I know I’m
jumping the gun and may have to eat crow and retract my prediction, but today
I’m confident enough in a Biden victory on November 3, that I shift to looking
ahead at the realities that will face the Biden administration in his first
(and likely only) term in office. After all, it would take more than a miracle
to see the incumbent surviving (figuratively speaking) the NYT revelations on
his federal income tax returns, his boorish behavior during the first presidential
election debate, his own affliction by the virus that he has poo pooed from the
start, all resulting in a 14-point deficit in yesterday’s NBC/WSJ poll. The
authoritative election forecasting site FiveThirtyEight gives the incumbent
only a 18% chance to come out victoriously.
When
thinking about the weight of the responsibilities of the office of the
President of the United States, we always wonder: “who would want this job”? Now
more than ever. In the conclusion of their recently released book “After Trump,
Reconstructing the Presidency”, Bob Bauer and Jack Goldsmith point out that “If
the new president takes office in 2021, the nation will face one of the most
difficult times in its history.”
The nation
will come out of a bruising election campaign, following a most destructive and
polarizing Trump presidency. Bauer and Goldsmith contend that “The country will
still be coping with a persistent global pandemic and, in addition, it will be
struggling with vast economic dislocation, searing national debates about
racial injustice, immigration, voting rights, and a deeply polarized political
culture.” To that, we should add the extreme inequalities, painfully exposed by
the disproportional burden inflicted by the corona virus upon the least fortunate
amongst us, both in physical, emotional, and economic terms. As before, these ‘least
fortunate’ include first and foremost our racial minorities. Such are the
conditions facing the incoming administration on January 20, 2021. And the job
will almost certainly fall in the lap of a 77-year-old career politician with
not a great problem-solving record.
The dilemma
for 2021, and the next administration, is the juxtaposition of the outsize
scope and depth of the issues facing the nation and the record level of
political polarization. The history of the Obama and Trump administrations
shows that only at a time that Congress and the White House are controlled by
the same party a major legislative initiative has a chance of passing and
becoming law, and so only if it can pass as a measure of ‘budget reconciliation’,
which requires only a simple majority in the Senate. This is the way the
Affordable Care Act passed in Obama’s second year (before Republicans took
control of the Senate) and the Trump tax law passed in Trump’s first year
(before Democrats took control of the House of Representatives).
There is a
better than even likelihood that, come January 20, 2021, the White House and both
chambers of Congress are again controlled by the same party, this time the
Democrats. But the matters most in need of legislative action, such as voting
rights, immigration, climate change, healthcare, gun control, and the national
debt, cannot be addressed by ‘budget reconciliation’ and will, therefore, under
the existing rules require 60 votes to come up for debate and a vote in the
Senate (the ‘filibuster rule’). We can safely rule out any chance that the
Democrats could win the 13 Senate seats required to gain this filibuster proof
majority for 2021 (as much as it is unlikely for either party to attain the 60-seat
majority at any time in the foreseeable future in a 100 seat Senate). Thus, to
govern effectively, Biden’s choice will be to find compromise solutions, for
which he can obtain some Republican support, or to throw the ‘filibuster rule’
out of the window.
Even if the
Democrats gain a majority in the Senate, chances are that they will still have
to contend with Mitch McConnell (then as minority-leader), who has demonstrated
to be a masterful tactician in keeping whatever control he has over the
process. McConnell will be more than capable to string any talk of
bipartisanship along until the midterm elections of 2022, betting that a lack
of legislative success of the Biden administration may switch control of
Congress again in the GOP favor. He has a record of allowing individual GOP
Senators to engage in talks and negotiations with Democratic counterparts,
without ever allowing them to bring their proposals to the floor of the Senate
for a vote. Such maneuvering will put Biden under immense pressure from his
party and public opinion to produce meaningful results in his first two years
and before the next mid-term elections. And it may lead him to the conclusion
that the only way for him to achieve results is by finalizing the process,
started by Harry Reid, and continued by Mitch McConnell, of peeling the onion
of the ‘filibuster rule’ and eliminating the qualified majority required in the
Senate to advance legislation.
For good
reasons, this choice facing the new president is dubbed the ‘nuclear option’.
It will blow up the last remaining norm that sets the Senate apart from the
House. It will be a choice with fateful, unpredictable, consequences for the
future of our system of government. Biden will have to consider ‘what happens
when the shoe fits the other foot and Republicans again gain control of
Congress’.
On the other
hand, he will be tempted to accept the risk involved in breaking with norms and
traditions (including the risk of being chased out of office and/or lose
control of Congress) for the chance of pushing through wholesale legislative
initiatives, which have no chance of passing with the ‘filibuster rule’ in
place, and could include offering Statehood to Washington D.C. and Puerto Rico
and expanding the number of Justices on the Supreme Court (to compensate for
Trump’s insistence on filling the Ruth Bader Ginsburg seat with a conservative
nominee). Statehood for D.C. and Puerto Rico would add four reliably Democratic
seats to the Senate, putting a Republican Senate majority out of reach for a
long time.
Biden has,
so far, steadfastly refused to answer any questions on how he might decide this
matter, if he gets elected. Understandably so. To do differently, regardless of
which way he would go, could easily cost him the election. Most likely he has
not made any decision in this respect and will want to see what happens on
November 3 and then after January 20, 2021. Will the GOP, after a resounding
and humiliating defeat at the polls, be more or less willing to work with the
Biden administration on addressing the nation’s most dire problems?
It would be
better for our democracy if we can keep the ‘filibuster rule’ in place. The
main purpose of the rule is to make sure that the Senate is a deliberative body
that invites the majority to find accommodation with the minority by means of
dialogue and compromise. Unfortunately, not much of that has worked under the leadership
of the last two majority leaders, Harry Reid and Mitch McConnell. Are we
holding on to a pipe dream?
If the ‘filibuster
rule’ falls by the wayside and the Senate is expanded with representatives of
D.C. and Puerto Rico, there will be little rationale left for the bicameral
system of our legislative branch. And the Electoral College would likely be next
to be put in question (though getting rid of that will require a Constitutional
Amendment). It will fundamentally and permanently alter the unique system of
representative democracy put in place by the founders of the republic. We
should think long and hard before embarking on that course.
Biden, and
the Democrats at large, should preferably take the long-term view and consider
that the demographics of our nation are trending inexorably in their favor.
This reality is one of the reasons why the GOP is so focused on voter
suppression.
The
conclusion is that negotiations on a new voting rights bill should be a high
priority for the incoming administration. They would serve as a barometer of
the GOP willingness to reach across the aisle and work with the Biden
administration and the Democrats on addressing the nation’s needs. If the
Republicans decide for intransigency, God help us, it will leave Biden little
choice but to pull the trigger and kill the ‘filibuster rule’. He will then be
held accountable for toppling another monument of the glorious republic founded
in 1776. But the real culprit will be our two-party stalemate and the immutable
partisanship blocking the art and science of governing.
