The Charter Debate:  Checks and Balances

I am writing a series of commentaries on the words and ideas at play in the debate about the proposed charter for Amherst.  Opponents of the charter worry that the proposed unicameral government weakens or even eliminates checks and  balances.  Proponents have stated that the new charter embodies and even enhances a set of checks and balances.  But when they talk about checks and balances are they talking about the same thing?

The answer to that question has to start with James Madison.  Our fourth president is rightly described as the father of the United States Constitution.   Madison was distrustful both of monarchy and democracy.  He wanted a strong and large legislature to prevent the executive from following its monarchical instincts, and he wanted a strong executive to counter the populism towards which the legislature might tend.  He wanted a strong federal government to counter the tendency of the agrarian south to separate from the mercantile north, yet he was fundamentally a Virginian who wanted to protect the rights of his state to act in its own best interests.  The history of the United States since 1789 can be seen as a playing out of the unresolved tensions among all these forces.  It is a story of conflict and compromise, as Madison knew it would be.

“If men were angels,”  Madison wrote in Federalist No. 51, “no government would be necessary. . .In framing a government which is to be administered by men over men, the great difficulty lies in this:  You must first enable the government to control the governed; and in the next place oblige it to control itself.”  The new government proposed for Amherst does a good job of the first, but is dangerously deficient in the second.

Currently Amherst has a separation of powers somewhat similar to the national and state governments..  It has an executive branch, the Select Board, elected by all the voters in town.  It has a legislative assembly,  Representative Town Meeting, whose members are elected by the voters in ten precincts. (Amherst’s judiciary is outsourced to the Massachusetts Attorney General, as prescribed by Massachusetts General Laws.)

Like federal and state executives, the Select Board has great but not final powers. It creates and proposes the town budget.  It maintains and proposes amendments to the Zoning Bylaw.  (Such amendments are usually offered by the Planning Board, which is appointed by the Town Manager who reports to the Select Board.)  It shapes and often writes or edits the Articles on the Town Warrant, and shapes the Warrant itself.  It has the power to convene Town Meeting upon citizen petition or whenever it deems it necessary.  (The Select Board also has a myriad other authorities and powers not germane to the issue of checks and balances.) At Town Meeting sessions, the Town Moderator traditionally shows deference to Select Board members when they ask to be recognized.

Town Meeting can act only on Articles brought to it by citizen petition or by the Boards and Committees that comprise the executive.  But, except under certain circumstances, its votes on Articles are definitive and final.  Town Meeting as a body cannot initiate the placement of Articles on the Town Warrant (although members have the same right as other voters to petition for an Article to be presented to Town Meeting).

There is a further illustration of checks and balances within Town Meeting itself, and it is truly Madisonian.  Town Meeting is a cauldron of interests, sometimes in conflict, sometimes not.  These interests have to do with zoning changes, property rights, public services and much else.  Madison referred to such conflicting interests as factions and wrote in Federalist Paper #10 that the virtue of a large republic over a small one is that no particular faction is likely to predominate.

What Madison feared above all, even more than the tyranny of a monarchy, was the tyranny of a majority.  He would approve Amherst’s large Town Meeting, and find nothing remarkable in the sometimes strained relationship between the Boards and Committees, on the one hand, and Town Meeting, on the other.  That would indicate that checks and balances were working pretty well.  

Now that we have seen what the commission has come up with - a unicameral body that is neither executive nor legislative (but partakes of both) - we can better appreciate the separation of powers and the checks and balances we currently have.  Under the charter proposal, 7 people  can determine the fate of most motions and 9 people can decide to change the zoning bylaw or raise taxes by borrowing money after a simple majority of voters has approved an override of taxation limits.  

We can hope that councillors are honorable people dedicated to serving the public interest and will not be swayed by the interests of their sponsors or voters, but we have to acknowledge that councillors may not be angels.   Angelic or not, 7 or 9 of them can run Amherst.  The Charter Commission’s assurance that they might get their comeuppance at the next election will not undo any decisions or change any statutes. 

If checks and balances are working the parts of government can and do get annoyed and frustrated with one another.  But if they are not working the government can slip into chaos or authoritarianism.  It is the Charter Commission’s idea that the appointed Town Manager is the executive branch of our government, while the Town Council is the legislative.  This might have been true had the new charter specified a considerable term of office for the Town Manager, say 7 years.  This would have contributed to a sufficient separation from the Council to quality as an independent branch of government.  But there is no such specification in the proposed Charter.  The Council may remove or suspend the Town Manager, with or without cause, at any time.  There are provisions in the Charter for hearings, but none for appeal.  This significant deficiency makes the Town Manager, in spite of her/his significant powers of appointment and oversight, a creature of the Council.

I urge Amherst voters to read or re-read Federalist 51.  Decide whether your annoyance with our government from time to time overrides the checks and balances which create it.  If you want to examine the current relationship between the Select Board and Town Meeting with the hope of strengthening the checks and balances that currently exist, I will be glad to join you.