One of the unchanging features of modern American politics is that nearly every faction spends a lot of time loudly insisting that the only reason the country isn’t governed to its liking is because the opposite faction holds all the power.
It is natural to think this way. When you realize that your own party is always falling short of what it has promised to do – whether that involves the Republicans not building the wall, or the Democrats not reducing income inequality, or what have you – then it makes sense to suppose that someone, somewhere, must really hold the power that your side only wishes it had.
Go to most conservative sites and you will see people vehemently denouncing the liberal elite that controls all of America’s most powerful institutions, and uses its power to govern as it wishes without regard to the opinions of the common man. Go to liberal sites and you will find an equal volume of invective deployed against a racist, plutocratic, conservative gerontocracy, which maintains power through gerrymandering and voter suppression even though most Americans dislike it and want to see it gone.
In its extreme form, the “someone else has all the power” meme produces conspiracy theories claiming that some hidden organization – be it the United Nations, the Zionists, Skull and Bones, or whoever – is governing America from the shadows. I’ve written before about why the conspiratorial worldview, despite being psychologically appealing, is wrong.
The milder version of this meme – the one which simply claims that the other political party has all the power – is also wrong.
Since most of my readership is on the rightward end of the political spectrum, they’re probably wondering what has become of the “liberal elite that controls all of America’s most powerful institutions, and uses its power to govern as it wishes without regards to the opinions of the common man?”
Well, it exists, and it’s the reason why American politics has mostly moved leftward over the last century. But this isn’t the same thing as saying that the Democratic party is all-powerful.
For example, where were the omnipotent Democrats when the Supreme Court decided Bush v. Gore? What about when the United States invaded Iraq in 2003, or when every attempt to slow down climate change by restricting CO2 emissions has failed miserably? Why didn’t the Democrats stop the GOP from gerrymandering the House in 2010?
I could go on and on. But I started this post by asking a question: “Who Has The Power?” Since both Republican and Democratic office-holders are constantly finding their actions stimmied by the other side, and since there aren’t any grand conspiracies secretly running things, and since I’m not naïve enough to mistake our present system for the Founders’ “checks and balances” working the way they’re supposed to, I’m going to need to find another answer.
Three answers, actually. After pondering a long time on the question of who holds ultimate power in America’s present-day system, I’ve concluded that there are at least three answers, none of which, taken on its own, is the full truth. Here they are:
1. The Supreme Court
If you are looking for the man, or body of men, which holds the imperium maium in the present-day United States, then it isn’t hard to find. The Supreme Court is in charge. The law in America is whatever the Court says it is.
This is why when Justice William J. Brennan, probably the most influential liberal to ever sit on the Court, quizzed his new clerks on what the most important rule in constitutional law was, he bemusedly listened to their speculations that it might be the separation of powers, or the freedom of speech, before revealing the real answer, the Rule of Five. “If I get five votes,” he said, “I can do anything.”
It hasn’t always been this way. Prior to the 1950s, judicial review existed, but it was subject to more checks and balances than today, and it was generally a conservative force. That is to say, although the Justices would occasionally strike down new and controversial laws, all the major innovations in American policy, such as central banking, women’s suffrage, Prohibition, and the New Deal, were still done through Congress or the state legislatures.
Then, under Chief Justices Warren and Burger, the Court transformed itself from what Alexander Hamilton called the “least dangerous” branch of government into a dictatorial committee with roughly the same powers as the Soviet and Chinese Politburos.
In short, by declaring itself the protector of every minority group who felt that its rights were being violated by more democratic institutions, the Warren Court became America’s Top Legislature. (That’s what “sole interpreter of the constitution” is a euphemism for). The Court then used this new power ruthlessly, to make a lot of dramatic changes to American law and policy that went quite a ways beyond suppressing the racial injustices which originally motivated its power trip.
While this was going on, both during the period of rapid changes that ended around 1975, and during the calmer times since then, most American politicians have played coy, talking as if everything that had happened was an integral, if at times annoying, part of the constitutional system of checks and balances which the Founders gave us. (Does it really make sense to say: “one of our checks and balances is that the third branch of government is above checks and balances?” Does two plus two equal five?)
So the upshot is that, for the last six decades or so, America has been a de facto dictatorship-by-committee, within a few constraints. The Justices are limited by the rate at which cases can work their way through the legal system (they cannot, for instance, do a page-by-page revision of the tax code), and by the need to get five out of nine people to not only take an interest in the controversy at hand, but also end up on the same side of it (which is why the Court very often issues a decision to the effect of ‘we don’t want to be in charge of this aspect of the law’).
The Justices are careful to avoid getting involved in foreign policy. And they are also limited by the faint possibility of getting impeached or having Congress pass laws limiting their jurisdiction if they do something that both parties think is really, really bad. That is why, to give one example, they couldn’t reinstate slavery, even if they tried. But there isn’t much else that they couldn't do.
2. Moderate Republicans
To a right-winger, my first answer to the question of “Who Has The Power?” isn't all that surprising. After all, conservatives and libertarians have been complaining about the “Living Constitution” since before I was born. But there are uncomfortable implications, because you can't simultaneously admit that the Supreme Court holds the imperium maium in this country, and blame America’s problems on “Democrats.”
Republican appointees have been a majority on the Court since 1969, with the size of that majority fluctuating between five and eight seats. Also, the one time that the Court decided a presidential election, the Republican won. And yet, during all these decades, the Court has, for the most part, kept on advancing liberal causes.
For a politically astute conservative, the following names are synonymous with “traitor.” Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, David Souter, John Roberts. But to whom are they traitors? Not to Republicans like Nelson Rockefeller and Bob Packwood and John Sununu, who were instrumental in getting them onto the Court.
The reason that you can rarely get an outspoken originalist like Robert Bork through the Senate is that there are a lot more Republicans who favor liberal jurisprudence than there are Democrats who favor conservative jurisprudence.
The conflicts over judicial philosophy are just one manifestation of the asymmetry between Left and Right in American politics. You can see the same thing across the whole gamut of legislative issues which work their way through Congress. It goes like this:
The Left is for rapid leftward change. The Right is sometimes for slow rightward change, but more often for just preserving the status quo. Inevitably, both Left and Right develop moderate factions. And the moderates are for... slow leftward change. The country does not go left as fast as the Left’s leadership would like (which is why the bulk of the Left still feels powerless) but it definitely goes left.
At least, it goes left when the corporate world doesn’t say ‘No.’ Moderates get along very well with monied interest groups.
(Also, moderate Republicans tend to be pro-war. Perhaps you recall the Republican Presidential Primary four years ago when Donald Trump, the only candidate to say the Iraq War was a mistake, was painted by the media as a dangerous extremist, while Marco Rubio, who was running in the moderate lane, said that the best solution to the conflict in Syria was to declare a “No-Fly Zone” and then shoot down Russian planes that violated it? And I shouldn't even need to mention the “moderate” policies of John McCain and Lindsey Graham!)
Anyhow, American politics makes a lot more sense once you realize that moderate Republicans are in charge, and that the difference between liberal causes that fail (such as CO2 limits or higher taxes for the rich) and those that succeed (such as LGBT equality and de facto amnesty for illegal aliens) is usually determined by which ones moderate Republicans can support while remaining true to their corporate sponsors.
In a two-party system such as ours, where one party’s job is to agitate for radical changes, and the other party’s job is to offer inept and half-hearted resistance, the gatekeepers are the moderate members of the conservative party. Leftist reforms, from the creation of a bunch of new regulatory agencies under Nixon to the No Child Left Behind Act to same-sex marriage, go from idea to reality the moment that moderate Republicans get behind them.
3. No One
Imagine, for a moment, that you’re a peasant living in Roman Syria in the third century AD. Life is hard for anyone who has to earn a meager living by tilling the soil in a Roman province, but your life is even harder than most, since your landlord routinely takes a bigger share of your grain than the law entitles him to, and the local tax collector does the same thing with your money.
You complain to the municipal judges, but they don’t do anything – after all, they’re on good terms with the landlord and the tax collector, and one doesn’t just walk away from a friendship that carries financial benefits.
You know that the Emperor is ultimately in charge, so it’s hard to think of the landlord and the tax collector and the judges as tyrants – after all, they have to obey the Emperor’s laws just like you do, and if they try to take his place, they’ll probably end up with their heads on a bunch of pikes. But the Emperor is off fighting barbarians on the other side of the Danube, and what’s going on here in Syria is the last thing on his mind – or at least, it will be, until the Queen of Palmyra begins invading and pillaging the whole eastern half of the Empire.
So it isn’t fully accurate to say that the Emperor is in charge, when he actually plays no role in most of the decision-making that affects how his subjects live. But the landlord and the tax collector and the municipal judges aren’t in charge, either; after all, the ability to plunder one corner of a complex system is not the same thing as control over the entire system.
Present-day America has a lot in common with third century Rome. The American Empire, like the Roman Empire before it, is going through a time without strong leaders – just a lot of people who have the ability to plunder one corner of the system, and who use that ability ruthlessly.
We saw that during the financial crisis of 2008, when so many bankers kept on granting themselves multi-million-dollar bonuses even when their banks were insolvent and their bills were being paid by the government.
A lot of people on both the Right and the Left looked at what was going on and concluded that America must be controlled by a conspiracy of bankers. But the power that the banks have doesn’t rise to the level of controlling much of anything.
Rather, the revolving door between banks like Goldman Sachs, and the federal agencies that are supposed to regulate banks like Goldman Sachs, is useful to the banks mainly because it gives them enough veto power to make sure that the agencies don’t do anything that’s against the interests of the banks. But it does not give them power to proactively steer government policy in any particular direction.
Nearly all regulatory agencies function in a similar way. They protect the largest players in the industries they regulate from accountability, and they also protect them from competition, by means of an ever-expanding regulatory burden that crushes smaller players. As one might expect, the overall effect on the economy is bad.
To give one example out of thousands, in 2010, Congress enacted a new law, written by lobbyists and agreed to by a voice vote, which raised the flight-hours needed to be a co-pilot from 250 and 1500 and promptly drove Great Lakes Airlines and several other small airlines out of business. As for the big players, like American, United, and Delta? If I recall right, they’re still here.
This didn’t happen because anybody convinced a room full of people that it was a good idea to put Great Lakes Airlines out of business. It happened because there are people whose job is to constantly expand the regulatory code, and other people whose job is to make sure that the burden of that constantly expanding regulatory code falls on someone other than the corporation they work for.
You can see the same pattern almost anywhere you look. Why has the Defence Department poured so much money down the rat-hole of the F-35, even though it has taken decades to develop, its cost overruns are legion, and nearly every unbiased analyst knows that the F-35 is inferior to the fighters from the 1970s and 1980s that it is supposed to replace?
The answer is that it is in Lockheed’s interest for the program to move ahead, and Lockheed has its fingers in enough bureaucracies to keep things from getting done that aren’t in Lockheed’s interests.
No single person, or small group of likeminded people, is dictating this. Nobody who chairs a congressional committee or occupies a big office in the Pentagon is unpatriotic enough to consciously act against the core military interests of the United States. At the same time, these people are institution men by temperament, and it isn’t in their nature to rise up and wrest control of the Defence Department’s policies away from the Department’s vendors.
Meanwhile, America’s university system is busily charging exorbitant tuition for mostly-useless degrees, and will keep doing so as long as the Department of Education is willing to shell out huge amounts of money on student loans with little repayment potential. This is a policy that won’t be reversed in the near future, because nobody is powerful enough to take on the monied interests that benefit from it.
At this point, giving more examples should be unnecessary. Suffice it to say that America’s experiment with driverless government won’t go on forever. Rome’s period of decadence and misrule between AD 180 and 284 ended beneath the firm hand of the cruel but competent Emperor Diocletian. A second period of misrule began around the year 395, and ended with the dissolution of the western half of the empire in 476. (It’s worth noting that each of these periods, as well as the interlude of relative prosperity, lasted longer than a typical human lifetime. I have written before about how empires don’t collapse quickly.)
What will put an end to our present period of weak leadership? Nobody knows yet. Either things will keep going in the same direction until the dissolution of the Empire, or else a strong leader will reconcentrate power and start governing in a way that’s more conducive to military success and long-term stability.
One way or another, things will change. But how soon that change will come, and what form it will take, are not questions that can be answered with any degree of certainty.