Bloomberg

ACCORDING to Paul Krugman, the winner of a Nobel prize for economics and a columnist for the New York Times, modern America is much like 18th-century Poland. On his telling, Poland was rendered largely ungovernable by the parliament's requirement for unanimity, and disappeared as a country for more than a century. James Fallows, after several years in China as a writer for the Atlantic Monthly, wrote on his return that he found in America a vital and self-renewing culture that attracts the world's talent and “a governing system that increasingly looks like a joke”. Tom Friedman, another columnist for the New York Times, reported from the annual World Economic Forum in Davos last month that he had never before heard people abroad talking about “political instability” in America. But these days he did.

The growing idea among influential pundits that America is “ungovernable” is being driven in large part by Barack Obama's failure so far to pass some of the main laws he wants to. And it is, indeed, a puzzle. Here, after all, is a president who only just over a year ago won a handsome mandate: 53% of the popular vote and big majorities in both the House of Representatives and the Senate. He bounded into office with a mountainous agenda, including plans to overhaul America's health-care system and cut its greenhouse emissions. He seemed until quite recently to be doing reasonably well. In a folksy December interview with Oprah Winfrey he awarded himself “a good, solid B-plus”.

The House passed a cap-and-trade bill last year on greenhouse gases. By the beginning of this year the House and Senate had each passed a health-reform bill. But now Mr Obama is suddenly stuck. Barring a legislative miracle, it looks next to impossible for him to push these bills to the finishing line. On health, he is making ever-louder pleas to his Republican foes to bail him out. They have reluctantly accepted his invitation to a bipartisan summit on health reform at the White House next week (voters do not like the minority party to be entirely obstructive). But with mid-term elections in November, the Republicans have every reason not to throw the floundering Democrats a lifeline.

How did as shrewd a politician as Mr Obama find himself stalemated, if not checkmated, so early in his presidency? The answer can be found in the intersection of a rule, an event and a trend. The rule is Standing Rule XXII of the Senate. The event was last month's election in Massachusetts for a successor to the late Senator Ted Kennedy. And the trend is the relentless polarisation in recent decades not only of American political parties, but also of the American people.

Catch-XXII

Take a deep breath and start with the rule. For most of the 19th century the majority in the Senate had no way to move to “cloture”—ie, end a filibuster and force a vote. This (remember Jimmy Stewart in “Mr Smith Goes to Washington”) enabled almost any senator to block almost any measure just by keeping on talking. In 1917, prompted by a filibuster against Woodrow Wilson's wish to take America into the first world war, the Senate adopted Rule XXII, which said that it could move to cloture if two-thirds of senators present voted for it. Today's version requires the assent of three-fifths of all senators, in other words 60 out of the 100.

It may sound arcane, but Rule XXII has big consequences. It means, in effect, that new legislation can be forced to muster a 60-vote supermajority in the Senate. Happily for Mr Obama, a Republican from Pennsylvania, Arlen Specter, decided last April to join the Democrats. His defection, followed by the ruling that Al Franken had squeaked to victory in Minnesota, eventually gave the Senate Democrats a filibuster-proof supermajority. This appeared to put health reform—the achievement that eluded Bill Clinton—well within reach. So Mr Obama seemed to take no risks in making this one of his chief tests of success as a president.

By the beginning of this year, success looked close. The House passed its version of a health bill in November. The Senate followed just before Christmas. All that was required when Congress returned last month was for the two bills to be combined so that a joint version could be passed by each chamber again. But on January 19th Scott Brown, a Republican, captured the old Kennedy seat in Massachusetts, bumping the Republicans in the Senate up to 41 and destroying the Democratic supermajority at a stroke. The very next week Mr Obama went to Capitol Hill and pleaded with Congress not to walk away from reform when it had got so close. But the whole plan may now be dead.

This sequence of events has been miserable for the Democrats. But why portray it as a crisis of governability? The answer is the light it casts on the Senate. With two senators for each state regardless of population, the Senate reflects the founders' dread of an over-mighty centre and the states' determination to entrench their prerogatives. But to the modern eye the Senate looks perversely non-majoritarian, especially given Rule XXII. If 41 senators can block a bill, and if they all happen to come from the least-populated states, politicians representing about a tenth of the population can block the work of Congress.

Still, Rule XXII has been on the Senate's books for almost a century. Why the fuss about it now? Here it is necessary to look at the third point of the legislative Bermuda Triangle into which Mr Obama has sailed: the polarisation of the political parties over the past 20 years.

The supermajority rule would be no bad thing if it forced the majority party to reach out to the other side. The Democrats themselves have often been glad of it, for example to block some of George Bush junior's judicial appointments. And the rule has not prevented Congress from passing far-reaching social legislation in the past. The creation of Social Security in 1935 and of Medicare in 1965 attracted support from both parties. But that was when the ideologies of the parties overlapped in the middle and made bipartisanship easier. Now they have grown more polarised, and in Congress the Republicans in particular have become highly disciplined.

Just how disciplined became clear as health reform moved slowly through Congress last year. In the House many Democrats defied their leadership and opposed the bill. But only one House Republican was willing to vote in favour, and none at all in the Senate. If the Republicans persist in voting the party line, they can now block pretty much whatever Mr Obama and the Democrats want to do. And with the mid-terms looming, that is a tempting strategy. “Congress is not operating as it should,” despaired Senator Evan Bayh, a conservative Democrat. Mr Bayh announced this week that he had decided to retire because “brain-dead partisanship” was preventing “the people's business” from getting done. He recommended a wholesale ejection of incumbents in November, and their replacement by people who cared about reforming the system.

A moment, not a pattern

The president cannot fulfil his mandate. The majority cannot pass its bills. So, case proven: America is ungovernable.

Well, no. For a start, the moment of paralysis described above is just that: a moment, not a pattern. In fact America's government has been anything but supine of late. Many Americans, not least the strident “tea-party” populists who helped Mr Brown to victory in Massachusetts, complain that Uncle Sam has if anything been hyperactive since the financial crisis of 2008. Between the last bit of George Bush's administration and the beginning of Mr Obama's, the federal government has spent some $700 billion to bail out the banks and another $787 billion to stimulate the economy. It has taken an ownership share in parts of the car industry and forced other sectors to reorganise. Right now, government is one of America's few growth industries.

Nor is it the case that Congress has stymied the whole of Mr Obama's agenda. On most fronts the president has so far had his way. This applies not only to the usual presidential preserve of foreign affairs—Mr Obama has withdrawn troops from Iraq and, controversially, sent more to Afghanistan—but to domestic policy as well.

Norman Ornstein is a fellow of the American Enterprise Institute and the co-author of a book (“The Broken Branch”) that laments the decline of Congress. So it is striking that he of all people argued in the Washington Post recently that the present Congress is set to be “one of the most productive” since the momentous 89th Congress of 1965-66, during which Lyndon Johnson pushed through the scores of bills that created his “great society”.

In fairness, Mr Ornstein reaches this verdict by taking a very upbeat view of the stimulus package. This, he notes, included $288 billion in tax cuts, “one of the largest tax cuts in history”, with credits for energy conservation and renewable-energy production as well as home-buying and college tuition. The package promised $19 billion for health-information technology, and more than $1 billion to test the effectiveness of health-care treatments. Stimulus money found its way into school reform, a smart grid for electricity and expanded access to broadband internet. Had any Congress passed all these measures separately, Mr Ornstein says, it would be considered enormously productive. This Congress did it all in one bill, and also enacted other big measures, such as an expansion of children's health insurance and a broad land-conservation law.

This is not the record of a paralysed administration. But then again, much of the present talk about ungovernability relates not to the recent past but to the immediate future. Of course Mr Obama could get things done when he had a supermajority, and the stimulus even passed without one. But he was voted into office for four years, and has been stopped in his tracks after only one. If the Republicans do well in the mid-terms, Mr Ornstein fears, they will try even harder to cripple Mr Obama by opposing all the Democrats' initiatives.

Perhaps they will—though the Republicans might injure their own chances if they become only the “party of no”. But even if Mr Ornstein's fears are realised, a president who cannot legislate has other ways to get things done. He can, for example, use executive authority. Even before the setback in Massachusetts, Mr Obama saw this as one way to cut carbon emissions if the Senate failed to pass a cap-and-trade bill. On the day the Copenhagen summit started last December, the Environmental Protection Agency ruled that greenhouse gases were a threat to public health. In principle this gives the agency wide authority to create new rules curbing the carbon emissions of cars and factories.

Since Massachusetts, the White House's interest in governing by regulation has grown. Rahm Emanuel, Mr Obama's chief of staff, told the New York Times last week that the administration was reviewing a list of presidential orders and directives “to get the job done across a front of issues”. One example is the habit Senate Republicans have made of holding up staff appointments to the administration, often for tactical reasons unrelated to the merits of the candidates. But the president has a countervailing power: he can make “recess appointments” when Congress is not sitting. As soon as the White House threatened recently to do just this, the Republicans confirmed a score of posts they had previously blocked.

In short, a president blocked in Congress is not without resources. It is not that long, after all, since commentators were panicking not about the impotence of the presidency but about Mr Bush's war on terrorism invigorating an “imperial presidency” at the expense of Congress, civil liberties and the courts. War and economic crisis have always augmented the powers of the White House, and for the foreseeable future Mr Obama will continue to enjoy the dubious “benefits” of both.

The questionable mandate

There is, besides, a deeper question to be asked of those who sum up the present deadlock in terms of Congress blocking Mr Obama's mandate. In November 2008 Americans preferred him over John McCain. They got the president they wanted. But that does not mean that they intended to give him a blank cheque. On the contrary, a case can be made that most Americans were always cool towards some of the policies that Mr Obama and the Democratic leadership chose to turn into their tests of success.

In early 2009 Pietro Nivola, a senior fellow at the Brookings Institution, trawled the opinion polls to discover whether the public was leaning left or right on the dominant policy questions as the Bush presidency ended and Mr Obama's began. They showed that Americans had tilted towards the Democrats only on some matters. They supported the financial bail-out and the stimulus package, but only by slender majorities. As for the environment, support for the government “doing more” to tackle global warming evaporated when respondents were asked less abstract questions, such as whether they were willing to pay more for electricity.

Mr Nivola's essay, published in April last year, warned Democratic policymakers to be wary of following too radical an agenda. Much of the public was doubtful about the ability of government to meet the nation's challenges. The governing party, he argued, was therefore operating “with precious little margin for error”. As for health care, a difficult subject the world over (see article), voters were likelier to prefer marginal adjustments of the system to a fundamental restructuring. Even in the recession, Mr Nivola observed, nine out of ten workers continued to have jobs, and most had health insurance.

The warning was prescient. By the time Massachusetts cost Mr Obama his supermajority, support for health reform had dropped away (see chart). Indeed, polls taken after the vote confirmed that worries about the costs of reform helped Mr Brown to win. Whatever the objective merits of the plan, Mr Obama has so far failed to sell it. To that extent, the Republicans are reflecting the popular will, not obstructing it. Far from being broken, it could be argued, American democracy is working with exquisite sensitivity, allowing the administration to advance where it has the people's support but checking it when it overreaches.

Needless to say, the people are not always well-informed, let alone right or consistent in their wants. In America special-interest groups spend vast sums shaping both legislation and broader public attitudes. The non-partisan Centre for Responsive Politics reported on February 12th that companies and other organisations spent a record $3.5 billion on lobbying in 2009, much of it targeted on the administration's health and energy bills. And this, notes James Thurber of American University's Centre for Congressional and Presidential Studies, includes only what is recorded by registered lobbyists, not money spent for grassroots organising, coalition-building, advertising and advocacy on the internet. On some estimates, Mr Thurber says, the total spent on lobbying in Washington is closer to $9 billion a year.

Even before he became president, Mr Obama vowed to cut the lobbyists down to size. He promised to “change how Washington works”, declaring that lobbyists would not be allowed to run the party or the White House or “drown out the voice of the American people”. That makes it tempting for him to blame his embarrassment now not only on Republican obstruction but also on the resistance of vested interests, such as health insurers.

And yet it is not primarily the special-interest groups that have blocked his plans for health reform. For all his high-toned talk about changing Washington's ways, Mr Obama was careful to co-opt the most powerful interest groups in advance. The health-insurance industry was broadly supportive, given that reform promised tens of millions of new customers. The pharmaceutical industry lobbied on the administration's side—once it was told its interests would be protected. Most of the opposition appears to have bubbled up from ordinary people who did not like or understand what was being proposed. And Mr Obama did too little to persuade them or to shape the debate in Congress.

How much government?

If he falls short, millions of Americans will feel bitter disappointment. But the failure of any president to realise such large goals in his first year does not discredit the whole system. In the end, the question of whether a country is governable turns on how much government you think it needs. America's founders injected suspicion of government not only into the constitution but also into the political DNA of its people. And even in the teeth of today's economic woes, at least as many Americans seem to think that what ails them is too much government, not too little.

EPA

But there is a catch. However much Americans say they want a small government, they seem wedded to the expensive benefits of the big one they actually have, such as Social Security, health care for the elderly and a strong national defence. With deficits running at $1 trillion a year, and in order to stay solvent, they will have at some point to cut spending, pay more taxes, or both. Last month the Senate blocked a proposal for a bipartisan commission on deficit reduction: the yeas outnumbered the nays by 53 to 46, but failed to reach a supermajority. Mr Obama is now creating a commission by executive order, but its powers are unclear. To balance the books, politicians have sometimes to do things the people themselves oppose—even in America. That will be the true test of whether the country is governable.