Final Trump Acts on Lobbying's Effects Vary Based on When Officials Left

The White House revoked the extra restrictions Jan. 20, a few hours before Joe Biden was sworn in as president. Biden issued an executive order later that day requiring all appointees to sign a two-year “revolving door ban” and not accept gifts from “registered lobbyists or lobbying organizations.” Unaffected are people who served in the Trump administration and left at its end, because that administration rescinded its own lobbying EO, experts said. That leaves Trump-era appointees open to any lobbying positions, they said.

This “reduces the limits and also sends a message to both Trump alumni and potential employers that there are no rules,” said Jeff Hauser, director of the Revolving Door Project. “Since Trump is OK with this sleaziness, Trump alumni will now argue that any enforcement measure is partisan, since Trump officially no longer cares.”

Asked about possibly taking jobs involving lobbying the FCC, former Commissioner Mike O'Rielly emailed that he's governed by President Barack Obama's two-year EO ban, and though he signed the Trump EO ban, it was rescinded with his renomination. "So no lobbying for me," he said. Former Chairman Ajit Pai emailed that former FCC officials are covered by federal ethics laws under Section 207 of Title 18, independent of any pledge obligations. Section 207 bars certain senior employees, including the chairman, from appearing before the FCC for one year after leaving that position, Pai said: "I will abide fully with all such ethics rules."

The Biden EO takes much the same approach as Obama's EO, going beyond it in some ways, said Wiley lawyer Robert Walker. One difference is a "golden parachute" ban on payment or salary from a former employer contingent on accepting a government position, Walker said. He said it remains to be seen what the Office of Government Ethics will or can do about the EO provision directing it to recommend steps on expanding the revolving door ban to all executive branch employees involved in procurement.

Criticism

“Trump sold a lot of people a bill of goods when he said he would ‘drain the swamp’ when he in fact did just the opposite,” said Stephen Spaulding, senior counsel-public policy at Common Cause: “His decision to rescind his own executive order on ethics … is just par for the course with him being at the head of the most corrupt administration in American history.” Some restrictions remain, only for senior employees, he said. “People can spin right out of the door and get back to the influence industry, cashing in on their government experience,” he said: A better approach would be for Congress to codify strong ethics rules.

“Revoking the ethics pledge basically frees folks like ex-FCC commissioners to do whatever they please,” said Public Citizen Executive Vice President Lisa Gilbert. Trump “barely enforced the revolving door restrictions for people within his administration,” she said. “It’s not surprising that he also does not care if they then leave and trade on any influence that they have from having recently been in government." The ethics rescission didn’t get much attention because there “was so much happening” in the last few weeks of the Trump presidency, she said.

Lobbying rules have gray areas, and policies to restrict former administration officials from influence work are rarely strongly enforced, said Tufts University political science professor Jeff Berry. The Trump lobbying EO was “quite robust,” but the administration largely ignored the guidelines even before they were rescinded, Berry said. The Obama, Trump and Biden pledges allow the restrictions to be set aside for a particular candidate for “public interest” considerations, which can be a broad loophole, Berry said. The Biden executive order bans “shadow lobbying,” which Berry said is indirect lobbying by former administration officials, such as via surrogates.

Much of the work a former administration official does for a firm isn’t lobbying, Berry said. “They’re expected to be rainmakers,” attracting clients, he said. A major value of former FCC officials to law and lobbying firms is their insider knowledge of how things work and the history of specific issues, said Capitol Resources telecom lobbyist John Simpson. They can provide that without running afoul of lobbying restrictions, Berry said.

Effect Debated

The effects of removing the Trump administration’s lobbying restrictions are blunted by timing, said Simpson. With a new administration, former Trump officials largely won’t be lobbying their former co-workers but new Biden officials, he said.

The ethics pledges aren't the only bulwark against former administration officials lobbying, said Joel Miller, O'Rielly's former chief of staff. "Certain statutory restrictions exist independently of the various administration ethics pledges," Miller emailed. "In my case, for example, there are cooling off periods for party-specific adjudications that I may have worked on while at the Commission, such as transactions or enforcement actions. While these may be much more limited in scope than the restrictions contained in the now-rescinded executive order of the previous administration, they still provide important guardrails for departing employees and help to protect the integrity of public processes."

Some see the EO as smoke and mirrors. Such bans have the perverse effect of incentivizing shadow lobbying without getting to the heart of actual problems, said Paul Miller, founding partner of Miller/Wenhold Capitol Strategies. The Biden EO allows a waiver of its terms, which is "laughable," said Miller, past president of the National Institute for Lobbying and Ethics. "It has got to be all or nothing. The EO also fails by not prohibiting family members profiting off the administration or facilitating meetings, he said. "This is nothing more than an administration playing to voters." What's needed is an updated Lobbying Disclosure Act (LDA) with modernized definitions, he said.

The For the People Act (HR-1) introduced earlier this month contains some lobbying disclosure changes that could get bipartisan support, Wiley's Walker said. Other aspects of the bill are likely to face Republican opposition, Walker noted.

More enforcement of existing laws is needed, said James Thurber, American University Center for Congressional and Presidential Studies founder. An unintended effect of LDA changes in 2007 was thousands of people deregistering as lobbyists because of the criminal and civil penalties for willful and knowing violations that registrants face, Thurber said. As a result, "there are a lot of 19 percenters in town," he said, referring to people keeping their lobbying hours at less than the 20% of the work hours' threshold for registering.