The power of the executive to control the political process is obvious
Dean Larry Kramer, Richard E. Lang Professor of Law, is interviewed for the Venezuelan newspaper El Universal regarding term limits. Dean Kramer was invited to Venezuela to speak to college students by the dean of the law school at Universidad Metropolitana, Rogelio Pérez Perdomo, who is also a visiting professor at Stanford Law School. Below is a translated excerpt from the interview:
Although he has always favored popular participation in the creation and interpretation of the constitution and laws, Larry Kramer, Dean of Stanford Law School, asserts that the laws created in this way are better when the citizens’ contributions are channeled through democratic institutions.
Fernández: What is your opinion of term limits?
Kramer: I think that term limits are wrong when applied to the legislative branch because the process of passing legislation is so complicated. It involves a large number of persons, and requires a particular process of negotiation and experienced leadership. If you are constantly rotating new people in, that leadership fails to develop and nothing is accomplished.
Fernández: What about the executive branch?
Kramer: That is different. First, the process is not complicated as it is designed like a pyramid with one person always on top. Second, presidents don’t need many years in office to obtain the experience needed to lead. Third, the power of the executive to control the political process is obvious; therefore, constant change is necessary.
In theory, we have the power to not elect this person whenever we want, but in practice when an election occurs, due to the President’s advantages - the ability to control the message, to control what the opposition says and monopolize the political environment - we end up voting for him/her.
Fernández: You are in favor of public participation in the process of modifying laws. How can you channel this type of participation?
Kramer: I am not a fan of direct popular control. I live in California where we have the initiative process, and it is terrible, a nightmare, everyone agrees that it a very bad process. The problem is not just how much control, but the type of control one gives the electorate and in referenda you have the extreme where the answer to everything is “let’s submit it to the popular vote,” and that works very poorly.
Kramer: Anyone can submit anything to a popular vote. There is no real public debate because a debate with millions of persons doesn’t work. In a representative democracy debate occurs inside the government and the authorities are accountable to their constituents.
In the American system we have a president who represents the whole country, senators represent states and representatives owe allegiance to their districts and the same occurs at the state level. Everyone is thinking about their own constituents, so that the debate occurs within government and the governmental institutions will act in accordance to the will of the majority.
Some decisions will be successful and others will be blocked by other branches of government. That forces the debate into the public sphere and public sentiment flows from one position to another until one prevails.
The referendum/initiative process skips all that. You are left with a newspaper editorial and then everyone votes. This process brings out the worst and most prejudicial ideas among the populace, leading to the worst possible method of law making.
Fernández: What happens when a majority controls all the institutions of government?
Kramer: In that case you have a problem. In a healthy democratic system that occurs infrequently, but it does happen. In the U.S. there are two parties that control the branches of government. One can think of political parties in two dimensions: one is the number of parties and the other is the degree of centralization of the parties. In the U.S. we have very few parties, but they are very decentralized, so that if you observe the Democrats or Republicans you will find that it is not one single party, but many. For example, the Democrats in San Francisco are not identical to those in L.A. although technically all are Democrats. The key, therefore, is to avoid centralization and that you can do with many parties or with few decentralized parties.
The Venezuelan government opts for centralization. It is exactly what one wants to avoid because that leads one down the path to tyranny.