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The Demise of Conflict of Interest

Is Donald Trump signaling the end of conflict of interest prohibitions for elected officials? According to a December 8 New York Times article, the President-elect “intends to keep a stake “ in his many businesses (both international and domestic) and to resist calls to divest.   In the same article, the Times quotes Mr. Trump as saying: “The law’s totally on my side, the president can’t have a conflict of interest.”

Not even the emoluments clause of the Constitution appears as a major deterrent to the incoming administration.   Article II, Section 9, Clause 8 states that no American officeholder shall “without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever from any King, Prince, or foreign State.”  Unless the Congress “consents,” that provision would bar a president from reaping a financial reward from any global business deals involving a foreign state.

An article in The Economist of December 4, 2016, notes that preventing such conflicts of interest was considered by the framers as “vital to the survival of the new state;” and that foreign gifts to American government representatives “were of particular concern.”

Unfortunately, there is a growing trend toward the acceptance of money in politics and the tolerance of conflicts of interest among elected officials.   As political candidates demand increasing contributions to finance their campaigns, political action committees (PACs), sanctioned by the Supreme Court in Citizens United, are happy to oblige.

Elected officials at both state and federal levels have learned to skirt existing ethics laws.  Following his acceptance of an expense-paid junket to Israel last year, the President of the Massachusetts Senate Stan Rosenberg opined to a Boston Globe interviewer that conflict of interest rules are “way overreaching.”

“Overreaching?”  Not overreaching enough to convince the State Ethics Commission to reprimand the nine senators who accepted international travel junkets from lobbyists of an organization that had just secured their votes on an important resolution promoted by those same lobbyists.  The Commission summarily dismissed two citizen complaints against the senators.

At the federal level, it is difficult to find a congressman or senator who has declined to accept a similar offer of expense-paid international travel by an organization advocating certain bills or resolutions in Congress.

In recent months, two former Virginia Governors have been cited for their acceptance of multifaceted gifts from lobbyists and businessmen seeking state contracts during their respective tenures. Neither of them faced legal penalties in the state for their obvious conflicts in accepting expensive gifts, travel junkets and cash, since Virginia had no ethics law in place.

In the federal bribery case against him, former Governor Bob McDonnell was shown to have accepted from a state business-seeker $70,000 in loans, contributions for his daughter’s wedding, a Rolex watch and private jet travel.  In return, McDonnell arranged meetings with relevant state officials for the businessman and hosted events for him at the Governor’s mansion.  Chief Justice Roberts, in his opinion last June overturning the bribery convictions, held that the access granted to the businessman did not amount to a quid pro quo.  He did make passing reference to “tawdry tales of Ferraris, Rolexes and ball gowns,” but no mention of conflict of interest.

Last summer when presidential candidate Hillary Clinton selected Senator Tim Kaine as her vice-presidential running mate, the New York Times reported that Kaine had accepted $201,600 in corporate gifts—many of them from businesses and lobbyists seeking favors from the state—during his eight years as Virginia’s lieutenant governor and then governor.  Yet there was nary a mention of those gifts during the campaign.

Given the seeming indifference to conflicts of interest and the reluctance of the authorities to enforce them, why should the subject  merit our attention?   Because conflict of interest (and even the appearance of conflict) is an insidious form of corruption.  It taints the gift recipient and erodes citizen trust in government.

Conflict of interest is also an important cog in the money-in-politics wheel of fortune.  For politicians who accept big money contributions from corporate and billionaire donors, it may seem inconsequential to accept money from a lobbyist who seeks a legislative favor.

Americans who want honest government should demand stronger ethics laws and more vigorous enforcement.

More articles by:

L. Michael Hager is cofounder and former Director General, International Development Law Organization, Rome.

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