Quod custodiet ipses custodies? – “Who shall watch the guardians?” – is an age-old question of political theory. Government has so much power – who shall protect the people from abuses? Who keeps the government honest?
We’ve come up with lots of solutions this – the idea of the rule of law as something above and beyond the state and its officers; the idea of a constitution as a stable set of laws above and beyond laws produced by the ordinary political process; in the U.S., the separation of powers so the three branches of government act as checks on each other; and, in democratic societies generally, the voters and the free press acting as checks on government as such. And government agencies often have their own self-policing agencies – inspectors general, the internal affairs bureaus of police departments, and so on. Many governments have an “ombudsman” to investigate citizens’ complaints about government action or inaction. After Watergate, the U.S. Congress enacted the Special Prosecutor law to authorize a legal officer independent of the Justice Department to investigate the White House. (That did give Kenneth Starr and Fellatiogate, but never mind that for the moment.)
And yet . . . it never seems to be enough, does it? Abuses just keep happening. Just look at all the stuff the Bush Admin has gotten away with in the past four years, all the lies it was able to tell which nobody could authoritatively contradict at the time. (If you’re a Republican, substitute your favorite abuse-of-power by a Democratic administration.) We can take care of that in November, but a lot of damage has already been done.
And then there’s what happened in the 2000 election – not so much an abuse of power as such, as a failure of the system. No matter how that election had been decided, the winner would have lacked perceived legitimacy, because the disputes could not be decided by any authority that was not politically interested or compromised. Even the Supreme Court turned out to have partisan loyalties. At the time, I remember some reports on All Things Considered mentioning that in some countries, there is what amounts to a “fourth branch” of government, independent of the other three, to run the elections. It got me to thinking.
I have a new idea: The United States government, and every state government, should have four constitutional branches: the legislature, the executive, the judiciary – and the tribunate, a politically independent branch which polices the other three, protects the people from government abuse, and also is generally responsible for “metagovernmental” functions such as running the elections. The name, of course, comes from the Tribunes of the Plebs in the ancient Roman Republic, a college of ten elected magistrates whose main function was to protect the plebs from the state, but who also proposed legislation to the popular assemblies.
Unlike their Roman namesakes, the Tribunes would have no power of veto over legislation or government action. However, they would have a very broad range of other powers. Mainly, their function would be to investigate government abuses and drag them out in front of the public eye.
The Tribunate would be run by a ten-member College of Tribunes, elected by the party-list form of proportional representation. As a result, a any given time there might be three Democrats, four Republicans, a Libertarian, a Green, a Socialist. This would not make the Tribunate apolitical, as the judiciary is presumed (ha!) to be. To the contrary, it would be clearly understood to be a political body – not nonpartisan, but multipartisan. That’s why I provide for ten tribunes instead of just one. A Democratic sole tribune might neglect to properly investigate Republican officials, and vice versa. But if we have ten tribunes of different parties, not only is every party in government assured of being policed, but each party would have a slightly different idea of what does or does not constitute government “abuse.” E.g., a property owner might consider it “abuse” that the government is enforcing environmental regulations that lower the market value of his property, and he might approach a Republican or Libertarian tribune to get satisfaction, if satisfaction is possible under the law. Another person might consider it “abuse” that the FBI is racially profiling Arabs, and might go to a Democrat to take care of it. And each tribune would have a degree of independent latitude to fight for the rights of his or her own “constituency.” But important policy decisions would have to be made by a vote of the whole College. Internal regulations of the Tribunate also would be enacted by the whole college.
Each tribune, independently of the others, would have unlimited powers of investigation – but only a limited right of publication. In short, a tribune, or any employee or authorized agent of the Tribunate, would have the right of access to any and all information and records of government agencies, including classified military secrets, the CIA’s special ops and “Black Budget,” details of ongoing criminal investigations by the FBI, sealed court records – anything. It would be crime for any public official to block a tribune’s access to records or information. A tribunician agent could go onto any sealed area of any military base, any office of the CIA or any other agency, any federal prison, any federal property of any kind, to make on-site inspections and gather information. The College of Tribunes acting in a body may decide, by majority vote, to publish any such information, and constitutionally the tribunes would be immune from any civil or criminal prosecution that might normally flow from the publication of classified information, etc. If the College does not approve, any tribune might decide on his or her own initiative to publish the information, and the College cannot block him or her from doing so – but in such a situation, tribunician immunity does not attach and the tribune in question may be subject to criminal or civil penalties.
The Tribunate would have full power, concurrently with and independently of the Justice Department, to indict federal officials and employees for crimes, and prosecute them in the federal courts. But a tribune individually would have no power of indictment; the whole College would have to vote on it.
The Tribunate would also have the sole power to indict and prosecute officials and try them in an independent tribunician judiciary (say it three times fast!), a body of specialized judges – but in that case, no criminal penalties could be imposed. The only sanction would be that the official found guilty of violating the duties of his or her office could be removed from office, and barred from public service, permanently or for a stated number of years. This would extend to ordinary bureaucrats, military officers, congresscritters, federal judges, Cabinet secretaries – even to the presidency. In effect, the Tribunate would replace Congress as the “impeaching” body. At present, the Constitution provides that a president can be removed from office, for undefined “high crimes and misdemeanors,” only by being first impeached by vote of the House of Representatives, and then tried and convicted in the Senate. We saw how this played out during the Clinton Administration – a Republican-dominated House impeached Clinton, then there was an election, and then a Democratic-dominated Senate acquitted him. In hindsight, the whole politicized process was rather more discussing than Clinton’s own misconduct. But under the new system, a president could be indicted by the College of Tribunes and tried and convicted in the tribunician courts, and removed from office if a tribunician judge orders it. In trials in the tribunician judiciary, the range of offenses prosecutable would be much wider than that provided for by the criminal law. All kinds of misfeasance, malfeasance, or even “conduct unbecoming” might fall within the jurisdiction of the tribunician courts. Again, an indictment in the tribunician courts could be made only by majority vote of the whole College, not by any tribune acting alone.
The tribunate would also have a body of non-criminal attorneys to represent aggrieved citizens in the courts, in civil suits against the government, or to defend them in suits by the government. Each tribune would have his or her own staff of attorneys, and a limited budget to devote to such cases.
Judges of the tribunician judiciary would be recruited from the federal court system. Each tribune could make nominations, and the whole College would have to vote to appoint a judge. Like regular judges, tribunician judges would enjoy life tenure during good behavior, but like all federal officials, they would be subject to impeachment or indictment by the College, and also subject to prosecution by the Justice Department.
With or without an indictment, the Tribunate would have the power to subpoena public officials to testify before the College, just as Congress now may issue subpoenas for officials to testify before executive committees. Such hearings would be open to the public or not, at the College’s discretion (some hearing might involve classified information, after all).
As the Department of Homeland Security was formed by hiving off several existing federal agencies such as the Coast Guard and INS from their former departmental attachments, and uniting them under the new DHS, so executive structure of the Federal Tribunate would, initially, be formed by hiving off existing agencies that now perform internal-policing functions – e.g., inspectors-general of various departments – and placing them under the Tribunate. Ultimately, the Tribunate would build an administrative structure that would perfectly mirror the structures of the other three branches – that is, for every department or agency, there would be a corresponding department (with a much, much smaller staff) in the Tribunate responsible for policing it.
The Federal Public Defender’s Office also would be brought under the Tribunate, on the grounds that the PD’s job is to protect people from the government, which is essentially the Tribunate’s job.
The Federal Elections Commission also would be brought under the Tribunate, which would henceforth set all federal policies regarding elections.
The Census Bureau would be separated from the Department of Commerce and brought under the Tribunate, on the theory that people will be more likely to give honest answers to census takers if they know for certain the information won’t be leaked to law-enforcement agencies or immigration officials. Furthermore, the Census determines figures used in reapportioning legislative districts, which makes it a “metagovernmental” function the Tribunate should be in charge of.
That brings up another point: Since 9/11 the idea has been floated that, for security reasons, the U.S. should have some system of national identity cards and identity verification. And given the current state of information technology, it is not hard to imagine a system where every bit of information on public record about a given individual might be automatically copied to a single database in Washington: Your birth certificate, school records, vaccination records, your driver’s license application, voting registration, your arrest record and criminal record, every lawsuit in which you have ever been involved as plaintiff or defendant – in short, every instance where you have had any contact or dealings with local, state, or federal government. Now, to put this in perspective, most of this stuff is stuff that’s out there in the electronic ether now, and not that hard to get. With the right search engines, a skilled investigator or newspaper reporter could assemble a complete file on you, including everything mentioned here and a great deal besides, in half an hour – without issuing any subpoenas, without getting any court orders or search warrants, and without even getting up from his or her desk Nevertheless, when we think of the idea of putting all this information in one place, and a place to which any government agency might have access to any time – the practical value is obvious, especially in today’s climate of fear, but nevertheless, we naturally fear what the government might do to us with all that dirt. So here’s a solution: If such a national database of personal info and vital files ever is constructed, it is in the Tribunate’s hands alone – the hands of the branch of government that exists to protect people from government abuses. Agents of the other three branches can have access to it only with the Tribunate’s permission, pursuant to whatever internal regulations the College might enact.
Once a year, at about the same time as the president’s State of the Union address, the College of Tribunes would prepare a joint report, to be published and to be read out publicly before a joint session of Congress, as to the Tribunate’s activities in the past year and its general assessment as to how honest and efficient the government is, at the moment. Following this joint report, each of the ten tribunes would have the chance to read out an individual report. These reports could cover anything of concern to that tribune, including any kind of financial waste or inefficiency, or any instance of government sticking its nose in where the tribune doesn’t think it belongs – anything, even if what’s being done is perfectly legal and in accordance with all relevant regulations and policies. This report process is each tribune’s chance to preach and to bitch to the whole country from a big bully pulpit. The whole thing would be televised (on C-Span, if nowhere else).
Of course the Tribunate, like the judiciary, would have no taxing authority and would be dependent on funding voted by Congress. As with the judiciary, there would be structures in place to guarantee the Tribunate’s financial independence and to make sure Congress could not use the power of the purse-strings as a weapon to punish or restrain the Tribunate. Of course, no funds could be allocated by Congress to any tribune individually or any part of the Tribunate specifically; funds would have to be allocated as a general pool, to be internally allocated and spent at the sole discretion of, and by vote of, the College of Tribunes.
At the state level, the tribunate’s functions and structure would be much the same: A ten-member College, elected by party-list PR, would head the Tribunate. All public defender’s offices in the state would be brought under the tribunate, as would the state elections office, and the internal affairs bureaus of all police departments. In states where each county has a locally elected supervisor of elections, that system would remain intact; but, insofar as they now come under oversight of the state’s executive branch, under the new system they would come under oversight of the tribunate.
I see no need to establish county or city tribunates; there’s not that much to be done. Rather, all county and city governments would come under the scrutiny of the state tribunate.
One more very important “metagovernmental” function would be placed in the state tribunate’s hands: After each census, the state College of Tribunes, not the state legislature, would redraw the boundaries of electoral districts for the state legislature and the U.S. House of Representatives. This won’t solve the gerrymandering problem entirely – the tribunes are, of course, partisan elected officials – but since there are only ten of them, this will make the process more transparent to the public. And since the tribunes are elected by party-list PR, it is unlikely any one political party ever will hold a majority of seats in any college of tribunes, federal or state; and so any redistricting plan they come up with will be the result of a multipartisan compromise.
Both the state and federal tribunes would be elected for two-year terms, in odd-numbered years. This means that every tribunician election campaign would come in the middle of the terms of the elected legislative and executive officials – so all politicians campaigning for a seat on the tribunate would have a chance to make a campaign issue of the records of any particular sitting official, or group of officials, and make a campaign promise to nail the bastards. This can only serve to keep them honest. Furthermore, it separates the tribunician campaign season from the regular political campaign season, and focuses the voters’ minds on the questions of government honesty, overreaching, etc., as the sole issues of that campaign. And it means the tribunes can supervise the non-tribunician elections in the middle of their own terms, without being distracted by their own re-election campaigns.
So what do you think? Would this work?
Errmmm . . . yeah, sure, why not. :rolleyes: