United States: New York Ethics Commission's Proposed Regulation Draws Fire From Public Relations Firms

New York's leading public ethics authority recently issued an Advisory Opinion expanding the reach of the State's lobbying laws to public relations consultants. These rules could have far-reaching effects on the public relations industry.

The Advisory Opinion, however, has drawn fire from government officials, journalists and the public relations industry, who believe it raises serious practical questions and First Amendment concerns. For this reason, the new rules appear likely to be challenged in court.


In 2011, Governor Cuomo signed the Public Integrity Reform Act into law. The Act created the Joint Commission on Public Ethics, an independent agency with significant oversight over ethics and lobbying in the executive and legislative branches of State government.

The Joint Commission's powers include advising public officials, administering financial disclosure and registration requirements, and enforcing violations of ethics and lobbying laws through the assessment of damages. As part of its mandate, the Joint Commission may issue advisory opinions interpreting and applying existing lobbying and ethics laws.

Definition of "Lobbying" & The Advisory Opinion

Since the passage of New York's Lobbying Act in 1999, "lobbying" has been clearly and strictly defined as any attempt to introduce, pass or defeat a bill, executive order, or other government action.

Last week, however, the Joint Commission upended this long-settled definition by proposing to label certain public relations consultants as "lobbyists" and certain types of public relations activities as "lobbying."

Under the Joint Commission's proposed regulation, a public relations consultant falls within the newly expanded definition of lobbying if:

  • the byproduct of its communications is introducing, passing or defeating a bill;
  • the communications take a clear position on the bill; and
  • the communications attempt to "influence" a public official with respect to that bill.

Significantly, the Joint Commission's interpretation of the term "influence" is very broad. It purports to cover any participation in the actual delivery of a message, whether oral or written. This means that public relations agencies may have to register as lobbyists for certain routine activities, such as acting as a spokesperson, pitching an editorial to a media outlet, or editing a press release. This is true regardless of whether the consultant specifically references a bill in its communication or whether a client retains final say over the content of that communication. In addition, the Joint Commission is currently considering yet additional rules concerning public relations activity on social media. These regulations would redefine certain public social media posts as lobbying and require disclosure of social media expenditures under the Lobbying Act. This is an especially significant development given the extensive involvement of public relations firms in social media.

If enacted, public relations consultants who receive more than $5,000 per year for their lobbying activities will fall within the purview of the Lobbying Act and thus be subject to extensive registration and reporting requirements. These reporting requirements include publicly disclosing the topics on which they are lobbying, the compensation they have received, and the identity of and any written agreement with their clients. The new regulations could go into effect as early as April 1, 2016.

Future Impact

If the Joint Commission's Advisory Opinion is enacted, the impact on the public relations industry would be dramatic. Public relations consultants would be required to either cease their communications with interest groups, media outlets, and journalists, or face extensive registration and reporting requirements. In addition, public relations consultants could also face enforcement activity before the Joint Commission.

For these reasons, the Joint Commission's Advisory Opinion has come under withering attack. Governor Cuomo's office, despite noting that ethics reform is an administration priority, has said that the Advisory Opinion "raises some real questions." Journalists have noted that these new restrictions could have a chilling effect on reporting news. Public relations trade organizations also have objected that the rules overreach and are vague.

In response to these criticisms, the Joint Commission issued on February 5 a series of clarifications to its Advisory Opinion.  It noted that certain types of vendors to public relations consultants, such as film crews or copywriters, are not required to register as lobbyists.  It also noted that journalists are not covered by the Advisory Opinion and that strictly "factual" communications between journalists and consultants do not trigger the Lobbying Act.  The Joint Commission's clarifications indicate that it does not intend to apply the Lobbying Act to the entire public relations ecosystem.  However, the Joint Commission has thus far failed to address which core public relations activities would trigger New York's lobbying regulations.

As of this writing, the Joint Commission's rules appear headed for a challenge in the courts on First Amendment grounds. Under the First Amendment, restrictions on political speech must be justified by compelling government interest and be narrowly tailored to meet that interest. Here, however, public relations agencies and civil liberties groups claim that the Joint Commission's rules are invalid because they cannot satisfy this test.


The Joint Commission's mission to regulate ethics and lobbying requires balancing competing interests in transparency and free speech. According to many thought leaders, the Joint Commission's recent Advisory Opinion swings the pendulum too far in one direction, and thus violates the First Amendment. Public relations agencies are best advised to wait before implementing expensive and possibly unnecessary changes since anticipated political and legal challenges could either nullify altogether, or dramatically reshape, the scope of the Joint Commission's proposed rules. Davis & Gilbert will continue to monitor any legal challenges as they wind through the courts, and issue the necessary guidance in advance of the rules' implementation.

Bottom Line

The New York Joint Commission on Public Ethics' recent Advisory Opinion expands the definition of lobbyist to include public relations consultants. In the process, it triggers onerous registration and reporting requirements for core public relations activities, such as acting as a spokesperson, pitching editorials, or editing press releases.

These rules, however, have been the subject of much controversy and criticism, and are likely to be challenged on First Amendment grounds. The industry, therefore, appears to be adopting a wait-and-see approach to these regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.