Lobbying or PR? New York is redefining both

There’s a battle brewing in New York state over the distinction between lobbying and PR – with an adopted advisory opinion of the Joint Commission on Public Ethics now moving to a court challenge.

The commission adopted an advisory opinion that reinterprets lobbying activities. And it is staggeringly broad: “Any attempt by a consultant to induce a third-party – whether the public or the press – to deliver the client’s lobbying message to a public official would constitute lobbying under these rules.”

According to The New York Times: “Shortly after its passage, representatives of the November Team, which has been active in Republican campaigns around the state and is a plaintiff to the lawsuit filed, sent out a list of 50 questions they wanted answered about the new rule, including who devised it and whether planned story leaks needed to be reported.” You can find the list of questions posed here.

Even the ACLU is weighing in and has called the commission’s action a “huge overreach.”

“It ought to be obvious that requiring someone to report every conversation with the editorial writer is intimidating to both journalists and advocates,” an ACLU spokeswoman told The Times.

The state’s Lobbying Act defines “lobbyist” to include consultants who receive $5,000 or more in expenses per year for local lobbying activity. The advisory opinion expands lobbying to be defined as “any attempt to influence a government action,” such as grassroots lobbying.

According to PR Week, any time a consultant would speak to reporters or editorial writers about pending or contemplated regulation, executive orders, regulations, or government procurements on behalf of a client, they would be required to register with the Committee and disclose their policy goals and financial arrangements.

“If the opinion holds up, the law will require many PR firms to register as lobbyists and face annual reporting requirements. These reports include a disclosure of topics on which there has been lobbying, the terms of the client-agency agreements, and the fees paid to the agency. Failure to follow the law could lead to civil enforcement actions … On a practical level, the opinion could mean many PR firms have to hire someone to oversee compliance and manage the paperwork to follow the regulations.”

As a member of the Public Relations Society of America (PRSA), I received a notice about the organization’s effort to block what’s happening in New York. Its statement is posted here.

PRSA, PR firms and others raise these objections:

Interfering with First Amendment rights for a non-profit firm with few resources that would be impeded from meeting, for example, with a newspaper editorial board

Onerous reporting that would fall to a PR/media agency to disclose spending and payments from a client
Increased billing rates to clients as a pass-on cost of additional reporting

Reporting interactions with the press would have a chilling effect and limit the exchange of ideas

Newsday reports that by a vote of 10-3 led by appointees of Gov. Andrew M. Cuomo, the commission approved the expanded definition of lobbying to include PR consultants in late January. No indication, however, of what sparked the advisory opinion or the back story leading to the move.

As a former media person now a PR practitioner, I’ve seen the line move substantially in cause-related marketing from simple information dissemination (just the facts, m’am) to expensive and highly targeted social media and online campaigns to influence voters and outcomes.

But I’ve also seen media more prone to being influenced by former political players claiming to be doing PR and buying into campaigns shrouded in secrecy.

Transparency is a good thing – no matter what industry. Trying to be what you are not is a bad thing – no matter what industry.

The New York challenge now moves to a courtroom. Check out these links for more:

Joint Commission on Public Ethics: Advisory Opinion

The New York Times: Public Relations Firms Sue New York Ethics Panel Over New Disclosure Rule

National Conference of State Legislatures: How States Define Lobbying

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