Partisan competition is not the cause of Congress’s dysfunction
(Editor's Note: This piece first appeared in LegBranch.org on January 28, 2019.)
Speaking at the annual meeting of Harvard’s Phi Beta Kappa society in 1837, Ralph Waldo Emerson maintained that it was the scholar’s duty to show people “facts amidst appearances.” For Emerson, discerning fact from appearance required “days and months” of unhurried observation.
Unfortunately, it does not take today’s scholars long to identify the dysfunction in American politics. For example, it was on full display in the most recent government shutdown. During that standoff, Congress struggled for over a month to complete one of its most fundamental responsibilities- deciding when and how to spend taxpayers’ dollars.
Yet while it may be easy for scholars to discern the dysfunction in our politics at present, they have not yet identified why Congress can’t legislate.
According to one explanation, political parties are to blame. That is, the competition between Democrats and Republicans for majority-control of Congress makes it harder for them to work together. For example, Ezra Klein suggests in a recent article that the government shut down because “the Republican president needed Democratic votes to fund the government.” Such bipartisan cooperation is a problem, according to Klein, because it is “irrational for the minority party to engage in” it. Frances Lee, a leading political scientist and the subject of Klein’s piece, argues that this dynamic began in 1980 when Republicans unexpectedly won control of the Senate for the first time in decades. For Lee, this event marked the beginning of a new period in American history in which no party has controlled Congress for an extended period of time. The ensuing competition between the “ins” and the “outs” makes bipartisan compromise harder to achieve. The reason for this is that minority-party members behave differently when they expect to win a majority in the next election. This creates a “logic of confrontation” that incentivizes Democrats and Republicans to differentiate themselves in Congress.
Partisan competition is especially problematic in the Senate given the ability of minority-party senators to more easily differentiate themselves from their majority-party colleagues by forcing roll-call votes on so-called messaging amendments that are designed explicitly to elicit partisan differences in the institution. The tactic works by forcing marginal majority-party senators to cast damaging votes that the minority-party candidate can then use against them in their next campaign, thereby increasing their odds of defeat and, by extension, making it more likely that the minority party will win enough seats in the next election to become the majority party in the next Congress.
However, senators’ behavior at present does not exhibit the zero-sum characteristics that Klein and Lee claim. In short, partisans are not competing to the extent they suggest. This is evident in the juxtaposition of senators’ efforts to elicit partisan differences in the past with their efforts today. Unlike the period after 1980 that Lee analyzes, during which the Democratic minority deliberately forced “seventy to eighty roll-call votes per session,” minority-party senators today do not force votes on amendments at “every available opportunity.” Senators are instead offering fewer floor amendments today than in the past.
When senators do offer amendments, they are typically disposed of by voice vote or unanimous consent. These methods make it harder to use the underlying amendment to elicit partisan differences because they leave no record of how individual senators voted or, in the case of unanimous consent, all senators voted the same way. When senators do cast roll-call votes on amendments (and legislation), the outcome is almost always bipartisan.
This suggests that when the Senate acts, Democrats and Republicans agree to structure the legislative process so that they blur distinctions between one another rather than accentuate them. Consider, for example, how senators behaved during the government shutdown. At the beginning of the standoff, Majority Leader Mitch McConnell, R-Ky., announced that he and Minority Leader Chuck Schumer, D-NY, had “reached a procedural agreement to create space for ongoing negotiations over government funding.” Notably, that space was behind closed doors where it would be impossible for senators to act in ways that can elicit partisan differences. McConnell also informed his colleagues that “no further votes” would occur in the Senate until “the President and Senate Democrats have reached an agreement to resolve this.”
“Let me say that again. We pushed the pause button until the President, from whom we will need a signature, and Senate Democrats, from whom we will need votes, reach an agreement—no procedural votes, no test votes, just a meaningful vote on a bipartisan agreement whenever that is reached, and it is my hope that it is reached sooner rather than later.”
Implicit in the view that partisan competition is the reason why Congress can’t legislate is the assumption that a necessary condition for it to do so is that conflict between its members must first be eliminated. Only at that point can a rational consensus be substituted in its place. But consensus is not possible when members of Congress disagree over outcomes. Moreover, resolving those disagreements through compromise, not by the imposition of a consensus position, is why Congress exists in the first place. Conflict is inherent in its identity as a representative assembly in a large and diverse nation. That is why James Madison argued in Federalist 10 that “the regulation of these various and interfering interests…involves the spirit of party and faction in the necessary and ordinary operations of government.”
Properly understood, conflict is not antithetical to compromise. Rather, it is a necessary precondition for the emergence of compromise agreements whenever members of Congress disagree. As the political scientist Bertram Gross observed in 1953, legislative compromise arises out of the “development of the group struggle itself, for the vicissitudes of this struggle create the conditions that promote cooperation and make it possible.” When viewed from this perspective, it is clear why the government shutdown persisted for so long. There was no legislative struggle in the Senate that could make a compromise possible.
To be fair, there is much dysfunction in American politics at present. However, the partisan competition between Democrats and Republicans does not appear to be its cause. Only by reorienting our understanding of legislative politics to account for the vital role conflict plays in facilitating compromise between legislators can we realize the possibilities inherent in the present moment. Or, as Emerson put it in 1837, “This time, like all times, is a very good one, if we but know what to do with it.”