Dreier Roundtable examines roots of polarization in Constitution

By Tom Johnson

Teachable moments from distinguished panelists were on the agenda at the latest Dreier Roundtable (DRt); a half-day conference held last Friday in the Kravis Center and the Marion Miner Cook Athenaeum.

The Roundtable convened a group of policy experts, politicians, academics, journalists and professionals who focused on the topic: “Examining the Roots of Polarization in Our Constitutional Order.”

DRt is an innovative multidisciplinary public program at CMC which convenes expert panels for discussions of issues that affect the future prosperity of the U.S. and the world. It’s inspired by the career of CMC Trustee David Dreier ‘75, longtime Chairman of the House Rules Committee and a 32-year veteran of Congress.

In the first session “Federal Reserve: Administration vs. Accountability,” panelists debated and educated about how polarization effects the Federal Reserve and that the problem may well be systemic.

“The Federal Reserve is no exception to polarization,” said Zach Courser, Visiting Assistant Professor of Government at CMC in his introduction of the panel. “The Fed is a creation of congress and as much as it is an economic entity, it’s also a political entity. We see pressures from congress – slowly but surely – to audit the Fed and increasing pressures that the Fed itself feels in responding to such polarizing politics.”

Eric Helland, William F. Podlich Professor of Economics and George R. Roberts Fellow, moderated the panel which included Scott Sumner, Research Fellow at the Independent Institute, the Director of the Program on Monetary Policy at the Mercatus Center at George Mason University and an economist who teaches at Bentley University in Waltham, Massachusetts; Alex Pollock, a resident fellow at the American Enterprise Institute; and Binyamin Appelbaum, a Washington correspondent for The New York Times who covers the Federal Reserve and other aspects of economic policy.

 

“John Maynard Keynes once said back in the 1930s that he looked forward to the time when economists could be more like dentists; that they were the people you saw to get your teeth fixed but there was nothing adversarial about it,” Professor Helland said. “My personal feeling is that that is sort of a wonderfully mid-century modern view of public policy.

Prof. Helland asked what exactly the independence of the Fed meant in modern-day terms.

“The Fed is the most dangerous organization in the world because it’s the greatest source of systemic risk,” Pollock said. “Should the greatest source of systemic risk be independent of other parts of the government or not … it’s a great question. And accountable to whom? Is it more important for the central bank to be accountable to the Executive or to Congress?

Pollock expressed amazement that central banks (including the Fed) portray themselves as fighting against inflation as if inflation were some external force that came from someplace else

“The main thing that central banks do is create inflation,” he said. “When Paul Volcker (Chairman of the Fed under Presidents Carter and Reagan) made himself famous in central bank history as a battler against inflation, he was fighting the inflation that the Fed itself created along with other central banks in the 1970s. The damage wrought was huge in the 1970s and is one reason why the Fed is the most dangerous institution in the world.”

According to Appelbaum, at most, the Fed has the freedom to prioritize long-term political considerations over short-term ones. “When the Fed was created, it was much more beholding to the rest of the government and the Executive branch and Congress exercised considerably greater influence over its operations,” he said. “It did what Treasury told it to do and acted as a fiscal authority – particularly during the Great Depression and its aftermath. It’s only in the 1950s and ‘60s that we begin to get what we think of as a modern and independent central bank. And it’s been playing out over the last 50 years in terms of greater and great independence.”

Sumner reminded attendees that when the Fed was created, the U.S. was still on the gold standard which largely underpinned prices. “One of the things that’s happened over time is as we gradually moved away from the gold standard, there was an evolution to a paper money system and the Fed gained more power to control the macro economy,” he said. “I would actually attribute the improved performance of the economy not so much to central banks becoming independent but with a greater understanding of how monetary policy can and should operate under a freely flowing system.”

As to the question posed by Prof. Helland of providing a check and balance on the ability of the Fed to leverage unconventional monetary policy and at the same time still affording it a measure of independence to make that policy, clearer mandates are needed.

“We’re in an interesting historical moment right now,” Appelbaum said. “We’re now in a moment in which Congress would like the Fed to focus more rigorously on inflation; to suppress inflation. Congress is pressing the Fed to do that and the Fed is asserting that its independence allows it instead to worry less about inflation and focus more on unemployment. The debate has been flipped on its head.”

The Roundtable’s second session examined “Polarization in the Supreme Court.” Ken Miller, Associate Professor in Government at CMC and moderator of the session, begged the question: how polarized is the U.S. Supreme Court? “In many of the most prominent cases, the decisions divide on 5/4 lines, often on ideological grounds and increasingly with sharp dissents,” Professor Miller said.

“There used to be more unanimous decisions years ago, but we’re in a very divisive time,” said panelist Tom Campbell, Donald P. Kennedy Chair in Law and Dean of the Dale E. Fowler School of Law at Chapman University. “Statistically, the Court had 27 percent unanimous opinions last term; the last 10 years, 36 percent; in the 1980s, 63 percent.”

Another important measure of how much the Supreme Court has polarized can be found in how pairs of justices voted on issues. “Justices Kagan and Sotomayor over the last five years voted together 94 percent of the time,” Professor Campbell said. “Justices Kagan and Ginsberg voted together 93 percent of the time. Chief Justice Roberts and Alito voted together 93 percent of the time. To give you some context about how radically things have changed, from 1946 to 2010, no justices had combined voting numbers higher than 92 percent.”

Typically, the “kind of person” who becomes a justice nowadays is a law professor with no experience in elective office, little if any experience in a courtroom and who has served on a Court of Appeals. “Eight of the nine justices have served on the Court of Appeals and five of them have been law professors,” Prof. Campbell said. “None of them have ever run for office and only two have any experience in court.”

According to Steven Teles, Associate Professor of Political Science at Johns Hopkins University and a Fellow at the New America Foundation, the polarization in the courts are by the same issues that are polarizing Congress.

“We have ideologically divided parties that are disproportionately controlled by their most intense and ideologically motivated supporters,” he said. “The parties have distinct sources of information and intellectual frameworks where they get their news, ideas, etc. And all courts and especially the Supreme Court are operated in an advocacy universe which exists outside the court.”
To Amanda Hollis-Brusky, professor in the Politics Department at Pomona College, an interesting question is whether the deep divisions on the court reflect two different constitutional visions which – via cases – are battling it out on the court.

“I think a lot of times it gets framed as conservative legal mobilization, counter mobilization, the liberal legal network,” she said. “And often it gets framed as originalism vs. living constitutionalism, etc. But I think these interpretive methodologies are just tools and that everything largely tracks to the right or left. The courts use the tools when it’s beneficial to advance their respective visions.”

Spencer Abraham, former Republican U.S. Senator from Michigan, a founder of the Federalist Society and co-founder of the Harvard Journal of Law and Public Policy, said the hearings for nominees and confirmation process of Reagan-era Supreme Court nominee Robert Bork led to a kind of precedent which has resulted in a highly politicized arena. “It’s led in the direction of people being nominated to the court whose track records are either invisible or extremely difficult to ascertain in a question and answer hearing,” he said. “It’s led to political parties advocating nominees who they think will represent their agendas.”

With Supreme Court Justices and federal judges, on average, serving three times longer than their counterparts did in the early days of the republic (the earliest Supreme Court justices served eight years), things might have irrevocably changed. “There were opportunities to replace judges more often,” Prof. Hollis-Brusky said. “The stakes weren’t that unbelievably high. Now, because we have this uncertainty about who will control the White House every few years – presidents, parties, the office of legal counsel, the justice department – they are all launching massive campaigns to find individuals who will not be the Byron Whites, John Paul Stevens’ or Harry Blackmuns that stay on the court for decades.”

The third and final session of the DRt was held over lunch at the Athenaeum. In his remarks, CMC President Hiram Chodosh encapsulated the day’s theme of polarization and the fact that the DRt is committed – through the process of engagement – to finding ways to keep that destructive calcification from happening.

“We must look at where conflict becomes excessive and so viciously cyclical, that we can no longer sit at the same table and have an intellectual, collegial discussion about the great topics of our day,” President Chodosh said. “Immigration, privacy and security, economic regulation, health care, religious liberty, race, our ability to move the needle to successful outcomes, all depend on our prowess at managing conflict.”

According to Congressman Dreier, society has experienced a kind of reversion from a very healthy Jeffersonian skepticism to a corrosive cynicism that is becoming ever more pervasive.

“That doesn’t mean, necessarily, that our institutions are dysfunctional,” he said. “In fact, I argue that in many ways Congress is reflective of that coarsening of society; it is something that we need to think about.

“I happen to believe that one of the great things about our Constitution is that unlike the state of California or virtually any country on the face of the earth, you can put a copy of that Constitution in your breast pocket, he added. “It is unique and wonderful and we should celebrate that.”

Taking up the question of whether the Constitution is to blame for the current dysfunctional gridlock in Congress, Thomas Mann, the W. Averell Harriman Chair (2014) and a senior fellow in Governance Studies at the Brookings Institution, said that the U.S. Constitution is the setting in which other forces are creating the dysfunction in Congress.

“Right now we have very distinctive ideological parties that are quite distant from one another,” he said. “They are parliamentary parties, also, in the sense that they are exceptionally oppositional. The idea for both is to always win the majority. And that, in turn, has induced a form of strategic behavior that says: ‘We gotta play as teams.’”

From all that was said during the day, much bipartisan work must be done in order to combat the deleterious effects of polarization. The DRt shed some light on the problem, but in the view of most panelists, it’s up to all of us to take action when and where we can.

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