Donald Trump’s likely defeat may set the stage for what progressives like Senate Minority Leader Harry Reid (D-Nev.) have long dreamed of — a full-scale procedural nuclear strike on not just the Senate Republicans but also the Senate itself as an institution.
If a Trump loss drags down GOP Senate candidates Democrats could take control of the Senate, a scenario that has a roughly 66 percent chance of occurring according to political handicappers FiveThirtyEight.com. If the Republican minority then attempts to filibuster President Clinton’s Supreme Court nominees (using Senate rules that require 60 votes to move forward) Democrats have signaled they’ll launch their nuclear strike on the Senate’s protections for minority rights which have existed since our founding.
The key issue is how Reid and Democrats define fairness. Historically, fairness in the Senate meant guarding against the tyranny of the majority by protecting minority rights with procedural tools. Until 1917, fairness meant all 100 Senators had to agree on a path for moving forward before anything could happen. This threshold was lowered to 67 in 1917 and then to 60 in 1975. In other words, in today’s Senate it takes 60 Senators to cut off debate and move forward. This is also described as ending a “filibuster” by “invoking cloture.”
Senators have been reluctant to lower this number from 60 to 51 because doing so would render the Senate indistinguishable from the House, which is a majoritarian “winner take all” body.
Reid has no problem turning the Senate into the House and already used a tactical nuke in 2013 when he changed Senate rules with 51 votes to ram through Obama’s executive branch nominees and circuit court judges. In a recent interview with Talking Points Memo, Reid predicted Democrats would go nuclear again if Democrats take control of the Senate.
“I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.
“They mess with the Supreme Court, it’ll be changed just like that in my opinion. So I’ve set that up. I feel very comfortable with that.”
Presumptive Senate Majority Leader Chuck Schumer (D-N.Y.), should Democrats retake control of the Senate, suggested he would follow Reid’s advice in an interview with Roll Call.
“My number one goal, should I become majority leader with your help, is to get a progressive Supreme Court,” he said. “A progressive majority on the Supreme Court is an imperative, and if I become majority leader, I will make it happen. I will make it happen.”
Of course Reid and other Democrats now eager to go fully nuclear had a different attitude in 2005, when Republicans unwisely considered using the same tactic to push through President Bush’s nominees.
At that time Reid said, “The threat to change Senate rules is a raw abuse of power and will destroy the very checks and balances our founding fathers put in place to prevent absolute power by any one branch of government.”
Senator Ted Kennedy (D-Mass.) blasted the Republican proposal saying, “Neither the Constitution nor Senate rules nor Senate precedents nor American history provide any justification for selectively nullifying the use of the filibuster … nor [does] history provide any permissible means for a bare majority of the Senate to take that radical step …”
Then-Senator Joe Biden (D-Del.) offered the clearest assessment: “The nuclear option abandons America’s sense of fair play. It’s the one thing this country stands for: not tilting the playing field on the side of those who control and own the field.”
If 2016 has taught America anything it is that people are tired of feeling like their voices don’t matter and that the system is tilted against them. Even if those fears are sometimes imagined or manipulated, they are real and potent.
Some Senators say the 60-vote margin to end debate is mere tradition and sentiment. Yet, these explicit protections for minority rights weren’t written into the Constitution because they are the Constitution. Concepts like the rule of law and constitutional government mean the strong, or the many, can’t rule over and terrorize the weak, or the one.
Reid’s authoritarian leadership helped set the stage for Trump’s authoritarian message, which is now setting the stage for something far worse – a system that will be incapable of working through dissent when our national divisions are particularly acute.
As author C.S. Lewis aptly said, “A sick society must think much about politics, as a sick man must think much about his digestion.”
Our Constitution, and its carefully crafted system of checks and balances, is our nation’s gut flora that helps us metabolize dissent. We’re so divided and preoccupied with politics precisely because that system isn’t working like it should, and some politicians like Reid want to marginalize already marginalized voices even further.
Trump’s claim that the system is rigged is a conspiratorial refrain designed to help him avoid embarrassment. If anything this message will depress voter turnout when a more clear and present danger is looming — a Clinton presidency unchecked by a Democratic Senate. At this late hour, Republicans would be wise to abandon Trump in favor of helping Senate candidates who may be the last line of defense against what our founders always feared – a tyranny of the majority.
John Hart is the Editor-in-Chief of Opportunity Lives. You can follow him on Twitter @johnhart333.
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