A bicameral legislature exists in the United States for very specific reasons; to represent the will of the people in the broadest and most durable senses and to separate legislative power from judicial and executive power. The Legislature as it is now constituted fails to do this. We examine some reasons why, including shifts in the way the interests of society are aligned. We argue that the structure of the legislature ought to be rationalized against it, and make some strawman proposals to start the discussion about fixing the problem stucturally.
Congress is broken. It has been for quite some time. Long ago one might have heard Congressmen involved in some public discussion about policy or in a public debate about the merits of bills and programs. But I remain to be convinced that this kind of public behavior has been a general practice among members of Congress during my adult life. And I approach fifty. For nearly two decades there has been awareness that special interests have corroded the legislative process. And there has been growing cynicism about a political process that Americans once believed in. At least two campaign finance reform bills have been passed to address the issue, the most recent of which is the McCain-Feingold bill.
One can argue that the McCain-Feingold bill worked by doing exactly what it set out to do. This is true and we must praise it. We must certainly laud both Senators for working together in a bipartisan effort to save some of what Americans love of democracy. But it would be difficult to argue that the bill really fundamentally changed the election process when judged in terms of how well legislation has represented the best interests of Americans as a whole. In fact, Congress has been quite busy over the last six years bestowing upon the Executive powers that the Constitution clearly gives to the Legislature. And it has, perhaps, even ceded to the President powers it does not have to give away. It puts the state of democracy in this country in a rather tenuous and strangely contingent condition. Democracy, in the form imagined by the founding fathers may not survive uninterrupted through this onslaught. This is not a partisan issue.
The list of bills for which such an argument can be made, if it is not long, certainly contains many provisions of a worrisome nature. The collective legislation in the so-called Patriot acts comes to mind. This legislation would work in concert with planned secret courts, still in the legislative process. It allows the executive free reign to dispose of any persons it designates as "terrorists." This process poses threats far more serious to American's liberties than the whole list of King George's many 'userpations' listed in the Declaration of Independence. It throws American jurisprudence back into the days of when monarchs tossed men into dungeons for almost arbitrary reasons.
Both less hypothetical and less potentially impactful is the bill that authorized President Bush to use force in Iraq. The effect of the bill was for Congress to say "we are not going to declare war on a country that has done us no harm. But we are willing to cede to the President the Constitutional powers vested in Congress to do this." Let's be clear: this issue is not about whether invading a country in the absence of provocation is a good idea. This issue is about whether it really is a good idea to shift the balance of power so that the Executive has more than it can either legitimately or responsibly use.
The whole reason the framers of the Constitution delegated the powers of war to Congress is because they saw how war was abused by kings and emperors from early Biblical times to their own day. History proves that kings and emperors tend to use war for illegitimate and harmful purposes. The only way to prevent this problem is to strip them of the power to initiate conflict. And to make kings sense a vulnerability of position that tempers their judgement. By the normal standard of monarchy England has ever had weak monarchs. The weakest of these - when measured on how secure the grasp of power really was - would have been her queens. Yet it was under England's queens that some of her greatest achievements in commerce, arts, technology, and politics are recorded.
If there is a millenium-long testament to the overwhelming benefit of a relatively weak executive, England is the shining example. Even though it is Victoria who would make this judgement a historical trend - she came to power in England half a century after the Constitution was written - Jefferson and the other framers of the Constitution understood precisely what they were doing and why. Separation of powers was necessary. It improved governmental accountability. It improved governmental responsiveness. It checked tyranny.
The framers of the Constitution also understood that if America or her citizens their property came under physical attack, defense of that property needed to be prompt and decisive. And it is for this reason that the President has the authority and the mandate to command armed forces. It is an operational command. Not a geopolitical one. There is, of course another and darker reason. If the President does not have some power over the military, then the military holds an implicit threat against the Executive. Dividing responsibility for the military this way was a sensible step to maintain stability. It was meant to allow engagements in conflicts that would be footnotes in history books, not chapters. Not books. Not small libraries.
Unfortunately Congress set a completely new precedent when it ceded to the executive its powers to make war. And this precedent seriously endangers the fate of the Republic - assuming it still exists. A highly partisan and remarkably corrupt Congress has all but given up dealing with urgent issues of policy and has focussed like a laser on repaying political debts and by pillaging the treasury before they are run out of town. Or until the reinforcements arrive.
It is tempting to believe that the whole fault lies with campaign finance. Money corrupts. And an absolutely huge pile of money corrupts absolutely. But if money were the only problem then campaign finance reform might have some niggling effect. It does not.
It is also tempting to imagine that the problem lies in the political parties themselves, especially the one in power. While there is also a direct connection to the immediate circumstances here, we must argue that the situation that predisposed America to this problem cannot be traced to a single party. It could have happened to either party. We must look for other causes.
We might blame the press. It has become sexy to discuss all political stories in terms of whose on top. Whose getting some. Who's in. Who's out. This stuff sells papers. Everyone wants to be part of the process. There are no polite words to describe what is going on here. Nor is it likely that everyone quite understands who is getting what. In the end, though, Americans are getting it. All Americans. And we all lose.
Were the press to take its mandate seriously and talk about issues - how legislation affects real people, how we might determine whether it is fair, to what extent it serves a common good, and to what extent it serves the interests of a particular class of people - there would be some small hope that things might begin to get better. But there seems to be no hope of getting there from here. Wire services, we are told, are being taken over by parties with a political point of view. Things will get worse before they get better.
It is easy to blame the press, it is easy to blame politicians. They all deserve plenty of blame. It's a big problem and there is lots of blame to go around. The fundamental fault, however, lies with the American people. I remember long ago when a particular president asked Americans to forgo some material things in order to help lessen the impact of a particular crisis. It was an appeal to Americans to be public-minded citizens and to act in a manner more consistent with the public interest than with their own individual private interest. That moment in time proved to be the very moment at which the political career of this president ended. He was trounced in the next election. Ever since then it has been an axiom of American politics that one never discuss difficult choices in public. Dodge difficult issues. Promise anything. Require nothing of the voters.
Not long afterword Proposition 13 passed in California and the era of common-interest law was over. The practice of legislation from then on would all be motivated exclusively by special interests. The group with the most votes gets everything. Everyone else, nothing. All discussion of policy and how it might affect common interest ceased. It is tempting to imagine that as long as I am on the winning side, this problem does not affect me. But we are fortunate enough to have an example to show us otherwise.
In Iraq and we ask "why can't the Shia just get along with the Sunnis?" Why is it that they form in bands and go out and shoot each other and bomb each other? Why is the weekly death toll for these terrors in the hundreds, and it is a state not the size of California? We forget that they behave as if they were copying the very way we do business. They are copying the American policy of 'winner-take-all' majority rule. We fail to realize that if we build a nation on that model we will eventually be stuck with the same choice as Iraq has: either we must be ruled by an opressive police state a la that of Saddam Hussein. Or we live in a place where the opressed minorities do violence to the oppressive majority. And vice versa.
It was precisely to end this sort of thing that England built its bicameral legislature. Let's hope we can soon grow to be as wise as the English political establishment was some four or eight centuries ago. The public has simply grown too self-absorbed to comprehend the idea of common good. Only one strategy can win elections. Promise more candy. Montesquieu had something to say about democracy when it reaches this point:
The people fall into this misfortune when those in whom they confide, desirous of concealing their own corruption, endeavour to corrupt them. To disguise their own ambition, they speak to them only of the grandeur of the state; to conceal their own avarice, they incessantly flatter theirs.
The corruption will increase among the corruptors, and likewise among those who are already corrupted. The people will divide the public money among themselves, and, having added the administration of affairs to their indolence, will be for blending their poverty with the amusements of luxury. But with their indolence and luxury, nothing but the public treasure will be able to satisfy their demands. We must not be surprised to see their suffrages given for money. It is impossible to make great largesses to the people without great extortion: and to compass this, the state must be subverted.
The greater the advantages they seem to derive from their liberty, the nearer they approach towards the critical moment of losing it. Petty tyrants arise who have all the vices of a single tyrant. The small remains of liberty soon become insupportable; a single tyrant starts up, and the people are stripped of everything, even of the profits of their corruption.
It is as if Montesquieu were standing outside American society today looking in. It is as if Montesquieu had a stack of newspaper clippings about the corruptions of Congress over the last half a century and he was providing us an analysis of what happened. His analysis shows a profound functional insight into how democratic societies work. And how they break. How did he know this stuff? He read Plato. He studied history. He wrote a lot. And, in fact, our very form of government with its three branches is constituted along the lines envisioned by Montesquieu.If there is a single person we can thank for the form of government Americans enjoyed for two centuries, it is Montesquieu. He did the heavy lifting. Jefferson simply had to recognize a great idea, adapt it along lines that were familiar to Americans, and sell it. ( Montesquieu, one might argue, had been influenced by British methods and much of his work was probably also informed by forms that colonies in the new world had adopted. So he gets credit for rationalizing existing forms against historical knowledge.)
Assuming things do not get as bad as Plato or Montesquieu predicted, with the Republic falling to tyranny and so on, it seems likely that for some time we will get more campaign finance reform proposals. But so long as the press is still talking process, not issues; and the people still frame all governmental policy and acts of law as "what's in it for me," one might reform campaign finance until the cows come home, or maybe until there are no cows, and the problem will not go away.
Sadly, whenever a single party controls both the Legislature and the Executive, the temptations for abuse abound. Only an active, independent, and impartial Judiciary can assure that the Republic does not devolve into something less savory.
The framers of the Constitution never anticipated that society might have the structure it now has. They assumed that local and regional interests would normally compete strongly with larger national interests. They assumed that there would be enough political forces at work producing competition between the branches of government that these forces would naturally check any concentration of power. And that political parties would never be able to affect all three branches in such a way that all three would be willing to abandon Constitutional principles.
But the structure of our society is profoundly different. Absolute differences in geography tend to count less than relative ones. It once mattered more whether a person was from Georgia or Maine much more than it mattered whether he lived in a city, in a suburb, or in the country. Now it is exactly the opposite. And the structures of the Legislature fail partly because of this structural problem. While the Democratic Party was the biggest power in Congress and while it was cobbled together from a large number of rather unruly and disconnected groups, the assumptions that underlay the separation of powers were satisfied to some degree.
A century ago Mark Twain quipped "I am a member of no organized party; I am a Democrat." And the same remains true of the party today. This state of affairs probably kept things from getting too bad under Rooseveldt. But when the so-called Dixiecrats of the south all voted for Ronald Reagan, the Democratic party began to unravel. At that point in history, America began to be divided in a rather different way. Urban areas voted Democratic. Rural areas voted Republican. Suburban areas swung back and forth. So long as random chance and political forces caused the Congress and the Presidency to be aligned with two different parties, there was a natural check on the executive. And even if everyone involved in the process was corrupt, one side's corruptions were at least partially checked by the other side's interests. But that dynamic ceased when George Bush took office in 2001. Not long thereafter legislation was being drafted that that would give the President powers that framers of the Constitution could not have dreamed of, not in their worst nightmares. Mission accomplished, Congress spent the next six years slashing taxes and tossing vast pots of money at special interests. Henry George, a ninteenth century political economist parenthetically described just such a situation:
It is an axiom of statesmanship, which the successful founders of tyranny have understood and acted upon, that great changes can best be brought about under old forms. We, who would free men, should heed the same truth .
So: things are broken. How do they get fixed? If we were to assume that Henry George describes either an imminent condition or one of the recent past, what can Americans do? The first and most important thing that needs to change is the American voter. The American voter needs to stop voting his purse and start voting as if there is a common good. For if we assume there is not, it becomes a self-fulfilling prophecy.
Here is a list of ideas. This may not get us where we need to go; but this may at least provide some of the necessary things to start well.
This list provides a start. But it seems to me that whenever a single party gains control of both Congress and the Presidency the temptation will be to do really stupid things. The principle of separation of power sought by the framers of the Constitution has ceased to be served by the structures they created. Put plainly, the framers of the Constitution built this form of government in order to assure a separation of powers. But when, as must occasionally happen by chance, a single party gains control of all three branches it is only sheer luck that keeps the Republic from falling to tyranny.
The framers of the Constitution, if they were alive today, would see this structural problem. And they would work to implement some structural change that would prevent party politics from ruining the delicate balance of power they dedicated their whole lives to creating and preserving. It is taken as an article of faith among Americans that the two party system serves America well. But when parties become powerful enough that a single party can dominate the Legislative, the Executive, and the Judiciary branches and when the general state of government is can best be described in terms of rampant corruption it becomes prudent to examine the assmption that the separation of powers can endure single party domination.
Maybe something else will safeguard the public welfare more effectively. Framers of the Constitution were very worried about political parties and some wanted to ban them. Since they are a major part of the problem it is a great temptation to argue that they ought to go away. There are ways to change their nature. Their are ways to change the way they work. There are ways to change the way they interact with governmental structures. And there are ways to make governmental structures more immune to tampering by political parties.
We need to discuss all these issues. But at the end of the day political parties cannot be made to go away. There are two reasons. One is that the Bill of Rights guarantees the right of free association. Parties are simply one legitimate exercise of that right. The very reason for the right of free association is so that those who find governmental policy harmful may band together and have a voice. Banning parties would not just violate the language of the Bill of Rights, it would violate the purpose of the language. A second reason is that political power derives from advocacy and agreement within groups. Whatever one calls the groups that hold power, power will be held by groups. Banning political parties is like legislating that pi be 3/7 ths or that gravity be suspended in Kansas. Not all the things that can be legislated can be made to happen in reality. In a sense, political parties are to government as water is to fish. So we need another solution. We need a solution that makes it impossible for the majority to run roughshod over the minority.
Campaign finance reform legislation assumes that the problem lies with the election process itself. And if only one party is hypothetically corruptible by money, then fixing the money problem might fix the immediate problem.
Using similar arguments about finances and corruptibility, if one believes that it is the re-election process that causes the problem then one can change the Constitution and set up term limits. Maybe a Representative would serve for a single four year term. Or maybe each would serve for a maximim of three two year terms. The idea would be that this lower house then would be composed of people who were highly responsible to the immediate concerns of the electorate. If a member could serve a maximum of two terms, then a maximum of half of the people running at any given time (on average) would be incumbents. Money would flow to fresh blood. This might help. If it had no other beneficial effect, it would at least spread the wealth around.
The same solution in the Senate seems more problemmatic. One of the strengths of the Senate is its continuity. Senators like Byrd, Thurmond, or Kennedy have seemed like fixtures. And whatever we might think of their particular politics the sense of continuity they bring to government - the experience and the perspective - are things that government cannot do without. If one were to try to get a similar level of continuity and end the money culture in the Senate, one might advocate electing Senators for up to two twelve year terms. Or some such thing.
The hope in bringing up the idea of structural changes is that the process of knocking them down will in itself start a discussion about the whole issue of how power flows into the Legislature and to what ends the Legislature ought to and is destined to dispose of that power.
It might help to remember that the bicameral Legislature was originally an English institution. The upper house, the House of Lords, was composed of feudal lords. These lords owned great tracts of land and - to some degree - the people who worked them. Feudal lords represented the form of governance in Europe that had been in place since Roman times. Then, as some point in the last millenium England found that she had a bourgeoning middle class. There existed a whole class of people who were not represented in Parliament. It was the freemen who lived in towns and villages and cities. These were the craftsmen, the scholars, the shopkeepers. The House of Commons was instituted to give this class a voice in government. The sheer fairness and evenhandedness of this seems strange to us in the current political environment.
So we suddenly realize that England created institutions that actually reflected divisions in interest. It created an institution with particular legislative powers to protect the interests of an otherwise powerless and voiceless class long before it might have been considered the most powerful class in England. The middle classes had one set of interests. The feudal society had another set of interests. It was the dynamic tension between these interests as they were being represented by their respective institutions that kept England on a reasonably intelligent track. The way these interests were represented among political parties and between houses of parliament meant that issues became much more central to the legislative process than status or power or party. Framers of the American Constitution understood this. And while they rejected the feudal model itself, they adopted the same forms for the Legislature.
Anyone who has looked at Congress in America has been tempted to ask "why two houses?" Really, it seems like a terribly anachronistic idea when one stops to think about it. Especially when one considers that the reason we do it was that it worked in England's semi-feudal society. The societal structure that caused it to work in England does not exist anymore. So why do it?
Maybe it is time to stop to think about it. The questions we ought to be asking include: Would it be possible to construct a Legislature that is faithful to the idea of separation of power - the ideals of shared power and common interest - but departs in form from what the founding fathers created ? What is the proper relationship between the Legislature and the people? What is the nature of a good law and how does it compare to bad law? How does one create a Legislature and a legislative process that primarily results in good laws and generally eschews bad ones? What happens when Legislatures fail to consider the interests of all men but rather institute laws that favor specific groups? Why have countries with long continuity in government attempted to give minority groups and groups that would otherwise have little power a political voice? Is there a linkage between domestic tranquility and continuity of rule? To what extent is it true that only just institutions endure?
More than half of these are rhetorical questions. Yet an impartial student of recent history might imagine that hardly any voter or member of the press has encountered such questions before. Or if they have encountered them they have not taken their purpose seriously. Or if they have taken their purpose seriously, they have never compared the ideal state of things with the current one. How else could one explain where we are?
Suppose we were to imagine that the Democratic party represents the educated middle classes. And suppose we were to imagine that the Republican party represents the less educated and the people who own nearly everything and are dissatisfied with the shortfall, then we might imagine aligning one house with one party and the other house with the other party. The Republican party approximates the feudal forces at work in society in both form and function. The Democratic party approximates the democratic forces. A bicameral legislature with Republicans in the upper house and Democrats in the lower house would have a rough correspondence to the way England's bicameral legislature divided power when it worked.
What a hoot that would be. Every single bill would have to have a majority of votes from one party in the House, and a majority of votes from the opposite party in the Senate. Only rarely in America have things been ordered in a way in which a majority of people representing the majority and a majority of the people representing the minority needed to agree on something. It has probably happened by accident from time to time. But when such a thing happens it is suggestive of rather broad agreement. And this is certainly a laudable goal.
Imagine further that the Executive was elected out of the House and had approximately the powers of a Prime Minister. And that it was still the Senate ( the opposition party ) who approved all his nominations to cabinet posts and to the judicial. In this sense there would always be a powerful opposition. Admittedly, this is a half-baked idea. If one rejects a permanent apportionment of parties to houses, the problem would be how to establish which party takes the Senate and which takes the House.
One might grant the wining party the House and the losing party the Senate. Candidates from the winning party would be directly elected to the House. Members of the Senate would be selected by their party to fill seats in the Senate. Figuring all this out really could make for some bizarre situations. Still, it would institutionalize a kind of balance of power that the current government desperately lacks.
Recall that the reason we are doing this is that Congress is broken. And the reason it is broken is complex. It is a result of a number of interactions between the structures in place, the electorate, and the political parties. And it is only in changing the rules of the game and re-aligning interests that hope for preserving the Republic remains. So our goal here is to search out novel ideas to stimulate discussion more than it is to support those ideas.
In a search for fresh and novel ideas to bring to bear on this question, I stumbled accross a really novel idea of a housemate of mine long ago who was named John Adams. Dr. Adams was, at the time, studying history and reading for his comprehensive exams. One day he joked that he thought the nation ought to be ruled by a group of celibate monks trained up from childhood for the job. These would not be religious leaders, they would be trained for the task as Legislators. They would live an ascetic life, eschewing all the things that normally cause men to go crazy; money, women, alcohol and other mind-altering chemicals, land, posessions, party membership, real political power, video games, internet bulletin boards, guns, expensive clothes and cars, and bungee jumping. They would be, in a sense, outsiders looking in. This would give them a kind of objectivity that few Legislators achieve. Their only connection with society in general would be that the continuity of government would assure the continuity of their tiny sect.
I never took John Adam's proposal very seriously. Then the other day I was reading Plato's Republic and I recognized the inspiration for the idea. Plato's vision was different. Instead of ascetics, he imagined a warrior class. His hypothetical legislative class would be trained up on gymnastics and music. And in Plato's view of things they were part of society, not separate from it. Plato's proposal has a very different sense from Adam's. It would result in a rather different society. But both of these ideas got me thinking about how one might take the spirit of the bicameral legislature and create a Legislative structure that actually represents the various different interests of all Americans.
Suppose we abandon the idea presented earlier of segregating the two houses by party. Imagine instead that the upper house of the Legislature is composed entirely of the ascetic class as Dr. Adams described. Imagine that individuals in this class are the only ones eligable to run for office in the upper house (the Senate). The slate for the upper house would necessarily be made up entirely of men from this ascetic class. Their campaigns would be based on judgements of their work. And their work would be published free by the organization that they belong to, which is pledged to objectivity. They would campaign in open debates sponsored by news organizations. And they would make clear position statements arguing their policies that would be seen in newspaper articles and on the internet.
The minimum age to be elected to the Senate would be raised to 40. Candidates would have spent their lives up to the point of election studying classics, history, economics, philosophy, religion, ethics, psychology, aikido, law, music, mathematics, and physical sciences. They would spend some years training younger members of the same sect in the same areas and advocating for policy ideas outside the stream of party politics. They would not be educated to be specialists, but rather they would be educated to be able to apply ideas from one field to all the other fields. They would understand the purpose of good government and be dedicated entirely to its end.
Once elected they would serve a single 24 year term. And when their term is expeired they would serve as instructors to instruct other people of their small sect. They would be barred from commerce, industry, consulting, and televangelism. They would be allowed non-commercial journalistic pursuits. Members of this class would be barred from any party affiliation. They would be allowed to attend party functions as observers but not as participants. They would be able to speak in public but only at non-partisan events. This would be a condition of their being part of the sect. Such a class, especially if it were selected early and cultivated carefully would provide a kind of gravitas to the legislative process that it tends to lack right now.
Finally, it seems to me that we know enough about psychology that we need to have psychological metrics for our highest leaders. Corporations do this with corporate talent. Primarily what we would be trying to do is to weed out the true psychopaths. This, it seems to me, would probably eliminate a noticable percentage of the people in the legislature and perhaps as much as half the people in at the highest levels of the administration. And it would eliminate probably 80 percent of the serious problems with the way we do business. How such a plan is implemented is important. Impartiality is crucial. Transparency is crucial. And the standards have to be pretty low in order to prevent such a panel from gaining too much power. Perhaps such a panel could have the power to reject as much as two or three percent of the candidates for legislative, judiciary, and executive posts. The threat of audit and disclosure might play a profound role in changing the composition of the pool of candidates. Or not. It would seem like the threat of prosecution has failed miserably to keep crooks out of the Legislature during the last six years.
Less odd provisions of this same plan might be sensible parts of future reforms. One idea is to rationalize representation. No longer would a Senator represent a state. A Senator would represent the interests of one percentile of the population at-large. And the population percentile allocated to a Senator would be on the basis of income. If my personal income is in the 34th percentile, then I am represented by Senator 34. Thus, the upper house would be constituted of specially trained, specially educated ascetics. Each one would be elected by and would represent a single percentile slice of the American population.
As part of such a plan, representatives in the lower house would be elected out of the population at large and would serve up to four two year terms. They would represent congressional districts and could be members of a party. Congressional districts, however, would be constituted in such a way that more than half of them could be assumed to be in play in a normal election year. They would have sensible and natural shapes whose perimeter to area ratio was not far different from that of a square. And when they were elongated it would be to cause the districts to be more inclusive and more varied.
Thus representatives would represent districts with the narrowest possible geographic interests but widest possible economic interests; while senators would represent districts with the widest possible geographic interests but the narrowest possible economic ones. Representatives would be highly responsible to the people - representing their foibles and weakensses as well as their current interests and strengths. Senators would be responsible in a different sense, giving depth, gravitas, continuity, and expertise to the legislative process.
Whether they strike one as being "hairbrained," "odd," "imaginative," or "brilliant," these ideas offer us tangible examples that serve to educate our discussions about how the form of the Legislature ought to be designed in order to best represent the interests of all Americans as a group, not just the those with good connections. America is not ready to actually do something this drastic. Probably it will only be after some rather unfortunate self-inflicted crisis that the impetus for such profound change is likely. But it will be helpful to have ideas in reserve for when such a time might arise. When it does, discussions concerning who's on top, who's winning will serve us no better than they do now. We hope that these ideas are taken in the spirit they are offered. It is the spirit of hope that a free and fair America might be a legacy our great grandchildren inherit from our time.
Copyright: Stephen R. Brubaker, 2006. All Rights Reserved