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What Chile Could Teach The United States About Preventing Government Shutdowns

By Ian Millhiser on October 10, 2013 at 9:00 am

"What Chile Could Teach The United States About Preventing Government Shutdowns"

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Chilean President Sebastián Piñera

Chilean President Sebastián Piñera

Chile is, to say the least, an unusual place for Americans to look for democratic reforms. In 1973, a coup overthrew the nation’s democratically elected government and replaced it with a military junta. General Augusto Pinochet, the head of Chile’s army, consolidated his power within the junta by marginalizing and eventually pushing out his chief military rival. He declared himself president. He banned the political parties that made up his predecessor’s coalition. And he killed, tortured or “disappeared” tens of thousands of Chileans for political reasons. Pinochet’s rule is a warning about the fragility of democracy, and of how it can collapse in a nation that chose its own leaders for decades.

Nearly a quarter of a century after Pinochet left office, however, Chile is once again a democracy — albeit one with an unusually strong presidency by American standards. Under the Chilean constitution, for example, the president has the exclusive power to propose changes “to the financial or budgetary administration of the State,” as well as exclusive power to propose changes to tax policy. The United States Constitution was born out of fear of concentrated power — “[a]mbition must be made to counteract ambition” in the Federalist Papers’ famous words — so it is doubtful that Americans would accept many of the powers given to Chile’s president.

Nevertheless, America now finds itself in crisis largely because of our separation of powers. Last November’s elections returned a Democratic president and, despite the fact that Democratic House candidates won over 1.3 million more votes than Republicans, gave Republicans enough legislative power that they can veto any legislation they choose. Combine this with the fact that much of our government ceases to function unless Congress enacts regular appropriations bills, or the fact that our debt ceiling amounts to a time bomb that must occasionally be disarmed by Congress to prevent economic catastrophe, and the nature of America’s current dilemma is clear. Both parties must work together to ward off economic disaster, and House Republicans decided instead to demand a ransom before they will agree to must-pass legislation.

As numerous writers noted after a shutdown became inevitable, the late Yale political scientist Juan Linz predicted this hostage crisis 23 years before it happened. Here’s my piece laying out Linz’s theory. And here’s Dylan Matthews‘, Alex Pareene’s, and Matt Yglesias‘. Linz warned that presidential democracies — that is, democracies where the chief executive is elected separately from the legislature — are prone to failure because, when two different political factions control these two branches of government, both factions can claim democratic legitimacy and there is no external mechanism to resolve the conflict. By contrast, parliamentary democracies — where the chief executive is selected by the legislature — are far less likely to descend into the conflict that paralyzes America today.

Prophetic as Linz’s scholarship proved to be, however, it does not exactly offer the United States a path forward — at least in the short term. As the University of Illinois’ José Antonio Cheibub notes in a piece criticizing Linz, “no democratic regime based on the principle of separation between the executive and the legislature has ever adopted” a parliamentary system. “[B]road constitutional frameworks,” Cheibub explains, “are hard to change.” It is hard to imagine American lawmakers who enjoy very nice jobs under our current system willingly voting to adopt a different system where they may wind up irrelevant.

Additionally, it is probably not accurate to blame the shutdown on the simple fact that Republicans control more House seats than Democrats. While some commentators doubt that enough House Republicans will vote to end the shutdown if forced to vote on a “clean” bill funding the government, the fact remains that 28 members of the House Republican caucus have publicly stated that they would support such a clean bill, and only 4 of these Republicans have backed off these statements. Two Republicans added their voices to the call for a clean bill as recently as Monday. When you add the 24 Republicans who still support ending the shutdown to the 200 members of the Democratic caucus, that’s more than the 217 votes needed to pass such a bill.

Yet the shutdown continues, largely because the House operates under what is known as a “legislative cartel.” Typically, such cartels arise when a bloc of lawmakers comprising a majority of a legislative body agree all cast their votes together, even if a minority of the bloc’s members disagree with the votes they’ve agreed to cast. In the House of Representatives, the GOP’s cartel is institutionalized by the fact that — with rare exceptions — a bill can only reach the House floor with the Speaker’s consent. For the most part, Speaker Boehner has maintained his party’s cartel by enforcing the so-called “Hastert Rule” and refusing to allow a vote on most bills that do not enjoy majority Republican support.

Which brings us back to Chile. Such a cartel, maintained by legislative leaders who refuse to allow a vote on bills that enjoy majority support, would be much more difficult to maintain in Chile. In addition to several provisions giving the Chilean president a significant upper hand in budgetary negotiations, Chile’s constitution permits its president to “point out the urgency for passing a bill,” thereby forcing a vote on the bill to occur within a certain period of time.

To be clear, Chile’s urgency provision is not well-tailored to solve America’s present circumstances. Among other things, the primary enforcement mechanism backing a president’s “urgency” designation is that the legislature cannot debate other legislation until all urgent bills have been disposed of. This is a useful power a president can use to force legislation to move forward when legislative leaders would prefer to focus on other priorities — in 1993, for example, Chile’s president designated and redesignated a bill reforming Chile’s rape laws as an urgent bill fourteen times before it finally passed Chile’s Chamber of Deputies — but it would be less useful during the current situation in the United States. It’s not like there’s some other important bill that will become law once the shut down ends and the debt ceiling is raised.

Nevertheless, Chile’s urgency provision is rooted in an important insight in constitutional design. It recognizes that legislation sometimes arises that is so important it must become the immediate business of the legislature, and that a forcing mechanism is sometimes necessary to ensure that such legislation receives a timely vote. Were a similar provision inserted into the United States Constitution — one allowing the president to bring a bill to the House floor and force a vote even against the House leadership’s will — that would likely be enough to end our current impasse and prevent leaders like Speaker Boehner from unilaterally vetoing legislation that enjoys majority support in the Congress.

Unlike a move to parliamentary democracy, bestowing such an agenda-setting power upon the President of the United States would not change the fundamental character of American democracy. And it certainly wouldn’t enable the rise of a Pinochet-like figure in the United States. What it would do is eliminate the Speaker of the House’s ability to unilaterally maintain a legislative cartel. If President Obama had the power to force a vote on legislation, that would not prevent a majority of the House from voting that bill down. It would not even prevent legislative cartels from forming if each individual member of a majority bloc agrees to abide by the cartel’s wishes. But it would prevent a situation like the one America faces today, where an elected official who represents just 1/16th of one state effectively holds the power to shut down the government or to blow up the nation’s economy.

Ratifying a constitutional amendment in time to prevent House Republicans from triggering a debt default would not be possible. Amending the Constitution of the United States is only slightly easier than hunting unicorns from griffinback, and would require many Republican lawmakers to endorse expanding President Obama’s power. Nevertheless, it is easy to imagine a future scenario — perhaps a tax cut favored by a Republican president but blocked by a Democratic cartel in the House — where Republicans would support giving an agenda-setting power to the nation’s chief executive.

Should this moment come, Democrats will be tempted to resist such a drive for the same reason they fought to preserve the filibuster in 2005. During the heat of a present legislative battle, short term goals can become all consuming, and it is difficult to accept a momentary defeat as the price of a worthwhile procedural reform.

Ultimately, however, America has become ungovernable because our legislative process is riddled with veto points. In nearly all cases, a bill can be vetoed by the president, or by a party that controls either house. Or by a party that controls neither house but controls a significant minority of the seats in the Senate. Or by a cartel that controls most of the seats in either house, even if a majority of both houses disagree with them. Or even by a leader elected by such a cartel, even if the leader is opposed by most of his colleagues in Congress. If an opportunity arises to remove some of America’s most anti-democratic veto points, lawmakers of all stripes should leap at the opportunity to do so.

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