By Mike Dorf
As a constitutional law scholar, I often find myself in the awkward position of benefiting professionally from constitutional crises: Each time some government actor finds some new way to violate the Constitution and threaten serious pain for the country, I have a new topic to teach and write about. Thus, for the last year and a half, I have watched in a state of both dread and elation, as the possibility of an impasse over the debt ceiling both threatened the full faith and credit of the United States and shone a spotlight on my work (in this instance, co-authored with Professor Buchanan). Accordingly, I was happy for the country and disappointed professionally when the news broke that House Republicans were caving on the debt ceiling. Until I read the details.
To begin, it is possible that no deal will be reached if Senate Democrats find the terms unacceptable. Apparently the offer to raise the debt ceiling would include in the same legislation a proviso preventing members of Congress from getting paid unless a "budget blueprint" were passed. That's a quote from the Times story. It's not yet clear exactly how this would work.
In any event, let's suppose that the basic offer is accepted: Congress passes and the President signs a debt ceiling increase that buys three months and includes pressure on Congress to address the budget. The explanation would then go like this: President Obama was in a strong position on the debt ceiling because he knew that if there was a default, Republicans would be blamed, so he held the line and refused to negotiate; meanwhile, Wall Street--which is an important constituency for the GOP--was decidedly unenthusiastic about the prospect of using the threat of a default as a basis for extracting future budget cuts; thus, it was only a matter of time before Speaker Boehner (who shares the Wall Street sensibility more than the Tea Party sensibility) was able to rally his caucus behind laying off the debt ceiling and finding some other leverage point; with automatic tax increases no longer a possibility thanks to the fiscal-cliff deal, Boehner was able to persuade other Republicans that they have sufficient leverage in the ordinary budget process.
That's a pretty good story and I would believe it but for two things. The first is the inherent craziness of the Tea Partiers. All of what I just set out should have been evident a month ago, but it was only within the last week or so that it looked like there was going to be real movement. Before that, it was fairly clear that Tea Party Republicans in safe House seats didn't care very much that national polls showed Obama winning a confrontation over the debt ceiling; they would win in their districts. Indeed, even more "traditional" Republicans might be expected to take a hard line for fear that if they didn't, they would face a Tea Party primary challenge. Imagine a not-very-hypothetical district that is 50/40/10 Repub/Dem/Ind. Suppose further that only about half of the Republicans are tea-party-aligned, but that of those Republicans who vote in primary elections, more like 60% are tea-party-aligned. Thus, in a district in which tea partiers are only about a quarter of general election voters, an incumbent non-tea-party Republican could end up taking the tea party line in order to preserve his seat. This dynamic seems not to have fundamentally changed.
Second, there is the peculiar matter of the fact that the proposed rise in the debt ceiling is only for three months. If Republicans en masse were really persuaded that using the threat of default as leverage was really a terrible idea, why are they offering only a three-month increase? Why not simply offer to repeal the debt ceiling and use the ordinary budget process (plus the threat of sequestration) as the basis for negotiating budget cuts?
One possible answer is that they're bluffing. In this view, the Republicans have secretly and/or tacitly acknowledged that a default is like nuclear weapons: You can threaten to use them, but unless you're truly crazy you can't actually use them, and therefore if you're dealing with a sophisticated adversary, you can't effectively threaten to use them either. As a citizen, I hope that's what's going on here. Hoping to get something for nothing, the Republicans are dangling a mere 3-month extension, backed by the threat of debt ceiling brinksmanship at the end of the three months, but they know, and the President knows, that the threat is not credible.
But I fear that in fact the Republicans have not really taken debt ceiling brinksmanship off the table--that in their internal negotiations, there were enough truly crazy members who agreed to offer the three-month extension only because they think they have a decent chance to get what they want in those three months, but that if they don't, they are fully prepared to go back to threatening default--and doing so credibly. Like I said, as a citizen, I hope that's not what they're doing, i.e., that they're just bluffing.
If my citizenly hopes are dashed, I can console myself with the knowledge that my scholarship regarding what happens if the threat is carried out will once again be highly relevant to a critical news story.