SCOTUS Ethics

 

 Jamie Gangel, Elizabeth Stuart and Tierney Sneed at CNN:

In a carefully worded, but blunt statement, conservative former federal judge J. Michael Luttig sent a warning shot to the Supreme Court, calling on the Court to enact a code of conduct that would “subject itself to the highest professional and ethical standards that would render the Court beyond reproach.”

If the Supreme Court does not take such action, he cautioned, Congress has “the power under the Constitution” to prescribe ethical standards of conduct for the court.

The statement is part of written testimony Luttig – a former judge on the US 4th Circuit Court of Appeals – has submitted to the Senate Judiciary Committee holding hearings Tuesday and follows weeks of ethical controversies involving the Supreme Court. Luttig’s public admonition is especially notable because of his conservative credentials and his longstanding, close ties with the Supreme Court.

 Joshua Kaplan, Justin Elliott and Alex Mierjeski

In 2008, Supreme Court Justice Clarence Thomas decided to send his teenage grandnephew to Hidden Lake Academy, a private boarding school in the foothills of northern Georgia. The boy, Mark Martin, was far from home. For the previous decade, he had lived with the justice and his wife in the suburbs of Washington, D.C. Thomas had taken legal custody of Martin when he was 6 years old and had recently told an interviewer he was “raising him as a son.”

Tuition at the boarding school ran more than $6,000 a month. But Thomas did not cover the bill. A bank statement for the school from July 2009, buried in unrelated court filings, shows the source of Martin’s tuition payment for that month: the company of billionaire real estate magnate Harlan Crow.

The payments extended beyond that month, according to Christopher Grimwood, a former administrator at the school. Crow paid Martin’s tuition the entire time he was a student there, which was about a year, Grimwood told ProPublica.

“Harlan picked up the tab,” said Grimwood, who got to know Crow and the Thomases and had access to school financial information through his work as an administrator.

...

Last month, ProPublica reported that Thomas accepted luxury travel from Crow virtually every year for decades, including international superyacht cruises and private jet flights around the world. Crow also paid money to Thomas and his relatives in an undisclosed real estate deal, ProPublica found. After he purchased the house where Thomas’ mother lives, Crow poured tens of thousands of dollars into improving the property. And roughly 15 years ago, Crow donated much of the budget of a political group founded by Thomas’ wife, which paid her a $120,000 salary.

Gifts and Clarence Thomas

Ivana Saric at Axios:

Supreme Court Justice Clarence Thomas acknowledged allegations that he had failed to properly disclose luxury trips he had received from an influential GOP donor, saying in a statement Friday that he has "always sought to comply with the disclosure guidelines."

Driving the news: An explosive ProPublica investigation alleged that over the span over more than two decades Thomas accepted lavish vacations paid for by a major Republican donor virtually every year.

• Ethics law experts told the publication that Thomas had likely violated disclosure rules that require him to report travel on Dallas real estate magnate Harlan Crow's private jet and yacht, and possibly even his stays at Crow's resort in the Adirondacks
• In a statement to ProPublica, Crow argued that he and his wife's "hospitality" towards Thomas and his wife was no different from the hospitality they showed other friends, and that they had never tried to influence Thomas on "any legal or political issue."

State of play: Thomas echoed this sentiment in his own statement, saying the two couples had been friends for 25 years and "as friends do, we have joined them on a number of family trips."

• Thomas noted that he believed he'd done nothing wrong based on guidance he received "early in my tenure."
• He said he was told that "this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable."
• "These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future," Thomas said.

The big picture: Last month the Judicial Conference of the United States adopted tighter financial disclosure rules for federal judges and U.S. Supreme Court justices, including requiring them to report when they are gifted stays at commercial properties and travel on private jets, per the Washington Post.

Hatch Act and Federal Property

An advisory from the office of Special Counsel, August 9, 2004:

The Office of Special Counsel (OSC) recently has received various complaints concerning the granting of requests from candidates and/or their campaigns to visit federal agencies. Therefore, OSC, pursuant to 5 U.S.C. §1212(f), issues this Hatch Act opinion reminding all federal agencies of the relevant provisions of the Hatch Act governing such requests. This guidance addresses activities relating to federal, state and local political campaigns of candidates in partisan elections, including Presidential candidates.

While the Hatch Act, 5 U.S.C. §§7321-7326, does not govern the actions of an individual who is running for partisan elective office, it does regulate the political activity of federal executive branch employees and District of Columbia government employees. Although the Act permits most covered employees to actively participate in partisan political management and partisan political campaigns, covered employees still are subject to certain prohibitions related to their participation in partisan activities. Two such prohibitions relevant to this opinion are that covered employees may not: 1) use their official authority or influence for the purpose of affecting the result of an election or 2) engage in political activity while on duty; in any room or building occupied in the discharge of official duties by an individual employed or holding office in the government of the United States or any agency or instrumentality thereof; while wearing a uniform or other similar item that identifies the employing agency; or using a government vehicle. 5 U.S.C. §§7323(a)(1) and 7324. Political activity is defined as “an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” 5 C.F.R. §734.101.

Examples of activities prohibited by the preceding restrictions include the following: authorizing the use of a federal building or office as described above for campaign activities, such as town hall meetings, rallies, parades, speeches, fundraisers, press conferences, “photo ops” or meet and greets; attending or planning such campaign events while on duty or in a federal building or office; or distributing campaign literature or wearing campaign-related items while on duty or in a federal building or office. 

We note that OSC views candidates’ requests to visit federal facilities that are coordinated by candidates’ campaigns as presumptively for a campaign purpose and not official business. This opinion, however, should not be interpreted as prohibiting federal employees from allowing members of Congress and other elected officials from visiting federal facilities for an official purpose, to include receiving briefings, tours, or other official information. Further, nothing in this opinion is intended to impede elected Page 2 of 2 officials from appropriately representing their constituents. Federal agencies should ensure that candidates who visit their facilities to conduct official business do not engage in any political campaign or election activity during the visit.

Based upon the preceding, the Hatch Act should be considered carefully when handling a candidate’s request to visit or use a federal building. We strongly encourage all federal agencies receiving such requests to contact OSC prior to granting such a request. Further, we encourage federal agencies to review their guidelines concerning such visits to insure that they are consistent with the Hatch Act and offer our assistance in this matter. For any additional questions concerning this matter, please contact me at (202) 254-3650.

The Judicial Oath, Ethics, and Recusal

 28 U.S. Code § 453 - Oaths of justices and judges

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.” (June 25, 1948, ch. 646, 62 Stat. 907; Pub. L. 101–650, title IV, § 404, Dec. 1, 1990, 104 Stat. 5124.)

In his 2011 annual report on the federal judiciary, Chief Justice Roberts dealt broadly with related ethical issues:

Since 1789, every federal judge has taken the same solemn oath to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and “to faithfully and impartially discharge and perform” the duties of judicial office. But for the first 130 years of the Nation’s existence, federal judges had no formal source for guidance on the broad array of ethical issues that might arise in the course of judicial service.

In 1922, he explains, Congress addressed this problem by creating the Judicial Conference of the United States, which in turn established a Code of Judicial Conduct.

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.

Nevertheless, justices do consult the Code and other sources in weighing their ethical duties.  Federal statutes are among these sources.

The governing statute, which is set out in Title 28, Section 455, of the United States Code, states, as a general principle, that a judge shall recuse in any case in which the judge’s impartiality might reasonably be questioned. That objective standard focuses the recusal inquiry on the perspective of a reasonable person who is knowledgeable about the legal process and familiar with the relevant facts. Section 455 also identifies a number of more specific circumstances when a judge must recuse.

The Supreme Court is different from other courts in one important respect.

 Although a Justice’s process for considering recusal is similar to that of the lower court judges, the Justice must consider an important factor that is not present in the lower courts. Lower court judges can freely substitute for one another. If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place. But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.

Interest Group Notes, Continued

The Washington swamp is bigger than ever.

Arden Farhi reports at CBS:

Environmental Protection Agency Administrator Scott Pruitt rented a bedroom in a Capitol Hill condo from the wife of a Washington lobbyist for $50 a day from mid-February through the end of July in 2017, CBS News has confirmed. Pruitt's daughter also lived in the condo while she was interning at the White House.

Pruitt's rent equates to about $1,500 a month, but the terms of the deal were favorable. The deal required Pruitt only to pay the nightly rate when he stayed there, and he was not charged for nights when he slept elsewhere. Pruitt traveled regularly, often returning to Oklahoma on the weekends. Documents released by the agency confirm that ethics officials at EPA signed off on the arrangement. Over the course of the five-and-a-half months, Pruitt paid $6100 in rent, about $2150 less than someone paying his rate every night.

Pruitt's landlord was Vicki Hart, the wife of Steven Hart, a Washington lobbyist whose firm represents a number of fossil fuel companies.

Juliet Eilperin at WP:

Interior Secretary Ryan Zinke has appointed 15 representatives of the outdoor recreation industry to advise him on how to operate public lands, according to documents obtained by The Washington Post, including three people whom department officials flagged as potentially having a conflict of interest on the matter.

The membership of the “Made in America” Outdoor Recreation Advisory Committee, which Zinke launchedin November, marks the third time the secretary has assembled panels dominated by industry players to help chart policies affecting their businesses.

Many of the members of the Royalty Policy Committee hail from the oil, gas and mining industries; the new International Wildlife Conservation Council is largely composed of people with ties to trophy hunting.

 A March 8 report from AP:

President Donald Trump and his appointees have stocked federal agencies with ex-lobbyists and corporate lawyers who now help regulate the very industries from which they previously collected paychecks, despite promising as a candidate to drain the swamp in Washington.

A week after his January 2017 inauguration, Mr. Trump signed an executive order that bars former lobbyists, lawyers and others from participating in any matter they lobbied or otherwise worked on for private clients within two years before going to work for the government.

But records reviewed by The Associated Press show Mr. Trump's top lawyer, White House counsel Don McGahn, has issued at least 24 ethics waivers to key administration officials at the White House and executive branch agencies.

Though the waivers were typically signed by McGahn months ago, the Office of Government Ethics disclosed several more on Wednesday.

Another Trump Database

John Templeton and colleagues report at Buzzfeed:

No American president has taken office with a giant network of businesses, investments, and corporate connections like that amassed by Donald J. Trump. His family and advisers have touched a staggering number of ventures, from a hotel in Azerbaijan to a poker company in Las Vegas.

So we compiled a list of as many as we could to keep track of them all.

...We spent two months building the dataset from public records, news reports, and other sources on the Trump family, his Cabinet picks, and top advisers — more than 1,500 people and organizations altogether. BuzzFeed News is the first news organization to publish such an exhaustive list of Trump’s business interests, and we hope it will help you, the public, better understand the new administration.

...
Please send tips and information to trump@buzzfeed.com. (If you’d like to send your tip securely and anonymously, see these instructions.)

Pardon and De Facto Dictatorship

As Darren Samuelsohn reports at Politico, Gingrich says Congress should change the law to allow Trump's conflicts of interests.  If it doesn't, he says, no biggie:  Trump can just pardon his kids.

“We’ve never seen this kind of wealth in the White House, and so traditional rules don’t work,” Gingrich said Monday during an appearance on NPR’s "The Diane Rehm Show" about the president-elect’s business interests. “We’re going to have to think up a whole new approach.”

And should someone in the Trump administration cross the line, Gingrich has a potential answer for that too.

“In the case of the president, he has a broad ability to organize the White House the way he wants to. He also has, frankly, the power of the pardon,” Gingrich said. “It’s a totally open power. He could simply say, ‘Look, I want them to be my advisers. I pardon them if anyone finds them to have behaved against the rules. Period. Technically, under the Constitution, he has that level of authority.”

Yale's Noah Messing suggests that a president might actually try to push the power that far:

The presidential pardon power is widely assumed to apply only to federal crimes — but not to civil offenses. No scholar, however, has ever carefully reviewed whether presidential clemency extends to civil offenses or explored the potential implications of this power. This Article provides the first-ever close study of whether presidential clemency is available for civil offenses. It concludes that presidents may pardon civil offenses — thus unearthing a new executive power, albeit one that has existed since 1787.

The Article consults the various types of historical evidence that the Supreme Court has stated are most relevant to determining the scope of the pardon power: historical practices in England and the colonies, records from the Constitutional Convention, and English common law — as well as an array of other interpretive tools.

The Article relies on the fact that “civil” offenses, as we now understand them, either were criminal offenses at the Founding or involved activities that went unpunished. In other words, there were no “civil” offenses (as we now know them) at the Founding; they arose only in the 1840s, as Felix Frankfurter memorialized in his 1925 article about the blurring lines between criminal and civil offenses. This Article shows, however, that the most analogous offenses prior to the advent of civil offenses could have been pardoned and were, in fact, pardoned by both presidents and English monarchs (whose acts of clemency the Supreme Court consults to assess the scope of the pardon power). In short, the various tools by which the Supreme Court assesses the breadth of the pardon power uniformly support the conclusion that civil offenses may be pardoned. The Article ends by launching a preliminary discussion of the uses and implications of this power.

The Call

Mark Landler and David E. Sanger report at The New York Times:

President-elect Donald J. Trump spoke by telephone with Taiwan’s president on Friday, a striking break with nearly four decades of diplomatic practice that could precipitate a major rift with China even before Mr. Trump takes office.

Mr. Trump’s office said he had spoken with the Taiwanese president, Tsai Ing-wen, “who offered her congratulations.” He is believed to be the first president or president-elect who has spoken to a Taiwanese leader since at least 1979, when the United States severed diplomatic ties with Taiwan as part of its recognition of the People’s Republic of China.

In the statement, Mr. Trump’s office said the two leaders had noted “the close economic, political, and security ties” between Taiwan and the United States. Mr. Trump, it said, “also congratulated President Tsai on becoming President of Taiwan earlier this year.”

Mr. Trump’s motives in taking the call, which lasted more than 10 minutes, were not clear. In a Twitter message late Friday, he said Ms. Tsai “CALLED ME.

But diplomats with ties to Taiwan said it was highly unlikely that the Taiwanese leader would have made the call without arranging it in advance. Ms. Tsai’s office confirmed that it had taken place, saying the two had discussed promoting economic development and “strengthening defense.” Taiwan’s Central News Agency hailed the call as “historic.”

The Financial Times reports:

“It must be pointed out that there is only one China in the world,” the Chinese foreign ministry said in a statement on Saturday, adding that it had lodged “solemn representations with the US”.

In a barb directed at Mr Trump’s unprecedented pre-inauguration intervention in Sino-US relations, the foreign ministry urged “the relevant parties . . . to handle issues related to Taiwan with caution and care in order to avoid unnecessary interference with overall Sino-US relations”

Although it is not clear if the Trump transition team intended the conversation to signal a broader change in US policy towards Taiwan, the call has ruffled feathers in Beijing.

The formal protest marked an escalation from comments earlier on Saturday by China’s foreign minister, Wang Yi, who appeared to blame Ms Tsai for the call. In an interview with a Hong Kong television station, Mr Wang dismissed the phone call as a “petty action” on Taiwan’s part.

And the conflict-of-interest presidency takes shape.Nicola Smith reports at The Guardian:

Weeks before President-elect Donald Trump’s controversial phone call with Taiwan’s president, Tsai Ing-wen, a businesswoman claiming to be associated with his conglomerate made inquiries about a major investment in building luxury hotels as part of the island’s new airport development.

The woman, known only as Ms Chen arrived from the US in September to meet the mayor of Taoyuan, Cheng Wen-tsan, one of the senior politicians involved in the Aerotropolis project, a large urban development being planned around the renovation of Taiwan’s main airport, Taoyuan International.

“She said she was associated with the Trump corporation and she would like to propose a possible investment project in the future, especially hotels,” said an official familiar with the project, who spoke on condition of anonymity.
 

Ethics, Politics, and Interest Groups

Ethics is in today's news...

For context, go to history.

Prelude:  Chinatown and the real story



In 1946, the Federal Regulation of Lobbying Act required individuals lobbying Congress to register with and report to the House of Representatives and the Senate

On August 13, 1949, Collier's published "The Secret Boss of California," an expose of lobbyist Artie Samish.

"This is my legislature. How are you, Mr. Legislature?"

As a result of the Samish story, the Legislature passed the Collier Lobby Control Act (1949) and The Erwin Act (1950), requiring lobbyist registration.

The Watergate break-in took place in 1972.  The story gained strength in 1973.

Watergate inspired major federal reform legislation in 1974.

Calilfornia's young secretary of state took the occasion to draft Proposition 9, the Political Reform Act of 1974.

See here for an online course on the law.

In 1988 came Shrimpgate, and in 1990 came ... term limits.

Recent controversies:

• Wright
• Yee
• Calderon -- the FBI release

Contributions to nonprofits

• Federal government 
• Rent-a-friend
• California "behesting"

Campaign Finance

• State campaign contribution limits
• Federal campaign contribution limits

Citizens United

The Colbert Report
Get More: Daily Show Full Episodes,Indecision Political Humor,The Colbert Report on Facebook

Unlobbying Obama

A number of posts have discussed a phenomenon called shadow lobbying, nonlobbying lobbying, or unlobbying. Mike Dorning writes at Bloomberg Business Week:

The Obama administration is Washington’s most fertile incubator for influence peddlers. Or political fixers. Or industry association representatives. Whatever you call them, don’t call them lobbyists. Five years after the president issued an executive order barring his former appointees from lobbying the executive branch, dozens of administration officials who’ve left to take jobs representing corporate interests are getting around the ban by not registering as lobbyists, instead branding themselves as consultants or policy advisers.

“The influence industry is moving underground,” says Sarah Bryner, research director of the Center for Responsive Politics. The group counts 46 former Obama officials who have registered with the federal government as lobbyists. An additional 86 are what it calls “unlobbyists,” who use their connections in Congress and the White House to press for changes in laws and federal policy but who aren’t registered. “We still have many people leaving government and taking jobs that in the past would have resulted in them registering,” Bryner says. Now they are “skirting the disclosure requirements”

Lenient federal rules let them duck the lobbyist label as long as they avoid direct communication with government employees on behalf of clients. Instead, they offer colleagues and customers an inside view of the administration’s thinking, detailed advice on how to frame arguments to people in the White House and Congress, and names and numbers of the best officials to approach. That can earn former presidential aides 5 to 10 times their government salaries.

The Green Revolving Door

A number of posts have discussed the revolving door between government and interest groups. Timothy Carney writes at The Washington Examiner:

President Obama’s Secretary of Transportation Ray LaHood has left the administration and joined an electric bus company he subsidized and praised while in office.

Proterra Inc. makes buses that require no gasoline or diesel – they run on electricity and fuel cells.
...
According to a 2011 DOT press release, Proterra received a “$6.5 million research grant provided by the U.S. Department of Transportation's Federal Transit Administration.”

On top of all this, LaHood's department subsidized Proterra through grants to municipalities that buy electric buses. These grants to local transit authorities cover 80 percent of the cost of a battery-powered electric bus.

In September 2012, for instance, the Worcester Regional Transit Authority in Massachusetts bought three Proterra buses with $4.4 million in DOT grants.

Most of Proterra's sales are subsidized. “The majority of transit agencies buy with federal funds, which cover about 80 percent of the cost,” explained Proterra Vice President Ian Shackleton in a company publication in March 2013.

...
On Feb. 18, Proterra announced that LaHood, who left DOT last year, was joining the company's board of directors. “LaHood's government experience and leadership in transportation policy innovation make him an excellent fit for Proterra,” the company said in a news release.

...

Federal ethics rules prohibit LaHood from lobbying for the time being, but they don't stop him from taking money from Proterra, publicly advocating for the company, or providing lobbying advice.

Lobbyists and Lawmakers Rank Low in the Public's Eyes

Previous posts have looked at the public standing of various professions and occupations. Gallup reports:

Americans' rating of the honesty and ethics of the clergy has fallen to 47%, the first time this rating has dropped below 50% since Gallup first asked about the clergy in 1977. Clergy have historically ranked near the top among professions on this measure, hitting a high rating of 67% in 1985.s

Gallup has asked Americans to rate the honesty and ethical standards of members of various professions periodically since 1976, and annually since 1990. This year's poll was conducted Dec. 5-8, and finds Americans viewing nurses, pharmacists, and grade school teachers as having the highest ethical standards. Lobbyists, members of Congress, and car salespeople sit at the bottom of the list 

Anonymous Sources

In an investigative report on a California political family, John Hrabe quotes anonymous sources and explains:

The first code of journalism is “to seek truth and report it.” Sometimes, anonymous or unnamed sources are the only way to tell the whole story. Don’t take my word for it. Check out New York Magazine’s Kurt Andersen on “Why Journalism Needs Anonymous Sources.”

Why do journalists use anonymous sources?

Because people who are willing to tell reporters interesting things—that is, confidential or disturbing information or opinions—are usually disinclined to appear to be the candid plain talkers or snitches or whistle-blowers or gossips or backstabbers they are.

Corruption in Isolated State Capitals

In The San Diego Union-Tribune, Christopher Cadelago reports:

California’s capital is about 85 miles from San Francisco, 385 miles from Los Angeles and 500 miles from San Diego. Does that remoteness make Sacramento susceptible to greater levels of corruption?

Researchers out with a new study seem to think so.

In “Isolated Capital Cities, Accountability and Corruption: Evidence from U.S. States,” Filipe R. Campante and Quoc-Anh Do argue isolated capital cities are robustly associated with greater levels of corruption. California along with Florida, Nevada and Texas are listed as among the least concentrated states. [See an earlier post on an earlier version of this paper.]

Campante, of Harvard University’s Kennedy School of Government, and Do, a Paris-based economist, also contend that the various mechanisms for holding state politicians accountable are similarly affected by the spatial distribution of population.

“Newspapers provide greater coverage of state politics when their audiences are more concentrated around the capital, and voter turnout in state elections is greater in places that are closer to the capital,” the researchers argue.

The paper provides a telling example from Massachusetts and New York:

Both states have witnessed recent corruption scandals that led to the indictment and eventual conviction of two very prominent state legislators: former Senate Majority leader Joseph Bruno, in New York, and former House Speaker Salvatore DiMasi, in Massachusetts. We can learn about the scope of media accountability in both states by looking at these scandals and how they were covered by the New York City and Boston press. ...

Both led to high-pro le convictions, in scandal-plagued environments. It is interesting, however, to contrast the coverage devoted to these cases by the main newspapers from the respective states' main cities: New York City, located just over 100 miles away from the state capital Albany, and Boston, which happens to be the capital itself. A search for \Joseph Bruno" (or \Joseph L. Bruno") and \corruption" in November 2011 yielded 154 articles in the online archives of the New York Times, 77 in the New York Post, and 91 in the New York Daily News. The same search with \Salvatore DiMasi" (or \Salvatore F. DiMasi"), on the other hand, yielded 238 matches in the Boston Globe and 130 matches in the Boston Herald. The di fference is more remarkable if we control for the size of the diff erent newspapers: a \neutral" search (for the word \Monday," following Gentzkow et al. (2005)) reveals, for instance, that the New York Times is about twice the size of the Boston Globe. In sum, Boston newspapers seem to have devoted substantially more coverage to the DiMasi scandal than New York City newspapers did to the Bruno a air { consistent with the idea that their readership might be more interested in what goes on in Beacon Hill (the central Boston neighborhood that is the site of the state government) than the New York papers' is in what takes place in Albany.

The Revolving Door Keeps Revolving

A number of posts have discussed the "revolving door" between interest groups and the government, along with the phenomenon of non-lobbying lobbying.

The Washington Post reports:

The decision on whether to approve the Keystone XL oil pipeline is a political headache for President Obama. But to five of his former aides, it represents a business opportunity.

Four of them — Bill Burton, Stephanie Cutter, Jim Papa and Paul Tewes — work as consultants for opponents of the project, which would carry heavy crude oil from Canada to Gulf Coast refineries. Another, former White House communications director Anita Dunn, counts the project’s sponsor, TransCanada, among the clients of her communications firm.

Keystone XL is just one of several upcoming administration decisions providing lucrative work for former Obama advisers on issues ranging from gun control to mining to legalized gambling. Just this week, three of Obama’s top former political advisers —Robert Gibbs, Jim Messina and David Plouffe — were given five-figure checks to deliver remarks at a forum in the former Soviet republic of Azerbaijan, which is in the midst of a campaign to burnish its image in Washington.

Obama came into office promising that his administration would hew to higher standards than his predecessors did. He implemented rules barring former aides from directly lobbying the government for two years and frequently decries the influence of “special interests” in Washington.

But the efforts have done little to slow a tide of groups hiring former top aides as highly paid consultants, speakers and media advisers in an effort to influence the administration — part of a longtime Washington practice in which interest groups seek access to the White House by hiring people who used to work there.

Shadow Lobbyists

Previous posts have noted that many people in the government affairs world do not have to register as federal lobbyists.  And some of these "stealth lobbyists" are former lawmakers such as Newt Gingrich and Anthony Weiner.

At The Monkey Cage, Tim LaPira writes:

Cases like these motivate pundits to write opinion pieces condemning the revolving door and shadow lobbyists by pointing out what is often referred to as the “Daschle Loophole” in the LDA. They can elude the law’s registration requirement by simply interpreting the strict statutory definition of “lobbyist” as not applying to them. That is, so long as they are not spending 20% of their time—think one full day in a normal work week—on behalf of any single client for an entire quarter, then they do not need to register or report their lobbying activities. Think about that: do you ever spend one full day per week for three months straight working on any one project at work? As law professor William V. Luneberg, Jr. notes, “You can do a hell of a lot of lobbying for somebody when you’re only doing 19 percent of your time for the client.”

So the LDA loophole is not new. In fact, OpenSecrets.org has shown that under-the-radar lobbyists are on the rise. But stealth lobbying and the revolving door tend to get the media’s attention only with high profile cases like Gingrich and Weiner. When it does, the reporting tends to beg two key questions: how common is it for lobbyists to have gone through the revolving door? And just how many unregistered lobbyists are there in the “influence industry?” My co-author Herschel (Trey) Thomas and I have some relevant (hopefully not too relevant) research on this here and here.

Based on our sample of about 1,600 registered lobbyists, we find that 52% had once worked in the federal government, mostly in Congress. These revolving door lobbyists tend to have a more diverse clientele and to work on a much wider range of issues than others, suggesting that they are more likely selling “access” to former employers in government than they are using highly specialized policy expertise (which would instead lead them to attract clients from one or a few economic sectors, and to work on a single policy area). Only about 1% of them are former members of Congress (though, it’s likely that one in two former lawmakers become lobbyists after leaving office).

Our second study is based on a random sample of “policy advocates” drawn from Lobbyists.info, the leading commercial directory of government affairs professionals. This sample includes both registered and unregistered (shadow) lobbyists. We find that shadow lobbyists actually outnumbered registered lobbyists in 2012. That is, there are now more stealth lobbyists—roughly 13,000 by our conservative estimate—than there are those who register under the LDA. Registered or not, still only about 1% served in Congress. So, though Gingrich, Daschle, and Weiner tend to be the most notable examples of what’s wrong with lobbying transparency, they are far from alone.

Administration Alumni and Interest Groups

At The New Republic, Noam Scheiber writes that Obama administration alumni are going into the interest group world.

Welcome to the buckraking phase of the Obama era. If the campaign was about hope, and the early presidency was about change, increasingly the administration has settled into a kind of normalcy in which it accommodates itself to Washington far more than Washington accommodates itself to Obama.
...
Within Obamaworld, there are a few unwritten rules about how to parlay one’s experience into a handsome payday. There is, for example, a loose taboo against joining a K Street lobbying shop and explicitly trading on administration connections. And while joining a consulting firm is acceptable, those who do are reluctant to work for clients reviled by liberals: gun makers, tobacco companies, Big Oil, union busters. Above all, there is a simple prohibition against excessive tackiness. “It’s like: Don’t embarrass yourself. You were part of something special,” says a longtime Obama adviser. “I think if [Obama] were to send an all-staff e-mail, it would be along the lines of Ron Burgundy—‘Stay classy, San Diego.’ ”

Some do not abide by these norms, but they are the exception.

The irony is that such tackiness is unnecessary. There are more than enough ways to cash in on a White House tour of duty that fall comfortably within the red lines governing Obama’s Washington. No one in the West Wing, from the president on down, would begrudge former colleagues the chance to make a buck so long as a modicum of tact is displayed.

The easiest place to accomplish this is at a Washington consulting firm that takes on corporate clients. For example, a group of companies might hire a firm like SKDKnickerbocker—a popular destination among young Obama operatives, run by former White House communications director Anita Dunn—to wage a P.R. campaign for certain tax advantages over their competitors. (The New Republic was an SKDKnickerbocker client.) “Ninety-nine percent of the time it’s two big rich companies fighting over something, and you pick a side,” says a former administration official now in the consulting world.

Previous posts have discussed non-lobbying lobbying.  The article explains its nicely:

Or a client caught in an unfortunate regulatory snag might want to know where to plead its case. “They say, ‘Listen, we have a problem with the White House. We think we should talk to Joe Smith,’ ” says the former official, describing a typical interaction. “I say: ‘That guy is a total moron. He’s not the person to talk to on this issue.’ ... It’s giving background advice to people without lobbying.”

Lobbyists Bearing Gifts

State capitals are full of lobbyists.  In many legislatures, staffers have considerable influence.  Accordingly, lobbyists in these states try to woo the aides. and At UT San Diego, Christopher Cadelago writes:

In 2012, powerful interest groups lavished state lawmakers with high-dollar meals, trips and entertainment. But many of the same corporations and unions also showered legislative aides with meals, sporting tickets, concerts and rounds of golf, records show.

One reason? Term limits have made lawmakers themselves short-timers, while legislative staffers may transfer from lawmaker to lawmaker, committee to committee. They have power — and staying power.

Groups that spent the most on lobbying last year provided legislative aides with about $69,500 in gifts. A U-T Watchdog review showed that the same groups — from companies to associations and unions — bestowed roughly $70,500 in gifts to lawmakers.

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A ticket to a basketball game or concert gives the purchasers the kind of face-to-face access to staffers that can be hard to steal amid the bustle of the workday. Schedulers can be particularly helpful in a company’s endeavors as they control virtually every minute of a legislator’s tightly-packed calendar.

“Because of term limits, the staffs have become the institutional knowledge of the Capitol — other than lobbyists themselves,” said Phillip Ung of California Common Cause. “It’s not just staff getting gifts, but it’s the relationship that’s being built, the long-term investment that is being made by these entities into these individuals.”

Ung and others argue that legislators should take a page from Congress, which has effectively banned gifts to staffers from lobbyists and their employers.

Lobbying on the Decline? More Data Suggest Otherwise.

Previous posts have noted that officially-reported spending on lobbying is on the decline.  But there's a catch, as the Center for Responsive Politics explains:

Many observers theorize that a lot of lobbying has simply gone underground and is being done by individuals who are able to avoid the federal threshold for disclosure. To test this theory, CRP looked at lobbyists who were active in 2011 but not in 2012 and determined where they worked as of early 2013. Our research found 1,732 lobbyists who “deactivated” in 2012. This drop is considerably smaller than the recent peak of deactivated lobbyists in 2008. That year, following the passage of HLOGA in 2007, more than 3,400 lobbyists stopped reporting activity. Many argue that this decline is actually just an artifact of the new law's implementation: these lobbyists were likely not active before 2007, but the new requirements made reporting more onerous and so they were therefore disinclined to register.
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In the first analysis of this kind, CRP finds that 46 percent of the active 2011 lobbyists who did not report any activity in 2012 are still working for the same employers for whom they lobbied in 2011 -- supporting the theory that many previously registered lobbyists are not meeting the technical requirement to report or have altered their activities just enough to escape filing. It's possible that some individuals are being less than candid about how much time they spend lobbying, which is difficult to judge from the outside, as it is hard to determine the degree to which an employee’s duties have changed. But the fact that a near majority of deactivated lobbyists are still with the same organizations suggests that many of the changes we see in the filings may be due to technicalities or minor tweaks in their responsibilities, with the result being decreased reporting.

Lobbying on the Decline? Probably Not ...

Previous posts have discussed rules on lobbying, along with data on  lobbyists. The Center for Responsive Politics reports:

For the second year running, total spending on federal lobbying has declined.

It's only the third time in the last 15 years that overall spending on lobbying has declined. In fact, overall spending is at its lowest point since 2007.

Not all is gloomy on K Street: Overall spending on lobbying still topped $3.27 billion and more than 12,374 lobbyists hit the Hill this past year, making it the fifth highest-spending year overall.

But the numbers nevertheless represent a decline to a level of spending not seen since the days before the healthcare debate, which drove outlays for Washington representation to unprecedented levels. At the spending peak in 2010, during the height of the battle over President Obama's healthcare overhaul, more than $3.55 billion was laid out. The $3.28 billion spent this year is lower than the $3.30 billion spent in 2008 -- before health care became an issue -- but is significantly higher than 2007's level, when clients paid $2.8 billion for lobbying in the nation's capital.

The Center for Responsive Politics based its analysis on data filed in lobbying disclosure reports, which must be filed with the House and Senate every quarter. The reports detail, in general terms, what issues were lobbied, which lobbyists and firms were hired and how much they were paid for the work.

As Roll Call reports, however, these data do not necessarily mean a decline in interest group activity.

The tepid recovery and a dysfunctional Congress do bear blame, but a third, much overlooked factor exists: A lot of the work influencing government takes place in the shadows, outside of the view of public disclosures such as the LDA. And with a president who has further stigmatized registered lobbyists, K Streeters and some of their clients have made a practice of keeping their work just under the limits of the lobby laws.

In some cases, lobbyists have remained on the job, even with the same firms, but have deregistered, keeping their clients and their work secret. One prominent example is Steve Ricchetti, who stayed with his Ricchetti Inc., although no longer as a registered lobbyist, before joining the Obama administration last year. Lobbyists, of course, can’t work for the executive branch — President Barack Obama banned them — unless granted a waiver.

“I have looked at this very carefully over the years and thought about it a lot,” said James Thurber, director of the Center for Congressional and Presidential Studies at American University. “I have come to the conclusion that the deregistrations that are going on, because people find out that they don’t really need to register or they’re trying to do a little bit of shadow advocacy . . . is the most important factor.”

More than the economy, more than the partisan gridlock on the Hill, Thurber asserted, it’s the lack of enforcement of lobbying laws and the resulting move to keep more lobbying work out of public view that is depressing the LDA tallies. K Street players don’t trigger the lobby law until they make more than one contact with government officials and spend at least 20 percent of their time on lobbying activities for compensation.