By John Fund
Sunday, January
16, 2022
Many 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.
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