Former White House lawyer defends Obama limits on lobbying, hints at possible changes

Before Bob Bauer started his lunchtime speech at a recent conference, his host wanted to make absolutely certain that the former White House counsel knew his audience.

“People here are critical of the president for being critical of lobbyists,” explained James Thurber, director of American University’s Center for Congressional and Presidential Studies and organizer of last week’s day-long discussion on lobbying reform.

Despite a snowy day, the session stuck to schedule in a windowless hotel meeting room, drawing a few dozen academics, reformers and some actual lobbyists while tourists lingered in the entryway above, their sightseeing plans snarled by the weather.

And despite the warning, Bauer, who worked in the White House during President Obama’s first term, proceeded with a hearty defense of the administration’s ethics reforms, and came lawyerly close to making news.

After campaigning against the role corporate lobbyists play in “setting the agenda in Washington,” Obama signed an executive order on his first full day in office barring those who have been registered lobbyists in the previous two years from working at an agency they had lobbied, or on an issue they had worked on — though several senior officials have received waivers. The order also prohibits administration appointees who later become lobbyists from lobbying other executive branch officials or senior appointees for the remainder of Obama’s administration.

Five years later, anger about the reforms comes from several directions. There are those who say the president’s moves unfairly cast all lobbyists in a sinister light, and there are those who say they simply encouraged anyone who might be interested in an administration job to remove themselves from the official registration rolls. (That’s a real problem for the researchers who were in the crowd, because it means they get fewer of the disclosure reports they rely on to do complex calculations about the influence industry.)

There’s also an ongoing court battle over a related, but separate, White House policy that banned lobbyists from serving on hundreds of government advisory panels. Those boards were created to reflect the views of private industry, and while lobbyists can’t now serve on them, other corporate officials can.

As he began to speak, Bauer made clear that he was well aware of the complaints about the executive order, which was issued before he began as White House counsel. (He spoke for about 20 minutes, stressing that the views were his own, and later posted a copy of his full remarks on his blog, called More Soft Money Hard Law.)

But he stood firmly behind the reforms. “There is something to be said, in substance, for generally establishing the proposition that those who have made a living as lobbyists for a particular private perspective on public policy should not as a general matter be expected to shift immediately into government positions and shed the private for a more general, public perspective,” he said.

He brushed off complaints from some quarters that the policy doesn’t distinguish between “bad lobbyists” and “good lobbyists,” pointing out that the federal lobbying disclosure law doesn’t make any such distinction, either. And he acknowledged that placing some people off-limits for administration jobs had been a cost of the reforms, while also noting that “any waiver will be taken as a sign of equivocation” on the administration’s commitment.

More broadly, as members of the audience shifted from sandwiches to cookies, he tried to discourage them from judging whether the policy had been successful based on whether it had changed the culture of Washington.

“An overhaul of culture is by definition a very tall order and not one that necessarily lends itself to immediate results, much less those accomplished by means of law and regulation,” Bauer said.

But most interestingly for several people in the room, the lawyer with close ties to the White House seemed to leave open the possibility of changes in the Obama policy. Bauer noted, for example, that “in the next phase of experience with these revolving-door restrictions, the use of waivers might be usefully liberalized,” and suggested that “the two-year period could be shortened to one year, or other aspects of the policy could be revised to limit its more expansive applications.”

There hasn’t been any official talk about rewriting the rules, and a White House spokesman declined to comment on Bauer’s speech.

But Thomas Susman, director of the American Bar Association’s governmental affairs office and a registered lobbyist, walked away thinking that Bauer’s comments meant the Obama administration might be ready to make some changes.

“Maybe the drumbeat of the lobbying community and other smart people in law firms and at NGOs, who’ve been saying that this could be a more refined, more rational prohibition, maybe it’s getting through.”

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