(“Who will watch the watchmen?”)
The answer we have been living under for 230+ years was famously laid out by Montesquieu and realized in the doctrine of separation of powers in the Constitution. Under this model, each of the “three branches of government”: legislative, executive, and judicial is supposed to be limited in its natural tendency to accumulate power by the countervailing authorities of the other two. Despite the wide range of the ordinary jousting between and carping about each branch from advocates of the other two, the only fundamental shift among the three since the early 19C has been the accumulation of discretion by the executive branch, which has been driven particularly by the increasing breadth of governmental action and responsibility, as well as military technologies which have altered the nature of the nominally limited Presidential war powers.
Another change, however, calls out for remediation: the embedded nature of the political class as a whole which has manifested in members of Congress serving for multiple decades with little competition, hideous gerrymandering, an ossified duopoly of political parties, and election mechanisms corrupted long before Citizens United (2010). We have created a political oligarchy whose differences from the “democratic centralism” practiced by the Chinese Communist Party are far fewer than we would like to think. And, as is the nature of oligarchies, they prefer to “police” themselves, with the result that, once in office, Congressional “Ethics” Committees are a joke (Congress writes its own special health insurance and pension rules and exempts itself from standard rules preventing discrimination and abuse) and impeachment has descended into political theater.
Addressing these concerns will require a set of Constitutional changes that go beyond the simple tinkering of imposing term limits and reserving political speech rights to actual persons (i.e., excluding corporations). Efforts in the post-Watergate era which led to the creation of the Federal Election Commission (another model of bureaucratic toothlessness) were well intended but ran headlong into the power of incumbency and First Amendment sanctimoniousness. When ordinary political processes have been corrupted, expecting them to produce useful and meaningful controls is naïve.
In The Republic, Plato proposed that a council of Guardians, made up of a small group of the wisest, best educated men, would be the best form of government. Such an approach doesn’t sit well in a democratic age with risks of corruption and difficulties of selection looming large. Nor does the closest current example: the Iranian Republic, bode well for a plenary, omnicompetent group dictatorship.
Perhaps a blending of Socrates and Montesquieu might be an improvement. A council of the wise whose scope of authority was limited to electoral and governmental integrity. They would be charged with administering electoral laws and constitutional provisions, including limitations on expenditures and methods, processes of selecting candidates, demarking electoral districts, and hearing allegations of corruption and other improper behavior on the part of elected officials.
A group of 5-7 members, eligible for a single term of 5-10 years, prohibited from further participation in politics and government (for themselves and their immediate families) could be trusted to act for the public good. Two members would be chosen by each house of Congress (using weighted voting to limit majority domination) plus three members to be chosen by the Supreme Court.
This Democracy Council would combine aspects of a standard administrative agency (including a combination of rule-making and enforcing powers), the recent upsurge in state-created citizen redistricting commissions, and Congressional “Ethics” Committees. Funding would be constitutionally guaranteed at a multiple of the budget of the Supreme Court.
A fourth arm of government might seem too radical, but this Democracy Council might be seen as at least half a branch. Judicial in stature, legislative in powers, but with a limited jurisdiction and enforcement powers, it might be an important step in restoring confidence in the democratic process. There are many examples of election commissions used in other countries, some of which have maintained integrity and independence from incumbent governments, from which we could draw lessons.
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