President Biden Releases Ethics Pledge Aimed Largely at Revolving Door

Nossaman LLP

President Biden yesterday released the Ethics Pledge that will be required of all his appointees. The Executive Order on Commitments by Executive Branch Personnel was one of the first 17 Executive Orders issued on Inauguration Day. Officials of the prior administration were released of their obligations under the Trump White House Ethics Pledge when President Trump rescinded it early on January 20, 2021. As with the Trump and Obama Ethics Pledges, Biden’s is a contractual obligation of his appointees that overlays the criminal and civil penalties provided in federal ethics regulations.

We’ve put together a chart outlining differences among the three ethics pledges. The Biden Pledge, like Trump’s, went further than the Obama Ethics Pledge in that its “Revolving Door” post- employment restrictions apply to all lobbying activity and not just to becoming a registered lobbyist. Like his predecessors, including President Clinton, Biden included a ban on becoming a registered Foreign Agent. Like Obama and Trump, Biden includes a flat ban on all gifts from lobbyists with select exceptions. Biden’s Ethics pledge is noteworthy for going beyond those of his predecessors in a few respects.

First, Biden addresses “shadow lobbying,” a practice long decried by reformers. Biden officials commit that for one year following the end of their appointment they, “will not materially assist others in making communications or appearances that I am prohibited from making myself.” This provision is an attempt to restrict departing Biden Administration officials from becoming the type of “Strategic Advisor” or “Special Policy Advisor” who profits from advising on how to influence the Biden Administration without registering to lobby. In the past, high-level officials in consulting roles purported to act merely as a “resource” to clients regarding the thought processes and personalities of White House officials, as well as on the suitability of certain strategies to achieve policy goals. This prohibition still turns on the definition of “Lobbying Activity” in the federal Lobbying Disclosure Act. Enforcement of it will still depend upon whether the particular consulting activities of former Biden Administration officials becomes known.

Another notable focus of the Biden Ethics Pledge is on banning an incoming official from receiving a “golden parachute.” The pledge requires officials foreswear any salary, bonus or non-cash payment (i.e., stock options) from a former employer. The key to this provision is that the payment not be something that is available only to those individuals joining the U.S. Government. It is foreseeable that further clarification will be required for situations where higher-level executives departing for the Biden Administration are to receive a bonus that is customary for executives at their level, but not clearly proscribed in the policies and procedures of their private sector employer.

The Biden Ethics Pledge’s post-employment restrictions, however, are not as stringent as those issued in the Trump Pledge, which included a post-employment restriction on lobbying (a five-year ban) and FARA activity (a lifetime ban). Although the Trump post-employment restrictions were more strongly worded when issued in 2017, that pledge has been rescinded so the restrictions would no longer apply. In addition, the ethics pledges issued via executive order are contractual obligations between the appointee and the administration. A ban on FARA representations has been included in ethics pledges at least as far back as President Clinton. In practice, they are not enforceable beyond the life of the particular administration.

Although much of the Biden Ethics Pledge may feel familiar, the distinctions, which are outlined here, are worth reviewing since these differences (or “enhancements”) may be the areas more closely scrutinized by the press and the White House itself.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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