« VOPA v. Stewart and the Future of Ex parte Young | Main | Hiring Chairs 2010-2011: Please Announce Yourselves »

Wednesday, December 01, 2010

Balkin on parliamentary parties in a presidential system

Jack Balkin writes at length about the dangerous political pathology created by the development of European-, parliamentary-style political parties working within a separation-of-powers presidential political system. His argument, in short, is that ideologically cohesive, rigid, and centrally controlled parties work only where the executive (the head of the government) comes from the legislature and she and her party control all the levers of power, as is the case in parliamentary systems. The opposition party has no ability to govern or even to influence policy; its only job is to oppose the party in power and hope the political or policy climate changes and they can regain power at some point.

A presidential separation-of-powers system, with the levers of governance shared, depends on the executive and legislature being able to work across party lines. The minority party does have the ability to govern or participate in governing--in fact, it arguably is essential. The U.S. system was famously designed against political parties. And it could function reasonably well as long as the parties were largely heterogeneous and decentralized--in Madison's terms, different individuals or different elements of different parties would join together on different issues. But ideologically cohesive and coherent parties will not split in this way. Worse, a cohesive minority party has no incentive to cooperate with the President or the majority. If its goal is to regain power, the surest path to that is to do nothing and prevent the majority from doing anything. It worked this year--and Republican congressional leaders are making clear they will continue to do the same for the next two years, with the explicit goal of making sure that Barack Obama is a one-term president. Unless, that is, Obama and the Democrats are willing to "focus on the priorities of the American people" (in the words of Boehner and McConnell), by which they seem to mean focus on the policy preferences of the Republican Party.

What Balkin (and others have made this point) are arguing, of course, is that there is nothing wrong with the minority party doing this. In fact, it is perfectly rational and reasonable behavior for a cohesive minority party. The problem is that the U.S. system cannot really function without some intra-party compromise, either because of the possibility of divided government or because of the super-majoritarian requirements in the Senate. The U.S. system is designed to be slowed down through veto-gates, allowing time for deliberation and compromise before anything can be accomplished. But absent any meaningful incentive or willingness by the opposition to compromise, the system is not slowed--it grinds to a halt.

As someone (I think it was Ezra Klein) put it more pithily: You can give the minority party the incentive to obstruct or the power to obstruct--you cannot give it both. In our system, the minority party has both.

Balkin plainly believes we are at a tipping point and these developments reflect a "disaster" for our poltiical system. The whole thing is worth a read.

Posted by Howard Wasserman on December 1, 2010 at 09:01 AM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Balkin on parliamentary parties in a presidential system:


True, nomination battles are a very good example of the minority's power. I wonder, though, if the cohesion breaks down differently between the parties, and specifically, that Democrats cohere around goods and services while Republicans cohere around ideology.

An example: Democrats have demonstrated their ability to govern the Senate on a bipartisan basis for delivery of goods and services through federal spending. (After all, until recently, party-wide Republican commitment to reduced spending was largely hortatory.) Republicans, for their part, had to deal with a divided caucus on spending issues, but could pull from Democratic ranks on free-market, national security, and occasionally social issues.

Posted by: Jonathan | Dec 1, 2010 9:55:13 AM

Fair point, so maybe it's not about doing anything but about doing what the majority wants. I guess we could add a few points: But for the power given to the minority (especially in the Senate), those bills would have looked much different (and better, at least in some eyes--this is especially true of the stimulus package) and the process much cleaner. The result, perhaps, would have been that everything was more popular as a whole and might not have been the basis for the Republican electoral success last month.

Plus, look beyond legislation and think of all the appointments (Dawn Johnsen at OLC as the most blatant example) that the minority has been able to tie up or defeat outright.

Finally, it is worth noting, as Balkin does, that the Republicans are more ideological cohesive and disciplined. Even when the Democrats had 60 votes in the Senate, they had to struggle to keep someone (Lieberman, Nelson, etc.) from defecting. The Republicans were able to maintain far greater control over their ideological outliers.

Posted by: Howard Wasserman | Dec 1, 2010 9:29:47 AM

Interesting thesis, but in what sense did the Republican minority "prevent the majority from doing anything?" I count ARRA, ACA, and Dodd-Franks (and probably New START) as major legislative victories.

Posted by: Jonathan | Dec 1, 2010 9:18:48 AM

Post a comment