Before Mark Esper entered the Trump administration as Army secretary, he was the top lobbyist for Raytheon, the third-largest contractor for the Department of Defense. A new legislative proposal submitted to Congress by the Department of Defense, which Esper now leads, would gut a key ethics law and help the industry he came from and seems likely to return to.
“While the ethics order sounded like a strong tool to end influence-peddling in Washington, it failed to revise the definition of lobbyist.”
As a condition of entering government, Esper had to agree to follow an ethics executive order requiring that once he left the government he would not, as a registered lobbyist, lobby his former agency for five years. While the ethics executive order sounded like a strong tool to end the kind of influence-peddling President Donald Trump criticized as “the swamp” in Washington, it failed to revise the definition of lobbyist to include the many types of behind-the-scenes activities that allow consultants, advisors, and other Washington players to advance special interests without detection.
But as a senior defense official, Esper faces additional restrictions from the law his department now wants to change. A provision then-Senator John McCain (R-AZ) included in the National Defense Authorization Act for fiscal year 2018 expanded the definition of lobbying and representational restrictions to include behind-the-scenes activities like preparing for lobbying, research intended to support lobbying contacts, and coordinating the lobbying activities of others. Despite being signed into law in 2017, the Defense Department only recently issued instructions implementing the restrictions. With the ink on those instructions barely dry, the Pentagon wants to undo them: The new proposal would remove the cooling-off period for behind-the-scenes work for certain senior defense officials, preserving the defense industry’s unfettered access to the Pentagon’s decisions about what to buy, how much to spend, and where to go to war.
“The Pentagon’s proposal would remove the cooling-off period for behind-the-scenes work for certain senior defense officials, preserving the defense industry’s unfettered access to the Pentagon’s decisions.”
In fact, those restrictions are more important than ever, because many influence peddlers have moved more of their work into the shadows. This is aided by weak and largely voluntary compliance by lobbyists, which can lead to influence-peddlers avoiding registration. Even the top lobbyist for Lockheed Martin didn’t register until Politico reported he hadn’t done so. In our report on the Pentagon revolving door, Brass Parachutes, we found that many firms avoid lobbying restrictions by creating “business development” positions, often focused on garnering new contracts for their new employers. Examples included Jason Colosky, who went from managing Pentagon Middle East policy to joining Raytheon as regional director for the contractor’s Middle East and North Africa operations, and retired Army Colonel Patrick Stackpole, who was chief of staff for U.S. Forces Japan before joining Lockheed Martin’s business development team. When we reached out to other former senior officials for comment on our report and our Pentagon revolving door database, several argued that they had received their executive roles based on their expertise, but that it was clear to them that the business development executives were being hired for their connections.
Esper’s actions raise the prospect that he would personally benefit from the proposed ethics law rollback. During the confirmation process to become defense secretary, he repeatedly resisted calls to distance himself from his former employer and avoid the revolving door between the Pentagon and its contractors. Under the ethics order, Esper was required to recuse himself from matters involving Raytheon for two years. By the time he was nominated to be defense secretary in 2019, he was only a few months from his recusal period’s expiration date. Senator Elizabeth Warren (D-MA) asked him at his confirmation hearing if he would extend that period, as former Boeing executive and fellow Trump administration nominee Patrick Shanahan had pledged to do if confirmed for the same position. Esper refused.
Warren asked him if he would agree to not seek a waiver from recusal restrictions placed on him, and again he said he would not, though he had never requested one before. Finally, she asked him if he would pledge not to work for or get paid by defense contractors for at least four years after completing his public service. “No Senator, I won't.”
If Esper does go back to work for the defense industry, he wouldn’t be the first former defense secretary to do so. For example, Obama administration Secretary of Defense Leon Panetta is a senior counselor at Beacon Global Strategies, which consults for defense companies but has in place nondisclosure agreements that keep its client list private. Clinton administration Defense Secretary William Cohen created his own lobbying firm that includes a defense and aerospace practice that has helped clients "compete for and win tens of billions of dollars in contracts.”
On the campaign trail in 2016 Trump correctly identified the need to “close all the loopholes that former government officials use by labeling themselves consultants and advisors when we all know they are lobbyists.” Congress has taken a number of steps to try to close those loopholes in the meantime. In 2019, Warren and Representative Jackie Speier (D-CA) introduced The Department of Defense Ethics and Anti-Corruption Act (S. 1503/H.R. 4277), a comprehensive proposal to address the Pentagon’s revolving door. The House also passed an expanded definition of lobbying activities to include some counseling services in section 7201 of the For the People Act of 2019, though the Senate has yet to take up the bill. A similar provision was included in section 6201 of Representative Brian Fitzpatrick’s (R-PA) Nonpartisan Bill for the People Act of 2019. Last year Representatives Pramila Jayapal (D-WA), Dean Phillips (D-MN), Jan Schakowsky (D-IL), and Speier also offered amendments to strengthen ethics rules at the Pentagon, receiving support from a broad coalition of civil society organizations. Congress should take up those ideas and reject the Pentagon’s efforts to preserve a status quo that puts defense contractors ahead of our military and the people.