As mentioned in my last post, it is possible that the new guidelines on stimulus lobbying will apply to Members of Congress and thus prohibit agency officials, during the period that competitive grant applications are being evaluated, from engaging in oral communications with Members and their staffs about the applications. (This thought was suggested by Senate staffer Tom Jones on the google group of the Open House Project). As a policy matter, this would make sense because using congressional influence would be an obvious way for applicants to try to affect the award of stimulus funding. This is particularly true if applicants are limited in their ability to approach agency officials directly.
Enforcing such a limitation on Members of Congress and congressional staff, however, is tricky. As a practical matter, it is difficult for agency officials to refuse to take meetings with Members and staff, or to demand that the subject matter of such meetings be limited. Even if there were a prior agreement to respect the restrictions of the executive branch rules, it would be relatively easy to circumvent them. As in, “I know that I am not allowed to talk to you about my constituent’s excellent grant application, but I just wanted you to know that I will be very disappointed if it is not approved.”
Moreover, it is unlikely that congressional actors would suffer any consequences even if they were to blatantly violate the executive branch rules. Although the House and Senate Ethics Manuals warn Members that certain types of administrative proceedings do not permit ex parte communications with agency officials, they stop short of suggesting that such communications would violate congressional rules or result in disciplinary action. In fact, as the Senate Ethics Manual points out, “neither the Senate, nor the House, has to date, disciplined a Member solely because of that Member’s intervention with an executive agency.” (This statement must now be qualified by the fact of the Senate Ethics Committee’s admonishment of Senator Domenici, but it is doubtful that this precedent would be applied in the absence of aggravating circumstances beyond merely providing assistance to a constituent).
So how can the administration ensure that Members of Congress do not undermine the intended effect of the stimulus lobbying restrictions? One possibility would be to require agency officials to publish information about stimulus-related contacts by Members of Congress, just as they are required to do with respect to contacts by registered lobbyists. The published information could identify instances where Members or congressional staff sought to communicate about specific grant applications in violation of the executive branch rules. Such disclosure might deter congressional attempts to circumvent the rules or, at a minimum, would alert competitors to the tactics being used in order to win grant proposals.