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Democrats may place a greater value on a functioning government than Republicans doand thats commendablebut its putting the Democrats at a disadvantage, and is perversely undermining Congress itself.

By Seth Masket

The minority party in Congress usually doesnt have a whole lot of great options. They can either try to work with the majority and bend signature pieces of legislation a bit more to their liking, or they can stand united against the majority so that voters remember their opposition in case the majoritys plans go awry. Either way, though, theyre usually going to lose. But minority Democrats right now have a chance to do something that would actually help Congress in the long run. What they can do is act unreasonable.

Allow me to explain. As I noted in this earlier piece, Congressparticularly the Senateis an institution governed strongly by longstanding norms. Any effort to represent the views of 50 different states, or 435 congressional districts, and still manage to reach conclusions is necessarily going to be complex, and it will seem chaotic and cacophonous even when its running well. But each chamber of Congress has developed norms over the decades that allow members to speak their piece and serve their constituents while still making decisions and keeping the government functioning. Generally, adherence to such norms can be frustrating in the short run but allows for a more functional chamber in the long run that works better for everyone.

Congressional Republicans have been far more willing than their Democratic colleagues to engage in violations of some of these institutional norms in recent decades. Such norm violations include a presidential impeachment, several government shutdowns over budget disputes, and refusals to raise government borrowing limits, threatening the credit of the United States and actually lowering its credit rating. More recently, the Republican Senate majority refused to consider President Barack Obamas nomination of Merrick Garland to the U.S. Supreme Court, even though there was nearly a year left in Obamas presidency.

The Democrats, while occasionally playing hardball, have generally responded by operating within longstanding institutional norms. Speaker Nancy Pelosi refused to consider impeachment proceedings for President George W. Bush or Vice President Dick Cheney. Democrats havent initiated any budget shutdowns or threatened credit defaults. They have, in most cases, sought to protect their institutions and their norms by acting like the adults in the room and refusing to engage in reckless behavior.

This behavior is, in the long run, not only bad for Democrats, but for the institution.

OK, time for some game theory. No, seriously. If youve ever taken any sort of economics or political science class involving game theory, youll probably be familiar with a very simple classroom exercise involving the prisoners dilemma, which is a useful metaphor for most political exchanges. In a prisoners dilemma, two players are competing against each other, and each has just two optionscooperate or defect. If they both cooperate, they both get a nice reward (say, $1 each). However, if Player 1 defects while Player 2 cooperates, Player 1 gets an even bigger reward while Player 2 pays a penalty. (The reverse happens if Player 1 cooperates while Player 2 defects.) If both players defect, neither gets a reward nor pays a penalty. Thus, each player wants the other to cooperate, and both prefer jointly cooperating to both defecting. But since each cant trust the other to cooperate, the usual outcome is for both to defect, leading to no payoff for either player. (The ferryboat scene in Dark Knight remains my favorite example of the prisoners dilemma, but there are plenty of others out there.)

Playing this game many times, though, can lead the players to develop norms of trust. Neither is happy with the low payoff, so reaching some sort of agreement about cooperation can be beneficial to both.

This hasnt been the pattern in Congress. On a range of issues and tactics, Republicans have defected while Democrats have cooperated. This leads to a greater payoff for Republicans, whether were talking about election results or policy preferences. It means that the Congress slowly but steadily becomes less representative of the nation it represents. And, more generally, it means that the institution becomes worse. When institutional norms are repeatedly violated without penalty, it means those norms are functionally impotent; further norm violations become even more likely.

We might perhaps expect voters to exert some discipline over congressional Republicans here. After all, government shutdowns and impeachments generally dont poll well. People dont like to see dysfunction. Yet voters have shown little interest in actually punishing Republicans for this behavior. The government shutdown of 2013, for which voters largely blamed Republicans, was followed a year later by further Republican gains in Congress and state legislatures.

Why have Democrats continued to play this strategy? Clearly, they have a different set of incentives than Republicans here. Perhaps they place a greater value on a functional government than Republicans do. That may be commendable, but it has put the Democrats at a disadvantage, and it is perversely undermining the institution itself. If congressional Republicans are going to pay any price for these transgressions, and if the institution is going to have some chance of becoming more functional, it is congressional Democrats who need to take charge here. But how?

A classic article outlines an alternative version of the prisoners dilemma that spans many iterations. In this game, it may make sense for one player to act irrationally in the short run, forgoing some payoffs, giving that player a reputation of unpredictability or even craziness. This can improve that players negotiating position further down the road. Arguably, Republicans have been pursuing this path for some time now. It could make sense for Democrats to adopt a similar strategy, at least to the point that Republicans believe that Democrats are as willing to damage the institution as they are.

One application of this strategy would be maximal opposition to President Donald Trumps appointment of Neil Gorsuch to the Supreme Court. This could take the form of a filibuster, which Republicans do not have the votes to end. Republicans have signaled that they are perfectly fine with the Court shrinking to eight members if they dont get a ninth who satisfies their preferences; Democrats can signal the same thing. They can say, We already have a nominee for this position in Garland. Confirm him and we will be open to considering Gorsuch for the next open seat.

A potential risk of such an action would be that Senate Republicans eliminate the filibuster on Supreme Court Justices. Two thoughts on that. First, if Senate Republicans are prepared to eliminate the filibuster as soon as an important vote comes up, then the filibuster is already functionally dead anyway. Let it go. Second, theres good reason to believe that Republicans arent about to kill the filibuster. Control of the Senate has bounced around a good deal, and Republicans only hold a four-seat majority. Its not unreasonable for Republicans to think theyll be in the minority again soon, and it would be a useful tool to hold onto.

Now, what would happen in the long run? Basically, if presidents are unable to place people on the Supreme Court unless their party controls a supermajority in the Senate, the Court is going to shrink pretty quickly and substantially. Eventually, members of both parties will find the situation unacceptable and work toward an amicable solution. More generally, if Democrats push this strategy on a range of policies and nominations and signal a willingness to put government functionality at stake, it could force Republicans to reassess their position and possibly restore some longstanding norms.

Now, there are certainly risks to this strategy. For one thing, an increasingly dysfunctional Congress could just end up ceding more authority to the presidency. Obama made an aggressive unilateral move on immigration reform in 2014 in large part because Congress couldnt or wouldnt do anything on the subject. Another risk is that, with both parties behaving recklessly toward Congress, some serious long-term damage to the institution could result. But these risks may be worth taking to get a functional Congress and a responsible party system again.

Thanks to John Patty and Sean Gailmard for helpful ideas and feedback.

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The Case for Democratic Recklessness - Pacific Standard