WASHINGTON – Thursday morning, Kellyanne Conway, in an interview in the White House and in her official public role as White House Counselor, went on TV to tell the American people to “go buy Ivanka’s stuff.” By encouraging the audience to buy products sold by Ivanka Trump, the adult daughter of President Donald Trump, appears to have violated the ban on federal employees using their public office to endorse products, and an investigation is needed to determine the seriousness of the violation and what action should be taken.  Violations of this rule can result in disciplinary action such as reprimand, suspension, demotion or dismissal.

“This ethics violation is clear,” said Larry Noble, general counsel of the Campaign Legal Center. “It’s a total misuse of taxpayer funds and her federal office to have the White House Counselor going on television to ‘give a free commercial’ – in her own words – and encourage people to buy Trump-affiliated products. When you decide to work in government, you are promising the American people that you are there to serve the public. Conway broke that promise.” Now, apparently in response to the public’s reaction, the White House said that Ms. Conway had been “counseled” about her actions, but refused to elaborate on what that meant.  “This is not an acceptable resolution of the matter,” Noble said. “The public has a right to know what action has been taken and what she was told.”

Given the failure of the White House to take forceful action, Noble added, the Office of Government Ethics (OGE) should take action to see that the law designed to ensure the proper use of government resources and separate government policy decisions from private dealings is enforced. Ultimately, the Department of Justice (DOJ) or Office of Inspector General (OIG) could be called upon to take action. However, with Jeff Sessions at the helm of the DOJ, it’s unclear whether there is a reliable enforcement mechanism that exists in the government with its myriad conflicts.

Still, there are avenues available to address this problem. For example, the Chairman and Ranking Member or the House Oversight and Government Reform Committee sent a letter Thursday asking the OGE to investigate the matter and recommend disciplinary action against Conway.

“However, we have to recognize,” Noble said, “that Kellyanne Conway is just the tip of the iceberg. This administration has shown a dangerous disregard for the ethics laws and norms that are necessary for the people to have faith in their democracy. It is time for Congress to investigate the broader issues related to the real and apparent conflicts of interest that are resulting from President Trump's continued involvement with his and his family’s businesses.”

Today, Gerry Hebert, director of voting rights and redistricting at the Campaign Legal Center, released the following statement on the confirmation of Jeff Sessions as attorney general of the United States: 

“The U.S. Senate has failed us today,” said Gerry Hebert, director of voting rights and redistricting at the Campaign Legal Center. “The confirmation of Jeff Sessions as attorney general is a direct threat to voting and civil rights. Sessions has perpetuated the myth of massive voter fraud, claims that undermine our democratic institutions. That he will oversee President Trump’s call for plans to ‘investigate’ non-existent voter fraud is surely an effort to prevent minorities from participating in future elections and to purge them from the voting rolls. Unfortunately, even though Sessions has prosecuted black citizens on phony charges of voter fraud in the past, the Senate failed to question Sessions on the role he has played, or the role he plans to play, in Trump’s voting rights witch hunt.”

“It’s clear that during this new era at the U.S. Department of Justice, we will have to be vigilant, especially those of us who used to work there and treasure it as a place where justice is done. Civil rights litigators and advocates will now have to bear the burden of fighting for justice, because a Justice Department headed by Jeff Sessions can no longer be relied upon to enforce and protect our civil rights.”

On Jan. 9, Mr. Hebert submitted written testimony to the Senate Judiciary Committee about racial insensitivity he personally witnessed by Sessions, and later submitted supplemental testimony to respond to inaccuracies about his testimony by Senator Cruz and Senator Sessions himself. The testimony flagged inaccuracies in Sessions’ questionnaire, in which Sessions falsely claimed he litigated four civil rights cases in Alabama, apparently in an effort to bolster his non-existent record of voting rights enforcement.

WASHINGTON –The Campaign Legal Center and Democracy 21 filed two letters with formal comments to the FEC: one supporting a rulemaking petition defining how parties may use the new accounts created in the 2014 “cromnibus,” and the other opposing an effort to open loopholes for state and local parties which would allow more unregulated soft money into federal elections.

CLC Supports FEC Rulemaking Defining the Proper Uses of Party Accounts Created in 2014

CLC and Democracy 21 filed formal comments supporting a proposal that the agency enact rules directing how parties may use the high-dollar accounts created in the 2014 Omnibus Appropriations “cromnibus” bill. 

In late 2014, Congress snuck a last-minute rider into an appropriations bill that created three new separate party accounts for the DNC and RNC. Each account is authorized to receive huge contributions of up to $100,200 per donor, per year, thereby allowing a single donor to give more than $300,000 to these national party committee accounts.

The use of the money in each of these new accounts is supposed to be restricted: one account is to pay for the presidential nominating conventions, a second account is to pay for the legal costs of election recounts and other legal proceedings and the third account is to pay for party headquarters buildings.

But, because the FEC has yet to write rules defining how parties can use these accounts, it appears the parties have used them as a slush fund to fund a wide range of election-related activities. Last election cycle, one Republican campaign finance attorney told the Washington Post, “I think both political parties will find many creative ways to use the quasi-soft money accounts to support their presidential candidates. . .We are in an environment in which there has been virtually no enforcement of the campaign finance laws, so it would arguably be political malpractice not to make maximum uses of these accounts.”

CLC and Democracy 21’s comments supported a petition for rulemaking to write rules describing the appropriate uses of funds raised for these accounts and to crack down on abuse.

Read: Comments: REG 2013-10 - on Notice 2016-10: Implementing 2015 Omnibus Appropriation Act

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CLC Opposes Proposal to Deregulate State Party Use of Soft Money

CLC and Democracy 21 also filed comments opposing a rulemaking petition from Minnesota’s Democratic Farm-Labor Party asking the FEC to loosen regulations on how state and local parties can use “soft money” – meaning large (often unlimited) contributions not subject to federal law—on federal election activities.

From the late 1970s through the 1990s, the FEC created a series of loopholes opening the door for state and local parties to use soft money, in many cases raised by federal candidates, on a range of activities that supported federal candidates. Soft money spending by the two major parties skyrocketed from five percent ($21.6 million) in 1984 to 42 percent ($498 million) in 2000—and a Senate investigation found that both parties were selling access to candidates in exchange for large soft money contributions.

The McCain-Feingold Bipartisan Campaign Reform Act was enacted in 2002 to close these soft money loopholes—and CLC and D21’s comments urge the FEC not to open them once again.

In their petition, the state parties argue that the rise of largely unregulated super PACs mean parties should also be deregulated so they aren’t drowned out. But CLC and D21’s comments note:

“state parties—like most Americans—may have legitimate concerns about the growing role of independent expenditure-only organizations like super PACs that are working closely with the candidates they support. The proper way to address this issue is not by creating new campaign finance loopholes for party committees in the name of “rebalancing” the system—which would open the door to the corruption that BCRA was enacted to prevent—but instead for the Commission to enforce its own coordination rules against candidate-specific super PACs and to undertake a rulemaking on strengthening those regulations.”   

Read: Comments: Notice 2016-11: "Rulemaking Petition: Political Party Rules"

WASHINGTON – President Donald Trump has signed an executive order mandating a five-year lobbying ban for anyone who leaves the executive branch in the Trump administration to work in the private sector. The order maintains many, but not all, of the improvements made in 2009 by the Obama administration executive order. Importantly, Trump is not continuing the policy preventing those former administration officials who are not registered lobbyists from contacting and attempting to influence their former colleagues for two years after leaving government.

“Slowing the revolving door moving from government to the private sector and eliminating lobbying on behalf of foreign entities are both necessary reforms,” said Trevor Potter, president of the Campaign Legal Center. “The order breaks new ground preventing administration officials from becoming registered foreign agents." However, what Trump has created is a system that incentivizes shadow lobbyists because former government employees who did not become registered lobbyists previously still had a two-year waiting period to communicate with employees of their former agency which they no longer do.”

Potter added: "One of today's great Washington scams is former government officials running lobbying operations and attempting to affect official policy while claiming they do not technically qualify as 'lobbyists.' Such conduct remains unaddressed. Trump is just skimming the surface of the swamp - as he remains silent on his campaign pledge to push Congress to adopt their own five-year ban."

Widely-exploited loopholes in the Lobbying Disclosure Act allow former administration officials to become advisors or consultants, which invites them to evade this executive order by lobbying without registering as a lobbyist. The executive order also does not appear to continue Obama's policy of restricting lobbyists from entering the administration.
 
Trump is aware of those loopholes: in October, his campaign released a five-point ethics reform plan that included a plan to close those lobbyist registration loopholes, as well as ban senior executive branch officials from lobbying on behalf of a foreign government.

Amending the outdated Lobbying Disclosure Act is long overdue, but today's order gives no indication the Trump Administration supports this reform.