The Senate is gridlocked, but not for the reason you might think

(Editor's Note: This piece first appeared in LegBranch.org on July 31, 2019.)

The Senate is gridlocked. But not in the way we think.

Gridlock arises whenever senators choose not to act- to debate legislation in committee and on the floor, offer amendments, and vote. In such instances, the Senate is unable to pass legislation because its members are unwilling to act.

This suggests that gridlock in the Senate should be rare, but not impossible. That is, the phenomenon should arise only in those situations when senators on all sides of a debate are unwilling to expend the effort required to win it.

Needless to say, this is not how scholars think about gridlock at present. One prominent political scientist, Keith Krehbiel, defines the phenomenon as “the absence of policy change in equilibrium in spite of the existence of a legislative majority that favors change.” Another leading Congress scholar,  Sarah Binder, suggests that it occurs when “legislators and the president have been unable to reach a compromise that alters the policy status quo.”

Both definitions assume, albeit implicitly, that gridlock occurs when a minority acts in ways that prevent the majority from acting. In other words, gridlock is what happens when two opposing actions cancel each other out. This is evident in the common tendency to use the term gridlock interchangeably with stalemate and deadlock. Each term evokes the image of a struggle between opposing interests that ends in legislative paralysis. In short, the action causes gridlock. The Senate is frequently gridlocked given the minority’s ability to filibuster legislation favored by the majority. Gridlock arises in such instances because the filibuster empowers a minority of senators to act in ways that prevent a majority of senators from working to achieve their goals.

Gridlock, therefore, is a function of “the preferences of members of Congress regarding particular policies” and “supermajority institutions – the Senate filibuster and the Presidential veto.” Scholars designate the theoretical distance between the preferences of the median senator and those of the “filibuster pivot” as the “gridlock region.” Legislative proposals that fall inside this abstract policy space are “nearly impossible to change.”

According to the conventional wisdom, ideological polarization and partisan competition cause gridlock to occur. Both phenomena increase the size of the gridlock region and, therefore, cause more issues to get stuck in it. Implicit in this understanding of gridlock is the assumption that it occurs when a minority’s actions cancel out the actions of the majority. Specifically, it is premised on the idea that gridlock happens when the two sides in a legislative debate do not want to cooperate with each other and instead act in ways that effectively prevent each other from achieving their goals inside the Senate.

Yet opposing actions can only cancel each other out when they are evenly balanced. Absent an even matchup, the actions of the stronger side will eventually overwhelm the actions of the weaker side. When it comes to the Senate, the majority and minority sides (or majority and minority parties) are, by definition, matched unevenly. The fact that the majority has more members than the minority is what makes it the majority in the first place. The only way to level the playing field between the majority and minority parties inside the Senate is to give the latter a veto over when the former acts. Significantly, this is precisely how most scholars understand the filibuster to operate.

However, the filibuster is not a veto. For that reason, it can never level the playing field between the majority and minority sides in a legislative debate. Instead, it grants a senator (or senators) the opportunity to speak for as long as he or she is able. Using it to obstruct the majority on a systematic basis requires senators in the minority to expend considerable effort to succeed. As such, the filibuster cannot cause gridlock in any debate of reasonable length because no two sides in it are evenly matched. The willingness of senators on both sides to act inevitably differs. One group of senators must always prevail at the conclusion of a debate. Whichever side that does is, by definition, the side with more members.  In situations where the minority prevails, its members successfully altered the terms of the debate such that a majority of senators were unwilling to expend the effort required to prevail in it. In other words, the minority deprived the majority of a majority of the Senate’s members.

Of course, a senator may temporarily delay his or her colleagues from voting by speaking on the floor. However, a senator cannot prevent them from voting in perpetuity, strictly speaking, because he or she cannot talk indefinitely. This is because of the physical and opportunity costs filibustering senators must bear, as well as the procedural limitations in the Senate’s existing rules and practices (e.g., Rule XIX). When a senator is no longer able to speak, he or she has no choice but to yield the floor. At that point, the Senate votes on the underlying question unless another senator seeks recognition and then speaks for as long as he or she is able. While the length of the delay in the Senate’s business is proportional to the number of senators who participate in a filibuster, there is no point at which it gets delayed indefinitely.  This is because individual senators can only speak for a finite period.

Given this, gridlock, properly understood, only arises in those situations in which both majority- and minority-party senators are unwilling to expend the effort required for their side to prevail. In such cases, neither party acts to achieve its goals.

Gridlock in such instances is therefore caused by inaction, not action. Amidst such inaction, it is misleading to suggest that a minority acted in ways that prevented the majority from acting. Instead, both the minority and the majority refrained from acting. In all other situations, the actions of senators on one side or the other lead to definitive outcomes.

When gridlock is understood in this way, it is apparent why neither ideological polarization nor partisan competition can be its cause. Both forces induce senators to act. For that reason, they are theoretically incompatible with a state of persistent inaction.