Michael Avenatti should not be running for president. The exuberant attorney might have acquitted himself well representing Stormy Daniels in court — and the resistance’s vindictive id on cable news — but the road to the White House shouldn’t run through CNN’s greenrooms. As Donald Trump has ably demonstrated, the skills required for establishing a strong Twitter presence and those necessary for governing the world’s most powerful nation are not perfectly identical. And regardless, the Democratic Party already has more conventionally qualified 2020 hopefuls than they can reasonably ask the Iowa State Fair to accommodate. If Avenatti wants to try his hand at public service, he should run for city council (for a first-time candidate, municipal office should be #basta).
But American politics in 2018 isn’t as it should be. So, by all appearances, the lawyer representing Donald Trump’s former porn-star paramour is really, earnestly running for the nation’s highest office.
And, at the end of that day, that might actually be a good thing.
Of course, it would be something approaching a national tragedy if Avenatti actually won (and the American people were forced to choose between a man clearly unfit for the presidency and Donald Trump). But Avenatti’s presence in the 2020 race could spark a much-needed debate over whether his party should see the GOP’s ruthless approach to governance as a malignant force worth condemning — or as a model worth emulating the next time Democrats take power.
Avenatti is bringing a knife to a policy fight.
The Democrats’ 2020 field will feature plenty of candidates who wish to reshape their party’s consensus on ideological matters. Elizabeth Warren (and/or Bernie Sanders) will call for evicting the money-lenders from Team Blue’s temple; Kamala Harris (and/or Kirsten Gillibrand and/or Cory Booker) will implore Democrats to redouble their efforts to bend the arc of history toward racial and gender justice. But no progressive darling has made a sustained case against their party’s staid consensus on procedural questions — like Senate Democrats’ resilient attachment to the legislative filibuster, or their refusal to use the full extent of their powers to keep reactionary judges off the federal bench. Which is to say: No one has called on the party to pursue the progressive movement’s goals by any (technically legal) means necessary.
None, that is, but Michael Avenatti.
The celebrity attorney knows that he can’t win any intra-party debates over policy or ideology. He doesn’t have the record to run as the most authentic champion of any Democratic constituency’s cause, or the policy chops to “own” any high-profile issue. What he does have is a total lack of reverence for Capitol Hill’s norms, and a personal brand as an uncompromising advocate for the clients he represents. For these reasons, he’s centered his nascent campaign on a call for tactical ruthlessness. His message is, in so many words: “I might not be the most eloquent or credible advocate for universal health care, criminal justice reform, or paid family leave — but I’m the one who will fight the hardest (and dirtiest) to win the American people a generous settlement on all those fronts.”
Avenatti 2020’s (ostensible) slogan is “Fight Fire With Fire,” a motto the attorney is liable to endorse multiple times in the same tweet. Last week, the candidate clarified the practical implications of his catchphrase, in remarks on Brett Kavanaugh’s Supreme Court nomination. Plenty of Democrats have cited Mitch McConnell’s norm-defying nullification of Barack Obama’s right to appoint Supreme Court justices as cause for rejecting Kavanaugh. But only Avenatti has argued that McConnell’s unscrupulous approach to keeping his ideological enemies off the High Court is something that Democrats should emulate.
McConnell didn’t cheat Obama; he “outplayed” him. President Avenatti won’t let that happen — in fact, to even up the score, he’ll cross lines McConnell never dared touch. The attorney’s proposal to pack the Supreme Court is a hazardous one. If implemented, it would likely mark the end of judicial review, as red states would take the (entirely constitutional) power-grab as a justification for nullifying any High Court ruling they do not like. It could also, conceivably, open the door to some future authoritarian regime gutting (what presently qualifies as) rule-of-law in the United States. And yet, Avenati’s willingness to argue for the idea, despite its drawbacks, just might make his stunt candidacy worthwhile.
Parliamentary procedure is among the least sexy topics of conversation known to humankind. Even within the wonky realm of presidential primary debates, questions about the propriety of the “blue slip” process, the legislative filibuster, or the current structure of the judiciary have never figured prominently. And yet, it’s quite possible that none of the Democrats’ contemporary debates over policy has higher stakes than the question of whether the party will emulate — or disavow — the GOP’s procedural radicalism once it regains power.
The next Democratic president is all but certain to lack 60 Senate votes for his or her agenda. Thus, progressives and centrists can debate Medicare for All versus a public option, or reforming ICE versus abolishing it, or a carbon tax versus a green jobs program all they want — but most of their points will be moot if 51 Democratic senators are too enamored with norms to end the legislative filibuster. Similarly, it’s conceivable that America’s increasingly reactionary judiciary could render the party’s position on exactly how much to expand the federal government’s involvement in health care less important than its stance on reforming the federal courts.
Grassroots organizing around procedural questions tends to be slim-to-nonexistent. If Michael Avenatti doesn’t challenge the Democratic Establishment’s attachment to Capitol Hill’s norms and niceties, there’s no guarantee that anyone else will. And that consensus needs to be challenged. One can reasonably object to fighting “fire with fire” — but a disconcerting number of Democrats want to fight it by dousing themselves in kerosene.
The Democrats have an affinity for self-immolation.
Donald Trump — or, more accurately, his conservative movement allies — have been restocking the federal courts with radical right-wing judges at a historic clip. And in that project, they’ve been aided and abetted by the Democratic Party’s reverence for senatorial courtesy. As chair of the Judiciary Committee for most of the Obama presidency,
Senator Patrick Leahy chose to honor the “blue slip” rule — an informal convention that allows any senator to veto the nomination of a federal judge to a court in his or her home state. Republican senators used this prerogative to coerce Barack Obama into appointing conservatives to the federal bench, and to hold other judicial seats open indefinitely, so that a future GOP president could fill them. Leahy took pride in helping the conservative movement in its quest to undermine his constituents political rights and policy preferences. “I have steadfastly protected the rights of the minority … despite criticism from Democrats,” Leahy boasted in 2012.
Alas, when the GOP regained power in 2017, it dispensed with the “blue slip” rule — and set about helping Trump fill all the seats that Leahy had reserved for him.
Last week, Minnesota senator Amy Klobuchar reflected on this history. She contemplated the GOP’s ongoing judicial triumphs, and the Democrats handling of judicial nominations in the Obama era, and concluded that her party had made a terrible mistake — by failing to allow Mitch McConnell to milk even more reactionary judges out of Team Blue’s fetish for rules:
Sen. Amy Klobuchar said Sunday she regrets Senate Democrats eliminating the filibuster for most judicial nominees in 2013, saying she would support bringing it back if Democrats retake the Senate in November.
“I would prefer to bring it back,” the Minnesota Democrat said on NBC’s “Meet the Press.”
The reason Democrats eliminated the filibuster for (non–Supreme Court) judicial nominees in 2013 was because the Republican Party was using the 60-vote threshold to block Obama from appointing non-conservative judges. Harry Reid’s willingness to fight this power-grab with one of his own modestly reduced the scale of Donald Trump’s most durable legacy. To suggest that Reid’s decision actually hurt the progressive cause, one has to believe that a unified Republican government would dutifully honor any senatorial norms that Democrats had courteously maintained — even when such fealty to convention undermined the conservative movement’s decades-long ambition to reshape the federal courts.
But we already ran this counterfactual: Mitch McConnell’s majority killed “blue slips” the second they got in its way! Furthermore, the idea that the GOP wouldn’t have done the same to the judicial filibuster is contradicted by its entire approach to governance over the past decade. This is the party that sacrificed America’s credit rating on the altar of an austerity program that (we now know) they didn’t actually believe in. It’s the party that wouldn’t hold a hearing for Merrick Garland, and which just packed state Supreme Courts in West Virginia and Arizona. To believe that Democrats can curb the GOP’s radicalism by reestablishing constraints on majority power when they retake the Senate is the definition of insanity.
And Klobuchar is far from the only Democrat beholden to such delusions. Her fellow blue-state senator Ed Markey has promised that the Democratic Party will restore a 60-vote threshold for Supreme Court nominees as soon as it retakes power. Meanwhile, House Minority Leader Nancy Pelosi has promised to reinstate “paygo” — a rule that requires Congress to make all of its new legislation deficit neutral (in other words, to “pay as you go”). This makes little sense in policy terms (it’s perfectly appropriate to finance certain public investments through borrowing, particularly when interest rates are still on the low side). But it makes even less sense in political ones. Pelosi ostensibly wants to live in a world where Republicans are allowed to dole out free lunches to their billionaire donors (by putting $1.8 trillion worth of tax cuts on the proverbial national credit card) while Democrats are forced to offset every dollar of aid to the poor, or investment in public goods, with politically painful tax increases.
One could hope that all this rhetoric is purely cynical. After all, it makes little tactical sense to advertise one’s intention to restrict minority rights while the other party still holds power. But Pelosi & Co. haven’t earned the benefit of presumptive Machiavellianism. By all appearance, their desire to rebuild the procedural norms that the GOP has broken is sincere. And that’s a big problem, since the health of our republic might well depend on their doing the opposite.
Kill the filibuster or bust.
One of (if not the) most important decision the next unified Democratic government will make will be whether or not to abolish the filibuster on legislation. A few of the Democrats’ rumored 2020 candidates have voiced support for weakening the filibuster, while Bernie Sanders has championed effectively eliminating the institution by restoring the requirement that senators must speak continuously from the floor of the upper chamber in order to block a majority vote on legislation. Nevertheless, the idea has less traction among elected Democrats than most of Sanders’s substantive agenda, from Medicare for All to tuition-free college. Over the summer, Senate Minority Leader Chuck Schumer reportedly promised Mitch McConnell that he would leave the filibuster in place if Democrats retake the upper chamber (again, if Schumer had a reputation for Machiavellian cunning, this would be fine — but he doesn’t).
Having a candidate like Michael Avenatti in the 2020 race — which is to say, one who has an affinity for pushing the envelope on procedural radicalism — could help build momentum for filibuster abolition when and if Democrats retake power. And make no mistake: Although they’re wise not to say so too loudly while McConnell has a majority, all filibusters must die.
Even if it weren’t a precondition for making meaningful progress on America’s most urgent policy challenges, progressives would still be right to oppose the legislative filibuster on the merits. There is no good reason for Congress’s upper chamber to have a 60-vote threshold on all legislation. The framers of our Constitution considered including a supermajority requirement for the passage of new laws — but decided against it, concluding that the system they’d designed already had enough obstacles to hasty legislating without such a rule. And, as Matt Yglesias has argued, it’s difficult to disagree with that assessment:
[T]he main problem with a supermajority requirement has little to do with specific partisan or ideological concerns. One simply needs to note that bicameralism, plus an independently elected president, plus the congressional committee system, plus a fairly robust system of federalism, plus a fairly robust institution of judicial review constitutes a political system that already has a ton of veto points. The main aggregate impact of all this piling-on of veto points upon veto points is to make it easier than it should be for interest groups to block broad-view reforms. Adding a supermajority requirement in the senate on to all of that exacerbates the existing pathologies of the system.
But the biggest problem with the legislative filibuster is its substantive implications. The growing political polarization of urban and rural America — combined with the Senate’s structural overrepresentation of the latter — all but guarantees that Democrats will not have a 60-vote majority in the Senate within the next decade (let alone, a progressive 60-vote majority). And while the party can pass some fiscal measures with 51 votes through budget reconciliation, it cannot strengthen voting rights, reform the immigration system, empower workers through revamped labor laws — or mount any significant response to climate change — through that process.
Mitch McConnell has not preserved the filibuster on legislation because he has a deep respect for Senate traditions. He has done so because he understands that his movement gains more from the institution than it loses. The Senate’s supermajority requirement makes it exceptionally difficult to expand the welfare state or increase federal oversight of the private sector. But as the failure of Obamacare repeal demonstrated, it isn’t the primary obstacle to a major rollback of the safety net under Republican rule. The filibuster did not kill George W. Bush’s plan for Social Security privatization, and it didn’t save the Affordable Care Act — the tendency of broad-based social programs to win mass popular support did.
To be sure, had Democrats ended the legislative filibuster under Obama, today’s Republican government would have been able to roll back federal regulations on the energy and financial industries even more aggressively, while passing larger (and more permanent) tax cuts, and a host of other reactionary laws.
But then, had Democrats followed Michael Avenatti’s credo in 2009, and fought “fire with fire” (which is to say, had they abolished the filibuster so as to force the progressive agenda into law), 11 million undocumented immigrants would be on the pathway to citizenship, instead of hiding in the shadows from ICE; private-sector unions might be in a state of rebuilding instead of decline; and a wide array of voter suppression tactics would be banned, instead of rapidly proliferating.
In fact, if the passage of immigration reform and voting rights legislation had added a few million more nonwhite voters to the electorate — and if labor law reform had added a couple percentage points to the rate of private-sector unionization — today’s Republican government might not even exist.
The courts might need to be reformed (if not packed).
Michael Avenatti’s court-packing scheme could undermine the legitimacy of our republic. But so would the continuation of the Roberts Court’s assault on popular democracy. Over the past decade, the Supreme Court’s conservative majority has cleared the way for unlimited corporate spending in American elections; vetoed laws aimed at limiting the influence of such spending by providing candidates with public funds; gutted the Voting Rights Act of 1965; immunized prosecutors who withhold exculpatory evidence from legal accountability; restricted the capacity of consumers and workers to sue corporations that abuse them; hobbled public-sector unions; invented an individual right to possess firearms; and came within a single vote of vetoing the most significant expansion of the American welfare state in a generation on a flimsy pretense.
And Donald Trump’s additions to the judiciary all but ensure that the next ten years will resemble a Neo-Lochner era even more than the last ten did. If Democrats aren’t prepared to defend the federal government’s prerogative to regulate the corporate sector, redistribute economic power, and safeguard the civil liberties of minority populations — against the infringement of a rogue judiciary — then all of their legislative accomplishments could be for naught.
For this reason, the Democrats could use an intra-party debate over how the it can keep a GOP-dominated Supreme Court in line. No one but Avenatti has evinced interest in starting that debate. And while his answer to the problem might be undesirable, his advocacy could open up space for less extreme avenues of reform.
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This is by no means a comprehensive account of the tactical quandaries a future Democratic government will face. The party’s next president will also need to decide whether to build on Donald Trump’s expansions of executive authority, or rein them in. Existing federal laws would (arguably) give the next Democratic president the authority to override pharmaceutical patents, so as to provide low-cost drugs to the beneficiaries of government programs (using a power analogous to eminent domain). There are surely worthwhile arguments against expanding the reach of the imperial presidency. But there are also sound arguments for using all available means to rectify failures of public policy. For the moment, such vital, intra-party debates don’t appear to be happening.
In an ideal world, the Democrats would be capable of confronting these issues without the aid of a camera-hungry lawyer’s stunt candidacy. But Trump’s America is not an ideal place. So, there’s a reasonable case that Michael Avenatti’s misguided entrance into presidential politics could actually do more good than harm — assuming, of course, that he doesn’t actually win.
And surely, it is safe to assume that a narcissistic media personality — with no governing experience — could never defeat an overcrowded field of overqualified politicians to win the presidential nomination of a major American political party.
