This article appeared as an Op-Ed piece in the May 17 edition of USA Today.
When a judge gets a case involving a company in which she owns stock, she must sell the stock or step down—recuse herself—from the case. The same rule applies to officials in the White House and in government agencies. Should members of Congress be required to do the same?
In 1989, the bipartisan President's Commission on Federal Ethics Law Reform concluded that extension of the conflict-of-interest recusal or divestment requirements to lawmakers "would not be appropriate."
That makes sense. A legislator's job is different from that of a judge or a government executive in two important respects. A lawmaker represents and acts for others—either a district with almost 600,000 constituents or an entire state. A recused representative disenfranchises her constituents, leaving citizens unrepresented on important issues. Legislators also face voters, who have a regular opportunity to express dissatisfaction or approval with the lawmaker's voting record and ethical conduct.
Moreover, how exactly would a conflicts policy work in Congress? A policy requiring a legislator to eliminate an alleged "conflict" would create an economic burden. Selling stock results in either a loss or a tax bill on any gain. Placing assets in a "blind" trust involves fees to a trustee. Besides, the trust is not really blind because the legislator knows what assets go into the trust.
Instead of distorting conflict-of-interest principles and applying them to Congress in an attempt to fit round pegs in square holes, a better solution is to promote transparency. Currently, members of Congress (as well as all candidates for Congress) file annual reports of their assets and income. Those reports, due each May 15, disclose financial information for the previous calendar year. Perhaps earlier and more frequent disclosure is desirable, but it should be closely studied to determine whether it's practical and will be complete.
In the Internet age, personal financial disclosure reports should be filed electronically and be publicly available in searchable and downloadable format. The public has a right to conveniently access this information whether from judges, administrators or legislators. Online public disclosure will promote ethical behavior and educate voters when they next vote for their representative.