BIG BROTHER: LOBBYING THE ADMINISTRATION

Women in Government Relations 2009 PACs, Politics & Grassroots Conference

Larry NortonWomble Carlyle Sandridge & Rice PLLC

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“I am in this race to tell corporate lobbyists that their days of setting the agenda in Washington are over.” – Barack Obama

AM I LOBBYING?

THREE QUESTIONS TO ASK

• Is the agency official a “covered executive branch official”?

• Is there an oral or written communication regarding the:

Formulation, modification or adoption of federal legislation Formulation, modification or adoption of a federal rule, regulation, or

executive order, or any program, policy or position of the U.S. government

Administration or execution of a federal program or policy?

• Does the communication fall within a recognized exception to a “lobbying contact”?

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WHO ARE COVERED EXECUTIVE OFFICIALS?

• President and Vice-President• Officer/Employee in Executive Office of

the President• Executive Schedule I-V• Uniformed Services above O-7• Confidential or Policy-Making Position

(Schedule C)

KEY EXCEPTIONS

• Contacts regarding a law enforcement inquiry (specific cases involving particular parties)

• Contact required by subpoena, or otherwise compelled by statute or regulation

• Administrative requests - status inquiry, request for meeting

• Written comments in response to Federal Register notice; or on the record in a public proceeding; or in compliance with agency procedures regarding a formal adjudication

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HONEST LEADERSHIP & OPEN GOVERNMENT ACT OF 2007

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• Lobbyists can be held liable for violating Congressional gift and travel rules

• More disclosure, more often

• Sarbanes-Oxley type certification

• Random audits of LDA filings

• New FEC bundling rules

TOUGHER SANCTIONS

• Violators can go to jail – 5 years

• Civil penalties up to $200,000

• Can be prosecuted for making false statements in lobbying reports or to GAO

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DAY ONE: NEW ETHICS PLEDGE

• Applies to F/T political appointees

• Restricts gifts from registered lobbyists and lobbyist-employers

• Eliminates $20/$50 exception and free attendance at widely-attended events

• Limited exceptions – refreshments, greeting cards, others

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RECOVERY ACT FUNDING

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OBAMA ADMINISTRATION POLICY

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• Anyone from outside government may communicate with agency about logistics

• Anyone from outside government may say anything at widely-attended gatherings

• No oral communication from anyone outside government following submission of formal application for competitive grant

• Oral communications by LDA-registered lobbyist, on behalf of client for whom he or she is registered, must be disclosed on agency website w/in 3 days

• Written communications by LDA-registered lobbyists are permitted at any time, but must be posted on agency website

ALTERNATIVE APPROACHES TO RECOVERY ACT LOBBYING

• Exception to oral communication ban if communication by an elected chief executive of state or local government, or Presiding Officer or Majority Leader of state legislature

• OMB policy does not apply to contacts with members or staff of Congress

• No documentation and disclosure required for contacts by non-registered employees of a company or firm that employs lobbyists

• Grassroots lobbying – Not subject to OMB policy, but expenses may be reportable

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OMB POLICY DOES NOT OVERRIDE OTHER DISCLOSURE OBLIGATIONS

• Communications with covered executive or legislative branch officials are subject to LDA reporting, and disclosure rules of agency

• Byrd Amendment – requires disclosure of communications by LDA-registered lobbyists on behalf of clients if related to federal contracts and grants (OMB Form LLL)

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LOBBYING FOR TARP FUNDS

• Modeled on OMB guidance, but significant differences

• Oral communication ban runs through “preliminary approval” of application

• Prohibits communications from Members of Congress

• No exception for communications from state/local officials

• Treasury must post written communications from applicants or their representatives (disclosure not limited to LDA lobbyists)

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RISK MANAGEMENT

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An effective and ongoing compliance program will greatly reduce the risk that your lobbying will create legal liability and undermine your objectives and reputation.

. . . AND ENSURE THAT YOU SAIL THROUGH AN AUDIT

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BEST PRACTICES

Establish clear policies that are systematically provided to employees

Train employees to spot issues and raise questions Track lobbying expenses and reportable

disbursements Institute system for pre-approving contacts with

covered officials and covered expenses; and disbursements that may constitute gifts

Conduct legal review of LDA reports LD-203 – Survey and certify

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REVIEW LOBBYING REPORTS

• Senior Legal Officer or Outside Counsel

• Accuracy & Completeness

• Back-up Support• Avoid over- and under-

disclosure

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FINAL THOUGHTS ON COMPLIANCE

• The laws governing lobbying and other political activity have undergone dramatic change

• More change is coming

• Half-hearted attention to compliance can undermine the best work of your lobbying team

• An ounce of prevention . . . .19

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QUESTIONS?

Larry NortonWomble Carlyle Sandridge &

Rice PLLC

202-857-4429lnorton@wcsr.com