Republicans withdrew a couple of controverisal proposals last week that would have severely weakened the House of Representative's ethics rules but pushed onto the books two others that still have Democrats and good-government groups shouting.
The debate, however, is mostly beside the point. Lawmakers are fooling themselves if they think changing a few rules will make much difference one way or the other. They are ignoring a much larger issue.
It's this: When it comes to their contacts with outsiders, lawmakers should worry less about internal rules and more about criminal statutes that prohibit them from taking anything of value in exchange for or because of an official act.
That's right, anything. House rules allow lawmakers to accept gifts worth up to $49 at any given time. The rules also clearjunkets paid for by groups that beg for legislation. The list goes on and on.
But the Justice Department doesn't care about House guidelines. Members of Congress can stay safely within their own rules and campaign-finance limits, yet still run afoul of federal bribery and gratuity statutes.
The House rules are quaint by contrast. Lawmakers who are found to have violated House rules, including the one that limits gifts from outsiders, can be admonished by the House or, in extreme cases, expelled. Lawmakers who break federal statutes that bar them from receiving gifts linked to official favors can be sent to jail for years.
"Intramural rules like those in the House are part of the picture, but they're not the most dangerous part," said Stanley M. Brand, a criminal defense lawyer at Brand & Frulla PC. "They don't have anything to do with the separate and more serious efforts by the Justice Department in this area."
James M. Cole, a former senior Justice Department lawyer now with Bryan Cave LLP, agreed: "Regardless of the changes that the Congress may make in their own rules, all members will still have to be aware of the criminal law and any potential liability they'd have under that. What's more, the statutes are tougher than the House rules and the penalties are a lot more severe."
No one should doubt that the feds are watching. Lawmakers at the state level have been prosecuted for accepting otherwise legal campaign contributions because they were given in exchange for a vote, said Jan W. Baran, an expert on House ethics rules and campaign finance law with Wiley Rein & Fielding LLP.
An instructive case can be found in South Carolina. Former state representative Paul Derrick was convicted in 1999 on extortion and conspiracy charges related to taking a fully disclosed, $1,000 campaign contribution in exchange for his vote on a gambling bill. The sting that nabbed him was appropriately dubbed "Operation Lost Trust."
"If somebody follows the legislature's rules to the letter but it's then proven that they took something in exchange for some official act, they nonetheless would be violating criminal law," Baran said. "Saying they were complying with the rules is not a defense."
At the federal level, such cases are rare and hard to prove. But Brand believes a new wave of prosecutions may be imminent. "The wave isn't here yet but all of a sudden it will be upon us," he predicted.
Even the two, relatively small ways that the House altered its rules last week may make congressmen more vulnerable to prosecution. The first permits either political party to stop the House ethics committee from pursuing a complaint against a lawmaker if the panel is deadlocked. The second allows a lawmaker to take any relative on a lobbyist-paid foreign or domestic trip, not just the spouse or child who previously could tag along.
If the overall effect of those changes is to give lawmakers the impression that they and their families can accept more gifts from lobbying groups, then they're getting a false sense of security. "When there's a loosening of ethics rules, there's always a danger that government officials will get sloppy, and they fall into a pattern of accepting more gifts than is reasonable and under circumstances that are dubious," Baran said.
The Justice Department tends to act only in serious cases of alleged corruption, and a member of Congress has not been indicted for years. But, Cole said, "if there's a sufficiently egregious action, [the criminal statutes] will be used again."
The ever-rising tide of money in politics makes that almost inevitable. With the average cost of winning a House seat zooming past a million dollars and the disclosed amount of lobbying topping $2 billion last year for the first time, Brand said, "the Justice Department is likely to heighten its scrutiny."
"My advice to members of Congress would be not to think you can hide behind the cloak of a House rule," he added. "That's not going to be safe harbor."
Consider that fair warning.
From the Campaign Trail . . .
Joel P. Johnson took time off from his lobbying firm last year to help Sen. John F. Kerry (D-Mass.) with his presidential campaign, along with some old friends who, like him, were political insiders during the Clinton era. Two of those pals were Joe Lockhart and Howard Wolfson, who also took leaves from their firm, the Glover Park Group.
Now that the election is over, Johnson intends to keep the working relationship going.
I hear that Johnson and a few (but not all) of his lobbyist-colleagues at the Harbour Group LLC go to Glover Park Group, which specializes in public relations and in television advertising that accompanies lobbying efforts. Johnson et al. will continue to work in alliance with Alexander Strategy Group, which is populated with well-placed Republicans. The combination could make Glover Park Group a candidate for acquisition by an even larger company down the road or a possible acquirer itself.
On the GOP side, one former star of the Bush reelection organization is likely to return to government in a plum job. Tim Adams, who was policy director of the Bush campaign (and before that a senior Treasury Department staffer), is a strong candidate to become either the White House's chief economic adviser or deputy secretary of the Treasury. He is also being considered for deputy White House chief of staff for policy and for undersecretary of the Treasury for international affairs, a job now held by John B. Taylor, according to senior administration officials.
Not bad for a fellow who co-founded and once directed the G7 Group, a District-based consulting firm that forecasts and interprets economic and political events for global financial institutions. The revolving door never stops twirling.
Jeffrey Birnbaum writes about the intersection of government and business every other Monday. E-mail him at firstname.lastname@example.org.