Conservatives' Sophistry Enables Republicans' Cruelty
by Neil H. Buchanan
The debt ceiling crisis is no laughing matter. Even so, there have been some truly funny moments along the way. Some of the best were when I read a New York Times op-ed by a law professor named Michael McConnell this past Sunday, in which he repeated almost verbatim some weak arguments that he had made in 2012. His claims, at most, could most likely defeat a strawman version of the now-familiar Fourteenth Amendment argument -- the non-strawman version of which is sufficient but not necessary (and definitely not the strongest available) to allow President Biden to end Republicans' hostage-taking via the debt ceiling.
Before I even knew that the essay had been published, I received multiple emails from readers telling me how weak McConnell's arguments were and encouraging me not to hold back in writing a reply. I have now obliged, publishing "Justifying Republican Hostage-Taking as Merely Normal Negotiating is Sophistry at Its Worst," today on Verdict.
I admit that it was genuinely fun to write the piece. Even though it felt like I was punching down in terms of rhetorically shooting an unarmed man (mixed metaphor alert!), this particular sophist is a former Republican-appointed federal judge, a professor at an elite law school, and a resident scholar at a major right-wing think tank. If he is willing to publish what he did in The Times, consequences follow. Moreover, the stakes could not be higher, as I will emphasize in this column.
I will mention a few of the main points from my Verdict column below, but my core purpose here is to use McConnell's many misfires to return to a point that is often forgotten in all of the back-and-forth legal argumentation. Specifically, the stakes here are more than legal principles and financial abstractions. Real people, especially those in vulnerable positions in society, will suffer if Republicans get their way. And McConnell's essay inadvertently concedes that he and his allies simply do not care.
Do I care about the rule of law? The separation of powers? Preventing the United States from becoming a deadbeat nation? Absolutely, as tens of thousands of words that I have published readily demonstrate. But I also care about stopping conservatives from continuing to use their political power to harm people who should not be harmed, including children and other innocents whose lives would be shattered (and in many cases ended) by what is happening in Washington this month.
When people like me say that Republicans are taking the economy hostage, then, we are not speaking in hypotheticals or about bloodless generalities. The Republicans affirmatively want to harm some people whom they despise, and they are willing to harm other people in order to get their way. Those are the stakes.
I should note that the Biden Administration seems to have made a terrible choice this week in deciding to negotiate with House Republicans. A Washington Post article yesterday, titled "McCarthy's Big Breakthrough," reported that "Speaker Kevin McCarthy (R-Calif.) is feeling pretty good after his meeting Tuesday with President Biden and the other three top congressional leaders. And he should." Why? The most notable reason is that "[t]hey are now actually negotiating over the debt limit. As recently as Monday, Democrats continued to insist that they wouldn't negotiate over the debt limit even though it was clear that the negotiations included the debt limit. Now, there is no doubt that a debt limit increase is part the discussions."
Of course, Republicans could (and most likely will) overreach. Paul Krugman recalled this week that when President Obama made the mistake of negotiating with Republicans the first time they tried this move (a mistake that Obama never made again, which is why it is all the more puzzling that Biden is repeating it now), Obama and then-Speaker John Boehner came to an agreement "that would have been objectively terrible," only to see "the deal [fall] through because Republicans were unwilling to accept even small tax increases as part of a deficit-reduction plan." Krugman thus imagines that even if McCarthy reaches a deal with Biden, House Republicans will revolt. I guess one might hope that the Biden team is playing n-dimensional chess and maneuvering Republicans to do this, but color me skeptical.
In any event, this is not over until it is over, so it definitely matters whether Biden and his advisors keep the Buchanan-Dorf least unconstitutional option in reserve, along with other fallback possibilities. And in order to "win the politics," they need to amp up the case against the substantive consequences for real people of Republicans' procedural moves and policy commitments. It is an ugly picture.
But what makes McConnell (the professor, not the Senate Minority Leader) interesting here is that his NYT piece so perfectly captures the deceptive language that conservatives use to make human suffering disappear from the discussion. Two examples jump out, which I will discuss in the reverse order that they appear in the essay.
First, when McConnell is expounding on his distorted version of the Fourteenth Amendment argument (his bold claim being the completely obvious point that that amendment does not affirmatively authorize borrowing), he blithely dismisses the consequences if the US government were to fail to pay its bills in full and on time. The funniest part of his claim is that the Fourteenth Amendment's prohibition against the validity of the debt being "questioned" is relevant not when the government fails to pay its debt but only if Congress passes a law that officially repudiates that debt. As I summarized the point on Verdict: "In McConnell’s terms, the only time that the validity of a debt is in question is in fact when there is no longer any question at all: when it has been unambiguously canceled!"
Again, that was fun. Still, it is important here to focus on the dismissive language in the essay: "For the United States to fail to pay interest or principal on its debt would be financially catastrophic, but it would not affect the validity of the debt." And that is the last we hear about that. Yes, it would be financially catastrophic, but whatever, dude. The debt would still be valid because it has not been formally repudiated. End of story.
But financial catastrophe is nothing to blow past on the way to making a ridiculous argument. Millions of jobs would be lost, and people would lose their health care coverage, their savings, their houses, and in some cases their lives. More and more people would fall into poverty and need things like food stamps (SNAP) and other supports to keep themselves going and their children fed. And guess what? The Republicans want to continue to take those supports away. In fact, that is the entirety of their strategy: threatening damage to the entire economy, possibly moving many middle class people into poverty and despair, unless Biden agrees on spending cuts targeted to make the most vulnerable people's lives even more miserable.
All of which brings us to the second rhetorical sleight-of-hand in McConnell's essay. His argument is that Biden simply must negotiate with McCarthy, dickering over whatever McCarthy says must be on the table. McConnell never says what happens if McCarthy simply continues to say no, merely repeating that it is Biden who must ever be willing to negotiate. After all, he says, at least Republicans passed a bill that would include big spending cuts to which Biden could agree, right? That they are proposing those cuts as the price of allowing the President simply to be able to execute already-passed laws is apparently of no moment. If Biden says no, he is categorically in the wrong. But if McCarthy says no, Biden has to keep negotiating.
McConnell scolds Biden by saying that "[t]he House of Representatives has already passed a bill that would raise the nation’s debt limit by $1.5 trillion, coupled with proposed spending cuts, and its Republican leaders have signaled a willingness to negotiate. Mr. Biden instead has demanded that Congress raise the debt ceiling without conditions." He ignores the facts that the Republicans bill does not in fact specify where many of those cuts would be made and that many of McCarthy's members (certainly enough to take him down as Speaker) immediately said after voting that they had only voted yea to give McCarthy a bill to bring to the table, but they would demand that the final bill be much more harsh. Will you give me $1 million not to torch your house. No? How about $2 million?
Imagine, however, that Biden and Senate Democrats were to surrender and agree to pass the House Republicans' bill as is. What does McConnell say? "But the House Republicans’ insistence on negotiations and compromise is not hostage taking. It is the ordinary stuff of politics. [I]n the end, Congress and the president have to reach an agreement. That is not a bad thing. It is a good thing." That buzzsaw of a bill that Republicans are proposing is thus presented as a lah-di-dah throwaway, nothing more than ordinary politics.
To people who would not be affected by those cuts, federal budget figures can easily feel merely like big numbers in a "too big" federal budget. If ever a person needed to check his privilege, however, this is it. An excellent op-ed in yesterday's Times by one of their editors, David Firestone, detailed the cruelty of the proposed cuts, noting that Republicans' new hobbyhorse -- work requirements for SNAP, Medicaid, and other income support programs -- "would effectively cut off health care for 1.7 million low-income people and cut off food stamps for 275,000 people."
Noting that Republicans have now rebranded "welfare queens" as "couch potatoes," Firestone notes that
these largely racist attacks, very much including the one now on the table, persistently ignore the little-mentioned fact that a vast majority of the people receiving these benefits are already working or are unable to work. In 2021, 61 percent of the 25 million people on Medicaid were working in full- or part-time jobs. The rest were retired or disabled or taking care of small children or in school. Similarly, most food-stamp recipients work, and able-bodied adults younger than 50 are required to work in order to get more than three months of benefits in three years, unless they are taking care of children.
...
In 2018, Arkansas became the first state to impose very similar work requirements on Medicaid, before a federal judge ended the experiment the next year. A study in The New England Journal of Medicine found that 13 percent of Medicaid recipients there lost their health coverage — about 17,000 people — but that there was no significant change in employment.
And when people lose their health coverage, they "economize" on doctors' visits and medicines, leading to completely avoidable disease and death. All in the name of forcing people who physically cannot work or who cannot find work to jump through more hoops and (the Republicans hope) simply give up.
McConnell, however, waves off such concerns as unworthy of discussion. He is more than happy to offer a pompous history lesson about the time "[b]efore the Glorious Revolution of 1688 and the English Civil War, [when] the Stuart monarchs asserted the power to tax and to borrow without parliamentary approval." But treating the substance of what the Republicans are demanding as anything but a sideshow is simply not worth his time.
Professor Dorf and I have both argued at various times that the debt ceiling debate is not about debt, and that is still true. In the same sense, it is also not about spending, because the proper time to have negotiations over spending is during the budgeting process every year. (There, of course, Republicans will surely wreak additional havoc with even more savage attacks on the poor.) But if Republicans and their apologists are going to insist on conflating the two, with McConnell absolutely insisting that this is "not hostage taking," then they unavoidably are saying that the substance of the two sides' positions matters. That he cannot even spare a moment's thought to the consequences of what Republicans are doing betrays a mindset of, at best, blindness to the plight of others, and at worst, deliberate cruelty.
*****
As a postscript, I should note that a reporter for a major news organization sent me an email after the McConnell essay was published last Sunday. One of his questions was unexpected: "I find it a little odd that McConnell's op-ed chose to identify his interlocutors as 'some academics' rather than name them/you. There isn't even a link to [Laurence Tribe]'s op-ed! Why the cold shoulder and lack of direct clash, do you think?"
I offered an off-the-record response, which I will not print here, and an on-the-record response (which, as far as I know, the reporter did not use): "The best explanation I can think of is that McConnell believes that by acting like a mean teenager and disrespecting people who actually know what they're talking about, he can elevate himself. I can't read his mind, though, so maybe there's some other reason for his churlishness." Along similar lines, I wrote but then deleted this sentence from my Verdict column: "Passive aggression is at its saddest when the stakes amount to intra-academic posturing," which is a slight variation on the famous line (mis?)attributed to Henry Kissinger: "The reason that university politics is so vicious is because the stakes are so small."
During a faculty workshop a few years ago, a colleague responded to my support for the estate tax by sneering, "Oh, so from those who have the ability to those who have the need, eh?" Politics, it is said, ain't beanbag. Academic one-upmanship can be silly. I am willing to call stupid arguments stupid, and to point out that what a person chooses not to say hides an ugly truth. It does not matter in the end who chooses not to acknowledge other people's work, other than that people outside academia notice and judge accordingly. From my perspective, what matters is not the feelings of those of us who hold one of the best jobs in the world. What matters is the consequences of what we say for people who can only dream of having our comfortable lives.