Don’t Forget the Senate!

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As I write this, there are five weeks and two days until the last vote must be cast. So this is it! If you want your contributions to affect this fall’s election, you must send them to Biden and other Democrats within the next month, the sooner the better.

While you dig as deep as you can to save our democracy, think about the Senate, too.

Trump’s latest ploy to steal the presidential election reportedly involves having Republican-controlled legislatures in key battleground states steal their states’delegations to the Electoral College. But there’s no electoral college for Senate seats. So even if Trump can steal the Electoral College, and even if he can pack the Supreme Court with a rushed-in replacement for the late Justice Ginsburg, he can’t steal senators’ elections, at least not with plausible legality.

This point makes taking back the Senate as important for Democrats as helping Biden win. A Democratic Senate is not just a good adjunct to a winning Biden-Harris ticket. It’s a vital backstop for democracy in case they lose.

With majorities in both the House and the Senate, Dems would control the entire lawmaking and investigative machinery of Congress. They would also control the Senate’s power to “advise and consent” to judicial appointments, international treaties and high-level executive appointments.

Controlling the Senate would thus provide six big benefits for democracy and Democrats, even under a second term of Trump. First and foremost, a united Democratic House and Senate could pass legislation to aid our suffering public and collapsing economy. They could establish clear, mandatory, science-based rules for fighting the pandemic. They could, for example, pass the Heroes’ Act as originally proposed by the House.

Of course Trump could veto these bills. But would he? Trump’s decisions revolve around his own ego and bragging rights. So he might well sign good legislation and try to steal the credit for it. He has shown again and again that he’ll cast his fellow Republicans and GOP ideology under the bus as long as can chalk up a “win.” His own ego is the only sure guide to his action.

Second, a Democratic Senate could stop the appointment of unqualified and extreme right-wing judges. By repeated refusals to confirm appointments, if necessary, it could require that any judges newly appointed to both the Supreme Court and lower courts be in the mainstream of judicial thinking and prepared to resist executive tyranny. This brake on polluting our judiciary with ideologues would limit the carnage of Trump’s legacy.

Third, the Senate has the power to confirm high-level executive appointments, including those to Cabinet positions. Trump has tried to bypass this power by making “acting” appointments or leaving key positions vacant. But he can only fill “acting” positions for so long, as a federal court recently ruled. In the long run Trump must get his high-level executive appointments confirmed by the Senate. So a Democratic Senate could halt the long march of Trump’s cronies, campaign donors and unqualified right-wing extremists through the halls of our Executive branch.

Fourth, the Senate’s “Advice and Consent” power under Article II, Section 2, Par. 2, applies to treaties, too. There it requires a two-thirds vote. Does that same requirement for two-thirds approval also apply to withdrawing from treaties?

Logic suggests “yes.” But I’m not aware of any Supreme Court decision on the matter. Perhaps we have never had such a profound and controversial spate of withdrawals as we now have with the Iran nuclear deal and the Paris Climate Accord together. At very least, a hardball approach by a Democratic Senate could cast doubt on these ill-advised withdrawals and give our allies some comfort.

Fifth is the impeachment power. Trump never got a fair trial last year because the Republicans controlled the process and reduced the trial to a sham. Under a Democratic-controlled Senate, there could be a real trial of new impeachment counts from the House, with live testimony and evidence of all of Trump’s crimes and abuses of power. The Senate might even compel live testimony from Trump himself. Or, if he refused to show up, he would suffer adverse inferences.

A Democratic Senate could tie up Trump in a major impeachment process dealing with all his many crimes and abuses of power—most of which were not addressed last year. These include: (1) his asking China and Russia, not just Ukraine, to aid his re-election, (2) his abuse of the pardon power to save his convicted cronies, (3) his attempts to destroy the independence of our Department of Justice and intelligence agencies for his personal benefit, (4) his misuse of his office to direct both our own and foreign officials to his commercial hotels and golf courses, (5) his apparent attempts to retaliate against whistleblowers and lower-level officials who testified against him, (6) his repeatedly and consistently trying to circumvent the Senate confirmation process by appointing unqualified donors and cronies as acting heads of federal agencies, and (7) his stonewalling subpoenas and congressional attempts to investigate all the foregoing.

The sixth and final benefit of retaking the Senate is its electoral appeal. Poll after poll shows that voters prefer divided government. They think it keeps unreliable pols of both parties in line. If that feeling prevailed even under moderate and cautious Obama (and it did!), how much more sense does it make with a president as erratic, inconsistent and willful as Trump?

In politics as in war, the best strategies have more than one prong. There is always a fall-back plan or a second line of attack. In this pandemic year, flexible tactics are essential, when Democrats’ main champion is 77 years old.

So if you really want to bet on preserving American democracy, don’t place all your bets on Biden and Harris. Save some money for the Democrats most likely to flip Senate seats.

You can find a good list of them here. I’m making recurring contributions to Democrats Barbara Bollier in Kansas, Sara Gideon in Maine, Theresa Greenfield in Iowa, Jaime Harrison in South Carolina, Mark Kelly in Arizona, Amy McGrath in Kentucky, and Raphael Warnock in Georgia. If you donate on Act Blue, you can spread your payments out by making weekly donations with your credit card.

With the election so close now, Act Blue allows weekly donations that end after the election. All you have to do is click the right button. If Trump pulls off his audacious theft of the presidential election, the democracy you help save may be our own.

Footnote 1. Many absentee ballots will be counted after the election date, but all votes must be cast by that date. (Some states allow absentee or mail-in ballots to be counted if postmarked by election day, although received later. Check your state’s official website for information.)

Footnote 2. Our Constitution says that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” for the Electoral College. (Article II, Section 1, Par. 2; emphasis added). So Trump’s reported scheme is to have Republican-controlled legislatures in key battleground states appoint electors loyal to him, regardless of the popular vote in those states. The pretext for this extraordinary move would be claims of massive voter fraud connected with mail-in voting. (Trump has already laid the groundwork for such claims by recommending fraud himself. He’s suggested that his voters vote twice, once by mail and once in person.)

Footnote 3. Senators, too, used to be appointed by state legislatures. But under our Seventeenth Amendment, the people have elected federal senators directly since 1913.

Footnote 4. Though Chief Justice Roberts would preside over any Senate trial, he has no vote. As an institution, the Supreme Court has no say at all over impeachment. It’s entirely a political process, in both substance and procedure, and a Democratic-controlled Senate would set the rules. (Article I, Section 5, Par. 2 says, “Each House may determine the Rules of its Proceedings . . . .”)

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