You Probably Shouldn’t Directly Elect Legislative Leaders

In response to a Journal op-ed decrying the parochialism of the RI Speaker of the House, on Twitter, WPRI’s Ted Nesi brought up the possibility of a directly-elected Speaker.

This op-ed hints at a bigger Q – considering the power RI has vested in the House speaker, should the position be elected statewide, not just by Reps? https://t.co/6dHhmG8kJX

— Ted Nesi (@TedNesi) August 22, 2018

I very quickly noted that this would have the probable result of turning the Speaker into a largely ceremonial position. America is relatively unique in that its speakers (both federal and state) are inherently political posts; in many legislatures elsewhere in the world, the speaker (or presiding officer) is required to be impartial and never votes unless it’s a tie and may even renounce all party ties for the rest life.

The issue is that almost all of the power granted to the Speaker in Rhode Island is granted through the rules set at the beginning of the legislative session; and thus all their power comes from the members of the House. Indeed, the Rhode Island Constitution only mentions the Speaker three times: to note they get paid double what other members get, that House gets to pick them, and that the Speaker is third in the line of succession (if both Governor and Lt. Governor are vacant).

Changing the RI Constitution so the Speaker is elected statewide wouldn’t actually solve the problem that Ted Nesi points to; that there’s a lot of power granted to the Speaker. Since that power comes from House members, they could just strip the Speaker of any power at all and revest that power in the House Majority Leader. We’d arrive back at where we started. The best we could hope for would be that the Speaker essentially becomes an impartial umpire, who focuses on the orderly running of the House while the Majority Leader becomes the real decision-maker.

Since to have a directly-elected Speaker, you’d already have to amend the state constitution, you could try to head this off by giving the Speaker a lot of constitutionally-prescribed powers, but this could create a sort of semi-governor which would defeat the purpose of having a legislature in the first place.

The Speaker Is Powerful Because There Is No Opposition

In contrast, I think former RI House Minority Leader Brian Newberry largely gets it right:

Missing from that op-ed is any mention of the fact that a large piece of the problem is one party dominance. Democrats hand over their own power to the Speaker because they have no power as individuals as there are too many of them. Fewer Democrats empowers those who remain.

— Brian C. Newberry (@BrianCNewberry) August 22, 2018

The problem in Rhode Island is exactly a problem of one-party rule. I know it hasn’t been fashionable to praise parties in American politics since Madison assailed them in Federalist 10, but political parties are good. Political scientist E. E. Schattschneider once wrote “modern democracy is unthinkable save in terms of the parties.” Having more viable parties makes things a lot better. The very reason so many people chafe under the heavy-handedness of the Rhode Island Speaker is because there is no effective opposition party.

The Issue of the Republican Opposition

Since the reduction in membership of the General Assembly to 38 senators and 75 representatives in 2002, Republicans have never won more than 8 senators (~21% of Senate membership – though if you include the independent that year, it would be ~24%) and 15 representatives (20% of House membership). And never in the same year. Neither of those are even enough to sustain a gubernatorial veto which can be overridden by 60% of both chambers (23 senators and 45 representatives). Sustaining a veto by numbers rather than apathy (essentially how vetoes are sustained currently) would at least be able to provide a lot of leverage to Republican governors and minority leaders over legislative affairs.

Now, there are a lot of reasons Republicans don’t win a larger amounts of seats; incumbency, gerrymandering, the toxicity of the national party, the toxicity of the state party, low voter information, poor fundraising, poor candidate quality, poor candidate recruitment, etc. A lot of these are related and influence the others.

There’s also the problem that numerous time in recent history, the Republican Party has united with the conservative faction of Democrats to elect a speaker. Another common issue is that sometimes active Republicans run as independents for the Assembly under the theory that their association with the Republican Party is so damaging that they’d be better off as independents. The problem with this is that 1) independents rarely win anyway, certainly less than Republicans, 2) it deprives the party of identifying Republican voters, and 3) it cedes the brand of Republican to national figures who may be very unaligned with the Rhode Island Republican Party (which, by the best measure we have, is one of the most liberal state Republican Parties).

The end result is the Rhode Island Republican Party cannot mount a serious opposition to the Rhode Island Democratic Party.

The Issue of Third Party & Independent Opposition

What about third parties? Third parties are hampered by Rhode Island General Law § 17-1-2(9) which requires that all parties continually win 5% of the statewide vote in either gubernatorial or presidential elections to qualify for a ballot line (they can also collect an equivalent percentage of signatures to qualify for the ballot). It’s easy for the Republican Party and the Democratic Party to clear this hurdle, they have a national party and thus their fate is largely out of their hands. But for small parties, it forces them into the unenviable position of having to put a lot of resources to run near-unwinnable races where they can act as potential spoilers (e.g. the Moderate Party nominees in 2010 and 2014). Those resources would be better spent at lower levels of government; e.g., proving a Green Party-led government could work at a town-level.

5% is not an impossible bar to clear, but it’s worth noting that the only two parties to recently clear it (the Moderate Party and Americans Elect) were essentially vanity projects funded by plutocrats (the former never put up any serious amount of candidates down-ballot). The next most-recent example, the Cool Moose Party in 1994, was the culmination of at least eight years of campaigns – and it failed to elect a single General Assembly candidate in 1996.

You could argue that since the largest proportion of registered voters are unaffiliated and the amount of independent candidates each election shows there’s a desire for something other than the two main parties. And that’s probably true; but independents usually fall into a handful of categories: the aforementioned shy Republicans, former Democrats who lost a primary in the last cycle and are trying to break in, third party candidates for parties that didn’t qualify for ballot placement, and genuine independents (who tend to be so removed from the mainstream they are unlikely to win). Independents are also independents for a reason; they usually represent such a diverse set of views that it would be impossible form a cohesive opposition faction.

Thus, we aren’t likely to see an effective opposition come from the third party or independents.

The Democratic Opposition

Rep. Newberry points this out explicitly in his tweet: it’s the Democratic majority in the House empowers the Speaker. Obviously, Rep. Newberry’s favored solution to this is “elect more Republicans” — he argues that fewer Democrats will empower Democratic dissidents. But I should point out that you don’t actually need to elect fewer Democrats to empower a dissident faction of Democrats; you just need them to be willing to suffer the problem of being in opposition.

Most Democrats aren’t willing to do that. There are a lot of sticks and carrots that House leadership offers Democrats to shore up support among the caucus. The most notable one is that supporting leadership means you get to get something passed. The process under the current regime (as it’s been explained to me) is that at some point during the legislative session, leadership asks each Democrat in the caucus what their top three priorities are. They will (usually) end up passing one priority, while getting the member to kill the other two. This kind of legislative Sophie’s Choice is the Rhode Island spin on the common legislative practice of logrolling (trading votes to facilitate passage of legislation). Democrats that defy the process get nothing. They can’t get their constituents’ priorities passed, which can be a negative for getting reelected.

The Quasi-Public Democratic Party

The quasi-public nature of political parties (their organization and procedures are largely set by state law, and they can’t prevent anyone from seeking the nomination if the person is already unaffiliated or already a Democrat) means that the parties lack any way to punish defiant legislators; say, by forcing them out of the party (in the UK, for example, defiance of the party as a legislator means you aren’t going to remain a member of that party).

The quasi-public party is fairly unique to America, where politicians run primarily under their own names, and voters merely “affiliate” with parties rather than become members (with all the attendant costs, duties, and privileges). This means “being a Democrat” or a “Republican” doesn’t inherently mean anything, since anyone can become one. So if it turns out the winner of a Democratic primary is someone who entirely opposes the party’s agenda, there’s not much they can do.

Except, that in Rhode Island, the Speaker also controls the state Democratic Party. This is a particular arrangement that arose due to the decades-long lack of a Democratic governor, who traditionally led the party when they were in office. It’s also that the people elected to serve on the Democratic state committee are usually insiders who aren’t paid attention to (the state committee is perfectly capable of just completely ignoring the Speaker). So, through his role as de facto leader of the Rhode Island Democratic Party, the Speaker is able to punish members by denying them the party endorsement.

That lack of endorsement means defiant Democrats are more likely to lose their primaries due to lacking the little asterisk that denotes “endorsed candidate,” lose assistance from the party-controlled political action committees (and thus networks of reliable donors), and lose access to the NGP VAN system — the computer software that powers the Democratic field operations.

The Networked Democratic Party

Those are big blows, and it’s little wonder why many Democrats a loathe to suffer them. To survive those blows, defiant Democrats need a counterweight to Democratic Party. And nowadays, there are quite a lot of organizations ready to help. The problem is… there are quite a lot of organizations. Just thinking about organizations that could broadly be defined as “progressive” in Rhode Island: you have various unions (which are not always working together), the Working Families Party, the Rhode Island Progressive Democrats of America, Clean Water Action, Planned Parenthood Votes, RI National Organization for Women, Our Revolution, the Democratic Socialists of America – Providence, Indivisible RI, the Rhode Island Young Democrats, etc., etc., etc.

A defiant Democrat might be endorsed by all or a handful of these organizations, but another defiant Democrat might be endorsed by a completely different set of such organizations. These same organizations might also endorse Democrats who are loyalists to leadership as well. None of these organizations is effectively forming an opposition to the Speaker. Political scientists today refer to the Democrats as a “networked party,” that’s it’s not a cohesive ideological group, but a collection of policy demanders who working together in shifting coalitions to push the party towards their goals.

The brilliance of Rhode Island’s Democratic Party is that it has more or less managed to incorporate every policy demander in the state under its umbrella. So you end up with a situation where both Planned Parenthood and Rhode Island Right to Life or the NRA and the RI Coalition Against Gun Violence endorse figures from the same party. The Democratic Party is all things to all people.

That’s beginning to fray, as the recent endorsement debacle shows. So it could well be that in a few cycles, if progressives take up larger and larger proportions of the Democratic caucus, they could start eking out House reforms. They could also eventually seize the Speaker’s gavel and become just as centralized in their decision-making as current leadership.

Why Not Allow Democratic Primary Voters to Select their Leaders?

So, I’ve advocated for this in the past; essentially, in the primary, General Assembly candidates could simultaneously run for leadership positions in their chambers. This would introduce a more open process into the selection of Speaker, and ensure that at least Democratic primary voters got some input on who leads each chamber (and can hold them accountable).

However, events in the UK have convinced me this is a bad idea for legislatures. Over many years, the Labour Party in the UK has reformed its leadership elections so that the leader of the party isn’t selected just by its dues-paying members, unions (it is the Labour Party) and what’s called the Parliamentary Labour Party (or PLP, essentially, all the sitting members of parliament). They’ve also introduced a sort of open primary system, where anyone can pay a fee and get to vote for leader if the party decides they are pro-Labour enough.

This was introduced as Labour became more centrist (similar to how the United States thought open primaries produced more centrist candidates). However, what ended up happening is that thanks to a number of factors, the leader elected, Jeremy Corbyn, ended up being tremendously popular among all sections of leadership voters. Except, he was not popular with his colleagues in parliament. This has led to repeated attempts to oust him by the PLP, which has resulted in quite a lot of chaos for Labour, dampening its appeal even as the government flounders.

It would be very easy to see such a situation occurring in Rhode Island if legislative leaders were popularly elected in a primary, except much worse thanks to the American quasi-public party system. Imagine a progressive is selected by the Democratic voters to be Speaker, but most of the Democratic caucus ends up being conservative. They might grudgingly vote for the Speaker in the session immediately following the election so as not to defy Democratic voters, but they then might break with the party and ally with the Republicans, essentially leaving the Speaker powerless. And if they retained control of the party, they could wreak havoc in primaries and elections for the Speaker and their allies.

Fundamentally, you cannot force legislatures to be accountable to democratic decisions they did not make.

So What Could Be a Solution?

The short answer is that there’s no good solution. Traditionally, more conservative types argue that the Governor should be given more power. But this makes little sense to me. If the problem is that too much power is concentrated in the hands of one office, taking power from that office and transferring it to another office doesn’t solve the problem, it just moves it around (and usually the reforms they have in mind are things like the line-item veto, which barely impacts the power of the Speaker). Governors can be good and they can be bad.

Democrats dissatisfied with the status quo could buck up, grow spines, and defy the Speaker en masse and do their time in the wilderness. But that could end with a lot losses in primaries, with no guarantees they’d win in the long run. Allying with the Republicans is unlikely, because those most likely to be unhappy with current leadership are usually drawn from the left wing of the party, who have the least in common the Republicans. Any such alliance would be unstable, or at best produce results very much resembling what the right wing of the Democrats would’ve done.

In my ideal world, the State would reform the party system. It could bar candidates running as Democrats or Republicans below the federal level (if possible), open ballot access to new parties without making them achieve 5% of a statewide vote (say by paying a deposit per candidate), allow parties more flexibility in how they are organized and how they select candidates, and give them more power to discipline defiant members. This would have to go hand-in-hand with a new way of electing candidates, whether that means multi-member districts, mixed-member proportional, instant-runoff voting, etc.

* * *

The truth is the current system thrives in the ambiguity it produces. Because the opposition is unable to coalesce around any alternative, it dissipates. The Democratic Party co-opts or squashes any challenges. Real change would mean voluntary ceding of power: Democrats with ambition would have to give up the extreme centralization of decision-making. Republicans would have to risk being eclipsed as the opposition party.

The way to achieve those things is the same solution that could achieve change without any of things I listed above happening…

Change the people who are elected to the General Assembly.