Capital Closeup: Conflicts of interest inevitable in legislatures; rules that govern legislator recusal and voting vary from state to state

Stateline Midwest ~ May 2013

Legislating is not a full-time job for most of the Midwest’s 1,550 state lawmakers — at least when it comes to pay. In 2012, only legislators in Illinois, Michigan, Ohio and Wisconsin were paid salaries above the nation’s per capita income of $42,693. And in Michigan and Ohio, the advent of term limits means state lawmaking is, at most, only a temporary career.

Nicholas Kusnetz of the Center for Public Integrity says voters have largely embraced the idea of a “citizen legislature” — individuals from different walks of life gather in the capitol, conduct the state’s business, and then return to their homes and places of employment.

It sounds good in theory, Kusnetz says, but he adds that states should do more to address an unavoidable reality: the slew of conflicts of interest that arise when lawmakers rely on outside income.
“It’s really hard to write a strict law that directs legislators to avoid a conflict of interest,” notes Kusnetz, who investigates and reports on state corruption and transparency. “There are just so many gray areas.”
What is needed instead, he says, is a mix of clear rules and strong enforcement. Even then, though, gray areas are likely inevitable.

Michigan Rep. Vicki Barnett recalls debate over a bill in her home state a few years ago to ban smoking in bars and restaurants. One legislator who owned such an establishment felt the need to refrain from voting; other legislators with sihttp://www.csgmidwest.rgmilar outside interests did not. 

Michigan House rules do no prohibit conflict-of-interest voting. Conversely, the Michigan Senate is one of seven legislative chambers in the Midwest (see table) with explicit language, in state statute or legislative rules, directing members not to vote. The Michigan Senate prohibits votes when members have a “personal, private, or professional interest in a bill.”
In 2009, Barnett introduced legislation (HB 4379) that would have prohibited all state lawmakers from voting on a bill from which they would “derive a direct pecuniary gain or suffer a direct pecuniary loss.” The measure was passed overwhelmingly in the House and stalled in the Senate. 
But Barnett says that even if such a voting prohibition were to pass, it alone would not be enough to address concerns about conflicts of interest, especially because of Michigan’s term limits law.
“What you see is people sometimes auditioning for their next job,” Barnett notes. 
As a result, she also supports a ban on former members lobbying state government immediately after leaving the Legislature.
Kusnetz cites two other policies that he believes are a necessary complement to any state’s conflict-of-interest rules.
The first is requiring “full financial disclosure that is easily accessible to the public and up to date.” Most states now mandate some kind of online disclosure, but Kusnetz says detail and independent oversight are often lacking. For example, legislators might provide their general source of income (what they do for a living), but are often not required to provide a list of their clients.
Kusnetz’s second suggestion is for states to have an independent ethics commission that provides advice to legislators, that can initiate investigations of ethics violations, and that can enforce any violations.


Capital Closeup is an ongoing series of articles done by CSG Midwest highlighting institutional issues in state government and legislatures.