Drain the Swamp, Indeed: Ethics Reform and the Next Administration

My late father used to tell me when I was young that I didn’t suffer fools gladly. Not much has changed. I tend to call shenanigans when I see it in politicians. We should be honest that President Obama as a candidate was damaging to campaign finance reform. For example, when he refused to use public funds in his campaign against John McCain in 2008, he essentially killed public financing for presidential elections. Now my b.s. detector is stuck on 11 when I look at the president-elect.

One of the things that makes Trump a bit inscrutable is he had multiple stances on key issues. So it is difficult to predict which of the seven positions he took on an issue was sincere. But one of the stances he took on a more regular basis was his professed disdain for the Washington establishment and the role of lobbyists in it.

Last month he put out a threadbare ethics proposal which I will quote in toto so that you can see that it looks like something dictated onto a cocktail napkin:

Donald J. Trump’s Five-Point Plan for Ethics Reform

“It’s Time To Drain The Swamp In Washington, DC That’s Why I’m Proposing A Package Of Ethics Reforms To Make Our Government Honest Once Again.” – Donald J. Trump

First: I am going to re-institute a 5-year ban on all executive branch officials lobbying the government for 5 years after they leave government service. I am going to ask Congress to pass this ban into law so that it cannot be lifted by executive order.

Second: I am going to ask Congress to institute its own 5-year ban on lobbying by former members of Congress and their staffs.

Third: I am going to expand the definition of lobbyist so we close all the loopholes that former government officials use by labeling themselves consultants and advisors when we all know they are lobbyists.

Fourth: I am going to issue a lifetime ban against senior executive branch officials lobbying on behalf of a foreign government.

Fifth: I am going to ask Congress to pass a campaign finance reform that prevents registered foreign lobbyists from raising money in American elections.

Not only will we end our government corruption, but we will end the economic stagnation.

When reporter Jonathan Salant of New Jersey Advance Media asked me about the ethics reform package, I told him, “It’s not clear that what they’re proposing would actually survive judicial scrutiny.” As Salant noted, the First Amendment guarantees the right “to petition the government for a redress of grievances,” which is a textbook definition of lobbying. But Trump’s proposal is so bare bones that it’s impossible say whether the courts, who look at nuance and detail, would find it constitutional.

For a more serious ethics reform package look at The American Anti-Corruption Act which has been proposed by the bipartisan group Represent.Us. This Act addresses lobbyist bundling, dark money, gerrymandering, and private financing of elections among other reforms. Tallahassee was the first city to adopt the Act in 2014, and South Dakota voters just approved an extensive reform measure with many of the Act’s elements.

Most of the proposed Trump ethics reforms are lobbying regulations. But the Trump transition team does not look like a bunch who are likely to tackle any aspect of lobbying reform because well, it is full of lobbyists and other Washington insiders. As Salon put it, the people on Trump’s transition team “represent a mixture of cronyism, nepotism (Trump’s three eldest kids and his son-in-law are also advising the transition), shady legal and ethical ties, and influence peddling that might make Richard Nixon blush.” The New York Times was more muted but made the same point, “[S]ome of the most prominent voices [in the transition] will be those of advisers who come from the same industries for which they are being asked to help set the regulatory groundwork.”

The “Fifth” Trump suggestion “to ask Congress to pass a campaign finance reform that prevents registered foreign lobbyists from raising money in American elections” is already law. Since 1966, the Foreign Agents Registration Act (FARA) has barred agents of foreign principals from making monetary contributions on behalf of their overseas clients relating to any campaign for elective office. If Trump means a foreigner who lobbies, those individuals are also barred by long-standing federal laws from giving money to federal, state, and local candidates. In fact, all foreign nationals are barred from contributing to US campaigns.

Ironically, as I explain in this forthcoming law review article, the law banning foreign money may have been violated by the Trump campaign when it solicited money from members of Parliament in the UK, Australia, Denmark and Iceland. Political commentator Josh Marshall wrote with some relish of the Trump campaign’s overseas entreaties, “Trump and his wastrel sons appear to be developing a new composite literary form – the hybrid campaign money ask/Nigerian email scam email.”

I hope the Trump administration proves me wrong. I would like nothing more than to see stronger ethics rules and laws that better address money in politics. If you think that Trump’s acting on ethics or campaign finance reform is impossible, it’s worth remembering that the last major law on these topics (the Bipartisan Campaign Reform Act) was passed by a Republican Congress and signed into law by George W. Bush. But color me deeply skeptical for now as we are off to an abysmal start with the incoming administration.