Sen. Trent Lott (R-Miss.) is likely the last lawmaker to spin through the revolving door to K Street before the new ethics law slows it down.
Last week, he announced he would step down by the end of the year, presumably to avoid tough restrictions on Members-turned-lobbyists that will kick in when this session adjourns.
But Senators left behind with dollar signs in their eyes shouldn’t fret: The new law is not as restrictive as it looks.
In May, the Senate overwhelmingly approved a lobbying reform package that would have broadened the scope of banned activity for lawmakers fresh off Capitol Hill. That bill not only doubled the mandated cooling-off period to two years — it also banned them from even plotting legislative strategy with their new colleagues in downtown offices.
But after the House scotched new rules for lawmakers-turned-lobbyists altogether, Senate leaders over the summer quietly removed the provision aimed at backroom strategizing.
Democratic Sens. Russ Feingold (Wis.) and Barack Obama (Ill.), who led the charge in the Senate for tougher revolving door restrictions, did not note the change when they took to the floor in August to praise the final package.
“Its not a very strong revolving door restriction,” said Craig Holman, a lobbyist for Public Citizen. “The only thing it does is extend the old cooling-off period from one year to two. I was impressed that Feingold and Obama were able to hang on to the 2-year element once the House opted out of doing anything. But it does nothing else.”
Kenneth Gross, a lobbying law expert who testified against the provision this year before the House Judiciary Committee, said expanding its reach would have served no purpose.
“If the real concern is that you are using undue influence because of the glow of your position as a Senator or Congressman now on the other side, that is addressed by simply prohibiting appearances or the use of that person’s name as a calling card,” he said, referring to the scope of the law already on the books. “It isn’t furthered by prohibiting somebody from directing activities from behind the scenes.”
The new law requires Senators to report to the Secretary of the Senate within three days of starting negotiations for a lobbying job. But so far there is no mechanism for the Secretary of the Senate to publish that information publicly.
“That’s not what I would call too open,” said Cleta Mitchell, an ethics compliance expert at Foley & Lardner.
And while Senate staffers in talks for outside jobs must recuse themselves from official work that could present a conflict, the law imposes no similar burden on Senators themselves.
Still, Senators are unlikely to find themselves conflicted for too long, since they only can be cleared to start talks with a prospective employer once their successor is elected.
“Generally, there is a stronger presumption against recusal of Members, because if you recuse a Member, their constituents lose a vote,” said Marc Elias, an ethics lawyer at Perkins Coie. He acknowledged the law allows a window for conflicts but noted “it’s a fraction of a legislative period.”
Until recently, lawmakers navigating the ban also have benefited from lax enforcement. The law, a criminal statute on the books since 1989, had only prompted one prosecution — of an executive branch official — until the Abramoff scandal. Last year, prosecutors netted guilty pleas from Neil Volz, a former aide to ex-Rep. Bob Ney (R-Ohio), and Tony Rudy, a former aide to ex-Rep. Tom DeLay (R-Texas), in part for violating their cooling-off period. Ney himself was found guilty of facilitating the violation.
Once off the Hill, newly minted lobbyists are barred from talking shop with their old colleagues. Another no-no: sending proxies up to visit lawmakers and lobby in their stead.
Former lawmakers who successfully have transitioned into lobbying careers said while the hiatus takes some getting used to, it’s hardly insurmountable.
“It can be difficult, because you are so used to interacting with your former colleagues,” said former Rep. Henry Bonilla (R-Texas), who joined the Normandy Group this year after losing a re-election bid in November 2006. “You stay away from the Hill, because that’s against the law. You have to understand you cannot ask for even a phone number or a contact: Zilch, none, you can’t do it.”
But social contact with lawmakers is still OK, said former Rep. Vic Fazio (D-Calif.), now at Akin Gump Strauss Hauer & Feld. “And it doesn’t prevent you certainly from being solicited for fundraisers.”
Waiting out the ban, former Members can still add value for their clients by helping them discern mood and momentum on the Hill and plot strategy accordingly, Fazio said. “Much of what you do when you lobby is to inform your clients of what’s possible — or what’s a non-starter,” he said.
“I sat in leadership meetings for nine years. I know the pressures on the leadership from the caucus, I know the Member districts, I know how they’re going to react on a personal level, on a district level. There’s no question [former Members] can bring a perspective others don’t have.”
In Lott’s case, the Mississippi Republican is exploring a partnership with former Sen. John Breaux (D-La.), who announced last week he is leaving Patton Boggs after nearly three years to launch a firm with his son. Both Lott and Breaux told The Washington Post last week they were considering an arrangement.
That enterprise presumably would start small — a departure for many lawmakers who join larger organizations to absorb the temporary impact of the lobbying ban. “It does burden the firm a little bit,” Fazio said. “But people with the background of a Trent Lott aren’t going to be suffering. And Breaux can do a lot of things, too.”