Yesterday, the New York State Joint Commission of Public Ethics (JCOPE) passed a bill into law requiring any agency paid to help sway public policy for clients to share information. This was done in an attempt to increase transparency and keep the public from feeling political decisions were being made in an increasingly covert manner.
Four firms, Stu Loeser & Co., Anat Gerstein, Inc., BerlinRosen, and Risa Heller Communications expressed concern about how this new advisory opinion would affect the PR market. PR professionals working in the political sector must now register as lobbyists.
Details For and Motivations Behind the New PR Law
Anyone paid to alter public policy for clients must now share certain kinds of information. This includes client identity, fees clients pay, the name of the bill a PR pro is hired to assist with, and whether the PR pro or firm has been hired to help defeat or pass the bill. As a Cuomo-created ethics board, this recent development is a landmark in a much broader campaign to regulate political consultants. According to capitalnewyork.com, “Numerous lawmakers have close relationships with their campaign consultants, which is one of the motivations behind Cuomo’s suggestion, and would certainly be hesitant to make their lives more difficult.” So more PR professionals are now required by law to register with JCOPE.
New Law Comes as Heavy Response to Obsolete Lobbying Regulations
According to a draft of the bill, lobbying was first regulated in New York state in 1977. Called the “Regulation of Lobbying Act,” lobbying or lobbying activity was defined as “[a]ttempts to influence the passage or defeat of any legislation by either house of the legislature or the approval or disapproval of any legislation by the governor, or the adoption or rejection of any rule or regulation having the force and effect of law or the outcome of any rate-making proceeding by a state agency.” Section 3(b) of Ch. 937, L. 1977
This dated regulatory definition has accumulated amendment after amendment over the years. Since then, Public Relations as a vocation has grown. In some forms, PR is overtaking and even incorporating political discourse. One need only look to Russia’s state-run Realpolitik to see the benefits of solid PR work.
Advent of Social Media and Digital Tech Obscures PR Accountability
JCOPE’s bills are shaking major ground in both legislative and Public Relations arenas. Yet, as Cuomo phased out the Temporary Commission on the Regulation of Lobbying and replaced it with JCOPE, the advance of technology made this definition more obscure. The advent of social media and other digital forms of communication multiplied the channels of influence available to a PR pro, agency or other entity. This is part of the reason for the increase of individuals influencing government officials without swelling. Making an appointment takes time, and is easy to document. But a cell phone text, Facebook message, or ubiquitous social media campaign can be a much stronger influence.
Does This Law Violate First Amendment Rights?
Many public figures think this bill is a violation of First Amendment rights. In a recent interview, Bill O’Reilly said, “[t]alking to the press is about as First Amendment as you could possibly get, and for the government to force you to register to do that is a fundamental breach of the First Amendment freedoms…once they get you registered they will torture you; that’s what governments do.”
Four Agencies Who Fought the Bill
The four firms above previously wrote letters to the Director of Lobbying and FDS Compliance and Senior Counsel, Martin Levin, Esq. In it, they address the “substantive and strategic input on the content of a message.” In this part of the bill, PR pros with a “meaningful role in either the creation or approval of [a particular] message” must register as lobbyists.
Their letter argues this new law will be “impractical because it would require the Commission to investigate and ‘draw lines’ with respect to every turn of phrase or statement uttered by a client or its representative, to determine whether a particular consultant did or did not have a meaningful role…”
Is the Law Too All-Inclusive?
Moreover, the four firms do not think the list of ten parties exempt from this new bill is exhaustive. According to the firm, “[a]bsent from the list are countless types of consultants who ‘participat[e] in both the content and delivery’ of campaign messages, and who arguably engage in more than ‘mere editing.’” These include speaking coaches, marketing experts, graphic designers, and others. According to the four agencies, these all fit the bill.
Arguing from this potential over-inclusion, the four agencies take issue with JCOPE. They asked the board to revise their definition of those who “control” information applicable to the public. The reduced scope would include “only individuals at whose direction, and by whose authority, and on whose behalf such communications are made.”
The Ambiguity of “Earned Media”
Further, they mention issues with the bill’s definition of “earned media.” According to the bill, earned media is speaking with others to sway public officials’ opinion. Yet, PR firms (or others) present information to journalists and various media reps all the time, which still leaves them to decide what message, if any, they will pass in a report.
The four firms are resolute that “earned media” does not belong in JCOPE’s proposed regulations. They deny the existence of direct contact with public officials when using earned media because this information qualifies as a distinct third party to mainstream media.
With this contentious bill now passed into law, many people will have to register as lobbyists simply because of their increased influence in the social and traditional media. This includes PR professionals, firms, news anchors, and possibly even reputed PR News experts. Those who fit JCOPE’s category of altering public opinions or perceptions, even as a third party, must provide information like a traditional lobbyist. This information includes the name of their client, the fees clients pay, the name of the bill under question, and the position the PR firm is taking concerning the bill.