Critics See Loopholes in Biden Transition Ethics Rules for Agency Reviewers

Most FCC review team members have deep ties to former Chairman Tom Wheeler, including the group's lead, House Judiciary Committee senior counsel John Williams, a former commission Office of General Counsel senior counselor and senior agency official on privacy (see 2011160048). The only landing team member without Wheeler ties or any past telecom policymaking experience is Biden campaign Florida Program Director Christiana Ho, who was added recently (see 2012090069). The Biden team didn’t comment on her addition to the FCC team.

Also on the team: former Commissioner Mignon Clyburn; DLA Piper’s Smitty Smith, a former FCC and NTIA staffer; and Paul de Sa, former FCC official and analyst. Biden’s FTC team members are former commission Deputy General Counsel Heather Hippsley, Brookings Institution’s Bill Baer and Georgetown Law Center on Privacy & Technology Associate Director Laura Moy (see 2011100061). Wiley’s Anna Gomez, a former NTIA administrator, is handling that agency’s transition as part of the Department of Commerce review team. All of the review teams' members have taken leaves of absence from work outside the transition, per the Biden team’s ethics rules.

The review team members’ job is “largely to find out what’s happened at these agencies over the last four years” under Donald Trump's presidency, said Max Moran, research assistant at the Center for Economic Policy Research’s Revolving Door Project (RDP). “You don’t want to read too much into” who the teams’ members are because “the real policy changes are going to come from” Biden’s eventual appointees and people in lower-level jobs. The teams “might make policy recommendations" -- not mandates -- to the Biden transition, Moran said.

It’s “hard not to read too much” into who's on the review teams because their past and future affiliations could “color their perception of what is happening” at federal agencies in the waning days of the Trump administration, Moran said. Clyburn has been a consultant for T-Mobile, Google, Microsoft and others. She joined RingCentral’s board in November (see 2011050063). Smith’s DLA Piper clients included T-Mobile. Clyburn directed us to a Biden spokesperson for comment. None of the teams’ other members commented.

'Insufficient'

The ethics rules bar anyone who worked as a registered lobbyist or foreign agent in the past year from participating in the switchover, unless Biden transition General Counsel Jessica Hertz approves. The rules likewise prohibit working on specific matters involving the designated agency that they lobbied on in the previous year or plan to advocate for in the coming year.

“We have granted a limited number of authorizations, including for individuals working on behalf of labor and those with expertise in pandemic response who recently advocated on behalf of their public-interest, nonprofit employers,” a Biden transition spokesperson emailed.

The ethics plan “follows many good government practices that limit conflicts of interest,” said Project on Government Oversight General Counsel Scott Amey. “The real question comes down to review team members who are interested in serving the public rather than personal or private financial interests.” It's “one thing to say, ‘Be impartial, safeguard information, and get approval if you are a lobbyist or lobbied,’” he said. “It's another thing to actually police the review teams and ensure that they are following the rules. We will be stuck in the same muddy swamp if the review teams are filled with members pushing agendas, shaping future federal policies and making connections that they hope to cash in on down the road.”

The rules are generally “pretty insufficient,” Moran said. They’re “stronger” than the Trump administration had, but “that is the lowest possible bar” given the outgoing White House’s widespread ethics issues. “We don’t put much stock” in the Biden team’s leave of absence rule because it’s a “very presentational way of trying to handle very real conflicts of interest,” Moran said. Members will still “have a pretty big stake in making sure” their clients and employers “don’t get broken up or face new regulations or become subject to lawsuits” by the federal government.

RDP criticized Hertz’s own transition role because she was previously Facebook’s associate general counsel-regulatory. Hertz is therefore “deeply invested in maintaining as little accountability as possible for Facebook and others in 'corporate America,'” Moran said.

Critics noted the presence of tech sector officials on other agencies’ review teams, including from Amazon Web Services, Apple, Lyft and Uber. Hertz, who was Biden’s deputy counsel while he was vice president, “is exactly the kind of thoughtful and principled decision maker who can ensure” Biden’s “high standards are upheld during the transition,” his team emailed.

Demand Progress and advocates singled out ex-Google CEO Eric Schmidt as one of the “most concerning insiders trying to get into the Biden administration.” RDP, Justice Democrats and several others are helping lead the effort. They claimed Schmidt will leverage “influence in the public sector to enrich himself and the companies he is invested in.”

The incoming administration should avoid hiring “high level employees” of Big Tech and big telecom companies, emailed Fight for the Future Deputy Director Evan Greer. Schmidt is reportedly in consideration for a position on Biden’s tech industry task force.

Blurry Lines

A transition team staffed with experienced people who have a history of dealing with the FCC is inevitably going to include members with ties to entities that have or will have business before the commission, broadcast attorneys noted. “I’d rather have people who know something about the industry,” said Lerman Senter attorney Sally Buckman.

“No party is immune to this sort of thing,” said Fletcher Heald’s Francisco Montero. “This is not something that is new to the FCC from either party, and not something confined to the FCC.” Montero said he would have liked to see more transition team members who had a history of involvement with broadcasting but wasn’t surprised that didn't happen.

There have been too many revolving doors within government and at the FCC in particular, emailed Common Cause Special Adviser-Media and Democracy Reform Michael Copps, a former commissioner: “But there will be times, hopefully very infrequently, when too bright an exclusionary line could work to deprive the agency of expertise it needs. That would be the exception and not the rule. Special interest influence at the FCC is in need of a severe hair-cut."

Public Citizen continues to raise concerns about reining in revolving doors with all major corporate players. “We’ve been pretty encouraged by the choices we’ve seen so far,” said Executive Vice President Lisa Gilbert: The organization is hopeful the next administration will actively deal with antitrust and privacy.

Public Citizen urged the Biden transition team Thursday to “steer clear of conflicts of interest” with Big Tech companies as it's making future appointments, including “in areas of the government where, historically, conflicts with Big Tech corporations would not be expected.” Biden can “clearly distinguish his tenure in office” from Trump’s at the start by issuing “a strong executive order” that closes “the reverse revolving door to government positions from those who have worked in industry where there may be conflicts of interest,” said PC Big Tech Accountability Advocate Jane Chung in a memo.

Free Press isn’t opposed to “people with industry backgrounds but did urge” the incoming administration to “make sure their picks were as diverse as possible,” said Senior Policy Counsel Gaurav Laroia. Free Press joined Public Knowledge, Access Now, the Center for Democracy & Technology and several others in a November letter urging the incoming administration to hire individuals with a “variety of technology, civil rights, and human rights expertise.”