Opinion ‘Republicans Have No Intent of Acting in Good Faith’

19:40  01 december  2020
19:40  01 december  2020 Source:   nymag.com

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Acting in good faith is sometimes also referred to by the courts, the concept of being sincere in one’s business dealings and without a desire to defraud.4 min read.

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Joe Biden won, but that doesn’t necessarily mean he’ll actually be able to do what he wants in office. Unless Democrats get lucky and win both Senate runoff elections in Georgia early next year, Biden will face a Republican majority in the Senate controlled by Mitch McConnell, who routinely blocked the agenda of the last Democratic president. Adam Jentleson had a front-row seat to that fight, serving as deputy chief of staff to Harry Reid, the top Democrat in the Senate at the time. The author of an upcoming book about the Senate, Kill Switch, Jentleson has been one of the most vocal progressive critics of how the Senate works since he left. In his view, the upper chamber has been hijacked, against the Founders’s intent, by Republicans who wish to impede progressive governance. Jentleson spoke to Intelligencer about what he thinks 2021 will look like on Capitol Hill, what steps he thinks the Biden administration should take, and if there is any way to pass major legislation over McConnell’s objections.

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Acting in bad faith is an act of intentional dishonesty that occurs from someone violating the basic principals of honesty in their dealings with others. States will recognize a breach of the implied covenant of good and fair dealing as acting in bad faith in regards to lawsuits for contract breach.

24. In total good faith , a state which should exist between parties to some types of legal relationship. 25. A real agreement to a contract by both 36. The real proof that a crime has been committed. 37. An act which is not a crime, but is forbidden. 38. In good faith . 39. Acting in a way which exceeds

a close up of a man wearing glasses and looking at the camera: Drew Angerer/Getty Images © Drew Angerer/Getty Images Drew Angerer/Getty Images

First of all, to get started, how important for the Biden administration is what’s happening in Georgia and the difference between 48 and 50 senators?

It’s all the difference in the world. It is night and day. That ranges from prospects for passing legislation and having his nominees confirmed to who controls the committees and the day-to-day business and sets the agenda of the Senate. So, it’s two seats that could lead to two very different prospects for Joe Biden when he is inaugurated in January.

Obviously, having 50 seats in the Senate is not a large majority, but what does that world look like and what could President Biden get done with that?

For a long and complicated set of reasons, the majority controls the floor and holds the majority in all of the committees. So, if Democrats win those two seats, even though it’s the barest majority possible, the fact that they have the White House, and the vice-president, as president of the Senate, gives them the extra vote that gets them over into the simple majority. That means that instead of Mitch McConnell deciding what bill is on the floor every single day, it will be Chuck Schumer in that decision seat. And it means that instead of Lindsey Graham or another Republican overseeing all of Biden’s judicial picks, it will be a Democrat, apparently, to be named later. And that goes all the way down, from Supreme Court picks to circuit and district court picks. So, it is just a massive difference.

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And what if Democrats don’t win both races in Georgia, how much more difficult does that make in what’s possible for President Biden to do with anything?

Put it this way. If the House has passed the CARES Act, or if they pass a new COVID-relief bill in similar fashion, if the Democrats have 50, they can bring it to the floor. If they have 48, they’re virtually powerless to get that bill to the floor. There are things you can do through enforcing amendments and other things to try to force a vote on it, but fundamentally setting the agenda is usually powerful. So, if they have 48, they’re in a fundamentally reactive stance, and rather than being able to force McConnell to react to what they want to do, they have to react to what McConnell wants to do.

In terms of McConnell, there’s been this talk of Biden’s long-standing relationship with McConnell, having dealt with McConnell, being there when those negotiations were happening. How much is there actually to that, and what does that mean, if anything, for how the Senate would work under either scenario because McConnell’s such a key part?

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The bad- faith actor will claim, in other words, that his bad faith is both justified and necessary, that all possibility of good - faith engagement was exhausted long ago and it It illustrates the principal risk of acting in bad faith toward others, which is that somewhere along the line, you start to believe yourself.

The political physics of the situation are very tricky because if Democrats were in the majority, they would have leverage in every negotiation, because looming behind Biden’s efforts to get McConnell or to get Senate Republicans to support whatever he wanted to do would be the threat of getting rid of the filibuster. If Democrats have a majority, no matter how small it is, there’s always a possibility that they could decide to get rid of the legislative filibuster to make it possible for them to pass things with the majority. I could go on and on about how that was actually the way the Senate was meant to be — because it is. That is indeed the way it operated for most of its existence. But that is a little bit far afield right now.

But my point is just as a basic analysis of leverage, even if they only had 50 votes and they needed to get to 60 for legislation, there would always be the threat that they could simply go nuclear if McConnell was intransigent and allow themselves to pass it with a simple majority. Now most of the leverage would be on McConnell’s side, but there is this awkward fact that it still would require 60 votes to pass anything through the Senate. It is much easier to see how a bill that passes the House, presumably on a party-line vote, would potentially be able to get all of the Democrats and a handful of Republicans, although even that’s a bit of a stretch. I’m not saying that’s easy. I’m saying that’s fathomable. But it is much less fathomable to envision a bill that’s supported by the Biden administration through the House on mostly Democratic votes and then passes the Senate with mostly Republican votes and a handful of Democrats. The political physics are hard to make work.

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So, how should Democrats approach things with McConnell in that situation in terms of how he reads the playing field? And what’s there to be done in a Republican majority Senate? How does it all work, if at all?

[They need] to use the bully pulpit very aggressively. I think that there is a fundamental dynamic that could work in Democrats’ favor here, which is that Biden is popular, and the policies he’s going to want to pass are also popular. McConnell is not popular, and he will be the only thing standing in the way of a popular president with popular policies.

It’s hard to discuss hypotheticals. All the hypotheticals are hard right now. But does that create enough public pressure to make McConnell completely cave? Only time will tell. But it is equally hard to see how a bill that McConnell would support would pass the House and be signed by Biden. So I think you’ve got to return to first principles here and develop your legislative strategy around those first principles. I think the most important first principle for Democrats is that the president is popular, the policies are popular, and Mitch McConnell is not popular. He will compound his own unpopularity by blocking the popular policies of a popular president.

Though I suppose the counter to that is that that wasn’t the same dynamic that existed ten years ago when Obama was president.

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That’s true, except I think it’s on a different scale. One of the different factors is the extent to which they validated McConnell and Senate Republicans as bipartisan deal-makers in the past. The idea was that if you spend months trying to secure their cooperation and then that effort fails, that this would demonstrate the Republicans were unreasonable. The reality, however, was that Republicans were able to use that time to demonstrate to reporters that they were operating in good faith, even when they were not. So, when the negotiations failed, and Democrats moved to blame Republicans, they looked like sore losers, and the blame looked like sour grapes. So, I think part of the decision that needs to be made early on by the Biden administration and congressional Democrats is how much they choose to validate Senate Republicans. Every day you spend engaged in negotiations with them and allow them to pretend like they’re negotiating in good faith is a day that you’re building up their stature as good-faith bipartisan negotiators. Now, I don’t want to sound super-cynical here and say they shouldn’t listen to them, but they also can’t be Pollyanna-ish here. They have to have in the forefront of their mind the mountain of evidence that currently exists and continues to build by the day, demonstrating that Republicans have no intent of acting in good faith, and they’re just going to do everything they can to stop Biden’s political capital and try to build their own image as bipartisan deal-makers. I think the other thing that the Biden administration and Democrats need to be aware of is the extent to which that play is likely to work because — no offense — but reporters report on the story of the day, and they’re not going to lead every story talking about Republicans’ past record of obstruction. Democrats can scream about it until they’re blue in the face, but if they’re out there engaging with Republicans, then they’re demonstrating by their actions that they think Republicans may have changed their ways and are trying to act in good faith. These are some strategic decisions the Biden administration has to make, and there has to be an awareness of how much any effort to negotiate with Republicans serves Republicans’ interests merely by the act of entering into negotiations with them. Every time there’s a big issue, there’s going to be some bipartisan gang [of bipartisan senators] that springs up. It’s sort of become an iron rule now. The press will become obsessed with that gang and every twist and turn of its meetings. Then, as the gang will almost inevitably do, it will fail. Each side will have its own explanation for why negotiations failed, and Republicans’ explanation of why negotiations failed will get just as much attention and legitimacy as Democrats’ explanation for why negotiations failed.

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So, from your point of view, it’s almost a given McConnell and Senate Republicans are never negotiating in good faith?

Yes, and I think what’s important … It’s hard for senators to accept this, because they have personal relationships with this and they don’t want to believe this about people that they know and respect, but the problem is that it’s not really up to the individuals in most of these cases. That is a hard thing for senators to accept because everybody operates in this great man or woman theory of politics that individuals will make courageous decisions that overcome great obstacles. But the more mundane reality is that most individuals operate in response to the larger incentive structure that is acting upon them. Even Republicans who demonstrate good faith in private are operating in a system that demands they toe the line of their base. Their base is not going to want to see them cut deals with Biden. So, even if during the negotiations they’re struggling with this notion and struggling with the possibility of working with Democrats, and in private they seem like they really, really have a pretty good shot at coming around and being part of the field, at the end of the day, they’re going to walk away, because that is always what happens. At the end of the day, their political advisors are going to come in and say, “45 percent of your voters don’t want you cutting any deals, and if you cut this deal, you’re opening yourself up to a primary challenge.” “All right.” That’s going to be the reality that exists.

At this point, is there anything Joe Biden can get through a Republican-controlled Senate, even his nominees? Can any of them even get done at this point, or is this a set-up for trench warfare?

Nominees are a relatively easy way for Republicans to demonstrate some reasonableness. I think what’s likely to happen is that they’ll be able to do less than the bare minimum and allow some of those higher profile nominees to go through, and then they will reap the benefit of a wave of coverage that lauds them for being reasonable. Then they use that to try to rebuild their image a little bit. However, I think it’s important to keep in mind that confirming cabinet nominees is a minimum and letting a handful go through is not enough to prove that they’re operating in good faith. I also think that these fights are probably going to be harder than people think. I don’t see a single nominee that I think is a lock so far. I think people will be surprised if there’s any that Republicans decide to rally their opposition around. I think even the ones who get confirmed, the votes are likely to be relatively close.

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At this point, as with everything as we’ve seen with Trump, is every nominee fight is going to essentially be a partisan battle in every possible situation?

Yeah, and I think Republicans are in a position to win coming and going. They win if they succeed in blocking nominees, and if they approve them, they win by generating coverage about how reasonable they are. So, I could see either approach having some appeal to them, but I just think the cardinal rule is that their base is not going to want to see them doing much accommodating. I think that with any of the nominees, if the opposition to them catches fire with Fox News and that crowd, it’s going to be very difficult for Republicans to cross that line and vote for whoever that nominee is.

At this point, there’s some discussion about these swing senators, someone like a Joe Manchin or Kyrsten Sinema with Democrats or Susan Collins and Lisa Murkowski with Republicans. Is that actually a real phenomenon, or do these folks always vote the party line vote at the end of the day?

The political science on voters is about the same as [it is for] senators, where independents are just soft partisan. But I do think that there’s an intriguing prospect of senators getting together and forming an independent caucus. On the surface, it would seem to make a lot of sense because they would wield a tremendous amount of power, starting with determining control of the Senate. If two senators from the Republican Party and two senators from the Democratic party broke away, then neither party would have a majority, regardless of what the outcome of the Georgia races are … You’d think, wow, those people would wield a lot of power if they decided to do it, but the mechanics of it are much more complicated than it looks like at first glance. In order to wield power to determine control of the body, they would all have to decide to caucus with one party or the other. So, the idea of Collins and Murkowski breaking away from Republicans and choosing to caucus with Democrats and thereby giving Democrats the total majority, can be a bit of a distraction. There are less formal iterations of this, where they’re informally operating as a group, sort of a stand-in gang that you could see coming to fruition.

But the irony of the situation is that this group of four independents would be a lot more effective if the filibuster was done away with. Because, if bills could pass or fail on majority, those four senators could determine whether bills pass or fail. Right now, they’re just one block among many that you’d need to get to 60, so they’re not decisive. This is why the Senate was supposed to be a majority-rule body. It is very hard to assemble a majority for any major piece of legislation. Getting all the Democrats or all the Republicans and then a block of independents should be enough for a bill to pass. Getting to 60 in a polarized environment is essentially asking the impossible. So, the four that we’re talking about, I guess it would be the kind of thing you mentioned. Murkowski and Collins, they’re the names that come up the most frequently, have all expressed opposition to getting rid of the filibuster, but the situation with Biden as president now illustrates exactly why the filibuster should be gone, because you’d be able to get a lot more legislation through and they would have a lot more input on what that legislation is.

Knowing where you are, but at this point, how optimistic or how pessimistic are you about what can be accomplished through legislation over the next few years?

I’m pretty pessimistic. I think that most of what Biden is going to want to get done is going to have to be done through executive action. There are some action-forcing events coming down the pike relative to Iran in the Senate. It’ll be interesting to see how those play out. Government funding will depend on what happens in December, but the biggest one is the debt ceiling which expires probably some time within the summer or early fall, depending on extraordinary measures and all that stuff. Normally that would be a backstop that would set off a big grand bargain type deal In 2011 we ended up having to create this wonky system where the bill that got us out of the crisis had to be passed through the Senate in this weird, creative, backwards procedure that allowed new Republicans to essentially not vote for it, but not block it from being passed. So, not terribly optimistic that even those showstopper action sorts of events are going to be able to produce much in the way of legislation.

And the idea that Biden can put deals together, we’re not in that kind of world anymore?

Times have changed. It’s not a knock on Biden. It’s just that the era during which he came up in the Senate was just a very different time. The filibuster existed and was just coming into more common use, but the partisanship was still relatively loose, and polarization was much lower than it is now. They’re the fundamental solution for change. The use of the filibuster has multiplied exponentially. Partisanship and polarization have risen dramatically. No individual, no matter how good of a deal-maker they are, is going to be able to restore the conditions that prevailed during Biden’s formative years. So, not a knock on him. It’s just that it’s not something that the current circumstances allow.

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usr: 1
This is interesting!