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.
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.
This article appears in the January 22, 2014 edition of NJ Daily.