When can an “abundance of caution” actually lead to worse outcomes?
A popular view among good governance advocates is that the more recusals the better. According to this view, if an elected official has a potential If there is a conflict of interest or even the appearance of a potential conflict, rejection – out of an abundance of caution – solves the problem.
In the legal context, this is appropriate; in the legislative context, however, we need to think differently about recusals. Our study of the recusal behavior of elected officials in Rhode Island, recently published in the Roger Williams Law Review, suggests just that.
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The Rhode Island Code of Ethics requires recusal in cases involving direct financial conflicts. For example, if a legislator who is also a contractor stands to make money if a particular project is approved, then that legislator would have to recusal. Recusal is required.
One annoying exception to this legal mandate is the “class exception.” This allows legislators to vote on issues as long as the issue affects all members of a particular class equally. For example, a legislator who is also a teacher can vote on legislation that affects teachers, as long as it does not specifically affect them. Our analysis shows that legislators often recuse themselves even when the class exception appears to apply.
The Rhode Island Constitution, of course, requires elected officials to avoid the “appearance of impropriety.” While the Ethics Commission cannot take enforcement action on this basis, some commissioners do consider the “appearance standard” in their advisory opinions.
We have found that there are situations where legislators appear to be backing down, not just to avoid the consequences, possible appearance of impropriety, but also simply out of “an abundance of caution.” The withdrawal for vague reasons suggests that it has expanded into an extrajudicial practice that falls well outside the Code of Ethics.
In a part-time legislature, voters expect lawmakers to bring in outside expertise and experience. Unlike in the courts, no one steps in as a replacement when an elected official steps down. The primary function of an elected official is to vote on cases before him. If stepping down is an easy way to avoid a tough vote or a default election in the name of “good government,” voters are needlessly disenfranchised.
Fortunately, there are reforms that can improve the recusal process so that voters are not unnecessarily dispossessed and there is clarity for lawmakers and the public.
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∎ Update the challenge process to require electronic submission of digital challenge forms. Legislators would then be required to indicate whether the challenge is legally required or not and to provide a reason for each challenge.
∎ Expand education and training for legislators to clarify when recusal is necessary, while reinforcing the fundamental duty to vote. Adjusting expectations around recusal to the clear legal standard and moving away from the appearance standard would provide lawmakers with a much-needed roadmap.
∎ Replace the class exception by drafting the conflict of interest statutes in such a way that no major exception is needed in the existing law. Instead, the statutes should state that the purpose of recusal is to disclose whether a legislator would gain individually and financially from a particular issue, and to prevent votes in such cases.
These reforms require transparency and give due weight to the act of recusing. We must challenge the assumption that more recusings are always better in the name of “good governance.” Prioritizing the norm of attendance may actually cause harm by depriving voters of their right to representation. Instead, we propose that the duty to vote should outweigh the norm of attendance.
Ross Cheit, professor emeritus of political science at Brown University, served on the Rhode Island Ethics Commission from 2004 to 2019. Rose Lang-Maso is a policy adviser.
This article originally appeared in The Providence Journal: Unlike the courts, when an elected official steps down, no one steps in as a replacement.
