\\jciprod01\productn\N\NDL\88-5\NDL503.txt unknown Seq: 1 2-JUL-13 11:56 WHY GRIDLOCK MATTERS Michael J. Gerhardt* INTRODUCTION A week before the 2012 presidential election, I had the opportunity to speak with a former senator. I asked him about gridlock. I wondered what he would say to my law students who had lost hope in the legislative process because of the gridlock that defined the 112th Congress. He told me that they had good reason to have lost hope. He said that he conceived of the legislative process as a target; that the center of the target represented the areas that were most important to the country and the likeliest ones in which bipartisan agreement could be reached; and that the Patient Protection and Affordable Care Act (“ACA” or “Affordable Care Act”),1 in which he said that President Obama had invested so much time and capital, was on the periph- ery, if not the outside, of the target. He explained that the ACA exceeded the scope of congressional power. He explained that opposing the ACA should be the top priority of legislators and citizens. When I asked him what issues were at the center of the target, he initially did not respond. After I politely pressed him for an answer, he eventually said that there was nothing more important than opposing the health care bill. For him, gridlock had become a constitutional necessity. The former senator’s position on gridlock is hardly unique. Indeed, more than a year before President Obama’s re-election, Antonin Scalia, the longest serving justice on the current Supreme Court, told the Senate Judici- ary Committee that, “Americans should learn to love gridlock . The fram- ers (of the Constitution) would say, yes, ‘That’s exactly the way we set it up. We wanted power contradicting power (to prevent) an excess of legisla- tion.’”2 A few weeks after the 2012 presidential election, Justice Scalia 2013 Michael J. Gerhardt. 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. * Samuel Ashe Distinguished Professor of Constitutional Law and Director of the UNC Center on Law and Government, UNC-Chapel Hill. 1 Patient Protection & Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010). 2 David G. Savage, Justice Scalia: Americans “Should Learn to Love Gridlock,” L.A. TIMES (Oct. 5, 2011), http://articles.latimes.com/2011/oct/05/news/la-pn-scalia-testifies-2011 1005 (internal quotation marks omitted). 2107 \\jciprod01\productn\N\NDL\88-5\NDL503.txt unknown Seq: 2 2-JUL-13 11:56 2108 notre dame law review [vol. 88:5 repeated the same message to a packed auditorium at Princeton University, adding “God bless gridlock.”3 This kind of praise for gridlock, coupled with the fact that the last Con- gress was the least productive in memory, has led many people—both before and after the presidential election—to worry about whether gridlock has become either a permanent fixture, or a reflection of a serious defect, in our constitutional system. Is the gridlock we have witnessed over the past two years something to applaud, as Justice Scalia suggests, or does it reflect some serious defect in the Constitution, the current composition of Congress, the design of the legislative process, or some combination of these things? To what extent is gridlock not just a constitutional virtue but also a constitu- tional necessity? To what extent does fidelity to the Constitution require embracing or rejecting gridlock? While these and other similar questions motivated this symposium on constitutional gridlock, I do not believe that they are the right questions to ask. The critical question is, however, not whether gridlock is a constitu- tional necessity, virtue, or problem. If gridlock protects minorities, can it not also hurt them? If gridlock actually is a good thing, does transcending it produce harm? What does overcoming gridlock signify? Is it likely not the case that the failure of gridlock means that legislators somehow have failed minorities—or does it? The glorification of gridlock misses the point, per- haps deliberately so. After all, the framers did not design a constitution in which gridlock was the objective. The Constitution makes gridlock both pos- sible and inevitable, but the purpose of the Constitution is not merely to allow gridlock. In fact, the Constitution makes federal lawmaking difficult but not impossible. Justice Scalia is thus only half correct: We should appre- ciate not only the salutary effects of gridlock but also its possible harms as well as what it means to say, as Justice Arthur Goldberg famously said in United States v. Mendoza-Martinez,4 that, “while the Constitution protects against invasions of individual rights, it is not a suicide pact.”5 The most important question is whether Justices Goldberg and Scalia can both be right and, if so, how? The purpose of this Article is to put constitutional gridlock in perspec- tive. It seeks to clarify both the values and the problems that gridlock can foster or produce. Perhaps most importantly, I seek to clarify not only why (or when) gridlock can be a good thing but also the constitutional signifi- cance of overcoming it. I consider not only the possible benefits and costs of gridlock but also the constitutional significance of the facts that, within a few weeks of Justice Scalia’s praise of gridlock and not long before the day of President Obama’s second inauguration, he and Congress had reached an agreement to bypass the fiscal cliff, at least for a couple months, and Senate leaders had forged a modest agreement to make filibustering of judicial 3 Caleb Kennedy, Scalia Defends Opposition to Gay Rights Position, THE DAILY PRINCETONIAN (Dec. 10, 2011), http://www.dailyprincetonian.com/2012/12/10/32135/. 4 372 U.S. 144 (1963). 5 Id. at 160 (Goldberg, J.). \\jciprod01\productn\N\NDL\88-5\NDL503.txt unknown Seq: 3 2-JUL-13 11:56 2013] w h y gridlock matters 2109 nominations more difficult. When gridlock fails, something else has been achieved, something that we invest with the force of law. The Constitution is a blueprint for gridlock and for making law. In Part I, I clarify the values and the difficulties that gridlock and its transcendence might facilitate. There is not just one kind of gridlock, nor is there just one kind of benefit—or cost—to overcoming gridlock. The values of gridlock include protecting minorities and preserving the status quo and some freedom from federal regulation. The costs of gridlock are preventing progress, hindering legal change, exacerbating divisiveness, and empowering factions. But, overcoming gridlock or approving legal change promotes many values, including progress, solving social problems, and providing social benefits. Moreover, it achieves the usual benefits every time the legisla- tive process works—deliberation, consensus, representativeness, and account- ability. Lawmaking might also be costly and be harmful in some ways, including but not limited to social disruption and financial and other costs that compliance with new laws requires. The important thing to understand is glib one-liners about the virtues of gridlock or overregulation should not be mistaken for sophisticated or careful constitutional analysis. It is impera- tive that, in any discussion of gridlock in the legislative process, we need to move away from polemics and precisely identify which values and which costs are actually being promoted or produced in particular fights or areas of lawmaking. In Part II, I use three examples of conflicts in Congress to illustrate the utility of a more nuanced understanding of gridlock. These are the fights over the Affordable Care Act, the filibuster, and the debt ceiling. In each of these instances, change in the status quo, even incrementally, was hard won. They underscore the importance of not confusing the gridlock of the moment with complete dysfunction. They illustrate the different values— and costs—of overcoming gridlock in both significant and incremental ways. In Part III, I suggest two proposals for ameliorating more costly forms of gridlock. The first is to adopt the talking filibuster. The filibuster has long been a defining feature of the Senate. Its increased use in recent years has been costly to the image of the Senate, comity within the Senate, and the efficient production of legislation and confirmation of presidential nomina- tions, particularly to Article III courts. The talking filibuster might make pro- tracted delays on many issues more difficult to maintain, since it forces senators to be visible and thus more likely to be accountable for delaying various matters. The second proposal is to seek judicial review of partisan gerrymandering, which has facilitated divided government and provided a basis for gridlock in lawmaking. Overcoming partisan gerrymandering requires the intervention of courts, but if courts were to eliminate gerryman- dering on this basis it could make it easier for voters to turn out legislators whenever they are not producing the kinds of actions that voters actually prefer. But, if voters prefer gridlock, they could still vote for it even without partisan gerrymandering. Its elimination simply allows voters more opportu- nities to vote on the substance of issues. \\jciprod01\productn\N\NDL\88-5\NDL503.txt unknown Seq: 4 2-JUL-13 11:56 2110 notre dame law review [vol. 88:5 I conclude that both protestations about gridlock and the praise for it are overdone. Even a dialogue about gridlock is progress. It is better to understand why we are at an impasse, the values that it might foster, the costs it might incur, and the benefits and costs of transcending gridlock than sim- ply to throw up our hands in disgust or consternation.