Beware of trade associations bearing gifts?

Any suggestions?

The distinction drawn by the OGE between trade associations and non-profit groups has been questioned by some supporters of the proposed rule, though for reasons very different from the challenges posed by opponents. “There are many examples of groups that purport to be acting for educational purposes but that have strong ties to industry groups, and that would not be covered by this rule,” said Michael Smallberg, an investigator at the Project on Government Oversight, a watchdog group. Some professional organizations that employ lobbyists, such as the American Medical Association or the American Bar Association, might be considered “learned societies,” and thus exempted from the rule.

“These lines are not so easy to draw,” Smallberg said. “We have urged [the OGE] to go farther and not provide these exemptions for other organizations.”

When Corey Henry of the American Frozen Foods Institute was asked whether his concern about the distinction would be satisfied if the OGE extended the restrictions to all organizations, however, he said, “Our position is that the best course of action is for them to remove the rule.”

But does he acknowledge that there are real issues with gift-giving and soft lobbying that should be addressed?

“It is not our place to say whether there is a problem,” he said. “It is incumbent on OGE to determine whether there is a problem, and if so, to find a suitable way to deal with it. Our position is that this rule is not suitable.”

Clarke said that he agreed with the OGE that free invitations to certain events, such as “gala balls and Christmas parties,” provide grounds for some concern, but when asked how he would suggest that the rule be modified, he said, “Right now our focus is on the rule that they’ve proposed, and my message is that this rule would totally isolate the federal workforce.”

A small battle in a larger war

Many other channels of communication with the government would remain open to trade associations, however. The proposed rule does nothing to limit direct lobbying, for example, nor does it impede the ability of groups to make their views known through telephone calls and written comments.

When Clarke was asked why these channels of communication, which are also open to the general public, were insufficient for trade associations to inform the government of their views, he said, “We have found that face to face meetings are the most effective ways, and it can be difficult to get those meetings.”

But federal employees would still be allowed under the new rule to seek out the advice of the private sector. They would still be able to accept free attendance to events at which they were participating meaningfully in a professional capacity, and nothing in the proposed rule would limit the ability of federal employees to attend any events, as long as they pay their own way. “If an agency feels that attending an event would be beneficial in a professional capacity, then I expect they would be willing to pay for admission to the event,” Holman said.

When Remapping Debate pointed this out to Clarke, he said, “The way the budgets are now, even if they could pay for themselves, I don’t think their supervisors would let them.”

According to Howard Marlowe, the president of the lobbying firm Marlowe & Company and the president of the American League of Lobbyists, however, the channels of communication that would remain open — including calling and meeting with federal employees, writing letters, and offering public comment in writing or at hearings — offer ample opportunity for lobbyists and industry groups to make their views known.

Marlowe had a different concern: the fact that the rule would apply only to registered lobbyists, not to informal lobbyists.

“So all I would have to do is deregister. There are loopholes all over the place,” he said, citing as an example a provision that allows someone to spend up to 20 percent of their time lobbying before they must register as a lobbyist. “I’m sure a lot of members of the League would disagree with me, but I think that if we can’t give a reduced rate to government employees for attending our conferences, that’s fine, that’s totally appropriate. All I would urge is that the government close those loopholes so the lobbying does not go underground.”

Holman agreed that the government should extend its definition of a lobbyist, but said that that action, too, would likely elicit a fierce response from the private sector.

“Every time we have tightened the ethics rules, the opposition has been ferocious,” he said. “The scale of the response is a measure of how important these gifts are to these groups.”

A number of advocates for the rule point out that the proposed standards are more lenient in regards to lobbyists’ gifts than the ethics standards adopted by the legislative branch in 2007. And, while the OGE could have extended a blanket ban on gifts from lobbyists that currently applies to politically appointed employees — part of an executive order issued by President Obama in 2009 — to all employees, it instead took a narrower course.

For Michael Smallberg of the Project on Government Oversight, the rule is a step, albeit a relatively small one, towards the transparency and accountability the Obama Administration has promised it will bring to the federal government.

“This is one small battle in a larger war,” he said.