Whatever happened to democratic norms? Free speech, the filibuster, nine Supreme Court Justices, and fifty states, suddenly aren’t norms?

Freedom of speech, a norm since 1791.  Filibusters since 1837.  Nine Justices on the Supreme Court since 1869.  50 states since 1959.  All are currently on the chopping block.  It’s almost enough to make you think the raging against Donald Trump breaking political norms was just hard-nosed politics and ginned up outrage.

Less than two weeks ago, in the twilight days of Donald Trump’s Presidency, democratic norms were all the rage, or more precisely President Trump’s failure to comply with those norms.  The Washington Post claimed, “Trump’s contempt for democratic norms could haunt for years,” even providing a handy “The definitive list of the 20 presidential norms Trump broke.”  The Guardian reported “‘Our democracy is deeply imperiled’: how democratic norms are under threat ahead of the US election.”

In December of 2019, Professor Michael Klarman at Harvard Law School identified ten norms Trump supposedly broke, claiming “The topic of this article is not politics or policy but rather democracy.”  Among the norms that Trump “fails to comply with or outright repudiates,” Professor Klarman noted support for a free and independent press, not using the legal system to attack political opponents, respect for an independent judiciary, and the importance of independent actors within government.

Wow, what a difference a couple of weeks makes:  These very same norms, and others established over decades, even centuries, are now under an outright assault and some of the very same people who accused Trump of being a norm-breaker on a regular basis want to do the breaking this time around.

Freedom of speech and freedom of the press has been a democratic norm, enshrined in the Bill of Rights, since December 15, 1791.  You cannot get more normal than that in the United States, and yet the principle itself is now in question.

Don’t believe me?

Former Democrat Presidential Primary Contender, Tulsi Gabbard, tweeted on Tuesday, “The mob who stormed the capitol to try to stop Congress from carrying out its constitutional responsibilities were behaving like domestic enemies of our country.  But let us be clear, the John Brennan’s, Adam Schiffs, and the oligarchs in Big Tech who are trying to undermine our constitutionally protected rights and turn our country into a police state…are also domestic enemies — and much more powerful, and therefore dangerous than the mob which stormed the capitol.”

Ms. Gabbard was responding to two recent trends:  The complete abandonment of free speech norms by Big Tech, the broader media, and even some in Congress, and the simultaneous rejection of search and seizure protections in the push for ever more intrusive domestic surveillance.

For example, Nicholas Kristof at the New York Times and Max Boot of the Washington Post are targeting Fox News.  Kristof writes, “I’d like to see pressure on advertisers to withdraw from Fox News so long as it functions as an extremist madrasa, and cable providers should be asked why they distribute channels that peddle lies.”  Boot suggests “large cable companies such as Comcast and Charter Spectrum, which carry Fox News and provide much of its revenue in the form of user fees, need to step in and kick Fox News off. And if smaller competitors such as One America News and Newsmax continue to incite viewers, they, too, should be booted off.”

Not to be outdone, Anand Girdhardardas of MSNBC asks, “Should Fox News be allowed to exist? Brain-mashing as a business model shouldn’t be legal.”  Jim Acosta, on CNN of all places, claimed “until that poison, that toxin is drained from the national political discourse in this country…I do think that these forces represent a potential existential threat to this country…”

This push is accompanied by increasing demands within the government to police the speech of certain groups.  In 2019 Rep. Adam Schiff introduced a domestic terrorism bill that would make it a federal crime to commit violent acts “with the intent to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government.”  In order to enforce this policy, the government, in collaboration with Big Tech, would massively increase surveillance on US citizens, including their speech.

Translation:  The Fourth Amendment, requiring warrants for search and seizure, another long standing democratic norm would be shredded.

The filibuster is another centuries old tradition.  The rules that make it possible were agreed upon in 1806, though some claim the Senate was tricked into adopting these rules by Vice President at the time Aaron Burr, fresh off his duel with Alexander Hamilton.  Regardless, the first filibuster was mounted in 1837.

In recent years, however, the long standing practice, the democratic norm if you will, has been an increasingly tempting target.  The common parlance is that it should be “nuked.”  First, in 2013, then Senate Majority Leader, Democrat Harry Reid, killed the filibuster for most Presidential appointments outside the Supreme Court.  In 2017, then Senate Majority Leader, Republican Mitch McConnell, followed suit and ended the filibuster for Supreme Court Nominees as well.

Interestingly, Harry Reid was largely egged on by the media at the time.  William Yeomans, writing for Politico, said “Nuke ‘em, Harry:  Why Democrats Should Kill the Filibuster.”  Oddly, there was no such desire when McConnell was in charge and Republican nominees could be pushed through with little opposition.  Then, NPR said “Senate Pulls ‘Nuclear Trigger” To Ease Gorsuch Confirmation.”

Though the filibuster seems safe for the moment after Arizona Senator Kyrsten Sinema and West Virginia Senator Joe Manchin, both Democrats, expressed opposition to ending it, the future remains unclear.  As the Associated Press reports, “While the crisis appeared to have resolved, for now, the debate over the filibuster — the procedural tool that requires a 60-vote threshold to advance most legislation — is far from over. Progressive Democrats see the tool as an outdated relic that can be used by the minority Republican Party under McConnell to derail Biden’s agenda, and they want to do away with it.”

Once again, the media, especially far left outlets are leading the charge.  CNN, supposedly a down the  middle organization, described the dispute, colorfully, as “Senate Democrats are refusing to buckle to demands from Senate Republicans,” reframing ending the practice as the real democratic norm instead of it’s opposite.  Amanda Marcotte, writing for the more liberal Salon.com claimed “There is nothing unifying about telling the majority who backed Biden that they’ll get nothing for all their effort” and advocated upending the long standing norm.

Turning our attention to the Supreme Court, there have been nine Justices on the court since 1869, but, you guessed it, that norm no longer matters, either.  Do you see a pattern here?

Yesterday, we learned that President Joe Biden is forming a “commission” to study “court reform.”  One of the members of the commission is Caroline Frederickson, the former President of the American Constitution Society.  As reported by Politico, “Fredrickson has hinted that she is intellectually supportive of ideas like court expansion. In 2019, she said in an interview, “I often point out to people who aren’t lawyers that the Supreme Court is not defined as [a] ‘nine person body’ in the Constitution, and it has changed size many times.”

Biden himself infamously refused to take a stand on the issue during the campaign, leaving the door open that he could mint and then pick new justices, a move that would self-evidently push the court to the far left with only Democrat votes.  Perhaps needless to say, progressives and some in the media are fond of the idea.

In fact, a coalition of liberal groups called “Unrig the Courts” was formed just this week to pressure the President on a potential court-packing scheme.  Buzzfeed News reported the group has “the goal of building public support and political momentum for dramatic structural changes…They’re advocating adding seats to the Supreme Court and the lower courts, and imposing term limits and more stringent ethics and transparency rules for the high court’s justices.”

Likewise, we’re also talking about adding new states to the Union, despite that it’s been over 60 years since we’ve done so.

Alaska and Hawaii became the 49th and 50th states in 1959.  Today, we’re talking about Washington DC and Puerto Rico.  Representative Eleanor Holmes Norton, a Democrat of course, introduced a bill to make Washington DC the 51st state.  She estimates the bill has 200 cosponsors in the House.  Senator Tom Carper has introduced a companion bill in the Senate.  The move is also supported by Joe Biden, who tweeted last year “DC should be a state.  Pass it on.”

“There’s never been a time when statehood for the District was more likely,” Norton said in a statement.  “We’re ready to achieve voting representation and full local self-government for the 712,000+ residents of the District of Columbia.” The reason for the push by Democrats is simple: They believe new Senators elected from these new states would be Democrats. They certainly wouldn’t be making this push if they thought 2 or 4 new Republicans would join the Upper Chamber.

To be sure, most people believe these efforts will falter in the Senate because the filibuster requires 60 votes for passage, but others are not so sure. Even assuming the filibuster survives, there is an option under a process called reconciliation.  Reconciliation only requires a simple 51 vote majority and is normally used for the budget and taxes, but sometimes it’s been stretched.  In 2010, for example, Senate Democrats used it to pass the final versions of the Obamacare bill.

The question here hinges on a little understood role in the Senate, the Parliamentarian.  The Parliamentarian, currently Elizabeth MacDonough who has been in the role since 2012, decides if a bill can be passed under reconciliation or not, usually based on its budget impact.  The Parliamentarian’s decisions are final according to democratic norms, except when they’re not.  The Senate Majority Leader in 2001, Republican Trent Lott, fired Robert Dove from the post after he blocked more than one reconciliation bill in a year.  The Vice President can also overrule the Parliamentarian, something that hasn’t happened since 1975.

Vox.com and others are already claiming DC statehood is in the “grey area” for a reconciliation bill, meaning you might be able to make DC a state with merely 50 Senators voting for it and Vice President Harris breaking the tie.  How that’s possible when reconciliation bills, in Vox.com’s own words, “must affect federal spending or revenue — and their effect on spending or revenue must be ‘more than incidental’ to their policy impact” they don’t say, but that’s not the point:  The decades long norm of 50 states is now also in progressive’s, and the supposedly moderate President’s, cross-hairs.

Freedom of speech, a norm since 1791.  Filibusters, a norm since 1837.  Nine justices on the Supreme Court, a norm since 1869.  50 states, a norm since 1959.  All are currently on the chopping block.  It’s almost enough to make you think all the raging against Donald Trump breaking political norms was just hard-nosed politics and ginned up outrage.  Isn’t it?  

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