Washington's Sherpas: Lobbyists Shepherding Agency Nominees Create Ethics Concerns

President Trump’s pick to head the agency charged with managing America’s crucial weather data is also the head of a company that profits from it. If that isn’t ethically vexing enough, he’s also using his company’s DC lobbyist to push his confirmation through the Senate—a lobbyist whose other clients all have business before the agency.

When President Trump nominated AccuWeather CEO Barry Myers to lead the National Oceanic and Atmospheric Administration (NOAA), concern came from many corners. Unlike various other ethics questions that can seem distant from the lives of Americans outside the Beltway, the issues involved in this nomination touch everyone, as the recently released report on climate change and related increases in extreme weather makes clear.

Myers has long advocated for erecting barriers between the public and the taxpayer-funded data produced by the National Weather Service, which is located within NOAA, in order to increase the market for his company’s services. Critics say giving corporations like AccuWeather control of taxpayer-funded weather information could put lives at risk if warnings are no longer freely available when disaster strikes.

Deepening these critics’ concern is the fact that one of the top persons advocating for Myers’ confirmation is Thomas Fahy, a lobbyist who’s carved out a niche representing weather-industry companies that contract with the government and stand to profit from any push to privatize government weather functions. Though his role in distributing a letter supporting Myers was reported by The Washington Post, the scale of Fahy’s role has not been previously revealed.

The Project On Government Oversight reviewed lobbying documents and letters in support of Myers, and interviewed staff on Capitol Hill to get a picture of Fahy’s role. We found his role is so significant that if Myers is confirmed, NOAA will have to contend with the probability that Fahy’s lobbying shop and the multiple NOAA contractors it represents will have been critical to the ascension of the official leading the agency.

“Because Fahy is lobbying for AccuWeather, and Myers and his family own AccuWeather, the financial interests of Fahy’s clients and Myers' own financial interests are one and the same,” observes Brendan Fischer of the Campaign Legal Center, an ethics watchdog in Washington, DC. “Fahy stands to benefit from strengthening his relationship with Myers, and could leverage that relationship to attract new clients and benefit his current ones,” Fischer told POGO.

Fahy isn’t unique. Other lobbyists and individuals with financial interests before government agencies have played instrumental roles in campaigning for White House nominees to run those agencies. It’s a vector of influence that the lobbying disclosure law and other disclosure requirements are not currently equipped to capture.

Nominees for high-level positions generally use handlers—called “Sherpas,” after the Himalayan mountain guides—to guide them through the Senate confirmation process. These handlers are usually staffers appointed by the White House to serve in the agency the nominee would serve in, or—in the early days of a new Administration—a presidential transition team.

Hiring a guide, as Myers hired Fahy, who has a direct financial interest or whose lobbying clients have a direct financial stake in the outcome of the nominee’s fate can, at a minimum, create an appearance of improper access, ethics experts say. President-Elect Trump’s transition team even briefly barred lobbyists from acting as Sherpas, although the ban ended once he was inaugurated (this happened alongside a broader loosening of Obama’s ethics rules; President Trump’s ethics pledge allows lobbyists to become political appointees while Obama’s did not, absent a waiver).

Lobbyists helping nominees win confirmation is not unique to this Administration.

In an interview with The Washington Post in 2005, Kenneth Duberstein, a Sherpa for several nominees in past Administrations, described the many roles they play. "You are the chief strategist for the ultimate goal of getting that person confirmed. You are also the traffic cop, because everybody wants to see the prospective nominee. You are a coach and you're also a confidant of the nominee. You are the chief liaison with the Hill, but also the chief liaison within the administration. You are an enforcer, but you are also a negotiator." Most Sherpas work pro bono, but as Post reporter Christopher Lee noted, “the job is not without compensation. The role underscores a lobbyist's political access and clout, impressing prospective corporate clients.” Duberstein’s lobbying firm, The Duberstein Group, has represented dozens of clients over the years, including major corporations such as BP, Chesapeake Energy, Comcast, CSX, General Motors, Goldman Sachs, and Novartis.

The relationship between Myers and Fahy raises weighty questions about the ethics of using private lobbyists to wage confirmation campaigns, particularly lobbyists who stand to gain if the campaign is successful. For example, if Fahy is instrumental in Myers’ confirmation, would Myers be inclined to give Fahy’s clients preferential treatment? Would others at NOAA feel the need to give Fahy information and access because of his ties to the boss? Will companies competing with Fahy’s clients perceive an uneven playing field at NOAA? Will the public trust that NOAA’s decisions are being made without regard to Myers’ or Fahy’s business interests?

Myers’ Cloud of Conflicts

When President Trump nominated Myers as NOAA administrator in October 2017, ethics experts raised red flags about the numerous conflicts of interest Myers would face in taking on the job. Myers is CEO of AccuWeather Inc., which uses data produced by the National Weather Service—the agency housed within NOAA that takes data from government satellites to inform forecasts and storm alerts—to produce its own weather forecasts for paying clients (such as oil companies with ocean platforms).

While the position is fairly low profile, Myers has launched an aggressive confirmation campaign with Fahy as his wingman. Fahy is a former meteorologist and the sole proprietor of Capitol Meteorologics, which specializes in “Public Policy Advocacy for Weather Industry and Earth Observation Issues,” according to its website. In 2016 AccuWeather hired Fahy to represent the company’s interests in Washington. Lobbying Disclosure Act filings show Fahy has earned $120,000 per year to represent AccuWeather on issues including “weather and climate legislation.”

Though Fahy does not include his activity lobbying for Myers’ nomination in his filings, there is a precedent for such disclosures: Jon Kyl, a former Senator from Arizona who was recently named to the late Senator John McCain’s seat, disclosed his work guiding Supreme Court Justice Neil Gorsuch in a 2017 LDA filing.

While AccuWeather represents the “front end” of the potential market for weather satellite data, creating forecasts out of weather data already produced by the government, Fahy’s other clients represent the “back end.” For example, GeoOptics Inc., a commercial satellite company led by former NOAA undersecretary (and AccuWeather board member) Conrad Lautenbacher, owns satellites that can produce data the company hopes to sell to NOAA. GeoOptics hired Fahy to lobby for the Commercial Weather Data Pilot Program, an initiative created by the report accompanying a 2015 appropriations bill that forced NOAA to try buying weather data from corporations. GeoOptics was awarded a $3 million contract for the pilot program in 2016, and signed another $3.4 million contract with NOAA last September for the program’s second round despite its spotty performance in the first. A recently released report from NOAA to Congress on the 2015 Commercial Weather Data Pilot program said the two companies chosen—Spire Global and GeoOptics—fell far short of the mark needed to begin contracting with the government: Spire Global didn’t provide enough data for NOAA to measure its impact, and GeoOptics’ satellites failed to launch altogether.

Another Fahy client was the Panasonic Avionics Corporation, which hired him to lobby on “weather data requirements.” A subsidiary of the company produced meteorological data sensors for satellites and had a contract to provide weather observation data to NOAA. Neil Jacobs, Panasonic Avionics’s former chief atmospheric scientist, was confirmed to a top NOAA spot earlier this year (Panasonic sold the subsidiary to a Canadian aerospace company in October).

For all three companies, Fahy has recently lobbied on “the re-authorization of the Weather Research and Forecasting Innovation Act of 2017.” This legislation, signed into law by President Trump in April 2017, directed NOAA to produce a report on how to better collaborate with commercial data companies. In a lengthy commendation on Fahy’s LinkedIn profile, Myers credits Fahy with much of the behind-the-scenes work on the bill.

“I would be remiss if I did not acknowledge his immense contributions over a sustained four-year effort on the successful passage of H.R. 353, The Weather Research and Forecast [sic] Innovation Act that culminated in 2017 with the only law in the nation’s history to require engagement between NOAA and the weather industry,” Myers wrote.

Shedding further light on Fahy’s influence efforts, according to Federal Election Commission records, Fahy made campaign donations in 2015 and 2016 totaling $1,250 to Jim Bridenstine, a former House lawmaker from Oklahoma and the only Republican Fahy has donated to. Bridenstine is now the head of NASA. As chairman of the House Science, Space, and Technology Subcommittee on the Environment, Bridenstine held hearings on why NOAA should outsource atmospheric data collection to private companies, and sponsored previous editions of the Weather Research and Forecasting Innovation Act that contained language pushing NOAA toward the private sector. Bridenstine did not respond to requests for comment.

Congressional staffers told POGO that Fahy seemed to be in charge of pushing for Myers’ confirmation in the Senate. At the very least, he has played a major role.

“Throughout the Myers nomination process, Mr. Fahy directed a significant part of the lobbying activities, which has included meetings with committee and personal staff, repeated phone calls and emails, and orchestrated contacts by industry groups that have an interest in NOAA’s operations,” said a Capitol Hill staffer who requested anonymity. “These efforts far surpass any direct advocacy by the White House or the Department of Commerce,” he said.

In response to inquiries about who compensated him for these activities, Fahy said only that “Sherpa duties are handled by the Department of Commerce,” and did not answer further questions about his role.

Conflicted Counselors

Other nominees during this Administration have relied on Sherpas with business before the agencies they’ve been nominated to lead, a deviation from common practice called “shocking” and “highly unusual” by some government officials.

Recently departed Attorney General Jeff Sessions used Ed Haden to help guide him through Senate confirmation hearings in early 2017, according to AL.com. Haden, who worked as a senior aide to Sessions until 2002 while Sessions served as a Senator from Alabama, is a partner with Balch & Bingham, a major law firm and lobbying shop. Balch was the second largest source of campaign contributions during Jeff Sessions’ Senate career, as POGO previously reported.

Ten days after Sessions’ confirmation hearing on January 10, 2017, Balch disclosed it had recently lobbied on behalf of clients with business before the Justice Department, including the HealthSouth Corporation, which was facing a Justice Department investigation.

In addition to its clients with interests involving the Justice Department, the firm itself is impacted directly by the Department’s enforcement, as POGO previously reported. In September 2017, Sessions’ Justice Department indicted two Balch partners, alleging they were part of a conspiracy to bribe an Alabama state legislator to oppose the EPA. A jury convicted one of those partners this summer. A judge dismissed charges against the other because of an FBI agent’s mistakes during the grand jury. Despite calls from POGO and others for Sessions to recuse himself from the Balch matter, Sessions never publicly responded.

In another example, former White House staffer Kirstjen Nielsen asked Thad Bingel, a former Republican staffer and chief of staff for the U.S. Customs and Border Protection, to act as her Sherpa when she was nominated for Homeland Security Secretary in 2017.

Bingel left the government in 2009 to join several other Bush-era staffers in co-founding the Command Group, a constellation of companies that provide “full spectrum solutions related to safety, security, and intelligence.”

Nielsen’s choice of Bingel drew attention because the Command Group reportedly counts companies among its clients that have business with DHS, including an Israeli company that provides cameras and sensors for the border wall. Command Group also lobbied Congress on behalf of Perceptics, LLC, a subsidiary of Northrop Grumman, until the end of 2016 about DHS spending. Perceptics sells automated license plate readers and, over the years, has contracted with Customs and Border Protection, the Drug Enforcement Administration, the Interior Department, and the Air Force.

Because Bingel worked to push Nielsen’s confirmation for free and Nielsen was a White House employee at the time, the Campaign Legal Center wrote a letter to government officials including Sessions that demanded an investigation into whether Nielsen violated the Antideficiency Act. The Act prohibits government officials from “accepting voluntary services...not authorized by law.”

“(Bingel) has clear financial incentive to assist in the nomination of an agency secretary who would have the power to steer government contracts in his direction,” said Center general counsel Larry Noble. “This unusual arrangement should be investigated because of the clear potential conflict of interest.”

Ethics Gap

Despite numerous ethics and conflict of interest laws and regulations—including President Trump's ethics pledge—that apply to government employees, there is a huge gap in ethics restrictions applying to nominees and their sherpas. Bans covering personal financial conflicts of interest, cooling off periods, and gifts don't apply when a non-government nominee is wading through the confirmation process. The gap is troubling because the nominee and their guides, especially a guide who is a lobbyist, might have access to people and information that could be used for personal or private benefit.

 “[Ethics officers] are concerned about loyalty and especially access,” said former Office of Government Ethics (OGE) Director Walter Shaub, who worked at the agency under three presidents. “The problem arises if lobbyists are influencing appointees in terms of policies that result in heightened access for certain industries to the exclusion of others. Issues of access are concerning even where they’re technically legal.”

Another way Sherpas can gain access is with privileged information that agencies might provide nominees and their teams during the extensive briefings involved in the confirmation process, observes Marilyn Glynn, a 17-year OGE veteran who served as acting director under President George W. Bush.

"If Sherpas are meeting with agencies and reading agency briefing books, they may have access to information that’s not in the public domain,” Glynn said. “Presidential transition teams have an agreement they will keep everything confidential, but Sherpas don’t have any such commitment.”

No regulation can anticipate every circumstance, but the Senate can and should move to plug any gaps in the ethics rules they discover through the confirmation process, Shaub says. For example, Senators could condition Myers’ confirmation on a pledge not to communicate with Fahy during his tenure, he added.

NOAA’s Stormy Skies

The debate over Myers’ background and conflicts illustrates a larger struggle between those who believe weather information should be a public good, and an industry that sees profitability in the ever-increasing need for weather data.

Myers has been an active competitor, if not adversary, of the National Weather Service since joining AccuWeather 16 years after his brother founded the company in 1962. Bloomberg reported earlier this year that Myers reacted negatively in 2013 at a meteorology conference when a government employee “spoke enthusiastically about how the service used social media to alert people during Hurricane Sandy.” Citing an anonymous source, Bloomberg also reported that, “Myers protested that fog forecasts for the nation’s 175 major ports—intended to prevent collisions involving large commercial ships—were yet another example of providing a service that the private sector should be doing instead.” And he has promoted legislation that, if it had become law, would have sharply curbed the role of government in directly providing the public weather information.

Myers and his two brothers, Joel and Evan, constitute AccuWeather’s leadership. The family maintains close relationships with Pennsylvania Republicans, partly a result of growing up in Pennsylvania and attending Penn State, which has a well-regarded program in meteorology that Myers’ brothers graduated from. Barry and Joel Myers have donated more than $100,000 to Republican lawmakers and fundraising committees since 2000, according to Federal Election Commission data compiled by the Center for Responsive Politics (Evan Myers gave about $20,000 to Democrats). A major beneficiary of the Myers’ support was then-Senator Rick Santorum (R-PA), who sponsored a 2005 bill that would have significantly reduced the ability of the National Weather Service to produce public weather forecasts. The legislation didn’t pass, but those who remember still associate it with Myers, generally alongside some bad feelings.

“If this bill had passed, Americans’ access to free and potentially life-saving government weather forecasts would have been placed at great risk,” said Senator Bill Nelson (D-FL) at Myers’ nomination hearing. “While NOAA has always put protecting the lives and properties of Americans ahead of making a buck off forecasts and warnings, your past history with the Santorum bill suggests you might do otherwise.”

While the Office of Government Ethics certified Myers’ ethics agreement, they did so only on the basis of Myers selling his stake in AccuWeather back to the company—effectively the same as transferring the shares to his family, who can simply sell them back to Myers when he leaves NOAA.

POGO’s questions to NOAA regarding the ethics agreement were referred to the Department of Commerce, where a press officer praised both Myers and Rear Admiral Tim Gallaudet, the acting NOAA administrator, but did not answer questions about potential conflicts of interest posed by Fahy’s work for Myers. Similarly, Myers said Sherpa duties were handled by the Commerce Department, and that any concerns about conflicts of interest he could bring to the NOAA job were addressed in his Senate confirmation hearing testimony. “The Senate record is clear that I have been a longtime, trusted advisor to and supporter of NOAA and NWS. You will also find I have strongly supported the agency, its expansion and its budgets for decades,” said Myers. Several former NOAA administrators have spoken out against Myers’ nomination, as has the NOAA Employees Association, which says collecting and disseminating weather safety is a public good that should remain driven by the federal government. Some who use government weather data for education, emergency management, and other public functions agree.

“From the public safety side of climatology, there’s no point on the privatization route where the weather service doesn’t suffer—it can’t not suffer,” says Tim Manning, who served as second-in-command at FEMA during the Obama Administration and currently teaches in Georgetown University’s Emergency & Disaster Management program. “It’s the same thing as getting rid of the police department and hiring private security. Anytime you start introducing companies driven by the profit motive to public services, you change the fundamental dynamic.”

“At every level, this data is significantly funded by taxpayers,” says Daniel Curewitz, a Syracuse University professor of earth science. “If the data source is privatized and accessibility of that taxpayer funded data is limited to those who can pay for it, that’s basically double charging and a distortion of the market,” he said.

There is an important role for the private sector in weather science, says Ari Gerstman of the University Corporation for Atmospheric Research, a nonprofit consortium of university earth science programs that works closely with NOAA. Gerstman is also co-chair of Friends of NOAA, a group of stakeholders that advocates for the agency’s full funding. Gerstman points out that NOAA already contracts with private companies for specialized atmospheric data, and that companies like AccuWeather provide valuable services such as tailored forecasts for clients like oil companies. But those services are crafted from immense amounts of publicly available data, so if the government becomes too dependent on private companies, then a disruption like corporate failure or a rate hike could be disastrous.

Some worry that private weather companies aren’t yet up to the task of taking on government weather forecasting, and that pushing NOAA to work with them just diverts valuable resources. NOAA has faced a budget crunch for years, and the Trump Administration’s budget would have cut the agency’s funding nearly 20 percent if Congress hadn’t kept its funding steady in the 2019 appropriations bill.

Meanwhile, Myers’ confirmation campaign hasn’t yet succeeded. The Senate Commerce, Science, and Transportation Committee confirmed Myers’ nomination on a party-line vote in December 2017. President Trump re-nominated Myers this year after the calendar ran out on Myers’ confirmation, and the Commerce Committee again approved his candidacy. Republican leadership hasn’t moved to bring the nomination before the full Senate, however, and if Myers isn’t confirmed by the time the 115th Congress clocks out in December, President Trump will have to nominate him again next January after the new Congress is sworn in. The fact that the Republicans picked up two Senate seats in the midterm elections may give Myers’ confirmation some more juice, especially since one of the seats that flipped was held by Senator Bill Nelson, the leading opponent of Myers in the Senate.

Recommendations

In order to bring transparency to the potential conflicts of interest of lobbyists who lead confirmation campaigns for nominees to high-level government positions, POGO recommends that Congress:

1. Require the nominee to promptly disclose to the Senate committee of jurisdiction the names of all private individuals working to help them win confirmation who have employers or clients with direct interests involving the nominee’s agency. This should include employers or clients of the private individual in the prior year to avoid people temporarily deregistering as lobbyists to get around the disclosure requirement. The Senate should ask this question in nominee questionnaires.
2. Amend the Lobbying Disclosure Act (LDA) to require that registered lobbyists working to confirm a nominee explicitly disclose this effort, including the name of the nominee and the position to which they are nominated, in their quarterly LDA filing.
3. Require nominees to disclose all gifts given to them in the context of their nomination, including pro-bono services like “Sherpa” duties.
4. Instruct agencies to ensure that only information already in the public domain is discussed in confirmation briefings and/or included in briefing materials.
5. Require as a condition of confirmation that any nominee who solicits or accepts material support for their confirmation from a private individual who represents parties with financial interests that could be impacted by the nominee’s agency refrain from communications with that person while serving in their government post.