12:00 pm
Ethics, Lynn, and Unintended Casualties
I want to take a moment to discuss an issue that has been covered extensively in the press — Obama’s new EO on Ethics and the waiver granted to DOD DepSec-designate William Lynn. Please read through to the end, as I think there’s an important component of this story that has been overlooked: the impact of the controversy on highly qualified individuals who are unintended casualties of both the order and Lynn kerfuffle.
As I’m sure all of you know, one of Obama’s first acts as President was to sign an executive order establishing strict guidelines both on what those serving in his administration could do once leaving and what they were doing before they joined it. The whole thing is worth reading, but for now let me highlight two sections. First the restriction on appointing people who previously have lobbied:
2. Revolving Door Ban All Appointees Entering Government. I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.
3. Revolving Door Ban Lobbyists Entering Government. If I was a registered lobbyist within the 2 years before the date of my appointment, in addition to abiding by the limitations of paragraph 2, I will not for a period of 2 years after the date of my appointment:
(a) participate in any particular matter on which I lobbied within the 2 years before the date of my appointment;
(b) participate in the specific issue area in which that particular matter falls; or
(c) seek or accept employment with any executive agency that I lobbied within the 2 years before the date of my appointment.
In general, I think these are laudable goals, and were they applied evenly, would help end the tendency of those in Washington to benefit financially from inside connections (as opposed to experience). The problem, as I’m sure you know, is there’s a loophole:
Sec. 3. Waiver.
(a) The Director of the Office of Management and Budget, or his or her designee, in consultation with the Counsel to the President or his or her designee, may grant to any current or former appointee a written waiver of any restrictions contained in the pledge signed by such appointee if, and to the extent that, the Director of the Office of Management and Budget, or his or her designee, certifies in writing (i) that the literal application of the restriction is inconsistent with the purposes of the restriction, or (ii) that it is in the public interest to grant the waiver. A waiver shall take effect when the certification is signed by the Director of the Office of Management and Budget or his or her designee.
(b) The public interest shall include, but not be limited to, exigent circumstances relating to national security or to the economy. De minimis contact with an executive agency shall be cause for a waiver of the restrictions contained in paragraph 3 of the pledge.
Further complicating all this is the fact that Obama has appointed (and OMB has granted a wavier to) William Lynn as Deputy Secretary of Defense, largely because SecDef Robert Gates wants him. Lynn has spent the past few years at Raytheon, where he was a registered lobbyist. Some Republicans — most notably John McCain — are now raising concerns about the wavier, questioning whether it undermines the EO.
I have no axe to grind with Lynn, nor any strong opinion about whether he is the right person for the job. But the controversy around his appointment means that the Obama Administration is likely to think twice before granting another wavier.
And that will mean some very talented people will be unintended casualties of an otherwise worthy objective.
You see, it’s not just the Raytheons of the world who hire lobbyists. Non-governmental organizations do it all the time. Many, like Human Rights Watch and the Environmental Defense Fund (and my former organization, Citizens for Global Solutions), have registered as lobbyists or established separate 501(c)4 arms to lobby. This is all perfectly legal under the IRS code regarding non-profits, and it gives them the chance to push Congress and the Executive Branch to do the right thing.
But now those who worked so hard during the Bush Administration to prevent it from torturing or gutting environmental laws or attacking the United Nations are now ineligible for jobs because they did the right thing — or to put it more bluntly, because they were fierce advocates for what is right at the very time that such opinions were most unpopular.
NGO advocates should not be penalized just because they did the right thing. In addition, it’s created a false dichotomy between two sets of people who sought the same goals: if a given individual is working at a university or think tank, they would not be affected by the order, even if they wrote dozens of op-eds and law review articles arguing that the Bush Administration should not do something. But if that same person instead worked for an NGO that has registered as a lobbyist — and wrote the exact same articles — s/he would be excluded by the terms of the EO, unless, of course, they received a waiver.
That’s ridiculous. President Obama should consider some sort of 501(c)3 NGO waiver that would remove this obstacle. He’ll have to be careful, however: many companies and industries have created “trade associations,” and many are registered as 501(c)4 non-profit lobbying groups. That probably means that legitimate NGOs that have established (c)4s are out of luck, but at least their colleagues on the (c)3 side will have a chance.