Issues Of Democracy: Accountability And Its Limits


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Issues of Democracy:
ACCOUNTABILITY AND ITS LIMITS


By Robert S. Barker


Robert S. Barker


In the United States, as in any democracy, the most important guarantee of government accountability is the right of citizens to control their government through elections. But elections are not the only way of holding public officials to account. Robert S. Barker, professor of law at Duquesne University School of Law, who has written and spoken widely about the subject, discusses the key components of accountability in this article on the U.S. system.

 

"The genius of republican liberty seems to demand...not only that all power should be derived from the people, but that those entrusted with it should be kept in dependence on the people...."

-- James Madison, The Federalist, No. 37


"...the concentration of power and the subjection of individuals will increase amongst democratic nations ... in the same proportion as their ignorance."

-- Alexis de Tocqueville, Democracy in America, Part II, Book IV


Governmental accountability -- that is, the duty of public officials to report their actions to the citizens, and the right of the citizens to take action against those officials whose conduct the citizens consider unsatisfactory -- is an essential element, perhaps the essential element of democracy. The purpose of this article is to review some aspects of governmental accountability as reflected in the constitutions, laws, history, and political traditions of the United States.

The United States Constitution

The Constitution of the United States contains a number of provisions which deal directly with governmental accountability. For example, Article I, Section 5, requires that each house of Congress "keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays [that is, the votes "for" and "against"] of the members of either house on any question shall, at the Desire of one fifth of those Present, be entered on the Journal." The president is required, "from time to time" to give the Congress "Information of the State of the Union" and, whenever he vetoes any bill passed by Congress, he is required to state his objections and those objections must be published in the journal of the House in which the bill originated. The Constitution also requires that "a regular Statement and Account of the Receipts and Expenditures of all public Money...be published from time to time." The Sixth Amendment provides that the accused in a criminal case "shall enjoy the right to a...public trial." Importantly, all civil officers of the United States are subject to removal from office for misconduct, upon impeachment by the House of Representatives and conviction by the Senate. Finally, the Constitution guarantees accountability by imposing fixed terms of office on those who exercise federal legislative and executive power. All of these guarantees promote accountability by requiring government to disclose its activities, and by providing ordinary and extraordinary means of removing public officials. The constitutions of the 50 states contain various provisions comparable to those found in the national Constitution.

Statutes and Ordinances

In addition to the aforementioned constitutional guarantees, there are many federal and state statutes and local ordinances which directly promote accountability by, for example, giving citizens the right to inspect public records, requiring public officials to disclose their sources of income, requiring candidates for public office to disclose the names of those who contribute to their campaigns, and requiring that legislative meetings be open to the public. (The term "statute" refers to a law enacted by the Congress of the United States or by the legislature of one of the states. The term "ordinance" refers to a law enacted by a city, county, or other local government.) These and other provisions promote accountability in a direct and obvious way. Such provisions are, of course, important; however, equally important are those indirect guarantees of accountability which flow from the structure of American government and the history of American politics.

Local Government

Some years ago, a newspaper reporter asked the mayor of a large American city, "Which is more important, national politics or local politics?" The mayor, quoting Thomas P. "Tip" O'Neill, the late speaker of the House of Representatives, immediately answered, "All politics is local!" He was right, and his answer identified one of the characteristics of the American political tradition which promotes governmental accountability. Ever since colonial times, the basis of citizen participation in government has been local government. Everywhere in the 13 original colonies, the settlers organized themselves into boroughs and townships, which, in turn, were grouped into counties. When the colonists established their colonial legislatures, they generally followed the practice of having each borough, township, or county elect one representative to the lower house of the legislature of that colony.

The right to vote was in those days usually severely restricted -- slaves, women and those who did not own land were not permitted to vote. Many important questions were decided by the Crown rather than by the colonists, but the colonial systems of local government and legislative representation laid the foundation for ongoing accountability: local officials were known to, and dependent upon their neighbors, and accountability was thus natural. The practice of electing legislators by single-member districts meant that each legislator was chosen by, identified with, and responsible to a particular, defined community, again ensuring a high degree of accountability.

Although each state determines for itself, through its own constitution and laws, the precise extent of governmental power enjoyed by its local governments, the role of local government has always and everywhere been very important, both legally and politically.

Separation of Powers

When the colonies declared themselves independent, the new United States of America retained the local-government foundations laid during the colonial era and built upon them a system of vertical and horizontal separations of powers which would continue to guarantee governmental accountability. In this regard, the words of Thomas Jefferson in an earlier treatise on the state of Virginia, are both descriptive and prophetic:

"The concentration of [all the powers of government] in the same hands is precisely the definition of despotic government.... The government we fought for was one not only founded on free principles but in which the powers of government should be so divided and balanced among several bodies of magistracy...that no one could transcend their legal limits without being effectively checked and restrained by the others... For this reason...the legislative, executive, and judicial departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time."

In a letter to a contemporary, Samuel Kercheval, Jefferson later said:

"We should ... marshal our government into (1) a general federal republic, for all concerns foreign and federal; (2) that of the State, for what relates to our own citizens exclusively; (3) the county republics, for the duties and concerns of the county; and (4) the ward republics, for the small and yet numerous and interesting concerns of the neighborhood. Thus in government, as well as in every other business of life, it is by division and subdivision of duties alone that all matters, great and small, can be managed to perfection."

The "separation of powers" described by Jefferson has at least three dimensions: First, the allocation of governmental power among separate branches of government (this is "separation of powers" in the strict sense); second, the division of that power in such a way that the authority of one branch in a given matter is limited by the authority of another branch over the same or a related matter. (This is usually called "checks and balances." It is, in essence, a system of intra-governmental accountability.) The third aspect of this arrangement is the vertical division of governmental power in such a way that each governmental task is assigned to the smallest, most local governmental unit able to perform it. This is the principle of subsidiarity, which of course, encompasses federalism.

All of these aspects of separation of powers are reflected in the U.S. Constitution drafted in Philadelphia in 1787. The Constitution gives to the federal (or "national") government certain powers, such as the power to conduct foreign relations, to decide questions of war and peace, and to regulate commerce among the states and with foreign countries. Those enumerated powers, and all powers implied therein, may be exercised by the federal government. All powers not delegated to the federal government by the Constitution are, in the words of the Constitution itself, "reserved to the states respectively, or to the people." This division of power, made explicit by the Tenth Amendment to the Constitution, establishes the principle of federalism.

Federal governmental power is divided among three branches, legislative, executive and judicial, thus establishing "separation of powers" in the strict sense. Moreover, the exercise of power by any one of the three branches of the federal government is limited in various ways by the powers given to the other branches, thus establishing the principle of checks and balances.

This approach to separation of powers has also been carried out within each state in its own state constitution through the division of power among three branches within the state government; the creation of a variety of checks and balances among the three branches of government; and the allocation of many governmental powers to two lower levels of local government, counties and municipalities.

One of the results of these divisions of power is that in my own state, Pennsylvania, and in most others, every year is an election year; that is, during each year some municipal, county, state, or federal offices are filled by election. This means that the citizen has the opportunity to go to the polls twice each year: first, in the primary election, to choose the candidates of his or her party; and, later, in the general election, to choose among the candidates of the various parties. As a practical matter, this means that government is subject to constant scrutiny, and, thus, is subject to an ongoing process of accountability. (The best single source of information on state government is The Book of the States, which is published annually by the Council of State Governments, in Lexington, Kentucky.)

Judicial Review

In a very important way, governmental accountability is exercised and enforced by the tribunals through the process known as "judicial review," which began with the landmark decision of the United States Supreme Court in 1803 in the case of Marbury v. Madison. In that case, President John Adams, in the closing days of his presidency, nominated one William Marbury to be justice of the peace in the District of Columbia. However, Marbury's "commission" (that is, the document certifying his appointment) was not delivered to him, and Adam's presidential term expired. The new president, Thomas Jefferson, ordered that the commission not be delivered.

Marbury then brought suit in the U.S. Supreme Court, seeking an order directing the Secretary of State, James Madison, to deliver the commission to him. Marbury argued that a federal statute gave the Supreme Court power to exercise original jurisdiction in cases such as his. However, the Supreme Court concluded that the Constitution limits its original jurisdiction to certain categories of suits, and that Marbury's case was not within any of those categories. Thus, the Court said, there was a conflict between the federal statute, which purported to confer original jurisdiction, and the Constitution, which purported to deny original jurisdiction. Because, the Court continued, the Constitution is the "supreme law of the land," the Constitution must prevail over any other law, federal or state, which conflicts with it. Accordingly, the Court applied the Constitution, ignored the statute, and dismissed Marbury's claim for lack of jurisdiction.

Marbury v. Madison established the principle that all laws and other governmental actions must conform to the Constitution, and that any individual who believes that his or her constitutional rights are being violated by any level of government -- federal, state or local -- may obtain redress through appropriate litigation. As such, every year, U.S. federal and state courts decide hundreds of cases in which government officials are required to defend the constitutionality of their actions.

Three famous decisions of the Supreme Court illustrate how this process of judicial review serves as an instrument of accountability:

In 1952, during the Korean War, the steelworkers union announced its intention to go on strike against the major steel manufacturers in the United States. A few hours before the strike was to begin, President Harry Truman issued an executive order placing the steel mills under the control of the federal government, in order to keep them operating. The steel companies immediately brought suit against the federal government, arguing that the president had exceeded his powers under the Constitution. In its decision (Youngstown Sheet & Tube Co. v. Sawyer), the Supreme Court, by a vote of 6-to-3, concluded that the president had indeed exceeded his constitutional powers. The government immediately returned the steel mills to their owners, in accordance with the decision of the Court.

Perhaps the most famous exercise of judicial review in recent decades was the Supreme Court decision in the 1954 case of Brown v. Board of Education, in which the Court held that laws establishing racial segregation in public schools violate the constitutional guarantee of "equal protection of the laws." The Brown decision, and numerous other "equal protection" decisions which followed it, have established the principle that government is accountable to all the people, not just to those who constitute the "majority" at any given moment.

In 1974, the Supreme Court was faced with a case of great constitutional importance arising out of the Watergate scandal. Two years earlier, the headquarters of the Democratic National Committee, located in a building complex known as "Watergate," was burglarized. It soon became clear that the burglary had been organized by persons close to President Richard Nixon, and that after the burglary, a number of the president's advisors, and probably Nixon himself, had conspired to impede the investigation of the crime. Several former members of the president's staff were charged with crimes related to the Watergate burglary and "cover-up." In the course of their trial, the federal criminal court ordered the president to deliver to the court certain tapes of presidential conversations which were, allegedly, relevant to the case. The president refused, arguing that he had the right to preserve the secrecy of presidential communications.

The Supreme Court, by a unanimous vote in United States v. Nixon, decided against the president and ordered him to deliver the tapes to the criminal court. The Court reasoned that while the president does enjoy an "executive privilege," which enables him to maintain the confidentiality of presidential conversations, that privilege is not absolute, but rather must in each instance be weighed against the countervailing interest in disclosure. The Court concluded that since President Nixon had not asserted any particular need for secrecy, his interests were outweighed by the obvious need to maintain the integrity of the criminal process. The president promptly delivered the tapes to the criminal court.

Freedom of Expression

The foregoing rules, practices and decisions ensuring governmental accountability would have been, and would now be, ineffective were it not for another set of principles deeply rooted in American history and law: freedom of speech, press, assembly, petition and association, which are guaranteed by the First Amendment to the Constitution and are often collectively referred to as "freedom of expression." The details of these First Amendment freedoms are beyond the scope of this brief article. Nevertheless, one case in particular serves to demonstrate the close connection between freedom of expression and government accountability.

In the early 1960's, the New York Times published a political advertisement which made certain accusations of misconduct about a city official in the state of Alabama. The official sued the New York Times for defamation. At trial, it was established that the accusations were false, and the court ordered the Times to pay damages to the defamed official. On appeal, the U.S. Supreme Court reversed the decision, holding that the right to criticize government is so important that even false accusations about public officials are constitutionally protected. Therefore, the Court concluded, a public official may recover damages for defamation only when the speaker (whether an individual or a newspaper) either knows that the defamatory statement is false, or acts with reckless disregard for the truth. This decision, New York Times v. Sullivan, established the principle that freedom of expression is most highly protected when one is criticizing the government and government officials, and, conversely, that public officials enjoy very little protection from criticism, even when that criticism is based on error.

Unless citizens can speak openly, publish and debate their ideas, and organize themselves into groups according to their own criteria and principles, they cannot possibly call public officials to account. Fortunately, the United States has a long tradition of respect for these freedoms.

The Limits of Accountability

Accountability has its limits. As the Supreme Court acknowledged in the Watergate case, the interest of the government in, for example, protecting national security or maintaining the confidentiality of diplomatic communications might, in any given situation, outweigh the reasons for disclosure. The Constitution itself, while requiring the Senate and the House of Representatives to keep and publish records of their proceedings, expressly excepts "such Parts as may in their judgment require Secrecy."

Further, the courts have decided that the constitutional obligation of the federal government to publish an "account of receipts and expenditures" does not require the publication of information which would compromise national security, and the constitutional guarantee of a public trial may in extreme cases be limited, if such limitation is necessary to ensure that the accused will receive a fair trial.

In the United States, as in any democracy, the most important guarantee of governmental accountability is the right of the citizens to control the direction of governmental policy and the identity of those who exercise governmental power, through the electoral process. All other constitutional and statutory provisions are but auxiliary measures. Accountable government depends ultimately on responsible citizens or, more precisely, responsible voters, who take public affairs seriously, inform themselves about the issues and the candidates, debate vigorously, vote regularly, and have the moral sense to distinguish right from wrong. Reporting and disclosure requirements and open-meeting laws have their place, but they are meaningless to a complacent, cynical or self-indulgent citizenry. Accountability, like liberty, requires eternal vigilance.


Source:
USINFO.State.gov

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