Another book addressing the problems of administrative law, this time from a political-historical view of how the separation of powers has changed in practice over the years. Short version: the weakening of national parties has led to an atomized Congress, and the executive branch agencies step into the vacuum of power. We’ve exchanged corruption via political parties for corruption via the so-called experts running the alphabet soup of federal agencies, and in the process turned too much power over from “the parliament” to “the Crown.”
A More Perfect Congress
The Once and Future King: The Rise of Crown Government in America, by F. H. Buckley (Encounter, 424 pp., $27.99)
I watched the first two seasons of House of Cards while teaching courses on the development of Congress and the history of political parties in America. As I watched, I could not help but be skeptical of the way the political process was portrayed: Frank Underwood is a one-man show, a member of Congress who can move the entire assembly through his artful deal-making and threats.
My response: “If only!” We might actually have a better political process if mythological creatures like Frank Underwood existed. At least Congress would move; as it is now, there is a dearth of leadership in our legislative branch and, consequently, we have gridlock and inaction.
The history of Congress helps us to see this in perspective. From the Civil War to 1910, very powerful political parties and their leaders dominated the government. The speaker of the House chose committee members and chairmen, controlled the Rules Committee (and therefore the legislative agenda), and used his power of recognition to control debate in the House. He set the agenda and maintained control over party members, and the result was an efficient and responsive (if rather corrupt) political system, since the speaker was accountable to and spoke for the party as a whole. Joe Cannon, the speaker they called “czar” at the turn of the century, was the last real Frank Underwood to walk the halls of Congress (with LBJ as a partial exception).
The greatest immediate effect of the Progressive movement in the early 20th century was the weakening of political parties as institutions that managed conflict and allowed a national majority to rule efficiently. The Progressives understood that if a modern administrative state was to be established in America under the leadership of a powerful executive, the strength of parties and Congress would have to diminish. Pushing for direct primaries (rather than nominating conventions) and instituting a professional civil service (rather than using party patronage) would revolutionize the political system.
The chickens are coming home to roost, and today we see how the decline of parties and congressional leadership paved the way for the modern presidency and administrative state. Professor F. H. Buckley’s new book is the best recent description of this phenomenon and why it matters.
Buckley’s book contains two central theses. The first is that America’s dedication to separation of powers is inconsistent with the intent of its founders, who envisioned a government “with a weaker separation of powers between the executive and legislative branches and with very different ideas about presidential elections.” The result would have been a more efficient, parliamentary-style system. Alas, the democratization of presidential elections moved us from the Framers’ “second constitution” of “congressional government” to our “third constitution” of the separation of powers.
In setting forth this first thesis, Buckley examines the evolution of the British, Canadian, and American constitutional systems. All three resulted in what he calls “Crown government” (in the case of the United States, this is the “fourth American constitution”). “What more than anything explains the move toward Crown government” in these countries, he writes, “is the growth of the regulatory state, where the role of legislation has diminished and that of regulatory rule making has expanded, with the regulators responsible to the executive branch and not to the legislature.”
The second thesis is that, in this brave new world of executive government, parliamentary systems “better protect political freedom”: “An American is apt to think that his Constitution uniquely protects liberty. The truth is almost exactly the reverse.” Because presidential systems are more likely to slide into despotism than parliamentary systems, we are actually free in spite of our Constitution, not because of it.
In support of this thesis, Buckley notes that “parliamentary governments, which lack a separation of powers, rank significantly higher on measures of political freedom” than presidential systems. Moreover, prime ministers are monitored more vigorously by legislatures and are constantly dependent on a legislative base for support (rather than elected for a term that they are essentially guaranteed to serve). Most important, parliamentary systems contain fewer checkpoints and therefore less gridlock than presidential systems. The checks and balances are actually “Madisonian Infirmities” that render the legislative process inefficient and induce us to turn to a dominant executive for leadership.
In short, Buckley argues, our endemic political problems stem from a cause we tend to think helps protect liberty: the separation of powers. If Crown government is inevitable, we would be better off with a congressional system rather than a separation-of-powers system. And a congressional system would also be more in line with the Framers’ intent.
Buckley’s second thesis does not hinge on his analysis of the Constitutional Convention. This is important, because Buckley’s interpretation of the Convention is somewhat questionable. While there is some evidence that some Framers wanted a more legislature-centered political system, some of them changed their views at the Convention (James Madison) and others simply lost (Roger Sherman, George Mason). The Constitution as drafted and ratified did establish an independent executive, and this was not an aspect of the Constitution that its supporters regretted.
Buckley’s thesis about the relative merits of parliamentary versus presidential systems stands on its own as a very important contribution. He points out the deficiencies in pure separation-of-powers systems and calls us to consider the advantages of the parliamentary approach. We should consider the advantages of both systems and how they might be combined — as they were in the late-19th-century era of strong political parties and congressional leadership.
The most obvious feature of parliamentary systems is the strength of their political parties in the legislature. “Compared to American political parties, parliamentary parties are much more under the control of the party leader, whether he be the prime minister or the leader of the Opposition,” Buckley observes. By contrast, in America, John Boehner can merely hope for support from his own political party, and sometimes has to resort to begging members of the other party for their votes.
In our system, legislators are not reliant on their parties, but “have their own power base, separate from the national party,” because they are elected in districts with local interests rather than a national election. Their impulse is to follow prevailing opinions back home rather than the national interest, which might be imposed by leaders of a strong national party. Instead of being obedient to party leaders implementing a national agenda, today’s Congress is decentralized and atomistic, pursuing each district’s local interests (which tend to favor increased spending and cronyism). Coordinating all of these independent legislators without any sticks or carrots turns out to be a thankless and futile task. Into this leadership vacuum, the president is all too willing to leap, assuming the persona of the only adult in the room, the only person who looks after the American people as a whole.
The best way to avoid this imperial presidency is to rebuild Congress’s independent capacity. Congress’s job is to legislate for the national interest, but no single member’s constituency is the nation as a whole. “What is needed,” Buckley argues, “is a grand coalition — a coalition of the whole of the voters — that will vote for the general welfare, rather than the narrow interest of individual congressional districts.” Such a coalition would be a national political party with leadership capable of implementing policies in accordance with its national coalition.
A restoration of party leadership in Congress would achieve this objective. Instead of turning to an imperial president, we would have adequate leadership in the legislature. Instead of a decentralized Congress that promotes narrow and local interests, there would be a supervising power that would advance a national agenda. The result would be a much more efficient system that is accountable to national majorities.
Our administrative state feeds off of the inability of the national interest to trump the narrow and special interests that have access to the network of congressional committees and administrative agencies supervising federal programs. Congressional leadership stemming from a national party and representing a national majority is the best way to counteract this trend.
We can’t — nor should we desire to — eliminate the separation of powers in our political system. It is an important mechanism for preventing tyranny and protecting local and particular interests. For all its advantages, however, it does give rise to problems: an uncoordinated legislative process, the ability of a minority to obstruct a legitimate majority party, and an inevitable shift to presidential government. For a century, we offset those problems in the separation of powers by using strong party government to coordinate and lead the legislative process. Restoring some semblance of party leadership and coordination will allow us to retain the separation-of-powers system we cherish while limiting its deficiencies.
One evening, I stumbled across another version of House of Cards, one that takes place in Britain rather than America. As I watched the first episode, I was amazed by the fact that the British version follows nearly the exact same plot as the American one. But whereas the power wielded by House majority whip Frank Underwood is implausible in the American system, chief whip Francis Urquhart’s actions make sense in the British parliamentary system, with its strong leadership and party unity. The writers of the American version failed to adjust the plot to fit the particular characteristics of our legislative system. While the American version certainly does not paint efficient congressional leadership in a positive light, it is worth noting that a lot more gets done in Frank Underwood’s mythical Congress than in the actual one.
– Mr. Postell is an assistant professor of political science at the University of Colorado–Colorado Springs. He is a co-editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.