Posted April 25, 2008 by Tara Malloy A "Wynning Hand" for the Revolving DoorAs illustrated by Representative Al Wynn’s recent announcement that he will join the firm Dickstein Shapiro before his term ends, the revolving door between Congress and the lobbying industry is still spinning furiously. His situation also highlights the limitations of a House rule, passed in the Honest Government and Open Leadership Act (HLOGA), that was intended to bring transparency to Members’ recurrent search for lucrative post-congressional employment.
House Rule 27 requires Members to notify the House Committee on Standards of Official Conduct (“Ethics Committee”) of negotiations or agreements for future employment within three days from the commencement of such negotiations.[1] By designating the Ethics Committee as the recipient of this disclosure, however, the House ensured that this information would not be disclosed to the public. By contrast, the parallel Senate rule requires Senators to file employment disclosure with the Secretary of the Senate, who makes the information public.
House Rule 27 also requires a Member to recuse himself from any matters that give rise to a conflict of interest or an appearance of conflict due to his employment negotiations. In the event of such a recusal, the Member must “notify the Committee on Standards of Official Conduct of such recusal,” as well as making public his initial notification to the Committee of employment negotiations.[2] Again however, the Member is not required to disclose information about his specific recusals to the public.
In the case of Rep. Wynn, Rule 27 required him to notify the Ethics Committee of his negotiations with Dickstein Shapiro within three days of commencing the negotiations. He remains under the obligation to recuse himself from any matters that implicate his future employer until he leaves the House, but need not make public any conflicts of interest that arise or any specific recusals he may make.
Making the situation worse, the House Ethics Committee has recently provided additional guidance to Members regarding employment disclosure that may further weaken Rule 27. The guidance includes two standard forms, a “Notification of Negotiations or Agreement for Future Employment” and a “Statement of Recusal.”[3] While standardized forms in theory can simplify compliance and ensure uniformity in reporting, the forms created by the Ethics Committee appear to allow Members to make less than full disclosure of their employment-related conflicts of interests.
The form “Statement of Recusal” requires a Member to make only the following general affirmation:
“I have recused myself from any official matter that would affect the following private entity as a result of my negotiation or agreement for employment or compensation: ____________, effective as of _______, 200_.”
By requiring only this general statement, the Ethics Committee appears to have relieved a Member of her obligation under HLOGA to notify the Ethic Committee of each specific matter from which she recuses herself due to employment-related conflicts.[4] A blanket affirmation of a Member’s intention to recuse herself in the event of a conflict is of limited utility. The Ethics Committee needs be notified of a Member’s specific recusals in order to monitor whether the Member is properly recusing herself from the various legislative matters that implicate her future or potential employment.
The weaknesses of such a disclosure mechanism are already apparent in the case of Rep. Wynn. He has filed the “Statement of Recusal” form with the Ethics Committee – but that form reveals no more than his general statement that he “has recused [him]self from any official matter that would affect” his future employer. This basic announcement does not identify the specific matters from which Rep. Wynn has recused himself, nor demonstrate that Rep. Wynn is properly avoiding conflicts of interest.
It may be that Members will notify the Committee of their specific recusals on their own initiative – even if this information is not required on the standard form. Unfortunately, the public has no way of knowing whether this will occur because a Member need notify only the Ethics Committee of an employment-related recusal, not the public. Therefore, even after passage of HLOGA, the public remains largely in the dark about a Member’s efforts to avoid conflicts of interest. The new form created by the Ethics Committee just renders the Committee as ignorant as the public.
The Wynn situation thus exposes not only the problems of the new standardized forms, but also the limitations of Rule 27 more generally. The most obvious limitation is the Rule’s failure to require a Member to make public her negotiations for employment and her employment-related recusals. A constituent’s interest in full disclosure of his Member’s conflicts of interest outweighs the Member’s desire to keep these conflicts confidential.
Further, Rule 27 does not address the greater potential for conflicts of interest raised by Wynn’s particular situation, namely, when the future employer is a lobbying firm. When a Member negotiates employment with a private company, the negotiations will implicate a limited number of legislative matters in which the company has an interest. By contrast, negotiations with a lobbying shop – many of which represent a diverse roster of clients – potentially involve a far broader swath of legislation. The parallel Senate rule on employment disclosure forbids Senators from negotiating any employment “involving lobbying activities” until after their successors have been elected. It would behoove the House to emulate this approach. Better yet, the House should consider matching the Senate’s tougher “revolving door” rule, which lengthened the “cooling off” period in which legislators are forbidden from lobbying their former colleagues from one year to two.
Cashing in under questionable circumstances has been a recurring theme in the House. It may be that substantive “revolving door” reform is unlikely to be enacted. However, if the House at least were to eliminate the blanket recusal form and make employment-related negotiations and recusals public, this would mark a significant improvement over the current “see no evil, hear no evil, speak no evil” ethics regime. [1] Members are also required to disclose any agreements for future employment in their annual disclosure of financial interests (and termination report) pursuant to Rule 26. See also Ethics in Government Act of 1978, as amended, 5 U.S.C. app. 4 § 101 et seq. Because Members only file such reports annually, this disclosure lacks the contemporaneousness of Rule 27. [2] The relevant portion of Rule 27 reads: “A Member, Delegate, or Resident Commissioner, and an officer or employee to whom this rule applies, shall recuse himself or herself from any matter in which there is a conflict of interest or an appearance of a conflict for that Member, Delegate, Resident Commissioner, officer, or employee under this rule and shall notify the Committee on Standards of Official Conduct of such recusal.” (Emphasis added.) [3] The new forms created by the Ethics Committee can be accessed on its website at: http://www.house.gov/ethics/employment_negotiation_and_recusal.htm. [4] The memorandum from the House Ethics Committee regarding “Negotiating for Future Employment” states that Members need file the standard recusal form in the event of a conflict of interest: “All Members, officers and very senior staff who recuse themselves from official matters pursuant to Rule 27 must complete and submit the recusal form to the Committee.” See Memorandum at 4, at http://www.house.gov/ethics/m_future_employment.pdf. |
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