The Constitution is Old

~by E.C. Gach

Since S&P downgraded the U.S., Fareed Zakaria has been reminding people that currently, “no country with a presidential system has a triple-A rating from all three major ratings agencies.”

The downgrade occurred, Zakaria notes, because of political dysfunction:

“Listen to what the S&P actually said in its downgrade. ‘America’s governance and policymaking [is] becoming less stable, less effective and less predictable than what we previously believed…Despite this year’s wide-ranging debate, in our view, the differences between political parties have proven to be extraordinarily difficult to bridge.’”

Zakaria singles out the United State’s presidential system as the underlying structural reason for this recent political failure, and proposes that a parliamentary system would be better suited the challenges currently facing the nation:

“In the American presidential system, in contrast, you have the presidency and the legislature, both of which claim to speak for the people. As a result, you always have a contest over basic legitimacy. Who is actually speaking for and representing the people?

clip_image001In America today, we take this struggle to an extreme. We have one party in one house of the legislature claiming to speak for the people because theirs was the most recent electoral victory.  And you have the president who claims a broader mandate as the only person elected by all the people.  These irresolvable claims invite struggle.”

This makes sense to me. Whether or not you agree that a parliamentary system would be better, the current system is clearly yielding sub-optimal responses.

But to some, that sub-optimality is good enough. Peter Wehner at Commentary writes:

“I have several thoughts in response to Zakaria, beginning with the inconvenient fact (for Zakaria) the debt ceiling debate had a resolution. The two parties did arrive at an agreement, and a default was avoided. The process may not have been pretty, but it worked. Remember, if Obama had had his way originally, there would have been a “clean” debt ceiling vote, meaning the debt ceiling would have been raised without spending cuts. It’s only because of the opposition by the GOP the debt ceiling debate included any spending cuts.

What is really driving Zakaria’s commentary, I suspect, is what often happens when liberals are elected and fail: their supporters begin to lay blame on the American system of government. Jimmy Carter’s advisers did the same thing. It turned out the problem then, as now, wasn’t the American system of government; it was the American president. The failures of Obama cannot be laid at the feet of Madison. And if the public is wise, they will do to Obama in 2012 what they did to Carter in 1980.”

First, as Scott Galupo points out, the only resolution that occurred was one to resolve the matter at a later date. That’s hardly a successful outcome. Plus, the fact that Republicans refused to unconditionally give Obama a “clean” debt ceiling vote is precisely the problem. The way the system is set up it makes political sense for Congress to pass a budget and than maneuver to oppose the very spending they called for in the first place. By positioning it as a voluntary request by the President rather than a necessary allowance, Congress is able to eschew responsibility for its budget while at the same time claiming victory for putting together patchwork fixes. Only in a divided legislature that also remains distinct from the executive branch can one arm of the government not only oppose the other but oppose itself as well. “A house divided against itself cannot stand,” except, it appears, when we’re celebrating the merits of separation of powers and Congressional gridlock.

Finally, raising the specter of Carter is important. If one wants to look for where the seeds of American decline were sown, look no further than 1980. Deficit spending exploded as “starve the beast” came into vogue and administration after administration stopped paying for the welfare state without actually dismantling it. Wages stagnated, health care and higher education costs ballooned, and the military budged continued to increase while other areas of investment withered away. It’s not that the presidential system started failing the country yesterday, it’s been failing for a while.

Emanuele Ottolenghi also misses the point:

“Finally, the so-called PIIGS countries – Portugal, Ireland, Italy, Greece and Spain – that are the root-cause of the Eurozone sovereign debt crisis are all parliamentary democracies.

Whether they ultimately fix their problems (a big question mark), their gigantic financial holes were dug by parliamentary systems working the kind of marvels extolled by Zakaria’s four-minute pep talk.”

It’s not that European countries aren’t in a similar mess. The point Zakaria is making is that they’re political framework is better suited to solving them. Missing from the Ottolenghi’s analysis most notably is Britain, which, whether you agree with austerity or not, has show remarkable political will to enact the measures necessary to move toward fiscal sustainability. Ottolenghi is wrong if he thinks Greece and Spain are the United States’ closest analogues on that side of the Atlantic. Britain and Germany would be better models. While they have problems to solve, there is little indication that either country has the institutional incentives not to do so.

Zakaria is right:

“Debt crises across the West make this a particularly bad time for paralysis. Western countries have all built up very large pension and healthcare obligations that lead to huge amounts of debt.  They need to figure out some systematic way to work that debt load down to a much more manageable level. This means a lot of pain.

Given this situation, it becomes very easy in a presidential system for the executive and the legislature to get into a classic standoff over benefits as we saw in the debt crisis.”

Many elements of the American system are outdated and ill-suited when it comes to the challenges that, as Galupo writes, “require a more nimble response than our slow-grinding constitutional machinery allows.” The point of the American system is to force stalemates that make large scale action unlikely. And it’s very good at doing that. But large action is what’s needed now on many fronts: large investments in infrastructure, large reductions in military expenditures, and large reforms of entitlement spending.

James Fallows pointed out several problems with our political institutions in an Atlantic cover story from 2010:

“If Henry Adams were whooshed from his Washington of a century ago to our Washington of today, he would find it shockingly changed, except for the institutions of government. Same two political parties, same number of members of the House (since 1913, despite more than a threefold increase in population), essentially same rules of debate in the Senate. Thomas Jefferson’s famed wish for “a little rebellion now and then” as a “medicine necessary for the sound health of government” is a nice slogan for organizing rallies, but is not how his country has actually operated.

[…]

We are now 200-plus years past Jefferson’s wish for permanent revolution and nearly 30 past Olson’s warning, with that much more buildup of systemic plaque—and of structural distortions, too. When the U.S. Senate was created, the most populous state, Virginia, had 10 times as many people as the least populous, Delaware. Giving them the same two votes in the Senate was part of the intricate compromise over regional, economic, and slave-state/free-state interests that went into the Constitution. Now the most populous state, California, has 69 times as many people as the least populous, Wyoming, yet they have the same two votes in the Senate. A similarly inflexible business organization would still have a major Whale Oil Division; a military unit would be mainly fusiliers and cavalry. No one would propose such a system in a constitution written today, but without a revolution, it’s unchangeable. Similarly, since it takes 60 votes in the Senate to break a filibuster on controversial legislation, 41 votes is in effect a blocking minority. States that together hold about 12 percent of the U.S. population can provide that many Senate votes. This converts the Senate from the “saucer” George Washington called it, in which scalding ideas from the more temperamental House might “cool,” into a deep freeze and a dead weight.”

So the problems fall under two categories. The first is what Zakaria describes as conflicting legitimacy. If representative government is to work there needs to be a clear link between the representatives and those who support them. But currently, legitimacy is divided between the House, Senate, and Presidency. The House reflects localized sentiment. The Senate reflects the majoritarian sentiment of individual states. And the Presidency reflects national support. As a result, public support is segmented off into three groups which then seek to oppose one another for their own political gain. Everyone can claim to speak for the people without ever having to take the reigns and lead them.

Fallows gets at the second set of problems. Namely, 18th century political institutions no longer reflect the reality of the country. Equal senatorial representation may have been a good solution to the political reality of 1787, but it now makes the nation ungovernable where overwhelming majorities can be thwarted by small minorities and narrow interests.

Unfortunately, Fallows is correct about the impracticality of Zakaria’s proposal: “A parliamentary system? This too would improve C-SPAN viewing. But not having started there, we cannot get there.”

Likewise, a new revival of Constitutional Fundamentalism makes it unlikely that there will be significant reforms to the Electoral College or representational apportionment. So for now it looks like the best that the American system has to offer are super committees and imperial presidencies.

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74 thoughts on “The Constitution is Old

  1. Paul O’neil, Former Treasury Secretary under George W Bush, Alcoa President, RAND President, called the Tea Party “America’s version of Al’Quaeda Terrorists.”

    … something about pittsburgh seems to bring out the mad irishmen.

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      • Agreed that calling the Tea Party “America’s version of Al’Quaeda Terrorists” is silly hyperbole — actually, it’d be nice if it were true that it weren’t hyperbolic. But anything Paul O’Neil says is worthy of note because he was such a fiscally sane conservative that he had to be kicked out of the G.W. Bush administration pretty early on.

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        • … it’s not nearly as hyperbolic as you would like to believe. 20% of the reps couldn’t be talked out of “No Compromise” because their Jesus Representatives said “everything’s going to be fine.” they wouldn’t even listen to wall street!

          And what they were trying to do, with the no compromise, amounts to economic terrorism — the last entity who tried it was China, and they got slammed down hard enough that they shut up good.

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  2. Just a random point. Portugal, Spain, and Ireland all had perfectly reasonable debt-to-gdp rations and were in fact running surpluses prior to the worst recession in 70 years. The half-assedness of the Euro made things go boom from there.

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  3. A lot of these problems would be made better, automatically, by increasing the size of the House of Representatives. It was a huge mistake to freeze the size of the house in 1913, and as this post suggests, it just gets less and less representative every day.

    Some of the benefits:

    1) Better, more local representation
    2) Easier and cheaper to challenge incumbents. If the house were big enough, even you or I, with the backing of the community, could make a run for a house seat.
    3) Harder for big money interests to buy up the congresspeople. See point #2. If it is easier to mount an effort to run against the entreched powers, they are going to be harder for the big money to control.
    4) An increase in the size of the house would help correct the skew between the more and less populous states, at least in the house. If we doubled the size of the house, CA would probably end up with close to 100 house members while WY would probably still have a single representative. Increasing the size further would make it more reflective of the population differences.
    5) Since the Electoral College is based on the number of Senators and Reps, it too would become more representative of the population differences and clout of the states.

    All of this could be done without a constitutional change. What would be required is for our little Princes and Princesses in the Congress to just vote to increase the size of the house. They won’t, of course, unless we make them.

    The House was intended to be the “People’s House” and it has become just another way for the entrenched interests to tighten their control. We need to take back the House, for the People.

    See http://www.thirty-thousand.org for more information

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  4. “no country with a presidential system has a triple-A rating from all three major ratings agencies.”

    While Zakaria’s basic point is correct, I need to be the pedantic political scientist here and point out that just because the U.S. has a president does not mean we have a presidential system. The U.S. is sui generis–academic books discussing this have titles like “America the Unusual,” and “The American Anomaly.” Real presidential systems have a president that dominates the legislature; only the U.S. has a system that combines a president with non-dominance.

    This is a feature, not a bug, of the Constitution. Madison’s original proposal was effectively a parliamentary system, with the president being selected by the legislature. Gouverneur Morris argued that would lead to “intrigues” and cabals, and since many were worried that the legislature would, left to its own devices, become too powerful, they separated the presidency so it could act as a check on Congress–but they didn’t want it to be strong enough to dominate Congress. That was the actual origin of our “separation of powers” structure.

    Zakaria’s critique is not new (which is not mean to belittle him)–it has been a prominent critique for over a century, since Woodrow Wilson’s doctoral dissertation criticizing congressional dominance over the presidents of the 19th century, and advocating a parliamentary system, became prominent. And the American Political Science Association published a report in 1950 (“Toward a More Responsible Two Party System”–the association’s ill-fated foray into trying to speak with one voice in current political affairs) making a similar critique.

    And it’s all a perfectly legitimate critique, because each of its criticisms is correct. The problem with the critique is that it consistently fails to ask whether there are advantages to our “Presidency but non-presidential” system. It assumes the superiority of parliamentary systems, without remembering their weaknesses. It may be that in fact our system is inferior–after all, we were the first movers in the grand experiment of democratic governance, and we don’t often expect the first tinkerers to come up with the best final product. And of course none of the other 100+ democracies/quasi-democracies in the world have adopted our model (although failure of others to adopt it could conceivably just be evidence that humans only rarely get politics right). Nevertheless, I do get irked at those who argue for a parliamentary system without considering it’s weaknesses while only emphasizing our system’s weaknesses. It’s an inappropriate comparison: the best of option A vs. the worst of option B.

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    • It’s an inappropriate comparison: the best of option A vs. the worst of option B.

      Call me lazy, but what are the benefits of the US system again? The criticism is that checks and balances just multiply interest groups, foster corruption and create the equivalent of regulatory capture. Now, an obvious failure point in a classical parliamentary system is that without a written constitution, it seems more likely that majorities can screw over minorities.

      The question is not exactly the best of A vs the worst of B. Instead, we are looking at actual implementations of A vs actual implementations of B. To paraphrase Edmund Burke the American founding fathers made a massive mistake when they deviated from a parliamentary system.

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  5. > The way the system is set up it makes political
    > sense for Congress to pass a budget and than
    > maneuver to oppose the very spending they
    > called for in the first place.

    This is a fair observation. Not sure how this is corrected by tackling the Presidency, though.

    I’m with Brion. Make the House bigger.

    Also, it might help to add one Senator per state. Not that you’d get either of those to go over.

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    • In a perfect world, I’d eliminate the Senate completely. In a slightly-less perfect world, I’d add a ‘bonus’ Senator for every 5 or 6 million people you have in your state. In a even less perfect world, I’d make the filibuster near toothless except in rare situations and make the Senate the majoritarian institution it was for a long, long time.

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    • I think that the point is if the legislature both appropriated AND spent the money, they’d have no one else to point the finger at. Everyone expects the President to have a legislation heavy agenda, keeping the office seperate only allows for endless proxy battles rather than actually implementing a policy or not, and then being accountable for the results.

      Only in the current system can Congress blame a President for the economy that they are responsible for (to the extent that any governing body should be “responsible” for or can effect the larger economy).

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  6. I’m down on parliamentary systems of government and would resist Zakaria’s and Fallows’ proposals.

    The potential for internal instability is greater than in our current system.

    The potential for policies taking a longer view of the national interest is greater in a system where politicans serve longer terms are not tied to the immediate whims of popular sentiment.

    By which I mean — if we had a Parliamentary system, Michelle Bachmann would be our Prime Minister right now, whether for good or ill, and in a few months, it would be someone else.

    To stay on top in a parliamentary system requires a politician who has really good inside baseball skills — there would be more behind-closed-door maneuverings, not less. Our system imposes a lot more sunshine on the decision-making processes than do, say, Australia’s or the UK’s.

    I like that our parties are weak, and that they seem to always produce maverick members. Some are less maverick-y than they like to portray themselves, but there are people in each party who will propose ideas not within the orbit of the party leadership. Every once in a while, those wildcard ideas have the germs of really good ideas in them. But parliamentary systems require strong, disciplined parties, and that means everyone parrots the party line or they get voted off the island.

    And while I understand Fallows’ point that the Senate is significantly antidemocratic and a periodic obstacle to the formation of public policy, that is a feature and not a bug. We have a republic, not a democracy, and the rules of the Senate are structured to force people of opposing points of view to listen to one another and deal with one anothers’ concerns. The majority is still the majority, but it is required to take the concerns of the minority into account when fashioning policy, instead of simply running roughshod over the concerns of everyone else without a second thought. It is a deliberative body, not a representative one.

    I can’t say as I see any particular harm in having three Senators rather than two from each state, if they keep their six-year staggered terms, but I also don’t see any particular benefit.

    I do see some benefit coming from separating Senators from particular states so as to make them represent more equal-sized blocs of voters. The downside here is that someone would have to draw interstate district maps or otherwise divide up the country to elect Senators, which could lead to gerrymandering and reduced turnover in the Senate and thus ossification of its deliberative function.

    But while its non-majoritarian ways are sometimes frustrating, and some of the individuals elected to high office are often very much to my distaste, I like the Senate more than I dislike it and I like the Congressional-Presidential system more than I dislike it.

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    • The problem is that in modern times, the idea that 40% of the Senate could stop all business is an invention of the last decade or so. Look at the history of filibusters since World War II. LBJ didn’t worry about getting sixty votes when passing Medicare, all strategy was about getting that 51st vote. In addition, the Senate was far less polarized back in the days of a Senate that worked.

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      • If what you object to is the filibuster rule, then the solution is not to abandon the idea of a bicameral Congress with a source of power independent from the President’s. The solution would be to change the Senate’s internal rules to prohibit filibusters.

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        • Sure.

          > I can’t say as I see any particular harm in
          > having three Senators rather than two from
          > each state, if they keep their six-year
          > staggered terms, but I also don’t see any
          > particular benefit.

          Dilution enables (potentially) better coverage on the committees.

          You may counter with the point that there are too many committees, but I’m not sure that’s the case. Also: it’s a lot easier to populate, say, a committee on technology something or other with people that might know something about the topic if you have a few more bodies.

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    • “We have a republic, not a democracy, and the rules of the Senate are structured to force people of opposing points of view to listen to one another and deal with one anothers’ concerns. The majority is still the majority, but it is required to take the concerns of the minority into account when fashioning policy, instead of simply running roughshod over the concerns of everyone else without a second thought. It is a deliberative body, not a representative one.”

      The idea of a deliberative body is antiquated. Back before large staffs, policy think tanks, and Google search engines, I could see the need to get smart and/or thoughtful people into a room to hash out a problem.

      Thing is, they don’t do that anymore (though this super committee may revive that) and I’m not sure what need there is to really deliberate.

      Take all the news from the “health care debate.” What it really boiled down to was months months of covering political maneuvering. Everyone new the objections to various plans going in, and the only thing to change was the leverage of either side to get what they wanted. And the Affordable Care Act seems like a perfect example of a compromise that takes the worst ideas from everyone and pulls them together. I’d have preferred a hyper-free market solution or single payer.

      At least then, if the system didn’t work after so many years, we’d have a clearer idea of what went wrong.

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  7. This is a topic on which there is very little creative thinking. It is among my confederates an axiom that the constitutional architecture is absolutely optimal and constructed by Solons without equal in any era. The country will be in a Mad Max world before any of them reconsider these notions.

    A constitutional amendment modifying the legislative process, the budgeting process, and the electoral calendar would likely suffice, however.

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  8. IIRC, the members of the Senate were never supposed to “represent the people”, they were supposed to represent the interests of the state governments, until the 17th Amendment came alone (the result of states being stupid about appointing senators). Technically, the senators still represent the interests of the state as a whole in order to act as a check against the tyranny of the majority. I shudder to think what our country would be like if CA could field a football team of senators, instead of a tennis match.

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  9. The downgrade occurred, Zakaria notes, because of political dysfunction

    Except that we now know that the downgrade occured as a premptive act because the Justice Dept were looking into S&P and were about to release a report. S&P downgraded because they know that Fox and the TPs don’t look at dates and would see the investigation as retaliatory, when it was the downgrade that did it.

    So we still have a “triple-A rating from all three major ratings agencies”.

    Since his premise is false (he might have known it was — the news of the probe was all over the news the day after this story was published), any conclusions reached from it are dubious at best.

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  10. I think one could ease some of the U.S. government’s partisanship and gridlock problems through means less radical than a new Constitutional convention. Two things that California has experimented with recently that are worth trying out elsewhere: the open primary (the top two candidates, regardless of party, face off in the general election) and the outsourcing of the Congressional district drawing process to an independent body (leading to fewer safe seats). Maybe make House elections less frequent too? Small measures, but with great potential. Eventually campaign finance will need to be dealt with as well, the large increases in monies spent on elections can’t keep increasing at this rate year after year. Not only does this favor interest groups, but it promotes a cynicism about democratic governance as well.

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    • Money will be less of a factor going foward — ads don’t work as well, and information is just too easy and free to access. Whitman and Fiorino (sp?) are examples of money not really helping. Micheal Bloomberg or Donald Trump could spend their fortunes and still wouldn’t change what people think about them.

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      • The person who spent the most money in open races still won an insane percentage of races last year though. Obviously, yes, Whitman and Fiornio didn’t win, but they were running as pretty conservative Republicans in California. If liberal x spent 20 million in Texas, he’d still lose.

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      • Also, money is only about ads (though it’s a big part of it). It’s also about building a professional staff and an organization both deep and wide that’s able to get out the vote on the day of the election. (and before that, get more money). (this is Obama was able to beat Clinton, and run up the score – relatively speaking – when he defeated McCain)

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      • Gridlock is fine if you get stuck in the right place.

        But continual shifting and changing has the benefit of fixing a mistake later one, whereas gridlock leaves it to fester.

        One problem with gridlock is the irreversibility of most laws. Wouldn’t you like to see the Federal Registrar undergo a massive decrease in size Bob?

        I know I would, but I don’t see that happening with gridlock.

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        • Yes, E.C., I would like to see the FR reduced. However, first things first. Let’s stop Barry and the commie-dems from promulgating anymore laws that result in higher and higher unemployment. When the regime is removed, we can clean up their regulatory mess.

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  11. Is the constitution old? Or is it being used in a manner for which it simply wasn’t designed? A shiny new Prius isn’t going to function that well for hauling around your 5th wheel camper, but I wouldn’t blame Toyota when it is ineffective.
    The constitution was designed to implement a limited federal government. The dynamism and quick adaptation was meant, by and large, to happen at the state or non-governmental level. Most other countries implemented National governments – different design. Better at quickly implementing national policy.
    Both major parties want to use the government to implement their view of how society should be and the constitutional, federal system wasn’t designed for that purpose.

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      • Art Deco – I think we agree. At the risk of beating my admittedly strained analogy to death: the prius (or 1789 horse drawn carriage, for that matter) is designed to drive down the road. Just not with a 4 ton camper in tow. Now it can’t go down the road at all. Or more precisely, the machinery can’t produce a fiscal plan because it is financing much more of the economy than it was designed to handle.

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