Ilya Somin reconsiders federalism and the protection of individual freedoms.
Jonathan Rauch of the Brookings Institution, a dear friend and one of the nation’s most insightful and thoughtful political observers, explains in a provocative Atlantic piece “How American Politics Went Insane.” The short answer, more fully elaborated in Jonathan’s earlier e-book, is disintermediation—that is, the demolition of political structures and mechanisms that, in a system of divided powers, make politics work and enable “middlemen” and power brokers to protect the system against crazies. Primaries and campaign finance reforms have weakened the parties. The destruction of the seniority and committee system has disabled Congress from legislating even when a (latent) consensus does exist. “Open government” reforms have constricted the space that is needed for political bargaining. The “pork” that once greased the system has mostly disappeared. Over time, the institutional immune system has collapsed. The ensuing chaos has produced further public disaffection and populist agitation against “the establishment.” It’s a feedback loop, and not a good one.
I agree with much of the analysis, and I’m largely on board for Jonathan’s meliorist reform suggestions (bring back pork; strengthen the party apparatus or apparati). The ground of agreement is that we’re both institutionalists at heart. E.g., Jonathan’s analysis suggests that the culprit du jour, “polarization,” is largely a consequence rather than a cause of our predicament. That’s probably right. Still I wonder whether Brother Rauch’s riff is the whole (institutionalist) story. For want of a compelling counter-, complementary, or complete story, I offer three questions to noodle over.
Situationalism. You want to think not just as an institutionalist but also as a constitutionalist. The way Jonathan comes at this: the (Madisonian) Constitution sets up rival power centers but doesn’t tell you how they’re supposed to cooperate and generate output. That’s where parties, committees, etc. come in. That’s right, but only up to a point or rather two. First, the lack of coordinating devices is a constitutional design decision, not a hole or oversight. (The constitutional point is to make ordinary politics possible, not to manipulate it this way or that under circumstances you can’t foresee.) Second, the Constitution—in its structure, and as elucidated in The Federalist—is very clear on a crucial institutional point that ought to matter to Jonathan Rauch. “Our most pressing political problem today,” he concludes, “is that the country abandoned the establishment, not the other way around.” That collapse into a cliche and pablum (What country? What establishment? How does one “abandon” the other, and how does that differ from the premise of mutual distrust that underpins the entire system?) might have been avoided by engaging a constitutional thought: liberal democracy (“republican government,” as the Founders called it) demands some slack between the people and their agents.
The task, then, is to ensure the right kind and amount of agency slack and then to guard against its abuse. Nowadays, though, there is no slack between us and our elected agents. They’re perfectly monitored, 24/7, and they’re easily “Cantored” or otherwise punished for going off the reservation. But it’s hard to convince folks to just surrender the (by now, highly institutionalized) monitoring devices they’ve built up—all the more so because “the establishment” has in fact made a big mess of things, and still more so because the “auxiliary precautions” that once incentivized our institutions to monitor each other have pretty much fallen into desuetude. (E.g., Congress no longer holds hearings because all the committees are going to get is a snow job.)
Bureaucracies. Jonathan’s analysis and prescriptions focus on Congress and parties. That’s a big piece of the puzzle but it’s, like, so 19th century—the century of parties and courts. The 20th century, in contrast, has mostly been the century of bureaucracy. It doesn’t really appear in Jonathan’s picture but I think it ought to: it’s the actual “establishment.” Even if we could somehow revitalize the parties and re-enable Congress, executive agencies will still run the show. (More in a sec.) The traditional reason for cutting agencies some slack was “expertise” and partial insulation from partisan politics. Modern agencies, though, are the President’s attack dogs, and they‘re expert at regulating by offering deals you can’t refuse. In the absence of effective congressional or judicial oversight, the “open government” reforms Jonathan laments are often the only means of exposing flagrant abuse at the IRS, the EPA, the FCC, and so on through the alphabet. So how does the Rauchean program shake out in that context?
Expectations. If you want to make room for transactional politics, Jonathan Rauch explains, you have to re-parochialize Congress and re-empower the parties: pork, backroom deals, the works. That’s true but effective, I suspect, only over some range. Parties and parliaments are pretty good at negotiating who gets what. In that context our representatives can cut interest group deals and make them stick. Even the bureaucracy problem becomes manageable. E.g., in the 1950s AT&T got its long-distance monopoly and local carriers got their subsidies, and no FCC bureaucrat could unravel that bargain. The arrangement was stupid but stable. However, parties and parliaments are not good at many other things.
They’re absolutely awful at “values” politics (which is why national compromises in that domain are imposed by the Supreme Court, not Congress). They lack the capacity to govern local, quotidian transactions (which is why bathrooms, student dating behavior, and mud puddles are governed by poorly monitored bureaucracies). And they keel over when vast popular majorities hold intense but (time-)inconsistent preferences, as when 102 percent of eligible voters want (1) a gargantuan welfare state and (2) not pay for it. In that predicament the most transaction-minded, party-dominated legislature will kick the problem down the road, or perhaps to a central bank. This happens in many advanced democracies, including quite a few whose institutional pathologies differ from ours.
Aspirational values, micro-concerns, debt-financed entitlements: that just about covers the waterfront. Maybe a more transactional, parochial politics would facilitate consensus on these issues. But it might also produce more agitation and, in Jonathan’s phrase, “insanity.” Among the most memorable bargains in recent memory was the “Cornhusker kickback,” which gave us an Affordable Care Act that combines utopian politics, micro-regulation, interest group racketeering, and debt finance in a singularly nasty fashion. Happy now?
Like I said: I don’t have a better story. But I have a suggestion. The late great James Q. Wilson—a die-hard institutionalist and an intellectual hero to Jonathan Rauch and yours truly—described the dramatic lowering of a “threshold of concern” as a central feature of modern politics. Ordinary politics collapses when everything becomes a problem; when values politics becomes organized; and when public tolerance for peacetime debt finance proves unlimited. Neither our Constitution nor our institutional practices were designed for that. The experience of European countries, alongside ours, suggests that few if any institutional systems can cope with demands of this sort. The pathologies differ from country to country, but they stem from the same source. In that sense, they’re epiphenomenal. In short, you don’t have to be a Libertarian (Jim Wilson wasn’t) to suspect that sane forms of politics depend on a limited range and on public realism about what politics can actually do.
If that’s roughly right, maybe “the country” should in fact “abandon the establishment”—not in the sense of cutting it more slack but in the sense of lowering its own expectations. In return, maybe “the establishment” could gain some maneuvering room on manageable issues by “abandoning the country”—by explaining that it can not in fact arrest the ocean tides, imbue drunk student athletes with sense and sensibility, or guarantee freedom and justice for transgender Arroyo toads. There being little evidence to either effect, maybe H. L. Mencken had it right: under our democratic system, the American people should get the government they deserve. Good and hard.