Friday, August 12, 2016

Levinson and Balkin on Democracy and Dysfunction: Some Notes

Stephen Griffin

I am of course quite grateful to Jack and Sandy that they mention my book Broken Trust in their valuable exchange on political dysfunction and constitutional reform (referenced by Jack below).  In response, I will make some perhaps disconnected observations which I hope are at least somewhat comprehensible.  As far as trying to push the discussion forward in some way, these issues seem most relevant to me:

1.      Will there be a new political regime?  Jack leans heavily on the idea that political or policy dysfunction is the byproduct of an era of regime change.  We are seeing the birth pangs perhaps of Democratic dominance, a new founding moment for the Republican Party (or both).  Although this possibility has to be taken seriously, one way to extend Sandy’s argument and challenge Jack’s perspective is to raise the question of whether both the hard-wired Constitution and the constitutional order are blocking necessary and desirable regime change.  Federalism, after all, is pretty hard wired into the Constitution, yet I suggest it is difficult to find states in which, say, Republicans are dominant yet are genuinely questioning the direction of their party.  Sandy can say better than most because he lives in Texas, ground zero for relentless opposition to President Obama and what is seen as a runaway central government.  I suggest that many “movement conservatives” like Ryan and Cruz are waiting Trump out and then hoping for a return to normalcy, albeit with a few policy tweaks to satisfy the base.  In other words, states and congressional districts that are deep red, where movement conservatives have a real base, show no signs of incipient regime change.  The structure of federalism and (in the South) the legacy of what political scientist Rob Mickey calls “authoritarian enclaves” protects these Republican politicians and their voters from national trends in public opinion.  But if this is right, then we might regard fundamental political and constitutional reform as a way to nationalize politics, unblock the channels of political change and speed up the transition to a new regime to lessen the policy harms of a lengthy interregnum.  What harms?  This leads me to my second point.

2.      How bad is the current political/policy dysfunction?  The literature on political dysfunction is pretty much in agreement that while our politics might be dysfunctional in varied ways, there is one branch in particular that is the source of the trouble and that is Congress.  To my knowledge, no one argues that all the branches are equally dysfunctional.  And, by the way, no one argues that each branch is regarded by the public as equally untrustworthy.  Any deep inquiry into dysfunction and trust in the national government will inevitably lead us back to our most numerous branch – Congress, Congress, and more Congress.  Now Jack says our system can’t be all bad, we came through the Great Recession fairly well.  He’s contrasting our presidential system to parliamentary ones, I believe.  I’m not at all sure about this comparison because if you think Europe did worse that’s partly because, given the relevance of the EU, they don’t have a parliamentary or presidential government, they have a hybrid supranational structure that I’m not sure European voters even understand.  The fair comparison is with the UK and I believe scholars have noted the UK did better because its regulatory agencies mostly avoided the enormous run-up in home prices and related mortgage-shadow banking-financialization problems.  The fault in our system is still Congress, because it’s generally agreed that the executive branch rode to the rescue.  Congress did not exactly cover itself with glory, either before or after the Great Recession.  To be sure, the basic case for dysfunction and possible reform involves a contestable value judgment that we have important policy agenda items that are languishing while Congress fiddles.  As Jack argues, if you’re happy with the government doing nothing, the current system cannot be described as dysfunctional.  I just think very few voters are actually happy with nothing.  Trump’s voters, for example, want action on undocumented workers and ISIS.  But you can’t get there without Congress doing something.

3.      Is the problem the hard-wired Constitution or the constitutional order?  Suppose the new president puts forward a package of comprehensive reform of Congress, along the lines any number of commentators and scholars have proposed – redistricting reform, overhauling congressional committee jurisdictions, ending the filibuster, terminating senatorial “absolute” vetoes that stifle the appointment process (not just judicial nominations), and in general making it easier for bills to reach the floor and have up or down votes.  As Jack points out, all of this can be done without going through Article V or having a constitutional convention, as Sandy seems to want.  But would such a package be evaluated solely along policy lines?  Of course it would be criticized as, if anything, a bid to increase executive power (especially with respect to appointments – nominees would actually receive votes!) and, as such, have implications for hard-wired constitutional realities such as separation of powers.  To me, what is important about Sandy’s perspective is getting people (especially reluctant elites) used to the notion that fundamental reform is required.  If someone wants to argue later that we don’t need Article V, so much the better!  But first we need to get reform on the table in a way that it isn’t yet.  Candidate Clinton could do that fairly easily, but unless I’m missing something, she has shown no interest.  Hence Sandy’s complaints about a relative lack of attention to the causal connections between the Constitution and our present troubles are largely justified.

4.      What about low trust?  Jack is of course right that trust in the federal government has been low for decades, not just lately.  Does this mean that our political system has always been dysfunctional?  In danger of dysfunction perhaps, but I would say no.  Bear in mind that trust in the President and the Supreme Court has not always been low (or even declining).  Trust did go up under Reagan and Clinton.  It’s levels of trust in Congress that go dangerously low.  And it’s a source of instability in our system.  Were Trump to prevail, given his authoritarian leadership tendencies, congressional checks wouldn’t amount to much.  Given Congress’s extremely low standing, Trump could refine Congress if he wanted to.  Congress has needed an overhaul for some time. Partisanship and polarization make things worse, to be sure.  But in my opinion (and I think in Sandy’s) there is no avoiding the necessity of structural reform.  In an environment where it is often hard for defenders of status quo mechanisms like the filibuster to distinguish between what the hard-wired Constitution requires and what the “small-c” constitutional order allows, shaking the tree as Sandy does and pointing out the need for “fundamental” reform is the right approach.  Although putting it that way, I’m not sure Jack would disagree.

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