Conflict of interest has been a frequent topic in the news, as people debate the ethics of President Donald Trump’s foreign and domestic business dealings.
The principle of “conflict of interest” is clear: It’s the difference between personal interests and official responsibilities. Conflict-of-interest laws have been established, as Justice Antonin Scalia put it, to ensure each lawmaker will use his influence and his vote “as trustee for his constituents, not as a prerogative of personal power.”
What is less clear, though, is how to know when a politician has chosen personal gain over public good. How can you judge a senator’s personal intentions when he or she votes?
The problem of divided loyalties reaches back to the early years of our republic. Thomas Jefferson knew the money of special interests would tempt lawmakers. When he presided over the Senate in 1801, he established a rule that said, “Where the private interests of a member are concerned in a bill or question, he is to withdraw.”
Whenever a congressman did not recuse himself from matters touching on his personal interests, the law continued, his arguments and his vote should be tossed out.
It would be hard to say how faithfully Congress followed Jefferson’s law. But we know that, just seven years after Jefferson’s death, Senator Daniel Webster was selling his services to the Bank of the United States. Webster was on the committee that was considering the bank’s charter at a time when President Andrew Jackson wanted to shut it down. Webster strongly supported the bank, but not for free, it appears. In 1833, Webster wrote the bank president, “I believe my retainer has not been renewed or refreshed as usual. If it be wished that my relation to the bank should be continued, it may be well to send me the usual retainers.”
By 1874, the House of Representatives had fallen even further from Jefferson’s strict adherence. In that year, it passed a law that allowed congressmen to vote in their private interests so long as the measure benefitted others — presumably their constituents. The law was promoted by Speaker of the House James Blaine. At the time, Blaine was offering his services to the Little Rock and Fort Smith Railroad in exchange for stock.
By 1962, corruption scandals prompted Congress to pass Title 18, Second 208 of the U.S. Code. This law barred legislators from participating in matters in which they, their families, their business partners, or their associations could financially benefit.
When the legislators wrote the law, they made it apply to all public officials in the federal government except the president and vice president.
The law hasn’t resolved all the questions about conflicted interests. Enforcing the law requires investigators to prove that a legislator intended to benefit himself, and it’s hard to prove intentions.
While the Post editors welcomed the 1962 law, they expected further problems with congressional corruption. So they offered a simple solution, one which would resolve questions of who benefited from what: disclosing personal finances.
Disclosure: An Antidote for Conflict of Interests
Last fall Post editors Ben Bagdikian and Don Oberdorfer explored in depth the problem of conflict of interests in the Congress of the United States. They reported that while the Congress forbade government officials and judges to hold private financial stakes which might conflict with their public duties, there was nothing to prevent members of the legislative body from doing that very same thing themselves. Bagdikian and Oberdorfer concluded that “one possible solution to the problem of hidden interests is for every member of Congress, or every candidate for Congress, to reveal his finances to his fellows and the public.”
Several members of Congress had already taken this step. Sen. Joseph Clark revealed his wealth last fall, and his fellow Pennsylvanian, Sen. Hugh Scott, followed suit. Sen. Stephen Young of Ohio sold his stock in two sugar companies and an airline when committee assignments gave him special powers in these fields. He also disclosed his stock holdings.
Recently Sen. Jacob Javits of New York revealed his stock holdings on the floor of the Senate. His colleague, Sen. Kenneth Keating, announced his intention to publish a list of his securities holdings and introduced a bill to require such disclosure by members of the House and Senate. Congresswoman Edith Green of Oregon has proposed establishment of a 15-member commission on legislative ethics to study the conflict-of-interests question. She has introduced bills that would require, among other things, a full disclosure by congressmen of their financial interests.
Congress should pass such legislation. It would accomplish two important objectives: First, it would eliminate the double standard that now prevails by putting Congress on the same ethical footing with the executive branch of the Government; second, disclosure would be the most effective means of preventing members of Congress from taking advantage of the public trust that their public offices imply.
Editorial, April 6, 1963
Unfortunately, disclosing finances doesn’t end all questions of conflicts of interest. Last September, Donald Trump filed a 104-page financial disclosure, but he didn’t share his tax returns. For critics, many concerns remain.
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Politics is the usual grounds for rejecting a Cabinet nominee, but candidates have found themselves locked out of the Cabinet for other reasons, including revenge, arrogance, and just plain stupidity.
- Burned bridges. John Tyler made a lot of enemies when he became president. He’d been a member of the Whig party for years but, once in office, he vetoed several bills introduced by his own party. The Whigs responded by kicking him out of the party and rejecting four of his Cabinet nominees. Tyler was so determined to get his treasury secretary confirmed that he nominated him a second and third time on the same day. The senate rejected him all three times.
- Too much sugar. Charles B. Warren was rejected for the Attorney General’s position under Calvin Coolidge because of his ties with the powerful sugar industry. Opponents believed he would not enforce anti-trust laws.
- Bank error. Roger B. Taney was rejected for Treasury Secretary because, at President Andrew Jackson’s orders, he withdrew federal funds from the Second Bank of the United States, which put it out of business. Friends of the bank paid Taney back by rejecting his nomination. (Unfortunately, Jackson appointed Taney to the Supreme Court, where he caused untold trouble with his decision in the Dred Scott case.)
- No vacancy. After Lincoln’s assassination, Andrew Johnson tried to fire Secretary of War Edwin Stanton. Johnson nominated Thomas Ewing to replace him, but Stanton refused to leave and the Senate refused to consider Ewing’s nomination.
- Permanent hiatus. When Andrew Johnson was impeached, his Attorney General, Henry Stanbery, resigned his post to defend Johnson. After the impeachment trial ended, Johnson re-nominated Stanbery, but the Senate was still angry with Johnson and wouldn’t let Stanbery resume his old position.
- Taxi evasion. Tom Daschle, President Obama’s choice for Secretary of Health and Human Services, was criticized for problems with unclaimed income on his taxes, mostly related to free access to a limousine and chauffeur.
- Pompous and circumstance. President Eisenhower’s commerce secretary nominee, Lewis Strauss, was disdainful and condescending to the Senate. Moreover, he insisted on cross-examining witnesses and senators who opposed him, which turned even his supporters against him.
- Home maid headache. At least four nominees withdrew when it was learned they had hired undocumented domestic workers:
- Zoe Baird (Clinton’s Attorney General nominee)
- Kimba Wood (Clinton’s second Attorney General nominee)
- Linda Chavez (George W. Bush’s Labor Secretary nominee)
- Bernard Kerik (George W. Bush’s Secretary of Homeland Security nominee)
- Wine, women, and wrong. Nominated by George H.W. Bush for Secretary of Defense in 1989, John Tower’s reputation was tarnished by accusations of heavy drinking and womanizing. Tower admitted he drank excessively, but vowed to quit if accepted. It wasn’t enough to win confirmation. This was the last time the Senate rejected a Cabinet nominee.
In 2013, Senator Harry Reid changed the rules of the confirmation process (the infamous “nuclear option”). Now, nominees only need the approval of a simple majority vote of 51 instead of the previous 60 required to break a filibuster, likely giving President Trump a clear path to confirmation for all of his nominees.