On his first full day in office, Barack Obama issued an executive order designed to restrain lobbyists. The new rule says that if you were a registered lobbyist in the past two years, you can't work for the administration on any issue you touched. After you leave government, you can't lobby the administration at all. The only way around this ban is a special waiver from the White House budget director.
The instinct behind this decree is a sound one. The mercenary culture of Washington flourished under Republican rule, with the Jack Abramoff scandal and Tom DeLay's K Street Project, which treated lobbying contracts as spoils to be doled out by the party in power. Obama knows it's going to take some strong garlic to ward off the vampires on his own side of the aisle. Unfortunately, his intended reform is driving stakes through the hearts of innocent bystanders. The problem isn't that the rules are too strict. It's that they miss the crucial distinction between lobbying that's good for democracy and lobbying that perverts it.
An example of the bad kind of lobbying came to light last week when The New York Times revealed that Sallie Mae had hired Tony Podesta and Jamie Gorelick, two Democratic fixers, to save it from extinction. Sallie Mae insures college loans made by private banks. Like Fannie and Freddie, her inbred cousins in the housing business, Sallie embodies the principle of privatizing gains and socializing losses. Obama has sensibly proposed eliminating it. According to the Congressional Budget Office, having the Feds make loans directly would save $94 billion over the next decade, providing funds for millions more students to go to college.
To a useless and wasteful entity fighting for survival, Podesta has an understandable appeal. He is one of Washington's top Democratic fundraisers. His wife, Heather Podesta, is a well-connected lobbyist in her own right. They like to entertain politicians at their home filled with ghastly contemporary art and recently made news by donating Shepard Fairey's iconic Obama poster to the National Portrait Gallery. But Tony Podesta's biggest advantage is being the brother and former partner of John Podesta, who was Bill Clinton's last chief of staff and headed Obama's presidential transition. In recent years, John, who has focused on advancing liberal causes by founding a think tank called the Center for American Progress, is kinetic and wiry. Tony, who partnered with the disgraced Republican Robert Livingston to represent tobacco, defense and oil interests (as well as NEWSWEEK's parent, The Washington Post Company) has set aside his views to concentrate on making as much money as possible.
As an illustration of the other kind of lobbying, the good kind, consider Tom Malinowski, who worked as a foreignpolicy speechwriter during the Clinton administration. Since leaving government, Malinowski—who declined to comment for this story—has been Washington advocacy director for Human Rights Watch, where he has spoken up for political prisoners abroad and against the Bush administration's policies on torture and detention. After serving on an advisory committee for the Obama campaign, Malinowski reportedly became a top candidate for a job dealing with human rights and international law at the State Department. But because he was registered as a lobbyist, he can't be hired without a waiver, which he hasn't been able to get.
There is every imaginable ethical difference between Podesta's work and Malinowski's. Podesta represents the human-rights-abusing government of Egypt; Malinowski has advocated for victims of Egyptian oppression. Podesta greases the skids for his clients with fat campaign contributions; Malinowski tries to convince legislators without donating money. Podesta's firm grossed $19 million last year and has been signing up new clients at a ferocious clip since the Democratic victory in November; Malinowski earns a nonprofit-sector salary. Podesta undermines democratic principles by selling his influence. Malinowski enhances democracy through legitimate advocacy.
As a matter of law, however, it is probably impossible to distinguish between them. Both are exercising the same First Amendment right to petition the government. Both have a legal obligation to register as lobbyists. The rule that bars the one Obama doesn't want prevents him from hiring the one he does want. In addition to denying the president the service of any number of desirable nominees, the new rules are undermining the disclosure laws they're intended to reinforce, since all kinds of lobbyists are now desperate to avoid registering. The exceptions Obama has made to this bad policy only make the unfairness worse.
The president could deal with Washington sleaze much more effectively through explanation and symbolism. Instead of tying his own hand with counter-productive rules, he could instruct his staff to avoid dealing with hired-gun lobbyists, putting interest groups on notice not to hire them. He could explain the difference between influence peddlers and committed advocates, reminding the country that he was once one of the latter, when he lobbied for public-housing residents in Chicago. Best of all, he could say people like Tom Malinowski are welcome in his White House and that people like Tony Podesta aren't.