One Term Presidency
In 2008 Barack Obama became he first Black President in American history. He was also the first Democrat to hold office in eight years, since the contested election of 2000. That was when the United States Supreme Court, by a partisan five to four vote, ended the Florida count and make Republican George W. Bush President.
After Obama’s election, Mitch McConnell, then Republican Minority Leader of the Senate, started with the one, singular goal. He said: “The single most important thing we want to achieve is for President Obama to be a one-term president” (Politico). John Boehner, then Republican House Minority Leader, had a similar view: “We’re going to do everything — and I mean everything we can do — to kill it, stop it, slow it down, whatever we can” (Politico).
It was the “No Compromise” pledge: that no matter what, the Republicans in Congress would do everything (“…I mean everything”) to stop the Democratic President from achieving legislative success. McConnell and Boehner didn’t achieve their primary goal of keeping Obama from winning a second term. But they did manage to prevent legislation on issues like gun control, immigration reform, and climate change.
There is a reason that the Affordable Care Act was the singular legislative highlight of the Obama Presidency. The Democrats spent their entire legislative “power” to get it passed. That effort ultimately cost them control of both Houses of Congress. It’s also why the Trump Administration has spent so much political capital trying to rescind “Obamacare”.
Who Ends It
There are long running arguments about “who started the fight”. Republicans claim that then Democratic Senate Majority Leader Harry Reid “started it”. He changed the Senate rules to allow for a simple majority to pass lower level Federal judges. This was because the McConnell-led minority filibustered most of the Obama appointees, trying to hold the seats open. Democrats retort that the original “hard ball” began in the Florida recount of 2000.
Since Donald Trump became President, the Republican majority has expanded the “simple majority” rule to include Supreme Court Justices.
The election of 2020 is less than a week away. Should Democrats win the House, the Senate, and the Presidency, there will be intense pressure for “paybacks”. That is particularly in response to Monday’s Barrett confirmation to the Supreme Court. As Mitch McConnell said in his speech prior to the vote , all the things the Republicans did were within the rules of the Senate, and the Constitution. So that’s the new “McConnell Standard”, the “low bar” established. Should Democrats regain majorities in both Houses and the Presidency, they only have to clear that. There is no reason to reach for any older “norm” of political civility.
The McConnell Republicans appointed almost twenty-five percent of the Federal judiciary in the past three and a half years. That includes three seats on the Supreme Court. Now a brand of conservative Republican called “Originalism” is firmly entrenched in the Courts for a generation.
Assuming the “gloves are off”, what options do Democrats have to respond to twenty years of obstructionism and “hard ball”?
The Courts
The Constitution establishes the Supreme Court, and that judges serve lifetime terms as long as they maintain “good behavior”. But the Congress has the ability to establish how many judgeships exist, both at the Supreme Court and lower Court levels. One response to the McConnell “court packing” would be a “Judicial Reform Act of 2021”. This act could create additional Justices on the Supreme Court, raising the number from nine to thirteen. Then a Democratic President could appoint four Justices to the Court right away, changing the balance. Now the vote stands at six “originalists” to three. It would become to six “originalists” to seven.
It’s within the Congressional “rules” to do so, and also a power granted by the Constitution to the Congress. The Congress could also create additional Appellate and District Court judgeships, in order to “dilute” the power of the Trump appointees.
The Filibuster
The Senate has always been the “debating society” of the United States government. That “norm” was enshrined in the filibuster, the ability of any Senator to speak for any length of time, stopping all Senate business. Originally it required sixty-seven votes for cloture, the parliamentary term for ending a filibuster. Then the number was reduced to sixty. Today the mere threat of a filibuster forces a “cloture vote” with a sixty-vote super-majority. The actual “Mr. Smith Goes to Washington” talk until you drop filibuster almost never occurs. By “gentlemen’s agreement” the mere threat stops legislation unless a cloture vote can be passed.
But the days of “gentlemen’s agreements” are over. The Senate should acknowledge that Senators can have their “say”, but should recognize that a majority of the Senate shouldn’t give their power away to the few. The filibuster should be abolished, and the Senate should operate like any other legislative body, with a majority rule.
That will allow for the passage of legislation for the Democratic program beyond just the Judiciary. The pressing issues in American life: immigration reform, gun control, climate change, and voter protection: all demand action over the “will” of the minority.
The Senate
In addition there are two “wrongs” that need to be corrected. The first “wrong” is the over 700,000 American citizens in the District of Columbia who are denied representation in the Congress. The District should immediately be made a state, bigger in population than both Vermont and Wyoming. The “Federal Triangle” would remain as the national capital. This meets Constitutional muster, and would create one new House seat, and two new Senate seats. Democrats would very likely hold all of those. That’s just icing on the cake.
The second “wrong” is the over three million Americans who live in Puerto Rico. Their status as a US “Commonwealth” has left them at a loss when it comes to disaster relief and Federal aid, and also without Congressional representation. On the ballot next week in Puerto Rico is a request for admission to statehood.
Should it pass, the Congress should consider accepting Puerto Rico as the fifty-second state (DC the fifty-first). It would be thirty-first in population, ahead of twenty-one others. That would mean four new Congressmen and two more Senators. And while the political parties in Puerto Rico are aligned around the question of statehood, it is likely that their representatives will caucus with the Democratic Party in Congress.
That’s five new House members and four new Senate members, all likely Democrats. And it all fits the “McConnell Standard”.
Gloves Off
Joe Biden is a traditionalist, and is likely to resist this kind of Democratic “hard ball”. But that’s the game were playing now. The reserved and gentlemanly Senate where he served honorably for thirty years is trashed. And like a fight in the hallways of a school, it really doesn’t matter who started it. “It’s Bounce or be Bounced” now; and it’s time for Democrats to take their “gentleman’s white gloves” off and starting fighting. They should strive to follow the “McConnell Standard”, and do everything within “the rules” and the Constitution to exercise their authority.
It’s not only the way to gain “power”, but it’s the right thing to do. Passing legislation, solving problems, giving representation to American citizens, and making the Courts represent the People, all are necessary and proper. Our government has been stymied for far too long.
And besides: it’s what the Republicans would do.
