Don’t Like The Shutdown? Blame The Constitution

Posted on 10/1/13
By Ian Millhiser | Via ThinkProgress


This article was published by the Center for American Progress Action.

The west front of the U.S. Capitol as seen from side of the House of Representatives on the eve of government shutdown. (Photo by by Phil Roeder, Creative Commons License)
The west front of the U.S. Capitol as seen from side of the House of Representatives on the eve of government shutdown. (Photo by by Phil Roeder, Creative Commons License)

A little more than two years ago, Canada faced a budget fight much like the one facing the United States today. Conservative Prime Minister Stephen Harper, whose party controlled a plurality but not a majority of the seats in Canada’s parliament, proposed a budget that was unacceptable to the opposition parties. Like the United States in 2013, Canada’s chief executive wanted one set of funding priorities, a majority of the legislature wanted a different set, and there was no clear way to reconcile these differences — except for the fact that Canada’s system of government was designed with this problem in mind. In Canada, a failed budget triggers a new national election in order to resolve the impasse (Canada’s 2011 election was technically triggered by a no confidence motion spearheaded by his opposition, but a new election over the budget was widely viewed as inevitable). So Canada held an election, Harper’s Conservatives won a majority of the seats in parliament, and the impasse was broken. Canada got a functioning government, rather than a shutdown.

Compare this sensible solution to the situation currently facing the United States. Absent truly extraordinary events, Barack Obama will be President of the United States until January 20, 2017, and his opposition party will control the House of Representatives until January of 2015. Both of these dates are baked into our Constitution, and there is no mechanism to remove either party from power until voters go to the polls in November of next year. If the two parties are unable to reach an agreement on the budget — or worse, if America defaults on its debt — an election won’t intervene to break the impasse for more than a year, and that’s assuming the electorate overwhelmingly favors Democrats in 2014.

And America’s inability to call a new election in order to fund its government is only part of its problem. Given widespread gerrymandering benefiting House Republicans, a new election could easily leave President Obama in the White House and John Boehner in the speaker’s chair. Last November, after all, Democratic House candidates won nearly 1.4 million more votes than Republicans, but this popular vote victory was not enough to win a majority of the seats in the House. Unlike Canada in 2011, where a new election placed one party in control of the government, a new American election could resolve nothing at all.

The Problem of the Presidency

Ultimately, the roots of the looming shutdown (which took affect October 1) stem from a different distinction between our government and that of most other modern democracies. Canada, Britain and many other democratic nations are what is known as “parliamentary democracies,” meaning that the nation’s executive is chosen by whoever controls the legislature. Stephen Harper’s power flows from the fact that his party controls a majority of the seats in Parliament. Similarly, Prime Minister David Cameron owes his job to his position as the leader of a governing coalition in the legislature. President Obama’s election, by contrast, took place entirely separate from the (admittedly, quite flawed) election that placed Republicans in control of the House. In the United States it is possible for a president to serve despite the fact that he or she is widely loathed by both houses of Congress. This is a unique problem facing what are known as “presidential democracies.”

Combine this problem with the fact that both the Democratic President and the GOP-controlled House have the power to veto any bill funding the government, and the reason for our current impasse becomes clear. As Yale political scientist Juan Linz explained in 1990, the chief executive in a presidential system has a “strong claim to democratic, even plebiscitarian, legitimacy” as the only national official elected by the nation as a whole, but an opposition-controlled legislature can also claim democratic legitimacy as the winners of their own elections.

Under such circumstances, who has the stronger claim to speak on behalf of the people: the president or the legislative majority that opposes his policies? Since both derive their power from the votes of the people in a free competition among well-defined alternatives, a conflict is always possible and at times may erupt dramatically. There is no democratic principle on the basis of which it can be resolved, and 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.

When the president and the legislature reach a truly unresolveable impasse, Linz warned that the end result is often quite ugly. “It is therefore no accident that in some such situations in the past, the armed forces were often tempted to intervene as a mediating power.”

It is probably two soon for Obama and Boehner to start counting their loyalists among the military’s general officers, but there is little doubt that Linz predicted exactly what the United States is experiencing today. In a Monday interview with Rep. Jason Chaffetz (R-UT), MSNBC’s Andrea Mitchell asked Chaffetz how he can continue to fight to block the Affordable Care Act when President Obama so recently ran for reelection on his health plan and won. Chaffetz’s response was straight out of Juan Linz: “I too won an election. You want me to just disregard all of my voters and all of the promises that I made and how I got elected? . . . . There’s got to be some respect that we too were elected, and the majority of the people that serve in the House of Representatives are Republicans.”

Of course, Chaffetz’s claim to democratic legitimacy would make more sense if House Republicans hadn’t actually lost the popular vote in 2012. As a practical matter, however, their democratic loss doesn’t matter very much. They still possess a veto power over any spending bills, even if the American people did not vote to give it to them.

The Death of American Consensus

The weakness in Linz’s theory is that the United States has thus far managed to govern itself, despite operating under a presidential system for more than 200 years, but Linz offers a theory for why this is the case: “In countries where the preponderance of voters is centrist, agrees on the exclusion of extremists, and expects both rightist and leftist candidates to differ only within a larger, moderate consensus, the divisiveness latent in presidential competition is not a serious problem. With an overwhelmingly moderate electorate, anyone who makes alliances or takes positions that seem to incline him to the extremes is unlikely to win, as both Barry Goldwater and George McGovern discovered to their chagrin.”

Whatever can be said about the voters who rejected Goldwater and McGovern, there is no longer a “larger, moderate consensus” in the United States. Goldwater’s aphorism that “extremism in the defense of liberty is no vice” has become the Tea Party’s rallying cry, and that sentiment now dominates the Republican Party. Once upon a time the GOP was unwilling to threaten shutdowns or budget defaults in order to implement their agenda, but that time is not now. Whatever consensus held our nation together before has broken down.

Last night, Slate’s David Weigel asked an important question: “Is there precedent for a party that lost seats in the last election demanding as much as the GOP demands now?” The answer to Weigel’s question is “yes.” In 1860, Southern-aligned Democrats lost handily to Abraham Lincoln’s Republicans, with Lincoln’s party seizing control over both houses of Congress. Angered by this result, seven states tried to leave the Union altogether.

The outcome of this failed rebellion was three constitution amendments that dramatically rewrote the nature of American government. Prior to these amendments, the United States Constitution had little concept of individual liberty as the Bill of Rights did not even apply to state governments. The Thirteenth, Fourteenth and Fifteenth Amendments rewrote the American social contract by establishing there are certain rights that cannot be abridged by anygovernment, whether state or federal. This was, in effect, a second American revolution.

The question facing the United States today is whether we can continue to govern ourselves under our existing processes — processes that allow two political factions that are unable to reconcile fundamental differences to each veto must-pass legislation — or whether the American consensus has once again broken down to the point that we must rethink founding principles. Constitutional change is disruptive, so it should not be invoked if the Republican Party is willing to return to the democratic norms that allowed our nation to function for generations. If they persist with extremism in defense of what only they view as liberty, however, then our current system of government is not built to withstand that kind of stress.

This article first appeared in ThinkProgress. Click here to go to the original

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