The 2014 midterms are over, but due to a bizarre hitch in the American constitutional system, the old Congress still gets one more chance to make laws before the newly elected one takes office in January. It's called the lame duck session, and it began yesterday.
House Democrats will almost certainly have nothing to do. But the rest of the party should take advantage of this time to undertake a few special actions. Let me go through them in turn, then explain why they're justified.
First, the Senate should confirm as many Democratic nominees as possible to empty positions in the federal judiciary and the executive branch. Recall that a year ago Senate Democrats reformed the filibuster on these nominations, reducing the number of votes needed to break a filibuster to 50, from 60. But breaking a filibuster may still take many hours of floor time, which means a mere handful could eat up the entire lame duck. Majority Leader Harry Reid (D-Nev.) shouldn't hesitate to fully abolish filibusters on these nominees, and allow them to be voted through with all speed.
Second, Democrats should make public a long-awaited Senate report on the torture committed by the Central Intelligence Agency during the Bush era. The major conclusions are reportedly going to be released this month, but if any key facts or findings are missing, then outgoing Sen. Mark Udall (D-Colo.), possibly the Senate's most forceful champion of civil liberties, should read them into the congressional record. The American people deserve to see this report, and ideally some accountability for the war crimes described therein.
Third, both in the lame duck and beyond, President Obama should use the full extent of his executive authority to fiddle around the edges of domestic policy. One logical step would be to pardon the so-called DREAMers, immigrants who were brought into the country illegally as young children.
These moves are sure to stir outrage on the right. Witness the response to Obama announcing Monday his support for reclassifying internet service providers as telecommunication services — in effect, supporting net neutrality, the idea that the government and internet service providers should not discriminate against or favor certain sites.
Sen. Ted Cruz (R-Texas) brayed that net neutrality is "ObamaCare for the internet," a nonsensical position that nevertheless led folks like Christopher Mims to lament that the concept is now a partisan one. Other objections to Obama's use of executive power comes from procedural moderates who think the lame duck shouldn't be used for any substantitve policy, because the new Congress has more legitimacy.
In a different age those objections may have been germane. But not anymore. American politics is now a zero-sum will-to-power contest, and to play by the old rules of backslapping comity is to cede the game to the other side. From holding the world's economy hostage to shutting down the government, Republicans almost never miss a chance to tear up long-established norms. Just last week, Jim Geraghty at National Review was mulling strategies to straight-up steal the presidency for Republicans in 2016. These are the nihilists Democrats are supposed to placate?
For the next two years, Obama needs to ignore the predictable Republican howls and forcefully implement his favored policies. He needs to play to win, using any legal means at his disposal. Rest assured, when the tables are turned, Republicans will do exactly the same thing.
