Monday, May 14, 2012

Party Discipline and Congressional Rules

Gerard N. Magliocca

I'll be part of a Symposium at Notre Dame on Gridlock this Fall, which gives me an opportunity to revisit my interest in the internal procedures of Congress. If you start with the premise that gridlock is a problem that should be fixed (not an assumption everyone shares, of course), then there are a couple of options. The first would be a reform of the Senate filibuster, which I've written about before. Another involves weakening party discipline in Congress to make bipartisanship easier. This is the issue that I want to explore as part of the Constitution-in-practice.

There are two ways to think about party discipline. One is that it is enforced by voters. If an elected official reaches across the aisle too often or on the wrong things, then she loses in a primary or in a general election due to lack of enthusiasm from her political base. Electoral rules shape this force (primaries could be open to all voters, for example), but on this issue public opinion must largely be convinced that cooperation is worthwhile. The strength of the party whip, though, is also a product of congressional rules. How easy is to punish members who stray from the party line? That depends on a couple of factors. First, how transparent are the actions of members? If the party leadership does not know that someone is working with the other side, then only carrots can be used to induce loyalty from those who visibly cooperate. Second, who has the power to dole out rewards or punishments? For decades, the answer was committee chairmen, not the party leadership, and their goals were often different.

Right now we are in a period where the party leadership is quite powerful. This occurred because the parties became more ideologically homogenous, but also because of rule changes that diminished the committees and strengthened the leadership. Are we better off because of this development? I'm not sure. Moreover, rules changes can reverse this process if we think that the answer is no. Consider that until 1845 Senate Committee Chairs were elected by a secret ballot of the entire Senate. This meant that party discipline could not be enforced and members of the minority party could be chairs. Congress rarely votes by secret ballot today, even though it can so long as more than 4/5 of a House agrees to do so (Article I, Section 5, Clause 3)). There are a slew of other practices that could be examined along these lines (why should party leaders get to appoint members of the conference committee, should the prerogatives of the Senate majority leader or the Speaker be curtailed?). I hope to expand on these themes in other posts.


Bipartisanship is overrated. The vast majority of the electorate vote party lines. It is a platform that they want, not the person who happens to be the party's representative in their voting area.

The best way to get a platform enacted is strict party discipline. The alternative is muddy compromise that allows everyone and no one to take the blame (and pork to grease the wheels).

The 2012 election is instructive - the people sent Democratic majorities to both Houses of Congress plus the White House. Yet, largely because of rules designed to empower individual Senators, the 2012 election platform lies mostly unfulfilled - with those parts that were enacted done so in a half-hearted manner.

We'll never know how that platform would have worked out. Instead this upcoming election will be about pointing figures over the failure of the muddled compromises.

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Watch party discipline.

Every working day in parliamentary democracies, like Canada, at least, it stifles creativity, spontaniety, transparency and representativeness and trades them for perceived short term advantage public opinion polls.

You have a system that is set up to blunt it.

Keep it blunt.

I had hoped that this interesting post would have attracted much more comment than it has up to now. I first voted in 1952. There have been many cycles of political change since in the elected federal branches, which have impacted changes in the unelected judiciary. There may be further changes with this fall's elections. Perhaps the post should be broadened to include the role of the judicial and executive branches, as all three are involved in the democratic process.

I just finished reading Jack Balkin's "The Roots of the Living Constitution" to which he provided a link in his recent post. The article is most interesting in addressing the political/constitutional regime changes over the years in critiquing David Strauss' book "The Living Constitution" on common law constitutionalism. Jack makes the point that there is more to a living Constitution than the judicial branch.

Perhaps the topic of this post is only part of the present cycle, or regime change. But keep in mind that there have been changes over the years, prior to my eligibility to vote and prior to my birth. Is the current situation more dire than earlier ones. The answer may be "yes," but only because (even though some of us lived through past serious situations) current pain is more severe that recollections of past pain (especially for those who survived).

Here's a line from Jack's article (page 137):

"Shifts in larger political trends help us understand the Justices' conservative vision of democracy in this, America's Second Gilded Age."

Perhaps we should look for the birds - or the bees.
This leads me to William Deresiewicz's essay "Capitalists and Other Psychopaths" in last Sunday's NYTimes (5/13/12), which was of interest because of the recent $2 Billion J.P. Morgan/Chase loss. The article led me to Bernard Mandeville's "Fable of the Bees" published in 1705. "Mandeville argued [in verse] that commercial society creates prosperity by harnessing our natural impulses: fraud, luxury and pride."

So perhaps we are in what Jack describes as "America's Second Gilded Age." Maybe someone out there versed in the birds and the bees may come up with a book project: "Rehabilitating the Gilded Age."

Jeremiads about partisan gridlock generally offer "bipartisanship" and/or the weakening of political parties in general as solutions. But the real solution is a multi-party system. The real problem with political parties in the U.S. is not their cohesiveness. It's the fact that we have exactly two of them.

True, replacing the partisan duopoly will not be easy to accomplish. But proposals about the Senate rules, "non-partisan" redistricting of single-member districts, and all the rest, are band-aids on a body politic that really needs major surgery.

Professor Magliocca- what do you expect will be the impact of changes in the campaign finance laws that shift power from the parties to superpacs and other outside groups? One would think that this should make it possible for individual members to establish their own "brands" independent of the parties and, if they are attractive to a significant slice of the electorate, to maintain their political viability even if they are unloved by the party leadership. (Even under the old system, there were members who were able to do this, but perhaps this will accelerate the trend).

Thomas Mann and Norman Ornstein's 5/17/12 Op-Ed in the WaPo "Want to end partisan politics? Here's what won't work - and what will." offers some good thoughts that the Symposium might consider discussing.

I am a conservative which believes that much of what the government does, it shouldn’t do. So gridlock is good, it means the government does less. Now that said, I would like to see each member of the house and each member of the senate be able to bring a full vote to the floor without amendments (and without speeches if the speaker/senate majority leader doesn’t want to waste the time) for a simple up or down vote. Maybe in the senate, at least be able to force a cloture vote. That way each representative gets their one bill and if it’s a good bill, it passes if it not it dies. So the Committee Chairs with their own little fiefdom of deciding what they will let through would be undermined. Many of us on the GOP side hate all the stupid farm bill spending, but the farm committee is dominated by people from districts that directly benefit from that. On a full vote of even the GOP, that wouldn’t survive, but it lives on each year because they control that committee.

The best way to get a foundation introduced is demanding celebration self-discipline. The substitute is dirty bargain that allows everyone and no one to take the responsibility (and chicken to oil the wheels).

The 2012 selection is helpful - the individuals sent Democratic majorities to both Homes of The legislature plus the White-colored Home. Yet, mostly because of guidelines developed to encourage personal Senators, www.buywindows7keys.comthe 2012 selection foundation can be found mostly unsatisfied - with those areas that were introduced done so in a half-hearted way.Cheap Windows 7 ultimate Key
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