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Swamp loophole: Isn’t a lobbyist by any other name still a lobbyist?

Retired Lt. Gen Michael Flynn gestures as he arrives at Trump Tower, Thursday, Nov. 17, 2016, in New York.
Retired Lt. Gen Michael Flynn gestures as he arrives at Trump Tower, Thursday, Nov. 17, 2016, in New York. AP

Donald Trump’s first act to clean up Washington could miss a big loophole.

He pledges to prevent “lobbyists” from serving in his administration. He also says he will ban ex-Trump administration officials from lobbying for five years after leaving his government, a move tougher than any past president has tried.

But if he only focuses on the narrow definition of “lobbyist,” he’ll overlook the so-called “shadow lobbyists” who pitch themselves instead as “consultants” or “strategic advisers.” Declining to register as lobbyists, they make it difficult for the public to ascertain who is seeking to influence members of Congress and federal agencies.

“Lobbying is such a giant mainstay of Washington that it’s hard to believe that just a ‘thou shall not lobby’ fiat is going to be effective,” said Anne Weismann, executive director of the anti-corruption group Campaign for Accountability. “When he says banning lobbyists, they’ll say they’re consultants. But a lobbyist by any other name is still a lobbyist.”

Groups that want to tighten the federal law governing lobbyists are encouraging Trump to include the type of influence peddlers they say already skirt the law. Most famous was former Sen. Tom Daschle, D-South Dakota, who only registered as a lobbyist this spring after a decade of working in “government affairs” for various lobbying firms.

“We worry that the Trump plan doesn’t do anything about individuals becoming ‘consultants’ and making millions by not registering,” said Aaron Scherb, director of legislative affairs at Common Cause. “As lobbying has become a four-letter word, fewer register and lobbyists have gone underground.”

Trump has expressed support for closing the loophole, saying last month that he’d “expand the definition of lobbyist so we close all the loopholes that former government officials use by labeling themselves consultants, advisers, and all these different things.”

But it would take an act of Congress to officially do so. And ethics groups are skeptical that members of Congress, who often join lobbying firms after leaving government, would be eager to constrain their money-making options. The American Bar Association has pressed for a broader definition of “lobbyist” since 2011, arguing that transparency is being clouded.

They note that Trump, who has promised to scrap every “overreaching” executive action signed by President Barack Obama, could go further on limiting lobbyist influence by embracing Obama’s decision to bar active lobbyists from joining the administration. Obama did not allow lobbyists active within the past year to join his administration.

Trump is “looking forward,” not “looking back,” transition spokesman Sean Spicer said. That could mean active lobbyists would be able to join, as long as they de-register. That includes Trump’s incoming National Security adviser Michael Flynn, who runs a consulting firm that lobbies on defense matters.

Yet Obama’s executive order likely spurred more lobbyists to drop into the shadows. It accelerated a trend that began a decade ago after new restrictions on lobbying were imposed that sought to curb corruption in Congress.

The number of registered lobbyists declined to 10,840 in 2015, down from 14,837 registered lobbyists in 2007 before the law changed, according to James Thurber, the author of “American Gridlock: The Sources, Character and Impact of Political Polarization.”

“Government spending has increased, enormous bills went through Congress, many of them controversial and the lobbying went down? Something happened,” Thurber said.

But “that’s not a justification for removing” lobbyist restrictions, it’s a reason to enforce the law, said Craig Holman, a lobbyist for Public Citizen’s Congress Watch.

Obama’s Department of Justice has also shown little interest in pursuing cases against actual lobbyists who don’t register. Under federal law, those who spend at least 20 percent of their time lobbying are required to register.

“We tighten the ethics in one place, but we end up weakening disclosure,” said Richard Painter, a former chief ethics lawyer for President George W. Bush.

Painter says he sees other trouble spots with Trump’s ethics code, charging that “he’s going after the lobbyists, but not doing anything about the other conflicts of interests.” To Painter, that includes not addressing other conflicts, including insisting that his children will run his sprawling business empire, but naming them to his transition team. He’s also stocked the transition team with a number of Wall Street insiders and corporate executives.

“So what we have is draining the swamp, yes, to some extent. But what is the backfill?” Painter asked. “Out of New York? From the Trump organization? Is that going to be a worse situation than the influence of lobbyists?”

Lesley Clark: 202-383-6054, @lesleyclark

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