Michael Bennet and Elizabeth Warren want members of Congress to ban themselves from ever lobbying after they leave office. Here’s why it’ll never happen.
The unlikeliest 2020 promise isn’t a big-spending plan like Medicare for All, the Green New Deal, or Andrew Yang’s universal basic income—it’s an anti-corruption proposal that would apply to just 535 Americans and cost taxpayers nothing.
This pipe dream is coming from the decidedly unflashy Senator Michael Bennet, a self-proclaimed pragmatist who has chided his rivals for their unrealistic visions of a progressive future. Bennet has pooh-poohed the idea of “free college” and actively opposes Medicare for All as too costly and too disruptive to the U.S. health-care system. “You can’t fix a broken Washington if you don’t level with the American people,” the Colorado Democrat told potential voters in a video announcing his candidacy earlier this month.
Yet one of Bennet’s signature proposals for repairing American democracy might, in its own way, be the most radical of all: a lifetime ban on members of Congress from becoming lobbyists after they leave office.
Good luck with that.
The idea, one of several Bennet touched on in his announcement video, is aimed at the heart of Washington’s “revolving door,” wherein lawmakers, senior government officials, and their top aides spend their career rotating between writing laws on the Hill and influencing laws on K Street. Lobbying is the single most popular career choice for retiring members of Congress, and the ranks of ex-lawmakers in the lobbying industry have soared in the past four decades. Former House Speaker John Boehner has transformed into a paid evangelist for legal weed (after opposing it in Congress), joining Newt Gingrich, Bob Dole, and Democratic ex–Senate Majority Leaders Tom Daschle and George Mitchell as former congressional leaders who took up lobbying in their golden years.
Complaints about the revolving door are not limited to former lawmakers, nor to Republicans alone. Senior members of the Obama administration also flocked to K Street and corporate America, either as lobbyists or highly paid executives at some of the nation’s most recognizable companies. The former health secretary Marilyn Tavenner became the top lobbyist for the health-insurance trade group AHIP, while the ex–Obama adviser David Plouffe went to Uber, where in 2017 he was fined $90,000 by the Chicago Board of Ethics for illegally lobbying Mayor Rahm Emanuel on behalf of the company.
That well-trodden path between Capitol Hill and K Street has become a symbol of the swamp that both President Donald Trump and Democrats have repeatedly pledged—and largely failed—to drain. Currently, members of the Senate are barred from registering as lobbyists for two years after they leave office, while the prohibition—known inside the Beltway as the “cooling-off period”—on House members is just one year. As a candidate in October 2016, Trump called for a five-year lobbying ban for former members of both chambers. Like much of the president’s “drain the swamp” agenda, the proposal went nowhere.
Trump “put zero muscle” behind his anti-corruption proposals, says Meredith McGehee, the executive director of Issue One, a bipartisan government-reform advocacy group. “It never came up anywhere, and was never talked about,” she told me. “They were just words on a paper.” His administration has also become a haven for lobbyists. An executive order Trump signed upon taking office to limit the revolving door has gone completely unenforced, advocates told me, and the president frequently hires former lobbyists for top jobs. A prime example: After Scott Pruitt resigned as the EPA administrator under scandal, he became a coal lobbyist; the man who replaced him, Andrew Wheeler, had been a coal lobbyist as well.
Sensing an opening, both Bennet and Senator Elizabeth Warren have taken Trump’s proposal a (giant) step further by calling for a lifetime lobbying ban. “Outside of Washington, the American people understand that it is neither partisan nor unreasonable to demand members of Congress, heads of government agencies, and the president of the United States not cash in on their unparalleled access to influence government policy for the highest bidder,” Warren said in an emailed statement.
But she and Bennet may find that convincing Congress to appropriate trillions of dollars for new social programs is an easier lift than persuading lawmakers to permanently cut off a lucrative source of their own retirement income. That idea goes too far even for the purest good-government advocates, who say it’s not only wildly unrealistic but possibly unconstitutional.
The last serious effort to extend the cooling-off period for members of Congress—long pegged at one year for both chambers—came in 2007 during debate over the Honest Leadership and Open Government Act, the ethics law that stemmed from the corruption scandal involving the prominent über-lobbyist Jack Abramoff, who pleaded guilty to bribing members of Congress and defrauding Native American tribes. Lawmakers had agreed to lengthen the ban for senators to two years, but a rebellion in the House nearly killed the entire bill, recalled Craig Holman of Public Citizen, the liberal group that advocates for consumer rights and government reform, among other issues. As a result, the cooling-off period for House members stayed at one year.
Just as they did in 2006, congressional Democrats ran in 2018 on an anti-corruption agenda that assailed Trump and his Republican allies in Congress for failing to keep his promise to drain the swamp. In March, the Democratic House majority passed HR1, a comprehensive government-reform bill that addresses voting rights and overhauls campaign-finance and lobbying laws. The measure is stalled in the Republican-controlled Senate, but it lays down a marker for what Democrats might do if they win full power in 2020. Among other anti-corruption provisions, HR1 would codify an executive order signed by former President Barack Obama that restricts lobbying by political appointees in the White House and Cabinet agencies once they leave office. But it is conspicuously silent on lobbying by former members of Congress: The bill does not touch the cooling-off period currently in place for the House and Senate.
“There were a lot of different proposals that were coming at the HR1 basket as we were bringing it in for a landing,” explained Representative John Sarbanes of Maryland, the lead sponsor of the Democratic bill, when I asked him about the absence of a longer lobbying ban for former members. “Lots of moving parts.”
Sarbanes cautioned that HR1 was “not the outer limit” of where the party could go on ethics reform. But he was decidedly lukewarm on the question of permanently banning lawmakers from lobbying. Sarbanes argued that broadening the definition of a lobbyist and restricting lobbyists’ ability to influence electoral campaigns were more important reforms, and could even lift the cloud hanging over former members who become lobbyists. “It might put some value in the perspective that a former member can bring, as long as you pull the money piece out of it,” he told me.
HR1 has also won endorsements from a number of government-reform organizations, including Public Citizen. To Holman, however, the absence of a provision lengthening the cooling-off period is a signal of the bill’s political viability. “Realistically, I don’t see Congress imposing a lifetime ban,” Holman told me.
When I asked the Bennet campaign to respond to the critique that it was unrealistic to expect Congress to ban its members from ever lobbying, an aide responded with a four-word reply from the senator: “That’s exactly the problem.” The aide noted that after introducing his bill every session since he arrived in Washington in 2010, Bennet finally secured the support of a Republican co-sponsor, his fellow Colorado senator, Cory Gardner. Two first-term Republican senators, Mike Braun of Indiana and Rick Scott of Florida, have also introduced legislation to permanently ban former members of Congress from lobbying.
In the unlikely event that Bennet’s bill did pass in Congress, both Holman and McGehee said that a permanent lobbying prohibition might be struck down by the courts as unconstitutional. Judges have upheld the temporary restrictions on the grounds that recently departed members and senior staffers could use their inside knowledge and relationships in Congress to unfairly influence the legislative process. The idea is that the longer lawmakers are out of office, the less valuable their knowledge and relationships become.
“Two years is too short a time,” McGehee told me, arguing that a five-year prohibition would be the best, most achievable policy. “I don’t think in any way that’s a pipe dream.” A lifetime ban, on the other hand, would permanently block someone from a specific profession. “You’re basically saying to someone, you cannot make a living this way,” McGehee said. “That’s a pretty harsh penalty.”
In her statement, Warren noted that federal law already includes a permanent ban on lobbying; the existing ban bars former government officials from lobbying the agencies they worked for on the specific issues they worked on while in office. “There’s no constitutional right to get paid to peddle influence—rightly so,” she said. Unless Congress acts, however, a court will never have to weigh the constitutionality of a lifetime lobbying ban for former legislators. “It's not really even a partisan thing, because you basically have to get Democrats and Republicans in Congress to work together to limit what former Democrats and former Republicans in Congress can do,” said a former senior Obama administration official who now works in the corporate world and no longer weighs in publicly on political debates. “There's just not that much appetite for it.”
The proposal serves as a useful shorthand for candidates like Bennet and Warren, who want to demonstrate their commitment to changing the way Washington works. But short of a fresh scandal injecting new momentum into the push, its legislative prospects are grim. “I think you’re on solid ground to say that Medicare for All would pass first,” the former official predicted with a laugh.