Defense Lobbying Ban Might Drain the Pentagon Swamp
Finally, the revolving door between the Department of Defense and the private sector might be slowing down, and the taxpayers have the Senate to thank. Section 1045 of the FY 2018 National Defense Authorization Act strengthens lobbying prohibitions for certain Defense Department officials, which should stem the perpetual flow of government officials turning into influence-peddlers for the defense industry. The Project On Government Oversight supported this Senate provision. As expected, defense contractors aren’t pleased about the provision because it:
- Sets a 2-year lobbying ban for Defense Department personnel grade O-9 or higher, or the civilian grade equivalent, and a 1-year ban for grades O-7 and O-8, or the civilian grade equivalent, at the time of retirement or separation from the armed forces;
- Bans lobbying activities for a period of 1 or 2 years after senior officials leave the Department, including “lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others”; and
- Applies to lobbying military personnel whose pay grade is at or above O-7, the Executive Office of the President, and appointees.
Simply stated, the law extends the current lobbying and representational ban by 1 year for any official O-9 and above, and now covers “behind-the-scenes” activities, which are currently permitted, during the 1- or 2-year period. Hopefully this means that the days when a Defense Department official resigns on a Friday and is organizing lobbying activities for a defense contractor or industry group the following Monday will come to an end.
The new law, however, needs clarity that wasn’t provided in the Conference Report. Some of the language in the provision that refers to the Lobbying Disclosure Act—a law that regulates registered lobbyists only—might prove confusing. The provision is directed at senior military and civilian officials, whether they’re a registered lobbyist or not. Any reference to the LDA appears to be for definitional purposes only, and nothing in the new law suggests that the bans apply to registered lobbyists. But guidance should specifically clarify to whom the new law applies.
Additionally, the new law states that the ban applies to “lobbying activities with respect to the “Department of Defense.” This seems to mean that the ban applies Department-wide, and therefore bans all lobbying activities by covered officials across the agency. If that is the case, the new law overrides the current rule that allows lobbying of other Department components. For instance a Navy officer would be prevented from engaging in any lobbying activities involving the Navy as well as the Army and Air Force for a period of 2 years.
Despite clients who are concerned about the new law, one contractor law firm decided to focus on the positive:
But substantial lobbying related work is still permitted. Indeed, there are 24 exceptions in the Lobbying Disclosure Act that permit lobbying related activity, including but not limited to: speeches, articles, publications, interviews, media appearances, meeting requests or similar administrative requests, service on advisory committees, responding to public notices in the Federal Register and other invitations for written submissions, written comment, public written petitions to an agency under certain circumstances, among other things. In short, newly separated very senior Department of Defense Officials will not need to sit around doing nothing to wait out this restriction—plenty is still permitted.
This is not the first time Congress has been helpful in trying to drain the ever-deepening swamp at the Defense Department. Section 847 of the National Defense Authorization Act for Fiscal Year 2008 required the Department to monitor the revolving door between the agency and the defense sector, and to retain ethics opinions “in a central database or repository for not less than five years.” That law also required contractors to ensure that former Department personnel seek ethics advice and to comply with that advice. That law was the result of a government study that raised questions about whether “additional reporting or other requirements should be imposed on contractors to guard against violations of the government’s post-employment rules.” Despite those efforts to shore up compliance with revolving door laws, reviews by the Defense Department Inspector General has found problems with the agency’s collection of revolving door data, finding that the system was slow to get rolling, that data wasn’t retained, and, in the most recent report, that the database is “unreliable.”
POGO has fought to make the Department’s revolving door database public, but so far neither Congress nor the agency has agreed that the public should be able to see who is leaving the Department to work for defense contractors. POGO will continue this fight because the only way to ensure compliance is to allow the public and other Department contractors to expose violations of post-government activities that might cross ethics or legal lines.
While the Trump Administration isn’t a beacon of hope on ethics issues and compliance, it did take a step forward with President Trump’s ethics pledge for appointees, which created a 5-year ban on post-government lobbying activities with respect to that appointee’s former agency. President Trump also made a strong statement about implementing a lifetime ban prohibiting Department officials from going to work for companies to which the official awarded contracts.
Certainly, the powerful military-industrial complex isn’t going away, but at least there are a few policymakers trying to limit abuses by federal officials going through the revolving door to the defense industry.