Political Order and Political Decay (75 page)

 

32

A STATE OF COURTS AND PARTIES

How the judiciary and legislature continue to play outsize roles in American government; how distrust of government leads to judicial solutions for administrative problems; how “adversarial legalism” reduces the efficiency of government

The three categories of political institutions—state, rule of law, and democracy—are embodied in the three branches of government of a modern liberal democracy—the executive, the judiciary, and the legislature. The United States, with its long-standing traditions of distrust of government power, has always emphasized the role of the institutions of constraint—the judiciary and legislature—over the executive in its institutional priorities. As we saw in chapters 9–11 above, American politics during the nineteenth century was characterized by Stephen Skowronek as a “state of courts and parties,” where government functions that in Europe were performed by an executive branch bureaucracy were performed in the United States by judges and elected representatives. The creation of a modern, centralized, merit-based bureaucracy capable of exercising jurisdiction over the whole territory of the country began only in the late 1880s, and the number of classified civil servants did not reach 80 percent until the time of the New Deal more than fifty years later.
1

This shift to a more modern administrative state paralleled an enormous growth in the size (or what I labeled in chapter 2 the “scope”) of government as well.
Table 7
displays total tax revenues as a percentage of GDP for a selected group of developed countries over time. Spending has grown even faster than tax revenues, as indicated in
Table 8
.

TABLE 7.
Tax Revenue as a Percentage of GDP

Much of the literature on American state building, or the “rise of the modern administrative state,” tends to assume that history is a one-way ratchet that, once turned, cannot be reversed. This would seem to be borne out in terms of government scope. Table 7 indicates that the overall levels of taxes have for the most part continued to grow since the 1970s despite the Reagan and Thatcher revolutions in the United States and the United Kingdom, despite efforts by those leaders to reverse growth of state sectors. To the relief of progressives and the consternation of conservatives, “big government” seems to be very difficult to dismantle.

TABLE 8.
Government Revenue, Spending, and Deficits as a Percentage of GDP, 2011

Focusing only on the United States for the moment, the apparently irreversible increase in the scope of government in the twentieth century has masked a large decay in its quality (or what I labeled state “strength” in chapter 2). This deterioration in the quality of government has in turn made it much more difficult to get fiscal deficits under control. The quantity, or scope, problem will be very difficult to address until the quality, or strength, problem is fixed at the same time. To put it in less abstract language, the American system of checks and balances makes it harder, relative to other democracies with different institutional arrangements, to make decisions. In the past, this slowed the growth of the American welfare state. But the cumbersomeness of the process also makes it very hard to cut that state back. Performing the core function of any political order—responsible budgeting—will be difficult unless those processes are somehow streamlined and implementation of policies becomes more efficient.

The decay in the quality of American government is rooted in the fact that the United States has returned in certain ways to being a state of “courts and parties”—the courts and legislature have usurped many of the proper functions of the executive, making the operation of the government as a whole both incoherent and inefficient. The story of the courts is one of the steadily increasing judicialization of functions that in other developed democracies are handled by administrative bureaucracies, leading to an explosion of costly litigation, slowness of decision making, and highly inconsistent enforcement of laws. The courts, instead of being constraints on government, have become alternative instruments for the expansion of government.

There has been a parallel usurpation by Congress. Interest groups, having lost their ability to directly corrupt legislatures through bribery and the feeding of clientelistic machines, have found new, perfectly legal means of capturing and controlling legislators. Interest groups exercise influence way out of proportion to their place in society, distort both taxes and spending, and raise overall deficit levels through their ability to manipulate the budget in their favor. They also undermine the quality of public administration as a result of the multiple and often contradictory mandates they induce Congress to support. All of this has led to a crisis of representation, in which ordinary people feel their supposedly democratic government no longer truly reflects their interests but is under the control of a variety of shadowy elites. What is ironic and peculiar is that this crisis in representativeness has occurred in part because of reforms designed to make the system more democratic.

Both phenomena—the judicialization of administration and the spread of interest-group influence—tend to undermine people's trust in government. This distrust then perpetuates and feeds on itself. Distrust of executive agencies leads to demands for more legal checks on administration, which reduces the quality and effectiveness of government. That same distrust leads Congress to impose new and often contradictory mandates on the executive, which prove difficult if not impossible to fulfill. Both processes lead to a reduction of bureaucratic autonomy, which in turn leads to rigid, rule-bound, uninnovative, and incoherent government. Ordinary people then turn around and blame bureaucrats for these problems, as if bureaucrats enjoy working under a host of detailed rules, court orders, earmarks, and complex mandates coming from courts and legislators over which they have no control. The problem with American government lies rather in an overall system that allocates what should properly be administrative powers to courts and political parties.

The problems of American government arise, then, because there is an imbalance between the strength and competence of the state on the one hand, and the institutions that were originally designed to constrain the state on the other. There is, in short, too much law and too much “democracy” relative to American state capacity.

AN UNUSUAL WAY OF PROCEEDING

One of the great turning points in twentieth-century American history was the Supreme Court's 1954
Brown v. Board of Education
decision, which overturned on constitutional grounds the nineteenth-century
Plessy v. Ferguson
case that had upheld legal segregation. This decision was the starting point for the civil rights movement that unfolded over the following decade, which succeeded in dismantling the formal barriers to racial equality and guaranteed the rights of African Americans and other minorities. Use of the courts to enforce new social rules was the model followed by many subsequent social movements in the late twentieth century, from environmental protection to women's rights to consumer safety to gay marriage.

So familiar is this heroic narrative to Americans that they are seldom aware of how peculiar their approach to social change is. The primary mover in
Brown
was the National Association for the Advancement of Colored People (NAACP), a private voluntary association that filed a class action suit against the Topeka, Kansas, Board of Education on behalf of a small group of black parents and their children. The initiative had to come from private groups, of course, because the state government was under the control of prosegregation forces. The NAACP continued to press the case on appeal all the way to the Supreme Court, and was represented by future Supreme Court justice Thurgood Marshall. What was arguably one of the most important changes in American public policy came about not because Congress as representative of the American people voted for it, but because private individuals litigated through the court system to change the rules. Later changes like the Civil Rights and Voting Rights Acts were the result of congressional action. But even in these cases, enforcement of national law was left up to the initiative of private parties who were given standing to sue the government, and was carried out by courts.

There is no other liberal democracy that proceeds in this fashion. All European countries went through similar changes in the legal status of racial and ethnic minorities, women, and gays in the second half of the twentieth century. But in Britain, France, or Germany, the same result would have been achieved not using the courts but through a national justice ministry acting on behalf of a parliamentary majority. The legislative rule change would have been driven by public pressure from social groups and the media but would have been carried out by the government itself and not by private parties acting through the justice system.

The origins of the American approach lie in the historical sequence by which its three sets of institutions evolved. In Britain, France, and Germany, law came first, followed by a modern state, and only later by democracy. The pattern of development in the United States, by contrast, was one in which a very deep tradition of English Common Law came first, followed by democracy, and only later by a modern state. While the last of these institutions was put into place during the Progressive Era and the New Deal, the American state always remained weaker and less capable than its European and Asian counterparts. More important, American political culture since the founding has been built around distrust of executive authority, so that functions routinely entrusted to administrative bureaucracies in other countries are parceled out in the United States to courts and legislators.

During the Progressive Era and New Deal, reformers tried to construct a European-style administrative state. This brought them directly into conflict with the conservative courts of the time, culminating in the Roosevelt administration's effort to pack the Supreme Court and the subsequent backlash that forced it to back down. More compliant courts in the middle of the twentieth century permitted the emergence of an ever-larger administrative state. But Americans remained highly suspicious of “big government” and new federal agencies. Distrust of the government is not a monopoly of conservatives; many on the left worry about the capture of national institutions by powerful corporate interests, or about an unconstrained national security state, and prefer grassroots activism via the courts to achieve their preferred policy outcomes.

ADVERSARIAL LEGALISM

This history has resulted in what the legal scholar Robert A. Kagan labels a system of “adversarial legalism.” While lawyers have played an outsized role in American public life since the beginning of the republic, their role expanded dramatically during the turbulent years of social change in the 1960s and '70s. Congress passed more than two dozen major pieces of civil rights and environment legislation in this period, covering issues from product safety to toxic waste cleanup to private pension funds to occupational safety and health. This constituted a huge expansion of the regulatory state founded during the Progressive Era and New Deal, a shift that American businesses and conservatives are so fond of complaining about today.
2

Yet what makes this system so unwieldy is not simply the level of regulation per se, but the highly legalistic way it is pursued. Congress mandated creation of an alphabet soup of new federal agencies—EEOC, EPA, OSHA, etc.—but it was not willing to cleanly delegate to these bodies the kind of rule-making authority and enforcement power that European and Japanese state institutions enjoyed. What it did instead was turn over to the courts responsibility for monitoring and enforcement of the law. Congress deliberately encouraged litigation by expanding standing (who has a right to sue) to wider circles of parties, many of whom were only distantly affected by a particular rule.
3