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Tackling filibusters and creating history

By Bruce Walker
web posted March 10, 2003

Democrats tried to prevent President Bush from advancing his agenda by enticing a self-important nobody from Vermont to leave the Republican Party in 2001 and make Tom Daschle Plurality Leader of the Senate. Much of what the president wanted floundered in the Senate, not because the president lacked the votes to win approval in a Senate floor vote, but because Daschle and his Democrat committee chairs controlled the Senate agenda.

The political consequence of this roadblock was that President Bush made retaking control of the Senate a personal priority. He recruited candidates like Norm Coleman and John Sununu and he traveled around the nation making the case for a Republican Senate. It worked -- despite blatant and unsavory tactics in the New Jersey and South Dakota senate races.

Tom Daschle

Daschle lost that battle, and now he has raised the stakes by filibustering an important judicial nomination that has now made it out of the Senate Judiciary Committee and has been called before the Senate by Majority Leader Frist. Although the Miguel Estrada nomination is important, the threat of stopping whatever the president and a clear majority of both houses of Congress want by forty-one Democrat senators is a very dangerous game for Democrats

Senate Democrats are creating a veto over any real changes in policy or law which can be overcome only if a political party has: (1) the presidency; (2) a working majority in the House of Representatives; and (3) sixty members of the Senate who will support cloture. The last time either political party had that sort of muscle was in 1978, a quarter of a century ago, during the first two years of Jimmy Carter's presidency.

The only other time either political party has had this amount of political power was during the first two years of LBJ's single elected term as president. The cloture rule itself, which provided a means of ending a filibuster, was not adopted until 1917. Prior to then, legislation could be stopped by a sustained presidential veto, a majority in either house of Congress, or a determined filibuster.

Remarkably, at no time in American history, has the Republican Party had the votes in Congress and control of the White House so that the Republican Party could enact its agenda. Since the cloture rule was adopted, Democrats have -- at a minimum -- been able to sustain a Senate filibuster. Typically, Democrats have also been able to block legislative change through several means.

Democrats, by contrast, have been able to pass any law over a Republican filibuster for eight of the sixteen years of the New Deal, the first two years of the Great Society, and Carter's first two years in office. During these years most of the socialist programs which bedevil American society were enacted, and even when Republicans had more political strength, it was never enough to pass any laws over the unified objection of Democrats.

Daschle is daring the president and daring the American people to give Republican this power for the first time in American history. The Minority Leader is also choosing to do this while American is engaged in the second global war in our nation's history, and arguably the first war in almost two hundred years that actually threatened the survival of the Republic. Daschle is throwing this gauntlet down at the foot of a man whom Democrats have underestimated almost as many times as they underestimated Ronald Reagan.

President Bush, could and should pick up the challenge. There are two strategies he could employ, and these are independent of each other.

Vice President Cheney under the Constitution is the President of the Senate. As I noted in my article "The President of the Senate" soon after Jefford jumped, Senate President Cheney could read more into that office that has traditionally been granted. Cheney could, for example, say that the constitutionally designated presiding officer of a house of Congress can, at least, take a roll call vote on any matter.

Senate President Cheney could announce that he will begin calling the names of senators at 8:00 next Monday evening on the Estrada nomination, and Cheney should welcome the media to cover this historic moment. Republican senators whose name was called would vote "yes" but what would Democrats do?

If they did not answer or began to pontificate on the threat to our freedoms, etc., etc., etc., Cheney could just proceed to the next senator and record that vote. At the end of the roll call, when a majority had voted "yes" Cheney could return to those who had not voted, and asked if they wished to vote. If they voted, that would legitimize the voting process.

What if Democrats elected not to vote at all? Cheney could declare the vote and force Daschle to find a way to object. Would Daschle, Leahy et al. file suit in the Supreme Court? The Supreme Court scrupulously avoids "political questions" and this is the penultimate "political question." The Court would probably decline to hear the case, leaving Daschle without even a fig leaf.

If the Supreme Court took the case, the result might even be better. President Bush, Senate President Cheney, and Speaker of the House Hassert could announce quite clearly that the Executive and Legislative branches govern, and that whatever the Supreme Court rules will be ignored. Concurrent resolutions of both houses of Congress supporting this position would put the federal judiciary in a tough spot.

The second strategy that President Bush could take would be to announce that he needed at least sixty Republicans in the Senate. Getting those additional Republican senators could involve several different activities.

The president could go to conservative states with Democrat senators and ask the people of those states to demand that their Democrat senators switch political parties. Some senators might switch. Clearly, Senator Nelson of Florida and Senator Nelson of Nebraska feel that Daschle is at the leftist frontiers of the citizens these senators purport to represent.

The president could also travel to those conservative states which allow recall of senators and ask the citizens of those states to recall those Democrat senators who are prevented national issues from even being addressed. Recall does not automatically mean removal, but some senators would lose their seats and others would have to face the real unpleasantness of defending their seat in a special election. Very likely, those who faced recall might grant an unequivocal commitment never to support a filibuster against President Bush.

And the president could make gaining as many Republican Senate seats as possible the political priority of 2004. Bush should win reelection easily, and reapportionment in Texas and North Carolina should enable Republicans to gain more House seats even without gaining any more votes. There are few governorships up in 2004. So the Senate is already the natural battlefield.

The only Republican at any risk in 2004 is Senator Fitzpatrick of Illinois, but all seventeen Democrat senate seats up in 2004 are within Republican reach. As extreme examples, consider Vermont, Connecticut, Hawaii and Maryland.

Senator Leahy of Vermont might seem formidable, but he faced only token opposition in 1998 by octogenarian Fred Tuttle. In 1992, when he faced a real Republican opponent, the incumbent Democrat received only fifty-four percent of the vote -- and that was on a night in which Democrats were winning the White House.

Republicans in Vermont captured the governorship from Democrats in 2002, and the Jeffords defection leaves the people of that state without any real power in Washington. Republicans, in fact, won five out of the six governorships in New England, as well as the governor's race in New York, and Republicans swept neighboring New Hampshire.

Chris Dodd is the son of a Connecticut Senator and he won reelection easily in 1998, but Governor Rowland is very popular, and he carried every congressional district in Connecticut. Rowland would be a formidable candidate against Dodd.

Barbara Midulski of Maryland will be sixty-eight years old when she runs for reelection in 2004, and Republicans have already begun looking for an attractive, articulate black candidate to run against Midulski. The Democrat Party in Maryland is notoriously corrupt. Republican Michael Steele unexpectedly defeated Democrat Kathleen Kennedy-Townsend, and did so easily.

Senator Inouye will be eighty years old in 2002. The Republican Party captured the governorship of Hawaii in 2002. As with Maryland, there was a popular revulsion at the corruption of the Democrat Party in that state. Republicans did better than expected across the board in Hawaii. Inouye will be the octogenarian member of the national minority party which is the party of corruption in Hawaii. If he does not run for reelection, that race might be wide open, but even if he runs, Inouye may be beatable.

Those are the four strongest Democrat seats. Seats in South Carolina and Georgia will be very difficult for Democrats to hold, no matter what. Depending upon who runs, Republican could be favored to win several other seats.

Rudy Giuliani is running well ahead of Chuck Schumer in New York. John Thune is poised to defeat Minority Leader Daschle in South Dakota. Jennifer Dunn should be favored to defeat Osama bin Murray in Washington state.

John Edwards and Bob Graham are presidential candidates who are also up for reelection. Edwards in North Carolina is vulnerable whether he runs or not. Graham may choose not to run for reelection, in which case Republicans have an excellent chance of gaining a seat in Florida. Chris Dodd has elected not to run for president, but Governor Rowland would be a formidable candidate against him.

Louisiana, Arkansas, North Dakota and Nevada are four other states that went strongly for President Bush in 2000, and which he should carry easily in 2004. Except for Breaux in Louisiana, who does not support the filibuster anyway, each Democrat in those states could lose to a sitting Republican governor who ran for the seat.

Boxer and Feingold have never had firm holds on their senate seats. Boxer must also face public anger at Democrats -- Gray Davis, Gary Condit, Barbara Lee -- which may result in a Republican victory, which would sweep Boxer out. Feingold is not popular with Democrats, and could face a number of tough Republicans in 2002.

Excluding recalls and party flips, Republicans could theoretically gain seventeen seats in 2002, and all President Bush needs is to gain nine of those seventeen. President Bush may well win a tsunami sized landslide in 2004. If President Bush carries forty-five states in a campaign in which Republican senate candidates are closely tied to the president, will Republicans win the nine seats they need? Yes.

These candidates will be even stronger because of the certainty that Republican will control the Senate, the House of Representatives and the Presidency after 2004. Democrats in the Senate will not be able to help their states much, and so will not get much support from the peoples and businesses in their states.

If Daschle really wants to challenge Bush, Daschle will do for the Democrats in 2004 what Clinton did for the Democrats in 1994 -- dramatically and irreversibly diminish the power of the Democrat Party. And that transforms American government and American politics. Republicans would be able for the first time in history will be able to actually enact their agenda. They will be able to do so in just a few weeks of 2005.

Imagine the impact of these changes: (1) abolition of capital gains tax, abolition of either the corporate income tax or the dividend tax, and implementation of a simple, flat tax; (2) enactment of a National Right to Work Law, and reform of the civil service could be reduced; (3) repeal or reform of a host of onerous federal regulations in environmental, health and safety areas; (4) dismantling of federal programs which do not work or federally supported programs with an ideological agenda; (5) reducing the jurisdiction and authority of federal courts, and placing a strong conservative majority on the Supreme Court.

These long overdue changes would cause an explosion of economic and personal creativity unrivaled in modern American history. But this is only part of the victory. If Democrats insist that sixty senators, along with the House of Representatives and the president are required to enact legislation, fund programs and all the other stuff that liberals love to do, then this position will prevent Democrats from ever being able to recreate the cluster of dependent constituencies that have kept them in power.

Republicans are already the majority party, and they will at least have that sort of veto power for many decades to come (recall -- the last time Democrats had this power was in 1978). All of the momentum would be in our direction. And the left would have Tom Daschle and his arrogant leftist friends in the Senate to thank for it. President Bush might take a line of a famous Clint Eastwood movie in dealing with Daschle: Go ahead, make my day.

Bruce Walker is a senior writer with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.

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