Rules Governing Not Adapted to Enforcing Responsibility

In the development of rules controlling the representative body one or the other of two principles has dominated: Either they have been framed for the purpose of locating and enforcing responsiveness and responsibility upon high executive officers-the persons who must transact the details of business; or they have been framed for the purpose of gaining direct control over executive subordinates, thereby vesting responsibility in that body both for legislative or administrative acts. With all the variations in details of organization and procedure, the one conspicuous result of adopting the first principle has been to emphasize inquiry and debate on the floor, while the one conspicuous result of adopting the second principle has been to emphasize the committee, and to prevent real debate. Under the first plan those who must execute are made responsible for the drafting of administrative bills and preparing briefs in support of executive measures, making these executive proposals the subject of openhouse inquiry and debate, the floor being made the opportunity for the "opposition." Pursuant to the second plan, the executive is not permitted to formulate, introduce or defend administrative or any other measures, and the whole procedure becomes one that cannot be followed or understood by either the membership or constituencies.

The first plan is adapted to making government responsible-the purpose of the representative system.

The second plan is adapted only to irresponsible government, as it does not provide for leadership, limits advocacy and defense largely to chairmen of legislative committees, whose ways are secret, deprives the "opposition" of all opportunity to question the administration on the floor, applies "gag" rule to debate to force measures of an irresponsible" organization" through each house, and in case of difference, through joint conference committees, whose reports are accepted under the whip, and sends to the executive measures without giving him any public opportunity to participate, except by acceptance or rejection. This is the type of regulation of legislative procedure employed in the state of New York. Nor is the present unsatisfactory character of the rules and of results due to any lack of constitutional verbiage in the organic law itself. Its evils have only grown larger in the efforts of the people to prevent "log rolling," "pork barrel" legislation, and "dark chamber" proceedings by mere restrictions on procedure. The defect is one of fundamental design that cannot be cured by patchwork or safety devices to prevent disaster.

Legislature in Conflict with Authority and Jurisdiction of the Executive The results of the ill adaptation of the legislative machinery for locating and enforcing responsibility that have already been commented on constitute only one side of the picture. A most serious consequence

of the irresponsible use of legislative power, under conditions where inadequate provision is made in the organization of the legislature for direct dealing with the executive, has been the invasion of the field of administration, through the activities of legislative committees which are given in fact (whatever the theory) the power to recommend and refuse to report requests for, appropriations, to create, modify and destroy the administrative machinery, to determine who shall be employed, what salaries may be paid, what supplies and equipment may be obtained, what are the conditions surrounding the service-without any opportunity being given to the executive to state publicly and defend openly in the legislature his reasons for dissent based on real administrative experience. When these powers are exercised on the one hand on recommendations of committees and little or no power is given to the governor to appoint, remove, direct, discipline or control administrative officers and agents, the uniform result has been that all of the functions and processes of administration sooner or later come under the domination of committees, whose membership in turn has no responsibility for results and no accounting to render to the people of the state at large, but on the contrary is interested first of all in local favors or in appropriations, contracts or apportionment laws which affect the partisan organizations.

Standing Committees Not Adapted to the Proper Consideration of Measures Either of Legislation or Administration

In the standing and special committees there is the same lack of coordination with the work of the government that is found in the administrative departments and offices. In connection with this subject the following points should be noticed: (1) The committees of the senate and assembly do not correspond in several respects, although the legislative functions of the two houses are identical. In 1915, the former body had twenty-five standing committees and the latter had thirty-one. Not only is there a lack of correspondence in the committees, but there is a want of co-operation between the committees of the two houses—a need which in some states has led to the creation of joint standing committees, as in Massachusetts. (2) In several instances there is a lack of centralization of work. For example, the senate has one committee on finance and another on taxation and retrenchment in spite of the obvious intimate relation of the two functions. The assembly distributes financial matters among three committees: ways and means, excise, and taxation and retrenchment. In the lower house transportation is divided among committees on canals, railroads, and commerce and navigation. (3) The committees of the two bodies do not correspond precisely with the chief branches of administration which are charged with the execution of the respective laws and whose finances should be adequately scrutinized by the committees.

The first two maladjustments, namely, absence of correlation between the respective committees of the two houses and lack of centralization of related work in the hands of single committees, are due largely to historical and political causes. Committees have grown up irregularly with the needs of the state. When a new and important function is undertaken, there is great pressure to establish a new committee rather than to relate the work to that of an appropriate committee already in existence. Each new committee affords new opportunities to make assignments to importunate members who are often more anxious for selfadvertisement than for work. Each new committee also brings in its train clerkships and other perquisites which are regularly employed to reward party service. Thus no permanent staff of informed experts is ever found attached to ordinary committee service. The results of frequently entrusting important functions to a body of inexperienced legislators assigned to a committee and aided by a staff of servants recruited from local party workers are so patent as to need no commentary here.

The second maladjustment, the lack of co-ordination of the legislative committees to the great branches of state administration is to be attributed to two causes. In the first place the administrative organization of the state has been so broken into minor and disjointed subdivisions that an adjustment of committees to them has been impossible. In the second place, the idea that the legislature should be a genuine scrutinizing agency over the several branches of administration instead of a seeker after patronage in them is so recent as to have received little or no attention from those concerned with legislative organization and procedure.

Legislative Staff Agencies

Although legislation is an exceedingly complicated and technical function, being related on the one hand to complex human relations and to previous acts and judicial decisions on the other, it is only recently that state legislatures have begun to build up a permanent expert service. At the present time the legislature of New York has at its command the following staff agencies:

1. A legislative bill drafting commission composed of two com

missioners and charged with the duty of aiding in drafting legislation, giving advice as to constitutionality and other legal questions, making researches as to proposed legislation, and advising on matters of consolidation of the laws.

2. A commissioner charged with the duty of indexing the laws and statutes of the state.

3. A temporary board of statutory consolidation composed of five members charged with the duty of reporting to the

legislature a practice act, rules of court, and short formsthe consolidation and simplification of the civil practice of the courts of the state.

4. A board of estimate composed of the governor, lieutenantgovernor, president pro tempore of the senate, the chairman of the finance committee of the senate, the speaker of the assembly, the comptroller, the attorney general and the commissioner of efficiency and economy (now abolished) and authorized to prepare and transmit to the legislature an estimate for a budget for the amount required to be appropriated by the legislature for the conduct of public business for the ensuing fiscal year.

5. A commission for the promotion of uniform legislation in the United States to consider and recommend uniform laws on certain specified subjects.

6. A number of special commissions from time to time to repor! on matters for legislative action.

It is evident from a survey of these agencies that some of them could be consolidated in the interest of efficiency and economy and at least one of them, the board of estimate, is not adapted to the purpose for which it was created.* There is certainly no reason why the promotion of uniform legislation and the indexing of the statutes should be separated from the general work of the bill drafting commission. In giving proper technical advice, that commission must be entirely familiar with existing law and in a position to index it with more precision than an independent officer. The promotion of uniform legislation is not so remote from bill drafting and legislative research that it requires separate organization and office equipment. The constant resort to special commissions on legislative subjects suggests that the staff agencies for supplying information to the legislature must be inadequately equipped for the performance of the duties vested in them by law.

Local Legislation

The working power of the best organization in the world can be utterly destroyed by overloading it with details and by constantly injecting extraneous issues concerning which the members cannot possibly be informed. What may be said, therefore, of our state legislatures which are now overburdened with a mass of legislation relative to the affairs of counties, towns, villages, and cities, about which the members in general are almost wholly ignorant and the members from the localities involved only partially informed? It is a well-known fact that each legis

*For a discussion of the board of estimate see the Proceedings of the New York Academy of Political Science for October, 1914, pp. 141-192.

lator is constantly harassed by the demands of his constituents for local legislation, that the pressure to obtain this legislation compels him to sacrifice larger affairs of the state to local necessity, that the time of the legislature is withdrawn from the consideration of great questions to the transaction of petty business and that the finances of the state and of localities are disorganized and wasted by special legislation.

The present constitution recognizes the evils connected with this system and touches upon it slightly (Art. III, secs. 16, 20, 26, 27; Art. VIII, sec. 10; Art. XII, sec. 2), but it does not go to the root of the difficulty, namely, by conferring home rule upon counties and cities in such a form to relieve the local communities of the necessity of constant application to the legislature for powers.

Of course, it is obvious that by conferring general powers of local legislation upon cities and counties, the problem of the state and the community is not solved. Questions as to what powers are actually conferred upon the communities will constantly arise, and the will of the state must be superior to that of the local body. The limitations on the legislature are in this regard subject to judicial interpretation and by granting home rule to localities the control of the courts may be substituted for control by the legislatures.

There is, however, another method of exercising the control of the state over local legislation. Local legislation under general grants of power may be subject to administrative supervision in the first instance, with appeal to the courts as the last resort. In Michigan, where general powers are conferred upon counties, important local legislation under this grant is subject to the approval of the governor. In California, it is submitted to the legislature for approval or rejection. In England, the most satisfactory solution of the problem seems to have been made.*

If the vast mass of local and special bills which now clog the legislative machine, divert attention from matters of large significance, and degrade members to the level of negotiators for petty local favors, could be disposed of in such a manner as to secure state-wide control, and at the

*In England the power to authorize local bodies to perform many functions and undertake various enterprises is vested by law in several appropriate central administrative officers, subject to the approval of Parliament. When a local body seeks a new power or authorization it applies to the appropriate department. On receiving an application the department makes inquiry into the advisability of granting the request, holds hearings, and gives all interested parties a chance to be heard. All orders granted are arranged in proper groups and submitted to Parliament for its approval. If there is no objection to any of the orders the entire group goes through unopposed. If there is objection, then a hearing is granted and the measure is treated like any other ordinary bill. In practice, however, this relieves parliament of a large mass of petty legislation and centralizes the initial responsibility in the hands of expert administrative officers. See in Lowell, The Government of England, Vol. I., Chap. xx.