Freedom Paper No. 3
THE ROLE OF THE LEGISLATURE IN A DEMOCRACY
By Norman Ornstein
Democracy is based on the notion that a people should be self-governing and that the representatives of the people should be held accountable for their actions. The legislature, which represents the people and acts as their agent, is therefore at the core of the Western democratic tradition. But what does a legislature really do, and what role does it play in a democracy?
In a simple sense, a legislature makes laws. The Oxford English Dictionary defines a legislature as "a body of persons invested with the power of making the laws of a country or state." But this definition only begins to address the broad range of activities and responsibilities performed by a legislature, and it does not account for the many kinds of legislatures that exist in the various countries of the world.
This paper will begin by describing the basic functions that all legislatures in democracies share. It will then show some of the ways in which legislatures can differ, focusing mainly, but not exclusively, on the United States Congress and the British Parliament, which have served as models for many of the world's legislatures. These differences involve the form of the legislature, the role of the majority and opposition parties, the role of outside groups, and internal organization.
For any democracy, deciding how to form the legislature, how to elect its members, what powers to invest in it (and in the other branches of government), how to provide rights and channels of expression for minority parties, and how to organize its internal functions and deliberations are crucial issues in determining how the government, and the democracy, will function.
There are no simple or universal answers to any of these questions, because cultural considerations, historical experiences, and political realities affect the evolution and development of legislative bodies. Some countries work best with at-large election systems; others work best with geographically confined, single-member districts. Some legislatures have a strong role in foreign policy; others, no role at all. Some have well-developed and defined committee systems; others have no sophisticated division of labor. Some have two parties; others, many parties. But one thing is clear: no country can long have a workable democracy--with voices of opposition, accountable government, and adequate avenues for citizens to be heard--without a vibrant and meaningful legislature and legislative process.
What Legislatures Do
Although legislatures are known primarily as lawmaking bodies, it is important to recognize that these institutions have many other important responsibilities. Despite what the dictionary says, legislatures are not the only governmental bodies that make and implement laws. Those in positions of executive authority, courts of law, and bureaucracies may at times perform these same functions. What is it then that distinguishes legislatures?
The first and foremost characteristic of a legislature is its intrinsic link to the citizens of the nation or state--representation. As John Stuart Mill wrote in 1862, in a representative democracy the legislature acts as the eyes, ears, and voice of the people: "[T]he proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts, to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable....In addition to this, the Parliament has an office...to be at once the nation's Committee of Grievances, and its Congress of Opinions."
In addition to gaining their legitimacy by representing the public will, legislatures have other distinguishing features. For instance, most consist of a rather large group of individuals who come together, at least in theory, as equals. While some members may assume leadership positions or special responsibilities, each member's vote is customarily weighed equally. Thus, legislatures operate under a system of collective decision making.
Legislatures adopt policies and make laws through the process of deliberation. While usually based on some broad set of principles contained in written and unwritten constitutions, decisions need not proceed from the rule of law or specific legal precedents. In this way legislatures differ from the courts.
In addition to their official lawmaking capacity, most legislatures perform a unique educational role. Individual legislators simplify complicated issues and define policy choices. They use their resources and expertise to filter information from many sources and to resolve conflicting ideological positions, ultimately presenting their constituents with clear-cut options. This educational function has become increasingly important as societies have become more complex, as the scope of government activity has become more extensive, and as the public has gained increased access to legislative proceedings, particularly via television.
Another defining characteristic of most legislatures is the dual role of the legislators. On the one hand, the legislature makes laws that affect the entire nation and are presumably intended to be for the good of the nation as a whole. On the other hand, its individual members, the legislators, have a duty to represent the interests of their individual constituencies. This inherent tension is unique to representative forms of government that have districts.
The British House of Commons, like many other parliaments and like the U.S. Congress, has single-member districts, designed by geographic boundaries. Other legislatures, like the Dutch, operate through proportional representation. Members might have geographically defined districts, but they are chosen through a national election process where seats are allocated by national percentage votes for parties. In some systems, a party needs 5 or 10 percent of the votes cast nationwide before it gets seats in the parliament. In others, only 1 percent is required.
The well-known political theorist and lawmaker Edmund Burke eloquently expressed the tension between the roles of trustee and delegate in a speech to his constituents in the city of Bristol in 1774. Discussing whether a representative should be a delegate, who simply reflects the views and interests of his constituency, or be a trustee, who offers his own independent judgment of what is best for the nation, even if it conflicts with the interests or desires of his constituency, Burke came down firmly on the side of the legislator as trustee: "Certainly, gentlemen, it ought to be the happiness and the glory of a representative, to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinions high respect; their business unremitted attention....But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, to any set of men living....Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole--where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member, indeed; but when you have chosen him, he is not a member of Bristol, but he is a Member of Parliament."
The tension Burke described between the trustee and delegate roles exists for all legislators. It can be a tension built around the needs of a smaller geographic constituency versus the needs of a nation, or around the needs of a narrow ideological or ethnic group versus the needs of a nation, depending on the base of representation.
Each country and each legislature has to decide how best to channel and balance those tensions. If the minimum number of votes required to gain representation in the legislature is too low, small and narrow groups can wield inordinate power and the desires and needs of the majority can suffer. But creating districts that are too large or holding elections only at the national level can disenfranchise minority ethnic and interest groups and leave them feeling powerless and bitter.
The U.S. system was set up the way it was in part as a reaction against the British parliamentary system. The framers of the U.S. Constitution derived the concept of representative government from the social-contract theories of John Locke and other political philosophers that held that legitimate authority ought to be based on the consent of the governed. Furthermore, the nature of colonial society, where there were few if any claims to hierarchical or hereditary privileges, facilitated a form of representation based on direct popular election. In colonial America, there were no claims to royalty, nor were there clearly drawn lines among social classes. Land ownership was based more on individual initiative than on wealth or status, and vast amounts of land were available for the taking. All of these factors helped to place colonial Americans on relatively equal footing and contributed to the spirit of self-government and the ideal of equality.
Over time, members of Congress have acted as trustees for the nation rather than as direct agents of their constituents. They most often adopt this role in response to personal philosophy or the urgency or complexity of a particular issue. However, their commitment to constituent interests remains strong, and when issues of local interest arise, members usually vote accordingly.
Forms of Legislatures
As the brief description of the U.S. system showed, the characteristics of an individual legislature are often varied and related to the historical and cultural traditions of a nation or state. Indeed, legislatures do not exist only in democracies. They often play a role in nondemocratic regimes as well. One example is the Supreme Soviet of the former Soviet Union. Such legislative bodies simply act as rubber stamps for government policy. They lend legitimacy to the ruling government and thereby contribute to the stability of the political system as a whole. They do not serve as a means of popular participation, direct or indirect, although they do provide an entree into the upper echelons of government for a select few.
In open, democratic regimes, legislatures take a variety of forms. One major way in which legislatures can differ concerns their relationship to the overall political system of which they are a part. For instance, a legislature may be part of either a parliamentary system or a system of separated powers--usually known as a presidential system. This distinction is rooted in a system's constitution and has a major impact on the role the legislature is equipped to play.
In a parliamentary system, the executive and the leaders of the administrative bureaucracies are chosen from and are accountable to the majority in Parliament. Where separation of powers is the rule, as in a presidential system (such as that in the United States), the executive and the cabinet are entirely separate from the legislative body. Consequently, separate resources, goals, and responsibilities exist for the legislature. No one (an exception is the vice president in the U.S. case) can be a member of both the executive and the legislative branch. Depending on party dynamics, the two branches can be at odds over policy priorities and legislative agenda.
The legislature in a parliamentary system is a parliament; the legislature in a presidential system is a congress. Although the distinction goes beyond mere names, the names do reflect some of the differences. As political scientist James Q. Wilson has pointed out, the root of the word parliament is the French word "parler" (to talk), whereas the root of the word congress is the Latin "congressus" (to come together, or assemble). While most legislatures fall into one or the other of these categories, the names of individual legislatures are sometimes misleading. For instance, the Hungarian legislature is akin to a parliament, yet its name, the National Assembly, might suggest otherwise. Similarly, in Russia, the word "soviet" means "council" in English; nonetheless, the legislature is part of a presidential system.
A parliament's main function is to debate policy. Its core activity is the question period, during which time members of the government answer pointed inquiries from members of parliament, mainly of the opposition. A congress, on the other hand, has as its main function the passage of laws. It turns ideas or proposals into public policy through debate, bargaining, and compromise.
Writing in 1975, Nelson Polsby, a renowned scholar of the U.S. Congress, put this distinction in a different form. Polsby argued that legislatures can be separated into two basic types: arena legislatures and transformative legislatures. Arena legislatures are forums for discussion of ideas and policies: "[They] serve as formalized settings for the interplay of significant political forces in the life of a political system; the more open the regime the more varied and the more representative and accountable the forces that find a welcome in the arena." By contrast, transformative legislatures actively translate ideas into laws: "[They] possess the independent capacity, frequently exercised, to mold and transform proposals from whatever source into laws. The act of transformation is crucial because it postulates a significance of the internal structure of legislatures, to the internal division of labor, and to the policy preferences of various legislators."
The British Parliament is a good example of an arena legislature. The U.S. Congress is a transformative legislature. In the British system, the executive/prime minister and the legislature/Parliament are linked and are necessarily controlled by the same party. As a result, there is less need or opportunity for transformative activity in the area of policymaking. The Parliament is, in essence, an arena where policies are aired and refined through debate and where conflict within the bounds of the party, compromise among differing viewpoints, and entrepreneurial instincts on the part of individual members are largely absent. Michael Ryle, former clerk of the British House of Commons, provided an apt description: "The British Parliament has not exercised power directly for many, many years. It provides a forum where the public exercise of power by the government must be portrayed and displayed....In other words, it is through Parliament that power is exercised, not by Parliament."
The U.S. Congress, on the other hand, is a much more activist legislature. Conflict, compromise, and individualism can all be found in the U.S. legislature. There is constant give-and-take at work, as inputs from throughout the political system are transformed into legislative output.
The Role of Political Parties
In Britain, political parties dominate the political system. A government is formed in Britain when the monarch, at the request of the sitting prime minister, dissolves the Parliament, and calls for an election. The election is held, pitting the prime minister (or the majority leader in Parliament, should the prime minister decide not to run) against the leader of the minority party; the winner then has the responsibility of forming a new government. He or she chooses cabinet members and other government officials from among the majority party in Parliament. The government then rules until the next dissolution of Parliament is called for.
The policymaking process in the British system is relatively smooth: the government of the majority party sets policies and the majority in Parliament affirms them. In fact, during the period from 1895 to 1972, with one minor wartime exception, no government with a working majority in the House of Commons had any legislation of real substance defeated. This stems from a whole host of factors: the willingness of the government to make concessions in order to avoid party revolts, the desire of "back-benchers" for eventual promotion to ministerial office, the fear that the electorate will not support a disunited party, and a unique sense of loyalty to the party and its causes. An additional factor is undoubtedly self-interest on the part of individual members of Parliament. Each member realizes that voting against the government risks bringing down the government, thus forcing a new election that could result in defeat for the member and his or her party.
Not only does the party shape and control policy options, but it also defines and carries public opinion to a large extent. Hence, members of parliament do not necessarily need the autonomy or the resources available to members of the U.S. Congress, because they can rely on the strong party apparatus for information and support. Indeed, the party system is deeply ingrained in British history. Various attempts to reform the political system have been scuttled precisely because of the strength and solidity of the party system.
Although the majority party dominates the parliamentary system in Britain, the role of the opposition party should not be overlooked. Whereas some consider the opposition merely "the government of tomorrow," others have recognized the important role it plays. Gerhard Kunz, a former member of the German Bundestag, has said that the opposition actually serves an important function for the Parliament as a whole. This is true, he says, because the government simply presents and passes bills. It is therefore up to the opposition to think critically, forcing the government to justify its positions and even at times to amend its legislation.
In the British Parliament, the opposition plays a vital role in the lively floor debates that characterize that body. The opposition must clarify and articulate its positions clearly and be ready to present a united front if and when the majority stumbles or falls out of favor with the public.
In the U.S. Congress, political parties play a much different role. While it is true that nearly all members of Congress are aligned with one of the two major parties and that party affiliation does have an effect on the members' legislative voting decisions, parties in the United States show nowhere near the level of cohesiveness exhibited by British parliamentary parties. U.S. legislative parties embrace broad coalitions, they are decentralized and largely nonhierarchical, and they are relatively flexible over a range of issues. Thus, party positions may not always be consistent from one policy area to another.
The legislative system in the United States is designed to encompass varied interests and produce legislation that represents a compromise among them. When the legislature is dominated by one party and the executive held by the other--as has been the case in the United States since 1987--bipartisan support of legislation is usually necessary to pass a bill. (In the U.S. case, the president has the power to veto legislation and can be overridden only by a two-thirds majority in each house of Congress.)
Although members of the opposition party in the United States often experience frustration over their inability to control the legislative process, their power is significantly greater than that of their counterparts in the British Parliament. They can join forces with majority members in voting on legislation that suits their individual interests. Also, depending on their numbers in the chamber, they can exercise a certain degree of leverage in legislative bargaining. And finally, if all else fails, they can use their own individual vote in visible defense of the interests of their constituents back home.
The Role of Outside Groups
In addition to the internal dynamics of a legislature, arena and transformative legislatures differ in how they handle and relate to outside groups. In the British system, interest groups exert some influence over the legislative process, but rarely in a major or direct way. By contrast, in the U.S. Congress, interest groups play a larger and more visible role. Shirley Williams, a former Secretary of State for Education and Science in Great Britain, offered an example of how outside interests can exert influence there. The incident involved an effort to reform Britain's nursery school education system. Apparently, the government favored expanding nursery school education by increasing the number of teacher's assistants employed and thereby increasing the number of children who could be served. The teachers' union made it clear from the outset, however, that it would not accept such an approach, as such a move would undoubtedly threaten the jobs of many members of the union. As a result, the proposal was never even made public, in part because the government did not want to disclose that this type of pressure had been brought to bear. According to Williams, the exercise of such influence is not uncommon across a range of policy areas. She pointed to the "great corporate power" of such outside interests as the trade unions, individual professional groups, and big business. These groups, according to Williams, have the power to scuttle legislative programs and initiatives that they feel are not in their own best interest. The danger in a parliamentary system is that the pressure brought to bear by these groups is often hidden and subtle, because the system is less open than in the United States. As a result, these interests are rarely held accountable for their actions.
In the United States, outside interest groups are able to play an active role in the legislative process because there are so many points of entry into the system--Congress is characterized by decentralization and a detailed division of labor. No one party or member or committee can totally dominate any given issue, and interest groups attempt to influence each of these actors. They employ various tactics in an attempt to introduce or derail legislation, alter its form or content, or secure its passage; no member of Congress can avoid the daunting task of dealing with a wide variety of interest groups from his or her constituency.
Many critics of the U.S. system believe interest groups have come to exert too much influence--largely through their contributions to candidates' election campaigns; thus, politicians are perceived as beholden to the interest groups that have supported them. Attempts to reform the campaign-finance system are aimed mainly at decreasing the power and influence of monied interests in the political system.
Internal Organization of Legislatures
Legislative committees and staffs must also be taken into consideration when comparing congresses and parliaments. A strong committee system is a hallmark of a transformative legislature like the U.S. Congress. For a legislature to be independent of the executive, it must have internal mechanisms to enable it to carry out the complicated task of policy-making.
Woodrow Wilson, a prominent scholar of Congress who was to become a U.S. president, described the power of committees in the U.S. Congress and the important role they play in the legislative process: "The leaders of the House are the chairmen of the Standing Committees....[These] chairmen...do not constitute a cooperative body like a ministry. They do not consult and concur in the adoption of homogeneous and mutually helpful measures; there is no thought of acting in concert....
"Of course it goes without saying that the practical effect of this Committee organization of the House is to consign to each of the Standing Committees the entire direction of legislation upon those subjects which properly come to its consideration. As to those subjects it is entitled to initiative [that is, to introduce legislation], and all legislative action with regard to them is under its overruling guidance. It gives shape and course to the determinations of the House."
Since Wilson wrote this description in 1885, little has changed in terms of the power wielded by congressional committees, except that the committees, roughly 15 to 20 each in the House and Senate, have been supplemented in each chamber by 100 or more subcommittees, each with its own chairman and staff.
Committees may also exist in an arena legislature, though they are rarely as strong or well-defined as those described above. In an article in the Canadian Journal of Politics, C.E.S. Franks offers some insight into why committees play only a secondary role in that legislative body. The British model is based on tough public scrutiny and debate on the parliament floor, forcing an executive to sharpen its own positions and improve its own legislation to avoid embarrassment and bad publicity: "The parliamentary system is based on competition not consensus. The argument against strong parliamentary committees is that they submerge the distinction between parties and give power to 'irresponsible' legislative committees rather than responsible government."
By their nature, transformative legislatures will have a more vibrant committee system than will arena legislatures. In the former, as the term "transformative" suggests, proposals and initiatives from various sources are transformed into law. This process takes place internally and largely independent of the executive; therefore, the internal structures and division of labor within the legislative body are crucial to the outcome of the legislative product. In arena legislatures, on the other hand, there is less give and take in the legislative process, and less of a need for consensus building. The party system dominates, and although there is debate and competition, the majority party usually works its will. As a result, the government's legislative agenda is less reliant on the internal structures of a parliament.
Over the years, the British have debated whether or not they should strengthen their legislative committee system. During the late 1970s, some reformers believed that in order to strengthen the position of Parliament in relation to the executive, a stronger system of select committees should be created. At the time, the Parliament had two kinds of committees. Standing committees dealt with specific pieces of legislation after they had gained general approval on the floor, while select committees examined government policy and activities more broadly. Under this committee system, policy issues were addressed as they arose. There were no permanent mechanisms in place to deal with specialized policy areas, such as foreign affairs or the budget.
Many back-benchers--the rank-and-file members of Parliament--supported the reform, hoping it would give them a more active role in the policy-making process. Those who were opposed to such a change feared stronger committees would undermine the role of the parties.
In 1979 a new committee system was adopted: a set of back-benchers' select committees was established to conform to the various government departments. The committees, which were to collect information, hold hearings, and report back to the full chamber, were modeled on the U.S. congressional committee system.
The new system has fared relatively well. Those committees operating under strong leadership and with a clear mandate have had considerable success. The Education Committee falls into this category. In general, the new committees have had their greatest success in dealing with technical matters while avoiding controversial or politically charged issues. It is not clear how much of an impact the committees have had on government policy, but most observers agree that they have played a valuable role in making the political system more open. They have provided outside viewpoints an entry into the policymaking process and have exposed the ruling government's positions and decisions to increased public scrutiny.
Along with the call for a stronger committee system came similar calls for increased staff and other resources for members of Parliament. One former MP, who also happened to be a former civil servant, described the "massive imbalance" that exists between the resources available to ministers and civil servants compared with those available to members of Parliament. Another member recounted his early days in Parliament when he was without even a desk or a secretary for five weeks. He said it was "virtually impossible to run the constituency, to do the party job and the parliamentary job, and to be an effective member of the select committee, with enormous amounts of paper to handle, with no staff and inadequate office facilities."
This state of affairs represents a stark contrast to the staff and resources employed by members of the U.S. Congress. Today members of Congress are served by professional staff members, secretaries, administrative assistants, and committee staff aides, not to mention pollsters, political consultants, and campaign workers. Every member of Congress, whether of the majority or minority party, is entitled to hire 22 staff members and has a staff budget of nearly half a million dollars.
Of course these differences are related to the role of the U.S. legislature compared with the role of the Parliament. Members from each body have come to agree that a certain amount of staff and resources are necessary in order to function effectively.
In recent years, legislatures around the world have begun to adopt similar organizational features. Certain common trends can be identified among legislative bodies that traditionally have had little in common. During the 1970s, the U.S. Congress underwent some significant reforms. Power was decentralized, resources were expanded, and congressional proceedings were opened up to the public and the media. At the same time, other legislatures throughout the Western world were undergoing similar, though less dramatic, changes. Committee systems were expanded (as we saw in the British reforms of 1979), staffs and resources were increased, back-bench members began to demand a greater role in the policymaking process, and legislative proceedings were opened up to the media.
In 1986, the New Zealand Royal Commission issued a report entitled "Towards a Better Democracy: Report on the Electoral System." The report included a number of recommendations for improving the parliamentary system. The commission's main recommendation with regard to the legislative branch was that the number of members of Parliament be increased as a means of strengthening that body's ability to carry out its representative and legislative functions. An increase in the general membership of Parliament would have several probable consequences. First, it would automatically mean an increase in the number of back-bench members. This, in turn, might diminish the ability of cabinet ministers to dominate the legislative process. Another effect would be a larger number voting in the caucus and thus a wider range of dialogue on important policy issues. In addition, having more MPs would strengthen the caucus committees, increasing them in size and number. Such an expanded committee system would allow individual members to develop areas of expertise. The new system would not only improve the quality of parliamentary debates but also increase the relative strength of the legislature in relation to the executive.
Although the proposals were not adopted at the time, it is important to note that the debate was taking place and that these issues were raised and taken seriously. This supports the premise that there has been a worldwide trend toward decentralization, specialization, and democratization of legislative bodies. The debate over the size of New Zealand's Parliament, as well as the manner in which its members are elected, has continued since the Royal Commission made its report in 1986. In fact, in September 1992 New Zealanders voted to reform the system for electing members of Parliament, supporting a system of proportional representation similar to that proposed by the Royal Commission.
In Argentina, committees are an integral part of the governing process. Most of the legislative work of the National Congress takes place in the committees. In addition, the committees act as a liaison of sorts between the National Congress and the public. They provide points of access for groups and interests outside of the legislature, solicit information and input from myriad sources, and act as a sounding board for public opinion.
Lessons to Be Learned
Every country's political system develops and evolves according to its history, makeup, and political and social conditions. When a country tries to graft another country's political system onto its own, it rarely works. This was the case, for example, when Nigeria tried to adopt the U.S. presidential system some years ago. The system failed because it did not provide a role or outlet for dissenting parties. As a result, revolts in the form of military coups ensued. There has been no sustained stability in Nigeria since. Countries need to adapt structures and rules to fit their own cultures and circumstances.
That said, it is still possible to draw lessons from the experience of legislatures in democracies, mature and developing, around the world. One is fundamental and particularly clear: a democracy thrives best if it has an active, vibrant, meaningful, and legitimate legislature. The other lessons flow from this one:
A balance also must be struck among the different kinds of groups in a society that have legitimate voices. One way to do this is through bicameralism. Most democracies have two houses in their legislatures--one whose representation is based on population size and another whose representation is based on some other criterion. In the United States, the House of Representatives represents by population--each congressional district has roughly the same number of people and a single representative. The U.S. Senate represents by state--each of the 50 states has two senators, each elected at a different time and statewide. This ensures that the interests of states--some of which are very small and sparsely populated--will be amply represented.
The committees in the British House of Commons also attempt to oversee the actions of the executive departments and their civil servants. They are responsible for ensuring that there is no fraud, scandal, or abuse of power, and that insulated government bureaucrats do not wield their power carelessly, arrogantly, or sloppily. Congressional committees in the United States do the same thing, although much more aggressively. But whether by committees or some other mechanism, the legislature should be set up to act in an oversight capacity.
In Britain, the upper house, the House of Lords, was designed to ensure a voice for the monarchy and its representatives and designees. In some cases, upper houses exist largely to provide another check and vehicle for representation in the system. They can also provide balance for ethnic, regional, class, or racial groups. For example, in the U.S. Senate, each state has equal representation. Therefore, no one state or region is able to dominate the debate on issues of national import nor can the interests of any one state (or region) be overridden because that state lacks adequate representation.
As noted above, the U.S. and British models have single-member districts. Proportional representation is another way to ensure balance in representation, but it is easy to go too far, allowing a disproportionately large role for small and splinter groups. Evidence of this can be seen in the recent emergence of radical, right-wing, anti-immigrant parties, which did surprisingly well in the most recent round of elections in Western Europe, particularly in Germany.
From this brief overview, it should be apparent that the legislature is a necessary ingredient for democratic governance in the complex societies of the modern world. Legislatures represent a permanent and independent link between the populace and the government. Through elections, petitions, lobbying, and participation in political parties and interest groups, citizens can express their will and affect the outcomes of the legislative process.
Some common traits of a well-developed legislature include a division of labor, a leadership structure, a seniority system, and a committee system. As I have noted throughout this essay, various legislatures possess these traits to differing degrees. An interesting trend noted by legislative scholars in recent years is the apparent convergence of legislatures around the world. Certain common trends can be identified among legislative bodies that have traditionally had little in common.
While we have witnessed some convergence in terms of institutional direction among the legislatures of the world, individual legislatures have at the same time maintained distinct characteristics related to the history, culture, and character of the citizens they represent. What is important to keep in mind is that while legislatures have a crucial role to play in a democracy, they are not meant to dominate the government. They are large and sometimes unwieldy, their membership encompasses a multitude of interests, and their complex internal organization does not often lend itself to swift and decisive action. Ultimately, the most important task of a legislature in a democratic regime is to give legitimacy to the government by providing representation for the citizenry.
CLEAN AIR LEGISLATION IN THE UNITED STATES
The clean air legislation passed and signed into law in 1990 offers a useful illustration of the inner workings of the U.S. Congress. Compromise legislation on air pollution was finally reached after more than a decade of political stalemate on the issue. Ultimately, it took a delicate balancing of varied interests, including the administration, environmentalists, representatives of industry, and individual members with their own regional and constituent concerns, to develop a piece of legislation that everyone could live with.
The clean air legislation of 1990 was in fact a reauthorization of the original Clean Air Act passed in 1970. At the time of its passage, that act was hailed as the nation's most comprehensive and complex pollution control law. By the 1980s, however, many aspects of the law had become obsolete, others were not being adequately enforced, and the country's air was becoming more and more polluted.
While few people could dispute the importance of clean air, any major changes in the provisions of the law would inevitably have resulted in the loss of jobs for many Americans, as well as increased costs for industry and consumers. For many concerned interests that was a price they were not willing to pay.
Little progress was made in strengthening clean air legislation during the 1980s. Leading members in both the House and Senate used their influence to scuttle any attempts to force a vote on the issue, and Reagan administration officials did not wish to proceed.
In 1989, several factors came together that increased the potential for progress. First and foremost, the new administration under President George Bush came out strongly in support of the legislation and offered a fairly comprehensive proposal. In addition, George Mitchell, long a champion of clean air legislation, became majority leader in the Senate. He took over from Robert Byrd, who for years had discouraged action on the law, fearing constituents of his coal-mining state (West Virginia) would be hit hard by new restrictions. At the same time, public pressure was building for new legislation as concern started to grow over such issues as global warming and ozone depletion.
These factors helped overcome some of the remaining hurdles, such as parochial concerns and environmental and industry interests. Nonetheless, molding the legislation proved long and arduous. The bill President Bush had introduced in June 1989 was not signed into law until November 15, 1990.
The legislation addressed four major sources of air pollution: urban smog, automobile exhaust, toxic air pollution, and acid rain. Each of the components involved a complex set of requirements, regulations, deadlines, and penalties for noncompliance. Different regions of the country as well as different industries were affected to varying degrees by each of the bill's provisions. Compromises had to be made and bargains struck among representatives of these groups in order to ensure that a strong coalition could be held together.
The legislation worked its way through the House and the Senate, following somewhat different courses in each chamber (conforming to the differing rules and norms of each body, as well as to the personal interests of the key players involved). Throughout the process a dialogue was maintained with administration officials. Although the bill that ultimately emerged disappointed some environmentalists, Democratic leaders in Congress supported it, recognizing that it was the best they could hope for from a Republican administration. The president's primary concern was the cost of the legislation, and he made it clear throughout the process of negotiation that he would veto any bill that exceeded his prescribed cost limitations.
The legislation was nearly derailed in the Senate when former Majority Leader Byrd offered an amendment to which the administration was adamantly opposed. Byrd used his powerful position as chairman of the Senate Appropriations Committee to gather support for his effort. In the end, Byrd's amendment was narrowly defeated, 49-50.
On the House side, most of the contentious issues were worked out at the committee level, and debate on the floor was fairly brief. Few members viewed the legislation as perfect, but opponents saw it as largely inevitable and proponents hesitated to risk undermining its passage by attempting to tighten its provisions further.
A compromise was reached in the House-Senate conference and the presence of administration officials helped to speed the process along. The bill passed overwhelmingly in both chambers. Passage came at an opportune time for many members. With the off-year election only days away and a groundswell of negative public opinion building toward Congress as an institution, members could hold up this landmark piece of legislation as a positive product of the legislative system.
POLL TAX LEGISLATION IN BRITAIN
A brief look at Britain's Local Government Finance Bill, more commonly known as the poll tax, gives us some insight into how contentious pieces of legislation are dealt with in the British Parliament. The majority government, back-bench majority members, and the opposition all played a crucial role in the development and passage of this controversial legislation.
The poll tax was suggested by Britain's ruling government, headed by Prime Minister Margaret Thatcher, in 1987. It was, in essence, a proposal to change the way in which Britain's local authorities raised their tax revenue. More specifically, it was an attempt to replace existing "rates," or local property taxes, with two new taxes: one a flat-rate poll tax on domestic households, the other a nationally levied uniform business rate on commercial enterprises. The idea was based on the premise that each individual citizen should pay a uniform tax for local services from which all benefit equally.
Opponents of the bill argued that it was grossly unfair because it taxed rich and poor citizens at the same rate. The opposition in Parliament said the adoption of such a flat-tax proposal would represent "the abandonment of the principle of fairness in personal taxation."
In spite of widespread opposition to the bill inside and outside of Parliament, the majority government pushed the proposal forward. Sponsors of the legislation argued it was needed in order to correct the inequities of the current system of local financing. They argued further that a flat-rate system in which all citizens participated would bring about greater accountability on the part of local councils, suggesting that if individual voters are paying for the local services they receive, they will weigh more carefully the cost of what they are voting for. It follows that more eligible voters will vote when they know they will have to pay for the result. Furthermore, by instituting a flat tax rate, the government hoped to discourage voters from being lured by the promise of local councils to spend lavishly on the community with the revenues collected from wealthy individuals and local businesses. Finally, they contended that the change would relieve businesses from excessive local taxation.
Under normal circumstances, with the Conservative Party holding a strong majority of seats in Parliament, government-sponsored legislation would move through the legislative process relatively smoothly. Because opposition to the poll tax was so widespread and crossed over party boundaries, however, the fate of the Local Government Finance Bill was less certain.
During the bill's second reading, a group of Conservative back-benchers banded together to oppose the government's bill. This "mutiny" did not derail the legislation, but it did embarrass the government and encourage the opposition.
In the ensuing months, support gathered for a back-bench sponsored amendment to make the poll tax income-related. At one point there were rumored to be as many as 50 back-bench supporters for the amendment. When the Labor Party decided to back the amendment on a three-line whip, it looked as if the government might be defeated. In the end, what was described as "the biggest revolt by Tory back-benchers since the general election" (38 of them voted against the government and 10 more abstained) did not result in any significant amendment to the poll tax bill.
Opponents held out hope that the legislation might be derailed in Great Britain's upper house--the House of Lords. However, because finance-related bills are rarely altered in the upper house, the bill made it through virtually unscathed.
The history of the poll tax is instructive in several ways. It illustrates the limitations on the power of the ruling government. Although the legislation did become law, Prime Minister Thatcher was forced to make a few significant concessions, such as reducing the impact of the tax on the poorest citizens. It also shows the importance of back-bench and opposition opinion and the power that can be wielded when the two groups band together, as well as the limits to that power.
THE INFORMAL ROLE OF THE KENYAN NATIONAL ASSEMBLY
In many respects, Kenya is similar to other African states. Like many of its neighbors, it existed under British rule for more than 40 years, had a British model of government imposed upon it at independence, and soon became a one-party presidential state headed by a strong popular leader. In other ways, however, Kenya is unique. For instance, its parliament has taken on a much more active and vibrant role in the political system than has been the case in some other African countries. Thus, the Kenyan Assembly provides a valuable illustration of how a legislature can be effective and influential in a one-party presidential state.
According to some scholars, the National Assembly is the most important participatory institution created in Kenya at the time of independence. The Kenyan Assembly performs a wide range of functions within the political system, both formal and informal. A brief review of these functions will show that the informal tasks tend to outweigh the formal duties in terms of their overall importance.
The lawmaking function is not where the Assembly exerts its greatest influence. The cabinet has the primary responsibility for policymaking and lawmaking, and the president and his key officials have little trouble pushing their legislative agenda through the Assembly. Legislation is often presented to the Assembly as a fait accompli, allowing little if any opportunity for legislative review or analysis. In some cases where the Assembly has tried to assert its independence on legislative matters, usually through the mechanism of a select committee, members disloyal to the government have been punished, pressured, or even removed from their seats. Moreover, the legislature has no authority over budgetary or spending policy, which reduces its overall influence even further.
This is not to suggest that the Assembly has no influence over policy decisions. Legislators can assume a role in defining and clarifying policy goals and in promoting policy alternatives. And the legislature remains a forum for criticism of government policy and for populist, even radical, rhetoric.
The real power and influence of the Assembly comes through the exercise of its informal powers. The most important informal function the legislature performs is to provide legitimacy to government actions. This in turn promotes support among the populace for the regime. The legitimizing function is vital in light of the revolts and bouts of instability that have plagued other nations in the region. By accommodating cultural and historical realities, the Kenyan Assembly allows for opposition and dissent within the system, yet also provides stability. As a result, the populace feels at ease about the strength and legitimacy of the system; at the same time, it feels it has some say in the political process.
While providing legitimacy may be the legislature's more important function in terms of the stability of the governmental system, it is not its only function, and that is how it differs from rubber-stamp legislatures such as that of the former Soviet Union. Members of the legislature play an important representative role by serving as a liaison between the government and the populace, providing important constituent services and articulating the demands of special interests. Because they have performed this role so effectively, many representatives have become virtual patrons, servicing the needs of constituents who have become their clients.
Another important function of the legislature is recruitment. The Assembly is a breeding ground for future national leaders. In fact, the party has ceased to be an agent for recruitment; the Assembly has assumed this role.
The legislature also serves as the primary outlet for political participation and expression and as a symbol of equitable representation. Even though the representatives are often unable to influence the policy outcomes of the government, they do provide their constituents with access to the system and a voice in the process, whether it be in support or dissent.
At first glance, the role of the Kenyan Assembly may seem meager compared with the powers and prerogatives of the U.S. Congress or the British Parliament. Nonetheless, the Assembly has survived the difficult transition to democracy, while the legislative bodies of some neighboring African countries (such as Uganda) have not fared as well. The Assembly's greatest strength lies in its ability to build unity in the nation and provide legitimacy for the regime, while at the same time steering government policy and acting as a check on executive power.
THE DEMOCRATIC TRADITION IN BOTSWANA
Africa is a diverse continent made up of countries with vastly different historical and cultural traditions. As a result, democracy has taken on different forms in the various African nations in which it has been adopted. In some countries, where democracy is not rooted in tradition, it has been transformed into a military dictatorship or a one-party state. In other countries, where a modern democratic system has meshed with the traditional system of governance, the transition has been fairly smooth, and democratic institutions have flourished.
Botswana is one country that inherits a strong democratic tradition. Historically, Botswana's political system was highly centralized under the ruler or chief, but the system remained open because of the important role played by the legislature, traditionally called the lekgotla. The lekgotla served as a central organization to which all citizens had access. It was the heart of the governmental system, with the chief acting as a chairman of sorts, overseeing the activities of the lekgotla. This system, which was in place at the national, regional, and local levels, provided for effective government at all levels.
This system remained largely intact during the colonial period, and when Botswana achieved independence in 1966, it adopted a constitutional system with an eye toward preserving these traditions. The Constitution vested extensive powers in a president, to be supported by a democratic base. In addition, it established a popularly elected National Assembly and a House of Chiefs (to act as an advisory body to the National Assembly on prescribed issues). Today, the legislature remains the central forum where public affairs are conducted and issues of national interest are discussed and debated.
Scholars argue that Botswana has been successful in its transition to a democratic system of government because the basic concepts of democracy were already an integral part of that country's traditions. Today, Botswana has a vibrant multiparty system supported by a solid constitutional and institutional framework, where free expression and open debate are encouraged and where dissent is expressed through various opposition parties. It is true that the ruling party in Botswana has held power without interruption since independence and that the strength of the opposition parties is limited. Nonetheless, the fact remains that political power is rooted in popular support rather than the rule of law. There is room for dissent and a role for the opposition, and the ruling leaders are prepared to relinquish their power at any time if that is what a majority of the people desire.
at-large election -- an election in which candidates are chosen on an individual basis rather than as representatives of a geographically defined, single-member district. At-large elections can be held at the legislative and presidential levels. In the United States, some states hold at-large elections for congressional seats, when, for instance, a state's entire population warrants only one representative. Some countries hold at-large elections when choosing an executive. In these cases, voters cast their ballots en masse rather than as part of a designated voting bloc.
back-bencher -- any member of parliament who is not a leader of the ruling government or of the opposition. These members, even if they belong to the majority party, have little influence over the legislative process.
bicameralism -- a legislative system made up of two separate chambers, each serving as a check on the other's power. In most cases, the members of each chamber are elected on a different basis. For example, in the U.S. Congress, two senators are elected from each of the 50 states, whereas the number of House members assigned to each state varies according to the state's population.
caucus -- a meeting of the members of a political party to decide questions of policy, establish internal rules and structures, and elect the party membership.
second reading -- a stage in the process of considering a bill in parliament. A bill is read for the first time when it is introduced; it is then printed and read again. During the second reading, the general principles of a bill are debated; a detailed discussion of the bill's specific provisions is reserved for the committee or report stage. The opposition may vote against a bill after its second reading.
three-line whip -- "whip" refers to a member of parliament chosen by his or her parliamentary party to keep members informed about day-to-day parliamentary business, to maintain the party's voting strength, and to convey to the leadership the opinions of back-bench members. "Whip" also refers to the weekly publication sent out by the chief whip to all party members informing them of upcoming business and requesting their presence at certain meetings. The "three-line whip" relates to the relative importance attached to a given debate or division. If an item in the weekly publication is underlined three times, it is considered extremely important, and failure to attend is generally seen as a rebellion against the party's policy.
SOURCES OF FURTHER INFORMATION
Here is just a sample of the many resources available to help people learn more about the role of the legislature in a democracy.
Bradshaw, Kenneth, and David Pring. Parliament and Congress. London: Quartet Books, 1972.
Chaleff, Ira, et al. Setting Course: A Congressional Management Guide, third edition. Washington, D.C.: Congressional Management Foundation, 1988.
Congressional Quarterly. Guide to Congress, third edition. Washington, D.C.: Congressional Quarterly, Inc., 1982.
Greenstein, Fred I., and Nelson W. Polsby. Handbook of Political Science. Volume 5: Governmental Institutions and Processes. Reading, Massachusetts: Addison-Wesley, 1975.
Ornstein, Norman J. The Role of the Legislature in Western Democracies. Washington, D.C.: American Enterprise Institute for Public Policy Research, 1981.
Schwarz, John E., and L. Earl Shaw. The United States Congress in Comparative Perspective. Hinsdale, Illinois: The Dryden Press, 1976.
Thayson, Uwe, Roger H. Davidson, and Robert G. Livingston, Eds. The U.S. Congress and the German Bundestag. Boulder, Colorado: Westview Press, 1990.
Valeo, Francis R., and Charles E. Morrison, Eds. The Japanese Diet and the U.S. Congress. Boulder, Colorado: Westview Press, 1983.
Wootten, Graham. Pressure Politics in Contemporary Britain. Lexington, Massachusetts: Lexington Books, 1978.
Congressional Management Foundation
513 Capitol Court, N.E., Suite 100
Washington, D.C. 20002 USA
Telephone: (202) 546-0100
Fax: (202) 547-0936
The Congressional Management Foundation offers management training programs for members of the U.S. Congress and their staffs, publishes books related to congressional management, and consults with members of Congress on specific management issues.
Congressional Quarterly, Inc.
1414 22nd Street, N.W.
Washington, D.C. 20037 USA
Telephone: (202) 887-8500
Fax: (202) 728-1863
In addition to its weekly journal, Congressional Quarterly Weekly Report, which provides news and analysis on the legislative, budget, and political processes, CQ produces a wide range of publications on Congress. CQ also offers courses and seminars for professional development in government and politics through its Professional Education Service.
International Republican Institute
1212 New York Avenue, N.W., Suite 900
Washington, D.C. 20005 USA
Telephone: (202) 408-9450
Fax: (202) 408-9462
Through financial, technical, and organizational support, the Institute seeks to assist indigenous organizations in building foundations of democracy in countries where development has been stunted by command economies and monopolistic political structures. The staff provides training in leadership development, communications strategy, policy research, political-party building, and election processes.
Library of Congress
101 Independence Avenue, S.E.
Washington, D.C. 20540 USA
Telephone: (202) 707-2905
Fax: (202) 707-9199
The Library of Congress offers the largest collection of books and resources in the United States. In addition, the Library's Congressional Research Service provides a model of how a legislature can utilize the centralized staff and resources of a large research institution for the purpose of legislative research and policy-making.
National Democratic Institute for International Affairs
1717 Massachusetts Avenue, N.W., Suite 503
Washington, D.C. 20036 USA
Telephone: (202) 328-3136
Fax: (202) 939-3166
Designed to help strengthen democratic institutions in new and emerging democracies, this institute has organized legislative seminars focusing on legislative procedures, staffing, research information, constituent services, and committee structures in Eastern Europe, Latin America, and Africa. It also publishes a series of books based on its experiences in developing democracies.
About the Author: Norman J. Ornstein is a resident scholar at the American Enterprise Institute for Public Policy Research in Washington, D.C. He received his B.A. from the University of Minnesota and his M.A. and Ph.D. from the University of Michigan. He has worked at different times on Capitol Hill, serving most recently as the staff director of the U.S. Senate's Select Committee to Study the Senate Committee System in 1977. He has written, edited, and co-authored a number of books, including Vital Statistics on Congress (now in its sixth edition), The New Congress, and The Role of the Legislature in Western Democracies.
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