Defending the Consensus Constitution

President Biden has argued that one reason to pass his Build Back Better legislation is to show that democracy can be effective. Lest this kind of argument be dismissed as simply an example of political special pleading, thoughtful commentators like Richard Pildes have recently argued that democracy must indeed prove itself effective by passing the national agenda of a party with unitary control of government. Otherwise, people may become more polarized because of the perception of democratic failure, and they may turn against democracy itself. He reasons that the principal danger for modern democracy is that authority has become so fragmented that effective government may no longer be possible.

But this argument puts too much faith in evanescent majorities acting through a national centralized government as an effective, rather than a counterproductive, force for societal change. The people are fickle, and elections are thus an imperfect measure of the policy goals they desire, let alone the effectiveness of those policies.

The genius of the American system is that the Constitution fragments power in a manner that makes for stability, more carefully considered policy, and more liberty. It does so both through its separation of powers (including bicameralism) and through federalism. Such fragmentation requires substantial consensus before making changes at the federal level. That consensus requirement, in turn, permits states to implement different social policies, allowing for greater experimentation and evaluation of social policy before it is imposed on the nation. Constitutional fragmentation ultimately protects our liberty by creating a high hurdle for national decisions that might curtail it.

Build Back Better in its current form is failing because it does not enjoy that consensus support. It is true that the Democrats control both the House and the Senate, but they do so by the narrowest of majorities. In the Senate, they depend on the vote of the Vice President to break ties. In the House, their majority is five—the lowest in the post-World War II era. Political scientists have long noted that, under our system of governance, passing transformational legislation of the kind envisioned by Build Back Better requires either large partisan majorities or significant bipartisan buy-in. Build Back Better has neither, making almost every Democratic Senator or member of a Congress potentially a decisive holdout.

That is a recipe for poor, parochial policy, even if Build Back Better could pass. An excellent example of the power of holdouts to demand policies that even the party passing it cannot defend is Build Back Better’s restoration of state and local tax deductions. While most Democrats campaigned for more taxes on the wealthy, the restoration of SALT would benefit the wealthy. But that is the price for securing the votes of a few Democrats who hail from marginal districts in high-tax states.

But given that a party is a coalition of different interests, it is almost impossible to pass such transformational legislation even with legislative kickbacks. Joe Manchin has different values from Alexandria Ocasio-Cortez. And they better align with his constituents. That is why attacks on him from the left provide him a political boost.

As Lyndon Johnson once stated, the most important ability in politics is to know how to count. It is hardly surprising that Franklin Roosevelt could pass New Deal legislation with the enormous majorities he had. Even the less far-reaching Affordable Care Act depended on majorities much larger than the Democratic Party enjoys now.

And beyond the raw numbers in Congress, it is hard to argue that Biden has any great mandate for social transformation. The most important reasons he was elected were, first, that he did not have the divisive personality of Donald Trump, and second, that voters thought he would better handle the pressing crisis facing the nation—the pandemic. It is standard for close elections to turn on personality or ephemeral issues. That is why simply winning does not provide a democratic foundation for fundamental social change and why our constitutional system is wise to create obstacles to such change without broad consensus. Indeed, Biden’s weak mandate was clear from the results of the election in which he became President. His party lost 13 seats in the House of Representatives. Preventing elections with ambivalent outcomes from reshaping the nation justifies our consensus-requiring Constitution.

The inability to enact such fundamental change also allows states to compete with different visions of what that change should be. Unlike at the national level, the Democratic Party enjoys very substantial majorities in some states. Thus, California can experiment with highly redistributionist policies and substantial intervention into economic freedom, like imposing a high minimum wage. Texas’s large Republican majorities can establish a different model that seeks to speed up economic mobility through zoning laws that permit cheap housing and employment laws that make labor markets more flexible. Experimentation is one of the fruits of fragmentation. The learning gained from different states is a positive spillover for politics around the nation.

A consensus political process unites rather than divides the citizenry because, in a world with consensus requirements, citizens are more likely to identify with the polity as a whole instead of seeing themselves as part of an embattled minority waiting for its turn to rule.

The need for consensus to pass far-reaching laws at the national level has other advantages. Foremost among them is the promotion of stability. James Madison worried that democracy could prove unstable, as one group of leaders replaced another and changed the laws in fundamental ways. Legal stability is an important foundation of liberty because individuals can only plan for the future if they have confidence in the legal framework within which they operate. It is also the catalyst for growth in a commercial republic. Businesses can often adapt even to suboptimal rules. It is much more difficult to tolerate government by whiplash, where one set of laws passed by a narrow majority is superimposed over or wholly replaces the previous set.

Pildes worries, however, that the inability of democracy to deliver may lead to more polarization and cause citizens to give up on democracy. But it is more likely that legislation passed by bare majorities will abet polarization in the long run because it will lead to policy fluctuation from one extreme to another, angering the extreme that is not in power and alienating many moderates from the political system.

As Mike Rappaport and I have emphasized in other work, polarization has a dynamic quality because it also includes the development of an uncompromising mindset, one in which each side distrusts the other and comes to distrust compromise itself. This sensibility moves beyond substantive policy disagreements into identity politics or tribalism, in which an “us versus them” mentality flourishes and each side views the other as an existential threat to be destroyed rather than engaged with. Uncompromising partisans may use past cleavages to polarize new issues, expanding the “us versus them” mentality into new policy areas. Thus, it is particularly important to consider structures that encourage compromise. Requiring a consensus before passing legislation as encouraged by our bicameral system, including the filibuster, does that.

Indeed, if the government can enact far-reaching changes to society without a consensus, citizens will naturally come to regard one another as threats whose power must be curtailed, if not eliminated. Under those circumstances, the left and right will try to attain a majority, however narrow, to enact their most extreme agenda before the other side does in the hopes that this agenda will permanently disempower their opponents. In contrast, a political structure that requires wider agreement necessarily leads to a legislative agenda that appeals to a broader range of citizens

A consensus political process unites rather than divides the citizenry because, in a world with consensus requirements, citizens are more likely to identify with the polity as a whole instead of seeing themselves as part of an embattled minority waiting for its turn to rule. With more compromise, we would see each other less as targets or threats and more as partners in a common civic enterprise.

Pildes is concerned that modern society itself is more socially fragmented, making it harder for democracy to deliver. No longer is the West divided simply between right-leaning parties favorable to business and left-leaning parties of the industrial worker. Instead, we have all sorts of diverse interests from environmental to ethnic to sexual identity interests. In proportional parliamentary systems, that social fragmentation leads to a multiplicity of parties, and in a two-party system like ours, it leads to a multiplicity of factions within the parties.

But even if it is true that our society is more socially fragmented, that social fragmentation does not reduce the need for our Constitution’s consensus model. Factionalized parties are often even less likely to produce legislation that is good for the whole. Instead, empowering narrowing majorities in a socially fragmented world would tend to result in so-called “Christmas tree legislation” that has many ornaments that shine brightly for only a few. In contrast, consensus legislation would force politicians to press for ideas that could have more diffuse benefits, like policies that are both friendly to economic growth and the environment.  As the number of votes required for legislative action increases, Christmas tree legislation is likely to collapse under its own weight as the cost of satisfying more and more legislators’ parochial demands goes up.

The failure of Build Back Better, at least in its more radical forms, can be criticized as a failure of democracy. But democracy so conceived is foreign to the Constitution of checks and balances that our Founders bequeathed us.