Why Can’t House Republicans Have Nice Things?

David Super

      That may seem a strange and perhaps uninteresting question to ask, particularly given that I (and I suspect many readers) have no great desire for the current set of House Republicans to enjoy nice things (except, perhaps, all the many perks our system offers to former Members of Congress).  Yet on the face of it Freedom Caucus Members would seem to have a point when they say that surely Speaker Johnson could have extracted some concessions for the Ukraine aid bill now moving through the House. 

     The answer provides important insight into how Congress works; that insight's importance goes far beyond today’s House Republican Conference.  Today’s Democrats (and Senate Republican leadership) seem to have mastered these lessons; that has not always been the case and may not be in the fairly near future. 

     Repeat players.  The core point is understanding how negotiations work among repeat players.  In every negotiation, no matter how important the subject-matter, the parties have to be mindful of all the other negotiations that inevitably will follow with the same parties.  When one is under contract to buy or sell a house and one’s counterparty seeks to better their deal through dishonest means, it may be quite plausible to accede to some or all of those demands to get the transaction completed.  You will never deal with these people again so giving them the sense that you are a pushover has no monetary cost beyond the concession itself. 

     In Congress, however, every negotiator has to keep in mind not just how a concession will affect the value of this deal but also the value of every future deal they will negotiate with the same parties.  Imagine having negotiated a bill with Senate Minority Leader Mitch McConnell and having been thoroughly owned in the process.  If you go back to him after having signed off on the deal and ask for a small additional unilateral concession from him, he will absolutely turn you down.  It does not matter that the legislation would still be a huge win for him even with your change:  he cannot afford to give you the idea that you do not have to stick by your deals because next time the leverage could be different.  If you go back to him seeking an additional concession while offering him one in return, you might do a bit better.  He still probably dislikes the idea of re-opening deals, but this offer is not disrespectful, and accepting it would not establish a precedent that would necessarily degrade the value of future deals.  He may demand a more desirable concession to drive home the point that deals are deals and to discourage you from trying this in the future.  He also may insist that the modifications move in a separate bill to preserve the sanctity of the original deal.  And he may just say “no”. 

     The Democrats grudgingly negotiated substantively ghastly anti-immigrant bill with Senate Republicans as the price for aid to Ukraine.  In so doing, they created significant splits within their political base.  Republicans got essentially everything they sought in this bill.  To add insult to injury, House Republicans refused to participate in these negotiations, presumably so that they could demand even more after their Senate counterparts cut a deal.  Republicans then walked away from a bill everyone knew was a huge Democratic capitulation for nakedly electoral reasons on orders from former President Trump.  Reaching and then failing to honor an agreement is a cardinal failing among repeat-player negotiators, all the more so when one’s counterparty bore significant costs from the very existence of the deal.  Once Republicans did this, Democrats absolutely could not make any further concessions regardless of how they felt about Ukraine:  it would invite more intolerable negotiating behavior in the future.  From that point on, the leadership on all sides understood that negotiations were over and the issue would be resolved by raw political pressure.  When Ukraine and its allies ultimately won that struggle, making sure that House Republicans received no rewards for their bad-faith negotiating was crucial. 

     Priorities matter.  Republicans underperformed their leverage in this year’s appropriations battles because they proved unable to set priorities.  Many wanted specific conservative policy changes.  They lacked the leverage to achieve immediately many of their most extreme demands, but they could have won significant downpayments.   A minority of House Republicans, however, wanted to virtue-signal by opposing all appropriations bills, regardless of content.  On bill after bill, this prevented them from passing anything as extreme cuts kept all Democrats away but nihilist Republicans denied leadership a majority – or even any guidance as to how to rewrite the bills to gain a majority.  This gutted the bar­gain­ing position of House Republican leaders, who could not plausibly promise anything approaching the number of votes needed to pass legislation. 

     This pattern repeated itself on the Ukraine aid legislation.  Some Republicans wanted to make the money a loan.  Some wanted to tie it to Republican policy priorities.  Some wanted to shrink the amount.  Some wanted to stall as long as possible.  Some wanted to kill the legislation outright.  And more than a few were going to do whatever former President Trump told them to do, making them complete wild cards.  The House Republican Conference lacked a mechanism for reconciling these positions that all Members would respect.  This left Speaker Johnson with little ability to promise anything in negotiations with Democrats, and everyone knew it.

     A striking contrast was the CARES Act, the largest coronavirus relief law.  Democrats opposed corporate welfare, but their top priority was aid to displaced people, especially through unemployment compensation.  Republicans disliked unemployment compensation, but they cared far more about subsidies for their friends and donors in the business community and about creating large discretionary pools of money for the Trump Administration to dole out in an election year.  Naïve partisans chided Democrats for being sloppy about accountability for the business subsidies or attacked Republicans for undermining the primacy of work with the liberalized unemployment benefits.  In fact, everything went according to plan.  Indeed, the CARES Act was remarkably well-drafted for such a large, complex bill negotiated and drafted under egregious time pressures. 

     Time matters.  Congressional repeat players tend to be fiercely risk-averse.  A great many concessions get made out of fear of highly unlikely events.  I have seen congressional staff win huge changes in bills by threatening to have their bosses give speeches that they and I (but not their opponents) knew their bosses were philosophically opposed to making.  And I have gnashed my teeth when staff gave away the farm to prevent a speech that the Member in question was clearly too distracted (and lazy) to give.  The key to this, however, is leveraging uncertainty. 

     House Republicans’ continual refrain that their leaders were cutting spending deals too early and should have held out for more forced Speakers McCarthy and Johnson repeatedly to wait to the last possible moment to move legislation.  At that point, they lacked time to negotiate and, because their party would obviously be blamed for a government shutdown, had no leverage with the Democrats.  They never had the traction to achieve the House Freedom Caucus’s maximalist demands, but dawdling at a time when the political outcome was a bit more uncertain destroyed what potential they had. 

     Similarly, even a month ago, Democrats’ ultimate ability to get enough signatures on a discharge petition on Ukraine aid was uncertain.  That uncertainty could have given Republicans some leverage.  But with Rep. Marjorie Taylor Greene threatening Speaker Johnson’s gavel if he moved any Ukraine aid bill and other Republicans hedging their bets about whether they would support her, the Speaker was afraid to try to cut a deal.  By this week, the news out of Ukraine was disturbing enough for more than enough House Republicans to signal to the Speaker they would soon sign the discharge petition if he did not bring Ukraine aid to the floor himself.  With all reasonable risk removed, he could no longer leverage Democrats’ risk aversion.   

     Rhetoric matters.  Although it has become fashionable to say that we live in a post-truth world, this is not entirely correct.  Floor speeches rarely persuade opponents now as they might have in the past, and we have all seen that telling innumerable verifiable lies is no longer an impediment to reaching the highest office, but the specific arguments one makes for one’s positions nonetheless matter.  Consider a relatively insignificant local bridge in a bipartisan infrastructure bill moving rapidly through Congress.  If a Democratic Member of Congress says that this bridge is the key to that Member’s strategy for the region’s economic rejuvenation, Republicans will likely roll their eyes and start making their dinner plans.  But if the Democrat praises the bridge because its construction will require demolition of a neighborhood that consistently votes Republican, Republican Members will have no choice but to fiercely object and to stop the legislation in its tracks until the offending bridge is removed – even if the demolition story is entirely fanciful and even if Republicans benefit far more from the overall bill.

     So long as opponents of Ukraine aid made fiscal conservative arguments, no matter how fatuous, they received a free pass.  But when House Republicans returned to demanding anti-immigrant legislation after having lured the Democrats into that trap and reneged previously, Democrats could not even consider immigration-related concessions without encouraging similar behavior in the future.  And when Reps. Greene and Gaetz shamelessly repeated long-discredited Russian propaganda about “Ukrainian Nazis” – have they really never seen pictures of Dmitri Utkin, co-founder of the Wagner Group that did much of the fighting for Russian in the first sixteen months of the war? – even many House Republicans felt obliged to call them out.  Refusing to sign the discharge petition to bring Ukraine funding to the floor previously had been an act of partisan Republican loyalty; Reps. Greene and Gaetz turned it into an admission of being an asset of a hostile foreign power.  For many of their colleagues, that was too much.  

     @DavidASuper1

Norm Breaking at Columbia

David Pozen

Recent events at my home university have inspired a torrent of critical commentary. That Columbia’s leadership declined to follow various norms of campus governance does not, in itself, prove that it acted unwisely. But seeing the pattern of norm breaking helps throw into relief the potential costs of its decisions in the future as well as the present. 

First, during President Shafik’s testimony on Wednesday before the House Committee on Education and the Workforce, she disclosed that several faculty members are under investigation for making discriminatory remarks. “President Shafik’s public naming of [these faculty members] to placate a hostile committee,” the American Association of University Professors observed, “sets a dangerous precedent for academic freedom and has echoes of the cowardice often displayed during the McCarthy era.” In setting this precedent, Shafik violated a longstanding norm of confidentiality regarding internal disciplinary proceedings. University rules provide that allegations of discrimination will be handled in a confidential manner. Often, these proceedings are handled so secretively that even the complainant is kept in the dark. To have an ongoing investigation revealed by a top administrator on live TV, in the absence of a subpoena or other legal compulsion, is a stunning departure from campus customs and investigatory best practices more generally.

Second, although President Shafik’s decision to invite the NYPD on campus to arrest students may have been within her formal authority, it breaks with an informal settlement that had been in place for more than a half-century. The last time the university called the cops on student protesters was April 1968;^* that episode ended so bitterly and bloodily that it yielded a norm of police noninvolvement. Since 1968, student protesters have repeatedly occupied Low Library, blockaded Hamilton Hall, held sit-ins in administrative offices, waged hunger strikes, staged walkouts, and more. Some of these protests led to disciplinary code charges. None elicited a criminal law enforcement response. This week’s encampment on the South Lawn posed a difficult problem for the university administration, to be sure, but not one that was different in kind, duration, or disruptiveness from scores of post-1968 protests. When the next extended student demonstration occurs, it will be hard to resist pressure to call in the cops again. 

Third, the most serious charge that President Shafik leveled against the student protesters, that their encampment created a “harassing and intimidating environment,” was made without the benefit of any factfinding process.^** “Discriminatory harassment,” defined to include the creation of “an intimidating … environment,” is prohibited by Columbia’s Standards & Discipline policy. But that policy, and the procedural protections that come with it, does not seem to have been applied here. This suggests that the university deemed the protesters’ expressive conduct, as well as their occupation of the lawn, to be in violation of the Rules of University Conduct. Yet while the Rules allow the restriction of “expression that constitutes a genuine threat of harassment,” President Shafik offered no examples of such threats, nor to my knowledge have any been reported. If this finding of harassment is based on the discomfort some feel from the presence or message of the encampment, then the harassment concept—intended to set an objective standard that preserves a wide berth for provocative speech—has become an engine of viewpoint discrimination. Either way, its application to this case indicates that the president’s office now believes it can make such fraught judgments summarily and unilaterally.

Other examples of recent ruptures might be added to the list. In the jettisoning of these institutional norms, one throughline is the prioritization of immediate objectives over longer-term considerations of academic autonomy and democratic self-governance—considerations that the norms had developed, however imperfectly, to protect. In the university as in the wider world, crisis has thus led not only to rising repression but also to the consolidation of presidential power.

 ^* Two readers have pointed out to me that this statement is incorrect, as students were arrested in 1987 for “chain[ing] the doors of Hamilton shut” and in 1996 for “blockad[ing] the five entrances to Low Library to prevent University employees from entering.” (A preceding sit-in in the office of the Columbia College dean was not met with a police response.) I thank these readers and regret the error. Notwithstanding these episodes, it is striking that the norm against inviting cops on campus to arrest peaceful protesters otherwise remained so robust and that both deviations from the norm involved the forced closure of a university building, unlike with this week’s encampment.

 ^** Another reader contends that this sentence minimizes the seriousness of the trespass charges, which are not merely administrative but criminal in nature. But the basis for the trespass charges is that the protesting students had been suspended, effective immediately, for violating university rules—and therefore were not allowed to be on campus. And the most serious (though not the only) university infraction that the protesters were deemed to have committed, as far as I can tell, related to the creation of a harassing and intimidating environment.

Abrams Institute Conversations: Will the Supreme Court Let States Take Control of the Internet?

JB

Here is a conversation between Tim Wu and myself, moderated by Floyd Abrams, about the First Amendment issues in the NetChoice cases before the Supreme Court. (Tim and I participated in writing amicus briefs on opposite sides of the case.) 

This event, which was recorded on March 4, 2024, is a part of a series of conservations on free speech issues hosted by the Abrams Institute for Free Expression at Yale Law School. 

The Supreme Court's First Chat-GPT Opinion

Gerard N. Magliocca

A bill is pending in the Nebraska Legislature to return that state to a "winner-take-all" system for allocating electoral votes. In 2020, President Biden won an electoral vote in Nebraska under the current "split" system even though President Trump easily carried the state. Nebraska Republicans are eager to avoid a repeat especially given that the 2024 election could come down to a single electoral vote.

If enacted, this law should face constitutional questions under Trump v. Anderson. Some of the Justices at oral argument expressed dismay at the possibility that one state could decide a presidential election. This was contrary to the Constitution's structure, they said. They also worried about retaliation. If Nebraska can do this for partisan advantage, why can't another state do the same? Where will this end? 

Of course, no such constitutional scrutiny will be given to this sort of change in Nebraska or to state laws that will probably keep Robert F. Kennedy Jr. off the presidential ballot in some states. The logic of Trump is something that only Chat-GPT could love.

UPDATE: Nebraska lawmakers voted down the bill and doubled down on our patchwork method of allocating electoral votes.

How the Supreme Court uses ‘tradition’ to take away the rights of Americans

Andrew Koppelman