Bills
| 3.23.22

Should Ethics Waivers Granted to Executive Officials be Made Public? (H.R. 391)

Do you support or oppose this bill?

What is H.R. 391?

(Updated October 3, 2019)

This bill — the White House Ethics Transparency Act of 2019 — would require the administration to disclose ethics waivers granted to executive branch officials within 30 days of issuance. It’d also require that ethics waivers be posted publicly on the White House and Office of Government Ethics (OGE) websites.

Argument in favor

Making executive branch officials’ ethics waivers publicly available adds a layer of accountability when these waivers are granted. While past administrations have been forthcoming with this information, the Trump administration hasn’t been — that behavior shouldn’t be tolerated from the current administration or future administrations.

Argument opposed

While there was originally a back-and-forth between the Trump administration and the Office of Government Ethics over making Trump administration officials’ ethics waivers public in 2017, the Trump administration eventually fulfilled the OGE’s request for administration officials’ ethics waivers. This proves that there’s no need for this bill.

Impact

Ethics and transparency in government; executive branch officials with ethics waivers; ethics waivers; OGE; White House website; and OGE website.

Cost of H.R. 391

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Stephen Lynch (D-MA) reintroduced this bill from the 115th Congress as part of the Democrats’ H.R. 1, the For the People Act. Upon reintroducing this bill in February 2019, Rep. Lynch said:

“We have seen firsthand the Trump Administration waive its own ethics rules for officials and flood the White House and other federal agencies with former lobbyists, consultants, and industry attorneys whose previous work presents serious conflict of interest concerns. We all watched President Trump’s former National Security Advisor Michael Flynn plead guilty to lying to the FBI about his lobbying work for Turkey and his interactions with then Russian-Ambassador Sergey Kislyak, and the White House Ethics Transparency Act would have prevented his appointment in the first place.  The Trump Administration continues to impede oversight by the Office of Government Ethics and this bill would ensure the American people know precisely who is working behind closed doors in their government.”

Last Congress, Rep. Lynch originally introduced this bill in 2017 in response to the Trump administration’s refusal to disclose White House and other executive branch agencies’ employees’ ethics waivers, allowing them to bypass ethics rules. At that time, Rep. Lynch said:

“The Trump Administration’s continuing and brazen resistance to ethics transparency impedes necessary oversight by the Office of Government Ethics and decreases public confidence in the executive branch. While President Trump pledged to ‘drain the swamp,’ he has already flooded the White House and other federal agencies with former lobbyists, consultants, and industry attorneys whose previous work in the private sector presents serious conflict of interest concerns. Reports that former National Security Advisor Michael Flynn performed lobbying and consulting activities on behalf of foreign governments prior to his tenure in the White House underscore the importance of requiring the Administration to publicly disclose its decisions to waive its own ethics rules for executive branch officials. The White House Ethics Transparency Act would do just that and ensure that the American people receive the full picture of precisely who is working behind closed doors in their government.”

When he introduced H.R. 1, the For the People Act, which incorporates this bill, Rep. John Sarbanes (D-MD) said:

“We (Democrats) carried a message of reform, of fighting corruption, of cleaning up Washington. We made a promise to the American people. The new members who’ve come made that promise and made it clear they wanted this to be the first order of business. [This bill] is delivering on that promise.”

Senate Majority Leader Sen. Mitch McConnell has expressed strong opposition to the For the People Act, calling it a “power grab.” He’s blocked the bill from receiving a Senate floor vote, saying, “This is a terrible proposal; it will not get any floor time in the Senate.”

Additionally, when this bill was originally introduced in 2017, 58 House Democrats sent a letter to then-Office of Management and Budget Director Mick Mulvaney expressing concern over the Trump administration’s refusal to publicly disclose ethics waivers for high-ranking officials. They wrote:

“As Members of Congress, we are committed and bound to ensuring the American public has faith in the institutions that serve them – that includes upholding our ethics rules to keep conflicts of interest out of the highest levels of our government. To that end, we urge you to immediately comply with OGE’s original request to deliver all copies of waivers issued to appointees by the original June 1 deadline.”

This bill has one cosponsor, Rep. Elijah Cummings (D-MD). H.R. 1, the For the People Act of 2019, which incorporates this bill, was introduced by Rep. John Sarbanes (D-MD) with the support of 236 Democratic cosponsors and passed the House by a 234-193 vote.

In the 115th Congress, this bill had 27 Democratic cosponsors and didn’t receive a committee vote.


Of Note: In 2017, the Trump administration blocked a request by the Office of Government Ethics (OGE) to disclose ethics waivers issued to political appointees working in the administration. In a call for data sent to the White House on April 28, 2017, then-OGE Director Walter M. Shaub, Jr. requested that the administration give the OGE written copies of ethics waivers granted to political appointees under current Executive Orders and federal regulations governing executive branch ethics and conflicts of interest.

In what the New York Times called a “highly unusual move,” the Trump administration responded to the OGE data call with its own letter asking Director Shaub to “stay” his request. In a May 22, 2017 letter to then-OMB Director Mulvaney, Director Shaub declined the stay request and urged federal agency compliance with the June 1, 2017 deadline. Then-OMB Director Mulvaney responded with a May 26, 2017 letter to the OGE indicating that the administration would provide the requested information, but underscored that it’d be doing so “voluntarily.” Simultaneously, Director Mulvaney added that he’d continue exploring “legal questions” surrounding the OGE data call request.

While the OMB and OGE sparred over the ethics waivers, Marilyn Glynn, who served as general counsel and acting director of the OGE during the George W. Bush administration, called the Trump White House’s move “unprecedented and extremely troubling.” She added that the Trump administration’s refusal to make ethics waivers public upon request “challenges the very authority of the director of the [OGE] and his ability to carry out the functions of the office.”

Ethics waivers are granted to former lobbyists to grant them an exemption to a ban on them working on the same regulatory issues they previously lobbied on. Generally, these exceptions are made for people with special skills, or when the overlap between the new federal work and a prior job is minor. Both Presidents Barack Obama and Donald Trump have used these waivers. However, the Obama administration automatically made such waivers public and offered detailed explanations for their issuance; the Trump administration has not done so.


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / stevanovicigor)