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upper house of the legislature, both in Europe and in New York, was distinctly a class institution, designed to protect a well-defined property interest against a radical unpropertied numerical majority. The English House of Lords represented the landed interests of England. So the first senate of New York, under the constitution of 1777, represented the landed proprietors, as none but freeholders could sit in that body or vote for members of that body Likewise, in some other states distinction was first made between the upper and lower houses on the basis of property or taxation, and it was everywhere contended by the defenders of the system that if both houses were elected by voters possessing the same qualifications, all grounds for the existence of the second chamber would disappear. Although, in the early years of the republic, legislatures and conventions of delegates yielded to the increasing demands for an electorate in which no class distinctions would obtain and swept them away, the bicameral system was nevertheless retained.
It is a significant fact that about the time the check of a distinct electorate for the senate was removed, the practice of protecting the rights of minorities against popular will by means of judicial control developed with extraordinary rapidity. To the judicial control exercised over legislation by the state courts, was added the control of the federal courts, particularly after the enactment of the fourteenth amendment to the Constitution of the United States which, by prohibiting states to deprive any person of life, liberty or property without due process of law, established positive standards for the protection of individual rights against state legislatures throughout the whole American empire.
While these changes affecting the position of the state legislatures were taking place, a third development was exercising a profound influence on the working of the bicameral principle, namely, the growth of strong party organizations capable of controlling, when in power, both houses of the legislature and rendering the idea of the houses checking each other practically obsolete. A thorough study of the operations of the New York legislature recently made by a capable observer shows pretty conclusively the failure of the check and balance principle in actual practice when the same party controls both houses.* The useless and irritating friction which occurs when the two houses are in the possession of opposing parties needs no description here.
In considering whether the provision for a bicameral body shall be retained in the new constitution these facts should therefore be taken into account:
1. The original justification and chief reason for two houses, i. e., the representation of the landed interest in the senate have disappeared with the establishment of identical suffrage for voters for both houses.
* Colvin, The New York Legislature: A Study in the Bicameral Principle.
2. Adequate control for the protection of private rights exists in the fourteenth amendment to the federal Constitution.
3. Party organization destroys the check and balance principle now employed in defence of the theory.
4. When the two houses are possessed by opposing parties wastefulness, friction and political folly usually ensue.
The change to the single chamber system has been effected, after long experiments with the other, in the legislatures of most of the leading cities of the country, some of which have larger budgets than that of the state of New York. Aside from the fact that the reason for the original institution of two houses has disappeared, it has been found as a matter of experience that it adds enormously to the cost of government; it divides responsibility; and it gives opportunity for thwarting the public will through maneuvering for delays and deadlocks that could not obtain with one house. It is, therefore, a matter for serious consideration whether these evils which are admitted to be connected with the system do not outweigh the accepted arguments that may be advanced in support of the bicameral principle.
Number of Members of the Legislature Not Determined by Standards of
Responsiveness and Efficiency
The number of members of our state legislature has always been determined by reference to local, party and historical considerations, and not by standards of responsiveness or efficiency. As a result, we find 402 members to the lower house in New Hampshire with a population of 430,572, and 150 members in New York with a population of 9,113,614. In 1777, when New York had a population of about 300,000, the constitution made provision for 24 senators; in 1821 the number was increased to 32; and in 1894 it was fixed at 50, with an arrangement for adding one more senator upon certain contingencies. The number of members of the assembly was fixed at 70 in the first constitution, at 128 in 1821 and 1846, and at 150 in 1894. If we apply standards of responsiveness and efficiency to the determination of the number of members in a legislative assembly it is necessary to take in account: (1) the means of reaching and keeping in touch with constituents, (2) the number needed for doing the committee and other work of a reviewing and approving body, and (3) time limits upon debate in the transaction of business.
The Relation of Members to Constituencies
With reference to the first it is clear that with the modern press and means of travel and communication a representative to-day can keep in closer touch with 100,000 constituents than his predecessor a century ago could, with one-tenth the number. But this is not all that is required. Citizens should have some means for coming into personal contact with
members of the policy determining branch of the government, so that from this viewpoint a large membership in a state having a large population is preferable to a small membership.
The Relation of Members to Committee Work and Debate
The membership of the legislative body should also bear some relation to the increasing number of activities of the government and provide opportunities for constituencies to be represented in the principal committees. This suggests increasing rather than decreasing membership. With reference to the problem of securing ample debate, however, it may be noted that the United States Senate, a body of 96 members, has been able to maintain substantial unlimited discussion (whereas in the House of Representatives it is closely restricted), and it has also proved to be a remarkably efficient body in the technique of law-making, at least as compared with the lower house.
Assuming that the present organization and procedure are to be retained, the mere fact of numbers is of great importance. While mathematical tests cannot be imposed, it is safe to say that even though a single chamber were established, one hundred members would constitute a large enough working body for the expeditious transaction of business. But it is further to be noted, that with a system which provides for responsible leadership, and in which the legislature is used to enforce responsiveness and responsibility, a much larger membership has not proved incompatible with efficiency, in fact, it has often proved to be of advantage in representing constituencies and in committee work, at the same time maintaining a high order of debate.
Legislature Not Complementary to Other Working Parts
As has been said, there is nothing which will justify a misfit, and one branch of the government is a misfit if it is inconsistent with the purpose of its own existence and is not harmonious in its action with other parts. By this test both the organization and procedure of the legislature are defective. They are defective:
1. In the rules governing its action while in session.
2. In the organization of its standing and special committees. 3. In its staff agencies.
Rules Governing Legislature in Session Out of Harmony With Purpose
The organization of the legislature in session is a simple matter which conforms to that of other large representative bodies, consisting of a presiding officer, clerk, sergeant-at-arms, pages, etc. The difference lies in the procedure governing the debate and the taking of votes. Already these defects have been described. What has been said may be summarized in a paragraph.
Rules Governing Not Adapted to Enforcing Responsibility.
In the development of rules controlling the representative body one or ⚫ the other of two principles has dominated: Either they have been framed for the purpose of locating and enforcing responsiveness and responsibility upon high executive officers-the persons who must transact the details of business; or they have been framed for the purpose of gaining direct control over executive subordinates, thereby vesting responsibility in that body both for legislative or administrative acts. With all the variations in details of organization and procedure, the one conspicuous result of adopting the first principle has been to emphasize inquiry and debate on the floor, while the one conspicuous result of adopting the second principle has been to emphasize the committee, and to prevent real debate. Under the first plan those who must execute are made responsible for the drafting of administrative bills and preparing briefs in support of executive measures, making these executive proposals the subject of openhouse inquiry and debate, the floor being made the opportunity for the " opposition." Pursuant to the second plan, the executive is not permitted to formulate, introduce or defend administrative or any other measures, and the whole procedure becomes one that cannot be followed or understood by either the membership or constituencies.
The first plan is adapted to making government responsible—the purpose of the representative system.
The second plan is adapted only to irresponsible government, as it does not provide for leadership, limits advocacy and defense largely to chairmen of legislative committees, whose ways are secret, deprives the opposition" of all opportunity to question the administration on the floor, applies "gag" rule to debate to force measures of an irresponsible "organization" through each house, and in case of difference, through joint conference committees, whose reports are accepted under the whip, and sends to the executive measures without giving him any public opportunity to participate, except by acceptance or rejection. This is the type of regulation of legislative procedure employed in the state of New York. Nor is the present unsatisfactory character of the rules and of results due to any lack of constitutional verbiage in the organic law itself. Its evils have only grown larger in the efforts of the people to prevent "log rolling," "pork barrel" legislation, and "dark chamber" proceedings by mere restrictions on procedure. The defect is one of fundamental design that cannot be cured by patchwork or safety devices to prevent disaster.
Legislature in Conflict with Authority and Jurisdiction of the Executive The results of the ill adaptation of the legislative machinery for locating and enforcing responsibility that have already been commented on constitute only one side of the picture. A most serious consequence
of the irresponsible use of legislative power, under conditions where inadequate provision is made in the organization of the legislature for direct dealing with the executive, has been the invasion of the field of administration, through the activities of legislative committees which are given in fact (whatever the theory) the power to recommend and refuse to report requests for, appropriations, to create, modify and destroy the administrative machinery, to determine who shall be employed, what salaries may be paid, what supplies and equipment may be obtained, what are the conditions surrounding the service-without any opportunity being given to the executive to state publicly and defend openly in the legislature his reasons for dissent based on real administrative experience. When these powers are exercised on the one hand on recommendations of committees and little or no power is given to the governor to appoint, remove, direct, discipline or control administrative officers and agents, the uniform result has been that all of the functions and processes of administration sooner or later come under the domination of committees, whose membership in turn has no responsibility for results and no accounting to render to the people of the state at large, but on the contrary is interested first of all in local favors or in appropriations, contracts or apportionment laws which affect the partisan organizations.
Standing Committees Not Adapted to the Proper Consideration of Measures Either of Legislation or Administration
In the standing and special committees there is the same lack of coordination with the work of the government that is found in the administrative departments and offices. In connection with this subject the following points should be noticed: (1) The committees of the senate and assembly do not correspond in several respects, although the legislative functions of the two houses are identical. In 1915, the former body had twenty-five standing committees and the latter had thirty-one. Not only is there a lack of correspondence in the committees, but there is a want of co-operation between the committees of the two houses—a need which in some states has led to the creation of joint standing committees, as in Massachusetts. (2) In several instances there is a lack of centralization of work. For example, the senate has one committee on finance and another on taxation and retrenchment in spite of the obvious intimate relation of the two functions. The assembly distributes financial matters among three committees: ways and means, excise, and taxation and retrenchment. In the lower house transportation is divided among committees on canals, railroads, and commerce and navigation. (3) The committees of the two bodies do not correspond precisely with the chief branches of administration which are charged with the execution of the respective laws and whose finances should be adequately scrutinized by the committees.