Part-time Legislatures Should Use Disclosure, Not Recusal, To Regulate Conflicts of Interest

For most state legislators in the United States, public service is a part-time gig; forty U.S. states have part-time or hybrid legislatures. These part-time state lawmakers have regular jobs, and while some are conventional—law or business—some are less so. (There’s the pizza delivery guy in Arkansas, the boxing and mixed martial arts judge in Nevada, the hula dancer in Hawaii, and the alligator hunter in Louisiana.) Part-time legislatures are popular because they’re cheap—New Hampshire pays its legislators just $100 per year—and also because of distrust of professional politicians and a romantic notion that the legislature should instead be a forum for citizens of varied professional backgrounds to bring their unique perspective to the lawmaking process.

But part-time legislatures also entail significant corruption risks for three reasons. First, when legislators have private sector jobs, it may be easier for them to conceal bribe payments as legitimate outside income. Second, part-time legislators’ low public salaries may make them more inclined to accept bribes or otherwise abuse their office than better-paid full-time legislators. These two factors have been discussed previously on this blog. Here, I want to consider a third factor: the potential conflicts of interest between an official’s public and private work.

A part-time legislator’s dual responsibilities will often, perhaps inevitably, conflict. Teachers will vote on education issues, doctors on health care bills, and business owners on tax plans. Lawyers, lobbyists, and insurance agents may vote on legislation that directly affects their clients. Part-time legislators may even introduce bills advancing their private professional interests. Take the Missouri legislator who introduced and secured passage of a bill prohibiting cities from banning plastic bags at grocery stores—and who also happened to be the director of the Missouri Grocers Association. Similarly egregious, lawyers serving as part-time legislators have sponsored bills raising the salaries or pensions of judges before whom they had cases. One might worry too that part-time legislators, especially those who are lawyers or lobbyists, will implicitly or explicitly use their public positions as a way to drum up business, precisely because potential clients might think that hiring a part-time legislator will increase the odds of favorable legislative treatment. And even if a part-time legislator is not influenced in the slightest by her private professional interests, conflicts like those just described still risk creating the appearance of corruption. What can be done about this?

As long as legislatures are part-time, a ban on outside work—along the lines of the restriction that members of the U.S. Congress cannot hold “professional service [jobs] that involve a fiduciary relationship” like finance, law, real estate, consulting, or insurance—is infeasible. The obvious solution might be to abolish part-time legislatures and replace them will full-time legislatures, in which the legislators are paid a salary commensurate with such full-time employment. But this is also not practicable, at least in the foreseeable future, and in any case it’s not clear that the dangers of part-time legislatures outweigh their benefits.

Another option would be to impose stricter recusal requirements. In most states lawmakers are largely left to themselves to decide whether they need to recuse themselves due to a conflict of interest, and anecdotal evidence suggests many do not. Also, even if a legislator recuses herself, in many states she may still take other actions to advance a bill, whether through informal conversations and lobbying or through procedural motions. In some states (such as Oregon and Utah), legislators are actually not allowed to recuse themselves even if they want to, while in other state legislative bodies (like the Idaho Senate and the Kansas House), abstaining requires the permission of two-thirds of the chamber. So it might at first seem natural to address concerns about conflicts-of-interest in part-time legislatures through the imposition of much stricter recusal rules.

However, it is not clear stricter recusal rules would yield better legislation for the public, for three reasons:

  • First, strict rules would exclude those who might have the most insight about a given bill from voting on or speaking about it. This is especially problematic when legislators do not have sufficient support staff and instead have to rely on one another to learn about issues. Legislators with relevant expertise due to their outside work are uniquely positioned to identify loopholes or unexpected consequences, and debate between those with opposing private interests could flesh out bills’ important policy implications. A bill voted on by those with private interests may still be preferable to a bill voted on by those who do not understand it.
  • Second, when a lawmaker’s public and private interests are aligned, requiring recusal would deny her constituents effective representation. For example, a heavily agricultural district may have elected a farmer precisely because of her job only to find she cannot vote on the issues affecting her industry. Or, a teacher-lawmaker may be handicapped in her ability to represent the thousands of other educators in her area, as she would be required to recuse herself from bills related to teacher pay or pensions. In that case, a district may strangely be better off voting in a legislator who has less in common with them, who does not understand their experiences and professions as well.
  • Third, when a legislator’s public and private interests diverge, strict recusal requirements would prevent her from voting in the public interest and against her own. To justify stricter rules, one would need to believe the benefits of keeping legislators from acting in their private interests in the case of a conflict outweigh the costs of preventing legislators from voting in the public interest, but it is not obvious that is the case.

Instead, reforms to part-time legislatures should focus on disclosure, the approach that the U.S. has employed more generally to deal with campaign donations. Currently, states vary quite a bit with respect to the income and asset disclosure requirements they impose on their legislators. A couple of states (Michigan and Idaho) don’t require lawmakers to make any financial discloses, while others (such as North Carolina and Colorado) require initial disclosures but allow legislators to file forms in subsequent years stating simply that nothing has changed. Robust income and asset disclosures, including the sources and amounts of income from each legislator’s “day job,” should happen in every state annually. State legislators should further have to declare any possible conflict of interest before voting on a bill that affects their income or one of their clients. Speaking of clients, lawmakers whose day jobs entail fiduciary relationships with clients should have especially stringent disclosure rules, including quarterly reports of client lists. (Lawyers might argue that requiring such disclosures would violate attorney-client privilege. They would not.)

Both the financial reports and the pre-vote disclaimers should be publicly and easily assessable, perhaps on a searchable database. Only with this information can voters serve as a check on part-time legislators. If voters conclude that a legislator has been abusing his or her position, the voters can vote that person out. Other legislators, too, can check each other with this information. If one legislator is pushing a bill that would financially benefit her, she will still need to convince her colleagues that the merits of the bill go beyond her own self-interest in order to move it forward. While strengthening disclosure requirements will not resolve conflicts of interests between lawmakers’ dual duties, they represent an important step toward ensuring a more robust democratic check on legislators who place their private interests over the public interest.

16 thoughts on “Part-time Legislatures Should Use Disclosure, Not Recusal, To Regulate Conflicts of Interest

  1. Natalie, thanks for this great post. So far as you know, are there any states that have implemented the sort of disclosure regime you describe? If so, do we have any sense of how effective those disclosure rules were in dealing with the kind of conflicts of interest you describe. Maybe there would be more unseating of incumbents who had engaged in visibly conflicted behavior in that jurisdiction than we’d find in comparable jurisdictions without those disclosure laws? I’m not sure exactly what the data would look like, but I’m curious if there are empirics that add some color to your very sensible idea.

    • I had a similar reaction to Jason — both in thinking this was a great post and wondering about the success of disclosure regimes already in place. The success would seem to be a very hard thing to measure, absent a connection to election defeats, resignations, or publicity. Overall on increasing disclosure, I like the idea but wonder if requiring disclosure when personal (or client) income is “affected” might be tough to administer. If a lawmaker pushes for burdensome regulations on a group of competitors to her client…would this count as affecting income? Or would changing the gas tax require disclosure from any legislator involved in a business that uses vehicles? And if it’s a mere yes/no disclosure without saying how or how much of an affect, could the disclosures just become pro forma? Of course, perfect is not the enemy of good, and the increased disclosures would be very helpful in blocking the most egregious conflicts. But I do wonder about the administrability of drawing the line on affected income. So I’d be very interested (like Jason) to hear if and how any states have tried the per-legislation disclosure you propose.

      • Thank you for the comments! Jason, I’m unfortunately not much help here. I don’t know of any states that have sufficiently robust disclosure forms and auditing (something I neglected to mention in the post), although Louisiana and Ohio may have some of the better disclosure regimes. I also don’t think there has been a study like the one you suggest, although it would be great idea. Kees, the problem you raised is the crux of the issue – when is it actually a conflict of interest? I’ve tried to deal with that in two ways: first, by requiring annual (or in the case of client lists, quarterly) financial disclosures, so that the information is at least out there for voters/non-profits/journalists to connect the dots as closely as they deem fair. Second, the disclosures of a conflict before voting on a bill, which directly invoke that earlier question (when is it a conflict?). That line-drawing challenge is hard to avoid—my hope is that by requiring only disclosure rather than recusal, legislators might be more likely to draw those bounds a little wider when making the call.

  2. Natalie, I enjoyed thinking about this post while reading a recent NYT editorial (link below) on the possibility of higher salaries for New York state legislators. I was intrigued by the example of a state where increasing salaries and making the legislature full-time might be practicable.

    In places like New York, where increasing salaries (and perhaps prohibiting outside employment) seems politically feasible, do you think it’s still better to allow outside jobs and stick with disclosure requirements?

    • Your comment (and Ross’s below) asks a question that I didn’t consider in the post but is still incredibly important: are part-time legislatures actually a good idea in the first place? I’m torn on this, but I probably come down on the side of full-time legislatures. My hunch is that the benefits of the part-time legislature have more to do with perception (not having professional politicians may make us feel better) and less to do with part-time legislators actually having more expertise, being more responsive to/engaged in their communities, or being less corrupt or trustworthy. That said, Ross makes a compelling argument for part-time legislatures below.

  3. Such a fascinating post Natalie! I remember how surprised I was when I first learned of the prevalence of part-time state legislatures.

    While I find the arguments you laid out in your post highly convincing, I am a little concerned that a focus on disclosure at the expense of recusal may actually enable many incidents of conflict of interest that otherwise would have been prevented. The success of disclosure depends of course on continuous active review by voters and by fellow lawmakers, but also on the way that voters perceive conflicts of interests. If voters in certain areas do not view them as a major factor in their voting decisions, then disclosure’s deterrent effect may be quite insignificant, and disclosure therefore would not serve as an effective substitute for strict recusal rules.

    • Thank you for your comment! Disclosure definitely depends on 1) people finding out about the conflicts (see Signa’s comment below) and 2) them caring and voting out legislators serving their own interests at their constituents’ expense. There’s a few ways to take voter inaction in the face of a perceived conflict – either the legislator was actually acting in voters’ interest (maybe everyone in Missouri really did hate plastic bag bans!) or voters are unable to appropriately check unethical lawmakers through the democratic process, and then we need ethics commissions to step in. If voters truly don’t care though, I’m not convinced strict recusal requirements are going to be all that much more effective in practice. What would be the lawmaker’s incentive to recuse herself?

  4. This is an awesomely complex and interesting issue you picked to deconstruct here. My first reaction was “this cannot be”, but then I started thinking about it and I actually don’t know anymore if I am for or against having part time legislatures in the first place… Such a solution seems very cost efficient, but at the same time – don’t we want the most qualified and skilled people for the job? If so, conventional wisdom says that they will have to be paid well in order to want to do it. On the other hand, if you look at this as a civic duty, you don’t want to send the message that this is a well paid job – instead of well paid public officials, you may actually want to have ordinary people who know very well what are the realities of their constituents… In the end, I realized that your post made me to rethink everything and I don’t know anymore which side am I on. My hunch is that such a part time solution might work really well in some socio-economic contexts and fail in others, depending on the average income of people in the country, the levels of corruption, the maturity of the democracy, etc… For example, in Switzerland the national parliament is also not a full time job – and it seems to work alright (not to say that political corruption does not exist there).

    Regarding recusal and disclosure… I am so conflicted about this issue as well! OF COURSE the disclosure should be the essence of managing potential conflicts of interest. However, I wouldn’t rule out recusal rules either. I find your arguments in the bullet points very convincing and well thought through, but I am not sure I agree with all of them. First – you argue that strict recusal rules would “exclude those who might have the most insight about a given bill from voting on or speaking about it”. To some extent that is true, but well drafted strict recusal rules should not require a person to recuse in all cases when voting is related to his / her private interests. For example, a farmer could still vote on issues related to agriculture, as long as the vote is not for a law that benefits the line of business he / she is into. Second, such legislatures could very well share their knowledge and insights with their fellow legislatures during hearings before voting, once they disclose their interests. They could then recuse themselves right before voting.

    I am also not sure that requiring recusal would deny their constituents effective representation. After all, “effective representation” means representing the entire pool of constituents fairly and not just representing the group of constituents who elected you because of your professional affiliations – even if, as in your example, the person is a farmer from a heavily agricultural district that elected that person exactly because of the profession. That legislature can do a lot of things working in his / her field of expertise before the voting stage – draft bills, suggest new policies, fix loopholes in old bills… If all of that is done with disclosure of private interests and such a person recuses right before voting on the changes suggested – I see no problem with that. But if a legislature who is a farmer and owns pig farms votes to reduce taxes for pig farms – there is no way to know whether that legislature is voting so because he / she truly believes that it is in the best interest of agriculture in that district, or whether it’s out of pure self interest….

    • I couldn’t agree more about how murky and complex this all is! To your (very good) counterpoints, I’d say: 1) The issue is not so much that recusal would prevent lawmakers from voting on all issues affecting their industry generally, but about that subset you identify where they both have expertise and stand to benefit. We may decide the benefits of recusal outweigh the cost of lost expertise, but there’s inevitably a trade-off there. 2) Allowing lawmakers to be involved in the process but not vote solves the expertise problem, but it may also erase the benefit of recusal. A lawmaker may be able to have as much or more impact on a bill by lobbying for it as she would by voting on it. I tend to think this is an all-or-nothing question: either you allow a lawmaker to lobby and vote, or you keep them out of the process entirely. 3) While representing a subset of constituents (pig farmers, for example) could come at the expense of representing the entire pool, I’m not sure those two things are necessarily exclusive. Your point at the end, though, is perhaps one of the most challenging – the system I’ve suggested places a lot of responsibility in the hands of legislators. It gives them room to vote for something in their best interest and say it’s for the good of the public. Depending on how much you trust legislators, that may be a real cause for concern.

      • Thank you for your response! I guess this uncertainty means that we need more accountability in any case (like, very clear reports on the costs and donations, etc.) and as much objective reasoning behind the bills as possible (cost-benefit analysis is my personal favorite).

  5. Natalie,
    Thank you for this post! I think my immediate reaction to it was to be in favor of recusal, but I think you outlined some very interesting reasons why that may not be the best path. I’m wondering, however, if it’s enough for disclosure to be easily accessible to the public, precisely because I feel as though most people don’t even know that part-time legislatures exist. This might be extraordinarily cynical of me to ask, but do you think that voters are informed enough to know that their state representatives hold jobs and that they would feel comfortable with just disclosure? I’m sympathetic to the idea that citizens might prefer recusal so there’s no chance of impropriety rather than the possibility of voting them out if it happens.

    • Thanks for your comment, Signa! The short answer is no. The disclosure system relies on journalists/non-profits/corruption watchdogs to publicize conflicts, but given the state of local journalism, I’m not sure how successful that will be. Cynically, I think the entities that will be most successful at informing the public will be the legislators’ opposing candidates through attack ads.

  6. Natalie, thanks for a great post! Following up on Jonathan’s comment, I think it’s interesting to consider how the “best” legislative model might differ between states. As some others have pointed out, the strength of a recusal system depends on the robustness of the local news system is (e.g., whether there are local journalists who will actually learn about and publicize conflicts of interest).

    • This is a great point—while I think stronger disclosure requirements would be an improvement across the board, this is certainly an area for states to be “laboratories of democracy” and figure out what makes the most sense in their unique contexts.

  7. Natalie, thank you for this post! It’s funny–just recently, I was having a conversation with my dad (who is not a lawyer) about conflicts of interest among elected officials, and we (ironically) focused our discussion on the problems posed by full-time legislators (and how they could be solved by requiring legislators be part-time). Indeed, our thesis was that once one becomes a full-time legislator, that becomes his/her career, livelihood, identity, etc. And when that occurs, any given legislator is more likely to begin, in their law-making capacity, responding to “self-preservation” (i.e., re-election) incentives rather than what they think is “right” (or what they think is “right” for their constituents). Of course, the natural counter to this point of view is that lawmakers actually should, in their law-making capacity, conduct themselves in a way that optimizes their chance for re-election because that means that the lawmaker is acting in a way that aligns with the preferences of his/her constituencies (i.e., the people who will determine re-election). However, I think such a view (1) ignores the reality that many of the people who comprise a lawmaker’s constituency either cannot or do not vote, and (2) doesn’t account for situations in which lawmakers should do what they think is right (even if the “right” action does not align with the preferences of their constituency). As such–coming back to your post now–I would now caveat my perspective on part-time legislators by saying that I prefer them to full-time legislators, so long as there are regulations (like disclosure requirements) being mandated.

  8. Thank you for deconstructing such an interesting issue, Natalie! I think your suggestion of using disclosure regimes over recusals is persuasive precisely because it can be so hard to draw the line between what counts as a potential conflict of interest and what doesn’t. Perhaps by lowering the stakes, legislators will be more open and honest. While I certainly agree that making more information available to the public is always better, I think one challenge that has yet to be discussed for the average voter looking to be informed is the sheer amount and complexity of business happening at a legislature every day. Some legislatures pass many bills. Bills can be long and complex and can affect many industries. Thus, it may take some time and some knowledge of complex policy questions in order to understand a legislator’s disclosure and how it impacts a bill. In fact, it may benefit legislators to be vague and legalistic in their disclosures to make their disclosures incomprehensible and avoid even the look of impropriety. I could see how a laundry list of complex disclosures could limit the impact of the proposed regime to only the issues that local journalists or opposition researchers care about.

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