Opinion: Senate Seeking to Sharpen Oversight Claws with Unprecedented Power Grab

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Opinion: Senate Seeking to Sharpen Oversight Claws with Unprecedented Power Grab

Written by Deepest House
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(Europeia – March 16, 2021) – The Senate recently began debate on a proposal that would allow the legislative chamber to refer Cabinet members for criminal prosecution and punishment. The idea that the legislative branch should be able to refer for criminal prosecution a Cabinet-level official for anything related to the performance of their job within a separate but co-equal branch of government is absurd. At the fundamental philosophical level, no third party organization has the right to take away from, or sanction, an individual more than that which it grants. The Senate confirms a cabinet member to their position via confirmation vote. The Senate is limited only to the removal of that confirmation in the event it becomes unsatisfied with the work performance of a Cabinet official. The Senate fundamentally does not have the right to apply additional sanctions on an individual beyond the granting of that position because the position is all it has extended to that individual.

Beyond the fundamental philosophical principles that prevent the Senate from rightly sanctioning an individual beyond the removal from their post, there are a litany of practical reasons why this legislation is completely unnecessary.

The first is that the Senate is simply trying to fix a problem that doesn’t exist. Why doesn’t it exist? The Senate, for years, has failed at conducting meaningful oversight of the executive branch due to its own shortcomings to prioritize and establish effective mechanisms for such activity. Attempting to hang criminal penalties over the heads of Cabinet members for failing to comply with Senate demands is not an effective oversight mechanism. Indeed, the Senate should perhaps instead spend the time and effort budgeted for this bill and actually just develop effective mechanisms, or simply conduct basic, ongoing oversight instead. Perhaps they’ll see that the executive branch is actually comprised of reasonable people who will answer questions when asked. Essentially, for the Senate to solve its oversight problem, it needs to look inward at itself and not outward at the executive. The executive branch isn’t the problem here (if we really even have an oversight problem).

The second reason this legislation isn’t necessary is confirmation hearings are already rote, perfunctory, and nearly meaningless. They are usually filled with questions about schedule, availability, priorities, etc., and not focused on what they should be: why is this person actually qualified for the job, and can the Senate affirmatively assess those qualifications. Indeed, we’ve already seen the death of the secondary confirmation proposal because the region recognizes that asking questions of Cabinet members isn’t effective oversight, and such efforts won’t provide a meaningful result. Removing a non-performing minister is effective oversight. Writing legislation that restricts the executive branch from taking dangerous, unilateral actions that harm the region is effective oversight. Asking questions is not effective oversight. We shouldn’t pretend it is, and we definitely shouldn’t pretend it is so important that the Senate should have the power to refer Cabinet members for criminal prosecution for non-compliance. If the region has collectively understood for a while that asking questions of Cabinet officials isn’t effective oversight, why does the Senate suddenly feel the need to threaten criminal liability for something that is rather meaningless?

I must also ask: what tool does the Senate currently lack to conduct effective oversight? It certainly isn’t this proposal. I’m unaware of any incident in which a Cabinet official has simply thumbed their nose at the Senate and instructed the legislators to mind their own business. If such an event were to occur, the penalty certainly shouldn’t be referral for criminal prosecution. We should remember that day-to-day management of Cabinet members is the responsibility of the president, not the Senate. If the conditions within a ministry are so dire that the Senate must call a Cabinet official before them to explain what is happening, then conditions are probably bad enough to warrant removal. And if conditions are that bad, and that Cabinet official is completely non-responsive, it isn’t even a question what the next step for the Senate should be: removal. So what’s the point here?

Ultimately, a Cabinet official doesn’t, nor should they, answer to the Senate on day-to-day operations. They answer to the president. With that in mind, if the president hasn’t been able to correct the deficiency, or is unwilling, then the Senate can step in and remove that Cabinet official. But the Senate doesn’t need to be asking “why did you choose not to do X as part of your duties as minister?” That’s the job of the president. That isn’t to say that a Cabinet official shouldn’t be responsive to inquiries from the Senate. A good Cabinet official will be. And I believe history has shown they have been. But if they aren't responsive, that isn't a criminal problem, nor should it be. So again, what’s the point here?

Threatening criminal prosecution for a potential problem that doesn’t currently exist, nor to my knowledge has ever, doesn’t solve any problems, and would only serve to undermine the relationship between the co-equal branches of government without adding any value. It is a slap in the face of the countless professional public servants who have filled Cabinet roles in the past and the future. It is the Senate saying “Despite a lack of evidence to support our thought process, we don’t think the executive branch will be responsive to our information requests, and we want them to know we mean business about asking questions.”

I alluded to it above, and it is worth asking: has Senate oversight failed? Perhaps it has failed inasmuch as the Senate itself must feel so, otherwise it wouldn’t waste time on these kinds of legislative shenanigans. But where have we seen a lack of Senate oversight resulting in a rogue executive branch? Where have we seen the executive branch effectively discard oversight and continue on a path unabated, completely against the will of the Senate? That path could be nonperformance, a foreign affairs overreach, internal domestic failures, etc. But where has it happened that the Senate has tried to rein in an executive branch and been unable to do so? And if it has happened, did it happen because the Senate lacked the tools to stop it from happening, or did it happen because the Senate let it happen?

One takeaway I have from this is that perhaps this group of senators lacks legislative vision for what is possible during their terms, and thus are looking for something to do. I don’t know if that’s true, but by focusing on a philosophically flawed bill that would refer Cabinet officials for criminal prosecution for not answering questions, I do wonder. I would much rather see our elected officials focus on meaningful legislation that can shape the now and future of this region rather than invent a problem that doesn’t exist, overreach their power inappropriately, and undermine the relationship between two co-equal branches of government. And if it is true that this group lacks legislative vision, the good news is we have a Senate election right around the corner and perhaps we will see candidates with a true legislative vision for the Senate, and not one moored in petty criminal punishments for what we as a region have already decided is a rather meaningless exercise anyway.

This legislation is unnecessary and a waste of time. If there is an oversight problem, the problem is with the Senate itself, not the executive. If the Senate wants to reform or otherwise improve oversight, there’s an easy way to do it: just perform actual oversight when there are shortcomings within the executive branch. The Senate has all the power it needs to do so … it just has to do it.

 

[Calvin Coolidge]

Another installment in the amazing series of DH articles on the Senate. My thoughts are mostly represented here, as well, and I hope the Senate does not pass this bill.

 

[Malashaan]

I'm not a fan of the legislation in its current form and think it's largely an example of a classic Euro mistake of trying to legislate rather than use existing authority that is more than adequate for purpose. That said, this article opens from a position that is incorrect as a matter of law.

The Senate fundamentally does not have the right to apply additional sanctions on an individual beyond the granting of that position because the position is all it has extended to that individual.

This is fundamentally wrong. The Senate does not only have the power of confirmation and removal, it also has the legislative power. And with that power comes the ability to place limitations on the executive and define crimes. Powers it has exerted since its earliest days. EA3. (2) of the Constitution expressly authorizes placing statutory requirements on the cabinet, which is more than broad enough to encompass the proposed law. Section 22 of the Criminal Code has long made it a criminal for a Minister to lie to or otherwise deceive the Senate, which is undoubtedly a sanction beyond what the Senate granted the individual by confirming them. And of course that is perfectly acceptable because the Senate is not acting in its capacity as the body that confirms appointments under LA7 of the Constitution, but rather in its capacity to make law under LA6.

One could reasonably argue that as a matter of policy the Senate should not define crimes that can only be committed by Ministers, but there is long standing precedent for similar crimes that focus on specific positions (e.g., the crime of Unauthorized Use of Gameside Delegate Functions can only be committed by the gameside delegate, and Abuse of Administrative Powers can only be committed by administrators and moderators). What the current craft does is no different than the definition of any other crime. it does not give the Senate the power to cause a prosecution, or even provide an explicit avenue for the Senate to refer someone for prosecution, it just creates an offense that the Attorney General (or a citizen prosecutor) can prosecute or not.

To bring this back to where I started, I don't think the current raft is going in the right direction. I wouldn't object to stronger statements in the law that oblige the Executive to respond to questions from the Senate with at least a reason why a detailed answer can't be provided. And if that were the law, the Senate would have judicial review available to force compliance without resorting to trying to convince the AG to prosecute one of the deputies of the person that appointed them. And more significantly, without there being a criminal repercussion. But I largely agree with the analysis in this article that notes that the Senate isn't using the power available to it, so changes don't seem particularly necessary.

I personally think what we're seeing here is the end result of a recent trend in the region of obsessing over the concept of oversight for oversight's sake rather than focusing on what is necessary. A major difference between Europeia and real world politics is that the entire population base is small enough that we can all individually conduct oversight. We can all ask questions of the executive and reasonably expect a personalized answer. In contrast, real world populations are orders of magnitude larger making such individualized oversight impractical. In my view, a better focus of Senate oversight discussion would be to explore what, if anything, the Senate can do to provide meaningful oversight that can't be performed by the citizenry at large and the media. I don't think we currently have a good answer to that question.

 

[Deepest House]

Mal, I’ll note that I first characterized this argument from the philosophical standpoint at the start. Of course the Senate can write any law to give itself the right or authority to do whatever it likes.

But ultimately I agree with your other points about an obsession with oversight.

 

[Malashaan]

I know you were being philosophical, but I think that point is philosophically wrong

More specifically, if you pursue that philosophical position to its logical endpoint, the Senate should pass almost no laws at all because they are nearly all placing restrictions on entities that go beyond anything the Senate bestowed upon them. The embassy act limits the ability to create game-side embassies, but the Senate didn't grant regional officers that power, the world assembly act places limitations on the delegate that go far beyond removing any authority that position was granted by the Senate, etc.

Almost as soon as I'd written my first post I also had the additional thought that its really a mischaracterization to say the Senate is granting itself any power here. It's actually granting power to the Executive, in the form of the Attorney General, to prosecute a behavior that would otherwise be legal. There's a sort of indirect power that vests in the Senate in that they can set up a scenario where it's possible for a crime to be committed (i.e., by asking a minister a question) but the power remains with the Minister (who can obviate the issue by simply answering), the Attorney General (who can decline to prosecute), and President (who can dismiss the Attorney General and replace them with someone who will decline to prosecute).

I raise these points because while I think the current law is not the right answer, there's nothing philosophically wrong with laws that enforce compliance with tribunals. We have contempt of court on the books for individuals who don't comply with valid court orders. We have making false statements on the book for individuals who lie to the Senate. There's nothing philosophically different about a crime for refusing to comply with an order of the Senate. I am generally loathe to bring in real world concepts because they often don't apply, but it's not uncommon for legislatures in the real world to have subpoena powers to compel testimony, and that's really what the draft legislation is getting at (although somewhat inelegantly).

 

[Lloenflys]

I raise these points because while I think the current law is not the right answer, there's nothing philosophically wrong with laws that enforce compliance with tribunals. We have contempt of court on the books for individuals who don't comply with valid court orders. We have making false statements on the book for individuals who lie to the Senate. There's nothing philosophically different about a crime for refusing to comply with an order of the Senate. I am generally loathe to bring in real world concepts because they often don't apply, but it's not uncommon for legislatures in the real world to have subpoena powers to compel testimony, and that's really what the draft legislation is getting at (although somewhat inelegantly).

I don’t want to get into a long philosophical discussion here because only a small number of us would be interested in it I think, but I will say I would agree with your point in the final paragraph here *if* the Senate had subpoena power. In our legal system that concept doesn’t exist, and as I mentioned in the Senate I see a significant difference between all of the other laws that have been brought up as criminalizing political behavior, and what this particular law attempts to do. I would also point out that a subpoena can be effectively overcome through pleading the Fifth Amendment or through a claim of executive privilege, and again we don’t really have an analogy for those in our system. All of which is to come back to the main thrust of DH’s position here - and the position I’ve taken in the Senate - that this law is unnecessary and should be left as an idea that was discussed and ultimately passed on.

 

[Malashaan]

Now there's an interesting question. Does the Court have subpoena power? The diplomatic immunity act gives ambassadors immunity from subpoena's issued by the Court, which implies the Court has the power to issue them to anyone else, but there's no other mention of them or how they work.

 

[Lloenflys]

They either exist by implication (come on Judiciary, start issuing subpoenas, let’s get this party started!!), or I guess it is a provision with no effect until and unless subpoena power is granted ...