Problems with the Disqualification Argument

Anonymous

Mon, 10/21/2013 - 07:42

Conflicts

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 <a href="http://www.cityethics.org/ethics%20book" target="”_blank”">my
book Local Government Ethics Programs.</a> 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:<blockquote>

There are state and local governments that actually prohibit
withdrawal from a vote, except in relatively extreme situations.
Michigan is one of these states. <a href="http://www.legislature.mi.gov/%28S%28obyi2045p5gxfi55lhfyrc55%29%29/mil…; target="”_blank”">Charter
Township Act §42.7(6)</a> 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.</blockquote>

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 <a href="http://ethics.house.gov/financial-dislosure/policies-underlying-disclos…; target="”_blank”">House
Committee on Ethics' "Policies Underlying Disclosure"</a> states:<blockquote>

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.</blockquote>

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. <a href="http://www.alaskadispatch.com/article/20130404/why-can-alaska-lawmakers…; target="”_blank”">An article in the Alaska Dispatch</a> 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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