New York State could redefine PR as lobbying

The goal of the push is to restore ethics to Albany, where a number of top state elected officials have been convicted of corruption charges. However, both PR organizations and civil liberties groups oppose the measures.

The New York State capitol building, Albany, NY. Image via Kumar Appaiah / Flickr; used under the Creative Commons Attribution-ShareAlike 2.0 Generic license. Cropped and resized from original
The New York State capitol building, Albany, NY. Image via Kumar Appaiah / Flickr; used under the Creative Commons Attribution-ShareAlike 2.0 Generic license. Cropped and resized from original

NEW YORK: PR firms interacting with New York State officials are facing the prospect of being categorized as lobbyists and having to disclose contact with members of the press.

The New York State Joint Commission on Public Ethics will vote Tuesday on regulations that would require all PR consultants and their clients to disclose communication they have with the media and government officials in the state, as lobbyists have to do. The Commission’s stance is that agencies or consultants can influence public officials via their interaction with the media.

Many agencies did not know about the proposed regulations until New York Governor Andrew Cuomo mentioned them in his State of the State address last week.

Should the vote be carried, agencies would need to file lobbying disclosure forms with the Joint Commission and report all communications with the media.

Industry bodies are opposing the measure. PRSA spokesman Laurent Lawrence said his group plans to meet Monday to discuss next steps.

"It’s unfair, unreasonable, and it subjects you to another set of rules and regulations," said Sid Davidoff, president of the New York Advocacy Association. "We believe it’s the wrong thing to do."

Davidoff’s firm, Davidoff, Hutcher & Citron, does lobby the state government, but he said that is different than what PR agencies do.

"Is lobbying to come up with an ad that’s taken by a client that goes out to the general public?" he asked, saying the commission is essentially redefining lobbying.

The measure applies to some media relations work done by PR pros, but not all, a commission spokesperson said. For instance, asking a media outlet to write an editorial and take a position on a state issue would trigger the requirement; pitching a reporter to write a news article about an issue or educating a journalist with materials would not. And while the new regulations would require PR firms to disclose outreach to reporters, they would not require journalists to disclose any outreach they make to agencies.

The Joint Commission spokesman added that there are other parts of the Lobbying Act that could be changed in the near term, and this is just one piece.

The proposal is aimed at the world of public affairs, including attempts to change public opinion and outcomes with multifaceted campaigns that include grassroots activity, lobbying, and media relations.

"If what they’re doing is aimed at framing a message [for a reporter or lawmaker] to take a position on a New York issue, then yes, they would fall into that [lobbyist category]," the spokesperson said. "If it is aimed at trying to influence a lawmaker to make a decision one way or another, it’s lobbying. Lobbying has changed, and there are situations where people are doing what a lobbyist would do but aren’t registered as lobbyists."

Groups including PR agencies, the New York Civil Liberties Union, and the New York Press Association are opposing the measure, which they say would limit freedom of the press and agencies’ ability to operate within the state.

Andrew Graham, co-founder of Clear, a media agency in New York City, said there could be loopholes. The regulations would encourage corporations to use front groups and sub-contractors to hide their activity, he said.

"Some firms would circumvent [regulations] by simply retaining subcontractors to initiate the contact. The subcontractor would bear the reporting requirements because it would be the entity delivering the messages to journalists and other third-party stakeholders," he explained. "I can tell you that my agency would be happy to play this role."

Various firms have voiced their opposition to the changes. Greg Brooks, principal at West Third Group, said, "Restriction on speech has to pass a very strict scrutiny. The act of who is talking to who with the media is a restriction on speech." West Third has offices in Kansas City, Las Vegas, and Los Angeles, and it works with and talks to reporters in New York.

"When the government starts making lists, it either hurts people, costs people money, or it curtails their rights," Brooks said. "This one is going to be the trifecta."

Several sources said they believe the regulations would not survive legal scrutiny because the Joint Commission is interpreting existing law in a new way. Meanwhile, Cuomo will probably try to separately pass a new Lobbying Act that expands its authority in the state, according to reports. Cuomo’s push is taking place after high-ranking elected officials including former State Assembly Speaker Sheldon Silver and former Republican Senate Majority Leader Dean Skelos were convicted on corruption charges.

Cuomo has also advanced language in a budget measure that would require any consultant advising an elected official to register as a lobbyist. 

"If a political consultant is representing an elected official, you have to register. If a PR firm is representing an elected official, they have to register," the official said. "We want to avoid the conflict of interest."

The governor began working on the measure last fall as part of a long-term effort to reform ethics laws. He announced the proposed changes during his State of the State address earlier this month. Cuomo administration officials said the governor is not working in tandem with the Joint Committee.

There is a $10,000 fine for lobbyists who fail to comply with a Joint Committee audit. The governor has also proposed a 27% increase in the Committee’s budget and funding to modernize its technology systems.

"As we look at the lobbying laws and ethics laws, we advance modifications, close loopholes. We have been modifying the ethics laws for the past five years," the administration official said.

The updated requirements could go into effect as early as April 1 when the State Legislature could pass a budget.

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