President Biden Issues New Ethics Executive Order: More Restrictions for Lobbyists and Organizations that Interact with the Administration
Date: February 8, 2021
By:
James A. Kahl
Gifts: Similar to the prior orders, the Biden Order prohibits appointees from accepting “gifts” from lobbyists and lobbying organizations during their term of office. The Order adopts the definition of “gifts” in the Office of Government Ethics (OGE) regulations, but has a narrower set of gift “exceptions.” For example, unlike career government employees, Administration appointees cannot accept gifts of $20 or less, informational materials, or invitations to speak at widely attended gatherings, unless the individual is speaking in an official capacity.
“Golden Parachutes” Prohibited: Many employers historically have provided benefits (including cash payments) to employees that take a position in the government. The Order prohibits appointees from accepting – before or after entering government service – any cash or non-cash payment that is available only to employees who accept a position in the US Government. Organizations that have special benefits for departing employees will have to carefully scrutinize such exit perks if they contemplate offering them to employees who leave to serve in the Administration.
Incoming Revolving Door Restrictions: The Biden Order imposes restrictions on incoming appointees who were registrants under the Lobbying Disclosure Act (LDA) or the Foreign Agents Registration Act (FARA) during the two years prior to government service. President Trump’s order only applied to LDA registrants. Such individuals may not for the two years after appointment: (a) participate in any matter on which they lobbied or engaged in FARA registrable activity, (b) participate in the specific issue area in which the particular matter falls, or (c) seek or accept employment with any executive agency with respect to which they lobbied or engaged in FARA registrable activity.
Outgoing Revolving Door Restrictions – Communications with Former Agency: The Order extends the existing statutory restrictions applicable to certain former Administration appointees communicating with their former agencies from one year to two years. These restrictions are also extended to communicating with senior White House staff.
Outgoing Revolving Door Restrictions – Lobbying and FARA Prohibitions: Appointees that leave government service may not lobby Administration officials or engage in any representation of a foreign government or political party that would require FARA registration for the remainder of the Administration or two years following the end of their service, whichever is longer. In addition, the Order instructs the Director of OGE to take steps to ensure that this restriction is followed by every employee of the executive branch. This would represent a significant expansion of post-employment restrictions to career government employees, and could impact the hiring strategies of organizations that regularly employ former government employees because of their knowledge, expertise and contacts within the government.
Outgoing Revolving Door Restrictions – “Behind the Scenes” Lobbying: Senior and Very Senior appointees who leave the government cannot for a period of one year “materially assist” others in making communications or appearances by engaging (or offering to engage) in lobbying activities in support of such communications or appearances to the appointee’s former agency. In the past, former government officials that went to work for businesses, associations, lobbying firms, or law firms were able to leverage their government experience through these types of “behind the scenes” efforts while they waited for the cooling off period on direct communications to expire. As with the post-employment restrictions, the Order instructs the Director of OGE to consult with the Attorney General, the Counsel to the President, and the Director of OMB, to explore expanding “to the fullest extent practicable” this behind the scenes restriction to all executive branch employees who are involved in the procurement process. Such restrictions may require new regulations, legislation or some combination of both.
Whiteford Taylor & Preston LLP has significant experience advising clients regarding lobbying, FARA and ethics issues. If you have questions about the new ethics Executive Order, please contact Jim Kahl at jkahl@wtplaw.com or at 202-659-6775.
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