Is Congress catastrophically broken, or is it doing exactly what it was designed to do?

What if this is a condition Adams and Jefferson coded for, and what if we're now running an error handling routine built into America's operating system?
Written by David Gewirtz, Senior Contributing Editor

Okay folks. Settle down. Let me set the stage for this discussion before you all drape yourselves in partisan rhetoric.

As we all know, the U.S. government is closed for business. Shutdown. Shuttered. Furloughed. Offline. We all also generally blame a dysfunctional Congress and an ineffective President for the current state of affairs.

I've been asking -- and I'm sure many of you have as well -- whether this means that our government has reached the point where it simply can't function. Is our current system of government, with two ideologically opposed parties, incapable of providing basic governance services?

My initial knee-jerk answer is "yes". Of course our system is broken. Republicans are unstable and Democrats are useless. Politicians as a species are a waste of flesh. We should throw the bums out (all of them) and start over with a new crop, on the completely implausible assumption that the new group will be a little less fundamentalist and a little more functional.

But what if... what if the dysfunction we're now experiencing at the hands of our elected officials was exactly what the founding fathers designed into the DNA of the nation?

What if this is what is supposed to happen?

Now, once again, take a deep breath. I'm not asking this about our current set of issues. I'm not discussing the rightness or wrongness of extending the debt ceiling or the goodness or badness of Obamacare. I'm asking the question from an academic, political science perspective.

What if this is a condition Adams and Jefferson coded for, and what if we're now running an error handling routine built into America's operating system?

America's governance model didn't start off exactly as it is today. First, from about 1776 to about 1789, the country was still being formed. It was in beta. It wasn't until 1789 that the Constitution was ratified.

That gave us the Supreme Court, which convened for the first time in 1790.

Another interesting difference between then and now is that back then, the Vice President was expected to be the person who came in second in the Electoral College voting. So we would have had Bush and Gore, Obama and McCain, and so forth.

This broke down quickly. In 1796, John Adams came in first and Thomas Jefferson came in second. Already, they were from different parties and squabbling began almost immediately. This system really broke down in 1800, when the various players found it almost impossible to tell who won, the whole thing had to go before Congress, and it took Congress 36 ballots to decide on Jefferson as the winner.

That brought us to the Twelfth Amendment to the Constitution, ratified in 1804, which made it law that the Electoral College chooses both a President and a Vice President. Interestingly, to this day, pres and veep don't have to be from the same party, but that's how they run, and so that's how we roll.

All that brings us back to our currently dysfunctional, government-shutting-down Congress. Broken or executing to design?

What do you think? More on the next page...

Enter the idea of checks and balances. This is really at the core of this column's discussion, so stay with me here.

When we all learned about checks and balances in school, it was the different branches of government checking and balancing each other. It was the legislative branch making sure a president didn't have too much power and the Supreme Court making sure the legislative branch didn't pass a law that exceeded our normal tolerance for Congressional stupidity.

But that's not how things work. Instead the two parties act as a system of checks and balances, with each party dogmatically disagreeing with everything the other party suggests, no matter how valid or necessary.

Even so, for the past 17 years, things have gotten done. Even with as useless a set of Congress critters as it's possible to have, the parties have managed to agree enough to keep the doors of our national monuments open -- and all the other stuff government is supposed to do.

But now... but now, there's now.

The prevailing story you'll hear is that a small subgroup of the Republican party hijacked the legislative process and refused to allow the continuing resolution to pass, and to keep the government funded. The story is they hate Obamacare (and a pile of other things that the Dems like), and so they're shutting everything down until they get their way.

Another variation you'll hear is that the Republicans offered a variety of compromises to the Dems, but Harry Reid wouldn't go for it. And yet another variation you'll hear is that Republican chief Boehner won't go along with the deal until he gets some special subsidies for Congressional staffers.

It's all childish, it's all disappointing, and it all makes America look completely foolish to those countries around the world who don't dabble in freedom (or that are run by mature, reasonable adults).

But let's step back a bit. Let's look at two issues at the core of this argument: continuing to fund the government and the Republicans' hatred for Obamacare.

Once again, let me remind you that -- for the purpose of this one article -- I don't want you going all partisan. I want you to think about policy and the core programming of what makes America tick. Step back out of your outrage for a moment and just think about the code.

The Affordable Care Act (Obamacare) was signed into law in 2010 after it was passed by the 111th United States Congress. In June of 2012, the Supreme Court held up the constitutionality of most of the law.

So here you have all three checks and balances at work: passed by the legislative branch, signed by the executive branch, and reviewed and upheld by the judicial branch.

Ah, but we have one more check and balance here in America, don't we? Think hard on it. What's the fourth check and balance on our government? Take a second.

The answer, and more fascinating discussion, is on the next page...

Yep, you got it: elections. Every two years, we hold elections to refresh and renew the blood in the lower house. Every four years, we hold elections to choose the chief executive. And every six years, we review our decisions on the upper house and replace those senators who have overstayed their welcome.

If the American people don't like something enough, they can vote with their votes. Oh, sure, huge interest groups and media and focus groups and all sorts of other techniques are used to manipulate the vote, but the vote is still the vote. Even back in Jefferson and Adams' day, they used whatever media tools were available to them to influence voters.

But then there's another tool that's used to balance government, and this one is a bit more sneaky. It's called gerrymandering, and it's the practice of redefining district borders to selectively group together certain groups of voters in such a way as to influence the selection of representatives.

For about two hundred years, we've had this sneaky little tool that politicians have been able to use to maximize their votes. In the last election, for example, the Democrats won more votes for the House than the Republicans, but there are more Republican representatives (giving them more power) because, supposedly, of gerrymandering.

So here we have a law (remember, we're talking Obamacare) that has made its way through all three checks and balances. It is now the law of the land.

Then we have an election. In that election, one of the centerpieces of the dispute is Obamacare. Barack Obama is reelected, winning both the popular and electoral vote, so the public's check-and-balance of the executive system has run, and -- in the majority -- chosen Obama and Obamacare.

That part of the system appears to work. You might not like President Obama, but he was undeniably reelected.

Next, we have the legislative branch. In the upper house, the Dems won the majority of the Senate seats, possibly because only a third of them were running in 2012, or possibly because Americans wanted Democrats in Senate seats. In either case, the Democrats control the Senate.

In the lower house, the house where all members are validated in each election, the Republicans retained control. You could say they retained control because it was the majority will or you could could say they retained control through creative gerrymandering, but in either case, they retained control.

Even gerrymandering, though sneaky and a bit underhanded, is an element of the popular vote. Congressional districting is controlled, generally, by the local state legislatures, which themselves are elected.

So even if more Americans voted for Democrats for the House than for Republicans, the fact that Republicans control the House is a function, somewhere down the line, of a stronger political machine and a stronger voting base.

In other words, based on how the country's voting systems are defined, the Republicans won control of the House with as much fair and square as any political battle is ever won.

So now we have a GOP-controlled House, a Dem-controlled Senate, a Dem-controlled White House, and a relatively mixed-breed Supreme Court. And we have Obamacare.

The executive branch likes Obamacare. It, next to the killing of bin Laden, is its signature accomplishment. Part of the legislative branch likes Obamacare, but the other part doesn't like it.

Once again, we hit checks and balances. The two houses of Congress were set up to balance each other out. The Senate was designed to give smaller states an even playing field with the bigger states, and the House was designed to reflect population.

Of course, it's interesting that the House, the branch of Congress designed to reflect the population, was gerrymandered to a point where the makeup of the representatives doesn't actually match the voting patterns of the populace for those actual representatives.

Let's wrap this whole thing up with a surprsing conclusion...

Even so, the check and balance function is still in operation. A portion of the legislative branch -- a portion big enough to cause a ruckus -- has refused to authorize the continuing resolution until Obamacare is neutered. This is a clear case of one branch checking, balancing, and putting the brakes on another branch.

In that context, Congress is doing what it is supposed to do. If it strongly doesn't like something the executive branch is doing, it body-checks it and makes it stop. In this case, the check was rather heavy-handed, shutting down the whole government, but that's part of the design spec.

Congress is supposed to be able to shut things down if they don't like how they're going. That's the whole point of Congress, even more so than making laws. Congress is supposed to balance the power of the presidency and give the people the upper hand.

So in that context, Congress -- however ridiculous the situation seems -- is doing exactly what it was designed to do. It executed a controlled shutdown (as compared to, say, an armed rebellion with tanks in the streets).

But... it's also fair to say that the original design spec of the founding fathers has been hacked. They were around for the changing role of the vice president (and, in fact, helped cause that hack). So we could look at that simply as a bug fix put into place by Adams and Jefferson.

But political parties and gerrymandering, what of those? In the very earliest years, Adams warned against political parties -- and then embraced them. So our founding fathers, the original coders, knew that human nature was such that we would split into factions and while they didn't like the idea, they knew it was going to happen, and even went along when it became apparent there was no stopping our natural tendencies.

Political parties (even though the actual parties themselves have changed) have remained in place throughout our history. The Supreme Court has had hundreds of years to declare them unconstitutional, and -- to my eternal sadness -- never has. Political parties have been checked, weighed, and judged part of the balance of our nation.

What about gerrymandering? Surely that's not a fair practice and the Supreme Court, if it's designed to check and balance the other branches, would rule it unconstitutional. Actually, not so much. The core of gerrymandering, the ability for a state to redistrict, to redefine its districts based on population, was upheld even as recently as 1964, in Reynolds v. Sims, 377 U.S. 533, a Supreme court case fought over districting practices in the state of Alabama.

So, heinous as it may seem, gerrymandering, based on the system of checks and balances we have, and based on the judgment of the Supreme Court, is a legitimate practice. That means that legislators elected from gerrymandered districts are legitimate representatives in the eyes of the American electoral system.

If parties are doing what they're supposed to be doing -- or at least what Adams and Jefferson recognized they'd do no matter what -- and gerrymandering can't be considered malware, and the current legislative branch has enough votes to shut things down because they're not getting their way -- that seems like what's supposed to happen.

Congress was supposed to be a pain in the ass. The legislative branch was supposed to be a thorn in the side of the executive branch. American politics were supposed to be messy. That's the whole point of a democracy.

So whether you agree with Obamacare or not, whether you agree with the radical wing of Congress that's forcing the shutdown or not, whether you even approve of the shutdown or not -- Congress is actually doing what it's supposed to be doing.

It is living up to its design spec.

The good news here, of course, is that the design spec works well enough that if you don't agree with what's going on, then in just about thirteen months, you can replace the entire House of Representatives.

Personally, I would like to throw them all out, Democrats and Republicans. All of them. Senators, Representatives, the President, Governors, state legislators, all of them.

The system is doing what it's supposed to be doing, but our actual, elected representatives are acting like children, are causing far more damage than they're preventing, and I'm sick of them all. But that's just my one vote.

There are a few hundred million more that will be tallied up on Tuesday, November 4, 2014. Make yours count.

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