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Defining Gridlock

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. James says:

    You are using a single-issue definition. I would at least offer, if not use, a multi-issue definition. Something along the lines of: The political dynamic as to issues where there is no agreement prevents action on issues where there otherwise is enough consensus for action. I think that captures the frustration of legislators failing to act due to political considerations outside the merits of the issue (such as not wanted to allow the other party to claim credit for action on a broadly popular initiative).

  2. Joe says:

    “Party discipline” … as the authors of Broken Branch and a follow-up volume note, each party is not the same here.

    Democrats have less party discipline on various issues and during years of Republican government were more open to allowing a part of their caucus to govern with the other side.

    Voters do play a part here though structural matters etc. aggravate the situation. For instance, even if the same people were there, filibuster reform would change things. And, the voters alone isn’t the reason why each party caucus runs things in different ways.

  3. Dan Cole says:

    Gerard, might #4 imply a preference among the electorate for gridlock, which is after all simply an (extreme) outcome of voting for divided government?

    Dan

  4. Joey Fishkin says:

    I think “consensus” is the wrong question. Almost by definition, there will never be a consensus about contentious political issues. The right question to pose about our sclerotic political system is this: does it make it possible for majorities to enact laws? In other words, if there is a solid majority for X (and we can discuss variants here such as a solid majority of the electorate, a solid majority of elected legislators, etc.) does X actually get enacted?

    In a system with relatively few veto points, elected majorities enact their programs — even if there is nothing like consensus in the country — and then if it turns out that most people don’t like what was enacted, they can and should throw the bums out! Then the other party can give it a try.

    But with gridlock, you have the problem that very little is enacted, and if people want to throw out the bums responsible for this, it’s not that clear whom they’re supposed to vote for or against. And this creates opportunities for strategic gaming. Right now, for instance, Republicans, as the party out of the White House, have every incentive to increase gridlock in the hope that people unhappy with how things are going — and specifically, how weakly and ineffectually we are responding to the current economic crisis — will choose Obama as the bum they want to throw out.

  5. I no longer believe the politicians we have from top to bottom … saying one thing when one does not know if it’s because they really do or is it just campaign policy consideration. Politics is very complicated, and often it’s like in sport, we all think we know a lot, and we feel as great scholars of the subject.
    If there is a political party to say “I’m not so sure that is so” on an issue, political party that would be me …
    Regards.

  6. Howard Wasserman says:

    Joey said everything I was going to say and much better. Someone (don’t remember who) said you can give a minority the incentive to block the majority or the tools to block the majority, but you cannot give it both. When you give it both, gridlock results.

  7. Shag from Brookline says:

    Re: #4: Is there at least consensus that there is no consensus?

  8. Mike Zimmer says:

    With our politicians spending almost all of their time seeking direct or indirect financial support for electoral politics, the will of the people rarely has much impact. What does have impact is the will of those with the ability to contribute to polical campaigns. Of course, there are sometimes countervailing monied interests. Maybe the biggest giver wins and that win may be to do nothing. Think of how slowly the pitifully inadequate “reforms” of the finacial industry are being actually adopted. So, what appears to be gridlock may often be that the side favoring the status quo is winning.

    If the momentum for change actually overpowers the interests supporting the status quo, then all the interests with money to contribute to politics start working to add provisions aiding them, creating loopholes to protect their particular interests from change. Again, witness Dodd-Franks, witness the Affordable Health Care Act. Neither is a remotely rational and efficient way to deal with their respective issues but both could get to adoption only through the inclusion of protection for vested interests or the most minimal intrusion in their interests.