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Op-Ed | The American Prospect | October 7, 2020

The Biden Transition’s Ethics Pledge Is a Paper Tiger

2020 Election/TransitionEthics in Government

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For all of his failures—at business, governing, and even just sitting still and receiving proper medical care for a deadly virus—the American public can always count on Donald Trump to put on a show. For four years, he has gripped the country’s attention with an unending stream of scandals. If current polling trends are any guide, however, the curtain may soon be closing. Without all the distraction, we’ll be left squarely facing a key question: How do we fix what Trump revealed to be broken?

To address it all, we will need governance reforms the likes of which we have not seen since Watergate. Joe Biden can help set us on the path toward more ethical, less captured governance. Unfortunately, the Biden team’s recently released transition code of ethics suggests little appetite for this sort of pathbreaking leadership.

If you’ve read coverage of the plan’s release (a big “if” considering it dropped just after the debate and just before the president’s diagnosis), you may be surprised at our critical tone. Didn’t, as so many outlets reported, Biden ban lobbyists from serving on the transition team? The short answer is no, not really.

Before we get into those details, we should note one bright spot. The transition team has barred past or current leaders of fossil fuel or private prison companies from serving. That’s a great sign that they recognize some industries don’t deserve an inside track to presidential power (of course, it’s revealing that that list somehow doesn’t also include finance, Big Pharma, Big Tech, or other corporate villains).

Unfortunately, there’s less to celebrate when it comes to lobbyists. The code of ethics stipulates that current lobbyists and those who have registered within the last 12 months cannot serve on the transition team except if they receive approval from the general counsel. So, practically speaking, lobbyists can serve, just as long as they get the general counsel’s nod.

Compare this to similar codes from Hillary Clinton and Barack Obama. While weaker in one respect—neither excluded those who had registered within the last 12 months—theirs were stronger in another: Currently registered lobbyists were barred, no exceptions. This distinction might seem irrelevant if the Biden transition’s general counsel was someone with demonstrably unimpeachable ethical judgment. But she’s not.

Before joining the transition team this summer, Jessica Hertz was a shadow lobbyist for Facebook. She joined the tech behemoth as its director and associate general counsel for regulatory matters in the spring of 2018, less than a month after the Cambridge Analytica scandal broke, when it was no longer possible to even feign ignorance about the scale of its abuses. Despite it all, she tenaciously defended Facebook from the regulatory scrutiny that might have helped avert any number of the platform-fueled disasters that have since ensued.

There is a great deal of irony in the fact that the person making the call on lobbyists serving on the transition was, until a few months ago, a lobbyist in all but official registration. While Hertz didn’t make the reportable contacts that trigger registration, she would have worked behind the scenes to orchestrate Facebook’s influence strategy, doing what any normal person would describe as lobbying. If lobbying laws weren’t so porous, Hertz herself could be disqualified under this code. Needless to say, given this record of coziness with corporate power, we have no confidence that she will be anything but a rubber stamp for lobbyists hoping to join the transition team.

Beyond just allowing Hertz into the transition effort, the ethics plan’s reliance on the official definition of lobbying leaves a big opening for corporate influence. Officially registered lobbyists are far from the only players in the political influence game. Shutting the door on corporate America will require thinking more expansively. Most Americans understand the word “lobbyist” to mean “person paid to persuade politicians,” but it’s a precise legal term that refers to a very specific activity: telling a member of Congress or executive branch rulemaker that they should vote either “yes” or “no” on a specific bill or proposed regulation.

Anything else, including the pricey steak dinners, campaign contributions, and high flattery that most people associate with lobbyists, isn’t technically lobbying. Plenty of high-profile officials at top lobbying firms aren’t technically registered lobbyists, but do plenty of work to ensure that the interests of their clients find their way into public policy.

Corporate legal defense and think-tank advocacy doesn’t fit under the definition either. Lawyers are paid to represent corporations before the government, even if they don’t recommend votes on specific bills or regulations. And corporate-underwritten think tanks continually write papers arguing in favor of some public policy or another, which also doesn’t technically equate to lobbying, even if it has specific goals and targets in mind.

In other words, the work of puppeteering Congress and the White House is far more sophisticated than just one class of schmoozer. This is why politicos refer to an “influence industry,” rather than just lobbyists. Which means that there are plenty of other corporate lapdogs who can slip into a Biden administration to do ExxonMobil, Pfizer, or JPMorgan’s bidding, all without violating the transition’s ethics pledges.

To most Americans, these are all purely semantic distinctions. Of course when people say they’re sick of lobbyists, they also mean that they’re sick of BigLaw and corporate think tanks! But to the lawyers and spin doctors who work in the influence industry, leaving anything up to an assumption of intent provides an opening, one which they regularly widen out to keep their voices in the room.

So yes, it is just semantics—but we’re dealing with people whose job is to exploit semantics. And they’re really good at it. The Biden ethics pledge leaves plenty of semantic openings for professional influencers to weasel into the transition team, and the rules are being enforced by a fellow veteran of this industry, Hertz.

Thus, progressives must be that much more relentless in their watchdogging, whistleblowing, and united resistance to any business-as-usual political appointees-in-waiting. For Biden to even stand a chance at overcoming the resistance of the corporations causing or exacerbating America’s many interlinked crises, the professional saboteurs of the influence industry must, at last, be locked out.

2020 Election/TransitionEthics in Government

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