An Update on Waivers

Norm Eisen
September 04, 2009
02:56 PM EDT

We have previously reported six limited waivers that have been granted by the White House pursuant to the President’s Executive Order on Ethics for Executive Branch personnel – the strongest ethics standards in U.S. government history. Three of these waivers involved lobbying-related issues and three did not. We blogged about them here, here, and here.

Several months ago, the public interest community suggested that we also make available in a central place limited waivers granted by other federal agencies besides the White House. Today, we are releasing all ten such agency-granted waivers (none of which involve lobbying). The President’s Executive Order calls for an annual report to be completed in early 2010 that will include all waivers granted pursuant to the Order. We are, however, pleased to make all of the pledge waivers granted to date by this Administration available now--more than four months early.

The ten waivers by agencies can be found here. All involve limited waivers of paragraph 2 of the President’s ethics pledge (none involve Paragraph 3, the lobbying provision). That is, they permit certain Executive Branch appointees to work on particular matters that may involve persons with which the appointees formerly had a professional relationship because there was a compelling public interest in allowing it. In each case, it was determined by an agency ethics officer after careful review that the public interest in permitting the appointee’s participation outweighed any appearance concerns.

We note that decisions to grant the limited waivers have been exceedingly rare. The six White House and ten agency waivers together apply to 16 out of approximately 1890 appointments that have been made: that is less than 1%. And out of the 1890 appointments, only 3 times has the Administration waived the ethics pledge lobbying provision – that is less than one tenth of one percent.

As we have pointed out before, and as experts agree, even the toughest rules require some flexibility. Norm Ornstein of the American Enterprise Institute said the following: "It is important and necessary to have the highest ethical standards for service in an administration-- and also appropriate and necessary to strike a balance by having a limited number of waivers to make reasonable accommodations to attract the best possible talent to serve in key government posts. The Obama White House has done just that, as this additional disclosure of ten agency waivers makes clear." Thomas Mann of the Brookings Institution said: "The steps taken today by the White House to shed additional light on the use of the waiver provision of the President’s Executive Order on Ethics should reassure critics of his policy and its implementation. By disclosing the ten waivers granted by other federal agencies and documenting that it has waived the ethics pledge lobbying provision only three times, the Administration has demonstrated that its new ethics standards are not being undermined by backdoor exceptions."

Norm Eisen is special counsel to the president for ethics and government reform