We’re going to ‘commission’ ourselves into authoritarianism
We are a nation, and a state, of laws. We govern ourselves by adherence to laws, and by the system that enacts them. Only the Legislature may enact a law; it’s in our constitution: “The legislative power of this state shall be vested in the Senate and Assembly.”
Not any more. We are living in the age of “commissions.” Now commissions make law, not the Legislature.
This week we saw two egregious examples of the dictatorship of the commissions. First, a congestion pricing commission is to decide the fee to drive in central Manhattan, and who pays or doesn’t pay it. This commission is indirectly controlled by the governor. Second, an election law commission will decide how we conduct and finance elections, including who gets public funds and how much, as well as who gets to run on party ballot lines. This one is directly controlled by the governor. The outcomes will have “the force of law.”
It’s flatly unconstitutional. Only the Legislature can make a law. Worse, it’s a degradation of democratic norms worthy of Donald Trump or Vladimir Putin. In both cases, by the way, there has been cheering and applause from self-proclaimed “reformers” who think they like the outcome, constitutional process be damned. Listen to “transit advocates” on congestion pricing or the Brennan Center on election law and hear the apologists for authoritarian rule in full bellow.
Pity the Legislature. They approved their own disgrace. It’s not that they didn’t know what was happening. Twice they ducked their responsibility to enact a pay raise and created a
“commission.” Twice they suffered the embarrassment of these pay raise commissions choosing to stick it to them. Twice. And yet again they have again approved the degradation of their constitutional powers, apparently hoping no one would notice.
It’s hard to know what to say about the governor. If the Legislature itself won’t stand up for its constitutional powers, why criticize the governor for taking advantage of such weakness?
Here’s why. First, regardless of the policy at issue we should have first and always a separation of powers and a respect for democracy. Second, there will come a time when “reformers” won’t like what a governor decrees, and having abandoned principle they will have no credible ability to complain. All the specific things reformers now crow about and more will vanish when a new anti-choice, pro-gun, anti-environment governor is elected.
The tyranny of the commissions will play out over the next two years. First, Cuomo will attach public campaign financing to an end to fusion voting, his
ongoing attempt to destroy the Working Families Party. The “election law reformers” will eagerly abandon the WFP. Next, various supporters of congestion pricing will seek “exemptions” from the new fee and Cuomo will again choose winners and losers, and losers there will be.
Maybe the WFP and sensible transit folks will open their eyes and sue to protect the Legislature from itself. They could and should win that lawsuit. But until and unless we insist on the dusty and arcane rules that make a democracy, we will continue to erode the political virtues we claim as uniquely American.
Protecting the rule of law is never the mission of the advocates and true believers. It’s left to old lawyers and wise men and women to stop the mob and protect our freedoms. It is an ancient struggle. Consider these words from the 16th century: “This country’s planted thick with laws and if you cut them down do you really think you could stand upright in the winds that would blow then?” They’re spoken by Sir Thomas More in his struggle with Henry VIII. Great wisdom. But we know what happened to him.