Conflict of Interest and Democratic Theory: Lessons from Bruce Cain’s Democracy More or Less

Although written for Americans worried about what ails their democracy, non-Americans will profit from a close study of Stanford Professor Bruce Cain’s new book Democracy More or Less: America’s Political Reform Quandary as wellCain’s thesis is that different views about the role of citizen participation, representative institutions, interest groups, and apolitical experts in governing the United States produce sharply different prescriptions for reforming its political system.  Non-Americans will recognize that these same views inform reform in their countries, from community driven-development programs that bypass representative institutions to the replacement of elected governments with a cabinet of technocrats.  What makes Cain’s book so valuable, to Americans and non-Americans alike, is that he shows when and why reforms inspired by these competing views improve governance and when and why they make matters worse.

GAB readers will find particularly instructive his analysis of how different theories of government influence the ongoing effort in the United States to police conflicts of interest by elected officials, civil servants, and judges

“Conflict of interest” in the United States traditionally meant a conflict between a public official’s personal financial interests and his or her public duties.  A classic example is an official’s decision to award a public contract to a firm he or she owns when the firm is not the most qualified bidder.  But prompted by a vision of governance in which decisions are untainted by anything save the common good, and the populist mistrust of power-holders, conflict of interest laws have expanded to include “potential” or “perceived” conflicts between an officeholder’s duties and the “personal” interests of distant relatives, former business partners, political supporters, and constituents.  One result has been the imposition of ever more detailed regulations prescribing what constitutes an unlawful conflict, a regulatory maze now so complex that a cottage industry of ethics specialists has sprouted up to guide public employees through the thicket.

The most perverse effects of the ever expanding web of conflict rules come in their application to elected officials, an effect Cain illustrates by recounting the travails of Jerry Brown when he was mayor of Oakland, California.  Brown campaigned for mayor on a pledge to revitalize depressed areas of the city.  One reason he appreciated the need for revitalization was that he lived in one of the most depressed areas, and one reason voters might have backed him was the credibility his promise carried because of where he lived.  But California’s anticorruption agency, the Fair Political Practices Commission, ruled that it would be a conflict of interest for Brown to participate in redevelopment decisions for they would affect the value of his residence.

The ruling privileged the apolitical view of governance over the pluralist one.  Whereas the pluralist view holds that elected officials should be representative and responsive to those who elected them, the apolitical view conceives of elected officials as trustees, who are, Burke famously argued, in office to serve the broader public interest rather than the parochial interests of their electors.  Brown appealed the agency’s decision, and a California appeals court reversed it – but without deciding which of the two competing theories was controlling.

One issue that dogs American conflict of interest rules is the “revolving door” problem. That is, the potential for favoritism if not outright wrongdoing that can arise when individuals transition in and out of public service.  A person employed in the public service or serving in an elected office may try to curry favor with a prospective employer by actions that advance the would-be employer’s interest  — from issuing favorable rulings on a regulatory question involving the employer to introducing legislation that will help it.  An individual who recently left public service may take advantage of his or her expertise or contacts to advise or lobby for a client.

Cain reviews the many regulations promulgated to eliminate favoritism by those still serving in office and prevent recently employed public servants from tilting the playing field to favor a client; in doing so he identifies the dilemmas and paradoxes these rules create (as have previous posts on this blog, click here and here).  If a recently retired official shouldn’t be able to profit from her government contacts, should she be able to profit by writing books about her service?  How long should a former government employee “cool off” before contacting former colleagues?  Before advising on policy matters on which he or she worked?

When creating or revising their own “revolving door” rules developing nation policymakers will find Cain’s discussion of the problems such rules create illuminating.  The context will be different, and some of the solutions Cain proposes  — such as making more part-time or short-term public employees full-time career staff — will not be feasible in smaller, less wealthy countries. But as with many U.S. reforms Cain discusses, policymakers everywhere will find much that will inform their own reforms by seeing the effects different conflict of rules in the United States have had and considering whether the effects would be different in their own country.

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