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Rotunda: A Bright-line Rule for Judiciary

Congress did a pretty thorough job of legislating to avoid conflict of interest for members of the judicial and executive branches of the government but failed to to pass a law governing their own conduct.

"Congress decided we should have a nice, bright-line rule" on judicial conduct, Professor Ronald Rotunda told The Dallas Morning News. "The rule in the federal statute says that if you own even one share in a company, you must disqualify yourself." The result is the recusals being seen more frequently on the nation's high court.Executive branch officials cannot write regulations if they own stock worth more than $25,000 in an affected company. By contrast, members of Congress are generally assumed to act in the public interest, even if they have a financial stake in pending legislation, unless there is proof a legislator's actions were motivated by personal gain.

Lawmakers can keep ties to stocks secret, The Dallas Morning News, May 16, 2008. By Dave Michaels.

Excerpt:
"Under Senate rules, Ms. Hutchison can vote on matters affecting Exxon because personal investments generally don't constitute a conflict of interest. Yet for officials in the judicial and executive branches, they can.

"Under federal law, judges must disqualify themselves if they have 'a financial interest' in a matter before them or 'in a party to the proceeding.'

"Mr. Alito sat out the Exxon Valdez oil-spill case without saying why. Most justices don't state their reasons for such decisions, but the law that guides them is quite clear.

"'Congress decided we ought to have a nice, bright-line rule,' said Ronald D. Rotunda, a law professor at George Mason University and expert in legal ethics. 'The rule in the federal statute says that if you own even one share in a company, you must disqualify yourself.'

"Some experts say different rules apply to lawmakers because legislative policy is general in nature, whereas judges and federal agencies often decide matters that affect only a few parties.

"If lawmakers were forced to recuse themselves over stocks, they might make very few votes, said Fred Wertheimer, president of Democracy 21, a nonpartisan group devoted to campaign finance and political ethics.

"Senate rules generally trust that senators act in the public interest, even if they have a financial stake in legislation, said Wilson R. Abney, a former staff director of the Senate Ethics Committee. A senator's personal finances are generally considered irrelevant unless there is proof that a legislator's action was motivated by personal enrichment.

"'The Senate rule is not necessarily as broad as the concept of a conflict of interest,' Mr. Abney said. 'A conflict of interest exists any time an official has a financial interest in the decision he's making.'

"The rules are tighter for executive-branch officials, who can't write regulations if they own stock worth more than $25,000 in an affected company.

"'Members have, in effect, created tougher rules for the executive branch than they have for themselves,' Mr. Wertheimer said. 'The circumstances are different, so there is a justification for it. But there probably is not a justification for the complete laxness of those [Senate] rules.'"

 

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