The Phenomenology of Gridlock
Chafetz, Josh, Notre Dame Law Review
Assertions that our legislative process is gridlocked--perhaps even "hopelessly" so--are endemic. So many more of our problems would be fixed, the thinking goes, if only our political institutions were functioning properly. The hunt for the causes of gridlock is therefore afoot.
This Essay argues that this hunt is fundamentally misguided, because gridlock is not a phenomenon. Rather, gridlock is the absence of phenomena; it is the absence, that is, of legislative action. Rather than asking why we experience gridlock, we should be asking why and how legislative action occurs. We should expect to see legislative action, the Essay argues, when there is sufficient public consensus for a specific course of action. "Sufficient," in this context, is determined with reference to our specific constitutional structure. And "public consensus" should be understood dialogically, as a function of political actors' engagements in the public sphere. In short, before we declare legislative inaction to be evidence of dysfunction, we should first be sure that the conditions sufficient to trigger legislative action in our constitutional regime have been satisfied. Part I spells out these conditions in greater detail.
Once we understand what is constitutionally necessary to motivate congressional action, we are then better able to identify true dysfunctionalities. Part II gives an example of a procedural mechanism that does, in fact, prevent legislative action even when the constitutional conditions for action are met: the Senate filibuster. Attentiveness to the ways in which the filibuster plays out in the public sphere--specifically, the high degree of public support for efforts to circumvent the filibuster--demonstrates its democratic dysfunctionality.
The conclusion tentatively suggests a few reasons that observers may be perceiving unusually high levels of gridlock today and considers which of these explanations, if correct, would indicate actual institutional dysfunction.
INTRODUCTION: TWO MIRACLES (AND COUNTING)
Early in the morning of Saturday, September 22, 2012, the miraculous happened. The Senate, by a vote of 62 to 30, passed HJ. Res. 117, a continuing appropriations resolution funding the federal government through March 27, 2013. (1) The House had passed the joint resolution nine days earlier, by a vote of 329 to 91, and President Obama signed it into law on September 28, averting a government shutdown that would have begun at the end of September. This stood in some contrast to early fiscal fights in the 112th Congress--after all, the government was within hours of shutting down in April 2011 before Congress agreed to fund the government through the end of September 2011; (2) then, in August 2011, the government was within hours of exhausting its borrowing power and therefore defaulting on its obligations before Congress agreed to raise the debt ceiling. (3) The compromise raising the debt ceiling included provisions meant to structure future budgets, including the fiscal year 2012 budget (4)--most notably, it created a joint committee tasked with reducing the deficit by at least $1.5 trillion over ten years (5) and provided for automatic spending cuts split between defense spending and certain discretionary nondefense spending to take effect if Congress did not, by January 15, 2012, pass a joint committee bill reducing the deficit by at least $1.2 trillion over that time. (6) The joint committee failed to report out a bill, (7) and work on a budget for fiscal year 2012 was fraught, with the government again nearly shutting down at the beginning of October 2011. (8) Finally, after operating under a series of short-term continuing resolutions, (9) Congress in November and December of 2011 passed appropriations bills for the remainder of the fiscal year. (10) This series of events was largely responsible for the new conventional wisdom that Congress is hopelessly gridlocked. Congressional scholars Tom Mann and Norm Ornstein, having titled their previous book The Broken Branch, (11) named their new bestseller It's Even Worse Than It Looks. …