It's Crunch Time To Save The Rule Of Law
Democrats have gotten the message, but need a game plan.
After several weeks of disorientation and aimlessness, Democratic negotiators on Capitol Hill really do seem to be making the right demand of their Republican counterparts: We’ll work with you to fund the government—but only if the lawbreaking stops. That’s the good news.
The bad news is they don’t seem to have arrived at this demand methodically—by first embracing the objective, then devising tactics designed to meet it—or as an outgrowth of deeply held values. They’re closing in on it thanks to public pressure, and (thus) doing so clumsily.
That’s better than capitulation. But the optimal strategic approach flows from the particulars of the situation and the principles at stake. Republicans have concurrent majorities in the House and Senate, under a Republican president who’s gone rogue. On paper, Republicans have all the power they need to sign off on Donald Trump’s lawlessness—fund the government, no strings attached—without a single Democratic vote. If they could pull it off, there might be something to the conventional wisdom in the strategic class, that Democrats should just stand aside and let Republicans reap blowback.
Fortunately (or unfortunately, depending how you look at it) Republicans are too divided and incompetent to govern on their own. They need Democratic help. That gives Democrats leverage to make demands, and their central demand should be: no more lawlessness; a return to regular order. Donald Trump will either spend the money Congress instructs him to spend, as written in the law, or Democrats will oppose government-funding legislation as a vote of no-confidence.
I’ve argued it’s a matter of world-historical significance that Democrats see this choice as binary. That they not slip into disarray and provide decisive votes to fund the government without conditions, effectively sanctioning Trump’s criminality. But prevailing in the fight—which I’d define as either forcing Trump to heel, or saddling Republicans with the political consequences of a government shutdown—will require more than just unity. It requires clarity of rhetoric and purpose, and a strategy designed to achieve said purpose.
Here’s what I would change, if I were in charge.
A REAL ENFORCEMENT MECHANISM
This Monday Politico report hints at the state of play. Basically everything would be smooth sailing, like in a normal bipartisan appropriations process, except that Republicans refuse include any mechanism to discourage lawbreaking, and they don’t want to fund the government on a short-term basis.
But that actually means they’re nowhere. Unless Democrats intend to cave, they can’t provide votes for a law Trump doesn’t intend to follow, and funding the government on a short-term basis is a key element of ensuring his compliance.
To make the legislation worth the paper it’s printed on, Democrats need real assurance that they aren’t falling for a bait and switch. They can wrangle as many promises and caveats and carefully worded clauses into the law as they want, but if there’s nothing stopping Trump from violating it, he will almost surely do so.
So as to the legislative text, and the conditions Democrats place on their votes, the goal of the negotiations needs to be to make the law stick. I would go about this two ways:
First, as a demonstration of good faith, I’d insist Trump get right with the law that’s already on the books before the March 14 funding deadline. The government is operating on the basis of an appropriation that Congress passed last year. Trump is breaking that law, among others, by impounding funds and instructing agencies to ignore their charters.
Stipulating that Trump has already broken certain agencies so badly that they can’t be quickly reconstituted, and that he may not be able to simply rehire many of the people he fired, Democrats could nevertheless insist that he turn all funding spigots back on now. That food and medicine resume flowing to starving children in the developing world, and federally funded medical research is allowed to resume. Organizations that Elon Musk stole money from must be made whole. Etc. Condition: Before we vote for anything, honor the law we already passed.
But the main idea, which first dawned on me several weeks ago, is that Democrats should only agree to fund the government in short bursts, or (similarly) to stack a longer agreement with multiple expiration points, so that every two or three months, Congress has an opportunity to certify that Trump is still in compliance.
There are clever lawyers in the Democratic Party who may have other, better ideas.
But right now, the plan seems to be:
Write clauses into the appropriations that more or less say, “we really mean it, though!”
Hope for the best until the end of September.
That’s nowhere near good enough. Give him that, and he’ll resume disregarding the law on March 15.
DROP FILIBUSTER THREAT
At least for now.
This one’s a bit counterintuitive. It implies that the optimal form of resistance requires not pushing every available minority power to the max. But it’s true, and actually quite central to the public relations.