Jim Hartman: Senate control, the more important election

While voters focus on the race for the White House, the fight for U.S. Senate control may be more consequential. Whoever wins that majority will determine whether change next year is centrist or radical.

Assuming Democrats hold the House and win the presidency, control of the entire federal-lawmaking apparatus would be theirs if Democrats reclaim a Senate majority.

Senate Republicans have a precarious 53-47 advantage. The GOP is defending 10 seats that are competitive, while they’re favored to win back only one— from Alabama Democrat Doug Jones. A House, Senate and White House sweep would set Democrats up for a huge policy transformation.

Democratic senators are discussing killing the legislative filibuster. Current Senate rules require three-fifths of all members — at least 60 — voting to proceed to consider a bill. There’s growing sentiment among Democratic senators to lower that threshold to a simple 51-vote majority.

Ending the 60-vote rule to pass legislation was once on the fringe of the Democratic Party. It’s now mainstream.

“The filibuster is gone,” former Nevada Sen. Harry Reid told Politico in August. “It’s not a question of if, it’s a question of when it’s going to go. …Next year at this time, it will be gone.”

Reid should know. In 2013 he detonated the “nuclear option” that ended the filibuster rule for judicial nominees on a partisan vote.

In the past, most senators of both parties defended the filibuster as a defining part of the Senate. It promotes compromise and protects minority party rights. It fosters moderation and creates laws that are durable because it requires some “buy in” from the minority.

Pressure from the left caused Senate Minority Leader Chuck Schumer to say he’s no longer a “moderate liberal” — he’s moved to the left. Schumer anticipates a primary challenge in 2022 from progressive Rep. Alexandra Ocasio-Cortez. Schumer won’t buck those who want to kill the filibuster.

Democratic presidential nominee Joe Biden once steadfastly opposed the filibuster’s demise. Now he would “prefer” preserving it, but says “everything is on the table.”

Killing the filibuster opens the door to a progressive “wish list.” A mere 51 votes could pass a public option or Medicare for All, the Green New Deal, pro-union legislation, codifying Roe v. Wade, gun bans, increasing the minimum wage, statehood for Washington, D.C. and Puerto Rico, court-packing, and other goals.

Democrats could “pack” the U.S. Senate. In June, the House passed a bill that would make the District of Columbia a state. In July, Barack Obama called Puerto Rican statehood a high priority. Statehood for both can be done with an act of Congress, so a 104-seat Senate would be on the table with a Democratic sweep. Four new Democratic Senate seats would result.

Left-wing activists are using the nomination of Judge Amy Coney Barrett to the Supreme Court as a rationale to “pack” the Court – by adding two or four new Justices. Kamala Harris and other Democrats trashed the confirmation process as “illegitimate.”

Court-packing is not popular. Data for Progress, a progressive polling group, found only 40% of voters favor packing the court if Republicans confirmed Barrett.

The Constitution provides that Congress decide how many justices sit on the Supreme Court, as established by The Judiciary Act of 1789. The number of justices, set at nine in 1869, has remained the same for 150 years.

In 1937, a court-packing plan by President Franklin Roosevelt to add six new justices won little support and failed.

When a senator, Joe Biden labeled court-packing a “bonehead idea” in 1983. Now, Biden and Harris dodge and duck questions on the issue because their radical base demands it.

Fundamental institutional changes are more likely than many voters realize. If Democrats do win everything, they could have unified control and no limits on advancing an extreme agenda.

Jim Hartman is an attorney residing in Genoa. E-mail lawdocman1@aol.com.