Executive Participation in Legislation as a Means of Increasing Legislative Efficiency By JAMES W. GARNER University of Illinois Reprinted from the Proceedings of the American Political Science Association , IQI3-IQI4 / \ 0 3 \ Digitized by the Internet Archive in 2017 with funding from University of Illinois Urbana-Champaign Alternates i https://archive.org/details/executiveparticiOOgarn Reprinted from The Proceedings of the American Political Science Association, 1913-1914 EXECUTIVE PARTICIPATION IN LEGISLATION AS A MEANS OF INCREASING LEGISLATIVE EFFICIENCY BY JAMES W. GARNER University of Illinois I think we hazard nothing in saying that the problem of efficient legis¬ lation under modern conditions is one of the most difficult tasks of gov¬ ernment. This is due partly to the unwieldiness of overgrown legis¬ lative assemblies and the lack of responsible leadership; partly to the enormous demand for legislation, to meet which overtaxes the legis¬ lative machine; and partly to the complexity and intricacy of modern legislation, which enhances the difficulty of framing statutes and re¬ quires an amount of technical knowledge which the average legislator does not possess. A legislative assembly composed of five or six hundred members without an effective organization and without recognized and responsible leaders is not very unlike a mob. Such a body, like other mobs, must be guided and led if it accomplishes its work. Mr. Bryce has indicted the possible solutions of the problem of legis¬ lation by assemblies of this character . 1 One is to restrict the action of the assembly to a comparatively few simple matters, reserving the others to a smaller body or to the executive. This was the method of the Romans, whose comitia had merely the power of adopting or rejecting measures proposed by the magistrates . 2 In a modified form, it was also the method of the French during the second Empire, when the laws were drafted by the council of state and laid before the legislature by the Emperor, who alone had the right of initiation . 3 The second solution is for the legislature to delegate the power of legislation to a single commit¬ tee composed of members who are at the same time the chief officers of the executive department, the chamber merely retaining the right of veto. This is the system actually followed in England and to a less de¬ gree in other countries where the true parliamentary system is in force. A third solution is for the assembly to divide itself into a number of committees among which all legislative projects are distributed and which 1 The American Commonwealth, vol. i, pp. 156-157. 2 Compare Pelham, Outlines of Roman History, pp. 159-161. 3 Constitution of 1852, title iii, sec. 8; title vi, sec. 50. 176 AMERICAN POLITICAL SCIENCE ASSOCIATION 177 sift out such as in their judgment are worthy of being enacted into law. These measures and these only are usually adopted by the assembly. This is the American method. Of these three methods, the first may be ruled out of consideration, leaving the choice to be made from the last two. The parliamentary system in one form or another is the solution which has been adopted in the vast majority of countries, whether they be monarchies or republics, whether they have written or unwritten con¬ stitutions. In some of them, the ministers are at the same time members of the legislature; in others they are not, yet practically everywhere they have seats in the legislature with the right to initiate legislation and to be heard whenever they demand it. 4 Wherever large and unwieldy assemblies have attempted to legislate as a whole without the initiation and guidance of leaders, they have not succeeded. Mr. Sidney Low in his The Governance of England 5 has pointed out how the power of legislation in the house of commons has gradu¬ ally shifted from the house as a whole to the ministry, and Sir Courtenay Ilbert, President A. L. Lowell and Mr. James Bryce have dwelt upon the increasing tendency of parliament to delegate the power of sub¬ sidiary legislation to the executive officers. “The house,” says Mr. Low, “is scarcely a legislating chamber, it is a machine for discussing the legislative projects of ministers.” Lord Salisbury, who spoke with the knowledge which comes from long experience, said in a speech at Edin¬ burgh in 1894; “We have reached the point where discussion is possible in the cabinet, but for any effective or useful purpose, it is rapidly be¬ coming an impossibility in the house of commons.” The house is now little more than a “ventilating chamber.” Its most important function, as Mr. Low remarks, and as Mr. Bagehot many years ago pointed out, 6 is selective, that is its chief role is the choosing of leaders whom the house obeys and follows. It proceeds on the theory that its principal task is to get good laws made, not to make them itself. In theory the right of 4 This is true in Austria, Belgium, Brazil, Chili, Costa Rica, Colombia, Denmark, France, the German Empire, Great Britain, Greece, Gautemala, Honduras, Hayti, Italy, Mexico, The Netherlands, Nicaragua, Norway, Portugal, Prussia, Spain, Sweden, Switzerland, and Salvador. The Constitution of the Southern Confed¬ eracy seems to have contemplated the introduction of parliamentary methods since it authorized congress to grant the right to cabinet ministers to occupy seats in either house with the privilege of discussing any measure pertaining to their departments. 6 Page 75. • The English Constitution, 2d edition, pp. 200-201. 178 PROCEEDINGS OF THE every member to introduce bills and to have them passed by the house remains, but in fact, four-fifths of all the bills that are passed—nineteen- twentieths of those that are of any great importance, are passed upon the initiation and at the instance of the cabinet, that is, the executive. 7 The attempt of the French chamber itself to legislate as well as to govern, and its disinclination to follow its chosen leaders are doing more than anything else to undermine the parliamentary system in that country. The French political writers are unanimous on this point. What has happened in the house of commons is likely to happen in every overgrown legislative assembly where the demands for legislation are enormous, be¬ cause experience is more and more demonstrating the truth of Hamilton’s saying that “in all legislative assemblies, the greater the number com¬ posing them, the fewer the men who will, in fact, direct their proceed¬ ings.” 8 We are beginning to appreciate the force of John Stuart Mill’s saying that a distinction should be made between legislating and getting good legislation enacted and that “the only task to which a representa¬ tive assembly can possibly be competent is not that of doing the work itself but of causing it to be done; of determining to whom or to what sort of people it shall be confided and of giving or withdrawing its na¬ tional sanction of it when performed.” 9 The thing which distinguishes the legislative organization and pro¬ cedure of the United States from that of practically every other country is the almost complete disjunction of the legislative department from the executive department. 'The Constitution debars cabinet ministers from membership in bottr houses and parliamentary practice denies them the entree thereto either for the purpose of introducing bills, for defending the executive against attack, for furnishing information, or 7 Testimony of James Bryce before the committee of the house of representa¬ tives on various bills proposing the establishment of a congressional legislative reference bureau. Hearings, February 26, 1912, p. 8; cf., also, Sir Courtenay Ilbert, Legislative Methods and Forms, p. 215, for a table of statistics showing the number of government bills and private members’ bills passed. For example, in 1900, forty-nine government bills were passed and only fifteen private members’ bills. 8 The Federalist, No. 58, Ford’s ed., p. 389. 9 Representative Government, (Universal Library edition), pp. 85,95. See p. 96 for his proposal that legislation should be delegated to a small permanent legisla¬ tive commission. Compare also his autobiography pp. 264-265 where he says, "there is a distinction between the functions of making laws, for which a numerous popular assembly is radically unfit, and that of getting good laws made, which is its proper duty ani cannot be satisfactorily performed by any other authority.’’ AMERICAN POLITICAL SCIENCE ASSOCIATION V 179 for participating in debate. The power to recommend measures for the consideration of the legislature ordinarily means little to an execu¬ tive who cannot in person or through his ministers appear in the chamber for the purpose of explaining and advocating the adoption of his recom¬ mendations, and to one who belongs to a party which is in the minority in the legislature it means still less. The result is, executive messages have more and more degenerated into perfunctory summaries of depart¬ mental conditions or lengthy rhetorical discourses through which the executive addresses the great American public upon various political, economic and social questions, some of which lie quite without the juris¬ diction of the national legislature. While the veto power may be used to prevent bad legislation, it cannot be employed for the purpose of compelling legislative action, to carry out the pledges of the party by whom the president has been chosen. It is not a means of leadership or control. \In the beginning, a procedure akin to parliamentary methods was aWally followed by congress. The law organizing the treasury de¬ partment made it the duty of the secretary of the treasury to “make report and give information to either branch of the legislature in person or in writing respecting all matters referred to him by either house or which shall appertain to his office.” In the debates on the bill, it was objected that it would result in the introduction of the parliamentary system and the assertion was not denied. In practice, the cabinet mem¬ bers frequently appeared in the house for the purpose of giving informa¬ tion and advice and for consultation. 10 Hamilton, especially, assumed the role of a crownjninister, and his example was followed by other cabi¬ net members. 11 (At the time, all branches of the national government were housed in thS^ame building, so that easy communication between the executive and legislative departments was greatly facilitated; in fact, they were in almost as close touch, says Professor Ford, as if the cab¬ inet officers had been members of congress. 12 For some years these close relations were maintained, and the cabinet ministers exerted an impor¬ tant influence in the shaping of legislation. 13 When finally the connec¬ tion was definitely severed and the cabinet members excluded from congress, there were some who regarded the change with deep regret. 10 See the annals of the first congress, pp. 66, 51, 684, 689. 11 Ford, Rise and Growth of American Politics, p. 81. 12 Ibid., p. 226. 13 Compare McConachie, Congressional Committees, pp. 221 et seq., also Follett, The Speaker, pp. 319, 327, et seq. 180 PROCEEDINGS OF THE Fisher Ames, for example, speaking of the abandonment of the early practice said: The heads of departments are chief clerks. Instead of being the min¬ istry, the organs of the executive powers, and imparting a kind of mo¬ mentum to the operation of the laws, they are precluded even from com¬ munication with the House by reports. In other countries they may speak as well as act. We allow them to do neither. We forbid them even the use of a speaking-trumpet; or more properly, as the Consti¬ tution has ordained that they shall be dumb, we forbid them to explain themselves by signs. Two evils, obvious to you, result from all this. The efficiency of government is reduced to a minimum—the proneness of a popular body to usurpation is already advancing to its maximum; committees already are the ministers; and while the house indulges a jealousy of encroachment in its functions, which are properly deliber¬ ative, it does not perceive that these are impaired and nullified by the monopoly as well as the perversion of information by these committees. It is not at all improbable that the full parliamentary system would have been introduced in the beginning had it not been for the widespread fear of executive domination and tyranny due to the arbitrary conduct of the crown and of the colonial executives in America which had pro¬ duced very strained relations between them and the legislative assem¬ blies. The result was that the English cabinet system was in more or less disrepute in America. In its existing form, it possesses many features, as Mr. Wilson remarks, that did not invite republican imitation. 14 To most Americans, the English constitution was that of George III and Lord North rather than that of the Whigs, and the ministry was looked upon as a coterie of royal favorites who were controlled by the crown rather than by the house of commons. Under these circumstances, it was difficult to believe that the legislative and executive branches could be brought into close relations without the legislature being dominated by the executive. To avoid the danger of executive domination, it was thought necessary to establish a system of checks and balances such as the parliamentary system did not afford, and to the Americans of the latter eighteenth century, this required the complete separation of the executive and legislative departments. Moreover, the English parlia¬ mentary system was immature and operated in practice with far less smoothness and success than it does today. Mr. Bryce ventures the opinion that it was not adopted by the Americans because they did not know of its existence; and that they did not know of its existence be- 14 Congressional Government, pp. 308-309. AMERICAN POLITICAL SCIENCE ASSOCIATION 181 cause it was still immature, because Englishmen themselves did not un¬ derstand it and because the recognized authorities did not mention it. 15 The authors of the constitution were seduced by the theory of a French¬ man 16 into believing that it was not only possible to separate the legisla¬ tive and executive departments, but that their disjunction was one of the essential conditions of liberty—a theory that was clearly disproven by the experience of the English constitution from which he drew his illus¬ trations. 17 The founders underrated the inconveniences which are inseparable from the disconnection of the two departments and exagger¬ ated the dangers from establishment of close relations between them. They carried the principle of separation so far that they sacrificed not only the efficiency which comes from mutual collaboration and respon¬ sible leadership, but each department was made weaker within its own sphere. 18 Nevertheless, as I have stated, quasi parliamentary methods were, in the beginning, followed in practice. The first rules of the house contained no provision for committees, although later in the session provision was made for a committee on elections. As the membership of the house increased and the demands for legislation became more numerous and pressing, the number of committees was gradually mul¬ tiplied until today there are nearly as many committees in the house as there were representatives in the first congress, and each is to all in¬ tents and purposes a miniature legislature in itself. From being a real legislative body, the house has more and more become a huge panel from which the actual legislative organs are selected. Each committee goes its own way without regard to the others; their jurisdictions often over¬ lap; and none are responsible for the legislation which they recommend. The disadvantages of such a system are evident: lack of cohesion and harmony, loss of responsibility, waste of energy and patchwork legis¬ lation. Committee hearings are public, but their deliberations are se¬ cret and the debates are unreported. The light of the nation cannot be focused upon the doings of sixty or seventy such bodies; the public, therefore, must be content with the information which it gets from the debates in the house, and these are, to a large extent, irrelevant oratori- 16 The American Commonwealth, ed. of 1910, vol. i, 286. 16 Madison stated in the Convention that Montesqieu was the “oracle always consulted,” ( Federalist , Ford’s ed., p. 320). 17 Madison himself pointed out that “on the slightest view of the British con¬ stitution” the departments were not separate and that the theory was subject to many exceptions and limitations. Ibid,., p. 327. 18 Cf. Bryce, American Commonwealth, vol. i, p. 288. 182 PKOCEEDINGS OF THE cal performances intended for the edification of the galleries or for par¬ ticular constituencies rather than serious discussion of the merits of proposed legislation. As is well known nine-tenths of the measures reported by the com¬ mittees are approved by the house and practically none which are not favorably recommended by them have any chance of being enacted into law. The result is the committees have become the real legislative bodies, and the congress as a whole a mere ratifying organ. That such a system of legislation is a satisfactory solution of the problem of legis¬ lation, scarcely anyone will seriously pretend, and it cannot be expected to endure permanently. The evils have been dwelt upon by many writers. 19 Under such a system, the house is guided by a multiplicity of leaders, which is equivalent to saying that it is without leaders in any real and effective sense. In the course of the evolution of the committee system, the necessity for leadership was in some degree met by the con¬ centration of authority in the speaker and the committee on rules, that is to say, the house tended to shift the responsibility from a multi¬ tude of leaders to a single committee controlled by the presiding officer. But against this solution the majority of the house rebelled, and the leadership of the speaker and of the committee on rules has recently been repudiated. Another solution must, therefore, be found; the house must have authoritative leaders; it cannot be led by sixty odd committees. 20 There must be some single smaller body for examining, sifting, and choos¬ ing from among the enormous mass of bills with which congress is now almost continually overwhelmed, and for steering through the house the measures for which there is a real need. The solution for which there is an increasing popular demand consists in the introduction of executive leadership and responsibility. To accomplish this change, it is not necessary to alter the Constitution or to enact a statute; it can be brought about as well by parliamentary custom. 19 Notably by Bryce, “ The American Commonwealth,” vol. i, chs. 14-15; 20-21, Wilson, Congressional Government, chs. 2, 5; also his Constitutional Government, chs. 3-4; Godkin, Unforeseen Tendencies in Democracy, pp. 96-145; Ford, Rise and Growth of American Politics, chs. 18-22; Macy, Party Organization and Machinery, chs. 3-4. Compare, also, the following remarks by Mr. Henry L. Stimson, criti¬ cizing the committee system, ( The Independent, 1913, p. 1225). “Tremendous powers are exercised in secret by men who, neither as committeemen nor as congress¬ men, are responsible to the country at large. Congress is at the mercy of any in¬ dividual or private interest which can get before any of these committees, and on an ex parte hearing impress the committeemen with a desirability of an appro¬ priation. Such legislative methods simply invite demands for improper favors.” 20 Compare especially on this point, Wilson, Congressional Government, ch. ii. AMEKICAN POLITICAL SCIENCE ASSOCIATION 183 < As I have said, these departments are now almost entirely disjoined; tlife/only connection is through the committees and this connection is wholly unofficial and entirely dependent upon the willingness of the com¬ mittees to enter into relations with the President or with the heads of departments. The maintenance of a certain relationship between the two branches is absolutely necessary, 21 and in practice these relations are and always have been more extensive and intimate than is generally supposed, 22 but they are entirely dependent upon the invitation of the committees themselves, are unofficial and more or less secret in character. As it is, the policies of the executive are frequently subjected to severe criticism in Congress and this criticism is often based upon misinfor¬ mation or misunderstanding, yet the President has no official spokesman on the floor to answer, explain or defend. Although the chosen leader of his party and more and more regarded by the public as responsible for the fulfillment of past pledges to the nation, he is by his very exclu¬ sion from the legislature deprived of the power of leadership which makes and effective. 23 and cooperation may be secured by the following 1. By the restriction of executive messages or addresses, as they now are, to a few definite recommendations embodying the policies in favor of which the party has pronounced in its platform or those for which the President is willing to assume the responsibility. If this were done, congress would treat the recommendations of the President more seri¬ ously and not as mere perfunctory suggestions or popular addresses in¬ tended mainly for the country. The general public would take a deeper interest in the executive address because of its brevity and its definiteness and this would induce the formation of a more definite public opinion to which, if it were in support of the measures recommended, the President might appeal with greater effectiveness in his efforts to compel legisla¬ tive action. 21 Compare, Follett, The Speaker, pp. 327-329. 22 “The usage from the commencement of the government” said Mr. Cambreling, chairman of the ways and means committee in 1837, “has been for the committee through its chairman to consult the head of the department in regard to such meas¬ ures as he may recommend for the consideration of Congress, for the secretary to attend upon and confer with the committee, if invited, and to furnish the drafts of bills embracing his own proposals, when requested to do so.” McConachie, Congressional Committees, p. 223. 23 Compare Macy, op. cit., p. 25, and Wilson, Constitutional Government, pp. 67, jsibility real leadership wh b h^ ds: 202. 184 PROCEEDINGS OF THE 2. By allowing the executive the right to initiate bills and by giving precedence to administration bills over other measures, as is the prac¬ tice in countries where the parliamentary system prevails and which is now the practice in the legislature of Illinois. 24 This done, let the major¬ ity in congress frankly recognize the leadership which the country has conferred upon the President, as well as the responsibility which the nation more and more insists that he shall bear. Writing when he was yet only a student of politics, Mr. Wilson says: So far as the government is concerned there is but one national voice in the country, and that is the voice of the President.He alone is chosen by the nation at large. Representatives are the elect of petty constituencies and the senators are chosen by the states; he is, therefore, the only spokesman of the nation, the leader of his party, and he cannot escape that leadership except by his own inca¬ pacity.Leadership in government naturally belongs to the executive officers who are daily in contact with practical conditions and exigencies, the law making part of the government ought, therefore, to be very hospitable to suggestions from the executive department in re¬ gard to legislative needs. 25 24 A rule adopted by the Illinois house of representatives at its last session reads as follows: “When any bill or resolution is introduced for the purpose of carrying into effect any recommendation of the governor, it may by executive message addressed to the speaker of the house be made an administrative measure. The administrative measure may be sent to the appropriate committee or it shall upon request of its introducer, be sent to committee of the whole House. When such a measure had been reported out of committee, it shall have precedence in the con¬ sideration of the house over all other measures except appropriation bills. The house shall sit in committee of the whole for the consideration of administration measures on Tuesday morning immediately after reading of the house journal.” “The purpose of this rule” says Senator Hull, its author, “is obvious. It is intended to give assurance to the governor that measures which he recommends will be given fair consideration and by such assurances to impose upon him the obligation to have a legislative program. By so doing, it is hoped to give greater significance to party platforms and to make in some small degree for party re¬ sponsibility and party government.” American Political Science Review, May, 1913, p. 239. 28 “Some of our Presidents” says Mr. Wilson, “have deliberately held themselves off from using the full power they might legitimately have used, because of con¬ scientious scruples, because they were more theorists than statesmen. They have held the strict literary theory of the Constitution, the Whig theory, the Newtonian theory, and have acted as if they thought Pennsylvania Avenue should have been still longer than it is; that there should be no intimate communication of any kind between the capitol and the White House; that the President as a man was no more at liberty to lead the houses of congress by persuasion than he was at liberty as President to dominate them by authority—supposing that he had, what he has not, authority enough to dominate them.” AMERICAN POLITICAL SCIENCE ASSOCIATION 185 f 3. By permitting the cabinet members to occupy seats in either house o#-e