How to Get Franken Seated Now: Nuclear Joe Biden

How to Get Franken Seated and hoist the GOP on its Own Petard.

To no one’s surprise, Senate Republicans have declared that they will filibuster any effort to seat Al Franken before Norm Coleman’s several lawsuits have traveled through every Minnesota and federal court in the land.

Now might be the time to cut them off at the knees, and one key player would be Senate President Joe Biden, whose power extends to making parliamentary rulings. Biden can and should rule that Republican efforts to block this seating are unconstitutional.

Here’s how it would work:

1) Powell v. McCormack says that the Senate can only judge the qualifications of members to serve in the Senate; it can’t decide that it doesn’t like someone, or thinks that they are corrupt to prevent their seating. If corruption is an issue, then they have to use the constitutional requirement of expelling them with a 2/3 vote.

2) However: in making the determination whether someone is “qualified” to serve, i.e. has been duly elected, the Senate must act with a standard of good faith and objective reasonableness–they can’t raise frivolous points, claim that there is an issue, and thus refuse to seat someone. Doing so would eviscerate Powell because it would allow any group of legislators to refuse to seat someone and claim that it is because of their grave doubts about the election’s legitimacy.

3) At this point, the Senate Republicans’ position fails the standard of objective reasonableness. Coleman’s lawsuits are frivolous: the only way that he can hope to win is through clearly biased cherry-picking of ballots.

4) Because the Republican position has failed the objective reasonableness standard, the Senate must actually vote to seat Franken. Refusing to vote would fail the Powell standard, as would voting against.

5) Thus, filibusters are not in order, and all that is required is a simple majority.

6) QED.

Such an argument is actually much more tenable than the GOP’s absurd constitutional argument that filibustering judicial nominations is unconstitutional–a position that they have now conveniently forgotten. It applies to particular situations, where Congress’ powers are textually delimited, and where the US Supreme Court has circumscribed this power.

That said, I suspect that during the next session, Senate President Biden might be called upon to make a lot of rulings of this type. The filibuster will die by a thousand cuts, and maybe that’s a good thing.


PS: This seating should be provisional, of course: although Coleman’s position is not objectively reasonable, other rulings by the courts could overturn the canvassing board’s decision, in which case of course Biden’s ruling would also be overturned.

Update: Shortly after writing this post, I wondered whether anyone would be so foolish to attack it by saying, “Biden isn’t Senate President NOW–he won’t be until January 20th. You’re dumb. Nyah. Nyah. Nyah.” Of course by the context it’s obvious that this is designed for post-Inauguration. No one could be that clueless. But never fear: Red State always comes through.

Progressives and Trade Policy

We still don’t know whom Obama will choose for US Trade Representative, although most people have identified Representative Xavier Becerra as the prime candidate. (For the bean-counters among you, Ken Salazar’s appointment to Interior might indicate that it won’t be Becerra, because Obama is putting other Latinos in the Cabinet.).

Predictably, some right-wingers are upset.

“It’s troubling; to oppose Nafta is in many ways to lash out symbolically against trade,” without understanding the benefits of that agreement says Philip Levy, a former Bush administration trade official now with the American Enterprise Institute. “You want the chief person who has to make the case to the American public for trade to recognize what those agreements did.”

In addition to the obvious point that no one should pay any attention to anything that comes out of AEI (with a few exceptions), there are two and a half important points to be made on progressives and trade.

1) The Bush/Rove Administration pursued the most relentless partisan warfare in the postwar period. It’s standard line was that Democrats are effeminate social deviants who want to turn the US into Islamistan. In trade, the Administration excluded Democrats from the domestic negotiations altogether. In that context, Democrats were well within their rights to refuse to make a tough vote on trade. My Congressman, Howard Berman, who is very pro-free trade, voted against CAFTA. Many Democrats who supported trade during either the Clinton or Bush I administrations were not prepared to do the White House a favor on this one.

2) The evolving progressive position that many (including myself) support is the notion of the “grand bargain” in which further international trade liberalization is accompanied by stronger domestic protections for American workers (whether through labor law or health care). In other words, trade deals are not so much opposed but used as bargaining chips. The Bush Administration, of course, refused to do this, and thus the Democrats balked. That doesn’t reflect a protectionist position as much as it demonstrates tactical opposition.

3) This is the half point. IIRC, many observers argued that CAFTA and the Administration’s other bilateral deals were somehow worse than previous trade deals, because of provisions that specifically weakened labor protections (i.e. no union-busting in other countries) and environmental side agreements. One particular provision that rankled were, for example, CAFTA’s intellectual property provisions, which were not part of NAFTA. It is not clear that this was, in fact, true, particularly by the end of the process, but if so, it would explain a great deal of opposition that once again was tactical, not general.

The point here is to look past generalities about “free trade” and “protectionism” and look carefully at political and legal context. Trade politics always involve clashes between different constituencies, and the President is usually more free trade than Congress. It is not a partisan issue, and if handled well, it doesn’t have to be.

Another note on Lieberman: the Jeffords precedent

Do yourself a favor and read Barton Gellman’s book Angler: the Cheney Vice Presidency, for all kinds of reasons. It has gotten a lot of good press and rightly so.

One passage that has been overlooked, however, concerns the debate within the Bush Administration about what to do with Jim Jeffords, whom we might think of as the Republicans’ Joe Lieberman. Jeffords threatened to leave the caucus, giving the Democrats control over the Senate, unless Bush acceeded to his demand for greater special education funding (which Bush had promised and remains the right thing to do).

Obviously, the Bush people were livid. It was Cheney who persuaded the President not to back down, and the result was Jeffords bolting to the Democrats. Like so much else about Cheney, his advice was bad. Had 9/11 not occurred, it could have kept Bush from unified control of Congress for the remainder of his term.

But the interesting position, as Gellman describes it, was taken by Karl Rove, who said something to the effect of: “give him what he wants now, and then we will screw him at a more opportune time.” What Rove meant by that, or what he was thinking, is not mentioned, mainly because it became moot.

But it might be worth thinking about ahead of time if, as I fear, Lieberman stays off the reservation.