Originally published in Political Activity Law Bulletin, June 11 2009
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Public interest and reform groups have long called for closing the
"revolving door" between government service and private
employment. Although post-employment restrictions date back to
1962, groups consistently argued that the rules too easily allowed
former Federal Government employees to lobby professionally for
private industries they previously regulated. Congress responded to
reformers' calls by passing the Honest Leadership and Open
Government Act ("HLOGA") in 2007 to address revolving
door issues. HLOGA extends the time period for most post-employment
restrictions and broadens the restrictions' scope. President
Obama one-upped Congressional efforts when, shortly after coming
into office, he imposed even tighter post-employment restrictions
for Executive Branch appointees.
In the current post-HLOGA/Obama era, organizations and companies
seeking to hire former government employees should understand the
post-employment restrictions so that they can modify their hiring
practices accordingly. Post-employment restrictions limit a former
employee's ability to represent others before Government
officials and employees; however, the restrictions do not generally
prevent a former public employee from participating in
behind-the-scenes lobbying strategy.
Post-employment lobbying restrictions differ based on an
individual's former Federal Government position.
- Former Members and Officers of the House of
Representatives are: (1) prohibited for one year from
representing a foreign government or political party before the
Government or advising such a foreign entity about lobbying
activity; and (2) prohibited for one year from lobbying
Congress.
- Former House Senior Staff are: (1) prohibited
for one year from representing a foreign government or political
party before the Government or advising such a foreign entity about
lobbying activity; and (2) prohibited for one year from lobbying
their former House office or committee.
- Former Senators are: (1) prohibited for one
year from representing a foreign government or political party
before the Government or advising such a foreign entity about
lobbying activity; and (2) prohibited for two years from lobbying
Congress.
- Former Senate Officers and Senate
Senior Staff are: (1) prohibited for one year from
representing a foreign government or political party before the
Government or advising such a foreign entity about lobbying
activity; and (2) prohibited for one year from lobbying the
Senate.
- Former Senate Personal or Committee Staff who
register as federal lobbyists are prohibited for one year from
lobbying their former Senate office or committee.
- All Former Executive Branch
Employees are: (1) permanently prohibited from
representing a private entity before the Government with the intent
to influence, on particular matters involving specific parties that
they handled "personally and substantially" during their
Government employment; and (2) prohibited for two years from
representing a private entity before the Government with the intent
to influence, on particular matters involving specific parties that
were pending under their official responsibility in their last year
of Government service.
- Former Senior Executive Branch Employees are:
(1) prohibited for one year from representing a foreign government
or political party before the Government or advising such a foreign
entity about lobbying activity; and (2) prohibited for one year
from lobbying their former agency.
- Former Very Senior Executive Branch Employees
are: (1) prohibited for one year from representing a foreign
government or political party before the Government or advising
such a foreign entity about lobbying activity; and (2) prohibited
for two years from lobbying any Executive Level official in the
Executive Branch or their former agency.
- Former Obama Administration Appointees are prohibited from lobbying any covered executive branch official (as defined in the Lobbying Disclosure Act) or any non-career Senior Executive Service appointee for the duration of the Obama Administration.
In addition to the restrictions summarized above, special
limitations apply to post-employment activities by employees who
participated in procurement matters or who engaged in trade or
treaty negotiations while working for the Government.
Several exceptions apply to the federal post-employment
restrictions. For example, self-representation, providing testimony
under oath, representing the Federal Government, or acting as an
elected state or local representative are exempt. Likewise,
notwithstanding the restrictions, former public employees may
engage in certain communications with agencies on behalf of a state
or local government, a college or university, or political
candidates and committees.
This article is designed to give general information on the developments covered, not to serve as legal advice related to specific situations or as a legal opinion. Counsel should be consulted for legal advice.