Despite Biden’s Efforts on Ethics, Some Observers Say More Safeguards Are Needed

During his first year in office, President Biden has successfully implemented some ethics-related policies, but outside observers think that is not enough to safeguard against future abuses of power. 

In October 2019, then-candidate Biden released a plan on how he would “restore ethics in government” if elected, which came amid the first impeachment inquiry into President Trump’s handling of funds to Ukraine. That was just one instance that experts and Democratic lawmakers pointed to when arguing the Trump administration did not adhere to government ethics, accountability, oversight and transparency.

“[President Biden] instituted an ethics pledge, which was consistent with what he put in his campaign promises,” said Virginia Canter, chief ethics counsel for the group Citizens for Responsibility and Ethics in Washington. 

“The handling and clearing [of] nominees and appointees for conflicts of interest at the highest level, I think they’ve done very well,” as documented by CREW, Canter said, while also acknowledging there were not the same high-profile alleged conflicts of interest as seen under the Trump administration, such as with the Commerce and Education department secretaries and Trump himself.  “But that’s not enough to guard against future abuses by future administrations. We need to strengthen our institutions and the only way to really do that is through legislation and it’s got to be also expanded to the legislative and judicial branches.” 

Canter noted that much of what Biden indicated he’d be interested in is now included in different bills, such as the Protecting Our Democracy Act passed by the House on Dec. 9. Provisions of the bill, such as on inspectors general independence and protecting whistleblowers, would “tighten up some of the problems that occurred during the Trump administration.” 

Ongoing Legislative Efforts Aim to Tighten Ethics and Accountability Policies

The office of Rep. Adam Schiff, D-Calif., who is leading efforts to enact the bill, in the House, said the act is the “ third pillar of the 117th Congress’ efforts to protect, support, and restore the people’s faith in America’s democratic systems – complementing both H.R. 1, the For the People Act, and H.R. 4, the John Lewis Voting Rights Advancement Act.” 

The bill also has several provisions for bolstering the Hatch Act, which limits the partisan political activity of government employees. 

Violations of the Hatch Act were “a significant problem in the last administration,” so penalties for violating the act, “need to be strengthened,” Canter said. Additionally, “we need to make more institutional reforms to give [the Office of Special Counsel]” more authority, referring to a report OSC released in November saying at least 13 senior Trump administration officials violated the Hatch Act in the run-up to the 2020 presidential election, particularly surrounding the Republican convention as well as its seven enforcement challenges, such as that it can’t enforce the subpoenas it issues. 

“There is a criminal provision of the Hatch Act that we haven’t seen [the Justice Department]” use,” Canter explained. Her organization sent a complaint to top Justice officials after that report came out calling for a criminal investigation into Trump, former ​acting ​Homeland Security Secretary Chad Wolf; and former Secretary of State Mike Pompeo. 

In a related manner, on Wednesday, Sens. Elizabeth Warren, D-Mass., Jeff Merkley, D-Ore., and Ed Markey, D-Mass., introduced a bill that would strengthen the Hatch Act as well as create an inspector general position for the Office of Special Counsel, among other things. Reps. Bill Pascrell, Jr., D-N.J., and Mike Quigley, D-Ill., first introduced the legislation in the House.

One Expert says Biden’s Changes are Good but not Good Enough

Dylan Hedtler-Gaudette, government affairs manager at the Project on Government Oversight, said the Biden administration “has done a fairly good job” with its compliance plan, meaning “complying with the existing matrix of ethics rules and laws that are on the books and have been on the books and were on the books prior to the last administration.”

This is good, but not good enough to prevent future abuses, he said. Hedtler-Gaudette thinks the administration needs to work more with Congress in order to codify ethics reforms and use more political capital to do so. He said the “statement of administrative policy” the White House released in December on the Protect Our Democracy Act was “weak.” 

Specific reforms Hedtler-Gaudette would like to see are the criminal conflicts of interest statute applied to the president and vice president, provisions of the ethics pledge (which he previously said was “the strongest ethics executive order ever issued”) codified and more done to tamp down the revolving door between industry and government.  

Also, “where is the Commission on Federal Ethics, or even a proposal for it?” Hedtler-Gaudette asked, referencing  the campaign promise Biden made to propose and pass legislation creating an agency to oversee and enforce laws on anti-corruption and ethics. He also raised concerns about “how many top Pentagon officials [Biden] appointed came straight from the defense industry or consultancies with deep foreign entanglements (think West Exec).” 

West Exec Advisors, founded in 2017, was the “secretive consulting firm” that looked like Biden’s “government-in-waiting,” Politico reported in November 2020. 

“We’re in kind of a post-Watergate era right now in some ways and I think that’s exactly the time you want to do something like a reform of government ethics,” Hedtler-Gaudette said. In the wake of the Watergate scandal, the 1978 Inspector General Act, establishing the first 12 IG positions at agencies, and the Ethics in Government Act, were enacted, among other good government reforms. 

 Government Observers Continue Making Recommendations for Reform 

Open the Government, a nonpartisan coalition that works to strengthen democracy and increase government accountability, released a report last month, building on a previous one, that has recommendations on improving government accountability and transparency. For ethics specifically, it recommends: establishing an inspector general within the Office of Government Ethics to oversee the White House; appointing a “public facing ethics official” to improve public communications on ethics-related issues; and Congress codifying Biden’s ethics pledge for appointees. CREW and POGO were among the organizations that signed on to the recommendations. 

Open the Government's previous report, released in November 2020, gave 46 recommendations for the administration and Congress, of which five have been implemented and two have been partially implemented, according to a progress report. 

The White House did not respond to requests for comment. However, in a fact-sheet released on Dec. 8, the White House said, “since day one, the administration has worked to earn and keep the trust of Americans by cracking down on corruption and promoting an accountable and transparent government that works for the people, from  requiring all appointees to take a stringent ethics pledge, to releasing the President’s and Vice-President’s taxes, to issuing policies to restore DOJ’s independence.”

It also said the Biden administration “will continue working with Congress to restore democratic guardrails to prevent future abuses of presidential power and curtail corruption, with legislation that is consistent with our constitutional principles and that appropriately addresses the balance of powers between the three branches of our federal government.” 

More recently, Biden’s nominee to lead the Food and Drug Administration made “major ethics concessions” to Sen. Warren to secure his confirmation, Politico reported on Monday. The Biden administration has been without a permanent FDA head, which has been a subject of controversy and concern during the ongoing pandemic response.