Late last month, two former policymakers and lobbyists teamed up for an op-ed in the Washington Post. It was, as the genre goes, fairly mundane: a description of a problem or a threat, and a prescription that just happens to benefit a particular corporate sector that the lobbyists just might have an interest in benefiting.
In a piece titled “Why America needs low-yield nuclear warheads now,” Michael Morell and Jon Kyl argued that Russian and Chinese nuclear modernization programs demanded a response. “Russia is intent on exploiting what it perceives as a U.S. nuclear capability gap,” they write. “We must change that calculation” by adding submarine and sea-launched missiles with nuclear warheads. This would increase deterrence and prevent nuclear war, they claim; otherwise Russia will strike first.
The only difference here is that while Morell is a lobbyist — technically speaking a “senior counsel” at advisory firm Beacon Global Strategies — Kyl no longer is. As of this writing, Jon Kyl is a sitting U.S. senator.
Kyl, who served in the House and the Senate for decades but retired in 2012, was chosen to replace the late John McCain on an interim basis, as a placeholder before a special election for the seat in 2020. But Kyl, who was sworn in September 5, never committed to filling out the vacancy for the next two years; from the beginning, he only committed to serve through the lame-duck session, and he is widely expected to leave after that. That means that the final senator for the next Congress has yet to be determined.
Few have paid much attention to Kyl, who is wrapping up one of the strangest and — to his critics — one of the most corrupt tenures in the modern history of the Senate. Kyl was a registered lobbyist at a powerhouse D.C. law firm, who lived and worked in Washington for five and a half years before taking a four-month gig as a senator. His only floor speeches have involved matters at least glancingly tied to his lobbying. His entire term of office seems like a calculated attempt to refresh his contacts and gain clout from the inside, only to spin back out to influence the institution. He’s supposed to represent Arizona, but increasingly it appears that he only represents K Street.
“Kyl’s power had diminished significantly over time,” said Jeff Hauser, director of the Revolving Door Project at the Center for Economic and Policy Research. “By getting this dip into the Senate, he gets an increased profile, an increased rolodex. It burnishes his stature but does nothing for the republic.”
Jon Kyl served 26 years on Capitol Hill, first with four terms in the House of Representatives and then with three terms in the Senate. He rose to Senate minority whip, the No. 2 position in the Republican leadership, in 2007.
Upon retirement in 2012, it only took Kyl three months to make his way through the revolving door. He actually began his career as a lobbyist, so this was a return trip. In March 2013, Kyl joined the lobbying group at Covington & Burling, the largest law firm in D.C., after a K Street bidding war for his services. Known more for white-collar defense, Covington had been building its lobbying practice as Kyl entered, hiring the former lead lobbyist for PepsiCo the year before. The job was based in Covington’s Washington headquarters. Kyl said of Covington’s formidable range of business clients, “I’ve had enough experience in the Senate and House to know how to help them out.”
Kyl didn’t formally register as a lobbyist until 2015 (Senate ethics rules prevent former senators from lobbying congressional offices for two years after leaving office). But he still advised and counseled corporate clients, and used his contacts to guide lobbying teams on targeting Congress and the executive branch. This practice is known as “shadow lobbying.”
Top clients of Kyl’s included chipmaker Qualcomm, drug companies Celgene and Merck, the Pharmaceutical Research and Manufacturers of America, tax preparer H&R Block, retailer Walmart, beer distributor Anheuser-Busch InBev, metal manufacturer JW Aluminum, and defense contractors like Raytheon and Northrop Grumman. He potentially advised far more companies informally, without personally lobbying Congress. This summer, he was brought in to help Facebook audit its platform for potential bias against conservatives.
Receipts from Kyl’s registered lobbying activities from 2015 to 2018 totaled $14.285 million, according to lobbying disclosures.
In recent years, Kyl had worked on guiding executive branch nominees through the Senate confirmation process, a position known in Washington as a “sherpa,” after the guides who help climbers tackle Mount Everest. The position is often unpaid but is lobbying in every practical sense.
Kyl served as a sherpa for Jeff Sessions’s nomination as attorney general, sitting behind him at confirmation hearings. He was paid $215,000 for lobbying work by the Judicial Crisis Network in 2017, during the time of Neil Gorsuch’s nomination to the Supreme Court; while not the lead sherpa (that was former Sen. Kelly Ayotte), he presumably engaged in some guidance.
Kyl was poised to become lead sherpa for Supreme Court nominee Brett Kavanaugh, taking him to meetings with senators and helping prepare his testimony. But then McCain died, and Kyl was tapped to fill the seat, giving him a potentially decisive vote on the Kavanaugh nomination he was working for just days earlier. “They put someone in who was active on the single most contentious issue that was about to be discussed in the Senate,” Hauser said.
At the time, the open seat was seen as a safety valve against GOP failures in Arizona. If Doug Ducey lost the governorship, he could appoint himself to the Senate seat before the end of his gubernatorial term. If Martha McSally, who previously worked for Kyl, lost the other Senate race in Arizona to Kyrsten Sinema, Ducey could appoint her. That latter scenario did happen, and there’s been significant pressure on Ducey to make good on the implied deal and seat McSally, giving her two years of incumbency for a 2020 campaign. But some Republicans in Arizona have questioned whether McSally blew a winnable race this year, making her a weak option for the next election.
But to pull this off, Republicans needed a placeholder, someone content with serving just a few months and then giving way. That fit perfectly with Kyl’s circumstances.
Despite pleading in the media that Kyl “didn’t want to do this,” others described the temporary Senate appointment as a sharp business decision. By 2018, only 60 of the 100 senators Kyl served with were still in the chamber; another five will leave at the end of the year. A short-term gig in the Senate would re-familiarize Kyl with new colleagues and show potential clients in the corporate world his established clout.
And from the beginning, it was a short-term gig. Kyl not only vowed not to run for the seat in a special election in 2020, but he also would not commit to serving beyond the lame-duck session. There have been short-term, lame-duck appointments to the Senate before — Roland Burris of Illinois, Ted Kaufman of Delaware, Paul Kirk and Mo Cowan of Massachusetts, Carte Goodwin of West Virginia — but there’s no modern precedent for an appointed senator not waiting until the next scheduled election before leaving. The last appointed U.S. senator to resign before the end of their term was Louisiana’s Elaine Edwards (wife of former Gov. Edwin Edwards) in 1972, and she only did that a few weeks early to give her successor seniority. This resignation from Kyl would be two years before the next election.
That only stoked speculation that Kyl was in the Senate mostly to benefit his lobbying career, which he could easily return to afterward, despite the ethics rules making him wait two years after leaving before lobbying colleagues. Even then, Kyl would be permitted to make social contact with members of Congress and raise money for them, along with serving in a background role advising other lobbying teams. As a former member, Kyl would maintain access to the Senate floor, parking and dining facilities in Congress, and the Senate gym, all of which are great places to run into ex-colleagues. And he could contact government officials outside of Congress, like in the executive branch.
“Kyl cannot register as lobbyist but may no longer need to,” Hauser said. “He can provide intelligence and advice on general matters. The high-end lobbyist lifestyle is such that it’s easy to choose not to be a lobbyist. It’s not a cost, it’s a benefit.”
A high-profile individual agrees with Hauser — Jon Kyl. When he signed with Covington & Burling in 2013, he told the Washington Post that he could accomplish “a huge amount of work” there without registered lobbying. “[Clients] need advice and counsel from someone who knows how government works in Washington,” Kyl said. “That’s the kind of advice I can give without getting into lobbying. I can provide my insights into the people and process on Capitol Hill for them to take advantage of in the lobbying they do.”
Everything about Kyl’s second go-round in the Senate is rather strange. Kyl had lived in Arizona when he represented the state in Congress, but by September 2018, he had a primary job in Washington for five and a half years. Article I, Section 3 of the Constitution stipulates, “No Person shall be a Senator who shall not … be an Inhabitant of that State for which he shall be chosen.” But this was never cited as disqualifying for his appointment.
There is no record of Kyl returning to Arizona during his current Senate tenure except for a trip at the end of October, when the Senate was out of session, which included a check-in on forestry projects in Flagstaff and a campaign swing for Martha McSally. There’s also no record of Kyl maintaining a residence in the state. Kyl’s office did not return a detailed request for comment.
During that McSally campaign event, Kyl talked to the Arizona Republic, mainly about whether he’d leave the Senate at the end of 2018. “It’s certainly an incredible honor to go back to work for the people of Arizona … but I have family needs as well, and so we’ll decide what to do at that point,” Kyl said.
“Family needs” is a euphemism for the desire to hoover up more money as a lobbyist, for which the rent-a-senator stint will provide a chance to raise his rates.
Kyl is using McCain’s Senate office and his legislative offices in Arizona. Kyl’s staff appears to have borrowed from McCain; his press secretary Rachael Dean Wilson was a McCain aide. He was given McCain’s old committee assignments on Indian Affairs, Homeland Security, and Armed Services. These don’t connect to what Kyl had previously held at all; he was on the Judiciary and Finance committees.
It does, however, connect to Kyl’s lobbying clients. The Armed Services Committee in particular is a plum assignment for a once and (potentially) future Northrop Grumman and Raytheon lobbyist (or non-lobbyist, as the registration case may be).
Since returning to the Senate, Kyl has amassed a voting record that’s 100 percent in alignment with President Donald Trump. Many of his former clients have business before the Senate. Freeport McMoran, a mining concern, wanted copper on a draft list of critical minerals; Kyl had lobbied for them. Qualcomm wanted its hardware to be used in vehicle-to-vehicle communication; Kyl had lobbied on that.
Kyl has so far made exactly two speeches on the Senate floor. One announced his support of Kavanaugh, for whom Kyl served as sherpa before he became a senator, during the early part of the confirmation process.
The other speech was a half-hour disquisition on the National Defense Strategy Commission, a graybeard panel appointed by Congress to study military readiness and future needs. Kyl served on the commission prior to his Senate tenure, and his speech on the commission’s report was basically a 30-minute infomercial for its fear-mongering about a “degraded” military and the emergency need to boost spending.
This conveniently dovetails with defense contractor desires for increased spending on weaponry and personnel. “We might lose a war with China or Russia,” Kyl intoned preposterously, and “the only way to avoid this is to adequately fund the strategy that the Secretary of Defense has set out.” The U.S. spends more on its military than the next eight countries in the world combined. A recent exposé in The Nation found that “$21 trillion of Pentagon financial transactions between 1998 and 2015 could not be traced, documented, or explained.”
Kyl wasn’t done lobbying while serving as a lobbyist-turned-senator, as his op-ed with Morell, who also sat on the commission, indicates. The concept of low-yield nuclear weapons to deter Russia, promoted in the op-ed, is a core part of the Pentagon’s defense strategy. This is being actively debated on Capitol Hill, just at the time Kyl has come to perch in the Senate. Of course, building new nukes would transfer billions of taxpayer dollars to defense contractors, like Kyl’s former clients. But as Kyl and Morell say in their op-ed, mimicking Defense Secretary Jim Mattis, “America can afford survival.”
“The speech underscores why a full financial disclosure is needed before serving in the Senate,” said Hauser. But Kyl has not provided one. He’s exploiting a loophole in the Senate disclosure process. All senators running for office must disclose their finances during the cycle in which they run. But temporary appointments are not required to do so. “Arizonans and the American people have a right to know the incentives he has to make such a speech,” Hauser noted. “Are they principled opinions or part of a past and likely future financial relationship?”
If, as expected, Kyl leaves office in December, he will have never fully disclosed his financial relationships beyond clients for whom he has directly lobbied. While those are troubling enough, it’s impossible to know how wide the tentacles extend.
“It’s quite possible that Kyl came into the Senate planning to spend a shockingly little amount of time there, only to go back into private practice,” Hauser said. “People may have known he was a senator-in-waiting while at Covington. This is unique in American history.”