The idea that democratic forms of government require ‘checks and balances’ is long established. However, it can be interpreted in different ways. This blog looks at the concept from three different perspectives. From each viewpoint the concept has been eroded. The question is whether we should accept the erosion of checks and balances, or instead, look for new ways of introducing grit into the oyster of collusive forms of government.
There are three rather different ways of trying to make sense of the idea that democracies need checks and balances in today’s world. The first, is to think of checks and balances in terms of different centres of power. The second, is to think of checks and balances in terms of different and competing interests. The third is to think of it in terms of the deployment of different types of rationality in democracies.
The oldest way of envisaging checks and balances is in terms of centres of power. Different centres of power, the legislative, the executive and the judicial, each have their own distinctive source of power and authority, and each can hold the others in check. In today’s world these traditional centres of power have been joined by unelected bodies such as central banks and economic regulators that together form an additional branch of government composed of expert bodies. In one sense unelected bodies can be seen as a dependent branch because they depend on legislative and executive action for their existence. But they have their own ‘epistemic’ authority.
The Westminster model of parliamentary democracy stands as a partial exception to each power based on its own distinctive sources since the executive is conjoined with parliament. The House of Commons has a dual role, both to empower a government through providing a working majority, and to hold that government to account.
Another way of looking at checks and balances is in terms of holding different interests in check. In this conception the legislative branch can be seen as representing the interests of a democratic majority, while the executive branch might be more inclined to be swayed by particular interests representing business, the wealthy and ‘in-groups’ with access. Expert bodies reflect both ‘macro’ concerns for the economy or sectors of activity as a whole, and ‘micro’ concerns for how individuals or particular businesses are affected. The role of the judicial branch is to act as a review and appeals body against the overstepping of their terms of reference by any of the other branches. The judicial branch itself is meant to be impervious to, and not swayed by, any special interests.
A third way of looking at checks and balances is in terms of the deployment of different types of rationality in society. The legislative and executive branches reflect ‘associative’ reasoning where people align with the views of those with whom they associate or identify, including through the social media. By contrast, unelected expert bodies reflect the importance of evidence-based reasoning, drawing on the natural and social sciences. The law is different again. It reflects the importance of sequential reasoning, where the reasoning involves a progressive winnowing out what is relevant or not to a particular case. It is sequential in the further sense of referring to precedents already established in the same field.
From whichever perspective is adopted, in practice, checks and balances have eroded. They have been eroded by the influence of political parties, the common interests of institutions with power and the linkages between professionals in the different centres of authority.
The idea that different centres of power can call on their own distinctive forms of authority has been weakened by the overriding importance of party affiliations for mobilising the electorate. Party politics dominates the different legislative bodies and both the legislative and executive branches. Despite any differences in the principles of electoral representation, if the same party holds power in both chambers of a two-party legislature and also holds executive office, then legislatures and executives will act together rather than as checks on each other. Checks and balances conceived in terms of checks between different elected centres of power will only work if different political parties control legislatures and executives. In the Westminster model, accountability depends on a vigorous opposition party.
Party platforms can also blur different types of rationality. Although the judicial branch remains largely separate from electoral processes, the US example demonstrates how the prior beliefs of appointees to Supreme Courts can be salient in party political terms. If the appointees to the judicial branch carry strong prior beliefs into their task, then the sequential logic of the law is also damaged.
In theory, party affiliations offer a defence against the dominance of particular interests. Political parties have to offer platforms with broad appeal in order to gain office unless they target a minority role in coalition formation. Competition between political parties also means competition between different interests. However, the decline of parties as mass membership organisations also means that they are more vulnerable to control by their leaderships and the interests close to the leaderships. Leaderships may share a common milieu of Washington or Brussels or Westminster.
When assessing how institutions and actors behave, political economists have long emphasised the importance of self-interest as a motivation. In theory, self-interest should work in manner consistent with checks and balances. Each institution has a self-interest in maintaining and exercising its own authority. However, what works against this is when interests coincide. For example, in the case of the EU, each of the main institutions, the Commission, the European Parliament, and the Court of Justice (ECJ) have a common interest in driving towards ‘Ever closer union’. By acting together, they can further each of their own interests.
In this situation, interest representation will also be skewed. EU institutions will each be particularly responsive to those interests that themselves have a self-interest in promoting policies made at the EU level.
In addition, in the case of the EU, the advantages of different rationalities will also be diminished. Evidence based reasoning will be weakened by what is known as ‘confirmatory’ bias and ‘framing’ bias where public policies are framed in a way to presuppose the need for policy to be conducted at the EU level and evidence sought to confirm that viewpoint.
A third influence that might override checks and balances comes from what are called ‘linked ecologies’. The idea of linked ecologies flows from the importance of professionals and experts in determining public policy processes and outcomes. According to this view, actors in each of the different fields, politics, the law and in unelected bodies will find professional advantages in linking together. For example, an unelected Environmental Advisory Commission, might form alliances with environmentalist lawyers in the judicial branch and with elected representatives in legislatures who have an interest in the same area. Each gains status and position in their own professional world by forming alliances with like-minded actors in other branches. The behaviour blurs the different rationalities, privileges professional association over and above other expressions of societal interest, and cuts across the different centres of power.
Do we need checks and balances?
One possible reaction to this situation is to accept that the idea of checks and balances has lost its relevance for contemporary democracies. The erosion of checks and balances may even be seen as a good thing. Political parties are needed to mobilise electorates. A common institutional interest driving towards an ‘ever closer union’ might also be seen to be in the general public interest in Europe. Professionalism is needed in today’s science and technology-driven world. The linking of like-minded actors across the different ecologies can also be viewed as exactly what is needed in order to ensure the observance of values and standards that apply to all forms of public authority regardless of who wields authority and how it is exercised.
There are however two dangers for democracies if we set aside the idea of checks and balances. The first is the traditional concern that those who have power will misuse it in the absence of checks on how they exercise it. The second is that democracies will lose their adaptive qualities. In order to adapt to constantly changing circumstances integrity in each of the different ways in which societies can reason about the public good is needed and there also need to be ways in which new or neglected interests find expression.
Over the last two decades, we have seen enormous adaptations and changes in the way citizens as consumers have received more personalised and immediate services in the market as a result of the disruption caused by the on-line platform providers. By comparison, democracies remain slow and have become brittle and fragile. Markets work in real time; politicians work in their own time. If we wish to restore the adaptive qualities of democracies, we need perhaps to think about introducing similar disruptions to the ways in which democracies deliver public policies.
There are two outstanding blind spots in modern democracies where there is a case for disruptive change in order to better represent the interests of today’s citizens and to better reason about the public good. The first concerns gender and the bias towards the masculine; the second concerns inter-generational issues and the bias towards age.
Attitudes towards the masculine cut across many of the forms of diversity we see in modern societies – across beliefs, across social affiliations and across attitudes to authority. Currently, legislatures are themselves heavily biased towards masculine representation. In the US women account for only about 25% % of Congress. In the UK about two thirds of the House of Commons is male. The corrective would be for equal representation of men and women to be made mandatory in legislative bodies.
A further disruptive change would be to change the basis of representation in second chambers. In particular there is a case for different representation between generations. The current distribution favours older generations. Around 80 % of the US Congress comprises those over the age of 50, about the same in France and around 70% of the two Westminster chambers. In order to correct this bias, representation in the second chamber might be confined to those between the ages of 25-50 in order to ensure a greater weight to those with dependent cohorts of both young children and elderly relatives. Age groups with dependent cohorts at each end of the age spectrum might be better placed to reflect on the way public policies affect allocations between the different generations and better positioned to check majorities in the first chamber.
Changes to the way genders and generations are reflected in democratic institutions would rebalance power, interests, and patterns of representation. They are not the only changes needed. For example, further changes are needed in the EU in order to address the so-called ‘democratic deficit’. However, the idea of checks and balances remains relevant for democracies.