Franke: Loyally Opposing Biden

February 3, 2021

by Mark Franke

This is an excellent opportunity for the Republicans in Congress to assume the role of the loyal opposition, as that term is understood in Britain and elsewhere in the Anglosphere.

The term was first invoked by a minority Member of Parliament in 1826 to establish that opposition to government legislation did not imply disloyalty to the Crown. Instead, it reaffirmed the minority’s allegiance to the monarch and the nation even as it worked to defeat the majority party’s program.

“The opposition performs an adversarial function critical to democracy itself. Governments have no right to question the loyalty of those who oppose them. Adversaries remain citizens of the same state, common subjects of the same sovereign, servants of the same law.” These words were spoken by a Canadian parliamentarian during a Stanford University speech in 2012 to explain the concept of loyal opposition as used throughout the Commonwealth of Nations.

We don’t have a sovereign in the United States, at least not in the British sense, but we have a written Constitution with a Bill of Rights to which we pledge allegiance symbolically through the flag. That document and the principles it enshrines stand in the place of a crowned head for us.

So how should Congressional Republicans serve in this role the next two years? Perhaps triage is a good metaphor for their approach.

First and foremost, some initiatives of the Biden administration and Democrat majority will be so egregiously anti-liberty that they must be vigorously opposed on principle. I am speaking here of blatant attempts to restrict First Amendment rights of assembly, speech and worship. The category also includes poorly disguised attacks on the Constitution and its standards for government action and restrictions on those actions. Court-packing schemes and other attempts to fundamentally change the independence of the judiciary fall here.

Then there will be dangerous assaults on the nation’s prospects for economic well-being. Confiscatory tax increases, interference in freely functioning markets, unfair advantages given to favored industries and worker groups are examples of this kind of legislation. Here is where parliamentary tools can be used to delay and defeat these bills. 

A third category holds everything else. A lot of bad legislation can come out of Congress which does not violate the Constitution or completely hamstring the economy. These laws begin as appeals to emotionalism and Americans’ heartfelt desire to help others, but almost never allow for dispassionate discussion of their negative ramifications in the rush to get them passed. After all, the one law Congress consistently passes is the Law of Unintended Consequences. 

I would also include in this third category “Christmas tree” bills that seem to get introduced to address every real and imagined crisis. Congress just can’t help itself from adding everything every majority member wants in these 1,000-page-plus monstrosities, too often written only the night before the vote. “We have to pass the bill so you can read what is in it” is the way Nancy Pelosi described this technique when forcing through the Affordable Care Act. Statements like that sure build confidence in our government, don’t they?

Even a minority party can take advantage of parliamentary procedure and special rules to hold the majority in check. The 60-vote requirement to advance legislation in the Senate is one such. Hard-nosed negotiation with the moderates on the majority side of the aisle can minimize the damage even when unable to defeat a bill outright.

This is an opportunity for the Republican Party to demonstrate to the electorate that it has a coherent agenda for governance, one that offers more fairness and greater hope than that of an increasingly radical Democratic manifesto.

This is where the Republicans can show their dedication to the nation with a clear vision of what we might be, and a goal for the minority party other than simply taking power for power’s sake. Do they have a clear and unified message that will keep their caucus together and gain support across the country? If so, I certainly would like to hear it.

This approach worked for Ronald Reagan in dealing with the House Democrat leadership. Reagan knew how and when to give in gracefully while holding the line on his political principles. An 80 percent legislative victory is certainly better than none at all. Incrementalism is a useful term to describe this approach to advancing an agenda one step at a time. Perfect can be the enemy of good when speaking of Washington D.C.

This is my advice to the Republicans, for what it is worth. If Biden and the Democrats instead choose to pursue a “winner take all” policy of engagement, then that’s their lookout . . . in 2022 if not before.

Mark Franke, an adjunct scholar of the Indiana Policy Review, is formerly associate vice chancellor at Indiana University-Purdue University Fort Wayne.


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