-- Posted by Neil H. Buchanan
Last Tuesday, my Verdict column and my Dorf on Law post discussed the possibility that the Republicans will impeach President Obama next year, as part of a renewed standoff when the debt ceiling is reinstated in the Spring. My central argument was that the Republicans, who have arguably been using the debt ceiling to set an "impeachment trap" for the President, might instead find themselves trapped inside their own illogic, inexorably moving toward impeachment even as the party's establishment tries to prove that the party can "govern responsibly" (in the now-standard phrasing) and thus earn the trust of voters in 2016.
As so often happens here on Dorf on Law, several readers offered thought-provoking responses on the Comments board for Tuesday's post. Here, I want to discuss those comments, objections, and suggestions, because they have certainly helped me to think about this broad question more deeply and (I hope) more clearly. Those comments raised three important issues:
1) Impeachment is Never Going to Happen
Perhaps my entire premise is incorrect, and the Republicans will simply never impeach Obama, no matter what he does. After all, the party has correctly been blamed for the 2013 government shutdown, even though the most extreme members of Congress convinced themselves that they could "win" the shutdown. (Some of them apparently still believe that the shutdown was a political win.) If Republicans could not figure out a way to win a shutdown under Obama any more than they could win the shutdown under Clinton (which was, technically, two shutdowns), then they dare not imagine that they could impeach Obama without making him appear to be a sympathetic victim. Clinton's popularity surged after he was impeached and tried. Although the Republicans managed to win the ensuing election (sort of), they might not want to risk that again.
This very plausible argument raises two further thoughts. First, it oddly resonates with my second Verdict column and Dorf on Law post last week. There, I returned to an argument that I have made in various ways, which is that the Republicans' broad strategy over the last generation or so has been to undermine the legitimacy of the institutions of government -- to, in the words that I borrowed in my Thursday blog post, turn everything into a Putin-style "cynical farce" -- because the powers behind the conservative movement like it when there are no countervailing forces to prevent them from getting their way.
How does the unavailability of impeachment fit into that argument? As one commenter noted, some conservatives have recently argued against prosecutions of the CIA torturers and their superiors who ordered the torture, on the basis that this would merely be "prosecuting policy differences," or something like that. This means that there is no way to hold anyone in the opposite party accountable, no matter how lawless they have been, because attempts to enforce the law will be seen as cynical partisanship.
In the context of impeachment, that means that an important fail-safe in the Constitution has been neutered through misuse. Although currently that might make the Repulbicans unhappy, because their own misuse of impeachment (and six years of constant talk about misusing it again) have made it arguably impossible for Republicans to take down Obama.
Even if that is true, however, it certainly means that any future Republican presidents would feel emboldened to do whatever they want, always knowing that they can say, "Hey, we never impeached Obama despite his tyrannical actions!" More to the current point, they might want to take the opportunity now to deal a death blow to future uses of impeachment by giving it one last shot while Obama is in office. I doubt that they are thinking about it consciously, or that they would be willing to put their 2016 nominee in the position of defending the impeachment to an angry electorate, but there is an arguable long-term purpose that even an unsuccessful impeachment could serve.
Still, I think that the more likely path to impeachment is the one that I described last week. It is not that the Republican leadership could be convinced that an impeachment is a good Plan A, but instead that path dependence will take over in the midst of a debt ceiling battle. What would happen if Republicans in Congress -- most of whom (even non-Tea Partiers) have publicly denounced increases in the debt ceiling -- finally refuse to blink, and Obama carries through on his announced belief that he would then have no choice but to start defaulting on legally required payments to federal obligees (veterans, Social Security recipients, schools, hospitals, Medicare providers, and so on)? No matter whether Obama protects bond holders by prioritizing their interest payments, will it be irresistible for Republicans to impeach Obama for his lawlessness? After all, he will have committed a constitutional violation by usurping Congress's spending power.
Overall, I have to say that I agree with the commenter that the Republicans will try very hard not to indulge their impeachment fantasies. I am simply saying that this is exactly the kind of thing that can quickly take on a life of its own. After all, the 2013 shutdown happened after months of assurances that the Republicans could never allow that to happen, and then it happened. Impeachment is a bigger deal, of course, but the Republicans inside and outside of Congress have been building a case against Obama that would fit perfectly with the picture of the President failing to pay some people while honoring obligations to others. He picks and chooses which laws to enforce, right?
2) No Matter What Republicans Do, Democrats Should Govern Responsibly
Another comment pushed back against my suggestion that Democrats should play political games in response to Republicans' political games. I had argued that Democrats have allowed Republicans to have their cake and eat it, too, with Republicans mostly refusing to vote to prevent financial panic, knowing that Democrats will uniformly vote to do the right thing, joined by the bare minimum number of Republicans.
My idea was that Democrats should force Republicans actually to be the responsible party that they claim to be. I will discuss the strategy that I described, and its alternatives, in my third point below. But the threshold question is whether it is acceptable for Democrats to play politics with the nation's credit rating. We want to believe that politicians are not merely in it to win the next election, so why would it be good for the Democrats to throw the dice on a possible political win when "crapping out" would mean financial and economic collapse?
I suppose that everyone has a threshold of idealism, below which they will not go. I have always thought of myself as a cynical idealist, but here, I certainly think that it is more than acceptable for a political party to try to figure out a way to get the other political party to stop having it both ways. Yes, that does raise the possibility of its own kind of path dependence, but having seen this farce played out multiple times over the past few years, it seems at least worth considering ways to put Republicans' feet to the fire.
Now, an alternative to my suggestion is simply to have Democrats act responsibly, and then to win elections by pointing out to the American people that the Republicans have been irresponsible. But pointing out that the Republicans deliberately strangled the economy for the past six years and then ran against Obama on the economy was hardly an electoral winner for Democrats in 2014. At this point, I do find it hard to imagine that there is a political dividend in simply allowing virtue to be its own reward.
In addition, we should remember that President Obama has been responsibly signing the "clean" debt ceiling bills that have eventually arrived on his desk, even though Republicans have mostly not voted for them, and even though the President could have made his own demands before signing such bills. The question here is logically prior to that, asking whether the Democrats in Congress should force Republicans to prove that they can govern, before anything is sent to the President.
3) Winning the Politics is Tricky
Even for those who are still on my side in this discussion, another commenter pointed out that it is difficult to figure out how various strategies will play with the public. My suggestion -- an offer by the Democrats to provide one vote for a clean debt ceiling increase in exchange for every two Republican votes -- would (as that commenter noted) open the Democrats to claims that they were being unfair to Republicans, forcing Republicans to do the heavy lifting rather than being equal partners. After all, by design, my suggested strategy could result in 146 Republicans and 72 Democrats voting for the bill, which would be a clear majority of Republicans and a clear minority of Democrats.
As I noted in my reply on the comments board, I am not committed to any particular strategy. For example, the Democrats could instead say, "If half of the Republicans will vote the right way, then more than half of us will do so, too, and that will guarantee passage." That would probably look more "fair" to outside observers, and Democrats could even claim to be generous, by providing the tie-breaking vote. But this strategy, too, is not really the point. My idea is to have Democrats respond to Republicans' brinksmanship by refusing to be the reliable chumps who allow Republicans to fulminate about the evils of debt and then to run for re-election on a record of never having voted for a debt ceiling increase.
In response, my commenter suggested that I had missed an even bigger point, which is that the Democrats would risk losing the politics by playing politics in the first place. Another commenter referenced the 80's movie "War Games," where a super-computer learned that the only way to win the game of thermonuclear war is not to play. After all, I titled my post "How Will Democrats Play the Impeachment Trap Game?" Maybe the right answer is not to play at all, both because of the risks to the country and because even a non-catastrophic result is not a guaranteed political winner.
Indeed, I criticized another writer last year for suggesting that the President should never blink during debt ceiling negotiations, and if the Republicans actually failed to act responsibly, then the President should simply allow default and "win the politics." That struck me as a terrible idea, because it would have the President choosing to allow a default for political purposes (and, along the lines of the argument here, it might not even work politically).
The difference, as I noted above, is that we are now talking about what Democrats should do during the stare-down phase. I think we all know that the Democrats would ultimately vote for a debt ceiling increase, but we also know that they have most definitely lost the politics thus far. They are still painted as the party of profligacy, even while Republicans vote for spending increases and tax cuts that require additional debt.
In the end, I think my position here boils down to this: There is a lot
of room between what the Democrats have done thus far, and the most
aggressive (and risky) things that they could do to try to win the politics. Being
earnest and outraged has not worked. Something else, even something
that falls far short of actually risking accidental default, might be
worth trying. That might seem like a retreat from my previous post, but in fact I am simply expressing confidence that Democrats can do something to get Republicans to stop winning by obstructing. So far, the Democrats have not even tried.