Lobbying the Administration

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

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Lobbying the Administration

  1. 1. BIG BROTHER: LOBBYING THE ADMINISTRATION<br />Women in Government Relations <br />2009 PACs, Politics & Grassroots Conference<br />Larry Norton<br />Womble Carlyle Sandridge & Rice PLLC<br />
  2. 2. 2<br /> “I am in this race to tell corporate lobbyists that their days of setting the agenda in Washington are over.” – Barack Obama<br />
  3. 3. AM I LOBBYING?<br />
  4. 4. THREE QUESTIONS TO ASK <br /><ul><li>Is the agency official a “covered executive branch official”?
  5. 5. Is there an oral or written communication regarding the:
  6. 6. Formulation, modification or adoption of federal legislation
  7. 7. Formulation, modification or adoption of a federal rule, regulation, or executive order, or any program, policy or position of the U.S. government
  8. 8. Administration or execution of a federal program or policy?
  9. 9. Does the communication fall within a recognized exception to a “lobbying contact”?</li></ul>4<br />
  10. 10. WHO ARE COVERED EXECUTIVE OFFICIALS?<br />President and Vice-President<br />Officer/Employee in Executive Office of the President<br />Executive Schedule I-V<br />Uniformed Services above O-7<br />Confidential or Policy-Making Position (Schedule C)<br />
  11. 11. KEY EXCEPTIONS<br /><ul><li>Contacts regarding a law enforcement inquiry (specific cases involving particular parties)
  12. 12. Contact required by subpoena, or otherwise compelled by statute or regulation
  13. 13. Administrative requests - status inquiry, request for meeting
  14. 14. 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</li></ul>6<br />
  15. 15. HONEST LEADERSHIP & OPEN GOVERNMENT ACT OF 2007<br />7<br /><ul><li>Lobbyists can be held liable for violating Congressional gift and travel rules
  16. 16. More disclosure, more often
  17. 17. Sarbanes-Oxley type certification
  18. 18. Random audits of LDA filings
  19. 19. New FEC bundling rules</li></li></ul><li>TOUGHER SANCTIONS<br />Violators can go to jail – 5 years<br />Civil penalties up to $200,000<br />Can be prosecuted for making false statements in lobbying reports or to GAO<br />8<br />
  20. 20. DAY ONE: NEW ETHICS PLEDGE<br /><ul><li>Applies to F/T political appointees
  21. 21. Restricts gifts from registered lobbyists and lobbyist-employers
  22. 22. Eliminates $20/$50 exception and free attendance at widely-attended events
  23. 23. Limited exceptions – refreshments, greeting cards, others</li></ul>9<br />
  24. 24. RECOVERY ACT FUNDING<br />10<br />
  25. 25. OBAMA ADMINISTRATION POLICY<br />11<br /><ul><li>Anyone from outside government may communicate with agency about logistics
  26. 26. Anyone from outside government may say anything at widely-attended gatherings
  27. 27. No oral communication from anyone outside government following submission of formal application for competitive grant
  28. 28. 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
  29. 29. Written communications by LDA-registered lobbyists are permitted at any time, but must be posted on agency website</li></li></ul><li>ALTERNATIVE APPROACHES TO RECOVERY ACT LOBBYING<br /><ul><li>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
  30. 30. OMB policy does not apply to contacts with members or staff of Congress
  31. 31. No documentation and disclosure required for contacts by non-registered employees of a company or firm that employs lobbyists
  32. 32. Grassroots lobbying – Not subject to OMB policy, but expenses may be reportable</li></ul>12<br />
  33. 33. OMB POLICY DOES NOT OVERRIDE OTHER DISCLOSURE OBLIGATIONS<br />Communications with covered executive or legislative branch officials are subject to LDA reporting, and disclosure rules of agency <br />Byrd Amendment – requires disclosure of communications by LDA-registered lobbyists on behalf of clients if related to federal contracts and grants (OMB Form LLL)<br />13<br />
  34. 34. LOBBYING FOR TARP FUNDS <br /><ul><li>Modeled on OMB guidance, but significant differences
  35. 35. Oral communication ban runs through “preliminary approval” of application
  36. 36. Prohibits communications from Members of Congress
  37. 37. No exception for communications from state/local officials
  38. 38. Treasury must post written communications from applicants or their representatives (disclosure not limited to LDA lobbyists)</li></ul>14<br />
  39. 39. RISK MANAGEMENT<br />15<br /> An effective and ongoing compliance program will greatly reduce the risk that your lobbying will create legal liability and undermine your objectives and reputation. <br />
  40. 40. . . . AND ENSURE THAT YOU SAIL THROUGH AN AUDIT<br />16<br />
  41. 41. BEST PRACTICES<br /><ul><li>Establish clear policies that are systematically provided to employees
  42. 42. Train employees to spot issues and raise questions
  43. 43. Track lobbying expenses and reportable disbursements
  44. 44. Institute system for pre-approving contacts with covered officials and covered expenses; and disbursements that may constitute gifts
  45. 45. Conduct legal review of LDA reports
  46. 46. LD-203 – Survey and certify</li></ul>17<br />
  47. 47. REVIEW LOBBYING REPORTS<br />Senior Legal Officer or Outside Counsel<br />Accuracy & Completeness<br />Back-up Support<br />Avoid over- and under-disclosure<br />18<br />
  48. 48. FINAL THOUGHTS ON COMPLIANCE<br />The laws governing lobbying and other political activity have undergone dramatic change<br />More change is coming<br />Half-hearted attention to compliance can undermine the best work of your lobbying team<br />An ounce of prevention . . . .<br />19<br />
  49. 49. 20<br />QUESTIONS?<br />Larry Norton<br />Womble Carlyle Sandridge & Rice PLLC<br />202-857-4429<br />lnorton@wcsr.com<br />

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