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An Ethics Policy Worthy of the Sneetches

My father, like most, used to caution me to beware the law of unintended consequences. Under that less-than-scientific theory, any purposeful action — no matter how well intentioned — can produce counterproductive results. When it comes to his administration’s new ethics and lobbying policy, President Barack Obama would do well to take heed.

Rumors have been circling for weeks that one of the primary reasons that Obama has been unable to fill key administration positions at crucial departments like Treasury and Defense is the restrictions borne out of his ethics policy.

Under the new policy, any lobbyist who joins the administration is prohibited from working on any matter or issue he worked on during the previous two years and is subject to tighter restrictions upon leaving government to lobby.

The policy has been rightfully praised for its transparency and accountability but also criticized for being riddled with loopholes and exceptions. Some have even pointed out that if the president is truly committed to ethics reform, he would seek to enact his new policy — which remains just internal rules — into federal law.

But now this week we learn that some have attempted to comply with (or circumvent) the policy by terminating their lobbying registrations or retroactively de-registering. According to the Washington Post, Congressional records show that more than 700 lobbyists or groups have filed de-registration papers since the new policy was announced. At least one group reportedly filed documents seeking to retroactively terminate its lobbying registration, arguing that it never should have registered in the first place.

This unintended consequence has created a scenario reminiscent of Dr. Seuss’ “The Sneetches.— Don’t remember the Sneetches? In the children’s story, there were both plain and star-bellied Sneetches. A “Fix-It-Up Chappie— rides into town with a machine that can remove the stars from the star-bellied Sneetches, thus eliminating the stigma.

So in order to comply with the lobbying restrictions, some lobbyists are terminating their registrations or simply de-registering — thus proverbially removing the star from their bellies. Such acts will certainly be questioned and scrutinized. And lobbyists who may have once aired on the side of sunlight may opt instead for the shadows out of concern for potential public employment. Does this really promote the transparent and honest government we were promised?

Then there are the acts that often take place behind the scenes but that do not amount to lobbying activity. A study released by the Center for Responsive Politics claimed that lobbyists made more than a half-billion dollars over the past decade without reporting what they did to earn the money. It detailed how behind-the-scenes advice and practices such as stealth lobbying — that may not amount to lobbying activity as defined by law — do not need to be reported. Lobbyists are often confronted with strategic decisions as to how to best represent their clients, and such decisions may be modified when they are deciding between public registration and non-disclosure. Whether such often legal but non-disclosed activities will be perpetuated under Obama’s policy remains to be seen. Or not seen.

The lobbying process, rooted in our constitutional rights to speech, association and petitioning the government, is protected by the First Amendment. Lobbying laws were enacted to help make the process more regimented, open and transparent. Recent trends suggest the pendulum may be swinging the wrong way. The president should adopt policies that encourage public disclosure, not chill it. It is time for Obama to take a step back and review not just his flawed policy, but lobbying laws in general. He should craft a sensible and clear standard worthy not of the Sneetches, but rather of his promises to the American people.

Elliot S. Berke is an attorney in Washington, D.C., focusing on political law.

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