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Sunday, November 02, 2014

A Republican Senate Majority and Partisan Conflict

As the New York Times editorial board observed recently, the prospect of a Republican Senate majority may make for even more gridlock in Washington. Other political observers think that we may see less obstruction, as Republicans assume greater responsibility for governmental decision making.

But whether or not Republicans in Congress should be held accountable, they likely will not be. Voters view the president as being in charge of the government and will reward or punish the president’s party accordingly. As Justice Robert Jackson wrote in Youngstown, the president is the “focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.”

At any rate, we won’t solve our gridlock by condemning the radical right. We will suffer from high levels of partisan conflict as long as we have a winner-take-all electoral system. As long as Democrats and Republicans can hope to gain control of the levers of power, they will fight for control.

If we want a bipartisan spirit, we need reforms that encourage cooperation rather than conflict. And the best way to do that is to ensure that political power is shared—and always will be shared—by elected officials across the political spectrum. We’ve recognized the need for power sharing across social divides in Afghanistan and Iraq. We should do the same for our own country. For more discussion along these lines, see here

Posted by David Orentlicher on November 2, 2014 at 09:31 AM in Current Affairs, Law and Politics | Permalink


Howard, government by a single executive does not preclude the kind of group contributions that you describe. Presidents have cabinets and many other advisers. The problem, though, is that decisionmaking from one perspective misses much of the potential benefits of group decisionmaking and has important drawbacks. When presidents (or prime ministers) make decisions after consulting with like-minded associates, they are prone to the bad decisionmaking of groupthink. What makes group decisionmaking work well is when there are multiple decisionmakers who bring different perspectives to their brainstorming and to decisionmaking that is based on consensus.

We cannot attribute a preference for one-party rule to evidence that it works well or better than shared power. There are many self-interested reasons to prefer one-party rule.

Shared power not only is better in terms of the quality of decisionmaking. It also better serves the interest in representation. It is not enough to say to the minority that it may have its chances at a later date. All people deserve to have a voice in their government on a routine basis.

Posted by: David Orentlicher | Nov 3, 2014 9:43:00 AM

One-party government is not the same thing as government by an individual. We generally recognize an independent benefit to group decisionmaking and the wisdom of many minds brought together. Even if they all fundamentally agree, the details of the policy they create will, we hope, be better (because more heads went into it) than the work of a single individual. There is a reason that most established western-style democracies rely on this system. True, must have multiple parties which sometimes forces coalitions. But the point is that the executive and the legislative majority are aligned and it is in their interests to govern well. It also is in the minority's interests to hope the majority doesn't and to offer a competing vision, without simply being able to say "no" and obstruct.

Posted by: Howard Wasserman | Nov 2, 2014 10:57:27 PM

Howard, I appreciate your concern about the minority frustrating the majority, but if the goal of government were simply efficient implementation of the majority party’s platform, then we would want an elected monarch. Such an executive could act with dispatch and also would be accountable to voters. Why bother with a Congress?

Because there are more important goals for governance. We want a political system that fosters good decision making and that provides representation to all citizens. Giving one party full control would deny representation to nearly half of the public. In addition, decision making is enhanced when it results from the reconciliation of diverse perspectives. That is why the framers gave us a Congress that brings together people from a range of viewpoints.

Our system has become unworkable because the incentives for conflict have become too strong and the incentives for cooperation too weak. We should aspire to a system in which everyone’s voice is heard and in which the parties have incentives to work together. We are correct to press for power sharing in Afghanistan and Iraq, and we should heed our advice for our own political system.

While I’m not sure Think Like a 1L has the right structure, I agree that we should aspire to decision making based on a broad majority rather than a narrow majority. Arend Lijphart has articulated that position well, and Switzerland and Austria provide important examples of its implementation. If we require the parties to govern by consensus, they will do so.

And there is ample common ground between Democrats and Republicans to allow for governing by consensus. The individual mandate to purchase health care was a Republican idea adopted by Democrats, and the failure of immigration reform is not a consequence of true philosophical differences but of political calculation. In a system that rewards conflict, candidates and elected officials need to emphasize the 20 percent where they disagree rather than the 80 percent where they agree.

Posted by: David Orentlicher | Nov 2, 2014 9:49:14 PM

Is there *any* functioning government, of a sovereign of any meaningful size, where something like that can or ever has worked?

Posted by: Howard Wasserman | Nov 2, 2014 8:19:43 PM

In contract to Prof. Wasserman, I think the solution is to require supermajorities for all legislative acts, in combination with universal 10 year sunsets.

The reality of our country is that Democrats and Republicans do not have realistic grounds on which compromise may be had. Their agendas are basically opposite.

We need to get away from the notion that 50%+1 should rule the country and move to a federal system where laws that at least 80% of the people can't agree on are left to the states.

Posted by: Think Like a 1L | Nov 2, 2014 7:32:47 PM

Or we could embrace partisanship and incorporate it into the current system by allowing one party to gain a majority and actually govern. The current problem is not that parties have an incentive to fight for the levers of power. The current problem is that the out-of-power party has the power to obstruct the in-power party, thereby making it easier to regain the levers of power by pointing out that the in-power party has not done anything. So eliminate divided Congresses and eliminate the Senate filibuster and give the Democrats (or Republicans) a chance to do something. And if they do something and the public doesn't like it, then there is a genuine reason to vote them out.

Posted by: Howard Wasserman | Nov 2, 2014 3:48:27 PM

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