‘Good government’ rules that aren’t
By D. Mark Renaud and Robert L. Walker,
Citing no examples of corruption, and with only pro forma appeals to the “appearance” of corruption, the Office of Government Ethics has proposed to further constrict executive branch rules on gifts from lobbyists and organizations — including corporations and trade associations — that employ lobbyists. We do not personally oppose proposals that would clean up a real source of corruption. The OGE proposal, however, would do nothing of the sort. Rather, it will stifle the exchange of information between government and the private sector, probably impeding the effective operation of government. And if adopted, these unreasonable rules are likely to never be rolled back.
The office proposes to eliminate — with respect to gifts to career civil servants from federal lobbyists and organizations that employ federal lobbyists — several long-standing, common-sense exceptions to federal gift rules that allow government employees to interact with business and other organizations. These exceptions include: the $20 de minimis gift exception (with a $50 annual limit from one source) that permits, for example, an inexpensive lunch; the “widely attended gathering” exception that permits attendance at conferences, trade shows and similar events in which substantive information is disseminated and exchanged; the “foreign areas” exception that permits the gift of meals to U.S. government officials traveling or stationed abroad on occasions that, for example, promote American trade.
Tightening the rules for gifts to government employees from lobbyists and their employers might be justifiable if there were a history of problems in such interactions and if the proposed remedies related to such problems. The OGE, however, has offered no examples or history to justify its proposal, except that President Obama enacted similar restrictions for political appointees through a 2009 executive order. Of course, the specter of Jack Abramoff hovers, but no one has suggested that the Abramoff scandal reached down to the level of career government employees. And any suggestion that the proposed gift ban for the executive branch tracks similar restrictions Congress imposed in 2007 on lobbyist gifts to legislative branch officials and employees is misleading in significant respects: The House and Senate, for example, rightly retained a “widely attended event” exception to their restrictions on gifts from lobbyists.
In fact, the OGE proposal contradicts the office’s own carefully articulated, well-tested rationale for a number of the exceptions it now seeks to eliminate when the gift is offered by a lobbyist or lobbyist employer. OGE even stated in its proposal that it “cannot deny the convenience of the $20 de minimis rule” and the “bright line test” it provides to employees. On gifts provided in “foreign areas,” OGE admitted that it “does not deny the utility or reasonableness of this exception.” The new restrictions on widely attended gatherings, the office suggests, will prevent repetition of past occasions “where the nexus to the government interest was attenuated.” But if this exception has been misapplied — and here the proposal was vague, citing “some instances over the years” — that speaks more to a failure of executive-branch ethics process than the effectiveness of the current rule, since ethics officials within each agency have long been required to pre-screen invitations to widely attended gatherings to ensure that an employee’s attendance will be “in the interest of the agency because it will further agency programs and operations.”
How would the proposed tightening of the gift rules harm government operations and even, ultimately, cost taxpayers? Say a Foreign Service commercial officer, assigned overseas, is doing her job promoting U.S. trade abroad by bringing together representatives of a U.S. manufacturer with a potential foreign partner. The U.S. company might want the officer to attend its get-to-know-you luncheon with the foreign buyers, but she could not — or U.S. taxpayers would be stuck with the tab — because, back home, three of the company’s 2,500 employees are federally registered lobbyists. Or suppose that same company belongs to a trade association that holds an annual multi-day conference and trade show on industry developments and upcoming trends; the event is attended by industry experts from around the world, but a staff counsel for the federal agency that regulates the industry could not attend — and could not participate in the best forum to learn about an industry his agency regulates — because the agency’s budget will not cover the expense and he could not accept the company’s offer to waive the $250 registration fee.
Anyone worried about government being too far removed from the people it serves should look critically at these proposals. If these rules are adopted in the name of “good government,” neither the Office of Government Ethics nor any future administration is likely to undo these more restrictive rules, even if the rules serve — as they undoubtedly will — as impediments to the core functions of government.
D. Mark Renaud is a partner in the law firm Wiley Rein’s election law and government ethics practice group. Robert L. Walker is of counsel in Wiley Rein’s election law and government ethics practice group. He served as chief counsel and staff director of the House and Senate ethics committees, respectively, from 1999 to 2003 and 2003 to 2008.