Wednesday, July 20, 2011

Constitutional Hardball Revisited

I wrote yesterday about the idea of "Constitutional hardball" -- the idea that there's always a gap between the norms of politics and the literal rules, and that if one side attempts to exploit that gap for short-term gains, it tends to be destructive to the system. I blamed the Republicans -- I really associate it especially with Tom DeLay and (to some extent Newt Gingrich) -- for doing so in several instances over the last twenty years.

I'm going to expand on the idea at some length here; I'm going to start by considering some examples raised in responses to my post, and then discuss a little what I'm trying to get at that's a bit different from the regular flow of politics. I'll start with Ron Replogle's interesting post. I'm going to skip the interesting stuff, which has to do with politicians and ethics (c'mon, click through and read it) though, and focus on one bit:
Let's not get hung up on the issue of whether Bernstein’s memory, and therefore his sense of outrage, are selective. I’m sure Republicans would be happy to remind him of, say, Democrats’ unprecedented decision to start filibustering Circuit Court nominations just because the manifestly over-qualified Miguel Estrada would have made such an attractive Supreme Court nominee or Obama’s decision willfully to opt out of, and probably destroy, the system of public financing for presidential general elections just so he could exploit his monetary advantage over John McCain in the 2008 general election.
I disagree on both counts. Filibustering on routine measures began under Republicans in 1993, not Democrats during the George W. Bush years.  As it happened, Republicans were in the majority in the Senate from 1995-2000, and so filibustering took the form of burying nominees in committee, rather than demanding 60 votes on the Senate floor, but this was more of a case of mutual escalation (going back to Bork, and the Nixon nominees, and Abe Fortas); I think it's wrong to say that Democrats crossed some sort of important bright line in the Bush years. On the public finance opt-out, I just don't really see it as a norm violation; the option of opting out always existed, and the norm ever since 1976 has always been to exploit the rules whenever possible.

I'm open to "Democrats did it" examples, but I really don't think either qualifies.

On the other hand, Kevin Drum has a whole mess of alleged GOP examples, and I'm not really convinced with his, either. Newt's use of Special Orders? Innovative, yes. Norm-violating? Not really that I'm aware of. Leaving House votes open beyond the official expiration time? Republicans during the DeLay years certainly overdid it, but Democrats had done similar, though less extreme, things when they ran the House. He's right about the norm of Senators not campaigning against each other, although it's pretty trivial (and, for what it's worth, I'm aware of at least one example as early as 1988; for all I know this is a norm that has been violated on and off for years). I do think that Drum's example of judicial nomination shenanigans isn't trivial at all, but as I said above I think this is a case of both parties gradually breaking down norms, with overall responsibility murky.

On executive branch nominees, however, I do think -- despite the Democrats' responsibility for starting the ball rolling with the John Tower nomination in 1989 -- that Republican actions in the last few years are really norm-shattering and clearly qualify. It's one thing to go after individual nominees for whatever reasons; it's another to make normal policy deals in exchange for freeing a nominee; but what Tom Mann calls the new nullification, in which the minority party in the Senate attempts to stop an agency from functioning through the nomination process is something altogether different.

I did forget one other significant DeLay-era example, however, and it's an important one -- the threat of using the Florida legislature to overturn the results of the 2000 presidential election. I do not believe that any of the legal actions taken by either campaign or any of the courts, including the final SCOTUS decision, count. Taking the other side to court after an election didn't begin in 2000, nor was that year the first one to feature partisan decisions by judges or Justices. In my view, in the event, Bush stole the election fair-and-square (that is, I believe the evidence shows that Al Gore received more votes in Florida than George W. Bush, had the votes been counted properly under the relevant laws -- but the relevant laws also allow for legal action, and partisan decisions, even ones that are difficult to defend). However, the threatened intervention of the Florida legislature was entirely norm-shattering, and to me at least highly disturbing.

OK, those are the examples. Can I tease out a principle here? I guess I can better just work out some qualifications. To count, an action has to violate a clearly established norm. That's why I don't count Democratic filibusters of Bush-appointed judges (Mark Tushnet counts both the filibusters and, to a lesser extent, the GOP "nuclear option" threat), because I think that the norm against routine filibusters was shattered earlier, in 1993-1994. It must also be substantively important, generally dealing with large, "who governs" types of things. The other hallmark of the cases I'm including -- untimely redistricting, the changes in filibusters after the elections of Bill Clinton and Barack Obama, recall elections and impeachment without significant cause -- is that they are shifts from one set of neutral rules to another. Take redistricting: neither the old system of drawing new lines every ten years, or the DeLay system of drawing new lines whenever the majority feels like it, is inherently more fair or just. Neither is either system inherently better for the Republicans or the Democrats. What's problematic is only shifting the rules in midstream.

Again: all parties and politicians attempt to use innovation to gain advantage, and there's neither anything wrong or unusual about that -- as long as it's within the bounds of where innovation and fighting about the margins of the rules is clearly expected.

OK, that's the case I want to make, at least tentatively, for now. I'm not sure I have this quite right, so comments are very much welcome.


  1. "The other hallmark of the cases I'm including -- untimely redistricting, the changes in filibusters after the elections of Bill Clinton and Barack Obama, recall elections and impeachment without significant cause -- is that they are shifts from one set of neutral rules to another."

    I would argue that some of these-- routine filibusters and recalls/impeachments without real cause--are not at all neutral, but terribly bad ways to govern. Making the Senate a place where all government action dies without either 60 majority Senators or massive expenditures of political capital results in piles of non-top tier legislation, nominations, etc. being left by the wayside because the majority has to focus on the top-ticket items.

    Similarly, a norm that chief executives can be removed from office for being out of step with a legislative majority means importing a feature of parliamentary politics without the context in which that feature makes sense.

  2. While I agree with you, you also have to admit that the basic logic of the posts can be questioned by outsiders: "Only the other side does these things--those example of my side doing it aren't appropriate." I agree with you that the GOP has done more of this than the Dems and that those examples aren't good counterexamples, but it's easy to see how a person on the other side of the aisle might see disingenuity there.

    However, to build on this, what do we do with newer norms getting violated? So, I'm thinking here of redistricting: Ohio redistricted after EVERY election in the 1880s. The legislative majority consistently overreached and didn't protect their incumbents, but tried to expand their majorities. Thus, every election returned the out party to power and they went and promptly drew lines too aggressively. Texas (among other states) also had no compunctions about mid-decade line drawing until the redistricting revolution. Post-1960s, lines have to survive judicial scrutiny, so they aren't drawn as frequently. Is that because the norms have changed, or just the insertion of the judiciary into the process forcing a change in strategy? Or, take CA's redistricting history: new sets of lines in 1974 and 1984 due to pushback. Only in 1991 and 2001 did we get relatively uncontested lines out here, and 2001 is because they got the GOP to buy-in to the lines by drawing pro-incumbent lines. (1991 was contested, but the tech had gotten to the point where it was possible to draw nearly judge-proof lines). Now, in 2011, with a Citizens' Redistricting Commission, what do we get? Sour grapes from the GOP, and they're already prepping the signature drive (just waiting for final lines).

    Another example: WWI trench warfare. Did the lines not change much because a norm emerged against fighting each other, or because there was a true stalemate, making a fight pointless?

    Now, we could be informed observers, and know a norm when we see one. But, for these norms, is there a good way for us to know which are actually norms, and which are simple strategic choices to keep one's powder dry?

  3. Voting rights and the Gulf of Tomkin

  4. Slightly O/T, but the song "Where the Streets Have No Name" came on the radio today, which always reminds me of how horrendously inappropriate that song was at the first Super Bowl halftime post-9/11, an inappropriateness exceeded only perhaps by how little anyone cared. The fact that no one cared called to mind this thread, explanation follows.

    There are several reasons no one cared. One is that most of us think U2, or at least Bono, are reasonably decent chaps. If we don't like them personally, we mostly like their hooks. After that, there's the fact that many of us are slobbering drunk by halftime of the Super Bowl, or else we're in the garage smoking and arguing with our cousin.

    Then there's the part related to this thread: first, even if we are paying attention to the song, and noticing how terrible those lyrics are for that moment, we're likely to feel disengaged, since any offense is diffused over millions of other viewers.

    Next, any offense we might take is not our bailiwick. Sure, its a bit weird to sing along to the dust cloud disappearing without a trace or building and burning them down while the victims somberly scroll up behind Bono, but we don't have any ownership or involvement in that situation, so the likeable hook of the song, which feels deceptively personal, takes precedence over those awful lyrics, which we never notice or take responsibility for anyway.

    The Congress today seems much more populated by fringe characters than Congress of the past. This is partly a result of term limits, partly the rise of single-issue candidates, and also the ease of flying home on the weekends, keeping the 535 of them out of each others' faces. As a result, Congresspeople tend to be as fringe to the culture of Congress as we are to the stupid utterances of a rock star at a Super Bowl halftime show. Fringe congressman care about as much for 'norms' as we ambulatory hamburgers do for some Irish rock star turning our national agony into a really cool hook. It is a really cool hook, after all, isn't it?

    Finally, the reason its worse for the Republicans may have something to do with the Republican caucus, courtesy of Tea Partiers, being disproportionately more populated by outsiders, who tend to care less.

  5. I do not believe that any of the legal actions taken by either campaign or any of the courts, including the final SCOTUS decision, count. ...However, the threatened intervention of the Florida legislature was entirely norm-shattering, and to me at least highly disturbing.

    Yes, but bear in mind that the SCOTUS decision was premised -- as Justice Scalia helpfully explained in his order stopping the recount -- on the view that Americans have no right to vote for president, that it's really state legislatures that choose electors. The modern norm is that they defer to the voters in doing this, but both the FL legislature's threatened intervention and SCOTUS's actual intervention (in effect nullifyiing FL's statutory election scheme) was based on the same belief, i.e. that legislatures don't have to consult the voters at all.

    And, not to side with Scalia, but that belief at least still admits of a democratic mechanism of correction: If the voters of a state didn't like their state legislature's choice of presidential electors, they could elect a different legislature. In fact, the worst thing about Bush v. Gore may be that it short-circuited the FL legislature's threat. Basically, SCOTUS did the FL Republican majority's dirty work for it; if it had stayed out of the case and the recount had gone for Gore, the legislature would then have had to either bow to that outcome or carry out its threat and risk the political consequences. Either way, the people of FL would ultimately have been in charge, and that's what SCOTUS was apparently at pains to prevent.

    The big question about norms, to me, isn't when they were first violated but which ones are most damaging to the premise of rights-respecting democratic government. That premise is that it's important for all sides to keep the various mechanisms of government working well long-term, and that therefore your side will have to accept defeat some of the time. If we're going to catalog recent norm violations, one of the lists should be compiled in order of severity -- the level of danger that each violation poses to the premise and possible future of a political culture based on elections, access to information, the possibility of grievances being redressed, etc.

    Also, note to CSH: I don't think there are any term limits in Congress. IIRC, some states tried to enact these in the '90s, but the federal courts struck them down as unconstitutional.

  6. I'm not quite sure when "advise and consent" became "rewrite that consumer protection bill to make me happy" or "give me my pork or you can't have your judge." I don't mind the pushing of rules to the edge, but these seem like completely new standards unrelated to the proper role of the Senate.


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