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Strengthening Checks and Balances

Trump Fails to Expand Definition of Lobbyist in Ethics Order

POTUS Signing Executive Order at White House in January

President Trump released his ethics executive order on Saturday evening. When a candidate, he had promised to drain the swamp, issuing a five-point plan for ethics reform that detailed how he was going to do so. Included was a promise to “re-institute a 5-year ban on all executive branch officials lobbying the government” and to “expand the definition of lobbyist so we close all the loopholes that former government officials use by labeling themselves consultants and advisors when we all know they are lobbyists.” So it was with some hope that we examined the document that will dictate how non-governmental entities seek to influence the federal government over the course of Trump’s presidency.

We were underwhelmed.

Trump’s ethics order does the following:

For appointees entering the government:

  1. Bans gifts from registered lobbyists and lobbying organizations.
  2. Prohibits working on matters related to former employers or clients for 2 years.
  3. For 2 years it limits registered lobbyists from working on issues on which they lobbied previously.
  4. Requires hiring based on qualifications, competence, and experience.

For appointees leaving the government:

  1. Restricts appointees from lobbying their former agency for 5 years.
  2. Sets a 1-year cooling off period for communicating with employees of their former agency, a restriction that is already in law.
  3. Restricts lobbying of other appointees for the lifetime of the administration.
  4. Bans working for a foreign government or political party that is covered under the Foreign Agents Registration Act.

At first blush this seems like a great ethics order, one that combined the best attributes of the order issued by President Clinton in 1993 (which he revoked before leaving office, which wasn’t cool) and President Obama in 2009. At second blush, though, it actually does very little to drain the swamp.

Certainly, we are pleased with the carry-over of the gift ban and the two-year prohibitions on working with former employers or clients and on issues the appointee lobbied. The ban on former appointees lobbying on behalf of foreign governments is new and a step in the right direction but will not cover the full extent of foreign influence.

The strongest restrictions in the order apply to lobbyists, including the promised 5-year ban on lobbying the agency after the appointee leaves. But as history has shown, people will simply avoid registering as lobbyists and so still be able to work as hired guns for companies and industry associations. Then-candidate Trump acknowledged this with his promise to expand the definition of lobbyists to include consultants and advisors. Yet, contrary to that promise, the order’s lobbying provisions only apply to registered lobbyists, leaving many other swamp monsters in the shadows to steer government mission, policies, and spending.

The “swamp” is filled with non-lobbyists, and not cleaning that up is disappointing.

Moreover, to some degree, the EO may even be covering some of it up: it has eliminated the requirement established by the previous Administration that the Office of Government Ethics (OGE) “provide an annual public report on the administration of the pledge and [the] order.” It will be interesting to see if OGE continues to post appointee ethics waivers after those are issued.

The Project On Government Oversight and other good government groups worked tirelessly in 2016 to strengthen the Obama ethics EO. Our efforts included working to improve Obama’s ethics pledge by encouraging the Trump administration to expand the lobbying restrictions that applied to registered lobbyists to also apply to anyone with a financial conflict of interest. The Obama order was good, but we really thought, based on Trump’s tough talk and numerous ethics concerns with Hillary Clinton, that the Trump ethics order might become a gold standard. President Trump had a chance to clean up the government, but unfortunately this ethics order looks like he’s going to do it with dust pan and brush.