Tuesday, April 24 , 2018, 3:40 am | Fog/Mist 53º


Susan Estrich: The Other Marriage Penalty

Spouses of public officials shouldn't be allowed to lobby Congress on issues over which the officials have jurisdiction.

Energy czar-designate Carol Browner‘s husband does it. So does Health and Human Services Secretary-designate Tom Daschle‘s wife. Congressman John Dingell‘s wife has been doing it for years.

Susan Estrich
Susan Estrich
Should they all be forced to stop and go home and bake some of those chocolate-chip cookies, the very mention of which got Secretary of State-designate Hillary Clinton in so much trouble so many years ago?

Former Sen. Daschle’s wife is a lobbyist. So are former Congressman Tom Downey — aka Mr. Browner — and Debbie Dingell.

Barack Obama‘s administration has announced new and much-needed limits on lobbying for those who take jobs in the administration. It’s the latest attempt to make the ever-revolving door spin a little more slowly. But it raises, in a bad week, the issue of how, if at all, spouses should be allowed to go through that door.

It’s a bad week because one of the reasons being offered as to why securities regulators took so long to figure out that Bernie Madoff was running a Ponzi scheme might have something to do with the fact that his niece, Shana Madoff, who was general counsel to the firm founded by her uncle, is now married to one of the former Securities and Exchange Commission lawyers charged with keeping an eye on Madoff.

Shana and Eric Swanson met in 2003, started dating in April 2006 and married last year. He left the SEC in 2006, after participating in the examination of Madoff’s operations in 1999 and 2004. There is certainly more than enough blame to go around in this one, and Swanson’s reps are saying that his role in investigating Bernie came before his relationship with Shana, even if the dates do look close.

If nothing else, it proves that rules are needed, both for mates and dates, to ensure both the reality and the appearance of integrity, not to mention to avoid financial gloom and doom.

In 1992, as some might recall, Clinton came under fire for her role in representing banks and other financial institutions (what was the name of that savings and loan?) that were subject to state regulation at a time when her husband was governor of the state and appointed the regulators. Her less than artful effort to defend her decision to work full time as a lawyer (at a time when the salary for the governor of Arkansas topped out at $30,000) posed the alternative of staying home and baking chocolate-chip cookies — a slip of tongue that has left her baking countless chocolate-chip cookies ever since.

The point was that law firms, at least most of them, do represent banks and other financial institutions, and that avoiding the appearance of conflicts when you’re a corporate lawyer married to the governor is a difficult if not impossible task.

The good news is that Michelle Obama, herself a trained but lapsed lawyer, apparently has no plans to join Covington and Burling once she moves to town.

But the other Cabinet spouses, not to mention the large number of congressional spouses who work as lobbyists, are likely to come under increasing scrutiny thanks to the new Obama rules and the questions about the relationship between Mr. Swanson and Ms. Madoff.

Last I checked, Washington had no shortage of bakeries. Besides, I’m not sure Tom Downey knows how to bake chocolate-chip cookies.

Marrying someone who opts for public service is always going to require certain sacrifices, such as never seeing your spouse, filling out endless forms and the fact that for most people in top jobs, paychecks that sound like a lot are actually substantially less than what they could earn in the private sector. But it shouldn’t also necessitate the sacrifice of your career. And lobbying in Washington is a major career choice.

The obvious answer is that spouses of public officials should not be allowed to lobby their spouse’s departments. They should not be allowed to lobby Congress on the issues over which their spouses have jurisdiction. By the same token, public officials should not be reviewing or regulating businesses or concerns in which their spouses have jobs, financial interests, etc.

Adapting those rules to congressional spouses is obviously a bit trickier since Congress has jurisdiction over everything, but that’s all the more reason to do so. Lobbying your spouse may be a part of every marriage, but it shouldn’t be a form of outside employment.

Best-selling author Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her.

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