Cozen Currents: Democracy in Disarray?

October 17, 2023

“Violations of institutional norms weakens democracy and exposes its vulnerability.”

— Howard Schweitzer, CEO, Cozen O’Connor Public Strategies

The Cozen Lens

  • What role the United States should play in today’s unstable world is a legitimate debate to have, but to be able to provide any form of leadership abroad, the US needs to be able to demonstrate a certain level of governance and stability at home.
  • Since House Speaker Kevin McCarthy (R-CA) was ousted from his post two weeks ago, House Republicans have been chasing their tails in search of a new speaker that can sufficiently unite the caucus. But with the Senate returning from recess today and looking to pass at least ostensibly time-sensitive “must pass” legislation, the various House GOP factions’ pain thresholds will be tested in a way that they haven’t been yet.
  • While October ends with Halloween, it began with the start of the Supreme Court’s new term. With the Court’s 6-3 conservative majority looking to wield its power to further re-shape judicial precedents in its own image, progressives generally, and the Biden administration’s regulators in particular, are already spooked.

Internal Political Dysfunction Has External Consequences

American Democracy in Crisis? Winston Churchill once said, “Democracy is the worst form of government – except for all the others that have been tried.” But is that always the case?

  • President Biden called the 2020 elections “the battle for the soul of the nation.” And almost three years later, Biden is framing his 2024 re-election campaign as a fight against MAGA extremism, which he warns is inconsistent with “the basic beliefs of our democracy.” But while Republicans are getting redder and Democrats are getting bluer, what it means to be red and blue is changing.  In addition, Americans increasingly consider themselves to be independent, and the  independents are under-represented in our gerrymandered political system whereby a member of Congress’ greatest risk now comes from a primary threat rather than the general election.
  • Inter-party tensions, however, are not the only challenge. Intra-party disagreements are also inhibiting the ability to find compromises in Washington, albeit most starkly within the GOP, where House Republicans have been unable to elect a speaker for the past two weeks and the GOP has sharp disagreements over the debt limit, spending, and Ukraine.  While policy disagreements are very democratic, violation of institutional norms are not.
  • As a result, instead of governance problems being the rare exception, it has now become the expectation that Congress will lurch from self-made crisis (e.g., debt default) to self-made crisis (e.g., government shutdown) as compromise both between and within the two parties has become a political risk rather than an ideal.

The World in Crisis. J.P. Morgan CEO Jamie Dimon made headlines with the bank’s release of quarterly earnings last week not for the firm’s financial performance but rather for his warning in an accompanying statement that “this may be the most dangerous time the world has seen in decades.”

  • Dimon went on to cite the latest geopolitical risks, such as the ongoing war in Ukraine and the terrorist attacks in Israel, as well as intractable domestic challenges, such as extremely high government debt levels with the largest peacetime fiscal deficits ever.
  • As isolationist and populist voices on both the right and left wings of the US political spectrum grow louder, America is having a legitimate debate over what role it should play on the global stage. But regardless of where that answer lands, America will be incapable of projecting any leadership abroad if its political dysfunction rises to a point where basic governance requirements are not met at home.
  • Just as Iran’s proxies saw an opportunity to take advantage of Israel’s distracted attention on its own internal dysfunction, it doesn’t take much imagination to conjure up scenarios whereby China’s Xi Jinping looks for the opportunity to coerce Taiwan into reunification while the US is distracted with a government shutdown or for Russia’s Vladimir Putin to double-down on a war of attrition as the House can’t pass a Ukraine aid package while it doesn’t have a speaker.
  • Likewise, while a rematch between Biden and former President Trump is not a foregone conclusion, it is the overwhelmingly likely scenario, and we know that some of America’s enemies prefer a Trump White House. It’s easy to envision external efforts to weaken Biden, thereby raising the likelihood of another Trump presidency.

The House Republicans’ Unstable Political Vacuum

Power Dynamics. The far right and moderates are each trying to exert influence over the House GOP’s narrow majority.

  • Senate Majority Leader Steve Scalise (R-LA) dropped his speaker bid amid opposition from the right flank of the party last week that complicated his path to 217 votes. His replacement as the GOP’s speaker nominee, House Judiciary Committee Chair Jim Jordan (R-OH), faces a similar math problem, but from the opposite end of the political spectrum. While Jordan has hardline conservatives locked down, he lacks the same trust with moderates, although such moderates are more known to cave under pressure than the hardliners who opposed Scalise. Jordan is now seeking to leverage right-wing grassroots pressure to bring his detractors around with a vote expected on the House floor later today.
  • Former Speaker Kevin McCarthy (R-CA) could bridge most of the gaps within the ideologically fractured House GOP conference (at least before he was removed), a large reason that he was initially elected speaker. It’s unclear who another unifying figure could be. In the meantime, the absence of a speaker creates a leadership vacuum and legislative uncertainty.

The Stakes of Continued Dysfunction. The longer the House goes without a speaker, the closer the chamber gets to a government shutdown.

  • Before he was removed from the speakership, McCarthy was able to punt a must-pass government funding deadline from October 1st to November 17th. This gives the House only a few weeks to act to prevent a shutdown.
  • As the chaos of the speaker selection process has stretched out, there have been some calls to temporarily empower House Financial Services Committee Chair Patrick McHenry (R-NC) in his role as speaker pro tempore. By doing so, the House would have some ability to pass measures, such as a non-controversial resolution to condemn Hamas’ attacks on Israel. While it would be theoretically possible to advance spending legislation, it is hard to imagine passing controversial and time-sensitive legislation under a caretaker speaker.
  • The choice of the next speaker will have major implications for FY24 appropriations. On a fundamental level, McCarthy was essentially on the same page with Democrats and Senate Republicans on the need to fund the government and support Ukraine (even if he was not publicly enthusiastic about the latter). On the other hand, a more conservative speaker like Jordan may be more willing to see one percent across-the-board cuts go into effect if Congress hasn’t passed FY24 appropriations by April 30th, per the debt limit deal.

Living on Borrowed Time. House Republicans have had the luxury of time since McCarthy’s ouster, but this grace period will soon end.

  • Members of the House GOP have had free space to chase their tails for the past two weeks, with senators out of town for the late Senator Dianne Feinstein’s (D-CA) funeral and then the upper chamber going into recess. Congress rarely acts without a deadline, such as the debt limit or a risk of a shutdown. The House is about to get a new deadline when the Senate returns today.
  • Senate Democrats will likely look to ramp up pressure on House Republicans by advancing a bill to quickly provide aid to Israel. President Biden is expected to request further funding next week, which, if kept clean and not tied with Ukraine aid, could move through the Senate with little opposition. It could still pass in the Senate if connected with Ukraine aid but would be less effective as a forcing mechanism in the House. If the clean bill were to languish because of the House speaker chaos, the optics of the fight would expeditiously get worse for House Republicans. It will begin to become untenable for the House GOP to be ungovernable.
  • Faced with this action-forcing mechanism, the pain thresholds of the various House GOP factions will be tested at levels that they haven’t been yet in this latest intra-conference standoff. A political vacuum can exist during a congressional recess, but once both chambers resume meeting, someone will have to fill that vacuum. Given this increasing pressure to move past the latest House GOP standoff and the nature of those still opposing Jordan tend to be the kind of members who would rather avert dysfunction rather than be the cause of it, Jordan might be able to succeed where McCarthy and Scalise couldn’t.

A Preview of the New Supreme Court Term

The Path to the Top. The Fifth Circuit Court has utilized its status as a hotbed for novel conservative legal theories to position itself upstream and steadily feed cases to the Supreme Court (SCOTUS).

  • In the same way that the Ninth Circuit has a decades-long liberal reputation, the Fifth Circuit has developed the opposite in both style and substance: 75 percent of its occupied seats are currently held by Republican nominees, and six of the 17 active judgeships were picked by former President Trump. This appellate court almost always hears cases by randomly assigned three-judge panels, making anything but control by Republican nominees unlikely.
  • This term, the court has decided to hear Fifth Circuit decisions that ruled the Consumer Financial Protection Bureau’s (CFPB) funding structure unconstitutional and that withholding firearms from those deemed a violent threat to a domestic partner violates the Second Amendment. The Court is also likely to take up another Fifth Circuit case deeming that a common drug for medication abortions (mifepristone) should be banned; SCOTUS ruled in April that access to the drug must remain (for now).
  • Another trend is the increasing activism of state attorneys general (AGs) joining together to fight the incumbent administration in court. Multi-state litigation against the federal government rose to over 150 lawsuits (mostly by Democratic AGs) under the Trump administration, and this trend is continuing for Republican states against the Biden administration. Republican state AGs have set themselves up in the judicial supply chain to tee up cases challenging federal regulations before a sympathetic SCOTUS.

Priority No. 1. The most common thread running through the cases on the docket this term is questioning the power of the administrative state.

  • This topic area noticeably commands support (in the abstract, at least) from every conservative justice. The first ever use of the term “major questions doctrine” by the Court in a 2022 majority opinion represents the formalization of this approach. The doctrine holds that if an executive agency seeks to decide an issue of major national significance, its action must be supported by explicit congressional authorization.
  • Loper Bright Enterprises v. Raimondo this coming term gives SCOTUS the opportunity to overturn or scale back the Chevron doctrine, the principle that courts should defer to executive branch agencies’ interpretations of laws. Overturning Chevron would expose federal regulations across sectors to legal challenges. Justice Ketanji Brown Jackson has recused herself from this case due to her prior involvement as a judge for the US Court of Appeals for the DC Circuit, so it will be heard by the Supreme Court’s six conservatives and remaining two liberals.
  • Other cases illustrating the court’s questioning of federal agencies include Community Financial Services Association (CFSA) v. CFPB, in which the CFSA challenged the constitutionality of the CFPB’s funding mechanism, and Securities and Exchange Commission v. Jarkesy, in which the plaintiff questions the validity of administrative judges. Skepticism shared from justices across the spectrum towards the CFSA’s arguments, however, show that the Court is not simply acting as a rubber stamp for every conservative crusade.

Everything Has Electoral Implications. Besides the consequences of major decisions like Dobbs which was a boon politically for Democrats in the 2022 midterm elections, SCOTUS will hear cases that could single-handedly determine control of the House of Representatives.

  • The Court heard oral arguments in Alexander v. NAACP last week, which carries national implications. South Carolina engaged in a gerrymander following the census to convert the first district, which was a swing district, to a safe Republican seat by moving thousands of black voters to another district. The legislature’s purported intent was a political gerrymander (which is legal) but achieved this by displacing minorities that a district court decided was an illegal racial gerrymander. Justices revealed skepticism of the district court’s ruling, which would have likely restored a district winnable by Democrats.
  • The Court has power not only directly in its decisions in the relatively few cases it hears but also in which rulings the justices decide not to take on and thus leave intact. SCOTUS refused to block enforcement of a decision that came last term that found Alabama’s congressional map violated the Voting Rights Act. By refusing to halt a lower court’s decision to appoint a special master to draw maps to put in place before the 2024 elections, Democrats are likely to pick up a seat in the Cotton State. With margins so small in the House, every seat matters; Democrats lost the House majority in 2022 by only 6,675 votes and arguably due to redistricting alone.
  • Besides the cases that directly affect the management of elections, other cases have the opportunity to change the political landscape by the impacts of the rulings. The Dobbs case last year created a backlash that turned a supposed red wave into a pink trickle. The effects of coming cases on gun rights (that could get Hunter Biden off the hook) or social media, and a possible case on mifepristone abortions, have the ability to once again scramble the dynamics of competitive races only months before Election Day in November 2024.


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