Executive order places 5-year lobbying ban on White House officials, leaves out Congress
President Donald Trump signed an executive order Jan. 28 that will restrict some of the lobbying White House officials can do after they leave his team.
Like most presidential crackdowns on ethics, it has caveats.
During the campaign, Trump pledged to reinstitute a five-year ban on executive branch officials lobbying the government after they leave office. He's also called on Congress to pass a five-year ban on lobbying by former members of Congress and their staff.
In the past, he said he'd rather Congress pass the bans into law to assure they will stick, but that's not the route he's taken with White House officials.
This lobbying ban lasts longer than the two-year threshold set by former President Barack Obama in 2009, but still doesn't completely satisfy Trump's original promise for a few reasons.
First, Trump's ban doesn't apply to congressional officials.
Currently, congressional officials are still beholden to the Honest Leadership and Open Government Act of 2007, which dictates a two-year cooling off period for senators, and a one-year period for representatives lobbying their formal office or committee. If Trump wants to change the lobbying rules for congressional officials he'll need to convince Congress to pass a law that overrides or amends the act.
Until then, part of Trump's campaign promise is still in limbo.
Second, the order only bans White House officials from lobbying their former agency, not from becoming lobbyists. The exact wording of Trump's promise specifies that the five-year ban be placed on "all executive branch officials lobbying the government."
Walter Olson, a senior fellow at the libertarian Cato Institute, said it's possible Trump's administration is just trying to cover the biggest problem: people going back to lobby their former colleagues to take advantage of their inside knowledge.
In addition to untouched congressional rules and the agency-only ban, there's also ongoing discussion on whether the definition of "lobbying activities," as defined by Section 2(n) of federal administrative code, carves out exceptions for the type of lobbying that can be done.
Most of the definition of "lobbying activities" is similar to language used in other lobbying legislation, but the exemption for agency proceedings (i.e "any agency process for rulemaking, adjudication, or licensing") is still being examined.
"There is on-going discussion in the legal community as to whether this provision will create a loophole or is justified because these administrative proceedings are governed by the Administrative Procedure Act," Meredith McGhee, the policy director at the Campaign Legal Center said.
Another potential issue is more lobbying in the shadows — when former government officials lobby, but do so without meeting the definition of a lobbyist. (They might be called strategic advisers, for example.)
Trump's executive order carries over the strict definition of lobbying as defined in the Lobbying Disclosure Act.
The future of this rating will depend on if Trump follows through on his promise for congressional officials and whether the language of the order creates lobbying loopholes.
As it stands now, this order only restricts some of the lobbying executive branch officials can do, and accomplishes substantially less than Trump's original promise to enact a five-year ban on lobbying, by only restricting White House officials from lobbying their former agency. He also signed an executive order instead of getting Congress to pass it into law.
We rate this promise Compromise for now.
Email interview, Walter Olson, senior fellow at the Cato Institute, Feb. 1
Email interview, Meredith McGehee, policy director at the Campaign Legal Center, Jan. 31, 2017
Phone interview, Tim LaPira, associate professor of political science, James Madison University, Jan. 31, 2017
Email to Steven Cheung, White House spokesperson, Jan. 30, 2017
House.gov, Lobbying Disclosure Act Guidance, last revised June 16, 2016
Citizens for Responsibility and Ethics in Washington, "The Trump Ethics Pledge: Explained," Jan. 30, 2017
Donald J. Trump, Contract with the American Voter
PolitiFact, Obameter: "Tougher rules against revolving door for lobbyists and former officials," last updated on June 12, 2009
WhiteHouse.gov, " Ethics Commitments by Executive Branch Appointees," Jan. 28, 2017
Enact 5-year ban on White House and congressional officials from lobbying
As part of his effort to "drain the swamp" of Washington and enact new ethics laws, Donald Trump promised to increase regulations on the type of lobbying that congressional and White House officials can do after they leave public service.
Trump has vowed to reinstitute a five-year ban on executive branch officials lobbying the government after they leave office. He's also calling on Congress to pass a five-year ban on lobbying by former members of Congress and their staff. (All of these pledges can be found in Trump's 100-day "Contract with the American Voter.")
"It is time to drain the swamp in Washington, D.C," Trump said at a rally on the campaign trail. "This is why I'm proposing a package of ethics reforms to make our government honest once again."
WHY HE'S PROMISING IT
Of the 164 members of 113th Congress who had to get a new job after the 2014 midterm elections, 80 are now employed at lobbying firms (48.8 percent).
Trump's proposal goes beyond the rules already in place. Currently, former House members must wait one year before they can lobby Congress, and former senators must wait two years. White House officials in Barack Obama's administration must wait two years before lobbying, per executive order.
WHAT NEEDS TO HAPPEN
Former presidents Bill Clinton and Obama signed executive orders that established "cooling off" periods for White House officials once they left their post.
Trump could follow in Obama and Clinton's footsteps and sign an executive order to ban executive branch members from lobbying for five years, but Trump has said he'd rather Congress pass the ban into law to assure it will stick.
In order to implement a five-year ban on lobbying former members of Congress, the 115th Congress would also have to pass a law.
WHAT'S STANDING IN HIS WAY
Trump needs Congress to enshrine these bans in law. But it's important to note that while a double ban on lobbying might seem like a win-win, there could be some drawbacks to Trump's promise.
Timothy LaPira, a political science professor at James Madison University, said Trump's promises — if successful — could actually make matters worse because it may expand "lobbying in the shadows."
This happens when former government officials lobby, but do so without meeting the definition of a lobbyist. (They might be called strategic advisers, for example.)
Under current law, the definition of a lobbyist is strict, LaPira said.
You must be earning money from lobbying. Second, you must have had contact with more than one government official. And last, you have to spend 20 percent or more of your time on behalf of a client in three-month period.
"Calling it a 'ban' on lobbying isn't really true," LaPira said. "It's a ban on lobbying that meets this unreasonably strict definition."
So unless Trump changes the definition of a lobbyist (which he has promised, vaguely), lobbying "in the shadows" will continue.
A POSSIBLE TIMELINE
Trump could sign an executive order to establish the five-year ban on lobbying for White House officials on the afternoon of Jan. 20.
That leaves four years (at least) for Congress to pass these promised rules into law.
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