On January 20, 2009, President Barack Obama signed an Execute Order titled, “Ethics Commitments by Executive Branch Personnel” (the “Executive Order”). Following up on his campaign commitments to reduce the influence of lobbyists in Executive Branch affairs, the new Executive Order places significant restrictions on: (1) the ability of appointees to accept gifts from lobbyists and lobbying organizations; and (2) the ability of appointees to leave lobbying practice to work in the Executive Branch, and vice versa, through the “revolving door.” The centerpiece of the new restrictions is the Ethics Pledge, a seven-point commitment required of all executive agency appointees. The effect of these new restrictions could be to significantly limit the access that certain organizations and people have to Executive Branch personnel.
Lobbyist and Lobbying Organization Gift Ban
In a provision that may impose significant restrictions on the interactions between certain organization and persons and Executive Branch appointees, the Ethics Pledge includes a commitment to “not accept gifts from registered lobbyists or lobbying organizations” during service as an appointee. As used in the ethics pledge, “gift” has the same broad meaning as under the Office of Government Ethics (“OGE”) regulations, which includes all gratuities, favors, and hospitality. The Executive Order retains the OGE regulations’ exception to the definition of “gift” for refreshments that do not constitute a meal. Importantly, however, the Executive Order does not include the provision in the OGE regulations permitting an employee to accept gifts of not more than $20 per occasion, provided that the total received from any one source does not exceed $50 in a calendar year. With respect to lobbyists and lobbying organizations, Executive Branch appointees are not permitted to accept “gifts” of any value.
In another potentially far-reaching provision, the Executive Order includes “lobbying organization” in the lobbyist gift prohibition. A “lobbying organization” is defined under the Executive Order as an organization that files a registration under 2 U.S.C. § 1603(a). An organization is required to file under that section when it: (1) has lobbying expenses exceeding $10,000 in a quarter; (2) employs a lobbyist that spends more than 20 percent of his or her time on lobbying activities; and (3) makes more than one lobbying contact per quarter. The definition of “lobbying organization” is significant because it covers not only those organizations that primarily engage in lobbying activities, but also a number of organizations that exist for other purposes and engage in only limited lobbying.
Under this broad prohibition, many organizations that have traditionally enjoyed access to Executive Branch employees may find that certain channels are now closed. As an example, a charitable organization organized under Section 501(c) (3) of the Internal Revenue Code is permitted to engage in insubstantial lobbying activities. Many of these charitable organizations do lobby for limited purposes related to their organizational missions, and accordingly are registered under 2 U.S.C. § 1603(a). Under the Executive Order, these organizations are now considered “lobbying organizations” and, therefore, Executive Branch appointees may not accept “gifts” such as meals and hospitality from these groups. Early agency interpretations of this provision have been that Executive Branch employees may not even attend a reception held by a lobbying organization.
It is likely that over time, further guidance on the parameters of the ban, and the exceptions thereto, will add nuance to these rules. However, the current understanding among agency ethics counsel appears to be that the ban on gifts from lobbyists and lobbying organizations is absolute and should be met with strict compliance.
Revolving Door Restrictions
The other major aspects of the Executive Order are “revolving door” provisions that limit certain persons’ abilities to be appointed to Executive Branch posts, and limit Executive Branch appointees’ abilities to operate in the private sector once they leave government. These provisions supplement the current OGE revolving door restrictions, which limit the ability of Executive Branch employees as follows: (1) a permanent bar on representing an outside party before a federal agency, department, or court on matters in which the employee has participated personally and substantially; (2) a two-year bar on representing an outside party on a matter that was within the employee’s official responsibility; (3) a one-year “cooling off” period for a high-level official, during which he or she may not represent any outside party before his or her former agency; and (4) a one-year “cooling off” period for a very senior official, during which he or she may not make any communication or representation on behalf of any outside party to high-level Executive Branch officials, as well as to employees of his or her former agency.
As discussed below, the Executive Order extends the reach of revolving door restrictions to persons entering government. The Executive Order also includes a broad ban on lobbying current Executive Branch appointees once a former appointee leaves the government.
Restrictions on Participating in Matters Directly and Substantially Related
The first type of revolving door restriction limits the ability of a private person to serve as an Executive Branch appointee and participate in any matters directly and substantially related to his or her former employer and clients, for a period of two years.
Restrictions on Lobbyists Entering Government and Appointees Leaving Government
Under the Executive Order, a lobbyist entering government may not, within two years following appointment, participate on the particular matter or area regarding which he or she lobbied, or seek employment with an Executive Branch agency that he or she lobbied. In addition, the post-employment ban on a former appointee communicating with employees at his or her former agency with the intent to influence official action is extended to two years. Finally, an appointee leaving government to lobby may not, for the duration of the administration, lobby any covered Executive Branch official or senior appointee. Clearly, the intent of these provisions is to reduce the influence of lobbyists, both inside and outside of government, on Executive Branch affairs.
It is important to note that all limitations contained in the Executive Order are subject to waiver provisions where it is in the public’s interest that a waiver be granted. Already, a former lobbyist for Raytheon Company has been granted a waiver in order to serve as Deputy Defense Secretary. In addition, the appointment of a former lobbyist for Goldman Sachs Group Inc. to a high-ranking position with the Department of Treasury has raised controversy regarding the administration’s commitment to enforce the Executive Order. How the administration goes about implementing and interpreting these potentially farreaching restrictions over the months and years to come will play a large role in determining the ultimate influence of these rules on the role of lobbyists in interacting with the Executive Branch.