By Charles S. Clark
September 21, 2011Lobbyists and good government groups are finding fault with a proposed rule that would widen restrictions on the freedom of millions of federal employees to accept small gifts and to attend events with registered lobbyists.
The proposed new standards by the Office of Government Ethics, published in the Federal Register on Sept. 13, expand on the executive order that a newly sworn-in President Obama issued in 2009 requiring political appointees to foreswear gifts from registered lobbyists. The draft rule would apply that obligation to career employees as well.
"After considering the myriad issues that have arisen under the lobbyist gift ban for full-time political appointees," the proposed rule stated, "the Office of Government Ethics has decided that the best approach for extending the lobbyist gift ban beyond the core political personnel is to add a lobbyist limitation to the existing limitations . . . on the use of the gift exceptions in the OGE regulations. In this way, the lobbyist limitation would build on concepts, prohibitions and exceptions with which employees and agency ethics officials already are familiar, rather than adding a new stand-alone prohibition."
Existing OGE guidelines allow exceptions to the ban for gifts valued at $20 or less, provided the total value of gifts from the same person is not more than $50 in a calendar year. They also permit exceptions for gifts motivated solely by a family relationship or personal friendship, and for those based on a government worker's or spouse's outside business or employment.
The existing rules allow federal employees to participate in a widely attended nongovernmental conference or event if they properly consider whether attendance is in the interest of the agency, whether an involved donor has interests that may be substantially affected by the employee's official duties, and whether the sponsor of the event or some other party is paying the cost of the employee's attendance.
Existing guidance contains exceptions for events sponsored by 501(c)(3) nonprofit organizations, the news media and higher education organizations. The new rule would add an exclusion for "nonprofit professional associations, scientific organizations and learned societies engaging in educational or professional development."
American League of Lobbyists President Howard Marlowe, who represents many local governments, told Government Executive that the proposal "is not fair to federal employees, who are prohibited basically from casual contact with registered lobbyists because it might lead to establishing a relationship that gives the lobbyist access when he or she needs it. That means the federal employee can't have information from the registered lobbyist, and the lobbyist can't provide that information," he said. "So two people lose, and nobody wins."
Hopes for enforcing such a ban "are not at all realistic," Marlowe added. "How do you clarify casual contact? If a federal employee is at a conference where there's also a dinner event, and happens to be sitting at a table with a registered lobbyist, what are they supposed to do, say, 'Raise your hand if you're a registered lobbyist'?"
Sarah Dufendach, vice president for legislative affairs at the nonprofit advocacy group Common Cause, applauded the Obama administration for "even thinking of this, for trying to get as close to the mark as they can on the balance between experts who are experts and lobbyists who are paid to be experts."
But in the larger picture, the rule "missed the mark," she said, because debates about $50 gifts pale in comparison to the campaign money often delivered by lobbyists, many of whom are "bundlers" of corporate and individual donations to members of Congress and presidential campaigns.
"We're driving ourselves nuts deciding at what point do you buy the member or an executive branch employee, with toothpick food or fork food? A $35 hamburger is buying you, but a $5,000 donation is not?" she asked. "It's a ludicrous conversation, but one we have to have" until the country changes its campaign financing system.
The ethics office said the new standards were prompted by a perception that exceptions to the ban on conference attendance were "used to permit attendance at events, particularly social events, where the nexus to the government's interest was attenuated." Specifically, concerns arise when "the 'gift' involved is something that the employee will enjoy in the very company of the lobbyist. If one views the problem of lobbyist gifts as the mere potential for some quid pro quo, then probably an invitation to a gala ball will not directly influence an official to take action benefiting the giver," the office said. "But it is increasingly recognized that the more realistic problem is not the brazen quid pro quo, but rather the cultivation of familiarity and access that a lobbyist may use in the future to obtain a more sympathetic hearing for clients."
The obstacles to enforcing the rules were acknowledged in the proposal, which asks, "in determining whether an invitation to an event has actually been 'extended' by an individual who is the organization's lobbyist, should one focus on who officially signed the invitation letter, who emailed a PDF copy of the signed letter, or who called the employee to say that a written invitation is coming?" The existing limits have not been meaningful, it continued, "because the same invitation can be resent through a different messenger who is not listed as a lobbyist for the organization."
The lobbyist league plans to organize allied groups to offer comments in opposition to the rule. The comment period ends Nov.14.
By Charles S. Clark
September 21, 2011