Memorandum of Disapproval on a Bill Concerning Post-Employment Restrictions
service is a public trust. It requires a high and exacting standard of conduct,
and we should go forward with more clear, far-reaching restrictions to ensure
that this standard of conduct is always met. But the final provisions of this
bill were poorly drafted, would have applied unevenly, and would discourage
from Government service
The 100th Congress cobbled together the final version of H.R. 5043 in its closing moments. Post-employment restrictions are needed if the Nation is to govern itself effectively. They deserve careful and thoughtful consideration, but this bill reflected the political and other pressures that mount in the closing days of a Congress. In December, we will have the recommendations of the nonpartisan Quadrennial Commission on Executive, Legislative, and Judicial Salaries, which is currently considering Federal salaries and related issues. The President-elect also has indicated that he will have his own initiative next year, and I have encouraged him to do so. This bill would not have taken effect until August of next year, and this interval should be used to craft balanced and comprehensible post-employment legislation.
Fair and impartial governance is the hallmark of our constitutional democracy. Current laws concerning the conduct of current and former Federal employees were designed to secure that fairness and impartiality. They prohibit conduct that produces conflicts of interest between Federal employees' official duties and their personal interests. Specifically, current law is designed to prevent two primary abuses -- the misuse of confidential information or the exercise of improper influence over Government action by former Federal employees and less-than-faithful performance of official functions by current Federal employees to favor a future employer.
While there are some positive aspects of the bill, the Post-Employment Restrictions Act would have prohibited conduct of former Federal employees unrelated to genuine ethical concerns. In effect it would have punished them for their service to the Nation. For example, in certain circumstances, the bill would have prohibited a senior former employee of an agency from communicating with a senior current employee of a different agency with whom he is not personally acquainted to seek assistance his employer or client needs on a matter with which the former employee had absolutely nothing to do while in Federal employment. The bill would make that communication a Federal crime punishable by imprisonment and fines.
The law already precludes a former Federal official from representing private parties in specific matters in which that official was involved while in Government and also imposes a 1-year cooling-off period during which a former official generally cannot contact his agency on any matter. It is excessive and unjustifiable also to insist, as this bill would, that former officials not represent any client before any senior Executive official wherever located and no matter how unrelated to the former officials' Government service.
That kind of unnecessary and drastic criminal prohibition is unfair to those who have served their country. It is already difficult to recruit talented people into the senior ranks of Government. This bill would have begun to make former senior Federal employees unemployable in the private sector after their Government service. Many of the most talented might never sign up to serve their country, and the country would be the worse for it.
The bill also unreasonably favors the Congress with restrictions lighter than those that would apply to the Executive branch. Under the bill, all Executive branch employees would have been subject to certain prohibitions, but most congressional employees would have been subject to none. Even for senior congressional personnel, the restrictions would have been substantially less rigorous than the restrictions placed on Executive branch employees of equivalent responsibility. Members of Congress and senior staff would be subject only to 1-year cooling-off periods of very modest scope and would not be subject to the lifetime and 2-year particular matter bans currently imposed on all Executive branch officials. The Congress' relatively favorable treatment of itself in imposing restrictions in comparison with its treatment of the Executive branch may indicate some congressional recognition that a number of the bill's restrictions are overbroad and, to the extent of that overbreadth, unfair. In future consideration of post-employment restrictions legislation, the Congress should determine what restrictions are reasonable and necessary to protect the integrity of Government and then apply them equally to both the Congress and the Executive branch.
The limitations of offenses under H.R. 5043 to acts done for compensation also is of concern. There may be circumstances in which a current employee who misuses official authority or a former employee who misuses influence should be subject to penalties even though no compensation is involved. In that respect, the provisions of H.R. 5043 would have failed to reach conduct that should be prohibited and thus would have significantly weakened current law. The Attorney General and the Director of the Office of Government Ethics find this provision to be particularly objectionable.
support several positive aspects of H.R. 5043 that would substantially improve
the effectiveness of Federal post-employment restriction laws. The bill would
have granted the Attorney General the power to seek civil penalties for
violations of the post-employment restrictions and to obtain injunctions from
Federal courts to prevent impending violations. The bill also would have
permitted the Attorney General to distinguish between misdemeanor and felony
violations of the restrictions in charging individuals. The bill also would
have adjusted the 1-year ban on certain contacts with a former employee's
former agency to make clear that it applies to matters in which the
Above all, in considering future post-employment restrictions legislation, the Congress should focus on drafting legislation that will be clear and understandable to current, former, and future Federal employees. The bill would create a confusing patchwork of different requirements for seven categories of covered officials: ``senior'', ``other senior'', ``very senior'', all Executive branch, Members of Congress, congressional employees, and former Presidents and Vice Presidents. The law should be clear so that employees joining the Government will understand what will be expected of them when they leave, former employees will know reliably the limits on their conduct, and Federal officials charged with enforcing the law and providing advice can discharge their duties effectively.
withholding my approval of H.R. 5043, I am well aware that there will be
criticisms. But I must act on this bill according to my judgment of what is
best for the country. While this bill would not have affected me or my
Administration, it is fundamentally flawed and would have made securing good
The White House,