After thinking through several aspects of the “problem” of gridlock, I think I’m going to turn the question around and talk aboutthe ways in which the Constitution facilitates action and magnifies the power of a plurality or a bare majority. Put another way, in what ways does our system create an appearance of consensus sufficient for legitimacy?
Let’s start with the much-maligned Electoral College. One advantage of that mechanism is that it makes a candidate’s victory look much bigger than it actually is. In concert with a winner-take-all system of vote allocation, a candidate who only wins a plurality of the popular vote (say, Bill Clinton) can win a large triumph in electoral votes. The same can be true in a two-way race –President Obama captured 53% of the vote in 2008 and that was read as a mandate by many in part because of his lopsided margin in the Electoral College. All of this makes the President look more popular and gives his policy proposals more fuel.
The first-past-the-post rule in congressional races is another example. Proportional representation is a more accurate way of measuring public opinion, but imagine how much gridlock we would have if the House or Senate usually required a coalition to govern (perhaps with different parties in each chamber). A political culture could develop where this would work, but that is by no means assured.
Some other “consensus-generative” rules include: (1) the provision in Article One that only a majority is required in each chamber for a quorum; (2) the tradition of having a single opinion for the Supreme Court when a majority of Justices agrees; (3) the practice that most congressional committees are stacked in favor of the majority party and overstate the size of the majority in the chamber as a whole; (4) the voting rules in the Twelfth Amendment in the event that no candidate receives a majority in the Electoral College. An extreme case is the Thirty-Ninth Congress, which created a consensus in the aftermath of the Civil Way by excluding the South from representation for a couple of years.