Though it seems likely that Vice President Biden, Mitch McConnell, and John Boehner have found an agreement that can pass both the Senate and the House, it seems equally likely that any such agreement will be merely a stop gap measure. There will be some future cliff that the politicians construct for themselves to force new and exciting brinksmanship down the line. (Andy Borowitz tweeted on December 31, “Assholes Race Against Clock to Avoid Crisis They Created.”)
As we await the results of this latest episode in dysfunction, it is worth underlining that this crisis is likely NOT a result of bargaining ineptitude or petulance. Rather, the system of checks and balances built into the U.S. constitution is crisis-prone. Let’s revisit Juan Linz’s famous 1990 essay on the topic, which is worth quoting in length:
[W]hat is most striking is that in a presidential system, the legislators, especially when they represent cohesive, disciplined parties that offer clear ideological and political alternatives, can also claim democratic legitimacy. This claim is thrown into high relief when a majority of the legislature represents a political option opposed to the one the president represents. Under such circumstances, who has the stronger claim to speak on behalf of the people: the president or the legislative majority that opposes his policies? Since both derive their power from the votes of the people in a free competition among well-defined alternatives, a conflict is always possible and at times may erupt dramatically. There is no democratic principle on the basis of which it can be resolved, and the mechanisms the constitution might provide are likely to prove too complicated and aridly legalistic to be of much force in the eyes of the electorate. It is therefore no accident that in some such situations in the past, the armed forces were often tempted to intervene as a mediating power. One might argue that the United States has successfully rendered such conflicts “normal” and thus defused them. To explain how American political institutions and practices have achieved this result would exceed the scope of this essay, but it is worth noting that the uniquely diffuse character of American political parties—which, ironically, exasperates many American political scientists and leads them to call for responsible, ideologically disciplined parties—has something to do with it. Unfortunately, the American case seems to be an exception; the development of modem political parties, particularly in socially and ideologically polarized countries, generally exacerbates, rather than moderates, conflicts between the legislative and the executive.
Three things are worth emphasizing.
First, I don’t see the armed forces inserting themselves, but that does not remove the possibility of a constitutional crisis (here, the ultimate authority will reside in the Supreme Court rather than the Pentagon).
Second, Linz in 1990 did not anticipate that the ideological polarization in American political parties would grow much worse almost immediately after he wrote his words. I leave the causes of this polarization over to my more than capable Americanist friends, who get paid to assess such things. My personal pet theory is that corruption helped overcome polarization in the 19th century and the fight for and against civil rights messed up clear party lines in the South in the 20th century, which messed up clear party lines everywhere. And if you were to find an inflection point in ideological polarization (where polarization started to get worse), the 1960s seem like a good place to locate it using the old eyeball technique. See this graph from a Keith Poole paper:
The third point to emphasize is that the problem of dual legitimacy might be especially problematic if the electoral systems of the two branches were biased in different directions. Speaker Boehner said in November, “Listen, our majority is going to get reelected… We’ll have as much of a mandate as he [President Obama] will … to not raise taxes.” Boehner was correct, but Republicans benefit from a rural-favoring skew in House districts. Boehner has a clear majority of members despite not winning a majority of the votes cast for Congress. As Nate Silver recently argued, “[I]ndividual members of Congress are responding fairly rationally to their incentives” given their specific constituencies. In opposing them, the President might also be responding fairly rationally to his incentives. (At least in the first term. I have no clue what second-term presidents’ incentives are. History books, I guess.)
In other words, no matter what the results of this negotiation, I see no reason to believe that things will get better. When you are asking yourself on that future date how the United States got into a constitutional crisis, remember that the system is inherently crisis-prone. One of these days we are bound to fall off the cliff.