Reps. Bud Cramer (D-Ala.), Ray LaHood (R-Ill.), Tom Reynolds (R-N.Y.) and Jim McCrery (R-La.) are some of the retiring lawmakers who are the most sought after by K Street.
But starting Wednesday, a loophole in the Honest Leadership and Open Government Act means they are no longer required to publicly file notice if they are in serious job negotiations with prospective employees.
As part of the act, the largest change to the nations lobbying law in decades, both chambers passed rules requiring Members to publicly disclose within three days negotiations or agreements of future employment or compensation.
But the rules must be complied with only until his or her successor has been elected.
The rule was largely introduced to limit the control that Members of Congress had in ongoing legislation that could affect future employers.
Reformers say the rule was spurred by former Energy and Commerce Chairman Billy Tauzin (R-La.), who played a key role in writing the Medicare prescription drug law. A year later he announced a move to head up the Pharmaceutical Research and Manufacturers of America.
This provision had its roots in some fairly notorious conduct, most notably by Billy Tauzin, said Marc Elias, an ethics lawyer at Perkins Coie. He and other Members were actively involved in legislation as Members while at the same time negotiating future employment.
In its first year of existence, three House Members and one Senator have publicly reported negotiations with outside employers.
Former Rep. Richard Baker (R-La.) disclosed his negotiations with the Managed Funds Association, and former Rep. Al Wynn (D-Md.) announced he would leave the House on May 31 to join the law firm Dickstein Shapiro.
Rep. Robert Andrews (D-N.J.), who was in negotiations with Goldman Sachs, also filed a recusal form. In September, Andrews announced he would in fact run for re-election after losing a primary bid against New Jersey Sen. Frank Lautenberg (D).
Former Sen. Trent Lott (R-Miss.) also publicly reported his intention of leaving the Senate to start his own firm.
Reform groups have already called for Congress to tighten the regulations. News of Wynns decision to accept a job at Dickstein came out before he filed a disclosure, prompting groups like the Campaign Legal Center, Common Cause, Democracy 21 and U.S. PIRG to write Speaker Nancy Pelosi (D-Calif.) asking that she review the rule.
We will pass a rules package in January, and of course, we will review the rules to make sure they meet the highest ethical standards, Pelosi spokesman Brendan Daly said in an e-mail statement Monday.
The loophole theoretically will permit retiring and defeated Members of Congress to negotiate corporate and K Street jobs without public scrutiny while at the same time playing an integral role in the upcoming lame-duck session.
While many of the 28 retiring House and Senate Republican lawmakers might not be in the best position to strong-arm provisions into an expected supplemental appropriations bill, thats not the case with powerful appropriators like Sen. Ted Stevens (R-Alaska) and Rep. John Murtha (D-Pa.), who are in jeopardy of losing their seats.
The lame duck is probably a space or time that we need to amend the rule, Sarah Dufendach of Common Cause said. Obviously, if its a lame duck, there are pretty important issues that have been left undone.
Democrats on the Hill agree that the rules do not require public disclosure after Election Day. But they note that there is still an overarching ethics provision within the law that requires disclosure to both chambers ethics committees, which will ensure that lawmakers do not misuse their power.
While HLOGA beefed up public scrutiny of Members post-employment negotiations, one senior Democratic aide said, adding that the basic framework is still in place to require Members to recuse themselves from working on legislation that could directly affect their future employer.
The drafters of the law, he said, were confident that existing ethical rules would prevent abuses during the short period between the election and the new Congress, including during a lame-duck session.
The Senate Rules and Administration Committee has already started to take a look at revising HLOGA, according to majority staff director Howard Gantman.
We havent looked at that specific provision, but if there are complaints or issues that arise that would lead to closer examination, we could look at that one as well, Gantman said. We needed to have some time for the law to be in place and see what was working and what might not be working.
But as the rules are currently written, ethics lawyers say exiting lawmakers talking to prospective hires would likely not have to recuse themselves from voting on a stimulus bill.
They would have to be negotiating with someone who was going to receive a specific earmark before they would have to recuse themselves, said Brett Kappel, an ethics lawyer at Vorys, Sater, Seymour and Pease. The provision would specifically have to benefit that company and that company alone.