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.