THE VIRTUES OF PRESIDENTIAL GOVERNMENT:WHY PROFESSOR ACKERMAN IS WRONG TO PREFER THE GERMAN TO THE U.S. CONSTITUTIONSteven G. Calabresi*I. INTRODUCTIONAmerica is a world power, but does it have the strength to understand itself? Is it content, even now, to remain an intellectual colony, borrowing European categories to decode the meaning of its national identity? . . . When America was a military and economic weakling on the European fringe, it was at the forefront of constitutional thought; as it transformed itself into the powerhouse of the West, its leading constitutionalists became increasingly derivative. 1My message is different. I reject Westminster as well as Washington as my guide and proffer the model of constrained parliamentarianism as the most promising framework for future development of the separation of powers. . . . [T]he success of the German Constitution has inspired other countries, most notably Spain, to use it as a reference point in their own transitions from authoritarianism. Constrained parliamentarianism, then, is a rising force in the world, and there is* George C. Dix Professor of Constitutional Law, Nothwestern University. I am grateful to Bruce Ackerman, Akhil Reed Amar, Robert W. Bennett, Guido Calabresi, Andrew Koppelman, Gary S. Lawson, James Lindgren, Thomas W. Merrill, Henry Smith, and to the participants at the University of Virginia's Faculty Conference on Comparative Constitutional Law for their helpful comments and suggestions and to Scott Stone for his helpful work as my research assistant. I am pleased to dedicate this Article to my former teachers Bruce Ackerman and Juan Linz from whose work I have learned so much over many, many years.I. Bruce Ackerman, We the People: Foundations 3 (Harvard U. Press, 1991).5152 CONSTITUTIONAL COMMENTARY [Vol. 18:51much to be learned from its practical operation over the past half-century.2Yale Law Professor Bruce Ackerman is a self-proclaimed fan of the United States' unique contribution to global constitutional thought. The very same Bruce Ackerman is also now the most outspoken proponent of the superiority of German style parliamentary government to our American system of the presidential separation of powers. 3 How can this be? How could the most able American constitutional law professor of his generation turn his back on the central design feature of the U.S. Constitution? Are we Americans to become again an "intellectual colony" this time ruled by Berlin instead of London? Must we hang our heads in shame when we travel overseas, apologizing to all concerned for our untrendy system of separation of powers governance? No, a thousand times no! The existence of presidentialism and of the separation of powers in our Constitution is a praiseworthy feature of the document that should be emulated abroad. We should be proud of the fact that "in the 1980s and 1990s, all the new aspirant democracies in Latin America and Asia (Korea and the Philippines) have chosen pure presidentialism [and that of] the approximately twenty-five countries that now constitute Eastern Europe and the former Soviet Union, only threeHungary, the new Czech Republic, and Slovakia-have chosen pure parliamentarianism."4 American style presidentialism and2. Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633, 640 (2000).3. In The New Separation of Powers, 113 Harv. L. Rev. 633, Professor Ackerman urges newly emerging democracies to copy the German constrained parliamentary government model in place of the U.S. system of presidentialism and the separation of powers. (Professor Ackerman also argues in his Article for a number of interesting innovations in the separation of powers, such as the creation of separate branches to promote democracy, integrity, regulation, and distributive justice, all of which concern subjects beyond the scope of my reply).In arguing that newly emerging democracies would do better to copy the German over the U.S. Constitution, Professor Ackerman relies on the superb work of his Yale colleague, Juan J. Linz, who is Sterling Professor of Political and Social Science. Juan J. Linz and Arturo Valenzuela, eds., 1 & 2 The Failure of Presidential Democracy (Johns Hopkins U. Press, 1994). Professor Linz's seminal work is mentioned throughout Professor Ackerman's recent Article, and thus this reply must be in part a response to Professor Linz as well as Professor Ackerman.I should note that I was privileged to be a student of Professor Linz's during my undergraduate years in Yale College. I regret that I must disagree with him in this Article, but I take solace from the fact that my disagreements are prompted by concerns that he first brought to my attention almost 25 years ago in his course on the crisis and breakdown of democratic regimes.4. Alfred Stepan and Cindy Skach, Presidentialism and Parliamentarianism in2001] VIRTUES OF PRESIDENTIAL GOVERNMENT 53separation of powers is today, as Woodrow Wilson might ruefully say, "the world's fashion. "5 Ever since France switched to a form of presidential government in 19586 more and more new democracies have chosen presidentialism. In recent times, several parliamentary democracies including France and Israel have moved to presidentialist direct election of the Chief Executive, but no originally presidentialist regime has made the switch in the other direction. Bruce Ackerman is absolutely right to say that presidentialism is now the toast of the world. 7 It has joined such other American public law exports as written constitutions, judicial review, and federalism, all of which are among the United States of America's chief contributions to world thought. The U.S. may run a balance of trade deficit in many areas, but when it comes to the war of ideas we are running a big surplus as exporters of public law. 8 Former enemies like Russia, Germany, and Japan are all now governed under Constitutions that owe much to American thinking. So why is Professor Ackerman so sad? Why is this leading voice of American constitutionalism not joyful over our triumph in the war of ideas?Comparative Perspective, in 1 The Failure of Presidential Democracy 119, 120 (cited in note 3).5. Woodrow Wilson was a leading admirer of parliamentary government who urged its adoption in the United States and who described it in the 1880's as then being "the world's fashion." See Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries 10 (Yale U. Press, 1999) (quoting Wilson).6. The French form of presidential government may technically involve an alternation between presidential and parliamentary phases. Arend Lijphart argues that "the Fifth Republic is, instead of semipresidential, usually presidential and only occasionally parliamentary." Arend Lijphart, Presidentialism and Majoritarian Democracy: Theoretical Observations, in 1 The Failure of Presidential Democracy 91, 95 (cited in note 3). He believes, following Maurice Duverger, that the Fifth Republic has the dynamic of a presidential system when one party controls both the presidency and a majority in parliament and the dynamic of a parliamentary system when there is divided party control or "cohabitation" as the French call it.7. Ackerman, 113 Harv. L. Rev. at 636 (cited in note 2). As this article went to press, Israel had just ended its experimentation with direct election of the prime minister but pro-reform forces in Japan were powerfully advocating a move to direct election of the prime minister.8. In fairness, it should be noted that the U.S. legal system lags behind other Western countries in some important respects, especially because of its overly brutal system of criminal law enforcement, which relies excessively on the death penalty and on the highest rates of incarceration per capita of any advanced Western nation. Ironically, our rates of criminal incarceration would be lower today if our Supreme Court had adhered more stringently to the separation of powers when it wrongly upheld the constitutionality of the U.S. Sentencing Commission. Sec Mistretta v. United States, 488 U.S. 361, 413 (1989) (Scalia, J., dissenting).54 CONSTITUTIONAL COMMENTARY [Vol. 18:51The answer is that to some extent Ackerman is joyful.9 In fact, he thinks the U.S. succeeded so well in assisting with the design of the German Constitution that we actually helped produce something better than the document that still governs us. Bruce Ackerman is not merely another in the long line of American progressives who, from Woodrow Wilson's time on, have preferred British-style parliamentary government to our home-spun American separation of powers. No, Ackerman likes the German system of parliamentary government precisely because it has some separation of powers but not as much as the U.S. has. Germany has a powerful constitutional court, which exercises judicial review-and states with real power-but it fuses the executive and legislature together into one entity, and Ackerman thinks this end result is better than either the U.S. or the British Westminster model. 10 Ackerman calls the German system constrained parliamentary government, and he prefers it to the British model because it does not give one party total power for winning just one election. 11 He prefers it to the American model because it produces less gridlock, fewer pathologies, and a more ideological system of governance. 12I think Professor Ackerman's preference for German style constrained parliamentary government is misplaced. While I prefer parliamentary government with judicial review and federalism to the monism of the British Westminister form, I much prefer the American separation of powers model to both the Berlin and London alternatives. And, I think it is high time that we Americans appreciated our homegrown system of the separation of powers and sang its praises more loudly. That is what I propose to do in this Article. I want unabashedly to discuss ten reasons why our form of constitutional design is a good form worthy of the emulation it has been receiving from other, newlyemerging democracies.In doing this I shall conflate the term "presidentialism" with the term "separation of powers" because all presidential regimes, as the term is generally understood, have a separately9. In all seriousness, I should note that Ackerman is exceptionally open-minded to consider the possibility that a Constitution other than the one he was born under might be the best in the world. Too few individuals possess this degree of open-mindedness, and I admire Ackerman for his cosmopolitan outlook even though I disagree with his conclusions.10. Ackerman, 113 Harv. L. Rev. at 639 (cited in note 2).II. Id. at 639-40.12. Id. at 643-64.2001] VIRTUES OF PRESIDENTIAL GOVERNMENT 55elected executive and legislature, hence the phrase the separation of powers. I shall distinguish presidential regimes here from parliamentary regimes with the operative definition being that in a parliamentary regime the head of government (who I shall generically refer to as the Prime Minister) 13 is responsible to the legislature in the sense that he is dependent on the legislature's confidence and can be dismissed from office by a legislative vote of no confidence. In contrast, in a presidential system the president and the legislature are elected separately and the President holds his office for a fixed term of years. 14 So why, then, is presidentialism and the separation of powers a good thing when compared with a constrained parliamentary regime subject to judicial review and with constitutional federalism guarantees to boot? Why are we Americans right to think that the libertarian, capitalist world order that we have helped to form over the last fifty years is well served by a regime-type designed 200 years ago in a very different world? I will proceed in answering those questions herein by contrasting my views with the differing views of Professor Ackerman and of his Yale colleague Juan Linz, on whom Ackerman significantly relies. Both Professors Ackerman and Linz can now be counted as being among the chief exponents of the virtues of Germanstyle constrained parliamentary government for newly emerging democratic regimes. Professors Ackerman and Linz are among the ablest champions parliamentarianism has ever had, so I feel confident that in replying to their arguments, I am giving my intellectual opponents all that is their due.13. In reality, many parliamentary regimes use other titles such as Premier, Chancellor, Minister-President, and Taoiseach (in Ireland). Lijphart, Patterns of Democracy at 117 (cited in note 5).14. These two definitional criteria are used by Arend Lijphart and seem to me to capture the essential difference between the two regime types. Lijphart, Patterns of Democracy at 117-18 (cited in note 5). While there is much discussion in the political science literature about classificatory criteria, I am content with the two bare bones criteria listed simply because they most help us capture the essential differences between parliamentary and presidential forms. That being said, there are other differences of interest, particularly the fact as Lijphart notes in his third criteria of differentiation that parliamentary systems usually have a collegial executive while presidential systems typically have a hierarchical or unitary executive. !d. at 118. This difference is important as will be discussed later.56 CONSTITUTIONAL COMMENTARY [Vol. 18:51II. PRESIDENTIAL GOVERNMENT IS SUPERIOR TO PARLIAMENTARY GOVERNMENTThe case for presidential government over parliamentary government includes both arguments for the former and against the latter. I want to begin with a discussion of the case for presidential government and then explain why I think Bruce Ackerman and Juan Linz are wrong to fear that U.S. style presidentialism will break down into dictatorship if it is exported to newly emerging democratic regimes.A. TEN ARGUMENTS FOR PRESIDENTIAL GOVERNMENTThe case for presidential government is usefully summarized into ten arguments supporting that type of regime. Cumulatively, these ten concerns suggest that presidentialism is: more democratic, more stable, less ideological, more protective of judicial review, and more libertarian than will be parliamentary regimes, all else being equal. These ten arguments by no means suggest that currently existing parliamentary regimes should abandon their Constitutions and immediately switch to presidentialism. But, they do suggest reasons for preferring presidentialism when drafting new Constitutions and for considering a change over to presidentialism when a countries' parliamentary institutions are not functioning well. Presidentialism thus is to be preferred only when all else remains equal, which of course is rarely the case in the real world.1. Sampling the Popular WillA first argument favoring the American system of separation of powers over the German system of constrained parliamentary government is quite simply that the American system is more democratic and more sophisticated in its mechanism for sampling the Popular Will. In Ackerman's terms, the American system best answers the question: "How many elections should a political movement win before gaining how much lawmaking authority?" 15In a German-style constrained parliamentary regime, one national victory will give a party or a coalition of parties great power to nationalize or privatize, regulate or deregulate huge sectors of the economy. Only the constitutional court, and state15. Ackerman, 113 Harv. L. Rev. at 643 (cited in note 2).2001] VIRTUES OF PRESIDENTIAL GOVERNMENT 57governments if any exist, could potentially stand in the way of a newly elected government with 51% of the vote in a constrained parliamentary regime. And, even the Constitutional Court could offer less of a check than would the Supreme Court in this country. Basically, German-style constrained parliamentary government gives a whole lot of power to a party for winning just one election by the narrowest margin, and, it is not even an election in which you get to vote differently as a citizen of the nation and as a member of a legislative district. One choice on one balloe 6 and that is it for the next four or five years.This result reflects an inadequate sampling of public opinion. A countries' electoral regime ought to be able to distinguish between narrow and landslide majorities for particular positions and between positions that are held widely across the whole of a geographically diverse country and those that are held with great intensity only in some sections or regions. Similarly, a country's electoral regime ought to be able to distinguish the intensity with which particular positions are held. The electoral regime of the typical German-style constrained parliamentary government cannot make any of these finer distinctions. It offers great power to the narrow sectional majoritarian victor and to the landslide victor alike.In contrast, the familiar dualistic American system-so famously described by Professor Ackerman himself in We The People 17-looks much more constrained. A political movement has to win a whole lot of elections in very differently described constituencies for a much longer period of time before it can wield total lawmaking power. Our Madisonian system of staggered elections every two years for the House of Representatives, every four years for the presidency, and every six years for one third of the Senate is a much more sophisticated way of sampling the popular will than that offered by the German system. It gauges and recalibrates not only the geographical spread of particular viewpoints but also the intensity with which opinions are held. A political movement cannot sweep just one region of our geographically diverse country and prevail under our system. Nor will a political movement prevail if the issues giving rise to it lose their fire after two or even four years. The Madisonian electoral system provides for a kind of rolling and continuous sampling of public opinion over a full six year election16. Id. at 643.17. Ackerman, We the People (cited in note 1).58 CONSTITUTIONAL COMMENTARY [Vol. 18:51cycle with ten years or more of dominance required before a political movement can hope to ap~oint five or six of the nine justices on the U.S. Supreme Court. 8Moreover, the elections held in the U.S. system are qualitatively different in two vital ways from those held under a German constrained parliamentary system. First, they are held at arbitrary times and not at the beck and call of the current inhouse elite, which in a parliamentary system can try to time elections to ensure a favorable result. 19 And second, U.S. elections are held in three carefully and differently defined geographical units: the congressional district which elects a Representative; the State, which elects a Senator in two cycles out of every three; and the nation which elects the president and vice president through the federalizing filter of the Electoral College. By continuously sampling these three very different geographical units over a rolling six year cycle, the American system is bound to track public opinion more closely than will a constrained parliamentary system in which fewer samples are taken in only one unit with only one choice offered to the voters. Americans have the luxury of splitting their tickets so that they can, for example, elect a conservative President who is hawkish on foreign policy issues and tough on crime while electing liberal Congresses to build up the social safety net. Germans have no such luxury, having only one ballot to cast with one choice where we typically have three. If they want a conservative foreign policy they have to accept a conservative domestic policy in the legislature because the system has bundled the issues together and gives them only one vote for Chancellor and for Representative. This bundling together means fewer choices for German voters than we Americans typically enjoy and therefore less democracy.The American system is bound to do a better job of sampling the popular will for exactly the same reason a sophisticated daily tracking poll will be superior to a weekly or monthly poll that can miss a sudden sea change in public sentiments. Both the American system and a tracking poll take more samples of public opinion in more units and in both cases better information leads to a more accurate result. If one truly wants democratic governance, more elections in more units clearly offers more\8. "All in all, the American system sometimes requires a political movement to keep on winning elections for ten years or more before it can assume full control over all key institutions ...." Ackerman, 113 Harv. L. Rev. at 650 (cited in note 2).\9. Id.at644.2001] VIRTUES OF PRESIDENTIAL GOVERNMENT 59democracy. Obviously, there are other important principles at stake besides and, accordingly, I would not agree with those colonial Americans who thought that "where annual elections end, tyranny begins."20 But I also would not give up on our practice of having mid-term elections every two years to check the party that last won the presidency, as we often do. A two year blank check proved to be quite enough to voters in 1994 when they took away some of the power they had given Bill Clinton in 1992. And, the same thing happened again in 1982 when the voters took away some of the power they had given Ronald Reagan in 1980. A German style constrained parliamentary system would offer no mid-term opportunity to rein in the hubris and over-reaching of recent political winners and recent history in the United States suggests that could prove to be a costly loss of democratic power in many, many instances. The first advantage of the American system of separation of powers is that it more accurately samples the popular will.2. Guaranteeing StabilityA second argument favoring the American separation of powers regime over a German constrained parliamentary regime is that the American system offers more stability than the German system.21 Just as it is vital for a democracy to take many accurate soundings of public opinion, so too is it vital that the winners be empowered to act once the elections have been held. Powerful individual and corporate economic actors need political stability if they are to be able to make the long-range investment decisions that modern capitalism absolutely requires. Sadly, parliamentary government has all too often degenerated into a spectacle of instability as happened in France under the Third and Fourth Republics with its weak regimes d'assemblee governments or more recently in Italy, which has had more then 50 governments since World War II, or in Israel or Japan. All of these regimes degenerated into or experienced weak revolving-20. Federalist 53 (Madison) in Isaac Framnick, ed., The Federalist Papers 326, 326 (Penguin Books, 1987).21. Juan Linz implicitly concedes this point and views it as the single biggest advantage of American style presidential government. Juan J. Linz, Presidential or Parlimentary Democracy: Does lc Make a Difference, in 1 The Failure of Presidential Democracy 3, 65 (cited m note 3) ("I have to admit that government instability has been one of the strong arguments against parliamentarism and in favor of presidentialism."). See also Arend Lijphart, ed., Parliamencary Versus Presidencial Government 11 (Oxford U. Press, 1992) ("The first advantage of presidential government, executive stability, is based on the president's fixed term of office").60 CONSTITUTIONAL COMMENTARY [Vol. 18:51door Cabinets that could not persist in office for long enough togovern. No sooner would a Cabinet Government be formedthan one of the coalition parties necessary to its formation woulddrop out. The result typically is constant government crisis withthe bureaucracy running every thing on autopilot while democratic politicians squabble. In the best of circumstances, thisleads, as it has done in modern Italy, to public disenchantmentand the irrelevance of democratic institutions. In the worst ofcircumstances, in Weimar Germany, revolving door Cabinetspaved the way for the success of anti-democratic forces led byHitler and the Communist opposition. Indeed, Hitler and theCommunists at times pooled their forces in the Weimar Republic to produce chaos-causing votes of no confidence with their infamous red-brown anti-democratic coalitions.Instability can be fatal to a democracy as it was to the Weimar Republic and to the French Third and Fourth Republics because people conclude elections are meaningless if the governments they produce always collapse before the Ministers can do anything. Democracy requires that elections generate clear winners and losers who can either govern or head up the loyal opposition and many parliamentary governments have clearly failed even in the present era to achieve that most basic end. It is for this reason that Israel recently experimented with direct popular election of the prime minister-a major step toward presidential government22 - and that Italy is also debating whether to move to direct election of the prime minister. Both of these countries have tired of the weakness and instability of regime d'assemblee governments and, encouraged by the presidentialist example of France's Fifth Republic, they have considered moving toward or in Israel's case have moved toward presidentialism.In Israel, the weakness and instability of the majority coalition governments often gave great power to small fringe parties. Because Israel has a very extreme form of proportional representation, small and extreme religious parties in the Knesset with only one or two seats sometimes ended up holding enormous22. Leading political scientist Arend Lijphart classifies Israel as having been a presidential democracy since that country's adoption in 1996 of direct election of the Prime Minister. Lijphart, Patterns of Democracy at 123-24 (cited in note 5). As this article went to press, Israel had just ended its experimentation with direct election because that system turned out to be incompatible with the proportional representation used to select members of the Israeli Knesset. In other countries like Japan, however, the newly empowered reform Prime Minister is advocating a move to direct election of the prime minister.2001] VIRTUES OF PRESIDENTIAL GOVERNMENT 61power to make or break a coalition government. Many observers concluded that the Israeli electoral system gave these fringe parties way too much power, which they could use to extract policy concessions that a clear majority of the Israeli people rejected. A good electoral system should result in the generation of a government and a loyal opposition that reflect the public's major bodies of opinion without turning oddball fringe elements into the king-makers of national politics. Parliamentary coalition governments that are dependent on very small parties for their continuation in office are always at the mercy of the demands of those small parties, which may demand policy concessions that are resented by large national majorities.Presidential government solves the problem of stability by guaranteeing that the executive and legislative officers will serve for a fixed term of years regardless of subsequent events and regardless of the extreme demands of a few of the government's supporters. Even when an election produces an indeterminate compromise outcome by, for example, producing divided party control of the presidency and the legislature, the compromise result is a stable one for a fixed term of years. For example, in the U.S. today President Bush and his Democratic opponents in the Senate and the House are firmly empowered for the next year and one-half without regard to any sea change in public opinion that could occur. The approval ratings of the President or the Congress could plunge tomorrow and the President and Congress would still serve out their terms until January 2003 or 2005. Since democracies need stability and since modern capitalism rewards political regimes that offer a stable investment climate, the fact that presidential government can offer such stability is a big plus. It definitely makes presidential government superior to a regime d'assemblee type of weak, revolving-door Cabinets of the kind that is sometimes generated in parliamentary regimes.Professor Ackerman believes the problem of instability in parliamentary regimes has been solved by two features of the German constrained parliamentary model which have been widely emulated. These features are: first, the 5% threshold which parties must meet to be represented in parliament; and second, the requirement that only constructive votes of no confidence can succeed. 2323. Ackerman, 113 Harv. L. Rev. at 654-55 (cited in note 2).62 CONSTITUTIONAL COMMENTARY [Vol. 18:51These provisions DO represent great improvements and merit some discussion. The 5% threshold as it works in Germany prevents any party that receives less than 5% of the vote from being represented in the legislature under proportional representation. The threshold is supposed to eliminate fringe parties and extremist groups while still permitting important or mainstream third and fourth parties to be proportionally represented. In Germany, which also has a constitutional ban on some anti-regime parties, the 5% threshold does seem to have produced for the moment a pretty stable multi-party system with no serious anti-regime elements currently represented in the German Parliament. The Christian and Social Democrats in Germany have had to deal with only a moderate Free Democratic (classical liberal) Party, with an environmentalist party, the Greens, and with the democratic successor to the East German Communist Party. To date, the various neo-Nazi parties, undemocratic Leftist parties, and anti-immigrant groups have gone mostly unrepresented.The operative phrase here is "to date". It is quite easy to imagine any of those more extreme groups meeting the 5% threshold in the future, particularly if they pool their resouces. Consider the case of Germany's next-door neighbor Austria. In Austria, a hateful anti-immigrant bigot Jorg Haider has for years been represented in the Austrian parliament under that countries' system of proportional representation. Initially, the moderate right-of-center party and the Socialists formed a prodemocratic grand coalition government to keep Haider out of office. This grand coalition was necessary because the Socialists, even with a substantial plurality of the vote that would have given them victory under U.S. electoral rules, could not clear 51% of the vote in the legislature as needed under proportional representation to survive a vote of no confidence. The Socialist/Conservative Grand Coalition Government in Austria persisted for many years united in the desire to keep Jorg Haider out of power. With every passing election, the Coalition lost strength, and Jorg Haider's anti-immigrant forces gained strength, in part because Haider was the only opposition anyone could vote for, there being no "Loyal" opposition. Eventually Haider's party became the second biggest of the three, winning well over 20% of the vote in Austria's most recent national elections and at that point the Conservatives, now in third place, dropped out of their coalition government with the Socialists2001] VIRTUES OF PRESIDENTIAL GOVERNMENT 63and formed a coalition with Haider, thereby letting a hatefully racist group assume national power.This development is distressing in and of itself, but it is doubly distressing because it looks eerily like the political developments that helped to destabilize the Weimar Republic and that opened the door to Hitler's rise to power in Weimar, Germany. In both cases, proportional representation gave Hitler and Haider an initial position in the legislature, which was divided between democratic forces in the government and antidemocratic forces in opposition to the government. In both cases, years of attrition and normal wear and tear shrank the size of the pro-democratic forces in the government and swelled the ranks of the anti-government "disloyal" opposition. Finally, a breakthrough occurs whereby Hitler and Haider are suddenly deemed not that unacceptable, and they make it into the Cabinet. The final stage, which has yet to occur in Austria and which I hope will never occur, is for the leader of the anti-regime forces to take over as Chancellor or Prime Minister.The recent Austrian developments suggest to me that reliance on a 5% threshold to keep anti-democratic extremists out of the legislature is insufficient. Racist and other extremist parties in many western countries have easily cleared 5% support in many public opinion polls at many times in the last 50 years. Jean Marie Le Pen, the racist anti-immigrant leader in France has often polled over 10% of the vote in that country and neoNazi's have hovered near 5% of the vote in Germany for many years. 24 Stalinist parties often cleared the 5% hurdle in France and Italy for a time after World War II. Even in the United States, George Wallace received well over 5% of the vote in his 1968 bid for the U.S. presidency. A 5% threshold is simply too low to keep virulently racist and anti-democratic parties out of the legislature and out of a position where they can play kingmaker in parliamentary coalition politics.A 5% threshold is surely better than no such threshold, and it has to date worked well in Germany in part because of divisions among neo-Nazi elements. But, it is all too easy for me to imagine the Jorg Haider phenomenon succeeding in present day Germany, much as it did in Austria. It is vitally important that24. The French Fifth Republic reintroduced proportional representation in 1986. France currently has a 12% threshold. Juan J. Linz, Presidential or Parliamentary Democracy: Does It Make a Difference?, in 1 The Failure of Presidential Democracy 3, 65 (cited in note 3).64 CONSTITUTIONAL COMMENTARY [Vol. 18:51the Government face a loyal opposition that is always ready andable to take over from it if the economy falters or if there is anunexpected foreign policy setback. Proportional representationreduces the likelihood of there being a stable government and astable opposition that is loyal and that can govern on its own. Ifthe pro-regime parties have to form a grand coalition to preventwacky racist or religious or stalinist parties from making extremedemands, then it will only be a matter of time before that coalition disintegrates and some anti-regime elements get welcomedinto the Cabinet. Better two moderate right- and left-of-centercoalitions than a Cabinet with openly anti-regime parties represented.Professor Ackerman might respond by suggesting raising the threshold from 5% to 10%, or by suggesting abolition of proportional representation altogether. I would heartily endorse either move for reasons that I discuss further below. But for now let it suffice to note that raising the threshold even to 10% would not stop Haider or Le Pen. They clear 10% in most opinion polls quite easily. A stable democratic government or a loyal opposition cannot by definition be reliant on the votes of racist, anti-immigrant, or violence-condoning political parties. It is a great weakness of parliamentary democracy that it often empowers these anti-regime fringe elements.Well, what about the constructive vote of no confidence? This is a rule that prevents future red-brown coalitions by providing that a vote of no confidence can only succeed if it is a vote for a new government and not merely a vote against a current government. Like the 5% threshold, this too is a good idea which I whole-heartedly endorse. The constructive vote of no confidence prevents anti-regime parties from ganging up on the pro-regime parties when they have no common agenda. It prevents, in other words, the Nazis and the Communists from voting out of office a Centrist Government when they themselves share no common program.25The problem with the constructive vote of no confidence is that it cannot prevent a red-brown coalition in the legislature from voting down the government's bills. Such a coalition, if it includes a majority of the legislature, can prevent passage of a25. As Linz explains, "This constitutional device gives the prime minister in parliamentary systems a strong position; he or she cannot be overthrown by a purely negative majority, as happened in the Weimar Republic when Nazis and Communists made stable government impossible but were unable to provide an alternative one." Id at 66.2001] VIRTUES OF PRESIDENTIAL GOVERNMENT 65budget, of foreign policy bills, indeed of all legislation. The only thing such a negative 51% coalition cannot do is elect a Chancellor or Prime Minister. The constructive vote of no confidence, like the 5% threshold, is an improvement over the rules of Weimar Germany, but it is no substitute for a stable two party system with a moderate left and right both of which can alternate in government. Both the constructive vote of no confidence and the 5% threshold allow anti-regime parties to play a destabilizing role in legislative politics, including in the election of the government. Stability is important to a democracy, and presidential government is more stable than is parliamentary government because it is less likely to find itself beholden to extremist elements. There is one final argument about presidentialism and stability which needs to be addressed, and that is Juan Linz's point that in the U.S. our presidents may reliably serve for four or eight year terms but our Cabinet Secretaries and Assistant Secretaries tend to stay in office for much briefer periods of time.26 Linz points out that U.S. Cabinet Secretaries actually typically serve for less long than do Cabinet Secretaries in the overwhelming majority of parliamentary regimes.27 Ministerial duration is short in America, and Linz rightly asks if this may not counteract any gain in stability at the level of the chief executive officer.28 I do not think it does.26. Ackerman notes that the "median tenure of a political appointee has been going down for some time and is now about two years. One third serve for less than one and a half years!" Ackerman, 113 Harv. L. Rev. at 706-07 (cited in note 2) (footnote omitted).27. Juan J. Linz, Presidential or Parliamentary Democracy: Does It Make a Difference?, in 1 The Failure of Presidential Democracy 31, 65 (cited in note 3). Linz quotes Jean Blonde! as claiming that "(m]inisterial duration is short in America: among Atlantic countries only Finland, Portugal and Greece had a shorter duration of ministers than the U.S.-which, on the other hand, with ministers lasting an average just over three years, scores only a little more than the bulk of the Latin American countries, and is precisely at almost the same point as Costa Rica. Constitutional presidentialism does therefore lead, even where it has operated effectively and without hindrance, to a low ministerial duration ...." Id. at 31; see also, Alfred Stepan and Cindy Skach, Presidentialism and Parliamentarism in Comparative Perspective, in 1 The Failure of Presidential Democracy 119, 127 (cited in note 3) ("the average duration of a minister in any one appointment is almost twice as long in parliamentary democracies as it is in presidential democracies").28. Linz observes that "Government instability has been one of the strongest arguments against parliamentarism and in favor of presidentialism. In making that argument, it has been forgotten that there is considerable cabinet instability in presidential systems ...." Juan J. Linz, Presidential or Parliamentary Democracy: Does It Make a Difference?, in 1 The Failure of Presidential Democracy 3, 65 (cited in note 3). Ackerman also argues that the rapid turnover in political appointees in the U.S. is a problem. Ackerman, 113 Harv. L. Rev. at 706-09 (cited in note 2).66 CONSTITUTIONAL COMMENTARY [Vol. 18:51Cabinet Secretaries in the U.S. administer their departments in conjunction with a life-tenured civil service bureaucracy and with the congressional oversight committees and subcommittees that are responsible for their departments. The congressional committees and subcommittees are in essence quasiparliamentary executive structures that but for the Incompatibility Clause of Article I, Section 6 would long ago have wrested the Cabinet Departments away from presidential control.29 These quasi-parliamentary executive committee structures have very stable memberships that change little over time and that provide some of the stability that might otherwise be lacking because of the rapid turnover in presidentially appointed Cabinet Secretaries and Assistant Secretaries. To pick just one example, the Senate Judiciary Committee has essentially been dominated for the last 25 years by only four men: Senators Edward M. Kennedy, Orrin Hatch, Joseph Biden, and Strom Thurmond. These four men have outlasted six Attorneys General and perhaps several hundred junior level Justice Department employees. No account of the stability of the personnel involved in U.S. Justice Department policy would be complete without accounting for the influence of Senators Kennedy, Hatch, Biden, and Thurmond. Indeed, a case could be made that these four men have each been more important to that policy than were any one of the six Attorneys General who have held office in the last quarter century.The United States makes up for its lack of ministerial stability in presidential appointees with an astonishing degree of stability in its oversight congressional committee personnel and with great stability in the top ranks of the bureaucracy as well. Stability of executive structures is thus a strong point of the U.S. system and provides a solid reason for preferring U.S. style presidentialism to the revolving door Cabinets of Italy or Japan or Israel before 1996.3. Democratic Legitimacy: the Prime MinisterA third and related advantage of U.S.-style presidential government over German-style constrained parliamentary government is that under the U.S. system the Chief Executive Officer is picked indirectly by the people in an open election rather29. This complicated argument and relationship is developed at greater length in Steven G. Calabrcsi and Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 Cornell L. Rev. 1045 (1994).2001] VIRTUES OF PRESIDENTIAL GOVERNMENT 67than being picked by legislative political elites in a back room. 30 This is a great advantage of presidential systems since there is a significant loss of democratic legitimacy when important party leaders and potential Chancellors like Helmut Kohl and Gerhard Schroeder are picked by legislative elites behind closed doors. The selection of a nation's Chief Executive is one of the most important decisions any democracy has to make. To have the two or three leading candidates for such a post be picked by party leaders, instead of in open primaries, inevitably lessens popular control of the government. For many readers this advantage of presidentialism over parliamentarianism may be dispositive just by itself. The people of a country ou9ht to be able to pick directly their most important public official. 1 Defenders of parliamentary government might note that the people do get a final choice in a parliamentary regime when they chose between the leading party-chosen candidates. This is true but the selection of who those candidates ought to be and therefore the range of the final choice available to the voters is not democratically made in a parliamentary system. American voters know well the advantages of our system of primary elections for selecting presidential candidates. American primaries winnow the field and frequently tell us a great deal about the character, the beliefs, and the flaws in our presidential candidates. Even candidates who are favored by party leaders like George W. Bush and Al Gore are forced to build a popular base if they are to succeed in getting a party's presidential nomination. 3230. Lijphart, Parlimentary Versus Presidential Government at 12-14 (cited in note 21) ("The second major advantage of presidential government is that its popular election of the chief executive can be regarded as more democratic than the indirect 'election'- formal or informal-of the executive in parliamentary systems.").31. Of course in the U.S. the choice is technically indirect because of the existence of the Electoral College but in reality the choice is direct since for over 100 years prior to the 2000 election and for most of our history before that the popular vote winner and the Electoral College vote winner have been the same person.32. The proposition that primary voters are better at selecting leaders than are members of the legislature can actually be empirically tested by comparing the post-1960 presidential and vice presidential candidates in the United States. The former were selected in significant part by electorates of primary voters while the latter were selected by the ultimate elite figure in each party-the presidential nominee. The vice presidential nominees in this period include seven strong candidates: Hubert Humphrey, Walter Mondale, George H.W. Bush, Lloyd Bentsen, AI Gore, Dick Cheney, and Joseph Lieberman-two of whom were picked in the current electoral cycle. The six weak vice presidential nominees during this period include William Miller, Spiro Agnew, Robert Dole, Geraldine Ferraro, Dan Quayle, and Jack Kemp. (Dan Quayle, for whom I briefly worked and whom I admire, was unfairly but indelibly classified as being a weak candidate). Seven strong vice presidential candidates and six weak ones suggests something approaching a 50% failure rate when it comes to elite selection of vice presidents. In68 CONSTITUTIONAL COMMENTARY [Vol. 18:51This need for popular legitimation of presidential candidates is a very good feature of the American system of selecting Chief Executives, which is lacking in parliamentary regimes. It should not be sufficient to win a national nomination for a leader to have the backing only of party insiders and not of the rank and file voters. Building a popular base, first in one's party, and then among the electorate at large, qualifies a candidate to govern. Candidates for Chief Executive ought to be forced to build such a popular base rather than being merely able to win among the party's more elite legislative members. Once nominated, candidates in a presidential system face the people in an election that they must win on their own and not by being carried into office by the popularity of their political party or its issue positions. In some parliamentary regimes, like Italy's until recently, the nominee of the biggest party was bound to become prime minister even if he was not the best man for the job. Presidential candidates cannot coast on their parties' reputations, platforms, or credentials but must prove themselves to be the best Chief Executive on the merits. This, too, is an advantage of presidential systems. There is no reason to believe that legislators are better than the people themselves at picking chief executive officers. The talents that make someone a good legislator or policy-maker are not necessarily ones that would carry over into being a good judge of government personnel. Legislators may pick Prime Ministers not because an individual is the best for the job but in order to facilitate the passage of some bill that is important to their state and district. Tying together the job of the legislatorcontrast, the presidential candidates during this period, selected in part by primary voters, were much stronger. Strong candidates in my opinion included nine individuals: Lyndon Johnson, Hubert Humphrey, Gerald Ford, Ronald Reagan, Walter Mondale, Michael Dukakis, George H.W. Bush, AI Gore, and George W. Bush. Two more, Richard Nixon and Bill Clinton could be ranked as brilliant but warped. Weak candidates included four individuals: Barry Goldwater, George McGovern, Jimmy Carter, and Robert Dole, and even they were not without their strengths.By my evaluation, at least nine out of fifteen presidential candidates selected by presidential primary electorates during the last thirty-six years were strong candidates who were well qualified to hold the top office. In contrast, only fifty percent of the vice presidential candidates picked through an elite process during the same period of time were comparably strong. I submit this record provides empirical support for the intuition that democratic selection of a nation's top officials through a process of primary elections is valuable, if not indispensable. It is, of course, possible that elites would do a better job of picking the top candidate on a two person ticket than they have done at picking the number two candidate, but this seems unlikely to me and, in any event, could not explam all of what I perceive as being a large gap in the quality of presidential as opposed to vice presidential candidates.2001] VIRTUES OF PRESIDENTIAL GOVERNMENT 69and the job of selecting the chief executive is thus a bad idea. It guarantees that the localist, pork barrel perspective of a Representative will play some role in picking a person whose function is to be chief executive of the nation. This is a serious mistake.Relatedly, there is a noticeable difference between the kinds of politicians who become Prime Ministers in parliamentary systems and the kinds of politicians who become presidents in presidential systems. Prime Ministers, especially in multiparty regimes like Italy and Japan tend to be colorless, machine politicians who are bland compromise figures acceptable to all the party bosses because they will not rock any boats. They often lack the charisma and the ability to speak on television to the nation that presidents have, and they are unlikely to inspire young people the way a John F. Kennedy or a Ronald Reagan could. The typical legislative leader is a figure like former House Speakers Carl Albert or Tip O'Neill or current House Speaker Dennis Hastert. These individuals may make great logrollers, but they are not the kind of people to lead a nation into a war, either on poverty or against Iraq. Young people in Italy and Japan faced with Prime Ministers like Carl Albert and Denis Hastert are bound to become disenchanted with or at least uninterested in democracy. This has in fact occurred historically, as colorless, machine politicians picked by elites have hurt the democratic cause in France before 1958, in Italy, in Japan, in Israel, and in India.Direct election by the people is essential today for legitimacy and even the strongest parliamentary regimes like Germany and Spain have suffered because they have lacked leaders picked directly by the people. Germany, for example, was governed for years by the uncharismatic Helmut Kohl, an individual who is in many ways typical of the logrolling leader who tends to get picked when legislators select the Chief Executive. Kohl, like virtually all the recent Prime Ministers of Italy and of Japan, was a compromise figure whose main talent was in assembling a party caucus majority by appeasing different party factions rather than in appealing to voters. Like many of his recent Italian and Japanese counterparts, Kohl was an uninspiring figure who was a typical career politician and log-roller. Even as he presided over major historic events like the reunification of Germany and the expansion of the European Union, Kohl was viewed as a stolid and stable figure but not a great inspirational leader. He ultimately, like many of the logrolling Prime Ministers of Italy and Japan, was enmeshed in scandal, although in70 CONSTITUTIONAL COMMENTARY [Vol. 18:51Kohl's case not until after he had left office. Helmut Kohl wasby far the longest serving and most successful of the non-BritishPrime Ministers of recent years, and yet even he showed signs ofthe leadership flaws that typified Prime Ministers in Italy, Japan,and other weaker parliamentary democracies.To be sure, there have been exceptions to the general rule described above. Prime Ministers Felipe Gonzales of Spain and Margaret Thatcher of Great Britain are certainly charismatic figures with a genuine popular following in their home countries. Great Britain, however, is unlike most constrained parliamentary democracies in that it does not require proportional representation and so has a vigorous two party system. This two party system in turn produces strong Prime Ministers who are not beholden to minor party members of a legislative coalition. Spain under Felipe Gonzales was a newly emerged democracy that still elicited great public support from those who remembered and feared a return of Franco-style fascism. It remains to be seen whether Gonzales' successors will be as charismatic and will generate as much public support as he unquestionably did.My point here is not that all parliamentary leaders are uncharismatic, stolid logrolling figures like Tip O'Neil but merely that parliamentary leaders tend to be like that compared with Presidents. It is a bad and dangerous thing for a democracy to be always personified by figures that lack charismatic appeal, because the foes of democracy often attack it for putting compromise and logrolling ahead of principle. In fact, it is a great strength of democracy that it usually puts compromise and logrolling ahead of principle because this is a reason democracy leads to stability and prevents violence. But, it may be desirable for a democracy to showcase leaders who have a little more popular appeal rather than showcasing the leaders who do the compromising. Presidential government does this by putting charismatic leaders in the presidency and compromise leaders in less visible but quite vital positions in the legislature. This protects democracy by giving it charismatic leaders who can fulfill the public's longing for that type of leadership, thus foreclosing the emergence of fascistic or communistic leaders who can campaign as charismatic alternatives to compromising democratic politicians.
| 2001] VIRTUES OF PRESIDENTIAL GOVERNMENT 4. Democratic Legitimacy: the Cabinet and the Bureaucracy | 71 |
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