The Independent View: Lawsuit Seeks to Block New York's Sweeping New Lobbying Rules

A Lawsuit filed Wednesday seeks to Dismantle New York's Sweeping New Lobbying Regulations, which are set to go into Effect in January. The Suit was filed in State Supreme Court in Albany by Three Petitioners including David Grandeau, the State's former Top Lobbying Enforcement Official who is now a Top Private Lobbying Compliance Attorney. The Respondent in the Matter is the State Joint Commission on Public Ethics (JCOPE), New York's Ethics and Lobbying Watchdog entity, as well as its Commissioners.

In April, JCOPE's Commissioners, appointed by New York Gov. Andrew Cuomo and Legislative Leaders of Both Major Parties, Unanimously Passed the Regulations Overhauling the Rules that Cover New York's sprawling Lobbying Industry.

The Lawsuit, York Group Associates LLC v. Joint Commission on Public Ethics, argues that JCOPE's Commissioners Lack the Authority under New York Law to create the 92 Pages of New Regulations. The Plaintiffs argue those Rules would unduly Burden Lobbyists and their Clients, and Infringe on their Free Speech Rights. "This is a case about bureaucratic overreach," states the Suit. "(JCOPE) does not have the authority to issue comprehensive regulations, let alone regulations that expand and amend the Lobbying Act." The New Rules, developed by JCOPE Staff over a Period of more than Two years, are among the most Substantial Pieces of Work produced by the Ethics Watchdog Panel since its Creation in 2011.

The Petitioners want to see the Regulations Struck Down in State Supreme Court, and are seeking an Injunction Disallowing JCOPE from Enforcing them in the Interim. The Rules were intended to Define as Lobbyists a Class of Political Consultants that has wielded Influence with Elected Officials through close Relationships, without the Consultants themselves actually Engaging in Traditional Arm-Twisting.

While JCOPE's Staff have said the New Rules largely Codify Decades of Existing State Ethics Opinions, the Regulations were meant to Update New York's Lobbying Rules for the 21st Century, as Modern Lobbying Campaigns emphasize the Application of Public Pressure on Lawmakers separate from more Traditional Person-to-Person Lobbying.
Lobbyists have also recently been at the Center of a Number of Major Federal Corruption Trials in New York, and JCOPE has been Criticized for Not doing More to Uncover the Wrongdoing.

Under the New Definitions in the Regulations, the Parameters of Traditional Lobbying are Expanded: A Person's Presence at a Lobbying Meeting or on a Lobbying Phone Call with an Elected Official, for instance, can Trigger the Requirement to Register as a Lobbyist, even if that Person does not Personally ask an Elected Official to take Government Action.

Using One's Relationship simply to Set-Up a Lobbying Meeting or Phone call with an Elected Official would now Count as Lobbying, as would Introducing a Client to an Elected Official. So would certain Types of Social Media Activities meant to Influence New York Politicians. A Major Plank of the Rules Creates more Disclosure around so-called "Grassroots Lobbying," in which Well-Funded Interest Groups seek to Sway Public, and Elected Official Opinions through Campaign-Style Lobbying Efforts.

The Rules also include Explicit Requirement that Lobbyists Disclose the Names of the Lawmakers that they Lobby. Currently, Lobbyists and their Clients often simply List "Senate," "Assembly", or "Executive", as the Entity that they have Lobbied, making it difficult for the Public to Know who exactly is being Influenced. The Petitioners' Lawsuit Singles Out that Provision for particular Criticism, arguing that Nowhere in State Law is there actually such a Requirement to Disclose the Names of Individual Officials who are Lobbied.

The Lawsuit also takes aim specifically at the New "Grassroots Lobbying" Rules; JCOPE's broad New Definition of the Term "Lobby Day", a Term for the Days in which a particular Interest Group swarms the Capitol for Rallies and Meetings, and a New Broader Requirement that Unpaid Members of Boards of Directors Register as Lobbyists.

The Lawyer who Filed the Lawsuit for the Complainants is Joshua Seifert, whose Manhattan-based Practice has Focused on Commercial Litigation. The Plaintiffs include Grandeau, a frequent JCOPE Antagonist who has Maintained a Colorful, Critical, and often-Profane Blog on his Law Firm's website documenting the Panel's Activities. The Petitioners also include the New York City-based Lobbying Firm York Group Associates, as well as Voters for Animal Rights, a Nonprofit that sprung out of the Initial well-funded effort in New York City to Ban Horse Carriages in Central Park.

York Group Associates has previously run into trouble with JCOPE: In August, the Firm reached a $2,500 Settlement with the Watchdog over Allegations that its Principal, Tiffany Raspberry, had Failed to File Various required Lobbying Disclosures. In an Interview, Grandeau said that Bigger New York Lobbying Firms were Scared away from Joining the Lawsuit due to Fears of Retaliation. "I would certainly hope JCOPE would not retaliate, but after watching how JCOPE handles things for seven years, I would say it's not an unreasonable concern," Grandeau said.

Grandeau maintains that while JCOPE has the Authority under Law to Write Opinions, it has the Power to Write Regulations only in very Specific Circumstances. The Legislature never Passed a Law Authorizing JCOPE to broadly Reinterpret the State's Lobbying Rules, the Lawsuit maintains; instead, the Commission's Job is Primarily to Administer and Enforce Existing Laws.

Grandeau had previously Threatened to File a Lawsuit if JCOPE Passed the Regulations. At a Hearing in late 2017, JCOPE Executive Director Seth Agata seemed to Backtrack from them, stating that the New Regulations were merely "Advisory" and would Not Create "New" possible Legal Violations if Enforced. JCOPE Chairman Michael Rozen, however, Clarified at a subsequent Meeting that the Regulations would indeed have the Force and effect of Law.

At the April 2018 Meeting where the Regulations were finally Approved, JCOPE Commissioner Marvin Jacob raised the Question of whether the Lobbying Regulations would face a Legal Challenge. Agata responded that No One had made a "well-founded" Argument Against either the Substance of the Regulations or JCOPE's Ability to Issue them.

JCOPE Spokesman Walter McClure said at the time that JCOPE was Empowered to Create the Rules because New York Law says the Commission has the Sole Authority to "administer and enforce" the law.

In a Statement in April, JCOPE Chairman Rozen also said the Regulations were "an important step in the commission's efforts to ensure public transparency regarding who spends money to influence government, and where and how lobbyists and their clients spend that money."