Ethics Watchdog Can Only Do So Much

AP Photo/J. Scott Applewhite, File

Walter M. Shaub Jr., director of the U.S. Office of Government Ethics walks on Capitol Hill in Washington. 

For more than 30 years, watchdogs have pleaded in vain with Congress to strengthen the Office of Government Ethics (OGE), an independent agency set up in the wake of Watergate to ward off executive branch conflicts of interest.

Now, lawmakers may finally take notice. Until this year, it’s been easy for Congress to overlook the OGE’s relative lack of clout, sleepy profile, and reluctance to take forceful action. After all, until now all presidents have voluntarily followed fixed ethics conventions, such as disclosing their taxes and placing their assets into blind trusts, and have stood squarely behind the OGE in its inevitable clashes with other federal agencies.

But Donald Trump’s determination to throw those conventions out the window, and his administration’s moves to not only reject OGE’s advice but block it from doing its job, have made it impossible to ignore just how tightly the ethics agency’s hands are tied—as OGE Director Walter M. Shaub Jr.’s recent showdown with Trump’s Office of Management and Budget clearly illustrates.

The fight centers on Shaub’s request in April that all agencies hand over information on how many ethics waivers have been granted to onetime lobbyists who now have administration positions. Although a Trump executive order bars such former lobbyists from working on issues on which they’ve lobbied within the last two years, his administration has nonetheless hired dozens of lobbyists to work on matters that impact their recent lobbying clients. And unlike prior presidents, Trump has refused to publicly disclose or justify the lobbyist waivers.

In a letter obtained by The New York Times, OMB Director Mick Mulvaney ordered Shaub to drop the matter. In response, outraged congressional Democrats pledged to request the waiver information themselves, a watchdog group filed suit, and Shaub fired back with a ten-page letter asserting his legal authority to make sure ethics rules are being followed.

It’s not the first time Shaub has tangled with Trump and his team. In fact, some Facebook fans think Shaub deserves a medal for publicly decrying Trump’s failure to divest from his business interests as “wholly inadequate,” and for flatly rejecting White House lawyers’ claim that government ethics rules don’t apply to employees in the Executive Office of the President.

But Shaub and his agency can only do so much. The OGE plays an essentially advisory role, and lacks the power to launch investigations and impose sanctions. Shaub does note in his ten-page retort to Mulvaney that the federal Inspectors General and the Office of Special Counsel have the power to investigate “allegations of retaliation” against federal officials who fail to hand over the information that OGE has requested.

But there’s no rule that protects Shaub, for example, from being fired without cause—a provision that ethics reform advocates urged Congress to adopt as far back as 1983, and that now seems suddenly timely. It’s one of a long list of OGE changes that reformers have dusted off and are now circulating on Capitol Hill. These include the recommendation that Congress authorize the OGE to investigate ethics violations by high-ranking executive branch employees, and clarify that the agency’s director has the authority to subpoena witnesses, compel evidence, and issue civil penalties for ethics violations.

“When tradition no longer is enough, that means that you’ve got to go back and look at the law,” says Meredith McGehee, chief of policy, programs and strategy at Issue One, a bipartisan campaign reform group, which outlined its OGE recommendations in a memo this week. McGehee says the OGE actually has more statutory authority to police ethics matters than it has exerted until recently, but that tougher rules are still needed.

Two Democrats—Senator Sheldon Whitehouse of Rhode Island and Representative Ted Deutch of Florida—have already introduced legislation that would direct the OGE to require high-level cabinet nominees and appointees to report the undisclosed money they spend on politics. Whitehouse points to big-spending “dark money” groups—politically active nonprofits that operate outside the disclosure rules—with ties to officials such as EPA Administrator Scott Pruitt and Education Secretary Betsy DeVos.

It’s a “huge political enterprise, this whole dark-money apparatus,” says Whitehouse. “And to have no visibility about how cabinet officials have played in that space is just a flagrant loophole packed with conflicts of interest.”

McGehee says a surprising number of Republicans have been willing to discuss OGE changes with Issue One and its allies. While congressional Republicans have so far failed to show much appetite for Trump administration oversight, the president’s ethics controversies continue to mount, all against the background of a special counsel probe into Russia’s alleged tampering in the 2016 campaign.

Foreign holdings by Trump’s daughter, Ivanka, and his son-in-law, Jared Kushner, have drawn ongoing scrutiny and prompted the watchdog group Democracy 21 to call on the OGE to take steps to prevent a conflict of interest. There are also renewed calls for Trump to make good on his pledge to donate to the Treasury all profits from foreign patrons to his hotels and other businesses. Recent reports quote an internal Trump Organization document stating that asking guests about their foreign government connections would be “impractical,” violate their privacy, and “diminish the guest experience of our brand.”

“I’m not yet seeing any significant willingness, readiness, to push on the administration to be more accountable,” says House Democrat John Sarbanes, of Maryland, of his GOP colleagues. “But I think there’s a kind of cumulative effect of things here. And there will come a tipping point where Republican members of Congress will no longer be able to defend the lack of accountability that this White House seems to operate with.”

It was, after all, a Republican—Senator Charles Grassley, of Iowa—who insisted that all administration waivers to executive branch lobbying restrictions be disclosed under President Obama. In his memo to Mulvaney this week, Shaub couldn’t resist quoting Grassley stating that “the work of the Government is the work of the people and it should be public and available for all to see.”

A Grassley spokesman did not respond to requests for comment.

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