This document discusses lobbying regulations under the Obama administration. It outlines three questions to determine if an activity constitutes lobbying, including if the communication is with a covered executive branch official and relates to policy formulation. It describes exceptions and key individuals considered covered officials. The document also summarizes increased restrictions under the Honest Leadership Act, including tougher sanctions, gift bans, and increased disclosure. It provides guidance on complying with Recovery Act and TARP fund lobbying policies. It stresses the importance of an effective compliance program to reduce legal risks and ensure lobbying activities sail through any audits.

1. BIG BROTHER: LOBBYING THE ADMINISTRATION Women in Government Relations 2009 PACs, Politics & Grassroots Conference Larry Norton Womble Carlyle Sandridge & Rice PLLC

2. 2 “I am in this race to tell corporate lobbyists that their days of setting the agenda in Washington are over.” – Barack Obama

3. AM I LOBBYING?

5. Is there an oral or written communication regarding the:

6. Formulation, modification or adoption of federal legislation

7. Formulation, modification or adoption of a federal rule, regulation, or executive order, or any program, policy or position of the U.S. government

8. Administration or execution of a federal program or policy?

9. Does the communication fall within a recognized exception to a “lobbying contact”?4

10. WHO ARE COVERED EXECUTIVE OFFICIALS? President and Vice-President Officer/Employee in Executive Office of the President Executive Schedule I-V Uniformed Services above O-7 Confidential or Policy-Making Position (Schedule C)

12. Contact required by subpoena, or otherwise compelled by statute or regulation

13. Administrative requests - status inquiry, request for meeting

14. Written comments in response to Federal Register notice; or on the record in a public proceeding; or in compliance with agency procedures regarding a formal adjudication6

16. More disclosure, more often

17. Sarbanes-Oxley type certification

18. Random audits of LDA filings

21. Restricts gifts from registered lobbyists and lobbyist-employers

22. Eliminates $20/$50 exception and free attendance at widely-attended events

23. Limited exceptions – refreshments, greeting cards, others9

24. RECOVERY ACT FUNDING 10

26. Anyone from outside government may say anything at widely-attended gatherings

27. No oral communication from anyone outside government following submission of formal application for competitive grant

28. Oral communications by LDA-registered lobbyist, on behalf of client for whom he or she is registered, must be disclosed on agency website w/in 3 days

30. OMB policy does not apply to contacts with members or staff of Congress

31. No documentation and disclosure required for contacts by non-registered employees of a company or firm that employs lobbyists

32. Grassroots lobbying – Not subject to OMB policy, but expenses may be reportable12

33. OMB POLICY DOES NOT OVERRIDE OTHER DISCLOSURE OBLIGATIONS Communications with covered executive or legislative branch officials are subject to LDA reporting, and disclosure rules of agency Byrd Amendment – requires disclosure of communications by LDA-registered lobbyists on behalf of clients if related to federal contracts and grants (OMB Form LLL) 13

35. Oral communication ban runs through “preliminary approval” of application

36. Prohibits communications from Members of Congress

37. No exception for communications from state/local officials

38. Treasury must post written communications from applicants or their representatives (disclosure not limited to LDA lobbyists)14

39. RISK MANAGEMENT 15 An effective and ongoing compliance program will greatly reduce the risk that your lobbying will create legal liability and undermine your objectives and reputation.

40. . . . AND ENSURE THAT YOU SAIL THROUGH AN AUDIT 16

42. Train employees to spot issues and raise questions

43. Track lobbying expenses and reportable disbursements

44. Institute system for pre-approving contacts with covered officials and covered expenses; and disbursements that may constitute gifts

45. Conduct legal review of LDA reports

46. LD-203 – Survey and certify17

47. REVIEW LOBBYING REPORTS Senior Legal Officer or Outside Counsel Accuracy & Completeness Back-up Support Avoid over- and under-disclosure 18

48. FINAL THOUGHTS ON COMPLIANCE The laws governing lobbying and other political activity have undergone dramatic change More change is coming Half-hearted attention to compliance can undermine the best work of your lobbying team An ounce of prevention . . . . 19

49. 20 QUESTIONS? Larry Norton Womble Carlyle Sandridge & Rice PLLC 202-857-4429 lnorton@wcsr.com