Thursday, October 3, 2013

Don't Leave Dangerous Toys Out in Plain Sight

What House Republicans are doing right now with regards to the Affordable Care Act, the shutdown, and the possibility of a US debt default is really quite novel and dramatic. But it is not coming completely out of the blue. It is part of an ongoing trend of minority parties seeking unorthodox tools to slow or reverse policy change.

Note what else has happened just in the past few years:

  • State legislative recalls are on the rise. There have been 38 state legislative recall attempts in U.S. history. 17 of those -- nearly half -- have been since 2010.
  • The filibuster is on the rise. Once a rare tool, it is now invoked on virtually every piece of legislation in the U.S. Senate. The filibuster has become more common since the mid-90s, but its use since 2009 has skyrocketed.
  • Republicans threatened a shutdown and a debt default just two years ago.

These are the tools of a frustrated minority party in an era of polarized parties. When a majority party is advancing an agenda that the minority party finds unacceptable (as is almost inevitable when the parties are so ideologically distinct from each other), the normal methods of disagreement will begin to seem insufficient.

What are the normal methods? Basically, you vote against bills you don't like and propose alternate bills that you do like. If you're a large minority party, maybe you can cajole a few fence-sitters in the majority and win on a few votes. You can try to move public opinion to your side. You can do some log-rolling and horse-trading to win once in a while. If you get tired of losing on most votes, you organize better campaigns and recruit better candidates to try to win a majority in the next election.

These tactics were pretty much okay for House Republicans for the four decades they held minority status from the mid-50s to the mid-90s. They didn't win on party-line votes, but that wasn't the worst thing in the world, since a) there were far fewer party-line votes back then, and b) the policy consequences of losing were far less dire, since the ideological distance between the parties was much smaller.

It's a different story today. If you (or your supporters) fervently believe that the passage of the other party's agenda is not only bad but outright un-American, a betrayal of our most sacred principles, the love-child of Satan and Eva Braun... then how can you accept a loss? How do you not use every tool at your disposal, even ones that your more senior colleagues find distasteful or even dangerous? It's not enough to say, "Hey, we tried to stop ObamaCare, but the other side just had more votes." If the Affordable Care Act really is the Death of America, and orthodox methods to stop it have failed, then why would you not use unorthodox methods, even ones that might cause harm to America? Harm is better than death, right?

Now, I should mention that all this tactical innovation isn't just going on in one party. The bulk of recent recalls, for example, were perpetrated by Democratic-leaning activists against Republican officeholders in Wisconsin. But I would also say that the externalities imposed by excessive recalls pale to those imposed by shuttering the federal government or defaulting on its debts, and there's only one party using those tactics today.

At any rate, as long as tools like this are lying around and can be used to either delay or roll back the majority's policy accomplishments, they'll eventually be employed when the minority party grows desperate enough. The solution, then, is either to make the political system less partisan -- something that countless reformers have tried and failed to do -- or take away the dangerous toys. We don't have to have the filibuster, the recall, or a separate vote to raise the debt ceiling to pay for things Congress has already voted to pay for. None of these things were written into the US Constitution, no less the Bible. If we don't like the way they're being used, we can choose to abolish them.


  1. It is very hard to qualify a recall for the ballot in Wisconsin. They are proposed constantly and they almost always fail, because most people agree that they should only be used in extreme circumstances, so they don't get the signatures they need.

    And the recall is, in fact, written into the Wisconsin constitution.

    1. All true, Detective Freamon. And Wisconsin's method for amending its constitution is, I believe, more challenging than most. But the recall could still be amended away, more easily in other states.

  2. This may be my partisan blinders, but I still see one party at the root of all this. The recalls in Wisconsin were undertaken because the GOP had really gone well past normal policy disagreements and into the realm of policies that are fundamentally hostile to the constituents of the other party. Democrats might want to regulate businesses, or tax the rich, or make abortion easier, but they don't want absolutist positions on these things.

    'I realize that this could easily come from partisan bias. But it could also be a truthful observation....

  3. "What are the normal methods?"

    I think that Seth omits the most important of the normal methods. When you lose elections over and over, you recalibrate your party's policy stances towards the middle until you get a majority coalition. In a case like the U.S. federal government, where the divide between Republicans and Democrats under the current electoral system is thin enough to produce split control of Congress, this needn't be a very radical tweak. But, rather than moderate just a bit, the GOP has moved in the other direction with predictable results. A failure to exercise this tool is the most notable of the recent rise in extreme political tactics.

    I wouldn't be surprised to see the Courts strike down the debt ceiling as unconstitutional (or simply invalid) and take that dangerous toy off the table on the grounds that later enacted appropriations legislation is irreconcilable with the earlier enacted debt ceiling and so the latter implicitly repeals the former (or alternately, that debt ceiling legislation is unconstitutional because it binds a future Congress or because it has the effect of repealing legislation previously enacted without the passage of both houses of Congress and Presidential approval as required by the constitution).

    When push comes to shove, I think that the Courts would honor a "nuclear option" majority repeal of the filibuster in the Senate without the two-thirds majority required for a rule change as well.

    So removing the dangerous toys does seem like a viable way for the nation to avoid a constitutional crisis which the GOP seems to be trying to force. Now, there are still choke points that are not so easily removed from the sand box (like failure to pass a continuing resolution to get what one wants, which is the tactic, after all, that gave rise to modern parliamentary democracy in both England and France). But, as long as voters continue the trend of punishing parties that resort to that tactic, it won't be used very often.

  4. It seems to me to be a mistake to blame this on the "parties" because that term abstracts who is actually doing what and severs accountability. To understand what is going on we must look at how the representatives in Congress are being elected. We know that it is events in the invisible primary that actually determine who is nominated, and when those people are elected to office they are accountable to those who got them nominated--various special interest groups.

    I'm a bit weak on my history, but I believe that previously to 1970 (and as you go further back in time--to the 1880s at its peak) it was patronage that the groups who did the nominating wanted, so there were fewer intense battles over policy. Since the 1970s the new array of groups that make up the parties increasingly represent groups of intense policy demanders (usually businesses and their policy opponents like labor unions), and they demand no compromise on the policies that directly affect them from the legislators they hire. Thus those legislators readily use all the dangerous toys at their disposal.

    To say that "Republicans" want this or "Democrats" are doing that is like telling a lie. They are only representatives, and they represent the special interests who got them nominated and elected. It is those interests who are the true actors and the problem is that they are in control rather than the general public. Of course this is a more complicated subject than I make it out to be.