Defining Ideas

Our Outdated Constitution

via Defining Ideas (Hoover Institution)
Thursday, June 2, 2016
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The media’s wall-to-wall coverage of Donald Trump and the presidential horserace is a distraction from the main event. The point of the horserace—and of all politics—is to run a government capable of dealing effectively with the nation’s problems. But effective government is precisely what we don’t have. America’s greatest challenge is that it is burdened by a government that doesn’t work, and indeed is dysfunctional.

Why is the nation so poorly governed? This is the question that we address in our new book, Relic. What we show is that the fundamentals of an answer can be traced to the Constitution—which, for all its admirable qualities, imposes a structure of government that has long been outdated, and is ill-suited to modern times.

Congress is right at the center of the nation’s modern-day dysfunction. As a decision-maker, it is inexcusably bad. It is immobilized, impotent, and utterly incapable of taking effective action on behalf of the nation. A common refrain among today’s cognoscenti is that polarization is to blame—and that, were a more moderate brand of politics to emerge, Congress could get back to the good old days when it did a fine job of making public policy, and all would be well. But all would not be well, because the good old days were not good.

With some exceptions, Congress has never been capable of crafting effective policy responses to the nation’s problems, a fact that is well documented (see, for instance, Peter Schuck’s comprehensive assessment of the evidence in Why Government Fails So Often). Polarization has made a bad situation worse, but it is not the underlying cause of Congress’s core inadequacies—which are baked into the institution and not of recent vintage. Congress is an ineffective policymaker because it is wired to be that way by the Constitution, whose design ensures that legislators are electorally tied to their local jurisdictions and highly responsive to special interests. Congress is not wired to solve national problems in the national interest. It is wired to allow hundreds of parochial legislators to promote their own political welfare through special-interest politics.

With Congress’s pathologies rooted in the Constitution, the ultimate problem is the Constitution itself. The founders crafted a government 225 years ago for a simple agrarian society of just four million people, some 700,000 of whom were slaves. Of the free population, 95 percent were farmers. Government was not expected to do much, and the founders—mainly concerned about avoiding “tyranny of the majority”—purposely designed a byzantine government that couldn’t do much, separating authority across the various branches of government and filling it with veto points that made coherent policy action exceedingly difficult.

When government has been able to act, moreover, congressional lawmaking has typically led—due to the built-in nature of legislators’ incentives—to cobbled-together policy concoctions crafted to attract disparate legislators with disparate interests into the necessary support coalitions, not to provide the most effective means of addressing social problems. (See, for example, Steven Brill’s account of the Affordable Care Act, America’s Bitter Pill.) Legislators and special interests have gotten what they wanted. But their political intent has not been to create policies that are serious, coherent, well integrated, intellectually justifiable solutions to the problems they allegedly address—and the result is that problems have festered and rarely been resolved.

This approach to governance may have been fine for the late 1700s. But that era is long gone, and it isn’t coming back. Within 100 years, the nation grew to fifteen times its original population, stretched all the way to the Pacific, and was developing explosively into a modern industrial society—generating countless problems along the way, from rapacious monopoly to tainted meat to unregulated drugs, that the founders never anticipated and their antiquated government was never designed to solve. It was already a relic of the past.

The disjunction only got worse with time. In the last century, American society has continued to change at a frenzied pace, driven by stunning technological innovations and an increasingly complex and globalized economy, and giving rise to a mind-boggling array of vexing problems that weigh upon American society today. Terrorism. Pollution. Inequality. Persistent poverty. A crumbling infrastructure. Intense international competition. A broken immigration system. Skyrocketing debt. And much more. What we need is a government that is up to the challenges thrust upon it by the modern world. But what we have is a government designed in 1789—for a primitive world nothing like our own. We are prisoners of the past.

What can we do? A practical strategy is to seek out small, low-risk constitutional changes that promise big pay-offs for effective government. Here, specifically, is an approach that makes eminently good sense: with Congress the prime source of dysfunction, it should be moved to the periphery of the policymaking process where its pathologies can do less damage—and presidents should be moved to the center where they can do the most good.

Why presidents? Because their wiring is very, very different from Congress’s, and actually propels them to be the champions of effective government. This is so regardless of whether they are liberals or conservatives, Democrats or Republicans. Quite unlike most legislators, presidents think in national terms about national problems, and their overriding concern for their historical legacies drives them to seek durable solutions to pressing national problems. Needless to say, they are not always right or successful. And conservatives would seek very different policy solutions than liberals. But all presidents aspire to be the nation’s problem-solvers-in-chief. And if policymaking power can be shifted in their direction—and away from Congress—the prospects for effective government will be much improved.

A simple way to do this is through a constitutional amendment that grants presidents universal “fast track” authority. The nation has 40 years of positive experience with fast track authority in international trade, and that same model would simply be applied to all legislation (including appointments). Presidents would craft policy proposals—which are likely to be far more coherent, well integrated, and effective than anything Congress would design—and Congress would be required to vote up or down on those proposals, within a specified period of time and on a majoritarian basis, without changing them. No delays. No filibusters. No earmarks. No loopholes for special interests. Congress would retain the authority to pass laws on its own, but presidents would retain the authority to veto them.

But what, you might ask, if Donald Trump were to become president? Or Bernie Sanders? The fact is, even if a president favored policies you consider extreme or troubling, fast track would hardly make that president a dictator. Both houses of Congress would still need to give their separate consent before any proposal becomes law—policy would be a three-way decision, not a presidential decision—and the court system and separation of powers would remain intact, along with the Bill of Rights. The entire constellation of checks and balances would continue to limit what presidents could do, much as it has for more than 200 years.

Another fear, perhaps, is that fast track would give rise to presidential “overreach.” Yet fast track only deals with legislation—it adds nothing to the president’s unilateral powers, which are what “overreach” is all about. Indeed, a big reason presidents have favored executive orders and other unilateral actions is that, with Congress such a disaster, the legislative process is all but shuttered as a venue for solving problems. Under fast track, presidents would use legislation more and unilateral action less.

Consider immigration. President Bush submitted immigration reforms to Congress in 2005 and 2006, and President Obama submitted another in 2013. All these bills had majority support in Congress, yet the first two lost on Senate filibusters and the third failed because Speaker John Boehner refused to let the House vote. The result? No reform, a festering immigration problem—and a 2014 executive order by Obama that has caused all sorts of consternation on the political Right. With fast track, the nation would have passed a bipartisan immigration law more than ten years ago. And there would have been no Obama executive order.

Lastly, some might worry that fast track would forestall the kind of public deliberation that is so central to our democratic system of government. It would not. If anything, by forcing legislators to evaluate, debate, and pass judgment on policies that address national, long-term problems, fast track would elevate public discourse in Washington.

Let’s face it: our government doesn’t work. We can’t blame the founders for the bind we are in today. They had no idea what a modern society would look like. They designed a government for a tiny agrarian nation—and they assumed that, as society changed, future generations would change the Constitution to meet new and evolving needs. But future generations didn’t do that. Instead, they put it on a pedestal to be worshipped. What we need now is a healthier, more objective understanding of how the Constitution actually affects our lives. Modern America bears almost no resemblance to the America of 1789, and it is up to us to fashion political institutions that allow for effective government in our own times. The founders cannot save us. We must save ourselves.

Editor’s note: This essay is drawn from the authors’ new book Relic: How Our Constitution Undermines Effective Government—And Why We Need a More Powerful Presidency, which was published on April 26 by Basic Books.  A version of this piece appeared originally on CNN.com. To read that piece, click here