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By Gerald B. Silverman
Jan. 7 — The agency that oversees lobbying in New York state is drafting guidance to clarify when the use of social media amounts to “lobbying” thereby triggering reporting requirements under the state Lobbying Act.
The Joint Commission on Public Ethics (JCOPE) recently issued a proposed advisory opinion saying “any direct interaction with a public official in connection with an advocacy campaign” constitutes lobbying.
The definition includes “preliminary communications to facilitate or enable the eventual substantive advocacy.” JCOPE defines direct interaction as including “verbal or written communications, including communications made for the purpose of facilitating access to a public official; attendance at a meeting with a public official; and presence on a phone call with a public official.”
JCOPE is accepting comments on its advisory opinion until Jan. 11.
Reportable lobbying activity includes “preliminary contact made with public officials to enable or facilitate the ultimate advocacy,” JCOPE said.
JCOPE also provides guidance on when grassroots communication constitutes lobbying, providing a three-prong test:
“A consultant's activity on a grassroots campaign can be considered reportable lobbying if the consultant controlled the delivery and had input into the content of the message,” JCOPE said.
Many other states are looking at similar regulations, given the explosion of social media, Timothy J. Plunkett of the Dentons law firm in New York told Bloomberg BNA Jan. 7.
“I think they're doing a smart thing,” he said. “It just risks ensnaring a lot of other interests, people who wouldn't typically be aware that they were lobbying.”
Plunkett also cautioned that JCOPE shouldn't over-react with its lobbying requirements, given the recent spate of corruption convictions among Albany's top leaders, including the former speaker of the state Assembly and the former majority leader of the state Senate.
“Right now, JCOPE is in an exploratory stage, so it's hard to know how they will react to public comments,” Plunkett said in an e-mail. “There are so many pressure points in Albany today. It's hard to know if things will become more or less restrictive with respect to lobbying. Much of what is happening is a reaction to the public corruption cases.”
Some public relations firms are concerned that the opinion is too sweeping and could present constitutional problems.
The commission's definition of what constitutes “substantive and strategic input” into a client's message is overly broad and vague, Andrew G. Celli Jr. of Emery Celli Brinckerhoff & Abady LLP said in prepared comments on behalf of four public relations firms.
“The Commission should revise the definition of an individual or entity that ‘controls' relevant communications to the public to include only individuals at whose direction, by whose authority, and on whose behalf such communications are made,” he said.
The Government Ethics Committee of the New York City Bar Association and Common Cause, in separate prepared comments, said JCOPE's definitions of direct and grassroots lobbying are too limited.
The bar association recommended a definition that requires reporting by “all persons participating substantially in lobbying communications with public officials or in artificially stimulating letter, and now e-mail, campaigns.”
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