confirms that after competitive grant applications have been submitted, and before a decision has been made, communications about the grant applications are prohibited for everyone, not just federally registered lobbyists. The new guidance states the restriction on oral communications "applies in the context and at the stage where concerns about merit-based decision-making are greatest – the period beginning after the submission of formal applications for, and up through awards of, competitive grants or other competitive forms of Federal financial assistance under the Recovery Act. The restriction also has been expanded to cover, generally, all persons outside the Federal Government (not just federally registered lobbyists) who initiate oral communications concerning pending competitive applications under the Recovery Act."

There are exceptions to the rule, but mostly they are in the context of when the federal agency has follow-up questions to discuss. The restrictions only apply to competitively awarded grants, not to other types of grants such as formula or discretionary grants.

As with the initial OMB guidance on Recovery Act lobbying, this version still draws a distinction between federally registered lobbyists and others. Disclosure is required for oral and written communications with "federally registered lobbyists, including lobbyists for governmental or non-profit entities, and who are communicating on behalf of a client for whom they are registered." However, this does not include those who are no longer federally registered, state lobbyists, or "federally registered lobbyists who are not communicating on behalf of a client (or, in the case of an in-house registered lobbyist, on behalf of an employer) for whom they are registered." Moreover, disclosure is only required for federal financial assistance – grants, loans, and insurance – but not for contracts.

Thus, the same effort on behalf of an entity to obtain Recovery Act financial assistance might or might not be disclosed depending on who is conducting the communication. If a federally registered lobbyist is communicating, the public will know about the attempt to influence how the Recovery Act funds are used. However, if the communication is initiated by a person within the organization or a representative of the entity who is not a federally registered lobbyist, then the effort will not be disclosed. No communications regarding influence on awards of Recovery Act contracts will be disclosed, even if initiated by federally registered lobbyists.

As in the previous OMB guidance, no disclosure is required regarding discussions about logistical Recovery Act issues. Federal agency officials can also listen to lobbyists at "widely attended gatherings," and disclosure of such communications is not required. However, if the lobbyist tries to have a private conversation with an official at a public event, the communication must be disclosed.

Citizens for Responsibility and Ethics in Washington (CREW) issued a press release July 24 stating that the changes are "a more common sense approach. 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."

However, concerns still remain because of the specificity of competitive grants, which are a small share of Recovery Act funds. Influence can occur prior to the submission of a competitive grant application, and the largest share of Recovery Act funds are distributed through formula grants, contracts, loans, and tax expenditures, which are excluded. Moreover, some groups, such as OMB Watch, argue that all communications attempting to influence the awarding of money under the Recovery Act – regardless of who is involved – should be disclosed.

The OMB guidance also announces that a new template for the Registered Lobbyist Contact Disclosure Form will be available shortly, but it doesn't address what advocates flag as an underlying problem: agencies are currently doing an inadequate job of disclosing lobbyist contacts, and reporting is inconsistent across agencies. For example, the Department of Energy only has nine listings of meetings with lobbyists, and the Department of Labor has five; the Federal Communications Commission has 22 meetings listed. Compounding the problem, Recovery.gov has no information on lobbyists.

Ideally, a new "web tool," if adopted and consistently used, will make the disclosure of lobbyist contacts easier. Details on the tool are currently unavailable, as it is still in its early development stages.

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