Author: John, Christian
Date published: July 1, 2011
The Framers of the U.S. Constitution anticipated, and, in fact, were counting on the possibility that, at times, as James Madison wrote in Federalist No. 51, "[a]mbition must be made to counter ambition."1 But is the Framer's constitutional design still relevant? In other words, in the modern era, is divided government good for the United States? It is not for three reasons: divided government leads to an unjustifiable weakness in government brought about by a lack of accountability; it produces legislative "gridlock"; and it contributes to a diminution of the expression of the popular will.
There are numerous reasons for one to believe that the United States benefits from divided government. Some political commentators and politicians maintain that it acts as a restraint on government, limiting party overreach by forcing politicians to compromise on important issues.2 Perhaps the most compelling argument made in favor of divided government is that it is more representative of the electorate since not all Americans identify exclusively with a particular party. As William Niskanen, chair emeritus of the Cato Institute, notes, "American voters, in their unarticulated collective wisdom, have voted for a divided federal government for most of the past 50 years."3 But can anyone prove that divided government actually produces better results?
The claim that a party, duly elected by the people to govern, needs to be balanced by a party rejected at the polls violates democratic principles. If the electorate votes overwhelmingly for members of a particular party to carry out a specific political agenda, it is absurd and a bit paternalistic to deny the public's wishes by forcing the victorious party to heed the demands of its opponents. Divided government generally refers to the division of the policy-making functions of government, but there are plenty of checks and balances elsewhere in the constitutional design of American governance to prevent government from going too far, too fast. The levers of power in the U.S. government are not merely concentrated in the presidency and Congress. The Supreme Court, the states, the Constitution, and the people all constitute centers of power that can "check and balance" the power of the executive and legislative branches of the federal government. For example, if Congress overreaches, it may be checked by a presidential veto. If both Congress and the president overreach, they can be checked by the Supreme Court. In addition, the states and the people have enumerated rights under the Constitution that limit the power of the federal government, thus preventing overreach by one branch of government over the other.
Even under unified government, checks and balances are exercised in accordance with constitutional provisions. Consequently, further division between the different branches of the federal government is not necessary, and could actually prove detrimental. Take, for example, the crucial role the president plays as both chief diplomat and commander in chief. In most areas of foreign policy, the president acts as the sole organ representing the United States with limited input from Congress. This is a good thing when one considers the alternative: How would American foreign policy be conducted if every policy decision was subject to modification or influence by 535 national legislators? The nature of international affairs requires that a president act quickly, often in secrecy, to present clear and unified policies that address international concerns. Even so, de facto unity in the formulation and conduct of American foreign policy still allows the electorate to hold their president accountable for diplomatic successes and failures. If this holds true for foreign policy, one must ask why divided government works in addressing domestic problems but not foreign issues?
Another argument advanced by those who support divided government is that it keeps the government, as Governor Haley Barbour (R-MS) stated in reference to President Barack Obama's health care initiative, from going "too far, too fast, too soon, too much."4 Still, it is important to ask whether radical change is necessarily a bad thing. The use of the term "radical" has a pejorative connotation. Often it is used simply to discredit the policy prescriptions of political opponents when, in fact, what is deemed "radical" may prove to be good for the country.
Too often in American history, substantial and wide-ranging reform has been needed and when such change occurred it invariably came about during a period of unified government. Such so-called radical changes include the New Deal, the Civil Rights and Voting Rights Acts, and the Great Society. None of these reforms would have happened had government been sharply divided. These examples challenge the notion that "radical" change is necessarily bad. In fact, without divided government, more substantial and useful change might take place.
Of course, divided government could prevent an "unwanted" radical change. Fortunately, the Constitution includes safeguards against such change, even when the same party controls Congress and the White House. Again, the existing system of checks and balances, short of divided government, would prevent these changes. The Supreme Court, through the power of judicial review, can declare legislation unconstitutional. States can drag their feet in implementing federal mandates that they deem unconstitutional. And failing that, under extreme conditions states can adopt constitutional amendments. When the courts adjudge changes to be unconstitutional or the entire nation evokes "buyer's remorse," radical change can be reversed.
A structure of separated powers, combined with divided government, will likely result in a weak government, one lacking in energy and void of ambition or direction as a result of quarrelling between opposing parties over presumably trivial matters. On such occasions, acute problems are simply ignored and the situation worsens. Regrettably, the possibility of prolonged divided government, which has always existed, has manifested itself more frequently over the last four decades. As political scientist Manabu Saeki points out, "scholars observed that common partisan control of the executive and legislative branches contributed to an effective government." But as divided government became more common in the 1980s, it "intensified inter-partisan conflicts between the two branches for electoral advantage."5 Thus, divided government has brought about a distraction in the body politic that diverts the attention of politicians from addressing issues of concern effectively in order to score points against political opponents. Consequently, as David McKay, a scholar of American politics and political economy, asserts: "the public [is] increasingly unhappy with the workings of government, and in particular the federal government . . . . [T]he separation of powers operating in an age of weak parties is as likely a culprit," responsible for "gridlock" and negative policies.6
But, then again, if divided government is what the people want, why should anyone try to subvert their will? Like Niskanen, one can argue that people intentionally "split their tickets," voting for one party to occupy the White House and the other to control Congress. But this does not seem to be the case. Political scientist Douglas D. Roscoe finds that "ticket splitting for most voters is ... an unintentional byproduct of the choices available to the voter, not a conscious decision to balance the parties or the result of sophisticated thinking about the relative strengths of the parties and the capacities of the branches "7 Ticket splitting may occur, but it cannot be readily explained as a conscious attempt by voters to buttress the system of checks and balances.
Rather than choosing divided government, voters actually choose the lesser of two evils. As Roscoe explains, voters often do not have the opportunity to cast their ballot for their ideal candidate, mainly due to the advantage of incumbency. The incumbent is experienced, well-connected, and well-financed, which greatly diminishes the "fighting chance" of political challengers. Thus, ticket splitting occurs "when voters cannot express their political preferences in an election because their 'natural' choice is under-funded and lacks experience." Consequently, ticket splitting "must be viewed as a product of the incumbency advantage."8
A more likely explanation for divided government is that it is a structural artifact of America's relatively non-competitive electoral system. Because members of Congress and the president are not elected in the same election cycle (the entire House membership faces an election every two years; the presidency every four years; and one third of the Senate every two years), there is structural bias in the Constitution toward divided government. In other words, different election cycles usually produce divided government because different electorates dominate each election cycle. General elections will attract relatively greater numbers of first-time voters (i.e., younger voters, minority or non-white voters) and urban voters to the polls. The last two election cycles offer good examples of this phenomenon. Here one finds a noticeable difference in voter turnout in the general elections of 2008 and the midterm elections of 2010. Whereas voter turnout was higher for minority and young voters in 2008, it was higher for older and white voters two years later.9 Due to dissimilar electorates, general and midterm elections produce different but not necessarily representative results.
Advocates of divided government believe that it is more representative of the electorate. This may be the most compelling argument for divided government. To validate this claim, one has to determine the composition of the electorate. The outcome of an election determines what represents the electorate, not a structural artifact of the Constitution. If one wants to know the will of the electorate, it is not sufficient to put two opposing parties in Congress and call the result of that experiment the will of the people. This argument falls flat both on the surface and in substance. The will of the electorate can be discerned through an election. In a democracy, only the results of an election represents the will of those people who are motivated to vote. Surely the electorate (and thus, the will of the people), is more than that. For example, current House Speaker John Boehner (R-OH) stated that in the 2010 mid-term elections, "the American people clearly repudiated what [Obama Democrats] had put forward the last two years."10 One could make such a claim, but it would be divorced from fact. Motivations change from one election to the next, as does the electorate (see graph on page 170).
Election results may represent the will of the electorate, but one election under dramatically different circumstances determined by a vastly different (and smaller) electorate does not offer sufficient evidence for understanding the overarching will of the people. There is a problem with full representation in elections. The electorate does not necessarily represent all of the people. Adding to this problem of representation is that the outcome of elections or legislation adopted by Congress is the will of the people. Separation of powers along with other constitutional mechanisms may be necessary, but for a robust democracy it is certainly not sufficient. Consequently, the result of elections should not be called the will of the people. Rather, the current political system is the result of constitutional design.
Another claim put forth by advocates of divided government is that in a unified government party overreach threatens the will of the people," as opposed to compromise, which better reflects the will of the majority.12 In preferring compromise over perceived party overreach, supporters of divided government believe that bipartisanship produces better policy results. They further contend that the public wants compromise, and that divided government produces long-lasting, bipartisan legislation secure from future attempts at repeal.13
Is splitting the difference necessarily a good thing? Generally, true compromise seems to produce watered-down, ineffective legislation.14 If two opposing parties actually agree on some statutory provisions, it is likely that the resulting legislation will have little or no effect on resolving the policy issue in dispute. If a good idea is proposed but is then diluted by compromise, what positive purpose does that serve? The idea may get lost in the compromise. And if bad legislation is proposed by one party but is made slightly better by the other, what good comes out of that situation? A half bad idea is still a bad idea.
Another problem with compromise is that it dispenses with accountability. Once the opposition party gets involved in shaping legislation, if things go wrong, no one is to blame.15 Would it not be better for the voter to see the fruits of bad legislation adopted by one party, and good legislation by the other and decide who deserves blame or credit for the bill with full knowledge of which party is responsible for the policy he/she prefers? Accountability, not some watered-down product of compromise, is the virtue of action under a unitary government. A party can express dissent whether or not it has power. In fact, dissent would be more frequent and create a clearer contrast when the opposing party is completely removed from power. Thus, in a unitary government the contrast between parties is easier for the voter to discern.
In American politics, overreach is possible only when the party in power enjoys an overwhelming majority, that is, a filibuster-proof, supermajority in the Senate, a clear majority in the House of Representatives, and control of the White House. Perhaps in those instances when the public and government are united in purpose, overreach is merely an expression of the will of the people.16 But in ordinary times, even with unified government, the opposing party can generally assume a position that can bring the gears of government grinding to a halt.17
To be sure, there are disadvantages to unified government, but its advantages far outweigh the flaws of divided government. First, unified government allows the public to hold a party accountable for the consequences of the policies it adopts. Under unified government, the party in power is unequivocally responsible for legislation enacted, and the outcome of an election becomes a referendum on the actions of that party. Second, unified government removes the headache of gridlock, thus allowing government to function more efficiently. Supporters of divided government might champion gridlock, but it often brings government to a standstill, limiting discussion on issues while subjecting essential legislation to partisan politics. This may prove quite damaging because the party out of power, if allowed to participate in the decision-making process, may be less inclined to support policies that could benefit the country than it would like to see a good policy fail (to the detriment of the country) if it reflects badly on the party in power. This has become a particularly acute problem lately because of the increasing frequency of divided government which has been accompanied by a significant rise in partisanship. Under unified government, gridlock is not an issue; the electorate will be well informed of the ruling party's objectives, which empowers voters to hold those in power accountable. This increases the quality of democracy.18
In sum, divided government is harmful to American governance. It creates more problems than solutions by causing gridlock and producing "centrist," watered-down legislation. It generates a political climate where gamesmanship takes priority over leadership. It further complicates an already complex process of rewarding and punishing political parties for the state of the union. Worst of all, the American voter has shown no preference for divided government. How can anyone remain convinced that divided government should be equated with good governance for the United States when all of the problems associated with it could be largely eradicated through a unified government that operates in accordance with constitutional principles?
1 Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: Mentor Books, 1961), 322.
2 See, for example, Julie Borowski and Dick Amery, "REINS Act: No Major Regulations without Congressional Approval," FreedomWorks.org, September 23, 2010, http:// www.freedomworks.org/blog/jborowski/reins-act-no-major-regulations-without-congress (accessed May 19, 201 1), 1-2; George F. Will, "November Election Results Will Vindicate or Undercut Obama," Washington Post, October 10, 2010, http://www.washingtonpost. com/wpdyn/content/article/20 1 0/ 1 0/08/AR20 1 0 1008043 1 5 .html (accessed May 19, 201 1), 2; Mitch McConnell, "I'm on Speed Dial Now," John King, USA, November 14, 2010, http://transcripts.cnn.com/TRANSCRIPTS/101 1/04/jkusa.Ol .html (accessed May 19,2011), 13-16.
3 William A. Niskanen, "A Case for Divided Government," http://www.cato.org/pub display.php?pub id=3088 (accessed December 13, 2010), 1-2.
4 Haley Barbour, "Obamacare is going too far, too soon, too fast, and costing too much," Washington Examiner, August 12, 2009, http://washingtonexaminer.com/op-eds/2009/08/ gov-halev-barbour-obamacare-going-too-far-too-soon-too-fast-and-costing-too-much (accessed December 13, 2010), 1.
5 Manabu Saeki, "Gridlock in the Government of the United States: Influence of Divided Government and Veto Players," British Journal of Political Science 39, no. 3 (July 2009):587.
6 David Mckay, "Divided and Governed? Recent Research on Divided Government in the United States," British Journal of Political Science 24, no. 4 (October 1994):534.
7 Douglas D. Roscoe, "The Choosers or the Choices? Voter Characteristics and the Structure of Electoral Competition as Explanations for Ticket-Splitting," Journal of Politics 65, no. 4 (November 2003): 1 160.
8 Ibid (both quotes).
9 Ezra Klein, "What Drives Elections," Washington Post, November 1, 2010, http:// voices.washingtonpost.com/ezra-klein/2010/1 1/what drives elections.html (accessed May 24, 2010), 1-2; Ezra Klein, "Democrats Lost Big Because Young Voters Stayed Home," Washington Post, November 3, 2010, http://voices.washingtonpost.com/ezraklein/20 10/1 !/democrats lost big because you.html (accessed December 9, 2010), 1.
10 John Boehner, "What Is GOP's Agenda?" John King, USA, November 4, 2010, http:// transcripts.cnn.com/TRANSCRIPTS/101 1/04/ikusa.Ol .html (accessed May 19, 201 1), 1.
11 "Will, "November Election Results Will Vindicate or Undercut Obama," Washington Post, October 10, 2010, http://www.washingtonpost.com/wpdyn/content/article/20 1 0/ 1 0/08/AR20 1 0 1 00843 1 5 .html (accessed May 19, 201 1), 2.
12 Borowski and Amery, "REINS Act: No Major Regulations Without Congressional Approval," Freedomworks.org, September 23, 2010, http://www.freedomworks.org/blog/ iborowski/reins-act-no-major-regulations-without-congress (accessed May 19, 2011), 1.
13 McConnell, "I'm on Speed Dial Now," John King, USA, November 14, 2010, http:// transcripts.cnn.com/TRANSCRJPTS/101 1/04/jkusa.Ol.html (accessed May 19, 2011), 13-16.
14 '"The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, though passed under a Democrat-controlled House and Senate, contained many concessions to Republicans. Democrats might have accepted compromise to gain quick passage of financial regulation reform. Some believed that the act would be strong enough to effectively reform Wall Street financial practices, some of which have been blamed for the recent financial crisis and economic recession. Several renowned economists, including Simon Johnson, the Ronald R. Kurtz Professor of Entrepreneurship at Massachusetts Institute of Technology, disagree. Johnson has expressed concern that the world's largest banks cannot be regulated effectively by the provisions of the bill. He argues that if one of those banks were to go bankrupt, the government lacks any legal authority to handle that situation. Another complaint against the bill is the failure to include effective derivatives regulation. Wall Street lobbying and Republican opposition thwarted that plan. The provisions in the act concerning derivatives 'watered-down or eliminated those requirements" that could prevent future implosions of the derivatives market. Simon Johnson, '"Citi Weekend' Shows Too-Big-to-Fail Endures," Bloomberg.com, January 17, 2011, http://www.bloomberg.com/news/201 1 -01-1 8/-citi- weekend- shows -to o -big- to- fail -endure s - commentary-bv-simon-johnson.html (accessed June 25, 2011), 1-3; Randall Smith and Sarah Lynch, "How Overhauling Derivatives Died" Wall Street Journal, December 20, 2009, http://online.wsi.com/article email/SB 1000 1420527487047 18204576 164708 1768 8220 IMvOiAxMDA5MDIWNDYvWi.html (accessed June 25, 201 1), 1-2.
15 In his criticism of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, public policy and finance consultant Richard Eskow maintains that "by using as an excuse to dilute the authority of regulators, nobody can really be blamed when things go wrong. [Compromise] diffuses authority and responsibility, leaving nobody in particular in charge of looking out for consumer interests." Richard Eskow, "No Accountability in NY or DC: $15 for Jobs, $20 Billion for Bonuses- and Dodd Still Wants to Compromise," Huffington Post, March 1, 2010, http://www.huffingtonpost.com/ rjeskow/no-accountability-in-ny-j b 481049.html (accessed June 13, 2011), 2. Rachel Maddow and Simon Johnson offer a similar assessment concerning the compromise that extended the Bush tax cuts. Both argue that the compromise was the wrong policy, and that such a move ties President Obama to President Bush, Democrat and Republican, to the same policy. Obama could blame Bush for the resulting debt from his tax cuts, and Bush and Republicans could take political cover in the fact that a Democrat-controlled White House and Congress extended the Bush tax cuts. Rachel Maddow and Simon Johnson, "The Rachel Maddow Show, MSNBC," December 7, 2010, http://www.msnbc.msn. com/id/40566739/ns/msnbs tv rachel maddow show (accessed June 13, 201 1), 5-6.
16 Instances of unified government were more frequent in the pre-Nixon era. The United States was mostly under unified government from 1921 to 1969, with the exception of the Eisenhower presidency. Since 1969, the United States has been under divided government, except for the periods 1977-1981, 1993-1995, and 2009-2011. Since divided government has become the norm in recent years, the possibility of overreach is quite low. During periods of unified government in the pre-Nixon era, legislation enacted by Congress and executed by presidents should be perceived as the will of the people due to the consistency of the people electing the same party to govern. See U.S. Government, U.S. Senate, "Party Division in the Senate, 1789-Present," http://senate. gove/pagelayout/history/one term and teasers/partydiv.htm (accessed June 13, 201 1), 9-16; U.S. Government, Office of the Clerk of the House of Representatives, "Party Divisions in the House of Representatives, 1789-Present," http://artandhistory.house.gov/house history/partyDiv.aspx (accessed June 13, 2011), 7-9.
17 "During periods of unified government, when one party controls the presidency and both houses of Congress, the minority party usually relies on parliamentary procedures to slow down or stop undesirable legislation favored by the majority. For example, in the U.S. Senate, there have been 1,249 cloture motions since 1950. Approximately twenty-four percent of all cloture motions filed since then have occurred during the last three Congresses (109M 1 1"1) when the Republicans have been in the minority. This is a stunning increase in the use of legislative maneuvers to stall legislation or produce a more desirable result for the minority party. A minority party can also stall government by assuming an unrelenting position that slows down government through the use of false amendments, filibusters, and other tactics. U.S. Government, U.S. Senate, "Senate Action on Cloture Motions," http://www.senate.gov/pagelayout/reference/cloture motions/clotureCounts. htm (accessed June 13, 2011), 1-2.
18 Under unified government in the pre-Nixon era, the overreaching policies of those governments were clear, as shown in the adoption of New Deal and Great Society legislation in the 1930s and 1960s, respectively. Similar policy packages have not been successfully adopted in the era of divided government over the past four decades. Rather, in recent times divided government has produced gridlock that has led to a government shutdown following a budget battle in 1995, the impeachment of President William Jefferson Clinton, the debate over extending the Bush tax cuts, and the budget battle of 2011. See Alan Fram, "Clinton Vetoes Borrowing Bill - Government Shutdown Nears as Rhetoric Continues to Rail," Seattle Times, November 13, 1995, http://community.seattletimes. newssource.com/archive/?date= 1 995 1 1 3&slug=2 1 52355 (accessed June 13, 2011), 1-2; Peter Baker and Helen Dewar, "The Senate Acquits President Clinton," Washington Post, February 13, 1999, http://www.washingtonpost.com/wp-sry/politics/special/clinton/stories/impeach02 1 399htm (accessed June 13, 2011), 1-7; Amanda Terkel, "Eric Cantor Opposes Compromise on Extending Bush Tax Cuts, Says Government Shutdown Will Be Obama 's Fault," Huffington Post, November 7, 2010, http://www.huffingtonpost. com/2010/1 1/07/eric-cantor-compromise-tax-cuts-obama ? 780029.html (accessed June 13, 2011), 1-2; David Rogers, "Hill Extends Stop-Gap Bill," Politico, October 17, 2010, http://www.politico.com/news/stories/1210/46569.html (accessed June 13, 2011), 1-2; Jonathan Bernstein, "Why Reaching a Debt Deal is So Hard," Washington Post, July 15, 2011, http://www.washingtonpost.com/blogs/plumline/post/why-reaching-a-debt-deal-isso-hard/201 1/07/15/gIOAjWvhGI blog.html (accessed July 25, 201 1), 1-2.