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We are tempted to think big when it comes to reforming political institutions, because the problems are so large and so vexing. But wholesale change in the political system is not possible and might not work. So in this chapter, we will focus on smaller ways to change American institutions to better fit the contemporary parties and political culture.
The boldest way of dealing with the mismatch between the party system and governing arrangements would be to make the governing institutions and processes fully compatible with parliamentary-style parties. The current presidential system, based on the independent election of the president and Congress, features a strong separation of powers with checks and balances. If this system were replaced with a parliamentary one in which a parliamentary majority (one party alone or in coalition with others) elects the executive, it would ensure substantial cooperation in the formulation and enactment of the government’s program. The mismatch would evaporate.
The debate on the relative advantages and disadvantages of parliamentary and presidential systems is a fascinating one.1 But a country understandably proud of the world’s oldest constitution and long accustomed to an independently elected president is unlikely to take it seriously. The root-and-branch restructuring of the Constitution that would be required to establish a parliamentary democracy makes any such consideration purely academic.
Short of such a major constitutional restructuring, the system could eliminate the midterm elections that regularly diminish the strength of the president’s party in Congress, often leading to divided-party rule. Although divided government has not been a huge obstacle to policy making throughout much of the country’s history, it has become downright destructive in this era of polarized parties. If members of Congress ran for election only in conjunction with presidential elections, the incidence of divided-party government would be reduced and presidents would have a more realistic time frame in which to put policies in place and be held accountable for their consequences. But this change too would require a constitutional amendment: altering the length of terms to four years in the House and four or eight years in the Senate.
Beyond the difficulty of enacting such a constitutional amendment, moving to elections every four years instead of every two would require a wrenching transition for Americans accustomed to regularly holding elected officials accountable at the polls. There could also be significant unintended consequences. Increasing Senate terms to eight years would mean a lengthy time without reelection; reducing Senate terms to four years, while at the same time increasing House terms to four years, would alter fundamentally the nature of the Senate as a distinct body.
Our tack here is to consider institutional changes consistent with the current constitutional framework that would improve the fit between our current parliamentary-style parties and the policy-making process. The first change is to strengthen majority rule in the Senate. As we highlighted earlier, winning control at both ends of Pennsylvania Avenue is no guarantee that the president and his majority in Congress can move decisively to staff the administration and deliver on campaign promises.
The minority party in the Senate has an effective veto over a president and his majority party. Senators’ overuse of the filibuster has created a routine supermajority hurdle that the framers never anticipated and that has not occurred before in American history. No other democratically elected leader around the world faces such a hurdle. Eliminating or reducing the scope of Senate actions subject to filibuster-related obstruction would allow the majority to resolve highly contested issues and to conduct Senate business in a timely and electorally responsive fashion. Changes in Senate rules to make both filibusters and holds less burdensome and vexing would make a huge difference when the president enjoys majorities in both congressional chambers.
A second way of improving the fit between the parties and governing arrangements is to shift decision-making power between Congress and the executive branch. It might entail more aggressive unilateral use of executive power; follow the model of the Federal Reserve or various independent regulatory agencies by removing some public decisions from the orbit of the president and Congress; or make more extensive and powerful use of nonpartisan, expert panels such as the Independent Payment Advisory Board authorized by the Affordable Care Act. A shift in power from Congress to the executive branch has been a striking feature of American government with the rise of the administrative and national security state, but Congress has retained substantial lawmaking and oversight resources. Further transfers of authority might improve the fit of the governing institutions with the contemporary party system but drain Congress of its comparative advantages in the constitutional system of checks and balances. But some modest shifts to give more leeway to the executive make sense, given the current and continuing dysfunction.
As the December 2011 Senate recess approached, Republicans again used the filibuster and other delay tactics to block confirmation of more than fifty presidential nominations for the State, Defense, and Justice departments, along with the new Consumer Financial Protection Bureau housed at the Federal Reserve and several posts at the Environmental Protection Agency. Among them was the Public Printer of the United States, a wholly uncontroversial appointment that both parties endorsed. Senate Republican Leader Mitch McConnell threatened to hold up even more nominations if President Obama considered using his constitutional recess appointment authority to circumvent any of the filibusters. McConnell did allow votes on several ambassadorial nominations before the Senate left for the holidays, but this was after many had been twisting in the wind for months. Others failed to get the sixty votes needed for cloture, even though all had majority support.
There are several principles that can and should apply to the Senate and its filibuster rules and procedures. First, the Senate rules should allow only one filibuster on any bill, where now there can be two or more. In the Senate, there is a motion to bring a bill to the floor for consideration and then debate on the bill, including amendments and a substitute. There can be other debates on creating and approving conference reports after the bill has passed. Each stage for a single piece of legislation is currently subject to a separate filibuster. Second, if a filibuster is applied, the minority party should have the burden of taking the floor and holding it via debate; the majority party should not have to keep the Senate in session by providing the quorum. Third, the Senate rules should eliminate extraneous delays outside the filibuster itself. And fourth, the Senate rules should guarantee a vote on executive and judicial nominations reported out of committees, with a time limit for holds on the nominations. Several senators, including Mark Udall of Colorado, Tom Udall of New Mexico, and Jeff Merkley of Oregon, have recommended specific reforms. Mark Udall’s reform package is particularly balanced and realistic.2 We believe the reforms should include the following elements, based on some of the best ideas proposed by various senators.
Currently, a senator can apply filibusters separately to the motion to proceed to the bill, on a substitute, on the bill itself, and on the three motions required to get the Senate to conference. As we documented in Chapter 3, many bills that passed unanimously were first stuck with two filibusters, each requiring days and days to quash, taking up more floor time for no good reason. Once a supermajority has made clear that it wants to end debate and move to vote, that should be it. The Senate rules should eliminate all those filibusters except for the one on the bill itself. That means the majority leader has the authority to bring any measure to the floor without a motion to proceed.
In the Senate rules, a cloture motion to end debate and move to a vote takes three-fifths of the Senate. Thus, the burden is on the majority to provide sixty votes, if all one hundred Senate seats are filled, to stop a minority from blocking action. During the 111th Congress, in Obama’s first two years, Democrats were forced on at least one occasion to bring the ailing, ninety-one-year-old Senator Robert Byrd out of his hospital bed to cast that sixtieth vote. That seems perverse to us. (Byrd, a stickler for Senate rules but also a believer in Senate civility, cried out “Shame!” to the Republicans in the body from the floor.) If the idea behind a filibuster is that a minority feels so intensely about an issue that it puts everything on the line to prevent action, then the minority should go the extra mile to prevail, not the majority that wants to act.
The burden is on the majority in another way. In the past, a filibuster meant that the majority would stop all other action in the Senate and debate the filibustered issue twenty-four hours a day to dramatize the stakes behind the filibuster and to enable the minority to show its mettle and demonstrate why it was taking this extreme action. In the 1950s and 1960s, Southern Democratic senators filibustering civil rights bills wanted to take the Senate floor and debate nonstop around the clock for days to highlight their emotional, vehement opposition.
More recently, filibusterers have had no interest in actually . . . filibustering. Their goal has been to obstruct quietly, without facing any blame for disrupting the Senate or Americans’ lives. The rules now make it easy for them just to lift a baby finger, declare their intention to filibuster, and raise the bar to sixty senators without any strain. How? By simply withholding their agreement to a unanimous consent request, the obstructionists put the majority into a box; keeping the Senate in session to dramatize the cost of obstruction requires a quorum of fifty-one senators. Without a quorum, there is no session and no ability to highlight and showcase the obstruction going on. If the Senate cannot get the quorum, it cannot meet, which is fine with the filibusterers. So to keep the Senate going, the majority must supply a quorum around the clock, giving its members cots to sleep on while the Senate drones on. If the minority keeps one member on the floor who can object to any unanimous consent agreement and to note regularly the absence of a quorum, it can get its way while its members can sleep at home or work outside the Capitol grounds.
This problem arose inadvertently when the Senate reformed its filibuster rule in 1975, changing a cloture requirement of two-thirds of senators present and voting to a requirement of three-fifths of the entire Senate. That reform seemed to lower the bar for cloture, but actually complicated it by forcing the majority to continually provide sixty votes. If the reformed standard were a proportion of those present and voting, then the majority, if it had a quorum of fifty and there were only a few minority members on the floor, could prevail on a cloture vote with as few as thirty members (three-fifths of the fifty senators making up a quorum).
One simple reform to correct that problem and force the minority to keep its members in or near the chamber when it conducts a full-fledged filibuster would be to change the cloture bar to three-fifths of those present and voting. A better and stronger reform would be to require forty-one votes to continue the debate, not sixty votes to end the debate, putting the burden squarely on the minority where it belongs.
If a senator threatens a filibuster, a cloture motion to block it and move to a vote has to “ripen” for two days. When a cloture motion succeeds, Senate rules provide for thirty hours of debate after cloture. The “debate” is not a debate at all, just thirty hours of precious Senate floor time with no need for anyone to take the floor to discuss anything. Two simple changes are in order: First, reduce the two-day delay in a cloture motion to one day. Second, divide the thirty hours of debate into fifteen hours each for the majority and the minority. Allow the majority to waive its fifteen hours, and require the minority to actually debate on the floor for its fifteen hours.
Minority senators insist that the reason they call for so many filibusters is that the Majority Leader, who uses a device called “filling the amendment tree,” shuts them out of the process of amending bills. The Majority Leader can use his or her power of recognition, that is, the power the leader has under Senate rules to supersede all other senators and gain the floor, call up a bill, and offer enough amendments and amendments to amendments to preclude any other alternatives, hence, the “amendment tree.” The minority members have a point. In return for streamlining the process, finding a way to allow a minority alternative on most bills, without filibustering, is a reasonable trade-off. One solution is to have a nondebatable motion to allow the minority a single, germane amendment by a simple majority vote, even after the Majority Leader has filled the amendment tree to preclude minority amendments.
Senators Charles Schumer, Lamar Alexander, Susan Collins, and Joseph Lieberman raised reformers’ hopes in 2011 when they proposed reducing the number of Senate-confirmable executive positions by over two hundred and streamlining the forms required of nominees. These forms are time consuming, cumbersome, and costly for the nominees, both delaying their confirmations and impeding their willingness to be considered for appointments.
But their efforts, as the McConnell action in December 2011 demonstrates, have done nothing to alter the nomination process. And that process is thoroughly broken. Beyond the use of filibusters, we have had the expanded exercise of individual holds to kill nominations, not simply delay them for a period of time. Senate rules should allow guaranteed up-or-down votes on the floor on all executive nominees within sixty days after being reported out by the committee of jurisdiction. Sixty days is ample time for senators to muster their arguments to reject nominations, and also provides reasonable time for nominees who can win confirmation to take office without disruptive delays. The other filibuster reforms we recommend will be enough to expedite action on judicial nominations, which as lifetime appointments should have a different threshold than executive ones.
Achieving such ambitious reforms of filibuster-related Senate rules faces three daunting obstacles. The first is the provision in the current rules that requires a two-thirds majority to cut off debate on a rule change. This provision was a part of the 1975 reform compromise to lower the cloture threshold to sixty senators. The second is each party’s fear of being steamrollered by the other when it finds itself in the minority. The third is the perception among senators of both parties that their ability to place holds on nominations and legislation, which is derived from the filibuster, is a major source of their individual power in the Senate.
We believe that the Senate, like the House, is reconstituted after each election, in spite of the fact that only a third of its members is elected every two years. As such, according to common law understanding of democratically elected legislatures and the presumption of the Constitution, a majority of its members have the right to set its rules for each Congress.3 This so-called “constitutional option” is highly controversial, and exercising it would upend decades of precedent in the Senate. But we believe it is entirely legitimate; senators could use it, if only as a threat, to compel both parties to acknowledge that their institution has fallen into utter disrepute and dysfunction and that a major change in the rules is essential to restoring its place in American democracy.
Senators’ acknowledgment of dysfunction, accompanied by increasing public scrutiny of its current rules and practices, might help overcome the partisan and individual interests that have frustrated past reforms.
Allowing majorities in the Senate to prevail more often would be the most direct way of making the branches of government more compatible with polarized parties. But its effectiveness would dramatically diminish in periods of divided government because the president’s party would lack even a simple majority. Another approach, particularly attractive to presidents dealing with one or both chambers of Congress controlled by the other party, is to transfer more decision-making power from Congress to the executive branch. Such shifts between branches have occurred throughout American history, mostly from the legislature to the executive, but occasionally featuring congressional efforts to reclaim authority unabashedly asserted by the president.
This changing balance between the branches is an inevitable consequence of a constitutional system that enables separate institutions to compete for the exercise of shared powers. But the struggle between the president and Congress to control domestic administrative and regulatory processes and to exercise authority over a wide range of national security matters has intensified with the increasing polarization of the parties. The Reagan administration’s effort to advance its conservative agenda throughout what it considered to be a politically hostile bureaucracy gained support from a theory of the unitary executive.4 That theory holds that the president, as the single head of the executive branch and constitutionally charged to “take Care that the laws be faithfully executed,” has broad authority to direct how executive branch employees perform their duties, and that Congress’s authority to check presidential actions is extremely limited.5 A stronger version of the theory legitimized a very aggressive and controversial assertion of the president’s unique and unchallengeable authority during the George W. Bush administration, particularly given seemingly permanent threats to national security after the terrorist attacks of September 11, 2001.6
Recent Democratic presidents have shown no affinity for the unitary executive theory, with good reason. While most scholars, the two of us included, believe that the theory is way outside the bounds of the Constitution and the framers’ intent, these presidents have not been reticent in claiming executive authority to take consequential, unilateral actions. In the face of strong opposition in Congress or an unwillingness or inability to resolve differences, presidents are naturally disposed to get done what they can on their own. President Clinton moved ambitiously to conserve public lands, protect Americans’ medical privacy, and create a welfare-to-work partnership. After the devastating Democratic defeat in the 2010 midterm elections, President Obama received many diverse recommendations for advancing a progressive agenda through executive actions.7 He has moved forward on a number of these fronts. A recent example: in reaction to the inability of Congress to reauthorize the No Child Left Behind Act, despite bipartisan support and the leadership of Education Secretary Arne Duncan, the Obama administration liberally interpreted its authority to grant waivers to states in order to reshape federal education policy.
Whether shifts in policy-making authority between and within the branches compensate constructively for the pathologies of polarized politics is a matter of contention, with positions often determined by which party or ideological perspective gains an advantage with a particular change. Even the Federal Reserve—easily the most important and successful delegation of authority by Congress—routinely elicits sharp criticism and (unsuccessful) efforts by individual members of Congress to alter or reclaim parts of its authority. That criticism became heightened in the 2012 campaign with the prominence of unrelenting Fed critic and Republican presidential candidate Ron Paul, and the embrace of his criticism by fellow candidate Newt Gingrich. But with a statute that keeps its funding and operations beyond the reach of normal congressional and presidential controls, the Fed steers monetary policy without harmful political interference. Paul and Gingrich notwithstanding, independent central banks with exclusive jurisdiction over monetary policy are widely considered essential components of modern economies. It is hard to imagine another area of public policy in which Congress would be willing to grant this degree of autonomy.
Congress has established independent regulatory agencies with an eye toward limiting the direct authority of the president. Most agencies (though not all) are headed by multimember boards or commissions such as the Federal Communications Commission, Federal Trade Commission, or Securities and Exchange Commission, whose members are appointed to fixed, staggered terms by the president and confirmed by the Senate. A president may appoint no more than a bare majority from his own party and may not remove members without cause. These agencies typically have administrative independence, such as submitting their budgets and legislative proposals directly to Congress without Office of Management and Budget approval and litigating in court independent of the Justice Department.
Presidents can influence but not control the agencies’ actions. (The same cannot be said of regulatory agencies embedded in executive departments. In a very controversial though entirely legal action, Health and Human Services Secretary Kathleen Sebelius decided in late 2011 to block the Plan B One-Step contraceptive pill from being sold to adolescents without a prescription. For the first time in American history, a cabinet secretary overruled a Food and Drug Administration drug-approval decision.8) Congress, on the other hand, retains substantial levers for control over independent agencies—confirming members, writing and revising statutory authority, approving budgets, and overseeing operations. Independence from the president serves as protection from political meddling in critical policy decisions that depend on a scrupulous review of scientific evidence. But it is less suited to adapting policy-making institutions to parliamentary-like parties.
Another form of organizational innovation is designed to overcome political obstacles when Congress is enacting necessary but controversial policy changes. The most frequently cited innovation is the Defense Base Closure and Realignment Commission (BRAC). It was designed to overcome the Defense Department’s political difficulty in garnering congressional approval for its recommended closures of outdated military installations that cost jobs to a member’s constituents. While Congress as a whole agreed on the need for reductions and realignments of bases (along with the budgetary savings), individual members naturally opposed those slated for closure in their own districts or states. They had a powerful electoral incentive to use every means to keep them open. BRAC set up a process whereby it presents Congress a list of facilities to be closed; Congress then has forty-five days to approve a joint resolution of disapproval to prevent implementation. The list begins with the Defense Department’s recommendations and is adopted with deletions and additions by a nine-member independent panel appointed by the president. Then, if the president accepts it in its entirety, it goes into effect unless rejected by Congress. Between 1988 and 2005, all five rounds of BRAC proposals produced major reductions and realignments of military installations.9
Many analysts have urged that BRAC be used as a model for dealing with budget deficits and debt. We earlier discussed Congress’s rejection of a bill to establish a bipartisan commission along these lines, after seven Republican senators who previously cosponsored the bill voted to sustain a filibuster against it. President Obama responded by appointing a similar commission by executive order, but it lacked the guarantee of a timely up-or-down vote in the House and Senate. The Simpson-Bowles Commission was unable to reach the supermajority called for in its rules for approval of a deficit-reduction package, although its co-chairs issued a report with the support of a majority of its commissioners. The report attracted much attention and the favor of many budget experts, but it was never put into legislative form and submitted as a bill for Congress to consider. The twelve-member super-committee created as part of the deal that ended the debt ceiling battle was guaranteed a timely, up-or-down vote on its recommendations. But no procedural fix could overcome the gulf between the parties on reducing the deficit, and it failed to reach majority agreement on a package of budgetary changes. That failure meant a set of smaller automatic sequestrations scheduled to take effect at the beginning of 2013.
This recent experience confirms our view that a BRAC-like mechanism is not well suited for resolving deep differences on the broad issues of taxes and spending, particularly with the Republicans so deeply dug in—substantively and politically—to their position on tax increases. But it might be possible to utilize similar mechanisms on more focused and limited problems to achieve what is widely acknowledged as necessary, but not through the regular policy-making process. This option is represented by the Independent Payment Advisory Board, which was established in 2010 as part of the Affordable Care Act and charged with the mission of holding Medicare spending within legislative limits. Like BRAC, the IPAB was created because Congress was incapable of standing up to health provider and senior lobbies whenever it confronted reforms to cut costs in the Medicare program. Once fully implemented, the board is to recommend to the president ways of reducing annual per capita spending on Medicare pegged to specific targets. The president in turn is required to transmit those recommendations to Congress for consideration under expedited procedures. If Congress fails to approve them or alternatives that achieve comparable savings, the board’s recommendations take effect and the Secretary of Health and Human Services must implement them.
The board faces major challenges—first to survive and then to function effectively.10 It faces a Republican Party determined to repeal, disable, or weaken the entire health-care law of which it is a part. Critics allege that the board would impose price controls, create “death panels,” and supplant congressional prerogatives. On the other side, statutes circumscribe the actual changes that it may recommend. The board’s recommendations may not “ration” health care; raise revenues, premiums, or cost sharing; limit benefits or change eligibility standards; or reduce payments to acute-care or long-term-care hospitals or to hospices before 2020 or payments to clinical labs before 2016. These limits are serious constraints.
If the Independent Payment Advisory Board survives, if it receives adequate resources to carry out its responsibilities, and if it is strengthened statutorily, it could establish a potentially powerful portfolio of cost-control instruments within Medicare and other public and private health-delivery and financing systems, thereby doing more to confront long-term deficit and debt problems than any other reforms under consideration. But those “ifs” are highly problematic in this polarized political environment. The institutional changes needed to cope with America’s serious governing problems face powerful resistance from the same political forces that exacerbate its difficulties in trying to govern effectively.