The Agenda

Josh Chafetz on ‘The Phenomenology of Gridlock’

Earlier this month, Josh Chafetz of Cornell Law School, author of Democracy’s Privileged Few and the forthcoming Congress’s Constitution, released a short article on “The Phenomenology of Gridlock” that sheds a lot of light on the Obama years. Josh kindly agreed to answer a few questions via email. I’ve trimmed it a bit to save money on pixels.

There is a widely held view, commonly though not exclusively encountered on the political left, that congressional “gridlock” is a serious problem, as it means that Congress is failing to take action to address various pressing policy challenges. Your article suggests that this diagnosis is at best imprecise. What are the critics of gridlock missing?

Observers — right, left, and center — have a tendency to look at Congress, see that it is not passing laws to deal with pressing issues, declare this to be evidence of institutional dysfunction, and then begin hunting for the causes. But inaction doesn’t have causes; action does. Lawmaking is inertial — the legal status quo ante endures unless something happens to change it. So, instead of asking about what causes inaction, we need to ask what conditions are sufficient to motivate legislative action. If these conditions are met and we still don’t get legislation, then we have dysfunction, but the absence of legislation is not, itself, evidence of dysfunction.

So then the question becomes: what conditions are sufficient to motivate legislative action? In a democracy, this question has to be answered in reference to the views and interests of the public. And here’s another place where I think political observers have a tendency to slip up: we tend to assume that our own views are more widely shared than they in fact are. Psychologists call this “false consensus bias.” People who are absolutely convinced that X is a serious problem and that Y is the best solution to that problem tend to assume that X is widely understood to be a problem and that nearly everyone agrees that Y is the way to deal with it. If Congress doesn’t enact Y, then, there must be dysfunction.

In fact, though, we frequently disagree about whether and to what degree X really is a problem. And, importantly, even if we do all agree that X is a problem, “X is a problem” is not a legislative proposal. Unless we can also come to consensus around some particular Y, we still shouldn’t expect to see legislation. The opposite of gridlock is not no-gridlock; it is some particular legislative action–some Y. And unless we get sufficient public consensus around Y, we should not expect to see action out of a representative legislature.

Basically, then, I want to persuade people to start asking a different question. Instead of, “How do we deal with gridlock?”, I want them to ask whether sufficient public consensus exists to motivate specific legislative action. And only if the answer is yes and we still don’t see action do I want them to then begin asking about how to deal with this dysfunction.


What does a “sufficient public consensus” look like under America’s constitutional order?

Ah, that’s the hard question! Because there is no free-standing thing called “public opinion” or “the public interest.” Rather, the form those take is shaped by our political institutions. In other words, our constitutional structure shapes what counts as public consensus.

We have a constitutional structure that requires a pretty high degree of consensus for action. We have a House that is highly responsive to short-term shifts in public opinion and highly responsive to local interests. We have a Senate that is much less responsive to short-term shifts — any individual Senator only faces the electorate every six years, and never do more than (roughly) a third of them face the voters in any election — and that has a state-wide constituency. And we have a President who is elected every four years, can only be reelected once, and has a national constituency (as refracted through the odd prism of the electoral college). Absent the very rare occurrence of a veto override, legislative action only occurs if all three institutional actors are on board. (Here, I’m talking about passing laws; obviously, things are slightly different for confirming nominees or ratifying treaties).

In other words, getting things done requires negotiation between actors structured to have short-, medium-, and long-term perspectives and between actors structured to have local, state-wide, and national perspectives. As anyone trying to diet can attest, it’s hard enough for an individual to align her short-term and long-term interests, much less for a polity. So, the requisite public consensus for legislative action is pretty high and hard to achieve.

What this also indicates is that it takes some work to figure out if we have it or not. Snap polling — although a useful datum — is not sufficient, because it generally fails to take account of factors like the temporal durability of views, the intensity with which they’re held and the willingness to negotiate them away for other goals, etc. Perhaps most importantly, we have to take account of the fact that our political views can and do change as a result of politics itself. That is to say, politicians seek to reflect public opinion, but they also seek to shape it. That’s why, for example, President Obama went around publicly campaigning for his preferred solution to the “fiscal cliff” even though he had already won the election and he can never run for the presidency again. Consensus often doesn’t just exist out there in the world; it has to be built.

Once we understand the broad contours of the sort of public consensus that is necessary under our Constitution, we then have to look carefully at case studies and try to understand the richness of the political dynamics. In the introduction to my essay, I look at a couple of such case studies in an attempt to show political actors leading and responding to public opinion — and both of the case studies come from the 112th Congress, so they’re happening under conditions of divided government. Now, reasonable observers can certainly disagree with how I present these case studies, and we can argue about whether and when sufficient public consensus to motivate legislative action exists. But at least then we’d be asking the right question, in my view.

Among left-leaning Democrats, it is common to criticize the 112th Congress for having failed to produce much in the way of landmark legislation. Many of these same critics were disappointed with what they saw as the timidity of the 111th Congress. But you suggest that these critics are missing something important.

Here, it’s worth saying something more about unified versus divided government. Precisely because of the constitutional structure described above, unified government (that is, roughly, House, Senate, and presidency all controlled by the same party) is very hard to achieve and basically never comes about as a result of a single election. The 1994 “Republican Revolution,” for example, swung both houses of Congress, but since 1994 wasn’t a presidential election year, it didn’t result in unified government. If the Republicans had been able to keep making a successful public case for the next two years, they might have won the 1996 presidential election, but they did not. But they held on to both houses of Congress, so that when a Republican finally did win the presidency, they had unified government for most of the period 2001-07. Democrats retook both houses of Congress in the 2006 elections, which laid the groundwork two years later for two years of unified government when President Obama was elected. In other words, because of our constitutional structure, unified government requires that one party outcompete the other over broad swaths of the country and over multiple election cycles.

When that does happen, we tend to see a great deal of legislative output. Many critics — for reasons I don’t really understand — simply don’t see just how much got done in the 111th Congress. I have a paragraph in the essay just listing the major pieces of legislation that were passed in those two years, and it truly is an astonishing output. I think that, to a large extent, critics from the left who wanted more simply overestimated the degree of public support for their preferred policies — to take one example, there simply was not public appetite for more fiscal stimulus. (One important caveat to this is the filibuster, which did, I think, prevent some things with sufficient public consensus from getting through the 111th Congress. More on that below.)

Precisely because unified government is so hard to achieve, its presence is an indication that one party has the sort of deep public consensus behind its platform that is necessary for substantial legislative action. But under divided government, which came in with the 112th Congress and now persists into the 113th, neither party’s platform has that sort of clear mandate. We should expect to see less get done. But plenty still gets done, and, again, this is because the public consensus exists. For example, the 2012 election and its aftermath did, I think, demonstrate that sufficient public consensus existed around higher taxes on the wealthy — and the 112th Congress passed precisely that, even though no personnel had yet changed over. That, to me, is a great example of responsiveness to public opinion, even though the next election was almost two full years away at that point. But, again, it seems to me that many of the things critics wanted to see passed — whatever their policy merits — simply didn’t have the public strongly enough behind them.

Given that the U.S. electorate is characterized by a high degree of normative diversity, it seems plausible that we’re not likely to achieve a broad and deep consensus on issues like the level of taxation and social expenditures. Is this a slam-dunk case for a Westminster-style political system, in which legislative majorities are able to advance well-defined agendas without being stymied by legislative minorities? Or does the U.S. constitutional order have virtues worth defending?

As you know, a number of very smart political and constitutional commentators have made precisely this point — that our constitutional structure is the problem and that we should get rid of it in favor of something better. For the purposes of the essay, I more or less bracket that question, taking our structure as given. This is partly because I don’t think it’s likely to change, but mostly because the essay is basically positive, rather than normative, in character: my goal isn’t to justify anything, but rather to offer an account of what is going on when observers experience legislative gridlock and to think about when this lack of legislative action indicates that something has gone awry in our system and when it is simply how our system works.

But, to broaden out from the essay for a minute: I think that the critics of the American constitutional system have made a lot of very good points, and they certainly need to be taken very seriously. But in the end, I’m (mostly) unpersuaded. I think it fundamentally comes down to your views on the best way to understand democracy. I tend to take a deliberative-democracy view — I think that structures that foster conversation and deliberation and that encourage people to try to think as part of a collective rather than solely in terms of their individual interests produce the most desirable polity. From that perspective, the fact that we have institutional structures that have different (but cross-cutting) time horizons and different (but cross-cutting) constituencies encourages us to negotiate with and among ourselves.

In Westminster, by contrast, the party that gets a plurality of votes in a majority of constituencies on a single day controls everything — in other words, there’s always unified government. (Obviously, 2010 was a weird aberration, but even so it’s not clear to me how different the coalition government is from a straight-up Tory government.) That certainly allows you to get legislation passed much more quickly, but, in my view at least, it doesn’t make for a better political community.

I should also note that, over the long run, our normatively diverse polity does come to stable conclusions. Not about everything, of course, and new divisive issues will constantly arise. But plenty of once-divisive issues are now considered wholly uncontroversial.

How is it that the filibuster undermines America’s system of governance?

Essentially, by allowing even very broad, deep, and durable public consensus on a specific piece of legislation to be indefinitely frustrated by a small minority. I think the best evidence for this is indirect: you see public support for circumventing the filibuster, whereas you don’t see it for circumventing other mechanisms that make our system relatively more cumbersome. Let me give you an example: when a filibuster prevented the appointment of Richard Cordray as head of the Consumer Financial Protection bureau, and when the Senate held pro forma sessions to try and prevent a recess appointment, President Obama took the unprecedented step of unilaterally declaring the Senate to be in recess and recess appointing Cordray. By contrast, in a much higher-stakes situation, the President repeatedly rejected the idea of using unilateral action to raise the debt ceiling. Now, from a legal standpoint, the arguments that he could unilaterally raise the debt ceiling are just as strong as those that he could unilaterally declare the Senate to be in recess. But he understood that he could get away with circumventing the Senate filibuster, but not with circumventing a recalcitrant House majority. Why? Because he can make a compelling public case that a small minority of Senators should not be able to indefinitely block action. He can demand that nominees at least get an up-or-down vote, and that demand resonates with the public. So the public does not get outraged when the filibuster is circumvented. Circumvent a House majority, though, and he could expect major backlash. Knowing that, he decided not to try.

Are there any other reforms that might facilitate legislative action that meets the test of representing a “sufficient public consensus”?

I don’t know. As I said, this essay was really mean to be a starting point, trying to clarify what gridlock is and trying to get us all asking the same question. It was not at all meant to suggest that the filibuster is the only democratically dysfunctional element of our system. There may very well be others, perhaps many others. My principal point is actually quite modest: Before you come to me and say that the system is broken because not enough legislation is being passed or because certain legislative efforts are stalled, you need to convince me that a sufficient public consensus exists behind specific legislative actions. If you can do that and the legislation still doesn’t pass, then I’ll happily join in the hunt for more causes.


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