The Limits on Gubernatorial Power

The Limits on Gubernatorial Power

Our political penchant for division rather than centralization of power reflects both our colonial experience in dealing with power at a distance (in that case, over 3000 miles) and our strong sense, even in the 18th century, that we were a nation with varied traditions and values. New England farms were nothing like Southern plantations. The lives of coastal merchants in the major harbor cities were nothing like the lives of small town crafts persons to the west (the west, here, being upstate New York, western Pennsylvania and Maryland, and the western frontier of the Southern states). While the differences between rich and poor were dramatic in every colony (and probably had common threads), the differences between colonies in economy as well as culture made our Founders skeptical of too much centralized power and desirous of protecting an important degree of local autonomy. This was true of most of those who promoted the new Constitution, even as they sought to strengthen the central government. Stronger, yes. All-powerful, no.

Even when our governments are closer to us, we like to slice up the power pie. Separation of powers and checks and balances are as American as the Super Bowl . . . and, at least at times, they make for a “game” of politics as rough and tumble as the gridiron.

On occasion, one might wonder whether or not we have gone too far.

Florida is one of a number of states in which members of the Cabinet are elected, rather than appointed by the Governor. In Florida, the Attorney General, Chief Financial Officer, and Commissioner of Agriculture, along with our Governor, each elected separately, constitute our state’s Cabinet. That’s a radically different structure than we find in the Executive Branch in D.C.

Under the terms of our state constitution, a number of important agencies operate under the authority of the Cabinet, rather than just the Governor. This means that major decisions related to policy and personnel may require the approval of more than just the Governor alone.

This is why the recent events surrounding the departure of former Department of Law Enforcement Commissioner Gerald Bailey are so complicated.

In a comparable situation, if the President wished to remove the Attorney General, the President simply would remove him or her. Of course, for a variety of political reasons, such removals usually are managed with finesse.

The infamous actions of former President Richard Nixon in October of 1973 offer a compelling cautionary tale. When a special prosecutor, the Attorney General, and the Deputy Attorney General all resigned (or were fired; there’s some dispute on this point) over Special Prosecutor Archibald Cox’s bulldog-ish determination to secure the Oval Office tapes, President Nixon learned that, even where there is formal power, its exercise is not without practical political limits. No one questioned President Nixon’s authority to see these gentlemen removed from office. What they questioned, and part of what led to his forced resignation, was his intention in exercising that power.

But the removal of the Commissioner of FDLE involves a more complicated authority structure. Consent of at least one member of the Cabinet is required.

In the case of former Commissioner Bailey, it’s unclear whether he was “removed” or whether he simply “resigned.” The members of the Cabinet unanimously accepted Commissioner Bailey’s resignation and approved the appointment of his successor in mid-January.  Shortly thereafter, allegations were made that the resignation was forced and was a product of conflicts between Commissioner Bailey and the Scott administration (and campaign). Then former Commissioner Bailey unleashed his own accusations and   Governor Scott changed his story, though the Governor arguably has offered a variety of explanations since then.

Now the Cabinet members are objecting to the process.  The future has become quite murky, both in the narrow sense of what happens at FDLE and in the broader sense of what happens with Governor Rick Scott.

I have no idea whether or not former Commissioner Bailey’s allegations are true. Certainly if some of them are true, they raise serious concerns about abuse of power by the Governor or by his senior staff. Intervening in how criminal investigations are handled is . . . well, rather like what happened in the Oval Office in 1973. Of necessity, these become important conversations that must produce clear results. I hope that can be accomplished in short order.

But there is a lesson to be learned here that transcends questions of propriety.

It is that, for all of our expectations that the Governor is in charge, with powers akin to those of a corporate CEO or the President of the United States, it’s really not the case. In Florida especially, the Governor is constrained in a multitude of ways that often are a surprise . . . to the public and, indeed, sometimes to the Governor. The Cabinet members have their own electoral bases and their own independent authority. In the case of the present Governor and Cabinet, each of the other three members actually has a stronger electoral base than the Governor himself. That makes the notion that the Governor has the power to do as he wills a somewhat suspect claim at best.

This difficult round, so soon after the election, also suggests that it will be increasingly difficult for Governor Scott to pursue his own agenda over the next four years. He can’t force his way, and recent events have made him an even more lame duck than term limits alone have done.

But that’s the way we seem to like it. No one should be too powerful. Leaders in Florida only can lead where lots of other leaders and powers want to go.