New rule would expand tight Obama lobbying rules to all federal workers

A new regulation proposed this week by the Office of Government Ethics (OGE) would prohibit all federal government employees from accepting any gifts from lobbyists.  

Originally, the absolute ban on lobbyist gifts was only applied to political appointees, per President Obama’s executive order on ethics that was signed early on in his administration. But if the proposed rule is finalized, it would expand the order’s tough restrictions on lobbyist gifts to career employees in the federal government as well.  

The regulation also would codify the stringent lobbyist gift ban implemented by Obama’s executive order, meaning the strict limits on the interaction between lobbyists and the Obama administration would stay in place after Obama leaves the White House, unless Congress repeals them or the next president initiates another rule-making procedure to amend the regulation.  

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“What this means is that these broader restrictions will go beyond the Obama administration. They will exist even after he leaves office,” Kenneth Gross, a partner at Skadden, Arps, Slate, Meagher & Flom, told The Hill. Gross heads the firm’s political law practice and advises clients on campaign finance and ethics law.  

OGE proposed the regulation because Obama’s executive order tasked the agency with expanding the lobbyist gift ban across the entire federal government. They are to consult with the attorney general and the White House counsel to craft the rule.  

The move to expand the lobbyist gift ban by OGE has won praise from ethics watchdog groups.   

“It is significant that they are putting these lobbyist rules into regulation,” said Meredith McGehee, policy director for the Campaign Legal Center. “With these regulations on the books, they can be administered and enforced like all other regulations on ethics.”  

“The new guidance certainly strengthens the gift restrictions for all executive branch employees, and that clearly deserves praise,” Craig Holman, government affairs lobbyist for Public Citizen, said in an email.  

Experts predicted the regulation’s impact on the daily lives of federal workers would be marginal. Nevertheless, it would put in place tough new restrictions on how they interact with lobbyists.  

Career employees now can accept individual gifts from lobbyists worth $20 each, valued up to $50 in the aggregate for a calendar year. That exception, known as the “de minimis” exception, would no longer exist under this regulation.  

“This would largely wipe that out. If you're a rank-and-file member of the executive branch, and you're attending a corporate event, you can't have wine, you can't have cheese,” Gross said.  

The proposed regulation would also eliminate other exceptions to the lobbyist gift ban. Federal employees would no longer be able to go to functions sponsored by lobbying groups even if they are widely attended gatherings. They also would no longer be able to accept social invitations from lobbyists or accept meals and entertainment provided overseas by lobbyists.

Those on K Street often use receptions and parties to develop relationships with government officials to benefit their lobbying clients, according to the proposed rule.  

“It is no secret that social events of this type sometimes are used as ‘lobbying tools,’ " the proposed regulation says. “The potential for harm, while perhaps latent, is nonetheless real.”  

The proposal would maintain exceptions for the lobbyist gift ban laid out in Obama’s executive order, such as a birthday gift from a lobbyist spouse or a training course provided by a lobbying organization that gives a discount to federal workers — to "avoid potentially absurd results," in the words of OGE. Further, federal employees can attend events held by lobbying groups if they are asked to speak at the event.  

The regulation would also exclude four different groups from its definition of a lobbying organization: 501(c)(3) nonprofit organizations, media companies acting in their news-making capacity, institutions of higher learning and professional associations that help with professional development.  

Howard Marlowe, president of the American League of Lobbyists, said his group is studying the regulation and plans to file comments. The lobbyist was angered that the proposed rule continues to narrowly focus on individuals who are registered under the Lobbying Disclosure Act and exempts nonprofit groups.  

“The proposed changes, however, continue this administration’s crusade against registered lobbyists while allowing advocates who operate without any public transparency to get a free pass,” said Marlowe, also president of lobby firm Marlowe & Co. “The proposal also appears to carve out an exemption for certain types of nonprofits. Creating distinctions among different types of groups or individuals who lobby would significantly reduce transparency.”  

Watchdog group representatives mentioned similar worries. While a 2007 ethics law passed by Congress barred groups that lobby from paying for congressional travel, it exempted nonprofit groups — including some who fund lawmakers’ trips today and are tied to lobbying organizations.

“Any of the nonprofit carve-outs raise some of the issues and concerns that this is trying to address in the first place,” McGehee said. “The notion that the nonprofits are disinterested parties is just plain wrong. It's not in sync with reality.”  

While the rule can be amended or repealed by congressional or regulatory action in the future, it would be politically tough for any president to weaken ethics rules. House Republicans, despite much animosity by lawmakers towards the independent Office of Congressional Ethics, have not defunded it since taking control of the lower chamber.  

“Once you impose a more restrictive ethics rule, it's very hard to back away from it,” Gross said. “It's like the Roach Motel. Once you check in, you can't check out.”  

OGE is accepting written comments on the proposed rule until Nov. 14.