By Sophia Gonsalves-Brown and Campaign Legal Center's Federal Reform and Ethics teams
“Drain the swamp” has now become a generic campaign slogan, but President Trump first used it in reference to a five-point plan that he claimed would “make our government honest again” and halt the revolving door in Washington, D.C. Now, as his first term comes to a close, Campaign Legal Center (CLC) has reviewed Trump’s progress towards this key campaign promise.
Trump’s “drain the swamp” speech, and his broader rhetoric on the campaign trail, correctly diagnosed many of the problems plaguing Washington: influence peddling and mass flows of money into politics that keep our elected representatives accountable to wealthy special interests – not the American people.
Trump’s five-point plan was not a comprehensive set of reforms—and notably did not address presidential conflicts of interest — but the plan’s enactment would have been a step in the right direction.
Yet, after taking office, Trump never mentioned the five-point plan again. Besides signing an executive order adopting a version of President Obama’s ethics pledge for political appointees, Trump has taken no action to follow through on his “drain the swamp” plan. (Even the ethics pledge has frequently been undermined by often undisclosed waivers.)
In many ways, the swamp-like problems that Trump correctly diagnosed during the 2016 campaign have persisted or grown worse under his administration.
Polling across the political spectrum shows that Americans are concerned about corruption in Washington, and that public trust in government is faltering. A survey published by Transparency International in 2017 found that 44% of Americans believe that corruption in the White House is pervasive and 70% think that the government is failing to fight it.
And according to the Pew Research Center, only one in five surveyed in July and August 2020 trust the government to consistently do the right thing.
With three presidential debates scheduled in the coming weeks, the moderators should raise the topic of ethics reform to both major political party candidates. Trump should be asked about his administration’s failure to follow through on its “drain the swamp” promise and about what he would do in a second term to implement and enforce comprehensive ethics rules.
And former vice president Joe Biden should be questioned about his own reform plan, which – should he be elected – the American people must hold him accountable to.
Actually “draining the swamp”, however, will require Trump or the next administration to implement structural reform to overhaul the broken system.
Legislation like the For the People Act, H.R. 1, which would strengthen ethics laws and minimize the outsized influence of big money in politics, would go a long way to toward shutting the revolving door and making our elected officials accountable to the American people – not wealthy special interests.
To better understand where we are and where to go from here, CLC will take you through each point of Trump’s five-point plan.
Point One: 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.
WHY IT MATTERS: A persistent ethics concern is that former federal government officials leverage their positions into lucrative lobbying jobs on behalf of wealthy special interests, leading to unduly cozy relationships between government agencies and the interests they are supposed to regulate.
WHAT ACTUALLY HAPPENED: Trump’s ethics pledge banned all executive branch appointees from lobbying the agency at which they were employed—rather than the entire government — within five years of leaving government service.
There is no record of Trump asking Congress to pass a five-year ban into law. The ethics pledge has not done nearly enough to halt the revolving door of special interests in and out of government.
CLC found records of dozens of former members of the Trump administration who have since registered with the Lobbying Disclosure Act (LDA) database, including the 82 identified by Politico earlier this year.
For example, former Interior Department deputy chief of staff Downey Magallanes left the administration in 2018 to join British Petroleum (BP) – and this year has lobbied Congress and the federal government--including the Department of Energy and the Environmental Protection Agency (EPA)--according to reports disclosing nearly $2.8 million paid for lobbying.
Several former Trump administration officials appear to not even comply with the pared down ethics requirement. Public Citizen, in a complaint filed earlier this year, identified five former government officials who may have violated Trump’s ethics pledge by lobbying their former departments during the COVID-19 pandemic.
And Ryan Jackson, who left the EPA in January after three tumultuous years as chief of staff, appeared on reports disclosing nearly $600,000 in lobbying by the National Mining Association – including lobbying the EPA on a section of the Clean Water Act related to state-issued permits for activities that release discharge into water (including mining).
WHAT SHOULD BE DONE: To prevent wealthy special interests from capturing regulatory agencies, any ethics legislation or ethics pledge should ban all federal lobbying by former executive branch officials for the duration of the administration.
H.R. 1 codifies parts of the existing executive branch ethics pledge, which prohibits former employees from lobbying covered executive branch officials for the duration of the administration. To make this proposal stronger, the ban should cover all federal lobbying by executive branch officials for the duration of the presidential administration.
Point Two: I am going to ask Congress to institute its own 5-year ban on lobbying by former members of Congress and their staffs.
WHY IT MATTERS: A significant number of former members consider lobbying as their logical career progression after leaving Congress. This creates a conflict of interest during their service where they may provide (or give the appearance of providing) special favors or access to lobbying interests that are potential future employers.
WHAT ACTUALLY HAPPENED: There is no record of Trump ever asking Congress to institute a lobbying ban. And dozens of members of Congress who left office during Trump’s first term became involved in lobbying.
According to a May 2019 Public Citizen analysis, of those members of the 115th Congress who left office and found new jobs outside of government and politics “59% (26 of 44) were working for lobbying firms, consulting firms, trade groups or business groups working to influence federal government activities.”
As of June 2020, at least eighteen have registered as lobbyists, and dozens more are working in the influence industry but without formally registering.
For example, while in Congress, Trump ally Rep. Lamar Smith advocated for a controversial copper and gold mine in a remote part of Alaska. After leaving Congress, Smith began lobbying on behalf of that same mining operation—whose executives were recently recorded describing their political influence—and also lobbied for drug manufacturer Pfizer.
Rep. Ed Royce (whose wife Trump appointed to a senior State Department job) recently registered to lobby for Tencent, the Chinese firm that owns WeChat, which has close ties to the Chinese government and which Trump has threatened to ban.
Finally, former Sen. Jon Kyl left his lobbying job at Covington & Burling, where he helped to shepherd Justice Brett Kavanaugh’s confirmation, to serve in the Senate for only four months after the death of Sen. John McCain (and to vote on the Justice’s confirmation). Kyl then returned to Covington with his Senate contacts refreshed.
WHAT SHOULD BE DONE: Congress should hold itself to the same standard as the executive branch by instituting its own five-year post-employment lobbying ban. (Currently, there is only a one-year lobbying ban for former House members and two years for former Senators.) Bills like the Cleaning Up Washington’s Act aim to expand the post-employment lobbying restrictions for Congress to five years.
Point Three: 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.
WHY IT MATTERS: For years, former government officials from both parties have used loopholes in current law to avoid registering as lobbyists and evade lobbying restrictions.
Existing restrictions that the public relies on to slow the revolving door often do not cover behind-the-scenes lobbying, meaning former officials are permitted to provide aid, advice, strategy, and connections to the wealthy special interests that employ them after their government service ends.
The public is therefore left in the dark when former government officials engage in behind-the-scenes lobbying for wealthy special interests on matters they worked on while in government, which raises questions about whether they were working for the public interest during their tenure.
WHAT ACTUALLY HAPPENED: Trump promised to close these loopholes, but he has not made any effort (legislative or otherwise) to expand the definition of lobbyist to capture this so-called “shadow lobbying” by consultants and advisors, and the practice has continued during his administration.
CLC found dozens of former administration officials who are now employed with industry and advocacy groups in a government affairs capacity, but who have not formally registered as lobbyists.
For example, Katy Talento, who served as a health care policy advisor on the Domestic Policy Council, formed her own health care consulting firm, KFT Consulting LLC, upon leaving office. Her website touts her experience in the White House, and states that she advises clients on: “federal health policy outlook, including executive and legislative branch developments and potential impact for industry.”
Former director of cabinet communications Brad Rateike also founded his own firm, Bar Communications, with a stated aim of: “connect[ing] audiences, including legislators, regulators, and members of the media, with [their complex] goals in a way that yields positive results.”
And Everett Eissenstat, who was the deputy assistant to the President for International Economic Affairs and deputy director of the National Economic Council, and served as lead negotiator for the G-20, APEC, and G-7 international economic summits, joined General Motors in 2018 as the senior vice president for Global Public Policy.
In a press release announcing Eissenstat’s hiring, GM praised his extensive government experience, stating: “His broad experience interacting at the highest levels of government, both within the U.S. and globally, and his track record for partnering and building relationships on both sides of the aisle make him a perfect fit to represent GM and our employees on key policy issues.”
WHAT SHOULD BE DONE: Expanding the definition of what constitutes lobbying activity requiring disclosure will help close the shadow lobbying loophole and give the public transparency surrounding who is trying to influence policy.
The proposed amendments to the Lobbying Disclosure Act in H.R. 1 would help achieve this goal by expanding the scope of individuals and activities that would be subject to lobbying disclosure requirements to include counseling in support of lobbying contacts.
Point Four: I am going to issue a lifetime ban against senior executive branch officials lobbying on behalf of a foreign government.
WHY IT MATTERS: Our democracy is more vulnerable to foreign interference if former U.S. officials leverage their government contacts to lobby for foreign government entities. The public’s trust in government is diminished when senior U.S. officials are seen transitioning quickly from representing the American public’s interests to representing the interests of foreign governments or political parties.
WHAT ACTUALLY HAPPENED: Trump somewhat fulfilled his promise to issue a lifetime ban on senior executive officials lobbying on behalf of a foreign government with his 2017 executive order, which included a clause preventing former employees from engaging in any activities that would require them to register under the Foreign Agents Registration Act (FARA).
However, while no one at the cabinet or subcabinet level has registered under FARA, several members of Trump’s administration serving in special or short-term positions are active agents of foreign governments, registered under FARA, according to the Center for Responsive Politics.
For example, former Florida state Attorney General Pam Bondi, who represented Trump during his impeachment trial and recently spoke at the 2020 Republican Convention, currently is registered as an agent of the Qatari government.
Bondi is also a member of the President’s Commission on Opioids. Richard Hohlt, who served as an appointee on the President’s Commission on White House Fellowships, was simultaneously registered as a lobbyist for Saudi Arabia. And Justin Sayfie, another member of the Commission on White House Fellowships, was registered as an agent of the governments of Turkey and Qatar.
Trump’s ethics pledge only applies to full-time political appointees, and not “special government employees” or “special advisers” like these individuals. Yet their paid representation of foreign governments while also playing important roles in the U.S. government can profoundly impact the public trust.
Moreover, several individuals closely tied to Trump’s campaign and administration have been charged with violating FARA. Both 2016 campaign manager Paul Manafort and former national security advisor Michael Flynn have pled guilty for failing to disclose lobbying activity on behalf of foreign governments.
WHAT SHOULD BE DONE: In addition to barring senior executive officials from becoming foreign agents, Trump, or the next administration, should ensure that the FARA unit has sufficient resources to investigate violations and enforce the law. Bipartisan legislation like the Foreign Agents Disclosure Registration and Enhancement Act, as well as the FARA provisions in H.R. 1, would strengthen the law.
Point Five: I am going to ask Congress to pass a campaign finance reform that prevents registered foreign lobbyists from raising money in American elections.
WHY IT MATTERS: U.S. elections remain vulnerable to foreign interference: foreign funds can be secretly laundered into U.S. elections through dark money groups and digital ad transparency loopholes, which facilitated Russia 2016 election meddling. Additionally, foreign-influenced corporations are allowed to spend without limit.
Trump’s promise to ban fundraising by foreign agents was a half-measure that would do relatively little to address foreign election interference; however, because foreign lobbyists often use campaign contributions and fundraising to grease the wheels for their foreign clients, such a ban could undermine the swampy nature of foreign lobbying.
WHAT ACTUALLY HAPPENED: There is no record to suggest that Trump has asked Congress to pass legislation that would stop lobbyists registered under FARA from raising money in American elections. However, CLC found at least eight registered foreign agents who have donated to Trump’s presidential campaigns.
One such individual, Chartwell Strategy Group founder David Tamasi, who formerly served as District of Columbia finance chair of the joint fundraising committee Trump Victory, has helped raise nearly $300,000 for the committee and the Republican National Committee (RNC.)
Tamasi, who has personally contributed more than $400,000 to Republican candidates and committees since 2016, has registered as an agent of the governments of Georgia and Kosovo. He was recently nominated to the Cultural Property Advisory Board, a State Department initiative.
WHAT SHOULD BE DONE: Addressing foreign election meddling requires more than a fundraising ban. H.R. 1 includes important provisions that would close dark money loopholes that can be exploited by foreign actors and strengthen transparency requirements for digital political ads.
Bills like the Duty to Refuse and Report Foreign Interference in American Elections Act—or REFUSE Act for short--and the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act would also ban foreign-influenced corporations from spending money on U.S. elections.
BEYOND THE FIVE-POINT PLAN: HOW TO BRING ABOUT REAL CHANGE
As we enter the final weeks of the presidential race, the American public should force the candidates to make their ethics plans a hallmark of their campaigns. But government reform cannot simply be an election talking point – the winner must follow through on the promises of their plans.
Trump, or the next administration, must work with Congressional leadership to pass legislation that would reform our broken system of influence and bring the voices of the American people back into our democracy. H.R. 1, which passed the House in 2019, would help keep our elected representatives from putting wealthy special interests above the American people.