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 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 princeton.edu
Rick Pildes rick.pildes at nyu.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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Eric Cantor Complains About Republicans Taking His Hostage-Taking Strategy Seriously
In his analysis of Speaker John Boehner's resignation, former House Majority Leader Eric Cantor explains our current political dysfunction in explicitly constitutional terms. But he has no one to blame but himself and the Republican leadership of which he was a part:
But somewhere along the road, a number of voices on the right began demanding that the Republican Congress not only block Mr. Obama’s agenda but enact a reversal of his policies. They took to the airwaves and the Internet and pronounced that congressional Republicans could undo the president’s agenda — with him still in office, mind you — and enact into law a conservative vision for government, without compromise.
Strangely, according to these voices, the only reason that was not occurring had nothing to do with the fact that the president was unlikely to repeal his own laws, or that under the Constitution, absent the assent of the president or two-thirds of both houses of Congress, you cannot make law. The problem was a lack of will on the part of congressional Republican leaders.
Now we see that these same voices have turned to the threat of a government shutdown or a default on the debt as the means by which we can force President Obama to agree to their demands. I wonder what they would have said, if during the last two years of President Bush’s term, the Democratic congressional majority had tried something similar.
In my 2014 essay, The Last Days of Disco: Why the America Political System is Dysfunctional, I argued that, in order to finally realize a conservative political revolution, Congressional Republicans had repeatedly tried to run domestic policy out of Congress even when they did not control the White House. This constitutional innovation was unlikely to succeed because of the way that American government, and especially the Presidency, have developed during the twentieth century.
Yet it is worth asking why Congressional Republicans believed in this strategy, and why they keep returning to it.
The answer is that it worked-- not just in the distant past, but only five years ago. And Eric Cantor and John Boehner were key figures in that success.
I am speaking of course, of the Debt Ceiling Crisis of 2011, in which threats by Republicans not to raise the federal debt ceiling ultimately led to the Budget Control Act of 2011, which drastically curtailed the growth of both domestic and defense expenditures. In the summer of 2011, Eric Cantor was one of the most aggressive proponents of using the debt ceiling to force changes in federal domestic policy.
Today commentators emphasize that Boehner and Obama were unable to reach a grand bargain over tax, spending, and entitlement reform. (Cantor, by the way, helped scuttle a potential deal.) But this misses the most important story-- that, pressed by House Republicans in the summer of 2011, President Obama agreed to severe cuts in future government expenditures that have shaped the course of domestic policy and military spending since then. John Boehner famously noted at the time that he got almost everything he wanted in the Budget Control Act's cuts to federal spending. It was a significant victory for Congressional Republicans, and it was achieved through threats and brinkmanship directed against the President-- that is, precisely the strategy that Cantor now denounces as unrealistic and inappropriate in his op-ed.
If you are a member of the Freedom Caucus in the House, you might well wonder why this strategy, which proved so successful in 2011, is not worth trying again. Even if it failed in 2013, it has a 50 percent track record in the past five years. Moreover, you might point out that Republicans were not significantly hurt electorally by the shutdown in 2013-- judging by their remarkable success in the 2014 elections. Thus, you might start to think that figures like Speaker Boehner, former House Majority Leader Cantor and Senate Majority Leader McConnell, are squishes, political cowards, or have unilaterally surrendered to Barack Obama. After all, they refuse to try what they all supported-- and succeeded at--only five years ago.
To be sure, Boehner, Cantor, and McConnell understand that there is a crucial difference between 2011 and now. Obama signed the Budget Control Act when he was worried about the 2012 presidential contest, and he feared that a prolonged debt ceiling crisis in 2011 would harm the economy and doom his own chances at reelection. Once Obama was reelected, however, these concerns vanished, and he took a hard line against compromise. Moreover, Democrats appear to have learned from their earlier mistakes, as they demonstrated in the 2013 government shutdown.
But Boehner, Cantor, and McConnell are hardly innocent of creating expectations among Congressional Republicans, or among the Republican base generally, that threats to refuse to raise the debt ceiling or to shut down the government can sometimes work. And if they sometimes work, they are worth gambling on if the cause is important enough.
Moreover, 2016 is an election year as well, and surely Democrats don't want the economy to collapse in the final years of Obama's presidency. That would greatly harm the chances of another Democrat winning the White House, and the chances that Democrats retake the Senate.
So, the members of the Freedom Caucus might reason, this is the best time to try the strategy that worked in 2011 again-- with Democrats once again worried about the effects of a faltering economy on the next presidential election. Of course, Democrats, as noted above, now understand that they can never again afford to compromise; they must take a hard line and refuse to capitulate to any threats of future shutdowns or debt ceiling crises. But members of the Freedom Caucus might wish to test Democrats' resolve.
In the summer of 2011, commentators warned that if Obama compromised, he would encourage a regular strategy of threats concerning the debt ceiling and government shutdowns by Congressional Republicans. Those predictions have been borne out. Even if the strategy succeeds only some of the time, it operates as intermittent reinforcement, and intermittent reinforcement of a behavior can sometimes be the most powerful. Eric Cantor has finally seen the light, and recognized the damage he and his allies wrought in 2011. Good for him. But it comes far too late to do much good for the country.