Warren raises concerns over trade group’s messaging on defense budget increase

Last updated on October 7, 2022

Massachusetts Democratic Sen. Elizabeth Warren is raising alarms over efforts by a top defense trade group advocating for more defense spending, saying two members may have violated lobbying ethics rules over the role they played in conveying the group’s message.

At issue is a white paper released by the National Defense Industrial Association on Sept. 13 that called for increasing the Defense Department’s budget by $42 billion. The white paper also made the case for modifying contract prices in response to inflation, and amending future contracts to include automatic inflation adjustments.

David Norquist, NDIA president and CEO, and John Whitley, a former assistant secretary of the Army, co-authored the white paper.

In a letter Warren sent to NDIA on Wednesday and obtained by POLITICO, the senator noted that Norquist and Whitley — both former Pentagon officials in the Trump administration — are subject to a two-year ban on influencing the executive branch, sometimes referred to as a “cooling-off period.” The ban prohibits influencing officials “on behalf of another on matters that were pending under your official responsibility during your last year of Federal service,” which in Norquist’s and Whitley’s case was the defense budget.

Norquist served as deputy Defense secretary until Feb. 9, 2021, and cannot influence executive branch officials until Feb. 9, 2023. The same ethics rules are in effect for Whitley until July 18, 2023.

Warren argues that Norquist and Whitley’s involvement in the white paper violated those rules. “It is difficult to believe that you did not know this white paper would be used to support lobbying contacts,” she wrote.

Warren also noted that NDIA members met with Pentagon officials to preview the white paper on Aug. 26, as reported by Defense News. “If you or Mr. Whitley were among those leaders, you may have violated directly lobbying restrictions,” she wrote.

“NDIA is clearly trading on the white paper authors’ previous DoD service, noting that ‘all served as comptrollers in the Department of Defense, underlining the significance of the study,’” Warren wrote. “This statement alone makes a mockery of the purpose of post-government employment restrictions, which is to ‘prevent former Federal employees or officers exerting undue influence gained from Federal employment and using information gained while working for the Federal Government to unfairly benefit a new employer.’”

In a statement to POLITICO, NDIA said Norquist and Whitley did not attend the August meeting. It also defended their roles in drafting the white paper, which “was developed by a bi-partisan team of experienced former Defense officials to inform Congress of the potential destructive impact inflation is having on our national security,” NDIA spokesperson Scott Rekdal said.

Engagement with members of Congress on public policy debates that affect the defense industry is part of NDIA’s mission, he added.

“Both Mr. Norquist and Mr. Whitley are in full compliance with the letter and intent of their post-government restrictions,” Rekdal said in the statement.

Whether the two of them actually took part in influencing the executive branch is a gray area, one expert said. If Norquist drafted talking points or advised colleagues on how to interact with Pentagon officials about specific matters, then that may be problematic, said Joshua Ian Rosenstein, government ethics and lobbying expert at Sandler Reiff Lamb Rosenstein and Birkenstock.

“In my view, if Mr. Norquist limited himself to talking with his colleagues on general processes — how the DoD procurement process works as a technical matter, or the history of DoD grant-making, or similar things, completely divorced from particular agency matters — then it’s not necessarily going to be a violation,” he said.

In her letter, Warren requested NDIA respond to a series of questions by Oct. 21. These include why NDIA produced the white paper, whether Norquist or Whitley sought advice from ethics advisers when preparing the document, and what processes are in place to ensure employees do not violate government ethics laws.