Unwise bill tampers with representative democracy

Mavens of the Louisiana Legislature purport that it takes several tries for some good bills to get into law. But offering up flawed legislation similar to earlier versions doesn’t make it good, and that’s the situation state Rep. John Schroder finds with his prefiled HB 108 for this upcoming regular session.

It resembles his HB 387 from last year, which went nowhere, with two extensions. The bill would protect any “public employee” who provides information to a legislator or committee from “discipline, reprisal, or threats of discipline or reprisal by the public employer for providing such information,” creates an enforcement mechanism, and provides for penalties. It differs in that it acknowledges Department of State Civil Service authority and defines what a “request” for information means.

By its introduction and in its wording, it carries a disingenuous air, implying that this practice already in the main is not outlawed. But, in fact, the majority of Louisiana state employees, those who are in the classified service, already have these protections; they cannot be disciplined or fired without evidence of unsatisfactory performance and they also have explicit protections (as the DSCS separately conveyed in conjunction with the filing of the bill) when engaging in issue advocacy, as testifying in front of a legislative committee would exemplify.

And even most in the unclassified service – those positions of which hiring, personnel actions, and discharges are governed under agencies other than the DSCS – enjoy the same protections. For example, the single largest group of these kinds of state employees are in my profession, university professor, and have merit qualifications attached to hiring, promotion, pay, and firing (although I know of at least one elected official who hinted to one or more of my superiors that my opinions expressed in this and other spaces warranted some kind of corrective personnel action). Thus, the vast majority of state employees already enjoy the protections that this bill, in their cases, would impose superfluously.

However, the intent of Schroder is to create these for the only state employees that currently do not have them, appointees of elected officials, most of whom are hired and fired at will by the governor. Supposedly, such a law would facilitate highly-placed executive branch officials in testifying openly about their superiors’ policies, without fear that an adverse review might get them fired.

Yet even here, this kind of solution ends up essentially duplicative, because the Legislature already has the powers to prevent this. For one, Art. III Sec. 7(B) of the Constitution gives them subpoena power to compel truthful testimony under oath, so even if an official feared what candor could do they still will deliver their opinions on these matters. And to prevent retaliation, the Legislative wields impeachment power under Art. X Sec. 24 that it can deploy to discourage instances that majorities of its member perceive as unwarranted personnel actions involving at-will employees.

But it’s not the existence of procedures already in place that make this bill’s content odious; instead, it’s the violation it does to the concept of separated powers and democratic government. Any executive needs the ability to have staff committed to the policies of that executive, especially as these reflect the will of the people through the electoral process (and a consent that may be withdrawn by them at the next election, or sooner through the recall process if citizens have a disagreement with that agenda), in order to be able to execute the powers of his office as defined both constitutionally and statutorily.

In turn, those appointed into these positions are obligated to know that if they disagree with these policies to the point they cannot promulgate them faithfully they must resign or accept termination if it becomes clear they fail to carry out their superiors wishes – one way in which this may happen being as a result of supplying the competitor plenary organ of government with information that increases its power at the executive’s expense. And if such a person is discovered not compatible with the executive by information provided, as a corrective action the discharge of that appointee must be an option available to the executive.

Because to allow subordinates deliberately to subvert their superior’s policies violates the principle that elected executives be able to carry out their mandates; after all, it was the superior, not subordinate, who won the people’s approval. By creating some kind of protective shield around them as this law does exempting them from fidelity to the agendas of their bosses, this means the executive lacks appropriate control over being able to translate a popular mandate into policy. The ability to pursue that agenda is the exact purpose of an executive branch, and in retarding its power to do so inappropriately shifts too much power into the hands of the Legislature, which already has impeachment power to check an executive. Aggrandizing too much power into the Legislature and beyond the intent of the Constitution, as this bill does, does violence to our basic notions of separate powers and checks and balances.

At the federal level, giving the president sufficient authority in this area was one of the first things decided by Congress, and the reason remains as compelling today as it did then. And possession of its extant powers means there’s no information the Legislature already cannot get. There’s no good reason for the Louisiana Legislature to injure stalwart principles that have made representative democracy work in order to unwisely magnify its powers beyond the necessary and sufficient ones it has already in this matter.