Ever since the establishment of the federal government, concern has ebbed and flowed about the use of improper means to influence the decisions of federal officers. Congress has responded to this concern frequently, but not always constructively. As the tide of controversy over unethical lobbying swells once again in Washington, I am concerned that we know just what abuse it is that needs our attention and what response would be most constructive.
sk,2 Recent events have caused widespread concern about former federal officials engaged in improper and unethical lobbying. I agree that we can neither condone nor tolerate the practice of using federal employment to gain privileged information to be later used for profit in the private sector as a lobbyist. Neither can we tolerate the practice of selling access and influence, to the possible detriment of our country.
sk Having agreed on these principles, the question arises whether current law and the enforcement of that law are sufficient to restrain such practices. Sen. Strom Thurmond does not think so, and has proposed legislation that would disqualify all persons who have held government office from subsequently undertaking representation of any foreign nation in the two years following federal government service. In addition, Thurmond would disqualify certain high-ranking executive branch employees from ever representing any foreign entity. Finally, his proposal would prohibit any former federal employee from representing any client before any agency of government for one year.
Improper lobbying must be curbed. However, this proposal would create problems as bad as those it seeks to solve.
No member of Congress, no executive branch employee, no presidential assistant is threatened by persons who merely seek to inform them, to give them the facts. Without all the facts, our government cannot and will not function as it should. A problem arises only when a person is employed not for his ability to gain knowledge and impart it to decision-makers, but for his ability to gain improper access and to exert personal influence on those decision-makers. Thurmond's bill goes far beyond restraining influence-peddlers and would penalize the public by making public service so restrictive that it would discourage intelligent people from serving the government.
sk,2 In addition, much of the conduct this proposal seeks to restrain is already unlawful. It is already unlawful for any former federal employee to lobby any government official on any matter in which the former employee participated personally and substantially while a federal employee. It is already unlawful for any former employee, during the first two years after leaving federal service, to lobby on any matter that was actually pending within the former employee's "official responsibility" during his or her last year of government service. Former senior employees are already subject to even more stringent restrictions, including a one-year ban on representing anyone in an attempt to influence their former agency on any matter.
sk Just as important are our laws to restrict the flow of confidential information through current and former federal employees. Any employee of the federal government who improperly discloses confidential information "coming to him in the course of his employment" is subject to federal prosecution. So is any person who improperly divulges classified or secret information.
Existing law is broad and encompassing. And if loopholes are found to exist, they should be closed. We do not need a new law; we do need existing law to be vigorously enforced.
If, instead, the Senate imposes a sweeping disqualification from an important area of professional activity, we could do major damage to the competence of government without improving the legal prohibitions on influence peddling. The Thurmond bill would prohibit, for example, a former secretary of agriculture from assisting a Third World nation to establish a rural electrification system. It would prohibit a former attorney general from lending his expertise to a foreign government wishing to eliminate corruption in its national police force. It would prohibit a physician in the Uniformed Health Services from offering his skills to an impoverished country fighting an epidemic during the two years after he leaves the federal service. It would prohibit an attorney employed by the State Department from entering a private law practice in which, during the first year after leaving the government, he represented a client seeking benefits in an administrative proceeding before the Social Security Administration.
In fact, it would expose each of these former employees to criminal prosecution. But it would not aid law enforcement officials trying to stem the flow of confidential government information to those outside of the government. It would restrict leaks of government information only by restricting the future employment possibilities of current employees.
What kind of message would the Senate send with this legislation? While we all want the message heard that influence peddling and harmful leaking will not be tolerated, we do not want the message sent that Congress suspects all government officials of being venal and in need of severe legal restraint. But this legislation proclaims that Congress thinks this kind of corrupt motive is so rampant that a sweeping ban on the future activity of certain federal employees -- a lifetime ban, in some cases -- is necessary. Such a message is unjustified, and counterproductive.
Instead of crafting new legislation, the Congress should look to the Justice Department to enforce existing law vigorously and to the courts to punish violators severely, pursuant to existing law.