Political Dysfunction and Constitutional Change

Richard L. Hasen 

University of California, Irvine School of Law
April 2, 2013

Drake Law Review, Forthcoming, Vol. 86, 2013
UC Irvine School of Law Research Paper No. 2013-100 
Abstract:      
This Essay was prepared for a symposium at Drake Law School on "The U.S. Constitution and Political Dysfunction: Is There a Connection?” Signs of political dysfunction abound in the United States government. Perhaps the best illustration is the ongoing fight over the U.S. budget, the national debt, and tax and entitlement reform , which has led to extraordinary (and so far unsuccessful) efforts to resolve legislative stalemate including the "super committee" and the sequester. The source of these deadlocks over budget reform is hardly a mystery: it is the mismatch between highly ideological political parties and our divided form of government which makes passing legislation difficult even in the absence of partisan deadlock. The partisanship of our political branches and mismatch with our structure of government raise this fundamental question: Is the United States political system so broken that we should change the United States Constitution to adopt a parliamentary system either a Westminster system as in the United Kingdom or a different form of parliamentary democracy? Such a move toward unified government would allow the Democratic or Republican parties to act in a unified way to pursue a rational plan on budget reform on other issues. Voters could then hold the party in power accountable if the programs its pursued were against voter preferences. It seems a more logical way to organize politics and insure that each party will have a chance to present its platform to the voters, to have that platform enacted, and to allow voters at the next election to pass on how well the party has managed the country. But changing the Constitution is a big deal.Even if a sense of national crisis and paralysis allowed an opening for parliamentary constitutional change, we should not lightly change the fundamental rules of our governance. There is a value to our constitutional tradition. Change can have unintended consequences. The country has weathered many crises under our existing form of government, and tinkering with long-term success, even given profound recent dysfunction, can be dangerous.

In this Essay, I briefly examine four arguments against making constitutional change to deal with current political dysfunction. The first two arguments contend that the current governmental system is not that dysfunctional. First, the current political stalemate may reflect the preferences of the median voter or the public at large. Second, the current political system actually produces a good amount of legislation, and a parliamentary democracy might produce too much rash legislation. The third argument accepts the premise that the current system is dysfunctional, but contends the dysfunction could be cured by sub-constitutional change, such as eliminating the filibuster or adopting additional open primary systems to produce more moderate candidates. The fourth argument also accepts the premise that the current system is dysfunctional, but sees that dysfunction as temporary, and expects dysfunction to be self-correcting as voters reject the current Republican Party far from the median voter, leading the Republican Party, and then Democrats, to move to the center. Evidence supporting the first three of the arguments against constitutional reform is conflicting and somewhat weak, but that the fourth argument is plausible and hard to evaluate in the midst of a potentially transformative era. We are in the middle of a highly partisan moment in American history but it is hard to know how long it will last. I conclude it is worth waiting to see if the political system self-corrects, especially given the risks of tinkering with the constitutional system and the value of not changing our constitutional traditions lightly. Given current political dysfunction which would block a move toward a parliamentary democracy in any case, waiting not only prudent but unavoidable.

Number of Pages in PDF File: 27

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2243798