Jennifer Phillips, 2L Note Candidate

Stalemate.

Gridlock.

Government shutdown.

Words like this are starting to seem like the norm in describing Congress’s efforts to pass legislation. Congress’s slow response to the Zika virus is just one example of Congressional behavior that has engendered criticism. The Zika virus has sparked numerous travel advisories, has infected thousands, and has been declared a public health emergency by the World Health Organization – yet Congress took 233 days took to secure funding to combat the virus.

Why the delay? Controversial measures added to the legislation by Republicans, a filibuster from the Democrats, and a seven-week summer break certainly contributed. And each party blamed the other for the delay.

Congress struggled to reach agreement on a 2017 federal budget, partly due to its squabbles over the Zika funding measures. The possibility of a federal government shutdown loomed as Congress worked to pass budgetary measures just days before the October 1 deadline. On September 28, 2016, Congress passed a continuing resolution that lasted until December 9, 2017, extending the deadline to agree on a full 2017 budget by a mere two months. On the night of December 9, the Congress passed another continuing resolution and set a new deadline of April 28, 2017.

Issues like Congress’s budgetary stalemates and struggles to pass vital legislation may be effects of today’s increasingly polarized political climate, as Professor Nolan McCarty asserts in his article published in Issue 1 of Volume 50 of the Indiana Law Review. Nolan McCarty, Polarization, Congressional Dysfunction, and Constitutional Change, 50 Ind. L. Rev. 223 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p223.pdf).

McCarty illustrates how Congress has become increasingly polarized since as early as the late 1970’s and suggests that the increase in polarization has contributed to Congressional dysfunction. Such dysfunction can be seen through Congress’s low legislative output, poor budgetary performance, and delay in affirming executive appointees. Political polarization, McCarty notes, is also related to the increased use of legislation-impeding mechanisms like filibusters and refusals to compromise.

Many people have proposed reforms to counter polarization, but such reforms have been met with little success. Suggesting that polarization is here to stay for now, McCarty explores the impact it has on the functioning of the legislative, executive, and judicial branches as a whole. At first glance, it seems like dysfunction of the legislative branch would lead to greater power for the other branches. Wouldn’t a Congress crippled by polarization lend more strength to the President and the courts? After all, a weak Congress means that Congress has less capacity to override Presidential vetoes or to counter Supreme Court interpretations of laws. On the other hand, polarization has affected the executive and judicial branches, too, and, according to McCarty, such polarization diminishes the power of the federal government overall.

McCarty’s article will enhance your perspective on the Congressional environment we see today and will give you an appreciation for the factors that have led up to its current state. As April 28, 2017 draws closer and the buzzword “government shutdown” again peppers the news, maybe we can both stop to think a little more deeply about the questions McCarty has invoked.