On "The Spirit of Compromise"

Sandy Levinson

In my interview with Scott Horton, I noted that I had not yet read Amy Gutmann’s and Dennis Thompson’s new book The Spirit of Compromise: Why Governing Demands It and Campaigning Undermines It (Princeton University Press, 2012).  What I said in particular was

I haven’t yet read the Gutmann and Thompson book,. but I’m not sure, at the end of the day, that one can make very useful general arguments about compromise. All of us, presumably, recognize that there are occasions for drawing lines in the sand, even as we also must, unless we’re truly fanatics, recognize that politics requires a willingness to settle for significantly less than we might wish, not least in order to preserve social peace.

I have now read the book, and I would have answered the question differently, for one of the striking things about their book, written, of course, by two world-class political theorists, is the degree to which they seem to agree that it is difficult, perhaps impossible, to make “general arguments about compromise” in the sense of providing algorithms for when one should or should not compromise. Indeed, one of their major contributions, which has important ramifications for jurisprudence as well as politics, is a critique of theorists like Ronald Dworkin, who proffers a notion of “integrity” that depends on a strong notion of philosophic coherence—and a concomitant rejection of what he disdainfully calls “checkerboard compromises.”  (Indeed, one reason Dworkin basically disdains legislative decisionmaking and prefers a strong judiciary, identified by him as "the forum of principle," is that it is not subject to the same pressures to engage in "unprincipled," phillsophically incoherent, compromises.  “Integrity,” for Dworkin, rests on an assumption that American society (at least) is founded on a sufficiently “common ground” that all legislation can ultimately be tested against the degree to which it rests on this “common ground.” Guttmann and Thompson, correctly, I believe, describe us as a more ideologically divided society. They therefore argue in behalf of a notion of “classic compromise [that] depends on the willingness of all sides to sacrifice something to achieve a common good that improves on the status quo when common ground does not exist or cannot be found” (p. 202). One of their major foci is the Tax Reform Act of 1986, which, they argue, “as a whole was inconsistent with any single set of principles,” an attribute that in fact is “a sign of success” as a compromise (103).  "Incoherence" is therefore not necessarily the worst thing that can be said about a piece of important legislation.  The more important question is whether, all things considered, we are, as a society, better off with it, as against maintaining the status quo.

The book is quite short and easily readable. Indeed, I wish it were longer, for I would have liked to read their analyses of some other class “compromises” in Congress (their major subject), including, for example, the Missouri Compromise or the Compromise of 1850 (which William Freehling would rename the “Armistice of 1850,” it is surely not because either achieved any kind of common understanding of the goodness or badness or slavery, but, instead, adopted a true “checkerboard” that made slavery legal in some territories and illegal in others. They seem to endorse the Compromise of 1850 on the grounds that it "brought ten years of relative peace, and more important, bought time for the North to gain population and industrial strength.  As a result, the government that Lincoln eventually led had the resources necessary to save the union" (p. 130".  This rests not only on debatable normative judgments, but also, and perhaps more imporantly, on empirical debates as well.  Paul Finkelman, for example, has recently argued, in a response in the Pepperdine Law Review to my own lecture on compromise, that the South would have been easier to defeat in 1850 than it turned out to be in 1861-65.  If we agree with Finkelman, does that offer independent grounds to reject the Compromise, on top, for example, of its inclusion of an even more dreadful Fugitive Slave Law?

It is, I think, telling that Dworkin has, with the exception of a never-reprinted book review in the Times Literary Supplement of Robert Cover’s Justice Accused, never truly addressed the issue of slavery. Avishai Margalit, an Israeli philosopher whose work is of interest both to me and to Gutmann and Thompson, distinguishes between anguishing but acceptable compromises, and what he calls “rotten” compromises, such as those involving slavery, that are presumptively unacceptable, unless the alternative is truly the equivalent of the heavens falling. I am inclined to be a neo-Garrisonian who therefore describes the 1787 Constitution as a “covenant with death and an agreement with hell.” But, perhaps, there are occasions to make “pacts with the devil,” if one believes, for example, that it would have been catastrophic not to achieve some kind of (provisional) constitutional settlement in 1787 and that any such settlement required such a pact. The obvious question, then, is whether the same justifications work not only in 1820 and 1850, but also in 1860, when Lincoln could presumably have averted the war (and 750,000 deaths) had he acquiesced to allowing slavery into the territories (since he emphasized that he had no wish to touch slavery in the states where it was already legal).

In any event, Gutmann and Thompson argue both that actual governance requires what they call a “mindset” disposed toward compromises and that political campaigning, especially at present, rewards a very different mindset that stands too much on rigid principle and therefore disdains compromise. I think this is an important insight. One possibility is trying to change the mindsets, though they agree that democratic politics in fact depends on an ideal mixture of both dispositions. It is therefore a question of what I’m often tempted to call, in every class that I teach, “Goldilocks-calibration” of trying to find the “just right” mixture. They also talk about some institutional changes that might help retilt the current distribution of mindsets. For example, one might require more open primaries (in which all citizens, and not only “members” of a given party, could vote. Or one might lengthen the terms of office of members of the House in order to weaken, at least a bit, the costs of what has become the “permanent campaign.” They make an extremely important point, which I wish that Anthony Kennedy especially would read, that the real “corruption” of money in politics is precisely that members of Congress must not only spend an inordinate time raising money, but also that it is easier to raise money if one presents oneself as “tenaciously” committed to given views and that one will never compromise those views with the demonized enemies on “the other side.” So we have managed to construct a distinctly “part-time legislature,” in the sense of time allocated to actual legislative responsibilities, composed of people who increasingly have every incentive to resist the very possibility of compromise. This is exacerbated by the fact that former Speaker Newt Gingrich basically created the Tuesday-Thursday House of Representatives that, among other things, means that legislators no long actually live in DC and, therefore, that they ever more rarely actually socialize with anyone who thinks at all differently from the way they do.

If I have a criticism of the book, it is that it isn’t radical enough in its institutional analysis. They conclude their penultimate chapter by quoting the Beatles: “You tell me it’s the institution. Well, you know. You’d better free your mind instead” (p. 203). This fits, of course, with their emphasis on “mindsets.” I don’t deny the importance of mindsets, but I think that mindsets are inevitably responses to institutional structures. They are obviously aware of this; it’s simply that I wish they had spent more time on the institutional structures that are constitutionally embedded. Consider, for example, Mitch McConnell’s notorious rejection of any collaboration with Barack Obama because of his admitted near-obsession with making Obama a one-term president. With regard to the actualities of governing America between 2009-2013, this is simply awful, for all of the reasons well delineated by Gutmann and Thompson. Yet McConnell recognizes the importance of presidential elections, not least because of their true “winner-take-all” aspect, by which the winner gets to appoint basically all high-level members of the Executive Branch. And I believe McConnell correctly believes that Ted Kennedy elected George W. Bush in 2004 because of Kennedy’s willingness to compromise with Bush on No Child Left Behind and then the prescription drug bill. “Compromises” between Congress and a President will almost always redound in the President’s favor, and why would a member of the opposition party wish to enhance a first-term President’s election prospects? So, for me, addressing the problems they (and Thomas Mann and Norman Ornstein) identify as contributing to the dysfunctionality and pathology of our political system requires at least bringing up the possibility that we are ill served by a “separation of powers” system operating under an ever sharper “separation of parties” (to pick up on an analysis identified with Rick Pildes and Daryl (no relation) Levinson. Perhaps we really do need to move toward a parliamentary system. Or, as Jacob Gerson has suggested, perhaps we need to “unbundle” the executive branch and mimic, to at least some degree, what commonly happens in multi-party parliamentary systems, where portfolios within the government are held by members of a number of different parties. Or, as I suggested in my NYTimes op-ed, we could limit the present gridlock either by allowing presidents to appoint, say, 10 senators and 50 representatives, upon election, or eliminating the presidential veto (almost) entirely (by, for example, limiting vetoes to legislation that the President believes, with an opinion from the OLC backing him/her up, that the legislation is unconstitutional).
Posted 4:35 PM by Sandy Levinson [link]