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Not Enough 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. peth says:

    The chaos of our beloved government never cease to amaze me. THESE are the people we put our fath in to lead us? Lead us where? into debt, poverty and 3rd world placement?

  2. In reply to peth:

    Each and every one of us bears some responsibility for the current state of affairs, whatever the ongoing structural problems with our modes of governance, a point I made here: http://www.religiousleftlaw.com/2012/07/the-contingency-of-dirty-hands-the-necessity-of-virtuous-politics-or-.html

    The debt is not as much a problem as it has been made out to be (see the work of Neil H. Buchanan over at Dorf on Law about this), and our country is far from poor….

    Some of the economic problems we face are not amenable to economic policies that are the prerogative of national governments, given the nature of the global economy (specifically the economics of turbo-capitalism in the form of the neoliberal policies of market-led globalization). Of course that does not mean there’s nothing our government might do to help ameliorate economic suffering and toward turning things around, but we do need to adjust our expectations on this score, one price to be paid for bringing the poorer nations of the world to the table we’ve been well fed from for quite some time. The crashes, cycles, and panics endemic to capitalism will not go away soon, but they may more frequently affect those heretofore relatively immune from their worse effects (i.e., those in the affluent nation-states in the northern hemisphere).

    As to why we should not blame politicians generally for the mess we’re in, see also Matthew Flinders’ Defending Politics: Why Democracy Matters in the Twenty-First Century (2012). As to the diminution of American “exceptionalism” in the sense of this nation’s status as a global hegemonic power as well as some of the reasons we have less sovereign control over economic variables, see Charles A. Kupchan’s No One’s World: The West, The Rising Rest, and the Coming Global Turn (2012).

  3. A.J. Sutter says:

    It’s a clever bon mot, but not really helpful. The solution you propose — stabilization of voting preferences according to a certain pattern — isn’t one that can be designed, other than in places like Zimbabwe, Kazakhstan, etc. It also has elements of blame-the-victim and cart-before-the-horse about it.

    Current voting patterns are based on a perennial mood of throw the bastards out. (Have I worked in enough cliches yet?) Why don’t voters hold the political branches in higher regard? Why don’t they feel that they’re being truly represented? If Congress weren’t so relentlessly partisan and polarized, and were more cooperative in the way it used to be (e.g. early Reagan era and before), voters might become more settled in their voting patterns — albeit it’s not as if incumbents don’t already have huge advantages.

    I believe part of the problem is that Congresspeople have indeed come to act only in response to “incentives,” i.e. as the purely self-interested agents of Econ 101, instead of remembering that they’re supposed to be acting for the good of the country. I’m sure the politicians of yore wanted with no less fervor than today’s to get re-elected. Yet why was there less gridlock then than today? Is it simply that Congresspeople look more to wealthy donors and corporate money for their incentives and their advertising, and less to winning the hearts and minds of their grass roots constituents through their actions?

  4. Gerard N. Magliocca says:

    Oh, I agree that we engineer stable voting preferences like the ones that I describe. I’m just saying that until that happens, don’t expect much progress.

  5. A.J. Sutter says:

    Gerard, thanks for your quick reply, but I think I suggested the opposite — we shouldn’t try to engineer them. Not that it could work in a system like ours. Despite ridiculously partisan districting that protects incumbents and parties, power shifts from party to party every 2 years or so, as you complain. To bring about stability doesn’t take engineering, but more phronesis on the part of our elected representatives. If voters were more sincerely served, they might be in less of a contrary mood.

  6. Shag from Brookline says:

    How about the role of the Court:

    “In 2001, the GOP won the Presidency and Congress.”

    with Bush v. Gore in “overriding” gridlock. Can we ignore the Court’s contributions to gridlock? Of course, voters don’t elect Justices (who can serve for life), but they do elect the President and the Senate that are involved in their appointments (when there is an opening). There are many 5-4 decisions on crucial issues. A prior generation’s appointments of Justices (and lower Federal Court Judges) can contribute to the gridlock. And monies of the relatively small but influential special interests classes in political campaigns contribute to the resulting gridlock well beyond their numbers. (See Eduardo Porter’s Economic Scene article “Unleashing Corporate Contributions” in yesterday’s (8/29/12) NYTimes.)

  7. Brett Bellmore says:

    It is a throw the bastards out thing, and the reason they’re alternating is that they’re both bastards. The political culture is now controlled by the bastards, who won’t permit anybody else to participate in the higher levels.

    No system can work when it’s being fed candidates from this kind of political culture. It’s not going to be fixed on a level of rules, if it gets fixed at all. It is going to have to be fixed by fixing the culture.

    Because you can implement any rules you like, bastards don’t follow them.

  8. Shag from Brookline says:

    Here’s Brett’s solution to his aynarchist views:

    “It is going to have to be fixed by fixing the [political] culture.”

    How do you fix a political culture? This is not as simple as a yogurt starter. With a population approaching 350 million, how can you fix America’s political culture? Is there a one culture solution? Yes, you can throw the rascals out with the vote. But the political culture quickly feeds on the new rascals, who are provided campaign funds as noted in Eduardo Porter’s article referenced in comment #6. The First Amendment, augmented by Citizens United, permits for outright lies, repeated over and over again, with many voters entranced in the same manner as with TV [un]reality shows or following the Pied Piper. I’m not suggested repeal of the First Amendment’s speech, assembly, petition clauses but merely reinstating reasonable regulations to prevent the outright lies, repeated over and over again. Yes, there have been outright lies going back to the beginnings of America. But the means of communication have so expanded that there is more saturation of the outright lies, over and over again, for which there is no equivalent of “Take my phone off your list.”

    Let me add something I have been saying for decades: A politician’s long-range planning is limited to his/her next election. The saturation of lies has more than trickled down to voters who for the most part are not concerned with true long-range planning, as noted by the political non-scientific reaction to global warming. [Aside to Brett: Is it Chicken Little time for global warming?}

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