-- Posted by Neil H. Buchanan
The 2014-15 budget deal will soon be signed, sealed, and delivered. I discussed the content of the deal in my Dorf on Law posts last Thursday and Friday, noting the extreme austerity that the Democrats accepted as part of this supposedly middle-ground compromise. As I also noted in the Thursday post, it was not immediately clear whether the Republicans intended to make another stand on the debt ceiling when it is revived early next year. I did note that there was no reason to think that they would not rally around even more absolutism, to prove to their base that they are still true believers.
It did not take long for Republicans in Congress to confirm my prediction. In my Verdict column today, I offer quotes from Paul Ryan and Mitch McConnell, both of whom are breathing fire about the debt ceiling. No "clean increase," they promise. They are going to "get something" from President Obama in return for increasing the debt ceiling, they vow.
Even so, the news coverage has been notably forgiving, even by the low standards of the modern U.S. media. Yesterday's front page article in The New York Times carried a sub-headline that said that the deal is no "Washington Cure-All, but It Clears the Air." Yes, it clears the air to allow Republicans not to trip themselves up on another government shutdown, so that they can completely devote themselves to demagoguing the debt ceiling, pretending that they can reduce the debt without actually voting to reduce spending or increase taxes. Great.
Even more notably, that Times "news analysis" article was co-written by the same reporter who wrote the weird line that I quoted in last Thursday's post: "But
both parties sought to preserve their ability to force another showdown
over fiscal matters; the government’s statutory borrowing authority will
lapse as early as March, another potential crisis." He was back at it again in yesterday's 22-paragraph article, where the debt ceiling finally made its appearance in paragraph 21.
The need to increase the debt ceiling next year, the authors wrote, "could renew the wars or, possibly, prove a useful deadline to produce
the next bipartisan agreement, a more sweeping deal on tax and
entitlement program changes." The article ends by approvingly quoting Mitch McConnell as follows: "Debt-ceiling legislation is a time that brings us all together and gets the president’s attention." So, a Republican stand on the debt ceiling is not necessarily a declaration of war, but is instead a useful opportunity for compromise and slashing Social Security and Medicare! If only President Obama will show a willingness to engage in bipartisan compromise, the Republicans can work with him to undermine the Democrats' most proud accomplishments.
Back on planet Earth, the question is what the President will do when the Republicans do again throw down the gauntlet on the debt ceiling. We know, at least, that the White House learned its lesson from 2011 (which led to the sequestration cuts), and will not be taken in by the Times reporters' delusions. If it does not change its more recent strategy, the President's team will simply say, "No negotiations," and we will be back to more last-minute insanity within a few months. Even if the President gets the Republicans to blink again, the road to that point will be extremely rocky.
Therefore, in my Verdict column, I develop an idea that Bruce Bartlett suggested to me the other day. The Democrats' bottom-line argument against the Buchanan-Dorf "least unconstitutional option" has never been on the substance, but on the politics. Refusing to elevate the debt ceiling over the appropriations laws is, the Obama apologists tell us over and over again ... Just. Too. Risky. Well, as Bartlett noted, that is what people said about the changes to the filibuster rule. Maybe, just maybe, Democrats can conclude from the big yawn that accompanied the filibuster changes that the Nervous Nellies in the party overestimate the horrors that will follow from a bold stand on the debt ceiling.
I understand, of course, that the voices of caution will draw the exact opposite lesson. They will say that the Democrats should thank their lucky stars that all Hell did not break loose after the filibuster was changed, and that they should now assume that they have even less running room than before. There is always a reason to surrender.
If, however, Obama were to ignore the voices of defeat, and consider trying to avoid the agony of another debt ceiling fight (and another, and another), what might he do? As I have argued before, the President's position will only be strengthened by moving earlier, rather than following his existing strategy, which by its nature requires that he wait until the last minute. Why is moving sooner better? Because it will give everyone -- pundits, politicians, and financial markets -- time to hyperventilate, get it all out of their systems, and then deal with the new reality.
The more times the White House has the opportunity to say, "We will never default on this nation's legal obligations," the better. The more times it can parade actual human beings in front of news cameras, describing how the payments that those people have been legally promised might be canceled by obeying the debt ceiling, the more obvious it will become that the debt ceiling is not about debt at all. A paraphrase of my father-in-law's line captures it best: "My wife and I don't like owing people money, so we decided not to pay our bills." That is the lunacy that Obama could expose, over and over again.
In the meantime, the Republicans will threaten impeachment, and the Democrats can castigate them for wasting everyone's time. Democrats can also point out repeatedly that the Republicans would also try to impeach the President, even if he obeyed the debt ceiling and defaulted on our obligations. Meanwhile, after a few days of right-wing business pundits saying that "no one will ever buy the government's illegal bonds," the technical people on Wall Street will announce the price that they would be likely to be willing to pay for the new bonds.
My point, in other words, is that the relative political probabilities now seem to have shifted in favor of following the Buchanan-Dorf approach. That is not at all a statement that the risks have been reduced to zero, but only that someone who was leaning against our approach two months ago could reasonably conclude that things have changed sufficiently to counsel a different course of action.
A further advantage to acting now is related to a concept known as the "news dump." In recent years, it has become common for politicians to use late Friday evenings to release information that they might find embarrassing or simply difficult to explain. With the news cycles ended for the week, the hope is that the bad news will either be ignored entirely, or that it will seem like old news when the weekend is over.
Similarly, it is common to try to bury information by releasing it when some other huge story is dominating the news. I would not be surprised if many news stories were strategically released, for example, in the immediate aftermath of the Boston Marathon bombing earlier this year. Distraction works.
Right now, there is no big story dominating the news, but everyone is looking forward to the next two weeks of holiday-related travel, vacations, and so on. One reason for the positive coverage of the Murray-Ryan budget deal, in fact, is that its passage meant that everyone could go home. Unlike the last two years, when Congress (and, therefore, the press) was held in session because of political gridlock, everyone this year is breathing a sigh of relief.
The White House could take advantage of this. As I write in today's Verdict column, the President need only say: "I vow that the United States will never default on its obligations." He does not have to say, "I now believe that Neil Buchanan and Michael Dorf were right all along, and I am going to commit an unconstitutional act, but only because it is less unconstitutional than any other act that I could commit." All he has to say is that the country will always pay its bills.
This will not go unnoticed, of course. But there could be no better time than tomorrow to put this in motion. The Republicans would still freak out, but time would be on the White House's side. I have never agreed with the people who say that, even though the Buchanan-Dorf approach is analytically correct, the White House could never dare try it. But even if they were right before, they are less likely to be right now.