Fools on the Hill

“The natural tendency of representative government, as of modern civilisation, is towards collective mediocrity.” – John Stuart Mill, Considerations on Representative Government

Or, as a lawmaker down in Texas used to say: If there wasn’t a bunch of dadgummed fools in the Legislature, it wouldn’t be representative government, would it?

It’s part of our American folkways to consider our legislatures, Congress in particular, as the province of idiots, knaves, and ne’er-do-wells. But what was worrying J.S. Mill when he wrote about “collective mediocrity” was something more than the failure of legislative bodies to attract the best and the brightest. The mediocrity he feared was the rule of the rabble–the possibility of “class legislation” on behalf of the masses, and the exclusion of the more learned and cultured elites from government.

That is not, as it has turned out, the problem that most bedevils modern representative democracy. It’s the reverse: Congress and state legislatures across the land are firmly in the hands of elites. The members, by and large, and certainly the leaders, are more educated (which is not to say more wise) than the general population. Inside the legislature, power is concentrated in the hands of a small number of leaders, and influence is wielded by organized interest groups and well-connected lobbyists.

Take our own state. In 1983, the Boston Globe took an extensive look at how power works in the Great and General Court. Here is the opening line of that investigation: “Dominated by one political party and controlled by two men, the Massachusetts Legislature, the oldest lawmaking body in the nation, is in need of fundamental change.” There has been much change since then, but none of it could be said to be “fundamental.” It is still the case that the legislature is dominated by one political party and controlled by two men, though they are not the same men. Instead of Speaker Thomas McGee controlling the House, it is now Thomas Finneran. Instead of William Bulger presiding over the Senate, it is his protégé Thomas Birmingham. It is an important difference in state politics that Republican Governor William Weld is now a part of the equation, but it is no less true that the legislature is controlled by two men and one party.

One might ask: So what? The animating assumption behind the Globe‘s inquest was that representative government was not functioning democratically. The Speaker and the Senate President were autocrats; the rest of our representatives were powerless and, thus, the voters and constituents were effectively disenfranchised. But do such critics mistake leadership for autocracy? Practically speaking, is there any other way to run a legislative body than from the top down? Forget about “collective mediocrity” as a result of dispersing the power–what about chaos? It’s a deeper question than is sometimes realized, and it leads somewhere interesting, but before seeing where, let us look to Exhibit A in the case for Why the Massachusetts Legislature is in Need of Reform.

t’s November of 1994. The Legislature is back in session weeks after the election. Some who were elected are not yet sworn in, some who were defeated are still in office. The legislative leadership chooses this time to move on the most controversial measure on their agenda: a 55 percent increase in legislators’ salaries. The governor is on record as being cool to the idea. But on November 30, Speaker of the House Charles Flaherty and Senate President William Bulger emerge from a meeting with Gov. Weld to announce the governor is filing a bill to raise the pay of legislators and judges. On Friday morning, December 2, the bill moves quickly through the House and Senate Ways and Means committees. On Friday afternoon it is taken up in the House. Republican leader Edward Teague argues “We’re a lame-duck Legislature… I don’t think we should be voting on this matter at this time.” Speaker Flaherty takes the floor. He speaks of the “free and open-ended debate” in the House. He argues that open debate is “part of what makes this the greatest deliberative body in the world.” The House passes the bill. An hour later, the Senate does the same.

On Wednesday, December 7, as the House is quiet, Flaherty brings up “An act providing tax relief for low-income families.” Rep. Teague offers an amendment, which Flaherty gavels through. Later in the day, having announced that only non-controversial measures would be taken up, Flaherty names six bills, including “An act providing tax relief for low-income families,” as amended, and declares the bills passed, with no debate and no vote. The tax relief bill goes to the Senate and is passed as a fire alarm is going off, due to Christmas lights in the Senate President’s office catching fire. Of course, it soon comes to light that the “low-income” tax relief bill had been amended to cut the capital gains tax, a pet project Gov. Weld had been yearning to get through the Legislature.

More than any other events of the last several years, this flurry of almost comically dubious lawmaking has colored the public’s perception of how their legislature does business. The leadership, it was said, had acted with arrogant disregard for their own colleagues and with a breathtaking contempt for public opinion. But again: So what? So maybe it’s not exactly the greatest deliberative body in the world. Grown-ups, it might be said, understand that this is how the game is played.

It might also be argued that laws passed in such a fashion are not legitimate. In a recent book on legislative ethics, Alan Rosenthal writes, “The democratic process is more important than any particular outcome, and we cannot afford to neglect it.” There have been minor reforms in the Massachusetts Legislature since the pay raise caper (lame-duck sessions have been ended), but you would find few people in the Legislature who fully agree with Rosenthal. Certainly in the matter of raising their salaries, an issue that each legislator has deep personal convictions on, the almost universal view is that the outcome was more important than the process.

No one of significance in either the House or the Senate truly believes that democratization of those bodies is now a live political issue–or that it should be. When we asked Speaker Tom Finneran about running the House democratically, and whether it would be fair to guess he would make full use of his power, he said, “I’ll let it go as far as I can, but in the end I’m not going to disempower the office of Speaker.” Finneran has already given ample evidence he will govern in the “hard gavel” tradition of Massachusetts Speakers.

An unwritten rule of this time-encrusted tradition, is “results over process.” The annals of Massachusetts government are filled with political leaders who followed this rule, with varying results. Speaker Tommy McGee, a “lunchbucket Democrat” from Lynn who ruled the House from 1975 through 1983, is representative. He had a simple idea about the Legislature: its purpose was to help people. To help a constituent get a job, or to get in public housing, or to get out of a scrape. McGee modeled himself after Speaker John Thompson, the legendary “Iron Duke” who controlled the House from 1958 though 1964.

The other tendency in Massachusetts politics (this is, after all, the birthplace of the Good Government Leagues) is for reform. Thompson was challenged by a young legislator named Michael Dukakis, and McGee was toppled with the help of Charles Flaherty. Periodically, a wave of rules reform comes along and some in the Legislature pursue the task of changing its ways. But the ways endure.

t’s not an insignificant point that results usually matter more to the citizens than the process. Last year, as the Legislature was held in the usual disdain (Speaker Flaherty was hit with 13 ethics violations and a felony tax charge), there were a number of bills passed that brought credit upon lawmakers. They extended health insurance to all children in the state by raising the tax on cigarettes, to take one example. But still; is it not a sad commentary to say that what the Legislature does this year will depend on what the House Speaker and the Senate President agree to do? Is there not something pathetic about a body of 200 members being led by the noses by their two leaders, and getting paid $46,410 a year to be hardly significant to the work of making laws?

Congressman Barney Frank has an illuminating perspective on this. Frank pushed for rules reform in the Legislature in the 1960s and 1970s. But he cautions against “getting fooled” by the idea that Speakers or Senate Presidents are somehow appropriating power in the Legislature and using it undemocratically. Frank says the Legislature in his day “was Switzerland, not Czechoslovakia.” By which he means, “It was not that there was a powerful boss who gave everybody else orders over their objections. It was that it was in the interests of the members to cede power to the central leadership.” The key point is that the majority of members of the Legislature like working under an “elected kingship,” he says. It protects them from being held accountable for tough decisions. And if the majority of representatives are willing to go along with it, you cannot accuse the leaders of being undemocratic.

The argument, of course, leads us in a new direction: Not to the responsibilities of the legislators or the leaders but to the responsibilities of the citizens. “The critical democratic link that is being impaired is the link between the members of the Legislature and their electors, not between the members and the leadership,” Frank contends.

A.J. Liebling once said the press is the weak slat under the bed of democracy; but it could also be argued that a public that stops reading about and stops participating in representative government is another weak slat. So the public is outraged by the spectacle of representatives hiking their own pay? Then they ought to be outraged by a legislature made up of representatives who have fallen asleep. But the public has not demanded that lawmakers stay awake!

This is where we, collectively, have made such little progress in the drive to “reform” representative government. We understand how to protect our narrow interests. Every community has people who will organize to protect their neighborhood. We understand how to demand constituent services from our representatives. In the watered-down understanding of democracy we have come to accept, all these competing provincial interests, all these swirling demands on the system, are the essence of pluralism. The competition among winners and losers is the best we can expect.

But in interest group politics, the strongest interests win. We have yet to figure out how to bring the citizenry into a discussion of the public interest–into a process of defining what the public interest is and then intervening on behalf of it. We are likely to see more efforts at reform over the next couple of years. From the right, activists will attack the structure of legislative power, perhaps trying to repeal the unpopular pay raise and cut the length of time the Legislature is in session. From the left, the diagnosis is that too much money has polluted the process, and that if incumbents didn’t hold such a strong fundraising advantage they could be held accountable at the polls by spirited competition. As for how the Legislature functions, probably nothing would bring as great an improvement as having a strong opposition party–but given the current state of the Republican Party in Massachusetts that seems a long way off.

t could hardly be clearer from watching the Legislature at work that it is an institution in dire need of being held accountable. Time-tested barriers to public scrutiny have yet to be broken down (the Legislature is fond of exempting itself from certain laws, such as the state open records and open meetings laws). The press seems capable of little more than waging guerrilla assaults that serve to harden the public’s cynicism. What has failed to take shape is an enlightened, shrewd public opinion. To concede, Mill wrote, that those who hold the power in society will necessarily control government, “is to forget that opinion is itself one of the greatest active social forces. One person with a belief is a social power equal to ninety-nine who have only interests.”

But that gets us only part of the way there. Are there better ways to bring the power of public opinion to bear on the Legislature? Imagine if every legislative district held “accountability sessions” in which the representative was grilled about what he or she was accomplishing. That’s, theoretically, what the campaign and election season should be about. But electoral politics is hardly vibrant in this era, for a number of reasons, only one of which is the influence of money. To make elections meaningful, there needs to be a higher quality of public opinion. There needs to be a way of talking about the public business that would, at least once in a while, rise above understanding politics as the place for parochial interests. It would be built upon ways of talking about what is and is not in the common interest.

Surely it would make a difference if more citizens paid attention to what goes on in their legislature. Have we come to accept that most people don’t have the time or the interest? What might it mean for our politics if Mill was right in saying the principal element of good government is “the improvement of the people themselves”?