Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

A Fiduciary Conception of Democracy

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May 31, 2005

The prevailing conception of democracy is a rather selfish one. Voters should share power equally, the theory goes, so that they have an equal chance of getting their way. They are entitled to assert their self-interest when they go to the polls, and voting rights should be distributed equally so that the electoral competition among competing interest groups is a fair fight.

While one hopes that voters won't always be self-centered when they elect their representatives and will occasionally give some thought to the interests of their fellow citizens, there is a sense in which democracy is ego-oriented at an even deeper theoretical level. Consider the common conception of democracy as an extension of a social contract. The idea, reflected in the Declaration of Independence itself, is that equal citizens agree on democratic forms of government as the best means of protecting their equally valid rights and interests.

Under this social contract conception of democracy, the parties to the bargain are the ones affected by the terms of the agreement. If the government happens not to be working as intended - if the particular democratic form of government in place is not conducive to the best interests of the citizens who authorized it - then the citizens can revoke the deal and rewrite the terms of the contract. Because it is their own interests that count - and because governments derive "their just powers from the consent of the governed" - the citizens are entitled to "alter or abolish" the existing government whenever they wish, replacing it with one that they believe would better serve their own interests.

In this social contract view of democracy, the sovereign citizens govern themselves. If "govern" is the operative verb, there is a congruence between the subject and object of the sentence that describes the relationship between governors and governed. On this view, then, democracy at bottom is very much an exercise in self-rule.

I wish to suggest, however, that this common conception of democracy is descriptively inaccurate and morally inadequate. It is descriptively inaccurate because there never can be congruence between the governors and the governed; instead, there will always be a gap whereby the governed remains a larger class than the governors. And it is morally inadequate for the same reason: we need a new vision of democracy, in which the electorate exercises power not on behalf of itself but rather on behalf of the larger class of those individuals who are affected by society's laws.

In one respect, the gap between governors and governed is obvious: children and their interests are governed by the laws of society, but children do not participate in the franchise and thus are not among the governors. Perhaps, however, this gap can be "bridged" on the theory that children will grow up to join the governing class; they just have to wait to become full-fledged parties to the social contract, after which they get to assert their self-interest in the same way that their parents did.

But this gap does not so easily disappear once we consider not just existing children, but future generations of as yet unborn citizens. The laws of society affect not only the living. They affect all those, adults as well as children, who will live in this same place in decades and centuries to come. In no area of law is this fact more apparent than in environmental law: the rules governing the use of natural resources (oil, coal, water, minerals, etc.) will deeply affect future generations of citizens, as will the laws governing pollution and the misuse of natural resources.

It is not enough to say that these future generations of citizens will be able to assert their self-interest once they join the ranks of the electorate. By then, it will be too late. Critical decisions affecting their well-being will already have been made and, many being irreversible, cannot be undone. It is not enough, then, to have a theory of democracy in which the governed, holding the ultimate reins of power, can revoke the authority of the government when it becomes "destructive" of their "Safety and Happiness."

Thus, the idea of democracy as collective self-rule is myth. At best, the Present rules both the Present and the Future, the latter unable to give (or withhold) its consent to the decisions of the former. For this reason, a more morally robust conception of democracy would require the Present to give equal consideration to the interests of the Future, when making decisions on behalf of both, even though their respective self-interests might sharply diverge. (Quite obviously, quick consumption of oil or some other non-renewable resource greatly benefits the Present, at the expense of the Future.)

But the gap between the Present and the Future is not the only one that undermines the conventional social contract conception of democracy. Even among adults alive today, there are some who cannot exercise the franchise and thus cannot be considered parties to the contract. While we like to pretend that in a democracy there is universal adult suffrage, in fact the suffrage among existing adult citizens never can be truly universal. There will always be a percentage, thankfully small, who are so mentally disabled that they are incompetent to cast a ballot - just as they are incompetent to enter a contract on their own behalf.

These incompetent adults are, quite literally, unable to look after their own interests. Other adults must guard their interests for them. In enacting laws that affect these mentally disabled adults, the fortunate who have the franchise should take care to consider the interests of the mentally disabled along with their own. Our society's conception of democracy also should reflect this truth, without relying on a fiction that the mentally disabled participate equally in a sovereign right to revoke the government's charter if they find that it does not adequately protect their Safety and Happiness.

What we need is a fiduciary conception of democracy, one that forthrightly acknowledges the gap between the governors and the governed. On this view, the electorate is privileged to hold power on behalf of all those who cannot exercise the same power themselves yet whose interests will be affected by the electorate's decision. The electorate must exercise fiduciary responsibility towards these affected interests, guarding them with the same vigilance as they would their own.

The idea of a fiduciary obligation is a familiar one. It is the obligation that a doctor owes a patient, or an attorney owes a client. It is a position of trust and rectitude; indeed, when a donor establishes a legal trust, depositing a body of assets into the hands of a trustee, the trustee owes a fiduciary duty to the identified beneficiaries of the trust.

The relationship between trustee and beneficiary, however, is not a mutually bilateral one. The trustee has more power and more responsibility. Authority and duties flow in one direction, not both. Precisely because the trustee-beneficiary relationship is unidirectional, it has not been considered an appropriate model for the social contract theory of democracy, which (as we have seen) considers government a multilateral compact among equals. Yet we ought to replace the inaccurate and inadequate idea of democracy as mutual self-governance, with the idea of democratic voters acting as trustees for a class of beneficiaries larger than themselves.

Although we could do so, we need not extend the class of beneficiaries to encompass foreigners or animals. (Why shouldn't, one might ask, American voters consider the interests of other inhabitants of the planet, whether the people of Africa or the whales of the Atlantic, when all of these other interests are so evidently affected by the actions of the U.S. government?) It is enough that we have a concept of citizenship that extends to all persons, but only those persons, belonging to the country. This concept of citizenship is necessarily broader than the electorate in at least the ways we have identified: it encompasses mentally disabled citizens alive today as well as the yet unborn citizens of tomorrow.

At a minimum, then, the electorate should think of itself not merely as a self-governing sovereign but, instead, as a body of trustees exercising fiduciary responsibility on behalf of the larger class of present and future citizens. Conceiving of democracy this way, the electorate should not merely seek to maximize its own happiness. Instead, it should endeavor to maximize the ongoing welfare of society as a whole, including its posterity.

Adopting this fiduciary conception of democracy might also illuminate potential solutions to presently difficult questions of election law. For example, a newly emerging and vexing issue is the extent to which senior citizens with Alzheimer's or other mentally debilitating diseases no longer possess sufficient acuity with which to cast a ballot. As a society, we might be able to adopt a more sensitive answer to this troubling question if, instead of viewing democracy as equals exercising power on behalf of themselves, we viewed democracy as the many exercising power on behalf of all.

Likewise, adopting the fiduciary conception of democracy might lead us to place somewhat less emphasis on voting rights and considerably more on voting responsibilities. Not that we would ever diminish the idea of voting rights entirely: even the fiduciary view sees the members of the electorate as possessing an equal entitlement to their privileged power. But the design of democratic institutions might not facilitate the rather cavalier exercise of this authority by the electorate, as if the only ones harmed by the abuse or neglect of the franchise were the voters themselves. (Sometimes, it seems as if the structure of the electoral process is indifferent as to whether a voter bothers to cast a ballot, or how much time and attention the voter has devoted to the choices on the ballot.) Instead, voting rules and procedures might be structured so as to remind voters that, when they cast their ballots, they exercise a fiduciary office with a constituency significantly larger than themselves.

Voters, in other words, do not merely elect representatives. In a crucial sense, they also are representatives themselves. They may send representatives to the legislature, just as the legislature has its delegates in the various administrative agencies of government. But the act of representation begins at the ballot box. There, the voters represent the interests of the community as a whole, including its present and future non-voting members. The sooner we embrace a conception of democracy that explicitly recognizes this fundamental truth, the sooner our society's discourse about the appropriate design of democratic institutions may reflect this reality.