This week several prominent writers explored whether our federal constitutional system can work in our current conditions and, if not, what might change. (More)

Systems and Conditions: The Constitution and Gridlock

As the DHS/immigration funding debacle showed, our federal constitutional system is not working. By November of 2014, it had been almost a year and a half since the U.S. Senate passed a comprehensive immigration reform bill by an overwhelming 68-32 majority. Most analysts agreed the Senate bill would have passed in the House, with at least 18 Republicans joining 200 Democrats (in 2013) to reach the necessary majority. But Speaker Boehner and other House Republican leaders reasoned – probably correctly – that President Obama and Democrats would get credit for the bill. Had it passed, Democrats might have built enough voter enthusiasm to hold their Senate majority and narrow the GOP House majority in the 2014 midterms.

From a Republican partisan view, the better strategy was to defer to the Hastert Rule. While not a formal House rule, Republican speakers since the 1990s have generally refused to bills to the floor without the support of a “majority of the majority,” that is, a majority of House Republicans. (Then-Speaker Nancy Pelosi repudiated the Hastert Rule in 2007 and often relied on Republican votes to pass bills.) The practical effect was that, in 2013, just 118 Republicans – 27% of the House – were needed to block the Senate immigration bill. And block it they did.

“Why can’t he get it done?”

Republicans were employing a strategy they developed before President Obama’s first inaugural: to block him and Democrats at every turn and count on American voters to hold the president and his party responsible for the results:

Sure, Republicans could have achieved more policy goals if they had negotiated with the Democrats on health care, financial reform, and other issues to pull legislation in a more conservative direction in exchange for some votes. But that, McConnell calculated, would have reduced the odds of success in the next election, which was what mattered most. As his ally in the Senate, Robert Bennett of Utah, told me of McConnell’s obstructionist approach to health care reform, “He said, ‘Our strategy is to delay this sucker as long as we possibly can, and the longer we delay it the worse the president looks: Why can’t he get it done?’”

Predictably, once Republicans took control of the Senate in the 2014 midterms, Majority Leader McConnell began lamenting “Democratic obstructionism.”

“Our immigration system is broken – and everybody knows it”

The issue at hand was a Republican attempt to overturn President Obama’s November 2014 executive order on immigration:

For more than 200 years, our tradition of welcoming immigrants from around the world has given us a tremendous advantage over other nations. It’s kept us youthful, dynamic, and entrepreneurial. It has shaped our character as a people with limitless possibilities – people not trapped by our past, but able to remake ourselves as we choose.

But today, our immigration system is broken – and everybody knows it.

The Republican midterm victories vindicated the obstructionist strategy, at least in terms of political success. Voter turnout in 2014 was the lowest in 72 years, and Face the Nation host Bob Schieffer was one of many analysts to say the low turnout reflected voters’ disgust with our broken politics. Regardless, the GOP’s long-term structural edge in midterm turnout created a rout …

… and President Obama realized the Senate immigration bill was dead. So he did what many presidents have done, and conservatives immediately denounced it as tyranny. When Congress finally passed a year-long spending bill in December, they funded the Department of Homeland Security only through February, on the theory that – once they held both the Senate and House – Republicans would pass a bill to repeal the president’s immigration order and he would have to sign it or see DHS shut down for lack of funding.

“Reports that the Republicans won control of the House and Senate last election were greatly exaggerated”

But Democratic filibusters forced Senate Republicans to pass a clean bill to fund DHS, without the immigration order repeal provision. Last Friday Speaker Boehner found he couldn’t pass anything with only Republican votes, and Minority Leader Pelosi rode to his rescue to pass a one-week emergency funding bill. And yesterday Speaker Boehner brought the Senate’s DHS funding bill to the floor, where it passed with mostly Democratic votes.

That prompted this irate response from a reader at the conservative National Review:

Reports that the Republicans won control of the House and Senate last election were greatly exaggerated.

Other readers were even more scathing:

Time to arrest all our representatives and all special interest groups who are influencing them and hold mass hearings on treason….

It’s near impossible to stop a leftist take over of our country when the opposition political party is led by drooling cowards.

“It’s not going to work”

They have a point. Say what you will about turnout, but Republicans overwhelmingly defeated Democrats in 2014 and now hold majorities in both the House and Senate. But Senate Republicans can no more stop filibusters in 2014 than Senate Democrats could stop filibusters from 2009-2014. Even if Democrats had let the immigration order repeal come to the Senate floor (as they did with the Keystone XL pipeline vote) President Obama would have vetoed it (as he did the Keystone XL bill) … and Republicans don’t have veto-proof majorities in either the Senate or House.

The result is gridlock, and Vox’s Matthew Yglesias argues that’s not just a temporary condition:

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.

In the center, of course, it’s an article of faith that when right and left talk like this they’re simply both wrong. These are nothing but the overheated squeals of partisans and ideologues.

At the same time, when the center isn’t complaining about the excessively vociferous complaints of the out-party of the day, it tends to be in full-blown panic about the state of American politics. And yet despite the popularity of alarmist rhetoric, few people act like they’re actually alarmed. 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 problem, Yglesias argues, is not about individuals. It’s about the design of our constitutional system and the geographic and ideological conditions we now have. Both the president and members of Congress are elected by the people, and both can claim to speak for the people. When their visions are irreconcilable – as they are now, and as Yglesias and others predict they will be perhaps for decades to come – the Constitution offers no mechanism for moving either vision forward. The result is gridlock.

“The Congress of 2050 will largely serve to ratify policy decisions the president made unilaterally”

Yglesias predicts we will adopt a parliamentary system, ensuring that the governing coalition has the votes to pass legislation. But Dylan Matthews disagrees. Instead, he foresees a withering of Congress and a strengthening of the presidency to near-dictatorial powers:

My prediction is that this process will continue apace until the presidency’s powers are so immense as to be no longer recognizable. Norms that render dramatic actions impossible today will erode. Right now, it’d cause an uproar if a Republican president issued a blanket pardon for tax offenders who paid only what they’d owe if his tax plan had taken effect. But as changing tax policy through Congress becomes harder, that norm will weaken and an executive action like that will become plausible.
There are limits to how far this can go, of course. It’s hard to imagine an executive action creating a tax increase, or criminalizing a currently legal activity, or increasing spending levels. Even there, though, the president’s increased powers will in turn increase his leverage with Congress and make it easier for him to demand the few legislative changes he can’t effect on his own. Think of how easily the presidency steamrolls Congress on most foreign policy matters, a domain where it already has near-dictatorial powers. Congress’s maximum influence is piddling, so it has little reason to assert itself.

This won’t be a fast process. But if I had to guess, I’d say that the Congress of 2050 will largely serve to ratify policy decisions the president made unilaterally.

“Shoot-the-moon strategies”

The New York TimesRoss Douthat essentially agrees with Matthews, although he blames progressivism and “the tendency of advanced welfare states to frustrate reform of all kinds.” New York Magazine’s Jonathan Chait is more optimistic, but only because he blames a conservatism “deeply rooted to white American racial identity” that, he believes, will succumb to demographic change. In other words, both say government would work fine if only The Other Side didn’t exist … which means they’re both saying government won’t work well anytime soon.

And Ed Kilgore offers yet another alternative:

My most immediate concern, because we can already see it happening, is that partisan/ideological gridlock will feed on itself. As routine policy accomplishments achieved piecemeal via the normal legislative process fade, people in both parties will increasingly focus on taking full advantage of rare governing opportunities produced by exceptional electoral victories to shoot for the moon. After all, as Democrats discovered in 2010, House majorities and Senate supermajorities can be lost instantly. So a maximalist approach when in power – as ideologues of the left and the right invariably call for – could become routine, encouraging the “losing” party at such junctures to obstruct as much of the governing party’s agenda as possible and to pursue their own shoot-the-moon strategies in the future.

That is, Republicans and Democrats will stalemate each other, except for brief periods where one party holds both the White House and sufficient majorities to push their agenda through Congress … while the minority party fights tooth and claw to stop them until the balance of power shifts yet again.

I don’t have a crystal ball, but it’s clear that our current system is unworkable under our current conditions. Either the conditions must change – American voters must become less geographically and ideologically sorted – or our federal system must adapt to that sorting. This isn’t about the personality or political vision of President Obama, Majority Leader McConnell, or Speaker Boehner. It’s structural … and we need to recognize that no one running for office in 2016 will change that.


Happy Wednesday!