Their View | Flip-flopping on filibuster makes Congress a mess

July 25, 2013 

Cass R. Sunstein

What are the legitimate powers of the president? Of Congress?

Some people’s answers to these enduring questions seem to shift dramatically depending on a single (and seemingly irrelevant) fact: whether the current president is a Democrat or a Republican.

These shifts amount to “institutional flip-flops,” a defining feature of modern political life.

In recent weeks, the filibuster has been the most prominent example. Under President George W. Bush, Democratic senators tended to defend its use, while Republican senators opposed it.

Under President Barack Obama, of course, the two sides have essentially flipped. (Clarifying note: My topic throughout is the flip-flop, not which party has engaged in worse or more aggressive behavior.)

Does the president have broad power to make recess appointments? Bush certainly thought so. Many Republican senators agreed, but some Democratic senators were pretty outraged.

Under Obama, it’s the Republicans who tend to be outraged and the Democrats who are supportive or quiet.

Bush issued a large number of signing statements, in which he asserted the constitutional prerogatives of the president as the basis for questioning legislation that, in his view, intruded on those prerogatives.

Democrats vehemently objected.

By contrast, Obama’s signing statements haven’t produced a lot of protest from Democrats. (True, he has issued many fewer signing statements, but some of them have been pretty significant, including several that involve presidential authority to protect national security.)

It is tempting to conclude that when some members of Congress make broad and seemingly universal pronouncements about the importance of respecting executive power, what they mean is that they like and trust the current president.

And when some legislators emphasize the importance of allowing Congress to check the power of the president, they mean they distrust the current occupant of the Oval Office.

To the extent this is so, people’s general views about institutional questions aren’t deeply held and are highly influenced by a judgment about the particular person in power. Nor should there be any deep mystery here.

At least some institutional questions are pretty difficult, with no obvious answer. Are signing statements an intrusion on Congress’ lawmaking authority or a legitimate way of protecting the presidency?

Almost everyone agrees the filibuster has an appropriate place in Congress. Almost everyone also agrees it can be abused.

Under different presidents, Republicans and Democrats have made plausible arguments about the importance of providing safeguards against the current majority. They also have made plausible arguments about the importance of avoiding endless gridlock.

The precise line dividing legitimacy from abuse or safeguards from gridlock isn’t self-evident.

When institutional questions have clear answers, we are far less likely to observe flip-flopping.

No member of Congress seriously argues that the president can be impeached merely because his policies aren’t working. No president contends Congress lacks the authority to ratify treaties.

All of the recent institutional disagreements take place within the context of an established background, which is unquestioned by Republicans and Democrats.

Nonetheless, institutional flip-flops are a big problem, because they suggest a degree of hypocrisy and because they ensure that important questions will remain unsettled — and a source of frequent fighting — for long periods.

What might be done?

Moral and political theorists have a potential answer. They suggest that serious problems can be best resolved if we adopt a “veil of ignorance,” in which we ask: If we knew absolutely nothing about who would be helped and who would be hurt, how would we proceed?

Constitutions themselves tend to be adopted behind such a veil, because constitution-makers often don’t know who will be occupying particular offices. Well-functioning constitutions endure partly for that reason.

Can Democrats and Republicans adopt a veil of ignorance to settle institutional disagreements? Questions about the filibuster, recess appointments and signing statements aren’t easy to answer, but they start to become more tractable once we distance ourselves from today’s controversies and personnel.

For those who seek a veil of ignorance, an attractive approach might be to establish a specific date by which some new settlement would take place — say, after the 2016 elections. It isn’t a bad idea, but it might not be feasible.

Those who support the current president, and who seek change on his behalf, might be unenthusiastic and even nervous about this approach, because it would fail to help him (and it might end up empowering the other side).

Those who oppose the current president might also be unenthusiastic, because it would do nothing for them in the short run, and it might take away their power in the long run.

Fortunately, there is another possibility.

In the private sector, people often succeed in using something close to a veil of ignorance — and reduce the risk of flip-flops — simply by bracketing their short-term self-interest and working together to settle larger questions about how to make institutions function well over time.

It isn’t too much to ask our elected representatives to do the same.

Cass R. Sunstein, a professor at Harvard Law School, is a Bloomberg View columnist. He is the former administrator of the White House Office of Information and Regulatory Affairs, the co-author of “Nudge” and author of “Simpler: The Future of Government.”

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