A fiduciary is a person who has a duty, created by a voluntary undertaking, to act for the benefit of another in matters connected with such effort. Government officials voluntarily seek and assume positions in our government. They freely take an oath to support the Constitution. When they voluntarily assume the responsibility of managing our government, we entrust them with our money, property, liberty, the fair implementation of our laws, and defense of our country. Government officials must never act for personal benefit or the benefit of the political party that supported them. Such actions are a breach of fiduciary duty. They have significant responsibilities that, if not correctly executed, can create massive abuses that inflict great harm on our people and nation.
Government officials having fiduciary obligations is a controversial topic. There are more than a few well-crafted law review articles that argue the fiduciary duty standard cannot be easily transferred from trust or corporate law to the public law. These scholars argue in the public arena there is simply no way to determine who is the beneficiary of a government official’s duty of loyalty. There are too many beneficial interests and legal relationships that are qualitatively different, for a rational trust policy to be constructed.
These law review articles provide excellent straw-men examples of the unworkability of imposing a fiduciary relationship between government officials and diverse laws to be administered, constituents and institutions to be served, and political parties since there is no consensus on what interests are to be protected. The reasoning seems to be that since validly enacted laws, regulations, and orders are constitutional, the exercise on a fiduciary duty must encompass all actions of the government, or the fiduciary duty cannot be imposed on the government official.
This “too much complexity argument” misses the critical point by jumping to the conclusion that to be a fiduciary the government official must be a fiduciary to every constituent for all validly enacted laws, regulations, orders, and other government actions. That is not what our Constitution mandates.
Our Constitution is clear; the Oaths Clause
refers to the operation of the framework of the Constitution. As such, all actions must be consistent with its structure of limited government held in check by the separation of powers between the three branches of government. Therefore, the fiduciary duty merely reaffirms what the Oaths Clause imposes – loyalty must be to the operation of our Constitution and the institution in which one serves.
To ensure a limited government, each branch must continuously operate as a check on the other branches. For this to occur, the fiduciary duty of each member of our government is to the branch in which they serve and not to a political party that may have helped them achieve their employment.
When this system of checks and balances fails, it is a breach of fiduciary duty on the part of those officials who fail to be loyal to the branch of government in which they serve.
Unfortunately, today most members of our government work as Republicans or Democrats and not for the institution in which they serve. The goal of these Republicans or Democrats is to achieve the overall interests of their political parties. Presently almost every major action taken by the people running our government is a Republican or Democrat action. David Davenport, writing in Forbes, estimates that around 90 percent of congressional votes are party-line votes.
Look the Executive who usually only works with the political party of which he is a member to deliver the votes needed to carry out the Executive’s wishes. Alternatively, look at the courts and all the judge shopping that goes on to ensure that the court where the filing occurs agrees with the political position of the party filing the lawsuit.
When political parties so control the power structure that they replace the functioning of the institution with the goals of a political party, we citizens have our rights greatly diminished. We are then only protected by political parties, and cannot depend on the respective institutions of government for protection.
We citizens need to continually remind ourselves that political parties are nothing more than special interest organizations created for one purpose - to control the government of the United States. Political parties have so successfully eliminated competition for political power that the two major political parties control all aspects of our government. When in control they make whatever laws or regulations they wish to enact, subject only to whatever political power the opposing party may have to limit the majority’s power. In this instance, the institutions of our government are irrelevant.
If a president wants an illegal war and his party controls Congress, then it is war; notwithstanding the War Powers clause of the Constitution. If the president wants to create laws by regulation instead of going through Congress, and the opposing party in Congress cannot stop it, then the rules become law even if Congress never intended its law to be so expansive.
While their many examples of how political power trumps institutional power, what is clear is that if members of Congress were operating as fiduciaries to the institution that checks presidential or judicial overreach, rather than as a political machine, Congress would check the executive or judicial branches of any constitutional overreach. Also, vice versa for the
other branches. Such checks are not available when our institutions operate to achieve the goals of a political party rather than functioning as an institution that checks the powers of the other branches.
When our government officials work to help the political parties control our government instead of working to protect the constitutional powers of the institution in which they serve, our government officials breach their fiduciary duty to the Constitution and the citizens of the nation. Our government officials cannot have divided loyalty between a political party and our Constitution. Such divided loyalty does not provide citizens the same protections as if the members of our government remained loyal to the institutions in which they serve.
Article updated from the original version published by William L. Kovacs on his blog at www.ReformTheKakistocracy.com on April 23, 2019.
William L. Kovacs, author of Reform the Kakistocracy: Rule by the Least Able or Least Principled Citizens and a blog of the same name. William L. Kovacs has been active in national policy issues for over forty years, serving as a senior vice president for environment, technology & regulatory affairs for a major business trade association, a chief counsel on Capitol Hill, chairman of a state environmental board and a partner in several Washington, DC law firms.