Dysfunctional Constitutional Reform

To review Stephen M. Griffin’s new book, Broken Trust: Dysfunctional Government and Constitutional Reform, is to envy his comfortable life within the academic university cocoon, a place where dissenting views fall safely within a very narrow range of well-mannered and moderate Progressive reasonableness.

Setting out to explain today’s concerns about dysfunctional government, the author, a law professor at Tulane, takes us through the thinking of Ronald Brownstein, Tom Friedman, Thomas Mann and Norman Ornstein, Laurence Lessing, Tom Allen, Robert Dahl (selectively), and most every other denizen of Establishment Left-land, carefully ignoring radical Leftism or—it would almost seem to go without saying—anything on the Right.

The only dissonant voice I caught was in a footnote citing the work of the legal scholar Randy Barnett.

All of Griffin’s authorities trace “the main source of dysfunctional government” to Congress. Under Republican control “they oppose anything President Barack Obama proposed” (italics in original). Indeed, this “uncontested fact” of governmental dysfunction is traced to an explicit Republican politics of obstructionism, which in turn is sourced to a specific 2014 speech on immigration by President Obama.

Griffin is so comfortable he can write confidently that he “wouldn’t have written the book unless I agreed with the authors just reviewed” but—as a law professor—he only faults his wise men (who are mostly political scientists) for not taking the argument all the way to decrying a failure that is “governmental and constitutional.”

Looking at the Constitution, he first dismisses as “simplistic” the idea that the Founders created its separation of powers because of a “distrust of government.” Would they have created a government at all if they so distrusted it? No, they wanted government to work, but more effectively. And besides, the real Constitution is much more than checks and balances. The way to evaluate a constitution is by judging the “normative adequacy of the legislation that is passed.” The righteousness of policy is the measure of a constitution. It is not necessary to then ask, whose norms do you mean? This is because Griffin only seeks “a relatively uncontroversial and consensual justification for fundamental reform.” All reasonable people will agree.

Actually, Griffin’s Constitution is not simply its written instructions for establishing the institutions of the federal government, or even its formal amendments, but includes what he labels its “constitutional order”—including court decisions but also statutes, and other governmental practices that affect policy. To his political science friends he concedes that his legal training puts him “far from being the sort of expert on electoral politics and the law of democracy which would make such an effort [for fundamental political reform] worthwhile.” But he proceeds to present such solutions anyway, especially for what he describes as the critical problem underlying dysfunctionality: the decline of trust in government.

Without trust, he argues, government cannot adopt even the uncontroversial policies needed for social and economic reform. His data show that trust is at its lowest level in modern times. But this cannot be from the policies themselves; after all, the people generally support the needed Progressive policies. Really the distrust must trace back to the constitutional order that shapes the policies that are adopted.

Thus the goal of constitutional renewal must be to “enable us to achieve the reform agenda” that the people already want but cannot get. The way to generate sufficient trust to do so is to give people a bigger say in how they are governed rather than allowing partisan politics to create blockages. Partially this requires organizing what he calls “a radicalized center” of supporters for Progressive reform. But granting more power to the people directly is the center of this book’s reform proposals. The author points to the early Progressive direct democracy reforms in California and the American West, such as the popular referendum, as the necessary guide to true reform.

He uses four problems or crises to assess the government’s constitutionally based dysfunction: the attacks of September 11, 2001; Hurricane Katrina; the 2007-2009 financial crisis; and increasing economic inequality. He concludes 9/11 was the fault of Congress because it allowed the intelligence agencies to be organized in a way that discouraged sharing information. The botched handling of Katrina was the fault of federalism because national, state, and local agency planning and responses overlapped with each other, causing damage and delay. The financial crisis was caused by “the general spirit” of overreliance on market mechanisms rather than more government regulation. Inequality is the fault of America’s informal, constitutionally supported “oligarchy run by and for the benefit of wealthy citizens.”

The most astonishing aspect of Griffin’s analysis is the absence of the executive in the causal chain of policy failure. He blames the market for what happened in 2007-2009, when the key decisions—like allowing mortgage derivatives and making subsidized “affordable” housing loans—were encouraged by executive decisions taken long before, and when all the key decisions after the crisis arrived were made by the U.S. Treasury and Federal Reserve without waiting for Congress to pass new laws. When it did pass TARP, Treasury ignored that law’s provisions and went in a very different direction.

In assessing the Katrina response, Griffin finds a constitutional angle by citing journalist David Broder on the fact that the Constitution provides no means to coordinate local and national governments. What he ignores is that the Constitution gave most of these powers to the states, without national involvement, adherence to which principle would have prevented the overlapping responsibilities and impeded the monstrous overgrowth of bureaucracy. He blames Congress for 9/11 intelligence failures in spite of mentioning offhand that the Department of Defense (last known to be in the executive branch) opposed intelligence reform. He even concedes: “At first glance, turning to Congress after an apparent massive failure in the executive branch might seem surprising.” Well, yes, it does.

Throughout Broken Trust, the author promises that direct democracy is the means to increase popular trust and cure dysfunction. He spends his whole penultimate chapter extolling California’s and other western states’ populist reforms—the referendum, recall, and initiative. Yet, when he finally rolls out his proposed solutions, they don’t turn out to be very populist.

The first one he offers is the creation of boards of experts to oversee Congress, with the goal of broadening parochial legislative viewpoints, overcoming congressional sensitivity to interest group demands, enhancing their low levels of expertise, and breaking through the politicized deadlock on Capitol Hill. He proposes “permanent investigative commissions” to oversee Congress and manage the electoral process. “Superpolitical regulators” would be “staffed by appointed experts rather than elected officials,” the latter of which would not even be “permitted to influence the new superpolitical regulators.” It is not clear who would appoint them but presumably they would not be “the people” but individuals like Griffin and his friends.

To give his proposals what he calls “a populist cast,” he calls for “ordinary citizens [to] serve as a check and balance” on the whole constitutional process. Yet, after all the build-up to giving ordinary citizens more authority, out of the blue comes the statement that he “instinctively shares” experts’ worries about “public opinion getting out of hand.” And then, remarkably enough, he rejects the central populist reforms, the initiative and recall! He finds ballot initiatives “far too nondeliberative,” mentioning that they have resulted in inflexible tax limitations and civil unions rather than gay marriage (policies presumably outside his Establishment Left consensus).

What is proposed instead is a referendum-type system based upon “deliberative polls” that pose questions to ordinary citizens nationwide in order to glean their policy preferences. Proposals based on such canvassing would be more rational than congressional actions, since the polls would “be developed under the friendly nonpartisan auspices of nonprofit organizations, philanthropic foundations and universities.” While such proposals would have great force, Congress and the Supreme Court would at least have to formally approve recommendations.

This book basically updates John Dewey’s Liberalism and Social Action (1935), with its view of democracy as being driven by “friendly nonpartisan” experts who obtain public input but actually make the decisions themselves. Griffin gives his ideologically friendly intellectuals a strong role in setting public opinion, come to that—it is the experts who are going to design the questions in the deliberative polls, and write the reports for the transpolitical institutions to guide Congress. As I wrote in the professional journal Polity many years ago,[1] how such questions are phrased goes a long way in determining the answers. Since Griffin assumes he and his friendlies know what uncontroversial policies are required, it should be easy for these nonpartisans to reverse-engineer the thing and come up with apt poll questions.

Indeed Griffin reprises Woodrow Wilson’s classic article, “The Study of Administration,”[2] regarding the need for a greater role for executive experts in preference to legislators and those who put them in office—but without citing Wilson and mostly ignoring the executive branch. He does mention the nation’s top public administration expert today, New York University Professor Paul Light. Unfortunately, he quotes Light’s statement to the New Orleans Times Picayune that having a federal system complicates decision-making. The statement is indisputable, but Griffin should have read Light’s own writing, which concludes that the national government is so buried in red tape that it can no longer guarantee faithful execution of its laws.

A Light-led National Commission on the Public Service report found in 2003 that the national bureaucracy had “too many decision-makers, too much central clearance, too many bases to touch, and too many regulators with conflicting agendas,” making accountability “hard to discern and harder still to enforce.”

Rather than lifting a quote from a newspaper, the good law professor should be sentenced to read all three National Commission reports so he and his friendlies can be exposed to the fact that we now have a century of evidence that Dewey and Wilson’s early conjectures about bureaucratic administration and expertise were, to put it mildly, overly optimistic.

Indeed, the executive overreach and normative arrogance that deeply embedded Dewey-ite and Wilsonian doctrines have encouraged over the decades—doctrines assuming the superiority of the experts’ skills to the “simplistic,” balanced constitutional government created by the Founders—are what have probably caused much of today’s lack of trust in government.

[1] Donald Devine, “The Problem of Question Form in Describing Public Opinion,” Polity (Spring, 1980).

[2] Woodrow Wilson, “The Study of Administration,” Political Science Quarterly (November 1, 1886).