The administration must elevate ethics as a core value by prioritizing meaningful structural ethics reforms and committing publicly to adhere to the rules and the values and norms behind them.
- The Problem
- Recommendations for Action on Day One
- Recommendations for Short-term Action (First 100 Days)
- Recommendations for Legislative Action
Democracy rests on the principle that public officials serve the public, not their own personal interests. The fundamental purpose of ethics laws and regulations is to uphold that principle by ensuring each government official places loyalty to the Constitution, laws, and adherence to ethical principles above private gain; and to ensure that every citizen can have complete confidence in the federal government. When an administration views ethics rules as an obstacle or impediment and treats loopholes and exceptions as the norm, it undermines confidence in government and creates conditions for corruption. Recent events have made clear that too many ethics rules contain gaps that require filling. The administration must elevate ethics as a core value. It must pledge to take ethics rules seriously, to follow the letter and spirit of the law, use exceptions sparingly and only for good cause, and punish transgressions even by powerful officials. Finally, the administration should prioritize seeking legislative reforms to strengthen ethics rules so that it, and future administrations, cannot treat the law as optional.
- Center leadership on ethics within the White House.
The administration should appoint a Chief Accountability Officer to lead and coordinate the administration’s transparency and ethics agenda. Among the Chief Accountability Officers duties will be the implementation of a new ethics executive order, issuing guidance for personnel hiring and appointments across the administration, and the dissemination of ethical principles and priorities to all agencies. The Chief Accountability Officer should have a high rank and access to decision-makers, including the president and should be required by the president to meet early and often with leadership across the federal bureaucracy to elevate ethics.1 For more details on an ethics executive order designed to update, improve, and fill perceived gaps in the Obama administration’s executive order, please see Appendix 2.1.
- Convene an ethics review panel.
Under the leadership of Chief Accountability Officer, the next administration should convene a Federal Advisory Committee to propose ethics reforms. As part of the review, the panel should convene a conference with the Office of Government Ethics and Designated Agency Ethics Officials from every agency to gather feedback and suggestions for improving the ethics process.
- End ethics impunity, restore ethical norms regarding the scope of ethics laws.
Until recently, every administration has treated conflicts of interest and other ethics rules as though they apply to the president, vice president, and their families, notwithstanding long-standing executive branch opinions that they are technically exempt from them.2 Similarly, past administrations have taken Hatch Act violations and opinions from the Office of Special Counsel regarding White House staff seriously even though the president has discretion over discipline. The incoming administration must state, and demonstrate, that adhering to ethics rules makes our democracy stronger by committing to following these laws even if they cannot be readily enforced. The alternative is impunity for the president and his or her inner circle because they know they will not face consequences.
- Eliminate nepotism at all levels of government.
Although there are examples of presidents appointing relatives to federal offices throughout history, nepotism undermines accountability and gives the appearance of a conflict of interest. The president and vice president must pledge to reverse the practice of appointing relatives to federal offices, and the Office of Legal Counsel opinion circumventing the federal anti-nepotism statute’s applicability to the White House should be rescinded. The president must also direct the Office of Personnel Management to clarify that anti-nepotism policies as established for all executive agencies include any appointments, hires, or promotions by the president or vice president.
- Establish ethics as a top administration priority.
The next administration should issue a memorandum to all agencies emphasizing the importance of ethical government and principles (e.g., reemphasizing the Office of Government Ethics’ 14 general principles of ethical conduct); and reminding all federal employees about ethics laws; the role and availability of the Office of Government Ethics, the Office of Special Counsel, and Designated Agency Ethics Officials. In order to elevate ethics and to ensure uniform application of the laws, the memorandum should instruct all agency heads to discuss any proposed ethics exemptions or waivers with the White House Chief Accountability Officer and to limit their use to cases for which good cause exists. The memorandum should also instruct all agency heads to take action against ethics violations, up to and including termination in egregious cases, and should pledge the president to doing the same with regard to his senior appointees in the White House and at agencies.
- Prioritize ethics as a rule-of-law issue.
The attorney general should issue a memorandum prioritizing the investigation and prosecution of ethics laws, including conflicts of interest statutes, the Hatch Act, the Lobbying Disclosure Act, anti-lobbying laws prohibiting propaganda, and the Foreign Agent Registration Act.
- Make ethics information accessible and transparent.
The next administration should make it easier for the public to confirm officials are following ethics laws. To do so, it should relaunch Ethics.gov to centralize and publish robust ethics information. In addition to the previous scope of the website (White House Visitor Records; Office of Government Ethics Travel Reports; Lobbying Disclosure Act Data; Department of Justice Foreign Agents Registration Act Data; Federal Election Commission Individual Contribution Reports; Federal Election Commission Candidate Reports; Federal Election Commission Committee Reports) the new Ethics.gov should include ethics information on all appointees within 60 days of appointment, including but not limited financial disclosures, ethics waivers or rejections of waivers, transaction reports, ethics agreements, certificates of compliance, etc. Ethics filings and disclosures should be in structured data format (searchable, sortable, downloadable).
- Promulgate new White House-agency contact policies to prevent improper interference in agency decision-making.
Since Watergate, administrations of both parties have had in place policies to prevent the White House from asserting improper influence in certain agency decisions about how the government treats specific parties like particular companies or individuals. The president should reassert clear policies to prevent even the appearance of cronyism. The most effective of these policies specify that White House officials generally should not intervene with agency decisions on matters such as contract or grant awards, civil enforcement actions, regulatory waivers, or licenses.
- Transform ethics norms into ethics laws.
The president should ask the leadership of the House and Senate to pass a significant ethics reform package in 2021, and should instruct his or her director of legislative affairs to make doing so a top priority. In addition to prioritizing the specific proposals outlined in the subsections that follow, a number of broader legislative reforms have been proposed, some of which complement each other, while others require choosing between several options. Some of the proposals include:
- Establishing a new Commission on Federal Ethics to oversee and enforce federal ethics laws, expanding on the authorities of the Federal Election Commission, Office of Government Ethics, and Office of Special Counsel;
- Amending the tenure of the director of the Office of Government Ethics to be removable only for just cause;
- Expanding the Office of Government Ethics’ role to include investigative and enforcement authorities, including potentially subpoena authority and/or establishing an Executive Branch inspector general under the Office of Government Ethics with jurisdiction over the White House (or expanding the Office of Government Ethics director’s authority to the same extent).
- Amend anti-nepotism law to explicitly include the White House.
While the president and vice president should commit to re-establishing an anti-nepotism norm across executive agencies, codified in Office of Personnel Management rulemaking, they should also support codifying these norms in law. The anti-nepotism statute needs to be clarified to clearly state that, notwithstanding applicable appointment authorities, the president and vice president are prohibited from appointing a relative to any position in the executive branch, including a position in the White House Office or the Office of the Vice President.
2 See, e.g., Memorandum to Hon. Kenneth Lazarus from Antonin Scalia, Office of Legal Counsel, https://fas.org/irp/agency/doj/olc/121674.pdf (“Notwithstanding the conclusion that [certain ethics rules] bind the President or Vice President, it would obviously be undesirable as a matter of policy for the President or Vice President to engage in conduct proscribed” by the rules.).