Dec. 25, 2014

Policy Gridlock: Is It the New Regular Order?

Former House Parliamentarian Charles Johnson recently told a U.S. Capitol Historical Society audience that “gridlock is the regular order.” In all fairness, he might have added that gridlock is interrupted periodically by erratic bursts of legislative activity guided by irregular procedures. 

Taken together, this stop-and-go form of lawmaking using convoluted procedures has elevated irregular order to the new normal in Congress. This is especially so, as Johnson observed in his talk, when the two chambers are divided between the parties. 

Political scientist Barbara Sinclair takes a more ecumenical view of the situation: Instead of characterizing Congress as dysfunctional and gridlocked, she attributes these perceived failings to our democracy working as it should. 

In a Boston University Law Review article, Sinclair argues that the “much maligned partisan polarization” stemming from “the strengthening and internal homogenization of the political parties ... has made possible the development of a strong and more activist party leadership that allows the majority to work its will.” 

Obviously, when the two chambers are split between the parties, the battle of conflicting majority wills sometimes produces gridlock. 

But, on balance, Sinclair sees the partisan sorting that has taken place in Congress as being beneficial to the institution because it has produced a system that is more open, inclusive, accountable and expeditious (at least in the House, to the majority party caucus). 

She concedes, however, that this change has entailed costs — namely the loss of a committee system once characterized by expertise, deliberation, bipartisan harmony and productivity. That was consciously replaced by Democrats in the 1970s because the bipartisanship that existed on committees did not always reflect the majority will of the Democratic Caucus. 

This new partisanship did not start with Speaker Newt Gingrich (R-Ga.), as some have recently argued. He only pushed the accelerator.

In his Capitol Historical Society talk, Johnson quoted from his portion of the new preface to “Parliament and Congress,” co-authored with Sir William McKay, in which he laments the “retreat further away from the collegiality, spontaneity, openness and compromise that characterized earlier Congresses” and the fact that “little ‘institutional memory’ remained among Members to enable recall of those practices and norms.” Johnson went on to charge that the “increased partisanship and stalemate, motivated by the ‘win-every-vote’ mentality of House majorities,” and implemented through a variety of internal and external forces, have all contributed to the current condition of the House. 

The irony is that both parties, when in the minority, promise a return to the (old) regular order if they capture majority control. However, upon regaining majority status, they soon forget their promises and ratchet up the irregular practices of their predecessors. We have seen this occur three times in the House: 1995, 2007 and 2011. 

And while Speaker John Boehner (R-Ohio) has opened the floor more than the previous Democratic regime (e.g., 25 open-amendment floor rules in this Congress versus just one in the previous Democratic House), the demands of his Republican Conference colleagues seem to make it difficult for him to be as open and conciliatory as he would like. 

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