Negotiating With a Gun to the Head

By Mike Dorf

As I write this post, the ball is back in the Republican-led House of Representatives, which seems intent on making some changes to the Affordable Care Act as the price of agreeing to any measure designed to avert a government shutdown.  Meanwhile, the emerging Democratic party line -- voiced by Illinois Senator Dick Durbin over the weekend and more or less repeated by President Obama today -- goes like this: We are willing to negotiate over budget issues as well as the terms of the ACA, but not (as Durbin put it) "with a gun to our head."  Thus far, Republicans aren't moving, due to some combination of: (1) the belief that in fact they have more leverage while holding the gun to the Democrats' head; (2) the failure to understand that the gun is pointed at their own heads to an equal or greater extent as it is pointed at the Democrats'; and (3) blind rage.

With events moving quickly, I thought I'd dash off a very quick observation and then perhaps weigh in again tomorrow if there's anything I have to add as the situation develops.  My observation is this: It would not be crazy for the Democrats to negotiate with the Republicans over the ACA in the context of a spending measure--if that were all that were involved.  Federal spending bills are inherently multi-issue compromises, and so it's hardly unprecedented for House Republicans to try to get something that is not strictly a budgetary matter through the budget process.  What makes the Democratic strategy necessary, however, is the entirely foreseeable consequence that if Democrats blink on anything--even the repeal of the Medical Device Tax, which apparently some Democrats favor--then Republicans will infer that their tactic "worked" and repeat it with the debt celing.

Is there a way out?  Maybe.  Here's a deal that I think would be worth making: Pass a supplemental that funds the government and puts the Debt Ceiling on ice until after the 2014 midterms.  In exchange, give the non-crazy portion of the House Republican leadership a symbolic victory in the form of the Medical Device Tax repeal, but insist that the Democrats are negotiating over the supplemental funding measure and NOT the debt ceiling, i.e., that the debt ceiling increase is "clean."

Will enough Republicans go for this to get it done?  Maybe not in time to avoid at least a temporary government shutdown, but if the politics of the shutdown go badly for the Republicans quickly, there may be enough time before the debt ceiling hits to get this deal done.