September 3, 2013

AVOIDING IMPETUOUS VORTICES:

The Gridlock Illusion : If Washington seems to get much less done than it once did, it is partly because it is trying to do so much more. (R. Shep Melnick, Winter 2013, Wilson Quarterly)

There can be no doubt but that the gridlock argument captures key features of American government. Who could deny that the Constitution establishes what civics textbooks call an "obstacle course on Capitol Hill" that makes it excruciatingly difficult to enact legislation on controversial issues? We should remember, though, that the Founders had good reason to make the legislative process so arduous. James Madison was not enamored of every component of the Constitution he had helped to create--he was especially dismayed by the clause providing for equal representation of all states in the Senate--but he provided a sophisticated defense of the features that are commonly blamed for gridlock.  

Making it easier to pass legislation, Madison observed, would increase the "mutability of the law." The resulting "public instability" would not only undermine public confidence and weaken the United States internationally but would give an "unreasonable advantage" to "the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people." But by providing an opportunity for a "sober second thought," bicameralism would reduce the possibility that legislation would be the product of momentary public passions or manipulation by political insiders.

Furthermore, by requiring very broad majorities to enact laws, the Constitution reduces the power of what Madison called "majority faction." By combining a lower house whose members serve two-year terms with an upper house whose members enjoy six-year terms, the Constitution also combines responsiveness to current public opinion with attention to the long-term interests of the nation. Moreover, by dividing the legislature into two parts and granting veto power to the president, the Constitution prevents the legislative branch--which "necessarily predominates" in republican government, Madison wrote--from "drawing all power into its impetuous vortex." In other words, it protects both judicial independence and presidential power.

Today's critics of the Constitution tend to be less skeptical than Madison was of simple majoritarianism. From Woodrow Wilson a century ago to University of Texas law professor Sanford Levinson today, they have argued that the greatest shortcoming of the Constitution is its failure to allow popular majorities to prevail. What about the danger of majority faction and tyranny of the majority? Certainly no contemporary law professor can be indifferent to the plight of politically unpopular minorities. The unstated assumption of contemporary progressives is that this job can safely be left to the courts. Since we already have an activist judiciary, we can now tolerate an activist Congress. Let Congress do more, then let the Supreme Court invalidate those portions of the law that five of the justices consider unfair.

The Constitution's critics also tend to assume that the dangers created by government inaction are far greater than those caused by rash, premature, or intemperate action. They express no concern about the "mutability" and "instability" that so worried Madison. They tend to assume--despite overwhelming evidence to the contrary--that government's mistakes can be easily remedied. In reality, government programs create constituencies that are highly organized, acutely aware of the benefits they receive from government, and strategically placed to block substantial change. In other words, delays are often temporary, but mistakes last forever. 

Inaction can certainly be costly but sometimes there are advantages to inaction. Consider the case of acid rain. It became a political issue in the 1970s, but Congress did nothing to address it until 1990. For many years, this was considered a prime example of gridlock--just as congressional inaction on greenhouse gases is today. But the regulatory scheme Congress eventually used to control acid rain, marketable emission rights, has proved much better at reducing pollution quickly and cheaply than the kind of command-and-control regulation Congress relied upon almost exclusively in the 1970s. In other words, delay produced smarter government action.

Posted by at September 3, 2013 4:57 PM
  

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