We have three branches of government – legislative, executive and judicial.
Except we don’t. The coronavirus killed one.
The executive branch is fully in charge of the government. The courts are open to deal with the most urgent matters. Congress and the Legislature are shut tight.
While all three branches are equal and can keep a check on one another, constitutions assign the leading role to legislative bodies. They make the laws, setting the agenda and terms of government for the other two branches. They represent the people and can prevent any excesses of the executive. But not now.
The president and key executive personnel are at work. So is the governor and her officials. Federal and state courts are open and can operate. Federal courts have moved to “video teleconferencing” for many matters. Meanwhile, legislators are at home and the legislative halls are almost empty.
The reason is the national Covid-19 crisis, demanding rapid government action. The executive branch is compact, with most key players in a single location. It can react quickly. Though the courts usually do not need to act as rapidly, they can function when necessary, because most courts consist of a single judge.
To deal with the emergency, legislative bodies cede their oversight powers to the executive branch. They write blank checks.
At the the federal level, Congress authorized emergency moves to fund essential services and rescue the economy. At the state level, the Maine Legislature gave the governor what might seem, at other times, like near-dictatorial powers.
By these actions, the legislative bodies gave up any pretense of checking the conduct of the executive, much less limiting it. In a major emergency, it seems that “checks and balances” are among the victims.
To be sure, we cannot expect hundreds of legislators to “shelter in place” in capitol cities so they can promptly go into session. Nor can we expect them to crowd into legislative chambers, where physical separation is not possible, placing themselves in direct danger.
But neutering legislative oversight in time of crisis comes to modern America right out of the 18th Century, when the Constitution was written on the understanding that the federal government would take a multi-month break every year. Obviously, that is no longer true.
If we have come to understand that legislative bodies need to meet almost year round, why can’t that thinking also apply to emergencies? For much of history, there has been no practical way to do it.
But now there is. The internet was invented in the U.S. with Department of Defense funding. It opened the way to a new world of communications. Why can’t the U.S. again lead the world by developing its use for legislative purposes?
Legislative bodies could meet using electronic means. All members can see and hear one another, whether in a legislative committee or the full body. Though it is not the time for routine legislation, committees could exercise oversight and consider emergency measures. Electronic voting is easy and can be kept secure.
In the 21st Century, that would not be a “virtual” meeting, it would be the real thing. It’s time to drop “virtual.” (Aside: It is also time to drop saying that the broad and rapid transmission of a single item means it is going “viral.”)
Critics could claim that there would be no real debate among members when they were voting from distant locations. It is difficult for anybody to keep a straight face in saying that. Just watch C-SPAN.
There is no debate, at least in Congress. Not a single member is swayed by what is said during floor debate. It’s all stagecraft, designed to create content for the media back home. If anybody is swayed, it’s when a member talks with a lobbyist. Or their staff assistant. Or through bilateral contact with a legislative ally.
In the era of extreme partisanship, most members follow the party line. That’s what gives leaders so much power. And with well-defined ideologies, members know almost reflexively how to vote.
The development of the electronic legislature should be a product of the current crisis. Now, here’s a suggestion that might validly come from Al Gore, burdened with the false charge that he claimed to have invented the internet. He was a House and Senate member and winner of the Nobel Prize.
Congress and the Legislature could elect a small, representative group of their members to remain in session. Instead of having a blank check, the president or governor would have to report to this group before taking extraordinary action. The group could either assent, negotiate or call the legislative body back into electronic session.
These changes can be accomplished through the rules legislative bodies adopt. It’s time to update how legislatures do their business.