Gridlock's iron grip

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With Donald Trump now gone from the White House, President Biden is promising to work with congressional Republicans to find common ground.

Is this even possible? There has not been much bipartisan agreement on anything since the first term of George W. Bush, when the then-president worked with Massachusetts Sen. Ted Kennedy to enact the No Child Left Behind Act. Since then, vitriol has been the dominant theme of partisan relations. President Barack Obama promised a new tone when he came into office in 2009, but the backbiting only grew worse under his tenure. Trump never really tried. So, can Biden break through the gridlock?

It is highly doubtful. The two sides might come together on issues that are not of high salience to either party, but the most likely outcome is more gridlock on the biggest issues of the day. Three factors are coming together to cut against bipartisanship, regardless of who is in charge.

The first is the partisan sorting in the electorate. Thirty years ago, it used to be that Democratic members from the House often represented districts that voted Republican for president, and vice versa. These are becoming few and far between. This has also become increasingly true in the Senate, where there are only a few senators who represent states that voted for the opposite party for president. This cuts down on members’ incentives to reach across the aisle. Since their political constituencies are increasingly dominated by members of their own side, they actually have an incentive not to compromise.

Additionally, the parties are increasingly organized around ideologies, rather than geography or religion, as they were prior to the New Deal. It used to be that conservatives were still found in the Democratic Party and liberals in the Republican Party. That is mostly a thing of the past, so partisan loyalties nowadays are anchored on the important issues. That gives representatives fewer opportunities for safely crossing the aisle.

The second is the threat of party primaries. To be sure, primaries have been the main way of choosing candidates for a long time. But a series of high-profile primary defeats no doubt has incumbents spooked. Eric Cantor is a case in point. Originally elected to the House in 2000 from suburban Richmond, he had been working himself up the ranks of party leadership, so that by 2011, he was the House majority leader. He was able to do this because his district was safe, or so he thought. In the summer of 2014, Randolph-Macon College professor Dave Brat, running as a staunch supporter of the Tea Party, shocked the political establishment by defeating Cantor.

The Democrats have likewise suffered surprising defeats: In 2018, Alexandria Ocasio-Cortez upset Joe Crowley to win the primary in New York’s 14th District. Like Cantor, Crowley had enjoyed a safely Democratic district and had used his supposed security to build a career in the party leadership, rising to become the chairman of the House Democratic Caucus.

These challenges are significant, if not in number, then in implication. Cantor and Crowley had done everything “right,” but they still lost. And remember that most House incumbents will be facing primary voters in a little over a year — voters who tend to be the most intensely ideological and the least interested in compromise. It’s a risk that members often cannot afford to take.

Just last month, Liz Cheney, the chairwoman of the House Republican Conference, virtually guaranteed herself a tough primary challenge by voting to impeach Trump. That again goes to show that there is little grace given to representatives who want to reach across the aisle, when doing so cuts against the views of their constituents.

Third, the rules of the Senate make it very easy to thwart legislation unless a very broad majority supports it, usually much broader than with a narrowly bipartisan bill that might pick up a handful of supporters from the other side. Liberal pundits have once more turned their ire on the legislative filibuster, a procedural device that effectively enables a minority to defeat a bill by refusing to end debate on it. But the filibuster is only part of the story. Much of the day-to-day business in the Senate relies upon the unanimous consent of the chamber, which means that it is often possible for any senator to delay action. Take, for instance, the delay in considering the impeachment of Trump. The House finished crafting its article of impeachment while the Senate was in pro forma session (meaning, for all intents and purposes, it was in recess). The only way for the Senate to reconvene to hear the impeachment article was through the unanimous consent of its members, which was, of course, lacking. So, the Senate was not able to take up the matter until after Biden was sworn in.

The Senate, put simply, is a highly individualistic institution that prizes consensus above all. And when consensus is lacking, the result is usually that very little gets done. As the two parties have become increasingly polarized, consensus has been more difficult to find, and the Senate has been the place where hopes of bipartisanship often meet their demise.

Take these factors together — the polarization of the electorate, the dangers of primaries, and the rules of the Senate — and the end result is a government beset by gridlock, at least on the most divisive issues. This is not to say that it cannot do anything at all. Congress last year, for instance, passed on a bipartisan basis a new conservation bill and enacted a national suicide prevention hotline. These were significant accomplishments, but not coincidentally, they were also over issues where the parties were not dug in.

If President Biden wants to cultivate bipartisanship, his best bet is to find policy areas that are not on the well-trodden ground of partisan disputes. Legislators will be happy to embrace solutions to problems that do not seem to advance the agenda of their opposition; otherwise, they are placed in electoral jeopardy, and anyway, they are unlikely to be enacted through a consensus-driven Senate.

This points to why gridlock is not altogether bad. Shouldn’t the government operate by consensus? If the country is split almost evenly on an issue, why should one side triumph over the other on it, regardless of which party happens to be in charge temporarily? Democracy privileges the rule of the majority, but republicanism aspires to something higher: government for the good of all. If the public agrees on a national suicide prevention hotline but not abortion, isn’t it a good thing that the government took action on the former but not the latter?

This is not to say that gridlock is always good. But it is certainly not always bad. It’d be nice if we could all just get along, as Rodney King famously said, but we often don’t. And when we don’t, the government should not be able to do much, and usually, it can’t.

Perhaps the biggest downside to this is that the government is running according to laws that are a half-century old. The Great Society was the last great burst of postwar lawmaking, and many of those laws are still in effect. That, plus the ambiguity of many laws, gives the president wide discretion in interpreting how legislation should be enforced. So sometimes, it seems like we do not really have much of a legislature. Instead, we’re under a weird combination of dead-hand control and executive domineering, how this or that president can reinterpret legislation that Lyndon Johnson enacted some 55 years ago.

There are procedural tweaks that could ease this difficulty. The filibuster, for instance, could be reformed so that the minority actually has to continue debating the bill until the majority gives up. Increasing the cost of employing the filibuster might mean it is used less trivially. Additionally, the congressional budget process needs to be reformed so that the appropriating and authorizing authorities of Congress once again flow through the committees in a regularized manner, rather than the last-minute “omnibus” spending bills that have become the norm.

But the bigger issue is that Congress, in its own weird, imperfect way, still reflects the public mood. And it really only has the power to act when the public intentionally and deliberately prefers a certain policy outcome. It is no coincidence that as the public has become more divided since the Great Society, Congress has become less able to assert itself. An active legislature above all requires a coherent, cohesive, and thoughtful set of public demands on the major issues, and we simply do not see that these days.

Jay Cost is a visiting fellow at the American Enterprise Institute and a visiting scholar at Grove City College’s Institute of Faith and Freedom.

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