Tuesday, March 24, 2009

Stop the gag order. Lobbyists are protected by the First Amendment.

Free speech would be easy if it only applied to popular people saying popular things. But that's not the case. Our First Amendment protections are most urgent and fragile when they apply to the unpopular, the dissident, and the public villain of the day. Which brings me to lobbyists.

It's easy to dislike lobbyists. (Full disclosure: I happen to be one. Here's a link to my public registration.) Politicians vilify them, blame them for lots that is wrong in Washington, many times justified. Crooks like Jack Abramoff and the occasional bribe-taking Congressman smear the profession. The public hates inside influence-peddling, sees the potential for abuse, and insists on limits. So, as a lobbyist, I am happy to be regulated, and I'm ready to comply with all the disclosures of clients, contacts, and interests, and don't even mind the political pokes.

But the latest missive from President Obama's White House, a Memorandum dated March 20, 2009 on "Ensuring Responsible Spending of Recovery Act Funds," is a literal gag order to be carried out by Federal agency officials. It truly crosses the line.

Let's be clear. Lobbying is not a social evil. It is a public good protected by the First Amendment -- both as "freedom of speech" and as the right of the people "to petition the Government for a redress of grievances." By recent count, there are over 50,000 registered lobbyists representing a dizzying range of causes and interests, from good government and safe drugs to individual corporations and local governments. Bad actors aside (see Joseph Keppler's classic view, "The Bosses of the Senate," above), they keep Congress informed, give groups around the country an effective voice, and engage in public discourse essential to decision-making in a democracy.

In modern Washington, a competent lobbyist is as essential to navigating the complex maze of bureaucracy and politics as a competent lawyer or accountant is to any individual trying to run a business, buy a home, or file their taxes. Denying people access to a lobbyist amounts to stripping them of their voice.

And that's precisely what the new Obama memo does. In so many words, it requres agency officials, in any meeting or phone call regarding the Stimulus Package, to tell any lobbyist in the room or on the call to get out, hang up, or shut up -- "the lobbyist may not attend [the meeting] or participate in the telephonic or in-person contact, but may submit a communication in writing." (See Section 3(b))

Message to the public? When it comes to seeking Stimulus Package funds, you are on your own. You are denied representation. You have no right to have someone speak for you. The impact? Big corporations, with high-paid, experienced advocates on their payrolls as officers or in-house staff (not subject to any rules on lobbying), will easily roll over any small business that gets in the way.

This is overkill, taking a popular concept and extending it to a destructive conclusion. I hope the Obama White House will re-think it. To my mind, even speaking as a lobbyist, change is still good.


David L. Durkin said...

This should read "Lobbyists are protected by the First Amendment -- just like every other citizen."

Yes, I'm a registered lobbyist as well. http://www.opensecrets.org/lobby/lobbyist.php?lname=Durkin%2C+David+L&id=Y00000232320&year=2008

I have two points I wish to add to Ken's otherwise trenchant post. First, everyone should realize that big corporations and other entities that can send their own officials in to talk about what they want out of the Stimulus Package. These people very well may need not register because they are lobbying on their own behalf and can therefore walk right past the gag order. If you don't have the resources, sophistication, or wherewithal to do this type of work yourself, you are now disadvantaged as to those -- like the CEO of a large automobile company or the President of an autoworkers' union -- who do.

Second, and more troubling, is that the gag rule appears to be unconstitutional. While our First Amendment rights are subject to reasonable "time, place, and manner" restrictions (as the Senior Lecturer on constitutional law from the University of Chicago School of Law should recall from his teaching days), it is arguably unreasonable to impose the gag order (a time, place, and manner restriction) on some, but not all, persons who are petitioning the government for the redress of grievances based upon their status as a registered lobbyist. I would hope that a group of groups which employ lobbyists and lobbyists themselves will rise up and challenge this affront to our ability to ensure that the Administration has the best available information presented to it.

Kathie Truitt said...

Ken, I love this post! First of all, let me clarify by saying I am NOT a lobbyist, nor do I play one on tv, (however I am married to one, so maybe that counts?)

It amazes me to hear the public criticize 'special interest' groups. When I hear it, I usually ask them what they do for a living. Do you have a job? Do you or someone in your family have an illness? Do you have a passion? Do you like to live, eat, breathe? Then guess what - ALL of that, in a nutshell, is a special interest.

You think Congress/Senate doesn't get anything done NOW? Then I ask them to imagine if every doctor, nurse, realtor, farmer, retail owner, or tax paying citizen called their Congressman/Senator to voice a concern. They're usually very silent for a moment or two, and then it's like a light bulb comes on.

Without lobbyists, they have absolutely no voice. And that is very dangerous.

Hillbilly Debutante

Anonymous said...

I'm the kind of hombre who enjoys to seek unprecedented things. Currently I am manufacturing my personal solar panels. I am making it all by myself without the aid of my staff. I am utilizing the net as the only way to acheive that. I encountered a very amazing website which explains how to build solar panels and so on. The internet site explains all the steps required to solar panel construction.

I'm not exactly sure about how correct the info given there iz. If some people over here who had experience with these works can have a look and give your feedback in the site it would be awesome and I would really value it, cauze I extremely love [URL=http://solar-panel-construction.com]solar panel construction[/URL].

Tnx for reading this. U guys rock.