Fiduciary duty for politicos?

This will be a relatively quick post, busily flipping back and forth between the Grammies and the Pro Bowl. Oh what conspicuous extravagance and such a neat indulgence, especially considering I rarely watch television!

This weekend I had a conversation with a friend about why there isn't a fiduciary duty placed on politicians within the common law tradition. From a practical point of view, the reason seems straightforward. The English common law system arose out of a political tradition tightly controlled by a monarchy and later a "prime" parliamentary minister with powers akin to a monarch. While the reason why there isn't a fiduciary duty at common law is easy to understand, the arguments for why we shouldn't impose one are more difficult to grasp.

We have a fiduciary duty for countless other legally acknowledged relationships, doctors and patients, lawyers and clients, corporate directors and shareholders, even parents and children. Why not for politicians? What could be more important in a liberal democracy than the relationship between citizens and their representatives?

Fiduciary standards were developed in equity courts, courts that could impose severe penalties such as the repossession of property. Standards of care were popular in equity courts. They gave judges reasonable guidance in how to impose what otherwise could have been draconian measures. A fiduciary is the highest standard at equity and at common law. And it still operates that way today in American courts, either at equity in states where the distinction is meaningful or at state common law and as applied by federal courts.

On a federal level, such a duty would have to be included in the constitution but states could easily pass laws imposing a fiduciary standard of care on legislators and officials. We all have seen the damage irresponsible politicians can impose on society and it seems incongruous to have a fiduciary standard of care against a priest and none against a governor or state senator.

There are sticky issues that have to be addressed to make such a duty practicable, namely standing and political considerations of separation of powers. None of these issues seem too lofty to me that they couldn't be addressed on a state-by-state level with commissions composed of state law scholars, politicians and judges.

What I'm reading:

How to Reform Our Financial System, Paul Volcker, New York Times

Follow the Leader, Anna Quindlen, Newsweek

Never Heard That Before, Thomas Freidman, New York Times

SCOTUS strikes down campaign finance restrictions.

This morning, a monumental sea change occurred in the world of American politics. The SCOTUS, in a vote of 5-4, struck down some of the key provisions of the nation's campaign finance laws.

A friend of mine told me shortly after the ruling came out that "someone needed to scan the Supreme Court parking lot for brand new Bentleys with 'Romney45' license tags."

All jokes aside, and while I haven't had time to read the decision, it appears far-reaching, but just how far-reaching remains unclear. Justice Kennedy, writing for the majority, states that the "government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether."

The impact of this ruling will not be known until we understand how far those government restrictions can go but the timing is incredible.

This morning the President is due to present a new wave of tough regulatory restrictions on large financial institutions with Paul Volcker, former chairman of the Federal Reserve, standing by his side. Volcker has been drumming up support for the re-institution of Glass-Steagall on Wall St. for months now. Volcker is also chairman of the President's council of economic advisors. There have been many reports that he had been frozen out of economic policy making at the White House but today was to demonstrate Volcker's growing influence as the President proposed tough restrictions on prop trading at large banks.

Obama himself told ABC News yesterday that he was getting ready to have "a big fight with the banks." News of the new restrictions and his hard new line have sent the FTSE Global Banking index and the S&P 500 tumbling. Goldman, which announced stellar earnings today, is down nearly 3% on todays' news. It seems, or seemed, that Wall St. is in for a tough one.

Wrong.

With today's SCOTUS ruling, Wall St. all of a sudden is back in the fight against the restrictions. Money is the mother's milk of politics and Tuesday's election results in Mass. show that the Democrats are vulnerable. Already, the healthcare bill has been scaled back. Today's ruling means that large corporations and banks can pour money into tight races. They can influence decision-making in Washington in ways they haven't been able to for decades. What seemed like a sure fire bet at tough restrictions last night, all of a sudden doesn't seem so sure as of this morning.

We don't know the full extent of the ruling yet but with so much new money flowing into this year's midterms, I suspect the President's "big fight" just got a lot tougher.

What I'm reading:

Stocks tumble as Obama takes on banks, the Financial Times.

Francois Obama, Shawn Tully, Fortune.

Court decision opens floodgates for corporate political spending, Kenneth P. Vogel, Politico

U.S. hegemony in the Western hemisphere: good or bad?

Today brings the news that U.S. troops are establishing an aid station at the presidential palace in Port Au Prince, the symbolic center of the Haitian government. There has been little sense of who is in charge in Haiti. The president, René Préval, been largely out of sight and some critical needs still, a week later, stand neglected.

Enter the great Leviathan: America. The secretary of state and CNN on the ground, the President himself surrounded by the Chairman of the Joint Chiefs, Secretary of Defense, Vice President, Secretary of State, Ambassador to the UN and the head of U.S. AID, telling Haiti "help is on the way." Now U.S. military helicopters and troops stand in front of the palace, delivering aid to the suffering and attempting to establish order in what has often been a chaotic and lawless scene.

How, one may wonder, is this a bad thing?

Well, according to Hugo Chavez, the anti-American evangelical and even some Haitians themselves, this represents yet another example of the United States asserting its hegemony in the region. They want the U.S. to leave Haiti. Yes, you heard that right. There are many who want the U.S. to leave Haiti, even in the midst of suffering, aid bottlenecks and destruction. Chavez, who says the U.S. is"taking advantage of the tragedy" has even offered the Haitian people "however much fuel is needed." The French cooperation minister Alain Joyandet has even demanded an investigation into U.S. aid efforts.

This unfortunate situation and the criticism demonstrates how politics colors everything, even within a massive tragedy.

First, it is undeniable military aid is needed. There is a power vacuum in Haiti. Nothing demonstrates this more than the fact that the very presidential palace that serves as the symbol of Haiti sits in ruins. Looting and some violence have broken out. Second, geopolitical realities dictate that no nation in the world would send troops to Haiti without close U.S. involvement and cooperation. The only nation that can establish a military presence in Haiti quickly is the U.S.

This also serves as yet another example of the extreme damage the Iraq war has done to America's standing internationally. To some people, the image of U.S. troops on foreign soil automatically carries with it something sinister.

Even if you are against U.S. hegemony and the ability of a nation to, for all intents and purposes, take over another country in the region with such speed, how can you be against the use of that hegemony towards positive ends, to the extent that you would allow people to suffer, to die? I'm sorry Mr. Chavez. The Haitian people need food. They need medicine. As a friend told me today, they cannot drink oil.

What I'm reading:

To Help Haiti, End Foreign Aid, Bret Stephens, Wall St. Journal
What I saw in Haiti, Ban Ki-Moon, Washington Post
Time for Leadership, Times of London

MLK Day

Tomorrow we celebrate MLK Jr. day in the United States. More than anything, MLK Jr. was a man of conscience. In the United States, there is very little conscience in today's public discourse. It often gets lost in waves of public correctness and fear. Very rarely do people say what they really feel and when they do, it's often out of anger or emotion. I remember a lecture Justice Kennedy gave in my constitutional law class first year of law school on the topic of fundamental rights. He asked the class "what do you believe is a right, and of those things, which rights do you believe should be fundamental?" One of my classmates, Ron A., raised his hand and said he believed food and shelter is a right and should be fundamental.

Justice Kennedy acknowledged that as a decent and worthy ideal and one that he respected before beginning a thoughtful discussion on the US Constitution and its limitations. The decency of that discussion is something that is missing from today's major debates in the United States, namely those on health care and war. That decency derives from conscience. As a person of conscience, a person of faith, it is difficult, in my opinion, to deny the ideal that people deserve food, shelter and health care, even if they are poor, and even if they are wretched.

Many conservatives, despite being people of faith, would not acknowledge that position for fear of ceding any ground in the midst of our 24-hr news cycle political battle royale. That's sad. We should be able to acknowledge that free health care is a worthy ideal in a society of conscience while at the same time being able to articulate reasons why it is not best for that society. We cannot repress our conscience or our inner most feelings as human beings to win elections or harm our political opponents. I cannot sell my humanity that cheaply.

MLK Jr. saw poor people and couldn't remain silent. He saw a war he didn't agree with and had to speak out. Despite being viewed as a leader for racial equality, MLK Jr. spoke out against a plethora of issues. By limiting himself to a single issue, which a lot of our political leaders do in today's modern media age, MLK may have very well been more effective. But to a person of conscience, there is no compromise on your conscience. Injustice anywhere is a threat to justice everywhere. So on MLK Jr. day, let's celebrate his humanity, his conscience by embracing our own.

The first inklings.

Hello all. I doubt I have many readers now but let's hope that changes. This is my first post. I want this to be a place where people can gather and discuss current events and other things like culture, politics, music, etc. If you have an idea for this site, please drop me an email. Thank you, God bless.