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Sen. Campbell Has the Floor?

If a former Senator breaks the new ethics law and no one complains, is it illegal?

That question came into play on Tuesday morning when former Sen. Ben Nighthorse Campbell (R-Colo.) strolled onto the Senate floor during the chamber’s consideration of the Commerce, Justice, science and related agencies spending bill.

Since Campbell is now a lobbyist with Holland & Knight representing several Indian tribes and chemical interests, under the recently enacted ethics reform bill he is no longer supposed to enjoy such unfettered access to his one-time colleagues. As Jim Manley, spokesman for Senate Majority Leader Harry Reid (D-Nev.) said, “under the new rules former Senators that lobby are not allowed on the floor. He would have been asked to leave had a Member objected.”

But since no Senator cried foul, Campbell went unpunished. In fact, Campbell himself didn’t seem to realize he was breaking any of the new rules, saying afterward that since he wasn’t lobbying any Senators, he didn’t believe he did anything wrong.

“I know the law,” Campbell said in a brief interview. Besides, he added, “sitting Senators are aware of the restrictions. If I overstepped it, they’d say they can’t talk about it. It’s always been unwritten protocol. It would be like taking unfair advantage.”

It is not clear whether Campbell’s tribal clients have a particular interest in the C-J-S bill, though the American Chemistry Council, another Campbell client, almost certainly does. But whether Campbell actually was trying to influence Senators doesn’t really matter since under the new ethics law he was already violating the rules simply by being on the floor.

Bill Allison, a senior fellow with the Sunlight Foundation, a watchdog group, said the Campbell incident should raise serious questions about whether lawmakers can police themselves. Not only did they fail to enforce their own rules, but have yet to put in place mechanisms to do so, Allison argued.

“It’s a Congress of rules, not enforced rules,” he said. “When you think of the big deal some in Congress made of this practice … to find out that there’s no way enforce the rule” reinforces the notion that lawmakers view themselves as untouchable.

With questions like that being raised, one Republican Senator, speaking on the condition of anonymity, said Senators — both current and former — must be extra mindful about what’s acceptable behavior these days.

“The level of scrutiny is that much higher than it was before,” the Senator said.

That may be true, but others cautioned that the Campbell misstep shouldn’t be overblown — at least initially. Lawmakers still are learning what’s in the ethics law and it will take some time to understand all of its complicated pieces.

“These rules are all new — they’ve been in effect for a month now,” said Kenneth Gross, an ethics attorney and expert. “There’s a learning process for a lot of people and there should be a grace period until everyone gets up to speed and until everyone understands rules.

“At some point they are going to have to enforce them because it is the law of the land,” he added. “But I think at this point, discretion could be shown and some ramp-up time allowed before anyone brings any hammers down.”

However, the Campbell matter does seem to underscore some of the larger concerns with the ethics legislation, which continues to cause headaches for lawmakers as they try to adjust.

For instance, earlier this month Senators quietly revised a provision in the law that had effectively barred them from holding reservations on numerous planes to ensure they could get a seat on the flight that best fit their end-of-week schedule. Senators had to make clear to the airlines that the “double-booking” practice was allowed since it was not a gift prohibited under the law.

The Senate seemed to remedy the travel issue fairly quickly, but other matters may not be as simple to address. What’s more, some Senators remain dissatisfied with what was contained in the bill when it cleared Congress earlier this year.

Sen. Jim DeMint (R-S.C.), who has led a conservative fight to strengthen the Senate’s earmark rules, downplayed the significance of Campbell being on the floor, as well as other similar rules like the meal ban or travel restrictions. For DeMint, those issues are of little consequence compared to what he views as an epidemic with Senator spending.

“Most of the ethics bill is eyewash and window dressing,” DeMint argued. “The real corruption around here is the millions of dollars that are being thrown around.”

Whether DeMint will make headway on earmark reform remains in question. But sources in both parties said Tuesday they will be doing more to prevent public slip-ups like Campbell’s. As one senior Democratic staffer said, “everyone involved is going to need to do a better job of enforcing this in the future.”

“We have to figure out who exactly is a lobbyist,” the aide said. “The vast majority of the rules discussions have been about who is allowed on the floor. We need to do a better job [figuring out] who are the registered lobbyists and enforce the rules.”

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