Do American Legislatures Meet International Standards for Democratic Legislatures?

by Karl Kurtz

In the United States we take it for granted that our 51 legislatures--Congress and the 50 states--are highly developed and that they can serve as models for consideration by other countries seeking to strengthen their parliaments.  But if we look at international standards for democratic legislatures that a number of organizations have developed in recent years, our American legislatures don't meet a few of their benchmarks. 

Does that mean that our legislatures could be improved by paying attention to international practice, or that some of the standards are flawed and don't adequately take into account American legislative practice?  The answer may be a little bit of both.

The three principle international standards are the Commonwealth Parliamentary Association's "Benchmarks for Democratic Legislatures," the Inter-Parliamentary Union's "Evaluating Parliament: A self-assessment toolkit for parliaments," and the National Democratic Institute's "Toward the Development of International Standards for Democratic Legislatures."

I have recently learned a lot about these standards as a result of attending an international conference to assess how they have been used to promote legislative strengthening and discuss the possibility of developing a single set of benchmarks. This experience has led me to conclude that American legislatures can benefit from looking at the international standards and may have something to contribute to their development.

The three standards are very similar to each other but differ somewhat in presentation and content. The IPU's self-assessment toolkit is probably the most user-friendly and accessible for a quick review by a U.S. audience.  It includes a questionnaire on which you can assess your legislature's performance against 62 standards using a five-point scale from low to high.  Its table of contents provides good categories for the benchmarks:

1. The representativeness of parliament
2. Parliamentary oversight over the executive
3. Parliament’s legislative capacity
4. The transparency and accessibility of parliament
5. The accountability of parliament
6. Parliament’s involvement in international policy

The CPA's benchmarks focus on Westminster-style parliaments (as they should given the predominance of the British parliamentary model among Commonwealth countries) and are less relevant to state legislatures.

NDI's "discussion document" on international standards, primarily written by former Wisconsin legislative staffer Scott Hubli, is the most thoroughly explicated of the three and contains rich examples of legislative practices around the world.  I will focus on this publication for an assessment of how well state legislatures meet the standards.

NDI includes 42 standards in 11 different categories.  Each standard is stated in a short sentence followed by a few paragraphs of explanation.  American state legislatures generally meet the great majority of the standards, but there are half a dozen on which they fall short.  In the excerpts that follow I will discuss each of these exceptions.

1.5.1    The legislature shall provide all legislators with fair remuneration and adequate physical infrastructure, and all forms of remuneration and infrastructure shall be allocated on a non-partisan basis.

Legislators as workers also enjoy all workers’ rights afforded to them nationally as well as internationally, through relevant United Nations and International Labor Organization conventions, and relevant treaties.  Like any other public servant, legislators shall be fairly remunerated for their service, and all forms of remuneration shall be allocated on a non-partisan basis. Legislators shall also be given adequate physical infrastructure in which to work. From the standpoint of democratic governance, fair remuneration and adequate infrastructure is essential to opening political participation to all segments of society. If legislators are unable to live or support families on their salaries, only the independently wealthy or those sponsored by wealthy interests will be able to afford to participate in national political life. From the standpoint of separation of powers, it also follows that salary and remuneration levels in the legislative and executive branches should be set at levels so as not to unduly weaken one branch of government....

The issue here is what "fair remuneration" means, and, as usual with such terms, it's in the eye of the beholder.  In all but the 10 or so highest paid state legislatures, legislators cannot "live or support families on their salaries." Legislators in these states have to have another source of income--an outside job, a spouse that supports the family, retirement income or independent wealth. It's why we use the term "citizen legislature."  And it means that most state legislatures don't meet the compensation standard.  A sentence in the narrative for this benchmark about appropriate remuneration for part-time legislatures would patch it up so that most American legislatures would meet the standard, but there would still be a few state legislatures where the pay is so low (e.g., $100 a year in New Hampshire) that it is hard to meet anyone's perception of "fair remuneration."

2.2.1    The legislature shall meet regularly, at intervals sufficient to fulfill its responsibilities.

In a representative democracy, the workload of the legislator will necessarily be heavy with constituency relations, consideration and drafting of bills and the supervision of the executive. To give appropriate time to these tasks, the legislative assembly shall meet regularly and for lengths of time sufficient for each legislator and for each organizational unit of the legislature to engage in their responsibilities, while ensuring that the length of the session is not so long as to unnecessarily prolong the legislative process....

So far, so good on this one: Most American legislators, even ones with very short annual sessions or biennial sessions, believe that their legislature has enough time in session.  The public, of course, believes that they spend way too much time on the job, no matter how short it may be. The problem comes with a further prescription in the narrative for this standard:

...Ideally, to encourage expeditious legislating and to provide time for committee work and constituency relations, a legislature would sit for between 100 and 200 days per year.  Typically, authoritarian and inactive legislatures have met for fewer than 50 days a year.

"Authoritarian and inactive?"  Them's fightin' words in states like Alabama, Arkansas, Georgia, New Mexico, South Dakota, Utah, Virginia and Wyoming, all of which meet for less than 50 days a year (at least in one year of the biennium). The standard "to sit between 100 and 200 days per year" seems overly prescriptive and somewhat arbitrary. The question we usually ask in the U.S. context is whether a legislature spends enough time on the job to function effectively as an independent and co-equal branch of government.  The amount of time required is different for different states.  Despite my quibbles with the details of the standard, whether the legislature meets regularly enough "at intervals to fulfill its responsibilities" is still a question that many state legislatures should ask themselves--and perhaps consider changing their session schedule.

2.2.2    The legislature shall have and follow procedures for calling itself into extraordinary or special session.

Consistent with the principle of the separation of powers in a representative democracy, the legislative, judicial and executive branches must enjoy high degrees of autonomy with regard to their internal procedures and personnel. It follows that the legislature shall enjoy the right to call itself into extraordinary or special session. This right shall be qualified by requiring an act or vote of at least one-fifth, but no more than two-thirds, of members. This right need not necessarily preclude allowing for a special session to be called for by the executive or head of state....

Sixteen states fail to meet this standard: In these states only the governor can call the legislature into special session.  I agree with the international benchmark on this one. All legislatures ought to be able to call themselves into special sessions.

5.3.1    The legislature shall clearly codify the responsibilities of the semi-independent, non-partisan secretary-general. The secretary-general shall be ultimately accountable to the legislature, and the secretary-general’s tenure shall outlast the legislature.

This benchmark assumes that every legislature has a nonpartisan "secretary-general."  The standards fail to accommodate the fact that there are 51 legislatures in the U.S. that do not have such a title. In a few states in which almost all nonpartisan staff are under one umbrella, the director of the nonpartisan staff agency is the equivalent of a secretary general. But the Congress and most states have multiple nonpartisan staff agencies.  American legislatures generally meet the spirit of this standard and could fit under it if it were written in more generic language.

7.3.1    The legislature shall have a non-partisan ombudsman or a similar body that investigates complaints of executive branch malfeasance, makes recommendations and reports directly to the legislature.   

One of the core functions of a legislature in a representative democracy is the role of executive oversight. In regimes where the executive-legislative balance already weighs favorably on the side of the executive branch, the importance of the legislature’s role in exercising oversight of the executive is even more pronounced. To properly enable the legislature to fulfill this key role, and to provide for greater civic access to the levers of executive oversight, the legislature shall have a non-partisan ombudsman or a similar body which investigates complaints of government malfeasance and reports directly to the legislature. This is explicitly called for in the Charter of Fundamental Rights of the European Union: “Any citizen of the Union… has the right to refer to the Ombudsman of the Union cases of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.”  The ombudsman or similar body shall possess three fundamental powers: to investigate, to recommend and to report.  The findings of the investigation as contained in the final report shall then be submitted to the legislature....

Only five American states (Alaska, Arizona, Hawaii, Iowa and Nebraska) have a legislative ombudsman office.  Most American legislators would say that the ombudsman's role of responding to citizen complaints and assisting them in dealing with problems with the government is an important, even vital, one, but they don't see the need for an ombudsman's office.  They would rather perform this function themselves--and they do.  I tend to agree with the prevailing American perspective on this and would favor the standard being written to recognize the possibility that individual legislators who are attentive to constituent service (as almost all American legislators are) can satisfy the intent of an ombudsman's office.

8.1.1    The number of seats in the legislature shall not be so low, and hence the citizen-legislator ratio so high, as to render impossible meaningful constituent relations.

The prime duty of each legislator is to represent his or her constituents. When a community, or a collection of communities, delegates a fellow citizen to represent its views and interests in the national legislature, the elected representative is charged with representing the views and interests of the whole population, including those citizens who may not have voted to elect that particular legislator. But to allow the citizens the opportunity to convey their views, interests and needs throughout the term of the legislature, there must exist a meaningful opportunity for citizens to interact with their representative. There must exist, for instance, resources sufficient to allow legislators to travel periodically to their constituencies to hear from their constituents, as described in § 8.2.1. However, to be able to hear the views of constituents in the first place, the legislator must first have a reasonable chance of engaging with his or her constituents. Thus, the number of seats in the legislature shall not be so low, and hence the citizen-legislator ratio so high, as to render impossible meaningful constituent relations. Stated otherwise, in order to ensure that constituent relations are meaningful, constituencies must be small enough for the citizens to access their representatives.

For most countries with a population of 60 million or less, legislators represent no more than 100,000 constituents. The United Kingdom, for example, has 646 legislators representing around 60 million people, providing for one representative for approximately every 93,000 constituents. Outside of extremely populous nations like India and the United States, it is most frequent for countries to have one legislator for every 40,000-80,000 citizens.

The principle of this standard is valid, but it is very tricky to implement.  The implementation problem is that in populous countries it is not politically realistic to expand the legislature significantly, especially at the sub-national level of government.  The average numbers in the second paragraph of this benchmark are simply not relevant in the American context.  Looking at constituents per state legislative district, 25 state senates and seven houses of representatives have districts of more than 100,000 population. For California's Assembly to get to districts of 100,000, it would require increasing its membership from 80 to about 380 (not to mention the Senate, which currently has districts of 900,000 population).  Not going to happen.  Leaving aside political reality, though, a case can be made that some American legislatures, including the U.S. House of Representatives, should consider increasing the number of members and reducing the size of legislative districts (see "What's the Right Size for a Legislature?").

All three organizations' standards were written with national legislatures in mind.  But all of their authors told me that they thought they were universal and that they should apply to sub-national legislatures, too. Many of my suggestions for changes to the standards would accommodate state legislatures in the U.S. and elsewhere in the world.

All in all, I think American legislative junkies will find it interesting to look into the various international standards and think about how they do or don't fit our context and whether they inspire ideas about strengthening our legislatures.  I'll save the question of what's missing from the international benchmarks for another post.

Comments

[ריהוט משרדי]

According to me democratic principles are far better than other types of government.A democratic nation can develop more compared to other Nations.America is poor in its ruling nd need to learn more from International standards and other democratic nations so that it will be able to enhance its governing features...