In my recently concluded interview with Publius from ObsidianWings on the role of the administrative state, a central question was how citizens can better hold the executive and legislative branches accountable and prevent regulatory capture. It seems clear to me (although Publius may disagree) that these issues are closely related to the issue of growth of executive power in recent years, as Congress increasingly abdicates responsibility for the quality of government to the regulatory state and we increasingly view the President as something of an omnipotent legislator-in-chief.
I. The Problem
The result of this abdication is largely an inability for citizens to hold government accountable for its actions or inactions. Congress winds up blaming the Executive Branch for just about everything as a means of justifying its own inaction to remedy past mistakes. The President blames Congress for failing to pass his legislative agenda while largely ignoring the way in which the regulatory state that he oversees gets captured by narrow interests.
Meanwhile, the President winds up being the sole person we are willing or able to hold accountable….if the economy is good, we credit the President; if the economy is bad, we blame the President. We dislike Congress, to be sure, but high incumbent re-election rates show that we are unwilling to actually place blame on our own members of Congress. At best, we vote out a couple members of Congress in swing districts as a proxy for the President’s popularity (which is in turn a proxy for the state of the economy and the perception of our geopolitical status).
The Speaker of the House and the Senate Majority leader are hardly immune from criticism and are certainly higher profile than just about any other member of Congress, but even there, we have little ability to hold them accountable for how well they are doing their jobs as long as they remain reasonably popular in their home districts and states.
II. The Solution: Turn On The Speakers
There is a simple, if perhaps only partial, solution to this twin problem of abdication of responsibility by Congress and lack of accountability for the administration of the regulatory state: nationalize the election of the Speaker of the House.
This would, of course, require a Constitutional Amendment, but it would have the advantage of requiring very few, if any, structural changes to the organization of the House or the Constitution itself, unlike moving to a more purely Parliamentary system. As I will show, it would also likely turn the House into something closer to a true Lower House, from which just about all legislation would originate. Most importantly, it would force a clear division of responsibilities allowing voters to be more able to hold the President responsible for the actions of the administrative state and the Congress responsible for legislative affairs. It would, as such, also reverse the growth of Executive Power that reached its zenith in the Bush Administration but is certain to continue growing in the future.
These are bold claims, but they also have a strong basis in common sense. The most obvious reason why this proposal would greatly reduce regulatory capture and the growth of Executive Power is that it would give voters someone to hold accountable specifically for the passage of legislation. Under our current system, narrow local interests are able to turn national legislation into little more than a giant rent-seeking operation, while the scope of the legislation becomes severely watered down. There is no one to hold accountable for this – if your district gets none of the rent-seeking, you have to be content with “well, it’s better than nothing,” or “well, at least my Congresslizard voted against it.”
On the other hand, if we start electing the Speaker of the House by national popular vote, we have someone very specific to hold accountable for captured legislation or for failed attempts at legislation or for ill-conceived legislation. Simply passing the buck for the bad effects of legislation or inaction by blaming them on the Executive Branch will not fly unless the Speaker can convince the voters that the blame does, in fact, rest with the Executive Branch. This will also create an adversarial relationship between the Speaker and the Executive Branch even when they share the same party such that the Speaker will have every incentive to keep close tabs on how the Executive is functioning, and vice versa.
In addition to the tighter oversight of the Executive Branch by Congress that this would create, it would also put an end to the Cult of the Presidency that has enabled the Executive Branch to so drastically expand its power while also ensuring that voters will be better able to assess the quality of a President. With an alternate national elected official, no longer will voters need to place all their hopes and fears in one person such that this one person is the only person they can hold directly responsible for all the woe in their lives or, in the alternative, for all that is good in their lives. Instead, when legislation passes that they don’t like, they can hold the Speaker responsible; when federal law enforcement or an administrative agency crosses the line, they can hold the President responsible.
Finally, this amendment would alleviate many of the problems that exist with the Senate by placing the greater moral authority with the House, giving the Speaker a bully pulpit to strong arm the Senate into passing legislation more or less as it has been written by the Speaker herself. Senators from small states will still wield votes with greater proportional power than the size of their constituencies, but they will be less able to wring rent-seeking concessions from a Speaker who can expect to be judged harshly for passing heavily corrupted legislation. In short, they will need to vote on legislation based solely on its overall effects as they may or may not affect their own state rather than using negative aspects of those effects to wring concessions that not only weaken the bill, but may also even make the bill worse from the perspective of bill opponents.
III. Locking the Speaker Up
I don’t mean to make this idea sound like a panacea: politicians are still going to be corrupt, narrow interests are still going to weasel their way into the process, the President will still enjoy nearly unfettered control over the conduct of wars and foreign policy, and it’s still going to be difficult to pin down what is and is not part of a Speaker or a President’s “mandate.” But at the very least, many of these problems will become less significant. Presidents will be elected more for their perceived competence in administration than for their ability to promise people everything under the moon; Speakers will be elected for their legislative agenda and their ability to work across party lines to enact that agenda in as pure a form as possible rather than their ability to work within their own party. Voters will have a stronger incentive to keep close tabs on bureaucratic and legislative efficiency and a stronger ability to hold the appropriate branch of government responsible, rather than viewing the President as government personified.
There are, of course, some potential weaknesses with this idea, especially depending on your perspective. The most obvious issue is gridlock, particularly in a circumstance where the Speaker is of a different party than the majority of the House itself. For me, this is probably a feature more than a bug. However, I’m not at all certain that severe gridlock would actually result in such a circumstance. In part this is because in most elections, the most valuable skill is going to be the ability to win over votes from the other party while maintaining a coherent agenda. Beyond that, though, there may actually be more incentive for a speaker and a House majority from the opposing party to work together than currently exists when the House and the Presidency are under the control of different parties. This is because the election cycle will be the same, so there’s a substantial risk of both sides getting overtaken by a “throw the bums out” movement at the same time. Even if only one side gets blamed for gridlock, the result is that the other side will within two years get its majority in the House and control of the Speakership. Finally, by ensuring that the Speaker’s interests and the interests of her national party are not necessarily the same, we will likely get the kind of gridlock that results in better, but less, legislation.
One of the key features of electing the Speaker would be that citizens would be better able to hold the President accountable for the regulatory state. To the extent gridlock reigns on Capitol Hill, he would have that much more of an incentive to attempt to do by regulatory changes and changes in enforcement priorities that which Congress refuses to do. Obviously, there are limits to how far he could go with this, but the fact is that the modern regulatory state is so large and complex that simple decisions about enforcement priorities and rulemaking can often have widespread effects. Simply put, an Executive Branch can do quite a bit to alleviate the problems of gridlock (such as they are, in fact, problems) merely by acting competently in the first place rather than seeking to place the onus on Congress to act.
In sum, making the Speaker of the House a nationally-elected position will not magically create an idyllic democracy where politicians are honest, regulatory capture is non-existent, and everyone gets a free ride on the Magical Unity Pony. It will, however, make government more responsive, democratic, and accountable than decades of campaign finance reform have achieved.
PS- Many thanks to Jamelle and E.D., who provided invaluable feedback on the original draft of this post.