Something went wrong a long time ago, if a long time ago is 2007, when John Dean was talking about broken government:
In almost four decades of involvement in national politics, much of them as a card-carrying Republican, I was never concerned that the GOP posed a threat to the well-being of our nation. Indeed, the idea would never have occurred to me, for in my experience the system took care of excesses, as it certainly did in the case of the president for whom I worked. But in recent years the system has changed, and is no longer self-correcting. Most of that change has come from Republicans, and much of it is based on their remarkably confrontational attitude, an attitude that has clearly worked for them. For example, I cannot imagine any Democratic president keeping cabinet officers as Bush has done with his secretary of defense, Donald Rumsfeld, and attorney general, Alberto Gonzales, men whom both Democrats and Republicans judged to be incompetent. Evidence that the system has changed is also apparent when a president can deliberately and openly violate the law – as, for example, simply brushing aside serious statutory prohibitions against torture and electronic surveillance – without any serious consequences. Similarly, but on a lesser scale, Alberto Gonzales faced no consequences when he politicized the Department of Justice as never before, allowing his aides to violate the prohibitions regarding hiring career civil servants based on their party affiliation, and then gave false public statements and testimony about the matter. When the Senate sought to pass a resolution expressing “no confidence” in the attorney general, the Republicans blocked it with a filibuster.
And so on and so forth – Dean had already written a book about that – and in 2012, Thomas E. Mann of the Brookings Institution, and Norman J. Ornstein of the American Enterprise Institute – one from the center left, one from the center right – gave us It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism:
Two sources of the problem are given. The first is the serious mismatch between the two major parties, the Democrats and the Republicans, in their view. They state that the groups “have become as vehemently adversarial as parliamentary parties and in a governing system that, unlike a parliamentary democracy, makes it extremely difficult for majorities to act”.
Mann and Ornstein specifically criticize the right-ward move of the Republican Party, especially the use of administrative and parliamentary tricks to keep from having clear votes on some issues. The authors describe the party as “an insurgent outlier- ideologically extreme; contemptuous of the inherited social and economic policy regime; scornful of compromise; unpersuaded by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition”.
They remark, “Acrimony and hyperpartisanship have seeped into every part of the political process. Congress is deadlocked and its approval ratings are at record lows. America’s two main political parties have given up their traditions of compromise, endangering our very system of constitutional democracy.”
Mann and Ornstein also write, “Both sides in politics are no more necessarily equally responsible than a hit-and-run driver and a victim; reporters don’t treat them as equivalent, and neither should they reflexively treat the parties that way.”
Mann and Ornstein, like Dean, blamed the Republicans, and they blamed the cowardly media for that both-sides-are-at-fault crap, but unlike Dean, Mann and Ornstein also identified a structural problem. We don’t have a parliamentary democracy, where, when things aren’t working, a no-confidence vote ends the current government, new elections are called, and everyone with an axe to grind, the hyper-partisans, has to find a way to win enough seats to form a new government, which always seems to mean cutting deals with those who don’t agree with you on much but can give you the majority you need, at a price. That sort of system buffers extremism, as new governments are formed again and again, on no particular schedule. Gridlock is relieved immediately. It cannot go on forever – no one will stand for it – but we have a system where we’re stuck with a president for four or eight years, and senators for six years, and representatives forever, as they serve an endless series of two-year terms, because our political parties, at the state level, have drawn district lines that have created totally “safe” seats. No one from the other party should even bother to run against the incumbents in those districts.
That’s a lock too. Congressional district lines can only be redrawn every ten years, when there’s new census data – except in Texas, where the Republicans seem to redraw those lines whenever they feel like it, until the courts stop them.
There is way out of that. California held a referendum and gave the job of redrawing district lines to an independent commission – wiping out the Republican Party out here – but now Arizona is trying that and that sort of thing may be ruled unconstitutional:
Supreme Court justices will hear arguments Monday morning over an independent redistricting commission created by Arizona voters more than a decade ago in a case that may have the most direct impact on the makeup of the U.S. House of Representatives this term.
Arizona voters passed a ballot initiative back in 2000 creating a bipartisan commission to conduct the decennial redistricting process. The panel, comprised of two Republicans, two Democrats and a fifth member, chosen by the other four, to break ties, was supposed to draw fairer lines, mostly free of partisan gerrymandering.
But members of the Republican-led state legislature say the U.S. Constitution clearly grants them the right to draw their own districts. Article 1, Section 4 of the Constitution grants legislatures the power to decide “The Times, Places and Manner of holding Elections.”
That clause, the legislature has argued, should supersede the ballot initiative that created the commission. If the court agrees, Arizona’s legislature would likely have to redraw congressional and legislative district lines before the 2016 elections. …
The court will be asked to decide just how much authority the legislature has to draw its own district lines. The legislature, represented before the Supreme Court on Monday by former Solicitor General Paul Clement, contends the Constitution gives them sole power to oversee the process.
The Republican-led state legislature in Arizona knows this might flip districts down there. Republicans control five of that state’s nine congressional districts, and in 2014 they almost won two more – and this could screw that up, if they can no longer put all the Hispanics in one or two oddly-shaped geographically enormous districts, off to the side. An even distribution would devastate the Republicans out there in the desert, but the Roberts Court will likely side with the Republicans on this, and that would then change things here in California – or maybe not. Give redistricting back to the legislature, here, and you’re giving that task to a legislature with few Republicans these days. Still, the bias would be toward stasis – the same folks in the same seats forever, with no incentive to compromise on anything – and that guarantees gridlock. That guarantees broken government.
That’s what we have, but now Matthew Yglesias has decided to argue that this means the end of our democracy:
America’s constitutional democracy is going to collapse.
Some day – not tomorrow, not next year, but probably sometime before runaway climate change forces us to seek a new life in outer-space colonies – there is going to be a collapse of the legal and political order and its replacement by something else. If we’re lucky, it won’t be violent. If we’re very lucky, it will lead us to tackle the underlying problems and result in a better, more robust, political system. If we’re less lucky, well, then, something worse will happen.
That’s a cool opening, but Yglesias is serious:
America is the richest, most successful country on earth. The basic structure of its government has survived contested elections and Great Depressions and civil rights movements and world wars and terrorist attacks and global pandemics. People figure that whatever political problems it might have will prove transient – just as happened before.
But voiced in another register, my outlandish thesis is actually the conventional wisdom in the United States. Back when George W. Bush was president and I was working at a liberal magazine, there was a very serious discussion in an editorial meeting about the fact that the United States was now exhibiting 11 of the 13 telltale signs of a fascist dictatorship. The idea that Bush was shredding the Constitution and trampling on congressional prerogatives was commonplace. When Obama took office, the partisan valence of the complaints shifted, but their basic tenor didn’t. Conservative pundits – not the craziest, zaniest ones on talk radio, but the most serious and well-regarded – compare Obama’s immigration moves to the actions of a Latin-American military dictator.
We’re used to this, and each side, alternatively, could be taking turns at being wrong, but then both sides could be right, and Yglesias suspects he’s right about this:
Accusations that Barack Obama or John Boehner or any other individual politician is failing as a leader are flung, and then abandoned when the next issue arises. In practice, the feeling seems to be that salvation is just one election away. Hillary Clinton even told Kara Swisher recently that her agenda if she runs for president is to end partisan gridlock.
It’s not going to work.
The breakdown of American constitutional democracy is a contrarian view. But it’s nothing more than the view that rather than everyone being wrong about the state of American politics, maybe everyone is right. Maybe Bush and Obama are dangerously exceeding norms of executive authority. Maybe legislative compromise really has broken down in an alarming way. And maybe the reason these complaints persist across different administrations and congresses led by members of different parties is that American politics is breaking down.
It had to break down:
To understand the looming crisis in American politics, it’s useful to think about Germany, Japan, Italy, and Austria. These are countries that were defeated by American military forces during the Second World War and given constitutions written by local leaders operating in close collaboration with occupation authorities. It’s striking that even though the US Constitution is treated as a sacred text in America’s political culture, we did not push any of these countries to adopt our basic framework of government.
This wasn’t an oversight.
In a 1990 essay, the late Yale political scientist Juan Linz observed that “aside from the United States, only Chile has managed a century and a half of relatively undisturbed constitutional continuity under presidential government – but Chilean democracy broke down in the 1970s.”
The exact reasons for why are disputed among scholars – in part because you can’t just randomly assign different governments to people. One issue here is that American-style systems are much more common in the Western Hemisphere and parliamentary ones are more common elsewhere. Latin-American countries have experienced many episodes of democratic breakdown, so distinguishing Latin-American cultural attributes from institutional characteristics is difficult.
Still, Linz offered several reasons why presidential systems are so prone to crisis. One particularly important one is the nature of the checks and balances system. Since both the president and the Congress are directly elected by the people, they can both claim to speak for the people. When they have a serious disagreement, according to Linz, “there is no democratic principle on the basis of which it can be resolved.” The constitution offers no help in these cases, he wrote: “the mechanisms the constitution might provide are likely to prove too complicated and aridly legalistic to be of much force in the eyes of the electorate.”
That what Mann and Ornstein hinted at, but Yglesias is explicit:
In a parliamentary system, deadlocks get resolved. A prime minister who lacks the backing of a parliamentary majority is replaced by a new one who has it. If no such majority can be found, a new election is held and the new parliament picks a leader. It can get a little messy for a period of weeks, but there’s simply no possibility of a years-long spell in which the legislative and executive branches glare at each other unproductively.
But within a presidential system, gridlock leads to a constitutional train wreck with no resolution. The United States’ recent government shutdowns and executive action on immigration are small examples of the kind of dynamic that’s led to coups and putsches abroad.
Here that dynamic leads to disgust, followed by indifference, but frustration follows, and worse things, but for now we’re safe:
Looking back at Bush’s election in 2000, one of the most remarkable things is how little social disorder there was. The American public wanted Al Gore to be president, but a combination of the Electoral College rules, poor ballot design in Palm Beach County, and an adverse Supreme Court ruling, put Bush in office. The general presumption among elites at the time was that Democrats should accept this with good manners, and Bush would respond to the weak mandate with moderate, consensus-oriented governance. This was not in the cards. Not because of Bush’s personal qualities (if anything, the Bush family and its circle are standard-bearers for the cause of relative moderation in the GOP), but because the era of the “partisan presidency” demands that the president try to implement the party’s agenda, regardless of circumstances. That’s how we got drastic tax cuts in 2001.
If the Bush years shattered the illusion that there’s no difference between the parties, the Obama years underscore how much control of the White House matters in an era of gridlock. The broadly worded Clean Air Act, whose relevant provisions passed in 1970, has allowed Obama to be one of the most consequential environmental regulators of all time – even though he hasn’t been able to pass a major new environmental bill. He’s deployed executive discretion over immigration enforcement on an unprecedented scale. And he’s left a legacy that could be rapidly reversed. A future Republican administration could not only turn back these executive actions, but substantially erode the Affordable Care Act.
The lessons of the 2000 and 2008 elections make it unnerving to imagine a Bush-Gore style recount occurring in 2014’s political atmosphere. The stakes of presidential elections are sky-high. And the constitutional system provides no means for a compromise solution. There can be only one president. And once he’s in office he has little reason to show restraint in the ambitions of the legislative – or non-legislative – agenda he pursues. In the event of another disputed election, it would be natural for both sides to push for victory with every legal or extra-legal means at their disposal.
There’s a name for this:
What we are witnessing instead is a rise in what Georgetown University Professor Mark Tushnet labeled “constitutional hardball” in a 2004 article.
Constitutional hardball describes legal and political moves “that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understanding.” In other words, moves that do not violate the letter of the law, but do trample on our conventional understanding of how it is supposed to work.
There are no surprises here:
His lead example is from the George W. Bush administration, when liberals were concerned about the president taking power away from Congress. Tushnet describes the “strained” argument offered by Republican senators in 2005 that Democratic Party filibusters of Bush’s judicial nominees violated the constitution. At the time, of course, Democrats found the view that Republicans might simply ban the use of filibusters for this purpose outrageous. “The filibuster serves as a check on power,” said Harry Reid, “that preserves our limited government.” Joe Biden called the Republicans’ attempt to end the filibuster “an example of the arrogance of power.”
But ultimately the hardball tactic for ending filibusters was used by Democrats in 2013 to halt Republican obstruction of Obama’s nominees. Republicans, Reid said, “have done everything they can to deny the fact that Obama had been elected and then reelected.” He argued he had no choice but to abandon a principle that just a few years ago he said was crucial to preserving American liberty. Meanwhile, Republicans who had supported the 2005 effort to weaken the filibuster executed a perfect flip-flop in the other direction.
Tushnet’s other example from the mid-2000s – Texas’ decision to redraw congressional district boundaries to advantage Republicans between censuses – seems almost adorably quaint by the standards of the Obama era.
From its very first months, Obama’s presidency has been marked by essentially nothing but constitutional hardball. During the Bush years, Democratic senators sporadically employed a variety of unusual delaying tactics to stymie his agenda. In 2009, Mitch McConnell and Senate Republicans retaliated by using tons of them, constantly. Suddenly filibustering went from something a Senate minority could do to something it did on pretty much all motions.
We’re stuck, but no one is to blame:
America’s escalating game of constitutional hardball isn’t caused by personal idiosyncratic failings of individual people. Obama has made his share of mistakes, but the fundamental causes of hardball politics are structural, not personal. Personality-minded journalists often argue that a warmer executive would do a better job of building bridges to congress. But as Dartmouth’s Brendan Nyhan points out, “Bill Clinton’s more successful outreach to his opponents didn’t keep him from getting impeached. Likewise, George W. Bush was more gregarious than Obama, but it didn’t make him any more popular among Democrats once the post-9/11 glow had worn off.”
There’s a reason for this, and it gets to the core of who really runs American politics.
In a democratic society, elected officials are most directly accountable to the people who support them. And the people who support them are different than the people who don’t care enough about politics to pay much attention, or the people who support the other side. They are more ideological, more partisan, and they want to see the policies they support passed into law. A leader who abandons his core supporters because what they want him to do won’t be popular with most voters is likely, in modern American politics, to be destroyed in the next primary election.
Those are just a few key excerpts from a long and detailed argument, an argument that we cannot run the country this way, and our luck is running out:
No other presidential system has gone as long as ours without a major breakdown of the constitutional order. But the factors underlying that stability – first non-ideological parties and then non-disciplined ones – are gone. And it’s worth considering the possibility that with them, so too has gone the American exception to the rule of presidential breakdown. If we seem to be unsustainably lurching from crisis to crisis, it’s because we are unsustainably lurching from crisis to crisis. The breakdown may not be next year or even in the next five years, but over the next 20 or 30 years, will we really be able to resolve every one of these high-stakes showdowns without making any major mistakes? Do you really trust Congress that much?
The best we can hope for is that when the crisis does come, Americans will have the wisdom to do for ourselves what we did in the past for Germany and Japan and put a better system in place.
That wisdom may be hard to come by, as Heather Parton notes:
If there’s one article of faith in the political establishment it’s that being a political “moderate” is the only appropriate philosophy for people of good sense and mature disposition. No one possessed of even a modicum of rationality and logic could possibly hold a set of values or political positions that fall entirely on one side of the political divide or the other because that would mark him as a fanatic of some sort. And that would be very bad indeed. It might even be considered (shudder) partisan.
And if one is wise enough to be such a moderate, one naturally believes that negotiation and bipartisan agreement are achievable by people of good faith by simply sitting down and hammering out a reasonable compromise. After all, moderates have the kind of even temperament that naturally seeks comity and common ground. The problems in our politics are due entirely to the hot-headed partisans at both ends of the political spectrum who refuse to behave like adults.
Imagine how surprised the establishment wags must have been to see this Vox story by Ezra Klein reporting that political scientists have determined the vaunted moderate voter is actually an incoherent extremist who cannot possibly be appeased because her views are irrational.
Klein simply reports:
What happens, explains David Broockman, a political scientist at the University of California at Berkeley, is that surveys mistake people with diverse political opinions for people with moderate political opinions.
The way it works is that a pollster will ask people for their position on a wide range of issues: marijuana legalization, the war in Iraq, universal health care, gay marriage, taxes, climate change, and so on. The answers will then be coded as to whether they’re left or right. People who have a mix of answers on the left and the right average out to the middle – and so they’re labeled as moderate. But when you drill down into those individual answers you find a lot of opinions that are well out of the political mainstream. “A lot of people say we should have a universal health-care system run by the state like the British,” Broockman said in July 2014. “A lot of people say we should deport all undocumented immigrants immediately with no due process. You’ll often see really draconian measures towards gays and lesbians get 16 to 20 percent support. These people look like moderates but they’re actually quite extreme.”
It seems that we are a nation of people with extreme views, with a government that is structured to reinforce and lock in those views, and can no longer function, because of its static structure. Yglesias thinks we’ve reached the end of the line. What’s the counterargument?