The lobbying reform that enriched Congress
The lobbying reform that enriched Congress
Nine years after Congress tried to halt the revolving door, the influence industry is larger and filled with former members. This wasn't an accident.
Congress was in no rush to reform itself in the early 2000s, even as more and more of its members decamped for the lobbying world and started collecting fat paychecks. But the 2005 arrest of “super lobbyist” Jack Abramoff shamed Congress into action. Abramoff bared the worst excesses of the capital’s influence industry, brazenly feting lawmakers with golf trips to Scotland, sushi dinners and campaign contributions, opening the door for lobbyists to write legislation themselves. House Majority Leader Tom DeLay (R-Texas) resigned, and Ohio Rep. Bob Ney went to prison. Democrats seized on the chaos to retake both chambers, promising voters they’d change what they called a “culture of corruption.”
Their attempt to make good on that promise, the Honest Leadership and Open Government Act of 2007, was embraced by both parties as a historic breakthrough. “This legislation will slow the revolving door that shuffles lawmakers and top staff between federal jobs and the private sector,” Harry Reid, newly the Senate majority leader, said of the lobbying reform law. Sen. Susan Collins, the Maine Republican, added, “This bill, then, is a critical part of restoring the people’s trust by reforming ethics and lobbying rules.”
Instead, it made things worse.
Nine years later, the result of the law is very nearly the opposite of what the American public was told it was getting at the time. Not only did the lobbying reform bill fail to slow the revolving door, it created an entire class of professional influencers who operate in the shadows, out of the public eye and unaccountable. Of the 352 people who left Congress alive since the law took effect in January 2008, POLITICO found that almost half (47 percent) have joined the influence industry: 84 as registered lobbyists and 80 others as policy advisers, strategic consultants, trade association chiefs, corporate government relations executives, affiliates of agenda-driven research institutes and leaders of political action committees or pressure groups. Taken as a whole, more former lawmakers are influencing policy and public opinion now than before the reform was enacted: in a six-year period before the law, watchdog group Public Citizen found 43 percent of former lawmakers became lobbyists.
There is less transparency because some former lawmakers don’t need to register because lobbying is just one slice of how special interests shape laws in Washington today. Efforts to influence federal policy increasingly resemble campaigns with communications, social media, research, polling and mobilizing constituents. Each of those elements cost money, and create demand for former members’ expertise, but only lobbying is publicly disclosed.
Other times, it’s hard to tell the difference between the job descriptions of former members who are registered to lobby and those who aren’t. That’s because the reform law provided weak rules and even weaker enforcement. It added criminal penalties but made them so hard to prosecute they’ve never been tried.
The revolving-door rules were made so porous that members could go directly to lobby firms and nurture their relationships with former colleagues - as long as they didn't talk business for at least a year. Rep. Steve Southerland (R-Fla.), who joined a lobbying firm five months after losing in 2014, said he preferred to keep up with old colleagues in the privacy of the Capitol Hill Club, knowing reporters might relish spotting him leaving a congressional office. (Southerland said he fully complied with the one-year lobbying ban and registered to lobby when it expired.)
“I never went away, I just went invisible, and probably became more effective,” Southerland told POLITICO. “I’ve enjoyed being off the grid.”
This is not another story about best intentions and unforeseen consequences. The 2007 law was deliberately watered down by lawmakers concerned about their own job prospects, POLITICO has learned from dozens of interviews with former legislators and staffers. Those lawmakers made sure that their departing colleagues could secretly negotiate lucrative new jobs and orchestrate lobbying from behind the scenes without fear of detection or punishment. Many of the lawmakers who shaped the bill - including Sens. Trent Lott (R-Miss.), the late Bob Bennett (R-Utah), Judd Gregg (R-N.H.), and Jim DeMint (R-S.C), and Rep. Dennis Cardoza (D-Calif.) - then went on to join the influence economy themselves.
The revolving door is about to enter peak season. Already 42 members of Congress have resigned, lost or announced plans to leave by January, and some are already talking with prospective future employers - all perfectly permissible and confidential, thanks to weaknesses engineered into the post-Abramoff reform law. These members know they can command a premium - $100,000 more than other lobbyists, according to a new study - from an industry that values the access they can provide to the halls of power.
“They have succeeded in poking various holes,” said Craig Holman, a lobbyist at Public Citizen and one of the bill’s leading proponents, “so that even though we were phenomenally successful at first, we have gone back a big step.”
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“Today we govern, and we start with S. 1,” Harry Reid said as he introduced the lobbying reform bill on Jan. 8, 2007. That designation carried symbolic importance, he said: Not only was it the chamber’s first order of business, but it had an unlikely cosponsor - Mitch McConnell, the Senate’s minority leader. It marked the first time in 32 years that the leadership of both parties agreed to cooperate on the Senate’s momentous first bill.
The lobbying legislation came first, Reid proclaimed, because voters demanded it. “Americans want us to purge the government of undue influence,” he said, “and they want us to eliminate the conditions that led to the scandal-making headlines of last year and 2005: headlines about officials being flown to Scotland for rounds of golf; headlines about committee chairmen negotiating lucrative lobbying jobs with the industries they were to oversee while working on legislation important to those industries; and, of course, headlines about pay-to-play schemes such as the infamous K Street Project, where jobs and campaign donations were traded for legislation and other official acts.”
In Reid’s telling, the bill before the Senate would outlaw paid travel like Abramoff’s infamous junkets; increase the frequency of lobbying disclosures; impose “stiff new penalties”; make it harder to sneak in pork-barrel spending; and, critically, “slow the revolving door” by requiring members of Congress to publicly reveal their job negotiations and lose floor privileges if they were to become lobbyists. The bill also proposed a cooling-off period that would prohibit lawmakers and top staff from becoming lobbyists for two years instead of one.
Lobbying is as old as the Republic; the term is widely (though falsely) attributed to the businessmen who angled to catch President Ulysses S. Grant in the lobby of the Willard Hotel. But it wasn’t until after World War II, when the legislative branch underwent a sweeping modernization, that lobbyists had to register officially. That original disclosure law effectively let lobbyists decide for themselves whether they needed to register. In the 1970s, as the expansion of federal regulation touched more private interests, the lobbying industry surged. Power in Congress, once held closely by committee chairs, was shared more broadly among rank-and-file members, giving interest groups more openings for influence. And the rise of earmarks provided a host of valuable objectives. By the 1990s, the disclosure rules were so obviously outdated, arcane, ineffective and widely flouted that Congress recognized the need for an overhaul, including a more precise definition of what exactly constituted lobbying.
In 1995, the job of fixing a formal definition fell to the staff of Sen. Carl Levin (D-Mich.), who was championing the Lobbying Disclosure Act. They were focused on finding a meaningful definition that did not unfairly burden the occasional petitioner, such as a CEO making one phone call, according to Linda J. Gustitus, who worked for Levin. Ultimately, the law stipulated that people needed to register only if they contacted more than one government official and if lobbying amounted to at least 20 percent of the time they spent on an individual client.
Levin, knowing how susceptible to abuse this standard could be, proposed an enforcement office that could go after people skirting the rules, but the Senate scrapped that because too many members (and lobbyists) objected. “To set up another organization with more people being employed at the Justice Department really is just not called for,” said Lott, then the Senate majority whip.
By the time Reid rose to present the 2007 reform bill, the flaws in the definition had become the subject of insider ridicule. After his 2004 upset, ex-Senate Majority Leader Tom Daschle (D-S.D.) joined the law and lobbying firm Alston & Bird as a “special policy adviser,” earning as much as $2.1 million a year, but he never registered as a lobbyist. Many started calling the 20 percent threshold the “Daschle loophole.” (Daschle always maintained he wasn’t lobbying because he didn’t directly contact officials.)
Despite the flaw, reformers in 2007 knew picking a fight over the definition of a lobbyist was a fight they would lose. Opponents in Congress and on K Street would call it an administrative burden and an assault on the First Amendment freedom of petition, derailing the entire bill. So even before the process got started, one of the key weaknesses of the existing law already had been placed off-limits. The draft never touched the definition, and there was never so much as a proposed amendment on the issue. “We knew the problem was there. We just couldn’t do anything about it,” recalled Fred Wertheimer, founder of Democracy 21 and a key proponent of the bill. “Let’s keep in mind who wrote these bills: These were members of Congress. I don’t think they’re going to go out of their way to make sure they’re covered.”
Once the debate started, the bipartisan fanfare for the bill ran into heavy skepticism from prominent members of the chamber. Bob Bennett, ranking member on the Rules Committee, warned, “There might be a temptation to overreact.” Bennett, the son of a former senator, already had been through the revolving door four times: from a congressional aide to lobbying for J.C. Penney, to serving in Nixon’s Transportation Department, back to lobbying, and then to the Senate. “The idea of the revolving door is vastly overrated,” Bennett said during the debate on the Senate floor.
Bennett won an amendment to the travel ban that made an exception for nonprofits, ostensibly for educational purposes. But in reality, this carve-out, instantly known as the “AIPAC loophole,” made way for the American Israel Public Affairs Committee as well as countries and companies to fund trips through front groups and shell entities. (AIPAC had 10 lobbyists on staff in 2007 and spent almost $1 million on lobbying that year, including on the lobbying reform law. The organization didn’t respond to requests for comment.) The loophole caused a scandal five years later when former N.Y. Sen. Al D’Amato’s Park Strategies lobbying firm used a Taiwanese university to mount a $20,000 first-class trip for Rep. Bill Owens (D-N.Y.).
Bennett also managed to strike a provision that would lift the veil on “astroturf” campaigns, in which lobbyists drum up the appearance of authentic grass-roots support by surreptitiously mustering people to call their representatives or write boilerplate letters to the editor.
The other senator treading lightly was Trent Lott, by then the minority leader. “Let's do this in a responsible, nonpartisan way that is good for the institution and good for America,” said the Mississippi Republican, who by that point had served in Congress for more than three decades. “But, please, let's not turn it into feckless positioning to make it look good when, in fact, the result could be very counterproductive.”
Lott supported Judd Gregg’s effort to attach a poison-pill rider giving the president power to veto individual budget items-a pet project meant to rein in earmarks and wasteful spending, but a nonstarter with Democrats. In a late-night tirade, Robert Byrd (D-W.Va.) called it “nothing more than legislative blackmail.”
Though the bill was slowly being whittled away, some reform-oriented Democrats still hoped that the reform package would deliver on its crucial promise to curtail the revolving door. To keep former members from trading on contacts inside the chamber to benefit their new clients, the bill proposed doubling the cooling-off period to two years during which former members could not lobby. An amendment from Russ Feingold (D-Wis.), sought to apply the ban to all lobbying “activity,” including prep time and strategizing, not just “contacts” (meetings, phone calls and emails).
“They must refrain from running the show behind the scenes,” Feingold said. “Members who have just left Congress should not be capitalizing on the clout, access and experience they gained here to lobby their colleagues, whether they are doing the lobbying themselves or instructing others.”
That amendment passed - at least for the time being - but others didn’t. Feingold also tried to create an independent enforcement office as Levin had done more than a decade before him, but senior Democrats - Ethics Committee Chairwoman Barbara Boxer (D-Calif.) and Rules Committee Chairwoman Dianne Feinstein (D-Calif.) - objected. “We must make sure this does not simply become a new tool used by political opponents who would seek to manipulate the political process by filing false claims,” Feinstein said.
The bill that had started with such a display of unity was beset by an onslaught of amendments from both parties. Fearing they were losing control over the process, leaders of both parties decided to hurry the bill off the floor and fix it in conference, Bennett said in an interview with POLITICO before he died. “This legislation has been extremely difficult to deal with,” Reid conceded as the bill passed the chamber 96-2 (only Tom Coburn and Orrin Hatch voted against). “It is difficult because it directly affects our lives.”
The bill faced an even rougher road in the House. Speaker Nancy Pelosi and her deputies struggled to rally Democrats to make good on the ethics reform they had promised voters. One staffer compared it to “herding cats.”
In meetings, the rank and file objected loudly to the two-year cooling-off period, ostensibly because it would impede the livelihoods of staffers who face losing their jobs every two years. “It was always couched as, ‘I’m sticking up for my staff,’” the House staffer said, “but not everyone found that to be completely plausible.”
One of the few public and candid acknowledgments of members’ interest in their own future earnings came from Rep. Mike Capuano (D-Mass.): “What makes two years a magical number?” he said to one reporter. “I’m sorry, but I’m not a millionaire.”
So when the bill reached the House Judiciary Committee, Chairman John Conyers (D-Mich.) had to implement the leadership’s read on what would fly in the full chamber. “I have discussed this issue with numerous members on both sides of the aisle, both on and off the committee, who have expressed concerns about the potential unintended consequences on the ability of the members and committees to attract and retain top-flight staff,” he said. Under a manager’s amendment - a composite settled by both sides in advance - he summarily cut back the cooling-off period to one year.
The new text also rejected Feingold’s broadening of the prohibition to lobbying “activity” instead of the more limited lobbying “contacts.” So, not only would the ban last just one year for members of the House - in other words, no change from the current law - it wouldn’t be much of a ban at all.
At the same time, Conyers’ amendment also changed the requirement for disclosing job talks: Instead of making the negotiations public, members would merely have to notify the Ethics Committee, which would keep them confidential. Conyers said he was fixing “a drafting error” - that the negotiations were never meant to be made public.
It was not an error. The whole purpose of the measure was to make the negotiations public, according to the person who drafted it: Craig Holman, the lobbyist for Public Citizen, the nonprofit whose research on the revolving door helped make the case for reform. But Conyers made the change so swiftly that Holman said he didn’t realize the consequences. He thought it was a minor concession to salvage the rest of the measure. “I didn’t catch what that meant,” Holman recalled.
Conyers’ spokeswoman didn’t respond to repeated requests for comment.
Once the declawed bill passed the House, the next step should have been for a conference committee to hash out differences between it and the Senate version, like the cooling-off period, for example. But McConnell wouldn’t allow it. Though nominally a co-sponsor, he sabotaged his own bill by refusing to appoint senators to the conference committee. As BNA reported at the time, McConnell was holding the bill hostage because he wanted to loosen some campaign-finance restrictions (which remains a pet cause of his to this day).
After a few days, McConnell relented. But then, DeMint stepped in with the same blocking maneuver. He refused to let the bill move ahead without the earmark reform that the Senate contemplated and the House omitted. The Senate’s only option was to accept the watered-down House version. It passed on Aug. 2, with a vote of 80-17.
In eight months, Congress had turned a core campaign pledge and top legislative priority into a neutered bill that fundamentally changed nothing. No public disclosure for job negotiations while in office. No disclosure for backroom consultants or grass-roots organizing. No ban on lobbying activity - only on lobbying contacts. A two-year ban in the Senate but still only one year in the House. No revision to the infamous 20 percent loophole. A ban on paid travel, but with a sprawling exemption for nonprofits. No dedicated enforcement mechanism.
“What is before us this morning is the single most sweeping congressional reform bill since Watergate,” Feinstein told her colleagues when the bill returned to the Senate floor. “I support its passage despite the fact that I do not like everything that is in this bill. It is a strong bill. I am sure it is too strong for some and it is too weak for others, but … it is, in effect, to some degree a compromise.”
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Jack Abramoff sat in his prison cell and read the text that President George W. Bush signed into law in September 2007. To the man who once entertained officials at his own sushi restaurant on Pennsylvania Avenue, treated lawmakers to courtside Wizards tickets and a deluxe skybox at FedEx Field, and flew Rep. Bob Ney and House Majority Leader Tom DeLay on golfing trips to Scotland-the man whose many misdeeds had brought about the new rules-it was immediately apparent all the ways that lobbyists could and would sidestep them.
Lobbyists could no longer pick up the tab for meals or give officials complimentary sports tickets. So they found new ways to entertain: fundraisers.
“Is corruption in Washington really ended by forbidding representatives from accepting free meals and, instead, permitting them to gorge to their heart’s content, as long as it’s at a fundraising event-where they’ll also pocket thousands of dollars in contributions?” Abramoff wrote in his memoir, Capitol Punishment. “This is the kind of reform Congress proposes, passes, and then congratulates itself about?”
Abramoff’s foresight was perfect: Last December alone, Reps. Ted Poe (R-Texas), Bill Huizenga (R-Mich.), Fred Upton (R-Mich.), Tim Walberg (R-Mich.) and Dan Kildee (D-Mich.) held events at the Verizon Center, inviting lobbyists and the PACs they control to pay for the event, contribute to reelection campaigns, and enjoy privileged access while watching the Capitals beat the Detroit Red Wings and the Wizards lose to the Houston Rockets. This April, Tim Walz (D-Minn.), John Garamendi (D-Calif.), Brian Higgins (D-N.Y.) and Don Beyer (D-Va.) had fundraisers at Nationals Park. Garamendi booked a Lincoln Suite, which holds 24 people and goes for more than $4,300 a night. The Nats lost to the Phillies.
It wasn’t long before key lawmakers started benefiting from the provisions they themselves helped weaken. Bennett, the ranking Republican on the Senate Rules Committee who added the AIPAC loophole and killed the grass-roots disclosure, went right back through the revolving door - for the fifth time - to become a lobbyist at Arent Fox. Though he registered, he told POLITICO that he knew colleagues who avoid it by passing work off to others when they approach the 20 percent mark.
DeMint, whose blocking maneuver forced the Senate to accept the House’s weakened version, became president of The Heritage Foundation, the influential conservative think tank. He landed the job while still in office, and kept those negotiations confidential, thanks to the weakened House provision he forced the Senate to accept.
On the key House committees that reviewed the bill, a majority of those who since left Congress are now lobbyists or professional influencers: eight of the 15 members who left the Judiciary Committee, and four of seven from the Rules Committee. They include Bill Delahunt (D-Mass.), who started his own firm; Howard Berman (D-Calif.), who went to Covington & Burling; and Dennis Cardoza (D-Calif.), who became a lobbyist with Foley & Lardner. Cardoza, who was not present for the Judiciary markup, told POLITICO that considerations of his own future didn’t affect his views on the bill, and he didn’t think about his post-congressional career until he left Congress. But, in fact, he was negotiating his job for weeks before he left office. “Many of my clients are people who in the past I was very involved in their issues,” he said.
Lott resigned on Dec. 18, 2007, a few days before the reform law took effect, which would have subjected him to the Senate’s two-year cooling-off period. (Lott said he decided to retire years earlier but stayed to help with the recovery from Hurricane Katrina. He voted against the final version of the bill.) He started a lobbying firm with his colleague, former Sen. John Breaux (D-La.), who had retired in 2005. Their shop was absorbed later by the international law firm Squire Patton Boggs, and the group they co-chair reaped $24.9 million in lobbying income last year. Lott and Breaux are among the highest-grossing former members, according to an analysis by the Center for Responsive Politics for POLITICO. Their biggest clients include Nissan, Airlines for America, Goldman Sachs and SpaceX.
“I couldn’t do a divorce case now, let alone try a case,” Lott told POLITICO, “so I’m doing what I know how to do.”
The weakness of the lobbying ban (one year for House members, two years for senators) was underscored when Sen. Mary Landrieu (D-La.) lost her 2014 reelection campaign and instantly became a hot target for K Street headhunters during the lame-duck session. Landrieu downplayed reports of a “bidding war” but acknowledged having a handful of suitors. She chose Van Ness Feldman because she liked working with them while in office. The firm represented TransCanada, the company behind the Keystone XL pipeline, which the senator from the oil-rich state went to great lengths to support. But Landrieu said she never worked for that client. She did, however, swiftly register to lobby for a Louisiana university and a moribund “clean coal” project. Landrieu can’t lobby Congress during her two-year cooling-off period, but she can and does lobby the administration, namely the Energy Department and Office of Management and Budget. She also started advising oil companies Shell and Noble.
The only impediment that the 2007 reform placed for Landrieu and other lawmakers-turned-lobbyists was that they lost access to the Senate floor, private gym and parking lot. But those were places in which they were already forbidden from lobbying; while some did use the spaces to corner former colleagues, it was generally treated as taboo.
Plus, there was a simple way for former members to retain all their privileges: not register to lobby. Whereas before there had been no downside to registering, now it carried a host of complex rules and obligations (not to mention stigma). Not registering was a way to avoid all that -with no fear of repercussions because there was no real threat of prosecution.
Since the reform law went into effect, former members have been named on lobbying contracts worth $2.1 billion, according the Center for Responsive Politics’ analysis. They draw a premium of more than $100,000 above any other type of former official, according to a separate unpublished study by professor Tim LaPira of James Madison University, which has not yet been peer-reviewed. Former members make up just 1 percent of the capital's lobbyists but are tied to 8 percent of total lobbying spending - almost $245 million last year, the nonprofit CRP’s analysis showed. It’s impossible to know precisely how many millions more remain invisible because so many former members aren’t registered.
“What we don’t have now is members turning into lobbyists explicitly very shortly after their tenure,” said John Wonderlich, policy director of the government transparency watchdog group the Sunlight Foundation. “What we have now is members turning into public affairs consultants or strategic advisers. The law got rid of the most unseemly parts of how wealth is able to buy access, but it didn’t fix them.”
Those who are scrupulous about avoiding registration may use time-tracking software, such as an Outlook calendar or a spreadsheet, to make sure they don’t cross the 20 percent threshold. At large law firms, compliance officers will make sure everyone who needs to register does. But not everyone is so scrupulous because federal investigators almost certainly won’t check.
The more common way for former members to avoid registering, even while spending unlimited time lobbying, is to have someone else contact officials in their stead. Bob Dole, who worked part-time at Alston & Bird after retiring from the Senate, once left the room when a current senator joined a conference call so that he wouldn’t notch a lobbying contact, according to another person who was there. An aide to Dole said he doesn't recall the incident and does register for clients when required.
Political law experts disagree whether a colleague can invoke a former member’s name to get a meeting without that counting as a lobbying contact for that former member. Some say it doesn’t count as a lobbying contact if it’s the current member who reaches out to the former lawmaker.
Daschle became the poster child for not registering while at Alston & Bird, DLA Piper and eventually his own shop within Baker Donelson. Former colleagues said Daschle avoided registering in case he decided to return to public office, where a lobbying job would be considered a liability. Only in March, after it became clear that a return to government wasn’t likely, did Daschle register as a lobbyist for the first time, to represent health insurer Aetna.
Judd Gregg, after trying to kill the reform bill with his line-item veto rider and retiring in 2011, bristles at being called a lobbyist and never registered as one, but he did become head of the Securities Industry and Financial Markets Association. The Wall Street trade group known as SIFMA spent more than $5 million a year on lobbying with Gregg at the helm, and he took home $1.7 million. Gregg said he oversaw the organization’s lobbyists but never directly contacted any officials. Today, he advocates for atomic power for the industry-funded group Nuclear Matters and advises Edelman, the PR powerhouse with a major political portfolio.
Obama gave the influence industry another perverse incentive to avoid registering when he barred lobbyists from joining his administration and required those who did to pledge not to become lobbyists afterward. Ray LaHood, Obama’s first transportation secretary and a former congressman from Illinois, is now a senior policy adviser at DLA Piper, helping clients including Hyundai and Accenture come up with game plans, but he leaves the calls and meetings to others.
Similarly, former House Ways and Means Committee Chairman Dave Camp (R-Mich.) now works in PricewaterhouseCoopers’ Washington National Tax Services group, whose lobbying clients include Business Roundtable, Tyco International (an Irish company that recently merged with an American rival to slash their combined tax bill) and the Master Limited Partnership Association (defender of a massive business tax loophole). A spokeswoman says Camp has no plans to lobby.
As Duke Energy’s senior vice president of government affairs, former Rep. Heath Shuler (D-N.C.) oversees the power company’s lobbyists but doesn’t go to the Hill himself, a spokesman said. “I don’t do much lobbying,” said former Rep. Bill Owens (D-N.Y), a senior adviser in the public policy and regulation practice at the law firm Dentons.
Newt Gingrich is in the same position. The former speaker took heat during his presidential campaign in 2012 for consulting work he did for Freddie Mac and Fannie Mae; after leaving office, his consultancy signed a $25,000-per-month contract with Freddie Mac. Gingrich insisted he was never a lobbyist, and technically he was right, but only because he anticipated the future political liability and hired a lawyer named Tom Susman to work with his schedulers to make sure he stayed under the 20 percent threshold.
Susman, now a lobbyist with the American Bar Association, suggested former lawmakers shouldn’t enjoy the same leeway as business leaders who occasionally call an official - they should have to register for any lobbying.
“The public interest is not on the corporate executive who flies into town for one meeting, but we do care about the former transportation appropriations subcommittee chair spending 19 percent of his or her time lobbying and not having to register,” Susman said. “Because we know they have better access.”
Susman and Public Citizen’s Holman have been trying to introduce a rule to require disclosure of all support staff, which would reveal the people “running the show behind the scenes,” as Feingold tried unsuccessfully to do. But they’re stalled on finding a Republican cosponsor.
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No one has ever been punished for lobbying without registering. The only risk of consequences is for registered lobbyists who mess up their paperwork, and even that risk is remote.
When both chambers rejected the proposal to create an independent investigator, they made the House clerk and Senate secretary responsible for collecting lobbying disclosures and notifying the U.S. Attorney’s Office for the District of Columbia about any missing paperwork. Pursuing those referrals falls to a team of five attorneys, one investigator and one auditor who also juggle 100 active cases trying to recover damages from people suspected of defrauding the government in benefits or contracts.
“We have a lot to do here - we’re prosecuting major crimes, major frauds, we’re defending the government in major challenges to government programs, dealing with Freedom of Information Act requests, and on the criminal side everything from misdemeanors to homicides,” said Keith Morgan, the deputy chief of the civil division who oversees lobbying enforcement.
Since 2008, Morgan’s group has brought six civil cases against lobbyists, winning $480,000 from five settlements and one default judgment. All the fines were for registered lobbyists who were sloppy with their filings. The USAO has also gotten referrals about people lobbying without registering - from rival lobbyists, political opponents or government agencies. Prosecutors considered the cases but ran up against the Daschle loophole and declined to proceed.
“A lot of times, it is true somebody is lobbying and not registered, but we have not been able to establish that its been more than 20 percent of their time,” Morgan said. Doing so would probably require a whistle-blower who can show billing records and time logs from the inside, he said. Short of that, prosecutors probably couldn’t justify opening an investigation or issuing subpoenas.
Criminal charges are even harder. The 2007 reform law added criminal penalties of up to five years in prison, but they’ve never been applied - the language of the statute requires proving beyond a reasonable doubt that someone broke the rules “knowingly and corruptly.”
“When you have a requirement to report 20 percent of your time, and you have language that says ‘corruptly,’ it’s very difficult to bring criminal prosecutions,” said Vincent H. Cohen Jr., a former acting U.S. attorney in Washington, who now works at the law firm Dechert.
When the bill was in markup in 2007, the House Judiciary Committee considered making criminal offenses even harder to pursue. Rep. Louie Gohmert (R-Texas) said he feared overzealous prosecutors eager “to have the scalps of members of Congress.” He wanted them to have to prove “intent to evade the law.” Conyers, the chairman, fended him off, suggesting the burden of proof was already high enough.
Gohmert was probably overreacting. None of the six lobbying cases to date have involved former members of Congress.
“I have to deal with what the statute says and the resources that we have,” said Morgan, the deputy chief. “I can’t speak to how the laws are written. That’s up to Congress.”
Read more: http://www.politico.com/story/2016/06/the-lobbying-reform-that-enriched-congress-224849#ixzz4DaCtcGnH
Nine years after Congress tried to halt the revolving door, the influence industry is larger and filled with former members. This wasn't an accident.
Congress was in no rush to reform itself in the early 2000s, even as more and more of its members decamped for the lobbying world and started collecting fat paychecks. But the 2005 arrest of “super lobbyist” Jack Abramoff shamed Congress into action. Abramoff bared the worst excesses of the capital’s influence industry, brazenly feting lawmakers with golf trips to Scotland, sushi dinners and campaign contributions, opening the door for lobbyists to write legislation themselves. House Majority Leader Tom DeLay (R-Texas) resigned, and Ohio Rep. Bob Ney went to prison. Democrats seized on the chaos to retake both chambers, promising voters they’d change what they called a “culture of corruption.”
Their attempt to make good on that promise, the Honest Leadership and Open Government Act of 2007, was embraced by both parties as a historic breakthrough. “This legislation will slow the revolving door that shuffles lawmakers and top staff between federal jobs and the private sector,” Harry Reid, newly the Senate majority leader, said of the lobbying reform law. Sen. Susan Collins, the Maine Republican, added, “This bill, then, is a critical part of restoring the people’s trust by reforming ethics and lobbying rules.”
Instead, it made things worse.
Nine years later, the result of the law is very nearly the opposite of what the American public was told it was getting at the time. Not only did the lobbying reform bill fail to slow the revolving door, it created an entire class of professional influencers who operate in the shadows, out of the public eye and unaccountable. Of the 352 people who left Congress alive since the law took effect in January 2008, POLITICO found that almost half (47 percent) have joined the influence industry: 84 as registered lobbyists and 80 others as policy advisers, strategic consultants, trade association chiefs, corporate government relations executives, affiliates of agenda-driven research institutes and leaders of political action committees or pressure groups. Taken as a whole, more former lawmakers are influencing policy and public opinion now than before the reform was enacted: in a six-year period before the law, watchdog group Public Citizen found 43 percent of former lawmakers became lobbyists.
There is less transparency because some former lawmakers don’t need to register because lobbying is just one slice of how special interests shape laws in Washington today. Efforts to influence federal policy increasingly resemble campaigns with communications, social media, research, polling and mobilizing constituents. Each of those elements cost money, and create demand for former members’ expertise, but only lobbying is publicly disclosed.
Other times, it’s hard to tell the difference between the job descriptions of former members who are registered to lobby and those who aren’t. That’s because the reform law provided weak rules and even weaker enforcement. It added criminal penalties but made them so hard to prosecute they’ve never been tried.
The revolving-door rules were made so porous that members could go directly to lobby firms and nurture their relationships with former colleagues - as long as they didn't talk business for at least a year. Rep. Steve Southerland (R-Fla.), who joined a lobbying firm five months after losing in 2014, said he preferred to keep up with old colleagues in the privacy of the Capitol Hill Club, knowing reporters might relish spotting him leaving a congressional office. (Southerland said he fully complied with the one-year lobbying ban and registered to lobby when it expired.)
“I never went away, I just went invisible, and probably became more effective,” Southerland told POLITICO. “I’ve enjoyed being off the grid.”
This is not another story about best intentions and unforeseen consequences. The 2007 law was deliberately watered down by lawmakers concerned about their own job prospects, POLITICO has learned from dozens of interviews with former legislators and staffers. Those lawmakers made sure that their departing colleagues could secretly negotiate lucrative new jobs and orchestrate lobbying from behind the scenes without fear of detection or punishment. Many of the lawmakers who shaped the bill - including Sens. Trent Lott (R-Miss.), the late Bob Bennett (R-Utah), Judd Gregg (R-N.H.), and Jim DeMint (R-S.C), and Rep. Dennis Cardoza (D-Calif.) - then went on to join the influence economy themselves.
The revolving door is about to enter peak season. Already 42 members of Congress have resigned, lost or announced plans to leave by January, and some are already talking with prospective future employers - all perfectly permissible and confidential, thanks to weaknesses engineered into the post-Abramoff reform law. These members know they can command a premium - $100,000 more than other lobbyists, according to a new study - from an industry that values the access they can provide to the halls of power.
“They have succeeded in poking various holes,” said Craig Holman, a lobbyist at Public Citizen and one of the bill’s leading proponents, “so that even though we were phenomenally successful at first, we have gone back a big step.”
***
“Today we govern, and we start with S. 1,” Harry Reid said as he introduced the lobbying reform bill on Jan. 8, 2007. That designation carried symbolic importance, he said: Not only was it the chamber’s first order of business, but it had an unlikely cosponsor - Mitch McConnell, the Senate’s minority leader. It marked the first time in 32 years that the leadership of both parties agreed to cooperate on the Senate’s momentous first bill.
The lobbying legislation came first, Reid proclaimed, because voters demanded it. “Americans want us to purge the government of undue influence,” he said, “and they want us to eliminate the conditions that led to the scandal-making headlines of last year and 2005: headlines about officials being flown to Scotland for rounds of golf; headlines about committee chairmen negotiating lucrative lobbying jobs with the industries they were to oversee while working on legislation important to those industries; and, of course, headlines about pay-to-play schemes such as the infamous K Street Project, where jobs and campaign donations were traded for legislation and other official acts.”
In Reid’s telling, the bill before the Senate would outlaw paid travel like Abramoff’s infamous junkets; increase the frequency of lobbying disclosures; impose “stiff new penalties”; make it harder to sneak in pork-barrel spending; and, critically, “slow the revolving door” by requiring members of Congress to publicly reveal their job negotiations and lose floor privileges if they were to become lobbyists. The bill also proposed a cooling-off period that would prohibit lawmakers and top staff from becoming lobbyists for two years instead of one.
Lobbying is as old as the Republic; the term is widely (though falsely) attributed to the businessmen who angled to catch President Ulysses S. Grant in the lobby of the Willard Hotel. But it wasn’t until after World War II, when the legislative branch underwent a sweeping modernization, that lobbyists had to register officially. That original disclosure law effectively let lobbyists decide for themselves whether they needed to register. In the 1970s, as the expansion of federal regulation touched more private interests, the lobbying industry surged. Power in Congress, once held closely by committee chairs, was shared more broadly among rank-and-file members, giving interest groups more openings for influence. And the rise of earmarks provided a host of valuable objectives. By the 1990s, the disclosure rules were so obviously outdated, arcane, ineffective and widely flouted that Congress recognized the need for an overhaul, including a more precise definition of what exactly constituted lobbying.
In 1995, the job of fixing a formal definition fell to the staff of Sen. Carl Levin (D-Mich.), who was championing the Lobbying Disclosure Act. They were focused on finding a meaningful definition that did not unfairly burden the occasional petitioner, such as a CEO making one phone call, according to Linda J. Gustitus, who worked for Levin. Ultimately, the law stipulated that people needed to register only if they contacted more than one government official and if lobbying amounted to at least 20 percent of the time they spent on an individual client.
Levin, knowing how susceptible to abuse this standard could be, proposed an enforcement office that could go after people skirting the rules, but the Senate scrapped that because too many members (and lobbyists) objected. “To set up another organization with more people being employed at the Justice Department really is just not called for,” said Lott, then the Senate majority whip.
By the time Reid rose to present the 2007 reform bill, the flaws in the definition had become the subject of insider ridicule. After his 2004 upset, ex-Senate Majority Leader Tom Daschle (D-S.D.) joined the law and lobbying firm Alston & Bird as a “special policy adviser,” earning as much as $2.1 million a year, but he never registered as a lobbyist. Many started calling the 20 percent threshold the “Daschle loophole.” (Daschle always maintained he wasn’t lobbying because he didn’t directly contact officials.)
Despite the flaw, reformers in 2007 knew picking a fight over the definition of a lobbyist was a fight they would lose. Opponents in Congress and on K Street would call it an administrative burden and an assault on the First Amendment freedom of petition, derailing the entire bill. So even before the process got started, one of the key weaknesses of the existing law already had been placed off-limits. The draft never touched the definition, and there was never so much as a proposed amendment on the issue. “We knew the problem was there. We just couldn’t do anything about it,” recalled Fred Wertheimer, founder of Democracy 21 and a key proponent of the bill. “Let’s keep in mind who wrote these bills: These were members of Congress. I don’t think they’re going to go out of their way to make sure they’re covered.”
Once the debate started, the bipartisan fanfare for the bill ran into heavy skepticism from prominent members of the chamber. Bob Bennett, ranking member on the Rules Committee, warned, “There might be a temptation to overreact.” Bennett, the son of a former senator, already had been through the revolving door four times: from a congressional aide to lobbying for J.C. Penney, to serving in Nixon’s Transportation Department, back to lobbying, and then to the Senate. “The idea of the revolving door is vastly overrated,” Bennett said during the debate on the Senate floor.
Bennett won an amendment to the travel ban that made an exception for nonprofits, ostensibly for educational purposes. But in reality, this carve-out, instantly known as the “AIPAC loophole,” made way for the American Israel Public Affairs Committee as well as countries and companies to fund trips through front groups and shell entities. (AIPAC had 10 lobbyists on staff in 2007 and spent almost $1 million on lobbying that year, including on the lobbying reform law. The organization didn’t respond to requests for comment.) The loophole caused a scandal five years later when former N.Y. Sen. Al D’Amato’s Park Strategies lobbying firm used a Taiwanese university to mount a $20,000 first-class trip for Rep. Bill Owens (D-N.Y.).
Bennett also managed to strike a provision that would lift the veil on “astroturf” campaigns, in which lobbyists drum up the appearance of authentic grass-roots support by surreptitiously mustering people to call their representatives or write boilerplate letters to the editor.
The other senator treading lightly was Trent Lott, by then the minority leader. “Let's do this in a responsible, nonpartisan way that is good for the institution and good for America,” said the Mississippi Republican, who by that point had served in Congress for more than three decades. “But, please, let's not turn it into feckless positioning to make it look good when, in fact, the result could be very counterproductive.”
Lott supported Judd Gregg’s effort to attach a poison-pill rider giving the president power to veto individual budget items-a pet project meant to rein in earmarks and wasteful spending, but a nonstarter with Democrats. In a late-night tirade, Robert Byrd (D-W.Va.) called it “nothing more than legislative blackmail.”
Though the bill was slowly being whittled away, some reform-oriented Democrats still hoped that the reform package would deliver on its crucial promise to curtail the revolving door. To keep former members from trading on contacts inside the chamber to benefit their new clients, the bill proposed doubling the cooling-off period to two years during which former members could not lobby. An amendment from Russ Feingold (D-Wis.), sought to apply the ban to all lobbying “activity,” including prep time and strategizing, not just “contacts” (meetings, phone calls and emails).
“They must refrain from running the show behind the scenes,” Feingold said. “Members who have just left Congress should not be capitalizing on the clout, access and experience they gained here to lobby their colleagues, whether they are doing the lobbying themselves or instructing others.”
That amendment passed - at least for the time being - but others didn’t. Feingold also tried to create an independent enforcement office as Levin had done more than a decade before him, but senior Democrats - Ethics Committee Chairwoman Barbara Boxer (D-Calif.) and Rules Committee Chairwoman Dianne Feinstein (D-Calif.) - objected. “We must make sure this does not simply become a new tool used by political opponents who would seek to manipulate the political process by filing false claims,” Feinstein said.
The bill that had started with such a display of unity was beset by an onslaught of amendments from both parties. Fearing they were losing control over the process, leaders of both parties decided to hurry the bill off the floor and fix it in conference, Bennett said in an interview with POLITICO before he died. “This legislation has been extremely difficult to deal with,” Reid conceded as the bill passed the chamber 96-2 (only Tom Coburn and Orrin Hatch voted against). “It is difficult because it directly affects our lives.”
The bill faced an even rougher road in the House. Speaker Nancy Pelosi and her deputies struggled to rally Democrats to make good on the ethics reform they had promised voters. One staffer compared it to “herding cats.”
In meetings, the rank and file objected loudly to the two-year cooling-off period, ostensibly because it would impede the livelihoods of staffers who face losing their jobs every two years. “It was always couched as, ‘I’m sticking up for my staff,’” the House staffer said, “but not everyone found that to be completely plausible.”
One of the few public and candid acknowledgments of members’ interest in their own future earnings came from Rep. Mike Capuano (D-Mass.): “What makes two years a magical number?” he said to one reporter. “I’m sorry, but I’m not a millionaire.”
So when the bill reached the House Judiciary Committee, Chairman John Conyers (D-Mich.) had to implement the leadership’s read on what would fly in the full chamber. “I have discussed this issue with numerous members on both sides of the aisle, both on and off the committee, who have expressed concerns about the potential unintended consequences on the ability of the members and committees to attract and retain top-flight staff,” he said. Under a manager’s amendment - a composite settled by both sides in advance - he summarily cut back the cooling-off period to one year.
The new text also rejected Feingold’s broadening of the prohibition to lobbying “activity” instead of the more limited lobbying “contacts.” So, not only would the ban last just one year for members of the House - in other words, no change from the current law - it wouldn’t be much of a ban at all.
At the same time, Conyers’ amendment also changed the requirement for disclosing job talks: Instead of making the negotiations public, members would merely have to notify the Ethics Committee, which would keep them confidential. Conyers said he was fixing “a drafting error” - that the negotiations were never meant to be made public.
It was not an error. The whole purpose of the measure was to make the negotiations public, according to the person who drafted it: Craig Holman, the lobbyist for Public Citizen, the nonprofit whose research on the revolving door helped make the case for reform. But Conyers made the change so swiftly that Holman said he didn’t realize the consequences. He thought it was a minor concession to salvage the rest of the measure. “I didn’t catch what that meant,” Holman recalled.
Conyers’ spokeswoman didn’t respond to repeated requests for comment.
Once the declawed bill passed the House, the next step should have been for a conference committee to hash out differences between it and the Senate version, like the cooling-off period, for example. But McConnell wouldn’t allow it. Though nominally a co-sponsor, he sabotaged his own bill by refusing to appoint senators to the conference committee. As BNA reported at the time, McConnell was holding the bill hostage because he wanted to loosen some campaign-finance restrictions (which remains a pet cause of his to this day).
After a few days, McConnell relented. But then, DeMint stepped in with the same blocking maneuver. He refused to let the bill move ahead without the earmark reform that the Senate contemplated and the House omitted. The Senate’s only option was to accept the watered-down House version. It passed on Aug. 2, with a vote of 80-17.
In eight months, Congress had turned a core campaign pledge and top legislative priority into a neutered bill that fundamentally changed nothing. No public disclosure for job negotiations while in office. No disclosure for backroom consultants or grass-roots organizing. No ban on lobbying activity - only on lobbying contacts. A two-year ban in the Senate but still only one year in the House. No revision to the infamous 20 percent loophole. A ban on paid travel, but with a sprawling exemption for nonprofits. No dedicated enforcement mechanism.
“What is before us this morning is the single most sweeping congressional reform bill since Watergate,” Feinstein told her colleagues when the bill returned to the Senate floor. “I support its passage despite the fact that I do not like everything that is in this bill. It is a strong bill. I am sure it is too strong for some and it is too weak for others, but … it is, in effect, to some degree a compromise.”
***
Jack Abramoff sat in his prison cell and read the text that President George W. Bush signed into law in September 2007. To the man who once entertained officials at his own sushi restaurant on Pennsylvania Avenue, treated lawmakers to courtside Wizards tickets and a deluxe skybox at FedEx Field, and flew Rep. Bob Ney and House Majority Leader Tom DeLay on golfing trips to Scotland-the man whose many misdeeds had brought about the new rules-it was immediately apparent all the ways that lobbyists could and would sidestep them.
Lobbyists could no longer pick up the tab for meals or give officials complimentary sports tickets. So they found new ways to entertain: fundraisers.
“Is corruption in Washington really ended by forbidding representatives from accepting free meals and, instead, permitting them to gorge to their heart’s content, as long as it’s at a fundraising event-where they’ll also pocket thousands of dollars in contributions?” Abramoff wrote in his memoir, Capitol Punishment. “This is the kind of reform Congress proposes, passes, and then congratulates itself about?”
Abramoff’s foresight was perfect: Last December alone, Reps. Ted Poe (R-Texas), Bill Huizenga (R-Mich.), Fred Upton (R-Mich.), Tim Walberg (R-Mich.) and Dan Kildee (D-Mich.) held events at the Verizon Center, inviting lobbyists and the PACs they control to pay for the event, contribute to reelection campaigns, and enjoy privileged access while watching the Capitals beat the Detroit Red Wings and the Wizards lose to the Houston Rockets. This April, Tim Walz (D-Minn.), John Garamendi (D-Calif.), Brian Higgins (D-N.Y.) and Don Beyer (D-Va.) had fundraisers at Nationals Park. Garamendi booked a Lincoln Suite, which holds 24 people and goes for more than $4,300 a night. The Nats lost to the Phillies.
It wasn’t long before key lawmakers started benefiting from the provisions they themselves helped weaken. Bennett, the ranking Republican on the Senate Rules Committee who added the AIPAC loophole and killed the grass-roots disclosure, went right back through the revolving door - for the fifth time - to become a lobbyist at Arent Fox. Though he registered, he told POLITICO that he knew colleagues who avoid it by passing work off to others when they approach the 20 percent mark.
DeMint, whose blocking maneuver forced the Senate to accept the House’s weakened version, became president of The Heritage Foundation, the influential conservative think tank. He landed the job while still in office, and kept those negotiations confidential, thanks to the weakened House provision he forced the Senate to accept.
On the key House committees that reviewed the bill, a majority of those who since left Congress are now lobbyists or professional influencers: eight of the 15 members who left the Judiciary Committee, and four of seven from the Rules Committee. They include Bill Delahunt (D-Mass.), who started his own firm; Howard Berman (D-Calif.), who went to Covington & Burling; and Dennis Cardoza (D-Calif.), who became a lobbyist with Foley & Lardner. Cardoza, who was not present for the Judiciary markup, told POLITICO that considerations of his own future didn’t affect his views on the bill, and he didn’t think about his post-congressional career until he left Congress. But, in fact, he was negotiating his job for weeks before he left office. “Many of my clients are people who in the past I was very involved in their issues,” he said.
Lott resigned on Dec. 18, 2007, a few days before the reform law took effect, which would have subjected him to the Senate’s two-year cooling-off period. (Lott said he decided to retire years earlier but stayed to help with the recovery from Hurricane Katrina. He voted against the final version of the bill.) He started a lobbying firm with his colleague, former Sen. John Breaux (D-La.), who had retired in 2005. Their shop was absorbed later by the international law firm Squire Patton Boggs, and the group they co-chair reaped $24.9 million in lobbying income last year. Lott and Breaux are among the highest-grossing former members, according to an analysis by the Center for Responsive Politics for POLITICO. Their biggest clients include Nissan, Airlines for America, Goldman Sachs and SpaceX.
“I couldn’t do a divorce case now, let alone try a case,” Lott told POLITICO, “so I’m doing what I know how to do.”
The weakness of the lobbying ban (one year for House members, two years for senators) was underscored when Sen. Mary Landrieu (D-La.) lost her 2014 reelection campaign and instantly became a hot target for K Street headhunters during the lame-duck session. Landrieu downplayed reports of a “bidding war” but acknowledged having a handful of suitors. She chose Van Ness Feldman because she liked working with them while in office. The firm represented TransCanada, the company behind the Keystone XL pipeline, which the senator from the oil-rich state went to great lengths to support. But Landrieu said she never worked for that client. She did, however, swiftly register to lobby for a Louisiana university and a moribund “clean coal” project. Landrieu can’t lobby Congress during her two-year cooling-off period, but she can and does lobby the administration, namely the Energy Department and Office of Management and Budget. She also started advising oil companies Shell and Noble.
The only impediment that the 2007 reform placed for Landrieu and other lawmakers-turned-lobbyists was that they lost access to the Senate floor, private gym and parking lot. But those were places in which they were already forbidden from lobbying; while some did use the spaces to corner former colleagues, it was generally treated as taboo.
Plus, there was a simple way for former members to retain all their privileges: not register to lobby. Whereas before there had been no downside to registering, now it carried a host of complex rules and obligations (not to mention stigma). Not registering was a way to avoid all that -with no fear of repercussions because there was no real threat of prosecution.
Since the reform law went into effect, former members have been named on lobbying contracts worth $2.1 billion, according the Center for Responsive Politics’ analysis. They draw a premium of more than $100,000 above any other type of former official, according to a separate unpublished study by professor Tim LaPira of James Madison University, which has not yet been peer-reviewed. Former members make up just 1 percent of the capital's lobbyists but are tied to 8 percent of total lobbying spending - almost $245 million last year, the nonprofit CRP’s analysis showed. It’s impossible to know precisely how many millions more remain invisible because so many former members aren’t registered.
“What we don’t have now is members turning into lobbyists explicitly very shortly after their tenure,” said John Wonderlich, policy director of the government transparency watchdog group the Sunlight Foundation. “What we have now is members turning into public affairs consultants or strategic advisers. The law got rid of the most unseemly parts of how wealth is able to buy access, but it didn’t fix them.”
Those who are scrupulous about avoiding registration may use time-tracking software, such as an Outlook calendar or a spreadsheet, to make sure they don’t cross the 20 percent threshold. At large law firms, compliance officers will make sure everyone who needs to register does. But not everyone is so scrupulous because federal investigators almost certainly won’t check.
The more common way for former members to avoid registering, even while spending unlimited time lobbying, is to have someone else contact officials in their stead. Bob Dole, who worked part-time at Alston & Bird after retiring from the Senate, once left the room when a current senator joined a conference call so that he wouldn’t notch a lobbying contact, according to another person who was there. An aide to Dole said he doesn't recall the incident and does register for clients when required.
Political law experts disagree whether a colleague can invoke a former member’s name to get a meeting without that counting as a lobbying contact for that former member. Some say it doesn’t count as a lobbying contact if it’s the current member who reaches out to the former lawmaker.
Daschle became the poster child for not registering while at Alston & Bird, DLA Piper and eventually his own shop within Baker Donelson. Former colleagues said Daschle avoided registering in case he decided to return to public office, where a lobbying job would be considered a liability. Only in March, after it became clear that a return to government wasn’t likely, did Daschle register as a lobbyist for the first time, to represent health insurer Aetna.
Judd Gregg, after trying to kill the reform bill with his line-item veto rider and retiring in 2011, bristles at being called a lobbyist and never registered as one, but he did become head of the Securities Industry and Financial Markets Association. The Wall Street trade group known as SIFMA spent more than $5 million a year on lobbying with Gregg at the helm, and he took home $1.7 million. Gregg said he oversaw the organization’s lobbyists but never directly contacted any officials. Today, he advocates for atomic power for the industry-funded group Nuclear Matters and advises Edelman, the PR powerhouse with a major political portfolio.
Obama gave the influence industry another perverse incentive to avoid registering when he barred lobbyists from joining his administration and required those who did to pledge not to become lobbyists afterward. Ray LaHood, Obama’s first transportation secretary and a former congressman from Illinois, is now a senior policy adviser at DLA Piper, helping clients including Hyundai and Accenture come up with game plans, but he leaves the calls and meetings to others.
Similarly, former House Ways and Means Committee Chairman Dave Camp (R-Mich.) now works in PricewaterhouseCoopers’ Washington National Tax Services group, whose lobbying clients include Business Roundtable, Tyco International (an Irish company that recently merged with an American rival to slash their combined tax bill) and the Master Limited Partnership Association (defender of a massive business tax loophole). A spokeswoman says Camp has no plans to lobby.
As Duke Energy’s senior vice president of government affairs, former Rep. Heath Shuler (D-N.C.) oversees the power company’s lobbyists but doesn’t go to the Hill himself, a spokesman said. “I don’t do much lobbying,” said former Rep. Bill Owens (D-N.Y), a senior adviser in the public policy and regulation practice at the law firm Dentons.
Newt Gingrich is in the same position. The former speaker took heat during his presidential campaign in 2012 for consulting work he did for Freddie Mac and Fannie Mae; after leaving office, his consultancy signed a $25,000-per-month contract with Freddie Mac. Gingrich insisted he was never a lobbyist, and technically he was right, but only because he anticipated the future political liability and hired a lawyer named Tom Susman to work with his schedulers to make sure he stayed under the 20 percent threshold.
Susman, now a lobbyist with the American Bar Association, suggested former lawmakers shouldn’t enjoy the same leeway as business leaders who occasionally call an official - they should have to register for any lobbying.
“The public interest is not on the corporate executive who flies into town for one meeting, but we do care about the former transportation appropriations subcommittee chair spending 19 percent of his or her time lobbying and not having to register,” Susman said. “Because we know they have better access.”
Susman and Public Citizen’s Holman have been trying to introduce a rule to require disclosure of all support staff, which would reveal the people “running the show behind the scenes,” as Feingold tried unsuccessfully to do. But they’re stalled on finding a Republican cosponsor.
***
No one has ever been punished for lobbying without registering. The only risk of consequences is for registered lobbyists who mess up their paperwork, and even that risk is remote.
When both chambers rejected the proposal to create an independent investigator, they made the House clerk and Senate secretary responsible for collecting lobbying disclosures and notifying the U.S. Attorney’s Office for the District of Columbia about any missing paperwork. Pursuing those referrals falls to a team of five attorneys, one investigator and one auditor who also juggle 100 active cases trying to recover damages from people suspected of defrauding the government in benefits or contracts.
“We have a lot to do here - we’re prosecuting major crimes, major frauds, we’re defending the government in major challenges to government programs, dealing with Freedom of Information Act requests, and on the criminal side everything from misdemeanors to homicides,” said Keith Morgan, the deputy chief of the civil division who oversees lobbying enforcement.
Since 2008, Morgan’s group has brought six civil cases against lobbyists, winning $480,000 from five settlements and one default judgment. All the fines were for registered lobbyists who were sloppy with their filings. The USAO has also gotten referrals about people lobbying without registering - from rival lobbyists, political opponents or government agencies. Prosecutors considered the cases but ran up against the Daschle loophole and declined to proceed.
“A lot of times, it is true somebody is lobbying and not registered, but we have not been able to establish that its been more than 20 percent of their time,” Morgan said. Doing so would probably require a whistle-blower who can show billing records and time logs from the inside, he said. Short of that, prosecutors probably couldn’t justify opening an investigation or issuing subpoenas.
Criminal charges are even harder. The 2007 reform law added criminal penalties of up to five years in prison, but they’ve never been applied - the language of the statute requires proving beyond a reasonable doubt that someone broke the rules “knowingly and corruptly.”
“When you have a requirement to report 20 percent of your time, and you have language that says ‘corruptly,’ it’s very difficult to bring criminal prosecutions,” said Vincent H. Cohen Jr., a former acting U.S. attorney in Washington, who now works at the law firm Dechert.
When the bill was in markup in 2007, the House Judiciary Committee considered making criminal offenses even harder to pursue. Rep. Louie Gohmert (R-Texas) said he feared overzealous prosecutors eager “to have the scalps of members of Congress.” He wanted them to have to prove “intent to evade the law.” Conyers, the chairman, fended him off, suggesting the burden of proof was already high enough.
Gohmert was probably overreacting. None of the six lobbying cases to date have involved former members of Congress.
“I have to deal with what the statute says and the resources that we have,” said Morgan, the deputy chief. “I can’t speak to how the laws are written. That’s up to Congress.”
Read more: http://www.politico.com/story/2016/06/the-lobbying-reform-that-enriched-congress-224849#ixzz4DaCtcGnH