Here’s the general theory of legislative failure: Political polarization leads to congressional gridlock, and congressional gridlock leads to legislative inaction. If Congress can’t get its act together, then the worst that happens is nothing gets done.
But that standard version of political physics is wrong, or at least incomplete. Political polarization does lead to congressional gridlock, but congressional gridlock often leads not to inaction, but to extra-congressional action — that is, action that either skirts Congress altogether or radically subverts the normal legislative process. If you believe government should be accountable, efficient and, for business, predictable, that’s not a good outcome.
It is, however, an increasingly frequent one. The debt deal that Congress passed this week is the latest example. The core of it isn’t the $900 billion in cuts scheduled to come soon; it’s the special committee charged with cutting $1.5 trillion later. If that committee produces a plan supported by a majority of its 12 members, the proposal is allowed to speed through both chambers of Congress, immune to the filibusters and amendments that impede most legislation. The committee’s powers are so great and so unusual that it has attracted a not entirely affectionate nickname: “Supercommittee.”
This is the age of superpowers. Last year’s Affordable Care Act plotted a detour around congressional inaction, and even opposition, by creating the Independent Payment Advisory Board, a 15-member panel of experts empowered to make profound changes to the system. To stop the board’s recommendations from taking effect, Congress must vote them down, after which the president must either agree with Congress or have his veto overridden by two-thirds of each house. Bloomberg View columnist Peter Orszag, former director of the Office of Management and Budget and the panel’s chief sponsor, called it “the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve.” He meant it as a compliment.
At the Department of Education, Secretary Arne Duncan has prepared contingency plans in the event Congress fails to reauthorize or replace the No Child Left Behind Act. Duncan would unilaterally grant waivers to all 50 states, releasing them from most of the law’s mandates. Neither Duncan nor Congress favors this path. It’s just not clear that lawmakers will be able to get their act together and pass an education bill in this polarized environment. And if Congress doesn’t act, someone else must.
The Fed is considering its own bypass of Congress, seeking unconventional measures it might be able to uncork to support a floundering economy that Congress seems uninterested in aiding. With interest rates near zero and the central bank’s ability to deploy monetary policy constrained, it would be far easier for Congress to support the economy with fiscal policy — tax cuts or infrastructure investment, for example. But Congress won’t act. As a result, the Fed might be forced to.
The list goes on. One more: The Environmental Protection Agency is preparing to regulate carbon emissions because Congress has been unable to pass an energy bill. Gridlock doesn’t simply mean nothing gets done. It means that nothing gets done in the transparently democratic way it is supposed to.
All of these extra-congressional ventures take place with the implicit approval of Congress. If Congress chose to exercise its constitutional powers, it could shutter the EPA, hamstring the secretary of Education, repeal the Independent Payment Advisory Board, abolish the Fed and pass its own deficit-reduction bill. Conversely, it could vote to protect the environment, reauthorize No Child Left Behind, overhaul Medicare, stimulate the economy and bring spending in line with revenue.
But rather than choose one path or another, Congress delegates responsibility to others to exercise power on its behalf. It leaves governance in a liminal state. Congress neither musters sufficient support for policies to enact them, nor generates sufficient opposition to policies to stop others from acting on them. The result is not stasis, which seems to be the logical conclusion of gridlock. It is action. It’s just a kind of action that is far less accountable, and less effective, than that produced by a fully functioning legislative body.
Observers occasionally sigh deeply and blame this on bitter polarization of the two major political parties. But that’s not quite the problem. Nor is the issue that our political system is ill-designed. It’s that our political system is ill-designed for parties that are so polarized. Our system is designed for consensus. When that breaks down, the system turns on itself, its many veto points and blockages placing a chokehold on action. To escape the gridlock, the parties establish elaborate extra-congressional fixes, circumventing the political system itself. The government can still work. It just doesn’t work very well: not for liberals, not for conservatives, not for the country.