Austin Lobbying Reform and Opposition to It

Considering that it reflects a typical approach to lobbying, it is valuable to look at the language of a resolution to improve Austin's lobbying oversight program (attached; see below). It is also valuable to consider the opposition to this resolution by a coalition of local architects, engineers, and contractors, according to an article in the Austin Monitor this week.

Here's the most basic language in the resolution, which appears in its statement of principles:

WHEREAS, individuals should be required to register and report as lobbyists in Austin who satisfy all of these criteria: 1) they are compensated; 2) over a specified minimum threshold amount ($2,000 per quarter); 3) to influence; 4) through direct communications: 5) a city employee; 6) on a discretionary; 7) municipal matter.

Who Would Be Excluded from Lobbying Disclosure and Oversight
Below is my estimation of those lobbyists who would be excluded from disclosure and oversight if this language were followed in the final lobbying code:

1. Anyone who isn't paid specifically to lobby, including all corporate executives and many employees of, for example, contractors, developers, licensees, and grantees; board members and other members of professional and business associations; most employees of and volunteers for nonprofits (including those who seek contracts, permits, and grants from the Austin government); and most professionals who lobby as part of their professional work (including some lawyers, engineers, and architects).

2. Anyone who isn't paid $2,000 for at least one quarter specifically for lobbying, which is 20 hours at $100 an hour, a substantial amount of lobbying at the local level (the current threshold is $200 a quarter).

4. Anyone who lobbies through indirect communications, including those who set up or advise a lobbying coalition or grassroots organization, or provide lobbying advice to anyone seeking special government benefits (however, another part of the resolution appears to add communicating through "intermediaries," although it's not clear whether this just means a lobbyist's employees or agents. In any event, the definition of "lobbying" in Austin's code already has the language "directly or indirectly").

5. Anyone who seeks to influence someone who is not "within the scope of city personnel," which would include candidates, advisers, independent agency employees, and public-private agency employees. The resolution does, however, expand the definition of "city employee" to include "consultants, agents and representatives." This is a good thing. Lobbying of these individuals is too often left out of a lobbying code.

7. Anyone who lobbies a municipal official regarding county, state, or federal matters. Local officials spend a great deal of time applying and lobbying for grants, loans, subsidies, approvals, and legislation at higher levels of government that lead to important benefits for certain local companies and organizations, This sort of lobbying otherwise falls between the cracks, because the higher levels of government have no jurisdiction over matter that do not directly involve their own officials.

The Misguided Opposition of Contractors, Engineers, and Architects
For an instance of lobbying reform, this resolution leaves a lot of lobbyists and lobbying out of the city's disclosure requirements. And yet the coalition of contractors, engineers, and architects is complaining, because their members engage in a lot of communications that do not constitute lobbying, at least in their eyes. The fact is that many lobbying codes do make a specific exclusion for architects and engineers, as if they purely spoke about technical matters. The fact is that they often seek to influence contract specifications as well as other contract matters, including change orders and extensions, and the land use permit process. Especially at the local level, lobbyists are not hired guns or in-house government relations staff who do nothing but lobbying. Lobbying is done by business owners and executives as well as by ordinary employees and professionals. It is unfair to companies and organizations that do have specialized lobbyists to have different requirements for competitors who do not. Lobbying needs to be consistently transparent, no matter who does it.

Since Austin's lobbying code limits "lobbying" to the lobbying of those with discretion, and "municipal questions" to discretionary matters, as the resolution itself says, this "excludes the non-discretionary day-to-day, routine application, administration, and execution of city programs and policies such as routine, non-discretionary permitting and design approval matters in connection with a specific project or development." In other words, communication with municipal employees regarding routine matters does not constitute lobbying. Only when communications involve attempts to influence discretionary matters is an architect, engineer, or contractor employee required to register as a lobbyist.

Under the new Austin lobbying code, they would have to be paid at least $2,000 in a quarter for this to be required, which is highly unlikely. I think this limit is far too high. It would do exactly what the coalition wants:  keep lobbying by contractors and developers and their employees and professionals hidden from the public.

Sitting on Land Use Commissions
It turns out that a great concern of the coalition is that, as lobbyists, its members would not be allowed to sit on land use commissions. But whether they lobby or not, they shouldn't be sitting on these commissions anyway, unless they are rarely involved in land use matters in the city or county. The rare involvement can be cured by withdrawal from participation. But even occasional involvement means that they can benefit from their decisions. Even if they do not benefit directly on a particular project, they can influence and make decisions that help their business or their clients in future projects, and they can hurt their competitors, to their own advantage.

Robert Wechsler
Director of Research-Retired, City Ethics