A new rule approved by the New York State Joint Commission on Public Ethics that expands the definition of lobbying to include PR professionals has received a deluge of criticism for being considered unconstitutional, but how will the advisory opinion actually affect the industry?
The state ethics board approved the rule in January, requiring that PR consultants or agencies that have been hired to influence government activities through campaigns or editorials must register as lobbyists. The rule would apply to any shop seeking to influence opinion in New York State, regardless of where the shop is headquartered.
According to James Arnold, president of New York-based Arnold Consulting Group, "All it means is that people playing in that field need to be wearing a jersey that identifies them so people know who they are and who they're representing."
If PR shops work in consumer fields, they have little to worry about. But if they're responsible for creating strategic messaging around content that tries to put pressure on public opinion or legislators, and for getting that content delivered, then they do.
Mr. Arnold, previously executive director for the Center for Legislative Improvement, said the rule's intention is not to affect relationships between PR professionals and journalists, particularly those centered on news gathering.
Bill Mahoney, a reporter at Politico New York's Albany bureau who regularly covers JCOPE, said he can't see the rule having any effect on his routine. Editorial boards, on the other hand, will be another issue. He said the advisory opinion could cause consultants to steer away from pitching positions to editorial boards in favor of pitching stories to actual news reporters.
Under the rule, consultants approaching an editorial board in an effort to get them to adopt a position about a public policy, are required to register as lobbyists.
"Editorial boards are being asked to take a position and speak out, so the people facilitating that need to be transparent because they're trying to use the influence of news gathering and dissemination organizations for public support and outcomes," said Mr. Arnold.
But according to JCOPE, there's been a fair amount of misinformation in the ensuing media coverage and criticism. For example, several reports have inaccurately stated that the advisory opinion requires PR shops to identify journalists with whom they meet.
"Consultants are not required to report individual interactions with members of the media or identify media outlets with whom they have spoken," said JCOPE spokesperson Walter McClure. "The news reporters themselves are never under an obligation to register or report anything to JCOPE."
PR and media organizations, such as the Public Relations Society of America, the New York Press Association and the PR Council, have been voicing concerns about the rule infringing on First Amendment rights and affecting the way firms do business.
Renee Wilson, PR Council president, said the "misguided" advisory could make PR agencies think twice about contacting a reporter about matters related to regulation issues.
Firms that fail to register, she added, could be subject to fines or jail time, which means agencies may have to create their own internal compliance or audit systems or hire lawyers to make sure they don't violate the guidelines. The penalties for those who do not file a report "depend on individual facts and circumstances," said Mr. McClure. For example, a first-time offense for not filing within the required time could result in a fine of $25,000, and second time offenders could face a class E felony charge, which could result in the PR practitioner being barred from acting as a lobbyist for a year. (Those making less than $5,000 annually for this type of work do not have to register.)
JCOPE is trying to get as much information out about the updated rule as possible, said Mr. McClure, who added that the commission has attorneys available to answer questions. "We understand that this guidance is new and we're intending to engage in an education effort to try to explain what it means and make sure that the regulated communities involved understand it," he said.
For now, it doesn't look like the rule shows much sign of jumping state borders.
From a legal perspective, it does raise issues related to First Amendment rights, said Linda Goldstein, attorney and partner at Manatt, Phelps & Phillips, where she serves as chair of advertising, marketing and media."What these ethical rules are designed to provide is transparency where actual lobbying activity takes place, but when you start to expand that to communication that a consultant is having with the media, that goes on to a very slippery slope of infringing free speech," she said.