Senate Democrats have to be very careful with their law suit

by Paul Goldman

The situation posed by the 20-20 split in the Senate has different ramifications for Democratic Senators and those Democrats thinking about running statewide. In terms of Senators, the issue is one of immediacy: in a few weeks, they will return to Capitol Square and don’t want to potted plants. However, the actual issue of whether LG Bolling can vote on an organizational motions may be less than meets the eye, as I have explained in an article hopefully to be published in the not-too-distant future.

Thus while Senators may not see losing their lawsuit as posing any down risk to them, it could be a negative for the statewide ticket depending how the drama plays out.

In that regard, there is a lot potentially riding on when the lawsuit is filed, what it claims, how it is “spun” in the media and the other elements of politics. A judicial ruling which indicates the lawyers filed a shaky case rooted in politics, not law, would not help anyone running statewide. The negative might be small, but in a close race, everything adds up.

In fact, from a pure 200-proof political strategy point of view, the perception of undue Republican partisanship is good for Democrats in 2012 and 2013, not bad. Letting Bolling break the tie on a number of controversial political issues, thus allowing them to be enacted into law, would help, not hurt Democrats.

This is reality in politics, that sometimes winning can lead to losing.

Let’s cut to the chase: any way you slice it, the bottom line of a Democratic lawsuit is based on the Constitution setting up gridlock in the Senate, unless the parties agree to share power.

This runs counter to the basic construct of a parliamentary system, which is to make sure a body can function at all times. Jefferson’s Manual and others thus allows the presiding officer of a body to vote to break ties.

Therefore, suggesting in essence a flaw in the Constitution can be an impossible burden, since the Democrats concede the Constitution is open to two different interpretations. Why should the Court take the one which could create gridlock as opposed to the one which doesn’t? It isn’t as if the LG has to be Republican.

The Democrats thus ask for the unusual interpretation in that regard. This is not like what happened in 1800, when the U.S. Constitution contained a flaw leading to the tie Electoral College vote between Aaron Burr and Thomas Jefferson. There is some evidence the flaw in how electoral votes were counted for President and Vice-President was known in 1796, but the deal had been to solve it without a Constitutional Amendment by making sure one elector remembered to vote only for President.

Apparently, as they say, “stuff happens,” and so they passed the 12th Amendment in 1804 to make sure the stalemate didn’t happen again, as it almost gave us President Burr (in hindsight, Alexander Hamilton, Mr. Burr’s greatest nemesis, would have been better off).

Bottom line: When it comes to treating a co-equal branch, the Judiciary is supposed to be very reticent about mucking things up. So Democrats need to game out the right lawsuit in terms of when to sue, what to say, and how to explain it to the public.

There is a risk of alienating the swing voters in the middle who have an increasingly low tolerance for anything seen as partisan wrangling. Democrats need them back in 2012 and 2013.