K Street quickly cast doubt on the effectiveness of Donald Trump’s five-year lobbying ban on transition and administration officials, saying the rule would both deter top talent from joining Trump’s team and expand the use of loopholes.
On its face, Trump’s ban would last longer than any policy hitherto in force. But it’s already become increasingly common for former officials to find ways to use their influence without registering as lobbyists.
Trump’s ban will probably intensify that trend, and its announcement probably had more to do with protecting the president-elect’s anti-establishment image than actually disrupting the revolving door, lobbyists and legal experts said.
“It seems like more rhetoric and a knee-jerk reaction to filling the transition with a lot of lobbyists when he campaigned at the eleventh-hour about draining the swamp,” said Paul Miller, president of the National Institute for Lobbying & Ethics. “You’re going to see more and more people unregister. I’m calling it the shadow lobbying society.”
Under the definitions in the Lobbying Disclosure Act, former officials can avoid registering as lobbyists if they spend less than 20 percent of their time in meetings with government officials or preparing for them. Thus, some former officials ration their time to avoid such direct contacts, even if they’re directing colleagues on how to gain favor for clients. The workarounds are sometimes known as the “Daschle loophole,” after the former Senate Democratic leader who advised clients for a decade before registering as a lobbyist earlier this year.
Trump’s team was clearly aware of these loopholes because closing them was part of the GOP nominee’s five-point campaign pledge to “drain the swamp,” alongside the five-year ban and a lifetime ban on lobbying for foreign governments. But Trump has yet to take steps to close the loopholes.
The Trump transition also has at its disposal a draft executive order, prepared by former ethics lawyers for Barack Obama and George W. Bush and obtained by POLITICO, that would extend restrictions to anyone seeking to trade on government contacts, not just registered lobbyists. The draft was sent to an aide to New Jersey Gov. Chris Christie when Christie was in charge of the transition. Last week, Trump removed Christie as transition chief in favor of Vice President-elect Mike Pence.
“Whether it’s real or it’s window dressing will depend entirely on what other rules go with it,” Norm Eisen, a former ethics lawyer for Obama who worked on the draft, said of Trump’s five-year ban. “Because the LDA is so full of loopholes, we didn’t just target the LDA. We closed those loopholes and that is why the Obama administration has been, according to Democrats and Republicans alike, the most scandal-free in modern history.”
Obama barred his officials from contacting their former agency for two years, although they were free to lobby other parts of the government. Senior officials could not lobby their former colleagues for the duration of the administration.
Trump’s ban would last longer but apply more narrowly. It also might not be enforceable beyond his time in office.
“Barring passage of new law by Congress, this is just smoke and mirrors and totally unenforceable,” one Republican lobbyist said. Even so, the lobbyist added, “this will scare off some potential hires, because whether or not it is enforceable, there will be some not willing to take that risk.”
Lobbying campaigns increasingly involve more than congressional meetings, anyway, utilizing advertising, polling and social media. More restrictions on lobbying itself will probably accelerate the shift to those other influence techniques.
“People without independent money will definitely think twice about serving unless they picture themselves returning to communications or legal practice, not policy,” said Stewart Verdery, the founder of Monument Policy Group and a Homeland Security officer under George W. Bush.
The ban might even be a boon to traditional lobbyists, to the extent it makes them more valuable by thinning out the competition.
“There is no substitute for someone with the ability to make regular, direct contacts with the officials and staffers calling the shots,” another lobbyist said. “People who already lobby and make regular contacts now as part of their profession are going to be even more in demand, because they won’t be competing with people leaving the administration and immediately going downtown.”
Even if Trump’s five-year ban proves effective, his ethics rule is conspicuously weaker for people entering government service.
The Obama transition, like an earlier code of ethics for the Trump transition obtained by POLITICO, restricted people who lobbied within the previous year from working on those matters that they lobbied on. But Trump’s new policy requires them merely to terminate their clients before joining the transition or the administration; in other words, they can lobby up until the day before they start working for the government.
“There is some credit to be had that, at least rhetorically, it is an important step,” Lisa Gilbert, director of Public Citizen’s Congress Watch, said of the five-year ban. “The devil is still in the details though, in the way the ban defines lobbyists.”
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