Obama Lobbyist Ban Remains Controversial Six Years Later

The Obama administration’s 2009 rules that have kept many registered lobbyists out of the administration remain controversial, though they were watered down in August, industry officials said. While they've likely had an effect on the revolving door between industry and the government, industry observers said one concern has always been that they targeted some lobbyists -- those registered with Congress -- while ignoring other kinds of lobbying -- for example, those representing a company before the FCC or another federal agency.

President Barack Obama imposed the rules early in his administration, through an executive order restricting lobbyists from working in the executive branch (see 0902090118). One immediate effect was that many lobbyists dropped their registered status (see 0911030133). In 2010, Obama issue a memo aimed at keeping registered lobbyists off agency boards and commissions, such as the FCC Consumer Advisory Committee.

But in August, the rules were watered down. The U.S. Court of Appeals for the D.C. Circuit rejected the administration’s request that it dismiss a lawsuit by six lobbyists who challenged the ban’s constitutionality after being excluded from a trade advisory committee. The new rules, published in the Federal Register in August, allow lobbyists to join some, but not all, advisory committees, provided they're representing companies or groups and not acting on their own behalf.

Charles Rothfeld, an attorney at Mayer Brown who represented the lobbyists in the challenge, said in an interview that the change “improved the situation,” though how the rules will be interpreted is still playing out. “It did not seem to make much rational sense to say that these organizations couldn’t put the people they wanted to represent them on these committees, whether or not they were registered lobbyists,” he said. The change affects only government committees in which lobbyists act in a representative capacity, he said. That includes the international trade advisory committees, designed to allow private sector groups to have input on what government trade policies should be, but not committees where a lobbyist would bring his or her individual views to the table, Rothfeld said.

The Association of Government Relations Professionals has long been concerned about the ban, Executive Director Robert Hay said. “Denying people with in-depth knowledge on specific subjects from serving their country deprives the government of good policy knowledge when decisions are being made,” Hay said. “The administration's recent revisions to its own rules regarding lobbyists serving on federal committees and councils reflects that even it now knows the value of having representatives of companies and professions at the policy table, although allowing even more government relations professionals to serve would be a good next step.” Hay said his group has a code of ethics that all members must sign, which addresses revolving door concerns. “Lobbyists are a knowledge resource for policymakers as they relay information from individuals, companies, and non-profits to elected officials,” he said.

"There is a natural tension between stricter ethics rules and the practical reality that people have backgrounds and perspectives before they enter government, and livelihoods to earn after they leave,” said former FCC Commissioner Robert McDowell, now at Wiley Rein. McDowell said the ethics rules have kept many from serving in the government. “When it comes to recruiting new government appointees, the tighter ethics screen has made it increasingly difficult to hire from the private sector,” he said. “The net result is that candidates can only come from academia, think tanks or government -- or other places unrelated to the expertise of the agency where the appointees end up, rendering them less knowledgeable of the policies they are being hired to implement.”

But Todd O'Boyle, program director for Common Cause's Media and Democracy Reform Initiative, said the lobbyist ban has had the desired effect. “Having a ban on the books, even if it’s imperfect, is good for raising citizens’ faith in government,” he said. “These lobbying bans, and other good government rules, aren’t just about corruption, they’re about perceived corruption, or the appearance of corruption.” Faith in government is harmed by the appearance of improper behavior, he said. “That’s why we, generally speaking, support strong revolving door rules." The prohibition on registered lobbyists was a good place to start, O’Boyle said.

Free Press Policy Director Matt Wood said it's hard to gauge the effect of the lobbyist ban. “The rules only affect some people, not all,” Wood said. “So I don't think the impact in the aggregate has been all that large, either for good or ill. Because of the vagaries of lobbying versus legal; agency or Congress; political appointee or career; pledge signer or not -- and then all of the different rules for lobbying between Congress and the IRS -- it's very hard to know who is barred from what.”

Industry officials who worked for the administration said the lobbyist ban no doubt has kept some out of office under Obama, but there are many more who met the rules and could serve. “My impression is that it has not significantly hampered the administration's ability to recruit highly talented people,” Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman said.

Berin Szoka, president of TechFreedom, said the ban on lobbyists is “silly” and reflects an obsession of some with “purity of intentions and appearances over outcomes and sound process.” Szoka said the early rules were arbitrary, banning some, but not all, lobbyists. “The real problem is that agencies like the FCC have far too much power, too much discretion in wielding it, too little clue about the technologies they're trying to regulate, and too little need to justify their decisions in rigorous analysis,” he said. “It matters far less who runs the Department of Justice's Antitrust Division or the Federal Trade Commission because those agencies, at least on antitrust cases, are constrained by the courts, decades of case law, and a robust law and economics.”