Thoughts on Recusals

Recently, I heard a Virginia General Assembly member speak about the progress of the 2012 General Assembly session. Among other legislative updates, the member spoke about several bills strengthening drunk driving laws being considered in the General Assembly.

Interestingly, the member mentioned that in informal conversations with colleagues, a few legislators are contemplating recusing themselves from voting on these bills should they appear before them for a vote. Their reasoning is that as lawyers whose specialties include DUI cases, they would stand to benefit financially from stronger drunk driving laws. The member responded that these are still good bills that deserve to be voted on because they will strengthen public safety.

The reality is that there will always be winners and losers when legislation is passed. Legislators are citizens as well. If a certain piece of legislation will benefit the public, the legislator, as a citizen, will certainly partake of that benefit.

People often make a big fuss about conflicts of interest that legislators may have when they vote and rightfully so. No public official should work solely for his own direct personal and financial gain while in office. However, taking this important oversight to its extreme will shutdown government and hurt the community.

If a legislator has a child who is attending a public school and that legislator votes to provide more funding for Advanced Placement programs in public schools, should that be construed as a conflict of interest for which the legislator much recuse himself? Surely, his child will directly benefit from his vote to improve public schools, but so will every other child in the community.

If a legislator is a business owner who received donations from the business community on his campaign and votes to lower the capital gains tax rate, is that a conflict of interest for which the legislator must recuse himself? Surely, he will reap benefits in his day job when he returns to business after the legislative session, but so will every other business owner and aspiring entrepreneurs.

A legislator who is an expert in information technology votes to give tax breaks for research and development in the IT sector. He was elected by the people because they felt that his expertise in technology issues will provide a vital voice in the state legislature as they deal with a transforming economy that puts a premium on high-tech industries. What would happen if he recuses himself from the vote citing that his business would benefit from the tax break? Nothing would be accomplished and the state would fall behind economically.

I think this would be a good test for legislators to apply before they consider recusing themselves from an important vote that will affect their communities due to a conflict of interest.

1. Does the public benefit outweigh the personal benefit?

If yes, proceed to #2. If no, consider recusal. This prong of the test is straightforward.

2. Is your vote bought financially or otherwise?

This is the most complicated, controversial part. Quid pro quo measures reflect dishonest cronyism and don’t just exist between interest groups and elected officials, but also between elected officials themselves. Rutherford Hayes’ deal with the Democrats to end Reconstruction after winning a disputed Presidential election in 1876 comes to mind in the latter scenario.

However, this is a very complicated situation and a firm answer depends on the vantage point. Take Texas Governor Rick Perry and his HPV vaccine mandate for example. His critics will charge that one of Perry’s top donors is Merck, who stands to benefit from an HPV vaccine mandate. They will say that Perry is paying back his loyal donor by bypassing the legislature and implementing the HPV vaccine mandate by executive order. However, his defenders will claim that the HPV vaccine is necessary to protect public health and he is simply acting swiftly to do what is best for the people.

Who is right? (I have an opinion on the above example, but that would be an off-topic digression.)

What if an elected official is about to vote on a no-bid contract that benefits only the company he owns? In this case, since the public is shut out of the competitive bidding process and the elected official would solely benefit, a recusal is in order. Yes, the public project must be completed as it will greatly benefit the community, but gaming the system so that only one elected official’s business gets the contract for construction and no other companies get to bid on the project is inappropriate and hurts the public.

What if an elected official got into office thanks to a powerful fundraising operation that gathered a lot of small and large donors and a grassroots operation that organized 500 volunteers? Recusals, at its most extreme and absurd, will cause this elected official to do absolutely nothing in office because every vote will directly benefit a donor or a volunteer in some form or fashion.

Yet, without proper oversight of the elected officials and their financial interests, we will see the return of the Gilded Age in American politics where graft, corruption, and cronyism was out of control.

The perfect balance between the two extremes is difficult to find.