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.