Gavel

It's been a sad, sad spectacle to watch Republicans beating Democrats bloody in Congress - in both the House and the Senate, but most especially in the Senate. In the last two months Congressional approval numbers have dropped from from 48% amongst Democrats to 27% and almost no bills have been passed. The most significant bill to pass was the supplemental, which by itself caused a 10% drop in Democrats ratings in a single week - a huge down draft.

Democratic leaders continue to talk about how they want to govern, while Republicans continue to let nothing pass if they can avoid it. The continued talk of "making Congress work for Americans" is simply a pathetic wish for a world that no longer exists, a world in which both parties put aside partisan rancor for the best of the country; a world in which comity doesn't mean "date rape"; a world in which Republicans are good faith actors.

Republicans, as Krugman has observed, are a revolutionary power. They do not accept the legitimacy of the bipartisan non-parliamentary form of government that ruled the US for most of the post-war period. They do not accept that all three branches of government are co-equal. They do not believe that everyone has to obey the law. They are in Washington to get what they want, and if they can't get it they will bring the entire machine to a shreeking halt.

The Republicans in general, and the Bush administration in particular really have only strategy - they always, always, give the other side nothing of any significance. They never cooperate, they never admit a lie, they never back down unless forced to do so. They understand only the most primal of motivations - fear and force. If you can't force them to do something; if you can't make them fear the consequences of not doing something, they won't do it.

This is a very powerful strategy. You've probably observed it in your life when you've seen a customer in a store scream until someone gives them what they want (or calls the cops). You've seen it from people in power - from cops who will beat you bloody because they know they can get away with it and know if you fight back, you're screwed. In schools kids will use it with teachers, knowing that the teachers aren't allowed to use force anymore. Just do whatever you want - what's the teacher going to do? In business just lock your employees in the store (Wal-mart) or just dock wages whether it's legal or not. What are they going to do?

The idea is to find a strategy which you can pursue unilaterally - where there is a benefit for you and where the cost to the other side to resist is more than they're willing to bear. It's an excellent strategy in pure terms of benefits - when it works.

There's an example of where it hasn't worked for Republicans. That example isn't in America, where it almost always has worked, but in Iraq. The insurgency is a problem where just saying "we won't negotiate and we're going to run your country" didn't work. Insurgents said "we can bear the costs of making this strategy not work for you, longer than you can and we're willing to do so. We will take 3 times your losses in order to win in the end. The cost does not matter to us. The key here is that what worked in Iraq against Republicans was essentially thier own strategy. When dealing with bad actors of this sort, the only reply to them is to use their own tactics - and to kick it up a notch.

The strategy breaks down the same way playing a game of chicken does. It breaks down when someone else is crazier or tougher than you are.

This is how you deal with bullies and thugs - you break them. There is no other way - you can't "reason" with them. They are not 9 year olds who need a "time out" or whom you can sit down with and say "that's not nice". They are adults who respond only to force and to fear - who obey only when broken.

It's also a problem of limited-timeframe rationality - which is to say, on each fight, Democrats decide "well, this fight isn't worth it, the benefits of fighting like hell are outweighed by the pain and the cost. So we won't do it." Do that every fight, or almost all (Social Security being a rare exception) and pretty soon you've got a long term pattern.

What you have to do is "get crazy" and decide you don't care what the cost is, you're going to make every fight one that hurts them as much as you can, no matter how much it hurts you. What you have to do is make examples of people - pick targets and destroy them utterly.

This sort of "craziness" is actually very rational - but it's the sort of rationality that the "reasonable adults" in the Democratic party, who want to make things work, who value comity and politeness for thier own sakes, suck at.

Let's give a couple current examples. The first deals with the problem of enforcing subpoenas. The Justice department has made clear it won't enforce Congressional subpoenas if the administration claims executive privilege. The response should be to invoke "inherent contempt" and to do it against someone prominent. My choice would be Gonzales. From Wikipedia:

Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited for contempt is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subject to punishment that the House may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation.)

Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its "inherent contempt" authority and may exercise it at any time, this inherent contempt process was last used by the Senate in 1934, against a U.S. Postmaster]. After a one-week trial on the Senate floor (presided by the Vice-President of the United States, acting as Senate President), a former Postmaster, McCracken (The Postmaster-General was[ Jim Farley)][1] was found guilty and sentenced to 10 days imprisonment.

The Postmaster had filed a petition of Habeas Corpus in federal courts to overturn his arrest, but after litigation, the US Supreme Court ruled that Congress had acted constitutionally, and denied the petition in the case Jurney v. MacCracken, 294 U.S. 125 (1935). [2]

The advantage of inherent contempt is that it's something Congress can do without ever refering to the Justice Department. There is no counter-move except to attempt to get the Supreme Court to overthrow it. And Kennedy (the only Justice whose opinion is in question) might well not side with the other right wing justices on it.

The second example is the "filibuster". In the Senate as it stands right now, if there aren't 60 votes, a bill is "considered" filibustered. But that's a nicety - it's a kindness so that Senators don't have to get out the diapers and the phone books and actually stay on the floor 24/7. What the Republicans have been doing is "filibustering" everything, then turning around and claiming that Democrats are the "do nothing Congress". The response is to make it clear who's holding everything up.

Make them physically filibuster. Choose a very popular bill (say drug reimportation from Canada), put it up straight with nothing else attached, and make them go 24/7. The news cycle will be dominated by the filibuster. Nobody will be talking about anything else but how Republicans are filibustering to make old people pay more for drugs (or whatever other "mom and apple pie" issue you choose.) I would personally put film in the can of old folks talking about how they have to eat dog food to pay for their meds, and start running ads which juxtapose "Old folk in horrible distress" then ask "And what does Senator McCain think of this" and show 15 seconds of him reading from a phone book. Note that you get ready to do ad buys not just because it hammers the message home, but because you know that media coverage may be unfavorable to you and you are prepared to get around the filter - you are not putting yourself at the mercy of other actors - including actors in the media.

There are two ways to deal with bad faith actors; to dealing with people who understand only force. One is to decide you're willing to let them have what they want because you won't pay the cost of opposing them. If they say "I'm going to hit you if you don't give me your wallet" you can say "ok". The second is to escalate. In the words of the Untouchables - if they bring a knife, you bring a gun; if they put one of yours in the hospital, you put one of theirs in the morgue. When people understand only force, you must respond with maximum force. Anything else is taken as weakness and they will walk all over you.

Republicans walk all over Democrats because they can - because they know Democrats, at the end of the day, will fold nine times out of ten. It's a good odds play. If Democrats want it to stop, they need to make the cost unbearable. Civility will return only when the costs of what amount to political violence have become to great for both sides to bear.

Slap Gonzales in jail. Make Republican Senators personally spend days or weeks doing nothing but filibuster popular bill after popular bill. Make them stay on the floor, in their diapers, with artificial bladders attached, until they can't take it any more.

And if you do all this, Americans will see that

  • Democrats are strong. (Strength isn't about how tough you talk on killing terrorists. It's about what you do personally. Strength is what strength does.)
  • that Republicans are causing Congressional slowdowns and making it so Congress doesn't work to pass bills most Americans favor.
  • That if Americans want Congress to work, Democrats need a filibuster proof majority in the Senate and a working majority in the House.

When someone's bargain strategy is "or else", you can either back down or step up.

It's time for Democrats to step up.

(Ian writes also for The Agonist.)