Conflict of interest in government: Avoiding ethical and conceptual mistakes
本文剖析了政府官员利益冲突的常见误解，如诚实辩护、动机否认等，并指出正确理解利益冲突对维护民主治理至关重要，适合政策制定者和公众参考。
Conflict of interest is among the most regulated forms of official behavior. In the United States, the vast bureaucracy of the Office of Government Ethics (OGE) is almost entirely devoted to controlling conflicts of interest. Ethics rules for state agencies and state legislatures are ubiquitous. But this profusion of effort has failed to solve the problem. According to one comprehensive survey, conflict of interest regulations in European countries abound, but “the landscape is highly fragmented [among] various ethics commissions, ethics inspectorates, ethics commissioners, integrity officers… No EU- and national administration is equipped with the necessary resources, skills, and tools to monitor COI in an efficient and effective way” (European Parliament, 2020, pp. 8–9). Surveys show that conflict of interest is a major concern of citizens. There may well be more conflicts of interest now than several decades ago (Cox & Thomas, 2018; Shepherd & You, 2019; Wike et al., 2021). Conflict of interest is among the least well understood of dilemmas of public office. By exposing errors about conflicts of interest, we hope to enable officials to confront these conflicts more honestly, citizens to judge official conflicts of interest more fairly, and regulators to do their job more competently. Conflicts of interest compromise not just integrity and competence but democracy itself. Democratic processes importantly determine the public interest. Democracy requires officials to exercise their judgment to advance that public interest (Boot, 2022). Officials who are not motivated to act in the public interest thus threaten democratic governance. Contrary motivations arise because officials also have their own interests, often coming from their private lives, that may not be compatible with public interests. The juxtaposition of these two kinds of interests—a primary public interest dictated by their official role and a secondary interest influenced by private life—create the tension that is known as conflict of interest. A conflict of interest is thus best understood as a set of circumstances that is reasonably believed to create a substantial risk that an official's judgment of a primary, public, interest will be unduly influenced by a secondary interest which typically though not exclusively involves financial gain (Thompson, 1993 see also chapter 2 of Institute of Medicine, 2009). A conflict of interest thus increases the risk of corruption. We have learned from common experience that secondary private interests can taint official's judgment about how best to advance the public interest. Comparative scholars note that while attention in the US has focused on the danger of private sector interests, in the parliamentary and Westminster systems, the burdens on MPs independent judgments often come from the party itself, for instance from a Prime Minister who controls the salaries and opportunities of many MPs (Stark, 2008, p. 129). When secondary interests—be they from public or private sources—dominate, an official acts corruptly. Conflict of interest rules are intended to protect against this risk of corruption. Conflict of interest regulation also aims to maintain public confidence in public officials. Efforts to regulate, however, can go wrong in two different ways. They can underestimate the risk by missing cases that should be regulated. Or they can overestimate the risk by counting cases as conflicts that should not be problematic (typically by discounting the harms of prohibition). I can tell you, sitting shoulder to shoulder with him through these interviews, watching him talk to world leaders on the phone, one after another… the president-elect of the United States, Donald Trump, is completely focused on the people’s business… And I promise you, and I can assure the public that they’ll have the proper separation from their business enterprise. (Rozsa, 2016) The honesty claim is an appeal to character. The risk that an official will subordinate pursuit of his or her primary interest because of a corrupting secondary interest is low because that official is honest and so “completely focused on the people's business.” The honesty claim also figured prominently in the debate about whether Justice Clarence Thomas should recuse himself from cases related to the 2020 Presidential Election. His wife “Ginny” Thomas—a long-time conservative activist—actively supported President Trump's efforts to overturn the electoral counts submitted by several states. Several days after the election, Mrs. Thomas texted President Trump's Chief of Staff Mark Meadows, “The majority knows Biden and the Left is attempting the greatest Heist of our History” (Barnes & Marimow, 2022). Ginny Thomas defended against this charge of conflict (Totenberg, 2022) by denying that any influence could occur because she and her husband do not discuss Supreme Court cases “until [the court's] opinion are public—and even then, our discussions have always been… limited to public information.” Senator Mitch McConnell (R-KY) also invoked the honesty claim in defense: “Justice Thomas is a great American and an outstanding Justice… I have total confidence in his brilliance and impartiality in every aspect of the work of the Court” (Barnes & Marimow, 2022). But critics argued that Justice Thomas's primary interest in correctly deciding questions of constitutional law might be reasonably believed to be influenced by his secondary interest in protecting his wife. “The more we learn about her activities, the even clearer it becomes that [Justice] Thomas cannot sit in any case concerning the election or the ‘Stop the Steal’ effort or the insurrection,” said New York University judicial ethics expert Stephen Gillers. The conflict led some legislators to call for Justice Thomas's resignation. Rep. Betty McCollum (McCollum, 2022) issued a statement to that effect, which read in part: “Rather than disclose this conflict of interest and recuse himself from cases related to his wife's involvement in the Big Lie, Justice Thomas took part in court rulings and voted to prevent the disclosure of White House communication logs.” While it is of course desirable for officials to be honest, the honesty defense fails to respond to conflict of interest concerns. First, even people of honest character can deceive themselves about what exactly the public interest requires, especially when personal gain hangs in the balance. A European Parliament report put it this way: “Often, Ministers and top-officials esteem too highly their ability to deal with their own CoI. They also overestimate their capacity to deal in a conscious and impartial way with their own CoI” (European Parliament, 2020, p. 36). Second, even if the official does exercise her best judgment, citizens who rely on that official may reasonably suspect that strong secondary interests affected the official's decision. Third, testimony from people who know an official well does not help citizens who cannot sit “shoulder to shoulder” with him. The motive denial is a second common mistaken rebuttal to conflict of interest accusations. Whereas the honesty mistake relies on enduring character, the motive denial highlights the reasons that ground specific decisions: “Yes, I had conflicting interests, but I made the decision for public interest reasons and not for my (conflicting) secondary interests.” Consider Hillary Clinton's conflicts when she served as Secretary of State in the Obama Administration. In that role, her primary interest was to serve the American people by advancing the foreign policy interests of the United States. Her secondary interests included accumulating private resources, perhaps preparing for what would be her 2016 Presidential campaign, and expanding the Bill, Hillary, and Chelsea Clinton Foundation. These secondary interests may have influenced her decisions at least about how to use her time. An Associated Press (2016) investigation found that Secretary Clinton had some 153 meetings or calls with private organizations and leaders and 85 of them had either committed or pledged money to Clinton Foundation programs. The Clinton Foundation also received millions from foreign governments while Clinton served a public official (Helderman & Hamburger, 2015). Secretary Clinton responded to these charges of conflict of interest with two defenses based on the propriety of her motives (Meckler, 2016). On CNN's Anderson Cooper show, she responded broadly that “My work as Secretary of State was not influenced by any outside forces… I made policy decisions based on what I thought was right, to keep Americans safe and protect U.S. interests abroad.” She offered a more specific motive denial with respect to the Clinton Foundation and its programs. She said that it is “absurd” to charge that taking those meetings was motivated by “connections with the foundation instead of their status as highly respected global leaders.” As with the honesty mistake, officials may deceive themselves about their motives. But the motive denial asks even more of the public than the honesty defense. Most citizens are not in a position to discern what motivates an official. They can see only the circumstances in which officials make decisions and must decide on that basis. Many Americans were skeptical of Secretary Clinton's motive denial. In a 2015 CBS news poll, 53% of respondents said that foreign donations to the Clinton Foundation constituted a conflict of interest, while only 37% said that they weren't relevant (CBS News, 2015). A third common mistake is to think that coincidence between a political leader's primary and secondary interests resolves a conflict of interest. Getman and Karlan (2008) articulate one basis for this error: “the best representative is one who is typical of her constituents, because the more her interests converge with those of the electorate, the less danger there is of principal-agent divergence.” In 1953, President Eisenhower nominated long-serving General Motors executive Charles Wilson to be his Secretary of Defense. Wilson declined to divest his stock holdings in General Motors which was a major supplier to the military. When asked by Senator Robert Hendrickson of New Jersey about this conflict, Wilson reportedly replied that the interests of GM and the US are aligned, “for years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist. Our company is too big. It goes with the welfare of the country… (Strohl, 2019)” Senator Joe Manchin of West Virginia offers a more recent example of the constituent interest rationale. According to Flavelle et al. (2022), “the bulk of Mr. Manchin's reported income since entering the Senate has come from one company: Enersystems, Inc.” When asked about this conflict arising from his ownership and benefits from coal concerns, Manchin claimed convergence between his secondary interests and the public interest: “I did it to keep West Virginia people working.” Democratic Party politician Jerry Brown, having campaigned on a platform to benefit under-developed parts of Oakland, served as its Mayor from 1999 to 2007. One of his top priorities was to bring development to downtown Oakland. However, he also personally owned property that was located some 500 feet from a redevelopment project. Brown also claimed congruence between his secondary interests and the public interest: “Brown had touted his personal stake in downtown Oakland as the reason he would be an effective champion for revitalization” (Getman & Karlan, 2008).2 In the three cases of Wilson, Manchin, and Brown, secondary interests coincide with constituent interests to some degree. From a pluralist conception, that coincidence does relieve some concerns that secondary interests will unduly distort officials' judgments about what is best for the public. But because the range of secondary interests of an official is never fully aligned with the interests of her constituents, conflicts of interest still impose worrisome burdens on official judgment. Members of their constituencies have a range of other interests that Wilson, Manchin, and Brown may not share. Consumers may suffer higher prices caused by efforts to benefit General Motors. Some West Virginians benefit from the strength of the United Mine Workers in ways that Manchin may not. And rents for some Oakland residents may be driven up by downtown development. A pluralist might respond that though no single official can mirror the full range of social interests, the political system overall should reflect them. This rationale creates very demanding requirements for excusing conflicts of interest. Charlie Wilson's secondary interests in General Motors (or Manchin's or Brown's secondary interests) would be excused only if there were also in the political system other officials who had secondary interests that with those of the and many other interests. In with substantial this demanding is to be because officials' financial secondary interests often from to people and The constituent interest appeal can also be at its by the pluralist that the public interest from constituent interests. about to more than the of constituent interests. In how best to advance the public interest, officials might to protect or who are A common mistake is to rely too or even to conflicts of interest. the and constituent interest those who advance the disclosure that conflicts of interest create substantial concerns, but they that public disclosure will those concerns. As is the best First, citizens to officials by demanding or other Second, citizens are to themselves if they know about officials' Third, disclosure requirements may officials from having conflicts of interest. 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