MY LAST NERVE: Why Should Lawmakers Bother Recusing Themselves?

January 30, 2015

Inside Insight

Print Friendly, PDF & Email

conflict of interestIf the past three days of debate in the Senate are any indication of whether or not South Carolinians will see substantive ethics reform any time soon, the likelihood is slim. Granted, something may pass. But genuine, consequential reform, without loopholes? The kind of reform that actually makes corruption more difficult and more costly?

Don’t hold your breath.

The Senate didn’t get too far into the debate of S.1 – the omnibus ethics reform bill – before senators were up in arms about its content. Most of Tuesday’s debate centered on the governor’s appointment authority to the reconstituted ethics committee created in S.1. A few senators were outraged that there would be no legislative oversight of the governor’s four appointments. Curiously, though – or predictably – the fact that the governor wouldn’t have oversight authority over the legislature’s appointments didn’t seem to be a problem.

Wednesday’s debate took a different turn. The majority of debate related to a provision of S.1 that would require lawmakers to recuse themselves from all matters on an issue for which they have a conflict of interest.

The current recusal law is actually quite clear. It states: “No public official, public member, or public employee may make, participate in making, or in any way attempt to use his office, membership, or employment to influence a governmental decision in which he, a family member, an individual with whom he is associated, or a business with which he is associated has an economic interest.” If an official is required to take action on such a matter, the law requires him or her to “prepare a written statement describing the matter requiring action or decisions and the nature of his potential conflict of interest with respect to the action or decision.” Furthermore, members of the General Assembly must give their statement to the presiding officer of their chamber, and the presiding officer is required to have the statement printed in the journal and “require that the member of the General Assembly be excused from votes, deliberations, and other action on the matter on which a potential conflict exists.”

So, pretty clear.

But S.1 seeks to clarify what was described on the floor Wednesday as “the practice of the body” as it relates to following the law. Specifically, S.1 would require that if a legislator recuses himself for the reason above, he “shall do so at all times during consideration of the matter before the body or agency of which the public official or public member is a member, or which the public employee is employed.” This would apply to, but is not limited to, “participation in matters considered by committees, subcommittees, study committees, or other components of the body or agency of which the public official is a member.”

Many senators saw this amended provision as one that might be taking ethics reform too far – potentially “muzzling” them, as one put it. Of course, the law requires this already, but lawmakers continue to find ways around it. For example, a number of lawmakers sponsor legislation from which they will receive a direct benefit (see here, here, and here) and participate in the debate on the bill right up until the moment a vote is taken. Then they recuse themselves.

Clearly, that’s not much of a recusal. If you do sponsor, lobby for, and openly advocate a bill, then abstain from voting on it, that’s “recusal” only in the most technical sense. It’s almost meaningless.

Most lawmakers cite a large-class exception – see (11)(b) of the law, linked above – that allows them to get around the law. A lawmaker who happens to be a dentist, say, can push and even vote on legislation that may benefit him personally – as long as it would also benefit other dentists. In effect, then, our representatives and senators are allowed to lobby for their industries – whether formally or informally.

And here’s the important point. If nothing is done to address this exception, even the wordier, seemingly more stringent recusal requirement of S.1 won’t change this practice.

If they’re not going to address the large-class exception, then – and it seems doubtful that anyone will – lawmakers can at least provide some transparency to the process. They can pass a strong – loophole free – public and private income disclosure law. If lawmakers are going to give themselves legal cover to engage in conflicts of interest – and what honest person doesn’t think it’s a conflict to lobby for your own industry? – they could at least do it openly.

Unfortunately, the income disclosure requirement in S.1 contains several loopholes in private income reporting, and even loosens disclosure requirements on public income.

In short: until something serious happens on income disclosure, arguments about the niceties of recusal are just that. Niceties.

Jamie Murguia is Director of Research at the S.C. Policy Council, The Nerve‘s parent organization.