President Biden signed an executive order on his first day in office establishing the ethics framework that will govern his appointees’ conduct for at least the next four years. By reinstating several prohibitions omitted or revoked by President Trump, and by adding new restrictions including bans on pre-employment “golden parachutes” and post-employment “shadow lobbying,” Biden’s ethics pledge attempts to reduce the influence of special interests and foreign actors over his administration.
Biden’s pledge sets the ethical tone for his administration by obligating his appointees to commit themselves to restoring and maintaining public trust in government. His success will depend on their actions, including the number and nature of waivers to the pledge that are granted. Those waivers are subject to mandatory public disclosure and are more likely to be granted to those who formerly lobbied on behalf of nonprofit organizations to allow them to avoid certain aspects of the administration’s ethics pledge.
Biden’s ethics pledge is summarized below, and a side-by-side comparison of Biden’s ethics pledge with President Obama’s and President Trump’s ethics pledges can be found at the bottom of the page.
Ethics Restrictions on Incoming Appointees
A new “golden parachute” ban reduces the potential influence of special interests by barring cash or non-cash payments from a former employer (whether accepted before or after taking office) when the appointee’s eligibility for such payments is based on their taking a position with the federal government. By reinstating Obama’s two-year ban on employment with an agency they lobbied in the previous two years, Biden addresses the perception that special interest lobbyists have an inside track on developing and implementing administration policies, concerns which arose with Trump’s appointments of Environmental Protection Agency Administrator Andrew Wheeler and Secretary of Interior David Bernhardt to his administration. Biden’s ethics pledge also limits foreign influence by extending his lobbyist restrictions to also cover any registered foreign agents who may be entering the administration.
Ethics Restrictions on Exiting Appointees
Biden includes a number of revolving door measures to address perceptions that political appointees may want to enter government to enhance their own marketability, allowing them to profit after leaving government by tapping into an array of newly-established administration contacts or strategizing with clients behind the scenes to give them the administration’s “inside scoop.” For departing senior appointees, Biden not only restores Obama’s two-year ban on communications with their former agency, but newly expands its scope to also bar communications with senior White House staff.
A new “shadow lobbying” ban prohibits departing senior and very senior appointees from “materially assist[ing]” others behind the scenes in making communications they are barred from making directly. Specifically, they are barred for one year from holding themselves out as being available to engage in lobbying activities or engaging in any such lobbying activities. The Biden ethics pledge bars them from providing “substantive assistance,” although this restriction does not preclude them from providing “background or general education on a matter of law or policy” based upon their “subject matter expertise.” While the “shadow lobbying” ban enhances restrictions on former senior and very senior appointees, it unfortunately does not appear to restrict more junior appointees from engaging in lobbying activities as Trump’s ethics pledge did before he revoked it. It also does not bar those covered appointees from engaging in “lobbying activities” after one year, as compared with Trump’s revoked ban that barred “lobbying activities” by all appointees for at least the remainder of his administration and for five years after termination when it involved their former agency.
When Biden partially reinstated Trump’s ban on engaging in foreign agent registered activity, Biden reduced its duration from a permanent ban to whichever is later: the end of the administration or two years following the end of their appointment. While reducing the duration of a ban might appear to weaken its impact, it may actually make it more durable. For example, both Trump and President Clinton revoked their ethics pledges at the end of their respective administrations. Biden’s more limited time frame may make his ethics pledge less likely to be revoked even though some of his former appointees will likely be affected beyond his administration.
Biden newly mandates that ethics pledge waivers be publicly disclosed within 10 days of issuance and reinstates Obama waiver standards (i.e. public interest or when inconsistent with the purpose of the restriction) that Trump omitted from his ethics pledge. Biden also calls out for special consideration to be given to waiver requests based on certain factors: the government’s need for the individual’s services, including special circumstances related to national security, the economy, public health or the environment; the uniqueness of the individual’s qualifications to meet the government’s needs; the scope and nature of the individual’s prior lobbying activities, including whether it was rendered on behalf of a nonprofit organization; and the extent to which the purposes of the restriction may be satisfied through other limitations on the individual’s services.
Biden made a campaign pledge to limit his own investments to U.S. Treasuries, annuities, mutual funds and residential real estate, but appears to have missed the opportunity to apply the same ethical standards to his cabinet officials and more senior White House staff. Divestment measures are particularly important following abuses that plagued Trump, his nepotistic White House appointees – Jared Kushner and Ivanka Trump – and cabinet members like Wilbur Ross, who, at the time of their appointments, were permitted by their ethics officers to retain investments in privately-held companies, even though there was little to no transparency into their creditors, investors or customers.
Overall, Biden’s ethics pledge takes a significant step towards restoring public trust in government. That’s no small feat following one of the most corrupt regimes in U.S. presidential history.
|1||Gift ban||Banned most gifts from registered lobbyists or lobbying organizations during appontment.||SAME as Obama EO: Banned most gifts from registered lobbyists or lobbying organizations during appointment.||SAME as Obama/Trump EOs: Bans most gifts from registered lobbyists or lobbying organizations during appointment.|
|2||Revolving door recusal - all appointees entering government||Required 2-year recusal from participation in specific party matters directly and substantially related to former employer or former clients, including regulations and contracts.||SAME as Obama EO: Required 2-year recusal from participation in specific party matters directly and substantially related to former employer or former clients, including regulations and contracts.||SAME as Obama/Trump EOs: Requires 2-year recusal from participation in specific party matters directly and substantially related to former employer or former clients, including regulations and contracts.|
|3||Revolving door recusals & agency ban - lobbyists entering government||Required 2-year registered lobbyist recusal from (a) participation in particular matters on which they lobbied within 2 years of appointment, (b) participation in the specific issue area in which the particular matter falls, and (c) seeking or accepting employment with agency that they lobbied within 2 years of appointment.||WEAKENED: Eliminated Obama's 2-year agency ban on working for agency they lobbied.||STRENGTHENS: Restores the Obama EO revolving door ban on lobbyists entering government, reinstating pararaph (c) that was omitted by Trump. Strengthens restrictions to also cover registered foreign agents and their prior activites.|
|4||Revolving door ban - post employment restrictions under 18 U.S.C. Â§ 207(c)||Extended application of 18 U.S.C. Â§ 207(c) to 2 years.||WEAKENED: Eliminated Obama 2-year cooling off period for senior appointees subject to 18 U.S.C. Â§ 207(c).||STRENGTHENS: Restores the Obama EO 2-year cooling off period for senior appointees leaving government and strengthens with new restriction prohibiting senior appointees from also communicating with senior White House staff.|
|5||Shadow Lobbying" Ban"||NEW: Adds new shadow lobbying" ban for senior and very senior appointees leaving government prohibiting appointees for 1 year from materially assisting others behind the scenes. Revises definition of "lobbying activities" to conform to more restrictive definition in the Lobbying Disclosure Act|
|6||Revolving door ban - post employment ban on lobbying||Upon departure, agreed not to lobby any covered executive branch official or non-career SES appointee for the remainder of the administration.||STRENGTHENED BUT THEN RESCINDED: Expanded Obama EO lobbying" ban to "lobbying activities" to prohibit appointees from engaging in lobbying activities with respect to any covered executive branch official or noncareer SES appointee for the remainder of the administration. Added but rescinded new 5-year "lobbying activities" ban to bar appointees from lobbying their former agency for 5 years after the termination of employment."||STRENGTHENS AND WEAKENS: Retains Obama EO lobbying ban and strengthens by extending its duration to whichever is later: the end of his administration or for 2 years following the end of the appointment. But weakens by limiting Trump EO lobbying activities ban to senior and very senior appointees and for 1 year under the new Shadow Lobbying ban.|
|7||Revolving door - post employment ban on FARA Registration activity||STRENGTHENED BUT RESCINDED: Trump EO FARA ban permanently prohibited appointees from engaging in any activity on behalf of any foreign government or foreign political party which, were it undertaken on January 20, 2017, would require them to register under the Foreign Agents Registration Act (FARA).||STRENGTHENS: Partially reinstates Trump post-employment FARA ban from a permanent ban to whichever is later: the end of the administration or 2 years following the end of their appointment.|
|8||Extraordinary Payment Golden Parachute" Ban"||NEW: Adds a Golden Parachute" Ban to prohibit receiving a cash payment (or non-cash payments in lieu of a prohibited cash payment) for accepting a position in the Government. "|
|9||Waivers||Authorized the Director of OMB, in consultation with the Counsel to the President, to grant a written waiver of any restrictions contained in the pledge if the literal application of the restriction is inconsistent with the purposes of the restriction, or if it is in the public interest to grant the waiver. Public interest includes, but not be limited to, exigent circumstances relating to national security or to the economy.||WEAKENED: Retained waiver provision but eliminated Obama EO standards for granting (when inconsistent with purposes of the restriction or when in the public interest, and in exigent circumstances relating to national security or the economy).||STRENGTHENS: Reinstates Obama Pledge waiver guidelines to grant when inconsistent with purpose or public interest, and strengthens by (a) requiring waivers to be made public within 10 days, (b) adding new public interest criteria (including national security, economy, public health, or environment), and (c) adding new factors to be considered for public interest waivers such as lobbying activities rendered on behalf of a nonprofit organization.|