Conflicts

A colleague asked me recently about the argument that withdrawal from participation by a legislator, who cannot delegate to someone else, "disenfranchises" that legislator's constituents. Since disenfranchisement is a terrible thing, the argument goes, legislators cannot be asked to withdraw from participation, but only to disclose their conflicts.

Here is an interesting government ethics argument. According to a Lenore Taylor column in the Guardian this week, mining billionaire Clive Palmer, who is running for a seat in the Australian parliament, says that he cannot have a conflict of interest because he is so rich, he has everything he needs.

One of the most frequent mistakes in the drafting of a government ethics code is prohibiting officials from having conflicts of interest. There is nothing wrong with an official having a conflict of interest. There is only something wrong with an official creating a conflict or failing to deal responsibly with a pre-existing conflict. As can be seen in Massachusetts, where such a prohibition has made big waves, the prohibition of having a conflict can cause serious problems.

"[Standard & Poor's's ratings have always been] uninfluenced by conflicts of interest."

—Spokesperson for S&P, in response to a government lawsuit saying that S&P's ratings have been influenced by their conflicts of interest. Quoted in today's New York Times

One of the worst times to create a conflict of interest is in the midst of labor negotiations. This is what has happened recently in San Francisco, where Bay Area Rapid Transit (BART) is negotiating contracts with its three unions. There was a short strike in July, and now there are negotiations with an August 4 deadline.

Many people believe that conflicts of interest are in and of themselves bad, and that government ethics laws should prevent those with conflicts of interest from becoming public servants. Many people believe that government ethics is about being good or bad. When the two come together in one person and one speech, the result can be fireworks.

People who have misconceptions about government ethics also tend not to be able to distinguish between different sorts of conflict situation. Here, the problem was distinguishing between pre-existing conflicts and conflicts created by events.

People (including government officials) usually talk about conflict situations as if they involved the public (represented by do-good ethics types) trying to get public servants (who are represented as corrupt) to sacrifice either their family, friends, or business opportunities or their duty to do their jobs as representatives or officials.

The death of Robert Bork is a good time to learn from the biggest mistake in his life, one that may have cost him a seat on the U.S. Supreme Court. It involved his failure to deal responsibly with a superior's conflict of interest, and his own, since his superior forced his conflict situation onto Bork himself.