presidential democracy in america toward the homogenized regime

8/8/2019 Presidential Democracy in America Toward the Homogenized Regime

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Presidential Democracy in America: Toward the Homogenized RegimeAuthor(s): Theodore J. LowiSource: Political Science Quarterly, Vol. 109, No. 3, Conference Issue: Presidential andParliamentary Democracies: Which Work Best? (Summer, 1994), pp. 401-415Published by: The Academy of Political ScienceStable URL: http://www.jstor.org/stable/2152611 .

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PresidentialDemocracyn America:Toward he HomogenizedRegime

THEODORE J. LOWIPresidentialdemocracyis not an alternativeon an equalplanewith parliamentarism.Presidentialgovernment s a reality.Presi-dential democracy is also a pathological condition we must seek to

heal.The world is in revolution, and political institutions may be theprimaryvictims. Even among conflicting factions and warringethnicgroupsand nations, there seemsto be consensuson the need to adoptmarket-driveneconomic institutions. But on the question of politicalinstitutions and on the constitution appropriate for them, there isonly an abstract and unenlighteningappeal for democracy, and thisdemocracy means two things: masses to validate and presidentstoimplement. Boris Yeltsin is a model. His problem is his legislature,composedof conservative,narrow-minded ld Communists.The Amer-ican president s his model. As in America, gridlockmeansCongress.In America Congress bashing is at an all-time high and Congress'sperformanceratingsat an all-timelow. Likewisein Russia,only moreso. The bashingwent beyond words to artilleryfire on the parliamentbuildingitself. If there is one thing on which the Right and Left hereand there agree, it is that gridlock can be broken and the health ofthe nation could be restored f only we had a strongand unobstructed

THEODORE . LOWI s the John L. SeniorProfessorof American nstitutions ndprofessorofpoliticalscienceat CornellUniversity.Political Science Quarterly Volume 109 Number 3 Special Issue 1994 401


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402 | POLITICAL SCIENCE QUARTERLY

president. It appearsthat everyone has acceptedpresidentialdemoc-racy.Yet presidentialdemocracyis an oxymoron. It is a flimsy effort toredeempresidentialgovernment. As we all know, the presidencyofthe United Statesstartedout as almostan emptyvessel. RichardPioushas demonstratedquite decisivelythat at first presidentswere"simplypresidingofficers of the legislature: he common use of the termpresi-dent in the eighteenthcentury emphasizedthis [presiding]function,almost to the exclusion of any executivepowers . .. [and]they wereusuallymen whose talentsand reputationsmatchedtheiroffice."1Formore than a century after the founding, during our parliamentaryepoch, presidentswere strong only in war; and strongwar presidentsleft little if any institutional legacy. The presidentas we understandthe job in the context of presidentialdemocracyis almost entirelyaproduct of the middle of the twentieth century. We constructedthismodernpresidency n the United Statesby a series of acts of Congressdelegating legislative as well as executive powers to the presidency.Then we spent five decades trying to democratizeit.

We have, of course, triedto democratizethe presidency nstitution-ally. Less appreciated s the fact that we also tried to democratize t byrewritingdemocratictheoryin orderto demonstrate hatthe Americanpresidencysa democraticnstitution.QuotingHarryTruman, hepresi-dentbecame"the obbyist for all the people,"the only official selectedby a national electorate. The president also became, according toJames MacGregorBurns, the only means available to overcome the"deadlockof democracy" nherent in our Constitution. The revisedAmericandemocratictheory came relatively ate to the GeneralWill,but when we found it, we called it the "willof the Americanpeople,"and we located it somewherein the White House.There is even social theory to go along with the political theory,which purports to demonstratethat society today is so much morecomplicated to our legislators than the society of 1840 or 1880 wasto the legislators of those days that legislaturescan no longer writegenuinelawsbut are far better off delegatingtheirpowersto the presi-dent and his agencies. Efforts by Congressto actually specify in lawthe clear intent of Congresswould be guilty of micromanagement.Some will respond that Congress is still very much in the pictureand that it even has the capacity to dominate. True, but it doesn't

1 Richard Pious, The American Presidency (New York: Basic Books, 1979), 21-22.


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AMERICAN PRESIDENTIALDEMOCRACY | 403

work. Congressdelegatesbroadly and then tries to take it back in bitsand pieces. This is basically Congress'scontribution to presidentialdemocracy,intheoryandpractice.I call it legiscide.Even when Ameri-cans looked to Congressto fight the ImperialPresidencyand to getout of Vietnam, Congress was delegating new legislative powers tothe presidency- some of the broadestpowers ever delegatedby Con-gress to the executive branch. Legiscidecontinues. Indeed, a Demo-cratic Congresswas delegatingto a Republican president.Presidentialgovernmentwas a genuineregimechange- the SecondRepublic of the United States. But it was not seen or felt as such,probably because it did not require martial law or otherwiseviolatebasic civil libertiesduringits transition.Just as the absenceof genuinerevolution n the eighteenthcenturycontributed o Americanexception-alism, so did the soft landingof the Second RepublicdepriveAmeri-cansof full appreciationof whatwas sacrificed rom the FirstRepublicand what was genuinelynovel and problematicabout the Second. A"new political science," which Alexis de Tocqueville sought for theFirst Republicwas also needed for the Second. Instead, we got badtheory.Wemight, however, profitvicariouslyfromthose scholarswhohavelived throughthe efforts of fascism to impose virtual plebiscitaryde-mocraciesof executivegovernmenton the nascentrepublicsof Europe.Permit me to quote at length from the reflectionsof the greatGaetanoMosca:

Fifty years ... [I] sought to lay bare some of the untruths ... of the representa-tive system, and some of the defects of parliamentarism. Today advancingyears have made [me]more cautious.... Specialization in the various politicalfunctions . . . andreciprocalcontrol between bureaucraticand electiveelementsare two of the outstanding characteristics of the modern representative state.These traits make it possible to regard that state as the most complex anddelicate type of political organization that has so far been seen in world history.From that point of view, and from others as well, it may also be claimed thatthere is an almost perfect harmony between the present political system andthe level of civilization that has been attained in the century that saw it comeinto being and grow to maturity.2What comes throughmost stronglyto me in this passageis Mosca'sbelated discoveryof the validity of mixed government,or the mixedregime.Rooted in the more distantpast, the theory held that in order2 Gaetano Mosca, The Ruling Class (New York: McGraw-Hill, 1939), 389, 491.


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to keepmonarchy romdegenerating nto tyranny,the moreprominentsocial interests,classes, or forces must be broughtinto play. Whetherin king, lords, and parliamentor in executive, legislative,and judicialbranches,a separation-with-balancemongcompetingvalues and viewsof socialorder srequired.Representativedemocracyas amixedregimeis quite obviously "the most complex and delicate type of politicalorganization. .. "but itsvalue is so commonplaceas to be lost amongeven the most sophisticatedof the political classes.Thedemocraticspiritemergingout of thenineteenthcenturycontrib-uted not to the returnof monarchybut to a governmentbased on asingleprinciple, ruleon the basisof the masssupport (realdemocracy)or in thename of the masses(virtualdemocracy)."Presidentialdemoc-racy" s a meaningfulconstruct,because it is indicativeof the tendencyof democracies o homogenizethe regime;that is to say, the tendencyof democracies o imposeasinglevalue on all institutionsandpractices.Inanydemocracy,all institutionsarein mesh;everything ends towardequality. Ironically,humanequalityis usually the last and least of thefactors subject to equalization;nevertheless,the direction of democ-racy is toward homogenization.Lest I be misunderstoodas antidemocratic, et me quickly reverttoa constitutionalistversion of these stark observations. Democracyespecially when it claims to incorporate the executivebureaucracyasthe core of democraticgovernment is the opposite of the ideal ofthe"mixedregime."IntheUnitedStates, themixedregime s associatedmost explicitly with Montesquieu, passing down to us through theAmericanConstitution andthe FederalistPapers. Buttherequirementof the mixed regimeand the maintenanceof that delicatebalance, asMosca put it, "betweenbureaucraticand elected elements"need notbe met by an American-typeseparationof powers. This is simplyoneinstructive case and not necessarilyone to be imitated or initiated.Party government,properlyunderstood, is another. Surely perennialFrenchpresidentialcandidateFrancoisMitterand had mixed regimesin mind when he asserted that "a society in which the separationofpowersis not stipulatedhas no constitution ... and I would add thatsuch a country . . . is not a Republiceither."3Later on as president,Mitterandmaynot havepracticedcompletely what he preached.Nev-ertheless, as president he has been truer to the mixed regime thanCharlesDe Gaulle, whose concept and conduct were guided, nay in-

3 J. E. S. Hayward, Governing France (New York: W.W. Norton, 2nd ed., 1983), 5.


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spired, by the unitary, monistic, homogenized regime. De Gaulle wasa genuine presidentialdemocrat. He sought unitary authoritydirectlyfrom the French people.Ten years ago, living in France and trying to use the Frenchexperi-ence to capture the nature and problem of the Americanpresidency,I entitled the draft of my book in progress ThePlebiscitaryPresidency.My publisherconvinced me later to change the title, not because itwas inaccurate - far from it - but because "American readers, even inacademia, wouldn't understand t; and you shouldn't have a title youhave to explain."I accept, as do most other observers,thecharacteriza-tion of the American Constitution today as presidentialgovernment,or even presidentialdemocracy.But merely to describe it as an estab-lished fact and then to identify some symptoms or irritants in needof reform in order to perfect presidential democracy is to miss thepoint entirely. Since every regime, indeed every political institution,is problematic,one should not be consideredantidemocratic or treatinga democratic regime as problematic. Quite the contrary. This shouldbe the definingcharacteristicof political science: the studyof politicalpathology. This could be the new political science of the Second Re-public.Let me take this to the discontentsof ourtime, focusingon criticismswidely shared among people of all ideologies and walks of life inthe United States. These criticismsprovide much of the basis for theantigovernment piritand thegeneraldecline nthe legitimacyof publicobjectshere andabroad.Theyalso deservea close look for an anthro-pologicalreason. I willtryto interpret hecharacterof the criticismandwhat each criticism, whether true or false, reveals about our system.

The firstcriticism, ncapsule form, is that our elections have declinedinto mere spectacles, ratherthan means of choosing the best rulersand producing popularmandatesfor public policy. It is undoubtedlytrue that most elections are like popularity contests, but what is tome more significant is the posing of the proposition itself. It rests onthe assumptionthat elections once chose the best persons and at thesame time reducedtheir ability to be best by directingtheir decisionswith mandates. The theory of the mandate hasn't even made muchsense in those countrieswhere the more programmaticor ideologicalpartiesconstitutedwhat Americans once admired as "amore respon-sibletwo-partysystem."4TheOxfordEnglishDictionarydefines "man-I APSA Committee, "Toward a More Responsible Two-Party System," supplement to American

Political Science Review, September 1950.


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date" as an order, or command, as from a superiorto a subordinate.As for its meaning in politics, the Oxford quotes a passage from a1901 English newspaper: "Strictly speaking there is no such thing inEngland as a mandate ... that essentially Jacobinicalphrase."This isbecause mandates have never madeany sensein the contextof genuinerepresentativegovernment. Mandate theory becomes popular when itforms a part of a serious attack on "parliamentarydemocracy"andwhen parliamentary democracy is being opposed by some form ofdirect democracy. Direct democracy means plebiscites and referen-dums. And directdemocracymeans presidential democracy.A man-date is a claim madeby the victorious candidatefor president n orderto enhancethe validity and effectiveness of the victory. Thus, as thelegitimacy of Congress declines, the mandate emerges as the cuttingedge of presidential democracy.The second criticism s reallyan extensionof the first, but a signifi-cant extension:In brief, the will of the Americanpeople, as expressedinelectionsandpolls, isbeingfrustratedby professionalpoliticiansandbythespecial nterests.This, too, isanthropologicallyrich, providingawealth of insight into current American democratic theory. Note theinarticulatedassumption on which the criticismis based: the will ofthe people is expressed equally in elections and polls. This revision inthe definition of the source of citizen preferencesamountsto a changeof historic proportionin democratic theory and is the theoreticalun-derpinningfor the most importantrecentchangein democraticpolit-ical practice the emergenceof the public opinion poll as a centralinstitution of democracy.We havehardlybegunto give proper weightto the influence of polling. The very equating of polls with electionsnot only rearranges the assumptions that become our theories andjustify our conduct of politics. Beyond that, polls have contributedto the institutionalization of a direct and unmediated association ofthe presidentwith the mass public. Technically, political polling wasavailablein the late nineteenth centurybut was resisted as "an infa-mous, contemptible conspiracy n this glorious, freerepublic."5 t wasthendeveloped argelyby newspapersor advertisers ndwithincreasingfrequency to generate news and public interest stories. It was literallynot until the late 1930s thatpublic opinion pollingforpolitical purposesbecame a serious industry, and it was a decade or more later before

I Quoted in Richard Jensen, "American Election Analysis"in S. M. Lipset, ed., Politics and theSocial Sciences (New York: Oxford University Press, 1969), 228-229.


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it becamethe primary nstitution for connecting the presidentdirectlywith the public, withperformanceratingsand issue ratings hat amountprecisely to regular votes of confidence-in effect, plebiscites. Thus,as presidentialpowerincreased to the point where webecame a presi-dential democracy the president's vulnerability to public demandsand expectations went up at an equal if not greater rate.Is the will of the people being thwarted by professional politiciansand special interest groups? I will say little here about the allegednefarious role of professional politicians, because I suspectthat mostpeople reading this criticism assume that it means politicians in Con-gress. Whatever the case, the interest group aspect of the complaintis moretimely, because it providesa linkageto the still largerproblemof the homogenization of Congresswithin the values of presidentialdemocracy.As presidentialpowerincreased o the point where we hada newregimeof presidentialgovernment, greaterdemandswerealmostinevitably made by groups for some kind of representationin theexecutivebranch.Instead of lobbying,we should call it corridoring.Asa general rule, demandsfor representationgo whereverdiscretionarypower goes. Thus, when Congresscreatedpresidentialgovernmentbya successionof laws delegating discretionarypolicy-makingpowertothe executive branch, the politics of Congress was delegated alongwith it.Here is a classic illustration of the homogenizing tendency in oursystem. There is no mysteryabout it. Virtuallyevery majorexpansionof presidentialdiscretion was followed or accompanied by efforts toimpose on the executive the appearance, and to a large extent thereality, of representation.Almost immediately,the lawyersand polit-ical scientistsbeganalteringadministrationawjurisprudence y callingthe new authority lodged in executiveagencies "quasi legislative"and"quasi judicial." But "quasi"only softened the reality of Congress'shaving given over so much of its legislative power to the executivebranch. One of the first substantivereactions to all this delegationwasthe AdministrativeProcedureAct (APA), conceived much earlierbut enacted as one of the firstpiecesof post-WorldWarII legislation.The main purposeof APA was to make the regulatoryagenciesmorelike courts. But fromthejudicial, orquasi judicial proceduresof infor-mation gathering, notice, hearings, testimony, etc., it was but a shortstepto provisionof moregeneralgroup participation n administrativedecisionmaking,and to more theory supporting representation n theexecutive. Here the job was taken over from the lawyersby political


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scientistswiththe expansionof pluralist heoryto supporttheprincipleof "includingnterestgroupsin the interiorprocessesof decisionmak-ing."6 Gary Brynerhas identified and documented in his importantbook the formal means of extending forms of representationto theregulatoryagenciesandbeyond.7For conveniencethey canbe groupedinto three types. First is administrative aw, through the proceduresof hearings, public comment, official participationidentified above.This can also includeprovision for tripartiteadvisorygroups, agencypolls, and public hearingsin the field, going well beyond the APA.The second categoryhe labels scientificand economic analysis,whichincludes requirements or cost-benefitanalysis, environmental mpactstatements, science advisorycouncils, and other more or less profes-sional and subject-matteradvisory groups. Bryner'sthird category,politicaloversight,refersmainlyto congressionalcommitteeand sub-committee hearings, investigations, and individual staff or memberinterrogations.This is familiarstuff, well understoodefforts to imposesomedegreeof executiveaccountability o Congress.Butin the processof trying to contend with the enormous executive that it has built,something else was happening to Congress homogenization in theambit of presidentialdemocracy. Congresshas come more and moreto resemblethe very executivebranch it is trying to control.I wish to grant at the very outset of this argumentthat Congresscontinuesto be the most creativenational legislature n the world. Asin the past, Congress generates mountains of legislation. The totalnumberof billsintroducedreached tspeakin the 90thCongress(1967-1968)with 22,000billsintroduced ntheHouse and 4,400 in the Senate.In the 1980s,thishaddroppedsignificantly o about7,500in theHouseand 3,500 in the Senate. Bills passed in the 1950s averagedroughly2,000 per Congress, 1,000 in the 1970s, and a bit below 1,000 in the1980s.Altogetherthatisan impressiveoperation,especiallywhencom-paredto Europeanparliaments,whichin the Americancontextappearto resembleconventions for choosing leadersand governmentsmorethan assemblies for making laws. This historic commitment of theAmericanCongressto being a real legislatureexplainswhy Congresshasstandingcommittees,anadvanceddivisionof labor, largepersonaland committee staff, and so large an apparatusfor independentre-

6ArthurSchlesinger, r.,KennedyorNixon-Does It MakeAny Difference?NewYork:Mac-millan,1960),43.7Gary Bryner,Bureaucratic iscretion NewYork:PergamonPress,1987),14ff.


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AMERICAN PRESIDENTIAL DEMOCRACY | 409

search. Yet, the level of legislativeproduction is significantly down,while staff apparatus s significantlyup. As a matterof fact, Congress'sstaff development n the last thirtyyears goes far beyond what it takesto play its role as a creative legislature.Commitment to its legislativefunction cannot alone explain the enlargement of professional stafffrom 1,300 in 1935 (870 in the House, 424 in the Senate) to more than11,000 professional staff in 1986(7,920 in the House and 3,774 in theSenate); nor can this theory explain the explosive growth in profes-sional support staff from a small Legislative Reference Service in the1940s to a gigantic force of nearly 30,000 personnel in the 1980s inthe CongressionalResearchService,the Office of Technology Assess-ment, the Congressional Budget Office, and the General AccountingOffice. A bureaucracy s tryingto run a bureaucracy.The distinguished Columbia University political scientist, ArthurW. MacMahon, tried to warn us in 1942 of the risk of the loss ofdistinctivenessas a legislative nstitution with the addition of too muchprofessional staff:

The [congressional]staff necessaryfor continuous inquirycould be maintainedonly at the risk of a harmful division of responsibility, while such staff wouldstill lack a first-hand sense of operations. The hazard is that a body like Con-gress, whenit gets into detail,ceases to be itself... IAn echo was heard over forty years later with Harold Seidman'sobservationthat "Growthof a professional bureaucracyaccentuatedthe innatedispositionof theCongress o concentrateon administrativedetails ratherthan the basic issues of public policy."9Seidmangoeson to quote JamesSundquist'sobservationthat congressionalstaffers

force membersof Congressinto becoming "managersof professionalstaff' rather hanlegislatorsengaged ndeliberationandtruecollectivedecisionmaking.Another echo washeard fromlegislativeexpertKen-neth Shepsle, who observedwith chilly objectivity:Growth [in staff] transformed legislative life and work. In the 40's, the Househad its norms and the Senate its folkways. ... Members who were neighbors... or who traveled back and forth to Washington [together] came to knoweach other exceedingly well. But even more distant relationships were basedon familiarly and frequent formal and informal meetings. By the mid-1960's8ArthurW. MacMahon, "CongressionalOversight of Administration: The Power of the Purse-

II," Political Science Quarterly58 (September 1943): 413-414. (Emphasis added.)9 Harold Seidman and Robert Gilmour, Politics, Position and Power (New York: Oxford Univer-

sity Press, 2nd ed., 1986), 40-41.


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this had all changed.Therubbingof elbowswasreplacedbyliaisonsbetweenlegislativecorporateenterprises, ypically at the staff level. Surroundedorprotectedby a bevy of clerks and assistants,Membersmet otherMembersonlyoccasionallyandbrieflyonthe chamber loor or incommitteehearings.0Incumbencyreelection also takes on a specialmeaningin the contextof the homogenization of the branches. As Samuel Huntington ob-served,successivereelection createsprofessionals, which insulates theinstitution from society. Apologists respond that there is compara-tively high turnover in Congress. As SpeakerThomas Foley put it:If it is true that turnover n Congress s desirable,we already have a fairmeasureof it. Of the membersof the House servingthe 101stCongress n1989, only 45 percentwereserving n 1980,19percent n 1974, and 10percentwhile Lyndon Johnsonwas president.11

But he fails to recognizeor glosses over the fact that the overwhelmingproportion of the turnover comes from voluntary retirementratherthan from electoral defeat. For example, of the 435 members electedto Congress in 1972, only 122 would still have been in Congress in1988 even if no election had been held, because 313 (over 70 percent)of themembersretiredduring hose sixteenyears.This kind of turnoverdoes not invalidate the observation made by Samuel Huntington. Infact, turnoverby retirement s a careertrait of an established,bureau-cratized institution. Homogenization of the branches continues.A more subtle aspect of homogenizationis the tendency of profes-sional, career staff people to think alike even when they disagreeonconclusions. Professionalstaffers on the Hill, as wellas intheagencies,revel in research, data acquisition, cost/benefit analysis. They moveeasily among jobs, from personal staff to committee staff to agencystaff and back again; some even run for Congress. Even the districtwork done for members is different. Although more congressionalstaff time is being spent on work back in the districts, it is in placeof the presenceof the member, and it concentrates on polling, votermobilization through computer-analyzedmailing lists, and on cam-paign finance activities. And the campaignfinance activity not onlyfocuses on political action committees(PACs). A high and increasingproportion of suchcampaignfinancecomes from outside the districts.

10 KennethA. Shepsle,"TheChanging Textbook Congress"n John E. Chubb and Paul E. Peterson,eds., Can the Government Govern? (Washington, DC: The Brookings Institution, 1989), 241-242.l Thomas S. Foley, "Comment" n William H. Robinson and Clay H. Wellborn, eds., Knowledge,Power and the Congress (Washington: CQ Press, 1991), 38.


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Consequently, although there is an enhancedconcern for the districtsand for incumbent reelection, it constitutesa form of absentee repre-sentation.Finally, gridlock, an inherent tendency in a separation of powersystem, allegedly was rendered even less tolerable by divided govern-ment, because it reduces the capacity to make the hard public choicesand to fix responsibilityfor results. And here we get to the crux ofthe matter. Gridlockis the wrong name for a creeping incapacity togovern that the users of the term are probably trying to describe.Gridlock is not really what has been botheringthe millions of Ameri-cans who repeat the term or who applaud its use by the critics andreformers. Gridlock is a verbal weapon to cover a host of frustrationsfor specific ills whose actual patternor cumulativemeaning has notyet been captured. I would like to try my hand at capturingthe realpattern, and I will beginwith the following question:If we have livedunderconditionsof dividedgovernmentfor most of thepast forty-fiveyears, why is it that we only began to hear about gridlock duringlessthan the past ten of those years?

Once again, from the standpointof legislativeproduction,thesystemcannot be judgedas working all thatpoorly. Who can complainaboutnearly 1,000 pieces of legislation passed per Congress?And virtuallyall of these are public bills, since the traditionalmemberprivilegeofgetting privatebills passed has declinedfrom nearly 1,000 per Congressto virtually0. Moreover,even the numberof importantbills, includingcomplex tax reforms and large substantiveprograms, find their wayto passage. Does anyone suggestthatthe Reaganadministration ailedto get the essentialelements of its goals through Congress?Given itsminoritystatus for most of the eight yearsof his Republicanadminis-tration, Ronald Reagan sought as often as possible to get what hewanted by executiveaction, avoiding Congress altogether. But whenhe needed Congressfor an importantinnovation, Congress generallygave him what he asked for. In the halcyon days before gridlockandwithout dividedgovernment,more was expectedand there was morefrustration with lack of delivery. James MacGregor Burns, an ex-tremelycapablememberof the Kennedypolitical family, couldpublisha book in 1963 complaining about "the deadlock of democracy".2But the deadlockwas eventuallybroken. Some believe it requiredthe

12 James MacGregorBurns, The Deadlock of Democracy: Four-PartyPolitics inAmerica (Engle-wood Cliffs, NJ: Prentice Hall, 1963).


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assassinationof JohnF. Kennedyandthe uniquely effective legislativeleadership of Lyndon Johnson. Others feel certain that eventuallyPresidentKennedywould have succeededalmost to the same extent.Eitherway, majorpolicy innovations arealwayssporadic;theyare notevencyclical,so thatyou cannoteverdepend on somethinghappening.Congress tends to have come through with the major elementsof thepresidentialprogram.Thus, in no conventionalrespectcan one saythat the presentsystem,withor withoutdividedgovernment, has been a flop. Onthe contrary,from this point of view, it constitutes an effective response to myargumentabouthomogenization of valuesandpracticeswithinapresi-dential democracy. Homogenization is far from complete.However, one can take in the complete reality of the system onlyby looking at the content of what passes for legislativeoutput in thediscourse betweenpresidentand Congress. If there is one establishedgeneralizationaboutthecontent of legislation, it is vagueness. Statutesare broad and vague and ill-defined, left to the president and theagencies to substantiate. No one disagreeswith this. Apologists forCongress do not disagreewith it; they only stand up to explain whyourcomplexsociety makes it impossible for Congressto do otherwise.Without realizing it, they are also conceding that the whole prospectof parliamentarydemocracy s passe.Buttheydo confirmthe assertionmade here as to the content of the typical statute.So well established is this fact that the SupremeCourt never evenbotheredto reverse the decisions it made in 1935 that such broad andill defined allegations to the executive branch are unconstitutional.This is legiscide, and legiscide is so close to complete, and executivelawmakingso legitimate,that hereis now a growingindustry of statu-tory interpretation.The cornerstone of this industryis the operatingrule in the federal courts that constitutionalissues should be avoidedwhereverpossible, and, in that spirit, that statutes should be given aninterpretationthat can keep them constitutional. The federal courtshave beenjoinedinthepracticeof statutory nterpretationby anumberof importantplayers. First, of course, there are the agency lawyers,who need to interpret he statutein whateverway is necessaryto keepthe agency alive and ticking. Second, there are the law professors,who aretryingto keepjurisprudenceup to date while teachinga newgenerationof lawyers o engagein statutory nterpretation or agenciesor for privateclients dealing with agencies. More recently, they havebeen joined by a number of social scientists who are applying publicchoiceeconomicsto the task. Thismaybe themost significantdevelop-


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ment,becausehere arepeople who have absolutelyno interest o pursueand no ax to grind but are genuinely trying to make sense of thestatutes as a test of the power of their model of human behavior.Their contribution to legiscide and to homogenization is all the moresignificantbecauseof theirvery nnocenceof the place they nowoccupyin the development of presidential democracy.Permit me to quote from an importantrecent paper by threeleadingmembers of this movement.

... We propose a method for interpreting legislation that is grounded in apositive theory of the behavior of legislators and the president. This methodcan help judges and other interested observers make use of the varied andoften contradictory tatementsand actions by legislatorsand the presidentduringthe legislativeprocessto inferthepolicy agreement hat is embodiedin a statute. . . . If a judge or bureaucrat believes that the argument forimplementing policy as was intended by those who created a statute is norma-tively compelling in at least some cases, then an interpretive method that un-covers this intention is useful.... [B]ureaucrats,judges and citizens who aredirectly affected by a statue need to have a reasonably accurate method ofascertaining the policy intent of a statute in order to respond rationally to it,evenif thisresponse s somethingother than aithfulfealty to original ntent.[They add], "positive theory can be used to determine whether a statute isintended to serve a narrow, private interest in the same way that it can beused to infer the nature of the policy agreement."'13In effect, these new statutory interpretersare trying to develop ameans of legitimatelycreating awsfrom pure logic, in orderto enablepeople to make laws even when they lack the constitutionalauthorityto legislate. Let'snot bother any longerto lamentthis. I have had my

fill of derision in response to my twenty-five-year argumentthat werevive the Schechterrule.14 I propose only to use this new industryof statutory interpretationas evidence that Congress is no longer alegislature no matter how much legislative stuff it turns out. Howfar has legiscide gone? Far enough so that those who are doing thereal law makingand those who are providingthem with the cover donot even appreciatethe historic significanceof what they are doing.13 McNolljast, "Legislative Intent: The Use of Positive Political Theory in Statutory Interpreta-

tion" (unpublished paper, 1993), 4-6. McNolljast is the nom de plume of Matthew McCubbins,Roger Noll, and Barry Weingast. (Emphasis added.)14 In Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935), the Supreme Court held the NIRAunconstitutional on the grounds that Congress had delegated law-making power to the executive

branch "unconfined and vagrant" without any guidelines or standards. This case has never beenreversed but has rarely been followed. See discussion and proposal for revival in Lowi, The Endof Liberalism (New York: W.W. Norton, 1969, 1979).


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Tempting as it is to dwell on these issues, we must proceed now tothe contribution of legiscide to the homogenized regime. First, thereis the old and revered hypothesis that broad and vague legislationrendersan agency vulnerable o captureby the best organizedelementsamong its clientele groups. This has been widely confirmed by casestudies and has been immortalizedin the literatureon iron triangles,networks, and the like. But preciselybecause it is sucha well validatedhypothesis, it has been overblown and exaggerated. Some agencieshave indeed been capturedby their organizedclientele.But the reverseis also true, wherein agencies can capture their own clientele groups.Either way, any balanced appraisal could sustain the argument thata fundamentalaspectof the politics of administration s that agenciesattempt to build supportive constituencies. To that purpose, Rule 1is that the broader the delegated power under which the agency isoperating, the more an agency-constituencyrelationshipcan be builtand strengthened. Rule 2 would be that the strongerand more sup-portive the constituency, the better the agency can resist efforts toabolish it or even to cut its appropriation. Rule 3 would be that asmoreagenciessucceedin this, the presidentbecomesjust as vulnerableto capture as Congress, because however strong his public supportmay be, it is too general to combat effectively the highly concentratedand specialized public support enjoyed by agencies with successfulconstituency relationships.But I must go beyond practiceto theory, througha key word in thevocabularyof the politics of bureaucracy:constituency.It has becomeincreasinglyaccurateto analyze agencies as having constituencies. Itis obviously a term that arises out of the theoryand practiceof repre-sentativegovernment, and even though it has generallybeen used toindicate an electoral districtwith a voting relationshipto its electedrepresentative agent, it has become meaningful to characterizealsothe administrativeagency as representativeof its constituency, eventhough it is not literally a voting component. That is an importantaspect of the homogenized regime.All of this explains what America has been calling gridlock, whichcan betterbe characterizedas the unresponsivenessof the governmentto changes in the economy and the society. Take the deficit. There isnothing intrinsicallyevil about governmentdeficits, even big ones. Adeficit is a tool of fiscal policy, comparable to a tax increase or achange in the discount rate. When President RichardNixon assertedthat "Iam now a Keynesian,"he must certainlyhave includedaccep-


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tance of the argument that budgets ought to balance over the wholebusiness cycle rather than year by year. But when deficits mount re-gardlessof economic conditions, then we can say confidently that weare confronting intimations of institutionalized ncapacity to govern.The trouble with calling it gridlock is that gridlock implies that thereis a single, definable barrier or obstruction, which, once removed,wouldpermitthe flow to resume. That is always the basis of reform.Asingle changecan redeem the system:termlimits, the balanced budgetamendment, line-item veto, campaign finance reform, public financeof congressionalcampaigns, constitutional caps on congressionalsala-ries.Since so few of the reformershavestopped to reflect upon the unan-ticipated consequencesof these reforms, it might help them to recallbriefly the unanticipatedconsequencesof some earlier reforms: cam-paign finance reform created the PACs; seniority reform producedpolitical barons and entrepreneurs; ommittee reform produced sub-committees; regulatoryreform createdthe Savings and Loan fiasco.Even if the goals of the new reforms could actuallybe met fully andquickly, and even if the unanticipated consequences could be takencare of if they should occur, these reforms would not meet our need,because at best all they accomplishis to make the present systemworka little better for a little longer. If presidentialdemocracyis the oxy-moronI sayit is, thenreforms are worsethanno changeatall. Reformseither reinforce the system or they amount to a diversion from the-realgoal of replacingthe system. To rid ourselvesof that oxymoron,presidentialdemocracy,we have to begin by conceptualizing ts alter-native. In the immortal words of e.e. cummings:"there'sa hell of agood universe next door; let's go." But which door?

DISCUSSIONMODERATOR: DEMETRIOS CARALEYBILL GREEN: Neither in the long perspective nor as one who has re-cently been in the congressionaltrenchesdo I see things as Ted Lowi

DEMETRIOS CARALEY is the Janet H. Robb Professor of the Social Sciencesand professor ofpolitical science at Barnard College and Columbia University.BILL GREEN was a member of the U.S. House of Representatives, 1978-1992.

presidential democracy in america toward the homogenized regime

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