Category: Current Affairs

Happy Liberation Day! April 2 is the day that Americans gather together to learn how much prices will increase from tariffs on U.S. allies and partners imposed by the Trump administration. But this Liberation Day is special because of another, less spectacular event in U.S politics: an “audacious” plan by Senate Republicans to bypass the Senate’s parliamentarian and rule that “extending President Trump’s 2017 tax cuts won’t add to the deficit.”

This is arcane legislative politics, but it is very consequential. In a narrow sense, it matters because, everyone knows that extending the tax cuts will add to the deficit. The reason why the Senate majority needs to bypass the parliamentarian is because standard budget scoring by the parliamentarian will show that to be true. The GOP cannot have that, because of the particularities of how budget bills can be debated and voted on in the Senate. They need to say that tax cuts won’t affect the budget.

The GOP will bypass the parliamentarian, in other words, because the parliamentarian will make it difficult to pass the tax cuts. Working backwards, if your priority is tax cuts—and you don’t care about the deficit—change the procedures to get what you want.

In a much broader sense, though, bypassing the parliamentarian to extend tax cuts matters because of what it reveals about how the standard models of U.S. politics no longer apply.

To see what I mean, step back and consider that legislative politics in any country is a game in which several hundred legislators debate thousands of issues. Each issue, in principle, can be a bill, which succeeds or fails under majority voting rules; moreover, each bill can (and normally does) address multiple issues at once. Unless all legislators tend to line up on the same side of each issue, the result should be chaos (literally). How does anybody get anything done?

The answer is by bundling issues into platforms that are relatively coherent across time, so that legislators indeed line up on one side or the other, predictable. This may be facilitated by strong parties that can compel their members to toe the line, or by some sort of institutional system that induces partisans to act accordingly. In the U.S. the standard interpretation of why there is not chaos in the House and Senate is that “real-world legislative practices constrain the instability of PMR by restricting the domain and the content of legislative exchange” (Shepsle and Weingast 1981).

In other words, the rules, norms, and practices of our legislative branch create order out of chaos.

The immediate response you should have is, why does anyone follow those rules and norms? Put differently, there is no source of the rules, norms, and practices of the legislature aside from the legislators themselves. Why would they write rules or adopt practices that constrain them from achieving their objectives? As I wrote last year, the notion that legislative practices are the source of order

…shows how you can get equilibria (and, hence, regular order) in a multidimensional policy space. Substantively, it is a way to explain why there is no chaos in Congress. But the debate … is whether or not this theoretical solution is satisfying: is it satisfying to posit that the answer to the question “why is there order in Congress?” is “because legislators care about Congressional order”?

I thought then, just as I did in graduate school and still do now, that the answer is obviously no. If politics is only orderly when the people who hold power want it to be orderly, that means that order doesn’t come from legislative structure or norms or procedures. Instead, those are tools for the exercise of power. As William Riker wrote way back in 1980,

Disequilibrium, or the potential that the status quo be upset, is the characteristic feature of politics…. institutions are no more than rules and rules are themselves the product of social decisions. Consequently, the rules are also not in equilibrium. One can expect that losers on a series of decisions under a particular set of rules will attempt (often successfully) to change institutions and hence the kind of decisions produced under them… Thus the only difference between values and institutions is that the revelation of institutional disequilibria is probably a longer process than the revelation of disequilibria of taste.

If we take this perspective, we can understand clearly why the Senate GOP will bypass the parliamentarian. Its preferences are for tax cuts, not legislative order under existing rules. Its policy is a loser under the rules, so they will change the rules in order to change the kinds of decisions that the legislative process produces.

This makes sense as legislative hardball. Nothing is illegal here. The Senate GOP knows what it wants and will change the rules to get it. So what?

Here’s where the title of this post comes in. You can use this relatively obscure example of the Senate parliamentarian’s role in budget scoring to understand why U.S. democratic institutions are fraying. Stable institutions require common values. We can infer the absence of common values from the absence of stability.

In other words, U.S. institutions were stable because they were held together by values, the common belief among elites and masses alike that orderly politics under existing rules and norms was more important than situational advantage on a policy proposal. That, for example, it was more important to have due process for everyone than to be able to kidnap people and send them to El Salvador, or that the executive branch would execute the laws passed by the legislative branch, or that you shouldn’t invade Greenland just because you feel like it.

This perspective clarifies what the deep problem in U.S. politics is. There are plenty of reasons to complain about the specific institutional features of U.S. democracy, and there are plenty of reforms that I would implement if I could. But U.S. institutions can hold if people share a common purpose, if they value the institutions and the orderly resolution of political conflict more than their favored policy proposals.

The root of the problem in U.S. politics is a crisis of values. Without common values, institutions are just expressions of power.

Journalism. Higher education. The federal bureaucracy. Nonprofits. The military. And now the law firms.

Across the United States right now, the same conversation is happening in these and other establishment professions. Career professionals are keenly aware that the Trump administration has put their institutions under enormous pressure to comply with their demands—some of which are lawful, many of which are not—in order to preserve their access to federal funds and avoid further sanction.

Recognizing the importance of the moment, and the systemic implications of lawsuits and pressure against any individual entity (Columbia, NBC News, Paul, Weiss) these professionals look to their owners, administrators, superiors, and founding partners for leadership and guidance. There are some positive signs of principled leadership from leading institutions, such as the recent Atlantic piece by Princeton University President Jonathan Eisgruber condemning Trump’s attack on Columbia, and Supreme Court Chief Justice John Roberts issuing a rare public statement on the independence of the judiciary branch.

But in the main, professional leaders in journalism, higher education, the military, and the legal profession have been mostly silent. And so these conversations—will the administration come after [members of my profession]? will our leaders defend [my profession] if they come after our own institution—continue quietly, privately, at the dinner table, in the group chat, with the doors closed and the phones off.

This is a collective action crisis for civil society. It is not an acute crisis for activists, movement leaders, and others who work at the forefront of resistance to the policy of all presidential administrations, past and present.* Rather, it is a crisis of the intermediate institutions that enable the functioning of civil society within the United States, what I call deep civil society. The legal profession, which provides activists and citizens with resources to press their demands and defend their rights. The educational sector that prepares young people for careers in the private and public sectors. Journalists who cover the most powerful politicians and oligarchs alongside the poor and the excluded. Federal workers who ensure that the laws passed by Congress are faithfully executed. And the security sector that ensures the safety and security of citizens and residents, at home and abroad.

Despite the constant drumbeat from social media and the administration’s social media propagandists about how these institutions are poisoned by woke and captured by radicals, deep civil society is, by its very nature, fundamentally conservative. These are institutions where rank, status, and seniority are broadly accepted as natural and appropriate. They are institutions where professional and administrative staff believe in their public mission, and their public responsibility.** There are countless links between the public and private sides of deep civil society, from federal funds that support advanced research to professional relationships between officer corps and the legal profession. Academics consult with the military because both sides believe that U.S. military power must be used wisely, judiciously, and effectively. Bureaucrats leak to journalists because they know and respect one another.

The puzzling feature of the current moment is that despite these many linkages, and despite their common concerns, there is very little public recognition of deep civil society’s common plight. It is a collective action problem in two senses. First, within each sphere, individuals recognize the value of a collective response, and fearful of sticking their head out over the ramparts. The law firms are waiting for some elite firm that will take a principled stand against the administration. Higher education is waiting for more Eisgrubers.

But second, it is a collective action problem in that each sphere—from journalism to the security sector—is strengthened by leadership from the others. A legal profession that refuses to knuckle under makes it difficult for any administration to target journalists and teachers. A military that refuses to obey unlawful orders will not intimidate bureaucrats and public servants. And so forth.

Overcoming collective action problems is notoriously difficult. It is especially difficult for conservative institutions facing real consequences for speaking out first. One way to incentivize collective behavior is to offer selective incentives to those who do the work of organizing and mobilizing. In this context, this means public leadership. One such selective incentive is acclaim. Some law firms, some administrators, and some bureaucrats will be remembered as Marshal Pétain. Others will be remembered as Charles de Gaulle.

The other way to overcome collective action is to reject its very framing. The individual incentives are real. But the collective incentives are also real. As many have said over the years, we hang together, or we hang apart. Deep civil society is fragmented, individuated; the current moment requires a collective response based on collective recognition of our mutual fate and our mutual strength. So be it.

NOTE

The header image is from Emily Flake in this week’s The New Yorker.

* There is plenty to worry about for these groups too. But that is a different essay.

** Ask a lawyer why they will do legal work that benefits terrible people. The answer is not because they deserve it. The answer is because our constitutional order requires it.