AFTER THE STANDARD & POOR’S downgrade in early August, it
didn’t take long for the blame game to begin. Predictably, the
mainstream media blamed the Republicans. The problem began with the
November 2010 election, when a group of Tea Party “terrorists” were
elected to Congress. Those who take a longer view blamed it on
George W. Bush (who else?).
I go back even earlier. To September 6, 1787, to be precise.
That’s when the Founders in Philadelphia abandoned their plans for
parliamentary governance in favor of a presidential system.
The presidential system, with its separation of powers between
the different branches of government, is at the core of the
Constitution, and questioning its worth seems almost unpatriotic.
And yet we very nearly adopted a system not unlike the
parliamentary regimes of Great Britain and Canada, which lack a
separation of powers.
It was a near-run thing, decided only on day 105 of a 116-day
Convention. Pennsylvania’s James Wilson remarked, “This subject has
greatly divided the House, and will also divide people out of
doors. It is in truth the most difficult of all on which we had to
decide.”
The Convention had begun with a discussion of James Madison’s
“Virginia Plan,” which featured a president appointed by Congress.
That’s how governors were appointed in all but two of the states at
the time, and it wasn’t thought particularly exceptional. It
also had the great advantage of appealing to the strong
anti-democratic sentiments of the delegates.
Under the Virginia Plan, the House of Representatives would have
been our House of Commons, as George Mason noted. The members of
the Senate would have been appointed by the lower house, and the
presidential veto would have been greatly circumscribed. Before
reversing themselves, the delegates also voted for a broad
impeachment standard, where a president might be removed for
“malpractice or neglect of duty.” On that standard, Andrew Johnson
might plausibly have been removed in 1868, and Bill Clinton in
1999. And, just maybe, Barack Obama this year.
The president would have a fixed term but in other respects he’d
resemble a prime minister who is chosen by his supporters in the
House of Commons.
So how would that have prevented the loss of our AAA credit
rating?
In announcing the downgrade, Standard & Poor’s said that the
budget deal to which Republicans and Democrats had agreed wasn’t
sufficient to resolve the public debt problem. The two political
parties had agreed to raise the debt ceiling, but that simply
didn’t do the job. In addition, the rating agency didn’t hold up
much hope for future cures, given the gridlock in government which
the negotiations revealed. The problem was the separation of powers
between branches of government in the U.S. Constitution.
Had the delegates to the Philadelphia Conventionadhered to their
initial plans for a parliamentary system, without a separation of
powers, we wouldn’t have seen the gridlock, and very likely would
have had a budget that satisfied all of the rating agencies.
CANADA’S RECENT EXPERIENCE in solving a debt crisis offers an
illustrative example of how a parliamentary system can more easily
reverse course. In 1994, Canada’s debt crisis was as bad as that of
America today, and prompted the Wall Street Journal to
label it an honorary member of the Third World. However, the
country quickly turned itself around. Prime Minister Chrétien and
his minister of finance forced spending cuts that Paul Ryan could
only dream of on a reluctant Liberal Party. Over the next 16 years,
Canada’s federal debt fell 67 percent to 29 percent of GDP, and in
every year between 1997 and 2008 the federal government had a
budget surplus. The Canadian government didn’t just cut the growth
rate of spending, a budgetary trick employed in the U.S. budget
deal last August. It also cut absolute spending on many programs in
dollar terms.
What made the turnaround easier was the difference between the
structure of political parties in parliamentary and presidential
systems. Under the latter, where power is divided between different
branches of government, a national party is weaker than in a
parliamentary system. A Speaker of the House such as Nancy Pelosi
is politically independent of President Obama. By contrast, a
member of parliament is dependent on his national party, which
generally is run out of the prime minister’s office. In Canada,
Prime Minister Trudeau famously described his backbench MPs as
“nobodies.” When Prime Minister Chrétien decided to cut the budget,
then, there was no one to oppose him.
That’s not the American way. After the debt deal was signed (and
before the downgrade), Senator Harry Reid offered a moving account
of American constitutional government. The Founders didn’t adopt
the separation of powers to make things easier for politicians.
Just the opposite. They wanted to make it harder because they
thought this was a way to prevent bad laws from being enacted.
Reversing course is always harder than staring afresh. It’s
easier to start a new program than close an existing one; it’s
easier to hire a public servant than fire him. Every time a new
program is begun, interest groups coalesce around it. Businesses
and groups that profit from it will fight tooth and nail to prevent
its repeal. This will happen in both presidential and parliamentary
systems, but there are special reasons why reversibility is
particularly difficult in the former case.
The Constitution’s separation of powers was designed to produce
deadlock. Passing a bill is like waiting for three cherries to line
up in a Las Vegas slot machine. Unless the president and both
houses of Congress sign on, nothing gets enacted. In a
parliamentary system, it’s just one cherry, which the prime
minister can produce whenever he wants.
Was that the separation of powers has prevented more bad than
good laws from being enacted. That’s an empirical point, however,
and not a few bad laws have been passed in recent years, such as
Obamacare and Dodd-Frank. The list of bad ideas enacted in other
countries that we have avoided has become vanishingly small.
Moreover, not a few good laws have been blocked, such as the
serious attempts to reduce the debt crisis proposed by Republicans
this year.
WHETHER ONE SEES GRIDLOCK as good or bad will often turn on
who’s on top for the moment. For much of the last century
progressives saw their side as politically dominant and the
separation of powers as an obstacle to their legislative agenda. As
for conservatives, I recall someone telling me “Pray for Gridlock!”
in 1992.
That’s not a principled reason to prefer one system over
another. Quite apart from the passions of the day, however, there
is a reason to prefer parliamentary to presidential systems. What a
parliamentary system offers is reversibility, a greater ability to
change course and undo a bad law. What a presidential system offers
is pre-enactment screening, the greater scrutiny given to
legislation when passage is delayed by gridlock. And what I should
like to argue is that reversibility trumps pre-enactment
screening.
What reversibility has going for it is that it is easier to
identify bad laws with the benefit of hindsight. Think of
Obamacare, for example, which grows more unpopular as people learn
more about it, or the bailouts, which are now seen to have done
nothing except balloon out the public debt. What gridlock gives us
is a one-way ratchet in which bad ideas are adopted and then turned
into the laws of the Medes and the Persians.
Nor is it the case that we get much pre-enactment screening in
the U.S. Major amendments are quietly inserted at the last moment,
escaping the scrutiny of regulators charged with overseeing the
bill. At the extreme, a statute might be so lengthy as to greatly
reduce any possibility of meaningful preenactment screening. One
might have expected the chairman of the House Judiciary Committee
to have had something to say about Obamacare, whose
constitutionality is now before the courts. John Conyers’
difficulty was that it’s a little hard to have an opinion about a
bill one has not read. One can’t be unsympathetic, however. “What
good is reading the bill if it’s a thousand pages,” said Conyers,
“and you don’t have two days and two lawyers to find out what it
means after you’ve read the bill?”
Reversibility is particularly valuable in the current economic
crisis. Had one to choose between a presidential and a
parliamentary system without knowing what year or country one was
in, the choice might perhaps not be easy. Between 1960 and 1998,
presidential systems with their separation of powers were
associated with smaller governments and smaller deficits. That
period was the high tide of Keynesianism, an illness to which
parliamentary systems succumbed more quickly than presidential
ones. In recent years, however, the United States has caught the
same disease, and parliamentary systems are in recovery.
Against this, it might be thought that presidential systems are
more likely to preserve liberty. That’s not what Madison thought in
drafting the Virginia Plan. When he wrote Federalist
10 a year later, however, he had done a volte-face, and noted
that “The accumulation of all powers legislative, executive and
judiciary in the same hands, whether of one, a few or many, and
whether hereditary, self appointed, or elective, may justly be
pronounced the very definition of tyranny.” Once again, however,
that’s a prediction history hasn’t borne out. When one looks at
other countries, there are a good many more presidents-for-life
than prime ministers-forlife. America was spared tyranny because it
is American, with an inherited tradition of liberty, and not
because of a Constitution that wasn’t made for export.
IN SUM, it’s time to question whether the separation of powers
was such a good idea after all. Not that we’re about to adopt a
parliamentary regime, but there are features of American politics
that can readily be changed and that have been kept in place
because they seem to bolster the gridlock produced by the
separation of powers. Think ahead to November 2012. There’s a good
chance that Republicans will win the presidency and the House. In
the Senate they have a good shot at 55 members. They’ll ride into
town and try to repeal Obamacare. And that’s when they’ll run into
the Senate filibuster.
Those who defend the filibuster tend to pick out some instances
where it cut their way. It hurt us when our side was on top, they
tell us, but go back a bit further and you’ll find an example where
it cut our way. If I’m correct, however, it systematically hurts
the country. In particular, conservatives who want to undo the
legislative mess of the last few years will want to put their
finger on the nuclear option to blow up the filibuster.
The liberals of yesterday have become the conservatives of
today, as they try to resist the changes that must be enacted to
restore America to economic health. Think of how Nancy Pelosi
crowed in the last budget deal about how she had prevented changes
to Medicare and Social Security. They are the old guard, the
ancien régime, the Bourbons who have remembered nothing
and forgotten nothing, while the radicals, the agents of change,
are conservatives. In enacting the reforms that America needs, it
is the liberals who will cling to any device to preserve the status
quo, and the Filibuster will be their strongest weapon. That is
why, if the 2012 election turns out as I expect, the first order of
business for then-Senate Majority Leader McConnell should be a
return to simple majoritarian rule and the elimination of the
filibuster.
