The US Fiscal Cliff and Constitutional Fallibility

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By Mark McNaught

The fiscal train wreck in the United States has only just begun, and the wagons are only beginning to pile up.

While the recent passage of tax raises for upper-income earners has temporarily staved off immediate decent into the fiscal canyon in the form of massive automatic cuts in entitlement and military spending, the next two months will be chaotic when it comes to beginning to balance the books, let alone immigration, gun control, and a host of other pressing issues.

This demonstrates, among other things, the degree to which the lack of constitutional specificity regarding process, and the inability of the constitution to adapt, hinders progress and sane legislative procedure.  The US government is so bogged down in process, and chronic repetitive legislative gridlock, that it’s somewhat akin to running your government software on Windows 1789.

With regards to the fiscal cliff and other examples of legislative dysfunction, a great part of the blame can be attributed to the constitutional ability of the legislative bodies to set their own rules, and the party in power to change the rules to benefit their caucus.

In the case of the House of Representatives, the Republican caucus has adopted an informal ‘majority of the majority’ rule.  That is to say, the Speaker of the House will only be allowed to bring a bill for a vote on the floor if at least a majority of his caucus supports the bill, even if a majority of the House is in favour.  This allows a determined minority to stop the majority.

Likewise in the Senate, the procedural rules can only be changed by a 2/3 majority.  The use of the filibuster has skyrocketed in the last few years, repeatedly blocking bills and appointments by requiring 60 of 100 votes to proceed, also allowing a minority to thwart the will of the majority.

Other reasons that fiscal matters have come to a head at this moment is a combination of the expiration of the Bush tax cuts, which were limited in duration, the ‘sequestration’ which is a statutory self-inflicted punishment the Congress placed on itself in 2011 for not coming to agreement on taxes and revenue, and the power Congress gave itself to raise the debt limit, threatening default and government shutdown if it fails to do so.

The separation of powers embedded in the US constitution allows for systemic internal mismanagement of the three branches, with no way for an outside independent authority to correct patent flaws.

If there is a constitutional solution in the US to this, it is nearly impossible to attain. Amendments require 2/3 of each House of Congress to approve, and ¾ of the State Legislatures must then ratify for it to take effect.  Wholesale rewording of the XVIII century document has never been done, though 27 amendments have been tacked on.

What lessons does this hold for avoiding similar dysfunction in an independent Scotland under a written constitution?

Perhaps the most important lesson is that a Scottish constitution be much more detailed regarding fair and effective legislative procedure, and that Parliament itself should not be able to set the rules.

A possible solution would be for there to be a judicial non-partisan agency set up to closely monitor political procedure, and change the constitution when procedural roadblocks become evident.  Think of it as computer programmers updating and improving software when the program becomes slow and bugs appear.

This could be accomplished through having different methods for amending the constitution: a much more exigent method for amending fundamental elements like structure and fundamental rights, and an easier method for ‘tweaking’ procedure to make the political process more efficient without favouring one party or sacrificing democracy.

Above all, political parties and the institutions should not be able to make their own rules, which I hold is the main reason the current US government is so chaotic and gridlocked.  Many of the same things can be said of the Westminster Parliament. Scots can do so much better under well-structured, yet adaptable political procedure.

Mark McNaught is a member of the Constitutional Commission, and Associate Professor of US civilisation at the University of Rennes 2 France, and teaches US constitutional law at Sciences-Po Paris.