Wednesday, November 28, 2012


As everyone who has seen the movie Lincoln now knows, a lame-duck 38th Congress passed the 13th Amendment to the U.S. Constitution on January 31, 1865. (It was quickly ratified by the states and became part of the constitution on December 6 of that same year). To a contemporary observer, what may seem most striking about that date is that was January 31 and not the late hours of March 3 or even the pre-noon hours on March 4.  In other words, it was a whole month (plus a few days) before the end of the session and the expiration of the congressmen's terms of office. (In those pre-20th Amendment days, the lame-duck session and the terms of both President and Congress expired at noon on March 4). We tend to think of the pace of activity as slower in the 19th century than in our own supposedly more advanced era, when it comes to Congress it seems such notions just don't apply!

As we careen crelessly toward the so-called "fiscal cliff," we are being treated to plenty of posturing (and probably a lot of bluffing) as both sides stake out their relatively irreconcilable positions. It is widely hoped that some sort of bagain ("grand" or otherwise) will be struck, probably just in the nick of time. It is somewhat stereotypical student behavior to put off studying until the night before the exam or to delay writing that paper until the ight before it is due. Of course, that is not a recipe for either effective learning of maintaining long-term sanity. So sensible people - adults - generally frown upon such behavior and try to steer students away from it. Congress, however, seems impervious to such lessons and seems only able to do its job under the pressure of an immediate deadline.

If the proverbial "man from Mars" were to be called in to arbitrate the issue, presumably he would come up with some sort of rational solution, which, while obviously not giving ideologues on either side all that they'd like, would actually aim at solving the real problem of a society that wants to eat its cake and have it too. And presumably he could do that right now - no need to wait for a deadline. Presumably, we could all accomplish what the "man from Mars" could, were we all suddenly under a Rawlsian "veil of ignorance." Not knowing which of us might be among the rich beneficiaries of the Bush tax cuts, for example, we would all vote for fairness, and again there would be no incentive to delay

So why not just do it? Of course, we are not under a "veil of ignorance" and are not from Mars, and so we know all too well from which outcomes we would likely benefit. The common good being therefore inaccessible, the next best thing would be a genuine compromise that would give those who won the election much of what they want, while giving the losers enough to persuade to win over some of their votes, thus at least indirectly moving us in the direction of the common good. Such a compromise would take time to negotiate, of course, but the "fiscal cliff" has been aroung for a while, and plenty of people have thought about what such a bargain would need to look like. So why not do it now?

Unfortunately, settling now (rather than at the last minute) seems like being too ready, too willing, to compromise. To avoid that impression, one must pander to one's "base" by posturing almost to the last minute. That's what makes Congress seem so similar to the circus (except that the cricus is intended to be entertaining). But it is really worse than that. If legislation as circus act produced a just and equitable final product, perhaps it might be worth it. But what the posturing and bluffing so often do is make real deliberation and debate all that much more difficult. "Negotiating" becomes just an extension of public posturing, and the line between the two eventually vanishes - with the result that the end product is often inadequate. After all, the current "fiscal cliff" is itself a product of an earlier, dusfunctional negotiation!

Perhaps the Presidnet needs to learn a lesson from Lincoln. Be clear about what is important, about what has priority, about what is negotiable and what  is not, and then get to work solidifying one's coalition and picking off whatever additional stray votes can be gotten - and do it now.

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