Institutional Design and Governance
The United States can claim a number of things about its government including the age of its constitution (the longest continuously operating such document in the world) and the fact that it can claim, despite many flaws over time, to have the oldest democracy.* We often like to think of ourselves as a model to the rest of the world in terms of our constitution and its institutional parameters, but as Christian Caryl rightly notes in a piece at Foreign Policy (Looking for an alternative to dysfunction in Washington? Maybe it’s time to turn to Berlin), despite the high esteem in which we hold our own system, it is often overlooked that ours is not typically the model of new democracies (and hasn’t been for some time). Further, we in the US simply don’t realize that there are multiple ways to configure the machinery of democratic government.
If we look globally, the only countries that modeled their constitutions directly on that of the US would be those of Latin America who gained their independence from their European masters not all that long after the US did. As such, almost all of the cases of presidentialism (i.e., a separately elected executive, and hence separation of powers) can be found in Latin America. Most Latin American countries also have bicameral legislatures, even the non-federal cases. We also see presidential systems in US-influenced South Korea and the Philippines and in mostly non-democratic cases in Africa. ** Strikingly the post-war constitutions of Germany and Japan adopt neither separation of powers nor the US electoral system (despite the amount of US influence in those cases, especially Japan).
Indeed, it is Germany’s constitution that is the subject of Caryl’s piece:
If anything, the United States now offers an even worse advertisement for the virtues of democracy than it did in 1991. Congress is paralyzed by partisan bickering, and Barack Obama’s administration barely seems up to the task of launching a website. Germany, by contrast, still offers a fine example of the virtues of steady government; it is Europe’s rock.
First, the author has a point that is worth considering: the US system has not exactly been the model of good and effective governance for some time now, which is unfortunate given the US’s self-image as Beacon of Democracy and holder of the Best Constitution Ever.TM (All flippancy aside, it is very much the case that our self-image on this topic does not comport well with reality).
Second, while the piece overstates the degree to which the German constitution was the model for post-Soviet democracies, it does rightly point out that the German system has a number of advantages and opens up the conversation for thinking about comparative constitutions and the notion of political engineering in general—these observations alone makes the piece worth reading.
Of course, one of the basic advantages of the German system is that is it is fundamentally parliamentary, i.e., the executive is elected by the legislature on the basis of the majority coalition in the first chamber of the bicameral German parliament (Germany is federal, like the US, and the second chamber represents the länder, i.e., the states). This means that utterly dysfunctional government is highly unlikely. This, of course, is not unique to Germany. (The article rather oddly states that Germany has “strong separation of powers” but I am not sure what the author meant by that statement).
Now I know that the reaction of most Americans is that we like separation of powers, and that’s all well and good. However, I would note a couple of things. First, most of us like it not because we have really thought about it, but rather because we are used to it (and we revere the Framers and the Constitution, so whatever choice they made must be good). Second, we often like the notion that governing is hard (although it is worth considering the difference between making major policy changes difficult and making them nearly impossible, let alone making things like passing a budget, a fundamental responsibility of government, almost impossible).*** The virtues (and vices) or parliamentary government deserve their own post, but it is the foundation of the German system and any discussion of that system requires noting this fact.
However, while I have an increasing preference for parliamentary systems (were I constitutional designer, I would likely recommend it), the area I find most interesting in terms of institutional discussion vis-à-vis German is their electoral system. The article mentions it thusly:
they created a unique electoral system that gave each adult citizen two votes: one (the more important) for a party, and one for a candidate. This shrewd bit of political machinery biased the system toward coalition: A person might cast one vote for the Social Democrats, ensuring that party’s victory in the general election, while simultaneously giving a vote to an individual Christian Democrat. Moreover, a new threshold rule determined that a party could only get into parliament if it won at least 5 percent of the votes cast, a measure designed to prevent political fragmentation and to promote workable majorities.
This is the system called Mix Member Proportional and is a type of proportional representation system because it allocates seats in the legislature proportionally to the various divisions of the electorate. If, for example, Libertarians get 9% of the vote and Greens get 8%, then they would get the commensurate percentage of seats in the legislature. In simple terms, the system works like this: voters vote for a party and for a local representative. The party vote determines, via national percentage, what the breakdown of parliament will be. If, hypothetically, Pary A won 40% of the vote in the national vote they would be guaranteed 40 seats in a 100 seat parliament. Let’s say they won 35 of the districts. That would account for 35 of their seats and the remaining 5 would come from the list of candidate associated with the party vote. If a party won 10% of the party vote but no district seats, they would get 10 seats out of 100 off of their list. (A video based on the New Zealand system can be found here). The general upshot is that larger parties tend to win the district seats and do well in the party vote while smaller parties are able to get representation via the party vote.
The author over-emphasizes the split vote/coalition bias in the system, btw. The need for coalition building isn’t because of the two votes as much as it is the fact that the system is proportional in seat allocation, which leads to more parties (and the inability of one party, therefore, to control the government by itself).
The really important aspects of MMP are as follows:
1) The percentage of seats in the parliament is proportional (based on the percentages each party receives for the party lists votes). This means a better representative mix in the parliament vis-à-vis the citizens.
2) The system promotes some large parties but also allows for smaller parties to represent various interests in the society. This means that one party is unlikely to control the government because none are large enough. This means having to seek out a coalition partner (or partners).
This is different, by the way, from other proportional systems, like the one in Israel, that tends not to produce any truly large parties, and therefore requires complex multi-party coalition to form a cabinet.
When it comes to electoral systems, the US suffers from the fact that we went first down the path of democracy, meaning that we did not have the advantage of the examples of other ways to conduct elections. At the time it seemed obvious that the only way to do things was to divide up the country into districts and then give one seat per district to the person with the most votes. The notion of proportional representation did not exist at the time (and there were no examples, either good or bad, to emulate/avoid). It is noteworthy that new democracies do not adopt single-seat districts with plurality winners, like we have in the US (and UK, Canada, and India, to name three more), but they adopt any number of other systems instead.
This issue of electoral systems is one that I would love to see become more part of the debate in the US, because it directly is linked up to the issue of representativeness and responsiveness vis-a-vvis Congress. Congress is neither all that representative and is not at all responsive (with the incumbency re-election rate being what it is, why should it be?) and these issues are directly linked to the election system. Further, it is worth noting that our current House has what is called a spurious majority: more voters actually voted Democratic, but Republicans have a majority of seats. While pointing this out may sound like a partisan snipe, the reality this should be a concerning outcome to anyone who values representative democracy. Further, there is little doubt that the Democrats and Republicans, catch-all as they may be, do not actually fully represent the American public completely.
Ultimately all of this is a long way of saying the following. First, we need to understand as a country which of our political maladies are the result of institutional design and how much are caused by politicians. Yes, politicians bear a lot of responsibility for poor governance. However, a lot of the problems that we see are the direct result of governing itself being made too hard by the constitution. Recent problems like the budget impasse and the debt ceiling debate are clear examples. Beyond that, the inability to do important things like welfare reform, tax code reform, and immigration reform are all substantially because of design issue (i.e., it is too easy to block legislation). This is true, by the way, regardless of what one’s policy preferences are. This situation has been made more difficult in recent years by the sorting of the parties into two purer iterations of themselves. Our near-religious reverence for the Constitution and the Framers make it impossible to even discuss the degree to which institutions might be part of the problem.
Second, an article like this can help bring attention to the fact that there are multiple ways of designing democratic institutions—a fact that our penchant for seeing ourselves as exceptional often blinds us to.
Bottom line: while I personally am more than ready to make recommendations about institutional reform, I know that we are not really ready for such talk. However, I do think it would be quite useful if we would at least a) being to understand that there are different ways to govern in the democratic context, b) our constitutional system is not perfect, and c) some of our problems may actually be being caused by that system.
(I will end with a shameless plug: the above conversation is very much the topic of my new co-authored book slate for publication this fall: A Different Democracy: American Government in a 31-Country Perspective.)
*And before anyone starts in with “we have a republic, not a democracy” please note that the word democracy here means a system of governance whereby the power to govern is conveyed to politicians by citizens via elections for set amounts of time (i.e., representative democracy). This is, by the way, what Madison meant by the “republic” in the Federalist Papers as well as what is meant in the constitution in Article IV, section when the states are guaranteed “a Republican Form of Government” (i.e., no aristocracy would be allowed). Back to Madison, when Madison said that the US Constitution did not create a democracy, he meant what we would call a “direct democracy” in modern parlance. See Federalist 10, 14, and 39.
**There are also a number of countries in Africa that have presidents, but the vast majority of these are not functionally democratic (even if they have elections, e.g., Zimbabwe).
***I won’t really get into it now, but I think that, whether it is fully realized or not, that much of the dissatisfaction with government (although not all of it) is derived from the inability of the government to govern.