Copyright © 1998 by Paul F. deLespinasse, Adrian College
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Footnotes are at the end of the chapter.
"Constitutionalism means limited government. But the interpretation given to the traditional formulae of constitutionalism has made it possible to reconcile these with a conception of democracy according to which this is a form of government where the will of the majority on any particular matter is unlimited. As a result it has already been seriously suggested that constitutions are an antiquated survival which have no place in the modern conception of government. And, indeed, what function is served by a constitution which makes omnipotent government possible?"
F.A. Hayek, Rules and Order
As we have seen, government's distinguishing characteristic is its monopoly of the legitimate use of sanctions. The existence of this monopoly, however, implies a requirement that government be democratic. This chapter will explain why this is the case and will specify exactly what democracy means in this context.
Democracy is necessary in order to reconcile the otherwise conflicting demands of the rule of law and of government's monopoly of the power of the sword.
Monopolies are usually discussed in the context of economics. While political science focuses chiefly on government, which rests upon the power of the sword, economics concentrates on the production and exchange of goods and services. The form of social power in which economics is primarily interested is the power of the purse. Since monopolies are usually analyzed in an economics context, this appears to imply that monopolies are created by means of the power of the purse. Nothing, however, could be further from the truth.
Part of the trouble is caused by confusion between situations where "monopoly" is employed literally and those where it is used metaphorically. We often use the word "monopoly" to describe a firm which happens to be the only one producing a particular good or service. The focus is on the fact that this firm is the only one in its line of business, rather than on the reasons it is the only firm. Perhaps the firm produces so efficiently and prices its output so reasonably that no one else is able to enter the market. Or perhaps no one else has entered the market so far. Such a firm, however, is a monopolist only in the metaphorical sense.
A sole current producer must take the possibility of future competitors into account. If it tries to exploit its "monopoly" by raising prices or giving poor service it will not remain the sole producer very long.
A true monopoly is protected against would-be competitors, not by its own efficiency and good behavior, not by its own power of the purse, but by the government's power of the sword. It is protected by the government's threat to employ sanctions against anybody who seeks to produce the same good or service. Monopoly is basically a political concept, then, not an economic concept.
In the United States a special level of confusion about the basically political nature of monopolies exists because of the Sherman Act. "Antitrust laws" imply that we need governmental protection against a basically private (economic) power, when in fact monopolies can only be created by government itself. An appropriate remedy for "economic" monopolies would be for government to refrain from creating them, not for it to try to make them illegal.
Government itself, of course, strives to be a monopolist. Competition to a government is intolerable because it means war or civil war. But the usual benefits provided by competition need not be entirely lost. When a monopoly is necessary, it is still possible for the right to exercise that monopoly to be subject to competition. A representative democracy is a system in which candidates compete for the right to exercise the governmental monopoly of the sword for limited periods of time.
Although law reflects government's monopoly of the sword, law itself is profoundly hostile to monopolies. A law must be a general rule of action. There is no way that a monopoly can be conferred on particular people by a general rule. A monopoly exists when government threatens sanctions against anybody except the monopolist who takes some action. But a law must be general in the sense that it prohibits everybody without any exceptions from taking a given action. The only way to reconcile the contradiction between the nature of law and the nature of a monopoly is for the monopoly to be conferred (in effect) on the public, a collective body which includes everybody--every man, woman, and child subject to the government in question without any exceptions.
The principle that all monopolies belong to the all- inclusive public has important implications. both political and economic. The chief political implication is that government must be democratic. Ultimate political authority must reside in the inherent monopolist, the public, as a collective and all-inclusive body.
The public can exercise its monopoly of governing authority in two conceivable ways: directly, or through representatives. The distinction between direct democracy and representative democracy is well-known. In fact, though, we do not need to choose between these two approaches. Direct democracy must be ruled out as the principal element--at least--of a Metaconstitutional society.
For reasons to be presented in chapter 6, the Metaconstitution requires that government be universal. Nothing less than a world government could satisfy the Metaconstitution's requirements. Earth's 1998 population was about six billion people. But direct democracy is suitable only for very small populations. It has been used chiefly in the ancient, extremely tiny Greek city states, in relatively small Swiss cantons, and in New England town meetings.
The sheer logistical impossibility of assembling the entire citizenry of even one modern nation-state is self- evident. Nation-states generally range from a few million people up to around a billion people in the cases of India and China. There is no facility on earth that could handle a meeting of even a million people, let alone a billion.
The impossibility of assembling all the citizens is not the main problem with direct democracy, however. Modern technology may soon make it possible for everyone in the world to gather together in the same cyberspace. We could equip every home on the planet with a TV set and an electronic vote- registering device connected to a central computer which tabulates the votes. Basic issues could be put to the electorate after a televised debate, and the vote of the people registered by the computer could be the final word.
But push-button democracy suffers from problems for which there is probably no solution. The main problems are created by the mass media through which the issues would be posed and information and arguments made available to voters. The information, ideas, and attitudes transmitted through a mass media will inevitably be determined by a small number of individuals. There is no way to assure that these people do not stack the deck so as to manipulate the behavior of the electorate.
Also only a limited number of issues could be considered by the entire population because an electorate's time and attention span are very small. Who would decide which questions will be voted on? Who would decide how these questions are to be worded? As public opinion pollsters have long been aware, the way in which a question is framed can heavily influence the responses people will give to it. Most likely the small number of people who decide which questions to submit to the voters and how to frame them would be the actual rulers. How would these people be chosen to do this job? Would they be elected? If so, at least we would still have a democracy. But it would be a representative democracy, not a direct one.
There is also a considerable danger that the central computer would be manipulated by its managers so as to register, not the will of the people, but the will of the managers themselves. As the famous GIGO--"garbage in, garbage out"--principle reminds us, computers do nothing on their own initiative. They only do what a programmer has told them to do. The programmer will be an individual or very small team of individuals. We must assume that programmers share in the common human frailties, including the lust for power and the temptation to take advantage of opportunities to seize it.
Even assuming that the integrity of the computerized voting system could be assured by proper controls (which is conceivable), and that it would be possible to assure honestly worded questions and balanced presentation of the issues through the media (which seems very unlikely), there would still remain intractable problems posed by the very nature of an electorate as a decision-making body. Most people are not very interested in governmental matters. Most would not bother to inform themselves enough to vote intelligently on the wide range of issues that the electorate in a push-button democracy would be called upon to decide. This is the same problem that is posed in a representative democracy by the "long ballot," in which people are asked to elect a large number of public officials, from the dogcatcher on up. Although the long ballot was an attempt to make government more democratic by broadening the control of the electorate, in fact it reduced the control of the electorate by making its task intellectually unmanageable.
The problem would be further aggravated by the absence of specialization in the electorate-as-a-whole. Modern society is extremely diverse and complex, and even representative bodies find it useful to allow their members to develop expertise by concentrating on limited ranges of issues. As is well known, the main work in Congress, as in other U.S. legislative bodies, is done not "on the floor" but in dozens of small committees dealing with specialized issues and all meeting simultaneously. The importance of committees in Congress, whose houses consist of only 100 and 435 members respectively, suggests that even full-time public servants cannot do meaningful business if they have to do it as a single body, on the floor. But if 535 people who could potentially devote their entire attention to the public business cannot govern a medium-sized country like the United States, how could an electorate of six billion people, working only part-time as members of the body politic, govern the planet?
Even a small body like the U.S. Supreme Court commonly refuses to consider a legal argument until it has been considered by a lower court. The preliminary thinking of a lower court can illuminate issues for the Supreme Court and help it use its own limited time and energy efficiently, just as the work done by congressional committees facilitates the ultimate decisions made on the floor of the House and Senate. But how could there be committees of a ruling electorate? If there were such committees, and they were elected, wouldn't that mean we have a representative rather than direct democracy?
The iron law of oligarchy suggests that a direct democracy is impossible for a large population. The "iron law" tells us that in any organization, day to day decisions on behalf of that organization will gravitate into the hands of a very small number of individuals. The iron law has nothing to do with the purpose of the organization in question; the sociologist who discovered it, in fact, was studying democratic political parties in Europe when he did so. The iron law is not a matter of good will or evil will on the part of anybody, it is just a consequence of human nature as it expresses itself in organizational circumstances.
My evaluation of direct democracy has been based on the most favorable possible assumptions. It assumes that we are speaking of direct democracy only in regards to the legislative power, the power to enact general rules of action enforceable by sanctions. Legislation ideally consists of a few very important decisions about the rules of the game. If any government task could be handled by direct democracy, surely it would be legislation. Implementation and followup of government policies, and the application of the general rules to decide specific cases, would be a very different matter. Here government must make a large number of relatively less important decisions. It would be quite impossible for these executive and judicial decisions to be made directly by the electorate. Some kind of representation or delegation of governmental power to responsible individuals would therefore be inevitable even if the legislative power could rest directly with the electorate.
It is thus obvious that the democracy of a Metaconstitutional society must be representative rather than direct. In a large political system, the same factors that require delegation of executive and judicial power to responsible individuals will also require the delegation of most if not all of the legislative power. No matter how plausible it might be to call a direct democracy "government by the people," such a description applied to a representative democracy is highly misleading. "The people" (as an undifferentiated collective group) cannot govern. Government requires power, power requires organization, and organization is subject to the iron law of oligarchy. All government, including democratic government, is by some people, not by the people. The difference between a democratic and a non-democratic government lies in the conditions within which the governing few must work. In a democracy, they must work within conditions which limit and guide their actions in ways that respond to the beliefs and desires of the general population.
Democracy can therefore best be defined as government by some people, limited by the people via periodic competitive elections. For the time being, the victors exercise the governmental monopoly of the sword. But in every decision they make, they must anticipate the future reactions of the electorate, assuming (as is quite reasonable) that they would like to be reelected when their temporary participation in the government monopoly expires.
A conception of democracy as government by some people limited by the people is fully compatible with the iron law of oligarchy. In such a system, day to day decisions on behalf of government are made by a few people, while the electorate makes a few very important decisions from time to time about whether to retain the incumbents or to replace them. The "iron law" does not say that all decisions on behalf of an organization will gravitate into the hands of a few people,
Although democracy in any large political system must be essentially representative, a few elements of direct democracy may be useful as limits on the power of the representatives. Big or touchy issues can be put to a vote of the entire population via a referendum. A possible example of a "small" but touchy issue: should there be a pay raise of given magnitude for the representatives? The total amount of money at stake may not be large compared to the total government budget. But there is something rather troubling about people determining for themselves what their compensation will be. And there is something even more troubling about pay raise commissions and other techniques legislatures use to confuse people about where ultimate responsibility for making the decision presently rests.
Since a referendum occurs only when the representatives decide to pass the buck to the entire population, provision for occasional votes based on an initiative from the population itself might also be in order. It is unwise to allow the representatives an absolute veto over reforms which might damage their personal interests, and the possibility of an initiative allows bypassing the representatives in extreme cases. To avoid overwhelming the limited decision-making capability of the electorate, requirements for placing such a question on the ballot ought to be severe enough that it can only happen a few times in a generation.
Democracy is not always possible; it requires specific social conditions which do not always exist. For one thing, there must be freedom of speech and press. No meaningful control over a government is possible if citizens cannot find out what it is doing. But to find out what is going on, people must rely on the media. Even if people know what is going on, democratic control will still be impossible unless they are free to criticize those who govern. Hence the need for freedom of speech.
A second precondition of democracy is freedom of association. By "freedom of association," of course, I mean freedom of voluntary association, associations formed by mutual consent of their parties to the exchange or transfer of inducements. (To speak of freedom of involuntary association would be perverse--it makes no sense to demand freedom to choose those persons with whom we will be involuntarily associated.) Large-scale democracy requires competition not just among individual candidates, but among political parties. Since political parties are private-voluntary associations, they must be free to determine their own membership without any limits. Some people who would like to join a particular party will not be accepted into it. They may not want to join any existing party that would admit them. People must therefore be free to organize new parties which are free to compete for the support of the electorate against the ruling party and all other comers.
Freedom of (voluntary) association is also necessary so that interest groups can serve as intermediaries between individuals and the government, since it is difficult for a sole individual to communicate effectively with a large organization such as a government.
Perhaps the most important social precondition of all is a democratic ethos or spirit among the people. Prevailing attitudes must incline people to act in ways that are compatible with democracy. In addition to tolerating freedom of speech and recognizing the legitimacy of voluntary associations, people must be willing to accept the results of elections. Bad losers and democracy are completely incompatible. Losers who say "we was robbed" and try to prevent the winners from governing may or may not succeed in this effort. But if there are very many of them they can make democracy absolutely impossible.
Democracy, that is, requires the existence of a loyal opposition. A loyal opposition consists of would-be leaders, and their supporters, who are loyal to the system even when it does not always give them victory. Their efforts to unseat incumbents are limited to peaceful persuasion attempting to attract more voters in the next elections. In the meanwhile, loyal opposition recognizes the right of the winners to rule.
The relationship between representative democracy and the democratic value of equality is very uneasy one. Representative democracy is an egalitarian way to determine who will be more equal than others for the time-being. Representatives are distinctly not equal to mere citizens in regard to their power, their fame, and (quite possibly) their salaries. Representatives are, after all, placed temporarily into positions from which they jointly exercise the state's monopoly power of the sword. Total equality with the common citizen is not a part of this situation.
In the Metaconstitutional society, rulers will be limited in their ability to exercise power. They will be limited by the rule of law, the principle that sanctions can normally be employed only against individuals who have violated a general rule of action laid down in advance. Footnote 1. They will be limited by people's right to refuse to enter into voluntary associations with government when they regard the terms proposed by the government to be unsatisfactory. They will be limited by the absence of a government monopoly of the power of the pen. And they will be limited by the continual fear of future elections which can remove them from office if the voters decide to do so. But in spite of these necessary limits on their power the representatives will not be equal in any sense to the people in the great masses of the population, and there is no sense in pretending otherwise.
The inequality of the representatives after they have been elevated to their posts, however, is not the only inequality that will be found in our Metaconstitutional society. Of course, everybody, mere citizen and representative alike, must be equally subject to the law. Indeed the very essence of law as distinguished from pseudolaw is that its prohibitions and sanctions must apply to everybody, without any exceptions whatever. But for reasons to be discussed later, it is neither possible nor desirable that all people be equally wealthy. And when there is freedom of speech, press and voluntary association, not all people will be equally prominent or famous.
True fame, while not necessarily eternal, cannot be merely a temporary state of affairs. But even a Warholean equality in which everybody is famous for fifteen minutes is mathematically impossible. Given the world population of six billion people in 1998, if we singled out one person for fame in each fifteen minute slot it would take 171,116 years before the last person had his or her own fifteen minutes! Just for the population of the United States it would take about 7,000 years for each person to secure fifteen minutes of undivided fame. The only way we can get around these numbers is to increase the number of people who are famous at the same time, or to decrease the population within which fame is to be defined. Thus at a university made up of 35,000 people, each person could enjoy fifteen minutes of fame within the university once a year. If as many as one hundred people could be famous at the same time, a population the size of the U.S. could make everybody famous once every 70 years.
Clearly, though, there are limits to the possibility of equal fame. If too many people are famous at once, it will overwhelm people's ability to perceive them, and there can be no such thing as unperceived fame. As Gilbert and Sullivan put it, "When everybody's somebody, then no one's anybody." Footnote 2. And if we reduce the size of the relevant population within which fame is to be achieved beyond a certain point, the concept of fame becomes absurd. We do not speak of "fame" within a small family, within a fraternity of 30 members, nor (usually) in a small town. A famous person in a small town is considered famous by virtue of being known by people elsewhere, not because he or she is known inside the town. In a small town, everybody knows everybody, but that is not what is meant by fame.
The fact that money and fame cannot be equally distributed has important political implications. Money and fame ("name familiarity") are necessary in order to win elections in a representative democracy. People cannot choose meaningfully amongst candidates about whom they know nothing. But if many people know something about a candidate, that means that he or she is famous.
Fame, of course, is more important than money in winning elections. Money is important chiefly as a means to acquire media attention, but if such attention can be gotten for free then money becomes less critical. Incumbents enjoy a head- start in this respect, since some media attention results from the fact that they already occupy a government office.
Efforts to mitigate inequality of fame among members of the general public, and between the general population and its current representatives, are futile and possibly dangerous. Government financing of election campaigns has been a popular reform proposal in the United States. Supporters argue that public finance would neutralize the advantages of candidates who are incumbents or who have more money. But it is impossible to make money available for all who decide to become a candidate. Funds are always limited and automatic availability of money would greatly increase the supply of self-declared candidates. Therefore rules must determine just who can receive how much government money. But it is precisely the people already holding office who would write any such rules! These incumbents will hardly stack the campaign financing deck so as to maximize the chances of their challengers. More likely, they will produce the financial equivalent of a gerrymander. (To gerrymander is to draw lines between election districts so as to favor the election of candidates from one's own political party.)
If public financing is completely optional it may do little harm. Incumbents already feed at the public trough anyway, and challengers who can do better on private contributions could turn down the government money and the strings that are attached. However if public financing becomes mandatory and acceptance of private contributions is restricted or totally banned, democratic control over government could be seriously undermined. The incumbents would control the financing of efforts to put them out to pasture. And of course any rule allowing government to use its power of the purse in ways prohibited to private individuals and groups is not a general rule of action. It is a pseudolaw rather than a law.
Another way to reduce inequality of fame might be to require the media to devote "equal time" to all candidates for public office. Again, however, such a rule would be unworkable if literally applied to all candidates, including those representing minor parties. A formula determining who is eligible for "equal time" would be needed, and again it would be determined by the incumbents. Such a rule would also be a gross governmental intervention into an arena that the U.S. Supreme Court has characterized as the "core concern" of the First Amendment: political speech.
A third way to reduce inequality between incumbents and the general public might be a rule strictly banning the immediate reelection of any incumbent. Only persons not currently occupying a given office would be eligible to run for it. All contenders for each office would always be equally non-incumbent. Such a rule might work, but it would produce serious side effects by limiting the accumulation of experience and expertise in government. It might also increase policy instability, which would be extremely detrimental to the general welfare. The difficulty of unseating incumbent representatives is not necessarily bad as long as unseating them is not impossible. Representatives may govern best when they enjoy some "wiggle room," an area within which they can do what they think is bst without fearing that they are always on the brink of political suicide
Corruption is a problem for all governments, but democracy minimizes opportunities, at least, for bribery. In non-democracies all people who have political power may be tempted to accept money in return for official favors. In a democracy, the electorate is the supreme authority, and nobody has the resources to bribe a whole electorate.
Some bribery, of course, remains possible, even in a democracy. Although it may be impossible to bribe an entire electorate, one can still bribe portions of the electorate. When elections are often close, the votes of the few who were bribed may make a difference. However there are tight limits on the opportunity to bribe even a segment of the electorate, as we will see. The more serious problem is that in a representative democracy there are many officials, and officials--no matter what the form of government--are always potentially bribable.
True, not all officials will actually accept bribes, but there is no way to guarantee that any particular official will reject a bribe if one is offered. It is futile to try to make officials bribe-proof by paying high official salaries. No matter how high the salary may be, the official may be able to use even more. It appears that there is no such thing as "enough money." It is also futile to make it illegal to receive a bribe, although every civilized society will do so and some miscreants will be caught and punished. Secrecy is always an implicit part of every bribe, and the threat of punishment may not deter action if it is felt that the likelihood of detection (and therefore of punishment) is very low.
One way to increase the threat of detection is for government to have a department whose agents go around, disguised as private persons, offering bribes to various officials. An official who accepts a bribe could then be arrested. Existence of such a department should be publicly announced, and the right to plead "entrapment" specifically denied, so as to have the maximum deterrent effect. Every official approached by a briber, then, would be aware of the possibility that the briber is actually an agent provocateur, an awareness which could have a positive effect on official behavior. However this system would not be a panacea, especially since the agents provocateurs themselves might accept bribes in return for not exposing some other official who had fallen into their trap.
If we wish to arrange government so as to minimize (but not eliminate) corruption, we need to understand the circumstances in which corruption can occur. It helps to look at the situation from the point of view of the person who pays the bribe. This person wants something from the government, and will be unwilling to pay a bribe unless the bribed official can deliver what is wanted. Thus, for example, if the official has power to award a valuable monopoly--i.e. government protection from entry of competitors into your line of business--you may be willing to pay the official to do so. Likewise, if you are looking for a favorable rather than an unfavorable exercise of governmental regulatory authority. An unfavorable application of a regulation to your business may greatly increase operating expenses. If a smaller payment to an official can avoid the increased operating expense, it will be seen as a good deal by all parties.
Purchasing agents--private and public--have always been a favorite target of bribes. Someone seeking to sell goods or services to the government may be willing to use part of the expected profits to bribe the official responsible for deciding from whom to buy. And when the government is giving things away or selling goods or services at below market prices, in other words when it is offering subsidies, some people may be willing to pay a bribe in order to get in on the subsidy.
Of course not all corruption in government involves the power of the purse. As George Orwell showed, even language is subject to corruption when it appears in a political context. Footnote 3. The power of the pen is no more inherently honest than is that of the purse. All governments are subject to the problem known as sycophancy, the willingness of inferiors in an organization to tell their superiors what they want to hear, to praise their possibly non-existent virtues and wisdom, to refrain from reporting bad news that might be upsetting for fear that as the messenger they might get their heads cut off, metaphorically or literally. Democracies, however, are also subject to a special corruption of language: demagoguery. Here top elected representatives tell the voters what they want to hear, rather than speaking candidly about government's problems and opportunities. To the extent that campaigners engage in demagoguery, in the deliberate use of disinformation or bad reasoning, it undermines democracy by reducing the meaningful control of the electorate over government.
Another special type of corruption to which a democracy may be susceptible is the buying and selling of votes to be cast by the general electorate. Such buying and selling is usually illegal, and to violate a law is a form of corruption. There is some question, though, whether the buying and selling of votes ought to be illegal. Does the corruption result only because this practice has been made illegal, or is the practice itself inherently corrupt?
We might look at this issue from the following point of view. Each voter in a democracy has the legal right to cast one vote for each office currently up for renewal. Such a right is a valuable thing, obviously. But if an individual elects voluntarily to exchange that right to vote for a particular office in the next election in return for some other right (such as the right to $100 that otherwise this individual would not have), who is thereby harmed? The seller of the vote believes he will be better off with the $100 and without this particular vote; the buyer feels that she is better off with an extra vote and without the $100 she paid for it. Is this not a "victimless crime"? If so, should it even be a crime?
It might be objected that a very rich person under such a system of legalized vote buying might be able to buy an office, in effect. But presumably those who sell their votes would take the possible side effects of their action into account before agreeing to sell. A more serious argument in favor of retaining laws against such buying of votes might be that since wealth inherently gives an advantage in securing the "name-familiarity" or fame necessary to win elective office, it is in the general interest not to allow wealth to also have unequal influence in the actual "ownership" of votes.
Unlike most laws against corruption, which are difficult to enforce, rules against buying and selling votes are easily enforced. The secret ballot makes it very hard to enforce agreements to vote in certain ways. Nothing prevents the seller from pocketing the money, then voting the other way in the privacy of the voting booth. Few buyers will be so foolish as to take the seller's word for it. Footnote 4.
Would that strategies for combatting corruption in general were so easy to find! The only effective protection against demagoguery is a sophisticated and informed electorate, with as many voters as possible trained to spot illogic and false premises in political oratory. This is easily noted but difficult to implement.
There are several fairly obvious approaches to minimizing political corruption involving the power of the purse. To the extent possible, the power to make decisions in which choices are expressed between conflicting persons, programs, or values should be dispersed among many people. The electorate, for example, is a nearly ideal repository of ultimate power, since as was noted earlier it is virtually unbribable. Electorates, of course, can be fooled in ways that might smack of bribery, as when benefit programs are increased shortly before elections but the corresponding tax increases needed to pay for them only kick in after the elections. But only so many people can be fooled so much of the time, and it should not be impossible to help most people see what is going on when this game is being played.
Unfortunately, electorates are unable to make the large number of day to day policy decisions necessary for a modern government, for the reasons noted in our discussion of direct democracy. Therefore we must rely on legislatures to do the bulk of the most fundamental decision-making. A legislature cannot be so large as to make it financially impossible to bribe all or a majority of its members, for hugeness in the legislature would destroy its advantages as a decision-maker as compared to the electorate. But it is possible for a legislature to be big enough that it will probably contain at least a few people who will go public loudly and indignantly if offered a bribe. A few such people is all that it may take to protect against bribery of the legislature in any overt and major way, for the fear of exposure will force potential bribers to approach legislators very cautiously and selectively. Of course in close cases, bribery may still have a decisive influence, since a few successfully bribed legislators may tip the balance from one side to the other of an issue. But as already noted, we can only hope to minimize corruption in government, not to prevent it completely.
There are many disadvantages in decision-making that result from the large size of legislatures. Everything else being equal, the ideal legislature might be a single person, directly elected for a limited term, perhaps checked and limited by a larger elected body that held no legislative power of its own but could merely veto laws enacted by the one-person legislature. Footnote 5. It is nearly universally assumed, however, that legislatures should be made up of many people, and this may reflect a subconscious recognition that the one- person legislature would be uniquely susceptible to corruption if the wrong person were to hold the job. Unfortunately, there is no way to guarantee that the wrong person will never hold any job.
Because of the numerous "executive" decisions which a government must make, dispersal of this power into many hands is simply not possible and therefore is not a viable anticorruption strategy. Government inevitably must buy many goods and services. It must make contracts for the purchase of military equipment, for the construction of buildings and highways, etc. It must determine who is to receive licenses to enter certain professions or lines of business. It may even need to award monopoly powers to a particular organization. The business, license, or monopoly power conferred by government may be of great economic value to the recipient, and there is therefore the danger that some potential recipients will be willing to pay the officials responsible for the decision to assure a favorable decision.
A technique widely employed in awarding government construction contracts deserves to be introduced more generally into every case in which something of value is to be conferred by government. The technique is competitive bidding. Instead of allowing some official to decide to give the contract for building a new government building to corporation J instead of competing corporations K, L, or M, all who wish to bid on the project are invited to send a sealed bid. The bids are opened in a public ceremony (to avoid skulduggery) and the lowest bidder must receive the job. Since there is no official with the power to decide who will get the job, there is no one to bribe. And since the lowest bid will win, any money that might have been spent on a bribe can be better allocated to reducing the price at which a corporation offers to do the job in question.
Although bidding requirements are obviously no panacea, for there are no panaceas, they do make bribery much less likely. The story of Spiro Agnew, who was forced to resign as Richard Nixon's Vice-President because of bribes he accepted while governor of Maryland, is most instructive. Agnew accepted bribes from firms receiving architecture and engineering design contracts from the state of Maryland, but apparently did not take any bribes from the contractors who actually built the projects. The actual construction costs must have been much greater than the engineering and architect costs, and there is no reason to assume that construction firms are inherently more honest than architects and engineers. (Indeed, in all cases, it only takes one outfit that is willing to bribe to corrupt the process.) There is no reason to think that Agnew would have turned down a construction firm bribe, if offered, while accepting bribes from the engineers and architects. It is most likely that he never received any bribe offers from construction firms. Why not?
The answer is simple. In Maryland, state law required that construction contracts be bidded out. But there was no bidding requirement for design work done by architects and engineers.
The basic principle, then, should be that government should never unnecessarily give its officials the freedom to confer or not to confer something of value on particular people or organizations. This is the converse of the principle of the rule of law, namely that no one in government must have the power to decide arbitrarily to impose sanctions (deprivations of life, liberty, or property) on particular people or organizations. Sanctions must be imposed only on the basis of duly established violations of general rules of action, laws as distinguished from pseudolaws. Inducements must be conferred--as far as possible--only on the basis of competitive bidding. This will not only serve to minimize corruption in the awarding of contracts, etc., but it will drive the hardest possible bargain on the part of the taxpayers whose resources are being expended by the government.
It is even possible that the bidding principle can be extended to government hiring decisions. I was startled a few years ago to read an ad inviting people who wanted to be the attorney for a local government in the southwestern U.S. to submit bids. Presumably this was to be part-time work, not a full-time job for the lawyer. I see no reason why full-time government jobs as well could not be given to the qualified person willing to accept the lowest salary.
It is possible to have a democracy that does not abide by the requirements of the rule of law. It is not a good thing if the electorate, or a representative body, chooses to enact pseudolaws, but there is nothing undemocratic about it.
The rule of law, on the other hand, cannot fully exist without having democracy too. The rule of law implies, among other things, that monopolies must not be conferred arbitrarily on specific persons or organizations. Ultimate "ownership" of any monopoly must therefore belong to the public, and all-inclusive body, and this includes the monopoly over the power of the sword that is the distinctive characteristic of government. Democracy is a way that this public can govern directly through representatives chosen by the public.
Although it is possible to have democracy without also having the rule of law, democracy is facilitated if the rule of law is respected. As I originally wrote these words an example of the mischief caused for democracy when the rule of law is not observed was being spread all over the daily newspapers. The root of the problem was that the basic American income tax is graduated, applying different tax rates to different people. Graduated taxes are pseudolaws rather than laws.
The U.S. budget crisis of 1990 to some extent reflected inherent characteristics of democracy. Government spending is always popular, because it promotes worthy causes which people favor. Nobody can be against better schools, better highways, better public health services, better ...(the reader is invited to fill in a favorite project!). Taxes, however, are always unpopular with the people who pay them. Taxes are not voluntary contributions, but are taken (implicitly if not explicitly) at the point of a gun. Since there is no such thing as "enough money," and there are many good things people can do with their own money, people will always regret it if they have to pay any taxes at all. The soaring deficits incurred by the U.S. government during the 1980s resulted from the popularity of spending, the unpopularity of taxing, and circumstances which allowed the temporary postponement of the need to face up to an awful reality.
Unfortunately prolonged and rapid accumulation of a national debt has side effects which are unpleasant at best and potentially catastrophic. When government borrows money, it must pay interest to those who loan it the money. During the 1980s the accumulated national debt of the U.S. tripled. The interest that must be paid each year on the accumulated debt rose to become around 25% of the total government expenditures in a given year. These interest payments must themselves be financed either by taxes or by borrowing still more money, and as a legal obligation they are totally uncontrollable by current budget decision-makers. It does not take much imagination to see what could happen if prevailing interest rates were to increase sharply, which in today's world economy the government of a single country even as powerful as the U.S. could not necessarily prevent, or if the total amount of the accumulated debt had continued its rapid increase.
It is obviously impossible for annual interest paid on the national debt to exceed the government's total annual budget. Clearly, something has to give, since deficit financing has limits. And the only alternatives to deficit financing are to increase taxes, which is unpopular in a democracy, or to decrease expenditures, which is also unpopular, or a combination of both.
Cutting expenditures is a highly unpleasant process of values clarification and prioritizing, but even in a democracy it is not impossible. Elected representatives, however, will take this approach only when there is no other possible escape route in sight.
Increasing taxes is just as unpopular as decreasing expenditures. Even so, there is one way to increase taxes that has great appeal to elected representatives. It is tempting to try to solve the deficit problem by raising taxes only for a small minority of the population, thereby upsetting the smallest possible number of voters. The most obvious minority to pick for this honor is the rich.
The graduated income tax is one in which the tax rate goes up as taxpayer's income goes up. Demagogic slogans that "the rich should pay more" are used to justify such a tax, ignoring the fact that the rich would also pay more under a tax imposed by a genuine law, i.e. a flat rate tax in which all people pay the same percentage of their income. (Twenty percent of a million dollars is more than twenty percent of ten thousand dollars.)
Imposing rules on others that one is not willing to impose on oneself is the essence of pseudolaws, and graduated taxes are thus pseudolaws rather than laws. Ironically, inflation tends to propel people of merely average incomes into the higher tax brackets, so rates inflicted on the rich minority by today's majority may come back tomorrow to haunt that very same majority. Recent discovery of this fact has inspired efforts to "index" the income levels where the next higher income tax "bracket" kicks in, to compensate for inflation. Efforts to prevent "bracket creep," however, have yet to prove themselves. During the crisis of 1990, indeed, serious proposals were made to postpone indexing against bracket creep "temporarily." Bracket creep may be nature's revenge on today's majority for what it did to yesterday's minority.
Once the possibility of using pseudolaws like the graduated income tax is accepted, the democratic process is likely to bog down in haggling over the details. How rich is rich? At what rate should the rate of progression increase? What should be the top rate and the bottom rate? All answers to such questions are equally arbitrary, so it is very difficult to get agreement on them, and impossible to get a stable agreement.
Graduated taxes, furthermore, are inherently complex taxes, and democracy is not well equipped to evaluate complexity. Perversely, because of the inherent complexity, and because of "loopholes" that are always added to graduated taxes to prevent them from damaging important special interests, the rich sometimes end up paying a lower tax rate than people of average means. The rich can afford to consult lawyers and accountants, whose expert advice enables them to take maximum advantage of the complexities in the tax laws.
It is thoroughly perverse to think that government spending need not be limited by ones own willingness and ability to pay taxes. The idea that taxes can be imposed on someone else is equally perverse. The rule of law tells us that sanctions can only be imposed on the basis of general rules of action. Legitimate taxes cannot, therefore, be imposed on specific people or on specific types of people.
If the rule of law were possible without democracy, it would not be a complete guarantee against abuses of government power. It would be easy to come up with general rules of action highly obnoxious to nearly all people. A ruling minority might well use such laws--bad laws (as distinguished from pseudolaws)-- to oppress the vast majority of the public.
Likewise, by itself democracy is not an adequate guarantee against abuses of governing power. Democracy is merely a method by which the general public, acting by majority decision, places limits on the behavior of the individuals who govern. It protects majorities against long- term perceived victimization by minorities, and this is good. But it cannot protect minorities from victimization and exploitation and high-handed treatment by majorities. There is nothing undemocratic about military conscription, racial segregation, or graduated income taxes. Conscription, segregation, and unequal taxes have often been supported by
Good government therefore requires both democracy and the rule of law. The rule of law ensures that sanctions can be employed only against people who violate general rules of action, while democracy assures that such laws will not be enacted if they are unacceptable to the majority of the people.
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1. The one exception to this generalization arises when concerted actions to overthrow an existing government by violent methods make it impossible to control the situation merely by prosecuting the responsible people as individuals under the law. For a further discussion of this problem, see chapter 10, "Defending the Metaconstitution."
2. Deems Taylor (Ed), A Treasury of Gilbert and Sullivan (N.Y.: Simon and Shuster, 1941), p. 397.
3. See his essay, "Politics and the English Language" and his novel, 1984.
4. Of course if voting by mail or through the Internet were to become widespread, this would allow vote buyers to watch the seller cast his or her vote. It might be nearly impossible to prevent buying and selling of votes under these conditions.
5. This idea is discussed in deLespinasse, Thinking About Politics, pp. 202-204.