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It Depends on the Meaning of the Word “Specific”

Section 3 of the Ethics Executive Order would appear to establish a broad ban on former lobbyists participating in any “specific issue area” on which they lobbied during the two years before being appointed to the Obama Administration.  The Lobbying Disclosure Act, 2 U.S.C. §1604(b)(2)(A), requires that lobbying reports contain “a list of the specific issues upon which a lobbyist employed by the registrant engaged in lobbying activities.” Although the E.O. does not define the term “specific issue area,” it seems reasonable to assume that this term is intended to refer to the specific issues which must be disclosed under the LDA. 

As I pointed out with regard to Mark Patterson, in line to be the chief of staff to Treasury Secretary Geithner, the identification of specific issues on the LDA form thus becomes a huge problem for appointees covered by Section 3 of the E.O.  It appears, however, that the Obama Administration, or at least parts thereof, may be adopting a more convenient interpretation of the E.O.  In Patterson’s case, Treasury does not consider itself to be bound by the identification of specific issues on the LDA form filed by Goldman Sachs.  Instead, Patterson’s recusal will be based on a different (and apparently secret) list of specific issues that he and the Treasury General Counsel’s office develop. 

The theory underlying this approach is that because Goldman Sachs did not disclose its specific issues by individual lobbyist, it is possible that some issues were handled solely by lobbyists other than Patterson.  Moreover, one can always re-write the “specific issues” identified on the LDA form to make them more specific, thus reducing the scope of the appointee’s required recusal.  Treasury was apparently displeased that some of the “specific issues” listed on Goldman’s form (e.g., “credit default swaps clearing,” “investment banking issues,” and “general economic conditions”) were not all that specific. 

What are the problems with this approach?  First, it seems inconsistent with the E.O.’s purpose in basing its restrictions on the LDA.  Presumably, the reason for using the LDA is that it provides an objective and publicly available record of who is a lobbyist, who was lobbied and what subjects were lobbied on.  Allowing individual appointees and their agencies to deviate from the public record based on arbitrary and undisclosed criteria hardly seems designed to enhance public confidence in the process. 

Second, there are bound to be questions raised with regard to discrepancies between LDA forms and the recusal decisions of particular agencies.  How does the administration know that Goldman’s LDA form does not accurately identify the issues Patterson worked on?  Is it making its determinations solely on Patterson’s current recollection?  Has it looked at the records underlying the LDA filing? 

Moreover, if the administration believes an LDA form is inaccurate, it ought to follow the procedures set forth in the law for correcting the filings.  The Clerk of the House and Secretary of the Senate are required to “review, and, where necessary, verify and inquire to ensure the accuracy, completeness and timeliness of registrations and reports” under the LDA.  If the administration believes that Goldman’s LDA filing was inaccurate, it ought to notify the Clerk and Secretary, who can then request that Goldman review and, if necessary, amend its reports.  See 2 U.S.C. § 1605(2) & (7). 

If Goldman was overly general in describing the “specific issues” on which Patterson lobbied, it was likely because Goldman and Patterson wanted the public to know as little as possible about their lobbying activities.  Now that this general description is inconvenient, why should Patterson be allowed, in effect, to amend the LDA filing in secret?  Instead, Goldman should file an amended report that states what Patterson really did. 

Personally, I think Section 3 of the E.O. is stupid and should be rescinded.  But until that time, the administration should abide by its restrictions.

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