Executive Branch Service and the “Revolving Door” in Cabinet Departments: Background and Issues for Congress
Released: 2019-10-07T00:00:00

Introduction

In 1883, following the assassination of President James A. Garfield by disgruntled job seeker Charles Guiteau, the Pendleton Act was signed into law by President Chester A. Arthur to ensure that "government jobs be awarded on the basis of meritâ¦." The Pendleton Act ended the spoils system to ensure that qualified individuals were hired into federal service and to prevent the President from being "hounded by job seekers." With the advent of the merit system, federal employees found themselves serving longer in government while also being attracted to private-sector jobs related to their federal employment. The movement of employees between the private sector and government is often referred to as the revolving door .

Generally, the revolving door is described as the movement of individuals between the public and private sector, and vice versa. Individuals may move because they possess policy and procedural knowledge and have relationships with former colleagues that are useful to prospective employers, either in government or in the private sector. Some observers see the revolving door as potentially valuable to both private-sector firms and the government; other observers believe that employees leaving government to join the industries they were regulating, or leaving the private sector to join a relevant government agency, could provide an unfair representational advantage and create the potential for conflicts of interest.

While Congress has passed laws regulating the revolving door phenomenon in the executive branch, there has to date been little data available about the underlying phenomenon. This report provides data on the movement into and out of government by executive branch personnel in President George W. Bush's and President Barack Obama's Administrations. Using a dataset of executive branch Cabinet department officials compiled by graduate students at the Bush School of Government and Public Service at Texas A&M University in partnership with CRS, this report provides empirical data about the use of the revolving door by a subset of federal officials, with a particular focus on those who were registered lobbyists either before or after their government service.

This report begins with an overview of existing revolving door laws and regulations that affect executive branch personnel. It next examines the potential advantages and disadvantages of the revolving door phenomenon. Data collected in partnership with the Bush School of Government and Public Service at Texas A&M University are then presented and analyzed. The data provide an empirical picture of the executive branch revolving door as it relates to registered lobbyists. This analysis is followed by a discussion of select issues for potential congressional consideration.

The Revolving Door in the Executive Branch

Revolving door provisions, which can include laws, regulations, and executive orders, are often considered as a subset of conflict-of-interest provisions that govern the interaction of government and nongovernmental individuals. While most historic revolving door provisions generally addressed individuals exiting government for work in the private sector, some have also addressed individuals entering government. Overall, revolving door conflict-of-interest laws have existed since the late 19 th century. The first identified conflict-of-interest provision was enacted in 1872. This provision generally prohibited a federal employee from dealing with matters in which they were involved prior to government service. In 1919, the first restrictions were placed on individuals who had specifically served as procurement officials from leaving government service "to solicit employment in the presentation or to aid or assist for compensation in the prosecution of claims against the United States arising out of any contracts or agreements for the procurement of supplies â¦ which were pending or entered into while the said officer or employee was associated therewith." Similarly, the Contract Settlement Act of 1944 (58 Stat. 649) included a provision making it

Unlawful for any person employed in any Government agency â¦ during the period such person is engaged in such employment or service, to prosecute or to act as counsel attorney or agent for prosecuting, any claim against the United States, or for any such person within two years after the time when such employment or serve has ceased, to prosecute, or to act as counsel, attorney, or agent for prosecuting, any claim against the United States involving any subject matter directly connected with which such person was so employed or performed duty.

In 1962, portions of the current statutory provision at 18 U.S.C. Â§207 were enacted as part of a major revision of federal conflict-of-interest laws. Since the 1960s, postemployment restriction laws have been amended several times, including by the Ethics in Government Act of 1978 to add certain one-year "cooling off" periods for high-level executive branch personnel and limit executive branch official postemployment advocacy (i.e., lobbying) activities; by the Ethics Reform Act of 1989; and by the Honest Leadership and Open Government Act of 2007, which extended the "cooling off" period to two years for "very senior" executive branch officials.

Revolving door provisions, including conflict-of-interest laws and "cooling off" periods, were initially designed to protect government interests against former officials using proprietary information on behalf of a private party and current officials against inappropriately dealing with matters on which they were involved prior to government service. Additionally, they attempted to limit the possible influence and allure of potential private arrangements by federal officials when they interact with prospective private clients or would-be future employers while still employed by the government.

Historically, the decision to adopt, or amend, revolving door and conflict-of-interest provisions has been balanced against the potential deterrent of restricting the movement of individuals between the public and private sector. For example, in 1977, the Senate Committee on Governmental Affairs reported a bill that would have amended the existing revolving door provisions. As part of its justification for the measure, the committee explained the need to balance the appearance of impropriety against the need to attract skilled government workers. Its report noted the following:

18 USC Â§207, like other conflict of interest statutes, seeks to avoid even the appearance of public office being used for personnel or private gain. In striving for public confidence in the integrity of government, it is imperative to remember that what appears to be true is often as important as what is true. Thus government in its dealings must make every reasonable effort to avoid even the appearance of conflict of interest and favoritism.

But, as with other desirable policies, it can be pressed too far. Conflict of interest standards must be balanced with the government's objective in attracting experienced and qualified persons to public service. Both are important, and a conflicts policy cannot focus on one to the detriment of the other. There can be no doubt that overly stringent restrictions have a decidedly [sic] adverse impact on the government's ability to attract and retain able and experienced persons in federal office.

The revolving door allows movement in both directions, with individuals both entering and exiting government. Some past researchers have argued that those who enter government with prior industry experience are more supportive of regulated industry than those without industry experience. Similarly, two studies have concluded that the lure of private-sector employment has led regulators to support the regulated industry during their time in government.

Whether or not the revolving door on net helps or hinders the functioning of government agencies may depend, however, on the potential benefits of transitioning individuals between government and the private sector versus the potential for conflicts of interest to develop on the part of those individuals. Some studies have identified positive aspects of the revolving door and the relationships developed between regulators and the regulated. Other studies find that government agencies are better run with stable leadership that does not often utilize the revolving door and keeps some distance between the agency and the regulated industry.

Existing Revolving Door Laws and Executive Orders

Current laws and regulations generally govern the movement of federal employees from the government to the private sector and vice versa. These provisions can be divided into three categories: broadly applicable postemployment laws, supplemental regulations, and executive order requirements. Revolving door provisions, however, do not necessarily apply to all instances of an employee leaving government service. Rather, they are specific to covered officials (see below) who leave government and are then involved with an issue they were also involved in while a federal employee. For some circumstances, the Office of Government Ethics (OGE) "has emphasized that the term [ particular matter ] typically involves a specific proceeding affecting the legal rights of the parties, or an isolatable transaction or related set of transactions between identified parties."

Postemployment Laws

Initially enacted in 1962, 18 U.S.C. Â§207 provides a series of postemployment restrictions and was enacted "to prevent former Government employees from leveraging relationships forged during their Government service to assist others in their dealings with the Government." These include

a lifetime ban on "switching sides" on a particular matter involving specific parties on which any executive branch employee had worked personally and substantially while with the government; a two-year ban on "switching sides" on a somewhat broader range of matters that were under the employee's official responsibility; a one-year restriction on assisting others on certain trade or treaty negotiations; a one-year "cooling off" period for certain "senior" officials, barring representational communications before their former departments or agencies; a two-year "cooling off" period for "very senior" officials, barring representational communications and attempts to influence certain other high-ranking officials in the entire executive branch of government; and a one-year ban on certain officials performing some representational or advisory activities for foreign governments or foreign political parties.

Current law focuses on postemployment restrictions of former federal employees rather than on individuals entering government. These postemployment laws focus on "representational" activities of former federal employees and are "designed to protect against the improper use of influence and government information by former employees, as well as to limit the potential influence that a prospective employment arrangement may have on current federal officials when dealing with prospective private clients or future employers while still in government service." One study found the appeal of postemployment contact with the government to be strong, especially when there is a "demand for the personnel credentials" of former officials within an industry, and when former officials can move from a regulatory agency to the regulated industry.

The revolving door restrictions are in addition to statutes that apply more broadly to all individuals engaged in certain representational activities, regardless of whether they ever worked for the federal government. These restrictions, found primarily in the Foreign Agents Registration Act (FARA) and the Lobbying Disclosure Act (LDA), however, do not prohibit any particular behavior. Rather, they require registration as a foreign agent or lobbyist and the periodic disclosure of information about influence activities.

Supplemental Regulations

Regulations for the implementation of revolving door provisions are issued by OGE. Found at 5 C.F.R. Â§2641, these regulations provide an overview and definitions for current revolving door, postemployment conflict-of-interest restrictions; list prohibitions covered by the regulations and the law; and provide a summary of statutory exceptions and waivers. The OGE regulations pertain only to postemployment restrictions found at 18 U.S.C. Â§207 and only to executive branch employees.

In some cases, agencies have issued additional regulations that supplement OGE's regulations. For example, the Office of Management and Budget (OMB) provides guidance on the application of postemployment restrictions to all government employees, whereas the Federal Housing Finance Agency provides specific additional postemployment restrictions for its employees.

Executive Order Ethics Pledges

In several instances, the President has issued an executive order to influence the interactions and relationships between the public and the executive branch. For example, President John F. Kennedy issued an executive order (E.O. 10939) that included provisions for behavior by government employees. In the years after President Kennedy's Administration, other Presidents also issued ethics executive orders to address postgovernment revolving door restrictions. These executive orders were issued by President Lyndon Johnson, President Richard Nixon, President Ronald Reagan, and President George H. W. Bush.

In more recent Administrations, three Presidents have each issued an executive order that included additional revolving door restrictions for certain Administration appointees. They are President Clinton (1993), President Obama (2009), and President Trump (2017). Each of these executive orders contained an ethics pledge that provided additional conflict-of-interest requirements for executive branch personnel leaving the government and for individuals entering government. Each also extended statutory and regulatory revolving door provisions, included additional restrictions on lobbyists entering government and lobbying back government upon departure, and in two instances (Clinton and Trump) contained restrictions on former appointees leaving the government to represent a foreign principal.

For a more detailed discussion of executive order ethics pledges, see CRS Report R44974, Ethics Pledges and Other Executive Branch Appointee Restrictions Since 1993: Historical Perspective, Current Practices, and Options for Change , by Jacob R. Straus.

Revolving Door: Advantages and Disadvantages

Discussion of whether revolving door restrictions are positive or negative generally focuses on whether former government employees, when they switch jobs, have an inherent or perceived conflict of interest. Though legislation often treats the revolving door as a negative trend, the movement of individuals between the government and private sector may also present multiple potential benefits. One argument in favor of the revolving door, for example, is that the promise of future private-sector employment could potentially improve the quality of candidates applying for government jobs. Further, direct connections with government officials are important, but a close relationship is not necessarily what drives postemployment activities. Although some believe that government employees contemplating a move to the private sector will be friendly to industry interests at the expense of the public interest, two studies have also concluded that regulators instead may engage in more aggressive actions, regardless of their future job prospects. Additionally, the flow of personnel between the public and private sectors may increase the knowledge base of both sectors.

Critics of the revolving door and the movement of employees between the government and private sector often advocate for longer "cooling off" periods and stronger restrictions related to conflicts of interest. Additionally, critics often assert that the revolving door has negative effects for the transparency and efficiency of government. These critics see existing bias between those in government and their connections with lobbying firms and the potential for those connections to be exploited when the individual is employed by the private sector.

Additional criticism of the revolving door focuses on the worth of a former government employee over time. One study has concluded that a majority of revenue generated by private lobbying firms was directly attributable to employees with previous government experience. Another study found that "'who you know' rather than 'what you know' drives a good proportion of lobbying revenues."

Research Design and Methodology

In every Administration, executive branch officials arrive from, and depart to, the private sector. The movement between the government and the private sector touches on many industries and professions. When such movement occurs, it is possible that conflicts of interest could arise for current and former government officials.

Data on executive branch employees entering and exiting the government have historically been difficult to compile. During the 2017-2018 academic year (September 2017 to May 2018), CRS partnered with graduate students at the Bush School of Government and Public Service at Texas A&M University to collect and analyze data on the revolving door. Data were collected on the subset of former executive branch officials who were listed in the United States Government Policy and Supporting Positions (the Plum Book ). Published every four years, the Plum Book "lists over 7,000 Federal civil service leadership and support positions â¦ that may be subject to noncompetitive appointment, nationwide. Data covers positions such as agency heads and their immediate subordinates, policy executives and advisors, and aides who report to these officials." The positions listed in the Plum Book are political appointments, which represent a subset of executive branch employees. Therefore, this report presents data on that subset of individuals who have worked in these executive branch positions. Additionally, since the Plum Book is published only once every four years, it is a "snapshot" of a given Administration's appointees and includes only individuals who were serving at the time of publication.

Four Plum Books were used to build a dataset of political appointees who served in President George W. Bush's and President Barack Obama's Administrations. Overall, 6,665 federal appointees were included spanning the two Administrations. Table 1 reports the number of appointees from each Administration included in this dataset. If an appointee served in more than one Administration, data reported are for the most recent Administration served. Appointees were not included in the dataset twice. Further, if an appointee left the Administration prior to the Plum Book 's publication, then they do not appear in the data.

Political appointees included in the dataset represented 15 Cabinet departments and were paid at the GS-13 level or higherâa pay rate generally considered to have supervisory authority in the executive branch. Table 2 lists the Cabinet departments included in this study and the number of employees from that Cabinet department included in the dataset.

For most individuals and industries, data on both pregovernment and postgovernment service is not readily obtainable from public sources. Therefore, this report uses official Lobbying Disclosure Act (LDA) data on registered lobbyists to gain insight into the revolving door phenomenon. Administered by the Clerk of the House of Representatives and the Secretary of the Senate, LDA registration data are required by law to be published online. The LDA database includes all registration and disclosure statements for lobbyists and is searchable by name, lobbying firm, or lobbying client. Since the Plum Book provides the names of former executive branch officials, the LDA database was searched to match pregovernment and postgovernment service of individuals registered as lobbyists. Appointees were classified as lobbyists if they were registered under LDA at any time before or after their government service, regardless of the duration of their registration. These data, which reflect a subset of people who move between employment in the private sector and government in either direction, are the focus of this report's analysis.

Revolving Door Lobbyists in the Executive Branch

Overall Patterns

Of Bush and Obama Administration executive branch appointees in the dataset, approximately 92% (6,159) were never registered as lobbyists, while 8% (506) were registered either before, after, or both before and after their government service. Of those registered as lobbyists, approximately 36.5% registered before joining the government, 55.1% registered after leaving their executive branch jobs, and 8.3% registered both before and after their federal service. Overall, these numbers generally appear to be in line with other studies of the executive branch, which suggest that most high-level federal appointees were not employed as lobbyists either prior to, or after, their government service.

Examining the number and percentage of lobbyists in the dataset by Administration ( Table 3 ) shows that the overall levels of registered lobbyists either before or after government service is relatively low in both the Bush Administration and the Obama Administration. The Obama Administration, however, had more of its appointees who were registered lobbyists before their government service than after their government service, while the Bush Administration had more of its appointees who were registered lobbyists after their government service than before their government service.

As shown in Table 3 , the total number of registered lobbyists in the dataset from the Bush Administration (340) was higher overall than from the Obama Administration (166), although the number of lobbyists serving in either Administration is not particularly large compared to the total number of appointees included in the dataset. During his Administration, President Obama instituted an executive order to restrict the number of lobbyists entering the Administration, a policy that did not exist in the Bush Administration. The number of individuals who were registered lobbyists before serving in President Obama's first term is similar to the first term of the Bush Administration.

The number of lobbyists entering government, however, was higher in President Obama's second term than in either the Bush Administration or President Obama's first term. For individuals leaving the Administration, the number of registered lobbyists is lower in the Obama Administration than in the Bush Administration.

Department Trends

In the dataset, Cabinet departments differed greatly in the number of officials who were registered lobbyists either before or after their federal service. Some departments had few individuals who were registered lobbyists either before or after their time in government, whereas others had more. Figure 1 reports the percentage of registered lobbyists by department in the dataset collected by the Bush School of Government and Public Service and CRS.

As shown in Figure 1 , the percentage of federal appointees in the dataset who registered as lobbyists before their government service, after their government service, or both ranges from a high of 18% (Department of Commerce) to a low of 1% (Department of Justice). The figures for other agencies ranges between 2% and 17%.

The overall percentages of Cabinet department officials in the dataset who have ever been registered lobbyists might raise some questions for future research on the connections between government agencies and regulated industries. For example, some agencies appear to have a higher percentage of lobbyists than other agencies. Could a high percentage of lobbyists indicate stronger links to regulated industries? Similarly, how might lobbyists entering government differ in their government-industry connection than lobbyists leaving government? Might maintaining government-industry connections allow for better outreach by government agencies and access to information and resources by interest groups?

The timing of when lobbyists registered may provide additional insight into how often federal officials in the dataset utilized the revolving door between government and lobbying. Figure 2 shows the percentage of LDA-registered officials at various agencies divided by when they registeredâbefore their service, after their service, or both.

As Figure 2 shows, every Cabinet department for which data were gathered had some number of officials listed in the Plum Book who registered as lobbyists either before or after their government service, or both. The number of officials in the dataset identified as registered lobbyists is noted on the left-hand side of Figure 2 next to the name of the federal department at which they worked. As the figure shows, each department had a different mix of the percentage of its officials in the dataset identified as registered lobbyists who registered to lobby before their government service, after their government service, or both.

The percentage of the total number of lobbyists who worked at a particular agency who were registered lobbyists before their government service ranged from 10% in the Department of Labor to 61% in the Department of Veterans Affairs. The percentage of the total number of lobbyists who worked at a particular agency who were registered lobbyists after their government service ranged from 39% in the Department of Veterans Affairs to 82% in the Department of Transportation. Additionally, all departments included in the data except the Department of Veterans Affairs had individuals who were registered lobbyists before and after their government service. For the Department of Labor, half of officials who were lobbyists registered both before and after their government service. For other agencies, the percentages ranged from 1% (Department of State) to 19% (Department of Housing and Urban Development).

Conclusions and Selected Considerations for Congress

In every Administration, individuals move between the public and private sectors. In recent years, there has been greater focus on potential additional restrictions that might be placed on individuals entering and exiting government through the introduction of legislation to amend current revolving door restrictions and the issuance of executive orders to temporarily increase the "cooling off" period for executive branch appointees.

Current law compartmentalizes the revolving door by placing distinctive postemployment restrictions on different types of government employees. For example, restrictions on government officials engaged in contracting do not necessarily apply to nonprocurement or noncontracting employees. Such varying restrictions were enacted because "the present complexity and size of Executive departments require occasional separate treatment of certain departmental agencies and bureaus. It would be patently unfair in some cases to apply the one year no contact prohibition to certain employees for the purpose of an entire departmentâwhen, in reality, the agency in which he worked was separate and distinct from the larger entity."

Amending "Cooling Off" Periods

In past Congresses, legislation has been introduced to lengthen revolving door "cooling off" periods. Those measures often propose extending "cooling off" periods to as few as two years to instituting a lifetime ban. If enacted, increased restrictions could serve to diminish the interaction between former government officials and government agencies and could reduce the appeal of leaving the government for a private-sector position. Additionally, such additional restrictions might "eliminate the appearance of favoritism a former official may have in lobbying his or her former office, and â¦ prevent a former official from financially benefiting from the use of confidential information obtained while working for the Federal Government."

Conversely, extending the "cooling off" period could possibly be seen as an unreasonable restriction on postemployment and "curtailing an individual's constitutional right of free association." Alternatively, Congress could reduce or eliminate the "cooling off" period. Having a shorter "cooling off" period, or eliminating it altogether, might arguably increase the talent pool available both inside and outside the government.

Finally, Congress could codify past executive branch ethics pledges that generally placed additional restrictions on executive branch appointees. Codifying ethics pledge provisions would have the effect of making those changes permanent, and not subject to being revoked by a future executive order. This could allow for permanent changes to existing ethics and conflict-of-interest provisions.

Administration of the Revolving Door

Administration and enforcement of revolving door provisions are spread among several entities. For example, each agency is responsible for collecting financial disclosure statements from individual employees and ensuring that they comply with conflict-of-interest provisions, including revolving door restrictions. Potential violations of revolving door laws, however, would likely be prosecuted by the Department of Justice. Congress could amend current law to consolidate the administration and enforcement of conflict of interest and revolving door provisions. Consolidation could provide a single office to help ensure compliance and enforcement of existing laws. Consolidation, however, would potentially add an additional layer to the collection and evaluation documents used to identify potential conflicts-of-interest or revolving door concerns. Since each agency collects financial disclosure forms from its employees, those forms would still need to be transmitted to a central location. Ethics enforcement, including the review of financial disclosure forms for potential conflicts of interest, has historically been conducted at the agency level, as each agency is often in the best position to determine whether a real or perceived conflict exists for its employees.

Maintain Current Revolving Door Standards

Congress might determine that current revolving door laws and regulations are effective or that the potential costs of changes outweigh potential benefits. Instead of amending existing revolving door provisions, Congress could continue to use existing law and regulations to govern the movement of individuals between the federal government and private sector. Changes to the revolving door could be made on an as-needed basis through modifications to executive branch regulations or executive orders.