Thursday, September 26, 2019

What Limits Do Republicans Have -- If Any?

Note to Readers: My new Verdict columnCould Biden’s Promise to Return to ‘Normal’ End Up Being Even Worse for the Country?, was published this morning.  There, I consider the possibility that a Biden win in 2020 might be a very temporary victory for sanity.  Most importantly, I suggest that Biden's status as the ultimate Washington insider whose longtime default instinct has been not to rock the boat -- an attitude that summarizes his current reason for running, that is, getting back to "normal" -- could backfire spectacularly if his crippling caution turns off voters looking for real solutions.  I might have more to say on that topic in future columns on Dorf on Law or on Verdict, but today's column here is on a different topic entirely.

by Neil H. Buchanan

Over the summer, I tried to find a reason -- any reason at all -- to be optimistic about how the Trump presidency might play out.  I noted in one column that Republicans, who in most ways seem to be doing absolutely nothing to restrain their president-cum-humiliater, might actually be doing things behind the scenes that steer Trump away from his worst impulses.

I offered as examples the failed efforts to put Herman Cain and Stephen Moore on the Federal Reserve Board, some withdrawn judicial nominees, and a few failed Executive Branch nominations -- although one "success" (getting rid of Matthew Whitaker at Justice) led to William Barr's return as Attorney General, which with 20/20 hindsight counts as a massive yikes.

In a followup column, I pointed out that even Trump and Barr had backed away from what initially looked to be a full-on attack on the legitimacy of the Supreme Court in the context of Trump's desire to add a citizenship question to the 2020 census.  We do not know why Trump/Barr ultimately chose not to pursue that route, but that very mystery at least is consistent with the idea that something or someone, somewhere is restraining Trump in various ways.

That might not stop him from doing his worst when the chips are truly down -- as when he loses the 2020 election and is tempted to declare the election void and refuse to leave office -- but it might.  We simply do not know who or what stops Trump from being even more unhinged than he has already shown himself to be.

In the time since I wrote those columns, I had been planning to turn at some point to the related question of the limits that seem to exist on the Republican side, asking what stops them from doing even more outrageous things than they are already doing.  Much to my surprise, however, the emerging impeachment crisis of the past week or so presents the question of Republican limits much more pointedly.

Here, I will first talk about the immediate crisis, speculating on the Republicans' range of possible strategies going forward now that the political terrain has shifted so dramatically.  I will then ask what they will do if Trump survives and they return to something like the status quo as it existed, say, two weeks ago.

I am hardly the only person who is astonished by what has happened in the last few days.  Frustration among Democrats with Nancy Pelosi and her team's chronic tentativeness and unwillingness to take anything resembling a stand has suddenly turned into a full-on rush toward the possible impeachment of Donald Trump and a searing Senate trial, possibly even before the end of this calendar year.

At this point, I suppose that one could say that Pelosi was either savvy or lucky.  Savvy if one views her as having thought, "If I just give him enough rope, he'll finally do something so bad that there will be no ambiguity.  Come into the trap, my non-pretty!"  Lucky if the defensive crouch that would have let Trump get away with multiple impeachable offenses has been overtaken by events that no one could have predicted or resisted.  As much as I admire Pelosi's many talents, I am leaning toward calling her lucky; but I suppose that is not a big deal either way.

The reality, after all, is that Republicans now find themselves being forced to stand up and say something.  Many are nonetheless refusing, saying that the facts are not in (not true) or that they need to think about it (probably sadly true).  Republican pundits are flailing with various arguments about, say, Trump still being popular with his base or (my favorite) the weird claim that Democrats outraged responses to Trump's many previous outrages make this outrage no big deal (thus validating the idea that all Trump needs to do is keep up the craziness in order to make sane people's outraged responses seem somehow less important because of their frequency).

Surely, many House and especially Senate Republicans will take solace in those embarrassingly bad arguments.  But unlike the pundits, they have to live with the electoral consequences of their choices (both for their own seats and for the possibility of losing the White House and their colleagues' seats) as well as to wrestle with whatever conscience and genuine patriotism might yet remain in their almost completely compromised heads and hearts.

Will twenty Senate Republicans actually vote to convict Trump?  It still seems unlikely, but the ground is shifting so quickly that we can no longer be confident of anything.  Moreover, as in Watergate, it might not reach the point of actually taking votes, if Trump becomes convinced that he would lose a vote and thinks that a negotiated departure is better.  Unlikely, given his personality, but possible.

Will the Republicans up for election next year, especially the ever-hapless Susan Collins of Maine, decide that their hides are safer by coming out against Trump or sticking with him?  Will any of them do the right thing even though they believe that doing so will end their careers?

In any case, we are now looking at an immediate future in which there will be an answer to the question posed by the title of this column: "What Limits Do Republicans Have -- If Any?"  Maybe there truly is nothing that would cause Trump's red wall in the Senate to crumble, but we were also sure that Mitch McConnell would never agree to allow a vote on a bill to improve election security.  Yet he did.

And that raises the question that I was pondering even before this genuine crisis erupted, which is whether Republicans have any limits in other, non-Trump-related issues and strategies.  Until the 2018 midterms, they had full power to do anything they wanted.  They could have (and still can) get rid of the filibuster in the Senate.  They could have done even more radical things like shutting down the committee system and running everything through the Majority Leader's office, or they could have declared that "advise and consent" means no votes need be taken and that "silence means consent" (thus obviating the need for anyone to go on the record to vote for any of Trump's nominees, making "acting" positions obsolete).

Certainly, they had the power to continue to try to repeal the Affordable Care Act, to gut the Clean Air Act, or to pull the United States out of the United Nations (all ideas that have long been popular on the right).  Moreover, they had the power to do all of that during the lame-duck period in December 2018 after they knew that they would no longer control the House.  They did none of those things.

The point is that, although Republicans seem to put up with anything and everything that Trump forces them to defend, and although they have a truly radical agenda, they have not literally done their worst.  There is still a corporate income tax -- shrunken, but not repealed.  Personal tax rates are still higher on rich people than on poor people.  Military spending is finite.  Trump has been reduced to stealing money from the Pentagon to build parts of a wall that Republicans had two years to fund.

Hillary Clinton is not locked up.

Republicans, in short, do stop somewhere.  What stops them?  It could be that they truly have been doing everything on which they agree amongst themselves.  The border wall is obviously not a popular idea among Republican officeholders, so inaction there is not necessarily proof of anything but an intra-party political standoff.

The other matters, however, are not so easily explained.  Especially now that Republicans have stopped pretending that they care about the federal budget deficit, why did they not enact their tax wishlist?  Why not end SNAP (food stamps), allowing them to say that they are helping poor people take responsibility for their lives?  Why does the Earned-Income Tax Credit (a subsidy for low-wage earners) receive any funding?  Even with the House in the Democrats' hands, why does the Republican-run Senate not taking much harder bargaining positions in line with their known preferences?

There is an obvious answer here, but I have been resisting it because I am skeptical that Republicans are restraining themselves out of fear of being held in low esteem by American voters.  The party is unmoved on gun legislation, even in the face of enormous majorities supporting any number of gun-control proposals.  Republicans are shutting down abortion clinics everywhere they can, even though the party's position is profoundly unpopular.  They do not seem to worry that their unpopular positions threaten them politically, and they know that the courts will not stop them from gerrymandering, suppressing votes, and so on.

The only plausible explanation, however, must be that Republicans actually do believe that they cannot simply continue to get away with anything they please.  As much as it often does not seem like it, they are keeping their powder dry and setting priorities.  They gave their wealthy backers a big gift, but they apparently do not dare do more.  They like having states muck around with heartbeat bills and open-carry laws, but they worry that federal legislation will cause them electoral harm.

Is this obvious explanation -- politicians do no more than they think they can get away with -- a bit too obvious?  Perhaps, but I think it is worth remembering that -- even in the time periods when Trump was less of a drag on them and when they had full power, the Republicans showed unexpected restraint in various ways.  Granted, it did not feel like restraint to the rest of us at the time, but that is what it was.

In the end, this means that Republicans (and Democrats, but that is obvious) are constantly navigating limits, acting rashly in some ways but actually showing no sign that they feel invulnerable.

That could be bad news for Trump in the medium term, if the vulnerabilities start to scare enough Republicans.  Even if he stays in office through the rest of his term, however, and even if he actually were to win in 2020 (although I continue to think that too many people treat that as more than a farfetched notion), the "all bets are now off" reaction will be tempting but simplistic.

They will try to get away with a lot, but it will be not be everything.  What stops a full-on run toward fulfilling their wishlist will be important to understand.


JS said...

These are the documents at the heart of the Ukraine whistleblower case:

I suggest downloading them and saving them to a local hard-disk lest they disappear from public view.

Democrats need to make it clear right now that if Trump resigns and Pence pardons him PENCE will be impeached.

Joe said...

Pence has aided and abetted Trump so he is very well someone who deserves serious impeachment consideration. Pence might pardon him too late for impeachment to be a remedy at any rate.

I think Republicans have some limits. I don't think, e.g., they will allow Trump to stay in power if he doesn't win the election. Various members of his Cabinet are at least somewhat competent especially military/national security type of positions. There doesn't seem to be any evidence of Republicans allowing people to be murdered in political hit jobs. etc.

There is a lot of bad stuff left on the table but given the types of tyrants and tyrannies in power, such limits do matter.

Michael A Livingston said...

I think actually that Republicans have many principles, they are just not the same as those on the other side. I do think that the obvious glee of Democrats in pursuing impeachment—numerous op-Ed’s, etc. came out before the principal documents were even released—creates a sense of bad faith on the Democratic side and makes it very difficult for Republicans to cooperate. More self-control on one side might be met with more on the other.

Joe said...

Democrats supported impeachment for some time because Trump committed a variety of impeachable offenses. This latest matter at most is so blatant that it pushed the last group that held back over the edge to support impeachment. Those supportive of impeachment repeatedly did so on principle and regret. "Obviously glee" is a somewhat cheap phrasing.

Evidence was there; the latest documents just made it that much clearer. Anyway, the "Democratic side" is super vague. There are nearly 200 Republicans in the House. Multiple op-eds by a few of them don't tell me what the whole "side" believes.

Republicans are not taking part because they are Republicans and Trump is the leader of that party. It is not based on some bad faith on the side of the Democrats. If you want to argue that if "their guy" was in power the Democrats as a whole might be against impeachment, go right ahead; it would a lot more convincing.

The Democrats have been far from "gleeful" in rushing to impeachment. The process has been drawn out, even in the face of repeated stonewalling on shallow grounds. The Speaker of the House herself has long been rather negative about impeachment. Republicans rarely gave an inch, even when a Vietnam vet, lifetime Republican former head of the FBI testified. Even now, there is an impeachment "inquiry."

It's unclear how much "self-control" the Democrats are supposed to have here especially given what they have to face.

Frank Willa said...

Professor, I hope you are right that the Republicans have limits. Just saw a Nevada republican out in support of inquiry, so maybe if the evidence develops, enough Republicans will break from total Trump support. As to Pence issue comments here, two thoughts. First, if Pence is involved, and a criminal charge was brought (would this DOJ?) and it is not prohibited in OLC opinion, then the Nixon/Agnew scenario could play out; then the new VP would have the pardon issue if Trump is later impeached, not Pence. The second thought is, if Pence( like Agnew) would be charged would Trump pardon him - would that leave him in the VP?, so if Trump is then impeached, Pence could pardon him? Then, could an impeachment of Pence proceed for acts that have been pardoned? Seems convoluted. Don't have the answers, just questions.