Do We Really Need Checks and Balances?

Conventional wisdom dictates that, if the Founding Fathers did something, then it must be right (unless it involves having sex with your slaves). As Josh has been outlining, though, this may not be the case.

Checks and balances are particularly revered as one the Constitution’s best features (unlike those parts we give the Founders a mulligan on). They are considered both brilliantly realist and especially democratic. Checks and balances are said to maintain a government “of the people” while simultaneously preventing demagoguery and a concentration of power. As Madison says in Federalist No. 51: “Ambition should be made to counteract ambition…. You must first enable the government to control the governed; and in the next place oblige it to control itself.”

Problems only arise when you want the government to, you know, do something. Like fix health care.

Now, I don’t pretend to know nearly enough of health care reform to be for it or against it, but that’s not really the issue I’m concerned with. What interests me more than whether or not health care reform is passed is who has the most power in deciding if it is or isn’t.

In case you missed it, Obama won the election in November. Pretty decisively. I think it is safe to say that Obama is still the most popular politician in America right now, and reforming health care was a key aspect of his 2008 campaign.

In practice, though, this doesn’t mean much. For one, Barack Obama can’t pass laws. Not only that, but unlike in a parliamentary system, he wasn’t elected as part of any legislative plan or agenda.

So the fact that Obama was so popularly elected means virtually nothing for his heath care plan; he has no legislative importance, besides the bully pulpit of the Presidency.

In effect, then, the only political figure who was democratically elected by the entire nation doesn’t have the most say in the health care debate. That honor goes to Max Baucus of Montana, who was re-elected in 2008 with a grand total of 348,000 votes. Baucus is the Chairman of the Senate Finance Committee, which has jurisdiction over Medicare and Medicaid. He has reportedly received almost $4 million in political donations from the health sector, and dismissed a single-payer system as a mistake months ago.

Now, I don’t mean to denigrate Senator Baucus; I had never heard of him until a week ago. But that’s just it: Most Americans don’t know who Max Baucus is. And yet somehow a senator elected with fewer than 350,000 votes largely determines the health care system of a nation of 300 million citizens.

What does this have to do with checks and balances? Well, checks and balances are designed to keep legislative and executive branches separate, and even adversarial. The goal is to prevent a concentration of power, to keep aspects of government in different and competing hands so that no group of people could exert undue influence.

Without checks, Obama’s election could presumably give him authority to either pass laws himself or appoint a friendly Chairman of the Finance Committee to get a favorable bill passed. Since the Constitution requires Obama to get the approval of 60 senators for his plan, it limits the ability of one man to exert his will on the American people.

In actuality checks and balances are currently having the opposite of the intended effect. The fact that Obama was elected by nearly 70 million Americans, with votes in all 50 states, indicates that his plan is actually more aligned with the wishes of the American populace than Baucus’ (I understand this may not be technically accurate, but it’s kind of a key assumption of democracy). Instead, senatorial procedure and constitutional “balance” concentrates power in the hands of less democratically elected figure.* 

*While it may seem counterintuitive, the process of getting 60 senators to agree on something is actually less responsive to voters than getting 1 president. For one, the most influence on a bill is exerted by a committee, and the chair of that committee has the most power in determining what that bill looks like. Once a bill gets through the committee, voting mostly goes down party lines, or in some other predictable fashion. Also, 60 senators can represent as little as 25% of the nation’s population. 

Checks and balances, like much of the Constitution, were designed with a much different system than the one we currently have in mind: There were no political parties or congressional committees, presidents and senators were not elected directly by voters (well, I guess presidents still aren’t, but whatever), population discrepancies were nowhere near as large as they are today (seriously, think about 348,000 votes; there were 40% more people at Woodstock).

The world we currently occupy allows these features to be exploited for the very things they were designed to prevent. By checking the power of the Presidency to pass laws, the Constitution prevents the establishment of any popular mandate. By keeping the branches opposed, the Constitution allows outdated and marginal sentiments to persist despite being condemned by an overwhelming majority. By balancing the tasks of government “equally,” the Constitution empowers a small minority that is easily influenced by special interests to exert power over the entire nation.

In short, the Constitution, particularly checks and balances, is overrated and outdated. 

2 responses to this post.

  1. Yeah. It’s an anti-new law bias. That’s what the Framers intended. They did not want sweeping mandates, extremely popular with one time-slice of voters, to win too easily. John, you apparently WANT new laws to be easy to pass when a large majority of the public currently supports them. We can debate about whether that’s a good thing. (I’d point to California.) But that’s definitely NOT what the Framers wanted.


  2. […] invocations of democracy, PATRIOT act, the hold, the Senate. Leave a Comment John’s Argument: John S. has two main arguments against checks and balances: 1. They are outdated and no longer consistent with the Founding […]


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