Changing the Rules of the Game Requires Defending Government By, For, and Of the People

Guest Blogger

For the Balkinization symposium on Maxwell Stearns, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (Johns Hopkins University Press, 2024).

Lisa L. Miller

When I ask my students to define checks and balances, it doesn’t take long for them to remember the triangle: images from their high school textbooks of the three branches of government with double-headed arrows pointing in every direction. The standard constitutional civics lesson in the United States largely equates checks and balances, separation of powers, and presidentialism, and my students learned their lessons well.

But these are different concepts. Presidentialism is just one form of separation of powers, and separation of powers is one form of checks and balances. When I discuss parliamentary systems with my students, we often end up entangled in their old civics lesson. If the Legislature selects the Executive, where are the checks and balances? What is to stop a legislature and executive that aren’t separated from joining forces and becoming tyrannical? Because these terms are used interchangeably, it is hard for Americans to imagine that a political system in which the legislature chooses the executive could still have checks on that power. Or that checks and balances can take many forms, not only within legislative, executive, and judicial departments, but also through civil society, electoral commissions, central banks, interest groups and so on.

Though Parliamentary America is not aimed at clarifying these concepts per se, Stearns nonetheless explains, in detailed and comparative fashion, that there are many ways to separate power and to ‘check and balance’ governmental authority. Using comparisons across multiple democracies, Stearns illustrates the effects that different structures have on party systems, reform opportunities, and democratic accountability. His conclusion is to recommend three Electoral Reform Amendments which he argues would increase democratic checks on lawmakers and reduce the likelihood of concentrated power in the executive. Stearns reforms would result in an American system that retains much of its core features—House, Senate, Executive, Judiciary—but that provides for mixed-member proportionality in representation and mimics a parliamentary system with legislative selection, and potential removal, of the executive.

Before amending the constitution however, it might be useful to ask ourselves what checks and balances and separation of powers are for. Stearns’ target is the party system, and he is not alone in seeing the intersection of a polarized two-party system with American-style separation of powers as central to contemporary problems. To paraphrase (or bastardize) Hemingway, political polarization has occurred gradually, and then suddenly, and we now have a party controlling the national government that is increasingly autocratic and oligarchic. Our existing separation of powers system provides few pathways for checking this hyper-concentration of power.

But Stearns hinges a lot on the party system. He might be right that his initial reforms are necessary to make other reforms possible. But I think the constitutional crises of American democracy runs deeper. Technically, the Electoral Reform Amendments leave some version of the tricameral system in place—that is, a system that requires three different political institutions, House, Senate, President, to agree before policy reforms can be enacted. In Stearns’ new system the President would be chosen by the majority coalition in the House and, therefore, have every incentive to work with the coalition on policy reforms (particularly since they could be removed by a no confidence vote). But House elections two years later might produce a different coalition, leaving the choice of the executive from the previous coalition in a position to veto legislation produced by the new one. True, the new coalition could remove the President under Stearns’ third amendment, which provides for removal for “maladministration.” But the 60-vote threshold makes this difficult. Bicameralism, federalism and state sovereignty claims, and judicial supremacy also remain intact under Stearns’ proposals. All this fragmentation results in many veto points where powerful political minorities can block change.

Stearns is certainly right that multi-party coalitions would improve incentives for cooperation, but it might take a while. And even with greater cooperation, the sheer volume of veto points might mitigate some of the benefits of Stearns reforms. In fact, Stearns himself proposes additional changes in the final chapter, including reducing the power of the Senate, limiting the terms of federal judges, and aligning elections of the House and Senate with the four-year presidential terms.

This is why understanding what we want checks and balances and separation of powers to do strikes me as so important. In the American vernacular, both separation of powers and checks and balances are largely equated with constraints on government, at ensuring that governmental authority is not hyper-concentrated. But concentration of some power in the national government is a necessary condition for effective public policy, a fact that abolitionists, laborers, suffragettes, civil rights activists, poor people’s movements, and a host of other Americans have recognized for two centuries. Critiques of the fractured structure of American politics have their history in periods of economic and social transformation, precisely because this structure produces a profound status quo bias. This system is typically defended as the price we pay to avoid hyper-concentrated, dangerous power in government. The only positive result of our current political moment is that we can finally put that old canard to rest. 

Ideally, separation of powers should help reduce the likelihood that governmental power is hyper-concentrated in the hands of the few, and Stearns’ second two amendments are aimed at addressing this problem. But the concept of checks and balances, in my view, is broader. It encompasses checks on governmental power as well as checks on private power. The long history of Americans wielding public authority to reduce concentration of power in the private sector is rarely taught in our standard civics education. But it has been central to the development of human capital. The Fair Labor Standards Act, National Labor Relations Act, Voting Rights Act, Medicare and Medicaid, the Affordable Care Act, and so on, are all examples of the government power deployed against private power for democratic ends.

This matters because constitutional reforms to make government more responsive to the American public will undoubtedly face the standard civics lesson claims about the virtues of the American system of presidentialism-separation of powers-checks and balances and the dangers of government power, tyranny of the majority, and so on. Indeed, a cottage industry of think tanks, interest groups, and legal scholars have spent decades cultivating the idea that this structure has one central purpose: limited government, by which they mean, constraining Congress from responding ‘too much’ to the will of the people. It is not a coincidence that among the most vocal proponents of this view are those who benefit from the status quo—economic elites and whites over-represented under the current structure (e.g., equal representation in the Senate, Electoral College). Over nearly two centuries, these groups have resisted changes to the rules of the game—to the constitutional status quo—precisely to preserve their privileged access to economic, social, and political decision-making.

I share Stearns’ view that a more representative national legislative body and more substantive constraints on executive aggrandizement would improve American democracy. But to get there, we need a robust account of who benefits from the current structure and a clearer argument about the purpose of government in a democratic society. Checking concentrations of private power, particularly economic and racial, is essential to democratic systems. The only real mechanism for ordinary people to accomplish this is by using democratic processes and public authority. A multi-party system might accomplish this, but only if it can effectively, legitimately, and responsively wield power without routine vetoes from already powerful interests. 

Lisa L. Miller is Professor of Political Science at Rutgers University. You can reach her by e-mail at miller@polisci.rutgers.edu.