Merrick Garland

A Perpetual GOP-Controlled Senate May be in Nation’s Future

Senate GOP Majority Leader Mitch McConnell may act like he is politically invulnerable. He may be right.

Senate GOP Majority Leader Mitch McConnell may act like he is politically invulnerable. He may be right.

On OPB’s Livewire radio show over the weekend, Oregon Senator Jeff Merkley said America’s democracy is threatened by gerrymandering, voter suppression and dark money. He left off the growing dissimilarity of makeup of the US Senate to the US population.

Court cases are swirling around seeking to level the playing field on politically motivated gerrymandering, bar voter suppression of communities of color and restrict campaign contributions, or at least bring them fully into the sunshine. 

There is no viable challenge afoot to Senate representation that is becoming more distorted from the one-man, one-vote principle.

New York Times columnist Jamelle Bouie paints a picture of a permanent GOP majority in the US Senate, despite growing Democratically leaning populations on both coasts.

“The Republican coalition of rural whites, exurban whites and anti-tax suburbanites may not be large enough to win the national popular vote in a head-to-head matchup with Democrats,” Bouie writes “But it covers a much larger part of the country’s landmass, giving it a powerful advantage in the Senate.”

When the Constitution was drafted, less populated states feared the dominance of Virginia, the California of its time. Virginia’s population of 747,610 dwarfed Delaware’s 59,094 residents, which led to the Madisoneque compromise giving every state, regardless of its population, two senators.

Fast forward to today and you have California with 40 million residents and Wyoming with fewer than 600,000 each represented by two senators. That’s “a disparity that gives a voter in Wyoming 67 times the voting power of a voter in California,” observes Bouie. 

The disparity is on track to get wider. “By 2040, according to an analysis of Census Bureau data by the Weldon Cooper Center for Public Service at the University of Virginia, half the population will live in eight states, with eight other states representing the next 20 percent of the population. The remaining 34 states will hold 30 percent of the population. In the Senate, this would give them 68 seats. Overall, half the country’s population would control 84 of the 100 seats in the chamber.”

The upshot, based on current red state/blue state trends, is a perpetual Republican asset, serving a GOP president and thwarting a Democratic president. Mitch McConnell is not an aberration; he is an avatar of the future.

The distortion that perpetuates GOP control also bedevils the Electoral College, which has delivered victory to more than one candidate, including the current incumbent, who lost the majority vote nationwide. This has led to calls for abolition of the Electoral College and electing presidents by majority vote. Not surprisingly, Republicans and red-state leaders have been cool to the idea.

As the 2020 presidential election comes into focus, Democratic strategists have begun to explore ways to offset the growing predominance of Republicans in the Senate. Bouie reports some of the ideas, inspired by David Faris’ “It’s Time to Fight Dirty,”  have a ring of truth as well as novelty.

One idea is to add more states such as DC and Puerto Rico and break up California into six states, which presumably would give Democrats a net of 14 more or less permanently Democratic senators. Of course, Republicans could respond by following suit in GOP-leaning mega-states such as Texas and Florida.

The Roosevelt Institute offers a similar, but distinctly different alternative – add representatives to the Senate from the Atlantic territories, Pacific territories and Native tribes. A mix of nations – Australia, Brazil, France, Finland and Denmark – have set aside seats in their parliaments for indigenous peoples. Again, it would be hard to imagine Republicans and red states falling for this logic and undoing their home-field advantage.

The underlying conclusion Bouie reaches is that even if Democrats somehow manage to unseat President Trump in 2020, retain control of the House, overcome gerrymandering, thwart voter suppression and blunt dark money, Republicans will still be in the captain’s chair in the Senate, obstructing Democratic initiatives and blocking Democratically appointed judges. The story of Merrick Garland will be repeated and become the norm.

With 22 seats to defend, Senate Republicans would seem vulnerable in 2020. However, only two are in Democrat-leaning states. Democrats hold an Alabama Senate seat, which is likely to flip back to form. In other words, unless Democrats win the Senate against the odds, Bouie says everything else they win may be for naught.

 

 

A ‘Fringe Idea’ to Apply Term Limits to the Supreme Court

A ‘new’ debate is emerging on reforming the Supreme Court, including imposing term limits on justices. What has been a fringe issue may be moving into the mainstream and even the 2020 presidential race. Debating the size and composition of the Court could be a refreshing dip into a rich part of American history that has occurred when the nation was founded, grappled with nationhood, recovered from civil war and addressed the ravages of the Great Depression.

A ‘new’ debate is emerging on reforming the Supreme Court, including imposing term limits on justices. What has been a fringe issue may be moving into the mainstream and even the 2020 presidential race. Debating the size and composition of the Court could be a refreshing dip into a rich part of American history that has occurred when the nation was founded, grappled with nationhood, recovered from civil war and addressed the ravages of the Great Depression.

While the Capitol is buzzing with news about averting a government shutdown, criminal justice reform and a resolution to exit the Yemeni civil war, a new debate is quietly entering the stage that could radically change the US Supreme Court.

With two new conservative justices appointed by President Trump sitting on the high court, liberals are talking about ideas to apply term limits to justices, restrict when presidents can appoint new justices and add more justices to the court. Fivethirtyeight calls the conversation a “fringe idea” that is gaining mainstream attention.

As Fivethirtyeight recalls, court-packing isn’t new or novel. The Supreme Court’s size was shrunk by outgoing Federalists from six to five to prevent incoming President Thomas Jefferson from making an early appointment. Republicans quickly returned the Court to its original size and later added a seventh justice so another Republican could be named.

The Court was increased to nine justices to give President Andrew Jackson two additional seats to fill as part of his battle to end the national bank. Following President Lincoln’s assassination, a Republican Congress reduced the Court to seven to deny his successor, Democrat Andrew Johnson, any nominations that could interfere with their reconstruction plans. Franklin Roosevelt tried court-packing to remove judicial obstacles to his New Deal, but his transparent objective sank his attempt.   

The impetus for the latest spasm of interest in Supreme Court “reform” was the decision by Senate Majority Leader Mitch McConnell to deny a hearing or confirmation vote for President Obama nominee Merrick Garland in 2016. The spectacle surrounding Brett Kavanaugh’s confirmation hearings earlier this year didn’t squelch interest in reforms.

“The whole idea was born out of bleakness,” says David Faris who wrote “It’s Time to Fight Dirty,” which Fivethirtyeight describes as a “highbrow manual” to achieve institutional change. His book includes a chapter on changing the trajectory of the Supreme Court, with ideas Faris credits to Fix the Court, a group that says it is dedicated “to open up the most powerful, least accountable part of government.”

One of the group’s main ideas is to end lifetime appointments for Supreme Court justices and impose 18-year term limits. It says that idea was originally suggested by none other than current Chief Justice John Roberts, who has served on the court since 2005.

“To paraphrase a John Roberts' 1983 memo, term limits would restore an important check on the most powerful, least accountable branch of American government, would increase the rotation of justices serving and would broaden the pool of potential nominees – all positive outcomes no matter where you stand politically.” He wrote the memo while working as associate counsel to White House counsel Fred Fielding during the Reagan administration.

According to Fivethirtyeight, the only elected official to express vocal support for Supreme Court justice term limits is freshman California Congressman Ro Khanna, who took his law degree from Yale University, has taught law and co-authored an amicus brief to the Supreme Court to allow race discrimination suits under the Fair Housing Act. Khanna, who worked in the Obama administration, doubts his former boss would favor the idea, but he thinks American voters might. “Americans love term limits,” he says.

For the idea to have any political legs, Khanna explains, it must be bipartisan. He and others who are intrigued by the idea of court reforms expect the issue to rise up in the 2020 presidential election as part of a broader debate over rehabilitating American democracy.

“Every presidential candidate should talk about their relationship to the Supreme Court, what they would do to reform the court, if anything, how they would go about selecting justices, and what they would do if there was a constitutional crisis,” Khanna told Fivethirtyeight. Polling has shown that candidate Donald Trump’s promises to appoint conservative justices was a factor in securing critical support, including from evangelical religious groups.

One of the other ideas being tossed around is limiting Supreme Court nominations to the first and third year of a presidential term, an idea ironically spawned by McConnell’s defense of ignoring Garland’s nomination in Obama’s final year in office. It also has been suggested to increase the size of the Supreme Court from nine to 11 or 13 justices – “depending on how many justices Trump winds up appointing.”

Term limits can cut both ways. Political conservatives might be thrilled to see Justice Ruth Bader Ginsburg, who joined the Court in 1993 and the subject of a new film, gone. Political liberals would feel likewise about Justice Clarence Thomas, who took his seat in 1991 following a contentious confirmation hearing that featured Anita Hill and charges of sexual harassment.

A current-day debate over the Supreme Court would be like a refreshing dip into American history. The reforms would be newly expressed, but bound to the nation’s ever-evolving democracy over issues such as judicial review, racial discrimination and gender equality.

 

The Dids and Didn’ts of Congress

Congress is currently in the midst of one of its longest summer breaks in U.S. history. Before leaving, Congress managed to make several big accomplishments, but a number of other key spending issues were left unresolved. 

Congress is currently in the midst of one of its longest summer breaks in U.S. history. Before leaving, Congress managed to make several big accomplishments, but a number of other key spending issues were left unresolved. 

Due to earlier than usual presidential nominating conventions, federal lawmakers are in the middle of a seven-week recess – one of the longest summer breaks in the legislative branch’s history. With Congress out of town for another month, here is a look at some of the things it did and didn’t accomplish, and what to expect when it returns in September.

Congress Did:

Get Out of the Gates Early

The House typically kicks off the appropriations process, but that was held up by a GOP intraparty dispute over top-line spending levels. So the Senate took the wheel and got off to the fastest start in the modern budget era when the Senate Appropriations Committee approved its first spending bill in mid-April. The full Senate made more history when it passed the first appropriations bill on May 12, the earliest official start to the appropriations process in the chamber’s history.

Find Success in Committee

Each chamber moved all 12 (24 total) annual spending measures out of committee for the second straight year and onto the full Senate and House floors for consideration. Things were looking good early on, however, much of their committee success is attributed to unofficial agreements to hold off on controversial policy riders until the spending bills reach the floor. Unsurprisingly, just eight of the 24 bills approved by appropriations committees have made it past a floor vote to date.

Address the Opioid Epidemic

Both the House and Senate, with overwhelming bipartisan support, cleared the final version of legislation aimed at combating opioid prescription and heroin abuse, which President Barack Obama quickly signed into law. In addition to a few policy provisions, the bill creates a number of new grant programs to be administered by the Departments of Justice and Health and Human Services. However, it may take some time for this new money to find its way to local health departments and law enforcement agencies. Funding for the bill’s grant programs is dependent on appropriators designating money for them. Although some spending bills include money to address opioid addiction as a whole, only the House measure to fund the Justice Department includes specific money for those programs.

Reauthorize the FAA

After months of negotiation and just two days before expiration, both chambers eventually came together on a package to reauthorize Federal Aviation Administration (FAA) programs at current funding levels through September 2017. This measure is the result of both chambers abandoning their original, more wide-ranging and controversial FAA bills in favor of a short-term continuation. In addition to continuing current FAA programs, the bill contains a variety of policy measures that aim to increase airport security while easing security lines and further regulating drone use. 

Congress Didn’t:

Return to ‘Regular Order’

With Republicans in control of both the House and Senate, party leadership vowed to restore “regular order” to the appropriations process and expected to spend this summer touting their successes to constituents. Unfortunately, there were too many partisan and intraparty hurdles to clear in fiscal year 2017 and “regular order” was nowhere to be seen.

One of the biggest obstacles from the start was the refusal of certain House Republicans to embrace the bipartisan budget agreement reached last December that set the top-line spending level at $1.07 trillion for FY 17 defense and domestic discretionary programs. Conservatives voted against the compromise measure in December, but the agreement passed because former Speaker John Boehner relied on Democratic votes to win passage. Conservatives still oppose the plan and spent recent months pressing the Republican Caucus to present a plan that reduces mandatory spending by at least $30 billion.

Without a budget agreement in place, House appropriators were procedurally allowed to move forward in May and began marking up spending bills at the $1.07 trillion level. Unfortunately, that turned out to be just the first obstacle. Repeated attempts by members of both parties to attach controversial policy riders to spending packages after they cleared committee proved to be the demise of the fiscal year 2017 appropriations process. Lawmakers spent days and weeks engaged in contentious debate over spending levels and policy issues, all while the White House issued veto threats on multiple measures should they eventually pass.

With time running out before the new fiscal year begins on October 1, “regular order” is now a fond memory. When lawmakers return in September, they’re expected to abandon the normal appropriations process and seek a continuing resolution to avoid another government shutdown.

Address the Zika Virus

Months ago, the Obama administration requested $1.9 billion from Congress in emergency funding to combat the Zika virus domestically. Congress did not promptly comply. After weeks of partisan bickering and disagreement, negotiations finally fell apart in June and Congress left town without approving any funding for the mosquito-borne virus. Now, both Democrats and Republicans have spent most of the summer blaming each other for the failure and remain no closer to an agreement.

In the meantime, the Obama administration has since shifted $589 million, most of which came from Ebola resources within the Department of Health and Human Services and Department of State/USAID, for Zika-related prevention and treatment.

Pass Gun Control Legislation

Following the Orlando massacre, House and Senate Democrats persistently demanded action to address the recent spate of gun violence. Their frustration culminated in an extraordinary sit-in on the House floor, refusing to yield until House Speaker Paul Ryan promised floor votes on a myriad of gun control measures.

Keeping in line with the theme of the 114th Congress, there was ultimately no legislative action taken. However, it may not be the end as some Democrats have promised to keep introducing gun-related amendments to future legislation until a version is passed.

Fill Supreme Court Vacancy

Republican leadership decided not to hold confirmation hearings on President Obama’s Supreme Court nominee, Merrick Garland. Senate Majority Leader Mitch McConnell said the American people should  “appoint” a nominee by voting for a new president this fall. If Democrat Hillary Clinton wins the White House, McConnell may be tempted to allow confirmation of Garland to proceed in a lame-duck session.

What to Expect:

A Continuing Resolution

Congress is slowly coming to terms with the reality that the fiscal 2017 appropriations process is a goner and a continuing resolution (CR) will be needed to avoid a government shutdown on October 1. This will be lawmakers’ number one priority when they return in September, but there are a few things that could get in the way of a timely agreement.

A CR is a stopgap funding measure meant to fund the government temporarily in the absence of appropriated funding levels. Thus, the primary battle will likely take place over how long the CR will last. For the last two years, lawmakers have agreed on CRs extending to December 11, giving them enough time to put together a final omnibus appropriations package. That may not be an option this year as conservatives would rather push a CR push spending decision into March 2017 to bypass the lame-duck session and avoid a trillion-dollar omnibus.

Further, intraparty disputes over the top-line spending limit and partisan scuffles over Zika and gun control are also expected to complicate the CR discussions come September.

Criminal Justice Overhaul

Last month, House Speaker Paul Ryan announced he will take up legislation to overhaul the criminal justice system this September. The Speaker has identified a number of bills being marked up by the Judiciary Committee as part of the package that will see the floor next month. These individual measures will come together in a package to change everything from sentencing requirements to federal criminal procedures.  

Zika Funding

Despite their failure before recess, recent Zika cases in the United States will surely highlight congressional inaction and may force some kind of political agreement. House and Senate Republicans agreed on a $1.1 billion conference report, but Senate Democrats ultimately blocked the measure citing controversial “poison-pill” amendments. Among them are provisions that would ease EPA regulations and prevent Planned Parenthood clinics in Puerto Rico from receiving any Zika money.

Michael Skipper is CFM’s Federal Affairs Associate. Before joining the team in Washington, D.C., Michael worked on state affairs in Oregon, where he also studied political science and environmental policy at OSU. In his free time, Michael enjoys traveling, reading and spending time with friends and family. You can reach him at michaels@cfmpdx.com