VII. Member Voting and Other Official Activities on Matters of Personal Interest

Voting on matters before the House is among the most fundamental of a Member’s representational duties, and historical precedent has taken the position that there is no authority to deprive a Member of the right to vote on the House floor. [92] Thus, as a general matter, the decision on whether to refrain from voting on a particular matter rests with individual Members, rather than the Speaker or the Committee. However, general ethical principles and historical practice provide specific guidance as to the limited circumstances when it is advisable that a Member abstain from voting on a particular matter. Among these principles is that Members may not use their congressional position for personal financial benefit.

General Requirement That Members Vote on Questions Before the House

Certain matters go to the very heart of a Member’s official responsibilities.
Chief among them is voting on legislation. House Rule 3 provides:

1. Every Member . . . shall vote on each question put, unless he has a direct personal or pecuniary interest in the event of such question.

2. (a) A Member may not authorize any other person to cast his vote or record his presence in the House or the Committee of the Whole House on the state of the Union.

     (b) No other person may cast a Member’s vote or record a Member’s presence in the House or the Committee of the Whole House on the state of the Union.

In the 100^th Congress, prior to the adoption of this rule, the House reprimanded a Member for allowing another to vote on the floor in his place. In recommending disciplinary action, the Standards Committee expressed its firm belief that “nothing is more sacred to the democratic process than each person casting his own vote.”[93]

Voting and Other Activities on Matters of Personal Interest

No statute or rule requires the divestiture of private assets or holdings by Members or employees of the House upon entering their official position. Since legislation considered by Congress affects such a broad spectrum of business and economic endeavors, a Member of the House may be confronted with the possibility of voting on legislation that would have an impact upon a personal economic interest. This may arise, for example, where a bill authorizes appropriations for a project for which the contractor is a corporation in which the Member is a shareholder, or where a Member holds a kind of municipal security for which a bill would provide federal guarantees.

Longstanding House precedents have not found such interests to warrant abstention under the above-quoted House Rule that instructs Members to vote on each question presented unless they have “a direct personal or pecuniary interest in the event of such question.” Rather, it has generally been found that “where legislation affected a class as distinct from individuals, a Member might vote.”[94] The rule has been explained as follows:

It is a principle of ‘immemorial observance’ that a Member should withdraw when a question concerning himself arises; but it has been held that the disqualifying interest must be such as affects the Member directly, and not as one of a class. In a case where question affected the titles of several Members to their seats, each refrained from voting in his own case, but did vote on the identical cases of his associates. While a Member should not vote on the direct questions affecting himself, he has sometimes voted on incidental questions.[95]

[95] House Rules and Manual, supra note 31, § 673 (citations omitted).

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Thus, Members holding stock in national banks have voted on legislation “providing a national currency and to establish free banking” since Members “do not have that interest separate and distinct from a class, and, within the meaning of the rule, distinct from the public interest.”[96] Veterans in the House have properly voted on questions of pay and pensions in the military since such Members “did not enjoy the benefit arising from the legislation distinct and separate from thousands of men in the country who had held similar positions.”[97] The Speaker would not rule that a Member owning stocks in breweries or distilleries should be disqualified in voting on the proposed amendment to the Constitution concerning prohibition of the manufacture and sale of liquor. [98] Members who were stockholders in or had interests in import businesses voted on a tariff bill affecting the import business since “the bill before us affects a very large class. . . . The Chair would be surprised if there were not hundreds of thousands of American citizens who were stockholders in these companies. ”[99]

Although the rule has been found not to apply when a Member is affected only as a member of a class rather than as an individual, some precedents in the House have indicated that the rule might apply if legislation affects only one specific business or property, rather than a class or group of businesses or properties. Thus, although the Speaker found that a Member interested in breweries or distilleries could vote on “prohibition” because it affected a class of businesses, the Speaker specifically noted,

[n]ow, if there was a bill here affecting one institution, if you call it that, the Chair would be inclined to rule that a Member interested in it pecuniarily could not vote, but where it affects a whole class he can vote.[100]

[100] Id. § 3071, at 621.

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Similarly, in ruling that Members with interests in import businesses could vote on a tariff bill, the Speaker observed, “Certainly it would not be within the power of the Chair to deny a Member the right to vote except in the case where the legislation applied to one and only one corporation.”[101] In the case of an amendment to a bill specifically relating to the Central Pacific Railroad, the Speaker suggested that a stockholder Member should disqualify himself from voting, although a ruling disqualifying such Member was not made by the Chair:

In this case if the gentleman from Massachusetts be a stockholder in that road the Chair would rule he had no right to vote. It differs from the case of national banks, which has been brought up in several instances, in the fact that this is a single corporation, and is not of general interest held throughout the country by all classes of people in all communities. But if a stockholder in a single railroad corporation, as in this case, has his vote challenged it would be the duty of the Chair to hold, if he is actually a stockholder of the road, that he has no right to vote. * * * The Chair so decides without any knowledge in this particular case. It is for the gentleman from Massachusetts whose delicacy the Chair knows and cheerfully recognizes to relieve the House from any embarrassment on that question.[102]

[102] 5 Hinds, supra note 94, § 5955, at 506.

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As shown by more recent applications of the rule, however, even where one corporation or entity is primarily affected by legislation, a Member’s interest in such corporation or entity might not be found to be a disqualifying interest in the subject matter. As the Standards Committee noted in a report in a disciplinary case:

House precedents establish the rule that “where the subject matter before the House affects a class rather than individuals, the personal interest of Members who belong to the class is not such as to disqualify them from voting.” This principle was followed by the House as recently as December 2, 1975, when the question arose whether House Rule VIII(1) [currently numbered as House Rule 3, cl. 1] would disqualify Members holding New York City securities from voting on a bill to provide federal guarantees for these securities. Speaker Albert ruled that a point of order to disqualify Members holding such securities would not be sustained [103]

[103] H. Rep. 94-1364, supra note 2, at 15.

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The Committee found in that case that the respondent’s ownership of 1,000 shares of common stock in a defense contractor corporation, out of more than 4,550,000 shares outstanding, “was not, under House precedents, sufficient to disqualify him from voting on” an appropriations bill authorizing funds for a project for which the corporation was under contract with the government to perform.[104]

In addition, House precedents favor “the idea that there is no authority in the House to deprive a Member of the right to vote.”[105] Given the size of today’s districts, when a Member refrains from voting, well over half a million people are denied a voice on the pending legislation.

However, while the Standards Committee has endorsed the principle that “each individual Member has the responsibility of deciding for himself whether his personal interest in pending legislation requires that he abstain from voting,”[106] it did so after investigating allegations (among others) that a Member had violated the rule by not refraining from voting in a particular instance. The Committee cleared the Member of this charge, but it has occasionally advised Members, in private advisory opinions, that it would be inappropriate for them to vote or to introduce legislation directly affecting significant and uniquely held financial interests. At times a question arises as to whether the “class” to which a Member belongs with regard to a piece of legislation – such as, for example, the class of owners of a particular area of land that would be acquired by the government under the legislation – is sufficiently large to warrant the Member voting under the authorities set out above.

The provisions of House Rule 3, clause 1, as discussed in this section, apply only to Member voting on the House floor. They do not apply to other actions that Members may normally take on particular matters in connection with their official duties, such as sponsoring legislation, advocating or participating in an action by a House committee, or contacting an executive branch agency. Such actions entail a degree of advocacy above and beyond that involved in voting, and thus a Member’s decision on whether to take any such action on a matter that may affect his or her personal financial interests requires added circumspection. Moreover, such actions may implicate the rules and standards, discussed above, that prohibit the use of one’s official position for personal gain. Whenever a Member is considering taking any such action on a matter that may affect his or her personal financial interests, the Member should first contact the Standards Committee for guidance. A Member should also exercise caution before accepting a position on the board of an organization that is subject to the oversight of a committee on which the Member sits.

In addition, as described earlier in this chapter, House Rule 27, clause 4 imposes a new, additional requirement that Members who are negotiating for future employment “shall recuse” themselves “from any matter in which there is a conflict of interest or an appearance of a conflict for that Member.” Historical practice has established that, with regard to House Rule 3, there is no authority to force a House Member to abstain from voting, and the decision on whether abstention from voting was necessary has been left for individual Members to determine for themselves under the circumstances.[107] At a minimum, Members faced with a vote on a matter that directly impacts a private entity with which they are negotiating would have difficulty balancing the duty they owe to their constituents with the recusal provisions of Rule 27. Members who wish to avoid such conflicts are encouraged to delay any negotiations for future employment until after their successor has been elected.