This year, control of the Senate is an even bigger deal than ever

October 12, 2020

By Charles Lane,

The Senate is in play this election year, and not just because partisan control is up for grabs, though it is: Analyses by both RealClearPolitics and FiveThirtyEight make the Democrats favorites to recapture the majority, currently held by the Republicans, 53 to 47.

In a more profound sense, voters are being asked to confront and consider the upper chamber’s institutional role under the Constitution, which is rapidly evolving into a partisan issue.

Until now, there was broad acceptance of the Senate’s countermajoritarian function, and of the multiple ways that its two-members-per-state design, coupled with six-year terms, encourage continuity, deliberation and compromise. The contrast with the House of Representatives, which turns over biennially and allots power according to population, was taken for granted.

Republicans still generally favor the status quo; it won’t change if they keep the majority. Democrats, however, are furious at how Majority Leader Mitch McConnell (R-Ky.) has exploited Senate procedures to promote his agenda and thwart theirs. Eager to enact an ambitious policy agenda and confident of winning the House and the presidency, they increasingly favor structural Senate change.

As recently as 2017, when Republicans controlled the Senate, House and White House, 33 Democratic senators joined 28 Republicans to sign an open letter endorsing the 60-vote filibuster as one of the “existing rules, practices, and traditions” necessary to the Senate’s “unique role.”

Yet former president Barack Obama this year branded the filibuster a “Jim Crow relic,” and Democratic vice-presidential nominee Sen. Kamala D. Harris (Calif.), who signed the 2017 letter, said during her presidential campaign she might change that position to help pass a Green New Deal.

Like the 19th-century politicians who added to the Union with the Senate’s partisan balance in mind, Democrats — arithmetically accurately — decry the body’s bias against population centers they represent and speak of admitting the District of Columbia and Puerto Rico as likely blue states, once the filibuster no longer stands in the way.

Undoubtedly, the GOP-controlled Senate looms as an obstacle to major legislation, including most recently a fiscal stimulus package for the virus-ravaged economy. Can the chamber be rendered less dysfunctional and more responsive under Democratic control, while preserving those “unique” features that help make it more than just the instrument of temporary majorities?

That would depend on there being a sufficient number of senators who still believe that politics is a repeat-player game in which today’s majority is tomorrow’s minority, not a zero-sum proposition.

Small states and their senators will play a crucial part: Of the 50 states, 22 possess six or fewer electoral votes. This group encompasses 14 red states but also eight blue ones with 15 Democratic senators among them. Yes, the filibuster is tainted by past association with anti-civil rights Southern machinations, but in the present day, it helps level the legislative playing field among states of different sizes, amplifying the leverage of smaller ones. Otherwise, would there be a huge naval shipyard in Maine or Coast Guard facilities in landlocked West Virginia?

Good policy or not, such largesse helps explain why Democrat Joe Manchin III of West Virginia (five electoral votes) and Angus King, a Maine (four electoral votes) Independent who caucuses with the Democrats, are cool to filibuster elimination.

King has actually revised what was an earlier anti-filibuster position and now says he’s “100 percent” against ending it.

Still, small-state Democratic senators would undoubtedly come under ferocious pressure in the event that Democrats retake the Senate and the Biden administration’s legislative agenda founders on a McConnell-led filibuster.

At that point, one exit strategy might be a deal between small-state Democrats on the one hand and the GOP leader on the other, whereby McConnell would allow votes on Democratic legislation in return for preserving the filibuster, at least in modified form, and not admitting new states.

To imagine such a deal is to admit how far-fetched it is: The Republican base would react with fury; Democrats who did business with McConnell, rather than give him a taste of his own medicine, could be inviting primary challenges.

Yet McConnell has always asserted that his paramount interest is the institution and its prerogatives. Would he make a tactical retreat accordingly, especially since he is 78 years old and can’t have too many reelection campaigns ahead of him?

And what would the position be of a President Joe Biden, longtime man of the Senate, from tiny Delaware, all but surely a one-termer who has a history of negotiating with McConnell — and has pointedly not called for an end to the filibuster?

All of the above is speculation, to be sure. But the clear lesson of American history, especially pre-Civil War history, is that national political division sooner or later mutates into conflict over the Senate, followed by conflict within it. The deeper the division, the more dangerous the conflict.

Read more: Carl Levin and Richard A. Arenberg: Don’t fall for filibuster abolition. It’s a trap. Eric Mogilnicki and Drey Samuelson: It’s beyond time to retire the filibuster 70 former U.S. senators: The Senate is failing to perform its constitutional duties George F. Will: The Senate’s self-degradation is even more depressing than Trump’s misbehavior Letters to the Editor: More reasons to get rid of the filibuster

Source:WP