Model, Politics

Checks and balances can’t last if they make governing impossible

There is an interesting post by Professor Bryan Caplan spinning limited government as an insurance policy against wild swings in political climate. You should go read the whole thing, but I’ll summarize for the lazy.

Professor Caplan makes his case using a thought experiment with an angel. This angel talks to you during Obama’s inauguration and offers you a bargain. The terms are simple If you accept, neither Obama nor Trump will be able to get much done. You trade away Obamacare and in exchange you don’t get Trump’s immigration policies. Professor Caplan frames this as a form of political insurance, a guarantee of mediocracy instead of potentially wild swings.

Professor Caplan points out that this insurance (which might be sounding pretty tempting to you right about now) is actually similar to the concept of limited government, something we already know how to achieve. From his post:

If you want the insurance of limited government, there are well-tested mechanisms to deliver it.  You all know them.  Supermajority rules require more than a majority to act.  Division of powers makes it hard for government bodies to accomplish anything on their own.  Judicial review allows judges to invalidate acts of government.  Federalism greatly reduces the cost of “voting with your feet.”  If you think these institutions aren’t working, the obvious solution is to strengthen them.  Impose more supermajority requirements.  Divide more powers.  Overturn legislation that fails to get support from six, seven, eight, or all nine Supreme Court Justices.  Make states pay for their own spending with their own taxes, not federal grants.

Prof. Caplan then briefly remarks on the known difficulties of attaining any of this. I’m actually not going to comment on that part of the post, because that isn’t what interested me.

Instead, I want to talk about limited government.

The thing I find most difficult when discussing limited government is that everyone wants a “limited” government to do different things. Many libertarians take it on faith that a limited government would naturally contain a police force to protect private property and contractual rights within the territory of the state and a military to protect that territory from outside threats. On the other hand, if you ask a centre-left policy wonk (hi!) about limited government, they’ll tell you that a limited government shouldn’t have much in the way of an army but it should be willing to run insurance programs in response to market failures. Radical leftists might want some redistribution without police or moral laws, while Christian fundamentalists might want strict morality laws but limited taxes.

(I want to pause here and point out that “limited government” as a concept must be backed up by a specific set of mechanisms by which it is limited. Throughout this essay I will treat “limited government” as the philosophy that a government shouldn’t be able to do whatever it wants and “checks and balances” or “separation of powers” as some of the specific mechanisms that are used to achieve that philosophical aim.)

With so many different (and sometimes mutually exclusive) ideas as to what a limited government actually means, you can’t just say “we have limited government” and expect voters to leave it at that. No matter how many checks and balances your government must contend with, voters are going to want to see it govern and they’re going to want to hold it accountable.

Voters in general do a good job of holding government accountable to their wants. Because of this, politicians tend to do what the voters want. For all of their reputation otherwise, politicians are actually quite good at keeping their promises. This seems to hold true irrespective of checks and balances. If you click through to the link, you’ll see that politicians follow through on their campaign promises roughly as often in the US (with a lot of checks and balances) as they do in Canada (which gives politicians a “get out of the constitution free” card in the form of the notwithstanding clause) or the Netherlands (which has the character more of a unicameral state than a true bicameral state like the US).

Faced with voters who have made demands and a need to achieve most of those demands if they wish to keep their jobs, politicians need to get things done. Checks and balances don’t change this simple fact. But checks and balances seem to have a lot of influence on how things get done.

During good years, the governments of Canada and America function relatively similarly. Legislation begins in the House, passes to the Senate, and is eventually signed by the Head of State. But during bad years the two countries look nothing alike. When America is wracked by partisanship or crisis, things still get done. But they get done by methods (read: kludges) that erode the very checks and balances that made them so difficult to do in the first place. Take this example (from The Economist): “The job of White House counsel was created to provide the president with sound legal advice; it has ballooned into a battery of lawyers—almost 50 under Barack Obama—whose task is to find legal cover for whatever the president wants to do”. America is a common law jurisdiction. Every justification President Obama made stick has become a permanent weakness in the nation’s checks and balances.

My observation is that both presently and historically, any attempt at checks and balances that makes governing too odious is eventually circumvented, ultimately leading to a government that is much less constrained than if it had instead been kept to less strict limits from the start. As specific examples, I provide Weimar Germany, the Roman Republic, and as we’ve discussed, the United States of America.

If you want durable limited government, then you have to be prepared to define limited government broadly and make your checks and balances effective only against extreme changes. Canada does a good job of it. Our system makes change possible but radical change incredibly difficult. The notwithstanding clause does allow the government to suspend certain parts of the constitution, but it has a deliberate sunset clause – any legislation passed with it lasts only five years, which is conveniently the maximum amount of time between elections. Actually modifying the constitution is prohibitively difficult, requiring the consent of the federal government and at least seven provincial legislatures (compromising at least half of the population).

A lack of serious resistance to reasonable policy proposals means that the Canadian Constitution and its checks and balances is at no serious risk of erosion. Meanwhile, the debate in America isn’t about whether the constitution is eroded, just about whether it is eroded to the point of ineffectiveness.

This is the choice you face with checks and balances. You can make them powerful and try to contend with the inevitable erosion they’ll face as politicians try and get things done in the face of them. Or you can make it easy for politicians to implement enough of their agenda to keep their voters happy and watch as they give up on any part of it that isn’t simple.

Viewed through this lens, Prof. Caplan’s suggestions are supremely harmful. They’re the sorts of things that will incentivize politicians to go hunting for any constitutional workaround they can find. I can’t think of anything that will hasten the demise of the American constitution more quickly than measures that make obstructionism easier.

All this is to say I think the rant I had when I first saw this article was justified:

The problem with checks and balances (as I keep articulating) is that they are fine in good times, but in bad times people need to be able to change stuff and you won’t have a supermajority to agree on what things to change. So you get people going from Point A (where we currently are) to Point B (where they want to be) in a way that is supremely damaging to the norms that we need for stable growth in the remaining 95% of cases.

If 51% of the population want something, they will probably eventually get something in that general area. We can control, however, where in that area they land. Do we want to restrain them temporarily, then have them get it in the most extreme form? Or do we want them to work within the system, be able to easily get it in a watered down form, and then dissolve for want of a remaining common enemy?

My overriding desire is for checks and balances that are reasonably effective over the lifetime of a nation. I support limited checks and balances because I truly believe that in the long run, this leads to governments being most constrained in their actions.

Epistemic Status: Model

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