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A Modest Proposal to Restore Constitutional Government

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Walking along the shoreline trail that edges San Francisco Bay in the Golden Gate National Recreation Area, the park police are on the job; and the signs warning the public of a recent sewage spill are posted. But the café is shut, the parking lots closed and the final half mile of the trail locked down. EPA scientists who might be working to make sewage spills less often are furloughed. You and I are still having our taxes withheld, but tax cheats are currently free from scrutiny. The parks are closed, but coal, oil and gas companies can still mine and drill on public lands -- there just isn't as much scrutiny to prevent another Deepwater Horizon.

Much of the commentary on the shut-down has lamented that the Tea Party has driven House Republicans to hold government functions ransom to their policy demands. And there is even more hand-wringing about the looming threat that they will also refuse to let the U.S. government honor its debts.

But the Tea Party is behaving in the spirit of their belief systems -- and there is historical precedent -- it's just not one the Tea Party wants us to remember. In medieval Britain, the House of Commons often used the threat of refusing to fund government to gets its way -- as a check against a tyrannical monarchy. And under the Articles of Confederation leaders of states like Rhode Island routinely refused to honor their debts -- and feared that the new Constitution would put an end to their reckless ignoring of contracts.

The irony is that the U.S. Constitution, the document to which the Tea Party alleges fealty, was specifically designed to avoid these evils of British parliamentary government. Madison designed our Constitution to eliminate the need for hostage taking over funding government, and to ensure the sanctity of contracts.

As a result, Barack Obama is NOT George III -- he was elected by a solid majority of the public in the manner that Madison and Jefferson wanted and is subject to the checks and balances and term limits of the Constitution. The U.S. government has never defaulted on its debts, the principal that drove Hamilton to support the new constitution. So the Tea Party is acting not like federalists -- advocates of the original Constitution -- nor even Jeffersonians, favoring that Constitution with a Bill of Rights. They are acting like anti-federalists -- the advocates of the weak government which almost ruined the American experiment from 1781-1783. Of course, there are more recent antecedents -- it was not accidental that when the Southern states seceded in 1861 they formed a Confederate States of America. And at the state level the Tea Party, allegedly formed to support the Constitution, has embraced the theories of nullification and secession that undermined it in 1861.

While the Tea Party may display the Constitution at their rallies, their movement and their current strategy in Congress are at their heart fundamentally anti-Constitutionalist and anti-Madisonian.

The Tea Party defends themselves by saying the U.S. has departed from the original vision of the Constitution. True, in 21st-century American politics there are features that would appall Madison -- the unbridled roll of bribery disguised as campaign funding being the most spectacular, but the increasing emphasis on party line voting in Congress being another. But it is conservatives, by and large, who provided the political support for these two changes. In doing so they have dangerously undermined Madison's system of checks and balances, and representation of individual districts by independent representatives. It is the evolution of a Parliamentary, party-line, centrally funded politics in the context of Madison's constitution which enables the Tea Party to create gridlock. (It is not surprising that our Constitution has ceased to function -- it was designed to prevent Parliamentary politics and institutionalized bribery and has now, thanks to the strategies of modern conservatism, been taken over by those two forces.)

Let's be clear. The House of Representatives is by design and rules a majoritarian institution. A solid majority of the House wishes to keep the government open and honor America's debts -- probably 3/4 of the members are in this camp, Republicans and Democrats. If Speaker Boehner brought to the House floor legislation to do this, it would pass.

Why doesn't he? For one and only one reason only: He fears that it would threaten his hold on the Speakership. Even though a majority of the Republican caucus favors resolving the crisis, they are unwilling to do so by abandoning the theory of party unity, and in particular the "Hastert Rule" which advises that the Speaker should prioritize Republican caucus unity over the public interest, and bring no bill to the House floor which is opposed by a substantial minority of his caucus. That, and that alone, is what gives roughly 100 Tea Party Representatives the ability to shut down the government.

Restoring Madison's Constitution

Here, in the spirit of Jonathan Swift's "A Modest Proposal," is one way to resolve the impasse -- and in so doing restore Madison's constitutional system.

Since the real barrier to progress is John Boehner's fear of losing his Speakership, Boehner gets first move. Imagine he announced:

"We have accomplished our purpose: to put the repeal of Obama care at the top of the national agenda. We need a permanent repeal, not a one year delay. Permanent repeal can only achieved by going to the American people. We will make the 2014 elections a referendum on getting rid of it. Given that imperative, I do not think as a conservative I can recklessly risk the credit and reputation of the United States by an indefinite deadlock on the debt ceiling, and a meat axe shut-down of the government. I will therefore place on the House calendar legislation to extend the debt ceiling and approve a six week continuing resolution to reopen the government."

Such a bill would pass with a combination of Democrats and business Republicans. The Tea Party will then, he fears, challenge Boehner's leadership. But if the Democrats were to announce that whatever the outcome of the Republican caucus, they will throw their votes on the House floor to sustain Boehner's Speakership, business Republicans and Democrats together could defang the Tea Party Caucus.

In so doing, the anti-constitutional toxin of party line voting which has created the current deadlock would be broken. Nothing beyond tradition forces the Speaker to be chosen on a straight-party line votes, and in many state legislatures, leadership battles have been resolved with multi-party coalitions. The Tea Party members can continue to vote as their districts or their consciences dictate - but they represent roughly 1/4 of the country, and alone could not block the remainder of the House from doing the public's business, paying our bills, fixing our tax code, and restoring Congress as a functioning institution. (The Tea Party caucus in the Senate will still have the ability through the filibuster and the Senate rules to be obstructionists, but the debt ceiling crisis has already broken down party discipline in that house.)

Party line voting, combined with the filibuster in the Senate, created today's gridlock, not malaportionment or polarization among the electorate. My modest proposal, of course, is not going to happen any time soon -- the virus of parliamentary politics has seeped too deeply into the soul of Congressional Republicans. But if it did, it would restore to members of Congress the obligation and freedom which Conservatives like Edmund Burke, and founders like Madison and Hamilton took for granted -- to vote their consciences or the interests of their districts and the nation, not the diktats of their party leadership and donors.

A veteran leader in the environmental movement, Carl Pope spent the last 18 years of his career at the Sierra Club as CEO and chairman. He's now the principal advisor at Inside Straight Strategies, looking for the underlying economics that link sustainability and economic development. Mr. Pope is co-author -- along with Paul Rauber --of Strategic Ignorance: Why the Bush Administration Is Recklessly Destroying a Century of Environmental Progress, which the New York Review of Books called "a splendidly fierce book."