- March 15, 2019: in Christchurch, New Zealand, a gunman used a semi-automatic assault rifle to kill 51 people in two mosques. The result: less than a month later the New Zealand parliament passed a law banning those military-style guns.
- April 10, 2020: a man used an assault-style weapon to kill 22 people in Nova Scotia, Canada. The result: three weeks later those weapons were banned.
- In the U.S., since 1999, semi-automatic assault rifles have been used in over a quarter of mass shootings, accounting for 40% of the deaths (608) and 69% of the injuries (987). The result: Congress has not banned these weapons.
How do we account for this stark difference in the way countries have responded to this serious problem? It is not the case that these other countries have anti-gun cultures – Canada has very minimal gun control regulations. In large part, the explanation is institutional. These other countries have parliamentary-style governments capable of reacting quickly to growing problems. The U.S. has a separation-of-powers system that makes it ridiculously easy for special interests to block bills, even those supported by massive numbers of Americans. This makes our government unusually prone to gridlock, stalemate, and inaction. In this case, Americans are paying the price for this institutional failing in blood.
Our separation-of-powers system is more complicated than it first appears. First, it divides the legislative, executive, and judicial functions of government into three separate bodies – Congress, the Presidency, and the Courts. But it also includes checks and balances – the ability of each branch of government to block the actions of another branch. So the Supreme Court can declare actions of Congress and the President unconstitutional. Congress can impeach the president. And the President can veto acts of Congress. In addition, the American version of separation of powers includes bicameralism, the separation of the legislative powers into the two equally powerful branches of Congress, the House and the Senate, each of whom can block the actions of the other. I will use the general term “separation of powers” to include divisions of functions, checks and balances, and bicameralism.
If you are a typical American, you probably think this kind of separation of powers between the three branches of government is absolutely essential for any democratic system. In fact, anything that weakens the separation of powers is often portrayed as a threat to democracy. But if that is the case, why do most other advanced Western democracies get along just fine with little or no separation of powers? The reason, it turns out, is that it is this separation-of-powers system that is the real threat to democracy. It creates a government that is less accountable, less responsive to the public, and often paralyzed. And so, understandably, most other advanced Western nations have chosen a different style of government.
The More Popular Alternative: A Parliamentary System
Most other advanced democracies have rejected this separation-of-powers model for another arrangement: the parliamentary system. This system differs from ours in several important ways. First, instead of division of functions among the legislative, executive, and judicial branches, there is an overlap. For example, the prime minister is elected by the legislative branch – parliament. And all the cabinet officers come from parliament and remain part of that body. Second, because of this overlap, coordination and cooperation between the legislative and executive branches is the rule, rather than checks and vetoes. Prime ministers, for instance, are extremely unlikely to veto a bill they helped write and that was passed by the parliamentary majority that elected them.
If the separation of powers is so important to democracy, why have virtually all the other advanced democracies chosen to not adopt it?
In addition, most parliamentary systems are unicameral, or effectively unicameral, with only one house having the main responsibility of passing laws. Unicameral nations include Norway, Sweden, New Zealand, Luxembourg, Israel, Denmark, Iceland, and Finland. Another set of democracies – Austria, Belgium, Canada, France, Germany, Great Britain, and Ireland – have two houses, but the upper house usually has no ability, or limited ability, to veto legislation passed by the lower house. In Britain, for instance, the House of Lords can only stall for a time bills passed by the House of Commons; it cannot block them. Among long-established Western democracies, only the U.S. Australia, Italy, and Switzerland has fully bicameral systems with two legislative houses of equal power. And among these four countries, only the U.S. has a separately elected executive that is empowered to veto legislation.
Bottom line: the U.S., with its strict separation-of-powers system, is an anomaly. This is probably news to most Americans who believe that a separation of powers is absolutely essential for any democratic nation. So we need to ask themselves: if the separation of branches is so important to democracy, why have virtually all the other advanced democracies chosen to not adopt such a system? What do they see that we do not? They see a government system that is prone to be unaccountable and unresponsive to the public, and mired in gridlock. Let’s turn to those problems next.
The Main Problem: Gridlock
One of the main drawbacks of a separation-of-powers model is the tendency toward gridlock. Congress is often immobilized – unable to pass policies that the public demands from it. And the problems created by this kind of dysfunctional government are hardly a secret. Nearly 80% of Americans disapprove of the job Congress is doing, and the top reason they give is: gridlock.
Concern for this kind of persistent stalemate goes way back. Writing in 1885, the future president Woodrow Wilson castigated the separation of powers as a “grievous mistake” by the Founding Fathers and warned that it was a prescription for “paralysis” and “stalemate.” He was a big admirer of the competing model, parliamentary systems.
In the U.S. it takes three separately elected bodies– the House, the Senate, and the Presidency – to approve a law. In parliamentary systems, it usually takes only one.
The reason that the separation-of-powers system tends to fall into gridlock is simple. It takes three separately elected bodies – the House, the Senate, and the Presidency – to approve a law. More often than not, we have “divided government” where different parties control these different bodies – and it only takes one of them to block legislation. Making it more difficult, there are also several points within the House and Senate where a bill can be blocked, like committees and subcommittees. All in all, the U.S. system has more of these “veto points” than other major democracies, which feeds our system’s tendency for stalemate.
As Lee Drutman has explained, all these veto points mean that policymaking is difficult even when we don’t have divided government. “At the end of 2020, America will have divided government for thirty-eight out fifty-two years. And even during the rare periods of united government, parties have struggled to enact parties with narrow majorities, hamstrung by the antimajoritarian institutional features inherent in the American governing institutions.”
In most parliamentary systems, it usually takes just one elected body to pass a law – not three. As we’ve seen, most parliamentary systems are unicameral or effectively unicameral – with only one legislative body having the responsibility to pass laws. And since the prime minister is elected by the majority party or party coalition in parliament, there is no possibility of divided government – with the executive and legislative branches controlled by different parties. The prime minister will not veto laws passed by his or her own party. Because of this, parliamentary systems can pass needed legislation much more efficiently than separation-of-powers systems.
Is Polarization the Problem?
Many Americans tend to blame gridlock, not on the separation-of-powers system, but on increased party polarization. They suggest that the parties have grown too far apart and too acrimonious to easily agree on policies. It is true that as the Republican Party has moved further and further to the right, party polarization has increased among both policymakers and the public. Moderate members of Congress, who used to sometimes vote with the other party, have become rarer – making compromise more difficult. But it is important to see that this kind of polarization causes gridlock only when it occurs in a separation-of-powers system that is already prone to stalemate – a system that allows different parties to control the two legislative branches and the presidency. It is revealing that party polarization is actually higher in most European parliaments and yet they do not suffer from gridlock. The majority party or coalition can easily pass legislation through the lower house and have it become law. So the problem in the U.S. is to a large degree institutional. As Michael Barber and Nolan McCarty have explained: “Institutions such as the presidential veto and the Senate filibuster inhibit majority rule and allow polarization to hinder policy making.”
Another Problem: Weak Laws
Debilitating gridlock is not the only serious political problem created by a separation-of-powers system. The ease of blocking bills not only stops vital legislation from passing, it also undermines the effectiveness of the legislation that does manage to pass. We have, for instance, passed some laws to reform campaign financing and to control guns, but these laws have generally been minimal, weak, and ineffective. That is because in a separation-of-powers system, successful bills must make their way through a gauntlet of three different institutions where they must repeatedly be compromised and watered down to please all the various people who could block them. Presidents often introduce comprehensive policy programs in areas like energy policy, immigration, financial system regulation, etc. But in the passage through both houses of Congress, these programs get picked apart and end up only a tattered and pale remnant of their original selves.
Countries with fewer veto points tend to have less economic inequality and lower levels of poverty than countries with more veto points.
Take the area of poverty policy. We have a much higher level of poverty than almost all European democracies. This is largely because U.S. anti-poverty policies are weaker and more piecemeal than in European parliamentary democracies. There are a lot more holes in our social safety net that the poor can fall through – a result of there being many more opportunities in our system to block, water down, and shred anti-poverty policies. Not surprisingly, a study found a clear relationship between the number of veto points in a government – the number of places where a bill can be blocked – and how severe poverty and economic inequality are in a country. Countries with fewer veto points tend to have less economic inequality and lower levels of poverty than countries with more veto points – in part because they are able to pass stronger and more comprehensive anti-poverty programs.
Lack of Accountability
A separation-of-powers system also makes it hard to hold the government accountable – another important process in a democratic system. Accountability usually means the ability to get rid of current policymakers when the public is dissatisfied with them. But with three separate institutions involved in policymaking and no clear center of power, it becomes difficult for the public to identify who exactly to blame for policy inaction or policy failure. Do you blame a Republican Senate for blocking a bill from a Democratic House? Or the Democrats for not crafting a bill the Republican Senate can support? Or a president who repeatedly threatened to veto the bill? The parties are constantly pointing the finger of blame at each other. So who does the public take their displeasure out on in the voting booth? In contrast, in parliamentary systems, there is a lot less finger pointing. It is perfectly clear who is responsible for a failed policy – the ruling majority and their chosen prime minister. As William E. Hudson has explained: “Citizens in parliamentary systems are able to evaluate clearly and unambiguously whether the government has served them well or poorly. …The ambiguity, confusion, and obfuscation of who is or is not responsible for government action is not possible in a [parliamentary] system.”
Also, when a reigning government in a parliamentary system becomes mired in gridlock and failure and the public is increasingly dissatisfied, there is a mechanism for breaking out of this quagmire. There can be a vote of no confidence in parliament which then necessitates a new election – a new opportunity for the public to make their desires known. In the U.S. system, with its fixed terms, you need to wait until the next election to try to remedy this kind of situation. And because we have staggered terms – two years for the House, four years for the president, and 6 years for the Senate – it could take several elections to throw an unpopular party out of power. In a parliamentary system, only one election is needed to change a ruling party or coalition that has fallen into disfavor. Now that is accountability.
Built-In Political Biases
The gridlock caused by our separation-of-powers system also has a pernicious ideological and class bias. It tends to preserve the status quo and inhibit change. This works to the advantage of well-off interests because it is they who are benefiting from the status quo. Think about the rich who do not want to have their taxes raised, or corporations that do not want to be regulated. To stop an increase in taxes or regulation they only have to kill a bill in one subcommittee in either the House or Senate. Or in a full committee. Or in a floor vote in either body. Or they can have the president veto it. So they only have to win once. But the road to victory for those who want to increase taxes or regulation is much harder – they have to win in every subcommittee, full committee, and each floor vote in both Houses and also convince a president not to veto the bill.
Gridlock favors the winners in society not the losers.
Generally speaking it is those who are not doing well in society – the poor, the sick, minorities, the victims of pollution, the jobless, etc. – who want to change things. A system designed to discourage change and protect the status quo does not work in their interests. Gridlock favors the winners in society not the losers. And it gives the advantage to special interest groups – well-funded minorities like the wealthy and corporations who want to block reforms — over the majority of citizens who want to pass those reforms.
Curiously, monied interests not only have the advantage in blocking legislation, but also in passing legislation. With so many obstacles to overcome to pass bills, it can take years and years of relentless lobbying to pass a law. Passing legislation is like trying to open a door with very rusty hinges, it takes a lot of strength to accomplish it. And the wealthy and corporations are more likely to have that political strength. They have the large financial resources necessary to fund the necessary long-term lobbying efforts. (The undemocratic tendencies built into lobbying are a problem discussed in more detail in another article on this site.) It is hardly a coincidence, for instance, that the groups most successful over the years in passing bills to reduce their taxes have been the wealthy and business.
A bias toward gridlock is also a conservative bias toward limited government, and against large activist government. The separation of powers makes it harder to pass the large government programs and the tax increases necessary for activist government to address the serious economic, social, and environmental problems we face. It is one of the major reasons we lag behind Europe in the size of our social safety net and why Americans lack universal health care, retirement security, effective mass transit, well-maintained infrastructure, and low-cost higher education. The decision of whether to have a large or small government should be made by voters in elections – as it is in parliamentary systems. It should not be pre-determined by constitutional structures – as it is in the United States.
All of these political biases – toward the status quo, in favor of monied interests, and against larger government – stack the deck in favor of the Republicans. The Republicans benefit much more than the Democrats from a system that inhibits change and protects the interests of well-off groups. Since the Republicans are generally concerned with fighting change – stopping bills that protect the environment, regulate corporations, raise taxes, or control guns – they are favored by a policymaking process that makes it easy to block bills. In fact, Republicans can get what they want by controlling only the House, or the Senate, or the Presidency. They need to hold sway in only one of these institutions to block bills. While the pro-change Democrats must control all three of these bodies to pass their legislation. And again, whether Democrats or Republicans control the federal policymaking process should be determined by elections, not by a bias built into government institutions.
The Rationale for the Separation of Powers
Given the many problems and disadvantages of the separation of powers, there must be some pretty powerful reasons why some think this is a good system. Many supporters go back to the framers of the Constitution whose main rationale was distrust of government and government power. This is not too surprising considering that many colonists felt that they had been mightily oppressed by the actions of the English government. So if your number one priority is to prevent government from doing bad things to people, it makes a lot of sense to hobble it with checks and balances and make it easy to block bad policies.
The framers seemed particularly concerned about the potential for a “tyranny of the majority.” Separating the powers of government would make it harder for it to pass oppressive laws – harder for the majority to run roughshod over the rights of minorities. For example, if the House passed legislation that discriminated against Islamic Americans, the Senate could block it, or the President could veto it, or the Supreme Court could declare it unconstitutional. For some, then, a tendency toward gridlock is a good thing. As the late Supreme Court Justice Antonin Scalia explained, “Americans [should] learn to love the separation of powers, which means learning to love the gridlock. Which the framers believed would be the main protection of minorities.”
Seventeen Western European parliamentary democracies actually score higher in protecting freedoms than the United States.
But there are a number of problems with this “tyranny of the majority” argument. First of all, if this is correct, we would expect parliamentary countries without our checks and balances to be plagued by bad laws that often oppress minorities. But this is not the case. Let’s look at one key area – political rights and civil liberties. Rights like free speech and freedom of religion are crucial to any democracy – important for protecting the rights of political and religious minorities. Given the lack of checks and balances, one might expect parliamentary countries to do much worse in preventing government from violating these political rights and civil liberties. But the evidence shows otherwise. The Freedom House does an annual study where it grades countries on their record of protecting civil liberties and political rights. The results show that seventeen Western European parliamentary democracies actually score higher in protecting freedoms than the United States. This might help to explain why few people in Western Europe are clamoring for asylum in the United States because they are being abused by oppressive majorities. In any case, it does not seem that a separation of powers is necessary to protect the rights of minorities.
Moreover, history shows us that real tyranny is more likely to break out in countries with separation of powers. While these governments are rare in the developed world, they are more common in developing countries, especially in Latin America. In Fred W. Riggs’ comprehensive study of governments in developing countries, he found that in the 33 that have separation-of-powers systems, all have experienced at least one military coup. Among the 43 developing countries with parliaments, only about a third have suffered such lapses of democracy. This is understandable. When pervasive gridlock prevents governments from effectively addressing the many pressing social and economic problems that afflict developing nations, this increases the appeal of a takeover by a strongman or the military junta who can get things done. The U.S. has been able to avoid this fate, but the experience of developing nations makes it clear that the threat of democratic breakdowns come more from separation-of-powers systems than from parliamentary systems.
Tyranny of the Minority
But there is even a more fundamental problem with this “gridlock prevents tyranny of the majority” argument. Separation of powers institutionalizes something even worse – tyranny of the minority. This system makes it easy for small minorities and special interests to consistently block the will of the legitimate majority of citizens. We have minority rule. The National Rifle Association can block any meaningful gun control efforts. Oil, gas, and coal companies can prevent passage of legislation to slow down global warming.
In this way, a separation of powers routinely violates a fundamental value of democracy: majority rule. Our government often fails to act, even when there is a strong majority of citizens demanding action of the pressing problems faced by the nation. As political scientists Benjamin Page and Martin Gilens have noted in their book, Democracy in America?: What Has Gone Wrong and What We Can Do About It:
When large majorities of Americans want policy changes that would improve their jobs, wages, retirement pensions, or healthcare – or that would combat climate change, reduce gun violence, improve public schools, or rebuild bridges and highways – they are often thwarted by gridlock and inaction.
Another way to think about this is that a separation of powers undermines the responsiveness of government. Responsiveness – how well the government creates policies that reflect public demands for action – is another key democratic principle. Gridlock undermines responsiveness and thus weakens democracy.
Overcoming the Obsession with Bad Government
Many Americans seem obsessed with the idea of preventing government from doing bad things. Even Democrats, whom we’ve seen are systematically disadvantaged by this arrangement, will often celebrate the separation of powers when it allows them to torpedo what they see as a destructive Republican bill. They breathe a sigh of relief when a Democratic House defeats a Republican Senate bill to cut spending on food stamps or repeal environmental laws. Thank God for checks and balances!
Making it hard for government to do bad things also makes it hard for government to do good things that improve our lives – like solving societal problems.
But this obsession with preventing bad government blinds people to an important fact: making it hard for government to do bad things also makes it hard for government to do good things that improve our lives – like solving societal problems. A government that is too hobbled to hurt people is also too hobbled to help them when they need it.
We have become like those neurotic and overly-protective parents who refuse to let their kids leave the home because they are overwhelmed with a fear of the bad things that might happen to them – falling off a bike, getting run over by a car, being molested by a stranger, bullied by neighborhood children, etc. Housebound children may indeed be somewhat safer, but they also miss out on the joys and pleasures of being outside – riding a bike, playing in the park, going to movies with friends, etc. When we focus too much on avoiding the bad things in life, we cut ourselves off from the positive and joyful parts. So too with government. If we design a government with the primary goal of having it not harm us, we tie its hands and we miss out on the many positive policies that could help solve our problems and aid in our pursuit of happiness.
A federal government that couldn’t do many things probably didn’t seem like a problem in the 18th century. Back then, as the Constitution stipulated, the federal government wasn’t expected to do much besides collect taxes, maintain an army and navy to defend the country, print money and prevent counterfeiting, run a postal system, chase down pirates, and regulate commerce between the states. But in the 21st century, the public expects a much larger and more active government that does things to help them and promote the public interest. Poll after poll shows that most citizens want their federal government to do more to protect them from environmental pollution, economic downturns, deadly diseases, dangerous drugs, poverty in old age, cybertheft, hazardous products, crumbling roads and bridges, bad food, unsafe workplaces, etc. But when Americans turn to federal officials to help solve these problems, they find a government in chains.
Other Democracies Do It Better
As noted at the outset, most of our peer democracies do not use a strict separation-of-power arrangement: they have more unitary parliamentary systems. And they enjoy all the political benefits of this form of government. They are not prone to the debilitating gridlock that has made our system so unresponsive to the concerns of average Americans. They respond more readily to the demands of their citizens; and their policy solutions – such as in the area of global warming – tend to be stronger and more comprehensive. Who to hold accountable for any policy failures is much more obvious. And decisions about whether government should be more active or more limited are made by voters in these countries, not by the constitutional design of the government itself. One can see why there are no grassroots movements in these countries pushing to abandon these benefits and switch to a separation-of-powers system.
There is clear evidence that people lead more satisfying lives in democracies with parliamentary systems.
Interestingly, there is also compelling evidence that people in parliamentary systems feel better off than those in separation-of-powers countries. A study of 21 advanced democracies found “clear and robust evidence in support of the contention that people lead more satisfying lives in democracies with parliamentary [systems].” It is argued that this may be because this system “allows for quicker and more flexible government response to changing national conditions because the fusion of the executive and legislative branches reduce the potential for political gridlock and allows for more effective governance.”
But what of the downsides of parliamentary systems? There are a few. Some don’t like that the prime minister is not directly elected by the voters, but is chosen by the ruling party or parties in parliament. (Of course we don’t elect the president directly either. We must go through the Electoral College – whose problems are the topic of another article on this site.) But voters in parliamentary democracies know ahead of time who will become prime minister if a particular party is elected – so voting for that party is voting for a particular prime minister.
Also, the parliamentary majority can usually pass legislation without any input from the minority – which makes some people nervous. But as we saw earlier, in Western Europe, this has not led to any wholesale violations of minority rights in these countries. In part, this may be because most parliamentary systems are also multi-party systems where the legislative majority is a coalition of a major party with several minor parties. This often puts these political minorities in a better position to protect their rights and advance their interests. (The many advantages of multi-party systems are discussed in another article on this site.)
Solutions for the U.S.
The most obvious way for the United States to get rid of the many political problems caused by our separation-of-powers system is to follow the example of our peer democracies and change to a more unified parliamentary system. But such a massive structure change is extremely unlikely – if only because of the enormous constitutional barriers getting in the way.
So the question then becomes this: Are there smaller reforms we can enact to lessen some of the problems of separation of powers and make us more parliament-like? One common suggestion is to remove the filibuster in the Senate – which does not require changing the Constitution. This would eliminate one of the veto points helping to create policy paralysis and minority rule.
Another suggestion, made by Woodrow Wilson among others, is to require the president’s cabinet to come from members of Congress (who would also continue on in that body), as is the case with parliaments. This would help to increase cooperation between the President and Congress. Right now, of course, such an arrangement is explicitly forbidden by the Constitution. Others have proposed giving the president the power to dissolve Congress and call for new elections when the government has become so mired in gridlock that it is impeding action on coherent policy programs. This would give the public an opportunity to weigh in and perhaps create a new consensus among the branches.
Interestingly, some of the democratic reforms talked about elsewhere on this site to address different problems, might also help with gridlock. For example, one solution to a Senate which grossly mis-represents American voters is to greatly reduce its powers – make it like the weak upper houses in many parliamentary systems that have limited powers to block legislation. And if we could get rid of our mis-firing Electoral College and fix the mis-representation caused in the U.S. House by gerrymandering, this would increase the chances of the House and the President being elected by the same party. Also, we could eliminate presidential vetoes and signing statements, both of which have been increasingly abused to frustrate the will of Congress.
Chances of Reform: Don’t Bet on It
Several things lessen the possibility of reform on this issue. First, most of the proposed solutions require constitutional amendments. It’s extremely difficult to push through any constitutional change, since that needs the agreement of two-thirds of the House and Senate and three-quarters of the states. One critic of our separation-of-powers system referred to this problem as a Catch 22. “The system is so broken that it needs to be changed but there is no way to change it because the system is so broken.”
There is no growing public concern about our separation-of-powers system.
A second problem is that one critical source of pressure for reform is not there: a growing public concern about our separation-of-powers system. Depressingly, only one in four Americans can even name the three branches of government. Only about a third of Americans are concerned about divided government and think it would be better if the president came from the same political party that controls Congress. And two-thirds endorse our system of checks and balances as being “necessary to prevent one branch from dominating the government.” This should probably not be surprising, since a reverence for the separation of powers is taught to us since childhood. As William Hudson has explained:
Two centuries of indoctrination concerning the “sanctity” of our constitutional arrangements have made most Americans reluctant even to consider changes, despite massive institutional failure. Although Americans seem less and less confident in the performance of their governmental institutions, they tend to blame the current occupants of those institutions, rather than the institutional structure.
Hudson’s insight helps to explain an apparent paradox in public opinion. Why do a large majority say they hate gridlock, but only minorities seem concerned about divided government or separation of powers? Because they tend to blame gridlock on uncompromising politicians and parties – not the political structure. Until that changes, the chances for reform are not good.
A positive factor: a handful of academics, journalists, and writers have tried to shine a light on the institutional failures of our separations-of-powers system and have dared to ask whether we could learn vital political lessons from European parliamentary systems. Ari Shapiro of National Public Radio aired a piece called “Would the U.S. Be Better Off with a Parliament?” Jeet Heer of The New Republic discussed “Why American Democracy is Broken and How to Fix It: The Presidential System Isn’t Working. A Parliamentary One Might.” And several political scientists and law professors have offered an institutional analysis of the serious problems caused by our separation-of-powers system, and raised the idea of whether the U.S. would benefit from a more parliament-like arrangement. These include Juan Linz from Yale, Arend Lijphart and Richard Hasen at the University of California, Jane Mansbridge from the Harvard Kennedy School, Fred Riggs from the University of Hawaii, Providence College’s William Hudson, and Cathie Jo Martin at Boston University. Unfortunately, however, these have been voices in the wilderness.
So all in all, it does not look like the U.S. will be escaping from the many problems of our separation-of-powers system any time soon. And Americans will be forced to look on as other nations enjoy a more democratic arrangement that allows them to respond to their citizens and address their problems much more effectively than we do.
read the next issue: 4. The Filibuster