McConnell and the Separation of Parties, Not Powers

Joseph Fishkin

Following up on Sandy’s post, McConnell’s trial balloon today was, I believe, several degrees more cynical than Sandy suggests. Far from handing the President the power to actually cut spending unilaterally, McConnell’s proposal amounts to a delegation to the President of the power to raise the debt ceiling without cutting spending at all. (The President must propose, and be on the hook politically for, some large cuts, but Congress need not enact them.)

The McConnell proposal would trade policy leverage for political leverage. Instead of a big policy victory—the massive cuts to domestic programs including Medicare that the Republicans were very likely to win as the price of increasing the debt ceiling—McConnell aims for a different kind of victory: forcing President Obama to “own” the increase in the debt limit, not one time but three times, between now and November 2012. This victory provides a new and cynical twist on the logic of what Daryl Levinson and Rick Pildes call “the separation of parties, not powers.”


Raising the debt ceiling is unpopular. The American public is apparently not very informed about the potential consequences of defaulting on our obligations, and is disinclined to support more borrowing. Republicans, who one can assume are better informed about those potential consequences, therefore have a classic political dilemma of a type familiar from game theory: they need the debt ceiling raised, but they do not want to be the ones who voted to raise it. For Republicans, the best thing would be for Democrats and President Obama to act on their own to raise the debt ceiling, thereby staving off the negative consequences of default, and allowing Republicans to campaign for the next year and a half against the “out of control spending” of the other party.

But there’s one problem. Republicans control a House of Congress. This is inconvenient. The debt ceiling will not be raised without some House Republicans voting to raise it. And that is where McConnell’s proposal ingeniously pulls a rabbit out of a hat. McConnell’s proposal makes it the case that increasing the debt ceiling requires only a one third minority, in either house, instead of a majority. How? Because under McConnell’s proposed mechanism, the President moves to increase the debt ceiling, Congress responds with a “resolution of disapproval,” the President (presumably) vetoes that resolution, and then, unless the resolution passes again with a two-thirds supermajority in both houses, the debt ceiling increase goes into effect. Thus, House Republicans are all free to campaign against increasing the debt ceiling, speak out against increasing the debt ceiling, and vote for a “resolution of disapproval” that would in fact block the increase in the debt ceiling… safe in the knowledge that, in fact, there will be an increase in the debt ceiling.

McConnell’s proposal simulates (on this one issue) a more parliamentary form of government. Unlike in the American system, in which both parties have some responsibility to govern, particularly during periods of divided government, McConnell would unilaterally cede congressional power to the executive so that the Republicans can gain the freedom of a parliamentary opposition party: they can simply oppose, without having to govern.

And that is why I can’t help but think of Levinson and Pildes’ article, which explores the tensions that arise out of the fact that we live under a legal regime of separation of powers, overlaid on a political regime in which the real separation is of parties. Usually, one major implication of this gap is that legislatures are more inclined to constrain executive power when government is divided, and more inclined to cede power to an executive of the same party. McConnell’s proposal today provides a different, and more cynical, twist. With power, unfortunately, comes responsibility. When there are unpopular things that must be done, it can be inconvenient to have a legislative majority. Ceding power to an executive of the opposite party can thus be a smart political strategy for legislators who wish to avoid taking responsibility for doing what needs to be done.
Posted 7:59 PM by Joseph Fishkin [link]