Power to the Parliaments
The COVID-19 crisis presents a unique and urgent opportunity to rebalance power away from executives and back to legislatures.
August 27, 2020
Aug 27, 2020
21 Min read time
The COVID-19 crisis presents a unique and urgent opportunity to rebalance power away from executives and back to legislatures.
Coronavirus represents a trial by fire for governance around the world, at all levels. But commentary on countries like Brazil, Hungary, India, the United States and the United Kingdom tends to focus narrowly on presidents or prime ministers. Whether through executive overreach (as in Hungary) or executive underreach (as in Brazil and the United States), democratic decline in the time of COVID-19 is understood through the prism of executive policymaking. This focus on executive leadership reflects and exacerbates public expectations that governance in an emergency requires, for better or worse, the concentration of power in the executive.
Whether through executive overreach (as in Hungary) or executive underreach (as in Brazil and the United States), democratic decline in the time of COVID-19 is understood through the prism of executive policymaking.
The pandemic calls for revisiting our political and constitutional script for addressing emergencies in a democracy. For one thing, properly tackling the ongoing pandemic crucially involves the function of legislatures, from allocating funds for economic and medical support to addressing crises produced by school closures and worsening inequality. Social and economic policies and questions of distributive justice call for collective deliberation, not decisive unitary executive action. For another, navigating out of the multidimensional crises of COVID-19 requires building public trust and citizen participation to secure buy-in for massive public spending; the legislative rather than the executive branch is best suited to this task.
We recognize that a call for reinvigorating legislatures as a forum for deliberation and public engagement is a tall order. The pandemic coincides with a low point of trust in representative systems around the world; Americans’ low approval of the U.S. Congress is not unique. Moreover, decades of delegating power to the executive branch as the preeminent site for agile government response to national security threats has diminished legislative authority and impoverished our constitutional imagination about what constitutes an emergency and how to address one. But just as the pandemic may represent a chance to reshape public health policy, it also offers a rare opportunity to redress the balance between the political branches.
The pandemic calls for revisiting our political and constitutional script for addressing emergencies in a democracy.
As we have seen in the variation of government responses to pandemic-related economic dislocation, urgent questions of distributive justice cannot be resolved by recourse to a one-size-fits-all technocratic solution. Instead, policies will succeed where they reflect values that have some measure of public support. This, in turn, requires public deliberation over tradeoffs and building a minimum of public consensus on questions of risk tolerance, commitment to social welfare, and collective solidarity. The emergency we now face is not about national security but social justice. The legislative branch, which holds the power of the purse and reflects a broader swath of the national political spectrum, is the branch that must respond.
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Why does the invocation of emergency coincide with a focus on executive power? A pandemic represents no less of an emergency than a national security crisis, yet the constitutional repertoire for addressing urgent economic and social questions is anemic at best. Exacerbated by the September 11, 2001, attacks and the two decades of the War on Terror that followed, debates on emergencies have focused on the scope of executive power and the need for unitary action. Against the fear of an overweening executive and the demise of civil and political liberties, many scholars and advocates placed their hopes in the judiciary as the locus of constitutional constraint on abuses of executive power. Legislatures, by contrast, have often been sidelined based on claims of their alleged inability to make quick decisions in response to urgent needs and their perceived failure to impose meaningful political constraints on executive action.
This development—enhanced and discretionary executive power, coupled with a judicial guardian of liberal rights and an ineffectual legislature—is reflected in the constitutional discussion of COVID-19, which is by and large conceptualized using the well-worn language of security threats and military analogies. As some analysts have noted, the seduction of the war frame to demand sacrifices from the public and depict leaders as fighting an “invisible enemy” has tempted many governments to twist efforts to address the pandemic into a national security frame. Hand in hand with this tendency are scholarly examinations of government responses focused on executive action, whether overreach or underreach, and judicial checks. Criticism of authoritarian responses to the pandemic is warranted, of course, and the courts will also play a part, but we need a better account of the legislative role.
Legislatures have often been sidelined based on claims of their alleged inability to make quick decisions in response to urgent needs and their perceived failure to impose meaningful political constraints on executive action.
The belief that effective pandemic responses require centralized mobilization of resources and planning of allocation specifically through the executive branch has actually helped validate authoritarian strategies, as seen in the widespread interest in China’s approach. But, as others have argued, a war-like model of planning risks normalizing precisely the kind of bureaucratization and technocracy that decades of atrophied democratic politics and executive aggrandizement have produced. The social challenges raised by the pandemic in a democracy require an alternative toolkit than the one reflexively invoked by emergency repertoires and the national security paradigm. They require public input concerning allocative decisions and deliberative politics on the part of elected representatives.
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Preeminent Role for Parliaments
The nature and distribution of health vulnerabilities and economic risks in the pandemic have raised fundamental questions about basic constitutional values and social commitments in many countries. Some aspects of the COVID-19 emergency entail rights tradeoffs, including contact tracing, compulsory testing, and movement restrictions. Concerns that monitoring protocols will serve to expand the surveillance state are well taken. Other questions about rights involve issues of economic redistribution and social investment rather than the familiar negative freedom debates about liberty-versus-security. The pandemic has made visible, to an unprecedented extent, the consequences of longstanding patterns of structural racial discrimination and socioeconomic inequality.
By raising the profile of these systemic problems, the pandemic has already produced a great deal of public debate and triggered overdue deliberation in newspapers and social media, on the streets and in the corridors of power, charting a roadmap for the kinds of participatory politics essential to forging consensus around redistribution. Addressing the consequences of the pandemic will require behavioral changes on a massive scale. In democratic systems, the kinds of structural reforms that are called for require public buy-in. Rebuilding a social compact to address the effects of the crisis is ultimately the slow, arduous, and deliberative work of parliamentary politics.
In democratic systems, the kinds of structural reforms that are called for require public buy-in. Rebuilding a social compact to address the effects of the crisis is ultimately the slow, arduous, and deliberative work of parliamentary politics.
Legislatures are designed to represent the broadest swath of a democratic society’s underlying political spectrum. They offer a forum for public participation—through hearings, public comment periods, civil society consultations, open floor debates, and ad hoc mechanisms to solicit citizen involvement—usually unavailable in the executive branch (though sometimes replicated by administrative agencies). Yet the role of legislatures risks being reduced to oversight functions over executive policy or the delegation of additional authorities to various ministries and administrative agencies. These cramped expectations of legislatures should be broadened. The pandemic represents an opportunity to revisit our constitutional imagination about emergencies; instead of fetishizing decisive action and expertise it is an opportunity to reinvest in democratic practices and deliberation.
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Legislative Track Record
But how have legislatures fared to date? In countries like Brazil, India, Russia, and the United States that are experiencing renewed waves of infection, or in regions that are just now beginning to see infections accelerate for the first time, the role of the executive will likely continue to be the focal point of attention, for better or worse. Where infection rates are accelerating, the work of parliaments has been directly impacted due to concerns that in-person meetings may become vectors for contagion. Parliaments around the world suspended their activities for weeks and even months following the imposition of lockdowns; in some places there are real concerns that suspensions are being extended as a pretext for silencing legislatures.
Elsewhere, however, legislatures have developed policies for online deliberation and voting though protocols for remote convenings remain largely provisional. Still, even under these conditions many legislatures acted to pass emergency economic measures to address the immediate impact of the crisis on jobs, businesses and housing. (Sub-national legislatures often undertook similar measures, as for example Massachusetts and California in the U.S. context). Some legislatures appropriated additional funds to shore up public health infrastructure. In many cases, the scale of these measures was unprecedented, signaling the magnitude of the crisis but also a need to lay the groundwork for more participatory and inclusive processes in managing the ongoing pandemic response.
Addressing insufficient and uneven public investment in critical infrastructure, deciding on a new allocation of social goods and undertaking measures of economic redistribution all depend on the fiscal authorities of the legislature. More spending in the short term and dividing the economic pie differently in the medium and long term, in turn, requires building public support. Coordinating an effective response to social emergency involves both deliberating issues of distributive justice and attaining public buy-in for new policies.
The countries that have been most successful in addressing the pandemic’s socioeconomic impact have been those with parliaments that were engaged in both oversight and policymaking from the start.
Preliminary evidence from the first months of the pandemic suggests that the countries that have been most successful in putting measures in place to address and stem the socioeconomic impact of the pandemic have been those that acted based on strong social consensus and had parliaments that were engaged in both oversight and policy-making from the start. For instance, while Sweden’s choices in handling the pandemic have been subject to intense international scrutiny, the country’s unconventional approach was grounded in broad public support and trust in the country’s public health approach. Whatever Sweden’s outcome in terms of containing infections, the social consensus underlying its approach bodes well for the likelihood that the Swedish public will provide input and participate in deliberations over the country’s choices.
Active parliamentary engagement is also exemplified in the cases of Belgium, Germany, Finland, and Taiwan. Each of these countries is notable for having successfully and rapidly “flattened the curve” through a mix of executive and legislative action. But where success in containing the virus’s spread depended largely on adopting and implementing the right public health measures (ranging from mask-wearing protocols to contact-tracing systems), success in addresing the pandemic’s socioeconomic impact will depend to a far greater extent on the quality of democratic processes, institutions and governance. For those countries that already show signs of being better able to tackle the distributive consequences of the pandemic, there is some variation in the reasons that legislatures have been active participants in policy-making: in Belgium, a minority-party led coalition in parliament has served both as a more effective check and a more engaged partner for the executive than might have been the case had the government been able to depend on legislative support through party control.
In Finland, the parliamentary tradition of active executive oversight meant that emergency decrees went through a rigorous, pre-established process of scrutiny by a standing Committee on Constitutional Law, evaluating the constitutionality and fundamental-rights-conformity of executive action. Even when urgent emergency decrees were at stake, hearings involved external constitutional law experts, whose opinions were made public and hence subject to popular scrutiny too. In Germany, the Bundestag (federal parliament) has been active since the early days of the pandemic both in weighing in on infection prevention measures and in adopting measures to mitigate the pandemic’s socio-economic consequences. On a single day, March 25, 2020, the Bundestag modified the country’s Federal Infection Protection Act, passed legislation intended to protect tenants unable to pay their rent, and adopted the largest assistance package in German history, aimed at bolstering the economy by providing protection for employees, the self-employed and businesses.
Taiwan may be the only democracy in the world that managed to “flatten the curve” of COVID-19 cases without issuing any executive branch emergency decrees. Rather, the country adopted vast preventive measures against the spread of the virus, as well as economic stimulus packages, through ordinary legislation by parliament. Taiwan’s unique legal structure and legislative capacity stems from reforms made seventeen years earlier, following the SARS epidemic of 2003. The country also has in place constitutional restrictions on the use of emergency decrees to authorize administrative orders, restrictions that were upheld by a Constitutional Court decision in 2002. Without the option of swift executive action and the usual emergency scripts available in other constitutional orders, the legislature proved itself remarkably adept at pandemic response, garnering well-earned praise for measures that protected the population while preserving democratic practices.
There is a unique window of opportunity to reset the balance of power between the political branches.
New Zealand similarly emerged in 2020 as something of a pandemic darling—quick government action prevented the spread of infections and eventually eliminated the presence of the virus in the country for a time. Public support for the prime minister’s approach was so broad that the main opposition party’s attempts to criticize her policies resulted in the ouster of that party’s leader. As the country heads into parliamentary elections this fall, electoral debates are highly focused on how best to handle the economic fallout of the pandemic, suggesting that New Zealand’s legislature will be central to deciding the questions of distributive justice raised by the crisis.
A staggering number of issues have been affected by the pandemic and require responses ranging from rethinking priorities in public health investment to changes in electoral processes to mitigate public risk to the possible regulation of religious gatherings and much more. Delegating this task to the executive would mean placing critical choices beyond the reach of citizens in ways likely to exacerbate democratic decline as disempowered publics become more cynical about supposedly representative politics. By contrast, legislatures can act in ways that solicit participation and input from ordinary citizens and civic groups in formulating social and economic choices. Representative democracy is not simply a matter of electoral politics; it is a cyclical process of opinion formation and voting, involving formal authorization of elected representatives and constant informal inputs from society including direct participation in deliberation where circumstances demand greater buy-in. Moreover, the process of policy formulation should be iterative and open-ended in a system of democratic deliberation. If one set of policies does not yield appropriate results, a nimble and inclusive process can respond to such feedback and course correct. Countries as varied as Finland and Taiwan demonstrate the benefits of an active and engaged legislature in securing public support for policy goals even in the midst of a pandemic.
This brief survey gives a sense of what parliaments can offer in a social emergency. But our argument is less about current performance than about the window of opportunity to reset the balance of power between the political branches and revise the existing constitutional emergency repertoire in countries where power has shifted dramatically to the executive. As countries grapple with everything from education equity under conditions of remote learning to racially disparate health impacts to addressing job loss and dislocation this fall, democratic polities will gain significant advantages if they invest in public deliberation and legislative policy-making rather than continuing a drift towards executive aggrandizement. Missing this chance will not only compromise the legitimacy of whatever policy approach is adopted, it will accelerate rather than reverse important underlying causes of democratic decline.
• • •
Meeting the challenge means engaging democratic publics in the hard work of forging a new compact on economic and social rights. A swaggering executive wielding emergency powers will not do the trick in this crisis. Yet the reality of the intense political partisanship and polarization that has gripped many national legislatures the world over—not least the U.S. Congress—suggests that forging a new compact in parliament requires rehabilitating deliberative practices in the legislative process. What might this mean?
First, it is important to be clear about how best to understand contemporary polarization. After all, partisanship is actually at the core of the political process. Parliaments in representative democracies achieve representation through the inclusion of elected members of political parties, which, in turn serve ideally as a rough proxy of the spectrum of political viewpoints held by the citizenry. That members of parliament are committed to their partisan positions is precisely the reason they were elected to represent their constituents. But at present partisanship has come to be seen as a dysfunctional obstacle to constructive deliberation rather than a condition of political representation.
In the United States, the reason for this dysfunction has much to do with hyper-polarization—something that has happened in many other parts of the world, too, particularly in the aftermath of the 2008 financial crisis. The effects of such polarization are especially problematic in a bipartisan political system where competition is reduced to two parties and elections produce single-party control in a unicameral system (or single party control of each chamber in a bicameral parliament). Because Congress can only pass laws that enjoy consensus support, divided government necessarily slows the pace of legislation.
Reinvigorated participatory deliberation is not only necessary to secure buy-in for inevitable pandemic-related shifts in the public provision of social goods but would also improve the political health of constitutional democracies.
Yet slow congressional negotiations and compromise-making does not necessarily mean legislative dysfunction or paralysis. It is worth noting that Congress began to act in response to the pandemic in January well ahead of the executive, with lawmakers issuing warnings about critical issues while the president downplayed risks and amplified misinformation. A House Foreign Affairs subcommittee announced hearings about the virus in late January and held the first hearing on February 5 with testimony from nongovernmental public health experts. Three more hearings were held by the same subcommittee over the next few weeks, and the Senate engaged in comparable efforts to take public input and demand information from the administration.
These hearings consulted civic groups and nongovernmental experts and used this input to raise the right questions about issues ranging from whether quarantining was appropriate, to the adequacy of PPE stocks to what precautions needed to be put in place to protect people who were incarcerated. Even as the executive response was stalled, Congress acted in early March to provide emergency funding for coronavirus preparedness, in mid-March to guarantee free coronavirus testing and expand food security and by the end of the month had a adopted a $2 trillion economic aid package followed in April by another half trillion to replenish paycheck protection assistance to small businesses. The relief package passed on March 25 boosted unemployment payments, provided loans to small businesses, and deployed resources to hospitals and essential businesses among other measures. These legislative moves came at a time when the U.S. death toll from the pandemic was at just over 1,000 deaths. But in the months since that early response, partisan finger pointing rather than effective legislative action has been the order of the day. The failure of negotiations over measures to extend unemployment benefits in recent weeks attests to the risk that divided government produces paralysis at times of crisis.
How can the representative benefits of partisanship be preserved while addressing the dysfunction that produces this kind of congressional deadlock? While there are many causes of polarization in the U.S.—including soaring socio-economic inequality and the effects of media ownership structures—three structural features of legislative electoral and procedural rules deserve attention for their role in inducing obstructionism and diminishing the quality of democratic deliberation: partisan gerrymandering, campaign finance, and the filibuster.
Much has been written about the deleterious effects of partisan gerrymandering in the United States. Partisan control over the redrawing of congressional districts every ten years is directly related to the hyper-polarization in Congress. With districts drawn to guarantee seats to a particular party, candidates have more to fear from primary challenges within their party than from losing to the other party. This encourages sharper ideological divisions—candidates are selected for their appeal to a partisan base rather than their cross-party appeal when districts strongly favor one party—eliminating incentives for compromise once in office. Having a non-partisan commission control redistricting would make lawmakers more accountable to the full range of their constituents rather than the extremes of each party.
Similarly, the influence of wealthy donors has turned presidential and legislative election campaigns into a lucrative multi-billion dollar industry with many policy issues subject to elite capture rather than deliberation. Wealthy ideological groups and donors dominate campaigns driving candidates to take uncompromising positions to attract funds. The frenzy of lobbyists that recently descended on Washington to demand their share of the coronavirus relief bill is another example of the corrosive influence of money in politics. Again, here, solutions for campaign finance and lobbying rules have long been debated, including a recent package of democracy reforms advanced in the House with the support of a coalition of more than 145 organizations. Introducing a public system of campaign funding would restore the role of ordinary citizens as the principal constituency to whom elected representatives are accountable.
Finally, addressing voting rules—such as the filibuster—that reward partisan obstructionism over deliberation and compromise would address a third source of legislative deadlock. The filibuster is an idiosyncratic American legislative voting rule that requires a supermajority of sixty supportive senators for an issue to come to a vote. In practice, this means that the Senate is one of the few legislative bodies in the world that cannot act when a simple majority supports an ordinary motion.
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Not only in the United States but in many democracies around the world, the deliberative role of legislatures is in need of rehabilitation. Shifting power and control back from the executive to legislatures in a time of crisis means attending to the rules and frameworks that ensure fair legislative elections and sensible procedural rules that induce better deliberation and the possibility of consensus and compromise. Whatever the particular collection of fixes that might be envisioned in a particular country context, an appropriate balance between the political branches can only be restored if legislatures are understood as representative and effective institutions capable of forging a measure of social consensus.
Parliaments embody the principle of wide social representation and should take the lead in setting policies concerning health, education, social security and welfare in systems around the globe.
Democracies are cacophonous and imprecise, qualities that have sidelined parliaments in favor of overweening executives and the promise of decisive response to emergency. But the cacophony of legislatures should not be taken simply as another artifact of polarization; this is what decision-making processes should look like under conditions of political freedom. The liberty to express and promote a diversity of opinions, ideologies and preferences, and to make mistakes, are not reflections of carelessness but the necessary foundations for political processes of learning and self-improvement. In the place of a national security epistocracy empowered by the executive, a social emergency requires transparent, representative and iterative decision-making processes that are broadly inclusive and encourage public participation. Parliaments embody the principle of wide social representation and should take the lead in setting policies concerning health, education, social security and welfare in systems around the globe. Legislative processes also typically feature more mechanisms for gathering citizen input. Policy formulation in the context of social emergency must place even greater emphasis on feedback loops between parliamentarians and the public.
Reframing this moment of social emergency as an opportunity to revisit the basic social contract around economic and social rights—and correct for their disparate allocation—places the emergency frame in proper perspective and invites a renewed democratic politics that may yet serve as an antidote to democratic decline. Reinvigorated participatory deliberation is not only necessary to secure buy-in for inevitable pandemic-related shifts in the public provision of social goods but would also improve the political health of constitutional democracies. We agree that this may call for a sort of civics lesson that requires both legislators and citizens, confronted by urgency and uncertainty, to re-educate themselves in the basic activity of forging shared judgments about common purpose and the allocation of collective resources.
Worldwide mobilizations against racism provide an excellent blueprint of the ways in which democratic publics can shape the agenda and set priorities, demanding a fundamental restructuring of social and legal policies in ways that are responsive to the vulnerabilities made manifest by the pandemic. The social emergency offers an opportunity to reinvest not only in health infrastructure, social welfare and institutional anti-racism, but also in the collective participatory practices at the core of constitutional democracy. The global wave of protests over systemic racism, state violence and attendant inequality against the backdrop of a global pandemic have already occasioned in some places the kind of public deliberation and legislative engagement necessitated by a time of social emergency. The protests have forced a long overdue set of conversations. Building on that momentum as a form of democratic reset may provide a rare silver lining in the midst of so much despair.
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August 27, 2020
21 Min read time