Chait crafts a thoughtful reply that shows that he gets, but isn't surrendering to, Krauthammer’s point:“The only thing holding the Democrats back would be shame, a Washington commodity in chronically short supply. To pass in a lame-duck session major legislation so unpopular that Democrats had no chance of passing it in regular session -- after major Democratic losses signifying a withdrawal of the mandate implicitly granted in 2008 -- would be an egregious violation of elementary democratic norms.”
They’re both right. Krauthammer’s on solid ground when he says Democrats using a lame duck session of Congress to circumvent the democratic mandate that deprived them of their majority would do incalculable damage to crucial democratic norms. Yet Chait’s also right to stress that Democrats’ civic obligation not to cut corners in applying those norms is conditioned on their having the reasonable expectation that Republicans will return the favor when the electoral tables turn. You can’t blame them for not having that expectation in light of Republican conduct over the last two years (and Republicans could say substantially the same things about Democratic conduct over the eight years before that).“As for myself, I'm honestly undecided at the moment. I believe in accountable majoritarianism. But this cuts both ways. Minority Republicans have pursued a scorched-earth policy of filibustering everything, even uncontroversial measures and nominations, in order to both thwart the majority will and to run out the clock on the majority's agenda. These practices violate both democratic norms and the traditional norms of the Senate, though of course Krauthammer raises no objection to that. You might defend a lame duck session as a rectification of that: Democrats would be squeezing in time for bills that were squeezed off the calendar due to counter-majoritarian extreme delay tactics. The counter to that is that this wouldn't justify passing bills that Democrats wouldn't be willing to pass even with unlimited calendar time.
“The counter to that is, the new reality is that the rules are the rules and if one party pushes its legal advantage to the limit, the other party can respond in kind. If a lame duck session allows democrats to pass legislation they could have passed with a simply majority before the election, then it's a vindication of democratic norms rather than a violation. I think that's the most persuasive argument to me, but I may revise my view.”
So, however dysfunctional the dissipation of civic trust between the parties may be, it’s perfectly reasonable for Republicans and Democrats alike to act on their distrust. As game theorists would say, when each side rationally follows its dominant strategy (i.e., the course of action that’s best for it regardless of what the other side does) they make not only themselves, but all of us, worse off by making the output of public decision-making less democratically legitimate. Yet when either side holds itself to the strategy that, if observed by both sides, would make everyone better off, it can reasonably expect that the other side will play it for a chump.
Chait’s conscientious effort to devise a Democratic strategy that is both individually rational and socially constructive doesn’t chart an escape route from this civically debilitating game of tit-for-tat. No one can know whether a bill that Democrats ram through a lame duck session would have passed by a simple Democratic majority before the mid-term election but for Republican obstruction. Even with respect to a Senate bill that went down because the Democrats mustered only 59 closure votes, there’s no way of knowing how many Democrats would have voted for it if they didn’t expect it to be successfully filibustered. (A lot of red-state Democratic senators who now oppose Card Check, for example, used to vote for it when they knew that it wouldn’t pass and would be vetoed by Bush even if it did.) So any Democratic effort to apply Chait’s preferred strategy will excite reasonable Republican suspicions that Democrats are cutting procedural corners, which in turn will reasonably prompt Republicans to cut some corners of their own, reasonably prompting Democrats . . .
Once you set off down the road to democratic perdition, it’s hard to find an exit.