Conflicts of interest have been making their way into the public eye even more so than usual for the last year due to the uniqueness of the last presidential election. Throughout the election, every group attempted to shine a light on conflicts of interests on all sides. Since Trump’s promise to “drain the swamp” what has been happening? What are the legislative movements? Administrative movements? Social movements? Let’s take a look at what constitutes as a conflict of interest and how it has been influencing our political system and lives as of late.
What is a Conflict of Interest?
A conflict of interest is defined as a situation in which the concerns or aims of two different parties are incompatible or a situation in which a person is in a position to derive personal benefit from actions or decisions made in their official capacity. Some classic examples of conflicts of interest?
- When a relative or close friend reports to a supervisor who affects their job responsibilities, pay, and promotions
- When a purchasing agent accepts trips and gifts from a vendor and then selects the vendor’s products for purchase by the company
- When an individual has the opportunity to use his or her partner or family member’s position for personal financial gain or to benefit a company in which the individual has a financial interest.
- When an individual’s outside interests otherwise may cause harm to the organization’s reputation, interests, staff, or patients
When it comes to public officials, they are expected to put service to the public and their constituents ahead of their personal interests. Part of this expectation is when it comes to campaign finances or actions in office, the people and organizations who donate to candidates do not control their decisions. The candidate’s decisions are still made for their constituents and not for business or personal interests. The candidates should not be able to push forward the interests of their financiers via lobbying or other means if it is not in the best interest of the people they were elected to represent.
What are the Rules about Campaign Financing and Conflicts of Interest?
The Federal Election Campaign Act Amendments of 1974 (FECA) form the basis of current federal campaign finance law. FECA placed limits on contributions to federal candidates and political parties, a system for disclosure and created voluntary public financing for presidential candidates. The FECA also attempted to impose mandatory spending limits on congressional candidates, however, the US Supreme Court found these spending limits to be unconstitutional. In 2002, the Bipartisan Campaign Reform Act (BCRA) was passed. It prohibited soft money contributions to national parties. For a full history of legislation pertaining to federal elections, go here.
Title 18 Section 208 of the U.S. Code states that federal executive branch employees cannot participate in government matters in which they or their immediate family has a financial interest. This law leads many government officials to put their investments into blind trusts while they are occupying the governmental position. However the president and vice president, despite being executive branch employees, are exempt from this act and the laws requiring officials to put up barriers such as putting their money into a blind trust to demonstrate they are working without a conflict of interest.
Then comes the Constitution’s Foreign Emoluments Clause. This clause forbids government officials from accepting payments and gifts from foreign governments and grants Congress the authority to set ethical standards for government officials (including the president). Congress first enacted a statute regarding financial conflicts during the Civil War, this statute did not exempt the president. Congress then recodified the statute in 1962 and specifically rejected President John F. Kennedy’s proposed presidential exemption. Finally, in 1989, they passed an amendment which exempted the president from the financial conflict statute. This amendment was passed because of two issues; barring conflicts of interest for the president would either improperly disable the president from performing one or more of their constitutional duties (via having to exclude themselves from matters where they have a personal stake) or unlawfully change the Constitution’s qualifications for becoming president (adding no conflicts to the list- natural born citizen, at least 35 years old and a resident within the United States for a minimum of 14 years). Although this amendment allows for exemption, Congress retains the authority to restrict the president’s conflicts of interest.
Examples of Conflicts of Interest in the Last Campaign
In the last election, there was a lot of buzz surrounding conflicts of interest for both the Clinton and the Trump campaigns. In regards to the Clinton campaign, people were worried about conflicts of interest regarding her nonprofit and the conflicts which could arise if the Clinton Foundation continued business as usual with Hillary Clinton as president. During her campaign, government watchdog organizations urged the foundation to adopt tough new firewalls to eliminate any perception the Clinton Foundation donors could use their wallets to gain undue access to a Hillary Clinton White House. In response to this, Clinton vowed to bar all foreign and corporate donations to the Clinton Foundation. A study found 53 percent of the donors who have given $1 million or more to the charity are corporations or foreign citizens, groups or governments, who all would have been banned had she been elected seriously impacting the foundation’s finances.
When it comes to Trump, conflicts of interest are everywhere and don’t always have to do with money. That said, the conflicts that do have to do with his ties to money are plentiful. Many people say there is no way we can know just how many conflicts of interest there are because Trump has refused to release his tax returns, but the ones we do know of are worrisome. These range from US properties to family ties to ongoing legal disputes just to name a few.
Secondly, as this article explains possibly the biggest conflict of interest in his presidency is the “Trump brand”. The Trump brand appears all over the world from buildings, to advertisements, to other properties and has seriously been inflated on a national scale since he became president. Some places where the Trump brand appears are countries with issues with United States interests like Turkey or the Philippines. Both these countries have ongoing issues with human rights and other democracy related disagreements when it comes to US opinions and policies. Foreign diplomats have been flocking to one of Trump’s newest properties, a hotel in downtown Washington DC, since his election as well. On this specific topic, three suits have been filed against Trump. One by Citizens for Responsibility and Ethics in Washington (CREW), one by Maryland and DC and one by DC restaurants and hotels claiming Trump is prohibited from accepting anything of value from a foreign government by the Foreign Emoluments Clause and is currently violating this clause through preferential treatment of his property in DC due to his status as president.
There are currently 43 bills that have to do with campaign financing in the United States. These bills range from CA AB14 to reform the Political Reform Act of 1974 to FL H0231 to require full disclosure of financial interests for state attorneys and public defenders to HI HCR100 to clarify that corporations are not human beings with constitutional rights and that governments may limit corporate political expenditures to IL HB0676 the Illinois Clean Elections Act to MD HB72 regarding their fair campaign financing fund.
The states are weighing in on the Foreign Emoluments Clause and with 8 bills related bills. CA AJR17 and IL SR0539 call for the impeachment of Donald Trump. US SCRes8 wants to clarify any potential misunderstanding of Trump’s possible violation of the Emoluments Clause and divest his interest in, and sever his relationship with, the Trump Organization. US HRes111 relates to the financial practices of the President and US HJRes26 refuses to give congressional consent for “President Donald J. Trump To Accept Foreign Emoluments of Any Kind Whatsoever”. Finally, RI H5545 urges national security and judiciary officials to hold the Trump regime accountable to previously established legal standards and to consider the legitimacy, constitutionality, and morality of those laws and edicts before enforcing them.
Although the emoluments clause was originally intended to counter the common 17th-century practice of presenting expensive gifts to “departing foreign emissaries or diplomats at the end of their tenure in the host country”, this concept – like many items in our constitution – needs to be re-interpreted to account for the way society has progressed. Trump is a new kind of president and thus we are experiencing a new kind of presidency. We need to ensure that appropriate actions are taken to be confident the people who hold our public offices are acting in the best interest of the country. What are your thoughts on how the Emoluments Clause and other conflicts of interest play in the current presidency?