The False Promise of Fiduciary Government

By Davis, Seth | Notre Dame Law Review, January 2014 | Go to article overview

The False Promise of Fiduciary Government


Davis, Seth, Notre Dame Law Review


IV. THE PROBLEM OF FUNCTION

To assess fiduciary government, it makes sense to consider the areas where federal lawmakers have experimented with it. In a few cases, they have imposed relatively narrow constraints on political corruption and naked self-dealing. These cases provide little heft for fiduciary government, not only because of their limited scope, but also because they suggest problems with the theory in practice. These problems become acute where federal courts experiment with broader fiduciary constraints.

A. Narrow Public, Fiduciary Constraints

1. Political Corruption and the Honest Services Statute

Curiously, fiduciary theorists do not make anything out of the one context where federal courts frequently describe government in fiduciary terms: criminal prosecutions of state and local officials under the federal honest services statute. Federal criminal law prohibits wire and mail fraud, including fraudulent deprivations of the "intangible right of honest services." (219) Federal courts have held that "[e]lected officials generally owe a fiduciary duty to the electorate," and that, when they breach that duty and deprive citizens of something of economic value, officials may be criminally liable under the honest services statute. (220)

Many honest services prosecutions have involved naked self-dealing. Although there are reasons to object to federal policing of state and local government on federalism grounds, a narrow criminal constraint on self-dealing seems largely unobjectionable. Only the Department of Justice (DOJ) can prosecute honest services fraud, which limits the risk of over-deterrence that would arise from broad private enforcement of public fiduciary duties. And given the widespread norm against quid pro quo corruption, (221) prosecution does not impose fiduciary constraints in the absence of consensus about the ends of regulation.

Criminal prohibition of political corruption need not depend upon a fiduciary model of political ethics, however. One may object to corruption on equality grounds: it allows some citizens unequal access to political decisionmakers. Another objection is that it effectively suppresses the speech of some by elevating the speech of others. Yet a third objection is that it leads to inefficient governance and has market-distorting effects. A fourth focuses upon the expressive impact of political corruption: "Leave the perception of impropriety unanswered, and the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance." (222) None of these objections focuses upon an official's breach of a duty of loyalty, but rather upon the harms that may arise from a corrupt political system. (223)

Had the DOJ confined itself to prosecuting state and local officials for naked self-dealing, the honest services statute might have remained a relatively uncontroversial mechanism for addressing those potential harms. But in the 1970s, the DOJ sought to broaden the scope of the statute to include "abstract" breaches of a politician's duty towards her constituents, without regard to an injury to money or property. (224) United States v. Mandel is illustrative. In that case, the Fourth Circuit held that the Governor of Maryland could be liable for honest services fraud when he promoted the enactment of legislation that redounded to the benefit of his friends in the race track industry, even though the government had not shown that he had any "direct interest" in the race track business, much less that his friends had offered him a bribe. (225)

Mandel and similar cases launched a firestorm of criticism. It was far from clear, commentators pointed out, that the honest services statute authorized an expansive federal common law of political crimes. The Mandel approach threatened to expand prosecutorial discretion beyond acceptable bounds and to turn tortious activity into federal crimes. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The False Promise of Fiduciary Government
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.