Today, Republic Report announced that we are asking all 34 retiring members of Congress to make a simple, common sense commitment: “I will disclose any negotiations or offers for jobs on the front page of my congressional website.”  This afternoon we are delivering letters to all 34 congressional offices seeking this commitment.

We want you to be involved in this effort.  So you can make the best case possible, we want you to know the current job disclosure obligations of U.S. Representatives and Senators.

The House and Senate each have rules placing some obligations on members — all mandated by the Honest Leadership and Open Government Act of 2007.  But there are limits and loopholes that prevent effective disclosure to the public of all activities that would raise concerns about conflicts of interest and potential corruption — concerns about members of Congress doing legislative favors for potential future employers. Republic Report is asking members to make public all employment negotiations or offers, and to do so in a highly visible place – their own websites.

Here are the current rules and why they don’t measure up:

House of Representatives

  • The House rules require members to make disclosures regarding future employment – but, critically, only to the House Ethics Committee, not to the public.
  • The disclosure period, moreover, does not last until the end of the legislative term: In the two and a half months between the election of a successor in November and the end of the retiring Representative’s tenure in January, he or she is free to negotiate for jobs without any disclosure, even though plenty of legislative action can occur in a so-called “lame duck session.”
  • In addition, under the rules a House member is required to inform the Ethics Committee within three business days after the start of negotiations or of “an agreement of future employment or compensation.”  This provision is ambiguous, but a member bent on avoiding disclosure could interpret it to mean that the member can wait to inform the Ethics Committee until after he or she has reached agreement on final terms with a potential employer.  This would mean that the member could negotiate with the future employer while still in the House but avoid any disclosure simply by waiting to sign on the dotted line until his or her term ends.
  • Further, House Members are required to inform the Ethics Committee only of “negotiations or agreement” for positions, not employment offers, and the House of Representatives Manual adds even more loopholes: “the Committee makes a distinction between ‘negotiations,’ which trigger the rule, and ‘[p]reliminary or exploratory talks,’ which do not. ‘Negotiations’ connotes ‘a communication between two parties with a view toward reaching an agreement’ and in which there is ‘active interest on both sides.’ Thus, merely sending a copy of one‘s résumé to a private entity is not considered ‘negotiating’ for future employment.”
  • There is a provision requiring Members to recuse themselves in the event of a conflict of interest related to future employment, but the lack of public disclosure means that the public cannot judge whether there should be recusal. The rule does require actual recusals to be made public by the Clerk of the House, but the Clerk of the House does not post them on the House website.

Senate

The Senate rule is similar and also does not adequately protect the public from conflicts of interest by Senators.  A Senator may “not negotiate or have any arrangement concerning prospective private employment” until after his or her successor has been elected, unless, within three days of negotiations starting, the Senator files a statement with the Secretary of the Senate for public disclosure. Unlike in the House, Senators are barred from negotiating or making arrangements for jobs “involving lobbying activities” until after the election of a successor.

Again, there are loopholes.

  • As with the House, during the lame duck period between the November election and the end of the Congress, Senators are allowed to negotiate for jobs with lobbyists and non-lobbyists alike, without any disclosure, even though legislative business may still be going on.
  • Before the election, disclosures are required, but the rule doesn’t demand disclosure of job offers unless actual negotiations occur or employment arrangements are made.  And although pre-election negotiations are barred for jobs “involving lobbying activities,” it’s become painfully clear that many of the most effective special interest advocates in Washington are able to claim they are not lobbyists, essentially because they don’t visit Capitol Hill.
  • UPDATE: Disclosures by Senators under this rule, which are required to made with the Secretary of the Senate “for public disclosure,” are not available online. You can only review them by making a personal visit to the Senate Office of Public Records in Washington.  According to that office, there have only been two disclosures filed under this rule since it was adopted in 2007.  One, they told me, was by Senator Trent Lott, who resigned in December 2007 and soon became a lobbyist.
In short, the rules aren’t strong enough to give the public confidence that members of Congress are acting in the public interest, and not in the interests of future or potential employers they want to please. The simple commitment we seek –disclosing all job offers and negotiations on a public website — could help deter backdoor bribery and restore confidence in Congress.
NOTE: This post has been updated from the original posting to add some details about the provisions and workings of the rules.

Filed under: Congress, Lobbying, Uncategorized

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