Registered Lobbyist Prohibition Keeps Only Some Advocates Out of Administration

The appointment of Anna Gomez last week as deputy administrator at the NTIA illustrates how the rules work in practice. Gomez, vice president of state and federal regulatory and government affairs at Sprint Nextel, is a former Senate staffer, but her advocacy for the carrier was primarily before the FCC and other federal agencies. As a result, she did not have to register as a lobbyist under the Lobbying Disclosure Act. In general, FCC and industry officials noted, the FCC relies on its ex parte rules to provide some transparency on who is making a case before the agency. Congress, which does not have similar filing requirements, requires lobbyists there to register.

Similar questions have arisen over members of the various Obama transition teams, who had longstanding ties to industry but are not registered lobbyists, such as Tom Wheeler, former CTIA president, who headed the science, technology, space and arts agencies review team. Henry Rivera, former FCC commissioner, reportedly had to play a lesser role with the transition because he did register (CD Nov 14 p2). But at the same time, some former registered lobbyists have landed top jobs with the administration.

“The term lobbyist has been sullied over the years by a couple of bad actors like Jack Abramoff, but the vast majority of lobbyists are honest, hardworking advocates, just like regulatory attorneys,” said an industry official and former registered lobbyist. “A registered lobbyist advocates before Congress, whereas a regulatory attorney lobbies before the FCC, but is not technically considered to be a lobbyist even though they do the same thing.” Some campaigns have laid down the policy that it’s okay to accept money from the CEO of a company, but not a lobbyist, the official observed. “What’s the difference, really?”

“It’s the only bright line that’s workable,” said Chris Murray, Consumers Union Internet & telecom legislative counsel. “But Anna Gomez is a good person and a straight shooter. I don’t have concerns about her.”

Harold Feld, senior vice president at the Media Access Project, acknowledged that a prohibition on registered lobbyists does target one group of Washington insiders over others. But the line does make sense, he said. “Regulatory work feels, at least to my lawyerly prejudices if not to the public, more like a professional service easily distinguishable from one’s opinions than directly lobbying Congress, which is much more about influence.”

“At the end of the day … you need to draw a line somewhere,” Feld added. “I think drawing the line at registered lobbyist is a good cut. At least, it’s a decent first cut. It’s an understandable rule that takes care of the most suspicious looking cases while leaving a decent talent pool available. I think we should applaud the Obama folks for taking the first step at addressing the revolving door problem, even while recognizing it remains a thorny issue of where to draw the line.”

The number of registered lobbyists doing business at the FCC is “infinitesimal,” largely because what they're doing isn’t technically considered lobbying, said Randolph May, president of the Free State Foundation and a former agency associate general counsel. It would be tough to find a better bright line criterion than registered lobbyist, May said. Applying a stricter definition, like a ban against all government contact, could have the negative effect of repelling talented people from government service, he said.

It appears that the Obama lobbying rules present a problem only to those who lobby the Hill, said Public Knowledge spokesman Art Brodsky. Brodsky was once registered, but later de-registered after determining he didn’t need the title, he said. The lobbying restrictions seem to apply exclusively to registered lobbyists, but for the most part, people register only if they expect to spend most of their time on the Hill, he said. The FCC doesn’t require lobbyists to register, but they do have to get a visitor’s pass, he said.

That the rule most affects Capitol Hill may be appropriate, because there’s more need to ensure integrity and transparency there, May said. The legislative process lacks procedural safeguards accorded to agencies by the Administrative Procedures Act, he said. For example, all agency actions are subject to judicial review to ensure decisions are based on a public record, he said.

Common Cause was enthusiastic about the rule against registered lobbyists serving in the administration when it was proposed. Mary Boyle, vice president of communications, acknowledged in an interview Friday that the prohibition isn’t perfect and does paint with a broad brush. But, she said, there may be legitimate reasons to single out legislative lobbyists as opposed to those who mostly work the agencies, since much of their time is sometimes spent helping members raise campaign funds.

“In one sense, what many, many people do in Washington is lobby,” Boyle said. “We think it’s important that he’s setting this tone that his cabinet, his administration, is not going to be dominated by lobbyists … Clearly, the intent of this was to get at the highly paid, special interest lobbyists who spend a lot of their time raising money for members of Congress.”

Massie Ritsch, spokesman for the Center for Responsive Politics, said the list of registered lobbyists offered the Obama administration advantages over other line drawing. “It’s a list that’s there” and which is relatively objective, he said. But he acknowledged it only partly addresses the issue of some groups have disproportionate influence in Washington. “It’s not a problem that lobbyists get to have their say,” he said. “It’s a problem they get to have a far louder voice than anyone else … At the same time they're using a bright line they should also be mindful of the policy behind it. In some cases they may need to exclude people who don’t technically violate the rule but violate the spirit behind the rule.”