Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Even by Washington standards, Aurene Martin’s spin through the revolving door was a quick one. On Sept. 10 of last year, the former acting head of the Bureau of Indian Affairs stepped down to become a partner in the Indian law group of Holland & Knight. Within weeks, according to Senate disclosure forms, she was lobbying her former agency on behalf of the Lower Lake Rancheria, a landless, 53-member tribe seeking to build a controversial casino in Oakland, Calif. She also began lobbying Congress on behalf of the National Indian Gaming Association. Ethics laws ban senior-level government officials from directly lobbying their former agencies for one year. But Martin benefited from a special exemption: Since the 1970s, ex-BIA officials have been able to represent tribes before their former agency without waiting out the one-year cooling-off period. “People on the outside have the perception that it’s a huge influence game,” says Martin. “[But] I think you have to believe in the good of most people.” The revolving door is swinging as fast as ever: From 1997 to 2004 the 20 largest federal contractors alone hired 224 former high-ranking government officials to serve as lobbyists, board members, or executives, according to a report by the nonprofit Project on Government Oversight. There are ethical controls in place aimed at restricting the ability of those officials to lobby their former agencies on behalf of industries and special interests. But Martin’s move is one of many examples of ways around those controls. And, critics complain, the ones that are in place are largely toothless. “Government service has become a steppingstone to high-paying jobs in the private sector,” says Danielle Bryan, director of the Project on Government Oversight. THE INDIAN EXEMPTION The exemption that allowed Martin to immediately lobby the agency she used to run wasn’t always controversial. The law was passed three decades ago, before the legalization of Indian casinos, when tribes were much poorer and had trouble attracting legal counsel. But with the advent of legalized gaming on reservations, and the billions of dollars in revenues it generates, the equation changed. Most significantly, the BIA’s power to grant tribes federal recognition is now frequently viewed mainly as a vehicle for the opening of a casino. Martin, for instance, was vilified by politicians in Connecticut for her decision in January 2004 to grant official recognition to the Schaghticokes, a 300-member tribe hoping to build a casino in Bridgeport, Conn. “The exemption was meant as a positive to help tribes out,” says Martin. “Now it’s viewed as a negative thing.” This summer, Sen. John McCain (R-Ariz.), the chairman of the Senate Indian Affairs Committee, introduced a bill to end the exemption that helped Martin. The bill remains in committee, and similar legislation has stalled in previous years. But even without the BIA exemption, it’s more than likely Martin would have been able to build a successful law and lobbying practice within months of leaving public service. That’s because there are other, more common strategies that comply with the ethics laws and allow former high-ranking public officials to go to work as advocates for corporations and trade groups. Martin’s colleague at Holland & Knight, former Colorado Sen. Ben Nighthorse Campbell (R), has also worked on behalf of the tribes since stepping down from his post as chairman of the Indian Affairs Committee in January. Ethics laws prohibit former senators and representatives from making “any communication to or appearance before” Congress with the intent to influence legislation for one year. But the law permits former members to operate behind the scenes, a situation that has drawn criticism from watchdog groups. “You can still plan the whole strategy, do the grass-roots work, the media, the campaign. . . . You just can’t make the call,” says Craig Holman, an analyst for Public Citizen. “So you have other members of your team pick up the phone and make the call. That’s why members of Congress are so cherished.” Campbell says that since leaving the Senate, he’s spent much of his time on the road meeting with Holland & Knight’s tribal clients. He’s spoken to the National Indian Gaming Association, and says that part of his job has been communicating to the tribes “what Holland & Knight can do for them.” Former members of Congress, he says, make particularly effective lobbyists. “Let’s face it, when you serve with someone for years and years you develop a relationship with them,” Campbell says. “They become more than your colleague � some of them become your friends.” SWINGING BOTH WAYS But the revolving door sweeps not only policy-makers and regulators into the arms of Washington’s law and lobbying firms, it also allows lawyers and lobbyists who advocate for regulated industries to become regulators. In late July the Senate confirmed Kirkland & Ellis partner Granta Nakayama to head the enforcement division of the Environmental Protection Agency. With a master’s in nuclear engineering and 10 years of practice in environmental law at a top-flight law firm, Nakayama appears well credentialed for the job. But he and his firm have also profited by advocating for a number of industries that are heavily regulated by the EPA. According to Senate disclosure forms, from 2002 to 2004, Nakayama and another Kirkland lobbyist billed $320,000 to lobby Congress and the EPA on pollution controls on behalf of engine manufacturer Briggs & Stratton. Court records also show that Nakayama has recently represented the auto industry and snowmobile manufacturers in federal court, to fight air-pollution restrictions. Nakayama’s firm has represented W.R. Grace & Co., Dow Chemical Co., BP, and DuPont. In response to questions regarding Nakayama’s potential conflicts of interest, an EPA spokeswoman issued a statement saying that Nakayama “is consulting with EPA’s ethics officials to determine the most appropriate course of action” in order to “avoid conflicts and ensure fairness.” But critics say that in practice, oversight of the reverse revolving door is weak. While senior policy-makers are expected to recuse themselves from issues in which they have a conflict of interest, they also have the option to seek a waiver from their agency’s ethics officer or general counsel to continue working on the issue. “You’re supposed to recuse yourself on matters involving your former employer,” says Philip Mattera, director of the Corporate Research Project, a liberal-leaning nonprofit. “Our impression is that this is not done very rigorously. The rules aren’t that strict to begin with, and then you can get a waiver from the rule.” Associate Attorney General Robert McCallum was the recipient of one particularly controversial waiver while overseeing the Justice Department’s multibillion-dollar racketeering lawsuit against the tobacco industry. McCallum had sought a waiver because his former firm, Alston & Bird, had done intellectual property work for R.J. Reynolds & Co. In June, as the political storm grew over the DOJ’s decision to reduce the proposed penalty in the tobacco case, the department’s Office of Professional Responsibility opened an investigation into the granting of McCallum’s waiver. A DOJ spokesman declined to comment on the status of the investigation. Another controversial waiver was issued two years ago, to Thomas Scully, then-administrator of the Centers for Medicare & Medicaid Services. The waiver allowed him to speak to a number of law firms and investment companies about jobs, even while he was working as lead negotiator on the White House’s $500 billion Medicare prescription drug plan. Scully left the government for the D.C. office of Alston & Bird in December 2003, soon after the plan passed Congress. But the granting of a waiver was far from unusual. According to documents obtained by Public Citizen through a Freedom of Information Act request, the Department of Health and Human Services granted all 37 requests for conflict-of-interest waivers that it received from January 2000 through November 2004. Soon after Scully’s waiver came to light, the White House ordered agencies to stop approving waivers for job-seeking employees. Scully says he followed the rules, consulting with the agency’s general counsel and obtaining the waiver before entering job negotiations. “I think I did it exactly by the book,” he says. “The system provides plenty of controls.” POTENTIAL FOR CHANGE Nevertheless, prosecutions for revolving-door violations are rare. From 2001 through 2003 the Justice Department secured just a single conviction under the criminal statute governing post-employment restrictions on government employees, according to TRAC, a criminal database at Syracuse University. The Office of Government Ethics and the Justice Department are conducting a review of the ethics laws, as directed by Congress in last year’s intelligence reform bill. This year, as part of its appropriations for the Defense Department, the Senate Armed Services Committee required some contractors to inform the government when they hire former Pentagon officials. Additionally, bills have been introduced in both houses of Congress aimed at slowing the revolving door and tightening restrictions on lobbying. Among the proposed provisions: increasing the “cooling off” period for senior officials from one to two years, banning “behind the scenes” lobbying during that period, and stripping perks like gym memberships and floor privileges from former senators turned lobbyists. But not everyone who’s pushed his or her way through the revolving door to a profitable lobbying career is opposed to tougher standards. Martin, the tribal lobbyist, says she wouldn’t oppose tighter restrictions on BIA officials. Even if the rules change, former government officials will continue to be valued. Outsiders “can read in the regulations how the process is supposed to work,” Martin says. “But you don’t really know how things work.”
Jason McLure can be contacted at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.