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Draining the Swamp? Start With the Crocodiles.

Nate Sibley

Donald Trump says he wants to “drain the swamp.” How should those fighting kleptocracy react?

The president-elect deployed the phrase first popularized by Ronald Reagan at a Wisconsin rally in mid-October. By the end of the campaign, it had become one of his most powerful slogans and was being echoed by voters across the country.

Anyone who has sweltered through a humid DC summer knows that the nation’s capital is quite literally built on a swamp. For Trump voters, this was a brilliant metaphor for a system they are convinced is mired in dirty money, kickbacks, and elite abuse of power.

As Election Day approached, the Republican candidate repeatedly restated his promise to stamp lobbyists and vested interests out of American public life. For millions of Americans, this turned a vote for Trump into a vote against corruption.

Whatever your view of Trump’s campaign, “draining the swamp” is a compelling slogan that should be used to hold the new administration to account. Unethical conduct in DC is an urgent concern–and one which should unite both parties.

Crocodiles in the Swamp

The ease with which hostile foreign countries, organizations, and individuals can employ lobbyists to circumvent diplomatic channels and gain access to policymakers is now a growing threat to national security.

Kleptocratic regimes like Russia and China, criminal enterprises masquerading as legitimate businesses, and any oligarch worth his stolen salt all retain representation on K Street, sometimes at eye-watering expense. The Kremlin is currently hiring, with a budget of $30-50 million per year. Why are they prepared to pay so much?

Because loopholes in U.S. lobbying regulations all but guarantee a good return on investment. As Ben Judah writes in The Kleptocracy Curse: Rethinking Containment, Western institutions like the U.S. Congress are “vulnerable to kleptocratic advances” because they are “not firewalled for globalization.”

What is Trump’s Plan?

Donald Trump will soon be making decisions in the Oval Office, which means we need to look seriously at what he has actually said about this issue. After the Wisconsin rally, his campaign released a five-point Ethics Reform Plan.

First: I am going to re-institute a 5-year ban on all executive branch officials lobbying the government for 5 years after they leave government service. I am going to ask Congress to pass this ban into law so that it cannot be lifted by executive order.

Second: I am going to ask Congress to institute its own 5-year ban on lobbying by former members of Congress and their staffs.

Third: I am going to expand the definition of lobbyist so we close all the loopholes that former government officials use by labeling themselves consultants and advisors when we all know they are lobbyists.

Fourth: I am going to issue a lifetime ban against senior executive branch officials lobbying on behalf of a foreign government.

Fifth: I am going to ask Congress to pass a campaign finance reform that prevents registered foreign lobbyists from raising money in American elections.

These are all sound proposals, and their uncharacteristic specificity is encouraging. However, Trump only repeated the second and fourth points in a subsequent plan for his first 100 days in office. And aside from Congressional obstacles and the perennial problem of how to actually define a lobbyist, observers have spotted other possible exceptions and loopholes.

And then there is what’s missing from the president-elect’s Ethics Reform Plan. Because if Trump really wants to drain the swamp, he will need to go further.

FARA Fit For a Swamp

The Ethics Reform Plan might make it harder for the “crocodiles,” but what would it take to kick kleptocratic regimes out of the Beltway swamp altogether?

For starters, some fairly modest changes to the Foreign Agents Registration Act (FARA). This law, which was introduced in 1938 to counter Nazi influence in U.S. politics, requires lobbyists working for foreign governments to register with the Department of Justice. It complements the Lobbying Disclosure Act (LDA), which governs lobbying on behalf of domestic and foreign commercial interests.

Unfortunately, insufficient resources and loopholes in FARA itself mean that the DoJ is often unable to investigate or prosecute suspected breaches. Firstly, ambiguities in the text often make it unclear to lobbyists whether they have to file under FARA or LDA. If they decide that they are only required to file under LDA, there is no requirement to inform the DoJ that they are filing at all. This lack of effective oversight means that borderline cases are simply never brought to the DoJ’s attention. To put it delicately, a system that depends on self-policing by lobbyists has plenty of room for improvement.

Even if the DoJ does find a possible breach, the criminal liability imposed by FARA means that barriers to successful prosecution are often impossibly high. So high, in fact, that there have been only seven FARA cases since 1966.

As it stands, FARA provides lobbyists with the veneer of legal conformity while failing to shield American democracy. If Trump is serious about “draining the swamp”—and indeed, allaying concerns about his own foreign connections—he should begin with a bipartisan initiative to ensure that hostile regimes can no longer pay American citizens to undermine their own institutions.

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