IV. Effective and Accountable Government

Another key dimension for democratic functioning relates to the structure and functioning of political institutions. Democracies require a political infrastructure that can accomplish two imperatives: acting on and solving public problems, while also being subject to political accountability and public will-formation.

The first imperative requires a basic level of state capacity. Without some basic ability to tax, spend, monitor, and enforce rules, democratic polities cannot be responsive to public needs, which in turn undermines the legitimacy and durability of democratic systems.¹ While we are used to thinking about the need for limits on coercive state power arising from classical liberal and republican thought, this need for state capacity and state effectiveness presents an important additional imperative for democratic institutional design.² It also offers a way to diagnose democratic dysfunction. As state institutions become more gridlocked, lose resources, autonomy, or expertise, the ability of government to solve public problems declines. This in turn points to a host of background conditions needed for democratic functioning. Modern democratic states, for example, need revenues and resources. They also require technical administrative expertise to solve complex public problems.³ If the basic capacities of government are undermined, so too is democracy.

The second imperative involves the principle of state accountability. This condition involves not the baseline capacity of a state to act, but rather in the ways in which political institutions translate public demands into mandates that direct state action. In other words, a key purpose of democratic institutions is to hold state power to account, and to direct it to public needs. Institutions may fail in this regard in a variety of ways: failing to reconcile diverse political views into clear mandates; falling prey to the outsized influence of partial factions and special interests rather than the general public; or giving rise to escalating political conflict over control of power in ways that become less contained and more damaging to political stability.

In American democracy, these twin needs of state capacity and state accountability are theoretically met by our political infrastructures: the constitutional separation of powers, the allocation of power across different branches of government, and the institutional structures that go into defining voting rights, districts, and elections themselves. In the current American context, these institutional infrastructures are operating in ways that increasingly pose challenges to state capacity, accountability, and responsiveness.

For the Framers of the Constitution, the separation of powers—dividing political authority into the three branches of Executive, Legislature, and Judiciary—were meant to prevent the of concentration and overreach of political power.⁴ The inter-branch system of checks and balances was also meant to translate diverse political views and constituencies into legitimate and effective public mandates to direct state action. But this design has increasingly resulted in politics that is gridlocked, or that engages in hardball politics that stretch the boundaries of constitutional order. The challenges of the separation of powers stem in large part from the fact that, as Daryl Levinson and Rick Pildes have argued, American politics operates in practice under a “separation of parties, not power,” as each political party has greater incentive in modern politics to coordinate across the branches it controls, in order to advance its political agenda.⁵ The result is, on the one hand, greater coordination between, say, a Republican Senate and Republican President—and on the other hand, increased potential for opposition parties to leverage veto points in Executive or Legislative branches to prevent policies they might oppose.

One consequence of this separation of parties is that Madisonian separation of powers only really occurs during periods of divided government. As Lee Drutman has noted, “Because the president is the only actor in the system who runs for office nationally, he has historically defined the party brand. And because the electoral fate of congressional partisans is linked to the brand of the party, they have a strong interest in going easy on fellow partisan presidents, while being tough on opposing partisan presidents. As a result, separation of powers has long been a dead letter without divided government.”⁶

This separation of parties not powers also provides a structural foundation for the kind of constitutional hardball that has been noted earlier. As parties collude across branches, or leverage veto points to block the other party’s agenda, the likelihood of hardball tactics increases. Furthermore, this kind of partisan warfare—operating very much at odds with the checks and balances orientation of Madisonian constitutionalism—is further exacerbated by the modern party system and funding structure. As Julia Azari has suggested,⁷ the proliferation of big donors and modern media technology means that political parties have less power as gatekeepers screening candidates out of the electoral pool. (See Part V below.)

Another key reason why the constitutional separation of powers has failed to meet the needs of both accountable and effective government stems from the way in which political power has accumulated in some branches more so than others, creating a misalignment of power across the branches, and exacerbating conflicts over political control between the two parties.

Consider the problems of concentrated executive authority. Much of the anxiety about democratic collapse in recent American politics has stemmed from fears of Executive branch overreach. Some of this is rooted in the unique nature of the Trump presidency itself. The Trump administration has shown a penchant for flouting conventional processes for Executive branch policymaking and regulation, for example in sudden Executive Order declarations like the 2017 travel ban or the 2019 fights over the design of the 2020 census.⁸ But concerns about the imperial presidency predate Donald Trump,⁹ and in many ways the fear of tyranny has been an ever-present specter over fragile democracies.¹⁰ These fears are symptomatic of a deeper structural failure of democratic accountability.

For much of the last century, these concerns about executive overreach have been mitigated by the development of an increasingly sophisticated internal institutional structure to the presidency, where cabinet agencies, legal counsel, and an administrative state with an independent civil service have created a system of checks and balances, transparency, consultation, and other procedures that structure the exercise of administrative action.¹¹ Constitutional doctrines around delegation and the administrative state—plus statutes like the Administrative Procedure Act—have all combined to help institutionalize these practices. However, as the Trump presidency has helped cast into relief, these procedures are very much subject to the desires and norms of Executive branch officials—and of presidents themselves.¹² These internal Executive branch mechanisms by themselves, then, are not sufficient to assure democratic accountability and responsiveness.

Similarly, concerns about judicial activism, while often used as an easy form of partisan rhetoric on either side, captures a very real concern about the increased politicization of the judiciary, where the two parties compete to entrench long-term political views through the control and weaponization of the judicial appointments process. And as federal judges are largely immune to electoral sanction, the reliance on policymaking-by-judicial-review creates challenges for democratic legitimacy—and helps fuel a more aggressive competition for political control of the Executive branch (and the Senate).

A corollary to the concentration of power in the Executive and judicial branch is the relative decline of Congress. The Constitution places Congress foremost among the three branches of government—legislative power is placed as Article I of the Constitution for a reason—and yet Congress’ dysfunction has been a widely-noted premise of modern American political and public discourse. Reduced personnel, outdated technology, and the pressure to fundraise are some of the many contributing factors which have deteriorated congressional capacity. The result is that increasingly the presidency is seen as the focal point for political initiative and action.

Similarly, with a weakened legislature and expansive presidency, the judicial power becomes increasingly important as a way of shaping policy through ex post judicial review—exacerbating the crisis of judicial power and legitimacy. A key reason, then, why so much power has flowed to Executive and Judiciary, placing these branches under greater political pressure than they were meant to bear, is the underlying emaciation of Congress itself.

Fourth, there are a number of challenges arising from the balance of federal and state power in our current constitutional system. Like the separation of powers, a key purpose of the federal structure is to distribute political power—to dissipate its concentration, improve checks and balances, and ensure that even in losing some contests for political control, different factions can still exercise political power in other spaces.¹³ But just as the separation of powers has come to function differently in recent years, so too has federalism. The expansion of federal authority over the twentieth century has made federal power—and especially Executive and judicial power, as noted above—mission critical for both parties. The result is that the Madisonian notion of reducing the costs of electoral losses has been less true in recent decades.

Furthermore, with the nationalization of media and political culture, state politics is increasingly a step-stone and microcosm of national politics, as parties leverage their control of states to block, or bypass federal political debates.¹⁴

At the same time, because much of the original constitutional structure was designed to empower states-qua-states—particularly through the proportionment rules of the Senate and the Electoral College—the reality is that smaller, more rural states have outsized political influence. And these states, thanks to demographic shifts (see Part VI below) are increasingly distinctive in their demographic and political orientation, as Democratic voters cluster along the coasts,¹⁵ and the median state is increasingly more predominantly white than the rest of the country. These two sets of trends place different pressures on the ideal of effective and accountable democratic government: As federalism becomes more nationalized, the checks and balances that federalism was meant to offer become less likely; and as demographic shifts continue, the racialized implications of the Electoral College and Senate become even more pronounced.

If the separation of powers is one of the key political institutional infrastructures tasked with—and largely failing at—driving effective and accountable governmental action, a second key political infrastructure is the electoral system itself. It is through elections that we hold state actors to account, how we transmit public demands and views into political action, and how we reconcile diverse constituencies and viewpoints into democratic mandates and legitimacy. Yet arguably much of our electoral infrastructure is currently struggling to fill these needs—and has increasingly become a problematic source of political advantage as factions compete for power by altering the background political rules of the game themselves.

There are a number of key dimensions that make up the democratic quality of our electoral machinery: in particular, around voting rights, districting, campaign finance, and the balance between federal and state power.¹⁶ These institutions are critical components of our accountability infrastructure, holding policymakers accountable, and transmitting constituency needs and demands into the political process. Erosion and hijacking of these systems undermines democracy.

First, voting rights are increasingly under threat. Despite frequent claims of voter fraud and fears of unregistered voters tainting election results, this threat in reality is vanishingly small. But in the name of combating voter fraud, political actors have implemented a regime built to suppress the votes particularly of young people, working families and communities of color. Through draconian voter ID laws, systematic under-resourcing of election administration commissions and the mechanisms of voting machines and polling places, we have a democracy that functions for some, but is largely illusory for others. This undermines democratic responsiveness—and helps deepen the kinds of racial and economic inequality noted in Part III above.

Second, districting has too often been hijacked to entrench political power of particular parties or groups. The practice of gerrymandering dates back to the very beginnings of the republic¹⁷ and involves the strategic crafting of district lines for political advantage. When done effectively—and with the advent of street-level data and redistricting technology it is easy to do so—gerrymandered districts can result in electoral maps that systematically result in one party rule, blunting majoritarian democracy. Partisan gerrymandering is also increasingly implicated in questions of racial gerrymandering given the voting trends among different demographic communities. Supreme Court Constitutional doctrine, however, has taken divergent and at times conflicting responses to the issue. On the one hand, the Court has drawn on both the Equal Protection Clause and the Voting Rights Act to police racial gerrymandering—redistricting on the basis of racial demographics.¹⁸ By contrast, the Court has recently held that partisan gerrymanders—drawing district lines on the basis of the party affiliations of voters—are non-justiciable, effectively blessing the practice.¹⁹ By permitting partisan gerrymanders, however, the Court has opened to door to racial gerrymandering. Given the enormous overlap between race and party affiliation in America, legislators can now de facto racially gerrymander, so long as they claim that they are redistricting according to party ties.²⁰ Finally, the retirement of Justice Kennedy, the swing vote in a 5-4 decision upholding the constitutionality of a referendum-backed independent redistricting commission in Arizona, casts significant doubt on the obvious institutional fix to gerrymanders.²¹

Third, just as gerrymandering and voter suppression threaten equality at the ballot box, the current state of campaign finance risks equal representation in everyday democracy. Ever since the Court’s decision in Buckley v. Valeo²² to invalidate individual political expenditure limits on First Amendment grounds, the law of campaign finance kept the door open to unlimited corporate spending. And in 2010, the Court realized that very possibility, ruling that the expenditure limits on corporate spending in the Bipartisan Campaign Reform Act violated the First Amendment,²³ resulting in a flood of dark money via Super Political Action Committees (PACs).²⁴ The criticisms of campaign finance deregulation is voluminous and need not be recounted here.²⁵ In brief, the challenge that deregulated financing poses to democracy is severe. Financing allows wealthy constituencies to exercise more influence and gain more direct contact with elected officials. The result is an overrepresentation of elite interests in public policy.²⁶ This further exacerbates the disparity between the political preferences and actions of elected officials as they diverge from their constituencies.²⁷ Citizens United and its view of money in politics have attracted public and scholarly criticism alike. In an age of intense polarization, Citizens United is a rare point of agreement, as large majorities of Republican and Democratic voters support a constitutional amendment overturning the decision.²⁸