By Judd Gregg - 05-01-17 06:00 AM EDT
In Federalist Paper No. 58, James Madison defined our form of government, writing: "An elective despotism was not the government we fought for: but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others."
Call it separation of powers or a constitutional checks and balances system, the purpose is the same: to limit the power of government to run amok.
The system has evolved over time. It could be argued that within the elected branches of government, the Senate has taken on the role of the primary checker of government excess, at least relative to the House and the presidency.
In fact, this was the role that Madison saw for the Senate when he wrote in Federalist Paper No. 63: "Such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions."
In the course of the development of this role, the Senate was empowered by the filibuster. The 60-vote hurdle made participation by the minority central to obtaining Senate action.
At rare times in recent history, one party has controlled the presidency, the House and has had 60 votes in the Senate. This was certainly true in the time of Lyndon Johnson's presidency and for some periods during the first two years of Barack Obama's presidency. Both presidents used this power to override the checks and balances elements of our form of government.
Those times created what could best be described as a quasi-parliamentary form of governance. There were no checks on the power of the party in control. They could and did pass whatever laws they wanted, with unilateral disdain for the minority.
A parliamentary form of government, where all power is vested in the majority party, tends to move aggressively. As the parties in power change, the direction of government can swing like a pendulum.
Parliamentary governments can also be extremely autocratic and unjust to those who may disagree with the policies of the party in power. They are simply left behind.
This was not what Madison wanted. But the course he laid out is being fundamentally changed.
We are headed in a new direction relative to our form of government. We are developing a hybrid. Call it an American Parliamentary System.
It was inevitable that Senate Majority Leader Mitch McConnell (R-Ky) would move to end the filibuster to stop Supreme Court nominees. This action was the natural consequence of the action of the former Majority Leader, then-Sen. Harry Reid (D-Nev.) in terminating the filibuster for all other judicial and administration appointments.
McConnell simply had no choice but to expand the precedent set by Reid.
But the death of the filibuster nevertheless eliminates the need to win some manner of approval from the minority party in order to make important appointments. It pushes the nation down the road toward a parliamentary system.
Equally important, the trend toward using reconciliation as the primary tool for passing important policies in the Senate also reduces the importance of the minority party.
The Affordable Care Act, or ObamaCare, was passed under reconciliation. It was brought to the floor of the Senate on a Saturday, no substantive amendments were taken, and it was passed three days later on Christmas Eve on a party-line vote.
It is likely that if the Republicans can agree on a healthcare reform package to replace ObamaCare, it will be handled in essentially the same manner.
Tax reform stands in the wings. It will soon have reconciliation protection and will most likely be passed by 51 votes in the Senate.
The next step is obvious - the elimination of the filibuster as it applies to any policy initiative of substance and controversy.
This is not that much of a leap from the present use of reconciliation, which was initially meant to be a budget tool aimed at reducing spending in entitlement programs.
In concert with these actions is the now common practice of putting most appropriations into omnibus bills that have little input from the minority and are passed primarily because of the need to fund the agencies they cover.
As a result, we have a new form of American democracy: the American Parliamentary System.
Under these circumstances, overreach is almost inevitable. Bad government will result. This is what happened not so long ago, in the shape of ObamaCare and the Dodd-Frank financial regulations.
This will cause the people to act, because as Madison predicted in Federalist Paper No. 49: "The people are the only legitimate fountain of power." And their interests do not fully reside with one party alone.
We will then return to a divided government where the balance of influence and power does not reside with one party and its president.
This of course is what Madison wanted and expected. He would have understood that an American Parliamentary System was "not the government they fought for."
Judd Gregg (R) is a former governor and three-term senator from New Hampshire who served as chairman and ranking member of the Senate Budget Committee, and as ranking member of the Senate Appropriations Foreign Operations subcommittee.
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