Voting procedure

Introduction

What should a lawmaker with personal stakes in a bill do when the time comes to vote on it?

The answer varies widely among the states and even differs between the House and the Senate in some, the Center for Public Integrity found in a survey of procedures for handling conflicts of interest during legislative votes.

Most states apply one of three rules when lawmakers face conflicts of interest.

The most common is simply to require that they abstain from voting.

The second most popular: Granting conflicted lawmakers explicit permission to abstain if that is their preference. Explicit permission is important because many states prohibit lawmakers from abstaining except in exceptional circumstances.

The third and least common approach is to require lawmakers to vote despite conflicts of interest.

To make things even more complicated, legislative chambers vary widely in the procedures by which they implement these rules. For example, in some chambers a lawmaker must request the formal permission of his or her colleagues to abstain, even when it is required by law. The purpose is often to review the reported conflict to make sure it is subject to the law.

Of course, a legislator can always avoid these dilemmas by not showing up for work on the day of the vote.

The Center also reviewed whether states require legislators to make a public report when they have a conflict of interest in a bill. All but three states require legislators to file general disclosures of their incomes once a year, but announcing a conflict in a particular issue as it comes up is a separate matter. In many states, legislators disclose the existence of a conflict but don’t explain exactly what is causing it. Others require more detailed reports.

The fundamental question, of course, is how a conflict of interest should be defined. The vast majority of states see no problem when a legislator would benefit or suffer from a bill but the effect is not unique to him or her, or to a narrow group of which he or she is a member. Several states distinguish between conflicts of interest that are mild and those severe enough to require that legislators abstain. Others rely on legislators themselves to determine whether conflicts compromise their judgment.

States balance the threat of a conflict of interest against the principle that legislators have a right—or a duty—to represent their constituents on every issue. The Center found that in most states, the definition of a conflict of interest or the abstention rules are tilted toward ensuring that legislators are not excluded from voting unless it is necessary.

The rules are generally contained in at least one of three sources—constitutions, statutes and internal legislative rules.