“The Phenomenology of Gridlock”

Josh Chafetz has posted this draft on SSRN (Notre Dame Law Review).  Here is the abstract:

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 brief Essay, written for the Notre Dame Law Review’s 2012 “The American Congress: Legal Implications of Gridlock” Symposium, 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 — demonstrate 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.

Looking forward to this!

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