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By Jay Cost

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Mr. Madison Votes Nay

In the wake of the immigration reform bill's defeat, I'd like to make a comment about journalists/pundits analyses of government. I find that, in subtle ways, their misunderstanding of the structure of our politics undermines public confidence in our system. Pundits, and the citizens who listen to them, are far too quick to label legislative defeats - like that which occurred with immigration reform - as "failures," when in fact they are a consequence of a political system that has held us in good stead for quite a long while.

Bob Franken - a veteran journalist for whom I have a great deal of respect - wrote the following on The Hill's pundit blog yesterday:

I'd like to borrow from the debates and ask everyone who thinks the immigration problem is about to be solved to raise his/her hand.

Oh come on: NOBODY? Congratulations, everybody.

But what we're witnessing is not about fixing this problem. It's about politicians trying to finesse the issue ...trying to make as much political capital as they can and then moving on to something else. [SNIP]

But here's the dirty little secret: A lot of our biggest challenges cannot really be overcome. Not really. Healthcare? Give me a break. It's true. Our current system is a grossly unfair mess. But the various one-size-fits-all proposals out there are really one-size-fits-NO ONE. [SNIP]

I am trying to make two points here: First of all, the battle between politics and good government has been won. By politics. And secondly, if you want to see real change in our country, you're going to have to make sacrifices.

Mr. Franken is correct in identifying the "dirty little secret" of American politics: it is very difficult to achieve legislative success. But he misidentifies the reasons for this secret truth. The desire of our politicians to be reelected and the interestedness of the Republic's citizens are insufficient, dispiriting explanations for the difficultly of passing programmatic legislation. Oh sure, if you change either of them, you could pass legislation. But, think for a moment about what that means. Franken essentially says that we could get things done if we all agree on matters, and if our politicians did not have to worry about reelection. That's about as helpful as saying we would not need the police if everybody was decent to one another.

Let us try to understand this phenomenon without recourse to comparing our system to an ideal that has never been nor ever will be. Let us take people as they are, and not as we would like them to be. It is only then that we start to think the same way that our governmental designers thought, and thus it is only then that we may start to understand the strangely consistent result that our political process yields, and yielded again just yesterday: little-to-no substantive output on matters of import.

Here's a question to get us started on this project: at what point in our nation's history has - to borrow's Franken's language - "politics" not systematically defeated "good policy?" I can count only three real instances - the Civil War Congresses, the Congresses of the 1890s, and the Great Depression Congresses. And what characterized the political landscapes in all periods? They were periods of realignment. Beyond instances like that, our system has not really allowed long-lasting, coherent alterations of the direction of our ship of state.

It amazes me that our politics can "fail" us again and again, and yet we still find ourselves blaming the politicians. One would think that after all of the hundreds of politicians we have trucked into and out of Washington over the centuries, we would have found more than three crews who could actually get stuff done. More generally, I think our quickness to declare that our politics have gone off the rails belies a strange kind of solipsism in which we all indulge from time to time. It is as if good-minded reformers have not run into the same problems again and again since the Republic itself was founded. It is as if the system has just now "broken down," as if it had been functioning just ducky up until the time we who live now became politically aware.

So, let us move beyond this solipsism, and ponder the Big Picture. Maybe it is the system itself that prevents great changes from happening - and that it is only under exceptional circumstances that policy reform can break through the barriers that the system itself creates. This is why I have placed scare quotes around "politics," "good policy," and "fail." These are all characterizations that obscure, rather than clarify, the defining features of our system. So, let us bring in our fourth President (my personal favorite) to shed some light.

What was James Madison's fear? Factionalism. This, he worried, could destroy our great republican experiment. In Federalist 10, he writes,

By faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

Madison took factionalism to be inevitable. Again, here is Federalist 10:
The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society.

And so, wherever men possess liberty, they will also become factionalists. Can good men - those who have a conception of, and are motivated by, the public good - avoid the pitfalls of factionalism? No. Mr. Madison continues,

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

For a free society to survive, the government must not become the tool of a faction. Rather, it must promote truly public policy. Blithe reliance upon larger-than-life statesmen is an unsatisfactory answer, and so also is limiting liberty. What to do?

Mr. Madison thought that a large republic would be a bulwark against this kind of sectionalism. It would filter the public's natural tendency to subdivide by forcing its will to be expressed only through periodically elected representatives; it would also make it so that representatives have more constituents than in a smaller republic, thus preventing them from promoting exceedingly small-minded interests.

Furthermore, Mr. Madison thought that a well-designed republic would be one characterized by the separation of power. The majoritarian principle could be relied upon to prevent small factions from acting in their narrow interests, but it would not stop large factions from acting against the general good. Federalism, he thought, would be a way to prevent factions of any size from profiting at the expense of the public good. Separating power makes it more difficult to accomplish any objective, but particularly factional objectives. The reason is that, in a federated system, it is unlikely that a factional coalition - even one of majority size - could acquire all of the dispersed mechanisms of power needed to institute its agenda. Thus, legislative success is achievable only when a majority coalition that represents the whole nation supports the proposal.

It is in this context that Mr. Madison expressed faith in democracy: when a majority representing the whole, and not merely a faction, of the people supports a course of action, it is likely that the course of action is good and right. In Federalist 51, he argues,

In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent by a judicious modification and mixture of the federal principle.

In our system, then, change comes about slowly, laboriously, and only with the aid of a majority of the whole nation. Thus, factionalism is avoided. But this avoidance comes at a cost. In practice, separating power has the effect of giving lots of governmental agents vetoes. It makes it easy to prevent change, very hard to enact it: for change to happen, all of those agents who have the opportunity to exercise a veto must demure from its exercise. This, of course, is exactly what did not happen with the immigration bill. Byron Dorgan - a single senator from one of the least populous states in the Union - effectively vetoed it.

We should see, then, the choice that our founders made. They chose governmental "gridlock" and "failure" over programmatic efficiency and "success." Why? They feared that programmatic efficiency would enable one faction to railroad another, thus endangering true republican government. If no faction has control over another, true republican government is possible. The price we must pay is programmatic efficiency. You cannot really achieve programmatic efficiency - except in those aforementioned exceptional, realigning circumstances - when you need a majority, national coalition to get anything done. Our country is too large and too diverse to admit of federalism and programmatic efficiency. The founders chose the former because their primary goal was to create a sustainable, free, republican system of government.

I must admit that I find myself disappointed when journalists with years of experience covering Washington watch our system stultify efforts to alter the status quo, and then declare - in so many words - that a failure has occurred. There was no failure here. A sole senator from North Dakota effectively vetoed it. This was an archetypical Madisonian moment! This was a sign that our system is functioning well - regardless of whether the bill's policy prescription was an objectively prudent course of action to take. It was a divisive bill whose supporters constituted only a faction of the public. Even if the faction was the so-called "moderate," "sensible," "middle" - this bill's coalition was never anything more than a faction within the whole. Thus, their bill was effectively vetoed.

The proclamations of failure from journalists like Mr. Franken discourage me because they engender in the public a sense that our system is not working as it should when, in fact, it is working exactly as it should. Our governing system is extremely complicated, our education system gives short shrift to civics training, and so there is a wide divergence between what the average citizen thinks our system was intended to do, and what it was actually intended to do. Misguided criticisms from journalists who look fondly upon those halcyon days of programmatic efficiency that never existed only exacerbate this disconnection.

When there is a nationwide consensus of significant size on the issue of immigration, then there will be reform. In the meantime, let's stop implying that our system has failed us. It hasn't. This "failure" is actually all part and parcel of the Madisonian system. Learn it, love it, live it. Believe me, you have no other choice. It's not like you can change it.

-Jay Cost