The phenomenology of gridlock.

• Author: Chafetz, Josh
• Position: The American Congress: Legal Implications of Gridlock

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. (12) (One presumes that their next project is simply titled Doom!) The Washington Post's Ezra Klein referred to the 112th Congress as the "worst Congress ever." (13) And the same sentiment is likely responsible for the existence of this Symposium in the first place. (14)

How, then, did the Miracle of September 2012 happen? The answer is simple. As the New York Times put it, given the fight's proximity to the November 2012 elections, "Republican[] leaders were eager to avoid a government crisis that voters at the polls could blame them for." (15) Reuters concurred, noting that Republicans backed off demands for larger cuts "to avoid the risk of a nasty shutdown fight that could hurt their party's election prospects in November." (16) And the Washington Post observed that the impetus to avoid a shutdown in the run-up to the election was bipartisan: "The quick resolution demonstrated that neither party wants a major budget showdown weeks before the November election." (17) Indeed, the Times noted that members of both parties, but especially Republicans, markedly changed their rhetoric from partisan obstructionism to bipartisan cooperation as the election neared. (18) And this change in tone was apparent not only on the campaign trail, but also in members' voting patterns. (19) Even House Majority Leader Eric Cantor--not generally known as the compromising sort (20)--described his chamber's overwhelming bipartisan vote for the JOBS Act (21) in March 2012 as follows: "We are in an election season, and the test for any candidate is whether they can produce results." (22) The reason for this shift "is not hard to explain. [A poll] showed that 44 percent of Americans see Republicans at fault for gridlock in Washington, compared with 29 percent who blame President Obama and the Democrats. Nineteen percent said both were to blame. That imbalance has persisted at almost exactly those proportions since last year." (23) Predictably, the Democratic response has been to push back, accusing Republican members of hypocrisy in their newfound bipartisan rhetoric. (24) AS the Times wryly noted, "For candidates with long political histories, the record can be inconvenient." (25) And where there are competitive elections, there are those with the resources and incentives to dig into candidates' records.

And then it happened again--a second legislative miracle, occurring late in the evening of January 1, 2013. The draconian automatic spending cuts put into place in mid-2011 as an incentive to Congress to pass more palatable deficit reduction had (as noted above) failed to achieve their goal, (26) and the cuts had accordingly taken effect with the ringing in of the new year. Simultaneously, the Bush tax cuts expired in their entirety; the confluence of spending cuts and tax increases came to be known as "the fiscal cliff." With the nation only slowly recovering from the "Great Recession" of 2007-09, there was widespread concern that this combination, if allowed to persist, would severely curtail economic growth in 2013, perhaps even pushing the nation back into recession. (27) President Obama had insisted for some time that he would not sign a bill that extended the tax cuts for wealthy Americans; (28) a majority of House members (and a substantial minority of Senators) had publicly pledged never to raise taxes. (29) And yet, late in the evening on New Year's Day--after the nation had technically gone over the "cliff," but before any actual damage had been done--the House, by a comfortable 257 to 167 margin, passed the American Taxpayer Relief Act of 2012. (30) The Act, which had passed the Senate by an 89 to 9 vote the previous evening, made permanent the Bush tax cuts on individuals earning less than $400,000 and households earning less than $450,000; allowed the cuts to expire for those exceeding those income thresholds; extended a series of tax breaks for low-income Americans; extended federal unemployment insurance; extended business tax breaks for activities including research and development and renewable energy investment; pushed back the automatic spending cuts by two months; and contained a number of other, smaller provisions. (31)

In other words, President Obama and congressional Democrats got a law that raised taxes on the wealthy (although the income threshold was higher than their preferred position (32)), did not significantly cut spending, and contained some amount of economic stimulus aimed at assisting low-income individuals and other traditionally liberal spending priorities. Why did Republicans--the exact same Republicans who had spent the previous two years resolutely opposing any tax increases and demanding spending cuts (33)--agree to a deal with tax increases and no real spending cuts? (34) The answer is complicated; Republicans and liberal critics of the deal of course noted that Republicans would have other chances to extract concessions in the future. Indeed, Senator Lindsey Graham beseeched his Republican colleagues in the House to pass the tax bill and "[s]ave your powder for the debt ceiling fight." (35) Having saved their powder, however, House Republicans opted not to use it for the debt ceiling fight, either: Early in the 113th Congress, they agreed to suspend the ceiling without any significant concessions from Democrats. (36) Republicans also contended that, since the Bush tax cuts had been slated to expire anyway, they did not really vote for a tax increase; they simply voted for many, but not all, of the tax cuts to be renewed. (37) But these were both clearly arguments meant to mitigate an unpalatable policy outcome; there can be little doubt that, if most Republicans had had their way, things would have been dramatically different. Indeed, one account described the ultimate deal as the "worst of all worlds" for House Republicans: "They failed to save...