Legal Commentary

As predicted in my anti-bipartisan screed, media and GOP sources are blaming Obama and the Democrats for the failure of bipartisanship that simply left House GOP no alternative but to vote unanimously against the stimulus bill and that, looking at Sen. Kyl's comments, may leave Senate GOPers no choice but to do the same next week. The substance of the comments is the same: Obama and congressional Dems are not acting in a bipartisan manner because all they do is listen to GOP ideas, allow votes on them, and accept some of them (but not all, because Dems fundamentally disagree with Republican economic theories), but they do not implement all (or even most) of what the GOP wants and instead go with the proposals that the Dems like. These criticisms of Obama fit very well with my earlier statement that bipartisanship is what happens when the other side agrees with everything I want to do.

On further thought, though, I believe we actually might be able to resurrect some notion of bipartisanship by tracking this issue onto the ancient divide between procedure and substance. What renders the debate over bipartisanship incoherent is the failure to distinguish procedural bipartisanship from substantive bipartisanship--betwen bipartisanship in the process of lawmaking and bipartisanship in policy outcomes. Procedural bipartisanship means both parties participated in an open process, had an opportunity to be heard, exchanged ideas, perhaps made some compromises on provisions, had good-faith discussions, allowed the minority to be heard, and allowed minority ideas to be raised and considered in the legislative process. I think we often do and should have procedural bipartisanship--and from everything I have read, we are having it on the stimulus package.

Substantive bipartisanship means the outcome is one that both parties support. We rarely have true substantive bipartisanship, at least outside of divided government. At some point there must be a vote and a decision. And if the majority is unwilling to adopt all of the minority's governing principles and ideas and vice versa, a "bipartisan" result is impossible or at least unlikely. Of course, if everyone agreed on the appropriate principles to apply and the appropriate policy measures to enact, they would not be members of different parties. So when I argued earlier that we should not care about bipartisanship, should stop talking about, and should stop trying to attain it, I had substantive bipartisanship in mind.

Unfortunately, we as a culture do not care about or speak in terms of process, only substance, so the yammering about bipartisanship will always be about substantive bipartisanship. Regardless of how open the process was and how willing Obama was to listen, in the end, because he pushed for and got a bill that adhered mostly to his Democratic principles and not to Republican principles (that, by definition, he does not accept), he did not act in a bipartisan fashion. But the expectation that he essentially should have governed like a Republican when he is a Democrat is precisely what makes substantive bipartisanship so ridiculous, meaningless, and ultimately distracting from the broader goal of enacting the best public policy.

It is this talk that must stop.