ESSAY: Why the U.S. government is dysfunctional

August 14, 2011

CALGARY, AB, Aug. 14, 2011/ Troy Media/ – Drafters of the U. S. Constitution thought a lot about the flaws in the 18th-century British system of government which, compared to today’s more sophisticated version – a constitutional monarchy with parliamentary democracy – was still in its infancy.

Their new republican system was meant to be well-balanced and self-correcting, with separation of powers among legislative, judicial and executive branches and “checks and balances” to prevent any one of those three from becoming supreme.

The original U.S. “was composed of 13 large and small States jealous of their own rights and powers and suspicious of any central national government.”

Statesmen of the time, therefore, wanted to minimize opportunities for far-reaching, restrictive laws to be enacted, not to mention their instinctive dislike of taxation or, indeed, of political parties. So they were careful to avoid concentrating legislative powers.

U.S. Constitution needs a major update

Considering the immense societal and economic changes since 1787, it is amazing that the U. S. Constitution, even as amended and interpreted, has survived. However, today’s complex society is so far removed from its antecedents that governmental structures and processes need a major update. The U. S. government is in gridlock, at least partly because of bitter partisanship. This is particularly evident after the just-averted crisis about whether the U. S. Government’s borrowing limit should be increased.

What’s gone wrong and how can things be fixed?

1. Members of the House of Representatives, elected for only two-year terms, have to campaign continually, which distracts them from their legislative duties and tempts them to posture and pander to powerful interests who finance their campaigns. All this contributes to the juvenile level of political debate, for outrageous rhetoric attracts publicity and correcting lies takes much time and effort.

Examples of this political immaturity are the Taxpayer Protection Pledge, a firm commitment to oppose any increase in income tax, which an overwhelming majority of Republican members of Congress have signed, or the “cut, cap and balance” pledge, whose price for raising the U. S. borrowing limit would have been a balanced budget amendment to the Constitution. Yet tying the American legislature’s hands in this way could permanently prevent a solution to that country’s fiscal crisis, with incalculable ripple effects for the world economy.

A constitutional amendment would be needed to increase the two year term, although raising the level of political discourse is obviously much more complicated than that. See more below.

2. Unlike the parliamentary system, the American executive branch has no direct connection to the houses of Congress, either for introducing legislation, or answering directly to either house for its actions. The president and his cabinet must depend on legislators in each house to introduce and support bills and cannot participate in house or senate debates on them. Indeed, even leaders in the same party as the president have been known to oppose his initiatives.

If the president’s program is defeated in the legislature, each side remains stuck with the other for the full term of their mandate. There is no question of calling an election when money bills are defeated or a non-confidence motion is passed. Thus, gridlock.

Again, changing this would require a constitutional amendment.

3. Legislation passed in Congress often contains “riders”, amendments having little connection with the bill’s subject matter. Riders are usually created to pass a controversial provision, often a “pork barrel” expenditure for the political benefit of an electoral district or region, that would not pass on its own. A presidential veto of the entire bill (an individual line-item veto is unconstitutional) could delay funding to governmental programs, causing serious problems.

An example of riders distorting legislative intent is a “Christmas tree” bill originally intended to encourage foreign investment in the United States. By the time it emerged from Congress, it contained provisions helping the mineral ore industry, large investors, hearse owners, and Scotch whiskey importers.

This practice is rare in Canada, although in 2008 the Harper government caused a furor with a rider to a confidence vote which would have removed public funding from Canadian political parties.

Riders could easily be eliminated if both houses of Congress wished to do so.

4. Allowing state legislatures to re-draw federal House of Representatives’ electoral boundaries to add or eliminate areas which tend to support or oppose their party (gerrymandering), often gives incumbent representatives an enormous advantage. Indeed, incumbents may have to worry more about being dismissed in their own party’s primary (e. g., by the “Tea Party”) than by the electorate.

Passing legislation putting boundary changes into the hands of an independent commission would help fix this and California and Ohio have already done so.

5. American politicians need huge sums to gain election and the U. S. Supreme Court has recently interpreted the Constitution to allow unlimited private money for political broadcasts. This contributes to the dominance over the legislative process by powerful corporations and their huge lobbying industry.

As two of the three oldest Supreme Court justices were Republican appointments, perhaps President Barack Obama will be able to craft a liberal majority on the court, one willing to reconsider this regressive holding.

6. The Senate’s rules require a “super-majority” of 60 of the 100 Senators to over-ride filibusters which prevent a measure from coming to a vote. Thus, a 59 per cent majority can be frustrated by an obdurate 41 per cent.

Since no legislative body can bind its successors, this procedural rule could be amended by simple majority, or 51 senators. (See Volume 28 Harvard Journal of Law & Public Policy, p. 206)

7. The Republican Party has managed to “frame” policy debates and shift the ground for political discourse, such that, for example, “liberal” is a dirty word and that Barack Obama, a cautious centrist to Canadian eyes, becomes a socialist ideologue. As well, they have created an atmosphere where “no tax is a good tax”, a bizarre belief if ever there was one.

Democrats should read the literature on framing, including George Lakoff’s Don’t Think of an Elephant, and use more psychologically appealing language and images to bolster their arguments.

8. Many citizens (not only Americans) lack either interest in, or understanding of, complicated public policy issues and can fall prey to demagogic sloganeering, and even lies, by media outlets such as those in Rupert Murdoch’s empire. Unhappily, this propaganda seems to work, although surely informed observers across the political spectrum have only contempt for these sources and their abusive rhetoric.

As I suggested in an earlier piece on climate change, an improved education system offers the best hope of purging the media of irresponsible elements, although limiting the concentration of ownership and cross-media holdings might also help.

As can be seen, some of the American government’s dysfunction appears to derive from the U. S. Constitution. This is unfortunate, for in today’s toxic political environment, it seems illusory to expect two-thirds of each House to propose, and three quarters of the States, to ratify any proposed amendment. Indeed, many Americans cannot imagine improving their Constitution.

Some issues (3, 4 and 6, above), however, are procedural, while others are cultural and reflect American ideology (items 7 and 8). For example, although social mobility in the U. S. is much less than in Canada, the “rags-to-riches” myth has fooled millions of lower-income workers into believing that the rich deserve special treatment because they deserve their wealth and any hard worker, with a little bit of luck, can share the fancy tax breaks by joining their ranks. This, in spite of the fact that the gap between rich and poor in the United States is greater than any other developed nation.

Americans, even more than citizens in other countries, seem to have a deep-seated belief that it’s always the other guy who will suffer misfortune. Maybe that’s why providing money to cover 65 million Americans without health insurance was so hard to sell.

Perhaps better education, both formal and through more sophisticated media commentary, is a road to enlightenment.

An interesting attempt to reduce partisanship has appeared – Americans Elect, which has so far signed up 1.75 million Americans for a virtual, web-based convention to nominate and register a presidential and vice-presidential candidate on all 50 state ballots in 2012. The two nominees will have to belong to different parties, or be independents, and will run on a platform created by the convention.

It is of course too early to assess this movement’s potential and some important questions have been raised about its transparency, financing and the identity of its founders. But Americans are rightly famous for their ingenuity and this should give us hope. It will be interesting to watch the idea’s progress. Personally, I have deep reservations about third party initiatives in the U.S., for I recall that Ralph Nader’s independent candidacy for president in 2000 split the vote and resulted in George W. Bush’s catastrophic tenure. On the other hand, Americans Elect is attempting a supra- or non-partisan approach.

Canadians should not be smug

Canadian observers should not be too smug about the presumed superiority of our parliamentary system and government. We have undergone constitutional crises as well. We have passed retrogressive legislation – e. g., interning Japanese Canadians during World War Two. Many of our politicians posture and propagandize too. And our government has been known to play fast and loose with the rule of law, such as promulgating retroactive regulations during the FLQ crisis in 1970, telling Conservative senators not even to debate a bill on climate change passed by the House of Commons, and using riders.

Humans are predisposed to resist change, and when matters get complicated, to prefer beliefs over knowledge. Yet somehow modern society has to engage “the greatest weapon of mass instruction ever known: the human brain.” (Rebecca D. Costa, The Watchman’s Rattle, 2010) If we fail the test which ever-increasing complexity presents, the whole human enterprise may be threatened.

Phil Elder is Emeritus Professor of Environmental and Planning Law with the Faculty of Environmental Design at the University of Calgary.