A county official in Pennsylvania recently made headlines when he decided to issue marriage licenses to same-sex couples, defying a 1996 law that defined marriage as between a man and a woman.
D. Bruce Hanes, the county official in question, explained his actions by saying that he believed that the law banning same-sex marriage was unconstitutional and that he “decided to come down on the right side of history and the law.”
Hanes is the Register of Wills in Montgomery County, Pennsylvania. Although many Pennsylvanians may not recognize the position, it is one of several county offices they elect every four years in odd-year elections. Pennsylvania has a history of electing minor offices, such as coroner. The state has done so at least since its 1776 Constitution, and has continued to do so with each subsequent redrafting.
Normally, these offices and the political campaigns candidates for these offices run are fairly low profile, overtaken by county commissioner, mayoral, and city council races. However, Register of Wills Hanes burst into the media spotlight in a big way when he announced he would issue marriage licenses to same-sex couples.
Daily News writer Stu Bykofsky succinctly summarized opposition to Hanes’ actions in a column he wrote criticizing the Register of Wills:
Civics 101: The people elect representative who write the laws which are enforced by the state and, if necessary, confirmed by the courts.
Of course, American democracy has never really functioned in this manner. As far back as President George Washington’s administration, the executive branch intruded upon the legislative branch by proposing new laws and pushing it’s own legislative priorities.
President Andrew Jackson even went so far as to ignore a court decision he disagreed with, supposedly responding that “[Chief Justice of the Supreme Court] John Marshall has made his decision; now let him enforce it!”
Today, President Barack Obama’s administration has decided to prioritize which laws it has the resources to enforce more vigorously than others.
In Pennsylvania specifically, the General Assembly officially desegregated schools and public accommodations in the late 1800s, but local governments and officials refused to implement these laws and actively circumvented them for almost a century.
Of course, none of this contradicts Bykofsky’s main point. Bykofsky is not saying his “Civics 101″ lesson of separate branches with separate powers is how government actually works in practice; rather, he is saying that this is how government works best in an ideal world. And, as a columnist for a major publication, it is his role to hold public officials accountable to the ideal.
However, I would also say that any discussion of Hanes should consider the political structure within which government exists. Bykofsky may be correct on a theoretical level that government works best when separate branches do not infringe upon each other’s authority, but ignoring the political incentive structure provides only an incomplete picture of the situation.
Hanes’ actions speak directly to the difference between elected and appointed public officials, and the very different incentive structures they face.
Elected positions are the ones people often think of when they think of government: president, governor, mayor, legislator, county commissioner, etc… These are the officials whose names show up on the ballot on Election Day.
Appointed officials are more insulated from politics than elected officials (relatively speaking, because even appointed officials are not totally insulated). In general, there are two kinds of appointed officials: political appointments and merit appointments.
Political appointments, as the name suggests, are more reactive to the politics of the official who has appointed them and holds the power to fire them. So, for instance, a governor who does not believe in regulating oil and gas companies would appoint a Secretary of Environmental Protection that would be friendlier to such companies when deciding how to enforce the law.
Most appointed governmental positions today are merit appointments, which means that employees are hired and promoted based upon their ability, rather than their political ideology. It also means that they are protected from being fired simply due to their political beliefs. This structure attempts to focus their efforts mainly on administering the law and insulate them from political concerns as much as possible.
The United States used mostly political appointments (also known as the “spoils system,” because the winning party would reward its friends with jobs) until the late 1800s. Today, however, most appointed positions are merit-based.
One of the key differences to keep in mind when thinking about elected vs. appointed officials is who undertakes the hiring and firing and how. Generally, the system works like this (though there is some variation): voters elect the elected officials who appoint political appointments who hire the merit appointments.
The incentives for each of these positions are vastly different. Elected officials must court voters in order to ensure re-election, and are thus responsive to their interests. Political appointments must serve the elected officials’ interests in order to keep their positions. Merit appointments, however, because of civil service laws insulating them more from politics, have more leeway to administer the law in a way they believe is fair.
This takes us back to the Montgomery County Register of Wills. The question I pose here is not whether Hanes was right to issue same-sex marriage licenses. The question is whether we can expect elected officials like Hanes to take these sorts of actions, simply due to the fact that they are elected and respond to very different incentives than other officials.
Can we expect elected officials to respond to what they believe to be unjust and unconstitutional laws in a way they think their constituents would approve?
Or, to put it another way: can we ever reasonably expect elected officials to be mere administrators? To this latter question, history certainly seems to suggest we cannot, unless the electorate wants an administrator.
If we, as a society, then, think that officials like Hanes should only administer the law, then perhaps we should consider either automating these positions (thus removing any judgement calls whatsoever) or else transitioning them to merit appointments.
If we wish to keep these positions elected, then the remedy already exists: other branches and levels of government.
Bykofsky presents an image of governmental branches as confined to separate spheres. I would argue that in America, branches of government were not designed to fill completely separate spheres so much as they were designed to battle against each other for influence — and in doing so, provide a check on the other branches’ power.
In this system, it is not only up to Hanes to police himself. It is up to the county commissioners, to the judicial system, to the governor, to the General Assembly, and, ultimately, to the voters to all check Hanes if they believe he is doing something wrong.
So, if you believe Hanes erred in issuing licenses to same-sex couples when he believed that the law banning same-sex marriage was unconstitutional, then the remedy is for another branch or level of government to push back. And that is exactly what has happened, with the Corbett Administration suing to stop Hanes.
This is not to say that all county officials will take similar actions because they are elected. Many likely will not. But we should not be surprised when elected officials act according to their incentives. Sometimes we may agree with them, other times we may not. Either way, the existing political system already provides the means for opponents to counter them.
 The Register of Wills, for his part, is responsible mainly for recordkeeping and other administrative services related to wills and marriage licenses.
 As an aside, one of the 2011 Montgomery County Coroner candidates pointed out how many autopsies he had performed and how many death certificates he had issued as part of his campaign.
 President Andrew Jackson is closely associated with the history of the spoils system in the federal government. Although presidents before him had made political appointments, he did so on a much larger scale. In Pennsylvania, the commonwealth’s second governor, Thomas McKean, introduced the spoils system to his state’s government. Reformers began to pass civil service reform laws in the late 1880s to switch from the spoils system to merit appointments. In 1881, a disgruntled office-seeker assassinated President James Garfield after he was not rewarded with a patronage position. In response, Congress passed and President Chester Arthur signed a major civil service reform bill, the Pendleton Act.
 You might think, like Bykofsky does, that he was wrong to do so. You might think, like State Senator Daylin Leach does, that Hanes was right to do so because Hanes swore an oath to protect the Constitution and he believes the same-sex marriage ban to be unconstitutional.
 The Committee of Seventy, a Philadelphia-based local government watchdog, has already argued that these roles should be appointed rather than elected — albeit, on efficiency grounds.
“Bruce Castor Gets It Right.” Stu Bykosky. Philadelphia Daily News.
“PA Official Legally Right to Issue Same-Sex Marriage Licenses.” Sen. Daylin Leach. Huffington Post.
“Roadmap: Needless Jobs.” Committee of Seventy.