Political Order and Political Decay (80 page)

FIGURE 24.
Americans' View of Their Institutions (percent)

SOURCE
: Pew Research Center

The American political system thus presents a complex picture in which checks and balances excessively constrain decision making on the part of majorities, as well as instances of excessive or potentially dangerous delegations of authority to poorly accountable institutions. So simple a delegated power as prosecutorial discretion is easily abused, particularly by high-profile prosecutors responding to political pressures to get tough on crime. The same goes, it would seem, for the NSA.

The problem in the American system is that these delegations are seldom made cleanly. Congress frequently fails in its duty to provide clear legislative guidance on how a particular agency is to perform its task, leaving it up to the agency itself to write its own mandate. In doing so, Congress hopes that if things don't work out, the courts will step in to correct abuses. We saw this process unfold in the case of the first national regulator in the United States, the ICC, which was given a very unclear mandate about its powers over railroads and was then wrapped up in litigation for the first twenty years of its existence as a variety of private parties challenged its authority to make decisions. The same process is unfolding in the early twenty-first century with passage of the Dodd-Frank bill regulating the financial sector: Congress delegated to the regulators the responsibility of writing many of the detailed provisions, which will inevitably be challenged in the courts. Ironically, excessive delegation and vetocracy are intertwined.

Many of these problems stem from America's presidential system itself. In a parliamentary system, the majority party or coalition controls the government directly; members of parliament become ministers who have the hierarchical authority to direct the bureaucracies they control. Parliamentary systems can be blocked if parties are excessively fragmented and coalitions unstable, as has been the case frequently in Italy. But once a parliamentary majority has been established, there is a relatively clean delegation of authority to an executive agency. Such straightforward delegations are harder to achieve in a presidential system, where the two branches often find themselves competing with each other. Simply strengthening one branch at the expense of the others does not overcome the problem posed by the original separation of powers.

The United States has needed presidential power at many junctures in its history, but it has always been leery of potential abuses of executive authority. This is particularly true under conditions of divided government, when the party controlling one or both houses of Congress is different from the one controlling the presidency. Congress needs to delegate authority, but it does not want to give up control. Thus, although the Constitution clearly delegates to the executive branch authority over national defense and foreign relations, this does not prevent Congress from constantly dragging secretaries of defense and state before it, mandating detailed rules regarding, for example, embassy security, and requiring them to produce hundreds of annual reports on subjects from environmental damage to human rights. Distrust of presidential authority has led to the peculiar independent commission structure that characterized the Interstate Commerce Commission and other regulators. Instead of straightforwardly delegating power to a single agency head who is then accountable to the president, early regulatory agencies reported instead to a group of commissioners balanced between the two parties. Congress was in effect delegating control to the executive while at the same time strictly controlling that delegation. An election that in a European parliamentary system would lead to a swift change in policy slows down in the United States as commissioners cycle through their fixed terms. The independent commission structure preserved party dominance, but in the end ironically made regulators less democratically accountable.

HOW DIFFERENT IS THE UNITED STATES?

In many respects, the American system of checks and balances compares unfavorably with parliamentary systems in its ability to balance the need for strong state action with law and accountability. These systems tend not to judicialize administration to nearly the same extent; they have fewer government agencies; they write more coherent legislation; and they are less subject to interest group influence. Germany, Scandinavia, the Netherlands, and Switzerland have been able to sustain higher levels of trust in government, which makes public administration less adversarial, more consensus based and, in the early twenty-first century, better able to adapt to changing conditions of globalization. For example, the privatization of many welfare services and the concessions by trade unions on job security were facilitated by high-trust institutions like the corporatist framework within which wages and benefits are set across the whole economy. These assertions are true, however, only at the level of individual countries. When we consider the European Union as a whole, the comparisons are not nearly as favorable.

Take interest groups and their impact on public policy. It is clear from the academic literature that there has been a large increase in the number and sophistication of lobbying groups in Europe as well as in America. Numbers are difficult to compare, since Europe does not have the same strict requirements for the registration of lobbyists that the United States does. But it is still the case that corporations, trade associations, and environmental, consumer, and labor rights groups all operate both at national and EU-wide levels much as they do in the United States.
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With the growth of the European Union and the shift of policy making away from national capitals to Brussels, the European system as a whole is beginning to resemble that of the United States to an increasing degree. Europe's individual parliamentary systems may allow for fewer veto players than the American system of checks and balances, but with the addition of a large European layer, many more veto points have been added. This means that European interest groups can jurisdiction-shop to an increasing extent: if they cannot get favorable treatment at a national level they can go to Brussels, or vice versa. Although, as political scientist Christine Mahoney has noted, “outside” groups representing social movements have significantly less access to European institutions than they do in the United States, interest groups still have many more opportunities to lay their case before policy makers and regulators than they did when they were confined to their own national systems.
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Indeed, the consensual nature of the EU itself has meant that EU-level institutions are far weaker than certain federal institutions in the United States. These weaknesses were made painfully evident in the European debt crisis of 2010–2013. The United States Federal Reserve, Treasury, and Congress responded quite forcefully to its financial crisis, with a massive expansion of the Federal Reserve's balance sheet, the $700 billion TARP, a second $700 billion stimulus package in 2009, and continuing asset purchases by the Fed under successive versions of quantitative easing. Under emergency circumstances, the executive branch was able to browbeat the Congress into supporting its initiatives. The European Union, by contrast, has taken a much more hesitant and piecemeal approach to the euro crisis. Lacking a monetary authority with the same powers as the Federal Reserve, and with fiscal policy remaining the preserve of national-level governments, European policy makers have had fewer tools than their American counterparts to deal with economic shocks.

Growth of the EU has also Americanized Europe with respect to the role of the judiciary. Many European governments began adding bills of fundamental rights to their constitutional systems after World War II and empowered constitutional courts to act as the defenders of these rights against state authority. A higher layer of judicial review was introduced with the creation of the European Court of Justice, which is tasked with interpreting European law, and the European Court of Human Rights, which emerged out of the European Convention on Human Rights. In addition, courts in individual European countries have made novel assertions of universal jurisdiction, as when a Spanish court indicted Chilean dictator Augusto Pinochet for crimes committed on Chilean soil. While European judges remain more reticent overall than their American counterparts to insert themselves into political matters, the formal structure of jurisprudence has tended toward the multiplication of judicial vetoes rather than the reverse.

THE MADISONIAN REPUBLIC

The American political system has decayed over time because its traditional system of checks and balances has deepened and become increasingly rigid. With sharp political polarization, this decentralized system is less and less able to represent majority interests but gives excessive representation to the views of interest groups and activist organizations that collectively do not add up to a sovereign American people.

This is not the first time that the American political system has been polarized and indecisive. The Madisonian system of checks and balances and the clientelistic, party-driven political system that emerged in the early nineteenth century were adequate for governing a largely agrarian country where most citizens lived on isolated family farms. It could not, however, resolve the acute political crisis produced by the institution of slavery and its extension to the territories. Nor was this decentralized system sufficient to deal with a continental-scale national economy increasingly knit together by new transportation and communications technologies of the sort that emerged after the Civil War. Political coalitions were assembled to create a modern, merit-based civil service, but these changes were resisted by the entrenched political actors at every step of the way. In light of these obstacles, the state building that occurred during the Progressive Era and New Deal was remarkable; the United States could have evolved like Greece or Italy with entrenched clientelism and individual corruption stretching into the modern era. The American state grew enormously in the subsequent period into the bloated and inefficient monstrosity it is today. But this outcome was in large measure a consequence of the fact that law and democracy, so deeply rooted in American political culture, continued to trump the state even as the state expanded.

The United States is trapped in a bad equilibrium. Because Americans historically distrust the government, they typically aren't willing to delegate to the government authority to make decisions in the manner of other democratic societies. Instead, Congress mandates complex rules that reduce the government's autonomy and make decisions slow and expensive. The government then doesn't perform well, which confirms people's original distrust. Under these circumstances, they are reluctant to pay higher taxes, which they feel the government will waste. But while resources are not the only, or even the main, source of government inefficiency, without them the government won't function properly. Hence distrust of government becomes a self-fulfilling prophecy.

Is it possible to reverse these tendencies toward decay and reform the system? There are two obstacles that stand in the way, both related to the phenomenon of decay itself. The first is a simple matter of politics. A lot of political actors in the United States recognize that the system isn't working very well but nonetheless have very deep interests in keeping things the way they are. Neither political party has an incentive to cut itself off from access to interest group money, and the interest groups don't want a system where money no longer buys influence. As in the 1880s, a reform coalition has to emerge that unites groups that don't have a stake in the current system. But achieving collective action among these out-groups is very difficult; they need leadership and a clear-cut agenda, which is not automatically forthcoming. External shocks were critical in crystallizing reform, events like the Garfield assassination, the requirements of America's rise as a global power, entry into the world wars, and the crisis of the Great Depression.

The second problem is a cognitive one that has to do with ideas. The typical American solution to perceived government dysfunction has been to try to expand democratic participation and transparency. This happened at a national level after the turbulent Vietnam and Watergate years as reformers pushed for more open primaries, greater citizen access to the courts, and round-the-clock media coverage of Congress. California and other states expanded use of ballot initiatives to get around unresponsive government. Almost all of these reforms failed in their objectives of creating higher levels of accountable government. The reason, as Bruce Cain has suggested, is that democratic publics are not in fact able by background or temperament to make large numbers of complex public policy choices; what has filled the void are well-organized groups of activists who are unrepresentative of the public as a whole. The obvious solution to this problem would be to roll back some of the would-be democratizing reforms, but no one dares suggest that what the country needs is a bit less participation and transparency.

I promised in the first chapter that this book would not suggest concrete policies or a short-term solution to the problems outlined here. A realistic reform agenda would have to balance long-term objectives against political realities. A system of checks and balances that gives undue weight to interest groups and fails to aggregate majority interests cannot be fixed with a few simple changes. For example, the temptation in presidential systems to prevent legislative gridlock by piling on new executive powers often creates as many problems as it solves. Getting rid of earmarks and increasing party discipline may actually make it harder to achieve broad legislative compromises. Using the courts to implement administrative decisions may be highly inefficient, but in the absence of a stronger and more unified bureaucracy, there may be no alternative. It makes little sense to delegate more autonomy to the executive branch until the capacity of that branch has been upgraded and the bureaucracy reformed.