May 23, 2012

Is The Virginia Democratic Party Chairman Undermining State Law By Being A Lobbyist?

Is The Virginia Democratic Party Chairman Undermining State Law By Being A Lobbyist?
American veterans risked their lives overseas. Now, lobbyists like Brian Moran (left) are working to ensure for-profit college companies can scam veterans and their families.

Brian Moran, the chairman of the Virginia Democratic Party, has been taking heat over the fact that he also serves as a lobbyist for the Association of Private Sector Colleges and Universities (APSCU), a trade group representing for-profit colleges. APSCU is engaged in an ongoing battle against President Obama’s efforts to hold its member schools accountable for waste, fraud, and abuse with taxpayer dollars. With Virginia a critical swing state in this fall’s presidential election, it is remarkable that the state Democratic party chair holds a day job as a corporate lobbyist focused on opposing key parts of President Obama’s education agenda. Obama’s opponent, Mitt Romney, on the campaign trail has enthusiastically endorsed for-profit schools like Full Sail University, an APSCU member.

I confronted Moran last week about this apparent contradiction. He dismissed Republic Report as “unfair” and said that there “absolutely” is no conflict of interest between his two roles.

In an interview with the Roanoke Free Press this week, Moran further defended his lobbyist job. Interestingly, the paper noted that Virginia law states that “the chairman or any full-time paid employee of a state political party shall not be employed as a lobbyist by any principal.” The paper reports that “an attorney” concluded that Moran is not violating this law because “it meant a lobbyist for the state and not a federal lobbyist as Moran is for the APSCU.”  Although the story did not name the attorney, it likely refers to a 2010 analysis undertaken by D.C. attorney Neil Reiff, counsel to the Virginia Democratic Party, when Moran was seeking the party chairmanship.

But Reiff’s memo expressly answers only the question of “whether Virginia law prohibits a federal lobbyist from holding the office of Chair of the Democratic Party of Virginia.”  The memo concludes that the Virginia law’s “prohibition on a party chair being a lobbyist is limited solely to state lobbying” and “clearly does not contemplate that a lobbyist … includes lobbying at the federal level.” (Disclosure: Reiff’s firm also provides legal advice to United Republic, of which Republic Report is a project.)

But there’s an important element left out of that legal analysis. APSCU is, in fact, involved with influencing legislation at the state level. APSCU is a member of the American Legislative Exchange Council (ALEC), a powerful corporate front organization that claims it isn’t a lobby group but works with state legislators to get laws passed at the state level. ALEC is heavily involved with Virginia state legislators and lawmaking, including on education issues. APSCU sits on ALEC’s education task force, which has endorsed a model bill that praises for-profit colleges. The for-profit colleges that are part of APSCU in fact have a good deal of business to address at the state level — state authorization to enroll students, accrediting issues, ongoing investigations by more than 20 state attorneys general into fraud allegations, and more.  APSCU has a staff member with the title “director of state affairs” — Brian Newman.

Moran’s title at APSCU is Executive Vice President, Government Relations and General Counsel. Nothing indicates his role is limited to federal  matters. According to a source with knowledge of the industry, Moran ultimately oversees the work of APSCU staff that addresses state issues as well as federal issues.

Moran may not be registered as a Virginia state lobbyist, and we aren’t suggesting that he should be required to do so. We are suggesting that he oversees work at APSCU that includes efforts to influence state laws, including through ALEC, which is active in Virginia. In that sense, Moran’s job at APSCU may be inconsistent with at least the spirit of Virginia law.

We’ve repeatedly sought Moran’s comments for our pieces, and he does not respond. We would be glad to publish his response to this one.

UPDATE: Thanks to a loyal and diligent reader, more relevant information: (1) The then-head of APSCU (at the time called the Career College Association), Harris Miller, testified in 2008 before a Virginia House of Delegates committee on an education bill; (2) Moran and APSCU director of state affairs Newman attended a Democratic Governors Association conference in Philadelphia in November 2009; (3) Moran and other APSCU staff attended a Republican Attorneys General Association meeting in Washington. Miller testified before the Virginia House prior to Moran joining the APSCU staff (in fact, Moran was serving in the Virginia House at the time), and it appears that Virginia’s then-Governor, Tim Kaine, was not present at the Philadelphia meeting attended by Moran. But it’s clear that APSCU and Brian Moran are engaged in efforts to influence policy and legislation in the states, including Virginia, on behalf of corporations.