Winner Take All

The machinery of politics in our great nation has grown rusty. Radical policy shifts proceed from the executive and judicial branches in fits and starts, with much grinding of the gears and screeches from the unhappy. Congress does little. President Trump’s abrasiveness, no less than that of his opponents, is a symptom, rather than the cause, of the evolution from consensus-driven democratic governance to a quasi-monarchical, winner take all system.

Article One of the US Constitution reads, in part: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” but Congress has largely neglected or delegated its powers.

Laws (or rather, regulations that have the force of law) are effectively passed, and later maybe revoked, by the executive branch based on its changing interpretations of vaguely worded statutes. Environmental regulation, Title Nine’s interpretation and the Justice Department’s stance on innumerable issues relating to race, for example, have shifted dramatically from one administration to the next with nary a nod to Congress. Under the Supreme Court’s 1984 Chevron decision, executive departments have extremely wide latitude to interpret (and later re-interpret and later maybe re-re-interpret) statutes to justify the implementation – with the full force of law – of their policy preferences. https://lawblog.justia.com/2012/05/21/chevron-deference-your-guide-to-understanding-two-of-todays-scotus-decisions/

Not only are the great majority of new laws actually regulatory fiats determined by the executive branch, Congress even manages to evade almost all of its budgeting responsibilities. Something like 86% of the US budget is on autopilot (https://www.investors.com/politics/editorials/federal-spending-budget-deficits/), mostly to fund entitlements. Currently, the particular autopilot path that we’re on looks like it may lead our nation to insolvency, but few are the members of Congress who will own up to that, ah, awkward situation. They’re just happy, first class passengers on the Titanic.

And the executive branch can spend money, ignoring the will of Congress almost any time it wants – Congress authorized this delegation of its power through the National Emergencies Act of 1976 – as Democrats are now learning to their sorrow with regard to the wall controversy. Those same Democrats who were quite happy when President Obama made a point of ruling with his phone and pen (i.e., ignoring the wishes of a then-Republican Congress), can’t abide the same behavior by President Trump.

The Supreme Court, too, has been busy arrogating legislative powers for decades. Roe v Wade overturned all pre-existing laws relating to abortion with only the most fanciful Constitutional justification. More recently, the Obergefell decision striking down state bans on single sex marriage did the same thing. Whether you approve or disapprove of the moral substance of these decisions, our system was not designed to allow effective rule by a majority of nine Justices.

In spite of Congress’s dereliction of its duties regarding legislating and budgeting, its members keep getting re-elected. Re-election rates in recent years have been around 95% in the House, 82% in the Senate. Congress itself is deeply unpopular (generally polling at around 22% approval/70% disapproval) but it seems that individual members are almost uniformly popular. Why is that?

First off, the advantages of incumbency – many put in place by Congress via so-called campaign finance laws – are enormous. Second, in the House, members are further protected by gerrymandering that means that they rarely find themselves in competitive districts (which explains both their higher re-election rates and their disinterest in taking stances that go against the inclinations of their highly partisan constituencies). And, third, members avoid taking unpopular stances by writing vaguely-worded, seemingly high-minded statutes that leave the difficult decisions to nameless, faceless bureaucrats who members can and do criticize, quite ineffectually, for having misinterpreted their wishes any time actual decisions prove unpopular.

Members of Congress have cushy, prestigious jobs. They are protecting their own positions in significant part by making elections less competitive and, ironically, by making their roles much less important than they should be. Apparently, they would rather enjoy their offices, preen and pretend to executive power than fulfill their Constitutionally assigned responsibilities.

The effects of the current misalignment of powers among our three branches of government are many, beginning with the fact that too many policy decisions rest on the outcomes of presidential elections, which also empower new rule-making bureaucrats and set up future judicial nominations. Consequently, presidential elections have become no-holds-barred cage matches like the one we saw in 2016. Given the stakes, this tendency toward ugly national politics is only likely to get worse as long as the current mis-balance of powers among the branches continues.

Congress is deeply divided and all but certain to remain so, given members’ high re-election rates/incumbent protections. These divisions exacerbate the the problem of its ineffectuality. Careerist members of Congress know that their advancement depends more on loyalty to their particular party than to the interests of Congress or the nation it is supposed to serve.

At present, Congressional Democrats are mostly trying to restrain the executive branch not by exercising their institution’s primary Constitutional responsibilities but, instead, by engaging in investigations that, given the nil chance (based on the makeup of the Senate and the absence of any evidence that Trump engaged in treasonous collusion with Russia during the campaign) that President Trump will be removed through the impeachment process, must be seen as (Presidential) politics by other means. Again, where the President reigns with nearly monarchical powers, politics are all-or-nothing based on who has that seat.

***

Another deep seated cause of the poisonous atmosphere prevailing in or national political discourse is that in the age of social media, many Americans effectively live in smaller, more uniform social and intellectual bubbles than used to be the case. We all like to have our opinions validated, and the Internet enables us to do that and to avoid the complications of actually engaging with those who hold different viewpoints. Our new ability to be in constant touch with those we love, or whose views mirror and confirm our own, means we spend less and less time working out our differences with those with whom we differ. Politics becomes more a matter of confrontation than compromise as familiarity – and a sense of interdependence – with those with whom we differ fades.

All these changes come at great cost to democratic governance. How much control do our elected representatives really have over the practical details – laws and budgets – of how society is organized? To what extent do our votes still matter? It would not be hard to argue that except in the rare, competitive Senatorial contest or in Presidential elections if you happen to live in one of a handful of decisive swing states, not very much. All we have the opportunity to do is confirm systematically fore-ordained outcomes. Is that how democracy is supposed to work?

We voters have been disempowered by these institutional changes – and to be disempowered is a natural source of bitterness and resentment. Much of the anger and vituperation in our national political dialogue, and particularly in Presidential contests, surely arises out of frustration about the fact that our votes – other than for President if we live in a swing state – now seem so meaningless. The combination of that frustration with our increasing social isolation makes for a cocktail that is poisoning our sense of national unity.

M.H. Johnston

2 comments to Winner Take All

  • KH  says:

    Not to mention our public education system renders the masses incapable of the reading comprehension to appreciate this essay as a call for unity and dialogue. Well written and thought through. Thanks.

  • Anonymous  says:

    Thanks for taking the time to delve into this. It’s complex and very disappointing.

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