In the last thirty days, we have witnessed in operation the “checks and balances” that the architects of both the United States and Maryland Constitutions brilliantly and strategically built into the Separation of Powers set forth in both of those documents. Specifically, we have seen the Supreme Court of the United States check the President of the United States’ reach for almost unlimited power and the elimination of any meaningful role for the other branches of the federal government in conducting the “War on Terrorism,” thereby restoring the balance between all three branches of government explicitly provided for in the United States Constitution. The Federal Executive will now have to seek the cooperation, if not concurrence in the form of legislation, from the Congress of the United States in order to depart from express and/or established Constitutional and statutory authority as he prosecutes the “War on Terrorism” and the “enemies,” potential and confirmed, that our government encounters while it engages in that unconventional conflict.
The President will also have to pay attention to institutions he creates such as military tribunals to ensure that they operate in a manner consistent with the view of the United States Constitution held by a majority of the Justices of the United States Supreme Court. That view limits the rights of the Executive branch of government to deprive citizens, or in some cases even non-citizens, of basic freedoms, as well as humane treatment in accordance with certain applicable provisions of the United States Constitution and the Geneva Convention accords. The Supreme Court’s ruling in effect says that even in conducting the “War on Terrorism,” the President may not substitute “Texas style power politics” for well-settled Constitutional processes as the preferred method in the formulation of policy, and the creation and administration of institutions of government even in the name of “War on Terrorism.”
During this same time in Maryland, we have observed the legislative branch of government try to formulate a legislative response to a “crisis,” arguably, at least in part, created by their own action in 1999 in enacting a statutory scheme urged by the industry and “expert” economists associated with the industry, which implemented the “deregulation” of the electric power providing industry in Maryland. This legislation partially “capped” the amount that rates could increase for six years thereafter in order to give the “increased competition” envisioned by the industry, academic, economic and legislative proponents of deregulation time to develop. The legislation the provided for those restraints on the retail price of electric power to consumers to be removed on July 1, 2006.
The theory behind this provision of the law enacted in 1999 was presumably that by July of 2006 the increased competition would produce a market that naturally would sufficiently lower the price of electricity to consumers, which would thereby justify the experiment. It never happened! Instead, in the middle of the 2006 session of the General Assembly, the Public Service Commission announced its approval of the industry’s proposal to increase their rates dramatically (72% for BGE and 39% for PEPCO) as authorized and arguably mandated by current law in order to recoup the increased costs they had accrued and financed internally for the last six years. Apparently when the law deregulating the industry was enacted in 1999, including the provision providing for the lifting of the “price caps,” no one in the committee rooms, the conference rooms or the floors of the Senate or the House of Delegates broached the obvious “political question, “What if this economic theory and experiment does not work and the voters’ electric bills skyrocket immediately before the 2006 election in which we seek to be returned to office?”
Well guess what! The legislatively sanctioned experiment, at best, did not produce the competition hoped for and rates increased dramatically 2? months before the Primary election and four months before the General election in 2006. The political context, however, proved not to be as clear as the economics. The Governor attempted to fix blame squarely on the Democratic Party dominated legislature and, particularly, on its leaders. The legislature pointed at the mostly Republican appointed Public Service Commission and, particularly its Chairman, whose communications through e-mails and meetings with industry representatives and lobbyists, became the subject of headlines in newspapers.
Even the Judiciary got into the act as the Circuit Court for Baltimore City’s Judge Albert J. Matricciani, Jr. acted first on an appeal by the City of Baltimore from the decision of the Public Service Commission approving what amounted to the Plan negotiated by Governor Ehrlich. He ruled that the Public Service Commission did not carry out its statutorily proscribed duties by not addressing certain questions raised by Baltimore City and not conducting the hearing in the manner necessary to do so. Later, after the Maryland General Assembly met in Special Session to enact essentially the Plan that they had failed to enact by one vote in the Senate during the regular session and then override the Governor’s veto of that legislation because of his objection to the provisions of the Bill which abolished and then reconstituted the Commission with new members and a new appointment process, Judge Matricciani was asked by the incumbent Chairman of the Public Service Commission to, among other relief, grant a Preliminary Injunction to stay the effective date of that part of the Statute that replaced the Public Service Commissioners with five new appointees selected by the Governor from a list of ten submitted by the President of the Senate and the Speaker of the House. He declined to do so. The Court of Appeals has now stayed the effective date of that part of the statute until they decide the merits of the appeal of Judge Matricciani’s decision.
What does all this mean and where is it leading? It certainly means that as syndicated columnist E. J. Dionne, Jr. points out in his book Why Americans Hate Politics, “Wisdom is not the exclusive province of any one side of the political debate or of any one branch of government in this country.”
With that in mind, coupled with the persistent conflict between political parties at the federal level spreading to state level, as well as the conflict between the three branches of government evident at both levels, it is clear that these tensions will continue unabated from the 1990’s through at least the early part of this century. Balancing this conflict and working through the accompanying tensions by channeling our energy toward goals that are in the public interest is work that constitutes “the public good.”
Politics should once again become a deliberative process through which elected and appointed officials in good faith seek to resolve disputes, find remedies and move forward. It should stop being a process by which politicians discover postures through polling, focus groups, etc. that offer nothing more than short term political benefits. As E.J. Dionne perceptively notes, “We give the game away when we talk about issues, not problems – Problems are solved; issues are merely what politicians use to divide the citizenship and advance themselves.”
What can be done to restore this sense of public enterprise and mutual obligation? First, we must recognize, as did Daniel Patrick Moynihan, a Democrat with a Ph.D. who worked for a Republican Richard Nixon and was a Professor, Ambassador and, ultimately, a United States Senator, “We’re all entitled to our own opinions, but we’re not entitled to our own facts.” Second, we must remember in this election year and those that follow that we must elect leaders who are prepared to commit themselves to principles which transcend, but do not necessarily conflict with their own private and political interests. How do we spot these ideas and people? Those are subjects for future and shorter columns. In the meantime what do you think?