an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Republican majority in Congress cannot rule—or be
Last week, House Speaker John Boehner (R-OH) failed to pass
a fiscal cliff solution (“Plan B”) that was written by Republicans, for
Republicans, without a touch of contaminating input from Democrats in the
House, the Senate, or President Barack Obama.
As a result, Obama has no one from the Republican majority
in Congress to negotiate with.No
one—not Speaker Boehner, not House Majority Leader Eric Cantor (R-VA)—can
reliably commit the Republicans in Congress to anything.
Just two weeks ago, Speaker Boehner and President Obama were
on the cusp of a compromise agreement.Speaker Boehner offered flexibility on raising top rates and President
Obama in turn put Social Security reform on the table.
The gap was narrowing.Successful compromise was in their grasp.
Then Speaker Boehner realized he could not bring his Party
along to an agreement—any agreement.To
shield the Republicans from blame, he bolted the negotiations and focused on
getting an agreement only among Republicans: Plan B.
But last week, even that failed.The Republicans in Congress cannot agree with
themselves, much less compromise with Democrats.As a result, they cannot govern.Speaker Boehner admitted as much when he said,
“Now it is up to the President to work with Senator Reid on legislation to
avert the fiscal cliff.”
Of course, President Obama and Senate Majority Leader Harry
Reid (D-NV) cannot make laws by themselves.If Speaker Boehner cannot commit the Republicans to anything, it is not
just Congress that cannot govern.The
government cannot govern.
Politics is an unsightly game, and anyone who watches it
should be prepared to see common-sense notions of friendship, loyalty, and
patriotism distorted and abused.It is
not a game for naïf’s, and one might well wonder if a good person can also be a
political person.But this is not
politics as usual, with its customary portion of betrayal and deception. This
is a slow-motion constitutional crisis.
When the House majority will not work with the Senate or the
executive branch, it acts as if there is no separation of powers.The constitutional structure of government
compels compromise: when political leaders refuse to compromise, they threaten
the nation’s prosperity, security, and ultimately the constitution itself.
But there is a way out: empowering the latent majority in
There are likely 125 to 140 Republican members of congress
who want a pragmatic and sensible way to avoid the fiscal cliff. They would sign on to the sort of deal that
President Obama and Speaker Boehner were on the cusp of creating, even if it
means raising tax rates.Right now, they
are being silenced by the minority of their party that will not contemplate
anything President Obama supports.
And there are likely 125 to 140 Democrats who would sign any
reasonable plan.If Republicans will
entertain raising tax rates, they will stomach entitlement reform.But they have been silenced because their
party is in the minority in the House.
This group—the latent majority—is the group that passed the
budget in the spring of 2011, and avoided a government shutdown.
It’s a group that could pass tax reform.It’s a group that could pass comprehensive
immigration reform.But first things
first: it’s a group that could pass a spending and taxes deal that averts the
fiscal cliff.And it could do it now.
Beyond that, this bipartisan group of about 125 Republicans
and 125 Democrats could show Congress the way out of constitutional crisis by
coming together in January to elect the Speaker.
That’s right, moderate Democrats, instead of voting in lock
step for Rep. Pelosi as Speaker—a vote they know they’ll lose—could cast their
vote for a pragmatic Republican speaker.They have an incentive to do so, since otherwise they will get a
Republican speaker who cannot lead.House Minority Leader Nancy Pelosi (D-CA) could even lead the way, and
instruct her caucus to vote for a moderate Republican as speaker.(It could even be Boehner).
Moderate Republicans could join them, and they have an
incentive to do so since otherwise their party, hostage to extremists, will be
blamed for the government’s inability to govern.
A House Speaker commanding a bipartisan majority could forge
comprehensive solutions to the country’s most urgent problems—immigration, tax
reform, the deficit.But the bipartisan
majority would not need to organize the House’s day-to-day business.
Members of congress are partisans, after all.They would stand with their party on most
ordinary matters.The majority leader
would have enormous day-to-day power.
The Speaker of the House is not formally a partisan
office.As Boehner liked to say during
the 2011 debt limit crisis, he is speaker of the “whole House.”It’s time to make that happen by electing a
speaker who owes his or her position to a coalition of both Democrats and
Republicans and who can activate that bipartisan majority when the common good
so urgently demands it.
Russell Muirhead is Robert Clements Associate Professor of Democracy and
Politics, Dartmouth College. You can reach him by e-mail at Russell.Muirhead at dartmouth.edu