President Barack Obama's special counsel for ethics and government regulation Thursday afternoon gave an American Bar Association crowd an insider's perspective into the administration's thought path as it first embarked on, and now continues to pursue, lobbying reform in Washington. But his remarks did not go unchallenged.
Many thought Obama's promise of reform was just empty campaign rhetoric, said Norman Eisen, but the president in fact has “a deeply held personal view that political systems are susceptible to special interests” and he “speaks of it often.” “The president will hold every government servant to the highest standard of fidelity to the public interest,” Eisen told a crowd of about 40 at the ABA Administrative Law Conference luncheon. “We think it is no accident that we have had one of the most scandal-free starts of any administration in modern history.”
Though Eisen refrained from outlining future steps, he said Obama’s initial lobbying reform, particularly an executive order scribed by Eisen and signed on Jan. 21 by the president, served to “send a message to everybody that we were serious about the change.” The order restricted registered lobbyists from government employment in areas they lobbied, among other things. Eisen said there have been only three waivers in some 2000 posts filled.
Following that order, the administration mandated disclosure of lobbying or competitive grants for stimulus dollars to keep the process transparent and opened up the White House visitor logs to the public. “We did full transparency,” he said. “We’ll let the public decide who among them is a lobbyist or not.”
The current and unfinished leg of Obama’s regulatory pursuit—purging lobbyists from administration boards and commissions—is being undertaken to bring fresh voices into policy-making discussions, Eisen continued, saying: “We do not feel there is a monopoly on wisdom and talent within the beltway.”
Still, critics like Thomas Susman, the ABA’s government affairs office director, who joked when introducing Eisen to the crowd that he was responsible for “vilifying and emasculating” lobbyists, questioned Eisen as to why, if indeed these regulations are intended for the public interest, no distinction is made between corporate lobbyists and those who lobby for public interest causes. Eisen responded by saying that the administration did consider parsing types of lobbying, but in the end, “felt that as a matter of principle, we needed to be consistent in that regulation to have credibility.”
Sharing the stage Eisen and Susman, William Luneburg Jr., chair of the the ABA’s administrative law and regulatory practice section, which sponsored the event, told Eisen that the definition of, “lobbyist,” should be more consistent because some who don’t register as lobbyists still fit the role and slip through the cracks into government positions. Eisen responded, saying: “We thought it would be too burdensome to establish another regulatory regime” and “we felt that as a matter of workability, that was just too tough.”
An audience member also harangued Eisen for not consulting with lobbyists before undertaking reform. Eisen said that in fact the administration did, though only with those whose contribution would have had a valuable impact.
Panel Discussion Continues Critiques of Regulation
The criticism didn’t stop at lunch. Immediately after Eisen’s remarks, a panel discussion assembled down the hall in the Walter E. Washington Convention Center. Panelist Nick Allard, of Patton Boggs, quipped that he was “shocked” to hear Obama’s “fig-leaf counsel” complain about lobbyists because shutting lobbyists out of government is forcing them to cut corners, including unregistering.
“Right now it’s popular to make a show of turning lobbyists away from the front door while sending them around the back,” he said. “The dirty little secret is the wink-wink policy toward lobbying encourages people to do things the wrong way.” He urged the lobbying community to self-regulate and hold itself to a higher standard of conduct so the government wouldn’t feel the need to intrude.
Melanie Sloan, Executive Director of Citizens for Responsibility and Ethics in Washington (a group that Eisen co-founded), contended that the administration wasn’t doing enough to take the money out of politics. She advocated publicly financed elections, but admitted it seems a political impossibility right now. But small measures, like restricting bundling or forcing disclosure in so-called “Astroturf” lobbying groups would help, she said.
Finally, former U.S. Solicitor General and current Harvard Professor Charles Fried addressed the constitutional implications of shutting lobbyists out from government: He said there are none. “The constitutional issue about the Obama executive order that we keep hearing about seems to me a true nothing burger,” he said. “You have the right to petition, you don’t have the right to be heard.”
But Fried said stonewalling lobbyists makes little sense and ignores the real problem: Too much money in politics. He too advocated for publicly financed elections. “There is something odd about denying access to lobbyists when a lobbyist is really an advocate and is probably a really knowledgeable advocate,” he said. “The solution obviously has to do with the money.”