Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Many commentators have noted and bemoaned the obstructionist tactics of the Republicans during Obama's first two years in office, and the likely gridlock that will emerge once the Republican Party takes control of the House of Representatives. To be sure, in today's Washington Post, John Boehner and Mitch McConnell state that they are ready and even eager to work with the Democrats. Despite these assertions of good fellowship, however, it seems clear by now that the Republicans are willing to work with the Democrats only if the Democrats put aside all of their preferred policy goals and more or less adopt the policy goals of the Republican Party. President Obama's recent decision to unilaterally freeze the salaries of federal workers is unlikely to soften the hearts of the Republican faithful and get them to accept a second stimulus package or anything else on the Democrats' wish list. Quite the contrary, this unbargained for concession is likely to make the Republican leadership increase the pressure on President Obama to negotiate with himself. I want to put concerns about obstruction and gridlock in a larger perspective. What we are facing today is likely to be importantly different from previous periods of divided government before the George W. Bush Administration. The reason is that at the national level, contemporary American politics suffers from a pathological and debilitating condition: the emergence of parliamentary parties in a presidential system.
Democracy in the United States is based on a presidential system, in which different parties can control the presidency and the houses of Congress. In a parliamentary system, by contrast, the prime minister is head of government and also a member of either the majority party or a party in the majority coalition. Presidential systems have regular elections; there is no possibility of bringing down a government with a vote of no confidence (other than the possibility of impeachment and removal). In parliamentary systems, the head of government can call for new elections at different times, and the legislature can dismiss the head of government by a vote of no confidence.
The American system has long presumed that in periods of divided government, the President will be able to create coalitions with members of both parties in order to pass legislation. This is possible in part because, at least since the Civil War, and until very recently, American political parties have been agglomerations of heterogenous interests, and relatively ideologically diverse. (During the New Deal, for example, northern liberals, Catholics, and blacks coexisted in the same Democratic party as Southern whites). The heterogeneity of American parties is due partly to historical contingencies, and partly to the fact that candidates run to represent particular geographical constituencies in different regions of the country (rather than having seats assigned to them based--in whole or in part--on a party list). Parliamentary parties in most countries, by contrast, tend to be more ideologically coherent and centrally controlled. (Unlike the United States, with its first-past-the-post system, many parliamentary democracies also have some seats awarded by proportional representation, which also tends to concentrate power in the central party apparatus.)
In the past several decades, however, American political parties have come to resemble European-style parliamentary parties, as the old party system inherited from the New Deal has broken down. Each party is increasingly ideologically cohesive, and strongly differentiated from members of the other political party.
The way this point is usually expressed is that the parties are increasingly polarized. But a more appropriate way of saying this is that representatives of the two parties in Congress are behaving more like parliamentary parties. Perhaps ironically, given their anti-European rhetoric, the Republicans behave more like a European-style parliamentary party than the Democrats, who still retain more moderates in the House and Senate.
There are many overlapping reasons for this polarization. One is the primary system, which tends to produce less moderate, more ideological candidates. A second is the system of campaign finance. The national parties have more control over individual members because of the amount of money they can bring to bear (or withhold) to promote (or punish) candidates in the primary and general elections.
Parliamentary-style parties may work well in parliamentary systems, but their emergence in a presidential system is a particularly worrisome development.
Parliamentary parties can work well in parliamentary systems with proportional representation; majority coalitions are formed by bargaining between parties to form new governments. In parliamentary systems ideological coherence and relatively tight control over individual members may actually help coalition parties make credible bargains to form successful governments.
But parliamentary parties are not well designed for the particular forms of give and take that are generally required in a presidential system. In a presidential system, members of different parties are expected to regularly cross party lines to form coalitions on particular questions (rather than on the formation of a government as a whole). Ideologically coherent and politically polarized parties do not perform these functions particularly well. Indeed, the most recent example of the rise of parliamentary parties in the United States is the party system shortly before the Civil War, in which political compromise increasingly became impossible.
If the polarization of parties continues, we can expect persistent forms of political pathology. Here is why:
In a parliamentary system, the party out of power has no obligation to govern, since the majority party (or coalition of parties) controls the levers of power. Instead, the main goal of the party out of power is to destroy the party in power's coalition and take over control of the government. The party out of power hopes to win a vote of no confidence or force the majority to call for an election in a disadvantageous political climate.
In the American system, with fixed terms for the president, it is not possible to call for a vote of no confidence. As a result, a parliamentary party in a presidential system will do the next best thing. It will attempt to force the wheels of government to grind to a halt and make the populace sick of the president's party, reasoning that if the voters become disgusted with government, they will take out their anger on the party associated with the current Administration.
The key point is that even though cooperation from the minority party may be necessary to govern effectively in a presidential system, the minority party does not have sufficient incentives to cooperate if voters will not punish them--and may even reward them at the next election--for making things worse instead of better. An opposition parliamentary-style party in the Senate can also seek to prevent the president from staffing his Administration or appointing new judges. An opposition party in control of either House can use the appropriations process to defund policy initiatives, undermine efficient administration, and hinder legal enforcement. Finally, an opposition parliamentary-style party can attempt to harass the President through investigative hearings and (as in 1998) through impeachment.
With parliamentary parties in a presidential system, the Senate becomes particularly important. The House is more tightly controlled by the majority party, which can regulate debate and discipline its members. By contrast, Senators from the minority part can use the filibuster, holds, and other procedural devices to delay and frustrate the majority party. Unless the majority party controls not only 60 seats, but 60 ideologically coherent and committed seats, the minority can use procedural mechanisms to slow things down or grind them to a halt. During the first two years of the Obama Administration, for example, the Democrats, despite having majorities in both Houses of Congress, never had 60 reliably liberal votes in the Senate.
The American system of checks and balances was designed to slow government down and require deliberation and compromise. That is why there are so many veto points in the system. But there is an important difference between the normal operation of the separation of powers in a traditional presidential system and today's pathological version. The original goal of separation of powers was to create incentives for deliberation and compromise. With parliamentary parties, deliberation and compromise are not taken seriously, because they do not assist the opposition party. Equally important, the opposition party can use its various forms of intra-party control to keep individual members from defecting and making too many deals that would advantage the president's party. The goal of the minority party is decidedly not to reason with the President's party, or to enable a series of deals between moderate factions for which the President might take credit. The goal, rather, is to make governance impossible so that the voters will punish the President's party and the minority party can take over.
This is what our current system has come to, and in my view, it is both pathological and unsustainable in the long run. Not only will it will produce ever more bitter and more polarized politics, it will also produce bad and ineffective government that will harm the national interest.
Another effect of political polarization is the further strengthening of the executive branch. As a result of many years of Congressional expansion of executive power, Obama inherited the most powerful presidency in the nation's history. Since the president can no longer pass big pieces of legislation, he will turn his attentions to what he can do unilaterally: issue regulations, seek to gain greater control over the federal bureaucracy, broadly construe previous Congressional grants of power, build out the national surveillance state, and exert himself in matters of foreign policy.
In the short run, there is very little that individual politicians can do to depolarize the political parties. The system of campaign finance that helps parties control their members seems well entrenched. But one important step would be to change the rules of the Senate and reform the system of filibusters and holds. Senate reform would mean that important legislation would require only a simple majority of both houses to be sent to the President, and executive branch appointments could be filled with only a simple majority of the Senate. This would allow government to function passably well until such time as the parties became more ideologically diverse.
If the Senate is not reformed, we can expect that the incentives of the opposition party--in this case the Republicans--will be pretty much what they have been since Obama took office. The Republicans will strive to destroy Obama's presidency, because they have few incentives to do anything else if they want to regain power. The Republican leadership will work hard to prevent any moderates from defecting from the party line and giving the president any victories that would assist his reelection in 2012. The goal of the opposition party, as Senate Minority Leader Mitch McConnell has candidly explained, is to do everything in its power to make Barack Obama a one-term president.
One should not assume that Congressional Republicans are acting this way because of bad faith or some set of personal failings. Rather, given the evolution of the Republican Party into an ideologically coherent parliamentary-style party in a presidential system, the Republicans are acting rationally. The Democrats, conversely, need to understand that they must work hard to break the Republicans' united front. They will not be able to do this simply by being nice to Republicans, or by attempting to meet the Republicans half-way, for if the Republicans are smart, they will not be assuaged by compromise. Their best strategy is to make Americans thoroughly disgusted with government in general, so that they will throw Barack Obama out of office in 2012. If the Democrats want to achieve anything legislatively in the next few years, they must create strategic problems for individual Republicans, causing them to break ranks despite the best efforts of the Republican leadership. The only way to ensure compromise when parties are polarized as they are is to make the failure to compromise politically costly to individual members of the minority party so.
The next time the Democrats become the minority party, they will have abundant incentives to do precisely what the Republicans are doing now, precisely because the Republicans have shown these strategies to be effective in a climate of ideological polarization. The Republicans fully developed many of their current tactics before the Democrats for three reasons. First, the failure of the Bush presidency and the tarnishing of the Republican brand made the development of these oppositional strategies more urgent for the Republicans following Obama's 2008 victory, when the Democrats controlled the presidency and both Houses of Congress. Second, the Republicans became a more ideologically coherent party more quickly than the Democrats did because they continue to be driven by a powerful conservative social movement. Third, the Republicans have learned how to use campaign finance to discipline their members more effectively than the Democrats have. (In fact, the Democrats, eager to regain power, had recruited a more ideologically diverse group of candidates in 2006 and 2008). But there is no reason to think that the Democrats will not eventually adopt many of the same tactics that the Republicans have perfected if, once again, they find themselves out of power.
The polarization of American political parties might work in a parliamentary system, but it is a disaster in the making for the political system in which we live. Posted
by JB [link]