AMHERST’S NEW GOVERNMENT:  CHECKS AND BALANCES

James Madison sought, both in the Constitution he largely fashioned and in The Federalist  essays he wrote to urge its ratification, to explain the central and novel idea of checks and balances.  He would be distraught to see the degree to which partisanship in 2018 has sought deliberately to overturn this core feature of our national government.  He would be similarly saddened to visit Amherst in 2018 and discover that, given the opportunity to create a new government, Amherst chose to disregard checks and balances.  Neither nationally nor locally is this disregard accidental.

Voters, as they consider the various candidates for Town Council seats should seek to discern their views about this essential feature of democratic governance.  Here are some questions voters should think about and question candidates about.

Separation of Powers  At the core of a system of checks and balances both within and between the legislative and executive branches is the idea that political bodies are both independent of one another and dependent upon one other. This is delicate; too much independence can lead to fragmentation and paralysis while too much dependence can lead to tyranny, either by an oligarchy or by the majority.  Since the Charter gives all power to the Town Council and since all appointees in Town Hall serve at its pleasure, any semblance of separation will depend upon the willingness and ability of councillors to delegate authority to its appointees and to other bodies, whether specified or unspecified in the Charter. Would candidates be willing to do this?

Political Parties  The purpose of political parties is to undermine the system of checks and balances.   A political party wants to control the government to the greatest extent possible. The greater their success at doing this, the less bodies of government are able to act independently or check one another if power is abused.  We have seen this take place nationally; in Amherst the question is, will it happen here? Or perhaps, is it happening here? Candidates for the Town Council should be asked if they will serve independently, regardless of any pressure that may be put on them by any organized group.  Their statements should be studied to identify their commitment to act and vote independently.

The Voice of the People  Town Meeting, like the House of Representatives, was designed to give members of the community easier access to their government as well as a more representative voice in that government.  At both state and national levels, the separation of the General Court and Congress into two independent bodies is an excellent example of checks and balances at work. (Thank you, John Adams.)  But when the lower “popular” house is eliminated what role do the voters have in the intricate system of checks and balances? Two answers to this, often voiced in Amherst during the Charter debate, must be dismissed.  First, elections are not part of the checks and balances system. Incumbents can be re-elected or defeated, but during their incumbency they are unchecked by voters or other members of the community. Second, the charter calls for periodic forums in which voters may have the opportunity to express their opinions (or may not, since the length and form of the forum is up to the Town Council and councillors are not required to attend the forum).  Candidates should be expected to explain how voters and other residents of Amherst can provide a check on the power of the Town Council.

Concentration of Powers  The new government explicitly gives all powers to the Town Council.  Some explain that this is “boilerplate”, that similar language can be found in city charters all across the Commonwealth.  That is true - and perhaps terrifying. It is not true of towns that have kept their town meetings. It is true of cities only, and for smaller cities like Amherst it is likely to feel like a real diminution of voter power.  Combined with the advent of political parties in Amherst, as well as the well-established inclination of governmental committees in Amherst to vote unanimously, we have every reason to be concerned that the multiplicity and diversity of voices and opinions will be less represented in our governance.  What will candidates do, if elected, to avoid the dangers of the concentration of powers?

Thoughts about the Future of TMAC

Michael Greenebaum

I want to share some thoughts with all those who may be interested in the future of Amherst governance and the role of some sort of TMAC-like group in that future.  

1.  The existence of TMAC - and TMCC and SPP - is coterminous with Town Meeting itself.  I will mention the profound sadness I feel about the loss of Town Meeting and then set it aside.

2.   The new governance of Amherst is inherently unstable, quite apart from the virtues of those who are elected or appointed to participate in it.  The Town council especially, with its 2-year election cycle in which all seats are up for filling, will be susceptible to the same kind of strategies that have infected the US House of Representatives - incumbency, outside money, and - as we have already seen - candidates running for both district and at-large seats.

3.  These strategies to counteract inherent instability and volatility will lead to a second tendency in the Town Council - toward unanimous or nearly-unanimous decision-making.  This, of course, is nothing new; we have seen it in town boards and committees forever, but there has been, until now, a countervailing political force in Town Meeting.  But there will be two levels of decisions: decisions on motions, and decisions about what matters are brought before the Town Council for a vote.  This latter level is uncharted waters; it is not at all clear how the procedure analogous to placing an article on the Warrant will be accomplished.

4.  I have described points 2 and 3 above in procedural terms, but these procedural problems have structural analogs:  because there is no separation of powers with the capacity to check one another these tendencies will, over time, grow more pronounced and the Town Council more autocratic, and differences of viewpoint and opinion will be increasingly unwelcome.

5.  This is why the creation of something like TMAC to provide public assessment of Council policies and procedures as well as the motions on the table is so vital.  Whatever shape it has, it will be outside the charter and bylaws, but that does not mean it cannot function “as if” it were a part of town government.

6.  At the core of whatever shape it takes should be the ideas that governed the initiation of TMAC - that there should be an independent group to publicly analyze and assess the benefits and impacts of motions coming before the Town Council.  John Hornik’s brilliant list of areas to be referenced should form a public checklist to govern the activities and focuses of the group:

Benefits to and Impacts on:

specific neighborhoods

individual taxpayers

specific populations (i.e. children, families, elderly)

the streetscape of the Town

the Town history and culture

public safety

Town economy

the environment

I propose adding to this list, based upon my concerns listed in 2-4 above

town management

democratic governance

No doubt other additions and revisions to this list are in order, but in my view such a list is the centerpiece of whatever TMAC might become under the new government.

7.  Also in my view, it would be a great mistake to think of this group as a voice of those who voted “No” in the March election.  Its role, as indicated in its original name, is to give public advice to those who will vote on matters coming before the town.  Under the new governance it is not a voice of opposition or a voice of support; it is a voice of analysis.

8.  What form should it take, and what should it be called?  It could be the same as TMAC, although it would no longer have the imprimatur or the financial support of the town.  There would have to be discussion about the foundation of its legitimacy and the basis of its membership and finances.  It could be called the Town Advisory Committee or something anodyne like that.

9.  Or it could be rethought in the light of new circumstances.  Its membership need not be elected or limited in number.  It could be some imaginative combination of the LWV observer corps which used to attend board and committee meetings and Mary Streeter’s invaluable list serve.  While it would not be subject to the Open Meeting Law, it is of the essence that its work be public.  I can imagine a corps of committed observers, checklist in hand, attending meetings and then writing up their analysis of benefits and impacts on a list serve published well prior to the Town Council second reading of motions on the table.

10.  Or it could be something else entirely.

11.  Getting from here to there is the tricky part.  Right now, all committees of Town Meeting have juridical status, but it is not clear how long that will be the case.  I am sending this memo to the list Chris Riddle has been using because I know the folks on it have demonstrated a commitment to good governance and may well be willing to guide the development of some such group as I have suggested.

12. It may not be wise to identify such a development with the committees currently existing as Town Meeting committees.  It might be preferable to form something like a “Town Advisory Committee Working Group” with an open invitation to other residents to join it to deal with these issues (and others) in creating a new group.