A Government Divided Against Itself Cannot Shrink
Libertarians and some conservatives are known for favoring small government principles. See supra here. To that end, they sometimes prefer a political arrangement in which the president and the dominant congressional delegation are of different political parties. This arrangement, known as divided government, is thought to slow the wheels of government spending and regulation, things libertarians largely oppose. The basic logic is that, because both Congress and the president must approve all legislation, see INS v. Chadha, 462 U.S. 919 (1983) (upholding the requirement of bicameralism plus presentment), formal friction between the legislative and executive branches in the form of party misalignment will impede the passage of new legislation.
A counterexample, the years of George W. Bush’s presidency, seems to support the divided government logic by negative inference. For the first six years of President Bush’s tenure, at least fifty percent of the members of the House and Senate were Republicans. During those years (the 107th, 108th, and 109th Congresses), Bush vetoed only one bill. When Democrats controlled slim majorities in both Houses during Bush’s final two years, the President issued eleven vetoes, and the 110th Congress overrode four of them. (For context, the only post-Civil War presidents to issue fewer vetoes were James Garfield and Warren G. Harding. President Garfield was shot two months after his inauguration and died having served only 199 days. President Harding served for less than three years before he too died in office.) See here (detailing presidential vetoes).
Because libertarians often are dissatisfied with both major party presidential candidates, they may cast their votes for divided government by supporting the candidate whose party the voter believes will not control Congress following the election. Ilya Somin, a law professor at George Mason University School of Law and frequent contributor at the Volokh Conspiracy, used that approach to justify his support of Senator John McCain in the 2008 presidential election. (“My belief that John McCain is the lesser of the available evils in this election is largely based on the advantages of divided government.”) Professor Somin’s divided government paradigm has led him to support, at least in writing, Democrats too, as he did when he expressed hope that that party would increase its congressional representation in the 2006 election. (For Professor Somin’s lucid explanation of his views on divided government, see here and here.)
The logical link between divided government and small government seems intuitive, even obvious, at first blush. Empirical studies like the veto counts mentioned above may indeed bear it out. Others, however, point to less intuitive consequences of divided government, some of which may undermine the small government connection. Robert A. Kagan, law professor at Boalt Hall, argues that “in an era of divided government and weak political party unity, American legislation got worse”:
Thus in the United States, beginning in the late 1960s, politically divided government and fragmented political parties encouraged and enabled organized interest groups…to demand statutory amendments that would help them exert influence on policy implementation and challenge unsympathetic administrative officials in court. American statutes have always been less carefully drafted, and hence less coherent, than those of, say, the British Parliament, in which cohesive majority governments need not compromise with the current minority. But in an era of divided government and weak political party unity, American legislation got worse. In Congress, statutes had to be painfully stitched together by shifting, issue-specific coalitions. Legislative proponents and presidents could gather support for their bills only by adding a variety of loopholes and side-payments demanded by a multitude of stakeholders. Individual senators and House subcommittee chairs often added hastily drafted last-minute amendments. Divided government did not block congressional lawmaking but it made legislation more complex, lengthy, and confusing. Multisubject omnibus acts…resembled incoherent patchwork quilts, laden with legally contradictory or incomprehensible provisions. This style of legislation magnified legal uncertainty, virtually demanding subsequent litigation and judicial reconstruction of congressional policy.
Robert A. Kagan, Adversarial Legalism: The American Way of Law 49 (Harvard University Press 2001) (internal citations omitted).
Proponents of the divided government theory may argue that Professor Kagan says nothing about the size of government. The picture he presents of the results of divided government cannot be reassuring to those like Somin, however. Kagan’s account does not mention any reduction in government activity, but instead presents a messy legislative process resulting in litigation that drives policy choices into the arena of the unelected judiciary and a perceived need for additional correctional or expansive legislation. Instead of slowing down, under Kagan’s divided government story, government trucks along but with frustrating results: “In an era of divided government and weak political party unity, American legislation got worse. …Divided government did not block congressional lawmaking but it made legislation more complex, lengthy, and confusing.” Id. If divided government fails to deliver substantial decreases in the size of government– and even if it succeeds to some extent– the costs may be higher than a small government proponent wants to bear, especially where some of those costs cut against small government ideals.
Perhaps the divided government theory overestimates the value of party affiliation as a determinant of individual behavior. Many political observers today note the similarities between the parties, especially when it comes to government size. Even granting the viability of the Blue Dog Democrats and the emerging fiscal conservatives in the Republican Party, in practice, politicians of all stripes seem to like power and act to enhance that power. If that’s the case, libertarians might find conventional political action in favor of candidates who support their views to be the best approach, however few of these candidates may exist.