January 10, 2005

Separation Anxiety

Justin Katz

The Providence Journal editorial page gets curiouser and curiouser:

Of course, there will never be perfect separation of powers, all human institutions having varying levels of permeability between them. Still, the separation of powers between Rhode Island's judiciary and the two other government branches has worked pretty well. ... most politicians, and judges, are well-meaning and honest. They seek the esteem of the public that comes from honorable service. Indeed, the desire for public approval is a major reason why many get into the relentless privacy-robbing of politics and government in the first place.

Corruption, personal problems and political pressures sometimes come into play -- humans aren't robots -- but all in all, the system works well for the citizenry of Rhode Island. And it promises to continue to do so, regardless of procedural changes involving budgets, and the occasional foibles of politicians and judges.

I haven't yet become sufficiently familiar with the Projo's writers to be able to identify the authors of specific editorials, but there are certainly significant differences of opinion and style. I wouldn't presume (honestly!) that the paper feels the need to respond to Anchor Rising (i.e., that this editorial is in part a response to a previous post of mine). Still, I have to wonder:

The news media obtain and publicize more information about wrongdoing; the Internet acts as both a lively transmitter of government information and a venue for vivid commentary; and squads of good-government groups keep politicians, other government officials, and the rest of us on our toes.

On the substance, the editorial could easily be a response to thoughts expressed here — and, I've no doubt, expressed by many people throughout the state. In the interest of continuing the exchange of vivid commentary, the following line of thought begs further reply:

Back to the subject of judiciaries: They must be as independent as possible. In our system of separation of powers, you don't want judges captive of either the executive or the legislative branch, lest the rendering of justice be perverted. ...

Most important in this discussion, however, is that legislatures -- at both the state and the federal level -- are the constitutionally designated source of appropriations, for the judiciary and all other parts of government. ... Indeed, the majority of states keep the governor's office completely out of the annual process that creates judicial budgets.

Thus, that the Rhode Island General Assembly last year tacked on to the state budget a proviso to prevent the governor from amending the judiciary's annual budget request seems more an embrace of separation of powers than a rejection of it.

As true as such points may be in general theory, adding the Rhode Island context to the picture raises two problems. The first, more direct, problem is that — unless I've dramatically misunderstood the background — it doesn't convey the appropriate impression to say that the tacked-on proviso "prevented" the governor's taking such action. It's a power Rhode Island governors have had; "prevent" makes it sound as if the potential to amend represented a new, aggressive strategy on the part of the executive that the legislature moved to preempt.

That shift in emphasis leads to the second, broader, problem: odd as it may seem, Rhode Island's governmental difficulty lies largely with its legislature. Under normal circumstances, I'm inclined to err on the side of granting that branch more power than the others, considering that it is a deliberative body of elected representatives. However, in our political landscape, which is so skewed as to leave legislators without challengers for multiple decades and which is dominated by special interest groups (especially unions), that benefit has proven of limited value.

To step back toward general theory, when the government-reform movement involves elevating the powers of the executive to counter a corrupt legislature, the legislature's move to take a budgetary component of balance of power from the executive and its interest in leveraging legalism to maintain imbalance hardly seem to indicate an embrace of that reform.