Getting On The Wall: A Review of Edward Foley’s Voters as Fiduciaries

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Yale Law School’s Jack Balkin once wrote in The Atlantic that ideas are either “off the wall” or “on the wall.” Constitutional litigation, he explained, is all about the reasonableness of your ideas.

A decade ago, the notion that Obamacare’s individual mandate provision was unconstitutional was “simply crazy.” But after conservative lawyers, academics and social movements pushed the theory, the idea quickly gained legitimacy and was almost adopted by the Supreme Court. Similarly, the individual right to bear arms under the Second Amendment was a dead letter for decades until the Cato Institute, the NRA, and other conservative organizations began a successful movement to get a majority of the Supreme Court to recognize the right.

But theories have to start somewhere. And in his new essay, “Voters as Fiduciaries,”

Law Professor Edward Foley offers a new way to think about voting.

Foley, the director of The Ohio State University’s election law program, starts by laying out the conventional way society thinks about voting – as a personal, consumptive good. Voters have the personal right to vote and, as Foley puts it, believe that “I get to assert it in the way that I deem best.” Voters cast ballots – and thereby voice their preferences – for policies that personally help them the most, so “electoral democracy becomes nothing more than just the arithmetical aggregation of all these assertions of self-expression in the ballot box.”

The essay then proposes a new framework for viewing voting going forward – as a responsibility to all citizens in a society. A sizable portion of citizens today cannot properly participate in the electoral process due to mental disabilities, acute Alzheimer’s, or other diseases. When an individual votes, she has an obligation to represent these individuals who cannot vote for themselves, and to act as a “trustee” in ensuring that their best interest is represented. So too, Foley says, voters should be looking out for the interest of the next generation of Americans, who are not yet born or are too young to vote.

Foley goes on to use John Rawls’ famous “Veil of Ignorance” to present a more theoretical backing for this notion that voters should act as if they have a fiduciary obligation to all citizens, both present and future. Voters, Foley writes, should act like trustees behind a “veil of ignorance” – they should vote as if acting on behalf of a client they represent but do not know. Because voters are not sure who their client is they should be advancing general wellbeing, for if they disadvantage any group they could in fact be hurting their own client’s best interests.

Foley would be the first to admit that his idea is squarely “off the wall” – he clarifies at multiple points in his essay that voters should act as trustees, even though they do not in practice. The public and academics alike currently expect voters to act in their own self-interest, and confirm that Foley’s theory is not born out today. If some voters might fail to vote in their self interest, a flurry of news articles try to explain why they would have behaved so oddly. Meanwhile, academics have created a whole field to explore how well representatives align with the interests of their own constituents, as opposed to the interests of society as a whole.

But, if Foley’s idea could move “on the wall” and into the mainstream, he claims it could fundamentally change how American society operates. For instance, Foley writes that voters would think differently about environmental policy if they were more concerned about future generations of citizens.

The idea could also have important ramifications for election law as well. In the recent Supreme Court case Evenwel v. Abbott, for example, the Court had to decide whether states could create legislative districts that had the same total population, or if they instead had to apportion districts to balance the number of eligible voters in each state. If voting is not about individual interests, but instead about societal good, Foley writes that it is not important how many voters are in each district. Instead, Foley says that what is important is whether or not each member of the public – whether they can currently vote or not – is receiving equal treatment in the drawing of legislative districts. Under Foley’s model for voting, then, he believes the decision in Evenwel would have been an easy one. Indeed, in Evenwel, the Supreme Court unanimously upheld the right of states to apportion districts based on total population without having to rely on Foley’s theory.

Foley’s idea is clearly still in its fledgling stage. Some of his proposals could still use some work – his views on how a legislature would evolve under the Rawlsian model, for instance, need to be fleshed out in greater depth to avoid some potential inconsistencies. But, as Foley writes, the ‘voters as fiduciaries’ idea “is set forth here in its initial – not necessarily final – incarnation.” And by publishing his idea, Foley has started the process of moving the concept from “off the wall” to “on the wall.”

Jacob Zionce is a summer legal intern with the Campaign Legal Center and is a rising 2L at Yale Law School