Yesterday, the Office of Management and Budget (OMB) issued final guidance on a June 2010 memorandum from President Obama seeking to remove registered lobbyists from federal advisory committees.
The President's memo instructed agencies not to appoint or reappoint federally registered lobbyists to advisory committees and other boards and commissions. President Obama explained that the policy was an extension of his Administration’s commitment to “reducing the undue influence of special interests”:
Special interests exert this disproportionate influence, in part, by relying on lobbyists who have special access that is not available to all citizens. Although lobbyists can sometimes play a constructive role by communicating information to the government, their service in privileged positions within the executive branch can perpetuate the culture of special interest access that I am committed to changing.
Not surprisingly, lobbyists and their allies are up in arms over the new policy. Last year, a group of lobbyists wrote a letter protesting the Administration’s proposal, arguing that a lobbyist ban would “severely undermine the utility of the advisory committee process” and “undermine the broader goals of transparency with respect to lobbying.” The American League of Lobbyists issued a statement yesterday describing the policy as “shameful.”
But lobbyists aren’t the only ones who have raised concerns about the policy. Some good government groups have complained that President Obama's memo did not recognize the universe of lobbyists who work for nonprofit public interest organizations, and pointed out that some lobbyists may simply de-register and serve on advisory committees in other capacities in order to circumvent the rule. In a similar vein, the American Bar Association’s (ABA) Section of Administrative Law and Regulatory Practice argued that “the point of advisory committees is precisely to bring those interests [represented by lobbyists] into a setting where the government can benefit by seeking their views and subjecting them to challenges by others with different views.”
For our part, POGO submitted a public comment that supported many aspects of OMB’s guidance. For instance, the guidance states that the lobbyist ban will apply to advisory panels even if they aren’t subject to the Federal Advisory Committee Act (FACA), and will also extend to subcommittees and workgroups. However, we also recommended that OMB include a provision allowing agencies to waive the ban in cases where qualified committee members and their employers have no pecuniary interest in the committee’s work. We are disappointed to see that the final guidance does not permit any waivers to the policy.
Even with this policy in place, POGO is concerned that industry groups will continue to dominate many advisory committees. In our 2004 report, The Politics of Contracting, we identified members of the Defense Policy Board and Defense Science Board who had ties to the top 20 federal contractors. While some of these members were registered lobbyists, others served in non-lobbyist positions such as executives, board members, and consultants. More recently, some environmental groups have raised concerns that a fracking advisory subpanel is stacked with oil and gas industry representatives, even though most of these members are not registered lobbyists. POGO's report described how "advisory board members are in a position where they may support a specific policy that would benefit their private employer. In addition, an advisory committee member has the benefit of being privy to the government's future needs and can advise his or her employer or client about likely future policies or programs."
In addition to limiting the influence of lobbyists on advisory panels, there need to be stronger rules in place to ensure that agencies are adequately screening for conflicts of interest, giving members the correct designation, and maintaining a balance of viewpoints. Along these lines, the House is currently considering legislation introduced by House Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-MD) that would require agencies to solicit public input on potential committee members, ensure that members are properly designated as representatives or special government employees (SGEs), and disclose records such as committee membership balance plans and member recusal statements. POGO strongly supports Rep. Cummings' legislation. Committee Chairman Darrell Issa (R-CA) pledged to take up the bill during the markup for another piece of legislation, the DATA Act, and we expect the Committee to vote on it soon. We hope the legislation will clear the House quickly with broad bipartisan support.
Meanwhile, the Administrative Conference of the United States (ACUS) is formulating its own recommendations on issues such as public nominations, committee balance, and public disclosure of committee ethics records.
And speaking of lobbyists, the Office of Government Ethics (OGE) recently issued a proposed rule that would prohibit all executive branch employees from accepting gifts from registered lobbyists and lobbying organizations, building on a provision in the ethics pledge for Obama political appointees.