Gutting the filibuster, with an eye toward expanding and controlling SCOTUS, is becoming a litmus test for Democratic candidates.
Gutting the filibuster, with an eye toward expanding and controlling SCOTUS, is becoming a litmus test for Democratic candidates.
M any political observers were mystified by President Biden’s incendiary remarks in Atlanta on voting rights. The No. 2 Senate Democrat, Dick Durbin of Illinois, admitted that Biden “went a little too far.” David Axelrod, President Obama’s senior adviser when Biden was Obama’s vice president, said comparing opponents to segregationists wasn’t “useful” and the issues involved “shouldn’t be obscured by hyperbolic rhetoric.” Even MSNBC’s Al Sharpton called Biden’s blowup a “You’re going to hell” speech rather than one designed to build support.
Biden — or his senior staff — must have known before the speech that the “voting rights” bill was already dead because several Democratic senators were leery of ending or weakening the Senate filibuster. They should have known or guessed that Biden’s angry speech wouldn’t win over the independents (only 25 percent of whom approved of Biden’s job performance in the latest Quinnipiac poll) who are needed to preserve the Democrats’ tissue-thin majority this fall.
There is certainly an argument that Biden had to appeal to the progressive base of his party to avoid demoralizing them. On Meet the Press today, Chuck Todd said that a White House aide had told him: “The activists are angry. He had to do this. . . . If he didn’t do this, they weren’t going to have people to lick envelopes in Senate races and House races.”
But that sounds like an excuse, not a strategy. Of course, Biden and company want a federal takeover of elections from the states, but they must have known for weeks that it wasn’t going to happen this year. Maybe there is a longer-term strategy in play.
Let’s step back for a moment and ask, “What do Democrats really want most?”
The answer is simple. They want the virtually unlimited power that control of all three branches of government would give them. The next time elections give them control of the White House and a workable majority control of Congress, they will also want control of the U.S. Supreme Court.
With control of the Court, they could adopt measures that the current majority of the Court would probably consider unconstitutional. Those would include:
* Reversing the Supreme Court’s Citizens United decision and imposing strict controls on independent speech in political campaigns.
* Imposing national redistricting standards by judicial fiat on states.
* Appointing activists to an expanded Federal Election Commission, the Justice Department, or another federal agency that would dictate the rules for voting and vote counting in the states.
* Guaranteeing constitutional success for their strategy of sidelining the Electoral College and disempowering voters in all but the biggest states, through the “National Popular Vote” compact.
* Rewriting labor law to disadvantage independent workers in the gig economy and those who work for small business, to force them to join the unions that fund Democratic campaigns.
* Ensuring that major universities continue to discriminate by race, especially against over-achieving Asians and other disfavored groups, in their admission policies, in the name of “diversity.”
* Cementing the power of federal regulators to rule and, if necessary, intimidate uncooperative entities and persons by administrative decrees.
* Forcing conservative nonprofit groups to reveal their donors so that those donors can be intimidated by “woke” political allies of the Left.
* Restoring the ability of teachers’ unions to collect dues from nonmembers and excluding schools run by religious groups from eligibility for school-choice funding by states, thereby stifling efforts to expand parental choice in education.
* Weakening Second Amendment rights.
*Striking down laws passed by state legislatures on abortion and religious freedom that the Left doesn’t like.
There is one thing that these proposals have in common. They rely on progressive constitutional theories that a majority of the current Supreme Court might not support. That’s another way of saying that much of the modern agenda of the Left is simply unconstitutional, which is why the Left would like to change the composition of the Court, to include justices who give short shrift to the Constitution.
But the current majority of the Court does not appear likely to change dramatically for a generation. To gain control of it, Democrats would have to “pack the Court” by increasing the number of justices, as President Franklin Roosevelt tried but failed to do in 1937.
But to pack the Court, Democrats must first get rid of or weaken the Senate filibuster. They don’t have the votes to do it today, but they might have the votes if, in a future election, they win a clear Senate majority that neuters opposition from senators such as Joe Manchin and Kyrsten Sinema. But this would work only if every other Democrat in the U.S. Senate was pledged to end or at least weaken the filibuster.
What better way to ensure eventual success than to require that every Democrat running for the U.S. Senate pass this “Gut the filibuster” litmus test? They would have to voice support for ending the filibuster or be labeled a racist. And they would need to reveal their stand now or lose key financial backing from progressive donors.
Already moderate Democrats such as Representative Conor Lamb, running for the Senate in Pennsylvania, have announced that they will join the party line against the filibuster. He tweeted out earlier this month: “We have to win this seat to end the filibuster,” thus elevating it to the top of reasons why people should vote for him in a Democratic primary against more progressive opponents.
Paul Waldman, a progressive columnist for the Washington Post, hailed Lamb’s move as evidence of a “new Democratic consensus” on killing the filibuster. Waldman notes that when Lamb first came to Congress in 2018, progressives “worried that his stance on issues would dilute the party’s principles.”
So a behind-the-curtain explanation for why the Biden administration’s rhetoric on the filibuster is so polarizing is not that they think it will help Democrats win in 2022. Rather, they may be laying the groundwork for removing the check and balance of an independent Supreme Court, for when Democrats next win control of the White House and both houses of Congress.
It’s been more than a dozen years since Democrats last won a 60-vote supermajority in the Senate, Democrats have never gone more than 15 years without winning a majority. Even if the current Democratic majority in Congress is on life support, another one is very likely to occur. If they do win a supermajority again and neuter the filibuster, they could do virtually anything they wanted. Democrats, unlike many Republicans, think long-term.
Some will say that Biden’s team does not favor Court-packing. Didn’t Biden’s Supreme Court Commission just refuse to endorse it, despite pressure from progressives?
But the Commission’s refusal to endorse the Court-packing threats that top Democrats have made shouldn’t lull anyone into a false assumption that Court-packing is not a real threat.
If Biden’s allies on the commission were serious about ensuring that Court-packing never threatens the independence of the Supreme Court, they would have paid more attention to a Supreme Court reform proposal now being considered — the proposed “Keep Nine” amendment to the U.S. Constitution, now backed by more than 200 members of Congress. The amendment would take away the power of Congress to manipulate the size of the Supreme Court.
It simply says, “The Supreme Court of the United States shall be composed of nine Justices.”
Polls by Zogby and McLaughlin show that voters overwhelmingly back such an amendment. In a McLaughlin poll last fall, it won support, by a margin of 64 percent to 17 percent. Democratic voters backed it by a margin of 51 percent to 27 percent.
Keep Nine has some Democratic support, including from several former members of Congress and 14 state attorneys general. It was first introduced in Congress in 2020 by Representative Collin Peterson of Minnesota and Guam delegate Michael San Nicholas. But no Democrat in the current Congress has dared to displease Chuck Schumer and Nancy Pelosi by supporting it. The commission virtually ignored it.
The sad truth is that progressive Democrats want Congress to threaten to pack the Court, thereby potentially intimidating the justices. They want to preserve Congress’s power to pack the Court so that when Democrats finally have 52 or more votes in the Senate, they can get rid of the filibuster, add Puerto Rico and the District of Columbia as states, and in this way increase their Senate majority. They will then have the power to pack the Court. Who wants to bet that they won’t?
The long-term reason progressives want to get rid of the filibuster is not about “voting rights,” it is about packing the Court.
If a Democrat says he is not interested in Court-packing, he should be asked whether he will endorse the Keep Nine amendment. The answer will tell you what you need to know.