Free speech advocates from across the political spectrum are accusing President BarackObama of impinging on First Amendment rights and are gearing up to take their case public.
At issue is an unprecedented directive that Obama— who has long railed against lobbyists as the personification of a corrupt Washington culture — issued last week barring officials charged with doling out stimulus funds from talking to registered lobbyists about specific projects or applicants for stimulus cash.
Under the directive, which began going into effect this week, agency officials are required to begin meetings about stimulus funding for projects by asking whether any party to the conversation is a lobbyist.
“If so, the lobbyist may not attend or participate in the telephonic or in-person contact, but may submit a communication in writing,” reads Obama’s memo, which requires the agencies to post lobbyists’ written communications online.
The rule is intended to prevent stimulus funds form being “distributed on the basis of factors other than the merits of proposed projects or in response to improper influence or pressure,” according to the memo.
While applauding that goal, Michael Macleod-Ball, chief legislative counsel for the American Civil Liberties Union and himself a lobbyist, questions the means, saying, “The question is whether this restriction, as it’s drafted, is the best way to achieve that end with the narrowest amount of limitation on an individual’s rights possible.
“From our perspective, the pretty clear answer is ‘no, it’s not.’”
Next week, the left-leaning ACLU will join with the non-profit watchdog group Citizens for Responsibility and Ethics in Washington and the trade group the American League of Lobbyists in sending a letter to the White House protesting the policy, said League President Dave Wenhold.
But Elizabeth Alexander, press secretary for the Vice President, who has been tasked with overseeing the stimulus, pointed out that lobbyists can still talk to administration officials about the stimulus policies, just not specific projects.
“The goal is full transparency. That’s entirely consistent with the 1st Amendment,” she said in a statement to POLITICO. “Lobbyists can communicate about specific projects in writing and about policy issues orally. That fully respects freedom of speech—while at the same time ending closed-door lobbyist deal-making in favor of sunlight,” she said.
Hardly, said Wenhold, who said lobbyists have already told him they were barred from meetings in which only one out of the six topics on the agenda had to do with specific projects.
“This is a slippery slope,” he said, asserting the practical effect is to bar lobbyists from most—if not all—discussions about the stimulus.
“And that is unconstitutional, because it takes a class of people and says that they are not worthy to petition the government,” he said, adding that his group will hold a Tuesday news conference to highlight the First Amendment impact of the rule. “It just goes too far,” he said, asserting “if anybody is paying attention, they should be wondering ‘is my group next?’ If they take the right to petition the government away from one class of people, who is going to be next?”
A separate protest letter is being penned by the Center for Competitive Politics, a non-profit group that is generally considered right-leaning and that advocates for less stringent regulations on campaign finance and political speech.
The memo “clearly represents a step backward from the idea that citizens can ‘petition their government’ to address their concerns,” said Sean Parnell, president of the center.
“It is always of concern to First Amendment advocates when the government seeks to limit the influence and input of citizens in the decision- and policy-making process,” he said.
Tara Malloy, a lawyer for the non-partisan Campaign Legal Center, pointed out that “courts have upheld a wide range of regulations that specifically target lobbyists and lobbying activities.”
Though she conceded courts likely haven’t considered rules like those in Obama’s memo, she said “arguably, the memorandum is no more restrictive of First Amendment activities than the regulations that have been found constitutional.”
First amendment implications aside, the new lobbyist-muzzle rule is unprecedented and could have unintended consequences, said ethics and lobbying lawyer Larry Norton. A former Federal Election Commission general counsel, Norton predicted the rules will prompt some lobbyists to de-register, so they can personally lobby agencies for stimulus funds.
That can be done legally, Norton said, if the lobbyists shift their workloads so that they spend less than 20 percent of their time lobbying – the threshold at which lobbyists must register with Congress.
“I don’t imagine that’s what they intended,” he said of the Obama administration, adding “it’s hard for me to see that (the memo) really addresses the problem or that in execution it’s going to solve very much. It is going to create a lot of separate classes of advocates in this town.”
“I have to say I was quite surprised by the reach of it.”