With the government shutdown now in its second week and the risk of an unprecedented default looming, pressure should be building on Speaker of the House John Boehner to bring to the floor a no-strings-attached continuing resolution (CR)—which would end the shutdown—and a no-strings-attached bill raising the debt ceiling. Indeed, the real mystery is why the Speaker has not done so already, given that a majority of the House might well vote in favor of such bills.
How, in other words, has a minority in the House been able to hold the country and the global economy hostage? The answer is partly a matter of ideology and politics, but also partly a matter of constitutional structure. As I shall explain in this column, our Congress was not designed to work with political parties and has only been awkwardly retrofitted to do so.
The Tea Party and John Boehner Are to Blame for the Immediate Crisis
Make no mistake: Blame for the current crisis belongs squarely with Tea Party Republicans and other Republicans acting in concert with them for fear of Tea Party primary challenges. As John Dean explained in his column last week, these Republicans have rejected a fundamental premise of democracy: When your political opponents outvote you and their legislation has been upheld in the courts, you accept the majority’s judgment, unless and until the People give you a majority sufficient to repeal the laws you oppose. Instead of graciously accepting defeat and waiting to take their case back to the People in the 2014 election, the minority Tea Party faction is denying Americans basic government services and threatening to blow up the global economy unless the rest of Congress and the President support measures that they, in fact, oppose.
As reprehensible as these tactics are, they raise an obvious question: How is the Tea Party minority able to get away with it? Here too, it is easy to find the immediate culprit—Speaker Boehner. If Boehner were to bring to the House floor a clean CR and a clean bill for raising the debt ceiling, each would potentially be supported by a majority of House members: just about all Democrats and enough Republicans who are not beholden to the Tea Party faction to create a bipartisan majority.
Boehner has thus far refused to bring clean bills to the House floor because of the so-called “Hastert Rule.” Named for former Republican Speaker Dennis Hastert, the Hastert Rule says that a Speaker will only allow a vote on a bill that has the support of a majority of the majority party. But the Hastert Rule is not really a “rule” at all. It is not codified anywhere, and in fact, Speaker Boehner himself has violated it in recent memory: once in the “fiscal cliff” deal; another time to provide Hurricane Sandy relief; and a third time to reauthorize the Violence Against Women Act. On each occasion, the relevant law was enacted with overwhelming Democratic support and the support of a minority of Republicans.
Leaked intra-Republican discussions last week indicated that Speaker Boehner would violate the Hastert Rule to avert a default before the debt ceiling is reached next week. That is good news if it turns out to be true, but following the leak, Speaker Boehner tried to walk the plan back, declaring once again that neither a clean CR nor a clean debt ceiling increase would pass the House. Moreover, even if, when push comes to shove, Boehner relies on the votes of Democratic House members to fund the government and to raise the debt ceiling, we would still be left with the question of why he has permitted the Tea Party faction to hijack the House agenda for so long.
The short answer is party politics. Over the long run, to retain the Speakership, Boehner needs the support of a majority of Republicans. If he alienates the Tea Party faction, he risks losing their support and thus his Speakership.
But that short answer only raises the question of why our system of government permits a minority faction to exercise so much power in the first place. The longer answer is that political parties interact with our Constitution in strange ways.
A Party-Less Constitution in a World of Political Parties
The Framers of the U.S. Constitution disliked political parties, which they saw as promoting “factions” or what today we would call “special interests.” As a predictive matter, the Framers’ understanding was flawed. For most of our history, American political parties have been umbrella organizations that combine multiple different interests and factions, rather than representing individual factions. Nonetheless, flawed or not, the Framers built the Constitution on the assumption that there would not be political parties.
That assumption proved naïve almost immediately. Although George Washington was a consensus choice for President, by the end of Washington’s second term, the competitors to succeed him organized into two political parties: the Federalists, headed by John Adams; and the Democratic-Republicans, headed by Thomas Jefferson. In 1796, Adams won and Jefferson came in second, so under the rules set forth in Article II of the Constitution, Adams became President and Jefferson became Vice President. That arrangement did not work well, as Adams and Jefferson held very different ideas about governance.
The election of 1800 did not prove any more successful. This time, Jefferson and his Democratic-Republican running mate, Aaron Burr, tied for the most Electoral College votes under a system in which electors each cast two votes for President, but none for Vice President. It then took the lame-duck House of Representatives 36 ballots to finally select Jefferson as President.
The Twelfth Amendment—which recognizes that a Presidential and Vice Presidential candidate run as a ticket—fixed Article II’s failure to anticipate the rise of political parties. The resulting Presidential selection system is hardly perfect, having produced serious post-election disputes in 1876 and 2000, but at least the formal amendments to the Article II procedure take account of political parties.
By contrast, Article I of the Constitution—which creates the rules for Congress—has never been adjusted to take account of political parties. The result is a mismatch between the Framers’ vision and political reality.
How Parties Disrupt Checks and Balances
By contrast with parliamentary systems of government in many other parts of the world, the American Constitution creates a system of separation of powers in which the respective branches are meant to act as checks on one other—at least to some extent. As Justice Robert Jackson famously stated in The Steel Seizure Case, “while the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.” Jackson’s words reflect the Framers’ vision: Set the branches of government against each other insofar as necessary to check one another, but not so much that they paralyze governance.
In fact, however, political parties interact with separation of powers so that Congress, by turns, plays either too little or too great a checking function. As law professors Daryl Levinson and Richard Pildes argued in an important 2006 Harvard Law Review article, during periods of unified government—when one party controls both houses of Congress and the Presidency—our system works very much like a parliamentary one, with the President finding support for his agenda in the legislature, while in times of divided government, separation of powers works all too well, for then a determined opposition can create gridlock.
Tea Party-affiliated Republicans are now exploiting the latter dynamic. Tea Party Republicans do not comprise a majority of the House. Depending on how one counts, they probably do not even comprise a majority of the Republican Party. But by tacitly threatening to withhold support for the Republican Party leadership, they can exert disproportionate influence.
To note that a minority faction can frustrate democracy is not to say that our system of government is necessarily flawed. Some people think that robust separation of powers in periods of divided government is healthy. They see gridlock as liberty-preserving. Meanwhile, other systems of government also sometimes enable small factions to hold the majority hostage. In particular, parliamentary systems with party-list or proportional representation and low representation thresholds can empower small parties to leverage their position as coalition partners into policies that the majority may disfavor.
But whatever the relative strengths of various forms of legislative representation may be, the Tea Party Republicans are acting in a way that likely would have horrified the Framers. In Federalist No. 10—one of the greatest American contributions to political science—James Madison argued that when working correctly, Congress would aggregate the popular will through constantly shifting coalitions of different interests, that is, through constant compromise.
But now, by exploiting their leverage in the Republican Party to insist on their fixed ideological vision, the Tea Party faction is taking advantage of the Framers’ blind spot about political parties. Do not be fooled by the tri-corner hats and the Revolutionary-era name: the Tea Party is working to destroy the system the Framers envisioned, not to restore it.