That it should go without
saying that a constitution providing a government with its basic framework and
procedures should not contain any conflicts of interest makes it all the more
astonishing when an actual constitution is found to contain a obvious yet undetected
conflict of interest that could be exploited by an institutional or
officeholder and yet is easy to obviate, or fix. The implication in such a case
is that a society can be too comfortable with institutional conflicts of
interest without realizing that if such a conflict is exploitable, it is likely
that it eventually will be even if not right away. Because U.S. President Don
Trump’s pressure on his vice president, Mike Pence, on January 6, 2021 to
refuse to certify the votes of the electors in some of the states did not
result in any serious proposals to have another office than the vice presidency
preside, a societal tolerance for even known conflicts of interests in general
and in a constitution more particularly can be inferred. I submit that such a
tacit willingness to continue with the status quo can eventually put even a republic
itself at risk.
Speaking on January 6, 2024, U.S.
Vice President Kamala Harris referred to her constitutional duty of presiding
in a joint-session of Congress tasked with certifying the election that she had
lost as something she took very seriously. The American people should not have
to worry about whether a vice president might exploit the presiding role by resisting
or thwarting a peaceful transfer of power. “Today was obviously a very
important day,” she said, “and it was about what should be the norm and what
the American people should be able to take for granted, which is that one of
the most important pillars of our democracy is that there will be a peaceful
transfer of power.”[1]
Such a transfer lies at the core of representative democracy, so it is
important that any risk of any impediment, whether an opportunistic person
outside of a constitution or something lying in a constitution itself, be minimized.
It is not, in other words, a minor matter.
Simply tasking the loser of an
election with presiding over the counting of votes and the announcement of the
winner should give anyone pause. At the very least, no one should be duty-bound
to perform such a function—which can be thought of as “rubbing one’s face” in
the affair, which can feel humiliating to the person.
Furthermore, politically, whether
a vice president is a candidate for president as Harris was or is pressured to
do the partisan or personal bidding of a president as Pence had been, having a
partisan office preside is itself problematic not only for the
presidency itself in terms sheer credibility, but also for a vice president in
terms of the election process itself. Simply put, the vice president who is
running for president or for another term as vice president is an active player
in the contest and thus should not preside over the tabulation and
certification of the results. As simple as this is to grasp, it must be
difficult for enough Americans that the problem has been allowed to persist.
This is especially damning
because the conflict of interest is easy to remove. The chief justice, or any
justice, of the U.S. Supreme Court would be a natural fit for the presiding
role as the judiciary is not (supposed to be) partisan. Put another way, a sitting
president pressuring the vice president to declare some state slates of
electors invalid is more likely than pressuring the chief justice to do that
same. Institutionally, given the separation of powers in the U.S. Government, reaching
out to the chief justice would be much more difficult than trying to pressure a
vice president of one’s own administration. Having the chief justice, who swears
in presidents, preside over the Congressional counting of the Electoral College
votes for president as both the sitting vice president and Speaker of the House
look on makes so much sense that it is sad state of affairs when the status quo
is almost mindlessly retained even four years after the conflict of interest could
have been exploited, with a riotous mob of partisans literally breaching the Capitol
to convey additional pressure.
Putting the loser of an
election in the position of having to publicly announce the victor is the smoke
that points to an underlying constitutional conflict of interest; a mob pressuring
a loser on a presidential ticket to abuse the presiding role of the vice
president is more like fire than smoke. That the ensuing public discourse did
not contain a proposal of a constitutional amendment assigning the task to the
chief justice of the U.S. Supreme Court reflects very badly not only on the
elected office-holders (and the media), but also on the American people, as it
is government ultimately by the people. Perhaps a people gets the government,
and constitution, that they deserve, for institutional conflicts of interest
should be obviated whether in government, business, or in non-profit institutions.
Neither institutional relations nor processes should contain conflicts of interest that can be exploited because human nature is itself rather inclined to exploit them because of the instinctual urges that manifest as self-, office-, and institutional-interest even at the expense of the interest of the whole. Even though governments and economic systems tend to be based on such interests, the latter don’t have to be encouraged by the ongoing existence of institutional conflicts of interest. Continuing with the status quo can itself be thought of as a choice—one that reflects a certain underlying set of beliefs and assumptions that are valued, and even the extent of basic awareness. Having seen not only smoke, but even fire, a people can indeed be faulted for having insufficient awareness, and this verdict is perhaps even more damning than that which concerns the naivete concerning human nature being able to withstand conflicts of interest without exploiting them in the long run. The sting of these verdicts hurts all the more when an institutional conflict of interest can be obviated relatively easily with a solution that is, or should be, obvious. Because power is that which is channeled in a political constitution, risking the exploitation of a conflict of interest that is in a constitution is not a smart choice if a viable, ongoing republic is desired.
1. Aditi Sangal, “Congress Certifies Trump’s 2024 Election Win,” CNN.com, January 6, 2025.
