Democratic dysfunction and constitutional design

Boston University Law Review

Volumn 94, Issue 3, 2014, Pages 913-937

  Dawood, Yasmin ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84903706638     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (81)

1. Thomas L. Friedman, Our Democracy Is at Stake, N.Y. TIMES, Oct. 2, 2013, at A23 ("What is at stake in this government shutdown forced by a radical Tea Party minority is nothing less than the principle upon which our democracy is based: majority rule.").
2. Frank Newport, Dysfiinctional Gov't Surpasses Economy as Top U.S. Problem, GALLUP (Oct. 9, 2013), http://www.gallup.com/poll/165302/dysfunctional- gov-surpasses-economy-top-problem.aspx, archived at http://perma.cc/GPV9-FCKX (showing that one-third of Americans think that dysfunctional government is the most important problem facing America today, as compared to nineteen percent of Americans thinking that unemployment/jobs, as well as twelve percent of Americans thinking that the economy in general is the most important problem facing America).
3. Calvin Woodward & Jennifer Agiesta, AP-GfK Poll: Republicans Get Most Blame for Shutdown, ASSOCIATED PRESS (Oct. 9, 2013), http://ap-gfkpoll.com/ featured/our-latest-poll-findings-23, archived at http://perma.cc/E435-SP4N ("Congress is scraping rock bottom, with a ghastly approval rating of 5 percent.").
4. The focus of this Essay is on dysfunction in governance, rather than failure in governance. Arguments about dysfunction can be distinguished from arguments about failure. See James E. Fleming, Successful Failures of the American Constitution, in THE LIMITS OF CONSTITUTIONAL DEMOCRACY 29, 33 (Jeffrey K. Tulis & Stephen Macedo eds., 2010) (describing Professor Sanford Levinson's book as being concerned with dysfunction rather than failure).
5. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 9 (2006).
6. Id. at 107 ("[T]he present Constitution does not offer a clear understanding of the limits of presidential power, particularly during times of presidentially perceived emergencies."); see also BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS 266 (2005) ("The Framers' misunderstanding of the presidency was the biggest of their mistakes.").
7. THOMAS E. MANN & NORMAN J. ORNSTEIN, IT'S EVEN WORSE THAN IT LOOKS: HOW THE AMERICAN CONSTITUTIONAL SYSTEM COLLIDED WITH THE NEW POLITICS OF EXTREMISM 46 (2012).
8. Richard L. Hasen, Political Dysfunction and Constitutional Change, 61 DRAKE L. REV., 989, 1013 (2013) ("Partisan gerrymandering, too, seems to be exaggerated as a source of extreme partisanship, and district lines do nothing to explain increasing partisanship in the Senate, where all Senators are elected in statewide elections.").
9. RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE? 128 (2006).
10. ALAN WOLFE, DOES AMERICAN DEMOCRACY STILL WORK? 14 (2006).
11. Stephen Ansolabehere et al., Why Is There So Little Money in U.S. Politics?, 17 J. ECON.PERSP. 105, 116 (2003).
12. Richard L. Hasen, Fixing Washington, 126 HARV. L. REV., 550, 568 (2012)
13. (citing Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance: When Public Opinion Determines Constitutional Law, 153 U. PA. L. REV. 119 (2004)).
14. LAWRENCE LESSIO, REPUBLIC, LOST 231 (2011).
15. Hasen, supra note 17, at 551-52 (stating that the real concern should be "with the decline in national economic welfare that occurs thanks to lobbyist-facilitated rent-seeking" (citing Richard L. Hasen, Lobbying, Rent-Seeking, and the Constitution, 64 STAN. L. REV. 191, 193-94 (2012))); Hasen, supra, at 193-94 (detailing the left and right's criticisms of lobbyists and the role of campaign contributions in Washington politics).
16. SANFORD LEVINSON, FRAMED: AMERICA'S FIFTY-ONE CONSTITUTIONS AND THE CRISIS OF GOVERNANCE 233 (2012) (stating that the rise of political parties as seen in the United States today transcends Madison's arguments).
17. See Josh Chafetz, The Phenomenology of Gridlock, 88 NOTRE DAME L. REV. 2065, 2065-68 (2013) (describing gridlock as an absence of legislative action).
18. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV., 2311, 2313 (2006) (stating that the separation of powers doctrine is anachronistic and has been replaced by competition between the parties).
19. For a discussion of the democratic legitimacy of partisanship, see Yasmin Dawood, Democracy and the Problem of the Partisan State, in LOYALTY: NOMOS LIV 257, 258-59 (Sanford Levinson et al. eds., 2013).
20. THOMAS E. MANN & NORMAN J. ORNSTEIN, THE BROKEN BRANCH: HOW CONGRESS IS FAILING AMERICA AND HOW TO GET IT BACK ON TRACK 11-12 (2006) (stating that political developments in the South over the past fifty years changed the partisan dynamic in Congress and the ideological composition of the parties)
21. see also NELSON W. POLSBY, HOW CONGRESS EVOLVES: SOCIAL BASES OF INSTITUTIONAL CHANGE 80-96 (2004) (detailing the rise of the Republican Party in the South).
22. See Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CALIF. L. REV., 273, 292 (2011) ("As one major study puts it, '[cjonscious reapportionment in the 1990s then pushed both black and white Southerners out to the extremes.'").
23. See, e.g., Republicans Dominate Campaign Fundraising in Texas, YOUR HOUS. NEWS (Feb. 3, 2014, 9:39 AM), http://www.yourhoustonnews.com/magnolia/news/ republicans-dommate-campaign-fundraising-in-texas/article-f5e38974-8ce8-lle3- ad34-001a4bcf887a.html, archived at http://perma.cc/4P5A-Z6DN (remarking that Republican "candidates take ever-more hard-right positions to win over tea party activists").
24. Eric McGhee et al., A Primary Cause of Partisanship? Nomination Systems and Legislator Ideology, AM. J. POL. Sci. 1, 1 (2013) ("We find that the openness of a primary election has little, if any, effect on the extremism of the politicians it produces.").
25. DAVID R. MAYHEW, DIVIDED WE GOVERN 206 n.19 (2d ed. 2005) (discussing, for instance, how the 1993 budget and economic plan - one of the four most significant legislative acts of Clinton's presidency - overcame unanimous Republican opposition).
26. Robert B. Reich, The Real Price of Congress's Gridlock, N.Y. TIMES, Aug. 14, 2013, at A23 (stating that Congress's paralysis has encouraged the Supreme Court and the President to enter the fray).
27. See Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2631 (2013) (finding unconstitutional the Voting Rights Act provision setting forth the coverage formula).
28. Filibuster and Cloture, U.S. SENATE, http://www.senate.gov/artandhistory/ history/common/briefing/Filibuster-Cloture.htm (last visited Feb. 4, 2014), archived at http://perma.CC/3DTR-DSKL ("In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifth, or 60 of the current one hundred senators.").
29. Josh Chafetz, The Unconstitutionality of the Filibuster, 43 CONN. L. REV., 1003, 1003 (2011) (arguing that the filibuster "is best understood in terms of a sixty-vote requirement to pass most bills and other measures through the Senate").
30. Jeremy W. Peters, In Landmark Vote, Senate Limits Use of the Filibuster, N.Y. TIMES, Nov. 21, 2013, at Al (stating that the Senate ended the minority party's ability to filibuster most presidential and judicial branch nominees).
31. Sotirios A. Barber, Constitutional Failure: Ultimately Attitudinal, in THE LIMITS OF CONSTTITUTIONAL DEMOCRACY, supra note 4, at 13, 13-14.
32. AMY GUTMANN & DENNIS THOMPSON, THE SPIRIT OF COMPROMISE 1 (2012).
33. Arend Lijphart, Introduction, in PARLIAMENTARY VERSUS PRESIDENTIAL GOVERNMENT 1, 11-14 (Arend Lijphart ed., reprt. 2004) ("Presidentialism is said to have the advantages of executive stability, greater democracy, and more limited government⋯" Id. at 11.).
34. Harold J. Laski, The President and Congress, in PARLIAMENTARY VERSUS PRESIDENTIAL GOVERNMENT, supra note 63, at 75, 75 (stating that in times of "crisis," the President's position is so important that Congress must follow the President's lead, but in a "normal" situation, the President's position is much weaker).
35. Juan J. Linz, The Perils of Presidentialism, 1 J. DEMOCRACY, 51, 63 (1990).
36. Juan J. Linz, Presidential or Parliamentary Democracy: Does It Make a Difference?, in 1 THE FAILURE OF PRESIDENTIAL DEMOCRACY 3, 4 (Juan J. Linz & Arturo Valenzuela eds., 1994).
37. Donald L. Horowitz, Comparing Democratic Systems, 1 J. DEMOCRACY 73, 74 (1990).
38. Seymour M. Lipset, The Centrality of Political Culture, 1 J. DEMOCRACY 80, 82-83 (1990).
39. See JAN-ERK LANE & SVANTE ERSSON, THE NEW INSTITUTIONAL POLITICS 135 (2000).
40. JOSÉ A. CHEIBUB, PRESIDENTIALISM, PARLIAMENTARISM, AND DEMOCRACY 3 (2007) (arguing that presidential democracies are unstable because they "tend to exist in countries that are also more likely to suffer from dictatorships led by the military").
41. Robert Elgie, From Linz to Tsebelis: Three Waves of Presidential/ Parliamentary Studies?, 12 DEMOCRATIZATION, 106, 107 (2005) ("The two defining features of the 'second wave' are that there is more than one explanatory variable (the regime type, usually, plus the party system and/or leadership powers) and often a different dependent variable ('good governance' as opposed to democratic consolidation).").
42. See Scott Mainwaring & Matthew S. Shugart, Juan Linz, Presidentialism, and Democracy: A Critical Appraisal, 29 COMP. POL., 449, 452, 463 (1997) (stating that some constitutions make it easier for the president to dominate the political process, and that some election systems prohibit re-election, even of good presidents).
43. Scott Mainwaring, Presidentialism, Multipartism, and Democracy: The Difficult Combination, 26 COMP. POL. STUD., 198, 223 (1993) ("Multipartism may not adversely affect prospects for democracy in parliamentary systems, but it appears to with presidentialism. Institutional combinations make a difference.").
44. MATTHEW S. SHUGART & JOHN M. CAREY, PRESIDENTS AND ASSEMBLIES 156 (1992)
45. Timothy Frye, Presidents, Parliaments, and Democracy: Insights from the Post-Communist World, in THE ARCHITECTURE OF DEMOCRACY 81, 82-83 (Andrew Reynolds ed., 2002).
46. José A. Cheibub & Fernando Limongi, Democratic Institutions and Regime Survival-Parliamentary and Presidential Democracies Reconsidered, 5 ANN. REV. POL. Sa. 151, 176 (2002) (stating that the main difference between parliamentary and presidential regimes "lies in the way the decision-making process is organized").
47. Stephan Haggard et al., Conclusion: Policy Making in Presidential Systems, in PRESIDENTS, PARLIAMENTS, AND POLICY 319, 320-21 (Stephan Haggard et al. eds., 2001) ("More veto players⋯ mean that decisions entail higher transaction costs, and so are more difficult to make.").
48. Gary W. Cox & Mathew D. McCubbins, The Institutional Determinants of Economic Policy Outcomes, in PRESIDENTS, PARLIAMENTS, AND POLICY, supra note 91, at 21, 28 ("The greater the number of effective vetoes, the more private regarding will be the policies enacted.").
49. George Tsebelis, Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multiparty ism, 25 BRIT. J. POL. SCI., 289, 289 (1995).
50. Terry M. Moe & Michael Caldwell, The Institutional Foundations of Democratic Government: A Comparison of Presidential and Parliamentary Systems, 150 J. INSTITUTIONAL & THEORETICAL ECONOMIES, 171, 192 (1994) ("[E]very institutional form of democracy, whatever it might be, generates its own political dynamic - its own politics of structural choice - which in turn generates the basic structures that fill out the rest of government.").
51. See, e.g., Giovanni Sartori, Neither Presidentialism nor Parliamentarism, in 1 THE FAILURE OF PRESIDENTIAL DEMOCRACY, supra note 78, at 106, 109 ("The conclusion that might suggest itself⋯ is that if presidentialism has virtues, they are to be sought in the semi-or quasi-presidential systems based on power sharing (as in the French Fifth Republic), not on power separation.").
52. José A. Cheibub, Minority Governments, Deadlock Situations, and the Survival of Presidential Democracies, 35 COMP. POL. STUD. 284, 302, (2002) ("[T]he idea that the survival prospects of presidential democracies are compromised when presidential parties do not hold a majority of seats in congress, or when deadlock situations exist, is refuted by both descriptive and statistical evidence.").
53. Thomas H. Hammond & Christopher K. Butler, Some Complex Answers to the Simple Question 'Do Institutions Matter? ': Policy Choice and Policy Change in Presidential and Parliamentary Systems, 15 J. THEORETICAL POL. 145, 145 (2003).
54. Kaare Strem, Parliamentary Democracy and Delegation, in DELEGATION AND ACCOUNTABILITY IN PARLIAMENTARY DEMOCRACIES 55, 55 (Kaare Strem et al. eds., 2006).
55. John Gerring et al., Are Parliamentary Systems Better?, 42 COMP. POL. STUD., 327, 335 (2009) ("In sum, academics and policy makers who are working in this area seem to agree on one thing and one thing only: Constitutional structures matter.").
56. José A. Cheibub, Making Presidential and Semi-Presidential Constitutions Work, 87 TEX. L. REV., 1375, 1377 (2009) (stating that current research focuses on such areas as the impact of democratic forms of government on economic policy, budget deficits, economic performance, and ethnic conflict, just to name a few).
57. See Torbjörn Larsson & Guenther F. Schaefer, The Problem of Democratic Legitimacy in a Supranational Government, in EU ADMINISTRATIVE GOVERNANCE 541, 548 (Herwig C.H. Hofmann & Alexander H. Turk eds., 2006) (listing power sharing, no-confidence votes, and dissolution among such mechanisms).
58. See Carl T. Bogus, A Radical Decision by the R.I. Supreme Court, R.I. B.J., Nov. 1999, at 13, 13 ("[W]hile modern parliamentary systems do not have co-equal branches of government, they have other mechanisms to check and balance power: robust political party competition, a strong cabinet, the ability to bring an administration to an end at any time through a vote of no confidence, to name a few.").
59. Barbara Crossette, Globally, Majority Rules, N.Y. TIMES, Aug. 4, 1996, § 4, at 1.
60. Mark F. Brzezinski, Constitutional Heritage and Renewal: The Case of Poland, 11 VA. L. REV. 49, 78 (1991).
61. See Connor Phillips, The Disloyal Opposition, DUKE POL. REV. (Feb. 1, 2014, 9:21 PM), http://dukepoliticalreview.org/the-disloyal-opposition, archived at http://perma.cc/87G5-JDY9 ("Although democracy is based on the principle of majority rule, the minority also plays a crucial role, which in parliamentary systems is referred to as that of the 'loyal opposition.'").
62. See JOHN J. PATRICK ET AL., THE OXFORD GUIDE TO THE UNITED STATES GOVERNMENT 474 (2001) (stating that parliamentary systems typically provide for a question period in which members may address questions directly to the prime minister and cabinet members, who answer the questions in-person).
63. See, e.g., Canadian Government Collapses in No-Confidence Vote, GUARDIAN (Mar. 25, 2011, 10:17 PM), http://www.theguardian.com/world/2011/mar/26/ canadian-government-no-confidence-vote, archived at http://perma.cc/B6AR-E7WN.
64. See Richard Albert, Presidential Values in Parliamentary Democracies, 8 INT'L J. CONST. L. 207, 208 (2010).
65. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 640 (2000) (stating that the constitutions of India, Canada, and South Africa fit within the model of constrained parliamentarianism)
66. For Ackerman's critique of the U.S. system, see also BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC 1-12 (2010).
67. 2 JAMES BRYCE, MODERN DEMOCRACIES 465 (William. S. Hein & Co. 2007) (1921) ("This system is therefore calculated to secure swiftness in decision and vigour in action, and enables the Cabinet to press through such legislation as it thinks needed, and to conduct both domestic administration and foreign policy with the confidence that its majority will support it against the attacks of the Opposition.").
68. Argelina C. Figueiredo & Fernando Limongi, Presidential Power, Legislative Organization, and Party Behavior in Brazil, 32 COMP. POL. 151, 168 (2000) (explaining the benefits that have arisen from the president of Brazil's control over the legislative agenda).
69. For instance, under President Woodrow Wilson's leadership, the Democrats captured the White House as well as control of the House and Senate, and the newly unified government enacted Wilson's "New Freedom" program, "generally regarded as the most constructive period of domestic legislation between the abolition of slavery and the New Deal." Lloyd N. Cutler, Now Is the Time for All Good Men⋯, 30 WM. & MARY L. REV. 387, 396 (1989).
70. Semipresidential systems can be distinguished in various categories as well: parliamentary systems with presidential dominance; parliamentary systems with a presidential corrective; and parliamentary systems with figurehead presidents. Alan Siaroff, Comparative Presidencies: The Inadequacy of the Presidential, Semi-Presidential and Parliamentary Distinction, 42 EUR. J. POL. RES. 287, 287 (2003).
71. In Canada, the section 33 override clause, also known as the "notwithstanding clause," enables the provinces to opt out of the decisions of the Supreme Court of Canada with respect to a number of Charter rights. ROBERT J. SHARPE & KENT ROACH, THE CHARTER OF RIGHTS AND FREEDOMS 90-95 (4th ed. 2009).
72. Robert Blackburn, The Dissolution of Parliament: The Crown Prerogatives (House of Commons Control) Bill 1988, 52 MOD. L. REV., 837, 838 (1989) (stating that a great source of concern over the dissolution practice "has been the freedom of action possessed by a Prime Minister to decide the timing of dissolution and a general election at whatever moment he or she wishes").
73. See Murray Brewster, Harper Intends to Prorogue Parliament, Will Deliver Throne Speech in October, HUFFINGTON POST (Aug. 19, 2013,2:03 PM), http://www.huffingtonpost.ca/2013/08/19/harper-prorogue-n-3780873.html, archived at http://perma.cc/WX9K-TE8D (reporting that Prime Minister Harper will ask the Governor General to prorogue Parliament).
74. Alison Loat, Why a Government Shutdown Would Never Happen in Canada, HUFFINGTON POST (Oct. 4, 2013,1:20 PM), http://www.huffingtonpost.ca/alison- loat/government-shutdown-canada-b-4039762.html, archived at http://perma.cc/ 69XH-CMWC ("During prorogation, MPs are not at work in the House of Commons - though they are in their constituencies - but the rest of the federal government is still working and being paid.").
75. Deborah Coyne, Five Steps to Restoring Democracy in Canada, HUFFINGTON POST (Oct. 31, 2013, 6:35 PM), http://www.huffingtonpost.ca/deborah-coyne/ senate-reform-canada-b-4179496.html, archived at http://perma.cc/FR7C-6BY2 (stating that at the root of the Senate scandal is the "extraordinary concentration of power in the executive branch of the Government of Canada, namely, the Prime Minister's Office").
76. David Schneiderman, Constitutional Divide? Prime Minister Stephen Harper and the Transformation of Canadian Constitutional Culture ch. 2 (May 26, 2013) (unpublished manuscript) (on file with the author).
77. Jeffrey Simpson, The Supreme Irony of the Senate Scandal, GLOBE & MAIL, Oct. 30, 2013, at A15 (reporting that a vote on the suspension of three senators was scheduled).
78. Andrew Coyne, In the Duffy Affair, There's Just No Honour Among Liars Any More, NAT'L POST (Oct. 28, 2013, 8:58 PM), http://fullcomment.nationalpost.com/ 2013/10/28/andrew-coyne-in-the-duffy-affair-theres-just-no-honour-among-liars- any-more, archived at http://perma.cc/JT5P-4QDF.
79. By contrast, Pippa Norris argues for a unified theory of democracy and governance that holds that both representative institutions and state capacity must be simultaneously developed. PIPPA NORRIS, MAKING DEMOCRATIC GOVERNANCE WORK 7 (2012) ("[T]he unified theory at the heart of this book predicts that the institutions of both liberal democracy and state capacity need to be strengthened in parallel for the most effective progress deepening human security⋯").
80. See Fred W. Riggs, The Survival of Presidentialism in America: Para-Constitutional Practices, 9 INT'L POL. Sci. REV. 247, 258-63 (1988).
81. JOSHUA KURLANTZICK, DEMOCRACY IN RETREAT 7 (2013).