Complementary constraints: Separation of powers, rational voting, and constitutional design

Harvard Law Review

Volumn 123, Issue 3, 2010, Pages 617-654

  Nzelibe, Jide O ^a   Stephenson, Matthew C ^b  

^a NORTHWESTERN UNIVERSITY   (United States)

^b HARVARD LAW SCHOOL   (United States)

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EID: 76649132677     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (134)

1. V.O. KEY, JR., POLITICS, PARTIES, & PRESSURE GROUPS 568 (5th ed. 1964). Ironically, Key's specific usage of this famous and oft-misquoted phrase was skeptical: "The Founding Fathers, by the provision for midterm elections, built into the constitutional system a procedure whose strange consequences lack explanation in any theory that personifies the electorate as a rational god of vengeance and of reward." Id. Nonetheless, as Professor Larry Bartels has observed, this phrase has become commonly associated with V.O. Key's more optimistic account of the rational retrospective voter spelled out in The Responsible Electorate in 1966. See LARRY M. BARTELS, UNEQUAL DEMOCRACY 126 n.29 (2008).
2. See generally, e.g., TIMOTHY BESLEY, PRINCIPLED AGENTS? (2006);
3. ORRIS P. FIORINA, RETROSPECTIVE VOTING IN AMERICAN NATIONAL ELECTIONS (1981);
4. G. BINGHAM POWELL, JR., ELECTIONS AS INSTRUMENTS OF DEMOCRACY (2000);
5. David Austen-Smith & Jeffrey Banks, Electoral Accountability and Incumbency, in MODELS OF STRATEGIC CHOICE IN POLITICS 121 (Peter C Ordeshook ed., 1989);
6. George W. Downs & David M. Rocke, Conflict, Agency, and Gambling for Resurrection: The Principal-Agent Problem Goes to War, 38 AM. J. POL. SCI. 362 (1994);
7. James D. Fearon, Electoral Accountability and the Control of Politicians: Selecting Good Types Versus Sanctioning Poor Performance, in DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION 55 (Adam Przeworski et al. eds., 1999);
8. John Ferejohn, Incumbent Performance and Electoral Control, 50 PUB. CHOICE 5 (1986);
9. G. Bingham Powell, Jr. & Guy D. Whitten, A Cross-National Analysis of Economic Voting: Taking Account of the Political Context, 37 AM. J. POL. SCI. 391 (1993).
10. See, e.g., THE FEDERALIST No. 51, at 289-90 (James Madison) (Clinton Rossiter ed., 1999) ("[T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.");
11. see also, e.g., AKHIL REED AMAR, AMERICA'S CONSTITUTION 63-64 (2005) (arguing that separation of powers not only prevents tyranny, but also facilitates a division of labor that promotes government efficiency);
12. OUIS FISHER, CONSTITUTIONAL CONFLICTS BETWEEN CONGRESS AND THE PRESIDENT 10 (4th ed., rev. 1997) ("Without the power to resist encroachments by another branch, a department might find its powers drained to the point of extinction.");
13. Martin H. Redish & Elizabeth J. Cisar, "If Angels Were To Govern": The Need for Pragmatic Formalism in Separation of Powers Theory, 41 DUKE L.J. 449, 487-506 (1991) (advocating the enforcement of separation of powers to prevent tyranny and bolster democracy);
14. Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV 29, 43 (1985) ("[T]he separation of powers scheme was designed with the recognition that even national representatives may be prone to the influence of 'interests' that are inconsistent with the public welfare.");
15. cf. Witold J. Henisz, The Institutional Environment for Economic Growth, 12 ECON. & POL. I (2000);
16. George Tsebelis, Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism, 25 BRIT. J. POL. SCI. 289 (1995).
17. There are some notable exceptions to this general statement. See Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. CHI. L. REV 1385 (2008);
18. Jacob E. Gersen, Unbundled Powers, 96 VA. L. REV (forthcoming Apr. 2010);
19. Tim Groseclose & Nolan McCarty, The Politics of Blame: Bargaining Before an Audience, 45 AM. J. POL. SCI. 100 (2001);
20. Timothy Hellwig & David Samuels, Electoral Accountability and the Variety of Democratic Regimes, 38 BRIT. J. POL. SCI. 65 (2008);
21. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 VA. L. REV 1127 (2000);
22. Torsten Persson et al., Separation of Powers and Political Accountability, 112 Q.J. ECON. 1163 (1997);
23. David J. Samuels & Matthew Soberg Shugart, Presidentialism, Elections and Representation, 15 J. THEORETICAL POL. 33 (2003);
24. Justin Fox & Richard Van Weelden, Partisanship and the Effectiveness of Oversight (May 20, 2009) (unpublished manuscript), available at http://papers.ssrn.com/s013/papers.cfm?abstract-id=1325580;
25. Razvan Vlaicu, Executive Performance Under Direct and Hierarchical Accountability Structures: Theory and Evidence (Dec. 1, 2008) (unpublished manuscript), available at http://papers.ssrn.com/s013/papers. cfm?abstract-id=1051661;
26. Razvan Vlaicu, Legislative Spending Bias, Fragmentation of Fiscal Power and Electoral Accountability (Feb. 2007) (unpublished manuscript), available at http://papers.ssrn.com/s013/papers.cfm?abstract-id=1079882. For our own prior contributions to the study of the interaction between separation of powers and electoral behavior, see Jide Nzelibe, Are Congressionally Authorized Wars Perverse?, 59 STAN. L. REV 907 (2007);
27. Matthew C. Stephenson, Court of Public Opinion: Government Accountability and Judicial Independence, 20 J.L. ECON. & ORG. 379 (2004);
28. Matthew C. Stephenson, Optimal Political Control of the Bureaucracy, 107 MICH. L. REV 53 (2008); and Matthew C. Stephenson & Jide O. Nzelibe, Political Accountability Under Alternative Institutional Regimes, 22 J. THEORETICAL POL. (forthcoming 2010).
29. For clarification, we use the term bias to capture any difference between the President's preferences and those of the median voter. Thus, in our stylized illustrations in Part II, the source of the President's bias is due to the capture of the President by an interest group; otherwise, the President and the median voter would have the same preferences and the President would be considered unbiased.
30. Our model employs the simplifying assumption that Congress cannot enact the new policy unilaterally. If it could, then voters would have a fourth lever of control - electoral support for Congress in case of unilateral (as opposed to joint) action.
31. See, e.g., Gersen, Unbundled Powers, supra note 4;
32. Juan J. Linz, The Perils of Presidentialism, J. DEMOCRACY, Winter 1990, at 51;
33. Powell & Whitten, supra note 2;
34. Thomas J. Rudolph, Institutional Context and the Assignment of Political Responsibility, 65 J. POL. 190 (2003);
35. Ethan Bueno de Mesquita & Dimitri Landa, An Equilibrium Theory of Clarity of Responsibility (Jan. 22, 2008) (unpublished manuscript, on file with the Harvard Law School Library).
36. See Fearon, supra note 2, at 55-60.
37. See id. See generally Ferejohn, supra note 2.
38. See THE FEDERALIST NO. 51 (James Madison), supra note 3. But cf. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV L. REV 915, 950-53 (2005) (observing that electoral incentives of members of Congress often conflict with empire-building concerns);
39. Jide Nzelibe, A Positive Theory of the War-Powers Constitution, 91 IOWA L. REV. 993, 1000 (2006) (same).
40. See, e.g., Sunstein, supra note 3, at 42-44.
41. See, e.g., James A. Gardner, Democracy Without a Net? Separation of Powers and the Idea of Self-Sustaining Constitutional Constraints on Undemocratic Behavior, 79 ST. JOHN'S L. REV 293 (2005);
42. Levinson, supra note 10, at 959-60; Persson et al., supra note 4.
43. THE FEDERALIST NO. 51 (James Madison), supra note 3, at 290.
44. See sources cited supra note 7.
45. See WOODROW WILSON, CONGRESSIONAL GOVERNMENT 281-82 (Transaction Publishers 2002) (15th ed. 1900) ("Each branch of the government is fitted out with a small section of responsibility, whose limited opportunities afford to the conscience of each many easy escapes. Every suspected culprit may shift the responsibility upon his fellows.").
46. See Peter H. Aranson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV 1, 56-62 (1982);
47. Morris P. Fiorina, Legislative Choice of Regulatory Forms: Legal Process or Administrative Process?, 39 PUB. CHOICE 33, 46-52 (1982);
48. see also Alberto Alesina & Guido Tabellini, Bureaucrats or Politicians? (pt 2), 92 J. PUB. ECON. 426 (2008).
49. See Michael S. Greve, Against Cooperative Federalism, 70 MISS. L.J. 557, 598 (2000) (arguing that cooperative federalism programs "reduce political transparency[,] obscure political responsibility[,] and facilitate political blame-shifting" because the public can never be sure which level of government is responsible for failures in government programs).
50. See James L. Sundquist, Needed: A Political Theory for the New Era of Coalition Government in the United States, 103 POL. SCI. Q. 613, 616-31 (1988-1989) (summarizing the literature in support of united government);
51. see also Linz, supra note 7;
52. G. Bingham Powell, Jr., Constitutional Design and Citizen Electoral Control, 1 J. THEORETICAL POL. 107 (1989).
53. See Persson et al., supra note 4;
54. cf. Steven G. Calabresi, The Virtues of Presidential Government: Why Professor Ackerman Is Wrong To Prefer the German to the U.S. Constitution, 18 CONST. COMMENT. 51, 56-57 (2001);
55. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV 167, 300 (1996).
56. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV L. REV 2311 (2006).
57. The discussion in this section is based on, and derived from, our more formal analysis in Stephenson & Nzelibe, supra note 4. Readers interested in formal statement and proof of our more general propositions should consult that paper. This Article illustrates our most important conclusions using numerical examples.
58. See infra section IVA, pp. 647-49, for a discussion of this assumption.
59. Other voter strategies would also yield a similar result in this case, as all the voter needs to do is ensure that the biased President's probability of reelection is forty percentage points lower if the President launches an invasion than if the President takes no action. So, for example, the voter could achieve the same result by reelecting the President with a 70% probability if the President takes no action and reelecting the President with a 30% probability if the President launches an attack, regardless of the outcome. We focus in the main text on the case in which the voter rewards success with reelection and punishes failure with replacement because, as we will see, these features characterize the voter's optimal electoral strategy once we introduce some voter uncertainty about whether the President has been captured by the special interest faction.
60. The idea that the voter would always reelect a President whose policy initiative is successful, and always throw out a President whose policy initiative is unsuccessful, may appear unrealistic - which it is. This result derives principally from the fact that in our simplified analysis, there is only one policy choice, and the decision to enact the new proposal results in an unambiguous success or failure. In the real world, the basic dynamic we describe would be attenuated by the voter's need to balance results on multiple issues and to assess conflicting evidence about policy performance. The basic dynamic we outline, though, is still likely to be present.
61. 2/8, which in this numerical example yields an expected utility to the voter of 0.62125.
62. If the voter fears that the incumbent President might be too dovish rather than too hawkish, the asymmetry would run in the other direction. Our discussion here focuses on the case where the President may be too hawkish, but the analysis is basically the same in the opposite case.
63. The assumption of complete statistical independence is obviously a simplification, but as long as the probabilities of capture are not perfectly correlated, our central qualitative results will hold. Because our model considers only the capture of both political branches by an interest group in favor of the policy, we do not discuss issues related to the distinctions between unified and divided government. If we assume, however, that because of divided government Congress and the President may be biased in opposite directions, then it would be important to know which party controlled which branches of government. The working paper version of our companion piece considers such an extension, but the results in that paper do not alter our main conclusion. See Matthew C. Stephenson & Jide Nzelibe, Political Accountability Under Alternative Institutional Regimes 20-23 (John M. Olin Ctr. for Law, Econ. & Bus., Harvard Law Sch., Discussion Paper No. 615, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1152452.
64. Like many of our other assumptions, this simplification is unrealistic, but we think it captures in stark form an important feature of the real political world. As participants in the policy-making process, politicians from both branches of government have the opportunity to acquire information about each other's true preferences. Voters, by contrast, often do not have the resources or incentives to observe closely the complexities and intricacies of the behind-the-scenes bargaining that drives policy output.
65. 2 - q + 1)], which in this example is equal to approximately 0.62385, which is greater than the voter's expected utility in the baseline case of unilateral authority by approximately 0.00260 units. The magnitude of this difference may appear small, but it is worth keeping in mind that these numerical values are arbitrary, as are the assumptions about the values and distributions of the other variables in the example, so it is hard to interpret things like voter utility payoffs as "small" or "large" in absolute terms. What matters is the relative expected utility payoff under different regimes.
66. This "optional" separation of powers model corresponds to a number of real-world situations, such as our running military intervention example. While the Constitution vests the power to declare war in Congress, it makes the President the Commander in Chief. As a practical matter, this means that while the President can seek congressional authorization for his initiatives, he sometimes initiates military action unilaterally, and for a variety of reasons it is difficult for Congress to constrain such unilateral initiatives. Cf. Nzelibe, supra note 4, at 913-14 (elaborating on the "electoral disincentives that members of Congress might face in constraining the President's military initiatives," id. at 913). An optional separation of powers may also capture certain aspects of domestic policy, as when the President can advance his policy agenda by pushing legislation through Congress, but can also initiate administrative agency action in ways that do not require congressional authorization (and which are practically difficult for Congress to overturn). See Elena Kagan, Presidential Administration, 114 HARV L. REV 2245, 2341 (2001). More broadly, Professors Terry Moe and William Howell have highlighted numerous ways in which the President can advance his policy agenda unilaterally. See Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. ECON. & ORG. 132 (1999).
67. 2)], which in this example is equal to 0.62388. This expected utility payoff is higher than the payoff under either the unilateral authority regime or the regime in which congressional approval of the President's proposal was mandatory. This optional separation of powers regime is always the best of the three for the voter, as we demonstrate formally in Stephenson & Nzelibe, supra note 4, and as we discuss further in section III.D. In our numerical example, the expected utility difference between the optional and mandatory separation of powers regimes seems very small - only about 0.00003 units of expected utility - but as noted earlier, see supra note 29, the artificial assumptions used to simplify the numerical example make it difficult to interpret this difference as "large" or "small" in real-world terms. In our view, what is more interesting is the relative ranking of these different regimes in terms of expected voter utility. For a more general and formal treatment, see Stephenson & Nzelibe, supra note 4.
68. See Bruce Bueno de Mesquita & Randolph M. Siverson, War and the Survival of Political Leaders: A Comparative Study of Regime Types and Political Accountability, 89 AM. POL. SCI. REV 841 (1995);
69. see also Timothy Y.C. Cotton, War and American Democracy: Electoral Costs of the Last Five Wars, 30 J. CONFLICT RESOL. 616, 619, 632 (1986) (finding that unpopular wars have had a detrimental effect on elected officials from the initiating President's party).
70. For instance, President Clinton was accused of using attacks against alleged al Qaeda targets in Sudan in 1998 to deflect attention from scandals concerning his personal life. Similarly, President Bush has been blamed for embarking on the 2003 invasion of Iraq to benefit political allies in the oil industry, or simply to avenge personal grievances.
71. See Moe & Howell, supra note 30, at 134-35 ("[Presidents have strong incentives to push this [constitutional] ambiguity relentlessly... to expand their own powers, and ... for reasons rooted in the nature of their institutions, neither Congress nor the courts are likely to stop them.");
72. see also ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY (1973);
73. Kagan, supra note 30, at 2341;
74. Eric A. Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV 865 (2007);
75. Kevin M. Stack, The President's Statutory Powers To Administer the Laws, 106 COLUM. L. REV 263, 267 (2006).
76. For a leading, thoroughgoing critique, see Levinson, supra note 10. See also JOHN HART ELY, WAR AND RESPONSIBILITY (1993).
77. See Moe & Howell, supra note 30, at 161-62.
78. See Nzelibe, supra note 4, at 919;
79. see also David P. Auerswald & Peter F. Cowhey, Ballotbox Diplomacy: The War Powers Resolution and the Use of Force, 41 INT'L STUD. Q. 505, 507 (1997) (finding that since the passage of the War Powers Resolution, presidents rarely deploy troops for more than sixty days without congressional authorization).
80. See Lisa L. Martin, The President and International Commitments: Treaties as Signaling Devices, 35 PRESIDENTIAL STUD. Q. 440, 445-47 (2005) (describing other strategic reasons why the President may seek to use treaties rather than executive agreements);
81. John K. Setear, The President's Rational Choice of a Treaty's Preratification Pathway: Article II, Congressional-Executive Agreement, or Executive Agreement?, 31 J. LEGAL STUD. S5 (2002) (same).
82. See Samuels & Shugart, supra note 4, at 51.
83. Id.
84. See supra pp. 625-26.
85. See Powell & Whitten, supra note 2;
86. Rudolph, supra note 7, at 196;
87. R. Kent Weaver, The Politics of Blame Avoidance, 6 J. PUB. POL'Y 371, 372, 387-88 (1986);
88. see also Charles O. Jones, The Diffusion of Responsibility: An Alternative Perspective for National Policy Politics in the US, 4 GOVERNANCE 150 (1991). Some commentators have argued that such blame-evasion strategies become particularly pronounced during periods of divided government. See, e.g., Sundquist, supra note 18, at 630 (observing that the President will tend to blame the opposition during divided government for policy failures like the deficit whereas the majority party in Congress will tend to blame the President).
89. See Aranson et al., supra note 16 (discussing strategic legislation delegation to agencies); Alberto Alesina & Guido Tabellini, Why Do Politicians Delegate? (Nat'l Bureau of Econ. Research, Working Paper No. 11531, 2005), available at http://www.nber.org/papers/w11531 (same);
90. cf. Eli M. Salzberger, A Positive Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent Judiciary?, 13 INT'L REV L. & ECON. 349 (1993) (discussing strategic legislative delegation to courts). However, a significant weakness in the blame-deflection theory of delegation to courts and independent agencies is that it assumes an electorate sophisticated enough to recognize the delegation, but not sophisticated enough to recognize the delegator's complicity in it. See Matthew C. Stephenson, "When The Devil Turns ...": The Political Foundations of Independent Judicial Review, 32 J. LEGAL STUD. 59, 62-63 (2003).
91. See Nzelibe, supra note 4.
92. See Jones, supra note 42, at 150-55.
93. The latter observation is broadly consistent with the claim by Professors Tim Groseclose and Nolan McCarty that an agenda setter can improve its standing by proposing policies that are vetoed, because doing so makes the agenda setter look moderate and the veto player look more extreme. See Groseclose & McCarty, supra note 4. The causal mechanism in our framework is different, however. Voters in our analysis do not acquire additional information about the President's type. Rather, in our analysis voters provide greater support in order to offset the President's incentives to embark on unilateral action.
94. See Cotton, supra note 32, at 630-33 (observing that voters punished Democratic presidential candidates more than they punished Democratic members of Congress during the Vietnam and Korean wars); Nzelibe, supra note 4, at 924.
95. Contrast, for example, the Democrats' rather tepid response to the unpopular, but congressionally authorized Iraq occupation in 2004, with President Truman's experience during the unauthorized Korean War. Once that war started to become unpopular, Truman was besieged by the political opposition and saw his public approval ratings slip to the twenties. See WILLIAM G. HOWELL & JON C. PEVEHOUSE, WHILE DANGERS GATHER: CONGRESSIONAL CHECKS ON PRESIDENTIAL WAR POWERS 12-13 (2007) (describing congressional reaction to Truman's decision to intervene in Korea). Moreover, voter disillusionment with Truman's war efforts also contributed in part to Eisenhower's dramatic electoral landslide in 1952. Id.
96. For a brief factual background of the Kosovo intervention, in which President Clinton ordered air strikes against Serbian forces in Kosovo in order to protect ethnic Albanians from Serbian aggression, see Campbell v. Clinton, 203 F.3d 19, 20 (D.C Cir. 2000). For an analysis of the international law and constitutional implications of the Kosovo intervention, see John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. PA. L. REV 1673 (2000).
97. See Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 1 PUB. PAPERS 459 (Mar. 26, 1999). President Clinton received some congressional political insurance when the Senate (but not the House) passed a resolution the day before he ordered the attack authorizing the President to conduct military air operations in conjunction with other NATO forces. S. Con. Res. 21, 106th Cong. (1999). The House rejected the Senate resolution authorizing the conflict by a tie vote of 213-213. Campbell, 203 F.3d at 20. Moreover, the House also rejected a resolution providing for the declaration of war by a vote of 427-2. Id.;
98. see H.R.J. Res. 44, 106th Cong. (1999).
99. See, e.g., Javier Solana, NATO's Success in Kosovo, FOREIGN AFF, Nov.-Dec. 1999, at 114.
100. MATTHEW A. BAUM, SOFT NEWS GOES TO WAR 328 n.8 (2003) ("President Clinton's public approval remained flat following NATO's victory in Kosovo.").
101. See, e.g., The Capital Gang (CNN television broadcast June 5, 1999) (statement of Margaret Carlson) ("[The potential benefit of a NATO victory is] not as big a plus as it would have been a minus [if the intervention had failed].");
102. see also Jane Perlez, Clinton's Quandary: No Approach To End War Is Fast or Certain of Success, N.Y. TIMES, Apr. 29, 1999, at A16. Also, after sidestepping staunch Republican opposition in Congress, the Clinton Administration went to great lengths to forestall any political fallout from the Kosovo intervention by making casualty avoidance a political priority. See BAUM, supra note 52, at 286-87;
103. see also WESLEY K. CLARK, WAGING MODERN WAR 419 (2001) (observing that the Kosovo intervention was characterized by "the exclusive reliance on [high-tech] airpower, the reluctance to accept friendly casualties, the horror of civilian casualties on any side, . . . and the impact of the media").
104. Joel Brinkley, House Study Finds Officers at Fault in Beirut Bombing, N.Y. TIMES, Dec. 20, 1983, at A1.
105. Nzelibe, supra note 10, at 1037 (discussing the opposition to the Grenada invasion by certain Republican legislators).
106. Id. at 1038.
107. In a January 1984 Gallup poll, about 52 % of the respondents said they thought it was a mistake for the United States to send the Marines to Lebanon, in contrast to 45% in the immediate aftermath of the Grenada intervention. See THE GALLUP POLL: PUBLIC OPINION 1984, at 21-22 (1985).
108. By early 1984, Democratic members of Congress started introducing legislation that would ostensibly cut off funding for the deployment in Lebanon. See Nzelibe, supra note 10, at 1031-32;
109. see also Steven V. Roberts, House Democrats Draft Resolution on Beirut Pullout, N.Y. TIMES, Feb. 1, 1984, at A1. Under congressional pressure, President Reagan formally ended the American deployment in Lebanon in March 1984. Richard Halloran, U.S. Withdrawing Its Military Force on Lebanon Coast, N.Y TIMES, Mar. 31, 1984, at 1.
110. In this respect, President Truman's unilateral foray into Korea was something of a historical anomaly. For the most part, as public awareness of an international crisis becomes more pronounced, we would anticipate presidents to be leery of escalating the crisis unless they are assured of either formal congressional support or a relatively quick and easy victory.
111. Traditionally, commentators have viewed policy gridlock as one of the prominent failings of both the United States's constitutional structure and its weak political parties. One such early example is SIDNEY GEORGE FISHER, THE TRIAL OF THE CONSTITUTION (Philadelphia, J.B. Lippincott & Co. 1862). For a detailed analysis of Fisher's thesis and its shortcomings, see William H. Riker, Sidney George Fisher and the Separation of Powers During the Civil War, 15 J. HLST. IDEAS 397 (1954). Perhaps the classic statement of this problem can be found in WOODROW WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 54-81 (Transaction Publishers 2002) (1908).
112. See Gary W. Cox & Mathew D. McCubbins, The Institutional Determinants of Economic Policy Outcomes, in PRESIDENTS, PARLIAMENTS, AND POLICY 21, 61-63 (Stephan Haggard & Mathew D. McCubbins eds., 2001); Tsebelis, supra note 3, at 296-97. See generally GIOVANNI SARTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING (2d ed. 1997).
113. Cf. MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER 8-10 (2003) (arguing that we now live in an era of divided government in which radical policy initiatives by the political branches are unlikely);
114. Levinson & Pildes, supra note 20, at 2340-41 (suggesting that divided government will make it more difficult for a government to implement significant legislation).
115. DAVID R. MAYHEW, DIVIDED WE GOVERN 1-7 (2d ed. 2005) (arguing that there is no correlation between the passage of major legislation and the existence of one-party or divided government);
116. cf. LOUIS FISHER, THE POLITICS OF SHARED POWER, at xi (4th ed. 1998) (observing that permanent impasses in the American system are exceedingly rare). But see William Howell et al., Divided Government and the Legislative Productivity of Congress, 1945-94, 25 LEGIS. STUD. Q. 285, 300 (2000) (concluding that divided government depresses "landmark" legislation, has no effect on important nonlandmark legislation, and has a positive effect on trivial legislation).
117. See Stephen P. Nicholson, Gary M. Segura & Nathan D. Woods, Presidential Approval and the Mixed Blessing of Divided Government, 64 J. POL. 701, 703 (2002).
118. See, e.g., THE FEDERALIST NO. 51 (James Madison), supra note 3, at 290 ("[T]he constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other - that the private interest of every individual may be a sentinel over the public rights.");
119. cf. KEITH KREHBIEL, PIVOTAL POLITICS 84-85 (1998) (arguing that large, bipartisan coalitions tend to have greater success breaking through the divisions inherent to U.S. lawmaking).
120. See FIORINA, supra note 2, at 6, 20-43;
121. POWELL, supra note 2, at 47-51. Professor John Ferejohn has also argued that since politicians tend to have an informational advantage over voters in understanding the political landscape, voters economize by relying heavily on a politician's actual performance rather than his campaign promises. See Ferejohn, supra note 2, at 13.
122. See Fearon, supra note 2, at 69.
123. See E.M. Schreiber, Vietnam Policy Preferences and Withheld 1968 Presidential Votes, 37 PUB. OPINION Q. 91, 91 (1973) ("[Disaffected Vietnam doves insisted in arguing that... the best vote for those of dovish persuasion would be no vote at all.").
124. Sarah Baxter, Republicans Defect to the Obama Camp, SUNDAY TIMES (London), May 6, 2007, at 1-27 ("Disillusioned supporters of President George W. Bush are defecting to Barack Obama.").
125. Professors Christopher Berry and Jacob Gersen suggest that one way to address this problem would be to create a plural executive in which discrete authority for each policy area is taken from the President and given exclusively to a directly elected executive official. See Berry & Gersen, supra note 4;
126. see also Gersen, supra note 4 (taking this argument a step further by suggesting unbundling of authority across issue areas ought to be augmented by combining functional authority within issue areas into a single decisionmaker).
127. To be sure, it is likely that politicians care not only about those issues that are contemporaneously salient to voters, but also about those issues that are likely to be salient during the next election. But since politicians may not always anticipate correctly all the potentially salient issues, it is plausible that they may err on the side of caution and be overinclusive in their judgments with respect to such issues. If so, the scope of issues affected by our analysis may actually be more extensive than we suggest.
128. Charles W. Ostrom, Jr. & Dennis M. Simon, Promise and Performance: A Dynamic Model of Presidential Popularity, 79 AM. POL. SCI. REV 334, 335 (1985).
129. See Robin F. Marra, Charles W. Ostrom, Jr. & Dennis M. Simon, Foreign Policy and Presidential Popularity: Creating Windows of Opportunity in the Perpetual Election, 34 J. CONFLICT RESOL. 588, 589-91 (1990) (summarizing literature on how presidential popularity affects legislative productivity).
130. See Levinson, supra note 10, at 956-57.
131. Alberto Alesina & Stephen E. Spear, An Overlapping Generations Model of Electoral Competition, 37 J. PUB. ECON. 359, 361 (1988).
132. Compare Bernard Manin et al., Elections and Representation, in DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION, supra note 2, at 29, 47 (explaining that accountability is more difficult under coalition governments and divided government), with Helmut Norpoth, Divided Government and Economic Voting, 63 J. POL. 414, 426 (2001) ("There is no evidence that the American electorate is incapable of assigning responsibility for the economy because the executive and legislative branches of government are in different partisan hands.").
133. See CHRISTOPHER ANDERSON, BLAMING THE GOVERNMENT 199-211 (1995).
134. Thomas J. Rudolph, Who's Responsible for the Economy? The Formation and Consequences of Responsibility Attributions, 47 AM. J. POL. SCI. 698, 710 (2003).