Conflicts of Interest and the Constitution

I. Introduction Increasingly, society has recognized the concerns posed by conflicts of interest.1 Conflicts of interest may compromise audit reports by accounting firms, courtroom decisions by judges, and treatment decisions by physicians. In several areas of the law, concerns about conflicts of interest play a critical and widely recognized role. Codes of professional responsibility limit the ability of lawyers to represent both sides of a dispute,2 principles of corporate law prevent company directors from trading on inside information,3 and rules of agency law prohibit trustees from mingling their own funds with those of the trust.4 Conflicts of interest also can play a critical role in shaping constitutional doctrine. However, this role is seriously underappreciated. Occasionally, courts and scholars mention conflicts concerns when discussing the Constitution, but few writers really analyze the significance of conflicts of interest for constitutional interpretation, and such analyses are usually limited to a single area of doctrine.5 Consequently, legal scholarship has not adequately considered how constitutional law accounts for, or should account for, conflicts of intereSt.6 This Article offers a fuller discussion of conflicts of interest and constitutional interpretation. In particular, this Article shows how consideration of conflicts can help answer three leading puzzles in constitutional theory and doctrine - the lack of a strong theory for separation of powers cases, the tension between judicial supremacy and the political question doctrine, and the question of whether Article V of the Constitution exclusively governs the process of constitutional amendment. First, responding to concerns about conflicts of interest can help resolve a serious problem with the "functionalist" approach to separation of powers issues.7 The functionalist approach can explain Congress's power both to create administrative agencies that exercise legislative power and to authorize independent federal prosecutors that exercise executive authority without presidential oversight. However, a functionalist approach has trouble establishing when Congress goes too far in reallocating national government authority and thereby upsets the balance of power among the Congress, the President, and the courts. In other words, while a functionalist approach responds to the problems ofthe leading alternative theory - the "formalist" approach to separation of powers question8 - the functionalist analysis suffers from a lack of identifiable limits. How do we know when a reallocation of power too greatly undermines the constitutional structure? This Article argues that accounting for conflicts of interest in constitutional interpretation can provide the limiting principle needed to make functionalism work. Specifically, courts should strike down legislation when it is likely that Congress passed the law to serve its own self-interest. Second, accounting for conflicts of interest can also resolve an important tension that exists between Marbury v. Madison's9 principle of judicial supremacy10 and the political question doctrine.11" Under current applications of the political question doctrine, courts must try to explain why the judiciary should not decide certain constitutional questions despite the fact that under Marbury the Supreme Court is the ultimate authority on constitutional questions.12 Understanding Marbury and the political question doctrine in terms of the concerns raised by conflicts of interest can establish a political question doctrine that fits well with the principle of judicial supremacy. In particular, courts should abstain when their involvement would entail a serious conflict of interest for them. Finally, considering conflicts of interest can illuminate a third important constitutional question - does Article V of the Constitution alone govern the process for constitutional amendment? The amendment process described in Article V is not stated in exclusive terms. …