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Tuesday, March 19, 2019

Time to Channel Madison

MadisonAlexander Hamilton has been fashionable of late, but for a solution to our extreme political polarization, we should look to James Madison. As Madison recognized, people are not angels. We cannot rely on the virtue of government officers to do the right thing. Rather, we need to design our political system in a way that creates the proper incentives for public-spirited conduct by elected officials.

To be sure, Madison didn’t get it all right. While he was correct on theory and many of the practicalities, he came up short on implementation. The critical structural flaw in our political system lies in its “winner-take-all” nature. That feature does much to fuel our high levels of partisan conflict. My experience as a state legislator made this clear.

Like many first-time candidates, I pledged to judge ideas by whether they were good or bad, not by whether they were Democratic or Republican. And as a three-term legislator, I worked across party lines regularly. But I also found that try as one might to stay above the partisan fray, one inevitably gets sucked in. That’s because each side understands that if it gains control of the levers of government power, it can promote its agenda, while if the other side gains control of government power, there is little that can be done to achieve one's own goals or to stop the other side from achieving its goals. Recent Supreme Court appointments are illustrative.

Our political system has many winner-take-all features. For example, whoever prevails in the battle for the presidency gains 100% of the executive power even if the victor triumphs by the barest of margins. This denies meaningful representation to half of the public in the most important policymaking office in the world, and as a result, it invites levels of competition and conflict that are intense, excessive, and harmful to social welfare. Winner-take-all politics also dominates elections for Congress and a judiciary where major decisions can be decided by a conservative or liberal majority.

Instead of cooperation for the overall good, we get tit-for-tat politics that escalates rather than resolves conflict. Thus, for example, Senate Democrats eliminated the filibuster for lower court appointments, and Republicans responded by eliminating the filibuster for Supreme Court appointments. 

In a winner-take-all world, we also see candidates increasingly promoting agendas that will mobilize their bases rather than appeal across party lines. It’s no surprise that U.S. Sen. Sherrod Brown and former NYC Mayor Michael Bloomberg concluded that a more moderate campaign would face stiff headwinds in a race for the Democratic nomination.

To address winner-take-all politics, we should look across the Atlantic to countries where power is shared across partisan lines, and elected officials from both sides of the political spectrum have a say in the making of governmental policy. For example, in Switzerland, all of the major parties hold seats in the executive branch (the cabinet), and the cabinet ministers decide by consensus. Power-sharing makes for better representation and less conflict. It also makes for better policy—two heads really are better than one. If we want to bridge societal divides, we need to ensure that everyone’s voice is heard in the halls of power.

Posted by David Orentlicher on March 19, 2019 at 10:28 AM in Law and Politics | Permalink


Good question, Biff. Power sharing arrangements, both in Europe and the United States, are implemented in a variety of ways--through constitutional provisions, statutes, institutional rules, and agreements among the parties. For example, the filibuster is a Senate rule.

So we could get to power-sharing in the House and Senate if both chambers adopted strict filibuster rules, with, say, a two-thirds majority to break a filibuster. On the Supreme Court, the Justices could adopt a decision-making rule that would require decisions to be made by consensus--indeed, that was much more the norm on the Court before 1941. For power sharing in the executive branch, a constitutional amendment would be required, and an amendment could provide for a dual executive with members from both sides of the aisle sharing the executive power along the lines of the Swiss executive branch

Posted by: David Orentlicher | Mar 19, 2019 5:04:59 PM

After we look across the Atlantic, is there anything practically you suggest we do to effect your desired changes? Are you suggesting a new constitution?

Posted by: Biff | Mar 19, 2019 3:11:31 PM

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