Here’s Why Biden’s Ethics Plan Is Important

In his final hours in office, former President Donald Trump rescinded an executive order that had placed certain ethics requirements and restrictions on executive branch officials. In doing so, he reversed some key rules meant to crack down on the inappropriate use of government relationships for personal profit. On his first day in office, President Joe Biden issued his own executive order implementing a new set of ethics rules, which constitute the strongest ethics executive order ever issued.

Together, these two moves hold great significance for the integrity of the federal government as a whole and for the public’s perception of our government. But they also point to a bigger, longstanding concern: Ethics standards change from administration to administration, and can be done away with whenever a president sees fit. This means that executive branch appointees and other officials could potentially have tacit approval to engage in unethical behavior that exploits their public service for their own benefit at the expense of the public, depending on which standards are or aren’t in place. It is long past time for Congress to step in and enact legislation that would permanently codify ethics rules for executive branch personnel.

The kinds of ethics rules and standards we are primarily concerned with here mostly focus on mitigating the extent to which executive branch employees can use their publicly funded position to do favors for friends or business associates or otherwise leverage the privileges of their positions to enrich themselves. In other words, ethics rules should ensure that public servants are working exclusively on behalf of the public interest, not on behalf of their own or that of the well-connected and powerful. Requiring these kinds of rigorous ethics standards sends the message to the American people that those who are governing are doing so with integrity, and if they aren’t, they will be held accountable and face the proverbial music.

When Biden issued his ethics executive order almost immediately after taking office, he made it clear that ethics and integrity are going to be touchstones of his administration. Whether dealing with what incoming appointees worked on prior to being appointed, what those officials will be able to work on while serving in government, or what outgoing appointees are permitted to do upon reentering private life, Biden’s ethics order enacts a comprehensive and robust set of rules. Those rules should, if properly implemented and enforced, make the Biden administration one of the cleanest and most ethical we have ever seen. But, as always, the devil is in the details, and rules of any kind are only as good as their enforcement.

Holding government officials to the highest ethical standards is of particular importance in an era when the American public has a very low level of trust in the federal government, with just 20% of Americans indicating that they trust Washington to do the right thing. This perception is driven in part by the view that the government does not work toward the betterment of the lives of average Americans, but rather for the benefit of the powerful and well-connected, including government officials, elected and unelected. Implementing strong ethics rules for executive branch officials signifies a key step in earning back the public’s trust by showing that putting any interests other than the public’s interest first will not be tolerated.

It was not a good look when Trump withdrew the ethics executive order that he had issued in 2017. And in practical terms, rescinding the order means that former Trump administration officials now have zero constraints on their ability to use their previous government position, and the connections and relationships gained through those positions, to do things like help corporations game the regulatory system or facilitate access to key decision-makers for foreign countries and companies.

On the campaign trail in 2016, “drain the swamp” was an integral rallying cry for Trump, and the ethics order he issued early in his term seemed to be an effort to deliver on that campaign promise. At the time, we had some good things to say about it, as well as some critiques as to where it fell short. Following an administration that was plagued by a seemingly endless string of ethical scandals, the last-minute decision to remove restrictions on activities like post-government service lobbying was about as swampy as you can get.

And Trump wasn’t the first to do this. Former President Bill Clinton rescinded his own executive order on ethics in the waning days of his administration. This particular problem is systemic in nature. And it points to the need for Congress to step in and codify ethics standards that all political appointees will be held to, regardless of changes in administration.

Indeed, the weakness of the government ethics framework is not a partisan issue. Each administration basically resets or adjusts the clock by issuing its own executive order on ethics. This whipsaw approach is definitionally incoherent and unpredictable, as each new order contains different rules or variations on preexisting rules. Uncertainty in key policy areas is bad, as it leaves stakeholders unclear and unsure as to how to comply and stay on the right side of the law. Government ethics is no exception, and this fact cries out for a permanent, legislative fix to the ethics framework for government officials, which only Congress can do.

At the outset of the Trump administration, we called for improvements that would build on and strengthen the standards put in place by the Obama administration’s ethics executive order. Similarly, late last year, we also called on the incoming Biden administration to issue its own order to fix the gaps in both the Obama and Trump ethics orders. All three had their strengths and their weaknesses, and POGO has recently published a quick reference guide that sets forth some of the key features of the last several orders issued. Beyond that resource, there are a few points worthy of consideration in Biden’s ethics package.

(View the original document on DocumentCloud.)

In examining ethics orders from the Clinton, Bush, Obama, Trump, and Biden administrations, we broadly concluded that Biden’s approach is the best so far. But there’s definite room for improvement. We would encourage the Biden administration to do two things: Strengthen its ethics order along the lines we set forth in our recommendations below and then work with Congress to codify that gold standard ethics framework into law, thereby avoiding the need for this debate to rise anew every four or eight years.

The first concrete element of the Biden ethics pledge is a ban on executive branch appointees accepting gifts from “registered lobbyists or lobbying organizations.” This is a good place to start. But it’s imperative that the definition of “lobbyist,” both in Biden’s order and also in statute by Congress, is expanded to include DC operatives who may not technically be registered lobbyists under the Lobbying Disclosure Act but who perform lobbying-like activities behind the scenes. Often referred to as “shadow lobbyists,” these people are effectively the facilitators and influence-peddlers who do the work of lobbyists without being covered by the current legal definition of lobbying and can therefore avoid registering as lobbyists. Then-candidate Trump proposed a similar reform on the campaign trail in 2016. In order to ensure maximum ethical hygiene among executive branch officials, the Biden administration should expand its gift ban to include for-profit companies that employ lobbyists.

Biden’s executive order also sets forth several restrictions meant to mitigate the pernicious effects of the “revolving door,” or the practice of former federal appointees and staff leaving government for companies they previously oversaw or regulated. This often carries the real and perceived problem of corruption, agency capture by industry, favoritism, and insider dealings. Industries like finance and defense are often the most common origins and destinations for those swinging through the revolving door, likely because those sectors have a lot to gain through cozy relationships with government officials and regulators.

The revolving door restrictions implemented through the executive order are robust, including requiring incoming appointees to wait two years before working on issues related to their former clients or employers. The order also requires incoming personnel who were registered lobbyists or engaged in work that required registration under the Foreign Agents Registration Act (FARA) to wait two years before working on issues on which they formerly lobbied. People who were registered under either the Lobbying Disclosure Act or FARA are also prohibited for two years from working for agencies they lobbied prior to their appointment. While the restrictions we reference above are laudable, we would urge the administration to strengthen them by broadening the scope of the areas of work that former lobbyists are barred from working on within the two-year ban period.

The revolving door swings both ways, and the Biden executive order addresses outgoing personnel as well. The order places restrictions on how soon former Biden administration officials can communicate with their former agency colleagues as well as with senior White House staff, requiring them to wait two years. Any outgoing appointee must also wait at least two years before they can register as a lobbyist. Work on behalf of foreign entities that would trigger registration under FARA is also prohibited for two years. We recommend that the administration extend the ban related to work for foreign entities from two years to five, and to expand it to cover a broader range of activities, beyond those that fall within the registration criteria under FARA. The potential for undue foreign influence on U.S. policymaking is high, so these restrictions should be strong enough to meet the danger.

One of the highlights of the Biden executive order is that it imposes a one-year prohibition on “senior and very senior” government appointees participating in the kind of shadow lobbying that we referenced above. No previous ethics order had included such a prohibition, although Congress applied a similar ban to certain former defense officials. The Biden shadow lobbying provision is one of the main reasons we rank his administration’s ethics order as the strongest to date, though we would recommend further strengthening it by extending the one-year “cooling-off period” to two years. Doing so would help ensure there is more time between the individual and their government work, which in turn would help reduce the potential for corrupt influence-peddling.

Yet another point that distinguishes the Biden ethics order from its predecessors is the inclusion of a restriction on “golden parachutes,” or compensation that private sector individuals receive from their employers when they choose to accept a government position. As you can imagine, these compensation packages make it easier to take a pay cut to work in the government. But they also create the appearance of a wink-and-nod arrangement where a company, having just issued a large compensation package to a former employee, may expect something in return, like access to key decision-makers, inside information, or favorable treatment in regulatory matters.

Golden parachutes often grease the gears of the revolving door. Prohibiting them for incoming appointees is an important step toward mitigating cozy industry-government relationships and agency capture. We would, however, urge the Biden administration to make stock options a prohibited form of compensation within the golden parachute category. To make this prohibition on golden parachutes more straightforward, the rule could be simplified to a straight ban on receiving anything of value in these cases, unless it can be proved that the individual would have still received the compensation if they had not been entering government service.

All told, Biden’s executive order on ethics is the strongest that has ever been issued, incorporating recommendations from stakeholders like POGO and addressing weaknesses in the previous administration's ethics order. But it is essential that the Biden administration work with Congress to make these ethics rules law, to ensure that government ethics won’t be nearly so contingent on the particular whims of whoever happens to be in the Oval Office. Codifying these standards is the only way to permanently and comprehensively improve the ethical posture of the federal government and will help restore the public’s confidence in government missions, programs, and spending.