Democrats’ Proposals Are the Latest Threat to Checks and Balances

A good friend of mine who is active in Democratic politics says he “fervently” desires that “the repudiation of the Republican Party in November is so complete and total that the stupidest Republican will understand that Trumpism is a dead end.” This, he hopes, will lead to “the Republican Party recovering from its insanity.” My friend understands the danger that, as he puts it, the “lunatic left” in the Democratic Party will “gain strength.” Nevertheless, he thinks it is a necessary risk and that “hopefully a rational alternative vision will return, perhaps in the form of a new political party or perhaps in the Republican Party.”

But he may be wrong.

The genius of our Constitution is the concept of checks and balances. The President, the Supreme Court, and Congress each limits the power of the other. Legislation can be passed by the House and Senate, vetoed by the President, and challenged by citizens up to the Supreme Court. Our Founding Fathers designed the system to prevent the tyranny of an otherwise transitory faction which, without that restraint, can convert temporary popularity into permanent dominance. In many nations, the lack of checks and balances has enabled one-party rule, preventing the ascendancy of competing interests and ideas. The Democrats’ proposals threaten to do exactly that.

In many nations, the lack of checks and balances has enabled one-party rule, preventing the ascendancy of competing interests and ideas. The Democrats’ proposals threaten to do exactly that.

Consider the likely outcome of the “repudiation of the Republican Party” that my friend so fervently desires. This would mean that the Democrats take control of the Presidency, the House of Representatives, and the Senate. Should this occur, the combination of policies for which many Democrats have advocated will create serious risks to our system of checks and balances and the consensus-building that it is intended to assure.

One proposal from many Democrats is to admit two new states—Washington, D.C. (population about 700,000) and Puerto Rico (population about 3.1 million)—to the Union. Biden explicitly supports the former and would leave the latter to the people of Puerto Rico. The last time the Union was enlarged, sixty years ago, a compromise brought in the Republican-leaning Alaska and the Democratic-leaning Hawaii. This time, both new states would likely be Democratic, adding four Democratic Senators, six Democratic representatives (one for D.C., five for Puerto Rico), and perhaps ten Democratic electors (three for D.C., seven for Puerto Rico). In a closely divided America, these changes could determine presidential elections and control of the House and Senate.

Another suggested Democratic policy is to do away with the Senate’s filibuster rule, a change that Biden refused to disavow in the recent debate with Trump. Today, 60 votes are needed to end debate and begin voting on many types of legislation, which means that a mere 41 senators can block a bill from passing. That 41 person delay requires senators on both sides of the aisle to try to work together, compromise, limit extremists on both sides, and recognize the diverse interests that exist. The filibuster has been part of Senate rules for over 100 years. Although it has been eroded (for example, it is no longer applicable to voting on budget reconciliation bills), it still applies to most legislation.

While some argue that the filibuster encourages intransigence, in fact it is the threat of the filibuster itself that can motivate a bill’s sponsors and supporters to compromise in order to widen a bill’s appeal. For instance, Senator Angus King of Maine, an Independent, recently stated, “I know it can be frustrating, but I think legislation is better when it has some bipartisan support.” Even President Obama, when he was a senator, argued that the filibuster should be maintained (he has since reversed his position).

Of course, the filibuster can be misused, but its benefit—building a workable consensus—outweighs its detriments—reducing the opposition to impotence. Consider, for instance, what has already happened to Supreme Court nominations. In 2013, the Democrats abolished the filibuster for lower federal court appointees; in 2017, Republicans upped the ante by abolishing the filibuster for Supreme Court nominees. Its abolishment has hardly promoted compromise: in 1993, the Senate confirmed Ruth Bader Ginsburg by a vote of 96-3, and in 2009 confirmed Sonia Sotomayor 68-31. But after the filibuster was abolished, Neil Gorsuch prevailed only by a vote of 54-45 in 2017, and the present nominee, Amy Coney Barrett, is unlikely to do any better.

Ending the filibuster is seen by many Democrats as a means to an end—a way to remove restraints on partisan legislation and, more importantly, “pack” the Supreme Court—yet another policy Biden refused to condemn during the debate. The Constitution does not designate the number of Supreme Court justices, but for over 150 years, its number has stood at nine. Appointments are lifetime, which was designed to ensure the Court’s independence from political pressure. Witness, for instance, the current, “conservative” Supreme Court upholding abortion rights, extending the 1968 Civil Rights Act to protect LGBTQ employees, upholding DACA (Deferred Action for Childhood Arrivals), and requiring President Trump to turn his tax records over to a New York grand jury.

The Supreme Court is not a third legislative branch, susceptible to the vagaries of public opinion and political pressure. It is a judicial body, guided by legal and constitutional principles and aware of the value of precedent and continuity. It is presently, by far, the most trusted branch of government. While justices may have different views as to how to interpret the Constitution or legislation, to enlarge the Court for political ends is not only destructive to its intended non-political role, but also to the public’s perception of the Court and willingness to accept its rulings. Even President Franklin Roosevelt, in the midst of the Great Depression, was unsuccessful in his effort to pack the Supreme Court, precisely because of the risks it posed to checks and balances. Yet a Democrat-controlled Congress would threaten to do that in the interest of their political agenda.

Given our closely divided country, these changes—all likely to succeed should the Democrats control the Presidency, the House, and the Senate—risk undermining the checks and balances core to our democracy. Should these structural changes come about, it is democracy that will be the loser.

One need not doubt the good intentions of those advocating these institutional changes. But the road to hell is paved with good intentions. Given the likely outcome of the presidential election, only a Republican Senate can assure that these risky innovations will not be adopted.

This is what should be fervently desired.

Gregory Smith is an appellate attorney practicing in Los Angeles.