There’s an incredible bit of irony in the latest outcry from grassroots conservatives, Republican-aligned media personalities, and Trump supporters in the wake of Mitt Romney’s surprising embrace of the “contested convention” strategy for defeating Donald Trump. As discussed here last month, during Romney’s speech urging a coordinated broadside against the current Republican frontrunner, the 2012 nominee stated: “Given the current delegate selection process…I would vote for Marco Rubio in Florida, for John Kasich in Ohio, and for Ted Cruz or whichever one of the other two contenders has the best chance of beating Mr. Trump in a given state.” In other words, Romney explicitly advocated a strategy of using the technical delegate selection rules to prevent a Trump nomination supported by the plurality of Republican voters. It was a plan in violation of the traditional understanding of the past half century that the convention should ratify the will of its party’s voters. This idea has not gone over well with many Republican voters. As the New York Times reported in early March under the headline “Rank and File Republicans Tell Party Elites: We’re Sticking With Donald Trump”:
From Michigan to Louisiana to California on Friday, rank-and-file Republicans expressed mystification, dismissal and contempt over the instructions that their party’s most high-profile leaders were urgently handing down to them: Reject and defeat Donald J. Trump. Their angry reactions, in the 24 hours since Mitt Romney and John McCain urged millions of voters to cooperate in a grand strategy to undermine Mr. Trump’s candidacy, have captured the seemingly inexorable force of a movement that still puzzles the Republican elite and now threatens to unravel the party they hold dear…In interviews across the country, Republican voters suggested that Mr. Romney’s move was presumptuous and described him as out of touch and ineffectual. “They want to control the election because they don’t like Trump,” said Joann Hirschmann of Shelby Township, Mich., a supporter of Gov. John Kasich of Ohio. “And I can understand that. But you have to let the people speak.”
Even Senator Lindsey Graham recently stated that denying Trump the nomination under these circumstances would be unfair. And yet, from their opposition to President Obama’s healthcare and tax reform initiatives to their recent vow to deny a vote on any Obama Supreme Court nominee, Republicans in recent years have repeatedly used tactics legally viable but previously unthinkable. Trump himself has upended every tradition of decency and responsibility, embracing the credo that might makes right. The offensiveness of the Romney strategy, then, is just the latest example of the degradation of the idea that democratic norms hold similar importance to official rules. The perversion of the Republican primary process is merely the consequence of Republicans’ own determination to use any and every available tactic to thwart the Obama Administration.
There is no better example of Republicans’ use of technically allowed but socially unacceptable tactics than the 2011 debt ceiling debacle. That catastrophe involved congressional Republicans’ decision to threaten total economic collapse in order to achieve their desired budget. Fresh off the Tea Party wave of 2010, the new Republican House majority felt it had a mandate to pass its agenda without compromise, regardless of the White House’s occupant. To do so, it seized upon an idea utterly unthinkable to past Congresses of both parties: demand total capitulation backed by a threat to launch the country into financial Armageddon. House Republicans used the expiration of the debt ceiling—the nation’s borrowing limit established by law—as a bargaining chip to hold the President hostage. This is no exaggeration. Refusing to increase the nation’s borrowing limit when spending obligations approached the preexisting cap was deeply irresponsible, risking a government debt default and a resulting economic collapse. Nor was raising the debt ceiling as a political issue a principled stand against deficit spending. The debt ceiling only concerned the government’s borrowing limit; the money borrowed was for funds already appropriated and money already spent. Republicans took a process previously seen as beyond partisan politics and exploited it repeatedly for partisan gain.
Unsurprisingly, this unprecedented assault on democratic norms led Democratically-aligned groups to consider previously unimaginable countervailing measures. One option floated by legal commentators and Democratic politicians was for Obama to invoke the Constitution’s Fourteenth Amendment and unilaterally raise the debt ceiling without an act of Congress. Section four of the Fourteenth Amendment only states in this regard that “the validity of the public debt … shall not be questioned.” To raise the debt ceiling based on such a legally ambiguous sentence (especially given that section’s further language placing it squarely in the post-Civil War context) was a controversial plan. As the title of a Garrett Epps article in The Atlantic put it, “If Congress Won’t Raise the Debt Ceiling, Obama Will Be Forced to Break the Law.” That title was somewhat hyperbolic. Advocates of the Fourteenth Amendment option often persuasively argued that unilateral executive action under guise of that amendment was in fact legally required. Law professors Neil Buchanan and Michael Dorf wrote that use of the Fourteen Amendment to ignore the debt ceiling was “the least unconstitutional course.” Others contended that Obama clearly had the constitutional power to prevent an economic catastrophe and affirm that the U.S. government pays its debts. Regardless, given that the “legal path is not clearly marked either way,” Obama’s end-run around congressional approval for an increase in the debt ceiling would be regrettable. It would simply be one violation of an important and accepted norm necessitated by another.
This wasn’t even the most fanciful proposed solution to the debt ceiling standoff. An even more absurd idea that gained currency (excuse the pun) during the debt showdowns of 2011 and 2013 was to extend the little used statute 31 U.S.C. § 5112 to mint a trillion-dollar platinum coin. Section 5112 provides: “The Secretary [of the Treasury] may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.” Although likely intended to allow for the Treasury to print limited-edition novelty coins, many respected voices claimed, as Matt Yglesias did at Slate, that the Treasury Secretary could “have the Mint create a $1 trillion coin. Then he can walk it over to the Federal Reserve and deposit it in the Treasury’s account. Then the government can keep sending out the checks—to soldiers and military contractors, to Social Security recipients and doctors who treat Medicare patients, to poor families getting SNAP and to FBI agents—it’s required by law to send—and the checks will clear.” Again, whether this strategy was legally allowed is beside the point. A well-functioning democracy should not have to rely on cheap gimmicks and legally dubious means to accomplish basic tasks easily accomplished when all political bodies act in good faith. New York Times columnist Paul Krugman may have been right to say that complaints that the coin strategy was “undignified” were silly given that the situation was akin to one “in which a terrorist…walk[s] into a crowded room and threaten[s] to blow up a bomb he’s holding.” Yet, that should not prevent us from lamenting the state of affairs that led to both the unfortunate situation and the required but still undignified response.
Obama’s strong stance on debt ceiling negotiations in 2013 and 2015, after initially caving in the summer of 2011, effectively ended that threat. Yet, Republicans did not slow their attempts to clog the basic machinery of government to achieve their basic policy goals. In the Fall of 2013, Senator Ted Cruz and members of the Tea Party-aligned House Freedom Caucus led a futile but damaging charge to shut down the Federal Government in an attempt to repeal the Patient Protection and Affordable Care Act, better known as Obamacare. On the eve of the shutdown, the New York Times described the disgust with which Democrats and moderate Republicans held then-Speaker of the House John Boehner’s demand to delay and defund key provisions of Obamacare in exchange for a continuing resolution to keep the federal government open for business:
In one of their final moves, House Republicans attached language to a government funding bill that would delay the mandate that individuals obtain health insurance and would force members of Congress, their staffs and White House staff members to buy their health insurance on the new exchanges without any government subsidies. Conservative activists have portrayed the language as ensuring that Congress and the White House would be held to the same strictures that apply to ordinary Americans under the health care law. In fact, the language would put poorly paid junior staff members at a disadvantage.
Then-Senate Majority Leader Harry Reid referred to these efforts as the product of a “banana Republican mind-set,” while California Republican Congressman Devin Nunes admitted: “It’s moronic to shut down the government over this.” Yet, from October 1st to October 16th, Republicans refused to fund the government over a run-of-the-mill policy dispute. Even worse, now the precedent has been set. Rightwing activists and the opportunistic Senator Cruz have sought government shutdowns over other policy disagreements with the Obama Administration, including over the President’s executive actions on immigration and over Democrats’ refusal to defund Planned Parenthood.
Naturally, Republicans’ penchant for norm-defying tactics has led to the emergence and early dominance of the ultimate challenger to accepted and once-untouchable values. Donald Trump’s operating principle has been to shred accepted norms of political decorum and to insult his way to the presidency. The Trump campaign has refused to follow basic conventions for how political campaigns should be run, insulting war heroes, embracing religious discrimination, fomenting violence at his rallies, openly and brazenly lying about his actions and statements, courting white supremacists, neglecting to issue real policy papers, eschewing sophisticated campaign advisors and surrogates, twice refusing to support the eventual Republican nominee, openly mocking and insulting respected Republican Party leaders, using profane language, repeatedly denigrating women’s looks, making reference to bathroom subjects, and viciously attacking journalists. Trump’s entire shtick has been to leverage every ounce out of abhorrent practices previously checked only by both sides’ sense of decency. There are no sacred cows with The Donald. Conservative voters who were fed the belief that political correctness (and not political hostage-taking) was the real scourge of the country, ate it up.
All of this has lead into the latest degradation of accepted political norms, the Senate Republicans’ complete refusal to consider, or even hold hearings on, President Obama’s nomination of Merrick Garland to the Supreme Court. Senate Majority Leader Mitch McConnell’s asserted justifications for this disgraceful behavior have no credibility. There is no “Biden Rule” or any real precedent for refusing to hold hearings on a presidential nominee. The notion that filling a vacancy in an election year would deny voters the ability to have their voices heard disregards the loud voice with which voters spoke in 2012. Instead, the clear precedent and accepted practice is that well-qualified nominees within the main stream should be voted on and confirmed. Faced with this unprecedented and disgraceful obstruction, Slate’s Dahlia Lithwick proposed a clever solution: Judge Garland should just show up to work and take the bench without Senate approval. The idea is based on the ambiguity of the constitutional requirement that the Senate provide “advise and consent” on a nominee. The plain language of that constitutional provision does not clearly require a vote of approval. Rather, a plausible reading of its text is that prolonged inactivity could also be read as acquiescence to the nomination. Lithwick’s proposal may have been somewhat tongue in cheek, but this is the road we are headed down. One violation of a norm leads to an even greater one.
This outrage is only the latest Republican provocation on Obama’s appointment of federal judges. In 2014, McConnell and Grassley argued that Obama should not be allowed to fill vacancies on the powerful Court of Appeals for the District of Columbia because that Court was not sufficiently busy to merit more judges. Again, blocking judges for specious reasons is perfectly legal but a clear violation of basic democratic and constitutional values. Its use necessitated Harry Reid and the Senate Democrats’ elimination of the judicial filibuster. McConnell’s subsequent howls of outrage were completely unjustified, but he was correct that the elimination of the judicial filibuster for non-Supreme Court appointments was a bad thing for the country. A responsible filibuster is a beneficial check against extreme appointments. Yet, the filibuster must be used and enforced responsibly or not at all. Once McConnell chose to ignore essential norms in the use of the filibuster, he triggered Reid’s unfortunate but necessary reaction. And down we go in a spiral of shameful intemperance.
Now, here we are. The supposedly democratic primary process has been revealed to be a charade, because the rules say otherwise. In the world of Trump and McConnell, can anyone be surprised that the moral weight of “one person, one vote” might be undermined by a legally ambiguous, party-controlled process of apportioning delegates?
The consequences are immense and the possibilities limitless. There is a lot of talk right now about “Super Delegates” affecting the Democratic race. Super Delegates, of course, are not delegates with super powers but rather party leaders automatically selected and unbound to a candidate by a particular primary or caucus. They are free to support whomever they choose and in theory may could swing an election against the candidate who receives a majority of pledged delegates received from actual primaries and caucuses. In 2008, Democratic Super Delegates swung to Barack Obama once it became clear that he would finish with the most pledged delegates secured through actual voting, ratifying the will of the people. If our sense of moral responsibility continues to erode, the result may be different, if not this time then four or eight years from now. Or what about the “faithless elector” problem? Contrary to popular belief, electoral college representatives are not legally bound to vote for their state’s selected candidate. What is to stop a ruthless party from exploiting this loophole and provoking a constitutional crisis?
So, no, the Republican Party’s current delegate machinations are not surprising. Republicans have established a political climate where they will take any advantage that they can get away with. Without a greater sense of civic responsibility, without a willingness to be limited by widely-accepted political norms, there is no plot too cynical to embrace.