Commentary: A Lobbying Law That's Ethically BackwardsDouglas Harbrecht and Amy Borrus
President Clinton likes to introduce Charlene Barshefsky, his acting U.S. Trade Representative, as "our toughest trade negotiator." During her tenure as deputy USTR, Barshefsky won important market-opening concessions for U.S. business. Democrats and Republicans alike applaud her for her performance.
In fact, Barshefsky would be a shoo-in for Senate confirmation to succeed Mickey Kantor, who has replaced the late Ronald H. Brown as Commerce Secretary. Except for one thing: Her appointment may violate the new Lobbying Disclosure Act. Enacted last year, the law bars anyone who has ever "represented, aided, or advised a foreign entity" from the top trade post. Barshefsky worked for the Canadian Embassy during the 1980s. That's why she's "Acting" U.S. Trade Rep.
EASY SOLUTION. This is a conundrum with legs. Bob Dole's top trade adviser, Robert Lighthizer, would be a strong candidate for USTR should Dole win the White House. But under the "foreign agent" ban, which Dole sponsored, Lighthizer could be disqualified for the same reason: He lobbied for Jamaica and for Brazil's Ministry of Industry & Commerce in the 1980s.
Here's an easy solution: Repeal this misguided ethics restriction. Instead, Congress should bolster lobbying curbs where they're really needed--on trade officials after they leave government.
Economist Pat Choate--whose book Agents of Influence exposed the revolving-door game in the 1980s--sees a major flaw in the new ban. "It's not what lobbyists do prior to entering the government," notes Choate. "It's what they do after that counts." That's when they can profit from their official contacts. For officials who try to help ex-clients, stringent disclosure requirements are an effective deterrent.
SECURITY. Joseph Massey, a former Deputy USTR currently teaching at Dartmouth's Tuck School, says that a U.S. trade negotiator actually benefits from having prior experience representing foreign clients. "Why needlessly restrict your talent pool for government service?" Massey asks.
Putting tighter restrictions on work after government service, though, would be highly effective. For years, trade lawyers have traipsed through U.S. government jobs, learning negotiating strategy and then signing on to help foreign interests. "Why are we letting ex-officials sell access to foreign governments now that trade has become a national security issue?" asks Greg Mastel of the Economic Strategy Institute. In Japan and Germany, it's virtually unheard of.
The bottom line: All top trade officials--not just the Trade Rep--should be banned from representing foreign governments after leaving their jobs. But let's not bar good candidates because of their prior posts. That's putting the cart before the horse.