JURIST Guest Columnist William Luneburg of the University of Pittsburgh School of Law says the Obama administration's restrictive new lobbying directive cannot altogether eliminate the phenomenon of "influence peddling" nor can it change Washington culture in one fell swoop, but it may improve things by small incremental steps….

The Beltway is buzzing from a new directive issued by the Obama Administration: lobbyists may not attend meetings or participate in telephone conversations with executive branch officials when their clients are making their in-person pitches for funds made available under the American Recovery and Reinvestment Act of 2009 (commonly known as the “stimulus” legislation). A denial of the First Amendment rights to speak and petition! Or so the American League of Lobbyists and the American Civil Liberties Union (among others) would have us believe. There is no question that this is an entirely new kind of restriction in the increasingly regulated world of federal lobbying. It should come as no surprise, therefore, that many (though not all) lobbyists are agape at this challenge to their accustomed way of doing business. But, fortunately, novelty does not delineate the boundaries of constitutionality. In fact, the constitutional assertions made against the new Obama directive have little to support them and, as a policy matter, the restrictions imposed make perfect sense. But first a little background.

Since the Jack Abramoff scandals of 2004-2006, lobbyists have been on the defensive as Congress has imposed more stringent disclosure obligations with regard to lobbying campaigns and lobbyist fundraising and tightened post-employment rules for former officials turned lobbyists (among other changes wrought by the Honest Leadership and Open Government Act of 2007). After a presidential campaign where both candidates appeared to concede the potential baneful influence of lobbyists on how the government operates, one of President Obama’s first acts was an executive order to extend and strengthen the then-existing restrictions on former lobbyists occupying high level positions in the executive branch and on those officials when they leave office. But the revolving door has not been shut by Congress or the President (nor is it likely to be shut for a variety of reasons) and, for better or for ill, lobbyists retain the right to raise large sums of money to support candidates for public office. Prior “comradeship” with governmental officials earlier in a professional career and a history of political fundraising remain powerful bases (even if not expressly invoked) on which to gain access to Washington officials and construct arguments on a client’s behalf–despite the fact that such factors are hardly relevant to the merits of the governmental decisions sought to be influenced. And, it is submitted, the persuasive power of those associations and fundraising is likely to be particularly strong in a personal meeting or telephone call with an official, more so than in a letter sent to the official. And that is the point of the Obama directive. In fact, the President’s memorandum incorporates one further feature to filter out inappropriate attempts at influence: any written lobbyist communication relating to a particular project must be posted by the agency that receives it on the Internet; that posting itself should discourage attempts to invoke, implicitly or explicitly, arguments and factors that do not bear on the merits of the application.

It should also be noted in this connection that the President secured a commitment from Congress not to insert special interest earmarks in the stimulus package. Congress obliged and sent the massive stimulus package back to the Administration to be doled out. Meanwhile, lobbying firms became excited with the prospects of winning earmarks from their friends and former colleagues in the executive agencies charged with distributing the funds; clients arrived at their doors and lobby shops increased their staffs, waiting for the moment to seek earmarks. These were the developments that prompted the President’s latest directive.

In approaching the constitutional arguments raised, the manner in which the directive seeks to achieve its goal must be considered. Lobbyists are permitted to write agency officials anytime in support of their client’s application for the public’s money; they are even permitted to appear in person before agency officials to argue issues of policy relating to the disbursement of stimulus funds. They can fully brief their clients prior to meetings or telephone calls with agency officials on legal, political and any other matters possibly relevant to the particular application; and they can follow up meetings with additional missives to agency officials that provide amplifying or clarifying information and arguments that may have been omitted by clients at the meetings (clients must take good notes—but that is hardly a terrific burden). However, when it comes to the specifics of a particular proposal–the specifics as to which presumably the client is at least as, and hopefully more, competent than the lobbyist to address–and a meeting or conference call with government officials considering the proposal, the lobbyist’s client must speak for itself and on its own. In the context of the entire directive, that would not seem to be a tremendous hardship—certainly not one sufficient to establish a violation of the Constitution since the persons most affected by the governments’ action are offered the opportunity to make their case in person.

Of course Obama’s is not the perfect system. For example, the president of The Southern Company may have raised tons of money for Democratic candidates; he or she may know wagonloads of agency officials personally from prior work in the government or with the government. Nevertheless, he or she can be present at a meeting with executive branch officials seeking funding for a particular alternative energy project. The Obama directive cannot altogether eliminate the phenomenon of “influence peddling” nor can it change the Washington culture in one fell swoop. But it can possibly improve things by small incremental steps, particularly those that strike at the heart of the culture of influence as it has come to exist within the Beltway.

So where is the First Amendment in all of this? Well, the fact of the matter is that, while that provision guarantees the right to speak and to petition government officials, it imposes no corresponding duty on those officials (or anyone for that matter) to listen, let alone to consider what is said—with one important exception, in the case of judicial and quasi-judicial proceedings. It is in the latter types of instances where the Supreme Court has confronted claims that there is a right to representation, generally by an attorney, claims that are not always upheld, but gain substance from challenges posed to layman by the complexities of legal proceedings whose workings may best be understood by attorneys. But when it comes to petitioning Congress and the executive branch outside of that context, there is no Supreme Court precedent that establishes more than a right to ask, not the right to be listened to and considered. And, when reduced to its essentials, all the Obama directive says is this: “we will listen to both lobbyist and client, but we will listen to the lobbyist on non-policy issues relevant to specific proposals only when they correspond in writing, at ar
ms length, so to speak, in such a fashion as to filter out, as far as feasible, the inappropriate influence of the revolving door and fundraising clout.” If the government has no obligation to consider what is said to it, surely it can agree to listen and consider subject to whatever reasonable conditions it may impose. The carefully nuanced limitations on lobbyists imposed by the Obama directive, in light of the purposes of that directive to ensure merit-based decisions on the disbursement of public funds, certainly meet that reasonableness test.

William V. Luneburg is a professor at the University of Pittsburgh School of Law and the chair-elect of the American Bar Association's Administrative Law and Regulatory Practice Section.
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