Our assignment in this symposium is to explore the role that legal issues play in what is popularly known as "gridlock" in Washington. I am tempted to declare the symposium over by arguing that there are no such relevant legal issues--that our problems are really political and ideological, not stemming from any legal or constitutional deficiencies. But that would be too easy. There are legal defects which contribute to our current frustration, even if we may ultimately conclude that they are symptoms and not causes of gridlock. It is certainly true that the federal government is in a period of extreme dysfunction. (1) We see it in conflicts between the President and the Congress over appointments and long range fiscal policy. We especially see it in the inability of the House and Senate to cooperate on urgently needed legislative priorities. Year after year, budget resolutions and appropriations bills are not passed in a timely fashion, and often not at all. (2) Measures dealing with major public issues die in the Senate. (3) I want to focus in this paper on one of the most talked about elements of gridlock, the use of Senate rules and practices by the minority to block virtually any action unless it is supported by sixty senators. In the public discourse about paralysis in Washington, dysfunction in the Senate may be the most frequently cited cause. Some commentators have even suggested that the Senate now operates as a "vetocracy," (4) and others like Mann and Ornstein have observed that changes in the Republican Party have brought about a laser-like focus on obstruction rather than cooperation on legislation. (5)
This is not the place for a deep analysis of the underlying causes of our political dysfunction. But there is agreement on some points. Rarely in our history have the two parties been more polarized. (6) In the Republican Party, zealots have eliminated the traditional moderate-to-liberal legislators, (7) and to a lesser extent the Democratic Party is also more homogeneous. (8) As a result, as a striking chart in Mann and Ornstein's recent book shows, there is no ideological overlap between the parties in the Senate--the most liberal Republican is still more conservative than the most conservative Democrat. (9) As Gregory Wawro and Eric Schickler have observed, party lines today correspond to policy preferences and ideology more tightly than at other times in our history. (10) Compromise across the aisle is virtually never obtained. Procedural holds by individual senators have proliferated on both legislation and nominations. The use or threatened use of the filibuster--extended debate used to block Senate action--has become commonplace, resulting in what is in effect a supermajority voting requirement for any legislative business. We can now see that convulsive events like the civil rights movement, the rise of the religious right, and the "Gingrich revolution" of the 1990s have polarized the parties and reshuffled the voters, eliminating the kind of bipartisan cooperation we saw in the 1950s and 1970s. Perhaps more importantly, this realignment has been accompanied by a new rhetoric, illustrated by the "Tea Party" faction of the Republican Party, that characterizes the other party as not just misguided but evil and immoral. (11) Since legislating is difficult under the best of circumstances, portraying opponents in this Manichean way, and viewing the policy process as a struggle between good and evil, can have devastating effects. Washington now seems unable to deal with the pressing legal, economic and social issues facing the country in the twenty-first century.
Solving the larger problem of hyper-partisanship and good versus evil rhetoric is not part of my agenda, however. The more limited issue before us is whether there are changes in laws or congressional procedures which can ease governmental gridlock and make it more likely that important policy issues can be …