Balkinization: Go Big or Go Home

Go Big or Go Home

This article from Politico gives several reasons why Obama has decided to drop an enormous agenda in Congress's lap in the form of his budget proposals. As it turns out, the strategy is overdetermined: several factors point in the same direction. The rhetoric of emergency allows Obama to insist that drastic times call for revolutionary measures; his influence is at its height and will only decrease over time; throwing everything at Congress allows him to delegate the details to the political process, so that Congress can take some credit (and blame); and finally, rather than bargaining with himself by offering more modest proposals, Obama increases the chances of significant change: he wins if only a portion of what he proposes makes it through.

Obama might well be accused of asking Congress to do more than is within its capacities-- the current meme from the pundits is "overload"-- but in fact, one of the paradoxes of separated powers between the President and Congress is that the less there is to do, the easier it is for the President's adversaries to slow things down.

When only a modest number of mid-sized to small things are on the agenda, when the time does not seem urgent, when claims of emergency don't seem so plausible, and the fate of the economy doesn't seem to hang in the balance, stalling and obstruction doesn't look quite as petty. Conversely, if the President stakes out a large agenda, goes over the heads of Congress to the people and repeatedly demands that Congress must act quickly, because emergency demands it, he gains a strategic advantage. It's harder to hold up everything when there is so much being held up. The more that Obama throws at Congress, and the more he insists on the "fierce urgency of now," the more legislation they will likely process and the more the president's political opponents-- who in our system ordinarily rely on tactics of holdup and delay-- are disadvantaged.

(Sandy Levinson's post immediately below pointing out the antidemocratic difficulties created by the filibuster might suggest that Obama won't be able to pass anything. In fact, the story is more complicated. When the President is able to convince the public that there is an emergency, the filibuster generally does not stop legislation-- rather, it affects the content of the legislation, watering it down or adding a number of extraneous requirements or expenditures. The filibuster, like other tactics of delay and obstruction, is most powerful in non-emergency situations. When the President effectively controls the agenda through the politics of emergency, the filibuster is less potent, as we can see in the case of the Democrats rolling over when Bush used an immediate threat to national security to justify the Patriot Act; and indeed, Democrats rolled over repeatedly years later when Bush used the threat of dire circumstances to justify the Military Commissions Act, the Protect America Act, and the FISA Amendments Act of 2008. Whatever you can say about Bush, he certainly understood how to milk the politics of emergency for all it was worth.)

Here's another way to look at it: the system of separated powers-- and its multiple veto points-- creates the illusion that Congress's legislation processing capacities are much smaller than they actually are. The fact that people can delay and obstruct doesn't tell you how long it takes to pass legislation when people feel considerable pressure not to delay and obstruct. The recent bailout bill is one example; the Bush tax cuts, the PATRIOT Act, and the AUMF against Al Qaeda and for the the war in Iraq are another; even more remarkable examples are offered by Lyndon Johnson and FDR when they pushed enormous amounts of legislation through Congress in a relatively short space of time.

Most Congressmen and Senators don't actually read the bills they vote on anyway; so it's not as if they can realistically plead that they need more time to digest legislation and think about it. Our national representatives are quite used to voting on-- and ardently defending-- bills, even enormous bills, about which they understand only the broadest outlines. Rather, whether you like it or not, information processing of legislative proposals-- and especially large proposals-- is generally delegated to others. Obama could be straining those capacities, but as previous historical examples suggest, there is more capacity than you would think given the normal amount of obstruction in the system.

You should not confuse this analysis with a claim that the legislation Obama is sending to Congress is a good idea. The legislation that comes out of an accelerated process may turn out not be wise legislation-- that's why our Constitution has multiple veto points in the first place. But we shouldn't confuse that fact either with what makes sense strategically or with Congress's capacity to process legislation.

Posted 2:05 PM by JB [link]