Fishing for a lucrative post-Capitol Hill career while still serving in the House is not out of bounds, legally or ethically. But when nibbles become serious negotiations over possible employment, rules are supposed to kick in that require lawmakers to step aside from votes or other official actions where conflicts might arise, and to file public notice regarding the job talks that prompted them to do so.
Records show, however, that no House members have filed such a public “Statement of Recusal” from a vote or other matter with the House clerk in more than three years.
None of the 20 sitting House members who so far have announced that they are leaving at the end of the current session (and who are not running for other public office) have filed any disclosures of potential conflicts between their official duties and jobs they may be pursuing. And none of the 19 House members who announced in 2009 or 2010 that they would be leaving at the end of the 111th Congress submitted such recusal statements to the clerk’s office. Some of them were hired within weeks or months of leaving office by top lobbying firms or other private employers such as health insurance companies and colleges.
Government-reform advocates are incredulous. They say it is unlikely that no House member in the past three years has negotiated for a private job that raised possible conflicts. More likely, they suggest, members who are in job negotiations are ignoring the rules.
“Swiss cheese” is how Meredith McGehee, policy director at the Campaign Legal Center, describes the disclosure law as it is being interpreted.
Congress enacted the 2007 Honest Leadership and Open Government Act in the wake of the controversy over then-Rep. Billy Tauzin’s departure from the House in 2003. The Louisiana Republican accepted a $2 million-a-year salary as the head of the pharmaceutical industry’s lobbying organization just a couple of months after playing a lead role in drafting legislation introducing a prescription-drug benefit to Medicare.
Government-reform activists say that the intent of the 2007 law, which also applies to the Senate, was undermined through the administrative drafting of the accompanying rule language. That’s when the House legislative counsel changed the government entity in charge of the filings from the Office of the House Clerk to the more-secretive House Ethics Committee, which hardly ever makes anything a part of the public record.
The government reformers also complain that the Ethics panel itself has interpreted the law so narrowly as to render it ineffective. Simply talking to a potential employer doesn’t trigger the public-disclosure requirement. Members are instead advised that the requirement applies only when they have an actual job offer and discuss compensation. House Ethics officials have declined to comment.
The upshot is that under existing rules, members must file notice with the House Ethics panel when they start such negotiations regarding employment. But those notices are not made public unless the House members themselves decide that they must file a second notice with the clerk recusing themselves from an official matter.
And that just hasn’t been happening, because most members believe they don’t have to until they actually get an offer and start negotiating a salary. The use of a job headhunter or other third party also muddies things.
“As a result, the entire objective of having these disclosures of employment negotiations has been sidestepped,” complains Craig Holman, legislative representative for Public Citizen.
Several former House members who were hired by top lobbying firms within a couple of months of retiring at the end of 2010 declined to return telephone calls. Others said they were not officially offered their jobs until after they left office.
For instance, former Rep. John Shadegg, R-Ariz., who was announced as a new partner at Steptoe & Johnson on March 1, 2011, says that some preliminary contact had taken place before he officially left office early in January 2011. But Shadegg said that the guidance he received from the Ethics Committee gave him no reason to believe that he needed to file a recusal statement. “The reason for that is, we did not start negotiations seriously until after I left [Congress].” He said his understanding was, “They have to express an interest to hire you, and you have to express an interest in being hired—that’s what Ethics told us at the time.”
McGehee’s group and others, including Common Cause, Public Citizen, and U.S.PIRG, have urged congressional leaders to strengthen the rules. As evidence of the need, they point to the initial decision in 2008 by then-Rep. Albert Wynn, D-Md., to remain a member of the Energy and Commerce Committee after accepting a lucrative lobbying job with a Washington firm that had business before the panel. Wynn did resign from the committee, but only after the conflict of interest sparked public controversy.
However, of the current House members who have announced their retirements, Holman says: “I know full well most of them, if not all of them, are actively looking for future employment, and they’ve got lucrative opportunities. If they negotiate while still in Congress, it just bolsters the type of salary they can receive. If you are still in Congress, you still have votes. And you can still impact policy.”
Over in the Senate, reform watchdogs describe fewer public-disclosure problems. That’s because a senator in most cases notifies the secretary of the Senate of any employment negotiations —as opposed to the Senate Ethics Committee. And because of that difference, such notifications immediately become public record. Still, reformers say they prefer that the Senate also reset the point at which such filings are required earlier in the negotiating process, “as opposed to when they actually sit down and talk turkey and salary,” Holman said.
This article appears in the February 18, 2012, edition of National Journal Magazine.