Dustin McDaniel and the Lobbyist Loophole
Conduit For Action has previously written about schemes of politicians to skirt ethics rules on lobbying. One device used is to write a contract for the politician to represent a big business and then include a meaningless provision saying the contract is not for lobbying but then the politician lobbies for them without additional compensation. Another device is for the politician to call himself the consultant or attorney for the business instead of calling himself a lobbyist.
Today we bring you another lobbyist loophole. Or… perhaps more.
Dustin McDaniel
Based on documents recently released from the bribery trial of former Senator Jon Woods, it appears, at a minimum, that former Attorney General Dustin McDaniel (D) took advantage of an ethics loophole to make money as a lobbyist during a one year cooling off period before he could act as a registered lobbyist. If he actually tried to influence a legislator during the cooling off period that would be quite a different matter because it would be a felony.
The information about McDaniel’s activity comes from text messages sent to FBI Special Agent Robert Cessario from Shane Willkerson who was the attorney for former Representative Micah Neal. Neal had admitted to the FBI that he had taken bribes and was cooperating with the FBI in the investigation of former Senator Jon Woods. Micah Neal secretly recorded several conversations and the information in the text messages appears to be included on one of those recordings. The text messages reference a recording.
These text messages were sent on May 25, 2016. The “Jon” referenced in the text message is Jon Woods. The reference to the “Frank Broyles Bill” is SB9 of the 3rd Ex Sess 2016 concerning the publicity rights to a person’s name, voice, signature, and likeness.
I was visiting today with Jon in his room today about his Frank Broyles Bill. He was telling me about Dustin McDaniel opposing him when Dustin called him. Jon turned him on and off the speaker phone so that I could hear what he had to say. One thing that interested me was a statement that Dustin made about his client hiring him to represent them. He said he informed them he couldn’t represent them for a year and they didn’t care so he took the money… How can you take money for a service you can’t perform? Isn’t that the same as performing the service when you accept the check. You can hear exactly what he says on the recording. I don’t see a difference.
Several of the next text messages were redacted from the document. About three minutes later Special Agent Cessario asks “Who was McDaniels client?” Wilkerson responds, “Jon says Facebook.”
The Attorney General is prohibited from being a “registered lobbyist” for one year after leaving office. The penalty is a felony.
21-1-402. (g) The Governor, Lieutenant Governor, Secretary of State, Attorney General, Treasurer of State, Auditor of State, and Commissioner of State Lands are not eligible to be registered as lobbyists under § 21-8-601 et seq. until one (1) year after the expiration of the respective terms of office to which they were elected.
21-1-405 (a) Any knowing violation of this subchapter is a Class D felony.
Dustin McDaniel took the money for lobbying during the cooling off period but did he violate the law?
This is where the ethics law gets complicated. A person who receives $400 or more in a calendar quarter for lobbying is a “lobbyist.”[i] When McDaniel took the money he was a lobbyist. A lobbyist must register as a “registered lobbyist” “within five (5) days after beginning lobbying.”[ii] But what is lobbying? “Lobbying” is defined as “communicating directly or soliciting others to communicate with any public servant with the purpose of influencing legislative action or administrative action.”
Although McDaniel was a paid “lobbyist” when he took the money, the prohibition is written so it only applies to being a “registered lobbyist.” Although he was a paid lobbyist upon taking the money, he was only required to be registered once he began trying to influence legislators on behalf of Facebook.
There has been no allegation of Dustin McDaniel taking the next step and lobbying some public official before the cooling off period. But was it one of the possiblities the FBI followed up on.
Do you think a politician should be able to make money during the cooling off period for future lobbying?
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For more information read our article Sham Ethics Rules for AR Legislature & Lots of Loopholes
[i] A.C.A § 21-8-402 (11)(A)
[ii][ii] A.C.A § 21-8-601 (a)
