Disclosure of Conflicts Questioned

Despite New Rules, Opaqueness Reigns

Posted May 23, 2008 at 5:32pm

While new House rules last year tried to widen the distance between Capitol Hill and K Street, many of the resulting safeguards are still concealed from public view, prompting a call from several outside groups to tighten the regulations.

Under guidelines enacted last September, Members and “very senior aides” — those who earn at least $126,975 in 2008, or 75 percent of a Member’s pay — are required to notify the chamber’s ethics committee when they begin negotiations for a new job.

Similarly, if either Members or aides accept a new post, they are subsequently required to recuse themselves from any situations that might give the appearance of a conflict of interest, including House or committee votes.

With the exception of a Member’s recusal, however, none of those documents is publicly available, making it possible for lawmakers, and to a greater extent their aides, to maintain lengthy transition periods from the Hill to the private sector without outside scrutiny.

In a letter issued last week to Speaker Nancy Pelosi (D-Calif.) and Minority Leader John Boehner (R-Ohio), several Congressional watchdog groups pressed for the House to revisit the rules as they apply to Members.

“Under the new rules, while a Member must file a statement with the House Ethics Committee that the Member is engaged in negotiations for employment, the statement is not made public unless the Member takes the further step of recusal from a matter in which the Member may have a conflict or the appearance of a conflict or interest,” stated the letter issued by Common Cause, Democracy 21, Campaign Legal Center, League of Women Voters, Public Citizen and U.S. PIRG.

The letter continued: “The potential absence of timely and adequate public disclosure under the new rules is illustrated by the fact that while numerous House Members have announced they will retire at the end of this Congress, only two Representatives, to date, have filed notices of employment negotiations that have become public.”

Both former Rep. Richard Baker (R-La.), now head of the Managed Funds Association, a hedge fund industry trade association, and Rep. Albert Wynn (D-Md.), who has announced he will leave the House on May 31 to join the firm Dickstein Shapiro, have filed recusal notices this session.

Pelosi spokesman Nadeam Elshami did not offer specifics but said that House rules would be revisited at the start of the 111th Congress, a regular occurrence at the beginning of each new Congress.

“Rules will be examined and addressed in January of 2009 on a variety of issues,” Elshami said. “There have been some issues that have been brought to the attention of the full Congress.”

In the meantime, Members, and particularly aides, remain free to discreetly pursue new employment — aside from a one-year “cooling-off” period that limits the ability to lobby former colleagues — and even move into the private sector without great fanfare.

Although the House Ethics Manual dictates that “very senior staff” must indicate on financial disclosure forms “any agreement they reach on future employment, whether oral or written, before termination of their service with the House,” a review of such staff show very few have followed those rules since their enactment on Sept. 14.

According to records maintained by the Clerk of the House, 41 “very senior staff” have left the Hill since November 2007, but only a half-dozen indicated new posts on the final financial disclosure forms that they are required to file within a 30-day period of quitting.

Among those aides, nearly two dozen failed to file a final disclosure form at all.

Several former staffers, who asked not to be identified for this article, said they were unaware they had not conformed to House rules on their financial disclosures, but asserted they had filed both negotiation notices and recusals.

One former Democratic aide, who was among the first wave of staff to leave in late 2007 after the rules adoption, attributed the mistake to a learning curve in the House.

“I knew there were new rules in place, and being a good legislative staffer, I read the law that we passed,” the aide said, adding that even with the assistance of the ethics panel: “I certainly did find the situation to be very vague.”

In particular, the aide noted difficulty in determining when to file negotiation and recusal letters.

“I called at several intervals when I interviewed for this position, because I knew there were changes in the law,” the aide said.

According to the House Ethics Manual, the three-day period to file begins with “the commencement of any negotiation or agreement for future employment or compensation with a private entity.”

While the Ethics Manual makes a distinction between “negotiations” — defined as “a communication between two parties with a view toward reaching an agreement” — and casual communications, it is up to Members and staff to still draw the line between the two.

The ethics handbook advises Members and aides to err on the side of caution, going as far as submitting a letter to a potential employer that they “will receive no official favors as a result of job negotiations.”

Democracy 21 President Fred Wertheimer said last Thursday that while the organization’s push to revise the rules focuses on Members, staff should also be held to high standards.

“There certainly appears to be a question about whether this information should be public in a meaningful and timely way as with Members,” Wertheimer said, adding: “There’s no kind of simple way to deal with this. It’s important to have a standard that’s fair and appropriate and a way of overseeing it that works.”