A Better Bicameralism
Perfect bicameralism is far from perfect. When the two chambers of a bicameral legislature have the same authorities, responsibilities, and stature, it complicates practically all legislative matters. It slows the law-making process and creates ambiguity regarding who is responsible for the good conduct of the legislature on the whole. And critically, a divided legislature is one that generally refuses to act institutionally to defend its powers from erosion by the judiciary or the executive. The apparent remedies are unicameralism and imperfect bicameralism — where the legislature is either a single chamber or two chambers with one able to overrule the other.
Unicameralism’s simplicity is alluring, and rightfully so, but especially as the national legislature of a large and diverse nation, its simplicity creates a great danger: that a bare majority would be able to enact controversial, unconstitutional, or dangerous legislation by forcing said legislation through quickly enough to forestall legislative debate, public opinion, and opposition organization. There is simply less time for a legislative battle to be fought; which is an advantage for united majorities, but the unintended consequences could easily be catastrophic, especially in the national legislature of a polarized and divided country. Unicameralism, however, is well suited for municipal and state/provincial/regional governments where the need for a consciously slower legislative process is less critical as there is the further insurance that if a rogue majority enacts dangerous legislation, national institutions can intervene.
I propose a third model, a functional bicameralism that synthesizes the benefits of both the unicameral and (im)perfect bicameral models by dividing a national legislature into two chambers by their functions. A first chamber, or Legislature, to create and implement national policy; and a second chamber, or Overslature, that is oriented expressly towards oversight of the executive branch and revision of legislative proposals.
Functional bicameralism builds primarily upon the imperfect bicameral model but specializes the two chambers. It is the culmination of simple logical progression: if the national legislature is divided, that divide must be functional in both senses of the word. The skills required for legislation and oversight are different for both the representatives themselves and their staff; requiring every representative to be a generalist, and to have staff who specialize in both. A cacophony of Jacks of All Trade, doing Jack. Further, both of those processes are incredibly time intensive. When one sends a traditional legislator to the capital, how are they going to end up spending their time: writing and debating legislation, or overseeing the conduct of the executive?
In reality, it will be a mix of both, but that mix is entirely variable and utterly opaque. One can elect a Senator or Representative who promises to crack down on corruption, but instead finds themselves immersed in agricultural policy. Further, it can leave some citizens with a representative who is more interested in writing policy than oversight. Active and open specialization, on the other hand, allows transparency, clarity, and coverage.
This, of course, begs the question: What would be the relationship between the chambers? That is both simple and rather complicated. The first chamber is the superior chamber. Full stop. It should not be able to be stopped easily, but there must be measures to stop a rogue majority. This is not to say the legislature should become a multi-hundred-person, two-chamber, Locked-and-Loaded Standoff. Rather, that there must be fire-alarms in arms reach — measures to raise the cost of controversial legislation but not to shoot that legislation dead, unless it dies on the floor. In a national assembly, there should not be procedural handguns in every desk, political shotguns under every table. The only death a bill can die must be a death upon the floor. If there is a constructive majority in the first chamber, legislation will almost certainly get enacted. The second chamber, if it dissents from the first, should be able to force the first to make a choice — produce more votes or wait. Unless an overmajority — 60% of that body — rejects the legislation, it will live to be enacted another day. The first chamber can get what it wants, but it may have to wait, or it will have to put its political capital where its mouth is (repassing the legislation with an overmajority itself). Get extra yeas, or wait and then get the yeas you had.
This is not to say that the first chamber cannot conduct oversight investigations or that the second chamber cannot debate or introduce legislation — but that there should be bright, clear lines to delineate authority. Those lines are, admittedly, unwieldy. Think of it as not-so-absolute structural prophylaxis. Each chamber is formally orientated towards one direction (legislation or oversight), but both can dabble in either.
Functional bicameralism is, at its core, an attempt towards legislative primacy and the acceptance of the reality that everything is about trade-offs. This model is Madisonian in its outlook: gridlock is not by its nature bad, but contemporary in its pragmatism — contemporary legislative paralysis (especially in the United States) is the product of too much gridlock. Further, the legislative and oversight roles demanded of a traditional legislative body create a level of opacity that is far from optimal. A legislature must be able to legislate, but it must also have brakes.
Admittedly, this model is not perfect as the trade-offs must be paid in full. It is untested. But frankly, my thoughts come down to a brief battery of questions. Would you rather guess or know? Guess who is in charge? Guess who is responsible? Guess who is watching? Guess who is writing? Guess who is asleep at the wheel? Guess who are the vigilant? I, for one, am rather done with guessing. It is time we guess a little less and know a little more.
