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The Bridge: Say No to Optional Government Ethics!

Jun 16, 2022
Walter M. Shaub, Jr.

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SAY NO TO OPTIONAL GOVERNMENT ETHICS!

America deserves better than optional government ethics, but that’s exactly what the Office of Government Ethics (OGE) is proposing to create in a new regulation.

OGE recently issued a draft regulation to place limits on officials accepting large gifts of cash from individuals who may be seeking to influence policy. However, an exception in the draft regulation would make compliance optional. The agency says it will let officials continue existing practices that have alarmed members of Congress. In the notice accompanying the proposed regulation, OGE itself admits that those practices have “lacked transparency and created concerns regarding the appearance of corruption.”

The origin of this regulation dates back to January 2018, when OGE blessed a scheme to let an outside political organization fundraise for the legal expenses of appointees of former President Donald Trump and others caught up in investigations.

This wasn’t the first time officials sought donations for legal expenses, but putting a political organization in charge was a radical departure. In the past, an individual official would set up a trust and name a trustee to raise money. The trustee was legally bound to act solely in that official’s best interest.

In contrast, the political organization for Trump associates could dispense money to numerous individuals in and out of government. The organization’s manager had no legal duty to act in the best interest of any potential recipient. Nothing in the founding documents would prevent the manager from pressuring witnesses by withholding money if they testified against Trump. The government had no way of knowing if officials received money from improper sources because OGE let them identify the political organization, rather than the true sources, as the donor.

Because following OGE’s proposed regulation is optional, it will fail to prevent a repeat of this debacle.

There are other problems with OGE’s regulation, too.

OGE’s optional regulation would require officials to avoid working on certain assignments involving individuals who have given them gifts of cash. But this duty to recuse would only apply to a very limited set of assignments and would expire after just one year. Even worse, the regulation would let officials decide not to recuse at all if, in their own opinion, the public wouldn’t worry about their working on assignments involving donors.

Adding insult to injury, OGE has included an example in the regulation to emphasize that a senior military officer facing court martial for sexual harassment could raise funds to fight the accusations. The inclusion of this unnecessary example risks intimidating victims of sexual harassment or assault.

The proposed regulation would also let law firms that represent foreign governments and regulated industries provide unlimited legal support to administration officials, but it would bar nonprofit public interest groups from hiring lawyers to represent whistleblowers.

You can demand that OGE fix this farce of regulation. The regulatory notice gives the public until June 21 to file comments. Here’s how:

  1. Address an email to [email protected]
  2. OGE’s notice says the subject line must read: “Proposed Rule: Legal Expense Fund Regulation (RIN 3209–AA50)”
  3. Paste this message into your email (or write your own):

I oppose OGE’s proposed legal expense fund regulation as drafted. OGE should:

  • remove the exception that makes compliance with the regulation optional;
  • replace the proposed recusal requirement with a broader 5-year recusal requirement that prevents donors of cash gifts from influencing decisions, policies, or regulations affecting them or the industries in which they have substantial interests;
  • remove the offensive example involving an accused sexual harasser; and
  • place nonprofit charities (501(c)(3) organizations) on an equal footing with large law firms by allowing them to hire legal counsel for whistleblowers.

Tell OGE to say no to optional government ethics. If we’re ever going to root out corruption and hold those in power accountable for unethical practices, it won’t happen by giving them the ability to opt out.

WHAT TO READ (AND LISTEN TO)

Want to dig deeper? Here’s my suggested reading list: