McConnell Says ‘No Chance’ Senate Will Remove Trump

Senate Majority Leader Mitch McConnell (R-Ky.) told Sean Hannity on Thursday that there was “no chance” that the Senate would vote to remove President Trump from office after he is impeached by the House.

“The case is so darn weak coming from the House,” McConnell said. “We know how it’s going to end. There’s no chance the president’s going to be removed from office.”

“My hope is that there won’t be a single Republican who votes for either of these articles of impeachment, and Sean, it wouldn’t surprise me if we got one or two Democrats,” McConnell added.

Earlier this week, McConnell raised the possibility of a brief trial in which no witnesses are called and the Senate votes summarily on evidence and arguments that would be presented by Democrats acting in the role of prosecutor against the president. At that point, McConnell suggested to Reuters that the Senate “could go down the path of calling witnesses and basically having another trial” or, he added, a majority of senators could decide “that they’ve heard enough and they believe they know what would happen and could move to vote on the two articles of impeachment sent over to us by the House.”

President Trump seems to have embraced the idea having a long trial and turning it into a spectacle in which his defense attempts to put Joe and Hunter Biden on trial. On Dec. 5, Trump tweeted that Democrats should impeach him “fast” so that he could “have Schiff, the Bidens, Pelosi and many more testify….”

Donald J. Trump

✔@realDonaldTrump

 · Dec 5, 2019

The Do Nothing Democrats had a historically bad day yesterday in the House. They have no Impeachment case and are demeaning our Country. But nothing matters to them, they have gone crazy. Therefore I say, if you are going to impeach me, do it now, fast, so we can have a fair....

Donald J. Trump

✔@realDonaldTrump

.....trial in the Senate, and so that our Country can get back to business. We will have Schiff, the Bidens, Pelosi and many more testify, and will reveal, for the first time, how corrupt our system really is. I was elected to “Clean the Swamp,” and that’s what I am doing!

123K

8:01 AM - Dec 5, 2019

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A White House spokesman told reporters last week that the president “wants his case fully made in the Senate,”  adding that, “We need witnesses as part of our trial and a full defense of the president on the facts.”

A vigorous defense could complicate matters for the Trump Administration. One of the articles of impeachment is obstruction on the grounds that the White House has refused to provide documentation and witnesses that were requested by Congress. Witnesses at the White House, the Pentagon, and even civilian attorney Rudy Giuliani all refused to comply with congressional subpoenas. In a long trial, these and other subpoenas might be renewed and enforced. At the very least, uncomfortable questions about why the president’s inner circle is not testifying on his behalf may be raised.

An extended trial would also give Democrats an opportunity to dig deeper and find more witnesses with information that is embarrassing for the president. By forcing a quick House vote, Democrats are passing up the opportunity to find more evidence against Mr. Trump, but a long trial in the Senate could mean that the president fails to benefit from their error.

Further, the Constitution specifies that the chief justice of the Supreme Court presides over an impeachment trial. Since John Roberts would control the proceedings, Senate Republicans will likely have fewer opportunities to score partisan points than Democrats did in the House where they controlled the committees conducting the impeachment process.

On the bench, Roberts has a history of avoiding partisanship and has a moderate record with one of his most famous (or infamous) decisions upholding Obamacare’s individual mandate as a tax. The chief justice is not a person who can be expected to toe the Republican Party line.

However, a summary vote to dismiss the impeachment has risks as well. The country is closely divided on impeachment with a slight plurality favoring the removal of Donald Trump. A rubber stamp vote to dismiss the charges against Trump is unlikely to win Republicans many friends among voters skeptical of the president. These voters would include many of the suburban voters who abandoned the GOP en masse in 2018.

In the end, Mr. McConnell seems correct that the Senate will vote to acquit Donald Trump. The numbers for removal just aren’t there. The Constitution requires a two-thirds majority to remove the president, meaning that 20 Republican senators would have to defect and vote with Democrats. The chances of such a mass desertion of the president are nil at this point.

On conducting a short trial, however, McConnell is on shakier ground. Both sides seem to be adopting self-defeating strategies for impeachment with Democrats rushing what they could shape into a public approval nightmare for Donald Trump with a slow drip of investigations over the next year and the Trump Administration pushing for a long trial that it is unlikely to be able to control.

No one knows where the impeachment trial will ultimately lead, but, if it concludes early in the year, I have to wonder if voters will even remember it by November. Such is the nature of the incredibly fast news cycles of the Trump era.

Originally published on The Resurgent

The Filibuster's Days May Be Numbered

The filibuster may be dying the death of a thousand cuts.

After Majority Leader Harry Reid implemented the nuclear option to eliminate the filibuster for cabinet appointees and judicial nominees below the Supreme Court in 2013, Mitch McConnell, leader of the Republican minority at the time, warned, “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”

McConnell’s warning was prescient. It was only four years later that Republicans used Reid’s rules to confirm Donald Trump’s cabinet. Then McConnell dropped his own nuke and removed the filibuster for Supreme Court nominees, allowing Republicans to confirm Neal Gorsuch and Brett Kavanaugh over Democratic objections. Now McConnell is about to go nuclear again.

American military strategists have long embraced a policy of no-first-use when it comes to nuclear weapons. The situation in the Senate is an example of why. Once one nuke is dropped, it becomes easier and easier for others to launch their own nuclear weapons at more and more targets. The first use of a nuclear weapon expands the Overton window to where usage of more nukes is acceptable.

NBC News reports that Mr. McConnell may drop his next nuke as early as today. Yesterday, in a party-line vote, the Senate rejected a change to rules that would have limited debate on cabinet appointees and district-level judicial nominees to two hours from the current 30. This would make it easier for the Senate to confirm more of President Trump’s judicial nominees. Even though the Senate required 60 votes to make the change, McConnell has the ability to use procedural tactics to make the change with only a simple majority.

Burgess Everett writes in Politico that each time the filibuster is weakened unilaterally by one party, it becomes more likely that the measure will eventually be totally eradicated. Already, members of both parties are claiming that the other wants to eliminate the filibuster so why not take pre-emptive steps and do it to their own advantage?

“If eliminating the legislative filibuster will serve Sen. McConnell’s purposes, he’ll eliminate it,” said Senate Minority Whip Dick Durbin (D-Ill.). “After what Sen. McConnell has done to this institution, there will be many people who will be putting pressure on us to do the same thing.”

“It’ll go down the road,” Senator Richard Shelby (R-Ala.) said. “If the Democrats take control of the Senate and we’re in a strong minority then they’ll change it immediately.”

President Trump has also made repeated calls to eliminate the filibuster. Mr. McConnell rebuffed those calls as recently as last June, but the majority leader’s repeated weakening of the filibuster whenever it is convenient may be dooming the Senate rule.

The argument against the filibuster is basically that Congress is too divided to compromise. Neither party has enough votes to force its will on the other without convincing a few senators to cross the aisle. While this division is frustrating to party activists, the voters who keep Congress decided seem to prefer stalemate to one-party rule.

Both sides will be to blame for killing the filibuster. Harry Reid uncorked the nuclear genie from his bottle but Republicans have taken the idea and run with it. If Republicans eliminate the filibuster, it will be the GOP that bears the brunt of voter anger for the change.

Regardless of who eventually pulls the trigger to finally eliminate the traditional safeguard for the Senate’s minority, the country will be worse off without the filibuster. The need for 60 votes to advance legislation acts as a speed brake to slow down bad bills. Without the restraining influence of the minority, a bevy of bad ideas could easily become law. National policy could veer wildly from one side of the political spectrum to the other.

While eliminating the filibuster would allow Republicans to fund President Trump’s wall and repeal Obamacare in the short-term, it is very likely that after the 2020 elections the situation will look very different. If Democrats win control of the Senate and the presidency while retaining the House of Representatives, the absence of the filibuster would allow them to defund the wall while, at the same time, passing a veritable liberal wish list that includes gun control, Medicaid-for-all, higher taxes, and who knows what else. Even with a large Republican minority, the Democrats would be unstoppable until after the next election.

It may already be too late to prevent the death of the filibuster, but Mitch McConnell and his Senate Republicans should think very carefully before further weakening the tradition. They may regret it if they do. And they may regret it a lot sooner than they think.

Originally published on The Resurgent

Congressmen Waver While Trump And Pelosi Refuse To Compromise On Shutdown

It’s Day 21 of the government shutdown and there is no end in sight. As of today, the shutdown is tied with the 1995-96 shutdown as the longest in history. The leadership of both parties is resolute. Both President Trump and House Speaker Nancy Pelosi have dug in and refused to compromise from their respective positions. Not everyone is happy among the party rank and file, however.

In the most recent House votes on compromise bills to reopen the government, 12 Republicans joined with House Democrats in voting to fully fund the Departments of Transportation and Housing and Urban Development (HR 267). Previously, 10 Republicans had voted to fund parts of the government. In Thursday’s vote, they were joined by Rep. Steve Stivers (R-OH), the most recent chairman of the National Republican Congressional Committee, and Rep. Rodney Davis (R-IL). Stivers and Davis did not join the 10 other Republicans in a separate vote to reopen the Department of Agriculture (HR 265).

The number of disaffected Republicans is growing. On Wednesday’s votes, Reps. Adam Kinzinger (R-IL) and Jaime Herrera Beutler (R-WA) joined with another eight Republicans who had earlier voted to fund the government. The eight who have consistently voted in favor of funding are Reps. Will Hurd (R-TX), Greg Walden (R-OR), Fred Upton (R-MI), Elise Stefanik (R-NY), John Katko (R-NY) and Brian Fitzpatrick (R-PA). Greg Walden was the chairman of the RCCC from 2014 through 2016.

Although both bills passed the House, they will die in the Senate where Majority Leader Mitch McConnell refuses to take any action on a bill that Trump would not sign. President Trump has refused to waver on his demand for $5 billion for his wall project, about one-fifth of the estimated total that would be required, and Democrats have offered only $1.3 billion for border security funding that excludes the wall. Pelosi joked with reporters that she would only appropriate one dollar for the wall, adding, “We’re not doing a wall. Does anybody have any doubt about that?”

Despite Pelosi’s show of resolve, some Democrats are wavering as well. Politico reported on Wednesday that some freshman House Democrats were “freaking out” about the shutdown and the party’s strategy. A senior Democratic aide blamed some of the anxiety on the fact that some new congressmen didn’t have their offices and emails set up and were not receiving communications from Speaker Pelosi.

Nevertheless, some are feeling the heat from constituents. “If I am getting comments and contact from my constituents expressing concern that the Democrats are not prioritizing security, then I think we can do better,” said Rep. Abigail Spanberger (D-Va.).

Even if some Democrats have misgivings, so far, they have not had the opportunity to break ranks with their party. The only funding bills active are the partial funding bills passed by the House that reopen individual departments of the federal government. The dynamics of the shutdown are that funding bills originate in the Democrat-controlled House. Since McConnell is quashing votes in the Senate, that means that Republicans have more chances to cross the aisle than Democrats.

If McConnell decides to allow the House funding bills to be considered in the Senate, it is highly likely that they would pass easily. The bigger question is whether the Senate would have enough votes to override a probable veto from the president.

As the shutdown stretches on, the effects are starting to pile up like trash in the unstaffed national parks. Federal workers are missing a payday today. That has rippling effects throughout the country as local federal employees may be unable to pay their bills and about $2.2 billion in consumer spending is withheld from the economy. Even the Coast Guard and air traffic controllers are affected. Some services, such as the ability to obtain passports from the State Department are already closed and, if the shutdown stretches on others, such as tax refunds, may be delayed.

The shutdown will continue until one side blinks. So far, neither President Trump nor Speaker Pelosi has given any indication of budging from their positions. The compromise to end the shutdown will have to come from members of Congress who feel the pressure from their constituents. Pelosi’s San Francisco seat is safe, but many other congressmen and senators represent swing districts and states. They will be ready to make a deal and, because Republicans are more vulnerable after the last midterms, the odds are that it will not include a wall.

At this point, Mitch McConnell is the key. If McConnell stays strong and protects the president then the shutdown could last indefinitely. However, polling already shows that voters blame Trump for the shutdown and oppose both the shutdown tactic and the wall. If and when McConnell determines that Trump’s shutdown is endangering the Republican majority in the Senate, he could easily allow a vote and put Trump in the position of having to veto funding without a wall or backing down. 

Originally published on The Resurgent

McConnell Says No Republican Senator Will Replace Sessions

There has been a lot of speculation that President Trump will fire Attorney General Jeff Sessions after the midterm elections. Now Senate Majority Leader Mitch McConnell has weighed in on the matter of a possible replacement for Sessions.

A replacement for Sessions, McConnell told the AP, is “not going to come from our caucus, I can tell you that.”

McConnell’s objections to losing a Republican senator to the Department of Justice seemed more grounded in political practicality than in an ethical problem related to Trump’s reasons for dismissing Sessions. McConnell cited the Republicans’ slim 51-49 majority as a reason for not referring a Senate Republican to Trump for the job. When rogue Republicans such as Jeff Flake, Susan Collins and Lisa Murkowski are considered, the Republican majority often evaporates quickly.

McConnell is undoubtedly concerned about replacing a Senate Republican in the current political climate. When a special election was held for Jeff Sessions’ Alabama seat, Republican voters rejected his appointed successor, Luther Strange, in favor of Roy Moore, who ended up losing in the general election to Doug Jones.

If he waits until after the election to fire Sessions, President Trump may have a hard time getting a replacement confirmed. Current Senate polling suggests that Republicans have the upper hand in the battle for control of the body, but Democrats remain within striking distance. Even if the appointment goes to the current Congress, some Republican senators would likely refuse to cooperate with an attempt to oust Sessions. Ben Sasse of Nebraska said in August that he found it “really difficult to envision any circumstance” in which he would vote to confirm a successor to Sessions.

McConnell did not address any effect that firing Sessions might have on the Mueller probe but did argue that the current Congress has been “extraordinarily accomplished.” He cited tax reform, regulatory reform, changes to the Dodd-Frank financial reform law and the appointment of numerous conservative judges to federal courts as well as a bipartisan bill to combat the opioid crisis.

Originally published on The Resurgent

McConnell Not Convinced By Spygate Claims

The Department of Justice’s classified briefing on Capitol Hill has not convinced attendees to withdraw support for Robert Mueller’s Russia probe despite White House claims that the FBI improperly spied on the Trump campaign in 2016. Senate Majority Leader Mitch McConnell (R-Ky.) said Thursday that he still backs Mueller’s special counsel investigation after the briefing on FBI use of an informant who had contacted three Trump staffers, but he also believes the inspector general investigation into FBI handling of the matter is also needed.

“The two investigations going on that I think will give us the answers to the questions that you raise — the [inspector general] investigation in the Justice Department and the Mueller investigation,” McConnell told NPR. “I support both of them, and I don't really have anything to add to this subject based upon the Gang of Eight briefing that we had today, which was classified.”

McConnell added on Fox News that there was “nothing particularly surprising” in the briefing in spite of President Trump’s claims that the revelations of an FBI source inside his campaign represented a major Obama scandal.

The briefing was delivered to a “Gang of Eight” Democrats and Republicans made up of congressional leaders and leaders of the House and Senate intelligence committees. Originally planned for Republican leadership only, the White House expanded the briefing to include Democrats after pushback from both parties. Trump lawyer, Rudy Giuliani, and Chief of Staff John Kelly were also present at the briefing.

The debate centers over whether the Obama Administration improperly used the FBI to spy on the Trump campaign in 2016. President Trump has adopted the phrase “Spygate” and claimed that the investigation is a political scandal for the preceding administration.

https://twitter.com/realDonaldTrump/status/999246677549768704?ref_src=twsrc%5Etfw&ref_url=https%3A%2F%2Fwww.npr.org%2F2018%2F05%2F24%2F614166059%2Fmcconnell-says-he-supports-mueller-investigation&tfw_site=NPR

Trump critics argue that the surveillance of Trump staffers was limited to those with links to Russia such as Paul Manafort, Carter Page and George Papadopoulos and did not benefit the Clinton campaign. In contrast to Trump claims that the entire investigation was based on the Steele dossier, the probe apparently began when Australian Ambassador Joe Hockey tipped the FBI that Papadopoulos had claimed in May 2016 that the Russians had dirt on Hillary Clinton from hacked DNC emails.  The Washington Post broke the story last week that an informant inside the Trump campaign had corroborated Hockey’s claim.

There are holes in the president’s argument. Trump has not explained why, if the FBI’s intention was to help Hillary win, the Steele dossier was not leaked until after the election. The president has also failed to account for FBI Director James Comey’s Oct. 28 memo to Congress reopening the investigation into Hillary Clinton’s handling of classified information. The Comey memo is widely believed to have tipped the election to Donald Trump.

Rep. Adam Schiff (D-Calif.), the only other attendee to comment on the briefing, was less circumspect than McConnell. Schiff told CNN in a brief statement on behalf of the Democratic leadership, “Nothing we heard today has changed our view that there is no evidence to support the allegation that the FBI or any intelligence agency placed a spy in the Trump campaign or otherwise failed to follow appropriate procedures and protocols.”

Originally published on The Resurgent

McConnell Plans To Pass Tax Reform With Only GOP Votes

Majority Leader Mitch McConnell has announced his intention to move forward on tax reform with no Democrat support. To advance the bill without a filibuster by Democrats, Republicans will need to use the Senate’s budget reconciliation process that requires only 51 votes for cloture.

“We will need to use reconciliation,” McConnell told reporters, adding that Democrats are “not interested in addressing” items that Republicans favor. McConnell referenced a letter signed by 45 of the 48 Senate Democrats in which they refused to consider tax plans that cut rates for “the top 1 percent” or that added to the deficit. At the same time, Democrats called for a bipartisan reform bill.

“I don’t think this is going to be 1986, when you had a bipartisan effort to scrub the code,” McConnell said. He added, “Democratic senators who did not sign the letter who may be open to pro-growth tax reform.”

Unlike healthcare reform, where no Democrats broke ranks to vote with Republicans, the failure of three Democrats to sign the letter on tax reform may represent an opening to Republicans. Joe Manchin (D-W.V.), Heidi Heitkamp (D-N.D.) and Joe Donnelly (D-Ind.) are all up for reelection in 2018 in states that Donald Trump won. They are expected to have tough re-election battles, which may inspire them to side with Republicans on the tax bill.

There are difficulties for the Republicans as well. McConnell faced heavy criticism from his own side for his heavy-handed tactics and secret drafting of the healthcare bill. The secrecy and rapid changes in the content of the bill apparently swayed some senators to vote against the Obamacare reform.

Grover Norquist, president of Americans for Tax Reform, recently told Politico that there was less disagreement among Republicans on tax reform than there had been on healthcare. Norquist claimed that the GOP was at “97 percent” agreement after the decision to drop the border adjustment tax on imports, adding, “It’s now a question of making it fit” within the rules for reconciliation bills.

Under Senate rules, reconciliations can be used to pass bills that increase the deficit, but, per the Center on Budget and Policy Priorities, senators can still block bills that are projected to raise deficits beyond the period that the budget resolution covers. Because scoring by the Congressional Budget Office often predicts that tax cuts will add to the deficit, these changes may be required to be temporary, probably less than 10 years, in order to be enacted as a budget reconciliation.

If McConnell and congressional Republicans can avoid the mistakes and division that they experienced in the run-up to the healthcare vote, they stand a slightly better chance of enacting tax reform. If Republicans can split off some Democrat votes to pass a bipartisan bill it would be a major victory for the Trump Administration and one that is sorely needed.

Originally published on The Resurgent

McConnell rejects ending filibuster

President Trump tweeted yesterday morning that voters should “either elect more Republican Senators in 2018 or change the rules now to 51%,” implying that the Senate should go nuclear once again and completely eradicate the filibuster rule. Senate Majority Leader Mitch McConnell (R-Ky.) was quick to respond.

“That will not happen,” McConnell told The Hill and other reporters as he rejected the president’s idea out of hand.

either elect more Republican Senators in 2018 or change the rules now to 51%. Our country needs a good "shutdown" in September to fix mess!

— Donald J. Trump (@realDonaldTrump) May 2, 2017

The filibuster, originally a Dutch term for pirates, goes back to the early days of the Senate per the Senate website. The filibuster was well established by 1841 when Henry Clay (Whig-Ky.) threatened to change Senate rules to allow the majority to vote to end debate. Clay was rebuked by Thomas Hart Benton (Democratic-Republican- Mo.) for his attempt to stifle the Senate’s tradition of unlimited debate.

The Senate did weaken the filibuster in 1917 when adopted Rule 22 which established a cloture vote. A vote of two-thirds of the Senate could end debate on a bill. The filibuster reached its current form in 1975 when the number of votes required for cloture was reduced to 60.

“There is an overwhelming majority on a bipartisan basis not interested in changing the way the Senate operates on the legislative calendar,” McConnell said, adding that the move would “fundamentally change the way the Senate has worked for a very long time. We're not going to do that.”

Removing the filibuster is tempting for some Republicans due to the slim GOP majority in the Senate. With only 52 Republican senators, at least eight Democrat votes are required for cloture on most bills. The need for cloture is a roadblock to much of the Republican reform agenda. In particular, Democrats are united against the repeal of Obamacare.

Nevertheless, elimination of the filibuster would be a double-edged sword that Republicans may soon regret. Over the past 100 years, the Democrats have controlled the Senate more than Republicans and the filibuster has enabled the GOP to halt Democrat action on many issues from gun control to cap-and-trade to public option health care. Without the filibuster, there would be no fail-safe the next time that Democrats hold a congressional majority.

“The rules have saved us from a lot of really bad policy,” said Senator John Cornyn (R-Texas). “I know we all are into short-term gratification, but it's a real mistake, I think, from a legislative standpoint.”

Senator Orrin Hatch (R-Utah) agreed. “Had we not had the filibuster, this country would have been gone a long time ago, gone straight to socialism,” he said on CNN.

Last month, Senate Republicans eliminated the filibuster for Supreme Court nominees, but a majority of senators say that further rule changes are unlikely. A bipartisan group of 61 senators sent a letter last month to Senate Leaders McConnell and Schumer (D-N.Y.) stating opposition to further changes. The Hill reports that Senators John McCain (R-Ariz.) and Susan Collins (R-Maine) have announced that they would oppose further changes. With two GOP senators already standing against elimination of the filibuster, any further defections would doom the plan.

For now, the filibuster appears safe, but pressure from the conservative base continues to mount and angry voters are urging Republicans to get things done with their majority. As frustration over Democrat obstructionism increases, calls to eliminate the filibuster will likely increase as well. 

Originally published on The Resurgent

Will Democrats Shut Down the Government?

Another year, another looming government shutdown.

This year it is Democrats who are threatening to shut down the government to block funding for President Trump’s border wall. Fresh from their victory in blocking reform of the Affordable Care Act, Democrats say that they will filibuster the annual appropriations bill if it includes money for construction of the wall. The bill must pass before April 28 to avoid a shutdown.

“I thought we were going to get a check from Mexico,” Senator Patrick Leahy (D-Vt.) said in Politico. He added that the wall will “accomplish nothing. That’s $30 billion that can’t go into cancer research, diabetes research and veterans care.”

In recent memory, it has been Republicans who have threatened to shut the government down. The most recent example in 2013 followed several shutdowns during the Clinton Administration. While Democrats have been guilty of fomenting shutdowns, we must look all the way back to 1990 for the last example of a Democratic Congress shutting down the government under a Republican president.

While government shutdowns are not uncommon, they also are not popular with voters. Virtually every poll that asks about a government shutdown shows the voting public overwhelmingly opposed to and angry at the prospect. While shutdowns can be popular among the partisan base, most voters want the parties to work together for the good of the country.

When the Republicans shut down the government for 16 days in 2013, they not only failed to achieve their goal of defunding Obamacare, they also saw the party’s approval rating fall to a historic low. A year later, Obamacare’s skyrocketing increases in health insurance premiums and chronic problems with registration on exchange websites saved Republicans from an electoral drubbing. They weren’t so lucky in 1996 when Republican-led shutdowns arguably cost Bob Dole the presidency and ushered in a second term for Bill Clinton.

If Democrats haven’t learned from past shutdowns, Republican leaders apparently have. “We're not going to have a government shutdown,” Speaker Paul Ryan (R-Wisc.) said on CBS last month. “The president doesn't want to have a government shutdown.”

Ryan suggested that the battle over appropriations for the wall could be delayed until next year since plans for the wall have not been finalized. “The big chunk of money for the wall, really, is...next fiscal year’s appropriations because they literally can’t start construction even this quickly,” he said.

Senate Majority Leader Mitch McConnell (R-Ky.) agreed, saying on Fox News that he was “very confident” that a shutdown could be avoided and argued that the Democrats had the most to lose from a potential shutdown. “I would advise President Trump: ‘Don't worry about them sticking that label on you. Congress owns the government shutdown brand,’” McConnell said. “There's no incentive, frankly, for either side to go to the brink.”

Republicans say they intend to keep controversial items out of the appropriations bill. Funding for the wall will be delayed and a measure defunding Planned Parenthood is likely to be inserted into the budget reconciliation, which cannot be filibustered. This may mean that Democrats are left with no hot button issues to demonize in the appropriations bill.

Nevertheless, Democrats in the past have shown a propensity for overreach. Overconfidence after the health care battle and an irrational emotional response to the mere existence of the Trump Administration could lead Democrats into a shutdown battle over nothing.

With President Trump’s approval rating at 35 percent in a recent Quinnipiac poll, Democrats would run the risk of blowback from a shutdown. The strategy might make the president more popular at their own expense. A maxim attributed to Napoleon is, “Never interfere with an enemy while he’s in the process of destroying himself.” Democrats would be smart to follow the French emperor’s advice. 

Originally published on The Resurgent

It's up to Democrats to save the filibuster

The Democrats cannot prevent Neil Gorsuch from taking his place on the Supreme Court, but how they decide to handle their opposition to his nomination will make or break the Senate’s filibuster tradition. If the filibuster, which has endured in the Senate for more than a century, is eliminated, it will be nobody’s fault, but their own.

The filibuster dates back to at least the 1840s. The early tradition of the Senate was to allow unlimited debate on legislation. In 1917, Senate rules were changed to allow for a cloture vote, in which a two-thirds majority of senators could stop a filibuster. The requirement was later lowered further to the current 60 votes.

The history of the filibuster of judicial nominees is more recent. According to the Washington Post, the filibuster of qualified judicial nominees began when Democrats held up George W. Bush’s nomination of Miguel Estrada to the Court of Appeals in 2003. After seven failed cloture votes, Estrada withdrew his name from consideration and a new Democrat tactic was born.

In 2005, a bipartisan group of Senators called the “Gang of Fourteen,” many of whom are no longer in office, compromised to allow a vote on several of President Bush’s nominees and averted a threat by Majority Leader Bill Frist (R-Tenn.) to end the filibuster for nominees. Senator John McCain (R-Ariz.) told CNN that the group agreed that filibusters of nominees would only be used in “extraordinary circumstances” and would “try to do everything in our power to prevent filibusters in the future.”

When Republicans used the tactic under President Obama in 2013, Majority Leader Harry Reid (D-Nev.) changed Senate rules to eliminate the filibuster of most presidential nominees, but left it intact for Supreme Court nominees. “The American people believe the Senate is broken, and I believe the American people are right,” Reid told the Washington Post at the time, “It’s time to get the Senate working again.”

At the same time, Reid also changed Senate rules to require only a simple majority vote to amend Senate rules rather than the traditional two-thirds vote required for major rule changes. Reid’s precedent makes it much easier to Republicans to change the Senate rules today.

Fast forward to 2017 and Democrats are threatening to filibuster another well qualified nominee. The Democrats do not have enough votes to defeat the Gorsuch nomination, but they do have enough votes to block the Senate from voting on him under current filibuster rules.

A Democrat filibuster would be an exercise in futility that would change the Senate forever.

Appearing on Fox News, Majority Leader Mitch McConnell (R-Ky.) said on Sunday, “We're going to confirm Judge Gorsuch this week.” Implicit in the remark is the promise that there will be a vote on the Gorsuch nomination, regardless of whether Democrats attempt a filibuster or not. McConnell will invoke the so-called “nuclear option” and change Senate rules, which require now only a simple majority vote to eliminate the filibuster for Supreme Court nominees.

For years, the policy of the United States has been one of “no first use” of nuclear weapons. Harry Reid’s decision to invoke the nuclear option in 2013 shows why. It becomes easier for other countries to use their own nuclear option when the situation warrants.

By eliminating the filibuster for most nominees, Harry Reid made it likely that the filibuster would be erased for the few exceptions that remained as well. There is little doubt among Republicans that, if the roles were reversed, the Democrats would eliminate the filibuster because they have already done so. McConnell and the Republicans feel that they have nothing to lose.

Some conservatives were even ready to trash the filibuster while Barack Obama was president in order to end the Democrat filibuster of Obamacare repeal legislation. At the time, this would have been pointless since President Obama would have vetoed the bill anyway.

If the filibuster is eliminated for judicial nominees, the next step in the escalation will be to eliminate it entirely. If this happens, the Senate will lose a valuable protection against a tyranny by the majority.

The Democrats can prevent this and save the filibuster simply by being reasonable. They should admit defeat and allow a vote on Judge Gorsuch’s appointment. They can vote “no” to appease their constituents and assuage their consciences.

In the end, a vote will be held and Judge Gorsuch will be confirmed. The only question is whether the filibuster will be a casualty of the confirmation fight. 

Originally published on The Resurgent

Republicans are breaking with Donald Trump

As President Trump’s missteps mount, some Republicans are starting to distance themselves from the two-week-old administration. The president has made many controversial moves including the temporary immigration ban, the newly contentious relationships with Mexico and Australia, Trump’s defense of Vladimir Putin and, not least of all, his attacks on the judges who ruled against his immigration Executive Order. One of the most high-profile Republicans to break with President Trump is Senate Majority Leader Mitch McConnell (R-Ky.).

Over the weekend, McConnell told CNN, a network that Trump Administration officials no longer appear on, that he disagreed with the president on several important points. McConnell said that he didn’t want to “critique the president’s every utterance,” but then offered his critique on several recent utterances.

Responding to Mr. Trump’s defense of Vladimir Putin, Sen. McConnell offered unequivocal condemnation of the Russian president. “He [Putin] is a thug. He was not elected in a way that most people would consider a credible election,” McConnell said. “I don’t think there’s any equivalency between the way the Russians conduct themselves and the way the United States does.”

McConnell also disagreed with Trump’s angry tweets attacking judges who overruled his immigration ban. “I think it’s best not to single out judges for criticism,” McConnell said. “We all get disappointed from time to time…  but I think it’s best to avoid criticizing judges individually.”

Mr. McConnell also expressed a lack of support for President Trump’s call for an investigation of alleged voter fraud during last year’s election. “I don’t think we ought to spend any federal money investigating that,’’ McConnell said. “We ought to leave that at the state level.”

State elections officials have found no evidence of massive fraud in the election. Even the White House seems to be quietly allowing the voter fraud claim to die without President Trump’s promised investigation.

Some Republicans started to break with Trump after his immigration ban was unveiled. Representatives Charlie Dent (R-Pa.) and Justin Amash (R-Mich.) took issue with the Executive Order’s broad reach that prevented legal residents and green card holders from reentering the United States. In Politico, Rep. Dent described a family of Syrian Christians in his district who had immigrated legally, “yet were detained at the Philadelphia International Airport and then forced to leave the country as a result of the Executive Order. This family now faces the uncertain prospect of being sent back to Syria.”

President Trump’s minimizing of Vladimir Putin’s murderous history has inspired more Republicans to take a stand as well. Senators Ben Sasse (R-Neb.) and Marco Rubio (R-Fl.) condemned Trump’s comment that, “We have a lot of killers… You think our country is so innocent?”

Not all Republicans are breaking with the president though. On CBS, Vice President Mike Pence denied that Trump had established a moral equivalency between Russian authoritarianism and the United States. ““I simply don’t accept that there was any moral equivalency in the president’s comments,” Pence said. “Look, President Trump throughout his life, his campaign, and in this administration has never hesitated to be critical of government policies by the United States in the past. But there was no moral equivalency.”

Speaker of the House Paul Ryan (R-Wisc.) has also been hesitant to directly criticize President Trump since the election. In spite of their policy differences, Ryan has taken the middle road by couching his criticism of the president is very specific, factual terms.

Speaker Ryan told NBC, “This president is hardly the first one to express frustration with the judicial branch. What's important is his administration is complying with the ruling and taking the proper steps to resolve the issue quickly. This is our system of divided government, and I'm confident that when the process runs its course the order will be upheld.”

Originally published on The Resurgent

Winning Republican strategies for 2015

Since the recent failure of the Republican attempt to defund President Obama’s executive immigration amnesty, much has been written, most of if it unflattering, about the future of the Republican Party. Many on the Tea Party right doubt the “backbone” of the Republican leadership and question their commitment to opposing President Obama’s policies.

What these critics do not provide is an answer to how the Republicans can overcome the Democratic filibuster that derailed the attempt to defund the amnesty. The problem was not “lack of backbone” on the part of the Republican leadership. The problem was mathematics. The Republicans lacked the 60 votes required by Senate procedural rules to end a filibuster.

The Republicans have a majority in both houses of Congress, but the majority is only meaningful if conservatives understand that it is a limited majority. Voters vested control of the Senate and House of Representatives with the Republicans, but they did not issue them a carte blanche to impose a conservative agenda.

The Republican majority is limited in two important ways. First, Senate rules require 60 votes for cloture to end debate on a bill. The Republicans have only 54 votes so it is axiomatic that a cloture vote will require at least six Democrats. Second, the Republicans are limited by President Obama’s veto. Even if a bill passes both houses of Congress, the president can veto it. Congress can override a presidential veto, but this requires 67 votes in the Senate and 288 in the House. Democratic votes (13 in the Senate and 41 in the House) would be required. To avoid wasting two years of a majority, Republicans need to take these limitations to heart and adapt a strategy to defeat them.

The first step is in casting aside unworkable strategies of the past. Defunding is a dead idea that should not be considered in the future. As with any other legislation, the idea is unworkable without a bipartisan majority. If Republicans have the votes to defund something, it would be better to simply repeal it outright.

Shutting the government down as a consequence of the House’s “power of the purse” has also proved unsuccessful in the past. A government shutdown is useful only as leverage if Democrats want to keep the government open. With a president who relishes the idea of using a shutdown to pummel Republicans, the strategy of a shutdown is pointless masochism. Republican leaders have quite sensibly rejected this course.

A successful Republican strategy will require one thing above all: a bipartisan majority. No conservative legislation can become law without Democratic votes. Republicans must peel off at least six Democratic senators for cloture and 13 to override Obama’s veto. This is a mathematical and constitutional fact. The question is how to do so.

The answer is to learn from the Democrats themselves. The Democrats in Congress have been successful because they stay united and split the Republicans over divisive issues like immigration. Republicans should ask themselves what issues can be used to divide the Democrats.

One such issue is the medical device tax imposed by Obamacare. This very unpopular tax is imposed on the manufacturers of such items as prosthetic limbs and pacemakers. It threatens thousands of American jobs as well as hurting the sick and disabled. There is bipartisan support for a repeal of the medical device tax, if not for Obamacare in its entirety.

If Republicans bring a repeal of the medical device tax to vote in Congress, Democrats would be forced to choose between voting to tax the sick or deserting to the Republican side. If the vote passes, Obama must allow it or publicly defend a veto. In either case, a vote to sustain the tax would be fodder for campaign ads by Republican challengers.

A second method for creating a bipartisan majority is to sweeten the pot with a compromise. Bill Clinton famously said that the Constitution could be subtitled “let’s make a deal.” If Republicans want to pass their agenda, they must induce the Democrats to vote with them, rather than simply expecting them to bow down before superior numbers.

One area where such a concession could be made is on the minimum wage. The minimum wage is an issue where the public supports the Democratic position. Recent polling has found strong support for raising the minimum wage, even in red states. In the 2014 elections, voters in four states that sent Republicans to the Senate enacted increases to their state minimum wages.

Trading a modest increase in the federal minimum wage for Democratic votes on Republican bills is a compromise that would defuse a popular Democratic issue while, at the same time, helping to advance conservative policies. The Republicans should not give in to a sharp increase in the minimum wage to $10 or $15 per hour, but a modest increase to the $8 to $9 range could be phased in over time.
Numerous studies, including one that looks at unemployment during the Great Recession, have shown that raising the minimum wage hurts low-skilled workers, but the economic effects of a modest increase to the minimum wage would be negligible. Thirty states already have minimum wages that are higher than the federal minimum wage according to the National Conference on State Legislatures. At least 14 states have already enacted or scheduled minimum wages that are $9.00 per hour or higher. Further, a 2013 study of minimum wage earners by the Bureau of Labor Statistics found that only 4.3 percent of workers earn the minimum wage. An increase to the minimum wage would affect few workers in a small number of states.

Negative effects on the economy could be further minimized by incorporating a separate minimum wage for teenagers. The BLS study reports that only three percent of workers over age 25 earn the minimum wage, compared with 20 percent of teenagers. Instituting a lower minimum wage for teens would protect their ability to find entry-level, part-time jobs.

For Obama’s executive immigration amnesty, the contentious issue that led to the almost-shutdown of the Department of Homeland Security, there is the low-yield nuclear option. In the Wall St. Journal, Curt Levey, a constitutional attorney with the Committee for Justice, called on Republicans to block Mr. Obama’s judicial nominees until he reneges on his executive action.

Blocking Obama’s appointees has many advantages that defunding lacked. First, it is possible. The Democrats cannot block the Republicans from blocking confirmations. There is no cloture or veto of a blocked confirmation. This strategy negates the two weapons that the Democrats hold.

Second, blocking confirmations is a win-win for Republicans. The optimal outcome would be that Obama reverses his executive action, which would be tantamount to surrender. If he stands firm, however, his nominees will never be seated as judges. This means that there will be more judicial openings for the next president, hopefully a Republican, to fill.

Finally, the potential for blowback is small. With a government shutdown, Republicans always take a hit in public opinion and lose support. That’s why Democrats try to goad them into that course of action. Blocking nominees is much lower profile and would not be noticed by most Americans. There would be no closed offices or parks and no furloughed workers to show on television. Lawyers who cannot get appointed to cushy jobs in federal courts are not sympathetic figures.

Many critics of the Republicans ask, “What was the point of winning the election?” if the Republicans can’t enact their agenda. The election gave the Republicans an advantage; it did not give them the ability to dictate terms to the Democrats.

The Republicans can use their majority over the next two years to further the conservative agenda and roll back pieces of Obama’s legacy, but to do so they must adopt realistic strategies that play to their strengths and work around those of the Democrats. Winning Republican strategies divide the Democrats, not themselves.

 

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Why the Republicans couldn’t defund DHS

It’s not lack of principles, stupid!

The failure of the Republican majority in Congress to defund President Obama’s executive amnesty this week has once again engendered bitterness among some conservatives toward the party’s leadership. Accusations that John Boehner and Mitch McConnell caved to Obama’s pressure are widespread, but the true cause of the failure to can be found within Senate traditions and the Constitution itself. The Constitution may also provide the ultimate solution to Obama’s executive overreach.

Because the authors of the Constitution distrusted a strong central government, they made it difficult to enact new laws. Because the framers worried that the majority might tyrannize a minority, they gave the president veto power over laws passed by Congress and the courts the right to strike down laws judged to be unconstitutional. Democratic filibusters must also be considered by Republican leaders, but it is the presidential veto that holds the greatest threat to the Republican agenda.

Cloture, filibusters, and vetoes! Oh, my!

Under the Constitution, the House and Senate pass bills with a simple majority vote, but the Senate has traditionally allowed unlimited debate before a vote. The strategy of a filibuster, a prolonged speech to prevent a vote, has long been used by minority senators to prevent those in the majority from passing legislation. Filibusters no longer require longwinded speechmaking. Under current Senate rules, to end debate on a bill, senators must first vote for cloture. According to the Senate website, the cloture rule was intended to give senators a means to overcome filibusters and dates back to the Woodrow Wilson Administration. Originally, the rule required a two-thirds vote to end debate on bill, but this was changed to three-fifths, 60 votes, in 1975. A filibuster is now merely the inability of the majority party to get enough votes for cloture.

What the cloture rule means to conservatives now is that, since Republicans hold 54 Senate seats, they will need at least six Democratic votes to invoke cloture and bring bills to a vote. If the Democrats remain united, they can deny the Republicans the ability to bring their agenda to a Senate vote, in which case it can never become law. This was the case with the attempt to defund DHS.

Bills that are passed by both the House and Senate face another constitutional hurdle before becoming law. According to the Constitution, bills passed by Congress then go to the president where they can become law in one of two ways. First, the president can sign the bill and it immediately becomes law. Second, the president can do nothing and the bill will become law in 10 days as long as Congress remains in session.

The president can also reject, or veto, the bill. For a regular veto, the president sends the bill back to Congress with a message describing why the bill was vetoed, as in President Obama’s veto of the Keystone pipeline. More rare is the pocket veto. If Congress adjourns before the 10 days is up and the president fails to sign the bill, the bill never becomes law.

The drive to override

Congress can override a presidential veto. When the president returns the bill to Congress, the bill can still be passed without the president’s approval. Overriding a veto requires a two-thirds vote of the members present. A bill that is subject to a pocket veto simply dies and cannot be overridden. It must be debated and passed again by the next Congress.

In the current Congress, overriding a veto would be difficult in spite of the historic Republican majority. Assuming all congressmen were present, a two-thirds majority would require 67 Senate votes and 288 House votes. This means that 13 Democratic senators and 41 Democratic representatives would have to vote against the president even if all Republicans were united. The Congressional Research Service reports that between 1789 and 2004 only 106 of 1,484 regular vetoes were successfully overridden, a seven percent success rate.

Most of President Obama’s signature pieces of legislation were passed in his first two years when the Democrats held control of both houses of Congress, but Democrats in 2009 through 2010 also had an important advantage that today’s Republicans lack: a president who would sign their legislation into law. As Republicans try to roll back Obamacare and other Obama-era legislation, they have the opposite situation, a president who will viciously wield the veto pen to preserve his legacy. Barring a major break between the Democrats in Congress and President Obama, it is unlikely that any presidential vetoes will be overridden.

Flank attacks

Two strategies have been floated by Republicans to outflank the Democratic obstruction. Rep. Mo Brooks (R-Ala.) recently called on Republican leaders to invoke the “nuclear option” and totally eliminate the filibuster. In 2013, Senate Majority Leader Harry Reid (D-Nev.) changed the rules to eliminate the filibuster for the confirmation of presidential appointments. According to the Washington Post, the filibuster still stands for bills, but not for votes on presidential nominees.

Eliminating the filibuster would allow Republicans to pass the bill in the Senate, but the plan has two major flaws. First, the larger hurdle, President Obama’s veto, would remain so any successes would be short-lived. Second, the Republicans will one day need the filibuster themselves since it is unlikely that any Senate majority will ever be permanent.

A second strategy would be to use a budget reconciliation, the tool used by Harry Reid to pass Obamacare, to pass conservative legislation. As former New Hampshire senator Judd Gregg explained in the Wall St. Journal, a budget reconciliation requires only 51 votes but the circumstances where it can be used are extremely limited. Additionally, the final budget bill would still be subject to a presidential veto.

The Keystone model for success

Sheer numbers and constitutional processes make it unlikely that a direct frontal assault against President Obama will work. A more likely strategy is for the Republicans in Congress to seek areas where they can find common ground with moderate Democrats as they did with the Keystone pipeline. Winning even a few Democratic votes would force Obama to either use his veto or allow the bill to become law, putting pressure squarely on the president.

While it is possible – or even likely – that President Obama will veto a bipartisan bill, doing so would change the dynamic in Washington. Since Republicans took control of the House in 2011, the Democrats have derided them as obstructionists who do nothing more than say “no.” When President Obama uses his veto power or Senate Democrats use the filibuster, it will be the president who is obstructing the will of the people.

The Republicans made a massive strategic blunder in the battle over DHS funding when House Republicans chose not to focus solely on President Obama’s illegal amnesty, a tactic that might have won some Democratic allies. Instead, the Wall St. Journal notes that the bill included several amendments to repeal Mr. Obama’s less controversial moves on immigration going all the way back to 2011. As a result, the Democrats were united and a few Republicans even voted against the bill.

The last line of defense

Further, as Karl Rove notes, the decision of a Texas federal court judge blocking Obama’s amnesty removed the need to defund the DHS in the first place. The courts have at least temporarily stopped Obama’s executive action where Congress could not. The possibility remains that the injunction will be made permanent and the president will suffer an embarrassing legal defeat.

Although the courts have been weakened by the appointment of judicial activists to the bench, including four to the Supreme Court, the judicial power to declare Obama’s actions unconstitutional is the best hope. The potential threat to Obama’s agenda may be why a Rasmussen poll recently found that 43 percent of Democrats feel that Obama should be able to ignore the courts.

While the election has not given Republicans a carte blanche to impose their policies and reverse Obama’s, it has given them a far stronger hand than they previously held. Republicans must decide whether to squander this advantage on a pointless and unwinnable fight or whether to build a bipartisan majority that can actually accomplish the work of the people.

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