Managing Constitutional Hardball

by Varun Gauri

How should you respond to bullying? Common wisdom says fight back, or at least stand up for yourself, or else bullies — connoisseurs and lovers of power — will keep humiliating you, like Lucy snatching the football when Charlie Brown tried a kick. On the other hand, if you can’t risk a fight with the bully, or if you could win over influential bystanders, maybe you should simply go about your business, not fight back, go high when they go low.

That is the situation Democrats are in. At least since the mid 1990s, Republicans have been breaking long-accepted political norms, vilifying the opposition, and playing constitutional hardball. Gingrich Republicans bent House rules and impeached Bill Clinton. State legislators adopted extreme gerrymandering. More recently, Senate Republicans grabbed Supreme Court seats. Although Democrats have occasionally played hardball, as well, the polarization and norm-breaking have largely been asymmetric. For instance, while high-level elected Republicans subscribed to birtherism (the notion Obama wasn’t born in the United States and was an illegitimate president), there is no counterpart movement among elected Democrats. 

It is true that Democrats have fought back and played a bit of hardball themselves, now and again, but these efforts have been been intermittent and half-hearted — breaking the filibuster for Supreme Court nominees but maintaining it otherwise, challenging the personal integrity of Supreme Court nominees but deferring once Justices serve on the bench. Why the partial response?

Partly, Democrats are understandably worried about the consequences for the country. If everyone plays constitutional hardball, America becomes ungovernable. Unwritten norms are the foundation of well-governed societies; once broken, they are hard to rebuild. For example, it would be constitutional for the Democrats to add Supreme Court seats if they had the votes in the Senate, but what would stop the other side from doing the same? Where does the arms race end? There is also the fear that playing hardball will alienate moderates and weaken the party electorally, that taking the high road is popular among independent voters. This kind of thinking seemed, in part, to motivate Obama’s ambitions to strike a grand bargain with Republicans on fiscal issues. 

This strategy of fitful righteousness and intermittent hardball hasn’t worked. Republicans have grown more aggressive, populist, and authoritarian. This appears to be a bully who enjoys seeing his opponents lose. He may also, likes most bullies, be terrified of losing; Republicans appear anxious about the demographic erosion of their voting base.

Is there another strategy for Democrats? 

Perhaps one can conceive of Democrats and Republicans as opponents in a low-grade civil war. Both sides have high-priority political goals they can achieve more easily by breaking longstanding political norms, but both sides also know that breaking so many norms as to make the country entirely ungovernable would be very bad.

This is the kind of “mixed motive” situation game theorists study. Both parties realize, and realize that the other party realizes, that there exist many outcomes preferable to total war, but some of these are preferable to Democrats (e.g., making D.C. and Puerto Rico states) and others to Republicans (e.g, a status quo Supreme Court, allowing state legislatures to designate electors in the Electoral College). The final outcome must be one from which neither side expects the other to retreat, but each side has an incentive to misrepresent its bottom line. In addition, each side has to make political moves (e.g., filibuster a piece of legislation) even before its overall position on constitutional hardball becomes known to its opponent (and in important ways, even known or articulated to itself).

Schelling argued that for wars to remain limited, “tacit agreements or agreements arrived at through partial or haphazard negotiation require terms that are qualitatively distinguishable from the alternatives and cannot simply be a matter of degree.” These qualitatively distinguishable alternatives, focal points, are crucial because they create, in an extremely fluid situation, a point around which to coordinate, a place upon which to fall back, a plausible scenario short of total war. 

Democrats have not created focal points regarding political norms and rules. There are no qualitatively different proposals in Democratic strategy. Ad hoc hardball has not signaled the existence of points from which Democrats will not retreat. So the bully thinks he can go further, and further. 

A different strategy would be identify and announce actions that will invite Democratic norm-breaking (maybe call it “norm innovation”). For political and moral reasons, the new political norms Democrats would instigate, in response to Republican actions, should be both broadly popular and normatively defensible. 

For instance, Democrats could argue that the Senate filibuster is undemocratic, and that they will therefore move forward with granting statehood to the District of Columbia and Puerto Rico unless it is abolished by 2024. Another focal point might be Supreme Court behavior: Judicial partisanship has gotten out of hand, and unless the Court adopts much stronger rules for the disclosure of Justices’ financial assets, political ties, and conflicts of interest, the Democrats will move forward with a plan to introduce term limits for Justices.  

It wouldn’t be easy for the Democratic coalition to agree on the bright lines like these, or on the appropriate responses, and it could complicate legislative strategies if Democratic leaders announced them. Democratic interest groups, or donors, might therefore be better placed to take the lead. Schelling shows that focal points can be somewhat arbitrary; they just need to be unusually simple, traditional, sacred, or popular. A very effective social media campaign, or a widely signed compact among donors, or a series of civil society debates, might be enough to get the ball rolling. 

Sadly, Charlie Brown never got to kick the football. Lucy snatched it away every time. Maybe he should’ve told her he might well kick her hand if she pulled it away again, keeping in mind that if he threatened to kick her head, which he might have felt like doing, that could have been the end of their game.