A Washington that is More Reflective of All of America

Just a quick post to report on a meeting today with a group of lobbyists and others who currently chair Industry Trade Advisory Committees (ITACs). The group had objected to the Administration's new policies barring the appointment (and reappointment) of federally registered lobbyists to agency boards and commissions. Although we have previously addressed their views here and here, we feel it important to meet with those with whom we disagree to discuss their concerns face to face. Much of the discussion focused on the arguments offered in the letter the group sent us (pdf) and our response letter (pdf). Click here (pdf) for the list of attendees.

We explained to the ITAC chairs that this issue is not about the few corrupt lobbyists or specific abuses by the profession, but rather concerns the system as a whole. For too long, lobbyists and those who can afford their services have held disproportionate influence over national policy making. The purpose of the President’s agenda to change the way business is done in Washington is to level the playing field to make sure that all Americans and not just those with access to money or power are able to have their voices heard and their concerns addressed by Washington.

We explained that in deciding to limit the ability of lobbyists to serve in government positions, including as members of agency advisory boards and commissions, we considered various arguments and counterarguments. We weighed the options, and considered the alternatives. In the end, we decided that while lobbyists have a right to petition the government, it would best serve the interests of a fairer and more representative democracy if we limited their ability to do so from special positions of privileged access within the government.

The result will be a Washington that is more reflective of all of America. We have already begun the process of recruiting new voices to advise the government through these agency boards. We believe small- and medium-sized business owners will be excited by the opportunity to help serve their country and advocate for their interests.

To make it even easier for those with valuable insight and expertise to offer to join this process from outside the Beltway, the Administration is working to develop tools to utilize internet technologies to make federal advisory committee proceedings accessible online. For example, the most recent meeting of the President's Council of Advisors on Science and Technology (PCAST) was watched online by 5000 people. This Administration is committed to seeking out those voices and bringing the change they represent into the decision making process in Washington.

We explained this to the ITAC chairs and asked for their help in reaching out to broaden and diversify these boards and commissions. We informed them that while we will always seek ways to improve good policies, we do not intend to rescind this decision. The ITAC chairs, although expressing their disagreement, are willing to assist in finding qualified replacements and we thank them for their commitment to working together to make the system work better for everyone.

Finally, we also replied to a letter from the American League of Lobbyists on this subject today-ALL's letter is here (pdf) and our reply is here (pdf).

Quote:

http://www.whitehouse.gov/files/documents/10-09-Letter-to-WH-Advisory-Committees.pdf

October 28, 2009

President Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500

Mr. President:

We are writing on behalf of the American League of Lobbyists in response to a September 23, 2009
posting on the White House Blog by Norm Eisen, Special Counsel to the President for Ethics and
Government Reform, entitled “Lobbyists on Agency Boards and Commissions.”

In a meeting of the ALL Board of Directors held on October 19, a unanimous vote was taken to express
our organization’s concern with Mr. Eisen’s pronouncement that your administration will be better served
by precluding industry experts from serving on Federal advisory groups simply because they are legally
required to comply with provisions contained in the Lobbying Disclosure Act of 1995 (Public Law 110-
81, as amended, or “LDA”).

While developing this letter, ALL received a copy of correspondence to your office dated October 19 and
signed by each of the sixteen people who chair various Industry Trade Advisory Committees created
pursuant to section 135(c)(2) of the1974 Trade Act (Public Law 93-618). We are also in receipt of Mr.
Eisen’s October 21 reply to the ITAC Chairs.

With regard to the September 23 blog posting and his October 21 reply to the ITAC Chairs, we take
exception to Mr. Eisen’s efforts to paint all LDA registrants with the same broad brush and demonize our
profession. In addition, by taking the steps outlined in both of these communications, we are specifically
concerned that your administration will deprive career public officials of the knowledge, perspective, and
insight offered voluntarily and free of charge from many of the industry experts who will be precluded
from serving as formal advisors under this policy, due solely to their LDA status.

As you know, there is a broad array of formal advisory groups comprised of individuals in the private
sector who work with government officials to craft public policy in the United States. Private sector
participants to these advisory bodies are often sought by government officials based on the knowledge
and expertise in specific policy areas that these individuals possess.

With regard to the ITACs, for instance, many of the advisors who serve on these committees are trade
association representatives who work for organizations that have limited resources, and cannot afford to
employ one person who is solely responsible for representing industry interests before Congress and
another who is responsible for ITAC participation.

President Barack Obama
October 28, 2009
Page Two

In such cases, and there are many, the irony is that trade association officials typically spend a large part
of their careers developing unique and invaluable knowledge related to their specific industries, and often
are called upon to craft consensus positions on issues which are contentious to various members within
their industries. Many times it is this particular expertise that is most valuable to government officials
who specifically seek trade association representatives to serve as formal advisors.

Indeed, far from using this expertise to “...traffic in relationships, working both the Congress and the
federal agencies to bend legislation and policies on behalf of their clients,” as Mr. Eisen characterizes,
association representatives who participate in federal advisory panels – and also happen to be LDA
registrants – volunteer their knowledge and insight from a macro perspective which, time and time again,
has been invaluable to career government officials who also participate in the formal advisory process.

Many of the 130 ITAC advisors who are directly impacted by this pronouncement, in fact, do not
represent individual “clients” at all, nor do they “bend” public policy by offering their insights and
knowledge for consideration by government decision makers.

Similarly, Mr. Eisen’s statement to the ITAC chairs that, “Your arguments that only lobbyists can bring
the requisite experience to provide wise counsel, or that reaching beyond the roster of industry lobbyists
for appointments will result in a ‘lack of diversity,’ are unconvincing on their face,” is off point and
inflammatory.

In their correspondence, the ITAC Chairs never claimed that LDA registrants are uniquely capable of
providing “wise counsel,” nor did they indicate it would be imprudent for your administration to look
beyond the current roster of advisors for additional insight, knowledge, and perspective. Quite the
contrary, the primary point made by the ITAC Chairs is that certain advisors are well recognized for their
expertise on U.S. and global trade policies and have developed, in some cases, decades of experience in
their particular fields. Nevertheless, under this nascent policy declaration these experts will be deprived
from serving as formal advisors for no other reason than the fact that they are also LDA registrants.

Likewise, Mr. Eisen’s statement, “We believe the [ITACs] will benefit from an influx of businesspeople,
consumers and other concerned Americans who can bring fresh perspectives and new insights to the work
of government” is completely irrelevant to the issue. Simply stated, if your administration believes a
broader perspective should be applied to formal advisory processes because it will improve development
of U.S. public policy, that belief does not justify excluding industry professionals from serving on the
same panels due to the fact that they are legally required to register under the LDA.

Looking at the same position in another light, the question becomes: If a businessperson, consumer, or
other concerned American is in a position to offer learned, knowledgeable, and reliable advice to
government officials who are responsible for crafting U.S. public policy for your administration,
shouldn’t those same individuals be able to dedicate at least 20 percent of their time offering the same
insights and perspective to the United States Congress?

Finally, ALL is concerned that Mr. Eisen’s October 23 letter ignores the very legitimate point made by
the ITAC Chairs regarding the lack of process associated with this sweeping policy change. That is,
instead of offering some preliminary signal that this shift in long-standing policy was being contemplated
and/or

President Barack Obama
October 28, 2009
Page Three

inviting debate on such a drastic change, it was delivered, seemingly fully formed and final, as a blog
posting by Mr. Eisen.

In a timeline noted by the ITAC Chairs – and ignored by Mr. Eisen in his reply – the pronouncement that
LDA registrants cannot serve on any advisory panel came well after the September 11 deadline for each
ITAC members to indicate whether they intended to seek reappointment as part of the regular re-
chartering process, and those who met this deadline were given no indication that they would be excluded
from service based on their LDA status. In essence, therefore, ITAC members never got the chance to
alter or discontinue their activities on Capitol Hill such that they might not continue to be subject to LDA
requirements.

This move seems inconsistent with Constitutional principles that people should not be punished for
engaging in activities that were not actionable prior to new rules being put into place, and does not seem
to be in keeping with other Democratic principles on which you have based your administration. To
some, in fact, this move could be seen as arbitrary, discriminatory, and/or generally unfair.

For all these reasons, we urge you to adjust this position so that individuals who serve on Federal
advisory groups are not precluded from service based solely upon their LDA status. At the very least, we
would also urge you to delay implementation of such policy so that current members of formal advisory
groups have an opportunity to examine whether they are in a position to legitimately remove themselves
from LDA registration requirements.

Most respectfully yours,

David G. Wenhold, PLC, CAE
President

Peter G. Mayberry
ALL Board of Directors
Former Member, ITAC 13 – Textiles & Clothing

cc: Rahm Emanuel, Chief of Staff, Executive Office of the President
Norm Eisen, Special Counsel to the President for Ethics and Government Reform

Quote:

http://www.whitehouse.gov/files/documents/2009/november/ALL-response-letter.pdf

THE WHITE HOUSE
WASHINGTON
November 9, 2009
David G. Wenhold, PLC, CAE, President
Peter G. Mayberry, ALL Board of Directors
American League of Lobbyists
P.o. Box 30005
Alexandria, VA 22310

Dear Messrs. Wenhold and Mayberry:
I am writing to respond to the American League of Lobbyists’ letter objecting to the
Administration’s measures to restrict lobbyists from serving on federal boards and commissions.
As you know, the President feels strongly that the way business has been done in Washington in
recent years needs to change. Restricting lobbyists who advocate for special interests from
privileged positions within government is the most recent step that the Administration has taken
to implement that change.
While we appreciate your thoughts, you do not address the main point of our October 21 letter:
that it’s the system as a whole that concerns us. As we previously noted, lobbyists for major
special interests have in recent years wielded extraordinary power in this town. The result has
been a national agenda too often skewed in favor of the interests that can afford their services.
Today, for example, major banks are spending tens of millions of dollars on lobbyists whose
mission it is to gut meaningful financial reforms, despite the blatant industry abuses that have led
to worst economic crisis in generations. The insurance industry has unleashed its army of
lobbyists to try and frustrate health insurance reform and keep in place a system that works better
for them than the American people. And the oil and gas companies are lobbying furiously to
frustrate reforms that will put America on the path of leadership in clean, home-grown,
renewable energy.
Candidly, we were disappointed that you do not address that fundamental systemic problem or
offer any solution to it.
Let me tum now to each of the points you did address. First, we do not believe that the
Administration’s actions will “deprive career public officials of the knowledge, perspective and
insight” offered by lobbyists. Should members of the Administration wish to hear from anyone
affected by this policy, they are free to call on such individuals for testimony or input. What the
policy restricts is giving these lobbyists a government position at the same time they are
initiating their own separate contacts with the government to advocate for the positions of the
special interests they represent.
Second, we respectfully disagree that the timing of our announcement and the subsequent agency
actions resulted in any unfair or ex post facto penalty to your members. We announced this at
the same time to everyone, lobbyist or not. Service on these boards is a privileged position of
public trust and it would be inappropriate for anyone to have any special entitlement to serve on
them.
Third, your contention that the board members who this policy will affect are experts who
merely “happen to be” lobbyists sidesteps long-standing national concerns focusing on members
of the lobbying profession. The American people, through Congress, began applying special
rules to lobbyists in 1876. The United States Supreme Court has treated lobbyists differently
from other experts and public servants since 1954, when it upheld special restrictions for
lobbyists, recognizing that “[0 ]therwise, the voice of the people may all too easily be drowned
out by the voice of special interest groups seeking favored treatment while masquerading as
proponents ofthe public weal.” Since then, numerous courts have upheld differential treatment
for lobbyists based on the widely-held recognition that their profession poses the potential for
risk to the public interest.
Finally, we wish to be clear that it is not our intent to “demonize [y]our profession.” As we have
said before, we have no doubt that many of the lobbyists on federal advisory boards bring great
knowledge to those panels - but their participation also puts them in a unique position to
influence policy on behalf of their individual clients.
Our view is not that lobbyists should be limited from advocating for their clients - just that they
should not do so while at the same time holding positions within the government. We believe
that the revolving door that has for too long characterized Washington policy-making should be
closed and that all reasonable steps should be taken to assure the American people that the
system is working fairly for all.

Sincerely,
Norman L. Eisen
Special Counsel to the President

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