Friday, January 23, 2009

Will tough Obama ethics rules trip up IP Czar candidates?

Will the Obama Administration's tough new ethics rules present an obstacle to the nomination of one of the entertainment-industry lobbyists reportedly under consideration to be the first White House IP Czar? Shourin Sen of the excellent Exclusive Rights blog thinks so. Writes Sen:

President Obama issued an executive order yesterday outlining his administration’s ethics policy. It’s quite a bit more stringent than what he campaigned on during the election season. To compare, this is what Obama listed on his website during the primary and general:

  • No political appointees in an Obama-Biden administration will be permitted to work on regulations or contracts directly and substantially related to their prior employer for two years.

And this is the relevant provision from the new executive order:

  • “All [a]ppointees [e]ntering Government . . . will not for a period of 2 years from the date of [their] appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.

The simple flipping of “work on regulations or contracts” to “including regulations and contracts” makes all the difference in regards to the IP-Czar. Since the position involves interdepartmental coordination of IP issues and reporting to congress, and not regulations and contracts, it’s covered under the new ethics policy, whereas is wasn’t under the old. I’ve already made my thoughts on this topic known, but it’s somewhat funny that the executive order eliminates half of the candidates Senator Leahy leaked for the position.

I'm not as sure as Sen that the new rules will present much of an obstacle. The rules bar work on "any particular matter involving specific parties." So that would not seem to apply to general policy issues -- only to specific issues involving identifiable parties. Thus, an IP Czar who previously lobbied for Entertainment Company X, urging the USTR to adopt a tougher trade stance with China on IP issues, would be permitted as Czar to participate in discussions on the US negotiating stance on IP rights with China. He just couldn't urge (for 2 years) action on a specific matter involving Company X. At least that's how I read the rules.

And, after all, if those pesky ethics rules get in the way, he can always just waive them "in the public interest."

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