Government in Opposition: What Happens if McCain Sweeps Obama, Part I

by David Fontana

Imagine it is Wednesday morning, November 5, 2008, the morning after the American presidential election. After months of attacks on the Democratic Presidential nominee, Barack Obama, for being weak on terrorism, Republican Presidential nominee John McCain has not only won the presidential election, but against all odds the Republican Party has taken control of the House of Representatives and the Senate. The Democratic Party is the minority now in both houses of the legislative branch, as well as in the executive branch. But imagine if, by constitutional or statutory command, or by an essentially obligatory tradition, Joseph Biden still remains Chairman of the Senate Foreign Relations Committee; Patrick Leahy becomes Attorney General of the United States in the McCain Administration; and Ted Kennedy takes control of Health and Human Services (HHS).

Sound crazy? Well, what might sound crazy to you is one of the most significant constitutional developments around the world in the past forty or so years, what I call “government in opposition”—-providing losing political parties the right to govern, the right to exercise majority, coercive power. From Britain to Canada to Colombia to Germany to South Africa, this new way of imagining separation of powers has been one of the most notable innovations in recent constitutional design. In my next series of posts, I will talk about this constitutional idea, which is also the focus of my latest article.

In my first post, I want to discuss how we currently divide up power among political winners and political losers, so that we can see how government in opposition differs from those regimes and how it creates a new separation of powers technology.

One thing separation of powers does sometimes is divide up political winners, those political entities which have won a democratic election. In presidential democracies, we divide up winners among the branches of government. The winner of one type of election (for the executive branch) controls the executive branch, and the winner of another type of election (for the legislative branch) controls the legislative branch. Sometimes, one party can win both elections and can control both branches; or, as in the United States right now, the winners of the last election for the executive branch might differ from the winners of the last election for the legislative branch. In addition to dividing up winners among the branches of government, we can divide up winners among the levels of government—-this is federalism. George Bush might have won the election in 2004, but Deval Patrick won the election to run Massachusetts in 2006. In the past century, particularly in the past generation, winners might even battle over authority within a branch and level of government-—what is commonly called “semi-presidentialism,” as is seen most notably in France. The President is popularly and directly elected, but the Prime Minister is appointed by the winning legislative majority.

These constitutional designs are all part of one version or idea of separation of powers: winners competing against each other, whether it be among the branches of government, among the levels of government, or even within the same branch and level of government.

Sometimes, entities that are neither winners nor losers might be given power to constrain other actors. This is what civil service bureaucracies are, and in some countries such bureaucracies even exercise quasi-judicial review powers or direct power to legislate and govern (courts do not really count as pure bureaucracies in this sense; they are not directly either winners or losers, but they are appointed in many countries by winners).

But what about losers, groups that lose elections? Well, one thing that constitutions and statutes do is give them power-—but as losers. They have the right to dissent (for instance, in the United States losers have this right to dissent protected by the First Amendment), the right to filibuster in the Senate, and so on. These are formally protected powers, but powers to check winners by being losers.

In my next post, I will discuss how this emerging regime of separation of powers I call government in opposition recognizes losers as winners, by giving them the power to govern in many contexts.

http://opiniojuris.org/2008/03/31/government-in-opposition-what-happens-if-mccain-sweeps-obama-part-i/

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