On March 20, 2009, President Obama issued a Memorandum to all Executive Departments and Agencies that substantially affects the ability of federal lobbyists to communicate with the Departments and Agencies about the "American Recovery and Reinvestment Act of 2009," Public Law 111-5 (the Recovery Act). A "lobbyist" is defined in the Lobbying Disclosure Act (LDA).
The substance of the lobbyist-related portion of the Memorandum follows below. Note that the Memorandum does not apply to the tax-related provisions of Division B of the Recovery Act. Moreover, the Memorandum does not apply to non-lobbyist employees of lobbyist employers, but, if a non-lobbyist employee spends more than 20% of his or her time in a three-month period engaged in communications with Departments and Agencies about the Recovery Act (and preparation for such meetings and related activities), the employee may become a lobbyist under the LDA.
1. An Executive Department or Agency may not consider the view of lobbyists concerning "particular projects, applications, or applicants for funding under the Recovery Act" UNLESS such views are in WRITING.
2. A Department or Agency must post to its recovery website any WRITTEN comments from lobbyists "concerning the commitment, obligation, or expenditure of funds under the Recovery Act for particular projects, applications, or applicants" within three business days of receipt.
3. Departments and Agencies must refuse to meet with or talk on the telephone with lobbyists about "particular projects, applications, and applicants for funding under the Recovery Act" and must screen such lobbyists out of all such meetings and telephone calls.
4. Lobbyists may communicate orally with a Department or Agency about general Recovery Act issues, but only if the following are true:
- The oral communications do not "extend to or touch upon particular projects, applications, or applicants for funding;"
- A Department or Agency official reduces the following to writing:
- The date and time of the contact on policy issues;
- The names of the lobbyists and officials participating in the discussion; and
- A short description of the substance of the communication; and
- The Department or Agency posts the writing to its recovery website within three business days of the communication.
In the Memorandum, the President has instructed the Director of the OMB to provide guidance to the heads of Departments and Agencies. The Director of OMB also is required to provide a review of the implementation of the Memorandum, including any recommendations for modifications or revisions, to the President within 60 days.