24 March 2015

The Balance of Power In Modern American History

As a prelude to future posts on the state of the American political system, I'd like to start with a history lesson on the partisan and ideological balance of power in American politics.

Divided Government

Americans have gotten used to divided political control in recent years.

Seventeen of the twenty-four elections held from 1968 to 2014 have produced divided governments.

We have had (or will have) divided government for 44 years since the end of World War II.

Six of eight years under President Obama (January 2011-January 2017)
Two of eight years under George W. Bush (January 2007-January 2009)
Six of eight years under President Clinton (January 1995-January 2001)
All four year under President George H.W. Bush (January 1989-January 1993)
All eight years under President Reagan (January 1981-January 1989)
All eight years under President's Nixon and Ford (January 1969-January 1977)
All eight years under President Eisenhower (January 1953-January 1961)
Two years under President Truman (January 1947-January 1949)

Republican Control

Republicans controlled the Presidency and both houses of Congress for the first six years of George W. Bush's eight year Presidency (from January 2001 to January 2007).  The Republicans didn't have a filibuster-proof majority in the U.S. Senate in any of those six years.  But, the U.S. Supreme Court was moderately conservative during those six years as well.

Prior to George W. Bush, the last time that Republicans controlled the Presidency and both houses of Congress was in March of 1933 under Herbert Hoover.

Democratic Control

Democrats controlled the Presidency and both houses of Congress:
* For the first two years of President Obama's eight year term (from January 2009 to January 2011), with 59 seats in the U.S. Senate, one vote shy of a filibuster-proof majority.
* For the first two years of President Clinton's eight year term (from January 1993 to January 1995),
with 57 seats in the U.S. Senate, two votes shy of a filibuster-proof majority.
* During President Carter's four year term (from January 1977 to January 1981), with 61 seats in the Senate for the first two years and 58 seats in the Senate for the second two years.
* During the administrations of Presidents Kennedy and Johnson (from January 1961 to January 1969) with 64 seats in the Senate for four of those years, with 66 seats in the Senate for two of those years, and with 68 seats in the Senate for two of those years.
* During the administration of President Truman from April 1945-January 1947 and from January 1949-January 1953).
* During FDR's Presidency from March 1933 to April 1945.

Democrats held substantial and often filibuster-proof majorities during the administrations of Presidents Truman and FDR.

A Caveat on Realignment

This raw data, however, is somewhat misleading.  The Democratic party had deep internal divisions between conservative Southern Democrats and liberal Northern Democrats for most of the period from Truman's administration through the Reagan administration.  The practical effect of this divide was that there were basically three political parties in Congress during this time period, none of which commanded a majority.

There were still significant numbers of conservative Democrats from the George H.W. Bush administration through the end of the Clinton Administration, although there are almost none today in Congress (the Democratic party today still has a somewhat broader ideological spectrum than the Republican party does, however).

There were still many liberal leaning Republicans in the Eisenhower, Nixon and Ford administrations.  Liberal leaning Republicans had become politically irrelevant in the U.S. House by the Reagan administration, but a few moderate Republicans had lingered in the U.S. Senate until the 2014 election.

There are now basically no conservative Democrats and no liberal leaning or moderate Republicans in Congress, although there are some moderate Democrats in Congress.  The majority of Democrats in Congress are solidly liberal.  The majority of Republicans in Congress are very conservative.

There are currently 52 Republican U.S. Senators, one more than a majority in the U.S. Senate, and 244 Republicans in the U.S. House, 27 more than the 217 members needed for a majority in the U.S. House.

Incidentally, of the 50 state governors in the United States, 31 are currently Republicans.

A Caveat on the Filibuster

The right to debate was unlimited and not subject to a cloture vote in the U.S. Senate until 1917, and this right was used to "talk bills to death" starting around 1841.

From 1917 to 1975, a cloture vote took a two-thirds majority, but the tactic of talking a bill to death that became known as the filibuster was rare and used mostly by Southern Democrats to fight civil rights bills.

The vote required was reduced to 60 votes in the Senate in 1975, but this change also strengthened the filibuster by effectively requiring a 60% vote to bring any bill or nomination other than budget bills to the floor.

Post-reform the filibuster was also mostly rarely and mostly in relation to civil rights bills.  But, Republicans dramatically increased their use of the filibuster and other Senate privileges of minorities in the last few years to the point where they became routine.

There was doubt for an extended period of time over the question of whether a majority of the U.S. Senate could change the filibuster rule since it operates in continuous session (unlike the U.S. House which reorganizes each year).  But, that question was resolved on November 21, 2013 when the U.S. Senate voted 52-48 to exercise the "nuclear option" and eliminate the filibuster in certain circumstances (bringing Presidential nominations other than U.S. Supreme Court nominations to the floor).  Other measures can still be filibustered, but this power is muted by the acknowledgement that the majority can change the rules at any time.

A Note on the Veto Power

It takes a two-thirds majority of both the U.S. Senate and the U.S. House to override a Presidential veto of a bill passed by Congress.  There have been just 62 veto overrides from FDR to the present.  There has never been a time in U.S. history where the President has belonged to one party, and another political party has had a veto-proof majority in both the U.S. House and the U.S. Senate.  No President has had more than a quarter of his vetoes overriden by Congress.  The mere threat of a veto, because it is so hard to override is the President is supported by members of his own party, is a potent political threat.

The Supreme Court

Federal judges serve for life, are constitutionally forbidden from receiving pay cuts, and have immense power.

The U.S. Supreme Court was a decidedly conservative force during the Lochner era from roughly 1897 (the case of Allgeyer v. Louisiana (1897)) to 1937, which is named after the case Lochner v. New York (1905), although Plessy v. Ferguson (1896), which provided a legal foundation for Jim Crow era apartheid laws, is arguably a better landmark.

From roughly 1937 to 1953 (the later part of the Hughes Court, and all of the Stone Court and the Vinson Court), the U.S. Supreme Court was deferential to Congress and the President, not striking down liberal legislation as the U.S. Supreme Court did during the Lochner era, but not protecting individual liberties in the way that the U.S. Supreme Court has since the Warren Court era even since its shift to a moderately conservative majority in 1991.  The Court's in this era established the enemy combatant doctrines during World War II that George W. Bush would use to fight the War on Terrorism and legally authorized Japanese internment during World War II.  On balance, this too was a moderately conservative court.

The liberal Warren Court (1953-1969) produced Brown v. Board of Education, and most of the precedents that gave effect to federal constitutional protections for criminal defendants.  The Burger Court (1969-1986) most notably produced Roe v. Wade, but gradually took a more moderately liberal position that continued into the first few years of the mostly moderately conservative Rehnquist Court (1986-2005).  The Roberts Court (2005-Present) has also been moderately conservative.

The U.S. Supreme Court has had a moderately conservative majority since 1991 when Justice Thomas was appointed.  This checked Democratic power during the periods when Democrats were in control of the political branches during the administrations of Presidents Clinton and Obama.

Also, the modern Supreme Court, while its median vote is moderately conservative, has gained several members who are extremely conservative relative to the legal profession and other judges (i.e. Justices Scalia, Thomas and Alito).  The current conservative-liberal balance of the U.S. Supreme Court is 5-4, which very moderately conservative Justice Kennedy as the swing vote.  So, a single liberal U.S. Supreme Court appointment could shift the U.S. Supreme Court to a liberal one, while a single conservative U.S. Supreme Court appointment could shift the U.S. Supreme Court from being moderately conservative to very conservative.

The unquestioned legitimacy of the Supreme Court's decision in the Bush v. Gore case, that resolved a Presidential election in 2000 on a 5-4 vote, illustrates just how secure the Supreme Court's status as final arbiter of constitutional and political disputes in the United States is today.

The Lower Federal Courts

There are other countries that have courts or quasi-judicial bodies comparable in clout to the U.S. Supreme Court in their political systems.  France has the Council of State.  Many countries have "constitutional courts."  But, no other country in the world has a large corps of judges with power comparable to those of U.S. federal court judges and state court judges in general jurisdiction trial courts.  In civil law countries, ordinary judges lack the authority to declare statutes unconstitutional or to handle cases involving governmental entities (a field of law called "public law" in those countries).  In other countries in the Anglo-American common law traditional, judges also lack broad public law authority.

Moreover, the U.S. system of selecting judges, for all its flaws, puts successful, talented and politically connected people who have proven themselves in previous legal careers in judicial office, while civil law countries and most countries in the Anglo-American tradition as well, tend to attract less esteemed, more politically timid career bureaucrat types to their judiciaries (although "investigating judges" in some civil law countries, particularly in Spanish, Italian and Latin American courts can sometimes be an exception to this rule, serving roles more like an attorney-general in the U.S. political system).

The result has been a virtuous circle.  Talented people on the bench skillfully exercise their power in part in ways that expand their authority, and the track record of the courts of making better decisions than the political branches on many issues encourages lawmakers to trust judges with ever greater responsibility.

Often, these lower federal court judges resolve sensitive political issues in ways that will never receive U.S. Supreme Court review.  There is only so much that the U.S. Supreme Court, can do to supervise the fifty state supreme courts and more than a dozen federal appellate courts (including territorial supreme courts) from which appeals can be lodged with it.  About five or six hundred judges in the United States sit on courts from which the only remaining appeal is to the U.S. Supreme Court.  The U.S. Supreme Court considers only about 2% of the cases appealed to it on the merits.  It has only a limited capacity to reign in liberal or conservative tendencies in the lower federal courts with its precedents.

As one former Colorado Supreme Court justice explained:
While an appellate court may have the opportunity to reverse any individual trial judge every few years, I know that trial judges, in their numerous workday rulings, reverse appellate courts every day.
In the federal courts, lower federal judges are appointed by the President, with input from affected Senators, and while the U.S. Senate often whines about the President's choices, it very rarely fails to confirm his nominees in the end.  Also, driven by the prospect of handsome pension plans, federal judges below the U.S. Supreme Court tend to retire at a reasonable age, rather than literally serving "for life."  So, the federal judiciary tends to get gradually more liberal during Democratic presidencies, and to get gradually more conservative during Republican presidencies, in a fairly orderly and regular fashion.

Currently, a majority of judges sitting on many important federal courts have been appointed by Democrats.

The Military

In many countries of the world, the military is an important military power broker and "guardian of the constitution," a role that often leads to coups when civilian governments grow hopelessly tangled.  But, the U.S. military has never had this role.

The American political culture, a clearly understanding that the President is the undisputed commander-in-chief of the armed forces, and statutes barring military involvement in law enforcement, have successfully kept the U.S. military almost completely out of politics, despite the fact that when surveyed, more Americans almost always trust the U.S. military more than the President, Congress, or the Supreme Court.

This isn't to say that military leaders don't have political opinions.  Indeed, since the U.S. military has become an all volunteer force, it has become much more polarized.  Currently, about 90% of military officers identify as Republicans (enlisted soldiers are more evenly divided).  Among white military officers, the percentage who identify as Republicans is even greater.

But, American military officers have historically been content to seek to participate in politics (other than those directly pertinent to the Department of Defense and foreign affairs) after they retire, rather than while serving on active duty.  Soldiers who attempt to do otherwise are routinely disciplined in the military justice system.

The sheer size of the U.S. military is also relevant to its potential political role. Contrary to one's ordinary intuition, the smaller a national military force is, the more likely it is to carry out a coup.  It boils down to a question of collective action.  It is harder to organize hundreds of senior military officers spread across the globe than it is to organize a handful of senior military officers who are all based in their home country.

Federalism and the Bureaucracy

Very roughly, about a million federal civilian employees work in military or national security posts, about one and a half million are active duty military personnel, about three-quarters of a million federal employees work for the U.S. Postal service, and about a million other civilians work for the federal government.  Thus, about 2.5 million of the 5.25 million people who work for the federal government have military or national security jobs.

The Postal Service and many civilian government federal employees, moreover, work in independent agencies that have substantial autonomy from the current Presidential administration and sometimes even have their own funding sources granting them a measure of fiscal autonomy from the Congressional budget process as well.

In contrast, about 16 million people work for state and local governments, a large share of which work in public school districts and public colleges and universities.  This employment is also highly decentralized with local governments employing many more people than state governments, particularly outside colleges and universities.

Law enforcement, in particular, is very bottom heavy.  The vast majority of law enforcement officers work for local governments.  The number who work for state governments or the federal government is much smaller.  Moreover, local law enforcement is almost always accountable to local elected officials, with only very loose supervision from and coordination with state and federal law enforcement officials.  There is probably no other developed country in the world with such a decentralized law enforcement system bar none (even notoriously decentralized Switzerland).

Civil service systems in governmental entities insulate the vast majority of federal and state government civilian employees, and a significant number of local government employees from politically motivated action that could impact their employment.  Government hiring below the policy making level is largely merit based to the extent it is reasonably feasible to do so, and firing government employees of almost any kind is, as a rule, very difficult.

Public employees are also much more heavily unionized than any other part of the United States economy.  Public sector unionization is growing, while private sector unionization is at levels lower than before there were any federal laws protecting union activity back in the 1920s and teens.

This isn't to say that the federal government isn't important.  But, a lot of what the federal government does is write checks in programs that don't involve many federal government employees.  The federal government also sets lots of key policies that influence all levels of government and the private sector.  But, with some notable exceptions, like the Veteran's Administration hospital system, the federal government doesn't carry out its programs directly with large numbers of its own employees.

But, the decentralization of American government means that even a total deadlock at the federal government level does not bring the operation of many key functions of government, or even significant policy making innovation, to a total stop.

Indeed, the fact that the consequences of a government shutdown or policy deadlock at the federal level can often be modest, is one of the reasons that political leaders allow these things to happen.

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