Today, I talked with Brett Kappel, a lawyer specializing in lobbying and ethics law at the law firm of Vorys, Sater, Seymour and Pease in Washington, D.C. Brett discussed a controversial Obama Administration proposal that would restrict lobbyists from discussing stimulus projects with federal officials.
You can view the video or read the transcript below.
Chuck Conconi: Welcome to Focus Washington. My name is Chuck Conconi and my guest today is Brett Kappel and you are an expert on lobbying and ethics at the law firm of Vorys, Sater, Seymour and Pease in Washington, DC. Brett thanks for coming on the show.
Brett Kappel: Glad to be here.
Chuck Conconi: The Obama administration has ignited what is a fire storm of protest on K Street and the public interest community over lobbying restrictions for stimulus funds. Explain a little bit about what’s happening and why there is so much protest over that.
Brett Kappel: Well, the Obama administration was trying to insure transparency and accountability in the distribution of stimulus funds. The way they chose to do that, however, was to impose restrictions on lobbyists representing those clients seeking those funds. And the thing that has been so controversial is that they have actually prohibited lobbyists from speaking orally to any employee in the executive branch about a specific stimulus project. Lobbyists are allowed to submit written comments on specific projects and those comments have to be posted on the agency’s website within three days after they are received. Anyone who is defined as a registered lobbyist under the Lobbying Disclosure Act is prohibited from attending any meeting where specific projects are discussed or even talking on the phone with anyone in the executive branch who would be in charge of distributing in these funds.
Chuck Conconi: It’s hard to understand the difference, but who opposes this proposal? It’s an unusual alliance of groups I understand.
Brett Kappel: Yes, it’s a pretty broad swath of the public interest community and the business community that are opposed to it. On the right, you have the American League of Lobbyists and the American business community, which has been concerned about these restrictions on lobbyists. And on the left, you have groups like Citizens for Responsibility and Ethics in Washington and even The Washington Post editorial page opposed the scope of these restrictions.
Chuck Conconi: And that’s what I understand. It’s touched a nerve of among audiences, including groups that traditionally say, “Restrict K Street more”.
Brett Kappel: Right. I think there are actually two concerns. The business community and the lobbying community sees this particular restriction as perpetuating the view of lobbyists as being Jack Abramoff types who are peddling influence and using undue influence to get hold of federal funds. And they are also concerned, as I think the public interest groups are as well, that these particular restrictions aren’t going to have the effect that was desired at the outset. They don’t cover all of the people who supposedly have undue influence and they cover too many people that don’t have any influence. And the way that they are structured, it’s too easy to evade these restrictions. And you might end up with less transparency, not more. For example, rather than have the vice president of a company, who is a registered lobbyist, being able to speak to the Member [of Congress] and have those comments be recorded, you have the CEO of the company and he is the one who is making the phone calls now but those comments aren’t public. And the comments are not posted on the website. And it might be the CEO who has more influence with the Obama Administration than the vice president of government relations.
Chuck Conconi: You would think the administration’s move on this is really against what is just the legitimate freedom to petition the government under the First Amendment.
Brett Kappel: Well it raises, actually, five different constitutional concerns. The first and most important of which is the First Amendment concern because it is a prior restraint on speech. Lobbyist can’t even communicate orally at all. And that is very rare in American law to have a prior restraint on speech. It affects both lobbyists and their clients. Both of them have a First Amendment right to petition the Government and both of them are being restricted by these requirements.
Chuck Conconi: So it’s an over-reaction, so it is a threat.
Brett Kappel: Well, I think it is not narrowly tailored to achieve the result that it wanted to achieve. The business community and the public interest community had proposed an alternative, which is to allow lobbyist to make these oral communications but to make sure everyone seeking these federal funds have their comments posted on each agency’s website so that you can see what everyone is saying. So it would be the lobbyist, the CEOs and everyone. That way would ensure transparency and accountability and it wouldn’t raise these First Amendment concerns.
Chuck Conconi: There is a 60-day comment period and it ended about a week ago or so and there is no word from the administration. What happens next?
Brett Kappel: Well I strongly suspect that if there aren’t any changes made, then one or more of the groups who have opposed these requirements is going to file a lawsuit. That would get interesting very quickly depending on what type of legal tactics they want to take. For example, the most aggressive approach would be to seek a temporary restraining order to prevent the distribution of any stimulus funds until the First Amendment challenge was heard and decided by a court. That would be pretty aggressive. But either way, I think you are going to see a court challenge and I think it has a good chance of succeeding.
Chuck Conconi: So it could be very effective when you have groups that are so different, when you have groups like ACLU and the lobbying groups getting together. This ought to be something that should be frightening to the Obama administration.
Brett Kappel: Well it is certainly bipartisan and you would think that a President who is a constitutional scholar would be a little concerned about having one of his first acts up for review so soon into his administration.
Chuck Conconi: Well Brett, thank you so much for being here today. We will be able to talk more about this I’m sure. I am Chuck Conconi and this has been Focus Washington.
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