Friday, October 25, 2013

Combating Bureaucratic Corruption and Inefficiency: Lessons from the United States

 Note:  On October 26, I head off to Moscow, Russia for a week to lecture and teach.  This blog is one of the talks I will be giving at Peoples Friendship University next week. For those into the nitty gritty of government reform you will like this blog.

Combating government corruption and inefficiency is a problem that is faced across the world. During the communist era bureaucratic inefficiencies and corruption were widespread in the Soviet Union and across Eastern Europe.  Even today, many post-communist countries and emerging democracies face these problems.
    In their transition from communism, many countries employed several mechanisms to address corruption and inefficiency.  In some cases, state-owned enterprises were privatized.  In other situations, administrative law and civil service reform sought to control bureaucratic discretion and corruption. But the introduction of these reforms is not confined to post-communist states. Even the United States overt time has implemented administrative law or civil service reforms to achieve these and similar goals.
    What I would like to discuss today are two techniques, tools, or goals that the United States has adopted to address problems of what I shall bureaucratic discretion.  Bureaucratic discretion is the ability of government officials to make decisions or choices regarding the implementation of the law, adjudicating disputes, or making any other routine decisions.
    The two topics I wish to discuss are the use of administrative law to confine or limit bureaucratic discretion, and also a commitment to transparency in decision making.  Limiting discretion and promoting transparency are important pillars of American administrative law and decision making.

The Constitutional Ethic of Public Service
    Sociologist Max Weber once described government service as a professional calling.  In his description of bureaucracy he noted the such entities controlled bast amounts of power, with bureaucrats able to use their rational technical knowledge and skills to accomplish tasks.  While such power can be efficient and serve good purposes, it can also be corrupting and serve self-interested goals.
    Ensuring that government bureaucracies serve the good of the people is the goal of a democratic society.  In order to do that in the United States, what has developed is a constitutional ethic of public service.  This constitutional ethic has basically two components.  The first is the development of a set of internal or subjective beliefs in bureaucrats that they are supposed to serve the public good by limiting their discretion, avoid corruption, be accountable to their superiors and the public, and make decisions consistent with the rule of law.  In effect, an ethos or psychological commitment is fostered among those who work in government.
    But a second part to the constitutional ethic of public service is the creation of numerous laws, rules, or processes that promote democratic values.  In the United States, these rules include ones that promote political neutrality, respect for individual rights, and limit conflicts of interest.  But in addition, there are two other  types of laws that I wish to focus on today.  The first deals with limits on bureaucratic discretion, the second is the promotion of transparency and openness in making decisions.

Limiting Administrative Discretion
    In the United States efforts to define and constrain administrative discretion have occurred throughout its history.  In part, the building of the American national government was accomplished by the creation of administrative structures.  Efforts to tame the bureaucracy were essential because of the bureaucracy’s role in implementing laws, adjudicating disputes, and distributing benefits and largess.  In the nineteenth century, staffing of the federal bureaucracy through the spoils or patronage system led to corruption and inefficiencies.  This concern over spoils lead to the adoption of the Pendleton Act, America’s first civil service act, in 1883.  The growth of the American administrative state during the presidency of Franklin Roosevelt in the 1930s and 1940s led first to further expansion of civil service reforms, then to the passage of the Hatch Act in 1939 which limited the political activity of federal employees, and then to the adoption of the Administrative Procedure Act in 1944.  All of these reforms sought to constrain or tame presidential power, promote neutral competence (political neutrality), and accommodate bureaucratic power with the goals of American constitutionalism.
    The United States Supreme Court contributed to this limiting of discretion with several of its decisions.  For example, the government must have hearings prior to termination of benefits (Goldberg v. Kelly, 397 U.S. 254 (1970)).  However, even with this due process or procedural requirement, the Court has given broad agency discretion to use rule-making versus adjudication when making rules (Securities and Exchange Commission v. Chenery Corp, 332 U.S. 194 (1947)).  It has also charted out deference to reasonable agency interpretations of law if statutes are silent or Congress has not spoken on the issue (Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)).  But Chevron deference to an agency interpretation applies only if it is clear that Congress intended to give it the authority to make rules carrying the force of law.
    The point here is that there is in the United States a well developed body of statutory and case law defining the boundaries of administrative discretion.  These limits curb executive power, corruption, and protect individual rights through the development of procedural regularity, judicial review, and defining the proper boundaries between bureaucratic and other government actors.  But given that the reforms in administrative law transpired at the same time the American administrative state was expanding to regulate the economy, they also served to build state institutions, improve their performance, and to enhance the economy by way of correcting market failures.
    In summary, the law that has developed in the United States is one that requires government officials to follow specific rules when making decisions.  These decisions, if they do not respect what is called due process of law, are subject to review by the judiciary in the United States.  Judicial review of administrative decisions has helped to limit bureaucratic discretion.

Transparency and Openness In Making Decisions
    A second major value important to limiting government corruption and inefficiency is the concept of transparency.  The idea of transparency refers to the mandate that all government decisions should be made in a open fashion, subject to coverage by the media and review by citizens.
    There are many rules promoting transparency.  Perhaps the most important laws regarding transparency at the national level in the United States are Freedom of Information Act and various open meeting laws.
    In terms of the Freedom of Information Act (FOIA), the law dates from 1966 and it allows for citizens and the press to request documents from the government unless they are otherwise classified as secret.  The goal of this Act is basically state that all information that the government has is open to inspection by the public.  Over its nearly 50 year history the ACT has resulted in tens of millions of government documents being released to the public.
    In addition to the FOIA at the federal level, many state and local governments have their open freedom of information acts.  Along with these laws, all levels of government in the US have what are called Sunshine Acts or Open Meeting Laws.  Six years after passing the Freedom of Information Act, Congress enacted the Federal Advisory Committee Act to open up to public oversight the advisory process of executive branch agencies. Since 1972,  FACA has legally defined how advisory committees operate and has a special emphasis on open meetings. In 1976 Congress adopted the Government in the Sunshine Act, which requires that certain government agency meetings be open to the public.
    In general, these three laws have had a dramatic impact on government decision making.  They establish a general presumption that decisions by government officials and agencies are presumed to be made publicly and that citizens and the media have a right to be able to review choices.  For the most part most government officials voluntarily accept these laws as binding and part of their duties.  But these laws are also enforceable by citizens and the media, both of which may go to court to have violations of the law reviewed and enforced by the judiciary.  Thus, these laws do not just exist in theory, but they have real force to affect bureaucratic behavior.

    The creation of a constitutional ethic of public service has been an important  way for the United States to promote efficiency and reduce corruption in government.    This ethic is a combination of both the creation of subjective beliefs and objective procedures that reinforce a commitment to democratic governance among bureaucrats.  Among the values that are part of this constitutional ethic are those that limit bureaucratic discretion and which promote openness and transparency in decision-making. 
    While this talk has focused mostly on the United States, many other democratic or emerging democratic countries have adopted similar values.  The question that I leave you with is how the lesson from the United States can be applied in Russia and to its bureaucracy to help it combat corruption and inefficiencies.

Campaign Financing and the Price of Democracy

All indications are that the Supreme Court will soon declare yet another campaign finance reform measure unconstitutional, chipping away yet another piece of the Post-Watergate reforms that sought to limit the corrupting influence of money in politics.  At least this is the indication based on the oral arguments in the recently argued McCutcheon v. Federal Election Commission case.  The Roberts Court will do this by arguing that the First Amendment protects the right of individual donors to expend unlimited amounts of money to influence elections.  The basis of the reasoning will be that aggregate spending limits by individuals does not corrupt or lend to the appearance of corruption of the political process.
    In reaching this likely conclusion, the Court will once again come close to saying money is speech.  But in doing that the Court will yet again be making a fatal assumption shared widely by many–that money is a legitimate tool to allocate political power and influence in America.  The fundamental flaw with the way the Supreme Court and many others have approached the issue of the regulation of money in politics is a  willingness to accept the assumption that economic resources should convert over into political influence. This is the core problem that the Supreme Court has failed to address.
    Think about it.  Economic markets may be great mechanisms to allocate sail boats and luxury items, but not political influence and democratic values.  Money is great in its place, but there are limits to what money should buy. No one thinks that school admissions or grades, jobs, or justice in court should be allocated on the basis of ability to pay or by money.  Nor do most of us support the idea that money should be used to allocate organ transplants or basic medical care.  The size
    Money has its place and it should just not be able to buy everything.  There needs to be a wall of separation between money and many things we hold important.  Ardent free marketers just do not seem to understand this.  In their push to privatize and deregulate they somehow think free markets are omniscient and always just.  But even Adam Smith recognized that for free markets to work there needed to be an independent concept of justice and virtue to regulate it.  Economists also talk of market failure and recognize that left to themselves, free markets are not self-regulating, self-regulating, or always fair.  In effect, there are some things money should just not buy, and that includes policy influence in a democracy.
    Democracies are not about one dollar, one vote.  Allocation of political power and influence should be distributed according to non-market criteria. Sociologist  Daniel Bell once pointed out that market logic and concepts were increasingly coming to encroach or infringe upon other parts of American culture including, the political process. Others such as Michael Sandel have argued that the danger now is that the United States is turning from a market economy to a market society where increasingly all types of social intercourse are being reduced to a cash nexus. Robert Kuttner makes a similar point. To a large extent American political power is being subjected to a marketization of its operations.
    The issue here is not one of efficacy or money. By that, the primary issue is not whether money makes a difference in terms of who is elected or who has political influence. One could debate forever whether money buys influence or corrupts and this is where the legal debate on campaign finance is centered. This is the wrong way to look at it. The issue should be whether money should be the criteria by which political power or influence is allocated. The issue instead is one about justice and fairness. It is about whether money is the appropriate criterion to use to determine who has political influence or authority. It is about setting boundaries or, as political theorist Michael Walzer would argue, demarcating distinctions between the market economy and the political system. While the field of political economy may be a legitimate academic discipline, the American political system is not a market democracy—the economic marketplace and the political forum or agora should be distinct. The allocative criterion for a political democracy is not the same as that for market capitalism.
    Even though American democracy has grown along with capitalism, the two should not be conflated. Many of the founding American political values opposed the impact that economic inequalities could have.  James Madison too, in Federalist 10 feared the problems associated with “various and unequal distribution of property.” Additionally, one can occasionally point to some dicta in Supreme Court decisions suggesting a broader understanding regarding a democratic theory of election law that would wall off impermissible uses of money in the political process.
    For example, Justice Rehnquist in First National Bank of Boston v. Bellotti, recognized the illegitimate drive of corporations to want to convert their economic resources into political power.  He declared:  “It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.”  And in  Federal Election Commission v. National Right to Work Committee the Court stated that the purpose of limiting money in politics was “to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ‘war chests’ which could be used to incur political debts from legislators who are aided by the contributions.”
    What these comments from the Supreme Court suggest is a recognition that money used for political purposes needs to be limited. Politics in general, and campaigns and elections in particular, may be expensive and money may be necessary to run campaigns and elections, but their costs or funding sources should not undermine democratic values. The problem of the Court’s decisions on money in politics is that the Justices failed to understand how a democratic system derives its legitimacy from political equality. Allowing the allocative criteria of the economy to substitute for equality in the political arena gives money and wealth a role that it just should not have in American democracy.

Saturday, October 19, 2013

Making Sense of American Politics in the Age of Barack Obama

 Note:  On October 26, I will be flying to Moscow, Russia to teach at the Peoples Friendship University.  I will also be giving a talk at the American Corner, Moscow. This will be my fifth trip to Moscow. At the University I will be giving several lectures.  One of them is the one that I have decided to make as a blog this week.

Picture of me in 2012 in front of Peoples Friendship University with Professor Daria Stanis, my host.

A couple of weeks ago the United States was on the edge of a crisis.  Had Republicans and Democrats in Congress not come to agreement with President Obama, the United States would have run out of money and defaulted on its debts, potentially throwing the country and the world economy into a recession.  This crisis would have been a result of the Congress failing give the president to raise the debt ceiling which would have authorized him to borrow money to pay America’s bills.
    But this near missing of a crisis came on top of one that had already occurred.  On October 1, Congress and the president failed to reach agreement on a budget, forcing a partial shutdown of the government.  Even though an agreement was reached, it was only temporary and the United States may be back in the same place in three months.
    Moreover, as one observes the United States over the last five years while Barack Obama has been president, America has faced repeated political disagreement that seems to push the government from one internal crisis to another.
    How did all this happen?  To many Americans the partial governmental shutdown and the near default of the United States was hard to understand.  But no doubt to people around the world, including here in the Russian Federation, it must perplexing.  How could such a big and powerful country such as the United States face problems such as this?   Why is the United States so divided now, and what does it all mean?  How do we make sense of America?
    What I would like to do today is explain American politics to you.  For those of you seeking a better understanding of my country, my talk will try to give you a better picture of how our country operates and how it has changed in the last few years.  In particular, I want to explain to you two things about American politics.
    First, I want to briefly describe what I call the logic of American politics.  By that, I want to  explain how our constitutional framers designed the American political system.  I will argue that the  the design of our political system is meant to break up political power and slow down political change.  By that, there are no real single power centers in American government and that to get anything accomplished a significant amount of political consensus is required.
    Second, unfortunately that consensus has broken down.  This is where I shall discuss political parties in the United States.  My argument here will be that what the United States is presently experiencing is a significant political party polarization that is making it difficult to govern.  This is exactly where the United States is now and it explains so much about why the county seems to be moving from crisis to crisis.

The Logic of American Politics
    American politics was born out of a fear of a strong national government and the potential threat that political power could have upon the individual rights of citizens.  This was a fear from American colonial experiences with King George III of England, as well as a fear of mob rule during the early years after independence.  James Madison, one of the original authors of the American Constitution, once described the task of the American political system the following way.

   "If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed."

The issue then is how to preserve individual liberty and republican government from the threats of majority faction.  This is the core problem of politics that Madison, the Federalist Papers, and the constitutional framers sought to address.  Phrased otherwise, the problem, as Alexis DeTocqueville would later ask, is how can the American republic deal with the threats of the tyranny of the majority?   Another way of stating it: How to balance majority rule with minority rights?  How does one allow for majority opinion to rule, as it should in a popular government, but not let it become destructive, acting impulsively or rashly when threatened?
    Thus, the American political system seeks to preserve individual liberty, or balance majority rule and minority rights, by placing all kinds of checks on political power.  The American political system was meant to make it slow to change, for power to become centralized.  The American political system has many features to break up power.
The government and election system of the United States is unique when compared to the Russian Federation as well as the rest of the world. Much of the formal structure of the government is outlined in the United States Constitution, with additional national, state, and local laws articulating both the structural and electoral systems for the country.
The first two defining characteristics of the United States are that it is a separation of powers government, not parliamentary, and it is also a federal and not a unitary government.  Both of these factors mean that political power in the United States is divided up among three national branches of government and between a national government and 50 states.  The purpose of this division of power is to protect minority rights, respect local decision making, and also to ensure that no one institution has too much political power.  This type of governing system also means that it is difficult to achieve significant political change in a short period of time, thereby encouraging the likelihood that elections will not produce dramatic changes in policy or political direction.
    Unlike a parliamentary system, separation of powers means that the president of the United States is elected separately from Congress.  The president serves both as head of state and head of the government.  Yet in America the president presides only over the executive branch of the government, with the legislative branch (Congress) headed by its own officers.  Because of the separate elections, it is entirely possible for the president to be of one political party, with Congress having a majority controlled by a different party or parties.  This is called divided government in the United States, and such a governing arrangement is not uncommon in the United States.
    Being a federal system means that there is in reality no national election for Congress.  The lower chamber of Congress is the House of Representatives, consisting of 535 members who represent districts spread across the 50 states.  Each district is on the same population.  There are 100 members of the Senate, with each of the states allocated two senators.  House terms are for two years and Senate for six.  In 2012, the entire 535 members of the House of Representatives was up for re-election, while only 33 of the Senators are up for re-election.  Because of the structure of Congress, effectively all of the elections for Congress are really local elections.  Thus, think of 2012 as a situation where there was one national election for president and 568 local elections for Congress.
    There is no proportional representation in Congress.  The United States has a Westminster type of elections—whoever receives the most votes in a congressional election is declared the winner.  Additionally, because of this type of system, third parties generally are not strong and therefore the United States is a two party system where at present Republicans and Democrats are in competition with one another.  Whichever party has the most members in the House or Senate controls that chamber.
    The reason why all this is important is that it is possible to have several variations of party control in the United States.  One could have a situation where the president and both houses of Congress are controlled by the same party.  This was the case when George Bush was president from 2003 to 2007. This occurred again in 2008 when Barack Obama was elected president.  But it is also possible to have the president be from one party and Congress controlled by another.  This again occurred under George Bush from 2007 until 2009.  Another scenario is when the president and one legislative chamber are controlled by one party and the other chamber is controlled by another.  This is currently the cases in the United States.
    There are major differences between the two houses of Congress in terms of their constitutional authority and how they operate.  However, in both chambers, it is generally possible for a minority slow down or stop legislation from passing.  Again, in theory the idea for this is to protect individual liberty or ensure political agreement on major issues.
    Finally, in addition to the United States dividing up power at the national level, America is also a federal system where power is divided among 50 subunits of government that we call states.  Within the states there are cities and other local governments.  Overall, political power in America is highly divided and in order to make any significant political change there needs to be basic consensus and agreement.  No one, not even the president, can simply order things to be done.

Party Divide in the United States
    American politics also operates with party competition.  The two major parties, the Republicans and Democrats, while they have historically disagreed on some issues, really shared some basic agreement on the role of government in our society.  Moreover, the two major parties, up until recently, were less ideologically polarized 20 years ago.
     American political parties used to be more coalitional and regional than they are now.  Parties were more likely to be mixed ideologically.  When I grew up in New York in the 1960s my governor was Republican Nelson Rockefeller.  One Senator was Republican Jacob Javits, the other was Democrat Bobby Kennedy.  The most liberal?  Javits.  The most conservative, Kennedy.
    We have seen in the United States a disappearance of moderates in the two parties.  There is a rise of straight party line votes in the Congress.  The Republicans have become more conservative, the Democrats slightly more liberal.  But more importantly, the Republican Party has seen the rise of the Tea Party faction, a group of ultra-conservative people who are pulling the Republicans further to the right.  The Tea Party also is less likely to believe in compromise, and they  do not believe that shutting down the government is necessarily a bad thing. It was the influence of the Tea Party in the House of Representatives that significantly caused the partial governmental shutdown and the near default.
    But the party divide in America is part of a larger social divide in the United States.  The Democrats and Republicans are a tale of two parties The Republicans are older, whiter, male, more Christian, and part of the Silent generation along with some older Boomers.  They vote against gay marriage, abortion, immigration, and favor smaller government.  The Democrats are younger, more female,  less white, less Christian, and they represent the  Millennials and Gen Xers. They favor gay rights, choice, immigration and diversity, and more government.  The two parties represent two generations and world views, and party of the intensity right now is a demographic contest witnessing the passing of power from one generation to another.  It also represents a racial polarization the greatest since 1988, and an identity shift as America moves from a White Christian nation to something else.
    In addition politics and geography now overlay and intersect.  There is a political sorting of living space by politics and geography.  We increasingly have Democrat and Republican neighborhoods.  We are divided politically by rural and urban.  The result is a decline in the number of real marginal or swing districts and such a problem is only accentuated by redistricting in some states (or conversely, even the best redistricting cannot overcome the political sorting we are experiencing).  There are only 50 or so competitive seats in Congress. The remainder are certainties for either of the two major parties.  Partisan districts create less incentive to compromise, reinforcing  polarization.

    So what does this discussion of the American political system and changing party structure mean in terms of understanding the United States?
    The partisan divide and political polarization that has emerged in the United States over the last 20 years has become very serious since Barack Obama was elected president.  America appears to be a politically divided country where there is no real consensus on some core issues about what government should do.  But even if there were consensus, the logic or structure of the American political system is being manipulated by a minority of the population to pursue its goals.
    This is not a problem that James Madison envisioned. He and the others who wrote the American constitution did not anticipate that a minority could be so powerful that it could affect the country the way it does now.  Nor did Madison and the framers envision a country perhaps so divided on some basic political values or issues.
    Barack Obama’s presidency is about generational change and in part the reason why the country is so divided is because we are witnessing a beginning of a significant generational shift in American politics.
    In the near future the United States will continue to face political division.  But over the longer term the changing demographics or population of the United States may resolve this problem.  As one generation dies off and is replaced by another, the United States will see a change values and  perhaps, then, a new consensus will emerge about where the country should go.

Sunday, October 13, 2013

Ending the Government Shutdown in Court

So what if Congress and the president cannot reach an agreement to end the partial government shut-down or worse, extend the debt limit?  Is the country hopelessly stuck in the middle of a political dispute?  Not necessarily.  Ignored in the entire dispute is one obvious resolution –the Supreme Court.  While some may argue that budget and finance matters are no place for the courts to venture, the partial governmental shutdown and the pending debt limit extension both represent controversies that have a legal or constitutional basis that can be addressed by the courts.
    Alexis DeTocqueville declared in a famous and often quoted passage in his Democracy in America: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”   Over time the courts have entered to resolve many contentious political disputes in America, both because the other branches have failed to act, but also because these disputes implicated constitutional legal questions. 
    Questions about reapportionment, presidential power to seize the steel mills during the Korean War, executive privilege and subpoenas, and presidential foreign policy power all implicated difficult political questions often involving interbranch conflicts, but they also bore important constitutional questions that the Supreme Court eventually resolved, for good or bad, depending on your perspective.  While at one point the old political question doctrine deemed many issues non-justiciable (the courts should not hear them), since Baker v. Carr, 369 U.S. 186 (1962) the courts have found fewer and fewer disputes to be beyond the purview of judicial review. The same can be said with the partial governmental shutdown and the extension of the debt limit.
    First, there are constitutional obligations that require funding.  No matter what Congress and the President fail to do, they cannot let the federal courts close.  One can argue that failing to fund the judiciary is a violation of Article III, section I in two distinct ways.  First, there is a separation of powers problem in forcing the courts to close if no agreement is reached on the debt limit.  Congress does not have the authority to act in a way to undermine the constitutional powers of the judiciary.  Second, Article III, Section I declares that judges shall receive a “Compensation, which shall not be diminished during their Continuance in Office.”  Defaulting on the debt limit and running out of money for judicial salaries clearly flies in the face of this language.
    Some might argue that running out of money is a legitimate reason for why Congress may not allocate money to pay the judges and keep the courts open.  However nothing in the text of the Constitution permits this exception.  Moreover, today it is the debt limit, maybe next time Congress uses the excuse “We are out of money”  to punish the judiciary for opinions it does not like.
    Second, Section 4 of the Fourteenth Amendment states that the “validity of the public debt of the United States…shall not be questioned.”  In refusing to extend the debt limit this is exactly what Congress (and the president) are doing.  They have a constitutional duty or obligation to fund the government.
    Third, think of the entire budget as a legal obligation.  Whether it is payments to bondholders, Social Security checks to grandma, food stamps and WIC to the poor, or Medicaid reimbursement payments to the states, the federal government has created legally binding obligations to third parties.  Were any of these creditors to sue in federal court they would have suffered the requisite injuries to have standing and ask the court to compel the federal government to fund their obligations.
    But what if a court did order Congress to pay its debts, what then?  Can it do that?  In Minnesota where the state government has shut down twice because of political disputes between the governor and the legislature, its courts ordered funding for essential governmental functions.   The judiciary ruled that the State had legally binding obligations and it directed the Minnesota Department of Revenue to disburse funds to pay its bills.  While the authority of state and federal courts are different, Minnesota‘s experience points to a path for the federal courts to act.  Moreover, in some cases, such as in Missouri v. Jenkins, 495 U.S. 33 (1990), the Supreme Court has ruled that courts do have the authority to order taxes increases and expenditures to fund court orders.  This could also be the case here with the shutdown or the extension of the debt limit.
    Finally, critics might argue that Supreme Court decision ordering the government to pay its bills would be unenforceable.  Perhaps, but such an order might serve as a catalyst for change, providing conditions or incentives to compel negotiation.  In effect, many court orders, or even the threat of litigation, encourage settlement or negotiation.  This is exactly what is needed now.

Saturday, October 5, 2013

Members of Congress have an ethical and legal duty to fund the government

The political thinker and Irish Member to the British Parliament Edmund Burke once famously declared the duty of a legislator as between being a delegate and doing what constituents demand versus serving them by exercising one's best judgment.  But there is at least another duty that legislators have and that is a legal if not an ethical duty to comply with their own laws and to support the government they were elected to serve.
               The importance of stating this duty asks under what occasions, if any, are members of Congress permitted to disobey a law as a matter of conscience?  This is the question posed by House Republican efforts to repeatedly defund the Affordable Care Act (ACA or Obamacare) and force a partial governmental shutdown.  In effect, do legislators have a right to disobey and obstruct a law they do not support?  Do they have a right to civil disobedience?  While in general civil disobedience is an important act to test the constitutional values and justice of a society, this is not an option open to members of Congress, at least on this issue and for the reasons Republicans give.
               The relationship between law, justice, and civil disobedience has a long history in the west.  Sophocles' Antigone tells the story of a woman who buried a deceased brother in defiance of the king Creon who ordered her not to do so.  Her decision to defy was premised, in part, upon  concepts of justice and religious grounds, contending that her duty to disobey rested upon a higher law from the gods.  Similarly, Socrates’ trial and defense of his philosophizing invoked a duty to a higher law that justified defiance of human law. St. Augustine was one of the first Christian writers to argue that human laws that are unjust really are not laws.  St. Thomas defined a legal tradition that declared that human law must conform with God’s natural laws of justice, inspiring a generation of political theorists including John Locke who articulated a right to revolution against governments that violated natural rights and laws.  In all of these cases, civil disobedience invoked as an appeal to some higher law or rules of justice that dictated defiance of the law.
               The United States as a country is a product of civil disobedience.  The dumping of tea into the Boston Harbor in 1773 and the 1776 Declaration of Independence were acts of civil disobedience, providing the case for why some laws were unjust and should be ignored or defied.  The abolitionists,  including Henry David Thoreau and John Brown, so disliked slavery or the Fugitive Slave Act that defiance, going to jail, and even violence were viewed as proper acts of conscience.  And then of course Rosa Parks, Martin Luther King, Jr., and the many African-Americans who protested segregation by sitting at “Whites' only” lunch counters or who crossed the Edmund Pettus bridge also felt civil disobedience was an appropriate stance to take to challenge laws that thought were wrong.  In all of these cases, appeals to personal conscience, personal morality, or to religious or other values dictated the choices of individuals to defy the law.  But the question is, do legislators have this same right?  May they defy a law they do not support?  Do they have a right to shut down the government?
               Think first about the right of individuals to engage in civil disobedience.  Political theorist John Rawls argued that civil disobedience has a constitutional role in a just society.  It is an appeal to the shared values of a community, aiming to persuade a majority that it is wrong.   Civil disobedience is not an appeal to political expediency or self-interest. It is not a legal right, but an appeal to justice.  Citizens have a general duty to obey the law, but in some cases some feel that the law is wrong and must defy it.  But they do so first with the aim of changing the law and second, cognizant that they face legal retribution for their defiance.  The act of civil disobedience has the potential to change the law because one is willing to go to jail or be punished for one’s act.
               But private citizens are different than legislators and they may have less right to defy laws they dislike.  First, members of Congress not only have a general duty to obey the laws they have authored, but they have taken an oath of office to obey the law.  This current oath commands members of Congress to defend Constitution, accepting this obligation freely, without reservation, and with the help of God.  Such an oath imposes on them a special duty-above and beyond that of a private citizen—to obey laws.  Does that mean congressional members have no recourse to object to laws they dislike?  Of course not.  They can move to repeal the laws they dislike.  House Republicans have tried that 40 plus times when it comes to Obamacare.  The power to legislate and change laws gives them a tool that mere citizens lack.  While one can question the political reasons or wisdom for repeated votes to repeal the ACA, do that is the right of legislators.
 But there is a difference between trying to repeal a law one does not like and defying it.  This is what House Republicans are doing in seeking to defund Obamacare, pushing the government in to a partial shutdown, and perhaps risking a default on America’s debts come October 17.  For good or bad Obamacare is the law of the land—it has not been repealed and it has not been declared unconstitutional.  Members of Congress are under a legal and moral duty to fund laws and programs that they have authorized, even if personally they voted against the laws.  One of the most basic principles of American democracy is majority rule.  Majorities get their way so long as they do not violate the constitutional rights of minorities.  Majority rule settles decisions until such time as a majority reaches a different conclusion. Similarly, majority rule is the rule of Congress.  At some point votes and elections have settled issues and it is time to move on.  This is the case with Obamacare.
Moreover, Republican efforts to defund Obamacare are not premised upon shared constitutional values or principles of justice.  The decision is based on dislike of the law, Obama, or government in general.  Or it is based on political expediency--appealing to what their constituents want or what will appeal to their electoral base--and not on a sense of higher justice.  Or perhaps it is based on  private conscience or belief that the law is wrong.  All these may be great reasons to seek to repeal the law, but they are not proper grounds for refusing to perform one's specific duty to support a law that has been legally adopted in a democratic society.  Contrary to what she make think, Congresswoman Michele is not Rosa Parks--her reasons for opposing Obamacare are not based on appeals to justice and higher laws, but instead on personal and political expediency.
In general members of Congress do not have a right of civil disobedience to oppose laws they have a duty to uphold.  They are not like ordinary citizens exercising the right of civil disobedience.  Finally, legislators who object to the ACA do not have a right to defund Obamacare and hurt the rest of the country with a government shutdown.  In doing that they are not facing legal retribution for their actions as would ordinary citizens face by defying the law.  These members of Congress are taking a political stand, not an ethical one, and they do not have the right to do that.