On January 20, 2021, President Biden issued an executive order including a pledge setting forth a wide range of ethics commitments for incoming executive branch appointees (hereinafter the “Biden Ethics Pledge” or “Pledge”) within his administration. The Biden Ethics Pledge maintains many of the same ethical restrictions set forth in analogous ethics orders issued during the Trump and Obama administrations, including banning the acceptance of gifts from lobbyists. However, President Biden’s Pledge incorporates some uniquely restrictive measures that track his campaign promises of curbing the influence of corporate lobbyists and restraining “shadow lobbying” activities by former government officials. These new restrictions have significant consequences for appointees and government relations personnel, which are explained in greater detail below. As a threshold matter, the Biden Ethics Pledge applies to all full-time, non-career presidential and vice-presidential appointees, non-career appointees in the Senior Executive Service, and any appointee to a Schedule C or similar position.

Restrictions on incoming appointees and “reverse” revolving door restrictions

Similar to the previous ethics orders issued by Presidents Trump and Obama, the Biden Ethics Pledge restricts the ability of incoming appointees to work on matters that the appointees may have had some involvement with prior to entering government service. Specifically, the Biden Ethics Pledge requires the following for incoming appointees:

• Requires all incoming appointees to pledge that for two years from the date of their appointments, they will not participate in any particular matter involving specific parties that are directly and substantially related to their former employers or clients.
• Requires appointees who were registered lobbyists, or foreign agents registered under the Foreign Agents Registration Act (“FARA”), to pledge that, if they were registered within the two years before the date of their appointments, for two years from the date of their appointments they will not: (1) participate in any particular matter on which they lobbied or engaged in registrable activity under FARA within the two years before the date of their appointments; (2) participate in a specific issue area in which that particular matter falls; or (3) seek or accept employment with any executive agency with respect to which the appointee lobbied, or engaged in registrable activity under FARA.

Additionally, in a significant departure from past ethics frameworks, the Biden Ethics Pledge requires incoming appointees to affirm that they have not accepted “golden parachute” payments from former employers, including both cash and non-cash incentives and benefits. This restriction serves to negate any perception that administration officials may favor their prior employers due to financial incentives provided by such employers when leaving the private sector, and will create an added consideration for certain business personnel leaving private employment for the Biden Administration.

Restrictions for outgoing officials and “shadow lobbying” prohibition

The Biden Ethics Pledge largely tracks with precedent from past administrations when it comes to limiting the post-government employment activities of appointees, as it restricts the ability of departing appointees to work on certain matters that they may have had some involvement in during their government service. The Pledge also contains provisions limiting the post-employment lobbying activities - as defined under the provisions of the Lobbying Disclosure Act (“LDA”) - of former appointees. Specifically, the Biden Ethics Pledge requires the following for departing appointees:

• Extends the communications and appearance restrictions placed on certain senior administration officials by 18 U.S.C. §207(c) from a one-year ban to a two-year ban on engagement with one’s former executive agency following government employment. Notably, this restriction also extends the ban to cover communications with senior White House staff. This provision tracks the extended restriction on former agency contact imposed by the Obama ethics order, albeit with the added limitation on post-service communications with those in senior White House positions. It contrasts with the Trump administration’s ethics order in this area, which tracked the one year bar on applicable communications and appearances required by statute.
• Prohibits departing appointees from engaging in lobbying activities related to any covered executive branch official or non-career Senior Executive Service appointee across the entire executive branch, or any registrable activities under FARA for any foreign government or foreign political party, for the duration of the Biden Administration or for two years following the end of government service, whichever is later.

Additionally, the Biden Ethics Pledge includes a novel restriction on former senior and very senior appointees leaving government (e.g., Level I of the Executive Schedule). These former appointees are prohibited for one year following the end of their government service from materially assisting others in making communications or appearances that the former appointees are prohibited from making themselves, by either: (1) holding themselves out as being available to engage in lobbying activities in support of any such communications or appearances; or (2) engaging in any such lobbying activities. The Pledge defines “materially assist” as providing “substantive assistance”- a term which is left undefined - as opposed to providing background or general education on a matter of law or policy based upon an individual’s subject matter expertise.

This provision is aimed at curbing “shadow lobbying” activities that do not trigger registration under the LDA, but nevertheless allow for former executive branch appointees to assist clients in government affairs engagements. The definition also specifically excludes statutory exceptions to the criminal provisions found in 18 U.S.C. §207(c), including: activities carried out as an elected official of a state or local government; acts authorized by tribal organizations; activities of employees of higher education institutions or hospitals; the furnishing of scientific or technical knowledge; the provision of testimony under oath; and activities made on behalf of political parties and campaign committees. 

Lobbyist gift ban

The Biden Ethics Pledge, like the Obama and Trump pledges before it, prohibits appointees from accepting gifts from registered lobbyists and lobbying organizations while serving in the administration. The definition of “gift” for purposes of the pledge tracks the regulatory definition established by the Office of Government Ethics (“OGE”), and includes the same exceptions applicable to appointees as were found in the Obama and Trump pledges. Thus, appointees may: (1) accept modest food and non-alcoholic beverages; (2) accept gifts resulting from a spouse’s business or employment activities; (3) attend events where they will be presenting on behalf of their agency; and (4) accept gifts based upon a personal relationship.

The Biden Ethics Pledge also removes some exceptions to the OGE gift rules that would otherwise apply to appointees. These include: (1) the exception permitting executive branch personnel to accept gifts up to $20 in value, with a $50 aggregate annual limit on gifts from a single source; and (2) the exception for free attendance at “widely attended events.”

Waivers, administration and enforcement

As with past ethics executive orders, the Biden executive order allows for the possibilities of waivers for any of the restrictions set forth in the Pledge when “it is in the public interest” to grant such waivers. The language of the order specifically references lobbying activities for nonprofit organizations as a factor that weighs in favor of a waiver, and requires that waivers be made public within 10 days of certification by the Director of the Office of Management and Budget (“OMB”).

Under the framework set forth in the Biden executive order, OGE - in conjunction with the heads of the various executive branch agencies - is charged with coordinating the administration and application of the Pledge across the federal government. OGE is also tasked with periodically issuing guidance and advice to both executive branch personnel and the public on the meaning and application of the Pledge’s various provisions. Enforcement of violations, as with past ethics orders, will rest with both OGE and the Department of Justice.

Throughout the duration of the Biden Administration, the Dentons Political Law team will monitor the application and enforcement of the Biden Ethics Pledge and will highlight key issues and relevant guidance related to applicable ethics issues involving efforts to interact and engage with the federal executive branch.