So Much For The First Amendment

by Pejman Yousefzadeh on March 28, 2009

I know that lobbyists aren’t sympathetic figures, but this is absurd:

Free speech advocates from across the political spectrum are accusing President Barack Obama of impinging on First Amendment rights and are gearing up to take their case public.

At issue is an unprecedented directive that Obama — who has long railed against lobbyists as the personification of a corrupt Washington culture — issued last week barring officials charged with doling out stimulus funds from talking to registered lobbyists about specific projects or applicants for stimulus cash.

Under the directive, which began going into effect this week, agency officials are required to begin meetings about stimulus funding for projects by asking whether any party to the conversation is a lobbyist.

“If so, the lobbyist may not attend or participate in the telephonic or in-person contact, but may submit a communication in writing,” reads Obama’s memo, which requires the agencies to post lobbyists’ written communications online.

The Constitutional problems with this bit of overreach–which has attracted the ire of the ACLU, by the way–are nicely discussed by American League of Lobbyists President Dave Wenhold in the following excerpt:

“This is a slippery slope,” he said, asserting the practical effect is to bar lobbyists from most — if not all — discussions about the stimulus.

“And that is unconstitutional, because it takes a class of people and says that they are not worthy to petition the government,” Wenhold said, adding that his group will hold a Tuesday news conference to highlight the First Amendment impact of the rule. “It just goes too far,” he said, asserting “if anybody is paying attention, they should be wondering ‘is my group next?’ If they take the right to petition the government away from one class of people, who is going to be next?”

This strikes me as a content-based speech restriction; in the sphere of First Amendment law, content-based restrictions essentially tell a class of people that their speech rights are curbed concerning a particular subject. Under this analysis, it would be the responsibility of government to show that the restriction is necessary to further a compelling state interest, and that there are no less restrictive means to further that interest. One can easily imagine less restrictive means concerning lobbying on stimulus issues and there is no particularly compelling state interest involved in keeping subjects associated with the stimulus package free and clear of lobbying; there is, after all, nothing inherently holy about the stimulus package and nothing inherently unholy about lobbyists discussing it.

And of course, the policy is full of holes. Consider:

First Amendment implications aside, the new lobbyist-muzzle rule is unprecedented and could have unintended consequences, said ethics and lobbying lawyer Larry Norton. A former Federal Election Commission general counsel, Norton predicted the rules will prompt some lobbyists to de-register, so they can personally lobby agencies for stimulus funds.

That can be done legally, Norton said, if the lobbyists shift their workloads so that they spend less than 20 percent of their time lobbying – the threshold at which lobbyists must register with Congress.

“I don’t imagine that’s what they intended,” he said of the Obama administration, adding, “It’s hard for me to see that (the memo) really addresses the problem or that in execution it’s going to solve very much. It is going to create a lot of separate classes of advocates in this town.”

Either the Obama Administration just plain did not see the possibility that this loophole could be used, which makes it incompetent in the drafting of its rules independent of the First Amendment violations it has likely engaged in, or it is winking and nodding at its use, which means it is not all that interested in curbing lobbying in the first place.

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