Outside the Beltway

Partisanship, Separation of Powers, and the Limits of Oversight

As I have noted before: party trumps institutional pride. The Barr testimony is just another example.

Steven L. Taylor · Saturday, May 4, 2019 · 5 comments

In digesting the Barr testimony in the Senate from earlier in the week, I was struck by a fairly common event: the Republicans came to Barr’s defense, while the Democrats attacked. This is, of course, utterly unsurprising.

However, if the textbook version of our system of government is to be believed, it should be a surprise. We are taught that we have a system of separated powers (legislative, executive, and judicial) that are explicitly designed to check and balance the othes. Indeed, each institution is supposed to jealously guard its powers, prerogatives, and privileges. We know this because the Father of Constitution told us so, dontcha know.

Madison said, in Federalist 51:

the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

However, I would note that not only have we seen on ongoing (well before Trump) “gradual concentration” of power in the same department (the presidency), we have seen this take place because a) it is often simply easier to delegate to the executive, and b) because political parties have more allegiance to their leader than they do to their institutions. So, party bridges the members of the legislature to the occupant of the Oval Office and created a chasm between partisans in the same institution.

I often point out that as they were constructing the constitution the Framers, including Madison, did not understand how political parties would form and how they would heavily influence governance. Here we have an excellent example. In the passage above, Madison argues that “The interest of the man must be connected with the constitutional rights of the place.” This reflects, I would note, one of Madison’s insights about politics: that institutional design must take into consideration the interests of political actors, and that said design should try to create incentives that move (or control) those interests in a way that would produce the desired outcome of the institutional design.

The alleged genius of separated powers was that the legislators’ interests would be wrapped up in the interests of the legislature, while the interests of the president would be wrapped up in the interests of the executive branch. And each would jealously, and zealously, defend those interests.

Hence, to protect the branches from each other, and to make sure each tried to stop the other from obtaining too much power “Ambition must be made to counteract ambition” and this would happen because “The interest of the man must be connected with the constitutional rights of the place.”

However, the introduction of political parties into this system (which, I would argue, was inevitable and is a direct, almost natural, function of a system of representative government), built a bridge between the branches that was not anticipated. More importantly, it changed the dynamic of interests and incentives.

For Lindsey Graham, for example, the interests of the man are not connected to the constitutional rights of the place, even though he is the Chair of the Senate Judiciary Committee. Rather, his interests are connected to his re-nomination process, which will be heavily influenced by how well he is perceived to be a ally of the leader of his party. The fact that the leader of his party is in another branch is not part of the calculus (save that having said leader be the president actually amplifies Graham’s need to eschew concern about the power of the Senate in favor of kowtowing to the executive). His ambition does not lead to the fighting off of the ambitions of Trump or Barr. Instead, his ambitions become fused with theirs.

I would note, the basic logic remains Madisonian. It examines the way in which institutional parameters (such as the primary process, and political parties as mechanisms for election to office) lead to incentives that drive political behavior. The problem for Fed 51 and for the textbook version of separation of powers, and especially of checks and balances, is that the incentive structure that drives our politics is not what the prevailing myth says that it is.

Why does all of this matter? Well, first and foremost to me, I think it is healthier for us all the fully understand how things actually work as opposed to how we think they work (or to be influenced by the stories we are told rather than by the actual truth of the matter). Further, when I hear appeals to the congressional obligations, or to “doing the right thing” or even statements about checks and balances, I can’t help but think about how such appeals are more appeals to myth than to reality.

The described dynamic also bears directly in the impeachment debate.* Impeachment and removal were designed with the logic of Fed 51 baked in: that the legislative branch would see malfeasance in the executive branch to be a reason to act to try and remove the president. This formulation does take into account parties. Parties have made a process that already was substantially political (as opposed to juridical or even administrative) into one that is almost purely political. It is practically inconceivable that a president would be impeached, let alone removed, by his own party. That really affects the nature of the mechanism. It certainly underscores the fact that party drives the decision more than institutional interests.

I would note, too, to connect to another theme that I like to harp on: the fact that parties are so very important to our system of government underscores why the unrepresentative aspects of our system can be so pernicious. If party trumps institution, party also trumps popular preference. Again: follow the Madisonian logic of incentives. Members of Congress wish to be reelected, and the pathways to power do not dictate that they worry about protecting the prerogatives of their institutions, nor does it dictate that they worry about popular sentiment (all they need to worry about is their primary electorate, and then the electorate in their districts–neither of which is likely to be broadly representative).

The House is too small to represent the population well and worse, single seat districts do a poor job of creating representative outcomes (and this is especially true when districts are gerrymandered and/or when geographic sorting has significant partisan effects). The Senate at least can’t be gerrymandered, but the co-equality of representation of largely arbitrary real estate boundaries leads to significant distortions in any incentive of that body to act in a way that represents the country as a whole. And the fact that the Electoral College can deliver the presidency to the loser of the popular vote means that a candidate like Trump has an incentive to run a base-only campaign (at least when that was basically his route to office in the first place).

Institutions matter, and political parties are key institutions. Ambition and incentives must be channeled by institutions, and our current system does not channel them the way most people think that they do.

To conclude on the item that inspired the post: we are seeing the dominance of party-linked preferences over institutional ones in the oversight process at the moment. Barr’s refusal, for example, to speak to the House Judiciary Committee because he doesn’t like the terms of that hearing should, by the logic of Fed 51 enrage House Democrats and Republicans alike. After all, is not oversight a legislative prerogative? And yet, partisan prerogatives will prevail in explaining the behavior of all actors.

*I will share my current thoughts on impeachment in a separate post.