The Futility of Attempting to Bind Legislatures

Every so often, someone will come along with a reform proposal to reduce the power of the Speaker and the Senate President in Rhode Island (for ease, I’ll refer to these as “presiding officers”). These can range from the ineffective but mostly harmless (the line-item veto) to something that would be likely result in some small amount of chaos (direct election of the presiding officers). Almost all these reform proposals fail to tackle the underlying issues that result in powerful legislative leaders (who currently also act as their chambers’ presiding officers).

Nathan Cornell’s call in Uprise RI for a constitutional amendment to force the presiding officers into a nonpartisan, procedure-adjudicating role is another such short-sighted reform proposal, modeled after the Speaker of the British House of Commons. In hyperbolic language, Cornell asserts RI isn’t a republic because of the immense power concentrated in the hands of the General Assembly’s presiding officers. To support this assertion, Cornell mostly relies on the complaints of the Dorrites from the 1840s, but offers little justification for calling modern RI a dictatorship.

If it is a dictatorship, it’s a surprisingly consensual one devoid of much coercive power. The presiding officers lack police power to abuse, and are themselves often put under scrutiny much more often than those who oppose them, both co-partisans and opposition party figures alike.

Indeed, as Cornell is aware, and as former Minority Leader Rep. Brian Newberry is often keen to point out, the power of presiding officers come from the rules set by the chamber majorities at the start of each session. If anyone wants to change those rules, all that’s needed is 38 votes in the House or 20 votes in the Senate. You don’t even need to all be unified in how to change the rules, you just need a majority opposed to the rules in their current form and one legislator could potentially force drastic rules change.

Cornell argues that any rules change can be reversed, so instead seeks constitutional remedy (it’s worth mentioning that the British system Cornell is pushing for has no written constitution and can be changed at any time by a parliamentary majority). But this is where we have to consider how a constitutional change to the power of presiding officers would be reacted to by the legislators themselves.

So let’s walk through Cornell’s proposal.

First, Cornell wants nonpartisan presiding officers who renounce allegiance to the party they were elected from. This works in the British system because parties are organized, powerful, and have actual platforms. Thus, even if your MP doesn’t represent your views, your party will still have seats, and an agenda to enact.

In RI, our parties don’t have agendas or platforms. Neither the Democrats nor Republicans run on a platform of “this is what we will accomplish next session.” Your vote is not an affirmation for the Democratic platform. It is a vote for your representative. This is because, unlike in the British system, there are no controls by which the parties can prevent people seeking office under their name. Reps. Corvese and McLaughlin can share the same party as Reps. Morales and Henries, even if they are opposed in what they wish to accomplish legislatively. There are no severe penalties other than damaged relationships for opposing a vote pushed for by your party’s leadership (in the British system, it can lead to you being removed from your party).

Furthermore, there are 650 members of the UK House of Commons (each MP represents about 0.11% of the population), so the loss of one legislator as an administrative functionary is no great matter. In RI, our chambers are much smaller, and a single legislator represents proportion far greater (senators represent 2.63% of the population, representatives 1.33%). This is a much more significant cost to constituent representation.

Second, Cornell wants the presiding officer to be restricted to adjudicating parliamentary procedure. But this is one way we need to recognize that rules are set by the majority. Ostensibly, both chambers operate under Mason’s Manual of Legislative Procedure. But if you watch a legislative session, you often see legislators violate those rules. And knowing the rules doesn’t give much power. For instance, I’ve definitely seen legislators raise objections that are entirely correct under Mason’s. However, because the legislator raising the objection is despised by their colleagues or the objection would result in an inconvenience, the chamber majority votes not to sustain the objection. Again, the rules are whatever the majority says they are. That wouldn’t change under a nonpartisan presiding officer, and an presiding officer who relied too much on a particular rule to the inconvenience of the majority would quickly find that rule changed.

Third, Cornell wants the presiding officers to appoint committee members with the approval of the majority. But this doesn’t really change things. The chamber majority will be lead by the majority leader, who will force the presiding officer to nominate their handpicked committee members.

Fourth and finally, Cornell wants the presiding officers selected by secret ballot. As things go, this is okay-ish. Cornell wants it secret to avoid retaliation. But it runs up against an issue of transparency. As constituents, as the public, we have the right to know how our legislators vote. Because selection of presiding officers must be done in a public process, the process would likely have to remain open and public.

Cornell wants a constitutional amendment to restrict the power of the presiding officers. But that power is derived from the legislators, who ostensibly represent the people (how representative they are is up for debate). You can neuter the presiding officers, but those same legislative majorities who empower them now will simply transfer that power to the majority leader (just as British party leaders have immense power once in the majority).

Fundamentally, in a representative democracy, we need to think about how our representatives behave and why they behave that way. We can attempt to restrict that behavior, but if we don’t address the root causes, then the same problems will arise (this is like attempting to “solve” homelessness by arresting people for sleeping on the street but never building houses to address the housing crisis).

So why are the presiding officers given so much power?

First, individual legislators are not particularly empowered to do act independently. They make paltry wages for the amount of time they need to put in, many of them work regular or irregular jobs (a few work multiple jobs), and they lack dedicated individual staff. Legislative staff generally serves the committees or work at the behest of legislative leaders. So we could raise the rate of pay for legislators (which sadly requires a constitutional amendment) and/or we could allow them to hire their own staff. Raising pay has a bunch of knock-on effects too, like getting better quality candidates to run for office. This kind of investment in legislators would considerably weaken the power of the presiding officers.

Second, RI’s presiding officers control a lot of the resources of the Democratic Party, in addition to their own campaign accounts and leadership PACs. We can restrict this to a certain extent by moving towards publicly financed elections, instituting things like democracy vouchers, and generally making it less expensive to run for office. That would blunt the influence that RI’s presiding officers have through their amassed resources.

Both of the above would empower more people to run, and ultimately, the flaw in RI’s democracy is that we are a de facto one-party state without much competition. This is not unique to Rhode Island, of course. Our democracy is not very competitive. So, third, we can take action to increase competition. We could rewrite the requirements for party ballot access, for instance. One way would be to adopt Vermont’s system, which requires that parties organize a certain number of town committees to get ballot access. This is the sort of requirement that privileges sustained organization over brute forcing, one-time signature collection (it’s quite a different level of participation to go sit in a room and argue about rules for a few hours a month than it is to sign your name on a piece of paper every two to four years). It also allows parties to focus on smaller races and build up a record and a base before contesting larger offices.

With the exception of legislative pay, all of these are more achievable and would have more sustainable effects than a constitutional amendment to alter the role of the presiding officers.

The reality is that it’s very hard to bind legislatures to votes they did not take (look at how Florida’s legislature has reacted to the ballot initiative to restore felon’s voting rights). Any changes we make will be reacted to by legislators who seek to maintain their hold on power. So if we want to make changes, it’s important that those changes are broad and alter the conditions that legislators have to work under, rather than targeted in a such a way that legislators can easily work around them.

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