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Saturday, June 17, 2006

The Failure of Checks and Balances

Our constitution uses three branches and checks and balances between them to prevent tyranny. While all members of all branches take an oath to uphold the constitution, they also have specific powers that they alone exercise and specific powers to restrain the other branches. We have elites checking and balancing other elites. We'll define elites in more detail later.

The constitution also includes lessons learned over centuries from other governments. The most important is civilian (President) control of the military. This was not by chance, and it was not inevitable. General Washington had many opportunities to operate independently of congress during the Revolutionary War and choose not to do so, a fact widely observed at the time. All educated people knew what followed when Julius Caesar crossed the Rubicon.

The civilians and military staff are mutually dependent on each other, the former providing funds and legitimacy, and the latter providing expertise and capability. It is arguable that civilian control of the military is one elite checking another. It's also fair to say that military leaders have a fundamentally different outlook than civilians. There is not as much dissimilarity of outlook among the Executive, Legislative, and Judicial branches, although they do differ. You might say that the key difference between the military and civilians is functional, in the same way that engineers, artists, and therapists have different and specific expertises. Yet the military mind comes more fundamentally from the habit of breaking taboos (or at least they were taboos before Rambo and the Terminator) that every child learns: don't kill and don't break things.

The political elite have a fundamental ethos in the same way. We can describe some of the elements of this ethos by contrast with other professions, other personal tendencies. First, the political elite believe they have a mandate to govern. They were elected by a process that most citizens believe to be fair. They are in some sense Right, and the people agree that they are Right. Second, a corollary of the first, they have a mandate to change what is wrong: to throw out the incompetent, the ineffective, the wrong-headed, the uncompassionate. Third, they are important, because everyone tells them so. Constituents, lobbyists, and the like-minded in the press and in their party are all eager for their support. Fourth, they have the constitution on their side. The power of all branches has expanded from the language of the constitution, but incrementally, so that their claim to power can be shown to be descended from the constitution.

The executive power to wage war (usually undeclared by Congress), congressional power beyond the enumerated powers (they are all "necessary and proper" of course), and the judicial activism of the last several decades are examples of this expanded power. It was theoretically possible for the branches to check each other, but they did not.

The military has fought over 200[i] wars in the life of our republic, but only eleven have been declared by Congress. The Congress has the power of the purse; why did they not stop the President? Congress has expanded its power well beyond the enumerated powers. To take one example, not in dispute by most in government nor by citizens either, the commerce clause is the authority for the federal government to enact environmental regulations. Why have the other branches not restrained Congress? The Federal courts enacted specific remedies, including government expenditure of specific amounts of money, to remedy discrimination in Kansas City schools. Why didn't the executive try to reclaim its executive authority and Congress it's power to tax and spend?

Part of the problem is that when one branch is weak, albeit temporarily, the other branches take advantage. The Nixon period is a good example. Yet, there is in the American system no way to counteract the inertia of those times, unlike the Parliamentary system. Margaret Thatcher changed more in the U.K than Reagan did in the U.S. precisely because the U.K. system allows whole sections of law to be thrown out if one majority so decides. Many majorities, not just one (an over-simplification), are required in the U.S. Congress belonged to the other party during Reagan's administration.

Another part of the problem is that while the three branches have different interests, their interests are not different enough. They are all political elites. Here is an excellent description of the political elite.

One of the most important sociological laws is the "Iron Law of Oligarchy": every field of human endeavor, every kind of organization, will always be led by a relatively small elite. This condition will hold sway everywhere, whether it be a business firm, a trade union, a government, a charitable organization, or a chess club. In every area, the persons most interested and able, those most adaptable to or suited for the activity, will constitute the leading elite. Time and again, utopian attempts to form institutions or societies exempt from the Iron Law have fallen prey to that law: whether it be utopian communities, the kibbutz in Israel, "participatory democracy" during the New Left era of the late 1960s, or the vast "laboratory experiment" (as it used to be called) that constituted the Soviet Union. What we should try to achieve is not the absurd and anti-natural goal of eradicating such elites, but in Pareto's term, for the elites to "circulate." Do these elites circulate or do they become entrenched?[ii]

Of course, our elites have circulated, although the supporters of term limits may say, "not enough." Even with term limits in California and the circulation resulting from it, the list of those in politics doesn't change much. The congressional elite circulate, by moving to lobbying firms, to regulatory agencies, to judgeships, or to ambassadorships -- only death, not merely disability, takes them out of the political Jacuzzi.

Why will graft always be with us? The Republicans could credibly claim in 1993 that they were less corrupt than Democrats. Of course they were! They had been out of power for decades. The Republicans are now having corruption problems of their own now. Change the decade, and the pendulum swings back. The parties are only temporarily less corrupt than the other. Government corrupts. When a political elite is Right, and another political elite is thought to be Wrong, any tactic is justified. Our constitution prevents a congressman from being criminally liable for anything said on the floor of Congress. Why? Because our founders observed legislatures using the criminal code for political purposes. Yet, despite the constitutional protection, the criminal code is used in creative ways (e.g. independent counsel law) to "get" the other side. Thus each side needs more power, more money, more staff, and more votes to both defend against and defeat the other side. The war chest on each side only grows, never grows smaller.

Here is the question we should consider. Do we need a different kind of check on the political elite, just as the political elite is different kind of check on the military? Who is qualified, and who should be trusted to be this check?

Plato had an answer. Aristotle had the same answer. Philosophers have the wisdom that political elites lack. As students, we study and discuss this in all seriousness, even as we say that we "take into account" ( we have to consider all sides) that Plato and Aristotle were philosophers and perhaps had self-serving interest. Of course they were self-serving. Yet, it begs the question we raised. "Who else is qualified and trusted to check our elites?"

To contradict Pareto in the quote above, the elite can never check other elites, even if they circulate. Only non-elites can check the elite.

We have such a non-elite. They are called voters. They are ineffective. They weigh in every two years, and tune out the rest of the time. Even if they read the newspaper, an increasing rarity in the U.S., they necessarily spend a small fraction of their time on political affairs if they are interested at all. They have lives to lead, jobs to do, kids to raise. The Public Choice school holds that voters are being rational by not voting.

Part of the problem is that voters choose only every two years. This is not frequent enough, or in sufficient detail to be more than a gross control. Voters can "throw the bums out" but they have to know that their candidate is a bum. Our legislators are excellent at voting both ways, opining both ways on an issue. They have different political messages for different segments of the electorate. Any check that doesn't address legislative detail will fail, as all methods have failed until now.

When I was in college I simultaneously took Control Theory in the engineering school and Samuelson-in-a-semester in Economics. For an engineering project I modeled the dynamic cobweb found in Samuelson. The dynamic cobweb is a diagram describing the phenomenon found in agriculture and other economic endeavors where 1) producers make too much of a good, which 2) depresses prices, which 3) incentivizes them to make less of the good, which 4) cause high prices, which then incentivizes them to (back to 1) make more of the good, which 2) reduces prices, etc. This is an unstable system, as farmers have known for millennia. This is not that different from voters electing someone, watching them get corrupt, and electing their opposite two years later, who in turns becomes corrupt. In my project, I found that reducing the period between stages makes the system more stable. This is theoretical support for futures markets in commodities. Without many more greenhouses than we have now, there is little that can be done to reduce the cycle time in agriculture. There are good reasons to keep the term of office at two years or more.

Is there some way to harness the wisdom of the electorate, such that we don't require everyone to be a legislator? We don't want incompetent legislators, which most voters would be. We don't want the evils of pure democracy, which voters with legislative power would create. Is there a way to use the electorate as a real-time check on the political elite? I'll answer this in a later post.

[i] Collier, Ellen C, Instances of Use of United States Forces Abroad, 1798 - 1993
[ii] Rothbard, Murray N, Bureaucracy and the Civil Service in the United States, Journal of Libertarian Studies, 11:2 (Summer 1995), pp. 3-75,


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