Conflicts over conflicts of interest

In recent days, as former Raytheon lobbyist William J. Lynn was successfully overcoming objections to his Senate confirmation to be deputy secretary of defense, civil society groups in Washington were expressing concern that some of their activists were being unfairly barred from appointments in the Obama administration without a waiver.

Among those affected, they say, is Tom Malinowski, the Washington advocacy director for Human Rights Watch. Sources affiliated with human rights and democracy promotion NGOs in Washington said Malinowski, a former Clinton-era NSC official, was a strong candidate for an administration position, including to head the State Department’s Democracy, Human Rights, and Labor Bureau, but that because he had registered as a lobbyist in order to advocate for Human Rights Watch, he would need a waiver to be offered one.

"Malinowski should be a shoe-in for DRL but since he ‘lobbied’ for HRW he appears to be out of the running," said one Washington pro-democracy activist on condition of anonymity. "Seems to be a silly application of a rule that’s supposed to apply to big money influence peddlers, not those trying to help human rights activists."

Malinowski declined to comment.

Sources pointed, with some frustration, to stories about Barack Obama’s campaign manager David Plouffe, who flew to Azerbaijan last weekend to give a paid talk to a pro-government front group in advance of a controversial referendum in the oil-rich Caspian nation that would remove term limits on the presidency. (Human Rights Watch, incidentally, has been harshly critical of the Azerbaijan regime’s penchant for electoral rigging and human rights abuses.)

Last month, a day after his inauguration, Obama issued an executive order on ethics commitments. Among its provisions was a "revolving door ban" on lobbyists entering government to work in departments or agencies they had lobbied within the past two years. It defined lobbyists as those who had registered under the Lobbying Disclosure Act.

The problem, sources in the civil society community say, is that the blanket ban doesn’t distinguish between industry and public interest advocates. What’s more, sources who have worked in government and in the lobbying world add, the ban punishes those who have complied with the rules to register under the Lobbying Disclosure Act, which they say is vaguely defined and poorly enforced. Meantime, they say, it gives a pass to those whose activities could be construed as lobbying, but who haven’t formally registered. Nor does it effectively avoid the real culprit, those who would use government positions to financially benefit themselves, former or future employers, or industry.

"The way they give the waiver is capricious," says a former Hill Democratic staffer. "Some people who registered to lobby for perfectly good organizations — such as for public hospitals — are not allowed to work in the administration, while super lobbyists who simply didn’t register are allowed to skip away."

U.S. Mideast peace envoy George Mitchell was chairman of a law firm, DLA Piper, that does extensive lobbying work, but didn’t personally register, Bloomberg has reported. Records show that another official who recently joined the NSC staff only deregistered as a lobbyist in August.

"The curious thing about this policy is that they don’t seem to be able to distinguish between people who have lobbied for … corporate or industry interests and people who have lobbied for the public interest," says Tom Melia, deputy director of Freedom House. "Nobody lobbying for human rights, including Tom Malinowski, is doing it because their organization or person is going to get a financial bonus or percentage or contract … or earmark out of it. That should be considered differently," Melia added.

“The failure to distinguish between different kinds of advocacy is another sign of a rookie mistake,” Melia added.

"On its face, the policy doesn’t distinguish between a lobbyist for Enron and someone who was advocating for civil rights," a Washington rights activist said on condition of anonymity.

Sources said they believed that, beyond Malinowski, a number of other candidates for foreign-policy jobs had found their candidacies sidelined due to their past work falling afoul of the lobbyist ban. Among them: Beth Jones, a former assistant secretary of state and former ambassador to Kazakhstan, now with APCO worldwide. Sources said Jones had been under consideration for jobs including the assistant secretary of state for Near Eastern affairs or a possible ambassadorship. Jones could not be reached for comment.

The lobbyist ban "has an impact on a whole range of civic groups and their ability to function in the future," the Washington rights activist said. "How many people are going to work for a civil rights organization in DC if it means they have to foreclose the possibility of government service in the future?"

What would make more sense, he said, "is to have a conflict of interest rule, that you should not be allowed to work in the government on any issue or matter if your former employer has a financial or regulatory stake in the outcome of the matter."

Some former U.S. government officials complained that the policy also tended to disproportionately affect women. They say the administration had shown more willingness to expend political capital and to grant waivers for prominent and high level mostly male nominees who had potential perceived industry conflicts of interest or tax or financial irregularities — former HHS nominee Tom Daschle, Treasury Secretary Timothy Geithner, and Lynn, the former Raytheon official — over for instance Nancy Killefer, the proposed "performance czar" who quickly dropped out when it was determined she had failed to pay $900 worth of DC taxes.

"My point is that by definition when men have problems, they are too big to fail," said one former senior administration official who had worked on the Obama campaign and who requested anonymity. "When women have problems, they are smaller. The jobs they get are not as high visibility. They get knocked out an earlier stage.

"There are a couple of clubs," the former senior official continued. "One is the Senate, of which Daschle was one." The other is the foreign policy apparatus, the former official said, citing several prominent Washington think tank figures and former policymakers at corporate law firms who had taken key foreign policy appointments in the Obama administration. "For the people [in the clubs], you can bend the rules. Exceptions can be made. You watch out for your own."

"There’s one standard for most and another standard for the few," said one former Clinton administration official who volunteered  for the Obama campaign.   

"If they want to reduce the influence of money," the former Clinton administration official continued, the Lobbying Disclosure Act "is not the way to do it.  … My point is that it is MONEY that is questionable. Discriminating against those folks who have registered under LDA is not getting at that problem. Obama not taking public financing was way more significant."

The former Clinton administration official added that this just becomes a perverse disincentive not to register. "LDA is entirely unenforceable and I believe has [almost] never been enforced," she said. "So, good people who believed in disclosure now have a disincentive."

As for Plouffe’s trip to Azerbaijan, the Obama White House said that Plouffe was traveling as a private citizen. Plouffe has not gone into the administration, but serves as campaign manager for Obama’s campaign organization, Obama for America. The Wall Street Journal reported Tuesday that Plouffe’s trip had been arranged by a Washington lobbying group for Azerbaijan through Plouffe’s speakers’ bureau. After the Baku trip was reported in the press, Plouffe said he would donate the $50,000 speaking fee to pro-democracy groups.