How To Evade the New Ethics Bill

And why it should become law anyway.

I was fully prepared to sneer at the new ethics bill passed by the House and Senate. Surely it would be full of loopholes you could drive a truck through. On close inspection, however, this bill would appear to be the real thing. The reforms it contains are significant and carefully thought out. If signed into law by President Bush (he’d be an utter fool to veto it), the legislation will make life more difficult for the people who enacted it. That’s at least as true for Democrats as it is for Republicans. I honestly can’t recall witnessing so sweeping a congressional house-cleaning during the three decades I’ve been a reporter.

That said, can the bill be gotten around? Of course it can! Let’s take a look at three major provisions.

Shutting Down the K Street Project. After the Republicans took control of Congress in 1995, House Majority Leader Tom “the Hammer” DeLay and Grover Norquist, a Jack Abramoff intimatewho is president of the nonprofit Americans for Tax Reform, initiated a form of corruption so crass that it had never even occurred to the Democrats. Every Tuesday morning, Sen. Rick Santorum, R.-Pa., would preside over a meeting in which lobbyists would pass around a list of available jobs in their firms. Santorum would inform these lobbyists which loyal Republicans the lobbyists ought to hire to fill these vacancies. He wasn’t asking; he was telling. The idea was that if the lobbyists didn’t hire the people that GOP leaders wanted them to hire, those GOP leaders would turn a deaf ear in their general direction.

The new ethics bill contains a provision that would make future meetings of this type illegal. That’s commendable, because to whatever extent the Republicans managed to acquire control over the lobby industry the Democrats might logically choose to answer in kind. Instead, they are outlawing the whole endeavor. Under the bill, any senator or House member who “takes or withholds, or offers or threatens to take or withhold, an official act” or “influences, or offers or threatens to influence, the official act of another” based on “an employment decision or employment practice of any private entity” will be fined and possibly jailed for up to 15 years.

I’m not aware that any House Democrats have tried to bully lobby firms into hiring Democrats. If they have, under the ethics bill they would henceforth have to avoid any quid pro quos. But most members of Congress are already well-trained by the laws governing bribery to avoid being too explicit whenever they make promises or threats. Under the prohibition, senators and House members would remain free to enunciate vague promises or threats, or, even better, to have aides insinuate on their behalf. What’s more, the ban applies only when the senator or House member seeks to influence a job hire “solely on the basis of partisan political affiliation.” It won’t be easy to prove in court that a favored job candidate was advanced only because he or she was a Democrat (or Republican), and not, for instance, because he or she was an extremely able person. On the plus side, though, the new prohibition so thoroughly demonizes K Street ward-heeling that members of Congress probably won’t want to be caught doing it, even if the risk of successful prosecution is small.

Cracking Down on Spousal Lobbying.Until now, Congress has been reluctant to institute rules governing lobbying by congressional spouses. It’s an awkward area, because the spouse surely deserves to live his or her own life, and if she—it’s usually a “she”—was a lobbyist before she was a congressional spouse, as if often the case, one is in effect meddling with her livelihood. Nonetheless, a lobbyist who is also a congressional spouse acquires enhanced clout, and can’t help becoming a more desirable employee to a lobby firm.

The ethics bill would prohibit the spouse of a House member “from making any lobbying contact” with the staff of her husband (or his wife). In the Senate, the prohibition covers not only the spouse but also “any immediate family member,” and for the spouse extends not only to the staff of the husband or wife, but also to other senators and their staffs.

It’s admirably nervy for the Democrats to take on the spouse issue, because the best-known congressional spouse/lobbyist of recent years was probably Linda Daschle, wife of former Senate Democratic leader Tom Daschle. The Senate version of this prohibition is significantly better than the House version, especially considering that congressional spouses already tend to avoid lobbying the staffs of their own spouses (because it’s so clearly tacky). The real potential problem is a congressional spouse who lobbies her husband’s or his wife’s congressional colleagues. The House version is entirely useless in that regard. Let’s hope House Speaker Nancy Pelosi, D.-Calif., takes another whack at this one soon.

Even the Senate version can be gotten around if the spouse was a registered lobbyist one year before her husband’s or his wife’s election to the Senate. Essentially, the Senate version would prohibit a spouse from cashing in on her husband or his wife’s election only after the fact. That’s a particularly offensive practice and it’s well worth ending. But it’s fairly common for senators (like Daschle) to date lobbyists and eventually marry them. In such instances, the spouse would continue to reap the windfall. Even though it’s unfair to the spouse, the House and Senate ought to put all lobbying spouses out of business. Hey, you don’t like the rule? Don’t marry a member of Congress.

Cracking Down on Legislative Earmarks. “Earmarking” is a verb with many meanings, but lately it’s usually referred to a member of Congress quietly inserting a provision into a bill without being identified as that provision’s author. Earmarks were former Rep. Randy “Duke” Cunningham’s preferred method of rewarding the defense contractors who paid him bribes. The San Diego Republican, who is currently serving an eight-year sentence, participated in the biggest bribery scandal, dollar-wise, in American history. (Duke collected an estimated $2.4 million in payoffs, but made it way too easy to get caught by  writing down precisely how much he expected to be paid for each appropriation.)

The ethics bill requires senators who sponsor earmarks to identify themselves at various points in the process. (The House enacted a similar requirement last year.) I had trouble understanding some of the more rococo parliamentary language, so I’m not going to discuss it in detail. But phrases like “to the extent technically feasible” and “as soon as practicable” and “consistent with the need to protect national security” suggest that the ban on anonymous earmarks can be gotten around at least to some extent. Sen. John McCain, R.-Az., maintains that the legislative language has been “completely gutted,” and a White House spokesperson has called it “toothless.” But McCain can’t really afford, politically, to say anything nice about the Democrat Congress right now, and President Bush probably dislikes the various ways the bill will limit (though, as we’ve seen, not eliminate) corporate influence on the legislative process.

The perfect is the enemy of the good, Mr. President, and if you veto this bill the public will likely conclude, accurately, that neither a perfect nor a good ethics bill suits your agenda. This one is way, way better than most.