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Close of the mids. See Peter M. One party, the Republican Party, has become especially identified with hardball tactics during this period, with large consequences for our constitutional system. We acknowledge at the outset that studying this potential asymmetry poses a considerable challenge. Because of the reciprocal character of constitutional hardball and the open texture of constitutional norms, both sides will frequently have a nonfrivolous claim to be responding to a transgression or provocation by the other side. Sunstein, Partyism, U. Legal F. Close confirmation bias, myside bias, or the like.

The same goes for us. Further complicating matters, the structure of constitutional hardball itself confounds objective measurement. An interpretive judgment is always required to establish that a political maneuver amounts to constitutional hardball, because one must first determine what the relevant constitutional traditions and settled understandings are, at what level of generality to assess the historical record, and whether and to what extent the maneuver deviates from them.

There is no Archimedean point from which we, as observers of politics, can stand outside politics and be completely confident in the accuracy of our assessments. See generally Chafetz, supra note 4. For one thing, it proves too much. Many different public law practices have long been inflected with partisanship. It would be perverse to exempt some or all of them from scholarly inquiry on that basis. Given its inherently contested and shape-shifting nature, we know of no good way to reduce the overall practice of constitutional hardball to a numerical scale, no scientific test to measure or code it.

Surveys and interviews might be used to gauge the views of Washington insiders. Close And we suspect that such scales and tests, if devised, would be vulnerable to the biases and value choices of the politically aware humans who create them. In an exploratory Essay like this, we believe it is appropriate to take a more encompassing, qualitative approach. Laying out this evidence is the work of the rest of this Part. What leads us to suspect that constitutional hardball has become asymmetric?

The next section and Part III will consider numerous forms of indirect evidence. But the most immediate reason for suspecting as much is this: The recent historical record appears to contain more, and more distinctive, examples of constitutional hardball on the Republican side.

Meanwhile, a perception of partisan asymmetry has emerged. Close While this would be notable regardless of the reality, the perception has an empirical basis. Our focus here is on the period from the mids through the end of the Obama Administration. Partisan conflict was a near-constant, and President Trump had not yet brought his openly norm-shattering approach to the White House. There is no obvious a priori reason why one side would have become more identified with constitutional hardball than the other.

And yet that is what happened. A partial catalog from the pre-Obama years 55 55 This catalog is focused on the actions of federal government officials. Given that i the two parties have also become increasingly ideologically cohesive and polarized throughout the fifty states, see Jessica Bulman-Pozen, Partisan Federalism, Harv.

Yes and No, Measuring Am. A sustained analysis of state-level constitutional hardball is beyond the scope of this Essay, however. Close might include the government shutdowns of and ; 56 56 See supra note 30 and accompanying text. Times: Economix Nov. Many of these investigations bordered on the farcical. Mitchell L. Daniel P. For a helpful overview, see generally Richard L. Close various tactical moves by the Bush side in the Bush v. Gore litigation and the ensuing Supreme Court decision; 62 62 See supra notes 34—35 and accompanying text. Oppenheimer eds. Closed rules deny minority-party legislators the opportunity to offer amendments to a bill.

House of Representatives 6 Times Oct. Close threatened repeatedly to default on the national debt; 71 71 See Neil H. Post Aug. Bork, Balkinization Nov. But we also observe, since the mids, an asymmetry emerging within that ongoing tit-for-tat pattern. Close A historical study with a longer time horizon might reveal that asymmetric constitutional hardball has an epicyclical character in the American system, with the party that feels it was on the losing end of prior periods of hardball becoming the dominant hardball player in subsequent periods.

Noel Canning , S. Judicial appointments may well be the field with greatest overlap in Democratic and Republican hardball tactics. But cf. Fontana, supra note 47, at —08, —20, —26, —33 detailing ways in which the Obama Administration declined to play Republican-style hardball on judicial nominations. Close to announcing initiatives that would defer the deportation of large categories of unauthorized immigrants in the absence of legislative reform. The examples listed in the main text strike us as the most significant and salient acts of constitutional hardball by the Obama Administration and its congressional supporters, assuming one does not view the Iran nuclear deal or the Paris climate agreement as such.

Curtis A. But there may be others. See also, e. Depending on their framing, such arguments could be construed as alleging a form of constitutional hardball. They appear to have a dominant market position, however. Close Republican constitutional hardball, it seems, has been not only more common in practice since the mids but also more confident in justification.

Introduction

In line with these observations, a rough consensus has emerged among analysts of Washington politics that Republicans have a decided edge in constitutional hardball. Prospect Jan. Prospect Apr. Close We do not doubt that some conservative pundits would dispute these claims. Hatch, Opinion, Sen. But let me be clear: We are here because of what Democrats have done over the last thirty years to poison the confirmation process.

Notably, such charges have tended to focus on Democratic Presidents rather than Democratic members of Congress, where we observe greater asymmetry. Times Dec. Books Jan. Based on our reading of all these comments, the one point on which everyone seemed to agree was the plausibility of the counterfactual premise that Republicans would have fought in ways Democrats did not, had the shoe been on the other foot.

Members of both parties have been interpreting political events through the prism of hardball asymmetry. They quickly backed away from that gambit. See Sarah F. But even if this claim were true across the board, which it is not, see, e. Whatever their drawbacks, off-cycle elections do not actually block Republicans, or anyone else, from voting. If this is as far as Democrats will go, it highlights the limits of their use of hardball in the highly contested constitutional sphere of voting.

Close They have not fired their own hand-picked Senate Parliamentarian in an effort to overturn rulings that displeased them. The novel form of hardball pioneered by Senate Republicans is to replace their own chosen Parliamentarian in response to a disfavored ruling. Senate, 47 U. Davis L. Donald P. In terms of judicial appointments, while both parties may have chosen individuals with strongly held jurisprudential views, Democrats have not pushed through young judges to the same extent as Republicans have.

Judicial Ctr. The average ages of circuit court and district court nominees were also lower during these Republican presidencies. See Sheldon Goldman et al. Close And they have not impeached a President. This tactical divide suggests that there is a qualitative, not just a quantitative, difference in how the parties have been playing constitutional hardball—which we contend in section III. Second, our story takes place against a backdrop of asymmetric polarization: Social scientists have shown convincingly that since the s, Republicans have moved further to the right than Democrats have moved to the left.

Political Sci. Political scientists have good evidence that both 1 and 2 are occurring, but it is only with respect to 2 that it is conceptually possible to observe an asymmetry. That asymmetry tends to be linked with a third variable Schleicher discusses: 3 the intensity or fundamentalism with which partisans espouse their views. As we explain in section III. B, there is evidence of asymmetry here as well. Close This is true for rank-and-file voters as well as party elites; it can be observed in public polling data as well as congressional voting patterns.

Wolf et al. Pew Research Ctr. They suggest an overarching reason why constitutional hardball tactics would tend to hold greater appeal and less downside for Republican officeholders. Jacob S. It has multiple power centers that compete for membership support in order to make demands on, as well as determine, the leaders. Relatedly, there is intriguing evidence, which we do not have the space to explore fully here, that Republicans favor a more hierarchical form of internal party organization.

Skinner et al. By reducing intraparty collective action problems, and by reducing the effective veto power of moderates who might oppose some tough tactics, this tendency could also facilitate constitutional hardball. Prior to the Trump presidency, the fact that Republicans had fewer moderates in elected positions was easily transformed into a perception that they were more disciplined as a party. The question of whether there was in fact an asymmetry in discipline is a matter of some debate.

In any event, the Trump years seem likely to scramble these calculations, increasing unity on the Democratic side and division on the Republican side, at least temporarily. Close Insofar as constitutional hardball tactics depend on the existence or perception of an ideologically committed party with a shared vision of political change, these data points also help support the plausibility of asymmetric constitutional hardball.

We will return to this issue below. These different constitutional commitments of the two parties, it bears emphasis, are contingent and bounded in political time. Close Perhaps in some future period, it will be liberals who think and speak in terms of restoring a lost constitutional order and conservatives who are more focused on defending a body of judicial precedents that has developed case by case. See supra notes 75—77 and accompanying text. At least some of the factors that contribute to the present asymmetry, however, seem likely to be more enduring. Close But over the past quarter century or so, as Part III explains, it has been conservatives who have had more to gain from dramatic departures from established constitutional understandings, forged during the New Deal and Warren Court eras, while liberals have been pushed toward a more incrementalist and cautious constitutionalism.

Having established that asymmetric constitutional hardball is at least plausible, let us now examine its potential origins and meaning a little more carefully. There are two basic ways to approach this question. From this angle, we can disaggregate the question into a series of smaller ones. And do these dynamics vary across the parties? We suggest in section A of this Part that while both Republicans and Democrats face political pressure to play constitutional hardball, such pressure has been considerably stronger and more systematic on the Republican side. However, this first approach to the question may risk begging it.

Why are various crucial players within the Republican coalition more inclined than their Democratic counterparts to reward constitutional hardball or to punish its absence? A second approach moves the analysis to the level of values and ideas. Although all political parties are ideologically diverse, substantial segments of their coalitions hold identifiable clusters of beliefs that are part of what makes the coalitions cohere.

Asymmetric constitutional hardball is not the sort of phenomenon that can be modeled in a neat, monocausal manner. We cannot hope in an Essay like this to tease out the relative magnitude of the different causal stories, if doing so is possible at all. In order to get into office and stay in office, elected representatives need votes. See also id. Several authors of this book have acknowledged that since its publication, a shift away from these elite networks has become more pronounced.

Stop Trump? Times Mar. The influence of these insiders has been waning for some time, however, as the elections of the past decade brought into sharp relief. Close These outside groups include comprehensive ideological players such as FreedomWorks and Democracy Alliance; issue-specific outfits such as the Sierra Club, the National Rifle Association, and Planned Parenthood; a few unions that remain powerful locally or nationally on the Democratic side; and a large number of donor-driven groups organized under various legal categories, such as Super PACs or c 4 s.

Close may have strong views about whether elected officials should or should not engage in acts of constitutional hardball. Close —generates stronger incentives than the Democratic coalition to play hardball. Safe Seats and Primary Challenges. Abramowitz, U. Loomis ed. Times: FiveThirtyEight Dec.

It is possible that gerrymandering in the House has also contributed indirectly to ideological polarization in the Senate, given that so many senators are former House members who have, over the past generation, been exposed to repeated primary contests in that chamber. See Sean M. Senate, 73 J. Our argument in this section does not depend on any claim that more Republicans than Democrats occupy safe seats or are the beneficiaries of partisan gerrymandering. In theory, this threat applies equally to Democrats and Republicans. In practice, its effects have been far from equal.

Boatright, Getting Primaried: The Changing Politics of Congressional Primary Challenges 2, 76—77 describing the one successful defeat of a Democratic Representative by a challenger from the left between and ; id. Close And well before the Tea Party emerged on the scene, Republican Senators and Representatives were experiencing a greater vulnerability to primary challenges—a trend that began in Ever since the Gingrich Revolution, then, Republican members of Congress have had to worry considerably more than their Democratic counterparts about ideologically extreme rivals from their own party.

Insofar as these rivals tend to favor a combative style of politics and to hold Beltway conventions in low regard, this dynamic pushes Republican officeholders in the direction of constitutional hardball. Close The difficult question remains, though, why primary challenges have been playing out so differently on the Republican side.

The balance of this Part offers some partial explanations. Outside Funders. Compare Ronald T. In fact, the Tea Party was both of these things at once, which is part of why it was effective. Wilson, Tea Time? The Rise of the Tea Party, Pol. Insight, Apr. Close the leaders of this uprising viewed the conventional methods of political bargaining in Washington, as practiced by both parties, as a form of corruption that they sought to purge.

After sweeping into power in the midterms, House Republicans demanded steep spending cuts in exchange for raising the debt ceiling in August , forcing the U. Treasury to the verge of default. According to Jane Mayer, right-wing donors and advocacy groups such as Americans for Prosperity and the Club for Growth played a crucial role in encouraging the Republican Young Guns, led by then-House Majority Leader Eric Cantor, to push the party to the brink in this episode.

Close As we will discuss in section B, they also linked this ambition to a powerful vision of constitutional change, styled as constitutional restoration. Times Aug. See generally Amanda Fallin et al.

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On the Democratic side as well, the center of political gravity has been shifting from party leaders and officials to nominally outside groups, as noted above. Instead, on the left the story remains one of coalition politics. Close But no financially significant group exerts constant pressure on them to upend prevailing norms of governance.

On the contrary, many of the wealthy donors and funders on whom Democrats depend tend to have a moderating effect on the party, rewarding candidates who cater to the professional class and stake out centrist positions. To be sure, there are some individual donors with strong ideological views who have an outsized role in contemporary Democratic politics.

In the two most recent election cycles, the highest-profile example was hedge fund manager Tom Steyer. Before that, it was George Soros. The case of Steyer is instructive: While his funding may have encouraged Democrats to make addressing climate change a higher political priority, it is hard to see how any Democratic officeholder would have faced stronger incentives to play constitutional hardball, at least prior to the Trump presidency, because of support or lack of support from Steyer.

Times Apr. See Michael L. Close Their role in not only funding campaigns but also staffing them and organizing members on their behalf was for decades unparalleled. Close Certain unions also brought a pugnacious style to Democratic politics. Union Decline and Renewal, 25 Ann. Dorian T. Close the labor movement was not even able to convince a sufficient number of Democrats to overcome a filibuster of the Employee Free Choice Act in , when Democrats controlled both houses of Congress and enjoyed a filibuster-proof majority in the Senate.


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The signature-card provision was removed after several moderate-to-conservative Democrats announced their opposition. Close Moreover, it has been a long time since the labor movement seriously pressed for a wholesale change in the direction of the Democratic Party, let alone a wholesale change framed in constitutional terms. There was a time in American history when parts of the labor movement—the United Automobile Workers under Walter Reuther in the mid-twentieth century, to cite the most prominent example—played a substantial role in pulling the Democratic Party leftward on questions of tax-and-transfer policy and economic justice.

These dynamics were long gone during the period of asymmetric constitutional hardball we are considering. Our point here involves no claim about the merits of the blue-slip convention, but simply about a potential partisan asymmetry in the extent to which the Senate chooses to follow it. Close But this answer to our main question, once again, may seem to raise the same question in a new form.

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Why are Republican donors, like Republican voters, seemingly so much less interested in rewarding bipartisanship, incumbency, and dealmaking—and so much more interested in rewarding political hardball generally and constitutional hardball specifically? We will return to this question in section B of this Part. Other Mediating Institutions. But many of the most important mediating institutions in American politics are none of these.

For our purposes, a particularly significant set of speakers are those credentialed to speak about the law and the Constitution. But the general run of pundits matters as well. Both the Democratic and Republican coalitions have media outlets that tend to take their side of policy debates. Is there any reason, then, to believe these institutions generate asymmetric incentives for the parties to engage in constitutional hardball? There is. To see why, it helps to step back and view the development of the relevant institutions in political time. But the significance of this story for the dynamics of constitutional hardball has not, as far as we are aware, received scholarly attention.

That success belies significant challenges conservatives had to surmount during this period. Times, Feb. Times Jan. Close to Washington think tanks Brookings being the preeminent one See, e. Close to philanthropic foundations. Times, Sept. Close The policy experts considered qualified, by the standards of the time, to speak on important issues seemed centrist at best. And so, the conservative movement began a massive institution-building effort across a number of spheres, For an early overview, see Dan Morgan, Conservatives: A Well-Financed Network, Wash. Post, Jan.

Close an effort whose trajectory one might usefully trace from the creation of the Heritage Foundation and the Cato Institute in and , respectively, See About Cato, Cato Inst. Close through the launch of the Fox News Channel. Post, Oct. Chamber of Commerce, U.

The story of this explosion of new and newly invigorated institutions is not uniform across all these different spheres. Many of the new think tanks and foundations were the result of an infusion of capital from wealthy, mobilized advocates of deregulation. Getting the channel off the ground required some raw political muscle. See Time Warner Cable of N. City of New York, F. Time Warner Cable of N.

Bloomberg L. Close Yet despite their somewhat different origin stories, there are some commonalities across these institutions, particularly in their character and self-conception as insurgent challengers to what they perceived as the dominant liberalism of the established order. Print and broadcast journalists, Surveys from the period suggested that journalists on the whole leaned left, and were more likely to be Democrats than Republicans by approximately a two-to-one margin. Close were indeed mostly liberal, as were the faculties and student bodies of law schools.

McGinnis et al. Close Such liberal leanings undoubtedly affected the way some of these actors thought about and addressed political issues. At the same time, however, such liberal leanings were constrained by norms of professional role morality that structured the work of these older institutions.

Wilson eds.


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    Times Mag. The s brought a liberal counter-reaction to these developments. This phenomenon can be studied at various levels of granularity with similar results. Elections, —, 1 Q. But their audiences have been small compared to the audience for conservative talk radio or the Fox News Channel, See, e. Close and they themselves may be more constrained than their conservative counterparts by certain norms of professionalism. This is a difficult proposition to assess with any real objectivity. We simply note here that there is a perception on the left of a persistent and politically consequential gap.

    Close Liberals do not tend to get their straight news from overtly ideological sources—think of Daily Kos or Democracy Now! The conservative echo chamber of the past two decades has been less staid and more self-contained. Close Survey data show that a large plurality of conservatives, to an extent that has no parallel on the left, orient themselves around a single news source: Fox News. No other sources come close.

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    Consistent liberals, on the other hand, volunteer a wider range of main sources for political news. Gregory J. Close as compared to, say, conservative talk-radio hosts. Close But across the core media outlets and think tanks on the conservative side, for reasons having to do with their development in political time, the authorities presented tend to be more explicitly partisan and more willing to argue that the actions or priorities of the other side are egregious and indefensible.

    The two coalitions that make up our major political parties once teemed with internal ideological diversity. In recent decades, however, they have become increasingly ideologically coherent and distinct. Erikson et al. Cohen ed. Opinion Q. The increasing distinctness of the parties in terms of ideology and policy preferences does not mean that either party lacks internal disagreement. But it does mean that there is less room than before for agreement across party lines. Close The resulting polarization opens the door to constitutional hardball on both sides.

    Close As we suggested at the outset and began to flesh out in preceding sections, the fact that polarization itself has been asymmetric since the s—with Republicans moving further to the right than Democrats have moved to the left—is likely bound up on several levels with the rise of asymmetric constitutional hardball over the past twenty-five years. The main question we examine in this section is slightly different. So far we have talked of polarization and its asymmetric character largely without regard to the specific ideological commitments around which the parties have come to cohere.

    Other models assume that legislators are motivated in significant part by a desire to implement their own views. Views of Government and the Costs of Constitutional Hardball. The thousand-plus subpoenas that Representative Burton issued to the Clinton Administration consumed an enormous amount of executive branch time and energy. Close Government shutdowns under both Clinton and Obama forced agencies to curtail nonessential operations and services for nontrivial periods of time.


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    7. This is constitutional hardball of the convention-straining kind, although after the government shutdowns of the mids, , and now , see supra note 13, it is becoming less certain that there is a convention against shutting down the government over policy disagreements. The debt ceiling is a particularly interesting animal from the perspective of constitutional hardball. Imposing the statutory ceiling was not itself a form of constitutional hardball, so much as an act of symbolic politics intended to signify opposition to excessive debt.

      See Neil H. However, once the law was in place and subject to periodic votes to increase the ceiling in line with the amounts necessary to close the gap between the money Congress appropriates and the money it raises, the debt ceiling created the possibility of a particularly dangerous form of hardball: brinkmanship over default. Close All of these tactics seek to gain political leverage through behaviors that risk hobbling the government.

      That question is a proxy for what one thinks about the value of the institution. Is government primarily a force for good that implements important public values, or is it primarily an impediment to individual freedom and a source of corruption and waste? Times Feb. See Bulman-Pozen, supra note 55, at —20; Heimlich, supra. It actually worked. Monitor Jan. Post Sept. Close Prominent conservative commentators amplified these sentiments. No laws passed. See supra note We might draw a distinction here between obstruction- creating forms of constitutional hardball and obstruction- clearing forms of constitutional hardball.

      Such forms of hardball enable the government to get things done. Post Jan. Close as a former aide to Senator Harry Reid asserted last year, their corollary commitment to a strong government that solves economic problems See supra note and accompanying text. It may also lead to less durable and effective policy, insofar as it pushes those in power toward relatively precarious or piecemeal solutions that do not command broad bipartisan support and do not necessarily become legally entrenched. These policy consequences, in turn, may contribute to a decline in public trust in government as well as an exacerbation of constitutional conflict.

      Richard H. Fallon, Jr. Close would have a stronger political motivation to engage in more, and more destabilizing, forms of constitutional hardball. Originalism, Constitutional Restorationism, and Forms of Fidelity. Klarman, Bush v. Times Nov. What connects these two forms of hardball—tactics that defy constitutional conventions and efforts to achieve especially aggressive or self-entrenching forms of constitutional change—is that they break the perceived rules of normal constitutional politics.

      They may reflect a sincerely held, long-term vision of a good constitutional order, as with libertarian arguments for the activity—inactivity distinction. Or they may seek a one-time victory with a powerful political effect, as with the equal protection argument in Bush v. First, they want to establish that the Constitution means one thing rather than another.

      Second, they want to stay in power and keep those who agree with them in power as long as possible. And recognizing such behaviors as hardball is not to suggest they are inherently bad. While all acts of constitutional hardball create systemic risks, as Part III will discuss, 38 38 See infra notes — and accompanying text. We return to this theme in the Conclusion. Close specific acts may be justified for a variety of contextual normative reasons; sound political judgment might even require that certain types of hardball be played in certain situations. Theorizing the conditions under which constitutional hardball is justified as a matter of political or constitutional morality is an important task, but one that would require another, very different sort of paper.

      Many Beltway behaviors are contentious or obnoxious without being constitutional hardball. Rhetorical attacks on the other side will rarely disrupt the machinery of government or effect dramatic constitutional change. Close So too with most policy proposals and programs. But they did not generate charges of unfair dealing or upend the rules of the policy game. At this point, it is the only world our politicians know. Because acts of constitutional hardball are seen as provocative and high-stakes, they tend to invite a response. Often this response involves another act of constitutional hardball.

      And just as in the schoolyard, the question of who started it arises and becomes part of the dispute itself. Whichever side resorts to hardball, the other side will follow suit in a predictable sequence of tit-for-tat. Close Following Tushnet, other legal scholars have suggested the same. Courser et al. Close We agree that constitutional hardball lends itself to retaliation and escalation—and that both Democratic and Republican officeholders engage in it to some substantial extent.

      This is what we submit has happened for the past quarter century or so, since roughly the Gingrich Revolution 48 48 Led by Newt Gingrich, the Republican Party took back control of the House of Representatives for the first time in more than thirty years following the midterm elections. See generally Thomas E. Close of the mids. See Peter M. One party, the Republican Party, has become especially identified with hardball tactics during this period, with large consequences for our constitutional system. We acknowledge at the outset that studying this potential asymmetry poses a considerable challenge.

      Because of the reciprocal character of constitutional hardball and the open texture of constitutional norms, both sides will frequently have a nonfrivolous claim to be responding to a transgression or provocation by the other side. Sunstein, Partyism, U. Legal F. Close confirmation bias, myside bias, or the like. The same goes for us.

      Further complicating matters, the structure of constitutional hardball itself confounds objective measurement. An interpretive judgment is always required to establish that a political maneuver amounts to constitutional hardball, because one must first determine what the relevant constitutional traditions and settled understandings are, at what level of generality to assess the historical record, and whether and to what extent the maneuver deviates from them.

      There is no Archimedean point from which we, as observers of politics, can stand outside politics and be completely confident in the accuracy of our assessments. See generally Chafetz, supra note 4. For one thing, it proves too much. Many different public law practices have long been inflected with partisanship. It would be perverse to exempt some or all of them from scholarly inquiry on that basis. Given its inherently contested and shape-shifting nature, we know of no good way to reduce the overall practice of constitutional hardball to a numerical scale, no scientific test to measure or code it.

      Surveys and interviews might be used to gauge the views of Washington insiders. Close And we suspect that such scales and tests, if devised, would be vulnerable to the biases and value choices of the politically aware humans who create them. In an exploratory Essay like this, we believe it is appropriate to take a more encompassing, qualitative approach.

      Laying out this evidence is the work of the rest of this Part. What leads us to suspect that constitutional hardball has become asymmetric? The next section and Part III will consider numerous forms of indirect evidence. But the most immediate reason for suspecting as much is this: The recent historical record appears to contain more, and more distinctive, examples of constitutional hardball on the Republican side.

      Meanwhile, a perception of partisan asymmetry has emerged. Close While this would be notable regardless of the reality, the perception has an empirical basis. Our focus here is on the period from the mids through the end of the Obama Administration. Partisan conflict was a near-constant, and President Trump had not yet brought his openly norm-shattering approach to the White House.

      There is no obvious a priori reason why one side would have become more identified with constitutional hardball than the other. And yet that is what happened. A partial catalog from the pre-Obama years 55 55 This catalog is focused on the actions of federal government officials. Given that i the two parties have also become increasingly ideologically cohesive and polarized throughout the fifty states, see Jessica Bulman-Pozen, Partisan Federalism, Harv. Yes and No, Measuring Am.

      A sustained analysis of state-level constitutional hardball is beyond the scope of this Essay, however. Close might include the government shutdowns of and ; 56 56 See supra note 30 and accompanying text. Times: Economix Nov. Many of these investigations bordered on the farcical. Mitchell L. Daniel P. For a helpful overview, see generally Richard L. Close various tactical moves by the Bush side in the Bush v.

      Gore litigation and the ensuing Supreme Court decision; 62 62 See supra notes 34—35 and accompanying text. Oppenheimer eds. Closed rules deny minority-party legislators the opportunity to offer amendments to a bill. House of Representatives 6 Times Oct. Close threatened repeatedly to default on the national debt; 71 71 See Neil H.

      Post Aug. Bork, Balkinization Nov. But we also observe, since the mids, an asymmetry emerging within that ongoing tit-for-tat pattern. Close A historical study with a longer time horizon might reveal that asymmetric constitutional hardball has an epicyclical character in the American system, with the party that feels it was on the losing end of prior periods of hardball becoming the dominant hardball player in subsequent periods.

      Noel Canning , S. Judicial appointments may well be the field with greatest overlap in Democratic and Republican hardball tactics. But cf. Fontana, supra note 47, at —08, —20, —26, —33 detailing ways in which the Obama Administration declined to play Republican-style hardball on judicial nominations. Close to announcing initiatives that would defer the deportation of large categories of unauthorized immigrants in the absence of legislative reform. The examples listed in the main text strike us as the most significant and salient acts of constitutional hardball by the Obama Administration and its congressional supporters, assuming one does not view the Iran nuclear deal or the Paris climate agreement as such.

      Curtis A. But there may be others. See also, e. Depending on their framing, such arguments could be construed as alleging a form of constitutional hardball. They appear to have a dominant market position, however. Close Republican constitutional hardball, it seems, has been not only more common in practice since the mids but also more confident in justification. In line with these observations, a rough consensus has emerged among analysts of Washington politics that Republicans have a decided edge in constitutional hardball.

      Prospect Jan. Prospect Apr. Close We do not doubt that some conservative pundits would dispute these claims. Hatch, Opinion, Sen. But let me be clear: We are here because of what Democrats have done over the last thirty years to poison the confirmation process. Notably, such charges have tended to focus on Democratic Presidents rather than Democratic members of Congress, where we observe greater asymmetry. Times Dec. Books Jan. Based on our reading of all these comments, the one point on which everyone seemed to agree was the plausibility of the counterfactual premise that Republicans would have fought in ways Democrats did not, had the shoe been on the other foot.

      Members of both parties have been interpreting political events through the prism of hardball asymmetry. They quickly backed away from that gambit. See Sarah F. But even if this claim were true across the board, which it is not, see, e. Whatever their drawbacks, off-cycle elections do not actually block Republicans, or anyone else, from voting. If this is as far as Democrats will go, it highlights the limits of their use of hardball in the highly contested constitutional sphere of voting.

      Close They have not fired their own hand-picked Senate Parliamentarian in an effort to overturn rulings that displeased them. The novel form of hardball pioneered by Senate Republicans is to replace their own chosen Parliamentarian in response to a disfavored ruling. Senate, 47 U. Davis L. Donald P. In terms of judicial appointments, while both parties may have chosen individuals with strongly held jurisprudential views, Democrats have not pushed through young judges to the same extent as Republicans have.

      Judicial Ctr. The average ages of circuit court and district court nominees were also lower during these Republican presidencies. See Sheldon Goldman et al.

      Strategic Posture Review Algeria World Politics Review Strategic Posture Reviews

      Close And they have not impeached a President. This tactical divide suggests that there is a qualitative, not just a quantitative, difference in how the parties have been playing constitutional hardball—which we contend in section III. Second, our story takes place against a backdrop of asymmetric polarization: Social scientists have shown convincingly that since the s, Republicans have moved further to the right than Democrats have moved to the left.

      Political Sci. Political scientists have good evidence that both 1 and 2 are occurring, but it is only with respect to 2 that it is conceptually possible to observe an asymmetry. That asymmetry tends to be linked with a third variable Schleicher discusses: 3 the intensity or fundamentalism with which partisans espouse their views. As we explain in section III. B, there is evidence of asymmetry here as well. Close This is true for rank-and-file voters as well as party elites; it can be observed in public polling data as well as congressional voting patterns. Wolf et al. Pew Research Ctr.

      They suggest an overarching reason why constitutional hardball tactics would tend to hold greater appeal and less downside for Republican officeholders. Jacob S. It has multiple power centers that compete for membership support in order to make demands on, as well as determine, the leaders. Relatedly, there is intriguing evidence, which we do not have the space to explore fully here, that Republicans favor a more hierarchical form of internal party organization. Skinner et al. By reducing intraparty collective action problems, and by reducing the effective veto power of moderates who might oppose some tough tactics, this tendency could also facilitate constitutional hardball.

      Prior to the Trump presidency, the fact that Republicans had fewer moderates in elected positions was easily transformed into a perception that they were more disciplined as a party. The question of whether there was in fact an asymmetry in discipline is a matter of some debate. In any event, the Trump years seem likely to scramble these calculations, increasing unity on the Democratic side and division on the Republican side, at least temporarily. Close Insofar as constitutional hardball tactics depend on the existence or perception of an ideologically committed party with a shared vision of political change, these data points also help support the plausibility of asymmetric constitutional hardball.

      We will return to this issue below. These different constitutional commitments of the two parties, it bears emphasis, are contingent and bounded in political time. Close Perhaps in some future period, it will be liberals who think and speak in terms of restoring a lost constitutional order and conservatives who are more focused on defending a body of judicial precedents that has developed case by case. See supra notes 75—77 and accompanying text. At least some of the factors that contribute to the present asymmetry, however, seem likely to be more enduring.

      Close But over the past quarter century or so, as Part III explains, it has been conservatives who have had more to gain from dramatic departures from established constitutional understandings, forged during the New Deal and Warren Court eras, while liberals have been pushed toward a more incrementalist and cautious constitutionalism. Having established that asymmetric constitutional hardball is at least plausible, let us now examine its potential origins and meaning a little more carefully.

      There are two basic ways to approach this question. From this angle, we can disaggregate the question into a series of smaller ones. And do these dynamics vary across the parties? We suggest in section A of this Part that while both Republicans and Democrats face political pressure to play constitutional hardball, such pressure has been considerably stronger and more systematic on the Republican side. However, this first approach to the question may risk begging it. Why are various crucial players within the Republican coalition more inclined than their Democratic counterparts to reward constitutional hardball or to punish its absence?

      A second approach moves the analysis to the level of values and ideas. Although all political parties are ideologically diverse, substantial segments of their coalitions hold identifiable clusters of beliefs that are part of what makes the coalitions cohere. Asymmetric constitutional hardball is not the sort of phenomenon that can be modeled in a neat, monocausal manner.

      We cannot hope in an Essay like this to tease out the relative magnitude of the different causal stories, if doing so is possible at all. In order to get into office and stay in office, elected representatives need votes. See also id. Several authors of this book have acknowledged that since its publication, a shift away from these elite networks has become more pronounced. Stop Trump? Times Mar. The influence of these insiders has been waning for some time, however, as the elections of the past decade brought into sharp relief.

      Close These outside groups include comprehensive ideological players such as FreedomWorks and Democracy Alliance; issue-specific outfits such as the Sierra Club, the National Rifle Association, and Planned Parenthood; a few unions that remain powerful locally or nationally on the Democratic side; and a large number of donor-driven groups organized under various legal categories, such as Super PACs or c 4 s. Close may have strong views about whether elected officials should or should not engage in acts of constitutional hardball.

      Close —generates stronger incentives than the Democratic coalition to play hardball. Safe Seats and Primary Challenges. Abramowitz, U. Loomis ed. Times: FiveThirtyEight Dec. It is possible that gerrymandering in the House has also contributed indirectly to ideological polarization in the Senate, given that so many senators are former House members who have, over the past generation, been exposed to repeated primary contests in that chamber.

      See Sean M. Senate, 73 J. Our argument in this section does not depend on any claim that more Republicans than Democrats occupy safe seats or are the beneficiaries of partisan gerrymandering. In theory, this threat applies equally to Democrats and Republicans. In practice, its effects have been far from equal.

      Boatright, Getting Primaried: The Changing Politics of Congressional Primary Challenges 2, 76—77 describing the one successful defeat of a Democratic Representative by a challenger from the left between and ; id. Close And well before the Tea Party emerged on the scene, Republican Senators and Representatives were experiencing a greater vulnerability to primary challenges—a trend that began in Ever since the Gingrich Revolution, then, Republican members of Congress have had to worry considerably more than their Democratic counterparts about ideologically extreme rivals from their own party.

      Insofar as these rivals tend to favor a combative style of politics and to hold Beltway conventions in low regard, this dynamic pushes Republican officeholders in the direction of constitutional hardball. Close The difficult question remains, though, why primary challenges have been playing out so differently on the Republican side. The balance of this Part offers some partial explanations. Outside Funders. Compare Ronald T.

      In fact, the Tea Party was both of these things at once, which is part of why it was effective. Wilson, Tea Time? The Rise of the Tea Party, Pol. Insight, Apr. Close the leaders of this uprising viewed the conventional methods of political bargaining in Washington, as practiced by both parties, as a form of corruption that they sought to purge. After sweeping into power in the midterms, House Republicans demanded steep spending cuts in exchange for raising the debt ceiling in August , forcing the U.

      Treasury to the verge of default. According to Jane Mayer, right-wing donors and advocacy groups such as Americans for Prosperity and the Club for Growth played a crucial role in encouraging the Republican Young Guns, led by then-House Majority Leader Eric Cantor, to push the party to the brink in this episode. Close As we will discuss in section B, they also linked this ambition to a powerful vision of constitutional change, styled as constitutional restoration. Times Aug. See generally Amanda Fallin et al. On the Democratic side as well, the center of political gravity has been shifting from party leaders and officials to nominally outside groups, as noted above.

      Instead, on the left the story remains one of coalition politics. Close But no financially significant group exerts constant pressure on them to upend prevailing norms of governance. On the contrary, many of the wealthy donors and funders on whom Democrats depend tend to have a moderating effect on the party, rewarding candidates who cater to the professional class and stake out centrist positions.

      To be sure, there are some individual donors with strong ideological views who have an outsized role in contemporary Democratic politics. In the two most recent election cycles, the highest-profile example was hedge fund manager Tom Steyer. Before that, it was George Soros. The case of Steyer is instructive: While his funding may have encouraged Democrats to make addressing climate change a higher political priority, it is hard to see how any Democratic officeholder would have faced stronger incentives to play constitutional hardball, at least prior to the Trump presidency, because of support or lack of support from Steyer.

      Times Apr. See Michael L. Close Their role in not only funding campaigns but also staffing them and organizing members on their behalf was for decades unparalleled. Close Certain unions also brought a pugnacious style to Democratic politics. Union Decline and Renewal, 25 Ann. Dorian T. Close the labor movement was not even able to convince a sufficient number of Democrats to overcome a filibuster of the Employee Free Choice Act in , when Democrats controlled both houses of Congress and enjoyed a filibuster-proof majority in the Senate.

      The signature-card provision was removed after several moderate-to-conservative Democrats announced their opposition. Close Moreover, it has been a long time since the labor movement seriously pressed for a wholesale change in the direction of the Democratic Party, let alone a wholesale change framed in constitutional terms.

      There was a time in American history when parts of the labor movement—the United Automobile Workers under Walter Reuther in the mid-twentieth century, to cite the most prominent example—played a substantial role in pulling the Democratic Party leftward on questions of tax-and-transfer policy and economic justice. These dynamics were long gone during the period of asymmetric constitutional hardball we are considering.

      Our point here involves no claim about the merits of the blue-slip convention, but simply about a potential partisan asymmetry in the extent to which the Senate chooses to follow it. Close But this answer to our main question, once again, may seem to raise the same question in a new form.

      Why are Republican donors, like Republican voters, seemingly so much less interested in rewarding bipartisanship, incumbency, and dealmaking—and so much more interested in rewarding political hardball generally and constitutional hardball specifically? We will return to this question in section B of this Part. Other Mediating Institutions. But many of the most important mediating institutions in American politics are none of these. For our purposes, a particularly significant set of speakers are those credentialed to speak about the law and the Constitution.

      But the general run of pundits matters as well. Both the Democratic and Republican coalitions have media outlets that tend to take their side of policy debates. Is there any reason, then, to believe these institutions generate asymmetric incentives for the parties to engage in constitutional hardball? There is. To see why, it helps to step back and view the development of the relevant institutions in political time. But the significance of this story for the dynamics of constitutional hardball has not, as far as we are aware, received scholarly attention.

      That success belies significant challenges conservatives had to surmount during this period. Times, Feb. Times Jan. Close to Washington think tanks Brookings being the preeminent one See, e. Close to philanthropic foundations. Times, Sept. Close The policy experts considered qualified, by the standards of the time, to speak on important issues seemed centrist at best.

      And so, the conservative movement began a massive institution-building effort across a number of spheres, For an early overview, see Dan Morgan, Conservatives: A Well-Financed Network, Wash. Post, Jan. Close an effort whose trajectory one might usefully trace from the creation of the Heritage Foundation and the Cato Institute in and , respectively, See About Cato, Cato Inst. Close through the launch of the Fox News Channel. Post, Oct. Chamber of Commerce, U. The story of this explosion of new and newly invigorated institutions is not uniform across all these different spheres. Many of the new think tanks and foundations were the result of an infusion of capital from wealthy, mobilized advocates of deregulation.

      Getting the channel off the ground required some raw political muscle. See Time Warner Cable of N. City of New York, F. Time Warner Cable of N. Bloomberg L. Close Yet despite their somewhat different origin stories, there are some commonalities across these institutions, particularly in their character and self-conception as insurgent challengers to what they perceived as the dominant liberalism of the established order. Print and broadcast journalists, Surveys from the period suggested that journalists on the whole leaned left, and were more likely to be Democrats than Republicans by approximately a two-to-one margin.

      Close were indeed mostly liberal, as were the faculties and student bodies of law schools. McGinnis et al. Close Such liberal leanings undoubtedly affected the way some of these actors thought about and addressed political issues. At the same time, however, such liberal leanings were constrained by norms of professional role morality that structured the work of these older institutions. Wilson eds. Close They were outraged when conservative critics accused them of shading their news coverage in ways that favored liberal policy positions.

      The architects of the emerging conservative movement generally viewed these sorts of depoliticizing norms as either minor or fictitious. Post, Apr. Close Accordingly, when they established institutions to act as counterweights, they designed them in a more partisan manner, with diminished role-morality constraints. Times Mag. The s brought a liberal counter-reaction to these developments. This phenomenon can be studied at various levels of granularity with similar results. Elections, —, 1 Q. But their audiences have been small compared to the audience for conservative talk radio or the Fox News Channel, See, e.

      Close and they themselves may be more constrained than their conservative counterparts by certain norms of professionalism. This is a difficult proposition to assess with any real objectivity. We simply note here that there is a perception on the left of a persistent and politically consequential gap.

      Close Liberals do not tend to get their straight news from overtly ideological sources—think of Daily Kos or Democracy Now! The conservative echo chamber of the past two decades has been less staid and more self-contained. Close Survey data show that a large plurality of conservatives, to an extent that has no parallel on the left, orient themselves around a single news source: Fox News.

      No other sources come close. Consistent liberals, on the other hand, volunteer a wider range of main sources for political news. Gregory J. Close as compared to, say, conservative talk-radio hosts. Close But across the core media outlets and think tanks on the conservative side, for reasons having to do with their development in political time, the authorities presented tend to be more explicitly partisan and more willing to argue that the actions or priorities of the other side are egregious and indefensible.

      The two coalitions that make up our major political parties once teemed with internal ideological diversity. In recent decades, however, they have become increasingly ideologically coherent and distinct. Erikson et al. Cohen ed. Opinion Q. The increasing distinctness of the parties in terms of ideology and policy preferences does not mean that either party lacks internal disagreement.

      But it does mean that there is less room than before for agreement across party lines. Close The resulting polarization opens the door to constitutional hardball on both sides. Close As we suggested at the outset and began to flesh out in preceding sections, the fact that polarization itself has been asymmetric since the s—with Republicans moving further to the right than Democrats have moved to the left—is likely bound up on several levels with the rise of asymmetric constitutional hardball over the past twenty-five years. The main question we examine in this section is slightly different.

      So far we have talked of polarization and its asymmetric character largely without regard to the specific ideological commitments around which the parties have come to cohere. Other models assume that legislators are motivated in significant part by a desire to implement their own views.

      Views of Government and the Costs of Constitutional Hardball. The thousand-plus subpoenas that Representative Burton issued to the Clinton Administration consumed an enormous amount of executive branch time and energy. Close Government shutdowns under both Clinton and Obama forced agencies to curtail nonessential operations and services for nontrivial periods of time.