Joe Biden’s transition team named Jessica Hertz, until recently a Facebook executive focused on government regulations, as its general counsel on Wednesday and charged her with navigating conflicts of interest and other ethical issues for the Biden administration-in-waiting — a move that drew immediate fire from the left.
“The ultimate arbiter for ethics for the Biden transition was a senior regulatory official for Facebook up until a few months ago, at a time when progressives and the Biden campaign are fighting against the right-wing agenda of Facebook,” said Jeff Hauser, the director of the liberal Revolving Door Project, which focuses on executive branch personnel and transitions. “Please make it clear that I think the Trump administration is insanely corrupt and I’m not equating the two, but this is deeply disappointing.”
Hertz will oversee a team responsible for “enforcement, oversight, and compliance” of the ethics plan that Biden's team also released Wednesday. In it, they promise to reestablish many of the rules President Barack Obama instituted to limit the role of former lobbyists in the 2008 transition — which Biden was also involved in.
“Biden-Harris ethics rules should go as far or further than the Obama-Biden administration in banning corporate lobbyists, officers, or agents with conflicting loyalties from serving in the next Administration,” said Caitlin Lang, a spokesperson from the Progressive Change Campaign Committee, which is closely aligned with Sen. Elizabeth Warren. “These ethics rules unfortunately are not as strong as the Obama administration's and do not come close to rebuilding trust in government or meeting this moment."
The early clash is likely a preview of the coming fight between the left and the center over administration personnel should Biden win in November. The outrage over Hertz's Facebook ties is also yet another sign of how controversial the social media company has become among liberals since President Donald Trump's surprise 2016 victory.
Tensions between the Biden campaign and Facebook continue to escalate during the final stretch of the campaign. “Millions of people are voting. Meanwhile, your platform is the nation’s foremost propagator of disinformation about the voting process,” Biden campaign manager Jen O’Malley Dillon wrote to Mark Zuckerberg earlier this week. “Rather than seeing progress, we have seen regression.”
Biden, himself, told The New York Times editorial board last year that, “I’ve never been a fan of Facebook, as you probably know. I’ve never been a big Zuckerberg fan. I think he’s a real problem.”
During just over two years at Facebook, Hertz served as a director and associate general counsel, where she handled “a wide range of government inquiries and regulatory investigations,” according to her biography for Columbia Law School, where she has been a lecturer. Before that, she was principal deputy counsel to Biden during his vice presidency and counsel to Deputy Attorney General James Cole.
If Biden wins in November, his transition team has told Democrats that they expect it to grow to at least 350 people by Inauguration Day. That team is tasked with helping vet and select the more than 4,000 political appointees that a new administration must hire.
Biden's transition is the first that has been required to publicly release their ethics plan by Oct. 1, under a new law passed earlier this year.
Among other things, Biden's rules bar those who’ve worked as registered lobbyists or foreign agents in the past year from working on the transition unless Hertz signs off. They also forbid transition staffers from working on any “specific Transition matter” that they’ve lobbied on in the past year or plan to lobby on in the coming year without Hertz’s approval.
Biden's transition team has already made a few exceptions to the rules.
"We have granted a handful of authorizations, including for individuals with expertise in pandemic response who recently advocated on behalf of their public interest, non-profit employers," a transition official said.
The transition team did not answer questions about how the review process works and whether they will disclose the staffers who receive exceptions. "The assumption is we should all just defer to the ethics of somebody’s who’s been defending Facebook recently," said Hauser.
Obama’s rules required the transition’s executive director to sign off on hiring of anyone who had worked as a lobbyist in the past year. In 2008, Obama tasked an aide from his Senate office, Chris Lu, to make such decisions, rather than someone from the business community.
Trump, in contrast, initially allowed registered lobbyists to serve on his transition team; Vice President Mike Pence forced them to deregister or leave the transition when he took over the transition after Trump’s upset victory.
Progressives, however, had hoped Biden would broaden restrictions on lobbyists to apply to those who work in Washington’s influence industry but aren’t registered to lobby, making it harder for them to serve on the transition or in a Biden administration.
Some of those people are currently heading up policy working groups the Biden campaign has charged with coming up with ideas for a future administration. They include Mignon Clyburn, who worked as a paid consultant to T-Mobile last year as it pursued a merger with Sprint and is now a co-chair of Biden’s innovation policy working group; and Chris Jennings, a consultant who’s advised companies such as CVS Health and General Motors and is now a co-chair of Biden’s health care policy working group, according to people familiar with the groups.
The ethics plan has been a highly anticipated read inside the Beltway, particularly among progressive activists trying to push a potential Biden administration to the left, as well as the small army of D.C. lobbyists and consultants hoping for a government job should Biden win. People with ties to industry and veterans of past Democratic administrations have argued that an overly strict ethics policy could force Biden to pass over the most qualified people for jobs during a moment of dueling economic and public health crises.
Biden’s rules do include a provision that might irritate K Street: They prohibit transition staffers from promoting “their work for the Transition during their service and for 12 months thereafter in any business or professional marketing materials.” Transition staffers who become lobbyists often talk up their work for the president-elect in their biographies as a way to help drum up businesses. Neither Obama’s nor Trump’s transition teams instituted such a rule.
But some progressives were skeptical the rule had real teeth. Said Hauser: "They can’t market it, themselves, but come on, their work on the transition is going to be known by a potential client."
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