Law, Politics

Negotiation Theory Argues for Constitutional Hardball Against Trump

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In a 2004 article, the constitutional law scholar Mark Tushnet described the rise of what he called “constitutional hardball.” The article draws attention to a phenomenon that has become even more prominent in the United States over the ensuing thirteen years: the use of “political claims and practices … that are … within the bounds of existing constitutional doctrine” but that nevertheless conflict with prior assumptions about how things are supposed to work–the assumptions that “go without saying” in a working system of constitutional government.

A historical example would be Roosevelt’s court-packing plan. Already in 2004, Tushnet described a number of more recent examples of constitutional hardball by both Democrats and Republicans, but primarily by the latter–the Democratic filibuster against Bush’s judicial nominees in 2002-2003 and the Republican response, moves in Colorado and Texas to revisit districting decisions after the 2000 census, and the impeachment of President Clinton.

Many Republicans would argue that President Obama engaged in constitutional hardball by circumventing Congress through executive actions. Even if this is granted for the sake of argument, it would be hard to deny that the radicalized Republican Party of recent years has engaged in an escalation of constitutional hardball with no modern precedent. These hardball tactics include the transformation of the Senate filibuster into a hurdle for routine legislation, the Republican decision to hold hostage the nation’s credit by threatening to default on the debt, the unprecedented refusal to hold a vote on Merrick Garland’s nomination to the Supreme Court, and the North Carolina legislature’s recent attempt to rewrite the powers of their Governor after a Democrat won the office. The list could go on.

The most important example, I would argue, was the general Republican refusal to engage in ordinary legislative negotiation with Obama throughout the course of his presidency. As Mitch McConnell famously stated in 2010: “The single most important thing we want to achieve is for President Obama to be a one-term president.” Republicans carried out this strategy for the next six years by vocally opposing virtually every initiative supported by the President, even those policies that Republicans had supported before Obama and now support again under President Trump, such as infrastructure investments.

McConnell understood a central fact of contemporary American politics, one backed by social science studies and now confirmed by the success of McConnell’s strategy. This fact is arguably the central fact of contemporary American politics, along with the phenomenon of partisan polarization grounded in antipathy for the opponent’s party. As Jonathan Chait has repeatedly, persuasively reminded us:

The truth is that voters pay little attention to legislative details, or even to Congress at all. They make decisions on the basis of how they feel about the president, not how they feel about Congress. And a major factor in their evaluation of the president is the presence or absence of partisan conflict. If a president has support from the opposition party, it tells voters he’s doing well, and they then choose to reward the president’s party down-ballot.

In fact, voters “are so single-minded in their focus on the president that voters actually base their vote for state legislature on their assessment of the president.”

Welcome or not, this is a fact of contemporary American political life. Voters will reward Democrats in 2018 and 2020 for opposing everything that Trump and the Republican Party attempt to do between now and then–and punish Democrats for any perceived Republican legislative or executive victories. Despite what voters sometimes say in surveys, they will not reward Democrats for cooperating to get things done. No one is actually paying attention to that.

In addition, there are only so many seats in the Senate and the House: a win for Republicans is a loss for Democrats and vice versa. Partisan representation is a zero-sum game, with no possibilities for mutual advantage through negotiation.

As a result, Democrats have an obvious self-interest in opposing congressional Republicans and Trump on every possible front, including the forms of constitutional hardball that Republicans used throughout the Obama presidency. The most obvious and important example is Democratic refusal to vote for Republican legislation, including legislation that Democrats might support based on its substance alone.

Another example would be Trump’s nominee to fill the vacant seat on the Supreme Court. Democrats have an interest in obstructing the nominating process through every means possible, using whatever flimsy justification comes to mind. The justification would certainly be no less flimsy than the one used by Republicans to obstruct Garland’s nomination.

But sensitive, fair-minded, principled Democrats may hesitate to embrace such a flatly oppositional approach–as Senator Schumer and no doubt many other moderate Democrats appear, very much, to be hesitating. If Democrats begin to play routine constitutional hardball just like the radicalized contemporary GOP, descending to their low game rather than rising above the fray, what will become of our constitutional system?

Once the unwritten norms of fair play and settled tradition are routinely, unapologetically violated, will the Constitution not cease to “make politics possible,” leading to a serious constitutional crisis?

The trouble with this reasoning, I would argue, is that it fails to take seriously the way that negotiation works. Congressional Democrats and Republicans can be seen as engaged in a continuous, longstanding negotiation over what they will support and what they will oppose. The structure of the negotiation, under current conditions as described above, is in some ways similar to a “prisoner’s dilemma” game.

Party A will achieve the best outcome for itself if it obstructs all initiatives by Party B, including by playing constitutional hardball, and this will give Party B the worst outcome. But the best collective outcome for Party A and Party B, or rather for the country that includes both of their supporters, would be if they worked together, respected settled constitutional norms, and did not play constitutional hardball at all. Then there would be less resentment and hostility among the nation’s citizens of both parties, any outcomes would have a greater legitimacy and would likely be more stable and acceptable to the public as a whole, and there would be more room for realizing those policies that are in fact substantively supported by both parties. For a variety of reasons, the country as a whole is better off if it is possible for Party A and Party B to engage in ordinary politics rather than high-stakes hostage-taking and other forms of constitutional hardball. This is one reason we have constitutions in the first place–to make ordinary politics possible, to avoid constant, wasteful fighting over the rules of the game and destructive attacks on legitimacy.


Congressional Republicans have now spent the last eight years, or longer, in a state of defection from the game of ordinary politics. They have refused to negotiate. They have obstructed all Democratic efforts. As predicted by the structure of the game described above, the strategy has served them very well: they achieved a far better outcome than they would have achieved if they had cooperated with Democrats, and Democrats achieved a far worse outcome.

How should congressional Democrats respond? What should they do today?

Game theorists have studied which strategies are most and least successful in a multiple-iteration prisoner’s dilemma game. One strategy that is not successful at all–and thus leaves the population of the game as a whole collectively worse off–is to cooperate unconditionally, always, regardless of what the other side does. This is what moderate Democrats would be doing if they simply ignored Republicans’ eight years of obstruction and constitutional hardball, and continued to play a game of ordinary politics and cooperative democratic negotiation as though nothing had happened. Republicans would have no incentive to change their behavior going forward.

One of the most successful general strategies, by contrast, is “tit for tat.” As Steven Pinker summarizes the strategy: “cooperate on the first move, … cooperate if your partner cooperates, but defect if he defects.” In other words, retaliate if the other side refuses to cooperate; but forgive if the other side changes its ways.

Game theory suggests this is the strategy that congressional Democrats should employ. They should retaliate against Republican constitutional hardball by playing constitutional hardball of their own. They should oppose all Republican initiatives just as the Republicans, following McConnell’s strategy, opposed all Democratic initiatives. If Republicans or Trump happen to propose something with which Democrats substantively agree, Democrats should play hardball by conditioning their support on Trump abiding by some democratic norm that he has already violated and will never abide–such as releasing his tax returns and any other information necessary to determine the nature of his conflicts of interest.

How will Democrats know when to end the retaliation, when to forgive?

There are a number of signals that Republicans would be able to offer–clear indications that they are sacrificing a desired, high-stakes goal in the interest of future cooperation and the preservation of the constitutional system of ordinary politics. In response, Democrats would be able to send similar signals. Gradually, as in the deescalation of a threatened military conflict, the two sides might return to ordinary politics and leave the days of constitutional hardball behind them.

Of course, it does not seem likely that the contemporary radicalized Republican party would be willing to make such sacrifices, send such signals, or deescalate. In the end, the only way to move beyond the pattern of escalating constitutional hardball may be for congressional Republicans and President Trump to engineer a catastrophe of such proportions that Democrats achieve a lasting political dominance and bring to an end the Reagan Era, leaving Republicans as a minority party with an interest in negotiating simply so that it will have some voice (rather than none) in the workings of the federal government.

But the likelihood that Republicans will not cease playing constitutional hardball any time soon is irrelevant to which legislative strategy congressional Democrats should choose today. The important point is that “tit for tat” is a principled, fair strategy, and one that will protect the American constitutional order far more than simply cooperating with Republicans without retaliation against their constitutional hardball.

All of this would be the case even if an ordinary, radical Republican were President, such as Mike Pence. The fact that a dangerous, unhinged, unfit demagogue is President makes it all the more vital to ensure that the public does not perceive his presidency as a successful one.




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