Observations On Perception

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The vote has been taken. The authority it confers has not yet passed. Under the Twentieth Amendment, the terms of the outgoing legislature end at noon on the third of January, and until that hour its members hold every power their offices carry. Those just elected hold something else: a title to power that cannot yet be exercised. Between the two lies an interval of some eight weeks in which the judgment of the electorate is complete and its effect is suspended. The interval is not a delay in the ordinary sense. It is written into the constitutional order, and for its duration the nation’s laws are made by a legislature whose term has been judged and has not yet ended.

An electorate chooses who will hold office; it exercises no power of office itself. No ballot repeals a statute, withholds an appropriation, or compels a witness to appear. The vote is the source of the mandate, but the mandate acts only through those who receive it, and only once they have received it. Choosing and governing are distinct acts, separated in time and in kind. The distinction does not diminish the vote. It locates it: the vote is the moment at which a people names its agents, and everything a people can do through its government depends on that naming. What the vote cannot do is stand in for what the named must later do themselves.

What the successors receive is not a clean ledger. Laws remain in force until repealed; contracts bind until performed or lawfully ended; obligations to other nations survive the officials who undertook them. This continuity is no defect. A government whose commitments dissolved at every election could not borrow, could not treat with other governments, and could not be trusted by its own citizens to honor what it had promised them. The difficulty lies elsewhere. Some commitments are drafted not merely to endure but to restrict: to withhold from successors the powers by which an earlier decision might be revised. When such a commitment is made by an executive and its terms are kept from public reading, the incoming legislature inherits not only an obligation but a question it did not ask: whether the authority to make it existed at all.

The instruments for answering that question remain. A legislature may inquire, summon, and examine; it may legislate to permit, constrain, or forbid; it may grant or withhold the money without which an executive arrangement cannot be sustained; and the courts may be asked to determine whether an act exceeded the law under which it was taken. None of these acts by itself. Each has its own conditions: a committee willing to inquire, majorities in both chambers to legislate or to deny funds, and in the case of the courts a litigant with standing and a question framed so that a court will hear it. A new legislature inherits the instruments of correction, not their results. The election may place the instruments in different hands; it does not move them.

The interval has a character of its own. Throughout it, the outgoing legislature holds full authority, while the electorate’s most direct means of judging it has already been spent. A part of its membership will not return; for those members the judgment of the polls has been rendered and cannot be rendered again. Their constitutional obligations persist until their terms expire, but they no longer answer for those obligations to the voters who chose them. Scrutiny deferred into the interval is scrutiny that can no longer inform the judgment it might have served. A briefing on an executive arrangement disposing of another nation’s oil was moved from October into this interval, on the grounds that the Senate had left town; if it is held at all, whatever it discloses will reach the electorate only after the electorate has spoken. No refusal was needed for the judgment to proceed without it. It is enough that the interval exists, and that the examination arrives after the vote.

Changing those who hold office is not the same as changing the arrangements through which office is exercised. An election accomplishes the first completely and the second not at all. The arrangements remain where the outgoing government left them, with the powers to revise them distributed among institutions that must each decide to act. Electoral judgment is necessary to that revision and not sufficient for it. What completes it lies with those the judgment has seated, in the weeks and months after they take their seats, in acts of inquiry, legislation, and appropriation that no ballot can perform on their behalf. Whether they perform them is not a question the election answers. It is the question the election hands to them.