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The Phenomenology of Gridlock Cornell Law Library Scholarship@Cornell Law: A Digital Repository Cornell Law Faculty Publications Faculty Scholarship 6-2013 The heP nomenology of Gridlock Josh Chafetz Cornell Law School, [email protected] Follow this and additional works at: http://scholarship.law.cornell.edu/facpub Part of the Legislation Commons, and the Politics Commons Recommended Citation Chafetz, Josh, "The heP nomenology of Gridlock" (2013). Cornell Law Faculty Publications. Paper 586. http://scholarship.law.cornell.edu/facpub/586 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Faculty Publications by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. SYMPOSIUM THE AMERICAN CONGRESS: LEGAL IMPLICATIONS OF GRIDLOCK THE PHENOMENOLOGY OF GRIDLOCK Josh Chafet4 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 legisla- tive 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 ourspecific constitutionalstructure. And "publicconsensus" 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 constitutionalregime have been satisfied. Part I spells out these conditions in greater detail. Once we understand what is constitutionallynecessary 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 supportfor efforts to circumvent the filibuster-demonstratesits democratic dysfunctionality. The conclusion tentatively suggests a few reasons that observers may be perceiving unusu- ally high levels of gridlock today and considers which of these explanations, if correct, would indicate actual institutional dysfunction. @ 2013 Josh Chafetz. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. t Associate Professor of Law, Cornell Law School. This Essay was originally prepared for the Notre Dame Law Review's 2012 "The American Congress: Legal Implications of Gridlock" Symposium, and I am grateful to the Symposium organizers and participants for their comments. Thanks also to Will Baude, Joseph Blocher, Guy Charles, Maggie Lemos, Marin Levy, David Pozen, Catherine Roach, Justin Zaremby, and the participants in the Duke Law School Statutory Interpretation Colloquium for helpful and thought-provoking comments on earlier drafts. Any remaining errors or infelicities are, of course, my own. 2o65 2066 NOTRE DAME LAW REVIEW [VOL. 88.5 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 H.J. Res. 117, a continu- ing appropriations resolution funding the federal government through March 27, 2013.1 The House had passed the joint resolution nine days ear- lier, by a vote of 329 to 91, and President Obama signed it into law on Sep- tember 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 obli- gations before Congress agreed to raise the debt ceiling.3 The compromise raising the debt ceiling included provisions meant to structure future budg- ets, 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 years5 and provided for automatic spending cuts split between defense spending and certain discretionary nondefense spending to take effect if Congress did not, byJanuary 15, 2012, pass ajoint committee bill reducing the deficit by at least $1.2 trillion over that time.6 Thejoint 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 reso- 1 Continuing Appropriations Resolution, 2013, Pub. L. No. 112-175, 126 Stat. 1313 (2012). 2 Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, 125 Stat. 38 (2011). For a narrative of the passage, see Jennifer Steinhauer, 2011 Budget Bill with Cuts Is Approved by Congress, N.Y. TIMES, Apr. 15, 2011, at Al. For analysis, see Josh Chafetz, Congress's Constitution, 160 U. PA. L. REv. 715, 732-34 (2012). 3 Budget Control Act of 2011, Pub. L. No. 112-25, § 301, 125 Stat. 240, 251-55. For a narrative of the passage, see Jennifer Steinhauer, Debt Bill Signed, Ending Crisis and Fractious Battle, N.Y. TIMES, Aug. 3, 2011, at Al. For some intriguing thoughts on the debt ceiling standoff and the president's constitutional options, see Neil H. Buchanan & Michael C. Dorf, How to Choose the Least UnconstitutionalOption: Lessons for the President (and others) from the Debt Ceiling Standoff 112 COLUM. L. REV. 1175 (2012). 4 See David Lauter, For All the Drama, Little Got Done, L.A. TIMES, Aug. 2, 2011, at Al (discussing the deal's $21 billion in cuts to the 2012 budget, its creation of a congressional supercommittee to find an additional $1.2 trillion in cuts over the next decade, and the cuts that would automatically take effect if the committee failed to come up with a plan or gain passage for it). 5 Budget Control Act of 2011 § 401(b) (2). 6 Id. at § 302. 7 SeeJennifer Steinhauer, Facing Billions in Automatic Cuts, Pentagon PonderingIts Next Move, N.Y. TIMES, Nov. 23, 2011, at A20. 8 See Jennifer Steinhauer, Senate and House Face an Impasse on Spending, N.Y. TIMES, Sept. 24, 2011, at A13. 2013] THE PHENOMENOLOGY OF GRIDLOCK 2067 lutions,9 Congress in November and December of 2011 passed appropria- tions bills for the remainder of the fiscal year.1 0 This series of events was largely responsible for the new conventional wisdom that Congress is hope- lessly gridlocked. Congressional scholars Tom Mann and Norm Ornstein, having titled their previous book The Broken Branch," named their new best- seller 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 gov- ernment crisis that voters at the polls could blame them for."1 5 Reuters con- curred, 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 pros- pects 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."1 7 Indeed, the Times noted that mem- 9 Continuing Resolution, Pub. L. No. 112-68, 125 Stat. 770 (funding the government through Dec. 23, 2011); Continuing Resolution, Pub. L. No. 112-67, 125 Stat. 769 (2011) (funding the government through Dec. 17, 2011); Continuing Appropriations Act, 2012, Pub. L. No. 112-36, 125 Stat. 386 (2011) (funding the government through Nov. 18, 2011); Continuing Appropriations Act, 2012, Pub. L. No. 112-33, 125 Stat. 363 (2011) (funding the government through Oct. 4, 2011). 10 Disaster Relief Appropriations Act, 2012, Pub. L. No. 112-77, 125 Stat. 1277 (2011); Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, 125 Stat. 786 (2011); Consoli- dated and Further Continuing Appropriations Act, 2012, Pub. L. No. 112-55, 125 Stat. 552 (2011). 11 THOMAS E. MANN & NORMAN J. ORNSTEIN, THE BROKEN BRANCH (rev. ed. 2008). 12 THOMAS E. MANN & NORMANJ. ORNSTEIN, IT's EVEN WORSE THAN IT LOOKS (2012). 13 Ezra Klein, 14 Reasons Why This Is the Worst Congress Ever, WASH. POST WONKBLOG (July 13, 2012, 8:00 AM), http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/ 07/13/13-reasons-why-this-is-the-worst-congress-ever/. 14 This view is apparent in, for example, Michael Teter's contribution to the Sympo- sium, which dramatically begins, "Gridlock has Congress in a headlock.
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