The Pentagon has quietly asked Congress to reverse key parts of a recent law that tightened the rules governing retired Defense Department officials influencing their former government colleagues on behalf of defense contractors.
Three years ago, Washington enacted a defense authorization law that expanded restrictions on former defense officials’ lobbying.
The new rules were authored by the late Arizona Sen. John McCain. They lengthened from one year to two years the period during which the most senior Pentagon officials were banned, upon leaving office, from lobbying their former colleagues. And the McCain provisions added new limits on whom in the Defense Department former officials could lobby — and how.
In a legislative proposal submitted to Congress with the fiscal 2021 budget request, the Pentagon asked lawmakers to throw out most of the McCain measure.
On Tuesday morning, 15 groups that monitor government spending urged congressional committee leaders to not only keep McCain’s provisions but to strengthen them.
“Decisions about where and how to wage war, which weapon systems to buy, and who should win contracts should be based on what’s in the best interest of our national security and protecting our citizens,” read a letter from the coalition, which is led by the Project on Government Oversight and Public Citizen. “The proposal put forward by the department, unfortunately, would only increase the opportunities to put private gain ahead of the public interest.”
The letter went to the leaders of the Armed Services panels in both chambers and to the top members of the Senate Homeland Security and Governmental Affairs Committee and the House Oversight and Reform Committee.
Massachusetts Sen. Elizabeth Warren, the former Democratic presidential candidate who is a member of the Armed Services Committee, told CQ Roll Call she is not surprised by the new proposal because, she said, “a former defense industry lobbyist is running the Pentagon,” a reference to Mark T. Esper, who was vice president for government relations at the Raytheon Company — one of the top U.S. defense contractors — before becoming Defense secretary.
“As our country fights a global pandemic, it has never been more critical that the Pentagon’s decisions are driven by what keeps people safe, not what lines the pockets of the defense industry,” Warren said. “I’ve fought hard to close the revolving door between the Pentagon and defense industry, and I’ll do so again here.”
Jessica Maxwell, a Pentagon spokeswoman, told CQ Roll Call that the legislative proposal is aimed not at rolling back McCain’s measure but rather to make the defense law consistent with a criminal statute governing lobbying and to eliminate some confusion engendered by the 2017 law.
“The Department of Defense believes the amendments promote good government by remedying inconsistency with the criminal law and clarifying enforcement,” Maxwell said.
Relaxing post-retirement rules
After a post-retirement period, former Defense Department officials are not limited in lobbying their former colleagues, except that they cannot seek to influence weapons or other programs they personally worked on.
The current debate is instead about the rules governing what newly retired officials can and cannot do — during a relatively short post-retirement period — to influence their former colleagues who still serve in the department.
McCain’s measure extended for certain officials the length of that post-retirement period.
His provisions ensured that someone who retired as a three-star general or admiral or the civilian equivalent would be limited for two years in communications with currently serving Defense Department officials, as opposed to the previous one-year cooling-off period. Lower ranking generals, admirals and civilian equivalents remain constrained in their communications for just one year.
The Pentagon proposal would not alter the sections of McCain’s measure affecting the length of the cooling-off period, but it would do away with two other key elements of McCain’s measure: who could be contacted and how.
McCain’s language had altered the rules so that during the cooling-off period, former top officials and officers were not only barred from lobbying the people with whom they used to work directly but also anyone else in the Defense Department.
The Pentagon’s new proposal would return the law to a more limited application. It would bar former officials from lobbying any office in the military service or Pentagon agency where they had been employed.
However, the Pentagon’s proposal would still permit former top officials to lobby anyone else in the department, with one exception: Former officials who retired from Senate-confirmed positions would not be able to lobby anyone in the Defense Department.
“The proposal illustrates the extent to which DoD will go to keep the revolving door in full swing,” said Emily Manna, policy director at Open the Government, one of the groups that signed the letter to lawmakers.
Definitions of influence
What’s more, the Pentagon would change not just who gets lobbied but also what influence activities are covered.
McCain’s provision expanded the types of activities restricted during the cooling-off period so that it covers not just “contacts” with government officials but also “preparation and planning activities, research and other background work” that could support a company’s lobbying efforts.
McCain’s goal, experts said, was to ensure that former officials could not do behind-the-scenes work for someone else who would then be the person to hold the meeting, make the phone call, or send the email.
The Pentagon proposal would do away with the ban on such activities and would return the law to its more limited focus: barring just the contacts themselves.
To critics, that allows too much contractor influence on officials and officers who are soon to retire, and it gives contractors that are well-staffed with former brass a leg up.
“The last thing Congress should do is give the influence-peddling industry even more unfettered access to how the department spends more than $700 billion per year," said Mandy Smithberger, a director at the Project on Government Oversight.
Eyeing tougher rules
The coalition would like to not only block a rollback of McCain’s measure but also to toughen it by expanding the list of activities that former officials would have to avoid for a year or two to also include functions such as strategic consulting and business development.
President Donald Trump had promised on the campaign trail in 2016 to “close all the loopholes that former government officials use by labeling themselves consultants and advisers when we all know they are lobbyists.”
But when Trump issued an executive order in 2017 intended to restrict the influence of special interests, he applied it only to registered lobbyists, not to the army of consultants and advisers in Washington who are technically not lobbyists but who exert tremendous influence.
For instance, Robert Rangel, a senior vice president for government affairs at Lockheed Martin Corp., the Pentagon’s top contractor, did not register as a lobbyist for months after he took that job in 2015 because he did not meet the precise legal criteria. Rangel had been both a congressional and Pentagon staffer prior to joining the company.
Since 2008, defense contractors have hired more than 400 formerly high-ranking Defense Department officials and officers as not only lobbyists but also board members, executives or consultants for defense contractors, according to a Project on Government Oversight database.