Peter Orszag has what I think is a very good column about the desirability of increasing automaticity in certain aspects of American policymaking that’s been given provocative framing around the idea that America needs “less democracy.”

Provocative framing has a lot of marketing value, but it also provokes lots of people to disagree with you and I saw Orzag’s thesis being subjected to a lot of unwarranted scorn earlier today. I would suggest that people ignore the framing and focus on what he’s actually saying. He seems to have two really concrete suggestions. One is that we should try to enhance the scope of “automatic stabilizers” in American fiscal policy. This is orthodox Keynesian thinking and not something any progressive should have a problem with. The other is that we should strengthen the hand of non-elected boards to make adjustments to Medicare payment rates. Some progressives may have a problem with this on the grounds that cutting spending is a bad idea. But most progressives I know also claim to be admirers of single-payer health care systems that do a better job than America’s of controlling health care costs. The way that they do this is precisely through the sort of technocratic price controls that Orszag is praising.

What I would say on both sides is that framing everything as a conversation around more or less “democracy” is a foolish way to think about institutional design. In a democracy, political authorities are accountable to citizens. That principle is compatible with a wide array of institutional schemes. Electing Supreme Court justices to two-year terms wouldn’t make America “more democratic,” it would make us worse governed. Adopting default rules that strengthen automatic stabilizers wouldn’t be “less democratic,” it would be a good idea.

The Economist’s “Lexington” has an odd column which puts its finger on exactly what’s so unusually dysfunctional about the U.S. Congress and then spends the rest of its column-inches missing the point. But here’s the great insightful part:

Above all, British politicians accept the rules of a simple game: the ruling party governs (occasionally in coalition) while the opposition bides its time.

American politics, as Lexington notes, is totally different from that. And this drives all sorts of difference. It’s an important insight, and I think it highlights why it’s important to get a comparative perspective on things. The grand poobahs of Washington tend to instead focus on personality characteristics. Politicians are just too mean and narrow-minded and need to get nicer! Lexington correctly sees that personal behavior is driven by institutional settings, and American institutions drive a certain kind of gridlock on conflict. And yet his conclusion forgets everything he’s learned:

America needs to make big changes if it is to live within its means. But this will not be done by tinkering with its system of government. It is the people who work the system who need to change, primarily by meeting their opponents half way. They could make a start by asking a member of the other party over for dinner.

This just really can’t be right if you think about it. Get some policy writers from diverse perspectives in a room together, and you’ll quickly find points of common ground and win-win compromises emerging. Get some graybeard former politicians from diverse perspectives in a room together, and you’ll quickly find points of common ground and win-win compromises emerging. Get some active politicians from diverse perspective in a room together to talk about an issue that’s not at the fore-front of the political agenda, and you’ll quickly find points of common ground and win-win compromises emerging (think the Wyden-Bennett Health Americans Act). And yet it doesn’t happen. Why doesn’t it happen? It’s because of characteristics of the system that are much larger than any one man, woman, or dinner party.

“Pennsylvania Ponders Bold Democrat-Screwing Electoral Plan” is Dave Weigel’s brilliant headline for a proposal pending in the PA state legislature. The way this would work is for Pennsylvania to combine aggressive gerrymandering with the adoption of a Nebraska-style divvying up of electoral votes by congressional district, to turn a fairly reliable Democratic source of electoral votes into Perry state.

Some people are noting that there are other states, most notably Wisconsin and Michigan, where the legislature can pull something similar. It’s worth noting, however, that under the U.S. Constitution, the discretion of state legislatures in allocating electoral votes is absolute. There’s no requirement that Pennsylvania, Ohio, Michigan, Wisconsin, or any of these other states hold any form of election. They could pass a law tomorrow saying delegating the selection of electors to Reince Priebus. This slightly addled constitutional provision has just been lurking around like a time bomb for over 100 years waiting for someone to push the envelop.

A Washington Post editorial on Japan observes that “Its political paralysis has implications well beyond the island nation of 126 million people.” Political paralysis, in other words, is a bad thing. And paralysis consists of the fact that “The merits of the argument may prove irrelevant, since Mr. Noda may not be able to unite his party behind a clear platform, much less steer it through the upper house of parliament, which the opposition Liberal Democrats control.”

Good points. I think it’s interesting, though, that the Post editorial writer doesn’t suggest that the situation could be improved by implementing a rule requiring the upper house to operate by a 60 percent supermajority rule and giving minorities of as few as one member tons of tools to obstruct business. Nor do they seem to feel that, having modified the upper house’s rules in that way, it would be useful to object second- third- and fourth-tier members of the executive branch to a confirmation process dominated by supermajority voting and one-man days-long slowdowns. They don’t suggest any of those changes because, obviously, those would be terrible ideas. It’s obvious, at least, when you start talking a foreign country so people are freed of arbitrary psychological anchoring to the status quo. Try to talk about America, though, and the suggestion that a legislature proceed by industry-standard “the side with more votes wins” rule is considered both radical and also likely ideologically motivated opportunism or sour grapes.

It’s certainly true as Kevin Drum says that one thing that happens when politicians don’t have the money to buy tons of television ads is that the guys who own newspapers get a lot of power. But I think it’s worth pointing out that this is just one of the many ways that money is bound to talk in the political system no matter what you do with campaign finance. Politicians are very dependent on lobbyists and trade associations not just for money, but for knowledge, expertise, and analytical capacity. But of course lobbyists and trade associations have those things in part because they cost money.

This is, I think, a pretty huge problem. But it’s not really one that can be solved by reducing people’s ability to give money to politicians. What’s needed are institutional reforms that give politicians more capacity to do analysis, and that put more political authority in the hands of politicians who have analytic capacity at their disposal. Whenever a decision is made “by the states” that means, in many places, that the decision is being made by term-limited part-time state legislators who have no practical alternative but to rely on lobbyists for guidance and information.

Fareed Zakaria has a smart column highlighting the dysfunctional mismatch between America’s highly polarized parties and our cooperation-oriented political institutions. Unfortunately, like a lot of people who write about this issue he seems to have fallen for the siren’s song of redistricting as a cure all. He cites a Mickey Edwards article in The Atlantic as offering good ideas, including “truly open primaries and handing over the power of redistricting to independent commissions.”

As it happens, we have a perfect controlled experiment in what an American legislature might look like without gerrymandering. It would look like the United States Senate. And the US Senate gives us plenty of examples of Senator-pairs who represent identical constituencies but have different partisan affiliations. So ask yourself, is it true that Pat Toomey and Bob Casey represent a streak of pragmatic dealmaking moderation that could get us out of this jam? How about Rob Portman and Sherrod Brown? What is true is that when you see a Republican elected from a clearly Democratic-leaning state like Scott Brown in Massachusetts, or a Democrat like Mark Pryor from Arkansas that this kind of “mismatched senator” tends to have a proclivity for dealmaking. But even so, the striking thing about partisan polarization in the United States is that Pryor has a more left-wing voting record than Brown just as Mary Landrieu is more left wing than Mark Kirk. Our null hypothesis about a House with less partisan gerrymandering should be that it would look more like the U.S. Senate. “Fair fight” districts would look like Ohio, schizophrenically sending us liberal Democrats and conservative Republicans according to circumstances prevailing on election day. Lopsided Republican districts would look like Arkansas, mostly sending us conservative Republicans but occasionally coughing up moderate Democrats. Lopsided Democratic districts would look like Massachusetts, mostly sending us liberal Democrats but occasionally coughing up moderate Republicans. But the moderate Republicans would still vote with the conservative Republicans most of the time, and the moderate Democrats would all be to the left of all the Republicans.

There are two main reasons why the parties are so polarized today. One is that we have the best-educated, best-informed electorate that we’ve ever had in American history, so elected officials are under more pressure to reflect the ideological views of their backers. The other is that we lack a major, high-salience issue that’s uncorrelated with the main fights in American politics. In the middle of the 20th century, some economic populists were also white supremacists and some business friendly conservatives had progressive views on race and racial politics was very important to a lot of people. If something brand new (barbershop licensing, parking regulation, etc.) were to become highly salient that might cut across existing partisan divisions. But absent that, we need to accept polarization and find a way to make our institutions work.

Goodwin Liu’s nomination to serve on the 9th Circuit came up for a vote today and Senate Republicans filibustered it to death. Ian Milhiser notes that many of those who voted to block an up-or-down vote on Liu until recently viewed the filibustering of judicial nominees to be categorically evil:

— Lamar Alexander (R-TN): “I would never filibuster any President’s judicial nominee, period. I might vote against them, but I will always see they came to a vote.”
— Saxby Chambliss (R-GA) and Johnny Isakson (R-GA): “Every judge nominated by this president or any president deserves an up-or-down vote. It’s the responsibility of the Senate. The Constitution requires it.”
— Tom Coburn (R-OK): “If you look at the Constitution, it says the president is to nominate these people, and the Senate is to advise and consent. That means you got to have a vote if they come out of committee. And that happened for 200 years.”
— John Cornyn (R-TX): “We have a Democratic leader defeated, in part, as I said, because I believe he was identified with this obstructionist practice, this unconstitutional use of the filibuster to deny the president his judicial nominations.
— Mike Crapo (R-ID): “Until this Congress, not one of the President’s nominees has been successfully filibustered in the Senate of the United States because of the understanding of the fact that the Constitution gives the President the right to a vote.”
— Chuck Grassley (R-IA): “It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60, and that’s essentially what we’d be doing if the Democrats were going to filibuster.”
— Mitch McConnell (R-KY): “The Constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent. But my Democratic colleagues want to change the rules. They want to reinterpret the Constitution to require a supermajority for confirmation.”

As I wrote at the time the correct progressive response to the “nuclear option”/filibuster controversy of 2005 would have been to seize the opportunity to eliminate or phase-out the filibuster. Had that happened, a few more right-wing judges would be on the bench today but much more progressive legislation could have passed in the 111th Congress and those extra conservative jurists would be counter-balanced by first-rate progressive jurists like Goodwin Liu.

This is the kind of thing that one tends to forget as one gets older, but American law is full of difficult to justify age discrimination provisions. Are any of us really troubled by the thought of a 20 year-old having a beer? Particularly odd, as Jonathan Bernstein notes, are the variety of federal offices for which one is not allowed to run if one is under 35 years old.

For example, while it seems like it would be difficult in practice for a twentysomething to win a senate election, it’s very hard to see what the problem would be with letting such a person serve if he managed to win. I’d rather have Jamelle Bouie or Ezra Klein in the Senate than any number of folks currently there. I’ve been reading recently about the debates at the Constitutional Convention and it’s interesting that there doesn’t seem to have been much explicit discussion of these age limits or what their purpose is. The escalation with the restrictions on who can be in the House laxer than those for the Senate which are laxer than for the White House seems to mostly be part of a symbolic scheme where they wanted to kinda sorta replicate the Commons/Lords/Crown structure of the British constitution. But as best as I can tell there wasn’t some specific concern here about a crop of 27 year-old senators wrecking the Republic.

I’ve long been a bit skeptical of the merits of American-style strong judicial review as an institution. The practice is associated with some important human rights gains, including Brown v Board of Education and Roe v Wade, that have normally made it venerated among American liberals. But this kind of outcomes-oriented case doesn’t withstand a ton of scrutiny. After all, almost 100 years before the Supreme Court helped lead the civil rights revolution it was the Supreme Court that invalidated 19th century civil rights law. So I’m glad to see Dahlia Lithwick putting this issue on the table and discussing Jeremy Waldron’s case against judicial review.

That said, I’m not actually sure that the Affordable Care Act legislation that she’s uses as her example to kick the discussion off really illustrates the point very well. At the end of the day, the only reason the ACA legislation is even a little bit interesting is that the congressional coalition behind the ACA lost so many seats. If the votes for ACA were still there in congress, then an adverse ruling on the individual mandate would be irrelevant—it would be simple to do a patch that accomplishes the same thing as the mandate without specifically triggering the red herring objection about “regulating inactivity.” The problem is that the votes wouldn’t be there. And if you look at the most plausible alternatives to the American system, you’d be looking at something like Canada’s “notwithstanding” clause that allows a legislative majority to overrule a judicial decision. But the political support to invoke such a clause wouldn’t exist today were the law struck down.

More generally, I think the biggest element of the American political system that hyper-empowers judges actually isn’t our unusually strong judicial review, it’s our unusually cumbersome legislative process. If the Supreme Court strikes down the prevailing statute that attempts to limit corporate influence over elections, we don’t just pass a new law that steers clear of the constitutional issues they raised. We do nothing. And if the Supreme Court issues an interpretation of a statute that makes it extremely difficult for people to in practice enforce their rights, we don’t pass a new law clarifying the rules. We do nothing. That’s because we live in a country whose political system is overwhelmingly biased toward inaction. That, in turn, winds up making every judicial decision higher-stakes than it should be.