AGENCY CAPTURE, THE REVOLVING DOOR AND OTHER CONFLICTS OF INTEREST
"The ultimate commercial accomplishment is to achieve regulation under law that is purported to be comprehensive and preempting and is administered by an agency that is in fact captive to the industry." -- Robert Monks and Nell Minow, Power and Accountability.
Agency capture, crony contracting, the revolving door and other conflict-of-interest problems remain an endemic epidemic in the federal government. This page is a compilation of related reports and measures that have been proposed to address the problem.
Broadly defined, there are at least three "revolving door" issues:
1) The "Reverse Revolving Door" (i.e. people coming into government from business). There are few restrictions on this, though there are rules for disclosure of former employment, investments, etc.
2) The "Revolving Door" (i.e. federal employees who leave to seek employment with the industries or companies they formerly regulated).
3) The "Lobbyist Revolving Door" (i.e. when government officials leave for employment as a lobbyist). Activities of Senators and Representatives are regulated under the Lobbying Disclosure Act.
Part One: Defining the Problem
Tracking The Problem:
Open Secrets recently launched a new Revolving Door database that tracks thousands of individuals who have worked for the federal government and the private sector.Last year, the Revolving Door Working Group (RDWG) produced A Matter of Trust: How the Revolving Door Undermines Public Confidence in Government, and What to Do About It, a comprehensive review of the issue and proposed reforms.
For information about members of Congress, go to Congresspedia.Public Citizen published a report on the Congressional Revolving Door. This is part of LobbyingInfo.org, a campaign to "track the activities of special interests." The Center for American Progress published a Second Term Revolving Door report on the Bush administration in September, 2005.
The Center for Public Integrity maintains Lobby Watch allows you to track how private interests affect public policy.General Reports, Investigations, News :
"Special Interest Takeover" is an excellent report that provides an overview of many
interrelated problems involved. It was produced for
Citizens for Sensible
Safeguards (a collaboration among over 300 groups, organized by OMB Watch and the Center for American Progress).
"Lobbying from Within," NYtimes (6/17/05)
"The Road to Riches is Called K Street," by Jeffrey Birnbaum (Washington Post, 6/22/05)
"The Lobbying-Industrial Complex" (NYTimes op-ed, 8/26/05) and "Medicare Law Prompts a Rush for Lobbyists" by Robert Pear (8/23).
"There's Always a Way," by Jeff Birnbaum (Washington Post, 8/4/05)
"When Advocates Become Regulators", by Anne C. Mulkern (Denver Post, May 23, 2004). Includes these snapshots of lobbyists-turned-regulators.
How the Republicans Have Turned the Government Over to Special Interests, a report by Rep. George Miller (D-CA).
The "Military-Industrial Complex"
More than 200 government officials, military brass and members of Congress who left their jobs since 1996 went to work as lobbyists or corporate officials with the 20 largest federal contractors (most of whom are defense contractors), according to The Politics of Contracting, a report by the Project on Government Oversight.
Related reports referenced in POGO's report include:
Lieutenant Colonel Richard B. O'Keeffe, Jr., Where There's Smoke ... Who Should Bear the Burden When a Competing Contractor Hires Former Government Employees?, 164 Mil. L. Rev. 1, 22 (2000).
David Phinney, Defense's Revolving Door: When Managers Join Contractors, Good Oversight Takes a Hit, Auditors Say, Federal Times, Apr. 19, 2004.
Dr. Adolfo Santos, Post-Congressional Lobbying and Legislative Sponsorship: Do Members of Congress Reward Their Future Employers?, LBJ Journal of Public Affairs, Vol. 16, Issue 1, Fall 2003, at 56-57.
Major Kathryn Stone, The Twlight Zone: Postgovernment Employment Restrictions Affecting Retired and Former Department of Defense Personnel, 142 Mil. L. Rev. 67, at 136-137 (1993).
GAO Reports on the DOD Revolving Door:
DOD Revolving Door - Many Former Personnel Not Reporting Defense-Related Employment (GAO/NSIAD-86-71, Mar. 1986), available here.
DOD Revolving Door - Relationships Between Work at DOD and Post-DOD Employment (GAO/NSIAD-86-180BR, July 1986), available here. DOD Revolving Door - Post-DOD Employment May Raise Concerns (GAO/NSIAD-87-116, Apr. 1986), available here.
Implementation of the DOD Revolving Door Legislation, Statement by Martin M. Ferber, Director Manpower and Logistics Issues, National Security and International Affairs Division (GAO/T-NSIAD-89-17, Mar. 15, 1989) available here.
DOD Revolving Door - Processes Have Improved but Post-DOD Employment Reporting Still Low (GAO/NSIAD-89-221, Sept. 1989), available here.
DOD Revolving Door - Few Are Restricted From Post-DOD Employment and Reporting Has Some Gaps (GAO/NSIAD-90-103, Feb. 1990), available here.
Other groups that monitor conflicts of interest in the military:
The Center for Public Integrity has produced numerous related reports.
The Arms Trade Resource Center of the World Policy Institute
Contract Watch (a project of Taxpayers for Common Sense)
DoD's Standards of Conduct Office (SOCO).
The Defense Information Systems Agency.
Navy Office of General Counsel Ethics Page.
The problem is exemplified by this NYTimes story (10/2) about how a company called First Command managed to stymie an investigation into "reports of possible unethical or overly aggressive" sales practices by the company's agents. As the Times put it, "First Command's success in its face-off with Air Force lawyers was a stark illustration of how a company with strong military connections can influence the very people who are supposed to monitor its sales activities on bases."
Telecoms and Media:
From Government Service to Private Practice: Writers of Telecom Law Move to K Street by the Center for Public Integrity, part of its Networks of Influence special report.
"Anatomy of a Lobbying Blitz", a Center for Public Integrity report on cable industry influence over FCC.
Free Press web page on lobbying and regulatory reform
USDA, Inc: How agribusiness has hijacked regulatory policy at the USDA, by Phil Mattera for the Agribusiness Accountability Initiative. For a related story see "Lobbyists Role in Food Rules Questioned" (Washington Post, 9/30/04).
Also see the Department of Agriculture's Supplemental Standards for Ethical Conduct for Employees.
The Environment and EPA/Dept. of Interior
"A Facelift at the EPA" (article about industry lawyers and lobbyists at the agency) by Dan Fagin, Newsday (10/12/04). Also see related parts in this Newsday series on Industry influence over the Clean Air Act and other rule changes.
"Rewriting the Rules" is NRDC's report on the Bush Administration's assault on the environment.
Bush and Coal (Ohio Valley Environmental Coalition)
Also see the Department of Interior's Ethics Office Web Site.
The Department of the Interior's Office of Inspector General report on J. Steven Griles, (PI-SI-02-0053-I, Report of Investigations (2004)) is here, and here.
Part Two: Scientific Policy and Conflicts of Interest:
In addition to the specific regulatory problems cited above, there have also been problems with industry influence over scientific advisory committees and other fora critical to regulatory and legislative policy-making activities.
Scientific Integrity in Policymaking is an investigation into the Bush administration's abuse of science by the Union of Concerned Scientists.
Also, the Integrity in Science database maintained by the Center for Science in the Public Interest allows you to search for scientists' ties to industry.
Pervasive industry influence over scientific policy is demonstrated by the The Biotechnology Revolving Door (a list of government/corporate/university people)
For example, the Center for Food Safety recently revealed that after filing a lawsuit against the USDA for its failure to perform adequate environmental review prior to allowing the field testing of genetically engineered grass, USDA hired a former Scotts Co. biotechnologist to review the company's petition to approve the genetically engineered bentgrass for commercialization.
A related issue is the abuse of risk assessment to bias scientific policymaking in industry's favor. See Public Safeguards at Risk! A Compendium of Important Consumer, Workplace, and Environmental Safeguards Likely to be Affected by the Bush Administration's Recent "Regulatory Freeze", report by Public Citizen. Also: Graham Watch is a Public Citizen project to monitor the activities of John Graham, Administrator of OMB's Office of Information and Regulatory Affairs (OIRA).
See this related New York Times article by Joel Brinkley (8/14/04).
Also see this excellent Washington Post series on Health and Safety Regulations, OSHA, Mountaintop Mining and environmental regulations.
The Science and Environmental Health Network is a leading proponent of the precautionary principle.
Rachel's Environment and Health Weekly is also useful.
Numerous books have been written on the topic of industry influence over policymaking, including: Toxic Deception by Dan Fagin and Marianne Lavelle,
The Politics of Cancer by Samuel Epstein;
Trust Us, We're Experts by Sheldon Rampton and John Stauber;
Deceit and Denial: The Deadly Politics of Industrial Pollution by Gerald Markowitz and David Rosner
Corporate influence over scientific policymaking is also conducted through attempts to influence "independent" voices in academia and think tanks, as well as corporate front groups. For an example of the extent to which this will occur, see Exxon Secrets.
Part Three: Specific Revolving Door Cases:
Andrew Lundquist (former head of VP Cheney's energy task force) began working as energy industry lobbyist just months after leaving the White House.
Darleen Druyun, was the Air Force procurement chief who admitted to helping Boeing while the company employed her daughter and future son-in-law. See stories by NYTimes (10/2). Also look at related information from Taxpayers for Common Sense and POGO.
As a result of the scandal Boeing hired Paul, Weiss, Rifkind, Wharton, & Garrison LLP to produce A Report to the Chairman and Board of Directors of the Boeing Company Concerning the Company's Policies and Practices for the Hiring of Government and Former Government Employees, Feb. 26, 2004. Also available here. In 2005, the Pentagon announced it was investigating 8 additional contracts as a result of the Druyun investigation. For more background see Sen. John McCain's 11/19/04 release.
Like many Bush administration officials, former Bush administration Medicare official Thomas Scully was appointed to his position after lobbying for companies he was then supposed to regulate. Scully represented the nation's for-profit hospitals as a lobbyist before joining the administration in June 2001. Eight months after he was hired, the agency moved to settle final claims involving HCA Inc., a hospital chain that was the biggest member of Scully's former employer, the Federation of American Hospitals. Scully said he'd stay out of the case, but an attorney who represented HHS whistleblowers said the final settlement represented "a total sellout by Scully, who totally negotiated it behind Justice's back." Scully left the Bush administration in December 2003, just after the president signed the Medicare bill, to work for two firms representing drug manufacturers and Medicare providers who benefited from the law. A study by Common Cause notes: "These jobs did not just drop into his lap in December. He had apparently been negotiating with healthcare-related firms at the same time he was helping the Administration push the controversial prescription drug legislation through Congress, which directly affected those industries." Remarkably, Scully's conflict of interest was sanctioned by the Bush administration, which granted Scully an ethics waiver "so that he could negotiate with potential employers while he helped write the Medicare law."Over forty members of the Bush administration either worked for Enron, or represented them as lobbyists. It's no wonder, therefore, that the Bush administration had numerous meetings with Enron officials
Part Four: Policies to Address these Problems:
For an example of model legislative language to tighten the revolving door (government to industry) regulations, see the 2004 intelligence reform bill, S. 2845, PL 108-458, which includes a cooling off provision for former employees of the Office of the Comptroller of the Currency (the amendment was introduced by Sen. Levin after the Riggs Bank scandal. (See section 6303(b) of the bill/public law.) It includes a new subsection (k) to 12 USC 1820 for banks and a very similar subsection (w) to 12 USC 1786 for credit unions.
To understand current policies see POGO's Summary of Conflict of Interest and Ethics Laws.
The U.S. Office of Government Ethics sets and interprets regulatory standards on conflicts of interest and the revolving door.
See the OGE's site for links to related Statutes, Regulations, Agency Supplemental Standards of Conduct Regulations, Executive Orders, and Prosecution Surveys (by year and by statute).
OGE also published this pamphlet: Understanding the Revolving Door: How Ethics Rules Apply to Job Seeking and Post-Government Employment Activities in 2004. The pamphlet summarizes certain requirements for outgoing federal employees and incoming federal employees:
The Department of Justice also has an Ethics Office.
Also see DoJ's Public Integrity Section's Annual Reports to Congress (Including Prosecutions) for 1999, 2000, 2001, and 2002.
Disclosure: Persons appointed to senior positions in the executive branch are required to disclose information about their finances and affiliations through Standard Form 278, which can be requested from OGE by filling out this form.
Executive Order 12834 (signed by President Clinton, but also revoked before he left office), required government employees to pledge not to lobby former agency for five years.
Senator Byrd (D-WV) introduced an amendment to the FY 2005 Defense Appropriations bill that would prohibit employment or compensation from contractors by ex-government officials. See POGO for more.
In April the GAO issued this report calling upon the GSA and/or Office of Government Ethics to provide increased guidance to Federal Advisory Committees to better ensure independence and balance, including more detailed conflict-of-interest disclosures. Both GSA and The Office of Government Ethics supported the GAO's recommendations, though they address only the advisory committees, not regulatory appointees.
Other Reports and Sites of Interest:
Congress Watch (Public Citizen) works to improve lobbying disclosure and prevent conflicts of interest and reform some ethics problems.
The Center for Responsive Politics Lobbyists Database.
Outside Interest is the Center for Public Integrity's report on state legislature connections to private interests, disclosure standards.
The Center for Public Integrity has also compiled a comprehensive list of state disclosure reforms and requirements.
The Council of Governmental Ethics Laws is a subscription-based professional organization.
"Secrecy in the Bush Administration", report by House Government Reform (Minority).
Report on Costs of Secrecy by Open the Government
TGIF: White House uses Stealth Tactics (on Fridays) to Push Policies, by Joel Connelly, Seattle Post-Intelligencer (12/12/03)
The Center for Progressive Regulation" at Georgetown University is a "nonprofit research and educational organization of university-affiliated academics with expertise in the legal, economic, and scientific issues related to regulation of health, safety, and the environment."
The Washington Post's Judy Sarason regularly reports on "special interests" such as this 6/17 column about ex-members of Congress hired by CACI (a military/intelligence contractor whose employees have been charged in association with incidents at the Abu Ghraib prison in Iraq) to help it convince the GSA to not ban it from federal contracts.
Influence.biz (by law.com) follows lobbyists and other influence-peddlers.