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Legal Commentary: Prawfs
By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
A modest proposal that is going to sound like a bit of a screed:
We need to stop, once and for all, talking about "bipartisanship." Drop the word and the concept from the political vocabulary. Stop treating it as something desirable or essential. And especially stop talking about it as intrinsically valuable as an end in itself (often more so than substantive governing). Like too many other terms used in modern politics ("judicial activism," any one?) bipartisanship has no substantive meaning, functioning instead as a pointless and distracting sound bite that the media likes to throw around, but that does nothing but confuse the conversation. Actually, the analogy works: If judicial activism is nothing more than a decision with which you disagree, then bipartisanship is what happens when the other party agrees and goes along with what you want to do.
For starters, the term effectively tags all policy disputes with the pejorative "partisan," suggesting petty disagreements. But the parties diverge on policy issues because each party is built around some governing philosophy; there is a reason someone becomes a member of one party or the other. When Democrats and Republicans disagree, it is not simply due to party affiliation simpliciter; it is because their beliefs and approaches to governing are different.
Giving everyone the benefit of the doubt, the entire House GOP caucus did not vote against the stimulus package simply because they are Republicans and the President and House majority are Democrats. They voted against it because they adhere to a set of economic principles and policies that are different than those of the President and the majority (in simplest terms, business and corporate tax cuts v. government deficit spending). The House GOP wanted to enact a stimulus package to revive the economy, but they wanted to enact one they believed would work--that is, one that followed their economic principles. Why should they be expected to vote for a policy that does not adhere to their principles?
At the same time, Obama did not fail to accept all the GOP requests (e.g., dropping the payroll tax credit for non-income-taxpayers) not because they came from Republicans, but because they ran contrary to the economic ideas he wished to implement. Why should the Democratic President and the Democratic majority draft a proposal that adheres to Republican principles?
Given this genuine divide, negotiations and compromise only go so far and it is foolish to demand otherwise. Obama and House Democrats removed some spending and added some tax cuts to the package during legislative bargaining. But it was not enough to garner any Republican support. Why? Because Republicans fundamentally disagree with the core, more-or-less Keynesian economic principles underlying the bulk of the Obama proposal. They wanted even more tax cuts and even less spending--in other words, they wanted a package that looked more like what would come from a president and House majority that shared GOP economic ideas and principles. Which, it seems to me, is perfectly fine. But this President and this House majority have their own principles, principles that won handily at the ballot box two months ago. They wanted a legislative package that adhered to their economic philosophy At some point, one set of ideas must prevail; typically, at least in a time of unified government, it will be those held by the legislative majority and the President. Which, again, is perfectly fine.
The problem is that we have fetishized bipartisanship into something more important than governing. Obama is going to get the public policy he wants and that he believes will successfully kick-start a sick economy. (And I hope it works, for a variety of reasons). But it is going to be seen (and reported in the media) as a "defeat" because he was not able to achieve the outcome in a "bipartisan" manner. At some level, of course, this is his fault by making it such a public priority to get the minority on board. The result is a game that ignores the really important point--enacting effective policy. All the talk instead focuses on the pointless, unnecessary process of seeking bipartisan approval and of "working together to help the American people." And the story after-the-fact is that Obama failed to do so.
The minority can (and I would suggest did here) take advantage of the bipartisanship fetish by demanding more and more concessions to try to get a bill that looks like what they would create in the majority. Failing that (because they never were going to get that), they can and did vote against the package, on legitimate policy grounds (as well, probably, as some political/electoral calculation). But the bipartisanship fetish means they can go on TV and wave the flag of bipartisanship to say "hey, we were willing to work with the President, but he refused to work with us, so we were forced to vote against it, but it was his fault." Again, of course, "working with us" seems to mean implementing more of our policy preferences and governing the way we want him to, even if it runs against the ideas he wants to pursue and that got him elected. Alternatively, Obama and the Democrats could do the same thing when the minority fails to join the compromise--take to the airwaves and accuse the minority of acting in a partisan way and being "obstructionist" and not working for the "best interest of the American people." Again ignoring that the departure is precisely over differences of views as to what is in the best interests of the American people.
Just stop wasting time and energy. George Bush had it right (a sentiment I rarely utter), at least where a president has strong legislative majorities that want to work with him. Govern the way you believe best and go for what you believe you have the political and popular support to pull off--do what you (and your legislative allies) believe is in the best interests of the public. But now own the policy--if it works you get the credit, if it fails you get the blame. And the other party (with its competing philosophy) eventually gets a crack at governing. Also, stop accusing the minority of being partisan (thus somehow in the wrong) when it disagrees with and does not support your policies. As for the minority party, offer your own proposals, explain why what you offer is better, and see if you can get the public to support you now (public opposition could slow down the President and his legislative majority--e.g.., social security privatization in 2005) and in the next election cycle. But do not complain that the majority failed to "reach out" or that the majority did something wrong by not adopting all your ideas and policies.
What this sounds like, of course, is a parliamentary system. The executive has a legislative majority that can largely do as it pleases until at some point the party wears out its welcome and is replaced in power. The minority, or opposition, party has been operating a "shadow" government and offering its own ideas (and challenging the majority's ideas) all along. And we expect the opposition party to, you know, oppose. There is no expectation, much less demand, for bipartisanship or the appearance of bipartisanship.
This is not to say that negotiation and compromise, including compromise across party lines, never should be part of the political equation. The president may be of a different party than the majority in one or both houses. The legislative majority may be much smaller. The president may have lost the support of even his own party in the legislature (what happened, up to a point, as to S-CHIP during the 110th Congress). And the Senate, with its supermajority requirements, is a different animal. The minority sometimes may decide it is to its benefit to come along.
But consensus across party lines and broad, multi-party legislative (as opposed to popular) support should not be treated or discussed as an end in itself. AWe all would be better off if we stop unthinkingly treating it as if it were.
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