Legal Affairs – Election 2000: The Case for Partisan Gridlock

National Journal

Would you like to see the estate tax repealed so that more people will be so flush with family money that they will never need to work? How about spending $100 billion or more on an easily circumvented missile shield that would wreak havoc with arms control? Or securing major cutbacks in federal environmental laws? Or speeding up executions of accused murderers without bothering to give them fair trials? Or returning to huge budget deficits? Then you should be rooting both for George W. Bush and for solid Republican majorities in Congress.

Would you like to see race and gender preferences entrenched in all walks of life for decades to come? A nationwide ban on tuition vouchers for families that prefer religious schools? The demise of any judicial check on the reach of federal regulatory power? Welfare reform weakened or unraveled? A government-trial lawyer alliance to milk billions of dollars in "damages" and "fees" from disfavored industries and their customers? A return to huge budget deficits? Then you should be rooting both for Al Gore and for solid Democratic majorities in Congress.

Or would you prefer to see more-centrist policies, such as those that have emerged from the bitter struggles between President Clinton and the Republican congressional leadership, and from a Supreme Court controlled by moderates? Then you might want to root for divided government, complete with the partisan conflict that voters so deplore and a Senate ornery enough to block any Supreme Court nominee likely to tip the balance sharply to the liberal or the conservative side.

The partisan bickering that accompanies divided government can be ugly, of course. It does not help get things done. But divided government is not a bad way of ensuring that neither Democrats nor Republicans will succeed in writing their most extreme ideas into the law. And it’s probably the best bet for maintaining the relatively placid and prosperous status quo. Consider the alternative: one political party taking command of all three branches of the federal government.

With the Republicans in charge, the repeal of the "death tax" would be only the most obvious way in which the tax system would change to make the rich richer, without much concern about the effect on the poor or the risk of evolving toward semihereditary plutocracy. One needn’t oppose lowering marginal tax rates to worry that taken as a whole, the Bush tax plan might let the wealthiest Americans pay less than their fair share of the nation’s bills-including an estimated $100 billion-plus for a missile defense that might not work at all, and that would in any event do nothing to prevent the smuggling of bombs into our cities by boat and by truck.

Environmental laws? Republicans such as Bush may be right in arguing that the most efficient way to clean up the environment is to let the private sector choose the means. But business was doing far too little to control pollution before the government started imposing the mandates and regulations that many Republicans oppose. Beyond that, if Bush gets a chance to make the Supreme Court more conservative, the majority might carry its current campaign to curb federal regulatory power to the extreme of disrupting environmental programs that we have come to take for granted, while at the same time clouding the government’s ability to adopt reasonable economic regulations and (perhaps) civil rights protections.

Already the Court has severely curbed federal judicial review of state criminal convictions and death sentences, even when a defendant’s trial was palpably unfair or significant evidence of innocence had emerged. Although Gore joins Bush in embracing the death penalty, Bush is the one who has presided with unseemly gusto over more executions than any other governor, while evincing remarkably little concern about such problems as court-appointed defense lawyers sleeping through trials. Ideologically conservative Bush judges would not be a good bet to provide adequate protection for the rights of defendants.

With the Democrats in charge, on the other hand, the share of the gross domestic product consumed by government might rise inexorably. This increase would push tax rates higher or bring back big budget deficits, or both. For all his balanced-budget promises, Gore has campaigned more like an old-fashioned, big-spending, business-bashing liberal than Clinton ever did. He also seems more predisposed to go along with Democratic leaders in Congress. Most of them are from their party’s liberal wing and have favored an unfortunate mix of ever-expanding federal spending and regulation, economic protectionism, and creeping socialization of the health care system.

Commentator Mickey Kaus, an independent-minded Democrat who believes that Gore might make a good President, nonetheless writes this in the online magazine Slate and his own Kausfiles: "It’s not clear that the interaction of Gore with a Democratic Congress wouldn’t produce more mischief than progress…. It was the congressional Dems who opposed NAFTA, who wanted a `stimulus package’ rather than deficit-cutting in Clinton’s first budget … who opposed any sort of attempt to fix the failed welfare system."

In addition, Gore has pandered so unreservedly to the teachers unions, the trial lawyers, and the racial-preference lobby that he is essentially committed to fighting efforts to reform dysfunctional public schools or open up more educational choices; to supporting the litigation binge that often operates as a tax on the American people; and to championing the proliferation of affirmative action preferences without end. A Democratic Congress would help Gore fulfill these unwise commitments.

On the Supreme Court front, a lunge to the left would be almost as worrisome as a lurch to the right, at least to those of us who want to see our grandchildren grow up in a nation focused more on individual merit than on racial proportionality, and who don’t want a nationwide, court-imposed ban on tuition vouchers for students at religious schools, and who think the Court’s four more-liberal members go too far when they argue for abandoning any effort to enforce the Constitution’s outer limits on the regulatory authority of Congress.

So what’s a centrist voter to do? Kaus offers a semifacetious "matrix." It classifies a Gore-Democratic Congress combination and a Bush-Republican Congress combination as "risky"; a Bush-Democratic Congress combo as "OK"; and a Gore-Republican Congress combo as the best option (because Gore would restrain military spending and Congress would restrain domestic spending). Such logic would be familiar to the architects of the Constitution. James Madison wrote in Federalist 51 that "ambition must be made to counteract ambition," and he joined other convention delegates in devising the Constitution’s tripartite separation of powers "not to promote efficiency but to preclude the exercise of arbitrary power," as Justice Louis D. Brandeis explained much later. Many Founders also showed a penchant for partisan bickering that makes today’s tiffs seem trifling: Thomas Jefferson and Alexander Hamilton despised one another. Jefferson accused Chief Justice John Marshall of plotting perfidiously "to make the judiciary a despotic branch." John Adams called Hamilton "the bastard brat of a Scotch peddler." And Vice President Aaron Burr shot Hamilton dead in a duel.

The Kaus matrix has its limits as a voters’ guide: We will not know the final outcome of the congressional sweepstakes when we cast our presidential ballots, and in any event the next President’s partisan adversaries in Congress are likely to have enough clout to block radical innovations even if they are in the minority. In addition, there is (or at least there used to be) something special about the role of the presidency as a symbol of political and moral leadership, something transcending partisan alignments and the merits of any particular policy mix.

The Kaus matrix may hold little charm for voters who agree with columnist Michael Kinsley that Bush is either "a moron" or "a man of impressive intellectual dishonesty and/or confusion [whose] policy recommendations are often internally inconsistent and mutually contradictory." Likewise for voters who think that (as a thoughtful conservative puts it) Gore has proven to be "alarmingly less honest, and more prone to distortions and deceptions, than we have come to expect of our politicians," and who believe that the whole Clinton-Gore crowd has to go "to put an end to the last eight years of scandals and half-truths and lies."

Where does this leave those who find merit in both critiques? Well, nobody ever promised us that voting would be fun. And we can console ourselves with the thought that perpetuating partisan gridlock is not only the most probable possibility, but also the most propitious.