Problems with the Disqualification Argument

A colleague asked me recently about the argument that withdrawal from participation by a legislator, who cannot delegate to someone else, "disenfranchises" that legislator's constituents. Since disenfranchisement is a terrible thing, the argument goes, legislators cannot be asked to withdraw from participation, but only to disclose their conflicts.

I have not sufficiently countered this argument here in my blog or in my book Local Government Ethics Programs. In this blog post, I will point out many problems with the disqualification argument. But first, here is a lightly edited version of what it says in my book about "duty to vote" laws, which block laws that require officials to withdraw when they have conflicts and are often based on the disqualification argument:

There are state and local governments that actually prohibit withdrawal from a vote, except in relatively extreme situations. Michigan is one of these states. Charter Township Act §42.7(6) requires charter township board members to vote, except on a vote to appoint oneself to a township office. Only a unanimous vote of the board can even allow a board member to abstain.

For the most part, statutes such as this predate the modern era of government ethics. But some of these statutes are still on the books, and there are still many officials who hide behind the “duty to vote.” They place the duty to vote (and supposedly represent one’s constituents) ahead of the duty not to use one's position to help one's family and business associates (which is also not representing one’s constituents). Some officials even argue that voting with a conflict is just the sort of difficult, unpopular decision legislators are sometimes required to make.

When this argument is made, the response should be that this is not the sort of decision that is contemplated when one speaks of difficult, unpopular decisions. Those decisions involve unpopular policy issues. Government ethics involves a procedural, practical issue: dealing responsibly with one’s conflict situation.

Other arguments for requiring officials to vote include:

(1) Abstention disenfranchises constituents. However, a representative voting, or seen to be voting, for her personal interest is also effectively disenfranchising her constituents, who voted for someone to represent the public interest, not their personal interest.

(2) Abstention is considered a negative vote in some jurisdictions. Therefore, requiring an official with a conflict to abstain does not merely remove one vote; it helps defeat a motion. A simple solution to this problem is to change the rule so that an abstention is not a negative vote.

A serious problem with statutes and ordinances that require voting is that they focus solely on voting, providing no guidance with respect to the rest of an official’s handling of a conflict. Does an official withdraw from the matter and then vote? Or does the duty to vote include the duty to advocate for a matter even though you have a special relationship with someone involved in the matter? Most of these statutes show no sign of there having been a balancing of the obligation to constituents to vote against the obligation to constituents not to vote, or be seen as voting, for one’s personal interests over the public interest.

In New York City, members of the council are permitted to vote with a conflict, but they cannot otherwise participate in the matter and they must disclose their conflict both on the record and to the conflicts of interest board. This is the most responsible way to deal with a situation where voting is required. But it is best not to require voting at all.

The Congressional Disenfranchisement Argument: Community of Interests
A Google search brought up few disenfranchisement arguments against withdrawal from participation. They came solely from legislators. For example, the federal House Committee on Ethics' "Policies Underlying Disclosure" states:

Financial disclosure provisions were enacted to monitor and to deter possible conflicts of interest due to outside financial holdings.  Proposals for divestiture of potentially conflicting assets and mandatory disqualification of Members from voting were rejected as impractical or unreasonable. Such disqualification could result in the disenfranchisement of a Member’s entire constituency on particular issues. A Member may often have a community of interests with the Member’s constituency, and may arguably have been elected because of and to serve these common interests, and thus would be ineffective in representing the real interests of the constituents if the Member was disqualified from voting on issues touching those matters of mutual concern.

It is notable that this argument does not even acknowledge the harm to constituents when a legislator appears to be voting in her personal interest rather than in the interest of her constituents. Yes, sometimes there will be a community of interests. But sometimes there will not. In fact, at the local level, most of the time there will not be a community of interests. No community elects a local legislator (or state or federal one, for that matter) so that she can give a contract to her brother or approve a land use permit to her employer.

A Discussion About Alaska's Duty-to-Vote Statute
The disenfranchisement argument looks very different when it is part of a discussion. An article in the Alaska Dispatch looked at a "duty to vote" statute in Alaska. This year, the state senate voted 11-9 in favor of reducing oil taxes. Among the senators who voted for the cut were two employees of Alaska's largest oil producer, which would therefore be one of the largest beneficiaries of the proposed tax cut. The two senators asked to be recused from voting, but their colleagues pointed to the law that required them to vote.

This situation led another senator to propose changing the rule. He is quoted as saying, “Alaska is an outlier in the way we do this. Most states say if you have a conflict, you don’t vote, period.”

Former Alaska attorney general John Havelock said, “What were they supposed to do, vote against their employer? It’s outrageous that they should be required to vote.”

Another former AG, Bruce Botelho, is quoted as saying, “The public’s confidence in their Legislature is tied directly to their sense that the Legislature is working both individually and collectively on behalf of the state.” He supported changing the rule.

Oddly enough, to make the disenfranchisement argument, the article quotes one of the two senators who asked to be excused from voting, but then voted for the tax cut: "You'd have a population the size of Fairbanks being totally disenfranchised."

Actually, if the senator felt his constituents wanted him to vote against reducing the oil tax, but he felt obliged not to vote against the interests of his employer, he would then be disenfranchising his constituents in addition to undermining their trust in the government. As it was, the senator did not apparently acknowledge the pressure on him to vote in favor of his employer, or the appearance that, in voting in his employer's interest, he might not be seen as voting in the public interest.

Even if a majority of his constituents favored a cut in the oil tax, that would certainly not be the reason they elected him, and the senator would be free to vote in what, with his better information and understanding, he considered to be the public interest.

In any event, there is no way that the public could know the true reason for his vote. The public can only go on the basis of appearances. And it appeared he was voting in his employer's interest and, therefore, his own personal interest.

The Responsibilities That Accompany the Inability to Delegate One's Duties
The disenfranchisement argument raises a variety of interesting issues. One basis for the argument is that legislators cannot delegate their duties. The disenfranchisement argument says that this gives them the responsibility to participate despite a conflict.

But an alternative argument is that the inability to delegate their duties gives legislators greater responsibility with respect to their conflict situations. If they are likely to find themselves in multiple conflict situations or even one very important conflict situation, the responsible thing to do is either (1) not run for office, (2) quit their outside job or divest themselves from their interests, or (3) let voters know in advance that their representative will be required to withdraw from matters that could benefit them, their employer, or their family members. A legislative candidate has an obligation to warn his constituents that, if they elect him, they will be "disenfranchised" with respect to these matters. It is not responsible to tell them later that, because dealing responsibly with his conflict situations would disenfranchise them, he cannot deal with them responsibly and instead must vote in a way that will look like he is benefiting himself or his employer.

Doing Less "Disenfranchises" Less
There is something else that legislators can do to prevent their constituents from being "disenfranchised." They can draw the line better between what legislators and administrators do. If legislators were to limit themselves to policy matters, and get involved as little as possible in matters involving specific land use projects, contracts, grants, and industry regulation, a great many conflict problems would simply not exist. It is legislators' insistence on getting involved in nitty gritty matters that requires the frequent "disenfranchisement" of voters.

Why do legislators get involved in such nitty gritty matters? An important reason is that this brings them a lot of their campaign contributions. Contractors don't give money to people who have no influence over contracts. Developers don't give money to people who have no influence over land use decisions. Industries don't give money to people who have no influence over industry regulation.

In other words, it is legislators, not withdrawal requirements, that cause much of the "disenfranchisement" of voters. This is especially true at the local level.

The Constituent's Point of View
Then there is the question of whether constituents feel disenfranchised by their representatives' withdrawal due to conflicts. Put differently, are the areas where withdrawal is most often required the areas voters really care about, to the extent they would feel disenfranchised?

Does anyone feel disenfranchised because a council member does not get involved in approving a contract or land use permit, or in handing out a grant? Wouldn't they feel better if this were left to administrators who don't have jobs on the side and don't take large campaign contributions from contractors, developers, and grantees? Isn't it the broad policy matters and leadership abilities that lead people to vote for particular candidates?

I've never once heard a candidate promise she will give a no-bid contract to her brother because he's the best for the job, or someone say he is going to vote for someone because she's the best at deciding whom to sell government land to. These are not campaign issues. Nor are they really ways in which council members represent their constituents. Therefore, it is hard to argue that withdrawal from such matters disenfranchises anyone.

Policy Issues
Yes, there are cases where a legislator does have a conflict with respect to a policy issue. Take the Alaska case. This involved a tax on an entire industry, which is a policy issue. Conflict of interest code should recognize that policy issues are generally not areas where officials need to withdraw. They can do this by having an exception for matters that affect a lot of people (the City Ethics Model Code exception excludes situations where the benefit to an official is "shared with a substantial segment of the city's population").

The situation in Alaska was not a typical policy issue for the two Alaska legislators, because they worked for a company that was the largest beneficiary of the tax. Thus, it could be argued that rejecting the tax disproportionately benefited the legislators' employer. However, a lot of people work for the oil industry in Alaska, so this is a difficult case. The discussion should have been less about disenfranchisement and more about the appearance of impropriety and the extent to which the oil tax benefit was shared by a substantial segment of Alaska's population.

But in most cases, a legislator or his employer would not disproportionately benefit from a policy decision and there would be many individuals and firms affected by the decision. Therefore, legislators would be allowed to participate in the great majority of policy matters. And these are the matters that generally interest the public, in terms of what they expect from their representatives.

Actually, It's Not About Constituency
It is worth considering here the fact that government ethics is not just about constituency. That is, conflict of interest rules do not exist primarily to protect a particular legislator's constituents or their trust in their representative. They exist to protect the entire public's trust in its government. There are many occasions where a council member's constituents are willing to ignore her ethics violations. In some cases, they may benefit from illegal ways of bringing city money into their district. In these cases, it is the residents of other districts whose trust is undermined. That is why ethics commissions are citywide bodies, not district bodies. They are intended to protect trust in the government, not to consider the value to the district of a representative's misconduct.

Therefore, disenfranchisement of constituents is not really an appropriate consideration with respect to government ethics. A representative should take responsibility for representing constituents as much as possible, but she should do so not by passing "duty to vote" laws or by arguing that she cannot withdraw because it would harm her constituents, when her constituents see it differently. She should take responsibility by anticipating and dealing with conflict situations as early and professionally as possible, which includes seeking advice from an ethics adviser. And when one legislator asks to withdraw, the others should allow this withdrawal, even if it may mean the loss of a vote for one's side. Talk about a difficult, unpopular, but responsible decision!

Use of the Word "Disenfranchisement"
It is worth noting that more common uses of the term "disenfranchisement" refer to groups of voters, usually minorities, felons, and members of the opposing political party. In no other context are constituents of a legislator considered "disenfranchised."

Robert Wechsler
Director of Research-Retired, City Ethics

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