CENTER FOR AMERICAN POLITICS AND PUBLIC POLICY OCCASIONAL PAPER SERIES (92-4) Improving Executive-Legislative Relations in the Making and Implementation of Policy Joel D. Aberbach Bert A. Rockman November 1992 A paper prepared for the AEI-Brookings Project on Congressional Renewal Center for American Politics and Public Policy University of California, Los Angeles 310 GSLIS Building, 405 Hilgard Avenue Los Angeles, California 90024 (310) 206-3109 1300 19th Street, NW, Suite 300 Washington, D.C. 20036 (202) 296-8226 IMPROVING EXECUTIVE-LEGISLATIVE RELATIONS IN THE MAKING AND IMPLEMENTATION OF POLICY Joel D. Aberbach Bert A. Rockman University of California, University of Pittsburgh Los Angeles I. The State of Executive-Legislative Relations in Making and Implementing Policy Briefly stated, the present condition of executive-legislative relations in the U.S. is not good. Gridlock is the word commonly used to describe the situation. The President blames Congress and Congress blames the President. And neither one -- the President nor the Congress -- is currently well regarded by the public. Why does this situation exist? And what can be done to improve it? In the first part of this paper, we discuss the basis for the tension that is now typical in executive-legislative relations. Broadly, we break this down into two components -- a long term structural source of tension and a more recent set of developments in executive-legislative relations that has resulted in a more adversarial and often acrimonious climate. After diagnosing the condition, we consider prescriptions. These can be described as minor, major, and perhaps revolutionary. Finally, we draw some conclusions about what these various prescriptions imply for easing existing executive- legislative tensions and dysfunctions. Built-in Tensions in American Government An obvious point about the nature of American governmental institutions bears repeating. Our institutions were designed first and foremost to prevent tyranny, not to produce the most efficient or decisive government. In Federalist #51, James Madison wrote that while "a dependence on the people is, no doubt, the primary control on the government ... experience has taught mankind the necessity of auxiliary precautions." These auxiliary precautions are the famous checks and balances system expressed through the separation of powers, a system defined by another of Madison's felicitous statements: "Ambition must be made to counteract ambition." We know of no other system, save a short-lived Nigerian government of the 1970s, so clearly designed to frustrate the exercise of governing power in the absence of concurrent majorities. The French Fifth Republic contains the seeds for this frustration when the president and the government (created from majorities in the Assembly) are of opposed political tendencies. France had one brief experience of this in the mid-1980s, although it may recur again shortly. For the two years of "cohabitation," the president and prime minister more or less divided their responsibilities into spheres of foreign policy (presidential) and domestic policy (prime ministerial and cabinet). The governing situation could well have been messier and might prove to be so when and if it recurs. Despite the possibility of Divided government in France, it is not quite the same as in the U.S. In France the weight of formal powers rests with the president. In the U.S., the separation of powers is predicated on the co-equal nature of the branches. As a result, from very early on in the U.S. system, the relationship between the president and the Congress has been unsettled. The executive branch and the departments and agencies of the federal government are tugged and pulled in competing directions. The agencies are accountable both to politicians on Capitol Hill and in the executive. Clearly, this ensures, whether or not the same party is in power at both ends of Pennsylvania Avenue, that relationships between the executive and the legislative branches will often be conflictual. Indeed, at minimum, these relationships are likely to be complicated because of the rival interests served and competing needs felt on either end of the Avenue. Despite the formal co-equal status of the branches, context matters a great deal in determining who holds the upper hand in the executive-legislative relationship. It is undoubtedly oversimplified, yet still fundamentally accurate, to suggest that throughout most of the 19th century the upper hand belonged to Congress. Alternatively, for much of this century, and especially in the period from the New Deal to the onset of the collapse of the Nixon presidency, the upper hand seemed to belong to the executive. It is this period of relative quiet that we often take as our point of departure. Before nostalgia takes over, however, it is worth recalling that there were plenty of struggles between Congress and the executive branch during this earlier period. There were movements afoot in Congress, for example, to limit the president's powers to make international agreements without submitting them through the treaty ratification process. The most prominent effort was led by Senator John Bricker, a Republican from Ohio (and Thomas Dewey's 1944 vice-presidential running mate) during the Truman administration. And in one of the less glorious chapters of modern American history, Senator Joseph NcCarthy and other red-baiting members of both the Senate and the House gave two administrations (Truman's and Eisenhower's) a difficult time. If Congress has the power to harass the executive, the executive has within it the means to deceive the Congress. On either side, the temptation to expand prerogatives is great, and it is especially great when government is divided and when distrust has developed to an expectation. While the relationship across the branches is inherently tense under any set of conditions, there is little doubt that the tensions have grown more profound and the distrust more common over roughly the last two decades. A Growing Tension in Executive-Legislative Relations from Nixon to Bush Challenge and Response: Finding an exact point of origin for a changed condition is rarely possible. Certainly, the stealth-like actions of the Johnson administration to commit large numbers of forces to the war in Vietnam and the quagmire that followed lessened Congress's inclination to grant blank check discretionary authority to the executive in national security matters. The Fulbright chaired Senate Foreign Relations Committee hearings and subsequent congressional discontent virtually ensured that should the executive risk committing U.S. armed forces by stealth, it had better achieve instantaneous success through its actions. Although the tensions brought on by Vietnam were significant, it was primarily during the latter years of the Nixon administration and in its immediate aftermath (especially the 94th Congress) that executive- legislative relations changed markedly. One element, of course, in this changed relationship was the onset of divided government, a condition that has continued for nearly all of the time since Nixon's election in 1968. While divided government existed for most of the Eisenhower presidency, the expectation that it would be a normal condition, especially under presidencies willing to mount aggressive challenges to congressional authority, was new. Nevertheless, even with divided government, the surface relationship between the executive branch and the Congress was initially rather good. Indeed, the early Nixon years marked one of the most creative periods of legislation in modern U.S. political history. Although inevitably marked by differences in political and policy priorities between a Republican presidential administration (especially one with designs on capturing the south for the 1972 presidential election) and a Democratic Congress, the relationship between the legislative and executive branches was as good as could be expected under these circumstances, and perhaps better. Early on, of course, there were signs that the Nixon White House was not Congress-friendly. It often seemed especially estranged from members of its own party. But in strictly policy and legislative terms, the early Nixon administration was able to deal reasonably with Congress and to craft legislative majorities through compromise. Before too long, however, another element came into play. This was an intra-executive conflict to which Congress was necessarily a party. The Nixon administration came into office on the tail of Lyndon Johnson's Great Society. Great Society programs expanded the role of the federal government and put many senior civil servants in place who were supporters, and often strong advocates, of the programs they administered. When the Nixon administration sought to constrain some of these programs, opposition from the bureaucracy and from key congressional supporters (fed by the bureaucracy) was readily generated. From the perspective of the Nixon White House, this fed a burgeoning (and not wholly unjustified) paranoia that forces of resistance surrounded the Nixon presidency. In this triangulation of forces, the White House inevitably saw its position as odd-person-out. It felt a strong need to get control of what it believed were its prerogatives to govern. That required control over the career executive -- a taut leash over its own appointees in the agencies accompanied by centralization of control through the White House. Assuredly, this also meant rising tensions with the Congress as the White House tried to cut off the lifelines between its potential adversaries in the bureaucracy and those in the Congress. Ultimately, this led to a heavy reliance on what is now called an "administrative presidency," and on secrecy and the abuse of executive authority. Through the impoundment of appropriated funds, the Nixon presidency also sought to redefine unilaterally the balance between congressional and executive authority. In the meantime, Congress itself was undergoing changes, particularly in the House of Representatives. This was yet another element in the shifting equation of forces. Internally, the subcommittee bill of rights shifted power away from congressional committees to subcommittees, thus dispersing authority and democratizing the House. As the Nixon presidency waned during the Watergate scandal, congressional assertiveness increased. Congress successfully challenged selected Nixon administration impoundments through the Courts, and passed the Budget Control and Impoundment and War Powers acts despite presidential recalcitrance. After Nixon resigned and the 94th (post- Watergate) Congress arrived, more changes occurred. The Democrats made major alterations to the seniority rule by subjecting the selection of committee chairs to the vote of the party caucus. They thus simultaneously strengthened the role of the majority party in the House and weakened the role of full committees. Later, the House Democrats granted significantly greater powers to the Speaker by allowing him to appoint special omnibus committees to hasten the legislative process on multi-jurisdictional omnibus bills. In sum, the Nixon administration challenged Congress. Much of what Congress did before and immediately after Nixon's resignation (of course, stimulated primarily within the majority party) can be seen as a direct response to those challenges within the context of a presidential administration weakened by an eventually fatal scandal. Oversight: What began with the Nixon administration, however, did not end there. From the 1970s onward, Congress asserted itself far more than before in the areas of policy formation and administration. Certainly, there was a massive increase in congressional support agency staff used for budgetary analysis, monitoring of policy implementation, and technical analysis of various sorts. This apparatus was kept busy monitoring the executive branch, as were committee and subcommittee staffs and individual members' personal staffs. Congressional oversight increased at a quite spectacular rate. More formal hearings were held, and the level of other activities to oversee the executive also increased. The increase in levels of oversight is well-documented. It frequently pitted congressional sponsors of programs trying to preserve government activities that they and the involved career bureaucrats supported against a presidential administration trying to alter formulas, funding bases, and even the viability of the programs themselves. Micromanagement: Particularly since 1980, there has also been a considerable increase in micromanagement of the executive from Congress. Some of this activity is clearly self-serving, producing detailed statutory provisions that benefit the constituents or backers of particular members. Some of it is the result of members having very strong policy views on a particular matter. The creation of a new Assistant Secretary for South Asia (who oversees a mere handful of countries) is the inspiration of a highly involved House member. But it was of no interest to the State department. Some of the increase in micromanagement is a function of harsh budgetary conditions that have made it more difficult to pass new program legislation. A Congress that does less legislating tends to do more overseeing. And an increase in program monitoring often leads to greater interest in tinkering with the details of the programs. Some of the increase in micromanagement, however, is a decided response to recent presidential administrations, especially those of Reagan and Bush, under which executive mechanisms to circumvent regulations produced by agency personnel have been in vogue. Often, at least according to congressional perceptions, the purpose of this circumvention is to undermine regulations that faithfully implement the intent of the statutes guiding the agencies, e.g., OMB and Council on Competitiveness actions on EPA regulations. Sometimes the administration is even seen as structuring regulations so that they implement policy the administration wants which is at variance with the underlying statutes. Understandably, reacting to that perception, Congress is led to tighten the leash around the agencies and to sharpen the definitions of legislative intent. As viewed from Congress, getting control of the details is necessary because the executive has often seized on the normal ambiguity in statutes to interpret them in ways unsatisfactory to Congress. Especially over the course of the last decade and a half, presidential administrations have significantly increased their own internal mechanisms for controlling regulations in order to slow down or deter government regulation of outside interests that presidents favor. In short, an increase in micromanagement appears to have many causes. But one of them certainly has to do with conflicting institutional prerogatives of Congress and the presidency over the content of policy and the details of policy implementation. That conflict has emanated from sharply differing policy perspectives between mainly Republican White Houses and largely Democratic Congresses. Institutional prerogative is to some extent following the party flag. While that is often the case, the habit of writing finely grained detail into legislation will be hard to break until a better understanding of institutional roles develops and there is less divisiveness across the branches about policy. Micromanagement of administration is one way for Congress to get hold of the details that make all the difference in policy and to ensure that implementation meets its intent. There is no doubt that micromanagement is a blunt instrument. In the effort to constrain the presidential administration from doing what it pleases, the devices used in micromanagement also frequently constrain those charged with managing programs from exercising reasonable managerial discretion. Whatever Congress does best, directly managing programs through detailed legislation is not one of them. There has to be a better way, but so far the better way has not been overwhelmingly evident. The fact is that a big chunk of micromanagement is a political response to a political challenge to congressional authority. Nominations: While we do not have immediate documentation regarding the controversial nature of presidential appointees, especially to the federal bench, it is our impression that nominations to almost everything have been more controversial over the course of the past two decades or so than they had been before. A lot of this has to do with the central role of the courts, and especially the Supreme Court, in dealing with issues that mobilize the very intense advocacy-based interest groups that have proliferated in recent years. Virtually every Supreme Court nominee now evokes a level of scrutiny unheard of years ago. Increasingly, that also has come to be true of nominees to the circuit benches as well. Even if there is no increase in the percentage of nominees rejected (and we would guess there has been), there certainly has been a lot more controversy surrounding those who have been nominated. One obvious reason is that the federal bench has become a battleground for party conflicts over divisive social issues and other matters. Instead of seeking to find a middle ground through nomination of middle of the road judges, however, the same process of partisan political challenge and partisan political response has often been at work. The political challenge that presidential administrations, especially those of Nixon, Reagan, and Bush, have forced upon the Senate led it, once Democrats became the majority again, to respond similarly. The resulting conflicts and visible advocacy group struggles over various nominees have mainly served to feed public cynicism. The last such prime time spectacle was the soap opera-like hearings accompanying the nomination of Clarence Thomas to the Supreme Court. No individual or institution emerged from this process in satisfactory condition. Divided Government and Political Polarization: Under divided government, with more partisan polarization and armies of ideological and other advocacy groups an important part of party constituencies on both left and right, there is every reason for institutional assertiveness to be on the rise. The inability of Republicans to win full control of Congress is undoubtedly frustrating when the party has so consistently won the White House in recent times. Certainly, the same frustrations hold for the Democrats. How can they keep winning Congress (or at least the House of Representatives) but not gain the White House? Congressional Democrats have every incentive to make Republican presidents look bad, and Republican presidents have every incentive to circumvent Democratic controlled Congresses and even to undermine the institution. Not all of these incentives have been acted on. But there is no doubt that too many of them already have been. The consequence is challenge, response, and unseemly clash. Many of the challenges are not frontal assaults, but efforts on the part of the executive to govern purely through administrative means. Questions of legality and constitutionality are involved here -- unfortunately now, in a regular fashion. In addition to the other factors mentioned, the contemporary conflict between Congress and the presidency is set in a context of budget austerity and policy constraint. Many presently controversial policies, for example, require someone else (usually the private sector) to foot the bill for worthy objectives such as eliminating employment discrimination or allowing employees to go on short unpaid leaves necessitated by family conditions. Broader ideological issues, political constituencies, and party election strategies are at work here too, but a stagnant economy and a financially strapped government make more salient the costs of these policies to the affected interests. In tough times, conflicts over resource allocation are made more difficult, and the parties genuinely disagree as to how these resources should be reallocated. As a consequence, we have veto politics. II. What Can Be Done to Improve Matters? The high level of conflict between the executive and legislative branches is not easily resolved, especially inasmuch as the current clashes between the executive and legislative branches rest on fundamental conflicts over policy and institutional interest. To some extent, we expect that the worst conflicts will lessen now that one party has gained control of both branches of government. But that is not something we can count on anymore as a regular occurrence. The habits of assertiveness and involvement practiced in both legislative and executive settings will not be easily curbed even under unified government. Assertiveness is now institutionalized. What varies is the motivation to wield it. We think that it is worth considering three sets of reforms to deal with the problems we have elaborated. They differ in the magnitude of changes proposed. The first set we characterize as minor reforms within the current order. The second set constitutes major changes within the current order. And the third set are reforms that require changes in the current order itself. Minor Changes Within the Current Order By a minor change, we mean a procedural adaptation or a structural addition under which no present player experiences a major loss and at least some will see a gain. Increasing Contacts: One of these adaptations is to recognize that cooperation between the branches is necessary to generate action each branch can live with. Separated institutions, while deriving their legitimacy from different sources, cannot afford to be so separate. We know that talk is cheap and that suggesting talk as a solution to inherently divisive issues is even cheaper. Yet, talk sometimes can establish relationships and understandings that become more costly to break once they have been solidified. One recommendation, therefore, is that early on in an administration, it would help to establish, informally and formally, greater contacts between executive and legislative policymakers. Joint briefings or policy seminars, for example, with administration officials and members of key committees and the leadership could help induce cooperative ventures between the executive and the legislative branches. Such briefings can at least provide a better basis for understanding the positions of the other side and perhaps build enough trust to blunt some of the most aggressive means each side has used to undermine the effectiveness of the other. Efforts at cooperative ventures are always subject to legitimate differences of perspective, constituency, interest, and belief -- in short, political differences. Such differences are real and legitimate, and they will always interfere with efforts to find common ground. Yet, our system in recent years has probably been more responsive to these differences than to the potential for common ground. The now much maligned economic summit of 1990 that brought together key actors from the executive and legislative sides to fend off Gramm-Rudman sequestrations and cut a deal on the budget is a model of how our system can be made to work under divided government. Similarly, it is worthwhile keeping in mind that for the most part governments in successful democracies operate best on the principle of inclusion, not exclusion. Recently, for example, the conservative led Swedish government reached an agreement across all parties to control spending and welfare entitlements in the wake of the recent financial and monetary crisis. Democratic politics begins with inclusion; unilateralism with exclusion. The need to have dialogue between the branches may be a platitude, but despite that our system needs to have more dialogue. Talking early may help shape the scope and timing of policy agendas; it may enhance the prospects for building political coalitions at the foundations of policy-setting; and, of course, it may help cement relations between the players. It wi11 not mean the end of partisanship. But it might dispel some of the paralysis of polarization. Establishing an Ombudsman's Office: A suggestion of a different sort is meant to discourage the enormous amount of attention that individual legislators give to casework and, thus, also to badgering the bureaucracy. Some of the casework results in micromanagement. An ombudsman's office might be a useful innovation to discourage members and their staffs from doing as much casework as they presently do and to deter the amount of nitpicking of the agencies that presently exists. It is possible that institutionalizing an ombudsman's office will not only get rid of a problem (too much time of executives and members spent on small problems) but actually could produce a good (allowing staffs to become smaller and allowing members to utilize their time better). Furthermore, by allowing members to utilize their time better, an ombudsman ought to serve the purpose of encouraging broader-gauged legislative review of major policy issues. One of the current criticisms of congressional engagement with the executive is that Congress too frequently engages at the level of detail (for reasons, though, we earlier noted) and insufficiently at the level of policy. By freeing up time presently spent on casework, more time can be better spent on major legislative review. Major Changes Within the Current Order Within the existing constitutional framework of separated powers, what other changes might be feasible to reduce tensions and increase engagement between the executive and legislative branches? Rotate Committee Service: One change that frequently has been discussed is the idea of rotating the service of members and especially that of chairs and ranking members across committees. The objective here is to mitigate the hold of special interests on the committees. For purposes of our discussion, this should encourage Congress to be less defensive about programs and thereby stimulate a more open climate for bargaining over policy between the two branches. One of the spurs to proposals such as rotation of committee membership has been the widespread growth of support among the public for term limits of members of Congress. The legitimate concern of term limits advocates is that members become too insulated and too drawn toward clientele groups affected by the committees on which they serve. This is especially regarded as a problem for senior members serving as committee and subcommittee chairs and for ranking members. To ameliorate these problems, term limits as a solution represents the use of an elephant gun to kill a fly. It will serve only to weaken legislative power and limit citizen choice. If the problem of special interest domination is as serious a concern as it is made out to be, then we recommend rotation across committees for senior members as a more measured, feasible, and constitutional solution than term limits. Because there is no magic in any specified number of years before rotating out, we have not specified a time frame. The question of whether the links are too cozy between special interests and committee jurisdictions deserves to be given a serious look. If there is reason to believe that we can improve the situation, or at least the public's perception of it by rotating membership on committees, that is a more reasonable way to proceed than term limits. Some legislative expertise inevitably would be lost, but far less than under term limits. Legislate Limits on Administrative Regulations: A different change to deflate the build-up of tension between the branches requires an exercise in self-discipline by the president and Congress. This would be to write legislation or reach a firm agreement between the branches that administrative regulations must grow directly from the premises of a statute rather than merely from a loose standard giving the executive great discretion which was enunciated by the Supreme Court in the 1984 Chevron decision. The court decision and, especially, subsequent interpretations of it proffered by the counselor to the president in the Bush White House (Boyden Gray), threatens the balance of power between the branches and, according to White House interpretations, gives the executive an astonishing level of discretion to interpret legislative statutes. This interpretation gives the president a unique legislative power to rule by something approaching administrative edict. Under it, the president needs only one-third plus one of either congressional chamber to uphold his veto when congressional majorities respond with clarifying legislation to administrative regulations they deem inconsonant with the meaning of legislative statutes. The liberal use of administrative regulations to override what congressional majorities apparently intended when they approved the statute is one of the single biggest sources of conflict and distrust between the branches today. No doubt, unified government will alleviate this somewhat. But unless Congress and the president take the responsibility to live by firm standards of legislative intent -- an act of self-discipline, not merely assertion -- we will continue to run into problems of the sort exemplified in the Rust v. Sullivan case and all too many others. As Justice O'Connor correctly indicated, Rust v. Sullivan was not a case of freedom of speech; it was instead a case dealing with the constitutional balance of power between the legislative and executive branches. Reform Nomination and Election Finance Systems: Another change worth consideration would serve, under certain conditions, to bring the executive and legislative branches into the same orbit; the danger is that under other conditions it could exacerbate even the present high level of tension. The proposal is to change the financing systems of nominating and election campaigns such that financing is centralized in the party national committees. The objective is to strengthen the grip of national party forces, stimulate control of both branches by the same party, and commensurately weaken the influence of interest groups and local constituent pressures which currently affect congressional relations with the agencies. A word of caution about a change of this nature is needed, though. Strengthening national party forces and providing incentives to strengthen party discipline is a prescription for sheer majoritarianism under unified government. It will optimize the majority's chances of succeeding in their governing goals; it will equally frustrate the minority. If, however, election finance changes cannot overcome the tendency to elect divided governments, national party-centered election finance reform is likely to assure deadlock. Indeed, one argument about the current American system that is worth considering is that our parties are already more national, homogeneous, and polarized than before. And, as a consequence, our normally divided government is thereby made more divisive. Changing the Current Order While more drastic measures for reform are unlikely to be acted upon in the foreseeable future, they are worth discussing on the grounds that if the problems of executive-legislative conflict are severe enough and are otherwise immune from change, attention should be focussed on more radical changes. In other words, like the strategic theorists of the cold war days, sometimes it is necessary to think the unthinkable or at least the improbable. From the Separation of Powers to a Parliamentary System: One such very radical change is to alter our system of separated powers so that we have a parliamentary system. Although there are many varieties of parliamentary systems and which of these varieties might find the most favor here is largely unpredictable, one thing is predictable -- the tension between the legislative and executive branches would tend to disappear because the branches would no longer be co-equal. Real power would shift to the cabinet. How much would be retained by the legislative branch (which would now be a misnomer) would depend on the confluence of written constitutional provisions and unwritten understandings. Under most conditions in a parliamentary system, parliament ratifies government bills and provides, even by pre-1970s U.S. standards, little authoritative oversight. Systems and understandings do differ, however. The German Bundestag, like the U.S. Congress, is a powerful legislative body and consultation between cabinet and the party-based committees (Parteifractionen) is expected. Germans often talk about their system as being one of checks and balances. Still, it needs to be understood that no parliamentary body anywhere has the power, the available resources, the legal authority, or the motives to conduct oversight and engage in legislative review as does the U.S. Congress. Any shift to a parliamentary system is necessarily a shift to a system of weakened legislative independence and strengthened executive autonomy. Allow Members of Congress to Serve in the Executive: A middle path between retaining the present system and moving to a parliamentary system would be to adopt some features that exist in certain parliamentary systems, such as the British. One of these features would be to permit members of Congress simultaneously to hold both legislative and executive posts. Presumably, an effect of such a reform would be to bring together executive and congressional perspectives in decision making. Under present circumstances, our separated powers system tends to separate further when the executive and legislature seek exclusive jurisdiction when the Constitution mandates that they share. Bringing important members of Congress into the cabinet could help stimulate the executive and legislature branches into sharing their joint jurisdiction and thus lessen the intensity of their differences. Of course, this proposal is not without complications. It is likely, for example, to work best where it is needed least, i.e., when the executive and legislative majorities are of the same party. It is likely to be most unwieldy where it is needed most, i.e., when the executive and legislature are divided between parties. Create a Uniform Electoral Cycle: Another and frequently proposed idea is to put members of the House of Representatives on the same electoral cycle as the president. With sufficient adventurousness, one might equally propose this for the Senate as well. This idea is predicated on the notion that party government will solve all ills, and it presumes that putting congressional and presidential elections on the same track will result in a victory for one of the parties across both branches. If doing this actually subjects presidential and congressional candidates to the same political forces, a further assumption is that presidential candidates have coattails and members of Congress are thereby indebted to the president. That solves the problem of tension between the branches by essentially handing more power to the executive. The likelihood that presidential candidates will continue to run behind the majority of their party's candidates for Congress is, however, at least as great. In that case, we are largely back to where we are now. III. Concluding Themes Once one stops to think about it, there are really only three potential outcomes that any package of reforms can bring about in regard to the existing tensions between the branches. One possible outcome is to shift the balance of power between the branches such that one branch is in a position of domination over the other branches. Proposals to create a parliamentary system or to weaken congressional autonomy are essentially ones that cede this domination to the executive branch. Another possible outcome is to generate incentives and habits of cooperation. Informally, we think more substantial policy briefings, simultaneous service across branches, and decreasing the incentives for congressional nitpicking while increasing those of genuine legislative review may enhance the possibilities for interbranch cooperation. Finally, although this may not be looked upon as a reform by many, it is possible to enact reforms which risk stimulating greater conflict between the branches. Efforts, for example, to create party government in the United States may backfire when divided government exists and thus result in intensifying gridlock. In fact, a lot of this has happened in the past decade. From a strict Madisonian point of view, worse things can happen than conflict between the branches. In Madison's view, unless genuine cooperation is obtained through concurrent majorities, conflict is better than domination. Madison's reasoning was that the primary concern of our government should be the prevention of tyranny. Only support obtained across the multiple constituencies reflected by our different institutions makes any government policy direction legitimate. Despite the fact that we ought to expect clashes between the branches under the political conditions that have been prevalent for most of our lives, the public is uncomfortable with the acrimony they see and so are candidates who have to obtain public approval at the polls. The mood to throw "the rascals out" is fortified by the seeming inability of the two branches to cooperate and by the unseemly bashing of our governmental institutions that has become a sad feature of our current political discourse. The severe tensions often found in executive-legislative relations reflect confusion in the public about public policy. We want sacrifice (for others) and public goods (for ourselves). And we want public goods with low taxation. The electorate has often chosen presidents representing one side of the equation (lower taxes and less governmental involvement) and Congresses on the other side (protection of constituent benefits and more liberal social and economic policies). Major tinkering that forces more decisiveness and institutional dominance into the system may not make citizens any happier in the short run since it will force a choice the public clearly does not want: increased taxes or decreased spending. From this perspective, the gridlock that ends in Washington begins outside of it. But that should make no one complacent. For the issue is not how to ratify the gridlock, but how to break through it. One view suggests we break through it by shifting more power to the presidency. A different view suggests we seek to break through it by providing incentives for, and generating habits of, cooperation. None of this may be possible. The present incentives for politicians in each branch, especially when there is split party control, are to point fingers and blame one another, thus ensuring that the public will remain hostile to the political process and to politicians. The incentives to cast blame and to polarize conflicts need to be reduced, and the incentives to engage in consultation need to be strengthened. Ironically, as we go about the process of thinking how we can best improve the functioning of our system, we will need to realize that a big source of the current problem is what many took to be its salvation -- namely that our political parties have become more responsible, more internally coherent, and more powerfully in conflict with one another. In becoming all of these things, it is just possible that they have divided increasingly in such a decisive and relatively extreme way that they have excluded much of the country from their debate and angered the citizenry by bickering while serious problems fester. Now that the returns of the 1992 election are in and unified government has returned to Washington for now, we expect that many of the most visible confrontations between the branches will, at least initially, moderate or disappear. However, the election results contain many ambiguities. Voters sent signals for term limits but returned incumbents. They elected a new president, but with only forty-three percent of the vote. It appears that the Democratic majority in the House will be more liberal and the Republican minority more conservative. We may have a period of party government, with the parties quite polarized and the Democratic majority paying as little attention as possible to the concerns of the minority. Or the majority might seek to work across party lines where agreement is possible, though admittedly it has few short run incentives to do so. (Its incentives might be greater if the confrontational stance of the minority party lessened.) The first option maximizes results fitting the preferences of the majority, at least so long as its unity holds. The second option, however, is a good way to establish more constructive relationships for a time when divided government returns or party unity breaks down. It is also arguably more in accord with the actual electoral result.