Congressman Brian Higgins lodged his complaints about the inner workings of Congress in November when announcing his plans to resign.

Higgins, the New York Democrat who has served since 2005, called the pace of Washington “slow and frustrating” and lamented that Congress is no longer working for the American people. 

It was time to leave, according to Higgins, but not at that exact moment. Higgins will depart Congress in February to start a new gig, as the director of Shea’s Performing Arts Center in Buffalo, but will remain in office in the interim.

“The window of time before his departure allows for time to communicate with residents regarding cases, tie up loose ends on ongoing projects, and better facilitate a smooth transition to a new Representative,” Theresa Kennedy, Higgins’ communications director, said in an emailed statement.

Higgins is not the only member of the House to accept a new job in November but decide to linger in Congress for several months. Bill Johnson, an Ohio Republican, will depart some time in early 2024 to lead Youngstown State University. His office declined to comment on why he’s choosing to remain in Congress in the meantime.

There are many reasons why a member might not immediately resign after accepting a new job, said Meredith McGehee, former executive director of Issue One, a nonprofit ethics and accountability group. Some are cynical — such as maxing out pensions, pocketing additional paychecks or hanging around because leadership needs their votes. Others may be more generous — like Higgins’ desire to continue serving his constituents and finish up legislative projects.

But McGehee and other watchdogs argue that ethical issues can arise when a member knows they have a set start date to work for another employer. And situations like Johnson’s and Higgins’ highlight the opacity of congressional ethics rules around outside employment and job negotiations.

“What you would really like to see is, once they’ve negotiated and agreed to a job, they would get out of Congress pretty quickly,” McGehee said. “So they don’t have two masters, so to speak. So they don’t have one eye on constituents and one eye on their future job. It is very hard to serve two masters.”

Craig Holman, a government affairs lobbyist at Public Citizen, has spent years looking at the issues related to members’ post-Congress employment and has serious concerns about lawmakers remaining in office after accepting a new job.

“When members of Congress wear two hats — one hat for their sworn public duties, and a second hat for personal financial benefit with a private sector employer — this always raises serious concerns about conflicts of interest,” said Holman. He added that the same conflicts can exist when lawmakers leave for other public sector positions. 

“Which interest are they serving at any particular time, the public interest or the interest of themselves and their private employer?” Holman continued.

According to a 2017 report co-authored by Holman, Congress responded to a series of lobbying and ethics scandals over a decade ago with legislation, known as the Honest Leadership and Open Government Act, which primarily addressed the revolving door between Capitol Hill and K Street. But it also established restrictions on employment negotiations for both chambers.

The law requires members of the House to disclose negotiations to the House Ethics Committee, which can then make the disclosure public if a conflict is determined. If a recusal is warranted, those disclosures are publicly filed with the Legislative Resource Center of the House Clerk. Senators, similarly, are required under the law to file negotiation disclosures to the Senate secretary that are then supposed to be made public.

But few reports of negotiations become public, according to Holman, who kept tally on the filings between the enactment of the law in 2007 and 2016. 

In that period, 59 senators retired, resigned or lost reelection and just eight disclosures were filed, according to Holman. In the House, 349 members retired, resigned or lost reelection and just eight negotiation disclosures and three recusal notices were filed, according to the Public Citizen report. 

“The House Ethics Committee is simply turning a blind eye to the disclosure requirement,” Holman said. A spokesperson for the Ethics Committee declined to comment.

Commonly, lawmakers file disclosure that the Ethics Committee never releases. According to a biannual report from the committee, it received 101 recusals and 287 negotiation disclosures from members and staff in the 117th Congress. There is just one employment negotiation disclosure — from former North Carolina Democratic Rep. David Price, now a professor at Duke University  — and one recusal notice — from former Texas Democratic Rep. Filemon Vela, now a partner at a D.C. lobbying firm — available publicly in the Legislative Resource Center database for all of the 117th Congress.

As of Dec. 19, no disclosures from either Johnson or Higgins were available with the Legislative Resource Center, though spokespeople for both said they’d been in touch with the House Ethics Committee.

“He has remained in contact with them since accepting the position, and he will continue to do so,” Ben Keeler, Johnson’s communications director, said in an email. “Additionally, he will continue to vote the pulse of the district, representing the citizens of Eastern Ohio, until he officially resigns sometime during the first quarter of 2024.”

Gideon Cohn-Postar, legislative director at Issue One, noted that announcing a new job before exiting Congress could be seen as a move toward transparency, especially compared with members who announced resignations without saying what they would do after Congress.

But it still raises questions. “Are they acting as congresspeople? Or are they doing the job that they just got hired to do?” Cohn-Postar said.

He, McGehee and Daniel Schuman, governance director at the POPVOX Foundation, also agreed that certain kinds of jobs raise more red flags than others. 

“If you’re going to go be a professor, that doesn’t really seem like a big conflict,” Schuman said. “But if you’re going to go work at a lobby shop… more conflicts could arise.”

McGehee said a public university and a performing arts center don’t necessarily set off fire alarms for her. And because the House ethics rule requires notification only of negotiations with a “private entity,” McGehee said a public school like Youngstown State could be exempt.

But that doesn’t mean conflicts don’t exist. And when they do, there’s too little transparency, McGehee said.

“The problem is that the public may not be aware of when conflicts arise,” McGehee said. “And there’s very little done by members who do have these jobs to make the public aware of how they’re dealing with potential conflicts.”

Higgins, through his spokesperson, said he didn’t anticipate any potential conflicts of interest and vowed to recuse himself when necessary.

Johnson did not respond when asked about the potential for conflicts generally and specifically about his Dec. 7 vote in favor of a House resolution disapproving of a Department of Education rule that would allow for student loan relief.

In the coming months, the House will likely vote on a bill to fund the departments of Labor, Health and Education, which includes funding for public universities. Cohn-Postar said a vote from Johnson on that bill could be construed as a conflict.

“It’s exactly those kinds of things that make you question, is there a conflict of interest here? When do their responsibilities shift? When are they no longer a congressman, but now the head of university?” said Cohn-Postar. “Not just legally but also as they see it. I think that is a concern and something their constituents should want to watch really carefully.”