Cutler, Lloyd

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Washington University Law Review Volume 68 Issue 3 Federalist Society Symposium: The Presidency and Congress—Constitutionally Separated and Shared Powers January 1990 What is Wrong with Divided Government? Lloyd Cutler Wilmer, Cutler & Pickering Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Law and Politics Commons Recommended Citation Lloyd Cutler, What is Wrong with Divided Government?, 68 WASH. U. L. Q. 563 (1990). Available at: https://openscholarship.wustl.edu/law_lawreview/vol68/iss3/7 This Symposium is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. WHAT IS WRONG WITH DIVIDEDGOVERNMENT?LLOYD CUTLER*Bob Strauss likes to say about an introduction like that-"I liked it,and my mother would have believed it." I was told when I got here thatwe would be all done by 9:45. Well Richard, I have about two minutesleft, and you speak about four times as fast as I do. I will just take onesecond to add to Peter's story about the tombstones in the graveyard.Tonight the reason why we are so late is the leisurely manner in whichwe were served. It was Dorothy Parker who coined the "waiter's epi-taph," which reads "Death finally caught his eye."What Richard and I have agreed to talk about, and I suppose he canmop up the floor with me, is divided government, by which I mean whenone party holds the White House and the other party holds a majority ofone or both houses of Congress. Divided government does not worknearly as well as unified government, when one party holds all threepower centers. My thesis is plain enough. I can put it into threesentences. First, divided government has become the norm rather thanthe exception. Second, divided government results in deadlock and a dif-fusion of political accountability for the outcomes of government. Third,because of this, we need either a new political science theory-we do nothave one yet-about how to make divided government work better, orwe need to devise some ways to make it less likely that divided govern-ment will happen.We have had two polar shifts in the American political economy sinceWorld War II. One is the shift from party government, unified govern-ment, which prevailed most of the time from John Adams through HarryTruman, to divided government, which has prevailed most of the timesince 1956, and virtually all of the time since 1968. The second polarshift is from balanced budgets or small budget deficits to very deep defi-cits exceeding three percent of the gross national product-a level thatmost economists agree is not sustainable over an extended period. Put-ting wars and great depressions aside, we never had deep deficits, deeperthan three percent of the gross national product, until well after World* Wilmer, Cutler and Pickering and former White House Counsel.Washington University Open Scholarship564 WASHINGTON UNIVERSITY LAW QUARTERLYWar II. Since World War II we have had eleven of these deficits exceed-ing three percent of the gross national product.There is a remarkable fit between the two polar shifts, the increase individed government and the increase in budget deficits. Every single timewe have had a deficit in excess of three percent since World War II hasbeen a time of divided government. That was true under Truman in fis-cal 1948, Ford in 1975 and 1976, and Ronald Reagan in eight straightyears from 1982 through 1989.Now big deficits like this, of course, have never been, at least sinceJohn Keynes, an intended goal of national policy, except in the depths ofa severe depression. Presidents and congressional leaders of both partiesstrongly oppose deep deficits. Most polls show that the public shares thisview by a very wide margin. High deficits occur when the President andthe Congress cannot form a consensus on a mix of taxes and expenditureprograms that will create some reasonable balance between inflows andoutflows. High deficits are a consequence of deadlock between the execu-tive and legislative branches in exercising their shared power to legislate.When government is divided in this way, there is no accountability whengovernment fails. There is no one to blame for the deadlock, and virtu-ally everyone gets re-elected.Conversely, when one party holds all three power centers, there is ac-countability, there is a party to blame and that party's incumbents in theWhite House and Congress are not going to risk defeat by running updeep deficits of the type the public would blame them for, and of whichthe public so heavily disapproves.Incidentally, one could make the same point about the exercise of thewar powers. sEvery confrontation about the War Powers Resolutionsince World War II has come during a time of divided government. Thatwas true of the passage of the War Powers Resolution itself over Presi-dent Nixon's veto. It was true every single time the Congress exercised itspower to disapprove the sending of our troops abroad or sending arms toa country where Congress did not want them sent. Under unified gov-ernment, disapproval practically never occurred.The Constitution, of course, may have something to do with this, butnot because deadlock must result from the separation of powers, or froma transgression by one branch into the powers of another. As RichardNeustadt put it, we do not have a government of separated powers, wehave a government of separate branches exercising shared powers. Mon-tesquieu's adherents, at best, gained only half a loaf at the Constitutional[Vol. 68:563https://openscholarship.wustl.edu/law_lawreview/vol68/iss3/7WHAT IS WRONG WITH DIVIDED GOVERNMENT?Convention. As this audience certainly knows, the strict separation ofpowers was blurred in order to advance what Forest MacDonald calledthe other and nearly irreconcilable basic principle of the Constitution,namely checks and balances. The failure to follow Montesquieu's idea ofstrict separation was one of the strongest arguments against approval ofthe Constitution during the various state ratification conventions.Madison said that the departments must be "connected and blended"to give each a constitutional control over the others. Of course the Con-stitution contains numerous examples of that principle, in the veto, in thePresidential power to appoint, and in the Senate's power to confirm. Thesame is true of treaties. The same is true of appropriations and all theother powers. All sharers of power, like the President and Congress,have to figure out a way to cooperate with one another to get anythingdone. It is always true, and remains true today, that neither of these twomajor branches can do very much without the other.The way the framers got themselves out of this dilemma, when theybegan making this brave new system work, was to very quickly formbroadly based national political parties. It is true, of course, that theConstitution does not even mention parties, except a passing referencethat now appears in the twenty-fourth amendment which abolishes thepoll tax for primaries as well as general elections. But the framersformed parties when they began to run the government in order to offset,at least to some degree, the centrifugal force of these two powerful andantagonistic branches being asked to exercise shared powers.For the first 150 years, the party system had remarkable success infostering cooperation between the branches. In thirty-five of thirty-eightelections from 1796 to 1948, the party winning the White House alsowon the majority of both the House and the Senate. Taylor, Hayes, andCleveland, I think, in his second term, were the only exceptions. Now, ofcourse, the opposite happens. Beginning in 1956, in six out of nine Presi-dential elections we ended up with divided government. Beginning in1968, in five out of the last six Presidential elections, twenty of the lasttwenty-four years projected forward to 1992, we have had divided gov-ernment. I am sure that Richard will disagree with me, but I do notthink this has happened because the voters affirmatively want dividedgovernment, that is, a President of one party and a Congress of the otherparty, but because they just do not think party affiliation is importantanymore. One might paraphrase Shakespeare's Cassius in Julius Caesar1990]Washington University Open Scholarship566 WASHINGTON UNIVERSITY LAW QUARTERLYto say, "The fault, dear voters, is not in our stars, but in ourselves, thatwe are ticket splitters."All of this is very pleasing to incumbents. Over ninety percent of allcongressional incumbents-on average a little over eighty percent of theSenate and probably ninety-six percent of the House-get themselves re-elected. Almost every incumbent President in modem times who has runfor another term while in office as President at a time of divided govern-ment has been re-elected. The only exception to that was Gerald Ford,who almost won against Jimmy Carter.Woodrow Wilson was the first to call attention to the problem of di-vided government in the 1912 election when the Democrats held theHouse, but not the Senate or the White House. During most of his cam-paign his central thesis was to put the Democrats in power in all threebranches. He said without the same party in control of all threebranches, "you have an arrested government. You have a governmentthat is not responding to the wishes of the people. You have a govern-ment that is not functioning; a government whose very energies arestayed and postponed. If you want to release the full force of the Ameri-can people you have to get possession of the Senate and the Presidency aswell as the House."I think it is fair to say that political science theory in the United Stateshas always held, and until recently was historically justified in holding,that because of our two party tradition, one party would almost alwayswin control of all three power centers, the White House and the twohouses of Congress, and that this on the whole was beneficial becauseparty loyalty offsets the centrifugal force of the separate departments.Now that divided government is the rule rather than the exception, weneed a new theory of how to make it suceed. I will certainly concede thatthe pragmatists like George Bush and Jim Baker are perhaps well on theroad to a theory. They know they are sharing power. They know thatthey have to cooperate with Congress to make it work. But the jury willhave to be out for several more years before we find out whether theirpragmatism will work. If we cannot develop such a theory, then we needsome new legislative, or perhaps even constitutional arrangements, thatwill make it less likely that divided government will happen in the future.This, I would submit, is our most daunting American political task asour Constitution, our wonderful Constitution, enters its third century.[Vol. 68:563https://openscholarship.wustl.edu/law_lawreview/vol68/iss3/7

What is Wrong with Divided Government?

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What is Wrong with Divided Government?

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