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?

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