Sorting, Polarization, And Gridlock: Policy Finds A Way
[su_pullquote align=”right”]Legislative gridlock hasn’t stopped policy from being made, it’s now just being made outside of the normal channels in ways strain our constitutional and political system.[/su_pullquote]American government is broken. Supermajoritarian institutions in the United States, most notably the Senate, have created legislative gridlock and frustrated majorities. The Senate effectively requires 60 votes to pass normal legislation. Therefore, a party with majorities in both chambers of Congress, or in one chamber and the White House, can be rendered legislatively impotent. Legislative hardball and stonewalling by minority parties has created impenetrable gridlock, leaving recent Congresses unable to pass legislation in regular order. Instead, our government has started to work in weird ways. Legislative gridlock hasn’t stopped policy from being made, it’s now just being made outside of the normal channels in ways that strain our constitutional and political system.
Even before the 2010 midterms, President Obama faced a proudly obstructionist Republican opposition. Republican’s strategy during the Obama presidency was to slow down or block every piece of legislation Democrats tried to pass. Republican filibusters prevented Democrats from passing the DREAM Act and a compromise cap-and-trade carbon regulation scheme. Congressional Republicans’ refusal to cooperate led President Obama to implement more limited versions of these policies—DACA and the Clean Power Plan, respectively—through unilateral executive action. Obama would have clearly preferred to implement his policy agenda through legislation instead of executive action, but Republican obstructionism forced him to look for alternative paths.
[su_pullquote]Today’s polarized politics have clearly run up against the supermajoritarian Constitutional constraints that allow a minority of Senators representing an even smaller minority of the population to prevent the majority from exercising legislative power.[/su_pullquote]This is the defining feature of our current, gridlocked, political environment. Policy that would otherwise have been implemented via legislation has found its way into existence through more convoluted means. Today’s polarized politics have clearly run up against the supermajoritarian constitutional constraints that allow a minority of Senators representing an even smaller minority of the population to prevent the majority from exercising legislative power. These constraints, especially the filibuster, have been responsible for the dramatic venue change of policymaking from Congress to the executive and judicial branches. This has become increasingly evident during both the Obama presidency and the first couple years of the Trump presidency.
In addition to legislative obstructionism, Republicans have used the courts as another venue to implement their agenda. Republican attorneys general have challenged some of President Obama’s signature policy achievements—including the Affordable Care Act, DACA, the Clean Power Plan—in court because they could not muster the popular and congressional support to overturn them through the normal legislative path.
Even with their newfound majorities in both chambers of Congress and control of the White House after 2016, Republicans have been largely unsuccessful at implementing their policy agenda in Congress. Last summer, they failed to repeal and replace the ACA, despite voting to do so dozens of times previously in the Senate and making repeal a central plank in their 2016 platform. They turned to reconciliation, a Senate procedural loophole that requires only 51 instead of the normal 60 votes, to pass the tax cut bill at the end of 2017.
The primary argument in favor of supermajoritarian constraints is to promote stability. If it only takes a simple majority to pass major legislation, then a form of policy “whiplash” could emerge in which alternating, narrow majorities repeatedly change major policies back and forth. This would clearly be destabilizing. However, it has become clear that supermajoritarian hurdles are not preventing policy change. Instead, they have caused politicians to implement their policy preferences through indirect, inferior pathways such as executive action.
Legislative gridlock, and all of the forms of non-normal governance and policymaking it causes, has several common, interlinked, causes. The two primary causes are more ideologically-sorted parties and asymmetric partisan polarization where both parties, but especially the Republicans, have marched towards the extremes of the ideological spectrum. In combination with Americans’ geographic self-sorting into red states and blue states, sorting and polarization have collided with our supermajoritarian institutions to create profound legislative gridlock. It has become an oxymoron to say liberal Republican or conservative Democrat. There is no longer any overlap between the parties; the most liberal Republican is to the right of the most conservative Democrat. At the same time, the gap between the median congressperson in each party has widened, which has made compromise harder. It is now almost impossible for either party to win a filibuster-proof majority, and at the same time for any Senator to cross the aisle to vote for cloture.
[su_pullquote]We should seriously consider lowering some of the supermajoritarian barriers to legislation that have forced policymaking out of Congress and into other, inferior, venues such as executive orders or court rulings.[/su_pullquote]The symptoms of this sorting and polarization fueled gridlock are largely separate from, but complemented by, Republican’s choice to engage in “constitutional hardball”: shutting down the government, threatening to default on the national debt, leaving a Supreme Court seat open for almost a year while refusing to consider the qualified judge who had been nominated to the position. All of these actions contribute to the sense that Washington is broken, that our country no longer functions normally, and that compromise is no longer possible. If this is the case, we should seriously consider lowering some of the supermajoritarian barriers to legislating.
Michael Fogarty ‘20 studies in the College of Arts & Sciences. He can be reached at michael.fogarty@wustl.edu.