(Republished from The Wall Street Journal: Opinion)
February 21, 2010
By DAVID B. RIVKIN JR. AND LEE A. CASEY
Members of Congress generally give one of two reasons for quitting. Those evacuating the capital because of scandal invariably want to “spend more time” with their families. Those leaving to become a lobbyist or head home to seek election to even higher office complain about “gridlock” and how badly the system is “broken.”
Sen. Evan Bayh (D., Ind.), for example, cited the difficulty of achieving “legislative accomplishments” as reason for his decision not to seek re-election this year. Gridlock, however, is part of the Constitution’s design and is consonant with our underlying political traditions.
When they gathered in Philadelphia in 1787, the Constitution’s framers had three goals: Establish a strong national government that nevertheless respected states’ lawful prerogatives; impose limits on the exercise of government power so as to protect the citizenry’s life, liberty and property; and create a stable and enduring political system. These men had lived through a revolution and war, and they understood the importance of regulating “by a system cautiously formed and steadily pursued,” as noted by John Jay in the Federalist Papers.
The Framers achieved this stability by generally requiring a high level of consensus in support of governmental action. Accordingly, the Constitution deliberately makes achieving “legislative accomplishments” difficult.
As every school child once was taught, all federal laws must be first agreed to by both houses of Congress, which are themselves fundamentally different institutions with different constituencies, powers and interests. In addition, federal legislation must be acceptable to the president, or both houses must vote to override his veto by a two-thirds majority. As a result of these stringent requirements, the vast majority of legislative proposals never become law for the very reason that the necessary consensus is so often elusive.
Changes to the Constitution itself require an even higher consensus. Such amendments must not only command super majorities of two-thirds in both houses of Congress, they must also garner the support of three-fourths of the state legislatures (or of special ratifying conventions). In 220 years there have been only 27 amendments because that level of national agreement is profoundly difficult to obtain.
In addition, the Senate was itself designed to serve as a brake on change. As explained by James Madison, also in the Federalist Papers, the Senate would be a “temperate and respectable body of citizens” able to check the citizenry when “stimulated by some irregular passion.”
Taking this role seriously, the Senate did the framers one better by adopting the much abused filibuster rule. Today it requires that 60 senators agree to end debate on any particular measure before a vote can even be taken.
In short, the government established by the U.S. Constitution, as well as the document itself, is “conservative.” Its default is the status quo, unless and until the advocates of change can secure a sufficient consensus to support their idea.
In a republic of vast space and an even vaster diversity of interest and opinion, in most instances this means that anyone who wants to get “something done” in Washington will have a tough row to hoe and must be prepared to compromise. Such compromise is the bane of ideologues and idealists alike. But that is how consensus is reached.
When the country is fundamentally divided over an important issue—such as health-care reform—the necessary consensus may not be achieved. Moreover, disputes about one issue may well pour over into another, making compromise and consensus even more difficult. But that is simply human nature.
All of this may well mean that change, even necessary change, is postponed or permanently thwarted. But that is the price of the remarkable stability of government we have.
Despite the perpetual griping about Washington’s political gridlock, the American people appear instinctively to understand and accept the Constitution’s consensus-based architecture and support the very sort of compromises the system is designed to secure.
Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.