If you watched the Democratic presidential debate last Thursday, you'll recall that the candidates spent the first half hour addressing their health care proposals. Hillary Clinton derided Barack Obama for offering a plan that did not guarantee 100% coverage. Obama insisted that his blueprint for national health care differed only marginally from that of his opponent. By the time the mini-seminar had concluded, everyone in the audience, ballroom and television, was well acquainted with what an Obama or Clinton presidency would mean to their ability to find affordable insurance.
Except, of course, that neither of these plans, at least in their current incarnation, have any real chance of becoming law.
We've been down this road before, most notably when Bill Clinton promised in 1992 that he would provide national health care in his first year as president. Our new insurance cards would, presumably, show up in our mailboxes on the same day that Clinton's proposed jobs package was signed into law and openly gay men and women enlisted, at the new president's invitation, in the United States Marine Corps. As we all found out sixteen years ago, however, the soaring words of the campaign trail often fail to translate into public policy.
History records that Bill Clinton ran into a buzz saw of conservative Democrats and obstructionist Republicans who prevented him from securing the majorities he needed to enact his ambitious domestic program. Even with his party in control of both houses of Congress, Clinton quickly discovered that being the president of the United States is at least a bit more difficult than governing Arkansas. But his real difficulty was not with the bomb-throwing Gingrich or even Georgia's Sam Nunn, a right-wing Democratic senator who earned a small footnote in history as the Lester Maddox of gay civil rights. Bill Clinton's real enemy was a man who had been dead for over 150 years on Election Day, 1992: James Madison.
Madison, himself a generally ineffective president, designed a Constitution that would thwart the will of ambitious men (and now women). We celebrate his system of checks and balances in the civics classroom, but we often resent it when it prevents our leaders from coalescing around the latest plan that will rescue America from recession or moral decay or a deluge of illegal immigrants. Historically ignorant (or intentionally disingenuous) blowhards like Lou Dobbs and Jack Cafferty decry the inability of elected officials to break the bonds of gridlock, neglecting to remind viewers that our constitutional system of government is uniquely constructed to favor inaction over its opposite.
Sometimes, our system does manage to lurch forward but usually only under dire political circumstances. The Democrats' unexpected loss of the U.S. Senate and a large portion of the House of Representatives in 1980 intimidated the party into signing onto Ronald Reagan's fairly extreme plans to cut taxes and spending (though the final impetus likely came from the burst of public sympathy Reagan received after nearly being assassinated in March, 1981). For his part, George W. Bush was able, for nearly six years, to bend a shell-shocked Congress to his will following the horrifying terrorist attacks of September 11, 2001.
In general, though, substantial change has come to America only when one party not only controls the presidency, but enjoys supermajorities in both congressional chambers. Franklin Roosevelt's New Deal and Lyndon Johnson's Great Society would not have been realized without overwhelming Democratic control of the Senate and House of Representatives. And even then, as FDR found out, it is critical that the U.S. Supreme Court not be hostile to the whole enterprise.
Neither Hillary Clinton nor Barack Obama will, if successful, benefit from staggering congressional majorities. Nor will the results of the 2008 election, however one-sided, likely intimidate an ideologically supercharged, southern-based GOP minority, particularly one in which most members represent safely conservative constituencies. As current congressional leaders Nancy Pelosi and Harry Reid have discovered, the combination of the Senate filibuster and the timidity of vulnerable centrist Democratic colleagues makes it difficult even to unite in opposition to an unpopular president. How, then, will Clinton or Obama have any hope of navigating these same waters in support of any sort of ambitious domestic program?
As we have re-learned in recent years, the most important powers of the president exist in those constitutional mandates that were poorly defined by Madison and his coauthors. The vague notion of Commander-in-Chief, for example, has been interpreted by presidents (and accepted by Congress and the American people) to mean that the chief executive can pretty much commit the armed forces anywhere at any time for any reason. The new president will, in short, have far more power over war and peace than over health care and the economy.
The other area of enormous significance is in the selection of federal judges, and especially justices to the United States Supreme Court. Even with the need for Senate confirmation, the ability to stock the judicial branch of government may be more important than any other presidential legacy. The power of judicial review, i.e., the ability of judges to make authoritative decisions about the meaning of the Constitution, does not exist in Madison's original document. But ever since it was grabbed by the Supremes in the case of Marbury v. (of all people) Madison, it has persisted as an unchecked mandate that has changed American society in myriad ways (think abortion and school prayer, just to name two).
Consider that Bill Clinton's most important legislative accomplishments involved compromises with a Republican Congress on matters that, for the most part, came straight out of the GOP playbook: free trade, a balanced budget, welfare reform. If Clinton has any sort of liberal legacy at all, it rests with the men and women he appointed to the federal bench. Unless you are a fan of NAFTA or workfare, you might, assuming you are a Democrat, conclude that the only lasting benefits of eight years of Clintonism were Stephen Breyer and Ruth Bader Ginsberg.
What does all this mean? First, it means that we shouldn't bother asking our candidates to produce detailed plans on domestic issues. Let them simply share their goals with us, knowing that whatever bill, if any, is signed into law will have little overlap with whatever blueprints might be discussed on the campaign trail. Second, it means that voters are entirely right to emphasize electability and experience in choosing between candidates for the presidency. Obviously, winning is important, but so is the ability to negotiate the legislative landmines that James Madison planted throughout his Constitution.
Finally, despite our current—and legitimate—worries about recession and immigration and health care, we ought to ask our presidential candidates to speak more specifically about their foreign policy goals and their standards for warmaking, and not just in Iraq. Precisely how would they use this singular presidential power? Would Hillary Clinton ever take military action against an enemy that is gathering weapons of mass destruction? Can Barack Obama truly think of no circumstances under which pre-emptive war might be justified?
And we should also demand more discussion about the candidates' philosophy on appointing federal judges. Yes, we want to know what their litmus tests will be (and they shouldn't lie; everyone has them). But we also need to learn how they intend to deal with the process of advice and consent. For example, does Senator Obama's oft-stated commitment to bipartisan unity include the selection of compromise, centrist Supreme Court nominees? Would Senator Clinton favor employing the "nuclear option" if the GOP were to filibuster all of her appointments?
Unless something amazing happens tonight, we will likely have these two candidates with us for at least a few more weeks. Perhaps now is the time to begin a more reasonable conversation about the realities of presidential power and their implications. Or, we can force them to continue piling up promises about domestic policy that they will almost certainly have to scale back or even break a year or so from now.
I say we might as well stop tossing pies into the air and get real.