When does majority rule? That’s the question this week, whether in Washington or Augusta.
The Senate is poised to eliminate the filibuster on Supreme Court nominees, because a 55-member bipartisan majority believes Neil Gorsuch is a well-qualified jurist. Those on the left, including Angus King, believe the hurdle should be a 60-senator majority.
Meanwhile, in Maine, lobbying organizations on the left are fighting proposals to restore tipped wages eliminated by their $2 million minimum wage campaign in November. They argue that a majority voted for it at the polls, and therefore a majority of the Maine Legislature should not reconsider the matter.
So which majorities should win?
Well, in Washington, one senator suggested “[i]f we bring this nomination to the floor and there’s a request for 60 votes — which we are not going to get — I think it is time for…leadership to do what the American people want, and that is to have a majority rule in the United States Senate.”
Can you guess who said it? Susan Collins? John McCain? Tom Cotton?
Nope. Bernie Sanders.
The sentiment was offered in 2013, when the GOP minority threatened a filibuster against President Obama’s choice to lead the EPA, citing a need for more information and accusing the nominee of being less than forthcoming. At that time, Republicans pointed to Democrats’ 2003 boycott of President Bush’s EPA nominee — when they stated they did not have sufficient information — as precedent.
Sen. Sanders’ suggestion was certainly a solution to the Gordian knot of political one-upmanship: cut through the minority’s ability to slow things down by changing the rules. And of course, with a 53-member majority in 2013 the Democrats — accompanied by Angus King — did just that.
However, like the fabled gladiators whispering warnings in the ears of returning Roman generals, three Democratic senators had sided with the GOP against the abolition of the filibuster. They cautioned their colleagues that fortunes would reverse themselves one day.
That day has now arrived. And as sure as the sun rising in the east, Democrats are now offering pithy quips to try and defeat Judge Gorsuch. The catchiest? “If you can’t get 60 votes, don’t change the rules, change the nominee!”
It’s clever, but it might be more credible if the current Supreme Court met that standard. But in 2006, Justice Samuel Alito won confirmation to serve on the Supreme Court with just 58 votes; 40 Democrats, one independent and a Republican (who is now a Democrat) opposed Alito’s nomination despite his “well qualified” rating from the American Bar Association.
I would refer Democrats back to Sen. Sanders’ suggestion from 2013, and suggest those on the left in Maine follow the same vein. Ours is a representative republic. We empower officials to spend hours — and, in the case of the tip credit debate, hours and hours — vetting ideas, policies, nominees, and proposals. Ultimately, a majority of those hired to do that job should be able to act.
When it comes to protecting the rights of the minority, our system provides checks and balances. We split the legislative power between two separate bodies to try and force reasoned consideration. Executives are elected and empowered with the veto to slow or halt bad policy. And the constitution, whether at the state or federal level, enshrines certain rights and empowers a judicial branch to thwart majority rule when it runs afoul of those protections.
The referendum process does not change those facts. When laws are passed at the ballot box, they are subject to amendment or repeal after further consideration like every other statute. Just because an organization can raise $2 million for signatures and TV ads does not make its favored policy sacrosanct. So while referendum questions may have received a majority of votes, so too did the 186 senators and representatives working in Augusta.
In short, Bernie is — well, was — correct. Extra-constitutional protections, like the filibuster in the Senate or decreeing referendum questions un-amendable, needn’t be part of our system. We entrust our government to elected officials, and we should expect them to do their job.
If we don’t like how they are doing it — whether abolishing filibusters, affirming Gorsuch, or amending referendums — then we vote them out at the ballot box; that power remains with the people. Or if you think Supreme Court justices should truly require 60 votes or that referendum questions should actually be exempt from change, then call for constitutional amendments setting those standards. At least the arguments would then be credible.
Until then, majorities in the United States Senate and Maine Legislature should do their job.