This Part argues that it is appropriate to think of political representatives as standing in a fiduciary capacity to the people they represent, giving rise to a fiduciary duty of loyalty. It goes on to argue that representatives breach that duty when they self-deal by manipulating laws regulating the political process to entrench themselves. Finally, it argues that courts should enforce the fiduciary duties of representatives by subjecting self-dealing laws to heightened scrutiny.
A. Politicians' Duty of Loyalty
The first step in applying a private law fiduciary framework to the agency problem created by incumbent control over political process regulations is to ask whether political representatives can be properly understood to bear a fiduciary duty of loyalty. Treating politicians as fiduciaries, subject to a duty of loyalty to the people they represent, is consistent both with the history and political theory that surrounded the adoption of the U.S. Constitution and with the theoretical justification for fiduciary duties in private law.
1. Constitutional History and Political Theory.--The idea that rulers stand in a fiduciary relationship to the ruled is not new; its origins date back at least as far as the Middle Ages and can be seen even earlier in the writings of Cicero. (211) "Political trusteeship" played a prominent role in the trial of Charles I in 1649. (212) Defending the divine right of kings, Charles I maintained that he had received power in trust from God to be used on behalf of the people. (213) The Whigs in Parliament agreed that the king was a trustee, but they argued that the people had entrusted him with a limited power and could call him to account for breaching it. (214) The idea that Parliament received its power from, and acted as trustee on behalf of, the people was widespread by the mid-seventeenth century. (215) Oliver Cromwell repeatedly referred to public office, both that of Parliament and his own station of Lord Protector, as a trusteeship. (216)
In his Second Treatise of Civil Government, John Locke argued that the government with supreme legislative power stood in a fiduciary relationship to the people. (217) In the original social contract, according to Locke, the people delegated power to the legislature on the condition that the power be used only for the "public good of society." (218) The legislative power was "only a fiduciary power to act for certain ends," (219) and the government was obliged to act only on behalf of the community and not in its own interests. (220)
Locke's approach was widely accepted in England by the eighteenth century, when Henry St. John Bolingbroke, an English politician and political philosopher, declared that a patriot king "will make one, and but one, distinction between his rights and those of his people: he will look on his to be a trust and theirs a property." (221) Whig pamphleteers argued that the House of Commons "ought to be, what they reckon themselves, Trustees and Guardians of the Liberties of England." (222)
And Locke's political philosophy had tremendous influence on the American colonists in the lead-up to independence and later on the Framers of the Constitution. (223) As Professor John Reid argues, the theory of governmental "constraint through delegated trust" played a prominent role in shaping the constitutional debate surrounding the American Revolution. (224) According to the theory:
"The power of parliament ... is a power delegated
by the people, to be always employed for their use
and benefit, never to their disservice and injury."
It was, therefore, a limited power, "bounded by the
good and service of the people; and whenever such
power shall be perverted to their hurt and detriment,
the trust is broken, and becomes null and void."
And Professor Robert Natelson has observed that "both defenders and opponents of the Crown had adopted public trust views of government" and "agreed that public officials were bound by fiduciary-style obligations. …