Balkinization: David Broder and the (Daryl) Levinson thesis

David Broder and the (Daryl) Levinson thesis

Sandy Levinson

I note a column in today's Washington Post by David Broder, entitled, fittingly enough "Fixing a Broken Congress." He discusses the new book by Norman Ornstein and Thomas Mann detailing all of the things that are wrong with the present Congress, which, I have earlier argued, are all too well anticipated in some of Carl Schmitt's attacks during the 1920's on the Weimar parliament. In any event, Broder concludes his column as follows: "But a new election means new faces -- and possibly a new spirit on Capitol Hill. Mann and Ornstein have a number of specific changes to suggest in congressional rules and procedures -- and in lobbying regulations. But their main point is simple. We need an infusion of men and women committed to Congress as an institution -- to engaging with each other seriously enough to search out and find areas of agreement and to join hands with each other to insist on the rights and prerogatives of the nation's legislature, not make it simply an echo chamber of presidential politics.
That ought to be the criterion by which candidates are judged in this election season."

At one level it is hard to disagree with Broder. At another level, though, it seems an almost truly pathetic hope. As Daryl Levinson has argued, drawing on much contemporary political science material--I have just returned from the 2006 convention of the American Political Science Association--there is no real incentive for modern members of Congress to be "committed to Congress as an institution" (whatever, exactly, that would mean). As David Mayhew argued many years ago, the primary interest of members of Congress is being re-elected, which, of course, has all sorts of implications in terms of campaign finance. We are all familiar with the indecent amount of time that members of Congress have to spend raising funds. But there is also the ever-more-important phenomenon, partly as a result of some of the so-called "reforms," that it is also important to stay in the good graces of the national party, which has signifiant monies of its own to dispense. Although Tip O'Neill famously said that "all politics are local," congressional campaigns are increasingly nationalized. Moreover, O'Neill was basically defending a system whereby re-election was procured by bringing home the pork, whether or not any particular piece of pork could plausibly be said to serve any "public interest" even if it did, of course, line the pockets of a Representative's constituents. (Recall the "bridge to nowhere.") An "earmark system" of congressional politics means that any given Representative must remain in the good graces of party leaders, and the maximum party leader, of course, is the President.

Broder is evoking the classic Madisonian vision of legislators who are basically virtuous and "above politics." That has not described Amerirican politics for over 200 years. If Congress is broken, which seems a fair diagnosis, quite literally reactionary appeals to a nostalgic form of politics are scarcely going to be adequate. (My old colleague David Kettler wrote a brilliant essay many years ago criticizing the "republican revival" among political theorists by pointing out that it depended on a whole host of assumptions that no longer obtained in modern life.) I don't know what the solution for our broken and sometimes decadent Congress might be. ut surely we must think in more creative institutional terms rather than hope for what would in effect be a conversion experience on the part of those who would lead us.

Needless to say, I couldn't agree with him more that we need more members of Congress willing to put the brakes on an ever more authoritarian and removed-from-reality Executive Branch led by a stunningly incompetent ignoramus. But that is just to say that we need more Democrats in Congress, for all of the obvious criticisms that can be directed at the Democratic Pary. Lincoln Chafee might be a fine, upstanding person, but so long as he would vote to leave the Senate in Republican hands, he is a menace to the Republic who should be thrown out of office. It really is as simple as that. Could Broder possibly believe that it would be better to have a Senate that included the virtuous and in some ways admirable Chafee if it came at the price of the Senate's remaining in Republican hands (and therefore completely unwilling to engage in any significant oversight of their Republican masters in the Executive)? This election is not about the individual virtue of the candidates; it is about which party will be authorized to organize the House and the Senate, with all of the prerogatives attached to that organization, including all-important subpoena powers for investigations. I wish one could believe otherwise, but, as Walter Cronkhite used to say, "that's the way it is...."

Posted 5:26 PM by Sandy Levinson [link]

Comments:

Henry asks a superb question. In fact, Daryl Levinson and Richard Pildes, in their recent article, "Separation of Parties, Not Powers," 119 HARV. L. REV. 2311 (2006), make just such a proposal. See particularly pp. 2368ff, where they discuss, under the rubric "Democratic Institutional Design," what they call "minority opposition rights." They suggest, for example, that intelligence and similar committees would be controlled by the party other than the President's own. Sometimes tht would be the majority party in Congress, sometimes the minority, but the point is to institutionalize a system where the members, out of party (and not a vague "institutional") loyalty, would have an incentive to engage in genuine oversight over the Executive. This is an example of using "non-virtuous" motivations to create a more effective system of government, which, I think, is far preferable as a strategy than Broder-like appeals, however sympathetic one might be, to what Lincoln might have called the better angels of our nature.

# posted by

Sandy Levinson : 9:01 PM

I have wended into the D.Levinson and R.Pildes scholarly article, and find many risky, half developed ideas, mostly all worth considering, though.

While, on its face, Henry's theorem seems directed at more balance and less faction, in congress, to the contrary, I believe it invites disaster of the very sort associated with a commonly disgraced government which you mention, significantly, in your opening article, prof. Levinson: Weimar.

As I peruse D.Addington's signing statements I am reminded of von Pappen's drift, and I draw comparisons between vonP and Bush-II, for their both allowing infrastructural changes which prepare the government for high-risk revisionist prosecution of policy.

So far in my reading in DLevinson-RPildes, I find scant appreciation of the two-party concept of polity, one of the strongest assets of our form of government; rather, they broach the topic of political parties as shadow government alien to the Founders. Nevertheless, I enjoy Pildes' writings, and plan to follow the links in that Harvard Law Review piece, in my personal search for the ways we can keep this experiment alive and vibrant.

If you happen to have curiosity about Alito's first 100 days on Scotus, check this link to the principal newspaper in his region; caveat, the archive disappears behind a paywall later this week. The article.

Returning to Henry's question, my view is our constitution, and the rules which have developed in the two legislative chambers, continually seem to elicit nobility from elected officials there. The flaws in some members need viewing through the lens of the remainder of the members whose excellence outbalances the defects. It is in that sense that I believe an election's winner deserves the resultant reward, and committee leadership and control are important elements in majoritarian governance.

One of the missing counterpoints to our government is the growing significance of other nations in the world order; unfortunately, that interface seems to be one of the bleakest, most desertified, in this administrations policy book.

# posted by

JohnLopresti : 7:19 PM

To the degree it actually brought in a new environment, what is needed is a reformist influx ala the mid-1970s. This might take more than one election, but it seems possible to some degree. shift

In fact, in a negative fashion, the book suggests change is possible in a relatively short period -- Congress had problems for years, but the book argues that it is particularly problematic now -- in large part thanks to changes growing from Republican control ten years back.

To the degree "election's winner deserves the resultant reward," two caveats come to mind. First, only a 1/3 of the Senate runs each time. The "winner" is the majority of that 1/3.

Second, various things set up a situation where few races are competitive, even if the person running is subpar, so just how hard is it to "win" overall? Also, the winners are of various sorts, of which "D" and "R" is rather rough.

# posted by

Joe : 11:02 PM

There is another alternative: a parliamentary system, in which multiple parties contend (and sometimes form coalitions). Of course this demands (1) a modicum of intelligence and (2) traditions of political restraint and respect for the rule of law to work.

If the problem is that "we need more members of Congress willing to put the brakes on an ever more authoritarian and removed-from-reality Executive Branch", it seems to me that a Parliamentary system would exacerbate the problem rather than solve it. Parliamentary systems tend to enhance one-party rule, not alleviate it.

# posted by

Mark Field : 4:31 PM

As to a parliamentary system, whatever might be said about its merits and demerits, I think it is quite clear that that the US would not adopt one even if my proposal for a new constitutional convention were accepted. Thus I think the Pildes-Levinson proposal, which requires significantly less radical changes in our institutional structure, has much to be said for it, especially if neither party is confident about who will control the Executive.

With regard to Joe's comment, one further problem with valorizing the Senate as a "majoritarian" institution is that the (I believe indefensible) allocation of equal voting power by states means that the "majority" within the Senate may in fact represent only a "minority" of the voters, as is the case even as we speak. Democratic candidates for the Senate over the past three elections have received at least 3,000,000 more votes than their Republican counterparts. Were the Senate elected proportionately (and assuming no gerrymandering), it would currently be Democratic. (In the last election, Barbara Boxer was re-elected in California with approximtely 6-1/2 million votes while Lisa Murkowski was being returned to the Senate from Alaska with approximately 150,000 votes. Yet each counts equally in the Senate when voting to organize or look into the possibly criminal misconduct of the Bush Administration.

# posted by

Sandy Levinson : 4:32 PM

Of course, except by some rather creative reading, Sandy Levinson's concern is worsened by Art. V, which makes it hard even to fix it by the already hard amendment route.

OTOH, Publius found a way around a similar unanimous requirement in the Articles of Confederation. It might also be added that the differential of big and small states in the Senate originally was rather small (13:1 or so, I believe) as compared to now.

Of course, the Senate is meant to be anti-majoritarian in certain respects. But, perhaps at certain point it becomes anti-republican?

# posted by

Joe : 7:05 PM

The Senate, as I think most people who didn't sleep through high school history are aware, was never intended to represent the people. That was the House's job. It was supposed to represent state governments.

And while it did so, it was admirably effective at keeping the growth of the federal government in check. It's no accident that the "New Deal's" vast expansion of federal power at the expense of the states occured only after the 17th amendment.

Personally, I'm not that concerned that the Constitution is undemocratic. Democracy is, absent some mechanism for preventing oppression, just a way of chosing your oppressor.

Of course, most of those mechanisms have been systematically defeated by judicial interpretation, so I suppose we might as well give democracy a try, instead.

# posted by

Brett : 9:06 PM

Apropos Brett's notion of the original purpose of the Senate: It's hard to argue, I believe, that anyone seriously could believe that senators would really and truly represent state governments for two quite different reasons: a) the senators were selected, by state legisaltors to be sure, for fixed terms and their salaries were paid by the national government. b) the senators were not themsleves officials of the state governments, even if they had once been. So, as a practical matter, the only reason to believe that senators would be all that responsive to state government officials is their desire to gain re-election. Otherwise, the state could do little to discipline a senator who decided to resist the wishes of state governments. Contrast the Senate with the Bundesrat in Germany, which is composed of active state officials.

No doubt the 17th Amendment freed senators from any incentive to care about the wishes to state officials, but one should not believe that even the pre-amended Constitution was guaranteed significantly to protect the interests of state governments.

# posted by

Sandy Levinson : 9:39 PM

Also, remember that Senators voted individually, not by state.

That said, the selection of Senators by State Legislatures was advertised (Federalist 62) as "of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former..." I don't believe Madison believed this or desired that result, given how hard he fought in the Convention for proportional representation.

# posted by

Mark Field : 10:56 PM

The image of Nancy Pelosi gavelling the House to disorder (apparently an image Republicans intend to make use in '06) is not appealing. Still, I'd rather her blustering idiocy than allow a lawless President continue unhampered. The nostolgic view of our government may be passe, or maybe it is something we must aspire to and grow into. I'd prefer the latter, but I'm realistic enough to play politics raw.

# posted by

Anonymous : 8:18 AM

The New York Times has just posted an articlel emphasizing the amounts of money and energy being poured in by the national Republican Party to save Lincoln Chafee's nomination in the primary next week. The reason, obviously, has nothing at all to do with policy agreement with Sen. Chafee. Rather, they know they can count on his vote to organize the Senate. Karl Rove undoubtedly perceives Chafee as what, alas, he is: in Lenin's brutal term, a "useful idiot" for a party and policies he professes not to support.

# posted by

Sandy Levinson : 5:20 PM