Having spent most of June traveling among Washington, New York and Newton, Massachusetts, I did not become aware of Gov. Paul LePage’s threat to withhold the grant to the Good Will-Hinckley school until late in the month. But the newspapers – on which I am still retrogressively reliant – brought me up to speed pretty quickly.
Two items struck me as especially noteworthy: the coverage of the controversy in The New York Times and the vigorous defense of the governor’s actions by his counsel reported in the Press Herald. One of these surprised me; the other did not. And readers may be surprised by which was which.
I would not ordinarily anticipate seeing a major story in a leading national newspaper about a dispute between the speaker of the Maine House and the governor over what is, in context of a state budget, a relatively small sum. And I would usually consider it noteworthy if the governor’s lawyer failed to take his side in a dispute.
But given the profound significance of this issue to a core constitutional principle of government in the United States, the Times’ attention to it was to be expected; the governor’s counsel’s effort to dismiss it as just an example of “bare-knuckle politics,” and to claim it as simply an exercise of the governor’s First Amendment right, on the other hand, approaches the stupefying.
The fundamental principle in question is the separation of powers – the division of governing authority between the legislative and executive branches, with each debarred from improperly intruding on the autonomy of the other within its appropriate sphere. An unbroken series of Supreme Court decisions over more than 150 years has established clear limits on congressional intrusion into the president’s control over appointments to public office. Firm barriers against the use of the executive branch’s power to coerce the legislative branch are to be found even earlier, in the text of the Constitution itself.
These, in turn, were the response of the Founding Fathers to 17th and 18th century English history. As Parliament won the right to vote conditions on the funds the Tudor and Stuart monarchs needed to support armies and navies, the rulers responded first by trying to physically prevent obstreperous parliamentarians from attending and, when that failed, by punishing them for votes and speeches displeasing to the crown. That is why two of the opening clauses of Article I, which creates Congress, confer special immunities on representatives and senators from executive authority:
“They shall in all cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the session of their respective Houses, and in going to and returning to the same; and for any Speech or Debate in either House, they shall not be questioned in any other place.”
Chief executives can veto bills and seek to influence legislators, but the lesson the writers of the Constitution drew from history was that allowing the former to punish the latter because of disagreements with their positions on public policy undermined the legislative independence essential to a government with separated powers.
In 1787, this meant that the president could not inflict monetary penalties on representatives whose votes they disliked. There is no practical or theoretical distinction between this and LePage using his executive powers to deprive Eves of income based on his objection to the speaker’s position on charter schools.
The fact that the grant in question is discretionary in no way legitimizes the governor’s explicit use of public money to impose a personal penalty on a legislator for his official action. It is as settled a principle as exists in American law that there are constitutional limits on the purposes for which discretionary powers can be exercised. It is no more permissible for the governor to withhold a grant that had been allocated because of Eves’ policy stance than it would be for him to announce that no discretionary funds can go to an entity that employed a senator who disagrees with him on taxes.
Nor is it a justification of this executive punishment of a legislator’s independent judgment that the position is to head a charter school. If no one can be named to administer a program if he or she had been opposed to its establishment, where do conservative executives find people to head agencies created by the votes of liberals, or vice versa? If a Republican wins the presidency next year, does he have to leave the Consumer Financial Protection Bureau in the hands of a Democrat who supported it? I’d be happy if that occurred, but I find it hard to think of a principle I could invoke to require it.
The apparent view of the governor’s counsel that this assault on the integrity of independent legislative decision-making is just “bare-knuckle” politics would have made her a valued adviser to Queen Elizabeth I, King James I or Oliver Cromwell. But neither this opinion, nor her bizarre claim that denying public funds to people whose views you dislike is somehow a vindication of the First Amendment, gives me much confidence of her understanding of our Constitution.
Barney Frank is a retired congressman and the author of landmark legislation. He divides his time between Maine and Massachusetts.
Twitter: BarneyFrank
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