Con-Flicted!

Words from the wise to the young, entry-level lawyer: beware of the “poor country lawyer.” That slow-talkin’, idiom-usin’, drawlin’ country bumpkin with a devilish twinkle in his/her eye will most probably eat your young liver is a whirl of charm before a local jury in a matter being heard before a local judge. Red alert, this is not a drill. They’re the ones likely to send their clients for a “consultation” to all of the other top local competitor lawyers… so that no one competent from the local bar can ever represent the other side. You see, once a lawyer has been consulted on a case, even before being retained, they have a serious conflict of interest… so they can’t represent the “other side” without consent of the party that interviewed them. Clever, these folks.

And so it is with Washington, D.C. With so much technological, legal and financial complexity passing before so many administrative bodies and even Congress, our friendly federal government is filled with task forces, advisory committees and special purpose advisors to one governmental executive (including the President) or another. Clearly, the most educated and informed members of these advisory boards, however they are constituted, are either academics or, more likely, members of the industry in question with years of specialized knowledge based on their expertise and their experience.

For years, the industries under government regulation or scrutiny have been more than happy to supply their experts to explain the inner workings of their industry and underlying processes to the relevant government functionaries; after all, they wouldn’t want the government to misunderstand the intimate requirements of their business operations. And yes, gotta admit it, it is these same business sectors that, whether as trade associations or individual businesses, have found numerous ways to “support” those elected to Congress or, perish the thought, the Presidency itself. Political Action Committees. Campaign contributions. Fund raisers. Stuff. They’re very much like those poor country lawyers… and they’re here to help you.

Funny that even some of the academics on these federal advisory panels may also perform some heavy consulting for the industries that they study or provide inventive value to. Those who are exceptionally good at “explaining” a particular business and are sufficiently versed in the nuances of their “sector” (they can respond in an instant to a pointed question) are often engaged as lobbyists – and actually have to register as same with the feds – for their particular industry or business. To Washingtonians, these are the boys and girls from “K Street,” an avenue well-known for the plethora of insider lobbyists whose offices proliferate particularly on this downtown D.C. boulevard.

For years, it has been standard procedure for industry to supply these exceptionally well-informed lobbyists to the government to participate on so many of these often unpaid advisory panels, charged with providing nuanced essential information to various governmental bodies, particularly administrative agencies, Congressional subcommittees and the President of the United States. With an addiction that seems to mirror dependence on heroin, the U.S. government has developed a rather in-depth dependence on these lobbyist/experts in forming policy, fashioning legislation and creating administrative rules to operate the entire incentivizing/ regulatory schema of the U.S. government.

Until now. This fall, the Obama administration, the White House ethics counsel, Norm Eisen, slipped a new rule out into the ether, curtailing the ability of registered lobbyists to continue to serve on such federal advisory panels, paralleling other new rules limiting the ability of lobbyists to work in the Obama administration or to negotiate contracts involving the stimulus package. The November 26^th Washington Post: “Under the policy, which is being phased in over the coming months, none of the more than 13,000 lobbyists in Washington would be able to hold seats on the committees, which advise agencies on trade rules, troop levels, environmental regulations, consumer protections and thousands of other government policies… According to the most recent estimates from the General Services Administration, 52 government agencies use 915 advisory committees organized under the law, with a total membership of more than 60,000. Other estimates put the figure at about 1,000 panels. Federal officials say they do not know how many panel members are lobbyists.”

Needless to say, the lobbyists, good at arguing their causes in the first place, are crying foul and telling the government that it is effectively depriving itself of the best experts in the relevant fields. One such reaction; “‘It's taken me years to learn what the General Agreement on Tariffs and Trade is,’ said Robert Vastine, a lobbyist for the Coalition of Service Industries who also serves as chairman of a trade advisory board. ‘It's a whole different and specialized world. It is not easily obtained knowledge, and they are crippling themselves terribly by ruling out all registered lobbyists.’” The Post.

The other side? “‘If the result of this new approach is that business owners join the conversation in D.C. about issues affecting them, that's fine,’ [White House ethics counsel Norm] Eisen said in an interview. ‘It's healthy to move away from the professional advocates for the special interests and let some new voices be heard.’” Or this response: “‘You may lose a lot of expertise, but these people are also paid to have a point of view; they have an agenda,’ said Mary Boyle, a vice president at Common Cause. ‘We support what the administration is doing to get deep-seated special interests out of the business of running our government, so this seems like a step in the right direction.’” The Post. What’s your opinion? Guess mine!

I’m Peter Dekom, and I approve this message.