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Our System of Checks and Balances
To this system of pitting the governor and the courts against the legislature are added innumerable other devices for breaking and distributing authority and responsibility until no one knows who is responsible for anything, except the unofficial boss, whose tenure usually outlasts that of all the official agents. Among these devices may be mentioned the following:
1. A large variety of methods of appointing administrative officers so that no single agency can claim complete authority.
2. Diversity in the terms of officers, applied also to the legislature where senators hold for two years and assemblymen for
3. Diversity in the methods of removal, various agencies being
5. Popular election of some executive officers and appointment of
6. The necessity of constant resort to the courts to determine the limitations on officers in purely administrative matters.
7. Distribution of kindred functions among many authorities in order to prevent centralization.
Development of the Irresponsible Boss.
Operating under the system of checks and balances-on the doctrine of "original sin" in politics, that no one can be safely entrusted with any substantial authority-the legislature, through its control over the finances and over the structure and powers of offices and officers, developed an administrative system in which no leadership was contemplated. The result was that a non-official, outside, irresponsible, partisan organization came to have a dominant influence in determining what should be done, and the affairs of state were shaped through what came to be known as the American system of "log-rolling" legislation and "pork barrel" politics. This irresponsible leadership has been the most conspicuous factor in the American governmental system for the last 140 years—a system which depends on satisfying the demands of small independent geographical constituencies through representatives whose controlling motives have been to commend themselves to the voters of their locality by furthering schemes for local development and by employing methods. styled "invisible government" under the leadership of an irresponsible "boss."
Reaction Against Irresponsibility
During the first century after the Revolutionary War, while each
local constituency represented was striving for capital and population with which to develop natural resources and there was little else than local economic interests to serve, this system, in its various phases called the “spoils system,” was ardently supported or complacently endured. Later, when (through the development of transportation and the broadening demands for commerce) the constituencies that looked to the government came to comprehend the whole state or the whole nation, and the people themselves found that they must of necessity rely more largely on public institutions for protection and for the promotion of conditions favorable to their comfort and happiness, the methods that grew up as a necessary part of an irresponsible management were resented.
The Adoption of Palliatives to Little Purpose
There can be no doubt as to the widespread dissatisfaction with prevailing political methods. There can be no doubt as to the presence of conditions described. The defects in our system have been so vital as to cause some to question the desirability of retaining the representative system. There have been many advocates of direct control through the electorate. In the popular mind the failures of representative government under our present conditions of operation have been often attributed to the system itself rather than to our own failure to provide the essentials to its successful operation. Here, as in other cases, the reaction of popular dissatisfaction has caused the introduction of new devices, the patching up of an old defective mechanism rather than the remodelling of it in such manner as to adapt it to the work to be done. Out of this dissatisfaction has sprung a large number of constitutional and legislative devices, among which are—
1. The direct primary which it was thought would destroy “ the boss” and make all party nominees immediately responsible and responsive to the party electorate.
2. The initiative and referendum whereby the actual legal measures embodying the issues of politics can be submitted directly to the voters for their judgment.
3. The recall through which officers not responsive to popular will may be ousted from their places of power.
To attribute the wide extension of these political devices to a temporary wave of radicalism or to a determination to overthrow representative government would be a fundamental error. The most radical and revolutionary parties of Europe have never spent any time or effort in working for such institutional methods. Their wide extension has been due to a sincere quest for a responsible and responsive system of government. As a result, no doubt, it has been possible to get issues before the people and to introduce a certain amount of responsiveness and responsi
bility, where before it was lacking, but this has been done at an enormous cost, after long delays, and by employment of very complex and labored processes, whereas, by following well-known, well-tried constitutional expedients, very simple and effective methods could be employed to insure responsibility for leadership, for honesty, for efficiency and economy.
What the people have failed to realize is that the cause of their distress has been fundamental, not incidental in character; that they are confronted by a condition that requires radical operation instead of palliatives a constitutional adjustment which will bring into our political system the thoroughly tested mechanism that makes for responsible government and renders impossible irresponsible leadership.
New York Practice a Perversion of the Principle of Representative Government
It is a fact which should not escape attention that the conditions under which governments have been unresponsive to public opinion and irresponsible, dishonest, inefficient, and wasteful have been those in which no provisions have been made for the development of executive leadership and the enforcement of executive responsibility, and that among the most conspicuous examples has been the government of the state of New York-under constitutional provisions in which, in common with our other American states, the principles of direct election of the executive and short tenures have been relied on in lieu of acknowledged and accepted leadership held to true responsibility. What we have failed to see is that there can be no such thing as an intelligent government without leadership, whether this may have to do with public or private affairs.
Nor must we rely alone on the experience of political bodies for this conclusion. Miscarriages in private corporate management have been largely due to the same cause-failure of members to provide themselves with the constitutional means for utilizing official agencies in developing support for responsible leadership on the one hand and an effective opposition to bad management on the other-for locating responsibility, defining issues, and having these directly related to official acts-in short, a mechanism adapted to making the management of affairs responsible. Experience has demonstrated that an institution in which there is no leadership is managed worse than the one in which leadership is developed, even though the leader be an "irresponsible boss." With all of the outcry against the boss, the common sense of the community will support him until some constitutional provision is made. for official leadership, and responsible leadership must, of necessity, be located in the executive.
THE INDEPENDENT AUDITOR
Defects of the Constitution and Statute Law Providing for Current Review and Approval of Financial Transactions
One of the prime reasons for the establishment of representative government was to call the executive to account for expenditures. It is true that the protest which led to the conference between King John and the barons was in the main against "taxation without representation," but a necessary prerequisite to obtaining the consent of representatives has at all times been an executive accounting.
Audit by the Legislative Body as a Whole
In some countries the king or his immediate representatives are required to appear personally and make the statement with respect to the expenditures under past authorizations by the legislative body. "Before the executive can obtain consent to further proposals for money-raising he must do two things; he must satisfactorily explain what he did with moneys previously obtained; he must satisfactorily explain what he proposed to do with future grants." It was from this practice of listening to a verbal statement or account of expenditures that the term “auditing" arose.
Audit by Legislative Committee
The next step in the development of a procedure for enforcing accountability through an independent audit was the appointment of an auditing committee. Instead of all of the members of the representative body being required to attend while an accounting was made, or, to put it in another way, instead of the audit being limited to the attention that could be given by a large body, a few members were designated as a special committee to take such time and to use such means as were appropriate and needful to determine whether the public money had been spent honestly and according to legal requirements. This form of examination also proved unsatisfactory as public business became more extensive and more complex. Examination by an auditing committee of the legislative body came to be merely perfunctory, unless perchance it happened that the work of the committee was dominated by an "opposition member or party. In this event the work of the committee might prove to be quite exhaustive, might have the effect of seriously embarrassing the executive in putting him on the defensive, but it seldom met the strict requirements of an audit.
Creation of an Independent Auditor
A third step in advance was the creation of an auditing department or office, which was made independent of the executive. This consisted
of an officer with such staff as he might find necessary, who was not in any manner responsible for authorizing contracts and payments or for disbursing public funds, but whose duty it was to review currently the business transactions, to inspect critically documents, vouchers and accounts, and to determine whether they had been legal and just. He also went occasionally into questions of revenue raising to determine whether or not the amounts charged and collected and the processes used for establishing rates of charges and collections were in accordance with. the authority which had been given for raising revenue; to determine whether all of the moneys collected had been properly accounted for; and whether proper steps were being taken to collect charges that had come into arrears. The function of this office was something more than that of an auditor. That is, it had the effect, not only of giving to the state the benefit of a verification of the legality of transactions, but, being current in its operation, the review of vouchers and accounts had the effect of preventing the consummation of transactions that would lead to the subversion of public funds. The independent auditor came to be a comptroller of expenditures-a person who was in a position to prevent irregularity and losses due to discoverable neglect or attempted diversion, which were reduced to a minimum.
Provisions of Constitutional Law in New York
No provision was made in the first constitution of the State of New York for an auditor or comptroller. The office was established by statute about the beginning of the last century, and in 1821 the office of "comptroller" was given a constitutional standing. By the constitution of that year the comptroller, as well as the treasurer and a number of other officers were made independent of the governor by a provision for their appointment as follows:
"The senate and assembly shall each openly nominate one person for said office respectively; after which they shall meet together. If they shall agree in their nominations the person so nominated shall be appointed to the office for which he shall be nominated. If they shall agree the appointment shall be made by joint ballot of the senators and representatives of the assembly." The constitution of 1846 provided that the comptroller "shall be chosen at a general election and shall hold office for two years," which provision has been reincorporated in the present constitution.
Defects of the Present Constitutional Provisions
Defects in the constitution pertaining to the office of comptroller are of two classes:
1. It has established the office, but has failed to prescribe the duties which are fundamental to it