Ethics conflicts complicate votes for outgoing members

Lawmakers who have punched their ticket to the influence industry might have to recuse themselves from crucial votes in the lame-duck session and limit their influence on legislation to avoid the “fiscal cliff.” 

Members of Congress who are negotiating or have already secured new employment are required under congressional ethics rules to recuse themselves from official actions that could affect their personal financial interests.

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One lawmaker headed for K Street has already decided to sit out a vote. A spokesman for Rep. Jo Ann Emerson (R-Mo.), who will head up the National Rural Electric Cooperative Association next year, told The Hill that the congresswoman recused herself and voted “present” on an energy bill that came up earlier this month. 

Several other lawmakers are being watched closely, having accepted new positions before the 112th Congress adjourns. 

Meredith McGehee, the policy director for the Campaign Legal Center, said any agreement to avoid the fiscal cliff would present an ethics problem for some outgoing lawmakers.

“The fiscal cliff is every aspect of government. I think there is a clear conflict, and I think they should recuse themselves from that vote,” McGehee said.

Lawmakers who have accepted new positions include Sen. Jim DeMint (R-S.C.), who will be the next president of the Heritage Foundation; Rep. Jason Altmire (D-Pa.), who will join Florida Blue; and Rep. Heath Shuler (D-N.C.), who is headed to Duke Energy.

Other departing members are likely in discussions with future employers as well and could recuse themselves from votes.

That could become a headache for congressional leaders if a deal is reached to avoid the fiscal cliff. A vote on a broad deficit package could be razor-close. Ethics experts say if provisions targeted at specific companies or industries are added to the bill, it could trigger recusals and make it harder to get a bill over the finish line. 

The increased scrutiny that comes with accepting a position on K Street has led some retiring and defeated lawmakers to delay their job searches so that their votes on legislation are not called into question.

“I’m not putting anything together until Jan. 3. I’m having conversations with the people who contacted me, and we were talking about before, but it wouldn’t rise to the level of negotiation because I think then you raise questions about your ability to vote,” said retiring Sen. Ben Nelson (D-Neb.), who is seen as a prized recruit on K Street. 

“I want to be safe on it, so I even engaged outside counsel to help steer me through, because the last thing you want to do is stumble on the ethics,” Nelson said.

Some of the members who have accepted new employment addressed the potential conflicts of interest right out of the gate.

In a statement announcing Shuler’s hire, Duke Energy said “in accordance with U.S. House of Representatives ethics rules, Shuler will not vote on any matters affecting Duke Energy for the remainder of the 112th Congress.”

When Emerson’s hire was announced on Dec. 3, she filed a recusal statement saying she wouldn’t take any action that would affect the National Rural Electric Cooperative Association, according to the Sunlight Foundation. The next day, she recused herself from a vote on the American Energy Manufacturing Technical Corrections Act.

Other lawmakers who have signed up for outside work have made sure to keep in line with ethics rules.

Soon after Rep. Dan Boren (D-Okla.) announced he was not running for reelection, he met with the House Ethics Committee several times “to make sure that I was not only abiding by the letter of the law, but the spirit of the law.”

“Anything that would be considered negotiating, I wanted to make sure I filed the proper paperwork,” Boren said.

Boren filed a notice in June 2012 that he was negotiating with the Chickasaw Nation. Once Boren said he would join the tribe as its new president of corporate development in January, he stepped down from the Indian and Alaska Native Affairs subcommittee, giving up his ranking-member spot in the process.

“Not because of the letter of the law, but I just thought for appearance’s sake that it would be best that I step down,” Boren said. The Oklahoma Democrat said he has not recused himself from any floor votes since then, having seen nothing that would directly affect the Chickasaw.

Several ethics experts argued that the newly employed lawmakers should be in the clear to vote on a broad fiscal-cliff bill, but should be wary of narrower provisions.

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“I think where their future employer, where they are going to take a job in a month, is up there on Capitol Hill lobbying for a benefit that’s targeted to a specific company or industry, they should recuse themselves,” said Joe Sandler, a campaign finance and ethics attorney with Sandler Reiff Young & Lamb. “It is a gray area, and I expect you will see members reach different conclusions on what to do.”

Craig Holman with Public Citizen said he believed lawmakers with outside jobs would be OK voting on a fiscal-cliff bill but “wouldn’t champion a provision or seek to add a provision to the bill that would affect their future employers.”

Boren, for his part, said he doesn’t think he will have to recuse himself from a fiscal-cliff vote.

“It’s dealing with more broad macroeconomic policy that will affect the entire country, not one narrow interest or focus,” Boren said. Watchdog groups, however, are keeping a close eye on the lawmakers who are headed for the private sector. Some say they should recuse themselves from all votes for the remainder of the Congress.

“I think anybody going to work for a private industry should be recusing themselves from any vote that could impact that private industry,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington.

More lawmakers are expected to join the private sector as the new year approaches. Nelson, for one, said he’d be ready for new opportunities once the 112th Congress is through. 

“Probably a bit of a law practice back here and consulting back home. And if I get fortunate [enough] to be asked to be on a corporate board, I’ll be on that too. But the last thing on my agenda is retirement. I’m not going to retire,” Nelson said.

Emily Goodin contributed to this report.