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: Law at the End of the Day

Ruminations XIV- Democracy Part XIV: On the Gesture and Substance of the Legislative Function in Advanced Democracies

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This is another in what I hope to be a month long series of aphoristic (?????????) essays, meant to provoke thought rather than explain it. The hope is that, built up on each other, the series will provide a matrix of thoughts that together might lead the reader in new directions. Though each can be read independently of the others, they are intended to be read together and against each other.

The essence of democratic governance in modern Western liberal democracies is bound up in the representative capacity of the legislature as representatives of the people, and of the executive as representative of all of the people who together constitute the sovereign power of the state. In the United States, the legislature, as closest to the greatest number of people and most likely to reflect their will, is thought to have control over the critical aspects of positive governance--and principally among them, the budget and expenditures.

But in mature democracies like the United States, the power over expenditures, and indeed, the power over budgets, has passed from the legislature to the executive. As the passage of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) and the passage of the American Recovery and Reinvestment Act of 2009 (complete bill) now demonstrate--irrespective of the party in power, it is the executive that controls the budget and the budgeting process. The legislature has in important respects, and at critical times, been reduced to nothing more than an empty gesture. Modern liberal democracies spend much effort prserving the forms of representative government while effectively moving away from its reality in important respects. Today, the forms of power are scrupulously observed, even as its reality is being transformed. And ironically enough it is the very forces of state power in the greatest position to avoid this evolution of power shifting that has served as the principal source of awareness of the change.

In both cases, the great dramatic events of its passage served as the stage on which the politics of the government's response to the current economic turmoil was played out. It appeared that great matters hinged on the construction, debate, negotiation and passage of a set of complex provisions by the legislature of the United States. Yet it is not clear that any legislator wrote the measures, considered all of its provisions, read them or considered them, except in broad strokes, and for the purpose of inserted or eliminating special provisions of particular interest to them, or of interest to the media. The drama in House and Senate was important as gesture, as the control of broad strokes but not as participation in the generative acts of these measures. The approach, framework, principles and scope of each of those measures--one the product of a democratic administration, the other a product of a Republican administration--was conceived, fashioned, generated and controlled by the President and his ministers, not by the legislature. A vote on the final product was a vote of confidence for the authors of the respective acts, or a gesture of support, or an affirmation of the idea that some sort of action was required. But it was not a considered vote on the provisions, the terms of which were beyond the control of the legislators.

Perhaps that is as it should be. Certainly, it is what democratic governance has become. The substantive work of legislators is now done within the ministerial offices of the President. Perhaps legislators are allowed to assist. Perhaps they might even be permitted to take the lead--when it suits. However, the substantive role of the legislature is now largely symbolic--a gesture to a simpler time, and a nod to the media and its role in shaping perception. It was , perhaps, in full awareness of these realities that President Obama sought the symbolic approval of at least something like a representative of the opposing party. The greater the effort to observe the forms, the more likely those forms have changed--from substance to ceremony, from generation to approval, from conception to acquiescence, from power to the preservation of its outward forms.

Full post as published by Law at the End of the Day on February 14, 2009 (boomark / email).