What the Democratic Playbook Might Look Like in 2021
(Bloomberg Opinion) -- “The Untouchables,” the 1987 movie about gangsters and cops in Prohibition-era Chicago, was defined by these lines, spoken by police officer Jim Malone (played by Sean Connery) to his protégé, Eliot Ness (played by Kevin Costner):
He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue! That's the Chicago way.
Connery’s character was speaking of Al Capone. But his lines capture something more universal. If you are in some kind of fight, your best response might be to up the ante. If your opponents know that’s what you’ll do, they might back off — in which case you win. And if they don’t back off, they’ll get hurt — in which case you also win.
Has the Chicago way become the American way? You could make the argument, at least in Washington.
No one should speak of literal violence. But in multiple domains, we have witnessed an escalating political arms race, transgressing longstanding norms. In 2010, Republican Senator Mitch McConnell clearly set the tone with this remarkable statement: “The single most important thing we want to achieve is for President Obama to be a one-term president.”
With respect to Supreme Court appointments, Republican efforts culminated in the sprint to confirm Amy Coney Barrett — on the heels of the Senate leadership’s refusal even to allow a hearing for Judge Merrick Garland, nominated by President Barack Obama in 2016.
Something much worse is suggested by President Donald Trump’s claim that Joe Biden, his opponent in the presidential race, “should've been locked up weeks ago” for unspecified crimes.
If Biden is elected president, and if Democrats gain control of the Senate, both the White House and the Democratic leadership will face a crucial decision on what to do about the spiraling conflict between the parties. This decision would be important in any period. But it has special urgency in light of the public-health crisis and the serious economic downturn produced by the pandemic — in addition to Democrats’ and progressives’ high-priority issues, including climate change, health care, economic inequality and tax reform.
There would be three options. In the abstract, none of them could be ruled out.
The first approach would be to try to obtain arms-control agreements in this political war — to ensure that both Democrats and Republicans commit to restraint and forbearance, and, if possible, to sensible processes.
A potential way to achieve that goal would be through greater reliance on bipartisan commissions and advisory committees, and on nonpartisan experts. The Base Closure and Realignment Act, enacted in 1990, is a largely successful effort in this vein, creating an independent commission to make recommendations that become final unless Congress disapproves them.
Notably, Biden moved in this general direction by recently embracing the creation of such a commission, headed by scholars, to consider the question of whether to expand the size of the Supreme Court. We could imagine a similar approach designed to produce proposals to deal with, say, Social Security reform, perhaps with a credible commitment, on behalf of prominent Republicans and Democrats, to take a commission’s proposals as a foundation for legislation.
A second option for Democrats is simple: unilateral disarmament. No knives and no guns. The goal would be to restore a sense of comity and cooperation.
If this is the right approach, Democrats would do nothing to alter longstanding institutions and current processes. They would firmly reject the idea of court-packing. They would not even consider criminal investigations of Trump and his subordinates. Executive actions would occur, to be sure, but Republicans would be respectfully consulted, and their reservations taken seriously.
The third approach is at the opposite pole: Continue the escalation of the political arms race. In other words, the Chicago way. The Republicans sent ours to the hospital, so to speak; now it’s time to respond.
More concretely, some kind of court-packing plan might be deemed necessary to counteract Republican intransigence with respect to the federal judiciary. To overcome that intransigence, the filibuster would also have to be eliminated.
As for executive action, the gloves would have to come off — not to transgress legal boundaries, but to do whatever can be done as rapidly as possible, consistent with the law, to achieve policy goals.
Which approach is best?
For Democrats and progressives, unilateral disarmament would have little appeal. And in any case, under current circumstances, it is unlikely to work.
Laying down arms makes best sense when it creates a sense of reciprocity. At least since 2009, the first year of Obama’s presidency, Republicans have shown startlingly little interest in any kind of compromises on policy. There is no reason to think that the disarmament strategy would help Democrats to achieve their goals in domains such as health care, tax policy and climate change.
Escalation can get ugly, but if the goal is to achieve specific objectives, there is a lot to be said for it. For the last decade, the Republican leadership has been relentless in its willingness to defy longstanding norms — and to make up new ones on the spot. As a direct result, it has often succeeded in achieving its goals. Why not do whatever you can, whenever you can, to move the nation in your preferred directions?
The best answer is another question: When will it end? At least some degree of restraint — a kind of grace — is in the nation’s interest. The appropriate degree cannot be specified in the abstract. It depends on the context: the importance of the issue, the possibility of bipartisanship, the risk of yet another round of tit-for-tat.
In some contexts, it’s worth giving political arms-control agreements a shot. Independent commissions, focused on concrete tasks rather than scoring points, have the potential to quiet partisan disagreement. But they take time to do their work, and in some cases their efforts produce nothing. In the circumstances of a pandemic, any delay with respect to public health and economic distress might well to be too high a price to bear.
No, the Chicago way cannot be the American way. But if the goal is to achieve urgent and important reforms, it’s worth remembering another exchange from “The Untouchables.” Asked what he’s prepared to do in a uniquely challenging time, Eliot Ness gave a simple answer: “Anything within the law.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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