Stephen C. Woodworth has undertaken to write a series of articles on the role of legislators in the democratic process and its results. His perspective is both as a practitioner (a former MP) and an academically-minded lawyer (MAP). Opposition international will publish them on a weekly basis, then compile them for use as a booklet.
Stephen’s first article was published on July 13, 2023. https://opposition.international/2023/07/13/what-difference-do-effective-democratic-legislators-make-part-1/
As the first part’s introduction (below in italics) stated, Stephen has set out to look at the broader benefits of legislative constraints upon executive power. These benefits bring such social utility that they would be embraced by all legislators, the government bench (and backbenchers) as well as the opposition benches. Opposition this takes on a broader, less specifically party, meaning.
In a world where even democratic governments struggle with the tendency toward reduced restraint on strong executive powers, it’s laudable that an organization has arisen seeking to provide insight and tools which strengthen those whose mission is to oppose unrestrained executive power. I am speaking, of course, about Opposition International.
Ever the contrarian, I want to examine some questions of interest to Opposition International, but from a slightly different perspective. I’m going to address some remarks to those who aren’t in opposition but, rather, who are members of political parties which occupy executive offices of government. I think opposition members will be interested in my observations too. This mutual interest possessed by both governing party members and opposition party members will, I hope, become apparent in the course of what I write
Reading Stephen’s widened scope led me to do two things that are related, if distinct. Both very important and useful. First, Stephen’s POV suggests that Opposition International could widen its focus to a broader meaning of Opposition. Nothing would be subtracted from the existing organizational focus on the political parties and their mandate for legislative review and policy formation. What would be added is both concern for broader issues of constitutional engagement, and how to bring those concerns into practical politics, and, okay yes. the ongoing political fight.
For example, the OI headline in our new Threads account in Meta has been re-written. https://www.threads.net/@opposition.international
“Opposition International is a nonprofit about the leaders, parties, and contributors who make an Opposition the core of democratic accountability.”
The tag line still needs work but it has improved.
That led to another insight that democracy today means two things a) that legislators hold the executive to account and b) that legislators represent the people by virtue of the political will expressed in elections. And, that a) preceded b) both in time and importance.
As I started to look at a) a legislature holding an executive to account whatever the degree of democratic representation, it was soon clear that in my context the ball started with the Magna Carta of 1215. That led me swiftly to Magna Carta with a new commentary (2015) by David Carpenter. In particular, Chapter 10 Development of the Opposition Programme.
The past has a relevance to today’s rise of autocracy that startles me and should do the same to you. As a taste of how Stephen’s work will inform and guide OI’s work, find a link to my commentary on Mr. Pita’s struggle with the military junta in Thailand to assume his rightful role as Prime Minister. Below find my words of encouragement when he said far more politely than me the same sentiment.
After all that thinking and revising after Part I of Stephen’s articles, I look forward to reading Parts II and III. Readers are encouraged to send in their comments.
Expect to see Part III in a week’s time.
Part II of Stephen C. Woodworth’s “What Difference Do Effective Democratic Legislators Make?”
INTRODUCTION
In Part I of this series I promised to examine some questions of interest to Opposition International, but from a slightly different perspective addressed to those not inopposition but, rather, who are members of political parties which occupy the executive offices of government. I offered to illuminate what I believe to be matters of mutual interest to legislators both within opposition parties and within parties holding executive control. I also set the stage in Part I by reviewing my deep concerns about recent backsliding in democratic practices and institutions in my country, Canada. I proposed to offer my perspective, as an academic and a former legislator, on the analysis and theory of democracy concerningthe role of legislators.
Now I want to review the foundations of a democratic legislator’s role, as a guide for how to make an effective difference. After that, I’ll consider the implications and importance of those foundations for the conduct of both opposition party legislators and government party legislators.
The practices and institutions I’m about to describe might at first seem academic and complex, the way the step-by-step assembly instructions you receive when you buy a new barbecue can seem complex. If you persist, and read to the end, I hope you will find the final picture emerges for you just as clearly and as simply as the fully assembled barbecue does, workable and obvious. I promise my final installment will seem quite simple by comparison, once the complicated parts have been reviewed!
THE “MEZEY QUESTION”
As one author observed, “…. the praise of parliaments, like hymns, has been sung by democrats the world over. No democracy would be without one.” (Arter, 2006, “Introduction: Comparing the legislative performance of legislatures,” Journal of Legislative Studies, Volume 12, p. 245).
Does the existence of a robust legislature really matter? If so, why? What does it look like when a legislature withers away? How dire are the consequences? Those who are steeped in liberal democratic traditions hardly need ask such questions. For them, the answers are self-evident. In today’s world, perhaps that isn’t so for everyone.
Why does a legislator’s role matter? The first answer is that defence of fundamental rights and liberties is a basic constitutional requirement of every democracy. Second, significant lack of legitimacy can develop when the responsiveness, accountability, transparency, and inclusiveness functions I’m about to describe are impaired.
Here’s a mouthful, but a highly important one:
The democratic project aims for the solidarity and legitimization of the social integration of a differentiated society through the self-governance of collective will-formation which reconciles individual autonomy with collective autonomy through the instrumentality of an administrative state vested with the power of positive law.
Few features of human relationships are as important to the quality of life of individuals and societies as autonomy and social solidarity, on which the success or failure of democratic systems bears directly, and the performance of legislatures is a central feature of any democracy.
The importance of legislatures highlights the necessity to guard against impairment of legislative functions. If legislatures matter, then impairment of their function and their corresponding subjection to executive dominance is a matter of grave importance. It has been suggested that political institutions which deliver a basic democratic threshold ensure “domestic democratic peace,” with reduced repression following from reduced political discretion wielded by authorities, an increased capacity of citizens to punish rulers for undesirable activity, decreased willingness of leaders to engage in repressive behaviour, and the provision of alternate mechanisms to influence society. It follows that lack of those same institutional mechanisms, which are provided by effective legislators, tends toward failure to sustain that democratic threshold and toward an increased scope for repression.
Michael L. Mezey, well-known for his analyses of democracy, famously asked the question,” “How much policy-making power does a legislature have?” In answering that question, it’s helpful to distinguish between legislative capacity, which flows from its electoral rules, structure, and procedural rights in matters such as legislative enactment, agenda control and veto, on the one hand, from a legislature’s actual performance or output which can range “from “arena legislatures” or ”legitimizing assemblies”, which are merely debating or ratifying bodies, to “transformative legislatures” or “policy-making legislatures,” which possess the independent capacity to mould and transform proposals into law,” on the other hand. This point has been made by David Arter and I agree with his suggestion that actualperformance offers clearer systematic measurement of legislators’ power than merely their formal capacity. In other words, we need to examine whether legislators “walk the talk”!
WHAT MAKES DEMOCRATIC SYSTEMS WORK?
There is some disagreement over what makes a democracy, but broad agreement that democracy must offer at least minimal or procedural political and civil rights. At least three distinct kinds of mechanisms contribute to that, with inherent tensions and interrelations between them: (a) ‘input’ mechanisms of citizen participation in deliberative, direct, or representative processes with corresponding government responsiveness, (b) ‘throughput’ mechanisms of articulation, inclusion and accountability in collective will-formation, and (c) ‘output’ mechanisms of citizen protection and perception that enacted political policy is directed toward achieving the common good. These correspond to Abraham Lincoln’s famous tripartite formulation that democracy is about “government of the people, by the people, and for the people, …”
Here’s another highly important mouthful:
Legislatures are one form of throughput mechanism, constituted by electoral input, and sometimes working in combination with processes of direct democracy and of deliberative democracy, to achieve the democratic aim of collective political will-formation by linking communicatively generated citizen preferences with the administratively utilizable executive power of policy responsiveness through legislative enactments.
Legislatures inseparably fuse representational function with policy-influencing function to produce collective will-formation. For example, receiving petitions or receiving evidence at a Committee level serves a representational function by enablingthe transmission of ideas and, when reported to the plenary body, may also serve to influence policy decisions. As another example, questioning government representatives serves a representational function in putting citizen concerns on the political agenda and may also contribute to policy-influencing by holding the executive to account. Further, voting (if freely decided) serves both the representational function of regard for citizen interests and also the policy-influencing function of shaping the success, failure, or amendment, of policy enactments.
Non-legislative parts of democratic political systems typically include actors and processes performing executive and judicial functions. Executive functions include policy implementation and administration. Judicial functions include policy interpretation and refereeing of jurisdictional disputes. In practice, democratic variations often enable executive and judicial actors and processes to exert influence on the collective will-formation which is the chief legislative function. One can add that legislatures, in addition to their linking role, also serve to recruit and leaders who might assume executive positions.
Democratic will-formation first requires legislatures to articulate collective preferences, giving executives a mandate for collective action. Next, legislatures ensure responsiveness by holding executives accountable for implementation and administration of enactments which conform to citizen preferences. Finally, legislatures constrain executives which fail to respond to citizen preferences. The “Mezey question” requires measuring a legislature’s fulfilment of these functions. Mezey defines a “minimal legislature” this way:
“Although their membership is popularly elected and their existence and prerogatives are formally guaranteed by the nation’s constitution, these institutions are, in the final analysis, ultimately subordinate to other elements in the political system in whose hands actual rule-making power resides…. The Government initiates all significant proposals, and the legislature is restricted to only the most marginal amendments”
Westminster systems and presidential systems can both produce democratic governance, but Westminster parliaments are characterized by a close link between legislatures and powerful executives whereas presidential governments feature separation of powers, checks and balances, and dispersal of authority. Westminster models assign considerable policy power to the executive branch, including power to initiate most legislation. With implementation also delegated, legislators participate in governance through their influence over the executive branch.
Legislative policy-making and policy-influencing power has two features: processes to initiate, modify and reject policy proposals and processes to constrain the executive. Alongside deliberative discourse, these features offer legislators the opportunity to participate directly in decision-making. They also ensure governance accountability and transparency by providing a public forum for information, deliberation on that information, and the ability to penalize or reward political actors for their conduct. In concrete terms, the constitutional functions of legislatures include holding governments to account, authorizing, and overseeing expenditures, seeing that the necessary legislative framework to provide services is in place, and ensuring that basic rights are not unnecessarily jeopardized. Some characterize these core functions as representation, scrutiny, and legislation, all of which “inevitably overlap and sometimes collide.”
The policy-influencing deliberative power of legislators, and the importance of taking time for that function, have been described this way:
“The most ancient responsibility of parliamentarians is to carefully watch the Government—how it spends money, makes law, and generally behaves itself. Good scrutiny takes time…. Parliament is meant to slow down the passing of legislation, to ensure decisions are made with democratic legitimacy and appropriate reflection. For example, hearings with witnesses during committee stages of a bill makes it possible to hear from experts and stakeholders and amend the text to improve bills….” (Thomas et al, 2020, House Inspection: A retrospective of the 42nd Parliament. Toronto: The Samara Centre for Democracy, page 6).
CRITERIA FOR DEMOCRATIC LEGITIMACY
How can we tell whether democratic institutions and practices are effective? Criteria for success include indicators focusing on a political system’s ‘democratic legitimacy.’ Shared perceptions of legitimacy foster a willingness among citizens to comply with government policies even when individual self-interest or preference might otherwise suggest non-compliance, a prerequisite to the effective functioning of democracies.
Scholars classify criteria for legitimacy into three categories corresponding with input legitimacy, output legitimacy, and throughput legitimacy. Throughput legitimacy criteria, the chief concern of legislators, evaluates the degree to which internal processes enhance collective participation and acceptance. This serves both representational and policy-influencing functions.
Accountability and transparency are hallmarks of the “throughput” criteria of good quality procedural legitimacy which publicly demonstrate legality, trust, and fairness. Impaired throughput legitimacy has wider adverse consequences since opaque, oppressive, incompetent, corrupt, or biased practices also cast doubt on input legitimacy and output legitimacy. Put another way, the reducing a legislature’s representational policy-influencing performance results in reduced willingness by citizens to comply with government policies.
SUMMARY
So, like the assembled barbecue, what final picture emerges of an effective legislature composed of effective democratic legislators? Simply put, it’s one where legislators make full use of their power to articulate collective citizen preferences, to ensure responsiveness by holding the executive branchaccountable for implementation and administration of enactments which conform to those collective citizen preferences and, where necessary, to constrain executive branches which fail to respond to citizen preferences.
Giving citizens a voice, and demonstrating careful consideration of diverse perspectives leads to better outcomes than when some citizen viewpoints are excluded. It also produces broader citizen acceptance of policies. In turn, justifications and opportunities for executive over-reach, repression of rights, or other abuses, are consequently reduced. Domestic democratic peace is achieved and preserved. Isn’t theimportance of that glaringly obvious?
In my next installment, I’ll consider the importance and implications of these democratic foundations for the conduct of both opposition party legislators and government party legislators.
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