There is a substantial amount of confusion and concern about Section 1045 of the 2018 National Defense Authorization Act (NDAA), entitled “Prohibition on lobbying activities with respect to the Department of Defense by certain officers of the Armed Forces and civilian employees of the Department following separation from military service or employment with the Department.” As with other acquisition-oriented, late breaking additions to the NDAA in years past (like acquisition prohibitions following felony convictions of companies or principals that were so broad that an executive speeding 15 miles an hour over the limit in Virginia, which is a felony, could eliminate the company from eligibility for contracts), guidance in Section 1045 is not as complete as industry would like. But the rule is not terribly burdensome, either.
Very senior uniformed and civilian Department of Defense employees such as General Officers and their civilian equivalents (presumably members of the Senior Executive Service), face restrictions on “lobbying activities” and “lobbying contacts” with respect to the Department of Defense. Section 1045 refers readers to the Lobbying Disclosure Act of 1995 (2 U.S.C. Section 1602) for definitions of relevant prohibitions, and exceptions from prohibitions. And the Lobbying Disclosure Act offers comfort that substantial activities are still permissible. Yes, representation back to the Department of Defense is more limited under Section 1045 of the 2018 NDAA than it was before, but not severely so. And contractors already must monitor representation back to these officials’ former offices. Section 1045 extends the monitoring requirement a bit farther.
It appears that industry is overly focused on the bolded and italicized wording of the Lobbying Disclosure Act’s definition of lobbying activity, ‘[t]he term “lobbying activities” means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others. The term “lobbying activities” means lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others.’ This language poses a new compliance challenge for contractors because, in the post-employment context, behind the scenes work while waiting out a restriction is typically acceptable (putting aside for these purposes organizational conflicts of interest and other non-statutory considerations). But for general officers and senior executive service members, Section 1045 presents an additional one- or two-year restriction (depending on their seniority) that can restrict even some “behind the scenes” work directly associated with lobbying.
But substantial lobbying related work is still permitted. Indeed, there are 24 exceptions in the Lobbying Disclosure Act that permit lobbying related activity, including but not limited to: speeches, articles, publications, interviews, media appearances, meeting requests or similar administrative requests, service on advisory committees, responding to public notices in the Federal Register and other invitations for written submissions, written comment, public written petitions to an agency under certain circumstances, among other things. In short, newly separated very senior Department of Defense Officials will not need to sit around doing nothing to wait out this restriction – plenty is still permitted.
Contractor concern may be driven by the merging of political law and government contracts law for this limited number of very senior, former Defense Department officials. But the compliance steps are relatively straightforward, particularly if contractors already had a robust approach to complying with the restrictions in place before Section 1045 became effective. Contractors are well advised to track for a year or two (depending on seniority) their former Defense Department general officers and equivalents, train them on these restrictions, and conduct a Lobbying Disclosure Rule driven analysis for communications back to “covered Executive Branch Officials.”