“Checks and balances” misused, now paralyze government

The checks and balances in the U.S. Constitution and state constitutions are among the most valued and unique features of American government.  But their misuse now causes government gridlock.

The Founding Fathers rejected the British system where power was centrally concentrated.  The American Constitution created a system in which several bodies have some of the power – the balances – and each could exercise influence on the others – the checks.

They called the new system an “experiment,” because a government in which various parts were balanced and had checks on one another was previously unknown.  The experiment could only succeed if the participants acted in good faith.

In making federal laws, power was spread among the House of Representatives reflecting current popular views, the Senate with a longer view, and the president who can veto bills passed by the two houses.  Both houses can overrule the president by a supermajority of two-thirds.

Almost all states, including Maine, followed the same approach, though the distinct role of the Senate in Maine was watered down by making the terms of its members the same as those of House members.

To produce results, government leaders would have to cooperate and compromise, seeking to avoid conflicts that produced no response to public needs.

In practice, the federal legislative process includes conference committees between the two 

houses when they produce incompatible bills on the same subject.  Composed of leaders of both sides in both houses, they are to negotiate compromises.

Historically, the need for compromise to address major public issues, expected by the voters, overcame partisan objections.

These days, “checks” are used to prevent action.  “Balances” no longer exist when branches of government refuse to interact with one another.  Government is paralyzed.

In the House, now under Republican control, members pass bills they know have no chance of becoming law.  GOP leaders avoid conference committees with the Senate.

The purpose of the House votes is to draw a bright line between the positions of the two parties.  Rather than compromise, many members hope their rigid positions will attract enough popular vote support to give them the power to get their way in a future Congress.

Under the Constitution, the Senate sets its own rules.  Its rules include the filibuster, a means of preventing consideration of a bill without the agreement of 60 senators out of 100.  In short, the majority vote foreseen in the Constitution on most matters has been nullified by the filibuster.

The Senate filibuster rule means a proposed bill must get 60 votes for passage.  The majority Democrats must get five GOP votes to pass a bill.  A Republican senator may favor a proposal, but by accepting party discipline requiring 60 votes, that person actually votes to defeat the proposal.

Not all the blame falls on Senate Republicans.  Democrats want to keep the filibuster, so they can block bills if they cede control of the Senate.  They fear losing the supermajority requirement created by Senate rules, allowed by the Constitution but not foreseen when it was written.

Even if the GOP gains control of the Senate in this fall’s elections, this situation in unlikely to change.  While a Republican Senate could eliminate the filibuster, it would almost certainly not take such action for the same reason as the Democrats refrain today.

At the federal level, House unwillingness to compromise and Senate inability to decide has yielded deadlock.

President Obama seems to have stepped back and allowed the parties to struggle against one another in Congress.  His veto threat has been used mainly to let everybody know House-passed bills have no chance of becoming law, because neither house can muster the votes required to override a veto.

The conservative wing of the Republican Party is determined the federal government should shrink.  Political deadlock produces the inability to fund government, which accomplishes its goal.

Add to all this, the Supreme Court.  Making extensive use of the ability of five of its nine members to declare laws unconstitutional, it has become yet another legislative body.  A conservative majority uses its “checks” to overrule laws adopted with broad support in Congress.

In Maine, virtual legislative war exists between Gov. LePage and the Democratic-controlled Legislature.  The governor appears to interpret checks and balances to mean he gets to insist on laws written just his way – even if his objections are minor or peevish.

The Maine Constitution puts the Legislature in a priority position, because legislatures make the laws.  Veto by the governor is meant to force reconsideration and compromise, not to make the executive into a legislator.