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Thursday, January 29, 2009
Against bipartisanship II: Procedure or Substance?
As predicted in my anti-bipartisan screed, media and GOP sources are blaming Obama and the Democrats for the failure of bipartisanship that simply left House GOP no alternative but to vote unanimously against the stimulus bill and that, looking at Sen. Kyl's comments, may leave Senate GOPers no choice but to do the same next week. The substance of the comments is the same: Obama and congressional Dems are not acting in a bipartisan manner because all they do is listen to GOP ideas, allow votes on them, and accept some of them (but not all, because Dems fundamentally disagree with Republican economic theories), but they do not implement all (or even most) of what the GOP wants and instead go with the proposals that the Dems like. These criticisms of Obama fit very well with my earlier statement that bipartisanship is what happens when the other side agrees with everything I want to do.
On further thought, though, I believe we actually might be able to resurrect some notion of bipartisanship by tracking this issue onto the ancient divide between procedure and substance. What renders the debate over bipartisanship incoherent is the failure to distinguish procedural bipartisanship from substantive bipartisanship--betwen bipartisanship in the process of lawmaking and bipartisanship in policy outcomes. Procedural bipartisanship means both parties participated in an open process, had an opportunity to be heard, exchanged ideas, perhaps made some compromises on provisions, had good-faith discussions, allowed the minority to be heard, and allowed minority ideas to be raised and considered in the legislative process. I think we often do and should have procedural bipartisanship--and from everything I have read, we are having it on the stimulus package.
Substantive bipartisanship means the outcome is one that both parties support. We rarely have true substantive bipartisanship, at least outside of divided government. At some point there must be a vote and a decision. And if the majority is unwilling to adopt all of the minority's governing principles and ideas and vice versa, a "bipartisan" result is impossible or at least unlikely. Of course, if everyone agreed on the appropriate principles to apply and the appropriate policy measures to enact, they would not be members of different parties. So when I argued earlier that we should not care about bipartisanship, should stop talking about, and should stop trying to attain it, I had substantive bipartisanship in mind.
Unfortunately, we as a culture do not care about or speak in terms of process, only substance, so the yammering about bipartisanship will always be about substantive bipartisanship. Regardless of how open the process was and how willing Obama was to listen, in the end, because he pushed for and got a bill that adhered mostly to his Democratic principles and not to Republican principles (that, by definition, he does not accept), he did not act in a bipartisan fashion. But the expectation that he essentially should have governed like a Republican when he is a Democrat is precisely what makes substantive bipartisanship so ridiculous, meaningless, and ultimately distracting from the broader goal of enacting the best public policy.
It is this talk that must stop.
Posted by Howard Wasserman on January 29, 2009 at 04:02 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink
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"The stimulus package is effective if it stimulates the economy, puts people back to work, and helps get us out of the recession. I think everyone agrees with that policy goal and everyone could more or less agree on how we measure whether the goal has been achieved"
You define "effectiveness" too narrowly. The debate also requires consideration of (1) cost-effectiveness (i.e., how much are we wiling to pay to "stimulate[] the economy, put[] people back to work, and help[] get us out of the recession); (2) financing (i.e., tax increases vs. debt financing); (3) cost allocation (i.e., concentrate the cost among the highest tax brackets, spread the cost more evenly across all Americans), and so forth. Indeed, we've not even established how much stimulus is appropriate. (Surely we do not want to re-inflate a bubble.) And there is debate over the role of non-stimulative considerations (e.g., do we stimulate the auto industry by promoting its ability to sell cheap cars to the public, or do we impose greater environmental regulations on the industry, thereby increasing the cost of cars?).
In short, I think it's impossible to say that we can define "effective policy" in neutral terms. Each of the considerations raised above is, at base, subjective, and prioritizing each of those considerations against each other is subjective. How is it any less "neutral" to include considerations of "bipartisanship" -- when, as I noted above, many Americans, including President Obama himself, have claimed that bipartisanship is not merely a means to an end, but an end in itself?
Posted by: Adam | Jan 30, 2009 4:36:22 PM
Actually, I think effectiveness is definable--whether it achieves the policy goals sought to be achieved by particular law. The stimulus package is effective if it stimulates the economy, puts people back to work, and helps get us out of the recession. I think everyone agrees with that policy goal and everyone could more or less agree on how we measure whether the goal has been achieved (although there may be some question of degree or whether it has been effective enough--which is a question bound up in subjective first principles). What we are seeing over the stimulus is a dispute about means--about how best to achieve those agreed-upon policy goals. And my point is that the dispute genuinely is about ideas and theories.
Posted by: Howard Wasserman | Jan 30, 2009 2:37:09 PM
Not to be a broken record, but I suppose I'll ask one last time in light of your response to Rick:
If it's "pointless[]" to "talk[] about bipartisanship, because the term may not be definable in neutral terms," then how is it any more useful to focus instead on "effective policy." After all, "effective policy" is no more definable in neutral terms than is "bipartisanship."
Posted by: Adam | Jan 30, 2009 11:03:43 AM
Rick: That is a great point that I suspect would prove true, if we sat down to compare note. I think it illustrates the pointlessness of talking about bipartisanship, because the term may not be definable in neutral terms.
Posted by: Howard Wasserman | Jan 30, 2009 9:50:19 AM
Howard -- I agree with almost everything you say about the silliness of most "bipartisanship" talk. What's interesting, though, is that you and I -- who, I am confident, both follow these matters fairly closely -- seem to have have quite different views about which "side" more often, and better, plays the "playing politics is what *you* do when you act on your principles; bipartisanship is what happens when you roll over and let me win" game.
Posted by: Rick Garnett | Jan 30, 2009 8:58:29 AM
I couldn't attempt to propose a bright-line test for "partisanship" versus "bipartisanship." I suspect that most people would treat it in a way similar to Justice Stewart's approach in pornography cases.
That said, I still think your discussion of "bipartisanship" in the stimulus debate must confront the important fact that President Obama was elected after campaigning heavily on themes of bipartisanship, post-partisanship, and so forth. With that in mind, then, I think you should not be so quick to draw bright-line distinctions between "effective policy" and "bipartisanship." Obama himself seemed to think that the two overlapped, and I suspect that many of his voters agreed. For Obama to cast bipartisanship aside now, after he was elected, would be flagrantly dishonest, and (I suspect) would prove to be a politically costly mistake.
Posted by: Adam | Jan 29, 2009 5:31:25 PM
Actually, I was not referring only to Kyl's comments (which were limited to the Senate processes), but to the broader goings-on in both houses and between Congress and the White House. The GOP objected to several provisions--the provision on state waivers for providing contraceptives through Medicaid, funding for work on the National Mall--that were removed from the House bill. So Republicans did get some of what they wanted--it was not enough for the House GOP and we will see about the Senate (I am not holding my breath).
As for Kyl's comments, they perfectly capture what I am arguing about here. There was a process in which the minority party got to present ideas that were heard and voted on. But the final product will be a "totally partisan package" (i.e., no bipartisanship) because the substance of the final product does not contain the GOP proposals but only what the majority (the ones with more votes) wanted. Again, procedural bipartisanship, but what is wanted is substantive bipartisanship.
Of course, this leads to two points: 1) How many GOP proposals must be accepted to make it bipartisan? More than 1? More than 2? More than half? Or everything? 2) Entirely missing from the discussion is the possibility (that I focused on in the first post) that the reason they were voted down is not because they came from the GOP, but because they were bad ideas. And once more, the assumption (and criticism) is that the Dems were being purely (pejoratively) partisan and not acting out of principle and a belief in what makes effective policy.
By the way, I am not being one-sided here. I do not believe the Republicans should be obligated to vote for this measure. Nor did I believe that W. and congressional Republicans were obligated to enact Democratic-favored legislation. But I would like to see the debate focus on policy wisdom and not on whether one side or the other is being sufficiently bipartisan. That gets us nowhere.
Posted by: Howard Wasserman | Jan 29, 2009 4:57:05 PM
"The substance of the comments is the same: Obama and congressional Dems are not acting in a bipartisan manner because all they do is listen to GOP ideas, allow votes on them, and accept some of them (but not all, because Dems fundamentally disagree with Republican economic theories), but they do not implement all (or even most) of what the GOP wants and instead go with the proposals that the Dems like"
OK, at this point I think it's pretty clear that you're not actually discussing anything resembling Sen. Kyl's call for "bipartisanship." Here's what Kyl actually said, according to the news story you linked:
"Well, there have been two committee meetings, the Appropriations Committee and the Finance Committee, in which I sit. **Not a single one** of our [Republican] amendments was voted up. Every one was rejected. So essentially **no changes** as a result of those two markups on the bill that will come to the Senate floor next week. And if [the Ledbetter and SCHIP bills] are any indication, we'll get votes on amendments, **they'll all lose,** and the bill will then pass, and we end up with a **totally partisan** package."
In other words, Kyl is arguing that the Obama-Pelosi-Reid package is not bipartisan because every Republican amendment has been rejected. Kyl is *not* arguing that legislation is "bipartisan" only if (as you describe it) Democrats "implement all (or even most) of what the GOP wants."
So far, you're currently doing little more than thrashing a straw man.
Posted by: Adam | Jan 29, 2009 4:35:52 PM
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