How To Defend the Filibuster

With the Senate Republicans poised to go nuclear (or is it nucular?), most pundits have framed the imminent showdown in Washington as a culture clash between religious conservatives and secular liberals.

The problem is, this line of reasoning doesn’t work for Democrats, who have been wailing since last November over their inability to get working-class Americans to vote class over culture.

Simply put, when the debate turns to God, gays, guns and abortion, Democrats generally lose.

But there’s another way to frame this political battle. Liberals will stand on more solid intellectual ground, and will appeal to a much wider swath of the electorate, if they place cultural issues – including abortion – on the back burner and instead emphasize the gathering conservative assault on the commerce clause.

Yes, that’s right. The commerce clause. It may not be sexy, but it packs a surprisingly strong punch.

Until 1937, the federal courts interpreted Article I, Section 8, Clause 3 of the Constitution narrowly, ruling that Congress could regulate only those economic activities that fell explicitly within the realm of interstate commerce. Two girls selling lemonade outside their house were off limits; the same two girls selling lemonade on a train bound from Chicago to St. Louis were fair game.

After 1937, due in part to pressure from the executive branch (that is, FDR’s famous attempt to pack the Supreme Court with additional justices), as well as several key retirements, the Court adopted a much more expansive interpretation of the commerce clause, ruling that the federal government could regulate even those economic activities that indirectly affected interstate commerce.

By the early 1940s, even most mom-and-pop operations fell within the purview of federal regulation.

This meant that the federal government could legalize unions and compel most employers to deal fairly with organized labor (the 1935 Wagner Act); set a maximum work week of 40 hours, establish a minimum wage, and mandate overtime pay (the Fair Labor Standards Act of 1938); regulate health and safety conditions in the workplace (the Occupational Health and Safety Act of 1970); and hold businesses responsible for harm done to the environment (the Environmental Protection Act of 1970).

Perhaps most crucial, Title II of the Civil Rights Act of 1964, which bans segregation in places of public accommodation – including hotels, restaurants, stores, amusement parks, and the like – rests on the Court’s expansive interpretation of the commerce clause.

All of this is under assault from a conservative school of legal thought that believes the federal courts erred in 1937 (and since then) in ascribing this kind of power to Congress.

As Jeffrey Rosen explained last year in a must-read article in The New Republic, the Bush administration’s judicial picks include jurists who want to overturn sixty years of precedent and restore the “Constitution in exile” – that is, the narrowly construed constitution of 1935.

If the president is able to pack the federal courts with enough conservative ideologues, we are likely to see a gradual repudiation of core interpretive principles that have allowed the federal government to act as a fair arbiter in an increasingly complex economy and diverse nation.

I’m not sure where the two judges currently under consideration fall on this question, or if they’ve even left a written record that would indicate their position. But Janice Rogers Brown’s statement – that “[w]here government moves in, community retreats, civil society disintegrates and ability to control our own destiny atrophies” – doesn’t suggest she’ll be a strong supporter of the federal regulatory state.

If the Democrats want to win the political battle, and not just the tactical battle in the Senate, they’ll need to pitch a big tent.

Allowing the debate to hinge on abortion and religion is tantamount to taking the conservative bait.

Instead, Democrats need to explain that a host of other protections – from racially integrated public facilities to the minimum wage, and from health and safety regulations to the right to collective bargaining – are on the line.

If they stick to this message, it just may be the Republicans who find themselves struggling in the political wilderness.