September 29, 2011

STEPHEN L. CARTER: Shockingly, The Energy Department Doesn’t Make Much Of A Venture Capitalist. “The analogy fails because the venture capitalist is disciplined in his lending by two forces that government does not face. First, if the venture capitalist makes too many bad bets, he will lose his investors. Government loan guarantee programs, on the other hand, can be refunded by Congress as often as politically convenient, and have been known to grow larger after making bad bets. Second, venture capitalists face potential liability for breach of fiduciary duty if they fail in the duty of care and loyalty imposed by law on those private individuals who handle other people‚Äôs money. Government officials and departments, with minor exceptions, are shielded from lawsuits by the doctrine of sovereign immunity. There is no way to subject a federal loan guarantee program to the discipline of the markets, and that might be reason enough for the government to stay out of the business of picking winners and losers. But if the program is here to stay, perhaps we should seek to discipline its administration through the alternative route: a partial waiver of sovereign immunity. . . . Liability is one risk of running a company that picks winners and losers in the marketplace. If the alternative energy loan guarantee program would be unable to function in the face of potential liability, one might reasonably ask whether it should exist at all.”