CRS Lobbying Report

Last week, the Congressional Research Service issued a report titled, Lobbying the Executive Branch: Current Practices and Options for Change. The report summarizes how lobbyist registration requirements have evolved since 1995, when the Lobbying and Disclosure Act (“LDA”) was passed. It also examines steps taken by the Obama Administration to limit and monitor lobbying of the executive branch, particularly in connection with the American Recovery and Reinvestment Act of 2009 and the Emergency Economic Stabilization Act (“EESA”).

The report has received some flack for its statement that the Administration’s restrictions on lobbyist access to executive branch departments and agencies “has already changed the relationship between lobbyists and covered executive branch officials.” But amidst all the uproar over whether there is any real evidence of such change and continuing criticism of the Administration’s unprecedented directives barring lobbyists from talking about specific projects (stimulus funds) and preventing lobbyists from serving on agency advisory boards and commissions, I am most struck by a section of the report that no one seems to be talking about: the  recommendations for future action. That section discusses three suggestions or “options for change” that “might further clarify lobbyists’ relationships with executive branch officials.”

The suggested changes are:

1. Amend the LDA’s disclosure requirements to cover program-specific disbursement information — such as lobbying in connection with the Recovery and Reinvestment Act or the EESA.

2. Create a central database to collect all Recovery Act projects and contacts by federally registered lobbyists in a single, searchable location.

3. Take no immediate action, on the theory that the current lobbying registration and disclosure procedures combined with executive orders and executive branch rules on Recovery Act lobbying are effective.

Notice what is missing:  Any mention of requiring elected officials who are the targets of lobbyist activity, and who get to decide just how much access lobbyists receive, to disclose their contacts with lobbyists. It seems to me that both the CRS Report and the Obama Administration are missing something very basic here: The public’s concerns about lobbying do not begin with lobbyists themselves, but with the amount of access and influence that lobbyists exert vis-à-vis elected officials. Elected officials are, after all, the ones with whom the public has a direct (voting) connection and who the public expects to act on its behalf. Thus, it is just backwards for lobbying regulations to require disclosure after disclosure from lobbyists and nothing whatsoever from elected officials.

Yet rather than require executive branch officials to disclose their contacts with lobbyists (and the interest groups represented by those lobbyists, as I have called for), the Obama Administration has taken the blunt approach of completely barring lobbyists from involvement in certain government programs and committees. Aside from its First Amendment problems, this approach strikes me as a bit like that of a dieter who cuts fats or carbohydrates entirely out of his diet in an effort to lose weight: The abrupt change may shock the system in the short term, but moderation is what is needed for long-term success. Much as fats and carbohydrates provide a valuable source of fuel when eaten in appropriate doses (and are difficult to avoid once the diet has ended), lobbyists play a valuable informational role in the legislative process—when involved in moderate doses (and are difficult to avoid completely in the long run). (Obama’s waiver of the “no-lobbyists” rule for certain cabinet positions ironically and problematically illustrated this).

Thus, contrary to the CRS report’s assessment, I would fault the Obama Administration for adopting a drastic and in some ways more symbolic than real solution that is unlikely to stand the test of time and, in the process, missing a chance to implement basic lobbying reform that might actually hold elected officials accountable.

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