On March 20, 2009, the Obama Administration issued a Memorandum concerning the ongoing distribution of funds from the recently enacted stimulus bill, the American Recovery and Reinvestment Act of 2009 ("ARRA") (Public Law 111-5). As noted in prior updates, it is the intent of both the Administration and Congress to ensure that the funds appropriated under ARRA are distributed based on merit alone, and this Memorandum details requirements for executive departments and agencies in order to ensure this happens.

While many of the requirements of the Memorandum do not differ from what the President and congressional leaders have previously indicated, special attention needs to be given to Section 3 of the Memorandum, which places unique limitations on communications between the executive branch and those registered as lobbyists under the Lobbying Disclosure Act of 1995 (2 U.S.C. 1601). A discussion of these limitations follows. 

In addition, the Memorandum can be found here, and Section 3 is also copied verbatim at the end of this update.

Discussion of the lobbyists' limitations in the President's Memorandum pertaining to stimulus funds:

  • No telephonic or in-person contact by a registered lobbyist allowed on behalf of particular projects, applications, or applications for funding. Section 3(b) prohibits those registered as lobbyists from meeting directly or talking over the telephone with an executive department or agency official regarding specific projects, applications, or applications for funding. Lobbyists may only contact executive departments or agency officials in writing.
  • All written contact from a registered lobbyist to an executive department or federal agency will be placed on the website "Recovery.gov". Section 3(c) requires that all written contact from a registered lobbyist to an executive department or federal agency be placed on the website "Recovery.gov".
  • Oral contacts from a registered lobbyist to an executive department or agency that are of a general nature are allowable, but will be subsequently documented on the website "Recovery.gov". Section 3(d) makes clear that registered lobbyists are allowed to contact, by phone or in person, an executive department or federal agency with questions that are of a general nature (i.e., not project-specific). However, the official contacted must immediately thereafter document the conversation in writing and place same on the website "Recovery.gov".

Limitations apply only to grant funding, not for tax credits. These limitations only apply to lobbying for grants funded under ARRA, not for tax credits.

Also, the Director of the Office of Management and Budget (OMB) is required under the Memorandum to issue guidance to agencies for compliance. Additionally, a copy shall be published in the Federal Register.

What is a "registered lobbyist" as defined by the Lobbying Disclosure Act of 1995?

The Lobbyist Disclosure Act of 1995 requires those that meet threshold requirements for lobbying contacts with either the Executive Branch or Congress to register as lobbyists and file quarterly reports documenting their lobbying activities. In general, there are three threshold requirements: (1) more than one contact with an Executive or Legislative Branch official; (2) more than 20 percent of time for a client spent on lobbying activities in any given quarter; and (3) more than $3,000 billed for those lobbying activities in that quarter.

Conclusion

The lobbying limitations have caused concern among those interest groups following the distribution of stimulus funds under ARRA. Already, groups such as the American League of Lobbyists have announced their opposition. Reed Smith's Public Policy & Infrastructure Practice will continue to follow all developments related to the implementation of these restrictions, and will provide additional updates, as warranted.