Currently, section 4 of the act singles out states based on a past history of abuses. The Supreme Court held Tuesday that the test needs to be focused on the present. "Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions," wrote Chief Justice John Roberts.
This shouldn't be a problem. The Voting Rights Act was overwhelmingly reauthorized in 2006. The law received 98 votes in the Senate and 390 in the House. Given those majorities, Congress should be able to easily and quickly come up with a fix.
But as my colleague Rachel Weiner reports, no one believes they will. “As long as Republicans have a majority in the House and Democrats don’t have 60 votes in the Senate, there will be no preclearance,” New York Sen. Chuck Schumer (D) said in a statement.
Schumer is technically wrong here: The law retains some preclearance through section three of the Voting Rights Act, which the court left untouched. But his broader point, that no reforms are likely to pass this Congress, stands. And absent reforms, the Voting Rights Act is gutted. That's Congress's fault, not the Supreme Court's.
President Obama's climate speech also was about the consequences of congressional failure.
"In my State of the Union address, I urged Congress to come up with a bipartisan, market-based solution to climate change," Obama said during a speech at Georgetown University. But Congress did nothing. And so now Obama is proposing to act on his own by using the Environmental Protection Agency's authority to by regulate power plants. "This is a challenge that does not pause for partisan gridlock," he said.
House Speaker John Boehner (R-Ohio) has already blasted Obama's plan as "insane." And, in theory, he has the power to stop it. Congress could simply take the EPA's authority to regulate greenhouse gases. But just as Congress is too gridlocked to act on climate change, it's also too gridlocked to stop Obama from acting on climate change.
Gridlock is, in many ways, a mistaken metaphor for what happens when Congress can't act. In gridlock, as any Beltway driver knows, nothing moves. But much happens amidst congressional gridlock. It just happens in other, often less accountable, branches of government.
The result is the Supreme Court rewrites laws Congress passed, like the Voting Rights Act. The regulatory apparatus decides how carbon will be regulated, an issue that Congress clearly has the power, under normal conditions, to decide. The Federal Reserve plays a more active role in managing the economy -- Chairman Ben Bernanke is, at this point, famous for begging Congress to do more with fiscal policy so he can do less with monetary policy. During periods of gridlock, Congress cedes power to other branches that would otherwise give it deference.
The problem with this approach to policy making is that only Congress is actually empowered to address these issues. The interventions of other branches and institutions are clumsy at best. The Supreme Court can invalidate section 4, but they can't -- or won't -- rewrite it. The EPA can regulate power plants but it can't put an economy-wide price on carbon, an alternative most economist consider far superior. The Federal Reserve can keep buying bonds, but it can't simply cut payroll taxes or build bridges, which would be more direct ways to lower unemployment.
Gridlock doesn't mean nothing moves. It means that American policy ends up taking some very unusual detours.