The revolving door theory

¶ … Door and the Futility of Regulation

Since the days of early Rome, representative government has been both terribly confounded by and greatly enhanced by the ease with which former policy-makers can continue to exert influence on political affairs even after their removal from political office. While on the one hand these actors are greatly beneficial to special interests and are the most qualified individuals to serve as lobbyists due to their networks of important contacts, there is deep concern that without due caution a conflict of interests may develop adverse effects to the detriment of the government and the public which it serves. Ultimately, however, attempts to regulate the revolving door expose a fundamental contradiction in ideas which indicates that problems surrounding the revolving door are much deeper and far more systemic than specific regulations and/or restrictions are intended to or can possibly cover.

Think about it: elected officials (and their staffs) are presumably individuals we can trust, in or out of office; so placing restrictions on their behavior outside of office indicates an explicit distrust of the motives and impulses which guide their conduct. If they can continue to serve a useful purpose, then they should be expected to do so without distrust. Where such distrust exists, there are problems much more immediate and important than the revolving door which need to be solved, which may include but are not limited to the following: faltering educational objectives and performance; skyrocketing budgets; unstable markets; rapid demographic shifts; international political instability; and domestic political instability.

The following pages will examine the implementation of legislation restricting post-government employment for Congressmen, staffers, and high-level executive-branch employees (including office holders) and compare the relevant social observations, including but by no means limited to statistics, at important milestone dates such as 1989 and 2007. Where statistics fail to add up with obvious observations it would be best to keep in mind the relationship between the words "state" and "statistics" and the definition of statistics as "political arithmetic." Statistics are by definition limited. After all, there are lies, damned lies, and statistics -- sometimes.

Within a day of his inauguration as President of the United States, Barack Obama issued an executive order mandating an adherence by executive-branch personnel to certain ethical norms.

This code included seven sections, four of which were titled "Revolving Door Ban," indicating a special significance for the issue.

These deal with both pre-government employment and post-government employment.

The entire set of sections is worth repeating here:

"2. Revolving Door Ban -- All Appointees Entering Government. I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.

"3. Revolving Door Ban -- Lobbyists Entering Government. If I was a registered lobbyist within the 2 years before the date of my appointment, in addition

to abiding by the limitations of paragraph 2, I will not for a period of

2 years after the date of my appointment:

(a) participate in any particular matter on which I lobbied within the

2 years before the date of my appointment;

(b) participate in the specific issue area in which that particular matter falls; or (c) seek or accept employment with any executive agency that I lobbied within the 2 years before the date of my appointment.

"4. Revolving Door Ban -- Appointees Leaving Government. If, upon my departure from the Government, I am covered by the post-employment restrictions on communicating with employees of my former executive agency set forth in section 207(c) of title 18, United States Code, I agree that I will abide by those restrictions for a period of 2 years following the end of my appointment.

"5. Revolving Door Ban -- Appointees Leaving Government to Lobby. In addition

to abiding by the limitations of paragraph 4, I also agree, upon leaving

Government service, not to lobby any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Administration.

In point of fact, this document does not assert much that is new. In 1994, a CRS report for Congress delineated the restrictions then in existence regarding the revolving door.

These laws were part of the Ethics Reform Act of 1989, effective January 1, 1991, and they mostly entailed one-year restrictions on seeking and/or accepting employment for high-level congressional employees including Members of the Senate and the House of Representatives, and elected officers of Congress, employees on the personal staff of a Member of the House or Senate, and committee staffers.

They prohibited former employees of Senators from lobbying to their former employers, Congressmen from making advocacy contacts and representational communications with intent to influence, and all employees from representing foreign entities before the United States. The stated purpose was to regulate those situations which might arise among individuals "with the intent to influence, any communication to or appearance before" the Member, office or committee "on behalf of any other person (except the United States) in connection with any matter on which such former employee seeks action by a Member, officer, or employee ... In his or her official capacity."

The 1989 Ethics Reform Act was strongly related to a series of laws passed throughout the 1980s appertaining mostly to former Department of Defense employees and requiring public disclosure of their post-government employment with private defense contractors. This series of restrictions updated and enhanced 1969 laws of the same nature and variety. They reflect the time and place in which they were enacted in their subject matter and substance, as can be seen from the testimony of Martin H. Ferber, Director of Manpower and Logistics Issues, National Security and International Affairs

Division, before the Subcommittee on Investigations House Armed Services Committee:

"Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss our evaluation of the implementation of the revolving door legislation applicable to Department of Defense (DOD) personnel.

The legislation requires that certain former DOD personnel report their employment with major defense contractors. The intent was that public disclosure would deter conflicts of interest associated with the revolving door.

The initial legislation was passed in 1969 and remained essentially unchanged until the mid 1980s. In 1985, the reporting law (10 U.S.C. 2397) was amended to improve its effectiveness. In addition, new legislation was enacted in 1986 that prohibited certain DOD personnel from accepting compensation from specific defense contractors (10 U.S.C. 2397b) and required major defense contractors to report compensation paid to former DOD personnel (10 [J.S.C. 2397c).

Our evaluations have focused on three main areas.

-- The extent of individual compliance with the legislative reporting requirements.

-- Adequacy of contractors' reports on compensation paid to former DOD personnel.

-- Accuracy of DOD opinions, provided to its personnel, on potential post-DOD employment prohibitions."

Within a few minutes, Mr. Ferber asserted that the best indication of reporting compliance at that time showed a 30% compliance rate, which is far from indicating a successful policy.

By 2007, these restrictions needed another revision; if it was 20 years between the 1969 laws and the 1989 Ethics Reform Act, it was 18 years from the Ethics Reform Act to the 2007 Honest Leadership and Open Government Act. This latter act more or less retained most provisions of the 1989 act.

Its major distinction was that it imposed a two-year "cooling off" period instead of a one-year period, which places much stronger restrictions on lobbying in general.

In addition to the 1989 restrictions, according to a 2010 document there is a lifetime ban on executive-branch employees on "switching sides" on very specific matters such as particular contracts in which a government employee was involved. In cases like these, this employee cannot represent parties to certain contracts against the United States, investigations for the United States, or legal actions involving the United States, in which he or she had substantial knowledge or involvement, at any point.

There is also a two-year ban on "switching sides" in similar matters where an executive-branch employee is prohibited from representing parties to certain contracts against the United States, investigations for the United States, or legal actions involving the United States, in matters which were merely under his or her "official responsibility" as an employee of the executive branch.

Like their legislative-branch counterparts, senior executive-branch employees are subject to a one-year "cooling off" period in which they are prohibited from contacting members of the agencies or departments for which they worked with "intent to influence."

"Very senior" executive-branch employees are subject to a two-year "cooling off" period of the same kind and substance.

Neither senior nor very senior executive-branch employees are prohibited, however, from influencing Congress or its Members or employees.

Senior executive-branch employees are prohibited for one year from representing official foreign entities "before any officer or employee of any department or agency of the United States" (italics added) with intent to influence that officer or employee in his or her official duties.

Very senior executive-branch employees are restricted from so much as advising or aiding official foreign entities in matters where they intend to influence officers, employees, and/or other agents acting on behalf of the United States.

Bank examiners and inspectors are prohibited for one year following their term with s Federal Reserve bank or Federal banking agency from receiving any compensation as an "employee, officer, director, or consultant" of institutions intertwined with banks which fell under their inspection duties.

Likewise, procurement officials who worked on behalf of government departments or agencies are prohibited for one year from acting in any way which entails receiving compensation from certain private contractors in related industries and segments.

There are, lastly, heavy restrictions on the rights of employees of the government to negotiate post-government employment while still working for the United States.

Consider the following marks on the timeline of regulation of the revolving door:

In 1969 the United States was involved in a Cold War in which its defense industry was central to its own physical survival. This Cold War had become hot in certain places, especially Vietnam, and threatened nuclear war on various fronts, especially Europe and Asia. An ethical Department of Defense, ethical contracts agreed to and performed under it, and ethical performance of those contracts were therefore vital to the security of the country and high on the agenda of political leaders at that time.

Though the 1970s were characterized by economic issues, in particular "stagflation," by the 1980s the renewed and much more dangerous arms race between the United States and the Soviet Union again brought to the forefront the vitality of ethics around the Department of Defense. Moreover, the 1970s and 1980s saw the growth and development of such an array of new government departments and programs that the Department of Defense was no longer the single entity around which restrictions must be designed. In addition, what was once restricted to the Department of Defense now needed extension to cover a far broader array of government officials in the face of growing distrust of the motives guiding their conduct in the wake of Richard Nixon's resignation in 1974 and various other illegal and unethical happenings surrounding public officials. The coming end of the Soviet Union did not seem to deign a decrease in ethical regulations a reality, instead portending a need for an increase of such restrictions.

Following a decade of prosperity and security in the 1990s, the 2000s were characterized by a large-scale terrorist attack to start the decade and a financial debacle heavily related to porous oversight of important banking establishments to end it. By the time of the Obama election in November, 2008, public distrust of their own government was alarmingly prevalent due to repeated instances of the government being caught with its own pants down. A stronger code of ethical restrictions, lasting for longer periods and covering far more individuals within and around the government, seems like it would be the natural response of an ambitious opportunist, for good or for bad.

The unstated issue in all of this is the growing government which is incompatible with the republican form for which it was intended. The United States Constitution sets out a carefully limited federal government which was to be monitored and controlled by the citizens responsible for the positions of its members. The small size of the government allowed citizens to see and analyze the performance of relevant officials; there was no easy mask with which to hide abuses or mistakes.

Where public officials are visible they can be held accountable for their conduct and for the motives guiding it. Where public officials are not visible, they are liable to abuse or misuse the powers with which they are entrusted and to mistake those powers for rights, which are a separate issue altogether. No maxim of administration is surer than that, and it is verified by the experience and wisdom of the ages, with virtually no examples to the contrary.

Accordingly, the republican form of government adopted by the United States, or the representative democracy, to be more specific, contained the usual provisions for restricting terms of office, which necessarily entailed a revolving door of some sort. This was an expected part of the process of government and one which was not considered to be dangerous because it was countered by the small size of the said government and the mechanisms for holding government accountable, up to and including removal from office of offenders against the "code."

Until the Civil War this was the way in which the United States federal government continued to operate. With the victory of the Union in that war, the program of the Republican Party at that time increased the scope and role of government to a degree which consolidated its power and announced changes which would be realized in full only a century later. In addition, the admission of many territories in the West as new states entailed a growing number of Congressmen and programs for administration in these new political entities. Increasing centralization entailed increasing facelessness, and government was increasingly less accountable for its actions.

This era marked the first continual realization of government scandal, which excited extreme distrust among the people. Andrew Johnson, Lincoln's successor and the President in the immediate aftermath of the Civil War, was impeached but not convicted; Ulysses S. Grant's administration, following Johnson's, was riddled by scandal and corruption; Rutherford B. Hayes assumed office under the cloud of a deal between the competing political parties which ended Reconstruction in exchange for a Republican presidency; and James A. Garfield's assassination by a deranged office-seeker who was denied under the spoils system was a proud testament to the corruption of the age. The era was a harbinger of the dangers of larger government.

Following Garfield's assassination, the ruthless robber-barons and political bosses of the Gilded Age continued the newfangled tradition of corruption, notably under the leadership of Boss Tweed, whose views on graft (there is honest graft, and then there is dishonest graft, according to the Boss) do not appear at all peculiar to those who understand human nature. The spirit of the age, and the disappointment it aroused in those who had once supported the Civil War as promising a return of ethics, honesty, and openness, was captured by Mark Twain in "The Man That Corrupted Hadleyburg," and the literature of the age increasingly points to a human nature that is "off," slightly deformed, and unaccountable to reason. The shining contributor to this age of literature is Henry James, and his novels and stories betray a growing disillusionment as to the deeper realities of human nature and its relationship to the behavior of individuals at the time.

As the Twentieth Century dawned, the role and scope of the government of the United States continued to expand beyond all reasonable bounds, first to include imperialistic "conquests" and then to include a new safety mechanism in the banking world, the Federal Reserve, brought about in the wake of the Panic of 1907. The array of activities in which the United States federal government was involved in the first decade of the Twentieth Century included administration of the Philippines, construction of the Panama Canal, protection of natural preserves and wildlife, increasing oversight of private economic actors and action, and benign mediation in foreign affairs such as the Russo-Japanese war and its ensuing peace.

In the next decade the role of the federal government expanded yet again, this time in response to an enormous international conflict. In addition to the creation of the Federal Reserve, World War I created an increasing and pressing need for larger government which was not always immediately acted upon but was certainly central in the ensuing decades as international peace and law became a mission and a duty for the federal government of the United States. Despite the initial rejection of the League of Nations, the later development of the United Nations constituted yet another major increase in the scope of the federal government of the United States, and its story begins here, in the 1910s, with Woodrow Wilson's vision of a lasting peace. Additionally, the implementation of Prohibition and the income tax expanded government, while the expansion of the vote to women drastically widened the base of voters, not all of whom had the necessary insights into the inner workings of government.

Though the 1920s was characterized by lax regulation and control, the end of the decade saw the onset of the Great Depression, and the 1930s saw increasing governmental intervention in economics as a result of Keynes' influential economic theories. With the advent of the TVA, WPA, and similar programs, the operations of governmental agencies and their leading members, employees, and officials were now officially out of the reach of a large majority of the base of citizens under whose control they were supposed to be running and in whose interests they were intended to serve. Yet the generation in charge was one strongly enlightened by moral considerations handed down from previous generations, and they were for the most part beholden to the ideals of those disillusioned by the corruption of the Gilded Age.