How Lawmakers Skirt the Law to Keep Their Next Jobs Secret

A law that was meant to shine some light on lawmakers’ job negotiations with potential industry and K Street employers has failed.

Members of the media cast a shadow on a wall as they listen to members of the Joint Senate and House Intelligence Committee speak, on Capitol Hill, on June 7, 2012 in Wasington, DC.
National Journal
Billy House
Jan. 21, 2014, 2:43 p.m.

When then-Sen. Jim De­Mint said he would leave Con­gress to head the Her­it­age Found­a­tion 13 months ago, he waited un­til just 24 hours be­fore the an­nounce­ment to file an of­fi­cial no­tice with the Sen­ate that he was ne­go­ti­at­ing for the new job.

But at least De­Mint gave some pub­lic no­tice be­fore ac­cept­ing the post.

On the day Rep. Den­nis Car­doza’s midterm resig­na­tion took ef­fect in 2012, Wash­ing­ton law firm Man­att, Phelps & Phil­lips an­nounced it had already hired him — and the job ne­go­ti­ations were nev­er made pub­lic. Nor were any of­fi­cial dis­clos­ures re­gard­ing job ne­go­ti­ations re­leased pri­or to the an­nounce­ment that Rep. Health Shuler ac­cep­ted a job at Duke En­ergy when his term ex­pired, or when Rep. Mike Ross was hired by the South­w­est Power Pool.

That is not how it was sup­posed to work. A law de­signed to pre­vent con­flicts of in­terest and shed light on law­makers who ne­go­ti­ate for post-Cap­it­ol Hill work while still in of­fice has failed, worn thin by a series of ad­min­is­trat­ive rul­ings and nar­row in­ter­pret­a­tions.

The res­ult is that law­makers them­selves now de­term­ine when a po­ten­tial con­flict ex­ists and when dis­clos­ures should be re­leased pub­licly. Moreover, be­cause the law has yiel­ded al­most none of the pub­lic in­form­a­tion it was de­signed to provide, it re­mains largely un­known whom law­makers ne­go­ti­ate with — and wheth­er their of­fi­cial du­ties present any con­flicts with those em­ploy­ers.

The Hon­est Lead­er­ship and Open Gov­ern­ment Act re­quired law­makers to file pub­lic dis­clos­ures when they ne­go­ti­ate for work and when con­flicts arise. Yet only sev­en dis­clos­ures have been made pub­lic in the House since the law was passed in 2007 — even though more than 200 law­makers dur­ing that time have resigned, were de­feated in a primary, or an­nounced their re­tire­ment. Only six dis­clos­ures have been made pub­lic in the Sen­ate, des­pite 39 law­makers leav­ing between 2008 and 2012.

In this midterm-elec­tion year, many more law­makers will be mak­ing de­cisions about jobs and dis­clos­ure in com­ing months. It is still early, but no pub­lic fil­ings have been made by any of the 16 sit­ting House mem­bers who have an­nounced they are leav­ing Con­gress at the end of 2014.

In ad­di­tion to those 16, three oth­er House mem­bers have already resigned this ses­sion, and all three had out­side jobs wait­ing. But only one of them filed a no­tice of job ne­go­ti­ations be­fore leav­ing. Rep. Jo Ann Emer­son, a Mis­souri Re­pub­lic­an, of­fi­cially resigned on Jan. 22 of last year to be­come CEO and pres­id­ent of the Na­tion­al Rur­al Elec­tric Co­oper­at­ive As­so­ci­ation. Her dis­clos­ure of her job talks is dated Nov. 23, 2012, and re­ports that ne­go­ti­ations for that job com­menced four days earli­er.

The two oth­er law­makers were not re­quired to make their em­ploy­ment ne­go­ti­ations pub­lic be­cause of yet an­oth­er wrinkle in the law that ex­empts those seek­ing new jobs in the pub­lic sec­tor. Former Rep. Jo Bon­ner left Con­gress to take a job in the Uni­versity of Alabama sys­tem, and former Rep. Rod­ney Al­ex­an­der left to ac­cept an ap­point­ment as sec­ret­ary of the Louisi­ana Vet­er­ans Af­fairs De­part­ment.

Eth­ics Is­sues

There is noth­ing il­leg­al or un­eth­ic­al about de­part­ing law­makers look­ing for work while they serve out their terms. But the law was put in place as a trans­par­ency meas­ure after former Rep. Billy Tauz­in caused a stir by leav­ing the House in 2003 to take a $2-mil­lion-a-year job in the phar­ma­ceut­ic­al in­dustry, just months after play­ing a lead role in draft­ing le­gis­la­tion to in­tro­duce a pre­scrip­tion drug be­ne­fit to Medi­care.

But the law’s rules ap­ply dif­fer­ently today than they did when was it was passed. For ex­ample, in the House, the gov­ern­ment pan­el in charge of the fil­ings was changed from the Clerk’s Of­fice to the Eth­ics Com­mit­tee, which is ex­tremely se­lect­ive about what it makes pub­lic. In the Sen­ate, the sec­ret­ary of the Sen­ate, rather than the Eth­ics Com­mit­tee, handles most of these fil­ings, with far dif­fer­ent res­ults. A high­er per­cent­age of law­makers there have filed dis­clos­ures, and those forms were swiftly made pub­lic.

Staffers and law­makers with dir­ect know­ledge of how the House Eth­ics Com­mit­tee over­sees the law say it is be­ing in­ter­preted so nar­rowly by of­fi­cials and law­makers as to render it in­ef­fect­ive.

They say law­makers are es­sen­tially told they must file no­tices only when they have an ac­tu­al job of­fer and com­pens­a­tion is dis­cussed. And those no­tices do not have to be made pub­lic — they can be kept private by the Eth­ics Com­mit­tee — un­less law­makers them­selves de­term­ine there is a spe­cif­ic con­flict and de­cide they must file a fol­low-up dis­clos­ure or no­tice re­cus­ing them­selves.

The up­shot is that when law­makers do file dis­clos­ures, those fil­ings of­ten do not go bey­ond the Eth­ics Com­mit­tee. Such ap­par­ently was the case for Car­doza, Shuler, and Ross, whose dis­clos­ures have nev­er been re­leased. Even the com­mit­tee it­self is some­times taken by sur­prise by word that a law­maker has landed a job.

“I saw a news­pa­per ac­count that a law­maker had taken a job — and my jaw dropped, and I wondered, ‘How is it that even I did not know that?’ ” said one former House Eth­ics of­fi­cial, speak­ing on the con­di­tion of not be­ing iden­ti­fied by name.

Former Rep. John Shade­gg took a job as a part­ner with Step­toe & John­son in March 2011 but says he had some pre­lim­in­ary con­tact with the firm be­fore he of­fi­cially left of­fice. Shade­gg said he nev­er filed a no­tice of ne­go­ti­ations, be­cause the guid­ance he re­ceived from the Eth­ics Com­mit­tee did not in­dic­ate he had to do so un­til he was on the verge of be­ing hired, talk­ing de­tails about salary.

An­oth­er former law­maker, who asked not to be iden­ti­fied by name, ex­plained the Eth­ics Com­mit­tee guid­ance he re­ceived this way: “I was told that, for in­stance, if IBM wants to hire you for $1 mil­lion, you are not re­quired to re­port that leg­ally. But the minute I say, ‘I want $1 mil­lion and one dol­lar,’ the law kicks in.”

Asked if he thought it odd that so few dis­clos­ures of sub­sequent po­ten­tial con­flicts have been made pub­lic, Car­doza said, “The rules are in place. I am sure there are people who have vi­ol­ated them; and I am sure there are people who have com­plied with them, and I am one.”

But he also said that there are good reas­ons that talks that do not res­ult in a job should be kept private. “If you do not take an of­fer, it hurts your polit­ic­al ca­reer — it tele­graphs to people you are leav­ing,” Car­doza said.

Ques­tions of Con­flict

Still, the cur­rent sys­tem can leave linger­ing ques­tions. Take, for in­stance, Ross, the Arkan­sas Demo­crat who an­nounced in Ju­ly 2011 that he would not seek reelec­tion in 2012. Ross later an­nounced he would take a job after Con­gress as Seni­or Vice Pres­id­ent for Gov­ern­ment Af­fairs and Pub­lic Re­la­tions for the South­w­est Power Pool, a non-profit which rep­res­en­ted sev­er­al coal-driv­en power com­pan­ies.

That an­nounce­ment promp­ted at least one pub­lic­a­tion, the non­profit Republic Re­port, to raise ques­tions about Ross’s earli­er co­spon­sor­ship of an amend­ment to delay the En­vir­on­ment­al Pro­tec­tion Agency from en­for­cing the Cross State Air Pol­lu­tion rule, a rule the Power Pool had pushed to have re­laxed.

Re­pub­lic Re­port wrote that the situ­ation “raises the pos­sib­il­ity that Ross’s le­gis­lat­ive activ­ity had been un­duly in­flu­enced by the pro­spect of a high-pay­ing job.”

In re­sponse, a Ross spokes­man told the pub­lic­a­tion that the law­maker had be­gun job ne­go­ti­ations months after his EPA rule-delay­ing le­gis­la­tion passed the House, and that he would be re­cus­ing him­self on any is­sues that provide tar­geted be­ne­fits to his fu­ture em­ploy­er.

The spokes­man went on to tell Republic Re­port, “He prop­erly filed all forms re­quired by the House Eth­ics Com­mit­tee. And while the Eth­ics Com­mit­tee does not make the form avail­able to the pub­lic, in an ef­fort to be trans­par­ent, Con­gress­man Ross went above and bey­ond in an­noun­cing who he would be work­ing for when his term in Con­gress ends.”

Today, Ross is run­ning for gov­ernor of Arkan­sas — and his dis­clos­ures still re­main un­avail­able for pub­lic view­ing.

Meredith McGe­hee, policy dir­ect­or at the Cam­paign Leg­al Cen­ter, says the eth­ics law is be­ing in­ter­preted so nar­rowly that “it is simply not mean­ing­ful.”

“Swiss cheese,” is how McGe­hee de­scribed the cur­rent sys­tem, while Craig Hol­man, a le­gis­lat­ive rep­res­ent­at­ive for the gov­ern­ment watch­dog group Pub­lic Cit­izen, said the in­tent of the law was to “let the pub­lic know.”

“That was the en­tire in­tent,” Hol­man said.

Ethics Issues

There is noth­ing il­leg­al or un­eth­ic­al about de­part­ing law­makers look­ing for work while they serve out their terms. But the law was put in place as a trans­par­ency meas­ure after former Rep. Billy Tauz­in caused a stir by leav­ing the House in 2003 to take a $2-mil­lion-a-year job in the phar­ma­ceut­ic­al in­dustry, just months after play­ing a lead role in draft­ing le­gis­la­tion to in­tro­duce a pre­scrip­tion drug be­ne­fit to Medi­care.

But the law’s rules ap­ply dif­fer­ently today than they did when was it was passed. For ex­ample, in the House, the gov­ern­ment pan­el in charge of the fil­ings was changed from the Clerk’s Of­fice to the Eth­ics Com­mit­tee, which is ex­tremely se­lect­ive about what it makes pub­lic. In the Sen­ate, the sec­ret­ary of the Sen­ate, rather than the Eth­ics Com­mit­tee, handles most of these fil­ings, with far dif­fer­ent res­ults. A high­er per­cent­age of law­makers there have filed dis­clos­ures, and those forms were swiftly made pub­lic.

Staffers and law­makers with dir­ect know­ledge of how the House Eth­ics Com­mit­tee over­sees the law say it is be­ing in­ter­preted so nar­rowly by of­fi­cials and law­makers as to render it in­ef­fect­ive.

They say law­makers are es­sen­tially told they must file no­tices only when they have an ac­tu­al job of­fer and com­pens­a­tion is dis­cussed. And those no­tices do not have to be made pub­lic — they can be kept private by the Eth­ics Com­mit­tee — un­less law­makers them­selves de­term­ine there is a spe­cif­ic con­flict and de­cide they must file a fol­low-up dis­clos­ure or no­tice re­cus­ing them­selves.

The up­shot is that when law­makers do file dis­clos­ures, those fil­ings of­ten do not go bey­ond the Eth­ics Com­mit­tee. Such ap­par­ently was the case for Car­doza, Shuler, and Ross, whose dis­clos­ures have nev­er been re­leased. Even the com­mit­tee it­self is some­times taken by sur­prise by word that a law­maker has landed a job.

“I saw a news­pa­per ac­count that a law­maker had taken a job — and my jaw dropped, and I wondered, ‘How is it that even I did not know that?’ ” said one former House Eth­ics of­fi­cial, speak­ing on the con­di­tion of not be­ing iden­ti­fied by name.

Former Rep. John Shade­gg took a job as a part­ner with Step­toe & John­son in March 2011 but says he had some pre­lim­in­ary con­tact with the firm be­fore he of­fi­cially left of­fice. Shade­gg said he nev­er filed a no­tice of ne­go­ti­ations, be­cause the guid­ance he re­ceived from the Eth­ics Com­mit­tee did not in­dic­ate he had to do so un­til he was on the verge of be­ing hired, talk­ing de­tails about salary.

An­oth­er former law­maker, who asked not to be iden­ti­fied by name, ex­plained the Eth­ics Com­mit­tee guid­ance he re­ceived this way: “I was told that, for in­stance, if IBM wants to hire you for $1 mil­lion, you are not re­quired to re­port that leg­ally. But the minute I say, ‘I want $1 mil­lion and one dol­lar,’ the law kicks in.”

Asked if he thought it odd that so few dis­clos­ures of sub­sequent po­ten­tial con­flicts have been made pub­lic, Car­doza said, “The rules are in place. I am sure there are people who have vi­ol­ated them; and I am sure there are people who have com­plied with them, and I am one.”

But he also said that there are good reas­ons that talks that do not res­ult in a job should be kept private. “If you do not take an of­fer, it hurts your polit­ic­al ca­reer — it tele­graphs to people you are leav­ing,” Car­doza said.

Questions of Conflict

Still, the cur­rent sys­tem can leave linger­ing ques­tions. Take, for in­stance, Ross, the Arkan­sas Demo­crat who an­nounced in Ju­ly 2011 that he would not seek reelec­tion in 2012. Ross later an­nounced he would take a job after Con­gress as Seni­or Vice Pres­id­ent for Gov­ern­ment Af­fairs and Pub­lic Re­la­tions for the South­w­est Power Pool, a non-profit which rep­res­en­ted sev­er­al coal-driv­en power com­pan­ies.

That an­nounce­ment promp­ted at least one pub­lic­a­tion, the non­profit Republic Re­port, to raise ques­tions about Ross’s earli­er co­spon­sor­ship of an amend­ment to delay the En­vir­on­ment­al Pro­tec­tion Agency from en­for­cing the Cross State Air Pol­lu­tion rule, a rule the Power Pool had pushed to have re­laxed.

Re­pub­lic Re­port wrote that the situ­ation “raises the pos­sib­il­ity that Ross’s le­gis­lat­ive activ­ity had been un­duly in­flu­enced by the pro­spect of a high-pay­ing job.”

In re­sponse, a Ross spokes­man told the pub­lic­a­tion that the law­maker had be­gun job ne­go­ti­ations months after his EPA rule-delay­ing le­gis­la­tion passed the House, and that he would be re­cus­ing him­self on any is­sues that provide tar­geted be­ne­fits to his fu­ture em­ploy­er.

The spokes­man went on to tell Republic Re­port, “He prop­erly filed all forms re­quired by the House Eth­ics Com­mit­tee. And while the Eth­ics Com­mit­tee does not make the form avail­able to the pub­lic, in an ef­fort to be trans­par­ent, Con­gress­man Ross went above and bey­ond in an­noun­cing who he would be work­ing for when his term in Con­gress ends.”

Today, Ross is run­ning for gov­ernor of Arkan­sas — and his dis­clos­ures still re­main un­avail­able for pub­lic view­ing.

Meredith McGe­hee, policy dir­ect­or at the Cam­paign Leg­al Cen­ter, says the eth­ics law is be­ing in­ter­preted so nar­rowly that “it is simply not mean­ing­ful.”

“Swiss cheese,” is how McGe­hee de­scribed the cur­rent sys­tem, while Craig Hol­man, a le­gis­lat­ive rep­res­ent­at­ive for the gov­ern­ment watch­dog group Pub­lic Cit­izen, said the in­tent of the law was to “let the pub­lic know.”

“That was the en­tire in­tent,” Hol­man said.

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