What Makes Legislatures Strong?

Issue Date April 2010
Volume 21
Issue 2
Page Numbers 166-170
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The Handbook of National Legislatures: A Global Survey. By M. Steven Fish and Matthew Kroenig. Cambridge University Press, 2009. 800 pp.

Legislative Power in Emerging African Democracies. Edited by Joel D. Barkan. Lynne Rienner, 2009. 277 pp.

Aspiring democratic leaders from many corners of the world are often surprised to learn that the delegates to the Philadelphia Convention of 1787 did not begin the U.S. Constitution by creating the presidency and assigning powers to the holder of that office. Instead, after the famous Preamble, the first Article of the world’s oldest extant democratic constitution describes the powers of Congress; the presidency waits until Article Two. This order, moreover, is no accident: The legislature possesses considerably more constitutional power. It can impeach and unseat a president, after all, whereas the chief executive has no authority to dissolve Congress. Even the president’s power to name judges, military officers, and ambassadors to carry out executive policy is qualified by a requirement that the Senate must first give its “advice and consent” regarding such appointments.

About the Author

Thomas O. Melia is deputy director of Freedom House and consulting editor for the World Encyclopedia of Parliaments and Legislatures. He is also an adjunct professor at Georgetown University and the Johns Hopkins University School of Advanced International Studies.

View all work by Thomas O. Melia

Today, more than 220 years on, U.S. president (and former senator) Barack Obama is discovering anew how formidable the presidential task of dealing with Congress truly is, even at a time when the president’s own party holds large majorities in both houses on Capitol Hill. Like many of his predecessors, he is absorbing the sobering truth of the aphorism that “the president proposes, but the Congress disposes.”

How powerful is the U.S. Congress? How powerful should it be? How [End Page 166] powerful should any legislature be in a modern democracy? How should constitutional architects of new or potential democracies frame the powers of a legislature? After all, countries do not actually need legislative assemblies; at least not in the way that they need executive officials and judges. Governments have existed throughout human history, whereas legislative assemblies have been present only in some societies.

In their Handbook of National Legislatures: A Global Survey, M. Steven Fish and Matthew Kroenig have undertaken an ambitious effort to catalogue every one of the world’s existing national legislatures, scoring each according to the degree of “official power” (the quotation marks are the authors’) that it commands. In explaining the value of the exercise, Fish and Kroenig briefly discuss the established scholarly classification of parliamentary, semipresidential, and presidential systems. As they note, “the conventional distinctions among constitutional systems do not fully specify where power resides. And where power resides is what matters for real-life politics and government” (2). The Handbook is therefore based on a “legislative powers survey” of their design that was completed by scores of national and international experts. The survey poses 32 questions about key aspects of institutional influence, questions that mostly lend themselves to “yes” or “no” answers.

Adding up all the “yes” answers yields a country’s score on a Parliamentary Powers Index (PPI) that measures the national legislature’s aggregate strength. Nine of the 32 questions are about the legislature’s influence over the executive: Can it select or oust a president, appoint or confirm ministers, can legislators serve in the executive, and the like? Nine questions ask about the body’s institutional autonomy: Is it free from presidential veto or dissolution, do members enjoy immunity from prosecution, and so on? Another eight examine specified powers: Does the legislature authorize war, ratify treaties, and influence or appoint heads of the judiciary, the central bank, and state-run media outlets? The final six questions examine the legislature’s institutional capacity: Are its members experienced, and do they have the staff and other resources to support their work?

The PPI will prompt discussion about whether Fish and Kroenig have identified the 32 most appropriate aspects of institutional power, and, if so, whether it is wise to accord each aspect equal weight in their numerical calculations. Statisticians and methodologists may ponder whether the questions are properly framed in a consistent, unambiguous manner. For instance, is it good technique to pose a double-barreled query such as Question 24, which asks whether “the legislature reviews and has the right to reject appointments to the judiciary; or the judiciary itself appoints members of the judiciary,” and then—after accepting a positive reply to either as a “yes” for PPI purposes—to turn around in Question 25 and ask simply whether “the chairman of the central bank is appointed by the legislature.” In the case of the United States, for instance, the [End Page 167] different ways in which these questions are structured sets up a “yes” to Question 24 and a “no” to Question 25—even though the juxtaposition of a president’s power of appointment with the Senate’s power to reject a nomination is exactly the same in the two cases.

The final scores produced by the PPI will provide ample fodder for scholarly disputation and barroom wagering, as global rankings tend to do. Can the parliament of repressive Ethiopia really be more powerful than that of democratic Ghana? Is Nicaragua’s legislature actually stronger than those of Argentina and Chile? Ironically, the legislatures of sixteen ex-communist countries are found to be more powerful than the very U.S. Congress that has just spent twenty years helping most of them to get on their feet and build their institutional prowess. While it seems about right that the U.S. Congress’s PPI ranking puts its powers on par with those of its parliamentary counterparts in India, Australia, and even South Africa, it seems puzzling that the legislatures of Iraq and Bosnia-Herzegovina receive the same score.

Curiously, and perhaps cleverly, the scheme does not inquire directly about the democratic bona fides of a legislature (beyond one question that asks whether the legislature is entirely elected, as opposed to containing legislators appointed by the executive—although even this question does not ask whether they are fairly or competitively elected). Fish wrote an essay in the January 2006 issue of the Journal of Democracy arguing that stronger legislatures make for stronger democracies, yet the present volume confines itself to a value-neutral index of institutional parliamentary powers, which may well enhance its suitability for the kind of comparative, quantitative research that the authors say they hope their work will prompt and inform. The PPI does not examine how a legislature relates to the voting public or political parties or the press or other aspects of democratic accountability, such as constituent services. It is a description of formal legislative power relative to the executive (and to a lesser extent other actors, such as the judiciary or the military or the crown).

Joel Barkan’s edited volume is quite different in conceptualization, purpose, and structure, though he begins with a similar lament about the dearth of scholarly literature on legislative powers in developing countries (and he cites Fish’s 2006 Journal of Democracy article as a seminal, rare contribution to the field). Legislative Power in Emerging African Democracies is all about democratization and is built around the question of whether more democracy leads to stronger legislatures, or stronger legislatures lead to more democracy. The premise is that legislatures across sub-Saharan Africa are generally quite weak, though becoming stronger during the current period of partial, fitful democratization. The discussion is about what enables legislatures to become more powerful over time.

Barkan and the country experts whom he recruited to pen six case studies—on Benin, Ghana, Kenya, Nigeria, South Africa, and Uganda— build their narratives around four core functions of the modern legislature [End Page 168] “that distinguish this political institution from all others”: representation of diverse interests; legislation for the whole of the nation; oversight of the executive branch; and constituency servicing. This is complementary to, and suppler than, the PPI in that it leads to lengthy discussion of the dynamic nature of these complex functions. Several interesting insights are presented that may have relevance beyond sub-Saharan Africa.

Barkan and his colleagues conclude that six factors determine the relative capacity of a legislature to become more powerful, and thereby (in this formulation) to aid its country’s democratization. Four of them are manifestations of human agency: the presence in legislative ranks of reformers who perceive that their legislature is wanting in comparison to more powerful bodies elsewhere and want to catch up; presiding officers, who can be key forces for or against change; national presidents, who invariably oppose the strengthening of legislative capacity no matter how democratic the circumstances of their own election; and civil society groups (and their international donors and supporters), which give legislators training and encouragement designed to make the legislature stronger and more effective as an institution. The other two critical factors are electoral frameworks (proportional representation enables legislators to focus on developing their capacity for legislating more than does firstpast-the-post voting) and political parties (counterintuitively, stronger political parties do not necessarily lead to stronger legislatures, as the example of South Africa’s African National Congress reveals).

Interestingly, Barkan concludes that constituency servicing operates in significant tension with the other functions, as the need to deliver political and economic goods to constituents tends to make individual legislators more dependent on the president personally and the executive branch generally—especially when legislators are underpaid, as is conspicuously the case in Benin and Ghana. The Ugandan and South African narratives also serve as unsettling cautionary tales that highlight the ease and speed with which determined executives can undermine their national legislatures.

Fish and Kroenig offer a staggering wealth of data and a global survey, but theirs is a static presentation based mostly on the analysis of constitutions and other legal texts, though the experts consulted were also asked to consider de facto realities in making their judgments. The narrower selection of interesting African countries in Barkan’s book provides greater depth and texture—and historical narratives allowing the reader to weigh the hypothesis that “coalitions for change” emerge in nascent democratic legislatures over time and in response to specific political stimuli.

Whether readers prefer one work over the other may come down to how they view “the Kenyan conundrum.” The PPI places Kenya low on the legislative-powers totem pole, scoring it as a 0.31 on a 0-to-1 scale and thereby placing the Kenyan National Assembly on par with counterparts [End Page 169] in Guinea and Zimbabwe, among African parliaments, and with Syria and Tajikistan globally. These are very poor performers, as legislatures go, by almost any measure. Barkan, on the other hand, concludes that Kenya’s national lawmaking body is arguably “the most developed legislature of the six considered in this volume.” He places it ahead of the legislatures of South Africa and Benin, though these latter two score about twice as high as Kenya on the PPI. The difference may be that the PPI accords greater weight to a series of questions about specific enumerated powers that the Kenyan legislature simply does not possess (powers to make war, to approve treaties and judges, and to grant pardons and amnesties). The PPI does give Kenya high marks on “institutional capacity” questions such as having paid staff and experienced legislators, which are central to Barkan’s thesis about democratic power and capacity. By taking such divergent approaches, these two thought-provoking books should help to stimulate a much-needed debate about the power of legislatures and their role in democratization.