Law & Principles , Good Government
It all starts at the top: Reforming Oklahoma’s executive branch
Andrew C. Spiropoulos | January 22, 2019
[For more than two decades, under Democratic and Republican governors, OCPA has made the case that effective state government is not possible when executive power is distributed among many people or made subject to the control of other officials. The article below is excerpted from OCPA’s 2002 book Oklahoma Policy Blueprint, available at Amazon. For more on the need to give the governor appointment power over state agency directors, see Journal Record columns by OCPA’s Andrew Spiropoulos (here) and Jonathan Small (here).]
There is always a sense of excitement, for both the officeholder and the people of a state, when a new governor replaces a long-term incumbent. We are excited no matter the governor’s party or whether we voted for him. We sense this energy because we anticipate change is on the horizon; we will see new faces and new policies, and, potentially, we will be moved by a new vision for our state. This energy and these expectations arise from the emotion of hope, the possibility that, as a result of a heated debate over the future of the state and how we might we improve it, we might actually make progress toward reaching our shared goals.
Unfortunately, however, for both the citizens of Oklahoma and the governor, it is more than likely that this new governor, regardless of party or platform, will not be able to make his or her vision become reality. The new governor will discover that, unlike the president of the United States and governors in other states, he will not have any effective power, even over his own branch’s departments, to make his mark on the state. Both our state’s constitution and the political structure that builds on it conspire to make it next to impossible for any governor to effect positive change.
If Oklahoma is ever to have good government, the governor must persuade the people to change both the state constitution and the structure of the executive branch of state government.
It is always useful when examining the principles of a sound constitution and the science of governing to take one’s bearings from the framers of the Constitution of the United States. Even though the framers may not have lived in a world with large industry, computers, or the Internet, their principles of government are in fact suited for all times and all places. What they understood was that a good constitution, while separating power between the executive branch, the legislature, and the judiciary, provides each of these branches with broad grants of power without putting numerous restrictions on the use of that power or prescribing the specific structures through which each branch will exercise its powers. This broad outline of government authority provides both the flexibility and the power to respond to changing conditions. In addition, the maintenance of a relatively straightforward structure makes it possible for the people to understand how the system works and follow what their government is up to; this makes it easier for the people to hold its officials accountable.
“A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.” —Alexander Hamilton
The particular importance of a strong executive branch to democratic government was best explained by Alexander Hamilton in The Federalist. In the words of Hamilton, “A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”1 The reason why a strong executive is an indispensable element to good government is that the executive supplies what Hamilton called “energy” to government. Energy is that virtue of individuals or organizations that enables them to accomplish tasks great and small. We all know the difference between working with someone who is energetic and productive and someone who is lethargic. It is the executive that carries out the tasks chosen by the legislature; without executive action, the laws are just dreams and unfulfilled promises.
The defining characteristic of an energetic executive is what Hamilton called “unity.” Put simply, the executive branch will possess energy only when, as it is with the presidency, power is lodged in one person. The decisive, swift, and energetic action necessary to good government is far more likely to be taken when power is lodged in one individual, rather than several. Anyone who has tried to get a committee to act to solve a problem will recognize Hamilton’s point. The framers of the U.S. Constitution understood that they could not trust a committee to command the armed forces, act in a national emergency, or enforce the laws. They made one person responsible for ensuring that the laws are carried out, and they made that person responsible to the people. This unity—and, consequently, the effectiveness of government—is destroyed when executive power is given to more than one person or when the executive’s authority is subject to the control of others.
Good People, Poorly Governed
Unfortunately, the Oklahoma constitution is not based on this principle. Rather than relying on the values of simplicity, flexibility, and accountability, it relies upon multiple, complex layers of government, strict limits on power, and high procedural barriers to change. The best example of the dysfunction of our constitution is its establishment of a pitifully weak executive branch. The executive power of the state of Oklahoma is, from the perspective of the framers of the American Constitution, organized in a way that is designed to produce feeble, ineffectual government. The Oklahoma Constitution, rather than lodging all executive power in the governor, splits power among a large number of elected officers who do not answer to the governor. To name a few examples, we elect the attorney general, the state treasurer, the state auditor, the insurance commissioner, the labor commissioner, and the superintendent of public instruction. Each of these officials carries out executive functions. We even elect the lieutenant governor separately, thus making it possible for the two top executive officials to be from different parties.
But the constitution’s problems go even further. The Oklahoma Constitution creates—and the Legislature, taking its cue from the constitution, has continued to create—a multitude of boards and commissions that actually carry out most of the executive tasks. The state’s health and welfare system, for example, is not run by a cabinet secretary who is subordinate to the executive (as is the case in the federal system). It is run instead by a board that is only in part appointed by the current governor. The appointees often serve for a term of several years, making it possible, even likely, that the governor will never have the opportunity during his or her term in office to name a majority of the board that operates the executive department. [Editor’s note: In 2012, Oklahoma voters approved a ballot measure giving the governor the authority to hire and fire the executive director of the Department of Human Services (DHS), a power previously held by a nine-member DHS commission.]
Why would the founders of this state choose to disregard the wisdom of the framers of the U.S. Constitution? Because they, not unreasonably, believed that the world of 1907 was radically different from that of 1787. We cannot understand the founders of our state without first understanding that they were Populists. Populism is a political ideology that reached its maximum influence in the late 19th and early 20th centuries, precisely at the time of the founding of Oklahoma’s political institutions. Populists believed that the advent of a large industrialized society created institutions of enormous wealth and power, such as industrial corporations, railroads, and banks. They feared that if the power of these institutions was not checked, the institutions would exploit working people, small businesses, and other people and institutions that lacked an equivalent degree of wealth and power. These malefactors of wealth secured their control over the people by using their resources to elect and then command politicians. Their money would thus buy them more power to make even more money. Part of the legacy of Populism is Americans’ historic fear of and antagonism toward the power of special-interest groups, particularly big business. (It is not a coincidence, for example, that John McCain is often called a Populist.)
Populists concluded that the only way to defeat the power of the wealthy was to construct a government that empowered average citizens. Their solution relied on two major elements: lots of government regulation and lots of popular control. Instead of a government in which important officials would be appointed by a strong chief executive who could be bought and sold by the special interests, the founders of our state arranged for these officials to be elected by the people. They created numerous boards, entities, and offices with broad regulatory authority, all run by elected officials. By electing officials such as school board members, the state treasurer, and corporation commissioners, the people would hold these officials directly accountable for their actions. The special interests would not run Oklahoma; the people would.
Were the founders of the state wrong to rely on popular control of government as the cure to the problem of private parties using government for personal gain? Not necessarily. Given the knowledge of the science of government available to the architects of our state government in 1907, they acted rationally. After all, it is reasonable to believe that electing an official is the best way to make sure he or she will act in the majority’s interest.
Since 1907, however, students of politics have discovered that a system based on frequent elections of a large number of government officials is actually subject to less popular control than one in which most officials are appointed by a chief executive. Nobel Prize-winning economists have devised a fancy explanation for this phenomenon: “public choice theory.” I call it common sense. Here’s how it works. First, let’s assume that any political system that seeks to prevent selfish special interests from taking over the state by relying on direct popular control of government requires an electorate that has the time and energy to participate in public affairs and has enough information to make intelligent decisions. In the sparsely populated, pre-modern‑economy Oklahoma of 1907, it was not unreasonable to believe that most voting citizens had the time and inclination to involve themselves in politics. It was equally reasonable to believe that citizens knew each other well enough to have a good idea of what was going on in their government.
In 2002, neither one of these beliefs is reasonable. Oklahoma is now populated by millions of people who are busy working hard to make ends meet and spend some time with their families. They have neither the time nor the energy to follow every aspect of politics. In a state of more than 3 million people, they can’t possibly know all the key players in the education field, for example, well enough to make informed choices in the amazing number of elections we are expected to vote in. Given this situation, most of us simply don’t vote in many elections or skip voting for offices we don’t know anything about.
So, what is the result of this understandable reluctance of the people to spend much of their lives worrying about politics? Well, if only a handful of people vote in an election for an office, the winning candidate will be the one who has a committed core of supporters that will be sure to turn out. That group doesn’t have to be big; it just has to be organized and committed enough to vote. We all know who has the money, the organization, and the incentive to turn out those voters—special-interest groups. These interests don’t dislike regulation; they thrive on it. Big companies, for example, prefer that their industry be supervised by regulatory boards. Given their resources and organization, they can control the regulatory authorities and use them to keep out competitors.
To put it bluntly, in large parts of our state’s public life, the offices of government that are responsible for regulating particular professions or industries are controlled by those very special interests. In other words, the fox is watching the chicken coop. The result of this system is a government that is unable to enact crucial reforms; the very groups that have a vested interest in the status quo have the power to block any law that will reduce their share of the loot.
“Without clear lines of authority, the people cannot exercise their power—and responsibility—to make sure our public servants provide good government.” —Andrew Spiropoulos
Can we blame our public officials for this stalemate? Well, if you try to blame the governor, he will argue that he didn’t appoint the boards that are running the executive branch—he inherited these problems. How about the legislators? They would say they are not responsible because they did not appoint the members of the executive board—the previous governor may have appointed the board members, for example. Consider the recent health department scandals. Governor Keating took little blame because he did not appoint the people who were running the health department. The Legislature wasn’t blamed because the corruption took place in the “executive” branch. Well, if the Legislature isn’t responsible and the current governor isn’t responsible, the truth is that no one is responsible for poor government. In other words, we have the worst of both worlds: Nothing gets done, and nobody is responsible. Without clear lines of authority, the people cannot exercise their power—and responsibility—to make sure our public servants provide good government. It is no surprise, then, that the quality of our governance never really improves.
We pay a high cost for our failures. The numbers don’t lie. We are near the bottom of the country in job growth, per capita income, and a host of other categories that measure the quality of life in a state. The cause of these problems lies in our ineffective and wasteful state and local governments. One need only be acquainted with local news coverage (e.g., corruption in the highest state offices and in entire departments, the poor administration of school bond issues and other projects) to know we are badly governed. Our taxes, particularly income taxes and sales taxes, are surprisingly high when considered alone and obscenely high when you consider the poor quality of state services. This lack of quality is all the more remarkable when you consider the bloated size of our state government; we have more government employees per capita than almost any state in the country. But perhaps even more important than the high cost of our government is its inability to respond quickly to solve problems. Whether it be taking swift action to rebuild and reform schools, attract a major employer, or provide incentives to keep a company like Fleming from leaving the state, we cannot get the machinery of government moving to do the jobs that need to be done.
Our failure to reform our constitution and political structure does not just cost us in the short run. We live in a country, indeed a world, that is so informed and interconnected that many sensible people and companies are reluctant to consider moving to Oklahoma because there is reason to doubt that its government will be able to respond to pressing problems. As one of my colleagues is fond of saying, we live in a “winner take all” society. If we cannot offer what companies or talented individuals need and expect, they will refuse to come here—and in addition, those that are already here will leave and go to a better-governed state. Sooner than we realize—and some would argue that we have already reached this point—our children, particularly the most talented ones, will have to settle in other states in order to have the opportunities their peers have elsewhere. The personal and economic loss to Oklahoma’s citizens will be incalculable. Reform of our constitution is not, then, a matter that concerns only lawyers and policy wonks; without it, our state will never make any real progress in providing a better life for its citizens.2
Breaking the Cycle
How can we break the cycle of poor government? The very same way the founders of our state wanted to prevent our present debacle—by popular accountability. In this last century, we haven’t merely learned how special-interest groups take over a state; we have also learned how to defeat them. The way to do it is to make government officials responsible to an officer that the people really do control. In state government, that officer is the governor. Unlike elections for insurance commissioners, just about everyone pays close attention to elections for governor. Citizens carefully study the qualities of the candidates and their agendas, and they go out and vote. If the majority of the people don’t like what the governor is doing, we can be relatively sure he will be tossed out of office.
It follows, then, that the way to make most parts of government responsible to the people is to make the governor responsible for them. If you don’t like the way the schools are operating, we know whom to blame. The governor knows that he will be held responsible for any failures in government and works hard to make sure none occur. Consider the elected offices in the education field today, which are manned by members of the education establishment: Everyone passes the buck, and everyone gets re-elected. It is no wonder the establishment likes the current system. We can break this system of special-interest control and, by establishing a clear line of accountability to the governor, put the people back in control of their government.
When discussing these ideas with citizen groups and other interested individuals around the state, I have been told that if we make the executive too strong, we risk the “Huey Long” problem—in other words, ending up with a renegade, dictatorial executive who will run the government for his own benefit. I can understand why people have that worry in a state that spawned “Alfalfa Bill” Murray, a governor who was fond of occasionally calling out the National Guard to solve a political problem. My answer, however, is that it really isn’t a problem in a functioning democracy. (No one can suggest that elections and the legislative process have been suspended in Oklahoma.) In a democratic government, the legislature is always the strongest branch of government. If Long, Murray, or other executives abuse their power, it is because the legislature either supports them or lets them get away with it.3
This need for constant vigilance by the people and their legislators points to the permanent problem—and strength—of democratic government. No constitution, no matter how well designed, can guarantee good government. What an improved constitution will do is make it easier for an engaged citizenry both to elect officials that will have the power to carry out the will of the people and to hold those officials accountable when they fail to carry out their responsibility. It is up to the people to exercise this authority wisely.
Alexander Hamilton, “Federalist No. 70” (1788), The Federalist Papers.
The most thoughtful Oklahomans have always been aware of the severity of these problems. For example, Angie Debo (arguably Oklahoma’s leading historian), in describing and lamenting the poor quality of Oklahoma’s governance, concluded that “good government will always be difficult so long as the state retains its cumbersome organic law.” Real progress will not be possible, she wrote, until the people “take control not only of the functioning of the government but its fundamental principles.” Thus, Oklahomans have, for decades, understood all too well that the state constitution, fundamentally unchanged since 1907, is an insuperable barrier to good government. A series of commissions, studies, and committees, in 1935, 1947, 1958, 1968, 1991, and 2000 have all concluded that the constitution does not work and must be thoroughly revised, confirming President Theodore Roosevelt’s opinion, uttered when signing our statehood proclamation, that our state constitution “was not fit for publication.”
As James Madison wrote in The Federalist Papers, in a democratic government, it is the legislature that “necessarily predominates” and “is everywhere extending the sphere of activity and drawing all power into its vortex.” Given that the branch that makes the laws is inherently superior to the others, for the government to function well, the executive and the judicial branches must possess sufficient power to resist the legislature; in fact, as long as we have a functioning legislature, it can be said it is difficult to make the executive too strong.
Andrew C. Spiropoulos
Milton Friedman Distinguished Fellow
Andrew C. Spiropoulos (M.A., J.D., University of Chicago) is the Robert S. Kerr, Sr. Professor of Constitutional Law at the Oklahoma City University School of Law. He also serves as the Milton Friedman Distinguished Fellow at OCPA.