Street Talk: Most Members Talk ‘Turkey’ out of Public Eye

Posted September 24, 2010 at 6:07pm

If you believe the public record, no sitting Member of Congress is in serious talks with potential K Street employers.

Not retiring Rep. John Tanner (D-Tenn.), whom many companies are clamoring for. Not outgoing Sens. Judd Gregg (R-N.H.) or Evan Bayh (D-Ind.), who would be huge gets for downtown interests. Not even departing Sen. Byron Dorgan (D-N.D.), who has said he would like to “work on energy policy in the private sector.”

Since Congress passed the Honest Leadership and Open Government Act of 2007, only one Senator — Trent Lott, who is now a lobbyist — has filed a public form disclosing that he had entered into job discussions with private-sector employers. Three House Members have filed similar forms, and they all date back to 2008.

Craig Holman, a lobbyist for Public Citizen, said he feels duped.

Holman pushed for the disclosures, which he said might as well get filed into outer space, if they even get filed at all.

On the House side, Holman said Members have to file the reports with the ethics committee, and “they are lost in a black hole and only made public when the Member himself determines there is a clear conflict of interest.”

He added, “I got fooled on that one.”

Holman intended for the measure to force Members to file a public disclosure as soon as serious two-way communications begin.

Instead, most experts agree that the disclosures must be filed only when a Member starts talking salary — typically a final phase of job negotiations.

“You will learn very little from the public reports,” he said. “You will only learn the occasional report where a Member declares a conflict of interest. You will not learn which Members are in negotiations with which employers.”

The Senate language states that Members cannot negotiate or make any private employment deals until after their successor has been elected, “unless such a Member files a signed statement with the Secretary of the Senate, for public disclosure, regarding such negotiations or arrangements not later than 3 business days” after the talks have started.

House Members must file a similar form with the Committee on Standards of Official Conduct and may also file a recusal. That’s what then-Rep. Richard Baker (R-La.) did in January 2008 when he was negotiating with the Managed Funds Association, where he is now president and CEO.

Ken Gross, an ethics and lobbying expert at Skadden Arps Slate Meagher & Flom, represented Baker. Gross said it’s not always easy to say where the line is for Members to file disclosure and recusal forms amid the Kabuki dance of job negotiations.

“There’s certainly room for a good bit of back and forth and discussion before this ripens into a filing obligation,” he said. “There isn’t much out there in terms of exactly where the line is drawn.”

He added, “Recusal always involves a certain amount of gray area.”

Many Members rely on headhunters, lawyers or other third parties to represent their interests. And unless anyone is talking salary, that distance from the job talks can give lawmakers extra wiggle room not to file the disclosures.

Gross said it’s hard to speculate about why no departing Members have filed disclosures so far this year. Many may be waiting for their terms to end or for their successors to be elected before they leave their constituents’ business behind to pursue their own.

“They are either good Kabuki dancers, or they’re perhaps interpreting the law so that they don’t have to file,” he said. “They certainly need to be mindful of this provision in the law.”

Jackie Arends, who runs the aerospace and defense practice at the recruiting firm Spencer Stuart, said Members are mindful of the law and taking their time in making a major life decision.

“I actually think that not many of them are in negotiations for a job,” she said.

Most prospective employers are waiting to make big-ticket hires until after the midterm elections, and many of the soon-to-be ex-Members are trying to get a feel for the downtown job market and the possibilities that may await them.

Arends said she has conversations with Members about what types of issues they like to work on, what their interests are, what type of lifestyle they envision and how much money they’re worth.

“People have dreams,” she said. “I kind of talk them through it. They’re not always trying to go back and lobby their former committees. They’re trying to find an interesting way to end their career.

“I think there’s a huge learning curve,” she added.

Still, Holman is not pleased that Members don’t need to disclose the job talks until they are getting ready to agree on a dollar figure.

“Literally everything’s almost done before you actually talk turkey, and that’s too late in the process,” he said. “For the executive branch, the office of government ethics has produced guidelines as to when the triggering threshold should apply. Their guidelines are exactly reasonable — exactly what I was thinking of. It’s not when some company sends you an e-mail and says ‘We’re interested in hiring you.’ It’s when you respond back saying, ‘I’m interested.'”