FOUNDING BOTHER DECEMBER 5, 2013
In a long New Yorker piece that is unfortunately not online, Jeffrey Toobin asks whether the Founding Fathers inadvertently caused the problems that plague our government. Actually, Toobin asks two related questions. The first is whether the Constitution is an imperfect document that has led to some combination of inefficiency (as the left argues) and a lack of democratic accountability (as the right argues). The second question is whether the Constitution has been largely responsible for the problems of Barack Obama's presidency. Toobin is much more convincing on the former than the latter.
Toobin's article is interesting and wide-ranging, and manages to cover a lot of ground, from the concerns of legal scholars like Sandy Levinson (who thinks the structures laid out by the Constitution ensure dysfunctional government and an inability to solve problems), to radio host Mark Levin (who believes that the federal government now regularly engages in unconstitutional policy-making, and that the Supreme Court is "destroying America.") Toobin's case eventually settles largely on the Senate, which I hope we can all agree is a ridiculous institution that has no place in a healthy democratic society. (I exaggerate only slightly). Toobin goes through the Senate's history of opposition to minority rights and previous efforts at health care reform before ending with a quote from Noah Feldman, the Harvard professor:
“You’ve basically always had two parties in the country where one wants change and the other is more supportive of the status quo. The Senate is an institution that stops change. That’s how it’s designed, and that is always going to hurt that party that wants change, the activist party. Today, that’s the Democrats.”
According to Toobin, "This, in a way, is the story of the Obama Administration." "This," of course, is the Senate's history of obstructionism. Toobin argues that when the Democrats had 60 votes in the Senate, Obama was able to pass his major initiatives. Since that time:
Following his second Inauguration, the President embraced a gun-control bill that had universal background checks as its centerpiece. Even though polls showed that roughly ninety per cent of the public supported the idea, the legislation died in the Senate. (The less populated, more rural states are the ones most fiercely opposed to gun control.) A similarly large percentage of the public supports comprehensive immigration reform.That bill passed in the Senate but appears doomed in the House. Obama even failed to persuade Congress to fulfill its basic obligation to pay the bills and keep the government open. The shutdown, which lasted sixteen days, ended in a ceasefire, but the threat of closure and default will return early next year.
There are three things on this list. The first was a gun-control bill that couldn't quite eke its way out of the Senate, where it would have been sent to the House (if it had passed), and where its odds were considered even longer. The second is actually an example of the Senate working. The upper chamber passed a popular bill that aligns with the preferences of the re-elected president. The third is the government shutdown, which was almost entirely the doing of the Tea Party-crazed House.
Toobin's other examples don't quite work either. He mentions that Obama's recess appointments, which the president made after being stymied by an in-session Senate, are being challenged in the courts. He then adds:
Why, in an era of jet travel, should Congress have recesses at all? How can the words of delegates in Philadelphia about recesses illuminate an issue that they could not possibly have anticipated? Even accepting the structure that the framers devised, how can the Senate simply refuse to act on a President’s appointments, as the current Republican minority has done so often? How can the actions of forty senators prevent an administrative agency from functioning at all?
The first two questions somewhat confuse the issue, because if it weren't for recess appointments, the people never would have been appointed in the first place. But the last question is the crucial one. However, there is an answer to it, which Toobin provides: if fifty-one senators don't want forty senators to prevent an agency from functioning, they don't have to! The Senate just changed filibuster rules for presidential appointees. All it needed to take this action was a bare majority, which is obviously more democratic than the high number of 60. Which begs the question: why did it take so long for Democrats to make this change, and why won't they make other similar changes?
It's here that the best argument against the Senate, and against the Constitution's role in stymieing Obama, comes into play. One of the reasons that it took Democrats so long to make the change is that the Democratic caucus has a lot of Senators from red states. And it has a lot of Senators from red states because there are a lot of red states. This is the fundamental absurdity of the Senate. Moreover, while Toobin can't really show that it is the Senate that has stymied Obama in his second term, it was certainly the Senate that helped muddy his first two years and pave the way for the 2010 election debacle. The fact that the stimulus bill and Obamacare needed 60 votes was catastrophic: the former was too small, and the latter was dragged out interminably over months and months, partially to get 60 votes, and partially to please red state Senators. (Aside from the filibuster, the sheer undemocratic nature of the Senate--with Wyoming's interests getting as much attention as California's--surely warps policymaking in numerous ways.)
Still, analyses of this sort tend to be too simplistic. Would a Democratic President and Democratic House, assuming the Senate didn't exist, really pass ideal bills? Wouldn't the economy still have been in trouble even with a bigger stimulus? Would another variety of health care reform still have been a tough sell? Politics is hard and complex, and structural changes aren't a magic bullet. One section of Toobin's piece quotes Richard Posner and Akil Reed Amar, who make the simple point that the bigger problem of the last several years is that the House faction of one of our two political parties has, in Amar's words, "gone bonkers." Or, as Posner says, in bad economic times, "People get very upset, and they become vulnerable to extremist appeals." This is the central reason that Obama has faced trouble (or at least the trouble, from Syria to Obamacare's website, that has not been self-inflicted). Toobin has a go at blaming some of this problem on redistricting, but eventually concedes that it is far from the only cause.
Whether you are liberal or conservative, then, a large percentage of the American public either disagrees with you, or agrees with you, but not enough to try to force through any major reforms. You may think the Constitution was an amazing achievement, or an imperfect blueprint, or (in fact) both, but in a divided country it's far from our largest problem.