Lobbying the Administration
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Lawrence Norton, attorney at Womble Carlyle, presented on "Lobbying the Administration".

Lawrence Norton, attorney at Womble Carlyle, presented on "Lobbying the Administration".

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Lobbying the Administration Lobbying the Administration Presentation Transcript

  • BIG BROTHER: LOBBYING THE ADMINISTRATION
    Women in Government Relations
    2009 PACs, Politics & Grassroots Conference
    Larry Norton
    Womble Carlyle Sandridge & Rice PLLC
  • 2
    “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?
    View slide
  • THREE QUESTIONS TO ASK
    • Is the agency official a “covered executive branch official”? View slide
    • 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”?
    4
  • 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
    6
  • HONEST LEADERSHIP & OPEN GOVERNMENT ACT OF 2007
    7
    • 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
    8
  • 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
    9
  • RECOVERY ACT FUNDING
    10
  • OBAMA ADMINISTRATION POLICY
    11
    • 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
    12
  • 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)
    13
  • 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)
    14
  • RISK MANAGEMENT
    15
    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
    16
  • 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
    17
  • REVIEW LOBBYING REPORTS
    Senior Legal Officer or Outside Counsel
    Accuracy & Completeness
    Back-up Support
    Avoid over- and under-disclosure
    18
  • 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
  • 20
    QUESTIONS?
    Larry Norton
    Womble Carlyle Sandridge & Rice PLLC
    202-857-4429
    lnorton@wcsr.com