Post-Government Employment Restrictions and Foreign Agent Registration:
Additional Action Needed to Enhance Implementation of Requirements
GAO-08-855: Published: Jul 30, 2008. Publicly Released: Jul 30, 2008.
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Congress has enacted post-government employment restrictions and foreign agent registration requirements with the objectives of protecting the U.S. government against the improper use of government information by former federal employees and ensuring the American people know the identity of persons trying to influence U.S. government policy in the United States on behalf of foreign entities. This report discusses (1) the extent to which selected agencies have information on the post-government employment activities of former senior federal employees who represent foreign principals and (2) the challenges the agencies face in enforcing these requirements. We reviewed federal ethics guidance, laws, and other documents, and interviewed officials at the Departments of State and the Treasury, the U.S. Agency for International Development and the U.S. Trade Representative.
Executive branch agencies are not required to and do not collect and maintain information on the post-government employment activities of former senior federal employees who represent foreign principals. Post-government employment restrictions prohibit former senior federal employees from engaging in certain activities, such as lobbying or other advocacy communications, for a specified period of time after leaving federal service. The agencies we reviewed undertake a variety of activities, including providing training and advice, to promote compliance with the restrictions. The Foreign Agents Registration Act (FARA) requires that all persons in the United States working as agents of a foreign government, foreign political party, or other foreign principal disclose to the Department of Justice (Justice) such connections as well as the activities they perform on behalf of such principals in the United States. Justice provides information on FARA registration requirements to the public. It also collects information on all entities that register with Justice as foreign agents. However, the registration information does not identify individuals who are former senior federal employees. Nevertheless, of the nearly 8,000 senior federal employees who left government service between calendar years 2000 and 2007, we identified 29 who registered as foreign agents and engaged in activities that ranged from promoting tourism to lobbying on behalf of foreign principals such as the governments of Argentina and Saudi Arabia. This number may not include all former senior federal employees who represent foreign entities because individuals engaged in exempted activities under FARA, such as diplomatic, commercial, and legal activities, and those registered under the Lobbying Disclosure Act, are not required to register. The agencies we reviewed face information, legal, and resource challenges in promoting compliance with the post-government employment restrictions and monitoring FARA. One challenge is inconsistent documentation of advice provided to senior federal employees on post-government employment restrictions. While agencies document information such as ethics training courses given, subject matters covered, and counseling services offered, they do not consistently keep records of what advice was given to specific employees. The Office of Government Ethics (OGE) has encouraged the executive branch agencies to document such advice. For example, a 2005 OGE memorandum to all designated agency ethics officials discussed the advantages of documenting advice and offered suggestions on when to document ethics advice. Documentation of advice is useful for proving intent, which can help to prosecute violations of the restrictions. In addition, a lack of clear legal authority and a lack of resources have been cited by Justice as barriers to increased monitoring of FARA compliance. For example, Justice officials said the department does not have clear legal authority to inspect the records of persons that it believes should be registered and that the department does not have the authority to require advance written notification from persons claiming to be exempt from FARA requirements. Without advance written notification, Justice has no way of knowing whether persons exempting themselves should in fact be registered.
Matter for Congressional Consideration
Status: Closed - Not Implemented
Comments: Congress did not take any action in response to this matter.
Matter: To enhance Justice's ability to ensure that the American people know the identity of persons trying to influence U.S. government policy in the United States on behalf of foreign entities, Congress may wish to consider (1) granting the Department of Justice civil investigative demand authority to inspect records of persons Justice believes should be registered as foreign agents and (2) requiring persons claiming certain exemptions to provide advance written notification to Justice before engaging in the exempt activities.
Recommendation for Executive Action
Status: Closed - Implemented
Comments: The Office of Government Ethics (OGE) has implemented GAO's recommendation that OGE strongly encourage agency ethics officials to implement the suggested actions described in OGE memoranda to document ethics advice and also encourage the ethics officials to work closely with their Inspector Generals (IG) to ensure that this information is shared when needed. In response to the recommendations, OGE sent a memo to all designated agency ethics officials on August 2008, encouraging them to comply with OGE guidance that they document the advice they give to employees and former employers. The OGE memo further encouraged the ethics officers to provide their IGs information when needed about such advice. In addition, OGE continues to emphasize the importance of documenting advice in the training it provides to designated agency ethics officers. OGE also initiated efforts to increase agency IG participation in its 2008 national ethics conference and plans to continue these efforts for its 2010 conference.
Recommendation: To enhance executive branch enforcement of the post-government employment restrictions, the Director of the Office of Government Ethics should strongly encourage agency ethics officials to implement the suggested actions described in the November 2005 OGE memorandum and its subsequent 2008 reminder to designated agency officials on documenting ethics advice, and also encourage agency ethics officials to work closely with their Inspectors General to ensure that this information is shared when needed.
Agency Affected: Office of Government Ethics