In Praise of Gridlock

by Wendy McElroy
Oct. 31, 2012

I want gridlock. If the House of Representatives and the Senate both go Republican, as I expect they will, then the best chance for political paralysis may be a hostile Democrat in the White House. I want an angry Congress and a president with fingers itching to veto.

Ironically, a second-term presidency for Obama could well be America’s shining hope for fewer laws in the next four years. And less law is a situation to be devoutly desired, especially since it would come with a weakened presidency.

Political gridlock is a safeguard of freedom, and a constitutional restraint that the Founding Fathers consciously tried to place on power.

IN PRAISE OF AMERICAN GRIDLOCK

Political gridlock generally occurs in one of four ways: Congress is evenly enough divided so that no one party has the majority needed to push laws through; one legislature is Republican while the other is Democrat; the majority in the Senate is not large enough to overcome a filibuster; or,Congress and the executive are controlled by different parties. The opposite of political gridlock occurs when one party has across-the-board control.

Such a consensus of power produces strong or activist presidents. For example, both Franklin D. Roosevelt, who forged the New Deal, and Lyndon B. Johnson, who created the Great Society, had the advantage of one-party control during the entirety of their terms. This means they were able to push through sweeping social change that laid the foundation for much of today’s social control.

According to historian Bruce Bartlett, from 1856-2010, there were 91 years during which one party controlled the White House, Senate, and House of Representatives, There were 63 years during which power was shared. In other words, 59% of the time, the United States has had a consensus of power.

The Founding Fathers would have been appalled. They consciously sculpted a political structure in which power would be balanced or antagonistic so that there would be a high bar for the passage of law.

The most obvious check on power is the tripartite separation of power. During the Constitutional Convention of 1787, the delegates explicitly considered and rejected a parliamentary system similar to that of Great Britain. In that system, the prime minister heads the executive branch and, as a member of Parliament, also heads the governing party. Passing laws is comparatively easy.

Instead of a parliamentary system, however, the Constitutional Convention adopted a tripartite division of power. Three branches of government were given independent powers and responsibilities that act as restraints on each other: the executive, the legislature, and the judiciary. For example, while Congress controls the federal budget, the president can veto bills passed by Congress. In turn, Congress can override the presidential veto by a two-thirds vote in both houses. This makes it more difficult to pass and to enforce laws. (Some consider the American system to be a four-way division of power because of the bicameral Congress in which the two legislative houses often obstruct each other.)

Even the structure of the electoral process itself facilitates a check on power. The Federalist Papers, o 51 is titled “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” In the essay, the constitutional architect James Madison highlights the danger that the legislative authority would dominate.

“The remedy for this inconveniency,” he concludes, “is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.”

The executive and the legislature come from entirely different electorates, so those chosen are more likely to be diverse. Midterm elections ensure that most of the legislature comes to power at a different time than the president, so the elections act as a check on an unpopular leader. hat was the purpose of Madison’s “different principles of action”? To protect minorities from oppression by the majority, and no minority requires protection more than “the individual.”

From the juxtaposition of states’ rights and federal power to a political distribution that gives the same number of Senate seats to California as it does to Rhode Island, a salutary tendency toward gridlock is at the root of American government. The tendency has been strengthened by additions like the filibuster rule in the Senate. This rule allows a senator, or a series of them, to speak on the floor for as long as they wish unless or until “three-fifths of the senators duly chosen and sworn” bring the process to a close.

ADVANTAGES OF GRIDLOCK

Sometimes, actions that not taken are more significant and advantageous than the ones that are. For example, if even one legislative house and the president are at loggerheads, then budgets are less likely to be passed and the deficit may cease to climb at its present rate. Stephen Slivinski writes in the Washington Examiner (Sept. 15, 2010):

“Between 1965-2009, the average growth rate of real per capita federal spending in the divided-government years [one House versus the presidency] was 1.9%. For the years of united government, that average was 3.1%…. The take-home message for fiscal conservatives? If it’s a bad idea to put your faith in politicians, the good news is you can probably put a decent amount of faith in institutional gridlock.”

Yet political gridlock is most often discussed as a sign of dysfunctional government. In a 2011 hearing of the Senate Judiciary Committee, Justice Antonin Scalia offered a refreshing rebuttal of the dysfunctional claim:

“I hear Americans saying this nowadays, and there’s a lot of it going around. They talk about a dysfunctional government because there’s disagreement — and the Framers would have said, 'Yes! That’s exactly the way we set it up. We wanted this to be power contradicting power’ because the main ill that beset us, as Hamilton said in The Federalist, when he talked about a separate Senate, he said, yes, it seems inconvenient, but inasmuch as the main ill that besets us is an excess of legislation, it won’t be so bad. This is 1787; he didn’t know what an excess of legislation was.”

We do.

And that’s why — even though I long for a fresh face to detest and long for a world without democratically elected dictators — there might be good reasons to prefer Obama over Romney as the next president.
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Wendy McElroy is Author, lecturer, and freelance writer, and a senior associate of the Laissez Faire Club.