Don't Be So Impatient

By Magliocca, Gerard N. | Notre Dame Law Review, June 2013 | Go to article overview

Don't Be So Impatient


Magliocca, Gerard N., Notre Dame Law Review


INTRODUCTION

Sir Humphrey Appleby: If you want to be really sure that the Minister doesn't accept [a proposal], you must say the decision is "courageous." Bernard Woolley: And that's worse than "controversial"?

Sir Humphrey Appleby: Oh, yes! "Controversial" only means "this will lose you votes." "Courageous" means "this will lose you the election!"

Yes Minister (1)

This dialogue from the best television comedy on politics captures the question that drives this symposium: Is gridlock the product of elected officials who cannot make tough choices or an electorate that cannot agree about what should be done? While there is one important structural barrier--the Senate filibuster--that should be lowered to facilitate congressional action, my Essay argues that the current stalemate is just a phase that will pass. People are sometimes badly split in a healthy democracy, and papering over those divisions by manipulating the political process is justified only under extreme conditions that are absent today.

Part I explores four definitions of gridlock and concludes that the best one holds that the present electorate does not agree on major issues in an unusual way that prevents compromise. Part II holds that there is no acceptable legal cure for a fractured Congress that is (broadly speaking) accurately representing a torn nation. Like the common law, public opinion just needs time to work itself pure.

I. WHAT Is GRIDLOCK?

There are at least four reasonable interpretations of what people mean when they say that there is gridlock: (1) there is a national consensus on an issue, but our political structure prevents that view from being enacted; (2) there is a consensus among political elites about a course of action, but party loyalty stymies compromise; (3) political elites are deadlocked, but only because the voting system distorts public opinion; and (4) the nation is genuinely divided and our politicians reflect that view. The first three of these ideas are explored and rejected, while the fourth is defended and explained.

A. Procedural Gridlock

One common refrain is that gridlock is a disease caused by a constitutional institution or practice that gives legislative minorities too much power. (2) In this context, "too much" means that a broad and robust popular majority is repeatedly blocked from changing policy in Congress. During the late-nineteenth century, this concern was centered on the Senate, which was not popularly elected, (3) and on the House of Representatives, which had rules that gave the minority wide latitude to frustrate the majority through procedural tactics. (4) In response, the Seventeenth Amendment was ratified in 1913 to make the Senate more representative, (5) and the House reformed its rules in the 1890s to make minority obstruction virtually impossible. (6)

The modern wellspring of procedural gridlock is the Senate's custom of allowing forty-one of its members to stop most legislation and executive nominations with little effort. In an essay published in 2011, I wrote (drawing on the work of others) that this is a relatively new way of doing business. (7) For most of the Senate's history, the filibuster was reserved for bills considered in a lame duck session of Congress or for one very controversial topic--civil rights. (8) Starting in the 1970s, though, the Senate moved towards a norm that almost all pending items could be filibustered and that a refusal to invoke cloture (the motion bringing debate to an end) did not require the minority to hold the floor continuously. (9) Thus, the minority's power within the Senate is now at an all-time high because filibusters are no longer considered exceptional and are easy to maintain.

There is no doubt in my mind that the filibuster should be restored to something closer to its original form--a device to delay rather than defeat--but this will not completely solve the problem of gridlock. …

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