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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Today, I talked with Jay Birnbaum, Senior Vice President and General Counsel of CURRENT Group LLC, on Smart Grid Technology and the stimulus plan. Jay and the CURRENT Group belive Smart Grid technology will bring the nation’s electriciy grids into teh digital age.

You can view the video or read the transcript below.

Additionally, CURRENT GROUP earned top billing and both CEO Tom Casey and Senior Vice President and General Counsel Jay Birnbaum are quoted in a Washington Post business story on Smart Grid. CURRENT believes Smart Grid will bring the nation’s electricity grids into the digital age, according to the Post.


Chuck Conconi: Welcome To Focus Washington, I’m Chuck Conconi. My guest today is Jay Birnbaum who is the senior vice president of CURRENT Group. Jay, thank you for being with me today.


Jay Birnbaum: Thank you for having me


Chuck Conconi: Great to have you. Earlier this year, the Obama administration set aside roughly 4 billion dollars in the economic stimulus bill for Smart Grid technology. I understand the department of energy recently issued its proposal criteria for Smart Grid energy projects. How is this money going to be used?


Jay Birnbaum: Well it’s going to be used for Smart Grid projects throughout the country. In particular the department of energy is engaging utilities to engage in projects that will create the most amount of jobs and the most amount of benefits for consumers in the shortest period of time particularly in the next two years.


Chuck Conconi: Well, CURRENT Group is a leader in this Smart Grid technology. You’ve done it in, I understand, Boulder, CO. You know what it takes to implement this technology, what is your assessment of the department of energy proposed criteria for putting Smart Grid to work across America?


Jay Birnbaum: I think they did a very good job. I mean, they had a tough task. They did it in a very short period of time. The stimulus package was only adopted about two months ago. And what DOE is focusing on is the criteria to enable a large number of utilities to get enough funding to stimulate a Smart Grid project that a particular utility wasn’t already going to be doing. So they’re trying to jump-start projects, not necessarily pay for them or largely subsidize them, but to get enough utilities to engage in deploying this new technology to upgrade our electricity grid. And that way they could create a momentum where the utilities would finish out the projects over time


Chuck Conconi: I’m going to ask you to be a little bit technical at this particular point.  Summarize the key provisions for the Department of energy’s proposed outlines for this.


Jay Birnbaum: Well the stimulus package actually broke down the Smart Grid funding into two separate groups. One group, one category if you will, has $615 million set aside for smart grid demonstration projects. The department have defined these as projects that are new, that are sort of novel technologies or novel applications of existing technologies.  And then there is a second category, which is much larger and which is almost $3.4 billion. That money is for commercial deployment of Smart Grid technologies, much like what we are already doing in Boulder and in other locations. Now the utilities would go and deploy previously deployed or previously existing commercial technology.


Chuck Conconi: Any problems you’ve noticed in the DOE proposed plans for this?


Jay Birnbaum: No problems necessarily. Again I think they did a very good job in trying to incorporate a lot of different utility visions of how to do Smart Grid. Their proposed criteria give utilities a lot of flexibility in types of projects they can propose.   One constraint is time. You have to have the money spent within two years or you can’t use it any longer. And another issue is benefits. The department is looking for projects that will create a large number of benefits, such as environmental benefits, job creation, reducing electricity costs, integrating renewable energy resources, and what is called distributive energy resources, likes the solar panels on your roof. So they are trying to incorporate a large number of different applications and that’s what the utility companies have to design their plans to fit within.


Chuck Conconi: You know I look at this figure, $4 billion. That’s a big investment. What are the taxpayers getting out of their money and what are the benefits of the Smart Grids?  How does this really work?


Jay Birnbaum: In general a Smart Grid is going to create efficiencies, security and reliability on the electricity grid. And it’s going to improve the electricity grids’ performance in all those areas. When we talk about a Smart grid it’s important to understand what a Smart Grid is because a lot of people talk about it. A Smart Grid is essentially putting sensors throughout the electricity grid and connecting that back to the utility with a high-speed communications system, and computing power to analyze what those sensors are saying and telling the utility what action to take in real time, or often enough in real time. So what we get from that is reduced electricity costs because now utility companies know how much energy they have to send down the wires and how much they actually are sending down the wires so they can actually modify the electricity they send. Utility companies sometimes send more then they need because there is no way to measure in real time how much energy is actually being sent to our homes. We can reduce losses. The electricity grid naturally has losses were electricity gets sent out but some of it comes off the wires before it reaches our homes. Utility companies can mitigate that loss or some of those losses with Smart Grid technology. And they can integrate these other technologies such as renewable and distributive energy technologies because without a Smart Grid some of these technologies become what some have called niche markets, that only a few of us will have them.


Chuck Conconi: You mean like solar and wind power. That kind of thing?


Jay Birnbaum: In particular the distributive energy resources but also centralized wind and solar because those resources tend to be intermittent. The wind doesn’t always blow and the sun doesn’t always shine. And it’s not always predictable when it’s going to stop and start you have to have a system that can interact very quickly.


Chuck Conconi: So the investment is going to pay off the $4 billion.


Jay Birnbaum: Yes and again that is a jumpstart. It will cost more to deploy Smart Grid throughout the next decade or the next two decades because we going to keep inventing new ways of improve the operation of the grid. But the four billion dollars will get a number of utilities off to the races as far as deploying them


Chuck Conconi: Jay Birnbaum thank you for being here we’ll have to talk about this at another time. I’m Chuck Conconi and this has been Focus Washington

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“Why have Obama’s numbers fallen?”

On March 25, 2009, in DCView, by Focus Washington

I had the opportunity to talk with well-known Washington DC pollster, Ron Faucheux, President of Clarus Research Group, about the dramatic drop in President Obama’s approval numbers.

Stan Collender and Toxic Assets

On March 24, 2009, in DCView, by Focus Washington

Today, federal budget guru Stan Collender talked about toxic assets and the state of our economy. Recently, several journalists have pointed to the Treasury Department as “armature hour.” Stan refutes that statement and says the ultimate goal is to fix the balance sheets which will ultimately get us out of the depression. Stan comments we’re heading to a bull-market.

Stan the Budget Man

On February 25, 2009, in DCView, by Focus Washington

When I want to understand the mental morass of the Federal Budget or the impossible economic situation, I call on Stan Colander. No one can take you through the sticky spider webs that economists weave and bring you to some reasonable understanding. I knew that Stan was the man to talk to after the Presidents first message to Congress and after weeks of frightening economic news. Stan feels more positive, so I now feel more positive. Maybe I’ll be able to afford to go out to dinner at T.G.I.Fridays and a movie next week. As we go through more of this economic crisis/downturn, or whatever, I’ll be again calling on Stan.

Stimulus Projects Will Need Oversight

On January 22, 2009, in DCView, by Focus Washington

This week on Focus Washington I talked with large construction project expert Barbara Golter Heller. During our discussion Barbara advocated how better oversight and new technologies can help the Federal government spend the stimulus funds more efficiently and effectively, to get the most bang for the buck while meeting green goals and creating jobs.

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