I recently served as one of the presenters at an orientation provided for newly elected members of the Louisiana House of Representatives. My part of the orientation was to remind the 32 new representatives, including locals Jean-Paul Coussan, Julie Emerson and Dustin Miller, of some of the basics of American government, particularly focusing on the separation of powers. While this topic may seem dry to those from other states, in Louisiana, where legislative independence is an oddity found only in American government textbooks, it is an entirely different animal.
Of the many “extra-constitutional” powers Louisiana governors exercise, perhaps the most important is the power to pick the leaders of the Louisiana House and Senate and, as an added bonus, to select the chairs of each committee and influence the disposition of seats on the various committees. Governors, having no constitutional or legal justification for interfering in the interior organization of the Legislature, have relied on the willingness of that organization to undermine its own independence. My talk was focused on reminding these new legislators that the separation of powers should exist in reality as well as in textbooks, and that this year was as good as any to start asserting fundamental rights.
Of course, not everybody sees it this way. Point of fact, newly elected Gov. John Bel Edwards is, perhaps understandably, intent on exercising the same powers that all Louisiana governors since Huey Long have exercised, unconstitutional or not. In this context, Edwards has expressed his belief that he could work well with New Orleans Democrat Walt Leger III, the current House speaker pro tempore, and has proposed him as speaker of the House. Recalcitrant Republicans, mindful of the 61 seats they control in the 105-member House, are lining up behind Metairie Republican Cameron Henry. Illustrating the “new normal” for Louisiana politics established in the governor’s race just past, a PAC called Committee for a Free Louisiana has joined the fray, spending money to pressure Republican legislators who might be inclined to side with the governor and vote to install a Democratic speaker.
While it has long been considered the prerogative of Louisiana governors to wield vast influence over the Legislature, the actual basis for much of this power does not appear anywhere in the Louisiana Constitution. Given the irregular nature of these powers, they are usually missed by social scientists comparing the relative powers of governors state-to-state. As a result, the power potential of Louisiana’s governor is routinely placed somewhere in the middle of the gubernatorial pack. If those researchers only knew the truth. The constitutional powers of Louisiana’s governors are similar to those exercised by the governors of other states, but many of the most important gubernatorial powers here exist “off the books” as it were, including the power to dictate to the Legislature regarding its leadership and committee composition, the power to pick winners in the capital outlay process, and the power to dominate the Legislature’s budget process. The governor historically has been aided in this expansion of power by the lack of a strong two-party system that might pose a limit to his or her reach.
In decrying Louisiana’s history of gubernatorial domination in my talk to the incoming legislators, I focused on the importance of a true separation of powers for the legitimacy and proper functioning of a democratic government. As students of constitutional theory will remember, the founders of our country, who were also, in most cases, the principal actors in the state governments, did not establish unitary governments where power is contained in one institution, as in the English Parliament. Instead, they divided power among three separate institutions, the Legislature, the executive (governor) and the courts. They thought too much power in any one institution would corrupt and impair good government, thus invading the freedoms cherished by all Americans. As Madison put it in Federalist Paper No. 47, “the accumulation of all powers legislative, executive, and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” In Federalist No. 48, Madison put a sharper point on it: “an elective despotism was not the government we fought for.”
A distorted and extreme example of the elective despotism feared by Madison was seen in the struggle over the budget in the last legislative session under Gov. Jindal. In that struggle, one of the principal actors was not a Louisiana institution or person at all; it was Grover Norquist, who heads the organization Americans for Tax Reform. Jindal had signed the Taxpayer Protection Pledge proffered by the organization and then stuck to his commitment religiously, refusing to countenance any solution to Louisiana’s budgetary problems that did not cohere to the pledge. Norquist’s perceived control over Jindal was such that 11 leading members of the Legislature felt compelled to write Norquist and ask his “permission” to pass laws balancing the budget. Louisiana citizens rightly bemoaned this situation, which departed about as far as possible from anyone’s idea of a responsive and responsible government by and for the people.
Yet, this “elective despotism” was remediable, if only the Legislature had been willing to seize control of its own fate and determine to be a co-equal part of government. Given the extremities of the situation just described, it is hard to imagine a situation in which allowing the Legislature to assert control over its own direction and function could be worse than continuing under gubernatorial domination.
To be honest, I admit to some mixed feelings about legislative independence. Having witnessed first-hand the effect of Jindal’s short-sighted and ill-advised budgetary machinations on Louisiana universities, I am tempted to say to the legislators, “Give Edwards the power to undo what Jindal has done,” at least in the area of balancing the budget. If that includes granting him his choice for speaker, so be it,. which, I guess, makes me like the sinner who wants God to purify him, just not tonight when he has plans to party. But, taking the longer view, I believe that legislative independence is something that should be supported not only when you think it is to your advantage, but always. The founders were pretty clear about what they thought of the separation of powers: It was an imperative, inseparable from freedom.
Thus, I think it is high time that the Legislature emerges out of the governor’s shadow and becomes a truly independent body responsive to the demands and responsibilities placed upon it by the people of Louisiana. One part of this means choosing a speaker who represents the wishes of that body, not the governor’s. The other part is taking full responsibility for its actions.
I’m not sure my presentation had much effect on the incoming members or whether they’ll be more likely to support legislative independence when pressed. Be that as it may, it is long past time for the Legislature to emerge as a full and equal partner with the governor and demand the right to pick its own leaders. Maybe this is the moment when the Legislature will set a new path for Louisiana government, away from the legacy of Huey Long, toward legislative independence and freedom.
Dr. Pearson Cross is an associate professor in the Political Science Department at UL Lafayette. He holds a Ph.D. from Brandeis University (1997), and his principal areas of teaching are state and local politics, and Southern politics. Contact him at pearson. [email protected].