Executive Order on Lobbying All Sound and Fury

Posted February 23, 2009 at 3:36pm

If Shakespeare were writing a play about the Obama administration, it would inevitably include an executive order proclaiming: “The first thing we do, let’s kill all the lobbyists.”

As a candidate, Barack Obama signaled his disdain for K Street by prohibiting lobbyists from contributing to, and generally from working on, his campaign. As one of the first acts of his presidency, Obama signed an executive order expanding “revolving-door” and gift restrictions applicable to lobbyists. Yet the nomination of former Sen. Tom Daschle (D-S.D.) (itself a Shakespearean tragedy) and other top appointments have exposed Obama’s war on lobbyists as too broad and, at the same time, too narrow.

Under the executive order, registered lobbyists may not serve in agencies they have lobbied within the past two years, and they may not even participate as an administration appointee in any “specific issue area” on which they lobbied. The order further prohibits administration employees from lobbying any part of the executive branch after they leave, so long as Obama is president. Lastly, the order prohibits appointees from accepting any gifts from registered lobbyists.

The first problem with Obama’s executive order is that it paints all lobbyists with the broad brush of corruption, deception and dishonesty. Yet the administration has nominated William Lynn, a former top Raytheon lobbyist, as deputy Defense secretary. It has appointed Mark Patterson, a former Goldman Sachs lobbyist, as chief of staff to the Treasury secretary. It has installed Patrick Gaspard, a former Service Employees International Union lobbyist, as White House political director. The list of lobbyist appointees who technically violate the executive order probably will only grow in the coming weeks.

Through these personnel choices, the administration has recognized implicitly, but has not yet conceded publicly, that some of the most talented and best-qualified individuals to serve in government are lobbyists. In this respect, the executive order is internally inconsistent, as it proclaims “any hiring or other employment decisions … will be based on the candidate’s qualifications, competence, and experience.” If those are the main criteria for appointees, then the fact that they were registered lobbyists would be an asset in many cases.

Lobbyists for business, industry and nonprofits have firsthand knowledge of the entities that government regulates and affects. Individuals become lobbyists precisely because they understand the impact government has on their employers and clients. Conversely, having worked in both the private and public sectors, I have encountered many career government employees who have no practical experience with the entities they regulate. Such inexperience often results in unrealistic regulations, uninformed policymaking and unfair enforcement.

Unless one believes that, somehow, government can provide on its own all of our wealth, health care, food, housing and other essentials, the private sector is critical to the public’s well-being. Thus, it seems naive, if not demagogic, to pretend that some of the best-qualified administration appointees would not be lobbyists for the private sector.

As for the gift ban, the executive order doesn’t fare any better. The prohibitions on gifts from lobbyists and “lobbying organizations” are haphazard and irrational. The order eliminates the pre-existing exemptions that allow gifts valued at less than $20 and invitations to widely attended events.

The wisdom of these bans is debatable. But the order also apparently prohibits accepting awards and honorary degrees from lobbyists and “lobbying organizations,” as well as attendance at speaking engagements, where officials would inform the public about administration policies. So much for transparency. Because the order defines “lobbying organizations” as any registrant under the Lobbying Disclosure Act, it applies broadly even to sponsors such as universities and other nonprofits that register under the LDA.

If Obama’s executive order is aimed at restricting lobbyists and former government employees from selling their personal relationships with one another to gain special access and influence over regulators and policymakers, it also is too narrow. The executive order applies only to lobbyists who must register under the LDA.

Alas, the LDA has very technical requirements regarding what constitutes a “lobbying contact” and “lobbying activities,” and how much of each a lobbyist must engage in before registering. Additionally, there are certain income and expenditure thresholds to be met. Thus, bigwigs like Daschle can still call up their friends and colleagues to schedule appointments for their clients, or advise their employers on background, without being subject to the executive order.

Whether the executive order against lobbyists is the product of Obama’s genuine commitment to government ethics, or yet another reactionary response to the Jack Abramoff scandal, it was not apparently crafted with much care or concern for the consequences. To the extent the order is reactionary to Abramoff, legal professionals like Obama (a former lawyer and law professor) are familiar with the saying, “Bad facts make bad law” (and, by extension, bad policy). At its very best, the order is “full of sound and fury, signifying nothing.”

Eric Wang, a political law attorney, has advised clients on all aspects of government ethics laws. He can be reached at ericwang@alumni.princeton.edu.