A top U.S. Interior Department nominee violated ethics laws by continuing to lobby on behalf of a major client, according to a complaint filed with prosecutors today by Campaign for Accountability, a good-government nonprofit.
The complaint came as Senate Democrats opposed lobbyist David Bernhardt’s appointment to fill the No. 2 spot at the department, arguing at a hearing that his conflicts of interest are too significant.
Behind Senate objections and the complaint is Bernhardt’s claim that he cleared the decks for his new job back in November when he shed his biggest client, the Westlands Water District in California’s Central Valley.
But during the next five months, Bernhardt continued plotting strategy, consulting with members of Congress and helping draft legislation favored by the same client he supposedly had dumped, according to water district emails and other documents made public this week.
In a disclosure form filed with Congress, Bernhardt’s employer, Brownstein Hyatt Farber Schreck LLP, stated that his “lobbying termination” was effective Nov. 18.
Citing the emails, the complaint claims that Bernhardt violated the law by continuing to act as a lobbyist for Westlands. He helped draft a proposed executive order addressing water issues in California and worked on a bill that would give big growers a larger allocation of federal irrigation water, the complaint said. That bill, the Gaining Responsibility on Water Act of 2017, passed the House of Representatives on July 12.
The complaint said: “It has been widely reported that Trump administration nominees and employees frequently have failed to adhere to ethics rules. Based on the available evidence, it appears that Mr. Bernhardt may have followed this now well-worn path by failing to maintain his lobbying registration.”
Bernhardt didn’t respond to requests for comment.
Westlands has claimed that Bernhardt, who is an attorney, merely gave legal advice. Daniel Stevens, executive director of the nonprofit that filed the complaint, accused Bernhardt of doing a lot more for Westlands than lawyering.
For example, on Dec. 9, an aide to Rep. Kevin McCarthy emailed Bernhardt regarding a water bill favored by big growers that had just passed the House.
“I just wanted to thank you for all of your help with this,” wrote the aide to the California Republican. “We will see what happens in the Senate.”
Said Stevens: “ ‘Thanks for your help on this legislation’ is much more than providing legal advice.” Westlands’ claim “doesn’t pass the smell test,” he said.
Daniel Schuman, who served on the American Bar Association’s federal task force on lobbying laws in 2011, agreed.
“The answer he gave does not lend confidence to the belief that he is not lobbying,” he said.
According to experts, the Bernhardt case is an egregious example of a routine practice in which advocates skirt transparency rules by claiming they do so little lobbying that they aren’t required to register with the government.
“They are lobbyists in every way, shape and form, except they are not registered,” said Craig Holman, government affairs lobbyist for Public Citizen, a consumer rights group.
The law doesn’t make the distinction between legal advice and lobbying that Westlands asserted. Bernhardt’s emails show he was helping a client influence legislators and other officials, and that’s officially lobbying whether or not he’s a lawyer, experts said.
But there’s a loophole in the requirement that Bernhardt seemed to invoke when he told the Senate that he’d ceased “regulated lobbying activities.”
By law, lobbyists are required to register only if they either earn $3,000 or more per quarter for lobbying or spend 20 percent or more of their working time to influence government policy. As long as Bernhardt claims not to earn much money or spend much time, he can do work for clients.
“There are tremendous loopholes,” Schuman said. “You can be a lobbyist in the generally understood sense of the word” and not be required to register.
The registration system exists so the government and public can track who is being paid to influence public officials.
Bernhardt’s billing information is not a public record, so it’s not known how much time he spent or how much money he earned. Yet water district documents show Bernhardt flying across the country to attend client meetings, joining multiple conference calls, and writing and editing reports and letters.
Plus, there’s no guarantee that people claiming to be spending less than one-fifth of their time lobbying are telling the truth.
“There is no monitoring by the Department of Justice as to how much activity these people are putting in,” Holman said. “We have a lot of people who should be registered as lobbyists, but they’re still representing clients.”
Holman said he has drafted legislation that would tighten the loopholes. Lobbyists would be required to report the names and activities of anyone who helped them do their work, such as pollsters, consultants, public relations specialists and the like.
He has yet, however, to find a member of Congress who will carry the bill.
At today’s hearing, Sen. Maria Cantwell, a Washington Democrat, contended that Bernhardt faced an inherent appearance of conflict because he has made a career of lobbying the Interior Department on behalf of oil companies and agribusiness concerns seeking relief from environmental regulations.
If approved to the government post, Bernhardt “will oversee these same companies at the Department of the Interior, making decisions on the same things he lobbied for,” she said. Recalling Trump’s famous promise to end insider dealing in Washington, she said that by pushing Bernhardt, the president “is not draining the swamp, he’s filling it.”
Cantwell said the emails show Bernhardt still was lobbying on behalf of the agribusiness concern well after the date he told the Senate he had stopped.
Sen. Bill Nelson, a Florida Democrat, also expressed concern about how Bernhardt described his relationship with Westlands.
The Republican who spoke at the Senate hearing, Cory Gardner of Colorado, didn’t respond to the conflict allegations. He called Bernhardt, who worked at the Interior Department before becoming a lobbyist, “a dedicated public servant who gained experience in the private sector” and now wanted to return to government.
After Gardner spoke, the Senate voted to end debate. A vote on Bernhardt’s nomination is expected Monday, but late today, another nonprofit was trying to head that off.
In a letter to Senate leaders, the Montana-based Western Values Project said Bernhardt might have lied to Congress. The group asked the Senate to delay the vote on Bernhardt so the Justice Department can investigate.
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