n the aftermath of Rep. Chris Collins’ (R-N.Y.) arrest last week on insider trading charges stemming from his involvement with an Australian biotech company, it is tempting to focus public attention and anger on his alleged crimes. But we should be far more concerned by what the episode reveals about Congress’ failure to regulate members’ financial conflicts of interest.
It’s certainly troubling that Collins may have broken the law. It’s even more troubling that he was allowed to invest in a biotech company and sit on its board while simultaneously crafting health care legislation as a member of the House Energy and Commerce Committee — one of two House committees responsible for oversight of the health care industry. Collins’ dual role as legislator and biotech investor represents a clear conflict of interest but is shockingly not a violation of any House ethics rule or judicially enforceable statute.
Federal officials in the executive and judicial branches are required by law either to recuse themselves from decisions that implicate their financial interests or to divest assets in sectors affected by their work. The reason for these laws is clear. Executive and judicial branch officials have a fiduciary duty to act in the interests of U.S. citizens and, as such, a responsibility to mitigate the risk that their actions will be influenced by their own financial interests.
Members of Congress play by different rules. Although they, too, bear a fiduciary duty to U.S. citizens, they have declined to impose similar restrictions on themselves.
In 2012, following a “60 Minutes” exposé that revealed the extent of insider trading by federal lawmakers, Congress passed the Stop Trading on Congressional Knowledge Act (STOCK Act). It clarified that insider trading laws applied to members of Congress and their staff, and imposed additional disclosure requirements on lawmakers’ stock trading activities. But the Senate defeated an amendment to the act that would have required senators and senior staff to sell off stocks that create conflicts of interest or place their assets in blind trusts.
And there is currently no law or regulation prohibiting members of the House from holding assets in companies that could be directly affected by their legislative activity.
In our research on legislators who served on House and Senate committees responsible for health issues, we found that about 40 percent of those in the Senate held personal assets in the health sector. Almost 20 percent of House members on committees with health care oversight responsibilities held health sector assets. These could include legislators who hold stock in health insurance companies while deciding the fate of the Affordable Care Act; who hold assets in opioid manufacturers and distributors while proposing laws to address the opioid crisis; and who invest in drug companies while deciding on prescription drug pricing policy.
While Collins and his alleged insider trading behavior may be rare, he is not alone in having a very personal financial stake in the legislation that he proposes and votes on.
We should all be troubled by the pervasiveness of these financial conflicts of interest in Congress.
At a minimum, members of Congress should be required to divest assets in sectors that could be affected by their committee work. Although some lawmakers have suggested that they can avoid conflicts of interest by allowing their investment advisers to oversee their accounts without their input, this alone won’t prevent conflicts of interest. Turning over trading decisions to an adviser can mitigate the risk of insider trading, but as long as members of Congress know what assets they hold, there is a risk that their financial interests will influence their legislative judgment.
We recommend that no member of Congress should be allowed to serve on the board of a publicly traded company, even if that service is uncompensated. Members of Congress have a fiduciary duty to U.S. citizens that is incompatible with the fiduciary duty that corporate board members owe to shareholders.
There’s no question that members of Congress have a right to support their families and plan for their financial futures. The safeguards we propose here would leave federal lawmakers free to invest in diversified mutual funds and government securities, and to invest in companies that fall outside the jurisdiction of their committees. While it may be impossible to eliminate all financial conflicts of interest, safeguards such as prohibiting board service and asset holdings in the domains that legislators oversee would go a long way towards removing insider trading temptations and preventing financially induced biases in lawmaking.
We need to learn the right lesson from the Collins indictment: Legislators are in privileged positions with privileged information and we should give them the structure to ensure they bear the responsibilities commensurate with that privilege.
Matthew S. McCoy, Ph.D., is an assistant professor in the Department of Medical Ethics and Health Policy at the University of Pennsylvania’s Perelman School of Medicine. Genevieve P. Kanter, Ph.D., is an assistant professor in the Department of Medical Ethics and Health Policy and the Division of General Internal Medicine at the Perelman School.