Saturday, September 16, 2017
Here at BLPB, Joan Heminway has written a couple of posts discussing comparisons between norms in corporate theory, and norms in democratic theory. A few months ago, she discussed the potential conflicts between Donald Trump’s private business interests, and his role as a “fiduciary” for the United States. As she pointed out, in corporate law, we have procedures to address potential conflicts, which include fully informed approval by the principal or unconflicted fiduciaries, and external review to determine fairness. But there is no similar procedure to address conflicts in the political realm.
Well, it appears that Joan’s not the only one thinking along these lines. I read with interest this amicus brief submitted in the Supreme Court case of Gill v. Whitford, posted by Professor D. Theodore Rave at the University of Houston. The case itself is about political redistricting, but Prof. Rave makes the intriguing argument that redistricting should be addressed the same way we address conflicts of interest in business law. Specifically – and drawing on his earlier article in the Harvard Law Review, Politicians as Fiduciaries – he proposes that districts drawn by independent commissions receive a lower level of scrutiny than districts drawn by “interested” political actors, in much the same way that we scrutinize interested business transactions more closely than disinterested ones. Under such a system, as in corporate law, political actors would retain the flexibility to draw districts as they see fit, but they would be encouraged to use certain practices over others.
From a precedential standpoint, we may have traveled too far from this path for the Supreme Court to change course now, but it’s a fascinating idea that I would love to see the Court seriously entertain.
I also note that in their article Beyond Citizens United, Nicholas Almendares and Catherine Hafer make the related argument that statutes should receive heightened judicial scrutiny if they implicate the interests of major campaign contributors. They don’t draw the comparison to corporate law directly, but they offer the same idea: conflicts in the political realm can be identified just as they are in business, and receive a closer look as a result.