Balkinization  

Friday, February 10, 2006

Congressional Oversight, Party Loyalty, and Separation of Powers

JB

There are at least two different explanations for resistance among Republicans to the President's NSA program. The first is that there are some public spirited public officials who genuinely believe that the program violates the law and/or the Constitution, and are worried that the Administration is dangerously aggrandizing power, and are willing to risk the disfavor of the Administration in saying so. The second is that Republican members of Congress increasingly understand that their political fortunes are not tied to that of the Bush administration and that what is good for their interests in reelection may differ from the Administration's. This President, after all, will never run for reelection while Congressmen and Senators must continually do so.

Our constitutional system is premised on the idea that the first explanation-- of simple public spiritedness and courage-- will not always be sufficient and that the second explanation-- of political self-interest-- will often be necessary to counteract overreaching by another branch of government.

The problem, however, is that in contemporary politics party loyalty has often proved much stronger than institutional rivalry between Congress and the President. After the Republican Party succeeded in capturing both Houses of Congress and the Presidency (not to mention a majority of the Supreme Court), the basic strategy was for the political branches to work together. Karl Rove used 9-11 and the War on Terror to create a new set of themes that Republicans could unite around and run on to the disadvantage of Democrats.

To a significant extent, the Administration is still using that same playbook-- repeatedly sending the message that Republicans are serious about protecting Americans, while Democrats are not. Using these themes, the President ran on behalf of Republican candidates in 2002 with considerable success, and he managed to increase Congressional margins in 2004.

As a result, Republicans in Congress have, until recently, been unwilling to perform the function of Congress in a system of separated powers-- to oversee, expose, or push back against Administration overreaching, bad judgment or incompetence. Because this natural check and balance of the political system has been overcome by party politics, the result has been repeated instances of all three-- overreaching, bad judgment and incompetence.

Many have worried that the successful political strategies we have seen in this Administration mean that the logic of the constitutional system is breaking down and that we can no longer depend on separation of powers to check the other branches. That is why the recent developments are so important. They suggest that although a movement party like the Republicans can work together for a while, at some point repeated election cycles drive a wedge between the interests of Congress and the President controlled by the same party, particularly when the Administration is a lame duck Administration.

Although I have not been a fan of the Twenty Second Amendment, which limits Presidential terms to two, it does have the unintended effect of helping to create this sort of wedge. Even if a movement party controlling both Congress and the Presidency can march in a relatively secure lockstep during a President's first term, differences will almost certainly arise in the second term. And of course, if the public becomes sufficiently aroused and unhappy with what the movement party has done, it may break up the constitutional trifecta and hand one House or the Presidency to the other party.

The question is whether this mechanism is enough to do all the work that the framers of the 1787 Constitution originally hoped it would. (We must remember that the framers didn't even believe that there would be poiltical parties, so the fact that the system of separated powers has done much of the work it was intended to do is something of a miracle). Although the signs are hopeful, the jury, alas, is still out on this question. Republicans and Democrats alike have worked hard to ensure a large number of safe seats in the House; moreover, the contemporary system of campaign finance favors incumbents and allows Congressional leaders to keep Congressmen and Senators in marginal constituencies in line. Hence the Rovian model of a relatively disciplined party in which the President and Congressional Republicans work in lockstep may still have considerable staying power. And it is that Rovian model that has undermined the system of checks and balances that helps keep Presidents honest. Even though some Republicans are now objecting to this President's repeated acts of overreaching and incompetence, I am not yet convinced that the Congress as a whole will be able to perform its oversight function in a sustained fashion. Only time will tell.


Comments:

If we have the luxury of a long historical view here, it seems that the Bush 43 administration has been an unusual conjunction not only of one-party control of the White House and both Houses of Congress, but also of a dominant theme within that party (social conservatives with low-tax and hawkish ideas) running the show in all three institutions.

We probably haven't seen this for any length of time since FDR. Most Republican Presidents have had to deal with Democratic majorities at least in the House, and Clinton had to deal with a Republican Congress, of course. But also, in the Truman, Kennedy/Johnson and later the Carter years, there was a pronounced heterogeneity among Democrats nationally, when the party included Southern segregationists, union-backed machine pols, and new-leftish liberals all at once. No President could align with every Democrat on anything.

The odd thing about the current Republican House is that there are so few fault lines within it, and they agree with W. on almost everything. Republican opposition to W. in thes Senate seems to be ad hoc, sometimes based on personal rivalry (McCain, Hagel) and often eccentric (Graham, Specter) and highly nuanced, frequently ambivalent. This is (hopefully) a rare moment in US history.
 

Bush prevailed in 2004 presumably because he, and the Republicans, were perceived to provide and assure Americans of greater security than Kerry and the Democrats, despite the many, many mistakes made by Bush in connection with the Iraq invasion and occupation. Now that Bush cannot run again, the Republican party can be expected to pursue this "winning" strategy by continuing to paint Democrats as weak on security. But who will be the Republican nominee? Will it really make a difference if the voting public continues to perceive the Republicans as stronger on security? If the nominee does not make a difference, perhaps Bush's actions regarding Iran in the next couple of years will make the difference, thus providing Republicans with their security mantra. War is horrible, but it can keep a party in power.
 

In Federalist 10 Madison claimed that one of the virtues of the new government was that it would safeguard against faction:

"If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. ...

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control."

If party loyalty among Republicans has reached the point that we cannot rely on the institutional interests of the separate branches of government to resist concentrations of power (Federalist 51), then we have to take more seriously some fundamental reforms to restore the balance. If, as I suspect, the current Administration does not represent an actual majority, then more democracy might do the trick: eliminate the Electoral College; end partisan gerrymanders; substantially reduce the advantages of incumbency; maybe even find a way to democratize the Senate.
 

I was actually going to suggest just the opposite. Namely that the dangerous cooperation between the branches of congress is a result of too much democracy.

Whether or not the prez currently has majority support (whatever that means without a challenger) this difference isn't enough to hang a constitutional protection on. A slightly smarter republican party and a slightly taller president would have all three branches even with perfect proportional representation. In fact having the senate and house elected with different procedures decreases the change of a constitutional trifecta.

My response is exactly the opposite. The founders initially favored a robust electoral college and indirect election of senators. This meant that the various branches of the federal government were responsive to significantly different power centers. Having changed the system to make it more representational we have also guaranteed that all three branches of government all rest on public opinion.

One consequence of this is that the different branches of government are much more likely to be populated with people with a similar point of view. In the original system one would have expected the senate to be way less populist and composed of a different social class than the house. Now their is little systematic difference. Additionally there is stronger motivation for a party to march in lock step. Since all branches of government answer to the public in mostly similar ways the same program which gets house members reelected is likely to get senate members reelected. This effect is likely to only get worse as improved transportation makes the nation more homogeneous.

While the founders made some clear mistakes, they should have forseen the gaming of the electoral college by the parties, the fundamental idea was very sound. That idea was that differing centers of power and the mediation of democracy through indirect elections are more important than trying to be responsive to the will of the majority.

It seems to me that we need a diersity of power centers and thus *less* direct democracy if we want to avoid this sort of cooperation between parts of the government.
 

My suggestions for more democracy were premised on the belief that the Republicans do not actually represent a majority interest in the country. Given that premise, I agree with Madison that "If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote." Implicit in my view is that the violations of republican principle I mentioned -- Electoral College, gerrymandering, etc. -- give Republicans a working majority in government without having an actual majority in the country. That problem we can cure by eliminating some or all of those violations.

If, OTOH, (a) the Republicans actually do constitute a majority, (b) party loyalty overrides the good of the country (making them a "faction" in Madison's terms), and (c) the institutional protections provided by separation of powers no longer work because of the same party loyalty, then we'd have to start considering alternatives to more democracy.
 

(1) Just because the Democrats are too unpopular to win an election does not meant the Constitution is broken; (2) just because congressional Republicans aren't carrying the left's water doesn't mean the constitution is broken.
 

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