Health care reform is a major victory for the United States. But, paradoxically, its very passage illustrates the depths of government dysfunction. Reform took 13 months, billions of dollars in advertising and lobbying, and Herculean patience and effort on the part of lawmakers, voters and grassroots supporters -- and still the United States' health care falls well short in terms of quality and breadth of coverage per capita than almost every industrialized country in the world. Even worse, the Supreme Court may strike down some of the new health plan's provisions.
Add to that the list of issues incapable of being addressed by the federal government: global warming; high unemployment; staggering deficits; foreign oil dependency; a dangerous financial sector and declining middle class; the Israeli-Palestinian conflict; astronomical defense expenditures and a troubled foreign policy; crumbling infrastructure; and unparalleled incarceration levels and crime rates.
These problems have many causes, but at their root is the structure of the American system. With its many veto points, checks and balances, and opportunities for special interest, the U.S. system of government -- mostly created in the 18th century -- goes beyond prioritizing accountability to actually creating paralysis. As James Fallows put it recently, the American government has "survived in more or less recognizable form over more than two centuries -- long enough to become mismatched to the real circumstances of the nation." If President Obama is to not just solve a few issues but to fundamentally change the direction of the country, he may have to alter basic U.S. institutions.
If that sounds radical, consider that it was one of the major ideas of Franklin Roosevelt, the greatest president of the 20th century. As historian Jeff Shesol tells it in his terrific new book Supreme Power, after several years as president, FDR came to the conclusion that the Supreme Court was making the country unworkable, striking down reforms necessary to bring the nation out of the Great Depression. He brazenly decided to battle with the Court, attempting to expand it and outnumber its conservatives with liberals. This court-packing scheme is commonly remembered to as FDR's greatest blunder, the result of hubris after the victorious 1936 elections. But it was in fact a deliberate attempt to shake up a branch of government in deep disrepair, according to Shesol, a former White House speechwriter.
Shesol argues that President Roosevelt's daring court-packing proposal sufficiently rattled the Supreme Court justices that they began to accept that they were not an island to themselves, unaccountable to the concerns of the nation. "There was this real sense that the justices were like Gods -- that was the language of the press at the time -- unaffected by politics," says Shesol, in his offices at West Wing Writers, the strategic messaging firm he co-founded.
Though FDR lost the battle to appoint liberal justices, he won the war -- he injected the Court with a sense that they had to be concerned with the feelings of the public, says Shesol. Instead of being a static, outdated institution that would prohibit the nation from beating the Great Depression, the Supreme Court emerged from the fight as a modern, responsible branch of government. "One of the things the Court fight teaches is that there is a resilience to these institutions, a certain flexibility, more than probably appears," Shesol says. In other words, things can be changed. "There is always a sense that these procedural rules are in the Constitution and mandated by the Founders, but they're often not."
The parallel to our current predicament is clear. Currently, the Senate in particular is damaging the prospects of the country. As Timothy Garton Ash put it recently, "The biggest problem for American foreign policy today is not called Obama, or Bush, or China; it is called Congress...Whether you look at trade, climate change, China or Iran, it is the US Congress where policy becomes entangled, distorted and stymied." It is not entirely obvious how much a president can do about congressional dysfunction, however. "It is a very tricky business for Obama to insert himself into self-governance of Senate," says Shesol. "Even Senators who are sympathetic to the President's point of view might chafe at a public campaign to change the Senate. There's this sense of institutional prerogative." There's a long of history of the president telling the senate how to run itself and getting rejected, he says
But there is no reason a push for change now has to be as overt as FDR's move was. If there is a long history of presidents ruffling with the Senate, there is an equally lengthy tradition of presidents working with the Senate. In the health care debate, Congress was eager for the White House to point a way forward after Scott Brown's election, as the House and Senate both refused to take the initiative. Once the White House signaled it wanted Congress to use reconciliation as the path to reform, the legislative bodies fell in line.
Some Senators have themselves recognized the current problems. New York's Chuck Schumer and Senate Leader Harry Reid have both said the filibuster rules need to modernize. The Senate is "likely going to have to make some changes," Reid said.
Moreover, even if Obama cannot visibly interfere with the Senate, there is one man close to him who can. The Vice-President has for months been quietly -- as quietly as Joe Biden can do anything -- criticizing the filibuster, implicitly suggesting that reforming the Senate may be necessary to effective governance. Yale law professor Bruce Ackerman has persuasively argued that the vice-president, as President of the Senate, has the constitutional power to reform that body: "If Biden is willing to exercise the power granted him in the constitution...he could do more than pass health care. He could establish a precedent that would later help him limit the filibuster rules that threaten to deadlock our system of government."
Even if the administration opts not to wrestle with the Senate, however, the Supreme Court may choose to wrestle with the administration. When the Court's Citizens United decision came down in January, prohibiting even modest restrictions on campaign spending limits, it was a serious blow to fairness in democracy. Money will even further distort American democracy now, granting lobbyists and corporations untold influence in the system.
Instead of ignoring the decision, President Obama took the remarkable step of singling out the Court during his State of the Union address. "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections. I don't think America's elections should be bankrolled by America's most powerful interests," Obama said.
It might have been a preview for an upcoming movie: Liberal President vs. Supreme Court, Part 2. "It was much more direct than anything Roosevelt ever said in either State of the Union address or his inaugural addresses," says Shesol. In other words, FDR, who took on the Court in among the most ambitious, confrontations of the century, has now been superseded in anti-Court directness by President Obama.
At the SOU, Justice Samuel Alito responded to Obama's comments by shaking his head and muttering, "Not true." It was an unusually tense moment. "If it hadn't been for Alito, there would have been much more criticism of Obama," argues Shesol. Justice Roberts called Obama's comments at the Union "very troubling...I'm not really sure why we're there."
The White House shot back at Roberts, saying, "The president has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision."
The tussle is unusual, but it may be called for. "What Citizens United makes clear is how determined four or five justices are to stop political reform, economic reform, of various kinds, and how eager they are to settle big, sweeping constitutional questions that they may not actually be required to answer," says Shesol. As a former Harvard constitutional law profession, Obama has an unusually keen understanding of the power of the courts, the details of its decisions, and the challenge he may be facing. Rather than a one-off stream release, Obama's confrontation with the Court over Citizens United may be the start of a larger skirmish.
Says Shesol: "The struggle as FDR saw it from the first moment of his presidency was: can democracy be made to work? That's a very real question in this country right now. You have a narrow majority on the president's Supreme Court that seems dedicated to an ideological agenda, that seems eager to decide constitutional matters that are not in front of it. And when you have a congress that is not able to make much progress on anything, the question arises, is democracy working? The answer is: not as well as it should be." If Obama agrees, he might learn from FDR on how to go about changing it.