Navigating National Gridlock

By

Jeff Simering, Director of Legislation

The short-term extension of federal agency funding and federal borrowing authority into early December merely allows for the continuation of the legislative gridlock plaguing the federal government. The inability to pass traditional legislation effectively shifts the bulk of policy responsibilities to address new developments and challenges to the President and the executive branch. 

The dysfunction within the constitutional separation of powers has grown over the past few decades and threatens the foundation of essential governmental functions. Partisan political positioning jeopardizes the capacity to pay federal debt obligations, keep the federal government in operation, and address critical national needs.

Demands for action from polarized political constituencies have overwhelmed the nation’s system of check and balances. The traditional legislative processes, which rely on some degree of comity and compromise, are frequently paralyzed. To deliver on campaign promises, presidents must search for creative ways to implement their policy priorities with new, novel, or even tortured interpretations of current law. In response, federal agencies often proceed with policies justified by questionable readings of the law. And the courts increasingly are asked to determine whether legitimate federal executive authority has been exceeded. 

During the pandemic, the expansion of Executive Orders and emergency rules has prompted further federal agency actions. Similarly, state officials, government agencies, and legislatures often have responded in conflicting ways to pandemic directives and challenges. As the most prevalent and visible community institution, public schools have become the focal point of divergent pandemic-related public opinion. Day-to-day school operations have never been more directly affected by ever-changing directives of federal and state governments.

Unfortunately, there is no end in sight. Not only is gridlock fostered by intransigence between congressional Republicans and Democrats, but also in fundamental disagreements among some moderate and progressive Democrats -- whose party controls both chambers of Congress. Nonetheless, majority party control of Congress, as well as the presidency, does not ensure enactment of preferred policy priorities, since only budget reconciliation legislation and certain agency and judicial confirmations can be passed with a simple majority vote. A super majority vote in the Senate (due to filibuster rules) is required for most major federal legislation, thereby necessitating some degree of bipartisan support. Annual appropriations for federal agency operations, paying the bills of the federal government, traditional defense and domestic legislation, and even assistance for emergencies are all measures subject to Senate filibuster.

The prospects for significant legislative initiatives that require a super majority/bipartisan vote are minimal between now and the 2022 mid-term elections. Therefore, the fate of the trillion-plus Bipartisan Infrastructure and the Budget Reconciliation bills (including the school construction and other social program initiatives in the later bill) takes on greater importance as further Washington gridlock under traditional legislative procedures can be expected in the foreseeable future.