Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
There’s an old saying that “the road to hell is paved with good intentions.”
Add to that — courtesy of a March 20 Obama administration directive — “… and marked with the occasional constitutional pothole.”
The White House directive attempts to limit the influence lobbyists have on decisions about the distribution of economic stimulus billions. The goal is to prevent improper influence on officials in charge of doling out the unprecedented funding for federal, state and local projects.
That’s the “good intentions” part: prevent waste, fraud and abuse. And as a theory it’s hard to argue with. But here comes the pothole, courtesy of the First Amendment.
In pursuit of fair and open decisions, President Barack Obama has gone beyond setting rules and guidelines for federal officials. The administration is telling registered lobbyists that they may not speak with those officials about any specific project or proposal.
So, you may ask, what’s wrong with that? Well, how about disregard for the right to “petition the Government for a redress of grievances”?
You’re forgiven if that particular part of the 45 words of the First Amendment doesn’t immediately come to mind — no more than 3% of Americans have been able to name the right of petition in the annual State of the First Amendment survey since it began in 1997.
But that doesn’t make petition any less effective or guaranteed than the other four freedoms in the amendment: religion, speech, press and assembly. And lest we forget, “petition” describes the act of asking the government to address a problem, of suggesting solutions or of seeking assistance from government — in short, lobbying.
The Obama memo has laudable goals: in its words, preventing the stimulus funds from being spent “on the basis of factors other than the merits” or as a result of “improper influence or pressure.” But as so often must be done, good intentions that turn into action by government need to be weighed against not-so-incidental effects in other areas.
Consider campaign-contribution reform, where our right to express support for candidates and speak out on issues is balanced against the need for fair elections, where money isn’t the overwhelming influence. Consider the inherent tension between fair-trial and free-press considerations, where the needs of the legal system for impartiality and objectivity may collide with the public’s right to know and, in a criminal trial, a defendant’s need for an open process to protect against a return to Star Chamber tactics — detention-and-conviction in secrecy.
Adding to frustration over the administration’s lobbying directive is a not-so-small loophole: The rules apply only to registered lobbyists — that is, to those who spend more than 20% of their time working congressional hallways. It’s certainly not a stretch of the mind to imagine a realignment of time spent between legislative and bureaucratic visits, in order to opt out of registration. Suddenly we have less accountability and tracking of who is speaking to whom, not more.
There is a solution that not only avoids this constitutional “pothole” but resonates well with First Amendment freedoms — and it’s already contained within the Obama order: transparency. Officials already are required by the directive, within a relatively short time, to report written or general contact with lobbyists in which stimulus funds are discussed. Those reports are to be posted on the stimulus-focused Web site, Recovery.gov.
Drop the restrictions on what citizens may say via a hired representative, and encourage ordinary citizens to speak out themselves. Stick to regulating the actions of government employees, certainly within presidential powers. Provide both the opportunity and reality of more information to citizens and taxpayers about any direct contact. We might just encourage more discussion and debate about solutions to our economic mess.
In the Era of the Internet, all of that is possible — and instantly accessible — and it just might have a positive side-effect of its own: a little extra stimulus to a First Amendment freedom that, as a nation, we least often can recall.
Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].
Groups ask White House to rescind stimulus-lobbying ban
Critics of policy say it violates lobbyists’ free speech and still allows others seeking money from economic package to access administration officials. 04.02.09