FEATURE CONTENTS INTRODUCTION I. POLITICAL FRAGMENTATION II. DEMOCRATIC ROMANTICISM III. THE CAUSES OF POLARIZATION IV. POLITICAL POWER, POLITICAL PARTIES V. STRUCTURAL DECLINE IN THE POWER OF PARTY LEADERS VI. A PARTY-BASED CAMPAIGN FINANCE SYSTEM VII. MAKING DEAL-MAKING POSSIBLE VIII. LESS ROMANTICIZED VISIONS OF DEMOCRACY CONCLUSION INTRODUCTION
For many years now I have been interested in developing more of an institutionalist and realist perspective on the dynamics of democracy and effective political power, particularly in the United States. By this I mean a focus on the systemic organization of political power and the ways that legal doctrines and frameworks, as well as institutional structures, determine the modes through which political power is effectively mobilized, organized, and encouraged or discouraged. This perspective emphasizes, among other elements, the dynamic processes through which winning coalitions are built or destroyed in the spheres of elections and governance. The mutually influential relationship between these spheres ultimately determines the ways in which our democratic institutions function or fail to function.
This focus on the organization, structure, and exercise of actual political power in elections and in governance is what, in my view, characterizes "the law of democracy"--a systematic field of study in law schools for only the last twenty years or so. (1) To sharpen up this initial description, I would contrast the approach of the "law of democracy" to those approaches to constitutional law and theory that center on protecting and developing the dignity, or the autonomy, or the "personhood" of the individual, and ensuring the equal treatment of particularly vulnerable groups. These are the aspirations of Taking Rights Seriously, for example--the arresting book title that defines the approach of someone who has been much on my mind lately, my recently deceased colleague, Ronald Dworkin. (2)
Even more, however, I want to contrast my focus on the systemic organization of political power to rights-oriented approaches applied to democracy itself. (3) By rights-oriented approaches, I mean approaches that focus on interpreting and elaborating in normative or doctrinal terms the general, broad, political values of democracy, such as participation, deliberation, political equality, and liberty, or the associated legal rights to political association, to free speech, to the vote, or to political equality. These rights-oriented approaches typically pay less attention to the structural or systemic consequences--the effects on the organization of political power--of concretely institutionalizing these abstract ideals in specific settings. Rights-oriented perspectives also often rest, implicitly, on a conception of democracy that envisions individual citizens as the central political actors. We can see these approaches in constitutional doctrine, in reformist advocacy about democracy, and in scholarship on democracy in political theory, philosophy, and law. (4) My suggestion, however, is that these approaches can spawn, and have spawned, doctrines and policies that undermine the capacity of the democratic system as a whole to function effectively. Instead of this rights-based orientation, I want to encourage more focus on how political power gets mobilized, gets organized, and functions (or breaks down). (5)
In this Feature, adapted from a lecture I gave at Yale Law School in November 2013, I will illustrate this approach by addressing a problem on many of our minds, what my title calls "The Decline of American Government." In making this statement, I mean to appeal to a broad consensus of such a decline. Therefore, I do not refer specifically to an inability to act in areas of partisan conflict in which one side has a substantive policy preference for the status quo (climate change policy, for example). Rather, I refer to arenas where there is broad consensual agreement that government must act, in some fashion, but where American government now seems incapable of doing so--or where government does act, but only after bringing the country or the world to the edge of a precipice: government shutdown, the regular dancing on the knife's edge of the first U.S. government default, and the like. I do not want to suggest that American government is in some state of extreme crisis; American democracy has faced far more dramatic challenges before, (6) and as democratic observers from de Tocqueville to today have recognized, democracy is rarely "as bad as it looks" at any particular moment. (7) It is enough to recognize serious dysfunction even in only particular areas to motivate a search for deeper explanations, as well as directions for possible paths forward.
I want to offer two main ideas about how to think about the decline of America's governance capacity and effectiveness.
First, I want to suggest that we cannot understand how our democratic institutions are designed and how they function without recognizing that a uniquely American cultural sensibility and understanding of democracy--one that I view as excessively romantic, particularly in the forms it takes today--informs a good deal of the ways we design and reform our democratic institutions. This uniquely romantic conception of democracy has, I believe, perversely contributed to the decline of our formal political institutions. This will be one of my themes: the dangers of democratic romanticism.
Second, in diagnosing the causes of government's limited capacity to function effectively, there is a widespread temptation to focus on how polarized the two dominant political parties have become (as well as on whether polarization is asymmetric between the two parties). (8) Much of the commentary on polarization has focused on the difficulty of fitting America's increasingly parliamentary-like political parties into the Constitution's institutional architecture of a separated-powers system. (9) The understandable concern that many have today is whether in times of divided government--but not only then, given the Senate filibuster rule, which remains in place on policy matters--the absence of a "majority government" will make it too difficult to generate the kind of concerted political action required for legislation.
If the concern about polarization is best understood as one about effective governance, then we should perhaps refine the concern, particularly for pragmatists searching for potentially productive directions of plausible reforms. To do so, we should identify the issue not as political polarization alone but as one of political fragmentation. By "fragmentation," I mean the external diffusion of political power away from the political parties as a whole and the internal diffusion of power away from the party leadership to individual party members and officeholders. My claim is that, for pragmatic reformers, political fragmentation of the parties (most obviously visible, at the moment, on the Republican side, but latent on the Democratic side as well) is a more important focus of attention than polarization if we are to account for why the dynamics of partisan competition increasingly paralyze American government. The government shutdown and near financial default were not a simple product of party polarization; they reflected the inability of party leaders to bring along recalcitrant minority factions of their parties and individual members to make the deals that party leaders believed necessary. The problem is not that we have parliamentary-like parties. Rather, it might well be that our political parties are not parliamentary-like enough: party leaders are now unable to exert the kind of effective party leadership characteristic of parliamentary systems.
If this analysis is correct, stronger parties--or parties stronger in certain dimensions--ironically might be the most effective vehicle for enabling the compromises and deals necessary to enable more effective governance despite the partisan divide. I will offer a quick sketch of a few policy proposals designed to re-empower political party leaders in order to make government more functional. But the specific proposals are less important in themselves than as illustrations of a direction of reform that might enable more effective governance in the enduring context of highly polarized political parties.
Let me begin by impressing upon you the uniqueness of America's practices and institutions of democracy, taken as a whole, compared to those of other mature, stable democracies.
Jacksonian-era reforms have bequeathed us the world's only elected judges and prosecutors. (10) Indeed, we elect more than 500,000 legislative and executive figures, vastly more than any other country per capita (one elected official for every 485 persons): we elect insurance commissioners, drainage commissioners, hospital boards, community college boards, local school boards, and on and on. (11) Furthermore, we lack independent institutions to oversee the election process, such as specialized electoral courts, independent boundary-drawing commissions, and independent agencies - institutions common in most democratic countries. (12) This leaves partisan, elected, and mostly local officials in control of much of the regulation and administration of the electoral process, out of a perverse belief that doing so makes the process more democratically accountable to "us." (13)
Our administrative state, in general, is far more subject to democratic control than those of other well-established democratic countries. Although there have been periods in which we embraced independent administrative agencies based on ideals of political independence and expertise, such as in the Progressive and New Deal Eras, the dominant and distinct characteristic of American administrative government has been the emphasis on political control (legislative or...