Messing With The Founders

by Michael Liss

1200The Founders are having a collective posthumous fit—and it's not because of Donald Trump.

Yes, it's true, Trump is not ever going to be one of the guys on Mount Rushmore—unless he buys the place and converts it to a luxury spa and personal shrine. He's just not a Rushmore type. We want our Presidents brave, eloquent, decisive, visionary, caring, gracious. That's not Trump. They need to have the intellectual ability and knowledge to integrate multiple sources of information to facilitate making complex decisions in rapid real time. Still no. Plus the emotional pliancy to cope with wrenching moral choices as a surrogate for the nation, taking upon themselves the responsibility for life or death choices and providing absolution for the rest of us. Yet another no. And a thick skin that enables them to do all these things with equanimity as a polarized electorate and a media hungry for scoops and gotcha tear at them. Definitely, absolutely, not our Donald.

At the risk of offending roughly a third of the electorate, let me make an obvious point: Whatever his talents in business or otherwise, as a President, Trump is a disaster, utterly unfit to hold the office. To offend the other two-thirds, I am going to suggest something radical: Unless he literally blows up the world (admittedly, not completely impossible) it doesn't matter. The Trump Presidency is a temporary problem—a big one, likely to be remembered for emotional vandalism, a hard-right agenda, and some crushing disappointments for his loyal base—but a temporary one. His Presidency will end. We will have another election, pick someone new, rebalance ourselves domestically, and reintroduce ourselves to the world as the rich, powerful, and reliable partner we were before. And to be truthful, the world isn't going to have that much of a choice, because we are still the Indispensable Nation—and because we really can be the good guys when we try.

We will get through the Trump Presidency. I say this because I have faith in our system. The Founders anticipated a Trump problem and built into the Constitution a variety of checks and balances that would either keep him from office (through the Electoral College), remove him (if he merits impeachment), or legally constrain him and limit the institutional damage he could cause if elected. And if all else fails, he still has to face the electorate in 2020. Sooner or later, he's going to have to take his Twitter account and his golf clubs and go home.

So, why are the Founders spinning in their graves? Because of the one man who, under the radar, is doing a lot more damage to Madison's delicate mechanism than Donald Trump. That would be the Senior Senator from Kentucky, Mitch McConnell. He's the guy with the can of gasoline and the box of matches burning down Independence Hall.

McConnell is in the public eye right now for sending the Gang of Thirteen into the treehouse (Girls Keep Out) to decide healthcare for the country. Whatever you think of Obamacare, you have to admit that a little sunlight might have been useful before the GOP decided to move on something so critically important to so many people. Mitch clearly didn't agree. There were oppressed one-tenth of one percenters who desperately needed help, and far too many Americans living the good life in ERs.

Something had to be done. But the AHCA (actually, BRCA in the Senate mutation) strategy, as brilliant and as infuriating as it is, is perfectly "legal," as is every other little ruse McConnell has used over the last eight and a half years. It's just neither fair, nor the way the Founders would have wanted it—and I'm not commenting specifically about the results, but about the process in obtaining those results.

"Process" is what the Constitution is all about. Its formalism underpins the compromises that were necessary to herd the strong-willed cats attending the Constitutional Convention. These were men accustomed to authority and autonomy, and convincing them to cede a bit of both required a deft hand. To deal with concerns about big states vs. small, minority rights, and the authority of the Chief Executive, power is distributed between ostensibly co-equal branches of government. Everyone has a fiefdom they can call their own, but all live in an interdependent universe.

We view the Presidency as the center of that universe, but if you look at the basic architecture of the Constitution, you come to realize that it's actually the Senate that sits at the crossroads of virtually everything. No bill can become law without the Senate's consent. No Judicial nominees, no Cabinet appointments or Ambassadorship, no treaties, no Declarations of War.

The operative word is "No" but an automatic "No" was never the Founders intent. They were thinking "slow." The Senate, in Washington's memorable remark to Jefferson, is the "cooling saucer" where careful deliberation by experienced and thoughtful legislators, informed by their state's needs, and insulated by six-year terms, would protect the country from the radical, the corrupt, and the inappropriate. The Founders feared factions, majority tyranny, and although they joined them, political parties. They knew the House would likely be parochial and even the President could play favorites. But the Senate would serve as a buffer against both.

Historically, it often has fulfilled that role, showing far more subtlety than the 50+1 brute force that defines the House. In the Senate, there are a Byzantine set of rules that empower the minority, and individual Senators. These run the gamut from the well-known, like filibusters, to the arcane, like Blue Slips (empowering Senators to delay judicial nominations in their home states) and Senatorial holds, where individual Senators can prevent a motion from reaching a vote on the Senate floor.

As "un-democratic" as some of these may sound, the idea is to foster compromise and sand off the rough edges—to force people to negotiate in good faith and move towards the middle. It was never intended to be an absolute veto—or, more accurately, never intended to be a vehicle for perpetual obstruction. Traditionally, individual Senators and Minority Leaders picked their spots on those matters that were of paramount importance to them.

This can appear to be counterintuitive. If the power of "No" is there, why not use it all the time? The best answer may be enlightened self-interest. Everyone knows that the shoe can be on the other foot. You can lose control of the Senate, or the White House, or both. So, when in opposition, you participate in a rather elaborate Kabuki—for all but the most critical matters, you engage in some ritual denouncing, you do a little horse-trading, and you keep your "No" in your back pocket.

Until Mitch McConnell—or, more accurately, Mitch McConnell faced with a President he loathed. The Merrick Garland nomination was the most egregious example, but McConnell had already been blocking President Obama's nominees for two years—over 50 judicial nominations were still pending at the end of Obama's term, as well as many more for regulatory roles. Once Trump ascended the throne, McConnell has been systematically curtailing every one of the procedural "Noes" he used so skillfully just a few months before.

Why can I so calmly dismiss Trump as a one-off, while giving so much importance to McConnell? Because, Trump is damaging an image. McConnell is damaging an institution. Once you move the Senate goalposts like this, they stay moved. Why would any future Democratic Majority Leader agree to go back to the old ways and leave McConnell the spoils?

The "cooling saucer" is broken. Mitch McConnell, by setting himself up as the sworn enemy of one President and the handmaiden of another, has seen to that. Hamilton remarked, during the Constitutional Debates, "Real liberty is found not in despotism or the extremes of democracy, but in moderate governments."

He never met Mitch McConnell.