Trump, LePage would endanger "balance of powers"

Gov. Paul LePage and GOP presidential hopeful Donald Trump have something in common.  Each wants to run government more or less at his will.  Neither gives great weight to the role of the legislative branch.

In fact, both readily disparage legislative opponents and their constituents, one or the other of them calling their critics “weak” or “corrupt.”  Writing off large parts of the population, they raise the question of their ability to lead a state or national government on behalf of all the people.

Both come from executive positions in the private sector where their word might have been law.  LePage is learning and Trump must yet learn that in government the constitutional balance of powers matters.

Discussing the recent decision of the Maine Supreme Judicial Court, I noted that it had ruled the state constitution gave the Legislature virtually “absolute” power on behalf of the people, while the powers of the executive and judicial branches are more limited.  The situation at the federal level is similar, though not identical.

The growing power of the executive risks giving both office holders and voters the wrong impression.  After a general election victory and aware of the extensive powers of office, an executive can come to appear to be the people’s primary representative.

One reader asked, “why have a governor if the Legislature is the primary representative of the people?”  Or a president, for that matter.

The revelation about the power of the legislative branch must have been a surprise, when we have become accustomed to executives claiming to speak for the state or country. 

The executive is primary in representing the state or country in relationships with others.  And as a single leader, the chief executive may inspire and encourage citizens. 

From there, it is easy to gain a sense that the executive is the dominant element of government, enjoying a general election mandate that ought to be observed by the legislative branch.  That’s LePage’s message, and there’s little doubt that Trump would see his office in the same way.

Still, there’s a good reason why the legislative branch comes before the executive branch in both the U.S. and state constitutions.  The legislative branch is supposed to represent the collective will of the people, the real sovereign.  It makes laws using authority delegated to it by a constitution approved by the people.

Precisely because its members are elected by district and not statewide or nationally, the legislative branch can reflect complex public sentiment more accurately than can the executive.

The executive’s lawmaking powers are supposed to be limited.  Vetoes of bills passed by a legislative body can be overridden, leaving the last word to the legislature.  Even appointments of top people in the executive branch must be confirmed legislatively.

A more complex world has imposed a transformation in the traditional balance between the two branches.  It has proven to be impossible for the legislative branch to enact laws that are sufficiently detailed to deal with the many specific situations arising when the executive tries to carry out the laws.

Inevitably, the executive must be left to adopt rules and procedures to apply the law.  Without unlimited funds, it sets priorities about which laws should be applied most actively.

In many cases, rules and executive orders have come to look a lot like laws.  The process of filling in the open questions in legislation leads to increased power for a president or governor.  If the executive branch goes too far, the legislative branch has to find a way to rein it in.

The executive is expected to have an agenda, proposed by the chief office holder and supported by executive branch personnel.  The problem of primacy arises when the top executive believes this agenda must be passed or that he or she is more powerful than the legislative branch.

President Teddy Roosevelt said the White House was a “bully pulpit,” meaning that the presidency gave him a strong position to advocate his agenda.  But, in another sense of the word, he did not “bully” Congress so much as find ways to convince its members to support him.

Courts increasingly find themselves asked to deal with the limits of executive power.  While the political system may allow for judicial determination whether executive actions are constitutional, it would be better for government to function based on positive relationships between executive and legislative and between government and voters.

Scorning and ignoring opponents, as LePage and Trump do, may provide a momentary sense of satisfaction, but it almost certainly undermines chances for constructive government.

Constitutional Rules and Practical Politics

Two Maine women have given us a couple of valuable lessons about government.

One was Leigh I. Saufley, Chief Justice of the Maine Supreme Judicial Court, and the other was U.S. Sen. Susan Collins.

For a unanimous Court, Saufley wrote the reply to questions from Gov. Paul LePage on whether the Legislature had adjourned or not.  The answer cost him the chance to veto 65 bills.

The Chief Justice reviewed the powers of the Legislature compared with those of the executive and judicial branches.  It turns out the three branches are not equal. 

Most importantly, she wrote that all power comes from the people, and it is “the power of the Legislature to act on behalf of the people.” She recalled a 1912 decision of the Court that the powers of the executive and judicial branches are only those given to them in the Constitution, while the 

powers of the Legislature are “absolute,” subject only to any constitutional limits.

As a result, only the Legislature could say whether it had adjourned.  The governor, claiming it had, could not.  Because it was still in session, new bills had become law without his signature and were not open to his later veto.

LePage has taken his victory in last year’s election as the sign of a public mandate for his policies.  He wants the Legislature to fall in line with his proposals, and it refuses.  Saufley’s lesson is the Legislature, not the governor, embodies the full power of the people.  If LePage will now work with it, some of his ideas have a better chance.

Beyond settling current battles, this little civics lesson reminds readers that the people are the “sovereign” in the American system, and they create a legislative body to exercise power on their behalf.  Because government sometimes seems to act as if the people are its subjects and not citizens, this point is worth remembering.

Sen. Collins was involved in a more ordinary legislative dispute.  Many fellow Republican senators want to cut all federal funding of Planned Parenthood, because they disapprove of what they understand to be its policies on fetal tissue and because it performs abortions, though not using government funds.

To enact such a bill, they had first to overcome a legislative filibuster, meaning that it would take 60 senators to end debate before a vote on cutting off funding could take place.  Defunding lost, because only 53 senators supported ending the filibuster and moving to the key vote.  Sen. Collins was one of them.

Collins has a history of supporting family planning and women’s health.  She soon came under criticism for her vote to open the path for the bill to be enacted.

Her answer was that Senate Majority Leader Mitch McConnell had promised her and the other two GOP sponsors that if the bill were debated, they would be allowed to propose an amendment not to defund the organization but to ask the Justice Department to investigate it and report to the Senate.

It seems quite likely that if debate ended, there were the necessary 51 votes to pass the bill ending funding of Planned Parenthood, even over Collins’ opposition.  With enough votes to slam the door on the organization, why would the majority have agreed to her amendment?

One of the co-sponsors of her proposal, probably cautious about what might happen, voted against cutting off debate.  He must have understood that most GOP senators, especially with some of them running for president, would reject anything less than defunding Planned Parenthood.

Collins surely understood that risk as well.  Yet she followed the party line to open the way to a funding cut, while excusing her action by making a counter-proposal that might be easily defeated.  Perhaps she figured there were not enough votes to end debate, so thought she could please GOP leaders without doing any real harm.

For her proposal to succeed, it would have depended almost entirely on Democrats.  She avoided aligning with them by sticking with her party, possibly because she knew the entire defunding exercise was a sham. 

Her tactic was less a reflection of her attachment to principle, which is undoubtedly sincere, than her attachment to the Republicans.  That’s practical politics, especially for a self-styled moderate in an increasingly conservative party.

The problem is some voters expect their representatives to favor principle over politics no matter the political risk.

While Saufley reminded us about the sometimes forgotten basic principles of American government, Collins provided us with a lesson about how principles risk being sacrificed to practical politics.

Presidential race: undercurrents of change

The Fox GOP debate dominates the political news, but it could obscure the real undercurrents of the presidential campaign. 

It’s important to keep the campaign in perspective, almost impossible do in the heated daily play-by-play reporting.  Here’s what is emerging from the campaign.

Polls.  While polling may indicate little about the ultimate nominees, even now it can influence the choice.  By using polls to limit the number of GOP debate participants, Fox was carrying out, in a somewhat rough fashion, the same process voters use to define their choices.  The field simply must be thinned.

Debates.  Once a useful encounter in the process because so much depended on so few head-to-head debates, they have been devalued by their frequency and the many participants.  Mostly, candidates have only to avoid making mistakes.

Trump.  Donald Trump, a man of great wealth and self-esteem, has never run for political office and avoids all the normal caution of political candidates.  He comes across as a real change, just what many people want.  He shares the popular disdain for government.  Above all, he makes things simple.

He’s not likely to succeed, unless voters like his style and worry little about his lack of substance. But he will force some from the field.  He could become so flattered by the attention he is getting that he could convince himself  he could win as a third party candidate, which worries the GOP.

Clinton.  The mantra is Hillary Clinton has the Democratic nomination locked up, but that belief is beginning to wear thin.  There are two indicators of her loosening grip on a sure nomination.  One is Vice President Joe Biden’s possible run and the other would be the appearance of another woman in the race.  Sen. Elizabeth Warren?

Clinton generates a sense of superiority, which causes mistrust.  She has held back as her problems have increased.  Even if Benghazi is a phony issue, the emails on her personal computer are not.  If anything, they reinforce the sense that she is not bound by the same rules as the rest of us.

Sanders and others.  In 2008, voters supported “change.” but got a lot less than they expected.  Democratic Sen. Bernie Sanders, like Trump, now represents real change.  Possibly too liberal to be nominated, he gains enthusiastic support, because of the simple message he would bring change.  Other Democrats lack exposure.  Is Secretary of State John Kerry a possibility?

Parties.  The political parties are becoming less and less relevant.  Many candidates now run without showing their party affiliation on their campaign materials.  In the presidential campaign, a single Supreme Court decision has transformed American politics.

Big donors.  The Citizens United decision opened the way for extremely wealthy donors to make unlimited political contributions.  It now appears that a handful of billionaires will be able to pour more money into the presidential campaign than will the political parties.  That means their personal platforms will become more important than party platforms.

Primaries.  The early contests in Iowa, New Hampshire and South Carolina usually thin out the field.  When candidates finish in third or fourth place, their funding tends to dry up, leaving them no choice but to abandon their campaigns.  It is possible that the big donors will not be so easily discouraged and will keep their candidates in the race until they hit larger states.

Wedge issues.  It has become increasingly clear that many voters decide based on a single issue.  In effect, if the voter likes a candidate’s position on same-sex marriage, abortion, environmental regulation or Iran, they automatically are deemed to endorse the rest of that candidate’s positions.  That has a major effect on debates and campaigns.

Overpromising.  Presidential candidates promise bold policy changes, without mentioning that they could not keep their promises without congressional support.  Surprisingly, the voters believe these promises, though we almost surely will be disappointed.  A more realistic candidate does not garner much support.

Congress.  Congressional and presidential campaigns have grown more disconnected.  In the districts, voters may decide based on much different issues than those influencing presidential races.  That difference is part of the reason why presidents cannot produce promised results.

Campaigns.  Presidential campaigns involve big money.  While there are few outright attempts to buy votes, most of the money is used to influence voters, usually by massive television advertising or single-issue direct mail.  Voters often go no further than the ads to learn about candidates, just what the big donors want. 

It’s still early innings, but we need to recognize the selection of a president is more than a sports event.

Leaders override “checks and balances”

Checks and balances. 

In school, we are taught constitutions create them to prevent any one branch of government – legislative, executive, judicial – from having too much power and to ensure each has its own distinct role.

That’s the theory.  In practice, government looks a lot different.

Take Maine, for example.  The Legislature is supposed to make the laws and the governor is supposed to carry them out.

It has long been recognized that few laws can be put into effect without executive agencies filling in the details of their application.  Almost inevitably, the executive branch becomes involved in legislation.

Governors are also the prime source of legislative proposals.  Major new policy initiatives are often launched by the executive branch, giving it an important role in the lawmaking.

But Gov. Paul LePage has been trying to carry the involvement of the executive into the legislative process to new lengths.  He has a detailed legislative agenda, and he expects the Legislature to adopt it.  It won’t, and the state faces an almost unprecedented legislative war.

LePage’s strategy is to veto just about every bill adopted by the Legislature, even by a veto-proof majority, to send a message to legislators that he will try to block anything from happening unless he gets his way.  In short, the governor does not want to share in the legislative process, in ways customary for executives, but to dominate it.

Because the state constitution almost dictates the need for a two-thirds vote in favor of the state budget, many members are accustomed to seeking compromises and working together for common solutions.

Being a state legislator is not supposed to be a full-time job, and some of them hold office out of a sense of public service rather than to advance an ideology or political party.  Many bills are passed in unanimously or overwhelmingly.  Most vetoes are overridden.  The Legislature has not reached the kind of partisan divide as has Congress.

At the federal level, President Obama has seemed ready to let Congress come up with its own proposals, and he then would decide to approve or disapprove them.  The White House is far from the time when a president would work every day to stroke members of Congress.  

In the rigid legislative process, dominated by partisan gridlock and the wild overuse of the filibuster in the Senate, fewer important bills even make it to the president.

The partisan split, which includes the strong likelihood the Democrats will sustain Obama’s vetoes, has actually served to produce a lower veto rate than for any president since Lincoln.  But this situation can be a recipe for not enacting new laws or fixing obvious faults in old ones.

Faced with the lack of legislative action, Obama has used his power to issue executive orders, most notably one on immigration.  While this tactic riles Republicans, Obama has issued such orders at a lower annual rate than has any president since 1885.

In recent months, some laws have been enacted.  While the trade bill’s passage resulted from an unusual meeting of the minds between the president and Republicans, some bills have been the result of the GOP’s worry about being considered the cause of government inaction.  To avoid that image, senior Republicans have been willing occasionally to compromise.

Obama, an ex-senator, respects the role of Congress, even if it gives him heartburn.  LePage intentionally disrespects the Maine Legislature, because it will not fall in line behind his proposals.  He accepts no modification of them, no compromise.

The divide in Washington is mostly along partisan lines – between a Democratic president and a Republican Congress.  While the party dominating on a specific issue can seem to be in charge, neither side is completely in control.

In Maine, the divide is along institutional lines – governor versus legislature.  LePage is trying to bend the Legislature to his will, not by stroking it, but by crushing it.

Constitutions are surrounded by unwritten understandings.  In recent years, the U.S. Senate filibuster, causing any bill to require 60 votes, has changed an understanding.  Some argue Obama’s use of executive orders does as well.

In Maine, the governor’s veto of every piece of legislation, even those proposed by his own party, eliminates an understanding that the Legislature’s role in lawmaking should be respected, with vetoes part of the legislative process and not an instrument to undermine the Legislature.

At stake is not the fate of any proposal or law. The American system of government itself is under attack when basic understandings and long-standing custom are abandoned.