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Op-ed Placement

Democrats Don't Like the Rules, So They're Trying to Change Them

Originally Published in The Washington Examiner on 10/5/20.

Joe Biden may not be Bernie Sanders or Elizabeth Warren, but it’s clear his approach to the presidency would fundamentally change America for the worse. Of course, his economic agenda brings a lot of problems that would lead to fewer opportunities for all, but it’s Biden and his fellow Democrats’ approach to our institutions that will bring serious, long-term negative consequences.

Lost in the cacophony of noise during Tuesday’s debate with President Trump was Biden declining to answer a question about whether or not he would seek to add more justices to the Supreme Court and eliminate the filibuster for legislation. “Whatever position I take on that, that’ll become the issue,” Biden said, adding in response to Trump’s prodding, “I’m not going to answer the question.”

Over the past four years, the media have frequently told the public that Trump is undermining “democratic norms.” But Biden’s refusal to answer Chris Wallace’s question suggests that Biden is prepared to seek extreme changes to the way the Senate operates that would get rid of any roadblocks for his domestic policy agenda. How does this not undermine these “democratic norms” that we’ve heard so much about?

The United States is not a direct democracy. The framers of the Constitution went to great lengths to avoid a democratic form of government. James Madison discussed this at length in Federalist No. 10 when he examined the “problem of faction.” Madison described factions as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Madison and other framers realized that democracy would encourage faction and be a destructive force to a nascent country. “Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property,” Madison wrote, “and have in general been as short in their lives as they have been violent in their deaths.”

These concerns about democracy were why the framers, very specifically, opted to make America a republic, which, as Madison explained, had a way of “controlling [the] effects” of faction.

Traditionally, the Senate has respected minority rights. Only in recent years, at different times under Democratic and Republican control, has the chamber began to undo these traditions. The filibuster for most nominees named by a president was eliminated in November 2013 under Democratic control. The filibuster for Supreme Court nominees was nixed in April 2017.

The filibuster has been criticized for being a roadblock to legislation. Although it takes a simple majority to pass ordinary pieces of legislation in the Senate, there’s a procedural step along the way, known as cloture, that the Senate has to get through to limit debate on legislation. The Senate needs three-fifths of the Senate, or 60 votes, to invoke cloture. There are special, fast-track processes for certain bills, such as joint resolutions to cancel regulations from federal agencies, trade agreements, and revenue measures that don’t have specific policy changes. But these are rare examples.

Trying to get 60 votes for legislation is difficult and often frustrating. The filibuster is a roadblock to many good bills. But the Senate is known as the “world’s greatest deliberative body.” Passing legislation isn’t supposed to be easy. The filibuster was designed to build consensus and protect minority rights. It’s a feature, not a bug of the legislative process in the Senate.

We’re also seeing far-left Democrats threaten to add more Supreme Court justices, harkening back to President Franklin Roosevelt’s attempt to pack the Supreme Court when justices were rejecting major parts of his New Deal legislation. Currently, federal law allows for only nine justices, but Democrats are threatening to add more justices because the court may soon tilt more in a conservative direction.

Even the late Justice Ruth Bader Ginsburg thought packing the court was a bad idea. “Nine seems to be a good number. It's been that way for a long time," Ginsburg said in a July 2019 interview. "I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”

Although Biden hasn’t weighed in on the National Popular Vote Interstate Compact, 15 states, totaling 187 electoral votes, have passed legislation to mandate that their electoral votes will go to the winner of the popular vote. The states have joined the compact, which hasn’t been approved by Congress as required by the Constitution, are traditionally Democratic states. The end goal of the compact, though, is to do an end-run around the Constitution and give higher-population areas more power over determining who sits in the White House.

Democrats don’t like the rules, so they’re trying to change them. Biden’s failure to answer a basic question speaks volumes about his and Democrats’ plans if they have control of the White House and Congress. Turning America into a direct democracy will eventually be our undoing as a nation.

*Adam Brandon is the President of FreedomWorks. *