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Congress Weighs Whether to Fix Financial Conflicts in the Judiciary As They Address Their Own

Public service should not be seen as a vehicle to personal enrichment

By Tyler Cooper, FTC senior researcher

It is essential to any healthy democracy that the population have the tools to determine whether their highest officials are truly working for the public good or instead out for their own private profit.

Recent violations of existing law, and a myriad of other suspicious trades, have shown that too many members of Congress have not treated this responsibility with the seriousness that it deserves.

Now, legislation has been introduced in both the House and Senate that would ban members of Congress from owing or trading stocks while holding office.

Speaker Pelosi, after previously dismissing these proposals entirely, has since pivoted to signaling openness to the idea and — in a welcome surprise — asking that any legislation considered hold members of the judiciary to the same financial disclosure or financial restrictions that members of Congress ultimately decide to subject themselves to.

As a matter of legislative drafting, it would be quite simple to include judges and justices alongside new requirements for members of Congress.

And as a matter of policy there is good cause to establish more thorough standards in the judiciary since, as it currently stands, members of the judiciary face far less exacting financial disclosure requirements than do members of Congress, although judges and justices have proven similarly ignorant about their own financial reporting obligations.

(A quick review: The financial disclosures of judges and justices aren’t posted online by the judiciary itself, and the judiciary is in the midst of a years-long backlog on making its disclosures available to the public in any form. Additionally, there is no contemporaneous reporting requirement for stock transactions imposed on judges and justices.

These deficiencies have been exposed more broadly through the recent reporting of the Wall Street Journal, which found that at least 136 federal judges have heard at least 950 cases in which they held a financial interest — in violation of the federal law — between 2010 and 2018. These conflicts could have been avoided by greater transparency requirements. These conflicts would have been avoided by a bar on the ownership of individual stock.)

If history is to serve as any guide, then we’d expect the AO to vigorously and hyperbolically lobby against a judicial-stock-ban measure.

Ultimately, ethics proponents in Congress will have to weigh whether including the judiciary in a package alongside greater ethics standards for members of Congress makes the entire proposal stronger or sows division within the ranks of the would-be reformers.

In other words, we’d be fine with banning judges’ and or justices’ stock trading or ownership. We just wouldn’t want that addition to sink the original proposal of banning congressional stock trading.

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