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.

National Journal
Billy House
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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.

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