Lobbyists adjust to Trump’s new rules

Lobbyists are coming to grips with a new executive order from President Trump that weakens many of the restrictions that were imposed on their industry by the Obama administration. 

The order, signed by Trump over the weekend, allows lobbyists to serve in the administration but restricts what they can do if and when they return to the private sector.

Political appointees who serve in the Trump administration will be restricted from assisted in lobbying efforts before their former agency for five years after they leave. They will also be prohibited from ever representing a foreign government, which is a cottage industry in Washington. 

Those coming into government, White House press secretary Sean Spicer said on Monday, should know that they will be “serving the country and not yourself.”

The order is unlikely to deter lobbyists from joining the administration, several individuals told The Hill.

“I have talked to a number of people who are seeking advice on whether or not to join the administration, and the ethical obligations have not been a determining factor,” said Ivan Adler, a headhunter at The McCormick Group.

During a fiery campaign speech three weeks before the election, Trump made a promise to “drain the swamp” in Washington, unveiling a sweeping ethics plan that included banning former officials from becoming lobbyists for five years and cracking down on foreign lobbying.

While some of the ideas in his ethics plan were enacted via executive order, others would require action from Congress, include loosening the definition of a lobbyist and expanding the “cooling off” period for lawmakers who leave for K Street.

It remains to be seen whether Trump will push Congress to pass those reforms. Watchdog groups are skeptical. 

“Trump is just skimming the surface of the swamp, as he remains silent on his campaign pledge to push Congress to adopt their own five-year ban,” said Trevor Potter, the president of the Campaign Legal Center, in a statement. 

Ethics watchdog organizations have taken a careful look at the executive order and say it appears to weaken the ban on communications between former officials and the executive branch.

Former President Barack Obama’s executive order banned former officials from communicating with employees of their agency for two years. Trump’s drops that requirement down to one year.

“While it’s weaker, it’s not just lip service. It does make actual reforms,” said Joshua Ian Rosenstein, a partner at Sandler Reiff Lamb Rosenstein & Birkenstock, specializing in political law and lobbying compliance. “Of course, it’s different than what Trump promised, which is that you won’t be a lobbyist [for five years] — period.” 

The executive order supersedes Obama’s version yet keeps some of his restrictions in place, such as broadly banning administration officials from accepting gifts from lobbyists and requiring appointees to refrain for two years from getting involved in issues they dealt with in the private sector. 

The two-year prohibition is stronger than the initial ethics agreements signed by Trump’s Cabinet nominees over the last month, in which they agree to refrain from any matters involving any previous investments or employers for one year. Federal law only requires a one-year recusal.

The White House and the Office of Government Ethics did not respond to inquiries about whether the ethics agreements for Cabinet were being amended. 

There is also concern that Trump’s ethics order nixes language that had required the federal government to issue annual reports detailing how the administration is complying with ethics standards, as first reported by The Washington Post.

Those reports had listed appointees who completed ethics pledges and the names of previously registered lobbyists who needed a waiver to join the executive branch, in addition to those leaving the administration who obtained waivers to contact their former agency.

In Trump’s updated ethics order, there are no criteria for why an individual could be granted a waiver, as Obama’s version did.

However, the wording of Trump’s five-year ban may be stronger than the lobbying restrictions imposed by his predecessor. 

Political appointees who leave are not allowed to engage in any “lobbying activities” connected with their respective agencies for five years, referring to a more expansive definition in the Lobbying Disclosure Act. 

Under the law, the term “lobbying activities” includes the work surrounding an advocacy campaign, including conducting research, writing reports and coming up with lobbying strategies. 

There are some exemptions to the provision, such as for “agency process for rulemaking,” which is striking a debate among ethics experts about whether the carve-out undermines the intended purpose. 

One of the toughest aspects of Trump’s order is the lifetime ban on former political appointees registering to represent a foreign government, individual or entity funded by a sovereign foreign government. While some say that restriction could be a violation of the First Amendment, a legal challenge is unlikely to prevail, Rosenstein said. 

The foreign lobbying statute, known as the Foreign Agents Registration Act (FARA), “has been treated differently as a substantive matter because it’s treated as a national security and counter-espionage statute,” he said. “I imagine a FARA ban is on more solid ground” than any other previous challenges to lobbying restrictions.

FARA is a World War II-era law enacted to create transparency and ensure that Nazi Germany was not influencing U.S. politics. 

Many observers of the lobbying industry expect that Trump’s order will push the industry further underground without congressional reforms to disclosure laws.

“The reality is, even a lobbyist gift ban is based on who has to register as a lobbyist. It’s so easily evaded that it has no meaning,” Meredith McGehee, the chief of policy, programs and strategy at Issue One, a money-in-politics reform group, told The Hill.

“Anybody with half a brain can figure out how to evade not only lobbying registration but these restrictions.”