Balkinization  

Sunday, December 30, 2007

Will They Ever Connect the Dots?

Sandy Levinson

After the criticism leveled at him last week, it is a pleasure to commend David Broder for his extremely interesting article in today's Washington Post on a forthcoming conference at the University of Oklahoma, called by former Sen. and current UO president David Boren, to explore the possibility of a "non-partisan" candidacy for the presidency by New York Mayor Michael Bloomberg. The NYTimes catches up with the story in tomorrow's issue with an article titled "Bloomberg Moves Closer to Running for President." Broder's article is of greater intellectual interest, inasmuch as he discusses at greater length the ideological views of the various participants at the conference, who will apparently include former Senators John Danforth, Charles Robb, Gary Hart, and Sam Nunn, as well as Chuck Hagel, discussed in the Times story as a potential running mate for Bloomberg. According to Broder, "A letter from Nunn and Boren sent to those attending the Jan. 7 session said that 'our political system is, at the least, badly bent and many are concluding that it is broken at a time where America must lead boldly at home and abroad. Partisan polarization is preventing us from uniting to meet the challenges that we must face if we are to prevent further erosion in America's power of leadership and example.'" Their answer to this is a "national unity" ticket.

I know that I sound like a broken record, but I continue to find it both amazing and perplexing that such serious and dedicated men and women (such as former NJ Gov. and EPA Administrator Christine Todd Whitman) are willing to contemplate turning the 2008 presidential election topsy-turvy but not to make what to me, at least, is the stunningly obvious connection between the system, in all its "broken" or "badly bent" quality, and the Constitution that establishes the system.

Our system is so frustrating to so many people in part because of the phenomenon of divided government and, of course, the ability of the presidential veto to countermand majoritarian decisions of the House and Senate. (At a gathering this week in Baltimore, Marty Lederman pointed out to me the extremely interesting fact that the current use of the filibuster by Republicans in the Senate is, in some ways, irrelevant, because Bush could simply veto the objectionable legislation. So the interesting question, politically, is why Senate Republicans think it is in their interest to become "obstructionists" rather than acquiesce in the taking of votes for legislation that will then be vetoed (and upheld). The situation is structurally different from the past several years of Republican control, when Democratic filibusters were truly necessary to prevent passage (and then signing) of conservative legislation.)

I won't go through the whole litany of arguments that I (and University of Virginia political scientist Larry Sabato) have made about the desirability of thinking of substantial constitutional reform to take account of the "lessons of experience." Obviously, there are many readers of this blog who think that nothing in particular is wrong with the status quo. But Boren et al. are obviously not among this group. So I think it is fair to ask why, at the end of the day, their vision is limited to an almost certainly doomed effort by a "national-unity ticket."

It's not that one can't imagine Michael Bloomberg and Chuck Hagel getting some electoral votes, especially given our first-past-the-past system. But it seems absolutely unthinkable to me that there is a plausible scenario that gives such a ticket 271 such votes . (For the record, I note that I would be less skeptical of an independent candidacy led by Arnold Schwartenegger.) And, as we all know (or should know), a failure of any candidate to receive a majority of the electoral vote sends the election to the House of Representatives on a one-state/one-vote basis. I think it's fair to say that it's even more inconceivable that the members of the House, almost every single one of whom is a member of the Democratic or Republican parties, would have any sympathy at all for placing in office a wild-card president and vice-president who ran on a systematically anti-party ticket.

According to tomorrow's Times' article,

One concern among Mr. Bloomberg’s inner circle is whether a loss would label him a spoiler — “a rich Ralph Nader"— who cost a more viable candidate the presidency in a watershed political year. One person close to the mayor, who requested anonymity so as not to be seen discussing internal strategy, stressed that Mr. Bloomberg would run only if he believed he could win.

“He’s not going to do it to influence the debate,” the person said.


[UPDATE: Today's Boston Globe includes an op-ed, "Changing Our Direction," by former Senators William Cohen and Sam Nunn, that sets out the basic creed of the Oklahoma gathering. After setting out a litany of problems in contemporary America, they go on to say

While these and other challenges demand serious attention, our political process seems determined to engage in games of trivial pursuits....

Election campaigns are inevitably rough and tumble, but they must also be a time for vigorous national debate and discussion. They best serve the nation when the public and the candidates are exposed to new ideas and approaches. The national discussions of 2008 must better prepare our nation and our leadership than have the national discussions of this past year.

As citizens, each of us has a role to play in serving our country. Over the course of the next year, the two of us plan to help stimulate a national conversation on the direction our country must take in this turbulent age filled with both promise and peril. We intend to launch a series of public discussions, inviting leaders from throughout the country and from many walks of life to bring their experience, expertise, innovation, and energy to these dialogues.

We need to focus on seminal issues that those who seek to be our leaders must address: How do we restore our government's credibility and competence? How do we rebuild our physical and human capital so that we can face a dynamic world of change with confidence in our ability to compete? How do we promote energy security and reduce our vulnerabilities to the most unstable regions of the world? How do we operate in a complicated world where other nations will not always be "with or against us"? How do we restore America's international leadership role and renew the values for which we have been so long admired? How do we engage and use "smart power" that combines economic, diplomatic, and military strength to achieve national security and foreign policy goals? How do we encourage citizens of every age, race, and creed to act on the premise that we have not just inherited our wonderful country from our parents, but we have borrowed it from our children?

If as a nation we begin to ask, debate, and answer these questions and these challenges, we can renew our commitment to community, enable those we elect, and restore an exhilarating sense that, once again, we are all in this together.

Every issue they raise is worth discussing. But just imagine this were 1907 or, even more to the point, the decade of the teens, instead of 2007 (soon to be 2008). Woodrow Wilson and Teddy Roosevelt were equally concerned about confronting the issues of the day, but one of those issues, for both, was the adequacy of our constitutional structures. Why, oh why, can these obviously dedicated, concerned, and experienced national leaders bring themselves even to suggest that they might find a single day in the next year to discuss whether the Constitution itself makes it more difficult to confront, let alone to resolve, the issues that they identify?

If I had even the slightest belief that they had actually thought, for even a moment, of whether the Constitution serves us well and had come to a thoughtful conclusion that the answer is yes, then I would disagree, but I would not be so discouraged. Put to one side the books recently published by myself or Prof. Sabato, or the books published earlier by Daniel Lazare or Robert Dahl. It would be a good start if one could be confident that they read the books published in the 1980s, at the time of the otherwise shamefully mindless bicentennial celebrations, by Washington Establishmentarian Lloyd Cutler and others that did raise extremely serious questions about the need for constitutional reform. Some of the proposals I agree with, others I don't. But the sad point is that even a consummate Washington insider like Cutler, joined by such distinguished academics as James Sundquist and Gerhard Casper, among others, got exactly nowhere in stimulating the conversation they desired.

So consider the following possibility: The only way to "restore our government's credibility and competence" is to engage in some fundamental constitutional reform. One can have credibility, for example, only if there is significant, real-time oversight of the Executive by an engaged Congress, and the one and only way to get that, so long as we continue to have a party system, is to put key committees (and subpoena power) in the hands of the opposition party--yes, this means that I would support putting the relevant committees in the hands of Republicans should we get the Democratic presidency I so yearn for next year. And perhaps we would get more competence if we switched from a presidential system to a parliamentary one, where it is usually (though not always) the case that prime ministers have had to demonstrate their competence as chancellors of the exchequer, defense ministers, or foreign ministers. But "competence" might also require giving legislators longer terms, one of the proposals favored by the Cutler group: they would have members of the House of Representatives elected for four-year terms; one version of such a proposal would have half running every two years, somewhat similar to the way we work the Senate. I don't know where I would come out on such a proposal--that's one of the reasons I want a convention--but it is surely relevant if one believes that a major force against "competence" is the necessity of every member of the House to begin planning for the next election, which will take place 22 months after taking the oath of office for the current term of Congress.

There are a number of things that are terrible about the Electoral College, but one of them surely is the incentive it generates for otherwise serious candidates to focus on "battleground" states and make shameless (and sometimes shameful) promises to key groups in such states, regardless of what the "national interest" might require. (I believe that our idiotic policy toward Cuba, the result of the the strategic importance of Cuban-Americans in Miami, is explicable only because of this reality. ) And so on......

It is clear that candidates actually running for office, including John Edwards, who constantly refers to our system as "broken," are unwilling to question our sacred Constitution. But the Oklahoma group is made up of elder statesmen/women who might be able to jumpstart the necessary conversation.]

[ONE MORE ADDENDUM: In my comment about trying to assure "competence" in governance, I forgot to mention my own hobbyhorse of actually holding presidents accountable (especially in their second term) by the threat of a vote of "no-confidence" that would result in his/her eviction from the Oval Office. This is not a "radical" suggestion; James Sundquist included it in his 1980s book. Why won't these worthies address the threat to America posed by an incompetent president, particularly in the realms of military and foreign policy?]



Comments:

Professor Levinson:

I do not see how eliminating the electoral college would make an independent, non party candidate even remotely viable. Independent non party candidates simply do poorly in party systems and all major democracies run party systems because parties enable voters a shorthand for voting their particular ideology and provide the organization to get legislation through.

While Perot was able to get 20% of the vote when conservatives bolted the GOP in dissatisfaction with an incumbent running for reelection, the usual non party independent candidate like Anderson or Nader get a very small portion of the vote.

If an independent somehow managed to win the Presidency ala Jesse Ventura winning the Minn governorship, he or she would have no party organization to get legislation through and would fail.

On a race horse perspective, Bloomberg and his allies fall into the John Anderson category of pragmatic liberals and would draw about 5% of the vote from the Dems as Anderson drew from Carter. As an Elephant, I can only say: "Run MIke Run!{
 

Join the rapidly growing grassroots effort to Draft Mike Bloomberg for President!
 

While I quite agree with you that any day is a good day to urge democratic reforms to the US Constitution, you seem here to have missed the very partisan point of all the recent complaints of gridlock and demands that we “rise above party” with a “government of national unity.”

But others have not.

Bipartisan Zombies

Here's Your Bipartisanship, America

The Case for Polarization

Your Daily Digby: Bipartisan Zombies
 

The photo fronting for the article tells the larger story. Danforth. The man who invented that centrist Clarence Thomas. The group seems to consist of a bunch of formers [former this, former that] who I don't recall touting "reform" while they were in. They [with perhaps Hart who I volunteered for] were at best status quoers more concerned with tone than substance. A closer read of Broder's article reveals these old, white, formers simple want everyone to "nice talk" and tells us more about them then the current civil unrest in this country brought on by imperial wars abroad and class wars at home.
 

Projects as momentous as amending the Constitution will need, imho, decades to produce anything, so my suggestion is abandon any hope of attending any constitutional assembly in your lifetime, your graduate students maybe but us - no way. Those decades will be honestly needed if only to see how those relatively new European systems are faring in the long run, and how the current US system evolves by itself. And evolve it will - the 21 century will be qualitatively much different, internet technologies gave us a new public square, a new Greek agora on the scale never before seen in human history. Signs of it are all over the place.
 

The only way to "restore our government's credibility and competence" is to engage in some fundamental constitutional reform.

Thus, the New Deal, the Great Society, reforms in the 1970s, and so forth all were pretty pointless, since much of the change did not involve amending the Constitution in the fashion SL argues is fundamentally necessary.

Some of these moves did require a type of Bruce Ackermanesque amendment of constitutional understanding, but that occurred even as early as 1800. The Jackson Era surely involved significantly different constitutional understandings than the Federalist years. What amendments were needed?

And, many did not need such "reform," especially given what I understand you want to happen.

George Bush and his enablers are said to be particularly horrendous. Why? If the Constitution is so broken, his kind should be representative of what we can always expect. So why the ire? The ire arises because, sorry, most think we can do much better with the system we have.

I don't think this is a fool's errand. The authors of "Broken Branch," who know their Constitution, believe Congress could be reformed w/o amendment. And, even if deep change is required, as someone else said, it will take a long time.

The first step would be to get people in power with the wherewithal to say the system is particularly broken and a new path must be taken. This anger and discontent is deemed by many to be remarkable enough.

Why exactly do you think an even more radical push for constitutional change -- really saying our beloved system is broken -- will be an even better move?

Some constitutional change might be a good idea, but I'm sorry, I think you are missing something, even as you deeply believe others are.
 

"There are a number of things that are terrible about the Electoral College, but one of them surely is the incentive it generates for otherwise serious candidates to focus on "battleground" states..."

That is NOT a defect of the Electoral College -- it is a defect of the winner-take-all method of allocating electoral votes, which is an entirely extra-constitutional construct (not unconstitutional, of course, but extra-constitutional).

The first best step to improving the system would be by adopting the District Method nationwide. Yet look of the disingenuous vitriol hurled at those seeking to implement it in California.

Plus ça change...
 

I think you're giving far too much credit to a group of vapid supporters of the entrenched status quo. Their goal is not change like you want; they simply want to consolidate the generally conservative system which now exists and run it with less dissent. The change you want will require people being demanding, revolutionary, even rude -- the very opposite of what these has-beens are trying to achieve.

Glenn Greenwald has this one right.
 

I also think Mark Graber (see next post) has this one right.

"disingenuous vitriol"

Fine enough. Tell the right leaning sorts who are the most significant body pushing for it to (1) join other movements that are pushing for a truly national change in the EC, not singling out a state that would benefit Rs selectively.

and (2) make its effect after '08, which is probably constitutionally and legally req. under state law anyway, helping us conspiracy minded sorts accept it isn't just some cynical partisan move.

True enough though that the "winner take all" system some defenders of the EC support is in no way essential to the constitutional body at stake.

In fact, Madison at one point thought the district method was the best path. But, the 1796 elections suggested -- to both sides -- some potential partisan problems.
 

I think it's telling that the Bloomberg discourse is comparing him to the intelligent-but-unpopular Nader rather than the wacko-but-popular Perot. What the Bloomberg movement is acknowledging is that the conservatives need a candidate who is eternally malleable without running as a Republican. Romney without the R, Bush and the religious complications.
 

eric:

Bloomberg barely even qualifies as a RINO. The man was a liberal Dem who jumped parties only out of convenience to avoid a tough Dem primary and then governed like a liberal Dem raising taxes, spending and regulation in NYC. Only someone who thinks that Nader is a "moderate" could possibly think that Bloomberg is a conservative.

Bloomberg has absolutely no base in the GOP. If he runs, Bloomberg will pull from Dems and Dem leaning independents.
 

Professor Levinson:

[UPDATE: Today's Boston Globe includes an op-ed, "Changing Our Direction," by former Senators William Cohen and Sam Nunn...

SL: Why, oh why, can these obviously dedicated, concerned, and experienced national leaders bring themselves even to suggest that they might find a single day in the next year to discuss whether the Constitution itself makes it more difficult to confront, let alone to resolve, the issues that they identify?


Sandy, you have made a series of interesting proposals for constitutional change. However, how do you contend the your (or any other) constitutional changes will address the platitudes/policy issues offered by Cohen and Nunn?

Let us briefly look at these issues:

How do we restore our government's credibility and competence?

I am unsure how this can be done since Americans have always distrusted government. In any case, I do not see how the Constitution can be amended to change this opinion.

How do we rebuild our physical and human capital so that we can face a dynamic world of change with confidence in our ability to compete?

Our Constitution has not hindered the United States from creating one of the world's best infrastructures. Perhaps we could amend the Constitution to outlaw entitlements whose funding is driven outside the appropriation process and that drain the money from normally appropriated programs. However, I do not see how your largely procedural changes would address this issue.

How do we promote energy security and reduce our vulnerabilities to the most unstable regions of the world?

Open up domestic energy sources. However, this again does not have much to do with the Constitution.

How do we operate in a complicated world where other nations will not always be "with or against us"?

Elections for President matter. Not much the Constitution can do here.

How do we restore America's international leadership role and renew the values for which we have been so long admired?

See above.

How do we engage and use "smart power" that combines economic, diplomatic, and military strength to achieve national security and foreign policy goals?

See above.

How do we encourage citizens of every age, race, and creed to act on the premise that we have not just inherited our wonderful country from our parents, but we have borrowed it from our children?

Nonsensical platitude. While such platitudes make most folks want to hurl, I would not propose to amend the Constitution to outlaw them.

So consider the following possibility: The only way to "restore our government's credibility and competence" is to engage in some fundamental constitutional reform. One can have credibility, for example, only if there is significant, real-time oversight of the Executive by an engaged Congress...

C'mon Sandy, I do not recall the GOP Congress raking Clinton over the coals or the current Dem Congress spending all of its time investigating Bush engendering much confidence among the citizenry. This is precisely what has People disgruntled with their government. For every actual Presidential felony Congress investigates, there are dozens of gotchya political witch hunts to gain partisan political advantage.

And perhaps we would get more competence if we switched from a presidential system to a parliamentary one, where it is usually (though not always) the case that prime ministers have had to demonstrate their competence as chancellors of the exchequer, defense ministers, or foreign ministers.

The Parliamentary system is definitely more efficient than our system of checks and balances. However, I doubt that it will make Americans more confident in their government, especially those who support the minority party.

Would a parliamentary system with Mr. Bush and the GOP give you more confidence than our current divided government? My gimlet eye view of government would certainly not be enhanced by a government run by Clinton, Pelosi and Reid.

Given that our cultural divide is as much about keeping the other side from enacting their programs as it is enacting our own, I dare say that a majority of voters might like to keep our present checks and balances.

[ONE MORE ADDENDUM: In my comment about trying to assure "competence" in governance, I forgot to mention my own hobbyhorse of actually holding presidents accountable (especially in their second term) by the threat of a vote of "no-confidence" that would result in his/her eviction from the Oval Office. This is not a "radical" suggestion; James Sundquist included it in his 1980s book. Why won't these worthies address the threat to America posed by an incompetent president, particularly in the realms of military and foreign policy?]

This proposal has a number of solid arguments in its favor. However, a vote of no confidence should force both Congress and the President into elections, not just the President. Congress is already the most powerful branch of government and has the power of impeachment which the President does not have against Congress. Also, you might want to consider some sort of a super majority requirement unless you like Italian style constant elections.

The reason a vote of no confidence works in a parliamentary system is that the majority party has to agree to new elections, so the vote cannot be used by a minority party which captures Congress to force elections for President.

As always, responding to you posts is interesting. Have a great New Years.
 

Someone who speaks "of an independent candidacy led by Arnold Schwartenegger (sic)" for President is unqualified to diagnose any defects in the US Constitution, much less prescribe changes.

The Governator is ineligible to take the office of President. Yeah, he's a citizen but he wasn't born on US soil.
 

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