Administration Promotes Lobbyist ‘Brain Drain’

Posted November 24, 2009 at 9:26am

Within hours of taking office, the Obama administration indiscriminately banished lobbyists from executive branch service, and soon thereafter prohibited them from even speaking with officials on important matters. But the White House soon realized it had cut off its own nose to spite its face, when it had to exempt registered lobbyists appointed to key posts. Instead of dropping the knife, the administration has now also expelled lobbyists from federal advisory committees, thereby lopping off its own ears. At this rate, even the most comprehensive health care overhaul cannot heal these wounds.

On Sept. 23, White House Special Counsel Norm Eisen announced on his blog that, beginning Oct. 30, registered lobbyists could no longer serve on the approximately 1,000 federal advisory committees. These committees, which were formalized by law in 1972 (but which trace back to the committee that advised President George Washington during the 1794 Whiskey Rebellion), are established to ensure that federal agencies are informed by crucial real-world perspectives.

Advisory committee participants are experts in their fields, and most are brought in from outside the government. Apart from their committee service, many also are retained by private employers to share their expertise with legislative and executive branch officials. Under the Lobbying Disclosure Act, their activities often require them to register as lobbyists, who have become a convenient but crude bull’s-eye for this administration.

In a recent November blog post, Eisen defended the latest assault on informed policymaking as an effort to “level the playing field to make sure that all Americans … are able to have their voices heard and their concerns addressed by Washington.— Eisen continued, “We believe small- and medium-sized business owners will be excited by the opportunity to help serve their country and advocate for their interests.—

The irony is that average Americans rely on lobbyists to advocate on kitchen-table issues. Just as the iPhone seemingly always has “an app for that,— there are individuals registered to lobby for just about any public interest issue one can think of. Affordable housing? There’s a registration for that. Anti-hunger? Ditto. Climate change and global warming (not on behalf of business or industry)? Check. Runaway/homeless/disconnected youth? You guessed it; there’s a registration for that.

The list goes on, and these issues were culled from a cursory search of the federal lobbyist disclosure database — for only the first quarter of 2009. And who, by the way, represents the “small- and medium-sized business owners— who “will be excited by— the administration’s expulsion of lobbyists? The National Federation of Independent Business. It spends millions of dollars on lobbyists each year.

Eisen’s illogic continues in a separate missive to the American League of Lobbyists. “Should members of the Administration wish to hear from anyone affected by this policy, they are free to call on such individuals for testimony or input,— he wrote. In other words, “Don’t call us, we’ll call you — if we ‘wish to.’— The audacity of hubris aside, Eisen’s letter reveals the central problem with the lobbyist purge. “What the policy restricts is giving these lobbyists a government position at the same time they are initiating their own separate contacts with the government to advocate for the positions of the special interests they represent,— Eisen writes.

If preventing conflicts of interest is the central concern (and it is certainly important), the no-lobbyists policy is at once too broad and too narrow (a problem I’ve noted in this paper about Eisen’s prior initiatives). Although there are strict criminal statutes and comprehensive ethics regulations governing all federal workers, they do not apply to most advisory committee appointees, who are not formally government employees. Instead, there is a patchwork of ethics policies for advisory committees that vary from agency to agency, and some hardly have any safeguards. Moreover, most committee members likely have extensive personal or business involvement with the issues they consult on, regardless of whether they are lobbyists.

The solution is not to expel all lobbyists, but to promulgate uniform regulations for all advisory committees parallel to those that govern federal employees. Members should recuse themselves when a committee’s work directly affects their personal or financial interests and file financial disclosure forms as well. (Some agencies already require recusal for all members, and all of the limited number of committee members appointed as “Special Government Employees— are required to file disclosures under current law and to abide by some ethics laws.)

Additionally, if the administration believes advisory committees currently do not adequately represent a cross-section of the American public, then the president needs to order agency heads to improve the appointment process. Simply expelling all registered lobbyists does not get at that problem. Instead, the policy creates a “brain drain— of hundreds of registered lobbyist experts who have served ethically and capably on advisory committees, and countless more prospectively. This hardly furthers the public interest.

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.