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New Guidelines Unlikely After Baucus Episode

Clarification Appended

Sen. Max Baucus’ (D-Mont.) nomination of his girlfriend for the U.S. attorney position in Montana highlights a lack of ethics rules or legal guidelines for how lawmakers make recommendations for political positions.

But despite the public scrutiny that Baucus’ nomination of Melodee Hanes has brought on the process, even the most reform-minded members of the Senate said they do not favor restrictions curbing their ability to nominate whomever they choose.

For instance, when asked whether new ethics rules or legislation is needed to provide greater transparency to the process, Sen. Claire McCaskill (D-Mo.) argued that because the nominations eventually become public when the administration formally makes them, no new rules are needed.

“I don’t think so. What’s in place— provides enough scrutiny, McCaskill said, adding that the public nature of formal nominations is “the cleansing agent that we need.—

Likewise, Sen. Tom Coburn (R-Okla.) said he sees no need for new rules or greater transparency, arguing that if individuals suggested for positions by lawmakers are publicized but not selected for the posts, it could hurt their reputations. “Then it implies something negative about you when you may be a great citizen,— Coburn argued.

Baucus’ office late Friday confirmed that Baucus and Hanes — with whom he now lives — began a personal relationship in the summer of 2008, several months after Baucus and his ex-wife, Wanda, had separated. This spring, Baucus recommended Hanes to become U.S. attorney for Montana; Hanes ultimately withdrew from consideration so she could move to Washington, D.C., to live with Baucus.

Hanes has since taken a position with the Department of Justice, and Baucus’ office said the lawmaker did not arrange for her to be employed by the Obama administration.

But the Republican National Committee has called for an ethics investigation into his nomination of Hanes.

Providing the White House with nominees for politically appointed positions is one of the closely guarded prerogatives of the Senate. Each year Senators forward hundreds of names to the White House for political positions ranging from the Broadcasting Board of Governors to U.S. attorneys, and even district and circuit court slots.

Historically, political allies, family members or former aides have found their way into top positions — for instance, Minority Leader Mitch McConnell’s (R-Ky.) wife, Elaine Chao, served as Labor secretary during the Bush administration, while Majority Leader Harry Reid’s (D-Nev.) former chief of staff Susan McCue has been nominated to the Broadcasting Board.

How someone’s name gets on the list of nominees for a position is generally determined by the senior member of the state’s delegation. For instance, Baucus’ office set up a Web site in November to accept applications for a series of political positions that came open after President Barack Obama took office, including the U.S. attorney’s job and the U.S. Marshal position in the state.

Baucus’ office collected applications and résumés through the site and then submitted them to a third-party vetter, who interviewed candidates, ran background checks and narrowed the list to a smaller number of candidates. Baucus and Sen. Jon Tester (D-Mont.) then met with the potential nominees before Baucus ultimately put together a list of three names to send to Obama for each position — including Hanes’ name on the U.S. attorney list.

White House Press Secretary Robert Gibbs said the White House had been unaware of Baucus’ relationship with Hanes. Tester has also said he did not know Baucus and Hanes were romantically involved.

Other offices use a more informal process, drawing from people familiar to the lawmaker or by discussing potential nominees with their delegation colleagues or state officials.

But aside from a delegation’s own internal rules, there is little in the way of formal rules on whom Senators can nominate for political positions.

Although Senate ethics rules include a host of constraints on interactions between staff and Members — for instance, the types of gifts that Senators and staffers can give each other are limited — the Senate has never adopted rules pertaining to lawmakers having intimate relationships with staff members. The chamber has also never addressed the issue of nominating family members, business associates or political patrons.

The only legal restraints that appear to apply to nominations are federal nepotism laws, which the Senate Ethics Committee has codified as part of the chamber’s rules.

The law “provides a general prohibition against all Federal officials, including Members, officers, and employees of the Senate, from appointing, employing, promoting, or advancing, or recommending for appointment, employment, promotion or advancement any ‘relative’ of the official to any agency or department over which the official exercises authority or control,— according to the Senate ethics manual.

But the law’s definition of “relative— is extremely specific and generally only applies to direct relatives such as spouses and children — for instance, the nephew of a Member’s spouse would not be covered. Likewise, because Hanes is Baucus’ girlfriend and not his wife, the law would not apply.

However, in the case of Brendan Johnson, the son of Sen. Tim Johnson (D-S.D.) who is now the U.S. attorney for South Dakota, those rules did apply. Johnson knew his son was seeking the position, so he decided not to nominate anyone for the U.S. attorney’s position and recused himself for much of the process.

McCaskill said that despite the lack of standard procedures for how to pick nominees or transparency rules, Members remain responsible for the names that they provide to the administration, which should keep them from abusing the system.

“I think we’re all accountable,— McCaskill said.

Clarification: Dec. 8, 2009

Because of incorrect information provided by Baucus’ office, the article misstated the month in which the office set up a Web site to accept applications for political positions. It was November 2008.

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