President Barack Obama Imposes New Restrictions on Lobbying and Gifts

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Obama Imposes New Restrictions on
Lobbying and Gifts

On January 21, 2009, in his first full day in office, President Barack Obama issued an executive order containing some of the farthest-reaching and toughest lobbying and ethics restrictions ever adopted. In a separate order issued the same day, President Obama also signed an executive order transferring to himself, rather than any former president, the ultimate authority to determine whether a claim of “executive privilege” shall apply to a former president’s papers.

Severe Restrictions on Executive Branch Appointees and Post-Employment Lobbying

With respect to lobbying activities, the President’s order bars “every appointee in every executive agency” from lobbying any other executive branch official or any senior appointee upon leaving government service. Unlike past such orders which have typically limited post-employment restrictions to two year “cooling off periods,” the newly issued order bars any senior appointed official from returning to lobby during any time of the entire tenure of Obama’s administration.

The order further makes clear that any appointed official within the Obama Administration who was a lobbyist any time during the preceding two years must agree not to accept employment from any executive agency lobbied in the two years before appointment, participate in any matter, or participate in any “specific area,” in which that official lobbied during the preceding two years.

Incoming appointees who were not lobbyists prior to entering government are likewise not immune from revolving door bans under the new executive order. Every new appointee, whether a lobbyist or not, is prohibited from participating “in any particular matter involving specific parties that is directly and substantially related” to the appointee’s former employer and clients, including regulations and contracts. Given the need for the new administration to appoint individuals with experience relevant to their new position, this broad new prohibition is likely to require considerable attention and likely a significant number of waivers to its application.

Potentially Significant New Gift Rule Barriers When Interacting with Executive Branch Officials

The Executive Order contains a single sentence barring every appointed official in the executive branch from accepting a gift of any kind “from lobbyists or lobbying organizations.” While this single sentence appears straightforward on its face, the reach of this ban, as well as the implications and exceptions to, this prohibition will require careful consideration.

First, the ban contained in the executive order is drafted to apply only to individuals fitting the definition of “appointee” in any executive agency appointed after January 20, 2009. The order defines an “appointee” as “every full-time, non-career Presidential or Vice- Presidential appointee, non-career appointee in the Senior Executive Service . . ., and appointee to a position that has been excepted from the competitive service by reason of being a confidential or policymaking character [including so-called Schedule C positions] . . . in an executive agency. It does not include any person appointed as a member of the Senior Foreign Service or solely as a uniformed commissioned office.”

Although the executive order appears to ban all gifts, the definition section must be carefully reviewed to determine which of the exceptions commonly utilized by the private sector when interacting with executive branch officials still remain available. For example, it appears that appointees may continue to receive modest items of food and refreshments, such as soft drinks, coffee and donuts, offered other than as part of a meal; gifts from personal friends; plaques and trophies; and travel and related expenses accepted by an agency in connection with attendance at a distant meetings relating to the appointee’s official duties. Not surprisingly, the exception for gifts of $20 or less was eliminated. A glaring change, however, appears to be the elimination of the exception that normally allows for speaking engagements, and attendance at “widely attended gatherings” and other events, even when appointees are attending in their official capacity in the interest of the agency because it will further agency programs and operations. On its face, the Executive Order would thus seem to allow payment for an appointee to attend a meeting or industry event across the country; but not in the Washington, DC metropolitan community. Likewise, appointees would be barred from speaking at or attending local meetings and events that can be freely attended by their subordinates. Given these apparent anomalies, it remains uncertain how these provisions will be interpreted and applied.

Executive Branch Procurement is Next

With this order, the President has imposed significant restrictions on the activities of lobbyists joining the current administration and significantly curtails the lobbying opportunities for appointed officials upon leaving the administration. Of equal importance, and receiving less attention in the recent press, the executive order also makes clear that the administration intends to explore significant additional disclosure requirements on any individual or entity involved with government procurement of any kind. The order instructs the Director of the Office of Government Ethics to report to the President on “steps the executive branch can take to expand to the fullest extent practicable disclosure of . . . executive branch procurement lobbying and of lobbying for presidential pardons, and to include in the report both immediate action the executive branch can take and, if necessary, recommendations for legislation.”

The order further makes clear that the President intends to severely curtail the future lobbying activities of any individual within his administration who is currently involved in procurement of any kind. In so doing, the order instructs the Director of the Office of Government Ethics to

report to the President on steps the executive branch can take to expand to the fullest extent practicable the revolving door ban set forth in [this order] to all executive branch employees who are involved in the procurement process such that they may not for 2 years after leaving Government service lobby any Government official regarding a Government contract that was under their official responsibility in the last 2 years of their Government service; and to include in the report both immediate action the executive branch can take and, if necessary, recommendations for legislation.

Limitations Imposed on Claims of Executive Privilege by Former Presidents

In a break from an executive order issued in 2001 by President Bush, President Obama issued an executive order on openness for presidential records which mandates that he, rather than any former president, shall make the final determination whether executive privilege shall apply to executive branch information:

Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General . . ., the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist's determination as to whether to honor the former President's claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege. . . . In making the determination . . . , the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.

For additional information, contact any of the McKenna Long & Aldridge LLP attorneys listed above. Information about McKenna Long & Aldridge LLP’s Political Law Group, including a list of professionals practicing in this area, is located at http://www.mckennalong.com/politicallaw.

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