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Saturday, June 2, 2012
Why Local Governments Lose Touch with the People, Part II

If a local government near you seems out of touch with the people, the root problem may be structural. Here are some symptoms to watch for.

This is the second article in a three-part series about local governments losing touch with the people. Part I describes a structural problem, using examples from the US government. Parts II and III focus on local governments.

It's Natural, to a Point

Every state and most local governments in the United States have a horizontal separation of powers. Legislative, executive, and judicial branches act somewhat independently, but within a framework of checks and balances. There is a natural tension and competition, especially between the executive and legislative branches. This is appropriate; they have different jobs and perspectives. The legislative branch consists of the people's elected representatives. The chief executive may be elected, but the rest of the executive branch usually is not.

We want highly qualified professionals staffing our cities, school districts, and other local governments. Such professionals in the executive branch are almost irresistibly tempted to assume that they know better than the elected legislators. Often they really do know better in their fields of expertise. But they may fail to see the big picture, and they lack the policy-making legitimacy of the people's elected representatives.

Their attitude toward elected legislators can be the difference between good, responsive government and petty tyranny. If the executive branch is committed to government by the people, it will give elected officials the full benefit of its expertise, informing and advising them and implementing legislative acts conscientiously, but leaving legislation itself to the people's elected representatives. If it is not so committed, it may ignore, bypass, or resist the legislature and try to insulate itself and its activities from the people's meddling agents -- that is, from legislative oversight. The executive branch may publicly extol the virtues of electing our rulers and defer to them publicly, while trying to confine them to the inadequate role of rubber-stamping the administration's preferred policies.

Executive abuses of popular sovereignty don't always produce bad results in the short run. If you have mostly good people in place, even if they are oblivious to political theory, the results may not be or appear tyrannical, even when the structures of tyranny are well established. When the tyranny becomes obvious -- when the local government is dominated by officials with an agenda contrary to the people's -- the structural problem is more difficult to repair.

Whether the current results are good or bad, if the people's elected legislators are pushed out of their legitimate role in making policy and overseeing its implementation, the political ecosystem is tuned to produce and sustain tyranny. Remember: Americans have long defined tyranny as taxation or legislation without representation.

General Symptoms

Try talking with some of your current and former elected local legislators, and with others who have worked with a given local government. Note that by legislators I mean city councilors, school board members, and others elected by the people to legislative bodies. Here's what to look for:

Where the executive usurps the legislative role, separates the people from their elected representatives, or marginalize those representatives, we often see symptoms in three general areas:

  • avoidance of legislative oversight, by interfering with communication between legislators and executive departments;
  • legislatures that are not equipped or allowed to originate legislation, where all legislation is proposed by the executive; and
  • suppression of dissent and discussion, with an excessive, unhealthy emphasis on unity.

None of these situations is black and white; there are undesirable extremes at both ends of each spectrum. We no more want extreme disunity than extreme unity. We need legislators to know the thoughts, activities, and concerns of people in the executive branch, but not to micromanage. And we don't want legislators originating a lot of legislation in a vacuum, without the practical expertise found in the executive branch. We just need them to be able to originate legislation when necessary.

We don't want the legislative branch to dominate the entire government, but we do need it to be first among equals. It is closest to and most representative of the people, who in turn are the source of power in government. If we allow the legislative branch of any government to be neutralized by the executive branch, we should not be surprised if that government seems detached from us and uninterested in our views and priorities.

Are Legislators Kept in the Dark?

You can see why a mayor, city administrator, or other chief executive might want to be the only conduit for communication between the executive and legislative branches. Even if you've never seen them, it's easy to imagine the problems caused by individual legislators giving orders to members of the executive branch or trying to micromanage executive departments. Blocking this sort of communication is good management. But when a single office or official is the sole source of legislators' information about the activities of the executive branch, the legislature's legitimate oversight function is blocked.

In other words, a chief executive telling his subordinates that directives from the legislative branch must flow through him or her is perfectly reasonable. But ordering others in the executive branch not to speak with the legislative branch -- perhaps even punishing them when they do -- is inappropriate and dangerous.

In the interest of avoiding tyranny -- legislation without representation -- elected legislators should have ample advance notice of agenda items and be allowed and encouraged to investigate them. They should be expected to consult with specialists in the executive branch and other interested parties, so they are not merely rubber-stamping the will of the bureaucracy.

Here are two specific examples. Legislators should be invited and expected to scrutinize budget details, to discuss them with department heads well in advance of a vote, and to debate and lobby among themselves. And in cases where administration officials are supposed to be appointed by the executive with legislative advice and consent, legislators should be allowed to interview the candidates and otherwise participate in the process, not expected just to rubber-stamp the appointment when they get to the meeting.

Here's a useful test. Do your local legislators routinely refuse to act on a substantive agenda item which they have not had time to study? If they do, does the executive seethe?

Do Legislators Legislate?

It is reasonable for most proposed laws, ordinances, resolutions, and policies considered by a local legislature to come from the executive branch. So the next test is not whether the legislature originates all legislation; it is whether the legislators themselves ever introduce substantive legislation which did not come from the executive.

Ideally, the legislative branch of a local government should have some staff support available on the legislature's own terms, not solely at the executive's discretion. For example, I'm not sure I've ever seen a small city or a school district where the legislature has its own legal counsel to help it craft legislation and to advise it in its oversight role. But you can see why in some instances it would be unhealthy for the legislative branch to have access only to legal counsel funded and controlled by the executive branch.

Do Legislators Discuss, Debate, Lobby, and Disagree in Public?

It's worth asking:

Does the local executive (such as a mayor or city administrator) or the legislative leadership (such as the president of a school board) emphasize consensus among legislators, discouraging public discussion or dissent?

Are legislators trained not to speak to their constituents directly, but to rely on an official spokesperson who is part of the executive branch or legislative leadership? If they speak to the media or blog about substantive issues, is this considered misconduct? Are they censured for keeping constituents informed about upcoming agenda items, or for rallying support for their side of an issue? (Unthinkable as it may seem, the answer to these questions is often yes.)

If a legislator continues to voice a dissenting opinion after losing a vote on an issue, but does not actively undermine the policy to which she is opposed, is this considered misbehavior?

Therefore, What?

It's best if the executive branch of every local government is filled with highly-qualified, experienced professionals. We just need them to understand that they are not the legislators the people elected to make policy in that government. If they respect people's sovereignty, they should respect the proper role of the people's elected representatives, not obstruct, bypass, or marginalize them.

When we find a problem in a local government, I don't suggest screaming and pointing fingers at supposed tyrants. We simply need to change the culture of our local governments. We need to educate, persuade, and prod our current elected representatives to assume their full legislative role, and defend them when they do. We need to find and elect candidates who understand the full legislative role and the mechanics (not just the idea) of popular sovereignty, and who are committed to functioning fully as the people's representatives in governing the city or school district.

Not all candidates or office-holders understand this, even if they say earnest and happy things about government by the people. Some candidates understand but lack the spine to stand up. Some candidates and legislators actually believe -- to our peril -- what an overbearing executive branch wants them to believe: that unity is the highest value in representative government, and that the legislator's proper role is to play quietly with other legislators and not to make a fuss.

It almost goes without saying that we need to inform and persuade the voters, if we want to attract and elect the right sort of candidates.

Next time, we'll look at one chronically ill patient, a certain public school district near me.

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