Four radical post-midterm moves for the Democrats

The political landscape is about to shift for Democrats. It’s unlikely they’ll control both houses of Congress after the November midterm elections. So in the lame-duck sessions that follows the election, they should kill the filibuster, pass major legislation, increase the size of the Supreme Court, and nominate four new justices.

Oh yeah. And Joe Biden should resign for health reasons.

I’m sure this all seems unthinkable, disruptive, and disloyal. But the logic behind it is solid. Listen up.

The Democrats are unlikely to prevail in the midterms

In the midterm elections coming up, every House member is up for election, and one-third of the Senate seats are. The Democrats currently hold a five-seat majority in the House and a one-vote advantage in the evenly divided Senate, by virtue of Kamala Harris’ power to break ties.

Here’s the political landscape in the election. Unemployment is low, but inflation is historically high and gas prices are up. Fairly or not, voters blame the party in power for these conditions. This is bad for Democrats.

Members of the Republican party have mostly backed the lie that the election was stolen and tied themselves to President Trump. The recent hearings in the House have revealed shocking and likely criminal behavior on the part of the former President during the January 6 insurrections. This is changing some minds about Trump, though it’s not clear how much that matters. This is bad for Republicans.

More than 60% of Americans support abortion rights. The recent Supreme Court decision overturning Roe v. Wade after almost 50 years has energized proponents of abortion rights and likely taken away a major reason that those against abortion rights have voted for Republicans. This may energize the Democrats’ base and get some moderates, and especially women, to vote against Republicans.

An aggregation of credible pundit predictions makes the Senate basically a toss-up. Individual races in places like New Hampshire, Pennsylvania, Georgia, Florida, Wisconsin, Nevada, and Arizona could go either way.

The same analysis in the House shows 214 races likely or leaning Republican, 193 likely or leaning Democrat, and 28 as toss-ups (shown in light brown in this graphic). If even four of the 28 toss-up races go Republican, the Republicans will take control of the House.

Despite the January 6 committee hearings and the Dobbs abortion decision, I’d rate the chances of Democrats maintaining control of both houses of Congress at no more than 20%.

If the Democrats do maintain control, the decisions I describe below may not be necessary, or at least, may not be necessary in the lame-duck post election session. But post-election, having wrested control of one or both houses, Republicans will not be in a mood to negotiate. They will be in a mood to block all action and make Biden look impotent.

Time for radical moves

I’m going to discuss some radical moves here. Democrats generally avoid these, or at least profess to avoid them. They were the ones protesting past unprecedented political moves by Republicans, such as failing to vote on Obama’s nominee to replace Antonin Scalia on the Supreme Court, revoking the Senate filibuster for court nominees, pushing through Amy Coney Barrett’s nomination to the court in just a few weeks, and pushing new state election laws that threaten the integrity of future elections.

We often hear the story that if Democrats change the rules, such as revoking the filibuster or expanding the court, then when Republicans are in power, they will take exploit those rules to their own advantage. “You’ll be sorry you did that,” the Republicans say.

But there’s no reason to believe that Republicans will eschew such moves just because Democrats did when they were in power. Do you really believe that the electoral cost of abolishing the filibuster or expanding the court will hold back Republicans in the future? Do you trust them?

It would be unwise to make these moves right now, with the election in our future. Radical moves before the election would hurt Democrats’s chances. The time to make them is after the election, when the political cost is lowest. If that strikes you as sneaky and uncivilized, it is. But the value will be higher than the cost.

This is a moment for the exercise of naked political power in the short time that will remain. That moment will likely end on January 3, 2023, the date when the new Congress is sworn in.

Step 1: Modify or eliminate the filibuster

The filibuster rule means that in the Senate, cutting off debate requires 60 votes. It used to require people to actually stand up and make speeches, but now, all it takes is a simple vote. And so, effectively, no legislation passes without the support of 60 senators.

The current rule dates back to 1917, when the rule required a two-thirds majority. It a relatively recent tradition, not a venerated part of the Constitution. It was supposed to bring opposing sides together for debate and compromise, but it once did, but now that the parties are so polarized, it just ends up obstructing nearly all legislation. There are multiple exceptions, including nominations of cabinet members and Supreme Court justices, “reconciliation” bills with a financial element, and fast-track trade agreements. So far, the Senate has created 161 exceptions to the filibuster.

Here’s a chart from Vox of “cloture votes,” that is, votes to end filibusters. It gives you an idea of just how routine filibusters are now.

The only way the Democrats will get anything done with the narrow majority they have now is to eliminate or modify the filibuster. The political cost of doing it before the election will be high. And it’s useless if the House is in the hands of Republicans, which it likely will be in January. So the time to eliminate or modify the filibuster is right after the midterm elections.

Strangely, because it is only a Senate rule, not legislation, it would only take 50 votes (plus the vice-president) to change it, not 60 votes.

Right now, two Democratic Senators are opposed to changing the filibuster: Joe Manchin and Kristin Sinema. Both are up for reelection in 2024. It will be extremely difficult to win them over. To do so, Democratic leaders may have to promise to limit exceptions to specific types of bills, or make other promises. But the window to do this is about to close.

Regarding the political cost of eliminating the filibuster — hard-core Republicans will still vote Republican, and liberal and progressive Democrats will cheer. The number of moderates with warm and friendly feelings about an old Senate rule is limited. What matters to them is not whether the filibuster stays, but what the Democrats do after they eliminate it.

Step 2: Pass major legislation

Having changed the rules, Democrats could pass legislation with a simple majority in both houses. They should use this opportunity to pass broadly popular measures on issues on issues of real concern to Democrats and moderates.

Here are some candidates for what would be a highly active lame-duck session:

• Measures to preserve voting rights and ensure that state legislatures or governors cannot overrule majority votes in their states.
• Stronger measures to limit misuse of guns, such as closing the gun-show and private sale loopholes, stronger bans on assault weapons, limits on the size of magazines, a bullet tax, preventing people under 21 from purchasing guns, and allowing the CDC to research the impact of guns on public health. In states like Massachusetts, such bans have led to significant reductions in gun violence, and gun deaths including suicides.
• A nationwide rule to preserve abortion rights on the same framework as the court created in Roe v. Wade, based around the idea of a person’s autonomy over their own body.

These measures will be controversial, of course. But by the time the 2024 election rolls around, what people will remember is whether they made a difference in issues that matter. Notably, none of them are likely to cost very much. They won’t affect inflation, raise income taxes, or increase the deficit.

Step 3: Expand the court

The Constitution says nothing about the size of the Supreme Court. When it started, the Supreme Court had only six justices. That number changed six times before reaching the current total of nine in 1869.

The nation is a lot bigger than it was in 1860. The idea that the Supreme Court must stay the same size is obsolete.

In particular, given the lifetime appointments of justices, the increased longevity of people in general, and the strategic tendency of presidents to nominate relatively young justices, the court no longer turns over nearly as frequently as it used to. Each nomination is a huge fight, and luck — based on who is president when justices die or retire — determines the court’s makeup. In eight years, Barack Obama nominated two justices (not including Merrick Garland whose nomination was never considered), and Donald Trump nominated three justices in half that length of time.

The nine-justice court dates back to a time when there were nine federal circuits (regions or jurisdictions for federal courts). There are now 13 circuits. It makes sense to have 13 justices.

Democrats should take advantage of a change in the filibuster rule to pass legislation to expand the court to 13 justices. Biden should nominate four new justices. And if the Senate is about to turn over to Republican control in 2023, this should all happen in the lame duck session in 2022.

Is this a naked power grab? It sure is.

But it’s defensible on historical grounds. It will get the base cheering. And it will ensure that the last two years of the current presidential term will not be filled with conservative court rulings that stemmed from historical accidents and Mitch McConnell blocking a Supreme Court appointment.

Step 4: Biden should step aside in 2023

On substance, I have no problem with Joe Biden. I do not see how he could have handled the Russian invasion of Ukraine any better — I am proud of how our nation stepped up to help face down that tyranny. The president doesn’t set oil prices; an unexpected surge in demand combined with the difficult of ramping up production quickly caused the price to climb. The current round of inflation is due to supply chain limits, low unemployment which puts upward pressure on wages, keeping interest rates too low for too long, pandemic disruptions, the cost of oil which affects transportation and thus the cost of goods, and the most recent pandemic stimulus package. Biden and the Democrats only bear the responsibility for the last of those factors.

Even so, I feel Biden is a poor messenger. He appears weak. He has failed the leadership challenge; he has failed to engage the media and vocal members of his own party; he doesn’t appear to stand for anything; and he’s just too old. (Where Trump seemed old and crazy, Biden seems old and weak.) I’ve had these concerns since he was a candidate in 2020. I think he beat Trump at least as much because people hated Trump rather than because people liked him. In other words, I think any reasonable Democrat would have won.

As of yesterday, 85% of adults say the country is on the wrong track, and only 39% approve of Biden’s leadership (that’s 8% of Republicans and 72% of Democrats). This is not a talking point. This is a problem.

If Biden remains the Democrats’ standard bearer in 2024, I doubt he will be up to the challenge of taking on a Trump-style challenger, whether that challenger is Trump himself (who is likely to be under prosecution by then), Ron DeSantis, or Ted Cruz. With the yoke of inflation and oil prices hung around his neck, Biden is unlikely to be able to win. He’d be 82 years old by the time he took office, and 86 by the end of his term.

The time for Biden to step aside — for health reasons, of course — is in early 2023. This will allow Kamala Harris to create more resonant messaging. She will create a legacy of tamping down inflation and oil prices (which will, of course, mostly result from factors outside her control, but that’s how it works). She’ll have been heavily involved in the efforts to reform the filibuster and pass groundbreaking legislation that I’ve describe here. And she’ll likely be relatively unopposed in the 2024 election season, as opposed to Biden, whose weakness would likely attract multiple challengers.

Until then, as is traditional in these situations, if asked about resigning, Biden should point out that no sitting President who was not actually criminal has ever resigned, and change the subject to his accomplishments. There’s no point in talking about it now. (If you think that my posting this has any impact on Biden’s actual thinking or that I have revealed some secret that the media will then pounce on, you have overestimated my influence by a factor of about a thousand.)

Why bother?

Why not just keep on going as we are? The reason is simple.

The risk of another Trump term is too great. Now he knows where the levers of power are. If Trump is president, Lord knows if America the democracy will survive.

The moves against fair elections are scaring the crap out of me. I would do almost anything to reduce the risks that elections will be so undermined that a single party can keep power through authoritarian means.

The longer term problems are too important. We cannot afford to deny climate issues, suppress the rights of women and LGBTQ folks, allow guns to proliferate, and fail to maintain a civil society any longer. I’m no socialist. But neither is Joe Biden, and neither is Kamala Harris. I’m ready to see what emerges from the fight for the Democratic Party. I’m not ready to turn the nation over to people who want to turn the clock back on issues that matter.

Things would be different if the Democrats have the chutzpah to do what I suggest.

And that’s the point.