Should the Dems in Congress Oppose Everything, Starting with the Debt Ceiling?

This article first appeared on the Dorf on Law site.

The Democratic Party, we are forever being reminded, has had a bad run recently.

Although I continue to believe that commentators have overstated their troubles and that Democrats' fortunes will soon improve, there is certainly no denying that Republicans are in charge nearly everywhere.

If great power implies great responsibility, however, then no power might imply no responsibility.

Are the Democrats off the hook? When Barack Obama was in the White House, congressional Republicans exercised their irresponsibility not just during the two years that they were the minority party in both houses but even after they took back the House in 2010 and the Senate in 2014.

From budget showdowns to repeated meaningless votes to repeal the Affordable Care Act to filibustering executive and judicial nominees, the Republicans acted entirely for political gain. And, as sad as it is to say, they were not punished for their irresponsibility. Indeed, they thrived.

True, Republicans did win fewer seats than they could have (especially in the Senate) by running a surprising number of cuckoo-pants candidates—"I am not a witch!"—but they continued to win at both the federal and state levels with candidates who never took seriously the notion that they were there to govern. Indeed, they never took any facts seriously, because everything was about ideology.

What should the Democrats do now? They are truly in the position where they can say, "We have no power to stop you, so we are not going to do anything to help you, even if you need us to do the right thing."

Should they do that? They answer is not as easy as I would like it to be.

GettyImages-825300710 U.S. Senate Minority Leader Sen. Chuck Schumer (D-NY) at the Capitol, August 1, 2017 in Washington, DC. Alex Wong/Getty

We will soon have a perfect test case for the question of how the minority party should act in the face of a potential crisis. As I noted in a recent column, it appears that we will face yet another debt ceiling crisis sometime soon, with recent estimates suggesting that the next "drop-dead date" for the debt ceiling will arrive in late September.

What should the Democrats do? What will they do?

Before getting into the specifics of that vote, it will be helpful to think about the fight earlier this year over the nomination of now-Justice Neil Gorsuch to the Supreme Court. There, the Democrats were in an unusual position, because they had more than enough votes to block Gorsuch under the existing rules but not enough votes to prevent those rules from being changed.

The Democrats decided to filibuster under the old rules, with only a handful of red-state Democrats defecting, thus denying Republicans the 60 votes needed for their nominee. Republicans had a choice of whether to live with that result or blow up the rules that they had hypocritically claimed to cherish.

They blew it all up, and they will probably do so again when they decide to cut taxes for rich people.

As I argued at the time, the Democrats had to choose how to lose, and they made the right choice by forcing Republicans to expose themselves as frauds and liars.

Any idea that Democrats should have allowed a vote on Gorsuch in order to preserve the filibuster for the next nomination was silly, because the Republicans would blow it up whenever they needed to do so. Clarity matters.

But what if the Democrats had actually had some power? Imagine either that the Democrats held the majority in the Senate or that the 60-vote filibuster rule could not be changed.

Or, much less plausibly, imagine that Senate Republicans were actually committed to preserving the filibuster and would have been stymied by Democrats blocking Gorsuch. What next?

If Gorsuch's nomination had gone down to defeat, the next question would be whether the Democrats would have approved any nominee that Trump sent them. Under pre-2016 norms, the answer would have been easy: Democrats would have respected the president's power to appoint Supreme Court justices, and they would have reached a consensus among themselves about how overtly political the vetting process could be.

But with the Republicans' successful blockade of Obama's nominee last year, which Senate Majority Leader Mitch McConnell contrived on the basis of an utterly specious argument (that lame-duck presidents somehow lose the appointment power), that all changed. Democrats could have—and, to be clear, very definitely should have—refused to confirm anyone that Trump nominated this year other than Merrick Garland.

In other words, the Democrats should have said, "We have the power to undo your power play, and we're using it." Indeed, they could have said that even Garland was unacceptable, because Obama only nominated him in the hopes of short-circuiting McConnell's treachery. Truly bold Democrats could have insisted on a younger, less centrist nominee.

Even if Democrats had not gone that far, however, they would have had to decide what to do if the other side did not blink. Donald Trump might have decided that he needed a win and gone along, or he could have started tweeting about Democrats being "so unfair" and then refused to nominate a candidate who could be confirmed.

What then? A true standoff would have resulted in the continuation of the 8-member Supreme Court, with possible additional shrinkage over time as further retirements or deaths were met with continued gridlock in the nomination and confirmation process.

I am not one of the people who thinks that the Supreme Court should be a permanent 8-member court, although the arguments for that position are at least colorable. But the fact is that this kind of gridlock would not actually matter very much, even if the court shrank over time to seven or fewer members. It would not have been ideal, to say the least, but the business of the country could have continued.

Again, the Republicans actually did have the choice of letting the Democrats block Gorsuch, but they chose to exercise their power to put a hard-right movement conservative on the Court. The Democrats' actions were symbolic and ultimately political, but not obstructionist.

Turning again to the upcoming debt ceiling crisis, what is different?

Most importantly, the stakes are much higher than they were in the Supreme Court fight. Even though Gorsuch will do damage on the Court for decades to come, that is not the issue here. The meaningful comparison is between the consequences of gridlock for Supreme Court nominations versus gridlock in a debt ceiling standoff.

Failing to increase the debt ceiling (which, it bears repeating once again, is not the same thing as a government shutdown) would lead immediately to economic catastrophe. Because this is unprecedented, no one knows how bad it could get, or how long the consequences would last, but it is highly likely that a full-on recession would ensue (possibly turning into a depression), and the damage would last for decades.

That is a rather strong argument for everyone to take this situation seriously. During the Obama years, however, the Republicans were utterly irresponsible. They were the first ones to use the debt ceiling as a hostage-taking device, and, after it worked in 2011, McConnell announced that they would do so forevermore.

When it was necessary to do something each time that the debt ceiling was reached, the Republicans (being the majority party) had the votes necessary but pushed the country to the brink of disaster time after time. Their idea was that the Democrats would all vote for the increase because it was the right thing to do, and because it was necessary to protect Obama from presiding over an economic cataclysm.

And it worked. Even though Obama did successfully take a hard-line stance on the Republicans' demands for concessions in subsequent debt ceiling standoffs, the needed legislation was only passed with all of the Democrats' votes and the minimum necessary Republican votes. Thank heaven for retiring Republican congressmen and a few safe-seat party leaders who did the right thing!

We already know that the most extreme Republicans in the Senate and especially in the House think that they can still party like it's 2011. Some have pledged never to increase the debt ceiling, even though they support spending and taxing packages that necessitate increases in the debt ceiling.

And even those who vote no to everything—and can therefore say that the increase in debt is "not my fault"—are still saying that they are willing to allow disaster to befall the country in order to make an ideological point.

Under these circumstances, Democrats could simply say, "Hey, you wanted to have the power to govern. You've got it. Don't expect any help from us."

This strategy worked when it came to Republicans' efforts to destroy the health care system earlier this summer, but that was different, because the bills that Democrats were opposing were truly awful. Democrats were saying that, just like the Supreme Court, the Republicans had the power to do whatever they wanted (no matter how bad it was), but Democrats were not going to help them ruin the Court or the health care system.

Here, however, Democrats will be confronted with a governing party that truly cannot govern. Republicans have 241 seats in the House, which means that they can pass whatever they want even after losing 23 of their own votes, no matter what the Democrats do. In the Senate, Republicans can lose two votes and still win.

The fact is that Democrats will have every reason to think that there is a political win available by letting the Republicans fail. Over the last few years, Republicans have not cared a whit about the enormous human consequences of their irresponsibility, and they were rewarded with the reins of power.

Democrats know that Trump and the Republicans will be saddled with the blame for this mess, and Democrats thus have good reason to play this to their advantage.

That means that, if I were advising the Democrats, I would have a difficult time not telling them to sit tight and let the Republicans destroy themselves. One would hope that it would again be possible to steer away from disaster at the last moment, but it is necessary at least to consider that refusing to deal will result in disaster.

This further means that Democrats should do exactly what they criticized the Republicans for doing from 2011 through last year, which is to insist on policy concessions for any votes to increase or suspend the debt ceiling. "Do you really want our votes? Well here's what we want."

This would immediately be criticized by pundits—some very well meaning, some not so much—as proof that the Democrats are just as bad as the Republicans. But if ever there was a case where one side could accurately say, "Well, they started it," this is it.

The Republicans' repeated claim that Democrats "started it" on Supreme Court confirmations with Robert Bork's nomination fight is ultimately nonsense, but at least there is a barely-straight-faced case that the Democrats were somehow in the wrong. Here, Republicans are completely to blame.

Republicans, after all, weaponized the debt ceiling for the first time in history—and they did so when they were in the majority . They insisted that it was perfectly acceptable to attach conditions to win their votes, and they risked disaster multiple times.

Here, Democrats could correctly say, "Hey, you think our demands are unreasonable? Well, lucky for you, you have the power to ignore us. What's that you say, some of your members are insane? I had no idea!"

If I were a Democratic officeholder, however, I might well ignore my own political advice and vote for sanity. The consequences of a default are simply too horrible.

But even in a more responsible frame of mind, it would still make sense to make some demands and play at least a bit of brinkmanship, because the Republicans are the ones who would need my vote.

We would not be here but for the Republicans' collective decision in 2011 to make economic collapse a possible alternative to what should be simple, uncontroversial legislation.

As we are again learning in our foreign policy in recent days, once someone has done something truly insane, it is not at all obvious what sane people should do. This could get ugly.

Neil H. Buchanan is an economist and legal scholar and a professor of law at George Washington University. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.

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