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Sarah Binder Weighs In: Institutional Hardball – in Congress and the White House – and the legislative road ahead

This is a guest post by Janna Deitz, Kluge Center Program Specialist in Outreach and Partnerships.

Sarah Binder is the most recent Kluge Chair in American Law and Governance, Professor of Political Science at George Washington University, and senior fellow in Governance Studies at the Brookings Institution. An expert in Congress and legislative politics, her current research explores the historical and contemporary relationship between Congress and the Federal Reserve. Her co-authored book, “The Myth of Independence: How Congress Governs the Federal Reserve” was published by Princeton University Press in 2017. She is associate editor of The Washington Post’s Monkey Cage blog and is a member of the American Academy of Arts and Sciences.

 

Janna Deitz: Parties are playing rough these days, using every tool and process at their disposal to advance their goals. Can you explain the importance of what you call “sticky rules and fragile norms” in the American political system?

Sarah Binder: I spent the fall – virtually at the Kluge Center – considering the confluence of “sticky rules” and “fragile norms” in the American political system. I consider rules (such as formal legislative rules of procedure) “sticky” because they tend to be durable. They typically require public action by a majority – or even supermajority – to alter. And even though politicians can change the rules of the game under which they act, formal rules tend to last longer than the coalitions that originally put them into place. In contrast, norms – which are informal, shared expectations of appropriate political action – are more “fragile.” True, norms also tend to be long-lasting, but politicians can more readily bend or break them. Why? Because norms are sustained by expectations, not backed by formal rules: Some (albeit not all) norms can be bent or broken without a public vote to do so. What’s more, many norms endure because both parties respect them. That means a party or president can break a norm singlehandedly. When it takes two to tango, a single partner ends the dance.

Students of Congress some decades ago studied the norms that undergirded the legislative process in the House and Senate. Those studies had a strong sociological flair: Political scientists viewed Congress as a social system sustained by norms of behavior. And the prevailing norms tended to reinforce the sorts of cooperation among lawmakers that sustained that social system. Recognizing that norm of cooperation, Donald Matthews, for example, deemed norms “folkways” – patterns of behavior that sustained existing hierarchies in the Senate. Similarly, Richard Fenno pinpointed norms that pervaded the system of Congressional appropriations and sustained incrementalism in federal spending. Today, that norm of cooperation is long-gone, replaced by a norm of conflict: Partisans are rewarded, not sanctioned, by their followers for rocking the legislative boat.

Pioneering studies by Matthews, Fenno, and others, however, are exceptions that prove the rule: Scholars have been more likely to study the adoption and reform of legislative rules than the origins and durability of legislative norms. First, institutional rules are easier to measure and monitor. In contrast, norms are typically unwritten, even if they can be equally important in setting and enforcing boundaries for political actors. Second, it’s exceedingly hard for political scientists to separate the measurement of a norm from the behavior that comprises it. Did a norm against filibustering once exist? How would we know, other than by the lack of filibusters in a particular period? Has the norm restraining obstruction weakened? Again, we often infer the heft of a norm by a measure of its likely consequence.

Despite the difficulty of isolating norms, efforts to bend or break them still demand our attention.

Probably the most important of the norms that have undergirded the legislative process is the norm of forbearance: the expectation that the players will not fully exploit all of the powers that are technically available to them. Take, for example, former President Trump’s exploitation of the National Emergencies Act (NEA) in 2019. Seeking to shake loose federal funds for construction of a wall along the nation’s southern border – over Congress’s objections – Trump used the NEA to declare an emergency at the border and then redirected previously allocated funding from military construction projects to construction of the border wall. The president’s actions narrowly complied with the NEA, but also bent several norms. Both Democrats and Republicans questioned whether the border situation was truly a national emergency; Democrats in particular objected to Trump’s end run around Congress’s power of the purse. In other words, the president nominally observed the rules of the game, but bent the norms that sustain and enforce perceived fair use of legal rules: A law created to constrain presidents ironically empowered Trump. The episode reminds us that the binding power of any set of formal or legal rules depends on the strength of norms that scaffold them. Notably, upon taking office this past January, President Biden rescinded the national emergency that Trump arguably fabricated to build the wall.

Or consider then-Senate Majority leader Mitch McConnell’s move in 2016 to block Senate consideration of former President Obama’s nominee for the Supreme Court, U.S. Court of Appeals Judge Merrick Garland. Nothing in the Constitution nor Senate rules requires the Senate to provide advice or consent when the president submits a nomination, even for the nation’s highest court. Nor had there been a norm, as McConnell claimed, of “not fulfilling a nomination in the middle of a presidential election year” (made plain by Republicans’ speed in confirming Justice Amy Comey Barrett days before the 2020 presidential election). If anything, the norm has been to consider a president’s nominee, even when the opposite party controls the Senate. In this case, willingness to break norms – or to create new ones – empowered the Republican majority to keep the seat vacant until after the presidential election. And then fill it after banning filibusters of Supreme Court nominees.

 

JD: We often hear the term “constitutional hardball.” What exactly is that and what are the consequences of hardball that includes norm-bending?

SB: The act of bending or breaking norms is often called “constitutional hardball,” a term coined by legal scholar Mark Tushnet. The notion captures political practices that push the boundaries of conventional understandings of fair play: “playing for keeps in a special kind of way.” Legal scholars David Pozen and Joseph Fishkin suggest that the parties play hardball asymmetrically: For a range of reasons, they argue Republicans are far more likely to bend norms than Democrats. Jed Shugerman goes a step further to encourage a distinction between hardball (sliding hard) and beanball (trying to hit the batter in the head). To the extent that we can distinguish between the two types of play, only beanball would be truly anti-democratic.

In the Congressional context, it is certainly true that not every norm violation is undemocratic. (Or as political scientist Julia Azari argues, norms themselves are not intrinsically valuable; it is the core democratic values that might underlie them that are worth protecting.) Some norms just aren’t integral for sustaining fair play. For example, the century-long Senate practice known as “blue slips” allows senators to block judicial nominations slotted for judgeships in their home states. In late 2017, Republicans abandoned the use of blue-slips during Senate Judiciary Committee consideration of appointments for the federal Courts of Appeals. True, ignoring appellate blue slips advantaged Republicans. But limiting the influence of senators from both parties over the fate of nominees to circuit courts that straddle multiple states isn’t necessarily anti-democratic.

However categorized, episodes of hardball share key consequences.

First, as Fishkin and Pozen suggest, upholding constitutional conventions helps to sustain “consistency, coordination, and comity in governance” by making plain how political actors should exercise their institutional powers. Some lawmakers strive to uphold norms out of a sense of obligation (“this is how we do things around here”), what James March and Johan Olsen saw as an organization’s “logic of appropriateness”). Others respect norms because of the consequences of doing so. For example,  knowing how others will act creates the sort of certainty essential for crafting an effective institutional strategy. Either way, norms typically generate a positive feedback loop: Lawmakers sustain norms that they believe will redound to their benefit within an institution.

Second, hardball often begets more hardball. Once a party or coalition bears the costs of bending a norm, subsequent rounds of hardball are arguably less costly to whoever next bends or breaks it. The new aggressors simply deflect blame back to the original norm-breakers since they pulled the trigger first. The Republican move in 2017 to ban filibusters of Supreme Court nominees fits the bill: McConnell and his GOP colleagues simply blamed Harry Reid and the Democrats for their 2013 move to ban filibusters of other types of nominees.

Third, hardball likely exacts an institutional cost. The more often coalitions opt to break or bend conventions for immediate gain (e.g., passing a bill, confirming a judge, limiting debate), the less resilient are the remaining rules and norms. Why? Because political actors’ willingness to bend institutions erodes support for the rules of the game. Hardball reminds the players that the rules of the game are neither sacrosanct nor self-enforcing; norms can’t defend themselves from aggressive coalitions seeking to undermine them. The fragility of norms – especially those promoting fair play – weakens institutions.

This is part 1 of a two-part interview with Sarah Binder. Be sure to check this blog for part 2, coming soon.

For more from Sarah Binder, watch the Kluge Center’s recent event with her and other experts on the role of banks and the Federal Reserve in restarting the economy after the pandemic.

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