Monday, May 19, 2014

Does the Oversight Branch Have Too Much Power?

In the comments to 'Should Leakers of Classified Government Wrong-Doings Be Punished?', Robin asked me a great question:

In your essay you proposed an oversight branch, which would be responsible for making the decision on whether government actions should be made public or not. I'am wondering how you can trust so few people - 3 as you proposed - with so much power.
Initially, you argued that we need the oversight branch because the government is trusted with too much power. But don't you agree that by establishing such branch, we are not solving the problem at all? We are just shifting it, as now the oversight branch has way too much power. 
Sure, the people could remove the current heads of the oversight branch by a popular vote. But they can never know if the oversight branch is making decisions against their will, since the branch is working behind closed doors. 
Do you think this control mechanism is sufficient? If not, do you have an idea how to improve your proposal?

I think this is probably the largest worry with the Oversight Branch- that it'll be too powerful. So I figure this merits its own post.

The Goal
Here's how I think about this: when structuring government, you must hold in your mind the goal of government. You should do the things that get you closer to that goal, and avoid the things that get you further from that goal.

What is that goal? I think the government should do what the people believe is right.

The Problem
As Robin notes, the problem is that government has too much power and can't be trusted to use it properly.

We'll never achieve a perfect government- that's just impossible. Government faces two fundamental splits: (1) the principle-agent problem (where employees' self-interest prevents them from acting as their employer would like and (2) the morality problem (where individuals' crass self-interest leads them to do what they want to do, rather than what they believe is right).

We cannot fix these problems. The best we can do is create incentives that motivate people to do the right thing.

The now standard 3 branches of government goes a long way to getting this balance right. But it breaks down when a single party holds 1.5 or 2 branches of the government, for then the checks/balances stop checking-and-balancing each other. Serious breaches of the people's trust can occur in the name of the party or passing some point-in-time legislation. Yes, voters could remove these people 4, 6, or 8 years down the road, but in the meantime, the party has all the incentive in the world to hide their wrongdoings. By the time the people find out and remove them, the damage can be done.

So there's a problem.

The Solution
What's the solution? We need something that incentivizes the government to do the right thing, while minimizing the risk of it being partisan or giving it too much power. I propose the Oversight Branch. (Which I describe here or here.)

Here's my thoughts on why it's not too powerful:

1. It has no power over citizens.
The Oversight Branch, by design, only has power over the government. It has no power over citizens. So the only way it can have influence is by what it does to the government. So does it have too much power over the government?

2. It can take only very limited actions
The Oversight Branch only has power to investigate, prosecute government employees in the courts of law, and release information. Think of it as an investigative journalist with access to more information coupled with the ability to prosecute.

All of these abilities are necessary, and none of these abilities is particularly powerful; indeed, if they aren't combined, the oversight branch would be too weak to provide oversight.

3. Even if it turns out to be very partisan, it's no worse than today.
Even if the Oversight Branch turns out to be very partisan, it's no worse than having a (Republican/Democratic) Congress paired with a (Democratic/Republican) President. The current hyper-partisan attempt to catch the other side in a scandal or (worse) attempt to create a scandal where these is none already occurs today. So, the risk of partisanism isn't a real concern.

4. The Other Branches are Very Powerful
The worst possible case is a corrupt Oversight Branch that tries to use the threat of prosecution as a way to control the government. But the other branches are very powerful too, and they would surely push back against this threat and quickly try to smear the Oversight Branch as corrupt, given the safeguard (discussed below) that the Oversight Branch must fear.

5. (Roughly) Three people in charge is a good number.
Some number of people have to be in charge of the Oversight Branch. If there are too many, the responsibility is too diffused and effectively no one is in charge. That would neuter the Oversight Branch and prevent it from being focused and effective. Having one person in charge is too risky due to the chance of personal biases. (Being accountable to two other people reduces the risk of abuse.) And three people in charge is better than two, because it allows them to vote on disagreements and reach a conclusion- an even number risks creating fracture.

6. Any good oversight must work behind closed doors.
If an Oversight Group will have access to classified information, it must largely operate behind closed doors. Much of what any oversight group looks at will turn out to be perfectly fine. You shouldn't smear politicians who are investigated but found innocent. And you don't want to release classified information that should be classified. So you'd want the work of any oversight group to be behind closed doors.

7. Findings would be made public.
The two end-products of the Oversight Branch are (1) prosecutions in courts of law, and (2) releasing information. Both of these are public, so it's not like the Oversight Branch operates in total secrecy.

8. The people have a safeguard.
As noted in the essay, and as Robin noted, the people have a safeguard. There is always a risk of things going badly, so if the public puts it to a vote, and 75% agree, everyone in the Oversight Branch would be fired and prevented from working at the new one. The Oversight Branch should be doing the work of the people, so if the people strongly think it's not, then they can start it over again. As noted in (4) above, the rest of government (a very powerful group) would be highly incentivized to alert the people of malfeasance. So, if the Oversight Branch became corrupt, the people would find out about it.

In short, I think there's a serious power imbalance in government currently. We can't eliminate it, but we need something that incentivizes the government to do the right thing. I think the Oversight Branch has the amount of power necessary to do that job well, and no power more than necessary. So, I think it brings government closer to its goal, not further.

1 comment:

  1. RKJ-
    Thank you for this detailed response. You brought up some very strong arguments and now I agree with you that the oversight branch is not having too much power. Especially your point to see the branch as a kind of investigative journalist makes me think it should be worth a try.