Non-Partisan Entities

This is part of my constitutional design series.

In the last two parts, I discussed the legislature and executive. But they are not the only two entities that can and do exist in democracies. Other entities can be given authority in statutory or constitutional law. They may be responsible for executing law, or they may just interact with other entities (usually by writing law for the executive).

In this piece, I’m going to discuss a specific type of entity that I’ll call a non-partisan entity. Heads of these entities are appointed by political actors, but appointees are supposed to serve a purpose orthogonal to partisanship and behave differently than politicians. The main examples I will use of such entities are courts and central banks - to what extent these entities actually function as non-partisan entities is debatable, but it’s certainly at least part of their ideal. A lot of what I say here is also applicable to civil service protections; civil servants are kind of non-partisan actors.

The primary question here is:

When Should You Use Independent Entities?

I started writing this post thinking I was going to come up with some nice rules of thumb for when you should use independent entities. And, well, I sort of did. But these rules can mostly be applied to everything (when interpreted charitably) or nothing (when interpreted uncharitably). I think this mostly speaks to how “non-partisan entity” is not such a well-defined concept. So instead, I present to you: Guidelines You Might Think Of On When to Use Non-Partisan Entities, and Why They Don’t Work Super Well As Delineators.

Technical Expertise

Let me clarify a bit here. It’s not that it’s difficult to find people with technical expertise to staff the executive or advise the legislature. The issue is that people chosen to do so are often picked for ideological reasons, and so they aren’t the best at seeing technical details clearly and unbiasedly. Through norms and mechanisms in how they are selected and how they behave, people chosen for non-partisan entities tend to be better at getting the technical parts right.

This is most useful when the technical details are important. Legal issues can often be complex, and it’s important to get things right for the whole political system to function. If a court decides not to enforce a contract or law in some tricky edge-case, this undermines the whole system and encourages contract/law-writers not to design complex contracts/laws even when it would be optimal. For central banks, many different factors can go into the decisions to raise or lower interest rates, so it’s important to have a federal reserve that knows what it’s doing.

I think the Federal Reserve in 2022-2023 was a good case of this in action. There was a lot of panic about high inflation potentially lingering for years, leading to calls for the Fed to be a lot more aggressive about raising rates. Simultaneously, there was a fair bit of panic (especially toward the end) that the Fed was perhaps keeping rates too high, leading us straight toward recession. The Fed managed to weather the storm beautifully, as the U.S. economy was in great shape headed into 2024¹. I’m guessing that if interest rates were left up to partisan actors, there’s a good chance they would have done something stupid and we would be stuck with high inflation and/or recession.

The problem with this advice is that technical details are important in every policy area. You might have thought constitutional design is fairly straightforward before reading this series, and I am here to argue that it is not! However, just because the technical details are important, it doesn’t mean they aren’t also reflections of broader values that elections are fought over. By interpreting criminal laws more broadly, the courts are punishing crime more severely, which is usually a right-wing position. Interest rate decisions tend to be more orthogonal to partisanship, but generally the right cares more about fiscal responsibility (and thus wants higher rates) while the left cares more about lowering unemployment to help the least well-off (and thus wants lower interest rates). Political control is important to make sure the values that these technical details reflect are the values of the broader public view.

Clear Objective

The US federal judiciary has a clear(ish) mission: enforce US federal laws² as currently written.

The federal reserve has what’s usually referred to as a dual mission: full employment and stable prices. Many have advocated that instead the federal reserve’s mission should be to maximize GDP growth, but this usually goes along with the dual mission anyway.

With these clear objectives, it’s much easier for the people running these independent entities to function in an unbiased manner and for norms about their behavior to hold. This then makes direct political control less necessary (the court is just enforcing law, why would you need political control) and more of a hindrance (political control could cause the court to enforce law less accurately).

The problem is that most policy decisions are, or are thought to be, tradeoffs between different objectives. Environmental regulations help the environment but hurt businesses and potentially consumers. Abortion restrictions suck for the mother but are good for the otherwise-never-born baby. Sometimes it’s difficult to find measures for these values, but sometimes it isn’t - eg for climate provisions, we can measure CO2 emissions and gas prices. And it’s not so simple for the case of courts or central banks, either! What the law “actually” says is ambiguous, legal scholars are arguing about this all the time. On the central bank side, there are like 10 different ways to measure unemployment and inflation (and in the US you are trusting the federal reserve to do that measurement!), and most monetary policy decisions are tradeoffs between these two missions.

That said, I do think there are cases where an entity’s objective makes it clearly worth it. One example is government oversight entities, either specific investigations like Robert Mueller’s Trump investigation or continuous oversight like the US’ Government Accountability Office. It’s important for the public to know that their politicians are not engaged in corruption or other scandalous activity, and this is not an assurance that a political actor can provide. “Did the Trump campaign collude with Russia?” is a reasonably clear question to investigate, and partisan actors have a ton of incentive not to accurately answer it.

Norms

There are a number of norms that guide independent entities as they are make decisions, more than there are for partisan actors. As non-partisan actors, these entities should hopefully be better at respecting norms than their partisan counterparts. There’s no direct public pressure on them to make political decisions the right way, and it’s generally understood that their job is to act in a principled manner rather than to pursue their own or the public’s policy ideals.

Obviously, I can’t discuss all possible norms. So instead I want to focus on the norm for courts to respect precedent, since this is the most important norm given to any non-partisan entity (in the US at least) and seems representative of a lot of norms you’d want to give a non-partisan entity³.

The norm of respecting precedent is beneficial firstly because you want some norm limiting the power of courts, to make sure that they aren’t just going to rashly pursue their partisan goals. But this is kind of breaking the non-partisan entity ideal; suppose we assume that justices are truly going to pursue “what the law actually says” rather than partisan goals at every turn - what then is the point of precedent? The point is to ensure that US federal policy is enforced in a consistent manner. Consistency allows the public to work around law so that people know what they are and are not allowed to do, and it allows other political actors to know how to write law that will function a specific way.

And this is where I point out that consistency doesn’t serve as a good guide for when we should be using non-partisan entities. Consistency in policy is useful basically everywhere. People should be able to rely on welfare, and on national security, and on a certain level of regulation. Legislators should be able to shape policy in predictable ways on every subject. None of this tells us where to use non-partisan entities.

Lower-Salience Issues

This isn’t an affirmative argument to use independent entities, this is a case where the downside of non-partisan entities - that they are, by assumption, less responsive to public opinion - might be less of a problem.

The intuition is as follows. You frequently hear politicians advocate for spending money a certain way or making a big push in some policy area. Much less frequently will you hear politicians pushing to lower the interest rates or change some technical detail in law. When the issues that independent entities deal with are of lower salience, there’s less of a need for political control. The whole point of political control is that public policy should reflect the public view; if the public doesn’t really have a solid view on the matter, it shouldn’t matter much that it’s not up to political control.

There are several problems with this line of thinking. One is that, again, just because the public doesn’t have a specific opinion about a certain policy nuance, it doesn’t mean this nuance doesn’t reflect broader value judgments that people vote over. A second is that issue salience can change, so what’s non-salient today may be salient 50 years from now. A third is that part of the reason that the aforementioned issues have low salience is because they’re given to independent entities, and so campaigning on them becomes pointless or going against norms. If control over interest rates was given to Congress, you’d probably hear more political fights around it.

The Courts

I want to talk about courts in particular for a bit. In most democracies, the court system has two roles: it tells the executive when it is violating statutory law, and it decides when the government will use its punishment power (except in the case of taxes). This has proven, overall, a good system.

The major consideration concerning the courts is how concrete statutory law should be. The common law system used in most Anglophone countries has more abstract statutes, giving the judiciary more leverage. The civil law system used in most other countries has more concrete statutes, giving the legislature (and any other entity with the power to shape statutory law) more leverage.

These are just points on a norm spectrum between abstract and concrete laws, they are not actually technically distinct. Many countries use mixed systems that are somewhere in the middle. It’s said that common law uses court precedent (the principle of stare decisis) while civil law does not, but then statutory law has this principle jurisprudence constante and then you read about it and it’s just stare decisis. (In fact, according to Wikipedia, France basically has de facto common law in some areas). Civil law just depends much less on court precedent because more is written directly into statutory law.

Just as specifying that policy on X is left up to independent entity Y, leaving policy abstract implicitly leaves that policy up the courts. I’m pretty skeptical of leaving policy up to courts rather than to a different independent entity or to the executive. What makes courts unique is their consistency, the idea that they reason in terms of consistent legal principles rather than pursuing rash policy objectives. I’m just not sure that this supposed consistent reasoning can actually get you that far. Take the case 'of music copyright law. The court is tasked with taking this vague old copyright law and somehow construct rules for how similar two pieces of music have to be for copyright law to apply. There simply is no one principled way to do this, leading to pretty stupid court cases. There are types of law where it works better than this, and overall I don’t think it’s the worst system in the world, but generally I don’t love this argument for common law.

The other argument I see for giving power to courts is a technical, realist one. It’s pretty hard to phrase statutory law in a way that gives authority to the executive or to other independent entities without allowing the courts to abuse it. Suppose you want to give the executive the power to enact clear regulations, so you write something like “the environmental minister can pass regulation banning companies from releasing emissions into the air that are toxic to humans”. So the minister commissions a study, finds that some particle hurts human lungs, and bans companies from emitting more than a certain amount of it. A court can always come in later and say no, the results of the study do not rise to the level of toxicity, so the regulation is not authorized by the law. If your choices really are just between writing policy into statutory law or giving it to courts, then yeah I could see why the flexibility of courts might make it the better choice.

Structuring Non-Partisan Entities

There are a few structure, norm and mechanism choices that can help ensure independent entities actually function as non-partisan.

Non-partisan entities should be headed by one council of people. 15 seems like a good number - big enough that one person doesn’t have that much power, but small enough that decisions are made more as thoughtful discussions rather than as votes where people have to form coalitions. Alternatively, you could make it a very large council (eg 100) but where individual decisions are made by panels of 9 or so. This is how circuit courts in the US work, and various other courts around the world. The advantage of this system is that it makes individual appointments less consequential, while the disadvantage is that decisions will be less consistent since it is a different group of people each time.

(For simplicity, in this section I will refer to this council as the entity itself.)

A good norm is to have the entity explain all its major decisions in terms of its goals. It’s also helpful to have these explanations reference studies or other data. This is pretty common practice: American courts⁴ write long-worded opinions explaining their judgments with lots of citations, and the federal reserve holds press conferences explaining their interest rate decisions in terms of the data. These explanations encourage these independent entities to make justifiable decisions.

There should also be a norm that appointees to independent entities are taken from a “technocracy” class. People from this class tend to be more principle-driven than the politicians that appoint them because these principles are drilled into them as they enter the field.

The one important mechanism is that members of non-partisan entities should serve for longer terms than politicians. This helps ensure that the independent entity is largely isolated from public opinion. Members should should not serve for life; the US system of strategic retirements and important death timings is ridiculous. Instead, they should serve for a fixed non-renewable term - say, 20 years - and if they die or retire in the middle of their term their replacement should serve out the rest of their term rather than the year counter resetting. Have the term start dates evenly distributed, so that each legislature gets roughly the same number of appointments.

There’s one other mechanism I’d like to propose for ensuring that appointees aren’t partisan agents:

• Once someone is nominated, the legislature must approve them by 2/3 vote. I’d probably make this secret ballot, so that a party doesn’t punish legislators for voting for an impartial person

• If there is a vacancy and the legislature doesn’t approve someone within some period of time (eg 3 months), all legislators become ineligible for re-election for the rest of their life.

  • More cleverly, you could have some proportion of the legislators (1/2?), chosen at random, become constitutionally ineligible. Disallowing every single legislator from running for re-election would be quite bad, as you’d lose a ton of institutional knowledge.

• Nominees are chosen by petition. The details aren’t too important, as long as it isn’t one person responsible for doing the nominating.

  • If they were nominated by one person, and that person (e.g. a separately elected president) had some reason to want everyone in the legislature ineligible for re-election, they could intentionally nominate people that would get shot down

This system encourages non-partisanship by taking advantage of the personal interest that legislators have in being re-elected. This system probably only works for entities written into constitutional law, as the high stakes nominations would likely lead to any statutory entity getting ripped of its authority. I’m also not totally sure how it would turn out in practice, but it seems reasonable enough to be worth trying.

1. Of course we don’t necessarily know that the Fed had too much to do with the U.S. economy’s perseverance, but they seemed to take actions similar to what all the smart people on Twitter were saying, so I think it’s fair to say that they did a good job.

2. and the Constitution

3. arguably it’s even all-encompassing, since respecting norms could be thought of as a form of following precedent, although the specifics of how precedent works in a legal context are pretty unique

4. Not every country has this norm. Judges in most francophone countries don’t do this.