When Must Members Recuse Themselves From a Vote?

Posted February 6, 2009 at 3:40pm

Q:
I am chief of staff for a recently elected Member of the House. Much of our staff has never worked on Capitol Hill, so we are taking crash courses on our new obligations. One question that has already arisen is this: When does a conflict of interest require our Member to recuse himself from a House vote?

The issue that sparked the question concerned the Pell Grant program, which awards need-based grants to college students. The stimulus bill under consideration would increase these grants by as much as $500. The lawmaker I work for has a family member who receives these grants. We concluded that this relationship did not require our Member to recuse himself, and he voted in favor of the bill. I am pretty sure that was right. However, I was recently discussing the matter with a friend of mine who happens to be a judge. He disagreed. So, was it OK for our Member to vote on the bill?

A: Congratulations to you, your Member and your staff. I am glad to see that you are all taking your new obligations so seriously. I am also glad to say that your boss was under no obligation to recuse himself from voting on the stimulus bill. In fact, if anything, your Member was obligated to vote.

That being said, I think I can see why the judge you spoke with reached the view he did. The recusal standards for judges are much different than the standards for legislators. Federal judges must disqualify themselves from a case whenever they have a personal bias for or against a party. The applicable standard is whether a reasonable person would think the judge is biased.

Legislators, on the other hand, have a much more lenient standard. And there are at least two good reasons for that. First, unlike federal judges, legislators represent the people they serve. When a judge recuses himself from a case, he is simply replaced by another judge who, at least in theory, is just as qualified to interpret and apply the law. This is not the case with legislatures. When a legislator recuses himself from voting on a particular matter, there is no one to vote in his place. In representative democracies like ours, this means that the legislator’s constituency has no voice on the matter. Thus, if your Member ever has to recuse himself from a vote, the people he represents lose their vote, too.

A second reason for legislators’ more lenient standard is that legislation can be so far-reaching. Judges hear individual disputes between distinct parties. If judges have a personal bias with respect to those parties, it makes sense that they should recuse themselves. In contrast, legislators vote on bills that can affect all sorts of different parties and interests. As the House Ethics Manual states, the legislation that Members consider affects a “broad spectrum of business and economic endeavors.” Given that broad spectrum, legislators inevitably must consider bills that have some impact on their personal interests. To require legislators to recuse themselves from voting on such bills would result in a very large number of recusals.

Therefore, it makes sense to have a lenient recusal standard for Members. In fact, according to the House Ethics Manual, precedent dictates that there is no authority to deprive a Member of the right to vote. House Rule 3 states: “Every Member … shall vote on each question put, unless he has a direct personal or pecuniary interest in the event of such question.” This direct interest standard is much more permissive than the reasonable-person standard applicable to judges.

Thus, while a Member should not vote on bills in which he has a direct interest as an individual, he may vote on bills that affect him as a member of a class. The House Ethics Manual lists examples of votes that have been permissible even though they impact a Member as part of a class. These include votes on legislation affecting banks in which Members held stock, votes on legislation affecting veterans by lawmakers who were themselves veterans and votes on legislation affecting securities owned by Members.

In your case, the stimulus bill will benefit Pell Grant recipients, one of whom happens to be related to your boss. This is surely not a direct personal interest. In addition to benefiting someone in your Member’s family, the bill would also benefit thousands of other grant recipients. Therefore, it was OK for your Member to vote on the stimulus bill. Now, whether he was right to vote in the bill’s favor is another matter altogether. That’s something for Roll Call’s other columnists to debate. I just do ethics.

C. Simon Davidson is a partner with the law firm McGuireWoods. Readers should not treat his column as legal advice.