Christopher DeLacy is a Partner at Holland and Knight's Washington, D.C office
The National Defense Authorization Act for Fiscal Year 2018 (NDAA), signed into law on Dec. 12, 2017, imposes new lobbying restrictions on former military officers grade O-7 and higher and civilians of the same grade equivalents (Executive Schedule Level V and higher) at the Department of Defense (DoD). These new restrictions apply in addition to existing post-employment restrictions and Executive Order 13770.
Former military officers in grades O-7 to O-8 and their DoD civilian equivalents (Executive Schedule V and IV) are subject to a one year post-employment cooling off period while grades O-9 and higher and their DoD civilian equivalents (Executive Schedule III and higher) are subject to a two year cooling off period. During these times, covered individuals may not engage in lobbying activities, as defined by the Lobbying Disclosure Act ( LDA), which includes lobbying contacts and efforts in support of those contacts, in connection with executive branch officials at the DOD and elsewhere in the executive branch if the lobbying activities are "with respect to" the DoD. The restrictions do not apply to lobbying activities involving the legislative branch.
Interestingly, these new restrictions key off of the LDA and not the federal conflict of interest statute (2 U.S.C. §207) which traditionally imposes post-employment restrictions for federal officials. As drafted, these new NDAA restrictions apply to certain types of behind the scenes advice that is included in the definition of "lobbying activities" under the LDA and that may not involve making a communication or appearance before the government on behalf of a client. With one notable exception, the federal conflict of interest statute restricts communications or appearances before the government and does not restrict behind the scenes advice. Accordingly, any organization contemplating hiring DoD personnel covered by the new law should conduct a thorough review of these restrictions.
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