Free Markets, Free People

“Transparancy” Apparently Trumps The 1st Amendment

From the White House Blog in an entry written by Norm Eisen, special counsel to the president for ethics and government reform in “the spirit of transparancy”:

… [T]he President’s March 20, 2009 Memorandum on Ensuring Responsible Spending of Recovery Act Funds. Section 3 of the Memorandum required all oral communications between federally registered lobbyists and government officials concerning Recovery Act policy to be disclosed on the Internet; barred registered lobbyists from having oral communications with government officials about specific Recovery Act projects or applications and instead required those communications to be in writing; and also required those written communications to be posted on the Internet.

However, a couple of changes have been made, among them:

First, we will expand the restriction on oral communications to cover all persons, not just federally registered lobbyists. For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process. We concluded this was necessary under the unique circumstances of the stimulus program.

So thinking this through, could “anyone” include a TV or print reporter asking an oral question to a government official concerning Recovery Ac Policy? Or a particular Recovery Act project that might impact their viewership or readership? Is it possible the information provided, if government officials are subjected to such oral scrutiny, might end up “exerting influence on the process”?

How about a concerned citizen who happens to be a blogger?

Doesn’t this give government officials the cover to duck such oral inquiries?  How does that enhance transparency?

And ultimately, doesn’t this smack of a wee bit of a conflict with the 1st Amendment (free speech, free press, the right to petition government)?

And if “the unique circumstances of the stimulus program” are enough to limit 1st Amendment rights, per this paragon of “ethics and government reform, what other “unique circumstances” might be cited in the future to do the same sort of thing, given the precedent this sets?

As Mark Tapscott says:

This is the Camel’s nose under the tent, being poked because of special circumstances.

Carter Wood notes:

“Lobbyists and organizations that lobby complained that the White House’s restrictions on lobbying on stimulus fund projects were discriminatory and unfair because the same restrictions didn’t apply to people like corporate executives or officials. So these memorandumly noted changes address that fairness issue by expanding the ban on orally petitioning the government or expressing one’s views through speech. In the interests of transparency the First Amendment must be sacrificed.

“The restrictions are also ambiguous enough that a lobbyist or other petitioner won’t be sure how to fully comply. So if someone runs afoul of White House officials, a phone call to a news outlet or a friendly prosecutor can punish the offender. Ambiguous rules plus capricious application equals negative rule of law.”

The only transparency in this process is the fact that the White House is telling you the rule. But the rule then precludes oral questioning which might make the process even more transparent. If even the remote possibility exists that such communication might “exert influence on the process” then it is prohibited.

The White House’s apparent intent is to run a transparent process. The result is overreaching by the executive branch with poorly thought through restrictions on speech that are seemingly unconstitutional. The problem is they obviously don’t feel that to be the case. Or if they do, they think they should have the right to restrict certain forms of communication between government and anyone they decide if “unique circumstances” are existent (guess who get’s to determine whether they are or not?).

Frankly that should bother you.

However, fear not – I’m sure those that continually cited the Bush administration for alleged expansion of executive power will be among the first to address this obvious abuse of Constitutional power and call for an immediate revocation of the rule.


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11 Responses to “Transparancy” Apparently Trumps The 1st Amendment

  • as well as anyone else exerting influence on the process

    “I’m sorry Senator Schumer, but you’ll have to submit that request in writing so it can be published on the internet.”

    Sure, like that’s gonna happen.

    OTOH, I’m less concerned about the 1st Amendment argument.  Since when has the government been required to allow an oral petition to address a greivance?  It is more common than not for you to have to submit a complaint about the action of almost any government agency in writing.  Isn’t this basically just requiring anyone who wants to lobby for some of the RA cash to submit the request in writing?

    Or since when has the government been required to allow you to bend the ear of a particular person as part of free speech?  If you think you’ve come up some wonderful way to acheive peace in the Middle East, is the State Dept.  required to put Hillary on the phone?  Or put Petraeus on the phone when you’re pissed about the conduct of the warin Afghanistan?

    • Given the 1st Amendment, when has it been the government’s job to decide what is an acceptable means of petitioning the government or placing limits on the types of speech appropriate for questioning government processes?

      • As long as I have been alive.  As long as the government doesn’t place an undue burden on your ability to petition for redress of greivances, it can designate the place, person, and the procedure for applying for such redress. How does requiring you to submit it in writing place an undue burden?
        (Besides, applying for RA cash isn’t a “petition for redress of greivances,”  so this isn’t really a 1st Amendment issue with repect to that).

        As far as free speech is concerned, how are they taking away your right to free speech?  Since when does your free speech right cover talking to a particular person, whether that person is in government or not, on a particular topic at the time of your convenience?  Once again, if you are pissed that Geithner is destroying the economy and decide that he needs to have a lecture on money supply, does the Treasury have to put him on the phone when you call?  If not, how would a phone call to tell him how to disburse the RA funds any different?

        • Sorry, that last sentence should read:

          “If not, how would a phone call to tell him how to disburse the RA funds be any different?”

        • Since when does your free speech right cover talking to a particular person, whether that person is in government or not, on a particular topic at the time of your convenience?

          Like Steverino said, since the ratification of the Constitution and Bill of Rights, specifically, the 1st Amendment.

          You do recall that the government works for us, right? And that the Bill of Rights restricts government, not the people, correct?

          • This is a restriction on government.  As I understand it, the lobbyist, registered or unregistered, is not the one responsible for filling out the forms and posting the information to the internet after a communication on spending the RA lucre has occurred.  If the the proper forms are not filled out and the information posted, it is the government official who failed to follow procedure that gets in trouble.  AFAICT, the the lobbyist doesn’t face any type of penalty.

            Basically, this is just the boss telling his employees not to listen if anyone attempts to engage in any informal lobbying.  How is this not legitimate?  How does this “silence” anyone?

        • (Besides, applying for RA cash isn’t a “petition for redress of greivances,” so this isn’t really a 1st Amendment issue with repect to that).

          I think my objection went quite a bit deeper than only petitioning the government.

          • Yes, I understand that.  My response deals with the different 1st Amendment issues seperately.  I make this argument because your post specifically mentions petition as a 1st Amendment issue and the 1st Amendment specifically refers to “petition for redress of greivances,” not some larger issue of communication with government.

    • Or since when has the government been required to allow you to bend the ear of a particular person as part of free speech? 

      Pretty much since the Bill of Rights was ratified, since the government stopping you from bending someone’s ear would be the very definition of an abridgement of the freedom of speech.  The person whose ear you wish to bend isn’t forced to listen to you, but the government can’t dictate those to whom you are allowed to speak.

      • As I noted while responding to McQ above, the memo requires the government official to not listen to informal lobbying concerning “particular projects, applications, or applicants for funding” under the RA.  Seems to me that this fits your definition of the proper exercise of free speech.

  • So does this mean when Michelle talks political issues over with Baracky, she’s in violation?


    Lets get her in jail ASAP