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Drain the swamp

“There you go again” was a phrase spoken during the 1980 US presidential election debate by the Republican candidate, Governor Ronald Reagan, to his Democratic opponent, incumbent President Jimmy Carter. Unfortunately, it now applies to our current President, Donald Trump, who just promulgated a new Executive Order regarding commitments by executive branch appointees which are, also unfortunately, as misplaced as were President Obama’s policies that targeted lobbyists. This is because several of the new prohibitions continue to follow past approaches to regulation which have inappropriately been focused on only those registered under the Lobby Disclosure Act of 1995 (LDA). 

For example, the Executive Order provides for a 5 year post-employment ban on “lobbying activities” with the executive agency in which the person was appointed; a prohibition on “lobbying activities” with respect to any covered executive branch official; a prohibition on accepting gifts from “registered lobbyists or lobbying organizations” and a prohibition on those who were within two years prior to joining the executive agency a “registered lobbyist” from participating in any particular matter on which [they] “lobbied” or participate in the “specific issue area” in which that particular matter falls. The incorporation of the definition of “lobbying activities” from the LDA may result in the restrictions applying to appointees after they leave government service even if they do not become “registered lobbyists”.

{mosads}As noted, the new Executive order uses the term “specific issue area” which is somewhat confusing because it is not a term used previously in the same context. This creates ambiguity as to its exact meaning and could lead to confusion with respect to its application. Accordingly, it is not clear if a waiver would be required if it were necessary for a former lobbyist to work on a matter on which they lobbied. It also is unclear when and if recusals would be needed. How all of this work will depend on how the Administration interprets the words and phrases of the Executive Order. Thus, the Executive Order adds more uncertainty to an already murky and unfortunate policy.

In any case, these new rules, which in general apply only to those who register under the LDA, have had, and will now have, the unfortunate consequence of decreasing transparency by increasing circumvention and “de-registrations” for those who want to avoid the label “lobbyist.”  It also, as did President Obama’s rules, will discourage a number of otherwise qualified individuals, from contributing their expertise to the Administration because of the stigma of being a lobbyist.

The unfortunate driving thesis, and irony, of this approach is that burdening advocates is warranted to prevent an appearance that Congress or the Executive Branch is inherently susceptible to corruption by those who represent interests before them.  This, in turn, perpetuates the notion that Congress and the Executive Branch need protection from parties exercising their First Amendment right to petition “for a governmental redress of grievances”. This notion is meant to give the impression of purity, but is not only merely illusory but also misguided.

Two changes could improve the application of the rules. First, Congress should broaden the requirement to register and report under the LDA following the criteria outlined in the 2011 American Bar Association Task Force Report which recommended registration be based on a person making two or more contacts at any time with government officials on behalf of a client regardless of the amount of time spent on lobbying activities. However, in contrast to the ABA recommendation, we would recommend the elimination of the monetary expense threshold. This change would, in turn, greatly simplify the requirement which would increase, rather than decrease, transparency. Second, the Administration should amend the Executive Order to make whatever limitations are imposed apply to everyone, including campaign contributors, not just to those registered under the LDA.

Although we can understand the President’s goal of wanting to drain the swamp, we encourage him to focus on the real alligators in it.

Mr. Jankowsky has been a lawyer and lobbyist in Washington, D.C. for four decades. Mr. Shapiro has been involved in regulatory and policy matters in Washington, D.C. for over 20 years. He is also an adjunct professor at American University’s Washington College of Law.


The views expressed by this author are their own and are not the views of The Hill.

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