White House Intensifies War on Lobbyists

Posted June 17, 2009 at 5:37pm

Imagine if Congress passed legislation without ever having a floor debate or taking phone calls from constituents. Imagine if the Senate, the “world’s greatest deliberative body,— confirmed appointees without ever meeting with or hearing from the nominees. Imagine if judges or executive agencies decided matters without ever holding a hearing.

That is now the gist of the Obama administration’s continuing (and worsening) war on lobbyists. The collateral damage is not only to Americans’ freedom of speech but also to reasoned and informed decision-making, which goes hand-in-hand with free speech.

After issuing an over-broad, internally contradictory, and inconsistently enforced ban on lobbyist appointees in January (“Executive Order on Lobbying All Sound and Fury,— Feb. 24), the administration turned its sights to the economic stimulus program.

In March, the White House declared that all lobbyists registered under the Lobbying Disclosure Act would be prohibited from making any oral contacts (whether in person or over the phone) with administration officials on “particular projects or applications for funding— under the stimulus law. Instead, all such contacts would have to be made in writing and disclosed to the public within three days. Magnanimously, the administration made a dispensation for contacts regarding “general Recovery Act policy issues.—

The lobbyist speech muzzle was met by a rightful outcry of indignation not only from lobbyists but also from some unexpected quarters. Norm Eisen, the White House special counsel who devised the policy, was savaged by Citizens for Responsibility and Ethics in Washington — a group that Eisen founded. CREW was joined in its counterattack by the American Civil Liberties Union and the American League of Lobbyists. The White House heeded their protests about scapegoating registered lobbyists. But instead of scaling down, the administration escalated.

In a recent post on his White House blog site (which apparently now has the formality and legal effect of a Federal Register notice or executive order), Eisen announced that the oral contact muzzle henceforth would be applied equally to all comers with hat in hand, regardless of their LDA registration status. Eisen also clarified that the ban would apply specifically to the period after grant applications are submitted and before awards are made — a period, he explained, “where concerns about merit-based decision-making are greatest.—

The blog post concludes by stating that “OMB will be consulting with agencies, outside experts and others about these principles.— Ironically, Eisen does not explain whether those contacts are similarly restricted to writing, and if not, why not.

Some of the lobbyists and lawyers who led the insurrection appeared to be somewhat mollified by the White House’s non-retreat retreat. That is a mistake. To accept this short-term purported victory is to miss the forest for the trees. True, the oral contact muzzle no longer puts registered lobbyists at a comparative disadvantage. Instead, it disadvantages everyone, and in some ways that is even worse, because treating everyone equally does not necessarily mean treating everyone fairly.

Eisen’s fatal premise is that “where concerns about merit-based decision-making are greatest,— the administration should not engage in discussions with stakeholders, but rather, should limit contacts solely to writing. As everyday experience should inform us, the opposite in fact is true.

Certainly, written communications are essential to good decision-making — consider the tons of written briefs that lawyers file in court or the voluminous white papers that advocates present to Congress. However, there are certain insights that can only be gleaned from the give-and-take and spontaneity of oral discussions. Consider how many times unexpected off-the-cuff remarks by witnesses in court or before Congress have proven to be the smoking gun.

Beyond the hard facts, decision-makers can judge the credibility of the parties during oral communications by their tone of voice or demeanor. Thus, when the most important decisions are made in our government, it is the overwhelming norm that such decisions are made after oral discussions with the interested parties. Deviation from this norm generally arouses suspicion of the very improper influence and corruption that the administration apparently is trying to prevent.

The White House maintains its policies are simply intended to bring greater “transparency— to the process, hence its requirement that any communications made during the speech ban be done in writing and posted on the Internet. A better, more transparent policy might simply be to hold public hearings on stimulus fund applications where practicable. Alternatively, the White House could easily ask stimulus seekers to consent to being taped and then post such recordings online. (It’s only Nixonian when the parties don’t know they’re being taped.)

A long-standing bedrock in our democratic tradition has always been the notion that the best defense against malfeasance is more speech — not less. As the White House continues to refine its stance on economic stimulus lobbying, it should embrace this age-old wisdom instead of trying to defy it.

Eric Wang, a political law attorney, has advised clients on all aspects of government ethics laws.