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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 Agency Problems’ Impact on Budgetary Outcomes
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Monday, March 11, 2024
Agency Problems’ Impact on Budgetary Outcomes
David Super
Over the past few
years, critics on both the Left and the Right have been intensely critical of
their respective party leaders for supposed timidity in failing to achieve
their fiscal objectives. These criticisms
are not without foundation. A careful
examination of the past few years, however, suggests that although agency
problems have real adverse effects, within each political coalition grassroots
distrust of leaders has proven much more destructive to the grassroots’
espoused substantive goals. The inescapable
conclusion is that each side needs effective ways of dissuading their leaders
from putting personal considerations ahead of the group’s substantive
objectives, micromanaging negotiations from afar is disastrous. Even when partisans suspect their leaders
have fallen short, failing to support those leaders opens a huge opportunity
for the other side. This post
illustrates this point with one actual agency failure and one grassroots revolt
from each side of the political chasm. With an evenly
divided Senate during President Biden’s first two years in office, and with supposedly
moderate Republicans abandoning much pretense of bipartisanship, passing any
legislation required the support of every Senate Democrat. That included the moderate Joe Manchin and
the capricious
Kyrsten Sinema. As much as progressive
activists might wish otherwise, neither senator shares their values. Although Arizona has recently elected some fairly
liberal candidates, West Virginia is one of the reddest states in the
country: if Joe Manchin were not a
moderate, he would not be a senator. With the possible
exception of the Affordable Care Act, the Build Back Better deal that President
Biden negotiated with Senator Manchin would have been by far the most important
social legislation in more than half a century.
It would have assured child care subsidies to low- and moderate-income
working families, revolutionized financial assistance to low-income families
with children through a vastly improved Child Tax Credit, dramatically expanded
the availability of housing assistance to low-income people, transformed our
nation’s response to climate change, and much, much more. Many of these provisions were ones Senator
Manchin had opposed but agreed to accept as part of the deal. In exchange for
those concessions, however, President Biden agreed to drop provisions on family
and medical leave and on immigration reform.
Senator Manchin insisted that both were just too hard a sell to his
conservative constituents. Immigration
reform, too, could not pass because the Senate Parliamentarian had ruled
it subject to a point of order, requiring at least ten Republican votes (not
one of which was in prospect). Those
following the negotiations closely were astounded
that President Biden had done so well with Senator Manchin and had understood
that the parliamentary situation put immigration reform out of reach no matter
what they had agreed. Progressive activists,
however, did not trust President Biden’s fidelity as an agent for the
progressive agenda. They were convinced
that he could have won immigration reform and family leave had he pressed
harder. They launched a furious pressure
campaign, vilifying Senator Manchin and loudly condemning him to his West
Virginia constituents. Grassroots
pressure campaigns are inherently unpredictable; reportedly lines were crossed
in some very ugly ways involving his family.
And in an appalling display of cowardice, the Biden White House refused
to defend the deal it had reached and seemed to encourage the pressure
campaign. Predictably, once the President
failed to stand behind his deal, Senator Manchin saw
no reason to do so himself. Congress came
very close to passing nothing, and when the Inflation Reduction Act finally
moved the following summer, virtually everything except the climate provisions
had been dropped. In addition, the
year of demonizing Senator Manchin effectively eliminated any chance he had of
re-election. Although his victories have
depended on gaining crossover votes from independents and Republicans, he also has
depended on a heavy turn-out from West Virginia’s progressives, which he
clearly would not have. Knocking out
Senator Manchin, who votes
with his party on the vast majority of issues, seems likely to hand control of
the Senate to Republicans in 2025. That
will doom President Biden’s judicial and other nominees should he win and would
allow former President Trump to further remake the federal judiciary if he
prevails. It also ends any hope of
passing progressive legislation even if Democrats retake the House. I believe
President Biden had, indeed, been a faithful agent for progressives. But even if he was not, progressive’s
rejection of his leadership proved disastrous.
That is not to say
that President Biden’s fiscal leadership is above progressive reproach. When Republicans took the House in the 2022
election, Democrats still had time to raise the debt limit before the new
Congress took office. President Biden
refused to support such an effort, apparently in the belief that doing so would
implicitly question the patriotism of Rep. Kevin McCarthy, the presumptive new
House Speaker. The President was
convinced that Rep. McCarthy would never allow a default on the national debt
and hence that a bipartisan deal could be struck. Throughout the following Spring, even after
it had become unmistakably clear that Speaker McCarthy had little real
authority within the Republican Conference and had mortgaged his speakership to
the House Freedom Caucus, the President brushed aside numerous proposals
for technical fixes to the debt limit problem.
He elevated his desire to pretend that we still live in the courtly
world of gentlemen’s agreements and patriotism over prudence and fidelity to
the progressive agenda – to say nothing of the nation’s economic well-being. The result was
entering negotiations with Speaker McCarthy in a profoundly weakened position. The predictable result was a deal that badly undermined the
progressive agenda by sharply cutting real non-defense discretionary spending
over the next two years. By this point,
Democrats had lost all leverage, and congressional Democrats wisely concluded
they had no viable choice but to vote for the debt limit legislation. Parallel problems,
however, exist on the Republican side.
Speaker McCarthy won the best deal House Republicans could reasonably
expect, given that their donors were quietly warning that a default on the
national debt was absolutely unacceptable and would lead to numerous
well-funded primary challenges. The
House Freedom Caucus nonetheless rebelled, forcing Speaker McCarthy to rely
primarily on Democratic votes to pass the legislation. This set a pattern
that was substantively disastrous for the Republican far right: because everyone knew that overwhelming
Democratic support was necessary to move any further fiscal legislation, it
could not include provisions that would cause widespread Democratic
defections. Democrats had power because
their votes were available for a price; the House Freedom Caucus lacked power
because their votes were surely out-of-reach.
This pattern continued
with the continuing resolutions and then last week’s “minibus” (not to be
confused with an “omnibus”) appropriations legislation. The more far-right Republicans voted “no”,
the more control they handed to Democrats.
Moreover, their raucous internal squabbling, their defenestration of
Speaker McCarthy, and their quickly turning against their own far-right Speaker
Johnson insured that any government shutdown would be blamed
on Republicans. This effectively robbed
Speaker Johnson of any leverage negotiating with Democrats. Here again,
although House Republicans’ rejection of their speakers’ leadership quickly
proved self-destructive, genuine agency problems did exist. Speaker McCarthy’s frequent vacillations, and
in particular his abandonment of his deal with President Biden, were not just
unprincipled but also disastrous for the House Republican Conference. In the ultimate repeat player environment,
nobody in Washington can afford to allow their counterparties to renege on a
deal, whatever the price. Neither
President Biden nor congressional Democrats could ever tolerate any further
cuts below those in the Biden-McCarthy deal or they would never be able to
count on any agreements they made. Surely an old
Washington hand like Speaker McCarthy knew that. By prioritizing his desire to extend his
speakership a few more months rather than leveling with his conference and
letting the chips fall where they may, he allowed House Republicans to blunder
along into positions so extreme as to preclude either meaningful negotiations
or effectively blaming Democrats for any government shutdown. Just as President Biden’s delusions about the
civility of contemporary politics destroyed Democrats’ bargaining position on
the debt limit, Speaker McCarthy’s delusions about his ability to hold onto his
gavel wrecked Republicans’ bargaining position on final appropriations bills. This entire analysis
could, of course, be misguided if it is mistaken in its assumption that the
activists’ goals are to change policy.
Some have suggested that much of the House Freedom Caucus is driven by
the desire to stoke outrage, and hence fundraising, on social media. If so, they may well be playing this just
right. I would prefer to think that
progressives’ goal is to help people, but perhaps
I lack perspective. @DavidASuper1
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