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INSIGHT: Political Appointees Labeled ‘Lobbyists’ Face Matrix of Career Impacting Regulations

Dec. 9, 2019, 9:01 AM

When the White House looks to fill top spots in the Executive Branch, it turns to the private sector for help. Unique in the world, the American system of staffing high-level government positions with leaders from relevant industries, non-profits, and think tanks combines that talent with government resources to achieve the policy goals of the president and his administration.

After serving, these individuals return to their pre-government careers, bringing with them the value of their experiences and the satisfaction of having served the nation. Often caricatured as a “revolving door,” this system is an example of how public and private sectors can benefit from each other.

The model, of course, assumes that individuals will be able to function in government without suspicion that they “serve two masters” (i.e., favoring their former employers, customers, or clients), and that they will be permitted to leave government and capitalize on their experiences. Absent these assumptions, our system would break down, and the Executive Branch would be unable to attract talent from the private sector.

Current and recently-exited officials, however, face a matrix of regulatory constraints that could put significant pressure on the model. These constraints are intensified by the increased number of political appointees who are being marked as “lobbyists.” A recent ProPublica survey found that roughly four times as many lobbyists have served so far in the current administration than served in the previous one, making up over 7% of the current presidential appointee population.

A Matrix of Regulatory Regimes

The fact that many political appointees are or will become “lobbyists” is not—in and of itself—a problem. Rather, the various regulatory regimes restricting post-government employment that have evolved over the last 50 years and constrain certain activities related to that status create the problem. Navigating through this matrix is going to be an increasing challenge to those who have stepped forward to serve in the current administration.

The “anti-revolving door” landscape includes both criminal and administrative sanctions. This includes:

  • Section 207 of the criminal code, prohibiting individuals leaving the government from contacts with their prior agencies;
  • regulations that restrict ongoing “covered relationships” with prior employers, clients, and others;
  • the Lobbying Disclosure Act, requiring “lobbyists” to disclose details concerning their activities and clients; and
  • the Trump Ethics Pledge (or Pledge), which restricts individuals with prior lobbying or other activities from serving in the government, and—more importantly—restricts post-government “lobbying activities.”

Of these restrictions, the most potentially onerous are those in the Trump Ethics Pledge, which requires all political appointees who were registered lobbyists within two years of joining the government to promise not to participate for two years in matters in which they were registered to lobby or “participate in the specific issue area in which that particular matter falls.” It is not clear what is meant by this last clause.

The Pledge also limits post-government “lobbying activities” before an agency in which the individual served for five years after leaving that agency, and before high-level officials across the entire Executive Branch for the remainder of the Trump administration. The term “lobbying activities” is defined the same as it is in the Lobbying Disclosure Act and broadly includes any communication with certain officials made on behalf of another with regard to federal laws and policies, and Senate-confirmed nominees.

Importantly, the Pledge only covers advocacy before the Executive Branch and does not limit one’s lobbying before the Legislative Branch. It does, nonetheless, appear to prevent former officials from working behind-the-scenes on Executive Branch matters. A lobbyist who joins the government in her area of expertise and then leaves to return to private practice would be barred for some time from engaging in attempts to influence her former agency and high-level officials across the Executive Branch.

She also would be subject to other, time-limited restrictions in the Pledge, and prohibited from ever engaging in activity requiring registration under the Foreign Agents Registration Act. This is in addition to the criminal restrictions under Section 207, and any other agency-specific limitations that could apply.

Those thinking about entering or leaving the federal government should be aware of these hurdles before they make a move through the “revolving door.”

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Robert Rizzi is a partner in Steptoe’s Washington, D.C., and New York offices and co-chairs the firm’s tax practice. He represents prospective political appointees requiring Senate confirmation through the vetting process including Cabinet and sub-Cabinet members, administrators and commissioners of various agencies, and numerous ambassadorial appointees in both Democratic and Republican administrations.

Josh Oppenheimer is an associate with Steptoe in the Washington, D.C. office. He assists clients on their compliance with federal lobbying and ethics rules under the House and Senate Ethics and Gift Rules, the Lobbying Disclosure Act, the Honest Leadership and Open Government Act, the Foreign Agents Registration Act, the Federal Election Campaign Act, and the various statutory provisions and rules surrounding conflict of interest and “revolving door” employment.

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