Call it the Malinowski Paradigm. It goes like this: All lobbyists are created equal. And lobbyists who lobby for Human Rights Watch or similar public interest groups in the environmental, food safety or consumer protection world are equivalent to those who lobby for profit-making corporations.
[IMGCAP(1)]In other words, according to the paradigm, the fiduciary obligations of the corporate lobbyist, whose lobbying work is directly tied to the bottom line of his or her employer, is equivalent to someone who lobbies for an idea or a cause, like, for example, someone who lobbies to reduce the number of accidental deaths among children.
There are probably a few hundred Tom Malinowskis in Washington, D.C. Malinowski is the head of the Washington office of Human Rights Watch and perhaps the leading candidate for the administration’s top human rights job at the State Department.
Because he was a registered lobbyist for Human Rights Watch, however, he never had a chance. And he has since assumed the status of poster child for the Obama administration’s absurdly broad stance of banning from a job in the administration virtually anyone who has registered under the Lobbying Disclosure Act in the past two years.
Anyone, even though, as one scientist at a national environmental organization puts it: “There is a distinction between someone who lobbies for an oil company and someone who lobbies for public policies on oil use.—
That means if you were lobbying on behalf of Mother Teresa — and were responsible enough to register — you couldn’t get a political-appointee post in this White House, not as one of the 1,100 or so presidential appointees who needs Senate confirmation, the roughly 300 who don’t, the 1,500 schedule C politicals — many of whom are young and have positions like confidential assistants — or one of the 650 or so non-career members of the Senior Executive Service.
All those jobs, which are the federal government’s senior-most policy jobs, are off-limits. It is the policy spelled out in an executive order released the day after the inauguration that forbade anyone from accepting employment with any executive agency if he or she lobbied that agency within the two years before his appointment.
It’s their rule — and they’re sticking to it.
In fact, there is anecdotal evidence that the administration is amplifying the order in two directions: that any registerable lobbying activities will bar someone from a potential appointment in the administration, even if the appointment is to an agency the candidate never lobbied; and according to at least one environmental lobbyist, potential political appointees have been discarded if they never filled out an LDA form but still lobbied the Hill, though at a level below the threshold needed to trigger registration.
But the president’s chief ethics counsel, Norman Eisen, said flatly that there has been no expansion of the lobbyist exclusion. “That is not our policy,— Eisen responded. “Lobbyists are excluded from working on the subject matter, the specific issue area and for working in the agency where they lobbied. That is the exclusion,— he said.
In one respect, it’s an easy calculation to understand: The public relations benefits outside the Beltway of a blanket ban on lobbyists outweigh the damage to good public policy caused by shrinking the pool of potential job appointees.
The administration will argue that its wholesale ban on lobbyists improves public confidence in government, and that to slice and dice the regulation would defeat its purpose.
It also insists that there’s plenty of talent nationwide in any manner of subjects — that, hypothetically, if the Bureau of Land Management is forced to pass up a BLM expert at the Nature Conservancy for a job as the bureau’s assistant director of renewable resources and planning simply because that person is a registered lobbyist, then there are plenty of capable substitutes available.
And there probably are. But why compromise on public policy? What if that BLM specialist is the best person for the job?
Consider who was left out of the running for Commission slots at the Consumer Product Safety Commission: at least three D.C. folks who have spent much of their life working the commission on behalf of consumers.
Alan Korn is the director of public policy in the Washington office of Safe Kids Worldwide. Rachel Weintraub is the director of product safety at the Consumer Federation of America. “A lot of us registered as lobbyists a few years ago out of an abundance of caution,— Korn said. “I have now terminated my registration back to the summer. If it’s not required, then why do it?—
Lawyer and lobbyist Pamela Gilbert was executive director of the CPSC from 1996 to 2001. A partner in the law firm Cuneo, Gilbert & LaDuca, Gilbert is a registered lobbyist. But her client has nothing to do with consumer protection; she lobbies on an antitrust matter.
“I didn’t lobby the CPSC and never have,— she said. But she nonetheless had registered in 2007. “I had made a couple of phone calls to the CPSC for data. … It was a client I had on a safety issue, it was a year or less, and it’s long gone. I’m not sure they would have picked me anyway, but this whole lobbying thing just freaked them out.—
Judged on Your Knowledge
There’s one rich irony that has attended the Obama lobby policy: The Lobbying Disclosure Act of 1995 was a good-government measure that was a huge improvement on the previous lobby law, greatly expanding the number of people who registered, and as a consequence, greatly increasing transparency in a city that did most of its business behind closed doors.
The Obama administration is trying to clean up public policy by removing the taint of lobbyists. But the consequence of its broad-brush actions is to discourage new lobby registrations and encourage deregistrations, both of which cut down on government transparency.
“Democrats are becoming complete sticklers for the lobbying law, and unless they’re 100 percent squarely in that camp, no one will register,— said one veteran lobbyist who is registered. “Most the of the people I know in my situation aren’t registered lobbyists, but they haven’t changed one iota what they do. All you’re doing is decreasing disclosure.—
So what’s the public policy rationale in that?
But it’s worse.
The law, noted another public policy lobbyist, is not only over-inclusive, catching public-interest lobbyists in its grasp as well. It’s also under-inclusive, because by focusing so exclusively on the bright line of LDA registration, the administration is giving a pass to the myriad other people who still influence public policy on behalf of monied interests — but without registering under the LDA.
“There are plenty of lawyers who have done anti-public-interest things in their legal careers for their clients, but because what they’ve done has nothing to do with Washington or Capitol Hill, they don’t have to register,— the veteran lobbyist noted.
Those people have the good fortune to be assessed on their individual qualities, the lobbyist added, and not tossed aside because they happened to have registered under a law that still has Mack-truck-sized loopholes.
Those people, the public policy lobbyist added, can be judged on what surely must be the most important criteria for a federal job: “Whether they are knowledgeable about the issues, and whether they would have conflicts with the people they would be regulating.—