(Editor's Note: This piece first appeared in the Washington Examiner on August 30, 2018.)
Senate Republicans have a problem. They can’t commit. And their inability to follow through makes it harder to enact their legislative agenda. It also delays unnecessarily Senate action on President Trump’s nominations.
For example, take Majority Leader Mitch McConnell’s, R-Ky., recent threat to keep the Senate in session through the end of the month if Democrats persisted in their efforts to delay confirmation votes on 17 nominees. Specifically, McConnell warned his colleagues that “the Senate will continue to work right through August until every single one of them is confirmed.” Majority Whip John Cornyn, R-Texas, echoed McConnell’s threat and warned Democrats that it wasn’t a bluff. “To any of our Democratic colleagues … I can guarantee we will be here in session next week because this is important work to get these judges processed.”
Republicans intended their threat to persuade Democrats to stop obstructing Trump’s nominees. By making such behavior costly, Republicans expected Democrats to drop their objections to scheduling up-or-down confirmation votes so that the Senate could leave town before the end of August. Yet when things didn’t turn out as they expected, Republicans acquiesced to leaving town without confirming the nominees at the center of their dispute with Democrats. In doing so, they delayed the confirmation of six of the judicial nominees they wanted to confirm before the end of August.
In short, Republicans backed down. They made a commitment and then failed to follow through when it appeared that their threat wasn’t going to work as intended. This episode is a good illustratation of why Republicans can’t make the Senate work despite having a majority of its members. And it highlights how Republican leaders inadvertently make it easier for Democrats to obstruct their party’s agenda in the chamber.
But the Republicans’ situation isn’t hopeless. They can learn from this latest mishap how to better play the legislative game.
The Oxford English Dictionary defines commitment as “an engagement or obligation that restricts freedom of action.” In legislative bargaining, the majority party can persuade members of the minority that it is in their interest to relent in their obstruction and that failure to do so will result in retaliatory action that will subject them to even greater costs. In the example above, Republicans tried to persuade Democrats to relent in their obstruction of Trump’s nominees by threatening to keep the Senate in session through the end of August. Their goal in doing so was to limit the Democrats’ choices by raising the costs of continued delay.
But such threats only work if members of the minority believe that the majority will follow through on its threat if they don’t change their behavior. Absent a credible commitment to do so, the minority will not take the majority’s threat seriously. In other words, Democrats had to believe that Republicans were committed to keeping the Senate in session if they continued to obstruct President Trump’s nominees.
Republicans can make their commitments more credible in two ways: procedural and reputational. First, they can commit to carrying out the threat in such a way that leaves them no choice but to follow through in the event that Democrats don’t relent. To that end, their commitment must be unambiguous and involve specified retaliatory actions in order to be persuasive. Second, Republicans may establish a precedent of credible commitment with their past behavior. This is because a party’s past actions signal a determination to carry out future threats and thus makes the party’s commitment more credible. A party’s reputation suggests that how future conflicts are resolved depends, in part, on how past conflicts were resolved.
Republicans got the first part right. McConnell’s threat to keep the Senate in session through the end of August was unambiguous. And Cornyn “guaranteed” that Republicans were determined to follow through. To reinforce their commitment procedurally, McConnell took the extra step of filing cloture on the 17 nominations in question. In doing so, he committed the Senate to vote on each one according to a schedule determined by its rules.
But Republicans forgot about the second condition. For better or worse, the Republicans’ reputation on these matters is ultimately determined by their past behavior. And the way in which they resolved past standoffs has influenced how Democrats expect them to behave in the future. Repeatedly backing down from coercive threats in response to aggressive behavior has established a pattern that leads Democrats to expect such behavior to continue in future standoffs.
This suggests that delaying six of the judicial nominees in question until after Labor Day will make it harder for Republicans to make credible commitments in the future. Much is conceded when a party makes concessions to resolve conflict or otherwise fails to respond to aggression in the expected way.
The impact of concessions on expectations suggests that it is difficult for a party to extricate itself from a commitment without undermining its position vis-à-vis the opposing party. A party’s goal in the bargaining process is to end the conflict in a way that does not encourage the other party to re-evaluate its expectations of how that party will behave in similar situations in the future. As such, it is important that when a party is not able to carry out its threat that its leaders be able to explain any behavior that may otherwise be interpreted as backing down. In sum, successfully backing down from a threatened action requires an excuse. Absent that, McConnell never should have made the threat in the first place.
It's not too late for Republicans to turn things around. But they are running out of time to learn the value of commitment.