By Thomas Nussbaum and Chris Micheli
Gridlock and compromise are inherent aspects of any lawmaking process and the California Legislature is no exception. Simplistically speaking, gridlock occurs when there is an unwillingness or inability to come together to resolve differences; while compromise occurs when there is a willingness or ability to come together and resolve differences. Beyond this simplistic formulation are the real questions: What causes gridlock in the legislative process? Has it been getting worse over time? And, what can be done to lessen the conditions that promote gridlock and increase the conditions that promote compromise?
To best address these important questions we should consider both philosophical and historical perspectives. Philosophically, when we examine legislative processes, we should recognize that all the relevant political and policy actors in the policymaking process have particular interests or some sort of predisposition going into the process. The interests and predispositions of these actors—political parties, business interests, labor interests, environmental interests, and even elected officials themselves—are seldom in alignment. Instead, these actors are primarily intent on furthering their own particular interests, rather than on considering and weighing the interests of all the parties affected by the public policy under debate.
As a result, the motives and behaviors of these legislative and political actors essentially dictate the approach that has long been used for policymaking, which is opposing sides clashing in a contest of wills over a public policy that promotes and protects the interests of those within their own alliance and operates against the interests of those outside their alliance. The reality of these alliances is confirmed when we examine data on which interest groups tend to fund Democratic or Republican candidates.
For instance, the Republicans tend to team up with and receive money from interest groups that protect business interests, resist government regulation, and want to reduce the size of government. The Democrats tend to team up with and receive money from labor unions, environmental groups, and consumer attorneys.
Under this usual approach, policymakers usually work within the parameters of political party philosophy to build alliances with selected colleagues, selected interest groups, selected government agencies, and others. These efforts usually produce a policy that promotes and protects the interests (and/or positions) of those within the alliance, while usually working to the detriment of those outside the alliance. There is collaboration within the alliance and competition outside of it.
The problem is that this usual approach all-too-often leads to no results, questionable results or contested results. The political parties fight and legislation never passes; or, the parties fight and the resulting legislation does little to advance a solution or has significant flaws; or, the parties fight and the losing parties continue to attack, undermine and attempt to overturn the resulting legislation.
Even worse, this usual approach becomes self-reinforcing as its various negative aspects feed upon one another. In other words, it creates a policymaking process characterized by “we versus they” where one side is in the right and the other side is in the wrong. This approach feeds the negative advertising that has become the hallmark of today’s political campaigns. This, in turn, helps create a public that is divided, cynical and mistrustful about the political and lawmaking processes.
While gridlock is caused by the way we have traditionally practiced policymaking, it is also the result of vote requirements. Most notably, California has many types of bills that require a two-thirds vote of the Legislature, including: tax increases, appropriations, proposing changes to the State Constitution, urgency measures, and, until a few years ago, the State Budget. The higher vote threshold is often difficult to achieve, as just over one-third of the members of a house can block the will of a substantial majority.
Historically, then, has gridlock been with us all the time; or, has it been getting worse in recent years? Over time, the extent of gridlock appears to ebb and flow, depending on both external events and conditions within the policymaking process. Notably, a major crisis or a tragedy can prompt the Legislature to take bold action when gridlock might otherwise prevail. In the absence of a crisis, however, efforts to compromise usually result in incremental change.
Under normal circumstances, the domination of political parties and interest groups make compromise too difficult to achieve when it comes to high-profile, controversial legislation. And, every two years, election year politics aimed at creating stark differences between the parties make compromise even more difficult.
So, just what are the conditions that sometimes enable us to break the usual gridlock and enact bold policies? While the answer to this question is elusive and somewhat speculative, we believe history reveals at least three critical conditions must occur: committed and capable leaders who want to do things differently; a change in mindset and the process in the way proposals are put together; and, a focus on the long-term best interests of the people and the State.
In terms of leadership, it is not enough for the Governor to commit to doing things differently—the majority and minority legislative party leaders must commit as well. In 2007, Governor Schwarzenegger famously called for an era of “postpartisanship” saying, “Postpartisanship is not simply Republicans and Democrats each bringing their proposals to the table and working out differences. It is Republicans and Democrats actively giving birth to new ideas together. . .” Despite the Governor’s call, postpartisanship did not yield breakthroughs on major legislation.
While gridlock continues on many policy issues—including tax increases, tax relief, overall spending levels, the minimum wage, and gun control—the Governor and legislative leaders reached major agreement in an unprecedented number of areas. So what did Governor Brown and the legislative leaders do differently?
Instead of exclusively working separately within the confines of political party and interest group alliances, the Governor and legislative leaders took what we call the “alternative approach.” This approach involves joint meetings and dialogue that focus on identifying and validating the underlying legitimate interests of each side. Rather than negotiating over narrow positions that have long polarized the debate, the Governor and legislative leaders tried to agree on common interests and ways of addressing each other’s interests. Despite major policy differences, the Governor and the legislative leaders worked together in a process that was dominated by collaboration, cooperation and efforts to secure agreement, or at least acceptance or tolerance, by all of the parties.
We believe elected officials have the responsibility to weigh all of the various and competing interests and integrate them into good public policy. We acknowledge, however, that their inclination and ability to do so is limited by the propensity to favor the philosophy and interests of their own political party and the interests of the groups with whom they interrelate and receive political and financial support. These realities have enormous implications for legislation at the State Capitol and often lead to gridlock and the inability or unwillingness to address significant policy issues. Breaking out of these conditions requires the commitment and active participation of the Governor and all legislative leaders; no one can do it alone.
The alternative method of compromise is an integration of legitimate interests of a broad variety of parties into a coherent and durable policy that serves the broader public needs. This is policy that goes beyond an agreement among those with power and influence on what they will allow or tolerate being done in the legislative process. Instead, it is policy that addresses interests of all or most parties affected by the policy, whether or not they have power or influence in the process.
We also believe that this alternative method of compromise, accompanied by the use of a “win/win” negotiation process, often leads to more durable public policy determinations. Parties who are excluded from negotiations, or who are ignored in the process of negotiations, usually do not just stop fighting and accept the result. Instead, it is frequently the case that losing parties and interest groups continue to criticize and undermine the winning parties, often looking for ways to undo or limit the policy that has been forced upon them.
Thomas Nussbaum is the former Chancellor of the California Community Colleges. Chris Micheli is a lobbyist with Aprea & Micheli, Inc. Both are Adjunct Professors of Law at McGeorge School of Law.