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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Inside Speaker, Outside Speaker
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Tuesday, October 31, 2023
Inside Speaker, Outside Speaker
David Super
When an
organization selects a leader, it typically must decide to whom that leader
will primarily relate. Many
organizations want their leader to interact with the outside world: to recruit new members, to raise funds, to
forge new alliances, and generally to give the rest of the world a positive
view of the organization. But someone
also needs to attend to the internal workings of the organization, resolving
disputes, getting everyone to do their part, and so forth. Perceptions about the organization’s greatest
current needs often will dictate who is a plausible candidate to be its
leader. Immediately after
World War II, this country selected a series of presidents seen primarily as
outside leaders, as leaders that would preserve our interests and security in
the world at large. Our subsequent shift
to electing former governors with little foreign policy experience reflected
the desire for inside leaders. Chief
justices, federal and state, can be loosely sorted into outside-facing and
inside-facing versions. This same
pattern is evident in other kinds of organizations, very much including
academic institutions. One of the first
questions presidential or dean search committees must make is whether they want
an outside leader or an inside leader; deeply dysfunctional schools heedlessly choosing
outside leaders have produced sensational meltdowns. Sometimes these
roles can be divided: some countries’
constitutions empower a president to be outward-facing and a prime minister to
be inward-facing; some educational institutions have important provosts or
deputy deans to handle internal matters; partisan legislative conferences may
have outward-facing leaders and inward-facing whips. These arrangements only work, however, if the
outward-facing and inward-facing leaders can cooperate effectively, with the
inward-facing official able to deliver on the outward-facing leader’s
commitments for the organization and the outward-facing leader reinforcing the inward-facing
leader’s authority to settle internal disputes.
Kevin McCarthy was
a classic outward-facing Speaker of the House.
On one level, the desire for an outward-facing Speaker made sense: the House Republicans have a problematic public
image that contributed to their dramatically underperforming in an off-year
election. Putting on a positive,
reassuring face for other major players in government and for the general
public could certainly help. And in the
short term, it did: President Biden’s naïve
feeling that he could work with Speaker McCarthy caused him to disregard warnings
that he needed to de-fang the debt limit before the country reached the brink;
he likely would have behaved more prudently with a fire-breathing Freedom
Caucus Speaker. Yet Kevin McCarthy’s
speakership was fundamentally misguided from the beginning. Deep divisions in the House Republican
Caucus, combined with their narrow majority, their adamant belief that
bipartisanship is treasonous, and intermittent interventions from former President
Trump, urgently required the focus of an inward-facing leader. House Majority Leader Scalise could not play
that role: he had been imposed on the
Establishment leadership years earlier to settle another far-right revolt and
had never gotten along with Speaker McCarthy – yet he also had lost his
constituency on the far-right for adhering to principles of collective
leadership. House Majority Whip Tom
Emmer had won his position in a divisive fight with a farther-right candidate;
the far right trusted his candor but not his policy judgments. To make matters worse, some self-serving far-right
Members constantly need to stir the pot to promote their personal political
fundraising and while swing-district Members desperately needed to minimize
their votes for extreme positions while avoiding primary challenges from the
right. Nobody of any
ideological persuasion should mourn Speaker McCarthy’s demise. His appearance of reasonableness was
obviously a mirage: whatever beliefs he
might have held were not going to affect how he exercised power, he was
incapable of speaking for much of his conference, and his fealty to the embargo
on bipartisanship all the way to the end gave absolute power to the most
extreme Members of his Conference. And even
when he did make deals – to the left or to the right – he would not keep
them. The reality of divided government
is that the White House, the Senate, and probably the House Democrats need to
be able to negotiate with a far-right, proudly Trumpist, House Republican
Conference. And that Conference’s state
of internal disorganization is such that that was not going to be possible with
Kevin McCarthy – or Patrick McHenry or Tom Emmer or a “moderate” Republican
leading the “coalition government” naïve commentators insisted on
imagining. Speaker Mike
Johnson is the inward-facing Speaker the House Republican Caucus requires. Swing district Republicans – they are not
actually moderates but fervently pretend to be on TV – succeeded in scuttling
Rep. Jim Jordan out of the conviction that his well-defined public image would
drag them down the way Speaker Nancy Pelosi’s image weighed down swing-district
Democrats over the years. But the
Speaker they unanimously endorsed is every bit as right-wing. With swing district Republicans fearing
primary challengers too much to cast high-profile moderating votes and
far-right Members more than willing to scuttle the Conference’s public image to
raise some cash, Speaker Johnson truly is representative of his
conference. Early indicators
are that his ascension has largely patched over the conference’s divisions, at
least for now. Because far-right Members
trust him, and because their antics were beginning to threaten a rupture with
more Establishment donors, he evidently has a fair amount of tactical freedom
moving forward. This could plausibly
result in an extension of the Continuing Resolution (CR) set to expire on
November 17, at least postponing a government shutdown. Whether Speaker
Johnson has the skills and wisdom to make the most of this latitude remains to
be seen. He is insisting that his price
for extending the CR would be further domestic budget cuts below the levels set
in this summer’s debt limit bill, which will be a non-starter in the Senate and
with President Biden. Repeat players in
Washington, regardless of party, simply cannot afford to allow anyone to breach
agreements with them, no matter the political cost. We will get an
early sense of the extent of his political skill, and the degree to which the
far right feels the need to stay quiet now that the Speaker is obviously one of
them, when we see how Speaker Johnson handles his inability to reopen this
summer’s budget deal as a price for a new CR.
Democrats will have little trouble pinning any November government
shutdown on House Republicans: having
wasted half of the time provided by the last CR on their internal dysfunction,
they made completing the appropriations process in the ordinary course
effectively impossible. Unless Speaker
Johnson is remarkably dense, he will recognize that and cover his capitulation
to a CR at current levels by getting Democrats to add some unrelated,
non-controversial legislation to the CR that Speaker Johnson can claim is achieving
a major Republican priority. Another early
measure of Speaker Johnson’s political skill will be the Administration’s
request for supplemental appropriations for Israel, Ukraine, and the southern
border. As a technical matter, existing
law allows President Biden to do a great deal to help both Israel and Ukraine
on his own. Therefore, the White House
and congressional backers of this legislation are unlikely to be desperate enough
to make major concessions to move it through.
Still, a strong tradition calls for giving Congress the opportunity to
add its bipartisan voice to support the country’s overseas allies in times of
crisis; should House Republicans refuse to do so, they will pay a political
cost. Speaker Johnson’s
initial moves here have been rather clumsy as well. He acknowledged
that Russian President Putin will continue wars of aggression elsewhere if not
stopped in Ukraine yet he says he does not want aid to Ukraine included in this
package. He seems to be trying to
justify this by demanding “safeguards” that U.S. aid is not lining corrupt
officials’ pockets, yet neither the White House nor the Ukrainian government
have objected to any audit or monitoring proposals that have been floated. Although Ukraine has had some problems with
domestic funds being drained by corrupt overcharges, most U.S. aid has come in
the form of weapons transfers, and no credible evidence has emerged of misuse
of any of the money we have sent. Senate
Republicans will clearly vote for a package combining Israel and Ukraine. Speaker Johnson
also claims that he wants to “offset” the reduced aid package he would provide to
Israel with domestic budget cuts. This
is clearly not required by budget process rules, which allow emergency
designations for just this kind of situation.
It is not required by precedent: those
emergency designations have routinely allowed aid of this kind to pass without
offsets under Administrations and Congresses of both parties. Even more absurdly, House Republicans’ proposed
“offset” – defunding the Internal Revenue Service’s efforts against tax cheats
– would dramatically increase the
deficit by reducing revenues. (House
Republicans address this inconvenient reality by including a provision in their
bill directing budgetary scorekeepers to neglect the revenue losses in estimating
the fiscal effects of their bill.) This
is farce. Although the House
Republican Conference’s transitory desire for unity may allow Speaker Johnson to
pass whatever version of Israel aid legislation he wants in the first instance,
but when the Senate sends back legislation supporting both Israel and Ukraine
(and without the deficit, the choice will be quite stark. At the end of the day, House Republicans can
refuse to pass legislation to aid Israel and Ukraine if they like. But demanding accountability that nobody is
resisting and trying to hold this aid hostage to domestic priorities that
actually exacerbate the problem they claim to be addressing is unlikely to
provide House Republicans with much political cover. Whether Speaker Johnson can find a way in the
end to move such legislation to allow his Reagan Republican Members to claim
credit for helping Ukraine while avoiding a rebellion from his pro-Putin
Members will tell us a lot about how effective an inside Speaker he will
be. On annual
appropriations, on Israel and Ukraine, and on other issues, House Republicans’
choices remain structurally similar. They
can negotiate with the Senate and the White House, achieving real concessions
but not the revolution many of them demand.
Or they can insist on demands patently unacceptable to the other
players, provoke a crisis, and ultimately have to capitulate when public
opinion turns sharply against them. In
the latter scenario, their leverage to obtain concessions will be severely
compromised. Worse still, House
Republicans can provoke a crisis with implausible demands, suffer a backlash
from the electorate, but then splinter as to whether to prolong the crisis or
to settle. In that case, trying to
settle while their far-right Members hold firm will force them to seek House Democrats’
votes, which will make significant concessions all but unattainable. That was the dilemma that Speaker McCarthy
could never resolve. Perhaps an inside Speaker
with his conference’s trust can do better.
If not, his Members will suffer even more political damage and obtain
even fewer policy results. @DavidASuper1
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