Academic journal article Texas Review of Law & Politics

Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders

Academic journal article Texas Review of Law & Politics

Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders

Article excerpt

I. INTRODUCTION

In the 2006 elections, Democrats broke twelve years of congressional Republican rule, taking control of both houses of Congress.1 The Democrats' victory may have been attributable in part to public dissatisfaction with special interest spending and the corruption it spawned. Especially notable had been the stunning increase in congressional "earmarks"-designations in appropriation bills that money be spent only for particular projects in particular locations2-a practice that President Bush also has decried.3

Certainly there is widespread sentiment that Congress is spending too much time ladling from the pork barrel and conniving with the lobbyists tiiereby accommodated. Pork barrel spending is, on balance, wasteful in the sense that it significantly reduces aggregate social welfare.4 In 1996, a Republican Congress admitted as much, and attempted to curb the practice by granting a line item veto to the President.5 That effort proved abortive. Earmarking in particular continued to grow at an astonishing rate. During the ensuing eight years, the annual number of earmarks rose from around 3,000 to over 14.000.7

Because of strong congressional incentives toward special interest spending, a mere change in party control is unlikely to bring a lasting cure.8 Moreover, since 1936, when the Supreme Court converted the Taxation Clause of Article I, section 8 into an omnibus "Taxing-and-Spending Clause,"9 the Court invariably has deferred to congressional determination that spending programs, no matter how narrowly targeted or remote from enumerated purposes, somehow "provide for . . . the general Welfare of the United States."10

Virginia's Solicitor General recently argued that, based on the Supreme Court's language in a recent Spending Power case, more searching judicial review may be forthcoming.11 Thus far, it has not been, and judging by the state of the literature, few legal academics seem particularly concerned about the matter.12

Two notable exceptions are Professors Lynn Baker and John Eastman. They maintain that, at least beyond a certain point, special interest spending is not just a practical problem, but may have negative constitutional implications: that it may violate the "general Welfare" limitation in the Taxing-and-Spending Clause.13 They contend that more rigorous judicial review is in order.14

As I have shown previously, the "general Welfare" limitation was one of a number of provisions inserted to impose fiduciary-style rules on the new federal government-in this case the duty of impartiality.15 This Article explores the fiduciary law of the founding generation to determine whether it was part of the constitutional design for the Judiciary to review special interest appropriations, and, if so, how the courts might proceed. My findings suggest that, at least from the standpoint of the original understanding of the Constitution, prior judicial deference to the Legislature has been excessive: Professors Eastman and Baker are on solid constitutional ground in arguing for a more searching standard of review.

II. FOUNDING ERA SUPPORT FOR FIDUCIARY STANDARDS OF GOVERNMENT: IN GENERAL

A. The Rhetoric

Justice Stephen Breyer has pointed out that the purposes motivating the Founders' adoption of the Constitution should guide judges in interpreting the document's specific provisions. Presumably, therefore, the Founders'17 motivating purposes are relevant to interpreting the "general Welfare" language in the Taxing-and-Spending Clause.

One such purpose, and a very important one, was to adopt for America a federal government whose conduct would mimic that of the private-law fiduciary.18 This was to be accomplished both by the manner in which the government was structured and by imposing on public officials obligations comparable to those owed by their private sector counterparts.19

The Founders did not invent this idea. Elements of the fiduciary model extend back to Aristode and Cicero;20 and during the English constitutional struggle of the seventeenth and eighteenth centuries, it had emerged as a principal criterion of free government. …

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