Beneath the Surface

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The latest criminal indictment of Donald Trump accuses him of orchestrating three criminal conspiracies arising from his efforts to overturn the results of the 2020 election:

• a conspiracy to defraud the United States by impeding the counting and certification of election results
• a conspiracy to impede the January 6 congressional certification proceeding
• a conspiracy against the right to vote and to have one’s vote counted

Most of the facts about the former president’s behavior are not in dispute. They were laid out in the report of the House Select Committee, which I reviewed last January. The record shows that Trump and several close associates tried to get state election officials to revise their vote counts, recruited alternative electors to replace Biden electors, urged the Justice Department to notify the states of alleged election irregularities and discourage them from certifying the results, and tried to get Vice President Pence to reject certified electoral votes from the states.

Trump’s defense will almost have to lie in the realm of intent rather than behavior—“mens rea” rather than “actus reus” in the language of the law. He will have to argue that he sincerely believed the election results to be fraudulent, and that he followed the advice of counsel in his efforts to challenge them. He cannot have had criminal intent because he was acting in good faith. But the indictment asserts just the opposite, that he made “knowingly false claims” about the election and engaged in clearly “unlawful means” in order to change the outcome.

Criminal intent

For most of us, the protestations of innocence by the former president and his supporters would be much more convincing if he had a better reputation for being an honest man. The fact that he is widely regarded as a habitual liar, whose public statements are riddled with exaggerations, distortions and outright fabrications, does not help his cause.

In a criminal case, however, the general reputation of the accused is not the issue, but his intentions with regard to the specific matter at hand. Was he sincerely seeking a true election outcome, or was he conspiring to obstruct one by means of deliberate deception? The jury will have to decide.

Much of the indictment consists of state-by-state descriptions of Trump’s effort to find voter fraud where hardly any evidence of it existed. The margin of victory in the most contested states ranged from 10,457 votes in Arizona to 154,188 in Michigan. None of those states could find anywhere near enough cases of fraudulent voting or miscounting to change the outcome. The indictment provides an impressive list of knowledgeable officials—most of them Republicans—who informed Trump that he had lost the election. These included the Vice President, senior leaders of the Justice Department, the Director of National Intelligence, The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, senior White House attorneys, senior campaign staffers, state legislators and officials, and state and federal courts where Trump filed suit.

Trump continued to repeat specific claims of fraud even after he was informed they were not true. For example, he continued to claim that over 10,000 dead people had voted in Georgia. A senior advisor said that he thought the actual number might be twelve. The Georgia Secretary of State told the president it was two. On some occasions, the President acknowledged privately that claims were unsupported, but repeated them in public anyway.

One of those named as a co-conspirator was a Justice Department lawyer named Jeffrey Clark. He prepared a letter claiming that the Department had strong evidence of voter fraud and recommending that states reconsider their election certifications. He shared the letter with the President without the approval of the Acting Attorney General, in violation of department policy. When Trump was informed that the letter was inaccurate, his proposed response was to send it anyway by putting Jeffrey Clark in charge of the Justice Department. “The Defendant relented in his plan to replace the Acting Attorney General with Co-Conspirator 4 only when he was told that it would result in mass resignations at the Justice Department and of his own White House Counsel.”

Perhaps the most blatantly illegal scheme was to replace state-certified Biden electors with Trump electors in seven states—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin. It began as a proposal to have alternative electors available in case the effort to get Biden electors decertified would succeed. It soon became a scheme to submit the alternative electors to Congress whether they could be certified or not—none of them ever were—giving Vice President Pence an excuse to reject the real electors. That scheme then fed into the plan to have the Vice President either declare Trump President or throw the election back to the contested states. Pence told Trump in no uncertain terms that he had no authority to do any of this, but on the evening before January 6, Trump issued a statement, “The Vice President and I are in total agreement that the Vice President has the power to act.” He had to know that this was a flat-out lie. Then in the middle of the Capitol riot, Trump tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” a statement that made the Vice President a target of the mob’s anger.

These are not the action of a truth-seeker acting in good faith. They are the actions of a man who rejected any evidence that contradicted the story he wanted to tell, and enthusiastically embraced any claims—no matter how fanciful—that advanced his self-serving agenda. Let’s not forget that Trump announced before the election that he could only lose by fraud, and also declared victory before all the votes had been counted. That reveals a disregard for the will of the electorate and a willful refusal to accept any result that fails to satisfy his outsize ego. These are the attitudes of a would-be dictator, not a democratic servant of the people.

A larger web of deceit

What may be even more distressing than Donald Trump’s conspiratorial behavior is his continued popularity within the Republican Party. Despite the fact that Republicans in key positions refused to cooperate with his scheme, the majority of the party have continued to support him. He remains the runaway leader for the Republican nomination in 2024. Most Republicans continue to accept two big lies, that Joe Biden stole the 2020 election, and that the investigation into Donald Trump is nothing but a partisan witch hunt.

To me, this points to a larger problem, that the G.O.P. is rife with leaders who are willing to mislead, followers who are willing to be misled, and right-wing media organizations that profit from telling their viewers whatever they want to hear. I believe that this is related to the tendency of Republican policy positions to become increasingly divorced from reality, as the party continues to deny climate change, downplay systemic racism, and insist that tax cuts are always good for the economy, among other things. For more on the state of the Republican Party, see my series of posts on “Whatever Happened to Republicans,” especially Part 4.

Even if Donald Trump should be convicted and sentenced to prison, we should be prepared for Trumpism to endure unless and until the Republican base has a change of heart. Someday they may insist on leaders who address their legitimate concerns, not gain their votes through manipulation and deceit.

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Last week, the Supreme Court ruled that affirmative action admissions programs at both Harvard and UNC violate the equal protection clause of the Fourteenth Amendment. The universities had claimed that their programs conformed to the standards set by prior rulings because they considered a student’s race as only one factor among many. (See my previous post for more background.) The new ruling departs from prior rulings by demanding strictly colorblind admissions.

Chief Justice Robert’s decision leaves the door open only a crack for any consideration of race. He suggested that an individual applicant might be able to convince an admissions office—perhaps in a student essay—how the experience of being a minority had made him or her a more worthy candidate:

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise… A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination.

This puts the burden squarely on the individual applicant to demonstrate superiority over other applicants. It implies that the admissions process is all about individual competition, and cannot be an effort to build a diversified student body for the benefit of all students and the larger society.

Adjudication vs. policymaking

Supreme Court justices have long recognized that their proper role is to adjudicate cases, not to formulate social policy like a legislature or chief executive. Americans have been debating the pros and cons of affirmative action policy for decades. Liberals celebrate its potential to advance social equality by counteracting the effects of past discrimination. They see it as creating new paths for success for historically disadvantaged minorities, and creating the diversity of leaders needed in a pluralistic society. Conservatives see affirmative action as a divisive policy that unfairly favors minorities at the expense of the majority. It provokes resentment and perpetuates racial conflict.

However, the Supreme Court’s job is not primarily to decide whether affirmative action is good or bad social policy. It does not make policy for the government, let alone for private institutions like Harvard. Its job is to hear the cases that come before it and decide which side has the stronger case according to the facts and the law. Most of the work of the Court consists of figuring out how the nation’s body of law—especially the Constitution and its interpretation by the judiciary—applies to the case at hand.

In this case, Justice Sotomayor’s dissent accuses the majority of reading their strong policy preferences into the law, while disregarding too many of the facts and legal precedents. She is especially critical of Justice Thomas, whose own discomfort with being a beneficiary of affirmative action has led him to make sweeping claims about how affirmative action “burdens” minorities, claims that Sotomayor finds contrary to most of the research evidence.

So let’s have a brief look at the law and the historical record.

Equal protection in theory

The Fourteenth Amendment states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The issue in affirmative action cases is the meaning of the equal protection clause. What does it mean to offer equal protection of the law to people who have been classified into different “races” and treated very differently in the past? What does it require, or permit, or prohibit?

I find it helpful to think about other kinds of inequality that create some need for protection. In the case of age differences, some laws prohibit age discrimination, while others address the special needs of certain age groups. We have free public education specifically for children, and we have programs like Medicare specifically for the elderly. In the case of disabilities, the Americans with Disabilities Act protects the disabled against discrimination, but it defines discrimination broadly to include “a failure to make reasonable modifications in policies, practices, or procedures” or “a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles.” Social Security has a special category of disability benefits available only to that group. Courts do not see any of these things as violations of equal protection.

In these contexts equal protection has two acceptable interpretations. The first is nondiscrimination to protect people from second-class treatment, such as refusing to consider someone for a job they could in fact perform. The second is positive action to counteract inequality, such as accommodations to disabilities or programs to compensate for the infirmities of old age.

Racial distinctions are particularly troublesome because they are on the one hand much more arbitrary, but on the other hand at least as profound in their effects. Racial distinctions are based on ancestry, and ancestry doesn’t have to be a major source of inequality in a pluralistic society. In theory, a nondiscrimination interpretation of equal protection might be enough to insure equality of rights. In fact, however, Americans of European descent have used ancestry to make a hierarchical distinction between “white” and “black,” to the severe disadvantage of the latter. Both custom and law defined people with even a small degree of African ancestry as Negro so that they could be relegated to many forms of second-class citizenship, the worst being slavery. Racial distinctions imposed a massive social disability that excluded people just as effectively as a physical disability, but with disadvantages persisting from generation to generation for centuries. State legislatures, courts, and federal agencies were all complicit in maintaining racial inequality at least until the 1950s.

That being the case, proponents of affirmative action can reasonably argue that positive action to counter racial inequality is called for. Just as ignoring disabilities would not be enough to protect the disabled, Sotomayor says that “ignoring race will not equalize.”

Opponents of affirmative action have a reasonable argument too, although they take it to an extreme. Since racial distinctions are so arbitrary, a policy of colorblind nondiscrimination could conceivably succeed in eliminating them, while affirmative action runs the risk of “reverse discrimination” against the majority.

Judges are not supposed to just pick the interpretation they like and declare it to be the law. They are supposed to study the actual law, taking into account the legal arguments and decisions of jurists, past and present. In fact, the two interpretations of the equal protection clause—nondiscrimination and active countermeasures—have coexisted in legal history. Both deserve some respect.

Equal protection in history

What has equal protection actually meant to legislators and judges struggling with the race issue? Sometimes it has meant nondiscrimination. Sometimes it has meant positive action to counter inequality. Never—except maybe last week—has the first interpretation entirely prevailed over the second.

Based on the “originalist” notion that the meaning of a text at the time it was written should govern its interpretation, which conservative justices have relied on in other matters, the case for the colorblind interpretation is weak. The framers of the Fourteenth Amendment considered—but rejected—a formulation stating that “no State…shall…recognize any distinction between citizens…on account of race or color.” Not only that, but Sotomayor reports that the same Congress:

enacted a number of race-conscious laws to fulfill the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal. One such law was the Freedmen’s Bureau Act, enacted in 1865 and then expanded in 1866, which established a federal agency to provide certain benefits to refugees and newly emancipated freedmen.

The Freedmen’s Bureau provided support for black education, including land grants and funding for black colleges and universities. Like critics of affirmative action today, President Andrew Johnson vetoed the bill on the grounds that it benefited one group of citizens over another, but Congress overrode his veto.

Congress also made some effort at nondiscrimination, prohibiting racial discrimination in public accommodations in the Civil Rights Act of 1875. But the Supreme Court struck that down, ruling that the Fourteenth Amendment did not give the federal government authority over private individuals or corporations.

After Reconstruction, Congress and the federal courts turned away from active efforts to counteract racial inequality. But they did not adopt the nondiscrimination interpretation of equal protection either, since they largely condoned racial segregation. In Plessy vs. Ferguson (1896), the Supreme Court accepted Louisiana’s claim that its segregated schools were equal enough in facilities to satisfy the equal protection clause. Colorblindness was not required.

Only in the mid-twentieth century, in the context of the modern Civil Rights Movement, did the courts adopt a strong nondiscrimination doctrine, expressed especially in Brown v. Board of Education. But shortly thereafter, courts began to mandate positive efforts to reduce inequality, such as requiring businesses to step up their efforts to recruit minority talent or requiring municipalities to hire more minority contractors. In higher education, courts have upheld affirmative action plans at least for purposes of increasing campus diversity, since the Bakke decision of 1978.

At no time since the passage of the Fourteenth Amendment have the courts understood it to mean strict racial neutrality and nothing else. A minority of justices may have argued for that, but until now they have never succeeded in eliminating the alternative interpretation. That is why Justice Sotomayor is so critical of the majority’s jurisprudence:

The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind…

[T]he Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent…

At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law…

In the end, the Court merely imposes its preferred college application format on the Nation, not acting as a court of law applying precedent but taking on the role of college administrators to decide what is better for society.

Radical jurisprudence

By emphasizing one interpretation of the Constitution to the exclusion of other reasonable and historically grounded views, this Supreme Court takes a radical turn. In this case, it is a radicalism of the right, but I’ll imagine what liberal radicalism might look like in order to clarify the general idea of radical jurisprudence.

As the law stands now, after this decision, admissions processes cannot award any points on the basis of race, but they can still award points for being the child of an alumnus (a “legacy” applicant) or the relative of a university donor. Legacy applicants are disproportionately white wherever black admissions are relatively recent, and Harvard is about six times as likely to admit legacy as non-legacy candidates. Suppose a liberal Supreme Court were to rule that the equal protection clause forbids legacy admissions altogether. Suppose it would go further and uphold a law that imposed a 100% tax on estates so the money could be used to equalize educational funding across communities. (If we believe in equal opportunity, why not run society like a Monopoly game, where all players start out with the same money? At the end of each game, all remaining money is returned to the central bank so that the next generation of players can get their equal start.)

Conservatives would probably go ballistic, accusing the liberal justices of taking a radical, utopian, socialist ideology and reading it into the Constitution. Conservatives would object, with some justification, that the Constitution says nothing about legacies and estates, and that the equal protection clause has never been understood to forbid them.

The Court’s new prohibition on race-conscious initiatives is similarly radical, in light of the judicial history. The conservatives are taking their ideal of a colorblind society and claiming that this is all the equal protection clause can mean. This too is a utopian notion, far removed from what America has ever been. As I said in my previous post, maybe someday “what we now call ‘races’ will become so intermingled socially and genetically that trying to put people into color-coded categories will seem silly.” But to demand colorblindness instantly, by judicial fiat, is a radical step. It is a conservative form of utopianism because it idealizes the present, exaggerating how much equality has already been achieved and relieving leaders of the responsibility to take any further action for the sake of diversity and inclusion. When Mike Pence was asked if he believed there was still racial inequality in American education, he answered:

I really don’t believe there is. I believe there was. I mean there may have been a time when affirmative action was necessary simply to open the doors of all or our schools and universities, but I think that time has passed, and we’ll continue to move forward as a colorblind society.

In reality, many states are like North Carolina, where communities and schools continue to be highly segregated—albeit by custom, not by law—and black schools are underfunded. Unfortunately, colorblindness tends to make leaders blind to racial disparities and possible remedies. It encourages an indifference to inequality that is the opposite of what was originally intended by the Fourteenth Amendment. It makes judges more interested in protecting the advantages of the majority than in countering the disadvantages of minorities.

Why this is happening has more to do with the radicalization of the Republican Party than with any major shift in judicial thinking. A Republican president who lost the popular vote managed to get three extreme conservatives onto the Supreme Court. As a result, losing arguments in previous cases have suddenly become winning arguments, whether the weight of legal opinion supports them or not.

Progressive are not entirely without options, however. Many race-neutral initiatives, such as the Affordable Care Act, do have substantial impacts on communities of color. Initiatives to make college more affordable could have similar effects. These may have to suffice until progressives achieve more solid political support.

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The Supreme Court will soon announce a decision in Students for Fair Admissions, Inc. v. University of North Carolina. The plaintiff filed suit in 2019 claiming that UNC discriminates against white and Asian applicants by giving preferential treatment to Blacks. (The Court is also considering the same group’s suit against Harvard.)

UNC claims that its limited consideration of race as one factor in admissions is in compliance with the Court’s rulings in previous cases. The federal court that heard the case in 2021 agreed, but the Supreme Court decided to hear the appeal. The justices seemed eager to rule on the matter, since they took the case before the plaintiff’s appeal could be heard by an appellate court. The new conservative majority is widely expected to take this opportunity to put an end to affirmative action in college admissions.

Color-blind or color-conscious?

Should college admissions offices ignore race in their decisions or consciously promote racial diversity? A hypothetical example may illustrate the dilemma.

Suppose the university has to choose between two very good students from different racial backgrounds. The white candidate scores slightly higher on conventional criteria like grade-point-average and test scores. Suppose that candidate comes from an affluent family with many advantages, including graduating from an expensive private prep school. The black candidate comes from a poor neighborhood and attended underfunded public schools. Should the university ignore the racial disparities and admit the first candidate, or should the second candidate be given some additional credit for overcoming racial and socioeconomic adversity? If African Americans are under-represented at the university in comparison to their proportion of the population, as they are at UNC, should the university consider the potential contribution of minority applicants to the social and intellectual diversity of the student population? Will the education of all students benefit from having minority voices in classes like history or sociology? Is the university’s responsibility limited to acting as a fair referee in an individual competition, or does it have a responsibility to create an optimal learning environment for all students?

The idea of a color-blind society appeals to most Americans because it seems to imply a triumph of meritocracy over past discrimination. But the idea of diversity on college campuses or in corporate boardrooms also appeals to most people. Many would like to assume that meritocracy and diversity can go hand in hand, as the most talented people from a variety of backgrounds achieve academic and economic success. In the long run, they might be right. Maybe in the very long run, what we now call “races” will become so intermingled socially and genetically that trying to put people into color-coded categories will seem silly.

But what about the short run? Is it fair to ignore the legacy of discrimination and assume that people of all backgrounds can compete on an equal playing field? Advocates of affirmative action believe that social justice requires some special effort to identify and develop hidden talent, in order to accelerate the movement toward a more just society. Today those advocates include the many corporations and professional associations that filed amicus briefs in support of the universities. One of their arguments is that businesses look to universities to provide a diverse source of leadership for organizations that have to function in a diversified national and global environment.

By the way, the much-maligned term “woke” is a slang term that often refers to racial consciousness (as well as gender consciousness). That is why the NAACP is promoting the term. Meanwhile, “anti-woke” has become a code word for opposition not only to affirmative action, but to social justice movements like Black Lives Matter. People who want to pretend that the playing field is already level—that all lives already matter equally—can dismiss such movements as nothing but attempts at reverse discrimination.

Legal precedents

If the Supreme Court rules against UNC, it will be overturning 45 years of precedent. As far as I can tell, the university’s affirmative action program exemplifies the kind of moderate approach that the Court has accepted in the past.

Regents of the University of California v. Bakke in 1978 set a standard for later cases. When Allan Bakke was rejected for admission to the UC Davis medical school, he claimed discrimination because the school had reserved 16 seats for minority students in a class of 100. The Court ruled in his favor, arguing that rigid quotas were indeed discriminatory. But the decision also allowed race to be included as one factor in a more comprehensive evaluation.

That principle has been upheld in several cases in the past twenty years. In some cases, the Court sided with the plaintiff (Gratz v. Bollinger) and sometimes with the university (Grutter v. Bollinger, Fisher vs. University of Texas), but it never insisted on completely color-blind admissions. Now the Court seems poised to do so.

Affirmative action at UNC

The University of North Carolina is a public institution, but a highly selective one. Only about one out of ten undergraduate applicants is accepted. The admissions office evaluates applicants using a wide range of criteria, including not only high-school grades and test scores, but student essays, letters of recommendation, outside activities, and personal qualities like curiosity and motivation. Although race is one consideration, the trial court concluded that “race is one of more than forty criteria considered in every application, and the evaluation process is flexible enough to consider all of the pertinent elements of diversity that may be present for any particular applicant… UNC’s policies are clear that race may never be used as the defining feature of a candidate’s evaluation.”

One issue in the original trial was whether UNC’s evaluation process is really as “holistic” as the university claimed. The plaintiff maintained that racial considerations dominate the process, and that the university actually gives “mammoth racial preferences” to African American and Hispanic applicants. The trial court failed to find evidence of that. Of course, this factual question could be a moot point if the Supreme Court decides that any consideration of race in admissions, so matter how small, is unconstitutional.

The plaintiff also argued that UNC had made no serious effort to consider race-neutral alternatives that could increase campus diversity, such as more financial support for low-income students without regard to race. But the university was able to satisfy the court that it has pursued such initiatives. One of them is the Carolina Covenant program, which “supports the full financial need of academically qualified low-income so they may graduate debt-free.” Another is the Carolina Student Transfer Excellence Program, which “partners with 14 community colleges in North Carolina — most in rural counties — to identify talented low-and moderate-income community college students and to provide a pathway for admission to UNC-Chapel Hill.” The trial court concluded:

Through an exhaustive exploration of RNAs [race-neutral alternatives] that have been implemented and others that are purely theoretical, the University has shown that there are not any available, workable, or sufficient RNAs that would allow it to achieve its diversity goals. Accordingly, the Court finds that UNC has satisfied its burden of demonstrating that there is no non-racial approach that would promote such benefits about as well as its race-conscious approach at tolerable expense.

How much racial diversity has UNC’s affirmative action program actually achieved? A recent entering class was about 12% Black. That is not too far below the percentage of Blacks in the US population (about 14%), but it compares less favorably to the percentage in the North Carolina population (about 21%). The university itself acknowledges that affirmative action has had only a small effect on racial composition. Because the admissions process is holistic, a candidate’s race tips the decision from rejection to acceptance in only a very small number of cases. The trial court accepted the university’s analysis on this point.

Affirmative action and the Constitution

I am curious not only about how the Supreme Court will rule, but about how the majority will reason. The most conservative justices are “originalists” who claim to base their decisions on the meaning of a legal text at the time it was adopted. Maybe the framers of the 2nd Amendment intended for individual citizens to be able to own guns, but did the framers of the 14th Amendment intend the equal-protection clause to mandate a completely color-blind society? Given the institutionalized segregation and discrimination that legislators and courts upheld from the 1860s until well into the twentieth century, that hardly seems to have been the intended meaning. UNC was not required to admit its first black students until 1951. After using race for so many years as a basis of exclusion, will we now decide that the Constitution forbids any special efforts at inclusion?

When the Court struck down key provisions of the Voting Rights Act, the majority opinion did not say that special efforts to protect voting rights in states with a history of discrimination were inherently unconstitutional. It only required the federal government to keep demonstrating that such efforts were still needed in the target states or counties. That left the door open to an updated Voting Rights Act, although only one major political party was interested in walking through it.

I don’t know of any simple constitutional argument that would settle the question of whether the United States is ready to function fairly as a color-blind society. It is a judgment call. I wish I had more confidence in the judgment of the current justices to make that call wisely.

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Reducing the ransom

Like many observers, I have characterized the threat of defaulting on federal government obligations as a form of hostage-taking. The hostage is the US economy, and the ransom is the demands contained in the debt-ceiling bill passed by House Republicans.

The first thing to say about the agreement negotiated by President Biden and House Speaker Kevin McCarthy is that it would save the hostage by allowing the government to pay its bills. Saving the hostage is the main objective of a hostage negotiation. The agreement raises the debt ceiling for two years, avoiding another crisis of this kind until after the 2024 election.

A second objective of a hostage negotiation is to negotiate the ransom down to a more reasonable level. As I described in the previous post, the original ransom the House bill demanded was severe cuts to nondefense discretionary spending. That is the part of the budget that funds most government departments except the Defense Department and supports many programs that lower-income households rely on, such as nutrition programs, Medicaid, grants and loans for higher education, and housing assistance. These cuts are now to be far more modest, a $1 billion-dollar reduction in the first year and a limit of 1% on spending increases in the second year. (Both are cuts in real terms since 1% is less than the rate of inflation). Even these cuts will be mitigated by allowing some funds previously allocated to the IRS to be used for other programs.

The agreement tries to reduce spending on the Supplemental Nutrition Assistance Program (food stamps) by extending work requirements through age 54, instead of the previous limit of 50, but this will not apply to families with dependents. On the other hand, the agreement makes food stamps more readily available to veterans and the homeless. The agreement did not add work requirements to Medicaid, as House Republicans had demanded.

Republicans also tried, but failed to defund President Biden’s clean energy initiative and his proposal for student debt relief. The Supreme Court may rule that the president lacks the authority to forgive student debt anyway.

Who won the negotiation? In a way, all of us did, if winning means preserving the full faith and credit of the United States. In another way, no one did, if winning means implementing anyone’s preferred budget plan. Biden succeeded in blocking most of the House Republicans’ austerity plan, which is a good thing. (Maybe good even for Republicans, since the public might really hate the plan if they actually had to experience its consequences—sort of like banning abortion?) On the other hand, Republicans succeeded in blocking Biden’s tax-and-spend plan, which would have reduced the deficit by raising taxes on the wealthy more than it increased spending. None of this is a surprise, since such a stalemate was predictable once Biden won the presidency and the Republicans retook the House.

With the government on the brink of defaulting on its obligations, Congress will probably have to pass the compromise bill promptly. Resistance is coming mainly from MAGA Republicans who wanted the more severe spending cuts and Progressive Democrats who wanted to preserve or expand spending on domestic programs. At this time, that resistance looks surmountable.

Was it worth it?

Are the deficit reductions expected from this compromise great enough to justify putting the country at risk of default? I don’t think so. But to evaluate the deficit-reduction potential of the compromise, one must ask, “Compared to what?”

Compared to the current budget, the proposal achieves a small reduction in the deficit by cutting nondefense discretionary spending while leaving the present tax structure in place. We should remember, however, that Biden’s proposed budget called for raising tax revenue and reducing the deficit by increasing tax rates on the wealthy. Since the compromise proposal scales back the House Republican spending cuts and includes no tax increases at all, its deficit reductions will almost certainly be less than what the Biden plan would have accomplished. Republican negotiators even rejected any effort to close tax loopholes, and also demanded reductions in the IRS budget for auditing returns and catching tax cheaters.

Even if Republicans had succeeded in extorting the huge cuts in nondefense discretionary spending they originally demanded, their approach to deficit reduction would very likely have failed anyway. Steven Rattner explains why:

When the Tax Cuts and Jobs Act – former President Trump’s signature legislation – was passed in 2017, many of its provisions were slated to expire in order to conform to arcane Congressional budgetary rules. However, House Speaker Kevin McCarthy is on record as saying that he wants to extend those tax cuts. The CBO’s new report quantifies the revenues that would be lost if those tax cuts are made permanent. The revenue loss begins next year and quickly ramps up to as much as $500 billion a year. All told, over the coming decade, extending the expiring provisions of the TCJA would cost the Treasury $3.5 trillion.

If the Republicans were to succeed in making the Trump tax cuts permanent, which they would almost certainly do if they won the 2024 election, those would largely offset the spending cuts they demanded this year. Compared to that scenario, the Biden plan would achieve much greater deficit reduction, even if Biden offset some of his tax increases with more spending.

Two fiscal policy perspectives

To see the current situation in a larger context, consider the fiscal policy perspectives of the two major parties.

For over forty years, when the Republicans have been in power, they have prioritized tax cuts over deficit reduction. Republican administrations have generally run up larger deficits than Democratic administrations, mainly through tax cuts that favor corporations and the wealthy and increases in the defense budget, notably the huge expenditures for the war in Iraq. But when a Democratic president comes in, Republicans voice their alarm about the national debt and call for cuts mainly in nondefense discretionary spending. Sometimes they also propose cuts to Social Security benefits, but they beat a hasty retreat when the public reacts badly.

When Democrats are in power, they tend to prioritize domestic social programs over deficit reduction. When they do address budget deficits, they prefer to combat them by raising taxes on the wealthy than by cutting programs for the needy.

One might think that the two approaches are fiscally equivalent, that cutting spending has the same potential to reduce deficits as raising taxes. However, if the spending in dispute is nondefense discretionary spending, we must face the fact that it is less than one-sixth of the entire budget. To expect nondefense discretionary spending to bear the full burden of reducing spending is not realistic. Cutting the taxes that support the entire budget, and then trying to compensate by making cuts to less than one-sixth of the budget, is a strategy that is doomed to fail.

Any serious deficit reduction plan must consider both tax revenue and the full range of federal spending. It must take a hard look at the defense budget, where big corporate contractors often overcharge the government outrageously on weapons systems and replacement parts. It must look at Social Security and Medicare, where benefit payouts have been rising faster than revenue because of the aging of the population. But an honest public debate is impossible when the entire discussion focuses on one area of spending, with one party playing the role of fiscal disciplinarian and the other the role of protector of the vulnerable.

To make matters worse, the entire discussion of the public debt is somewhat overblown anyway, since chronic deficits at the federal level are more manageable and economically useful than deficits of a household, or of a state or local government that lacks “sovereign monetary authority.” There is a limit to how much debt is responsible, but exactly what that limit is is not as obvious as people think.

Who needs a debt ceiling?

Most Americans probably do not realize that hardly any wealthy democracy besides the United States has a debt ceiling statute. (Denmark is one that does, but the ceiling is set high enough that it poses no real problem.) We put ourselves in an absurd situation when we allow the party that controls one house of Congress to threaten to withhold payment for expenditures the entire Congress and the President have already authorized. That’s like threatening not to pay the heating bill because you think the thermostat has been set too high. First pay the bill, and then debate the temperature!

The fact that the Republican Party is the one more likely to resort to hostage-taking to have its way is not a sign of strength, let alone fiscal responsibility. To me, it seems more a sign of weakness—weak economic arguments and weak support for the democratic process.

Defenders of the debt ceiling may argue that the country needs the threat of default to accept fiscal restraint. If so, it certainly isn’t working, since the United States does not stand out among nations for its exceptional restraint. The debt ceiling is not helping to bring about deficit reduction, encourage honest debate over the budget, or address our most pressing national needs. It serves mainly to allow a minority with a distorted view of the national interest to throw wrenches into the machinery of government.

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The current issue of The Week features a cover story called “Hostage Crisis,” with a picture of House Speaker Kevin McCarthy setting fire to a dollar bill. The subtitle is, “Will McCarthy and the GOP force the U.S. to default on its debt?” This got me thinking about the importance of language in framing issues, both by journalists and the people who follow them. Which is the more accurate description—“hostage crisis” or just “budget negotiation”?

Neutrality and truth

Many journalists have associated truth with political neutrality. Faced with vigorous political debate, they think of their job as reporting the facts without taking sides. When they report on the perennial budget battles between Republicans and Democrats, their underlying assumption is that each side has reasonable arguments. Compromise is good, even to the point of meeting the other side halfway. I am not unsympathetic to that view, since I don’t believe that either of our major political parties has been right all the time.

Nevertheless, a fair observer must be able to notice when either side’s behavior strays too far from democratic norms. Those norms call for dispute resolution by means of reasoned debate, persuasion and compromise. One cannot tell the whole truth without being able to distinguish between voluntary consensus and involuntary coercion.

To take a rather obvious case, can objective observers be neutral about the war in Ukraine? Can they ignore the fact that Russia’s invasion violates international law, and that attacks on civilian targets constitute war crimes? A negotiated settlement might be desirable, but not if it means capitulation to Russian demands, or even meeting them halfway. What should Ukrainians do for peace, give up half their territory? And what should they do when Putin comes for the other half? Donald Trump claims that he could settle the war in a day, but he also refuses to express a preference for which side wins. Is this statesmanship or indifference to democratic values?

The war in Ukraine is a long way from a budget negotiation, but maybe the same principle applies. When one side threatens to force the federal government to default on its obligations if it doesn’t get its way, that is also a violation of democratic norms. It forces the other side to negotiate with a gun to its head, or more specifically with a gun aimed at the heart of the economy. As Josh Bivens and Samantha Sanders put it in their post for the Economic Policy Institute, “Weaponing the debt limit should not be normalized.”

Deficits and debt

The public debt is an integral part of the modern economy, and the “full faith and credit” of the US government is essential to that economy, both domestically and globally. This is the reality, whether you think of the public debt as a good thing or a bad thing.

Economists disagree over the pros and cons of the public debt, but they generally acknowledge that it is very different from household debt. Household debt is usually something you would like to pay down or even get rid of altogether. Public debt is a liability for the taxpayers, but at the same time it is a nice, safe asset for the holders of the government bonds. When the federal government runs a deficit, it puts more money into the economy in spending than it takes out in taxes, but then encourages the public to invest in government by buying treasury bonds. Investing in government and growing the economy are not incompatible goals. Rolling over the public debt from year to year is never a problem, as long as the security of those bonds makes them a very desirable investment.

Historically, the public debt has grown along with the size of government and the size of the economy, and the statutory limit on the public debt has been raised repeatedly. The economy has come to rely on deficit spending, especially but not exclusively during turbulent times. Many forms of federal spending, such as infrastructure improvements and human capital investments, contribute to the strength of the economy. Economists do become concerned when the public debt grows faster than the economy itself, as it has recently. Since 2013, the total debt has exceeded the annual output of goods and services in the US economy, and many economists would like to see that trend reversed. Either a faster rate of economic growth or a slower rate of debt growth would help.

However, even economists who consider the federal deficit too large do not support defaulting on current obligations, or even threatening to do so. The full faith and credit of the United States is one of our country’s most valuable assets. Any failure of the government to pay its current bills would cause enormous immediate hardship, probably start an economic depression, and do lasting damage to the country’s credit rating. That in turn would increase the cost of borrowing and further weaken the government’s fiscal position.

The current deficit is simply a consequence of authorizing more spending than the government is getting in tax revenue. Continuing to finance the difference is far preferable to default, whatever you think of the national debt. The priorities for dealing with a large deficit are first to raise the debt ceiling to finance the difference, and then to negotiate a smaller deficit in future budgets.

The current standoff

If anything is a bipartisan accomplishment, it is the federal deficit. The Trump administration and Congressional Republicans added substantially to the budget deficit and national debt, first by cutting taxes (mainly for corporations and the wealthy), and then increasing expenditures to combat the Covid-related recession. Both political parties agreed to raise the debt ceiling three times to accommodate rising deficits. President Trump explicitly warned Congressional leaders not to use the threat of default to upset his budget plans, and they listened.

Now that we have a Democratic president, Trump and Congressional Republicans have changed their tune. They are happy to use the threat of default to derail President Biden’s plans, although his proposed deficit is smaller than Trump’s. When asked at his recent town meeting why he changed his mind, Trump shamelessly embraced his own hypocrisy by saying, “Because I’m no longer President.”

For a time, House Republicans struggled to agree on any budget proposal at all. They finally passed a bill to raise the debt ceiling, but attached to it a set of budget demands too extreme to have any possibility of becoming law. The difference between the Biden plan and the Republican plan is not that only one plan reduces the deficit; they both do. But they do differ in three important ways:

• Biden wants to reduce the deficit by rolling back some of the Republican tax cuts, while Republicans want to do it only by reducing spending. This is a longstanding disagreement between the parties.
• Only the Republicans are threatening to let the government default if they don’t get their way on the budget. President Biden and the great majority of Democrats are willing to raise the debt ceiling to meet current obligations before negotiating future budgets.
• While President Biden has submitted a complete budget plan, the Republican proposal calls for a general cap on spending without specifying the budget cuts by which the cap would be achieved.

That last point deserves some elaboration. Calling for only a cap on future spending allows Republicans to claim the high ground of fiscal responsibility without having to defend specific cuts to the voters. All they will say is what they will not cut, like Social Security, defense spending, and interest on the existing debt. Trouble is, what they promise not to cut is almost 90% of the budget! That means that the budget axe has to fall heavily on the non-defense discretionary spending that remains. The Congressional Budget Office estimates that everything else the government does would have to be cut 47%. But don’t worry, that “everything else” only includes the Departments of Homeland Security, Agriculture, Interior, Commerce, State, Health and Human Services, Education, Energy, Labor, Justice, Housing and Urban Development, and the Environmental Protection Agency. The list of specific services that would have to be cut is very long—How about cutting half the air traffic control towers, or half the nutrition services for seniors, or half the Head Start programs? No wonder Republicans only want to talk about vague goals and not specific programs most Americans support.

The Republican proposal also calls for rescinding funding that has already been authorized, such as money for clean energy tax credits and money being used by the IRS for better customer service and tax-law enforcement. The CBO says that the IRS cuts would actually increase the deficit by losing tax revenue.

The Republican position consists essentially of a ludicrously extreme set of demands backed by a threat of economic destruction. It deserves to be called extortion, blackmail, hostage-taking—choose your adjective.

The challenge to democracy

I have been arguing recently that Republicans are increasingly willing to violate democratic norms because they are starting to lose policy debates that they are accustomed to winning. In my post, “Whatever happened to Republicans,” I elaborated on Dana Milbank’s observation that the GOP has become “an authoritarian faction fighting democracy” because “democracy is working against Republicans.” Milbank was mostly talking about how demographic change was moving against the party, but I think that the argument applies to economic changes as well. The dominant fiscal policy position for Republicans, which calls for tax cuts for the wealthy and austerity for the rest of us, has become increasingly unpopular. The Trump tax cuts were already unpopular when they were passed. Many forms of spending that Republicans have opposed—Obamacare, Medicaid expansion, new energy initiatives, and infrastructure improvements—are receiving strong support.

The coercive stance of House Republicans on the debt ceiling debate is consistent with other undemocratic behaviors, such as trying to overturn a presidential election. (147 Congressional Republicans voted not to accept certified results from key states.) The continuing effort at the state level to suppress or dilute the vote from Democratic areas is another example.

Republicans accuse President Biden of refusing to negotiate. But how does one negotiate with hostage-takers? Give too little and they may carry out their threat; give too much and you reward coercive behavior. Certainly the victim of a hostage-taking cannot be expected to meet the perpetrator halfway, but should do only what is necessary to save the hostage. If we could get the threat of default off the table, then we might have an open and honest debate over the budget. Both sides should have to present specific proposals and defend them in the public arena. We should also expect that if political leaders can manage such a debate, journalists will cover it seriously, and the American people will listen and learn. Idealistic, yes. But so is democracy.

Continued