April 04, 2011

Norms and Rules

In the last couple of weeks I have had serious concerns that Wisconsin was headed for a constitutional crisis.  This concern was fueled by the apparent disregard or complete lack of understanding of the checks and balances implicit in the separation of powers that is central to the democratic functioning of our state and federal governments.

Here in Wisconsin, the majority party in the executive was consistently invoking, what it claimed to be, nuance in The Rules while ignoring the painfully clear intent of an injunction from the judicial.  For a few days it was clear to anyone who was thinking and paying attention that the executive branch was, in clear contempt of court, seeking to implement a legislative action, which had been judged to have been executed improperly.

This situation illuminates how rules and norms need to work in concert.  Let me be clear, Wisconsin loves its rules.  When I moved here I was flabbergasted - there is a rule for everything.  And I mean a Rule; there is no room for nuanced departure.  After living in NYC where nuanced departure is what makes it possible for so many people to ride the subway, buy groceries, and walk down the sidewalk, Wisconsin was a shock.  Wisconsin runs on Rules, NYC places much more stock in Norms.

Now that would seem to imply that I would not be surprised by the attempts to implement the budget repair bill.  But in fact recent events have made me realize that there is a strongly normative element to behavior in Wisconsin.  While people are upset about the bill, they are much more upset by the behavior of those who have been gobbling up every bit of power within site.  Even people who are basically sympathetic to the ends of the bill are appalled by the behavior of the current leadership.

One of the very important norms in our democratic functioning is respect for separation of powers and, in particular, for the authority of the judicial.  When a judge says stop, you stop; especially in Wisconsin.  The crisis I was concerned with had to do with the not-stopping of the executive; a not-stopping that came on the heals of ignoring the strongly held sense of importance of open meetings and open government.

While Constitutions spell out how we go about our general governance, good drafters (and we had some good ones in the early days of our country) know that the real importance of Constitutions is at times when people are not playing nice - times when the things have gone a bit wrong and people in power are misbehaving.  Hence the separation of powers and checks and balances.

Here in Wisconsin, we also have code that specifies the powers of a judge when those in her court are, lets say, not on their best behavior.  But putting the Secretary of the Department of Administration (yes we have a Dept of Administration (DoA for those of you who like ironic acronyms)) in jail is something that you really want to avoid.  Yet there were 36 hours where I thought that might happen; further I was exploring The Rules to figure out how I could contribute to creating a stage where the judicial branch could exert its authority.

The executive ultimately stepped back from the precipice and the crisis was averted for now.  But the whole episode illustrated to me how fragile our democracies can be.  So a couple of pleas:

  • Pay attention to what is going on
  • VOTE
  • Support civics education - some of the things that said by people who should know better are appalling
  • Support thinking education - democracies only work if people think about what they are up to and can imagine the consequences of their actions