Tag Archives: Democracy

Who’s On Your Side: A Simple Dichotomy?

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The White House website has a new page devoted to last year’s very big infrastructure bill.

Untitled

It got Jennifer Rubin of The Washington Post thinking about the Democratic Party’s “message”, a phrase that ideally would fit on a bumper sticker:

While Russia’s brutal invasion of Ukraine and a highly impressive Supreme Court nominee afford Biden his first chance in months to break the bad news cycle and to project strength, he still lacks a big picture that ties it all together.

Biden faces several challenges: 1) He can’t do much about the biggest economic concern (inflation) which fairly or not voters blame on him; 2) Voters seem to have taken job growth and a return to post-covid normal for granted; 3) The GOP noise machine of constant conspiracies and baseless accusations effectively manipulates the mainstream media, which regurgitates GOP talking points; and 4) Voters forget how positively nutty the GOP has become and the degree to which its worst elements will predominate if it returns to the majority in one or both houses.

So what can Biden do? At its most basic, Democrats must convince voters they are on the side of regular Americans — making progress and solving real problems (e.g., jobs, covid). They need to remind voters that Democrats are on the right side of the middle class, democracy and law and order. Democrats must leave no doubt as to which party did a lot to clean up the mess left behind by the previous administration and which party understands the real problems left to work on (e.g., inflation, green energy, defending against international bullies).

Republicans? They are bullies and chaos creators (be it attacking the Capitol, letting the country default on the debt, setting up a litigation machine to sue teachers, undermining elections, threatening to take away kids whose parents give them medical care and inviting a truck blockade). Do voters really want to give power back to the crowd that defends violence (“legitimate political discourse”), lets their cult leader extort Ukraine, and goes to bat for big corporations (e.g., allowing them to escape paying taxes, protecting Big Pharma’s price gouging)?

Democrats need to get back to a fundamental message: When in power, they make government work for ordinary people and defend American values (democracy, opportunity, fairness, playing by the rules). They solve real problems. When Republicans are in power, they create division, conflict and chaos. They are not on your side. That’s it. A simple dichotomy.

Unquote.

The problem is that if there are voters out there who don’t already understand the difference between the two parties, they’re probably unreachable. If they bother to vote, they’ll make their choice one of two ways. If they see themselves as a Democrat or Republican, they’ll stick with the party that makes them feel comfortable. If they don’t have a particular political identity, they’ll vote for or against “change” (i.e. for or against the incumbent) depending on their mood that day. The irony is that if voters want meaningful change, they should elect more Democrats. In particular, more Democrats in the Senate would make roadblocks like Manchin and Sinema irrelevant. But since Democrats “control” both houses of Congress, many voters will mistakenly think electing more Republicans will bring about the kind of change they want.

Why People Vote the Way They Do

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I finished a book recently and thought I might write about it here, but was too lazy. Then I read a comment after an article at Three Quarks Daily:

A crucial question: how does the party of oppression and social inequality get away with parading its commitment to liberty, and capture power with the votes of those whose interests it totally neglects?

That was the motivation I needed to write something in response:

Two political scientists, Christopher Achen and Larry Bartels, cited a lot of surprising evidence in their book “Democracy for Realists” (2016) that “voters mostly choose parties and candidates on the basis of social identities and partisan loyalties, not political issues” and that “voters adjust their policy views and even their perceptions of basic matters of fact to match those loyalties”. They concluded that most voters are remarkably ignorant about politics, but that even well-informed and engaged voters usually choose parties and candidates this way (in fact, more often than voters less interested in politics).

They admit that people do change their political identities sometimes, but say that, for the most part, the issues take a back seat to identity and partisanship. Once you see yourself as, e.g. a Democrat in the US or a Conservative in the UK, you will tend to vote and think a certain way. The subtitle of their book is “Why Elections Do Not Produce Responsive Government”. It was both informative and depressing to read.

It’s depressing because one of our political parties makes a serious effort (sometimes successful, often not) to address issues and enact policies that will help average people’s lives, while the other mostly ignores real problems and policy, but gets their supporters (the non-wealthy ones anyway) riled up about things that didn’t happen or don’t matter (see, for example, how they got millions of people upset a “stolen” election). One might conclude that the party that tries to make our antiquated government work is at a permanent disadvantage. It’s so much easier to invent a “controversy” about Critical Race Theory in elementary schools than to replace all of their old lead pipes.

So when we hear that it’s the Democrats who are all about identity politics, we should keep in mind how important identity is to politics, even to coal miners in West Virginia, farmers in Nebraska and cops in New York City.

Some Conservatives Want to Avoid a Coup in 2024

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One such conservative is J. Michael Luttig. You know he’s a conservative, because he clerked for Antonin Scalia, worked for Ronald Reagan and was made a federal judge by the first President Bush. After 15 years as a judge, he was Boeing’s general counsel for 13 years (2008 income = $2.8 million). He’s apparently consulting with “a number of senior Republican senators” regarding changes to the Electoral Count Act. He warned America in a piece for the NY Times today: 

The clear and present danger to our democracy now is that former President D____ T____ and his political allies appear prepared to exploit the Electoral Count Act of 1887, the law governing the counting of votes for president and vice president, to seize the presidency in 2024 if Mr. T____ or his anointed candidate is not elected by the American people.

The convoluted language in the law gives Congress the power to determine the presidency if it concludes that Electoral College slates representing the winning candidate were not “lawfully certified” or “regularly given” — vague and undefined terms — regardless of whether there is proof of illegal vote tampering. After the 2020 election, Republican senators like Ted Cruz of Texas and Josh Hawley of Missouri tried to capitalize on those ambiguities in the law to do Mr. T____’s bidding, mounting a case for overturning the results in some Biden-won states on little more than a wish. Looking ahead to the next presidential election, Mr. T____ is once again counting on a sympathetic and malleable Congress and willing states to use the Electoral Count Act to his advantage.

He confirmed as much in a twisted admission of both his past and future intent earlier this month, claiming that congressional efforts to reform the Electoral Count Act actually prove that Mike Pence had the power to overturn the 2020 presidential election because of the alleged “irregularities.” The former vice president pushed back forcefully . . . 

The back-and-forth repudiations by Mr. T____ and Mr. P____ lay bare two very different visions for the Republican Party. Mr. T____ and his allies insist that the 2020 election was “stolen,” a product of fraudulent voting and certifications of electors who were not properly selected. Over a year after the election, they continue to cling to these disproved allegations, claiming that these “irregularities” were all the evidence Mr. Pence needed to overturn the results, and demanding that the rest of the G.O.P. embrace their lies. The balance of the Republican Party, mystifyingly stymied by Mr. T____, rejects these lies, but, as if they have fallen through the rabbit hole into Alice’s Wonderland, they are confused as to exactly how to move on from the 2020 election when their putative leader remains bewilderingly intent on driving the wedge between the believers in his lies and the disbelievers.

This political fissure in the Republican Party was bound to intensify sooner or later, and now it has, presenting an existential threat to the party in 2024. If these festering divisions cost the Republicans in the midterm elections and jeopardize their chances of reclaiming the presidency in 2024, which they well could, the believers and disbelievers alike will suffer.

While the Republicans are transfixed by their own political predicaments, and the Democrats by theirs, the right course is for both parties to set aside their partisan interests and reform the Electoral Count Act, which ought not be a partisan undertaking.

Democrats, for their part, should regard reform of the Electoral Count Act as a victory — essential to shore up our faltering democracy and to prevent another attack like the one at the Capitol on Jan. 6, 2021. These are actually the worthiest of objectives.

Republicans should want to reform the law for these same reasons, and more. Of course, some may never support reform of the Electoral Count Act simply because the former president has voiced his opposition to the efforts to revise it. But there are consequential reasons of constitutional and political principle for the large remainder of Republicans to favor reform in spite of the former president’s opposition.

Republicans are proponents of limited federal government. They oppose aggregation of power in Washington and want it dispersed to the states. It should be anathema to them that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington . . . [although he doesn’t mention that the Constitution (Article I, Section 4, Clause 1) gives Congress the authority to change the rules for elections].

Constitutional conservatives, especially, should want Electoral Count Act reform, because they should be the first to understand that the law is plainly unconstitutional. Nothing in the Constitution empowers Congress to decide the validity of the electoral slates submitted by the states. In fact, the Constitution gives Congress no role whatsoever in choosing the president, save in the circumstance where no presidential candidate receives a majority of the electoral votes cast.

T____ acolytes like Mr. Cruz and Mr. Hawley should appreciate the need to reform this unconstitutional law. . . . No Republican should want to be an accessory to any successful attempt to overturn the next election — including an effort by Democrats to exploit the law.

If the Republicans want to prevent the Electoral Count Act from being exploited in 2024, several fundamental reforms are needed. First, Congress should formally give the federal courts, up to and including the Supreme Court, the power to resolve disputes over state electors and to ensure compliance with the established procedures for selecting presidential electors — and require the judiciary’s expeditious resolution of these disputes. Congress should then require itself to count the votes of electors that the federal courts have determined to be properly certified under state law.

Congress should also increase the number of members required both to voice an objection and to sustain one to as high a number as politically palatable. At the moment, only one member of each chamber is necessary to send an objection to the Senate and House for debate and resolution — an exceedingly low threshold that proved a deadly disservice to the country and the American people during the last election.

Currently, Congress has the power under Article II and the Necessary and Proper Clause to prevent states from changing the manner by which their electors are appointed after the election, but it has not clearly exercised that authority to prevent such postelection changes. It should do so.

Finally, the vice president’s important, but largely ministerial, role in the joint session where the electoral votes are counted should once and for all be clarified.

It is hardly overstatement to say that the future of our democracy depends on reform of the Electoral Count Act. Republicans and Democrats need to . . . fix this law before it enables the political equivalent of a civil war three years hence. The law is offensive to Republicans in constitutional and political principle, officiously aggrandizing unto Congress the constitutional prerogatives of the states. It is offensive to Democrats because it legislatively epitomizes a profound threat in waiting to America’s democracy. The needed changes, which would meet the political objections of both parties, should command broad bipartisan support in any responsible Congress. . . . 

Come to think of it, the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.

A Silver Lining, Perhaps

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The arguments Democratic senators made last night to reform the filibuster, e.g. by returning to the “talking” filibuster that can delay legislation as long as the minority keeps arguing against it, meaning that a bill can’t be stopped in its tracks by email, were so good that the refusal of two “Democratic” senators to vote for reform is either the result of stupidity or base motives.

If they truly believe the filibuster fosters bipartisan solutions, they are stupid. If they think the country will be better off with Republicans having total electoral control in various states, possibly resulting in the return of the worst president in history — whether he wins or not — they are horrible people. (We shouldn’t rule out the likelihood that they’re both stupid and horrible.)

Anyway, Paul Waldman of The Washington Posts looks on the bright side:

For years, Democrats have been waiting for Republicans to have their “epiphany,” to realize that scorched-earth politics and implacable opposition to anything a Democratic president might suggest are not good for the country. The epiphany has arrived — but it’s the Democrats who have finally come to understand reality, and are prepared to act accordingly.

This might seem like a moment of Democratic defeat [it sure as hell does]. But it could be a turning point, one that leads to more progress in the future.

At his Wednesday news conference, President Biden was asked whether he had over-promised and what he planned to change in the remainder of his term. In response, he said, “I did not anticipate that there’d be such a stalwart effort to make sure that the most important thing was that President Biden didn’t get anything done.”

Lots of people anticipated it — it has been a topic of debate for years, and Biden took a lot of criticism in the 2020 campaign from those who thought his claim that he could persuade Republicans to work with him was disingenuous or naive. Every reasonable observer knew that [Republicans] would approach his presidency with the same strategy it used with Barack Obama: Oppose almost everything the president proposes, and do everything in the party’s power to make him fail.

But what matters at the moment isn’t whether Biden ever believed [Republicans] would act differently. It’s that he seems ready to stop pretending that a dawn of bipartisan cooperation is about to break.

Now consider what happened that night, when Democratic Sens. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) joined with every Republican to shoot down a rules change that would have allowed two voting rights bills — bills Manchin and Sinema claim to support — to receive an up-or-down vote.

It was absolutely a defeat, for Biden, for his party, and most of all for voters. But it also represented a significant shift within the Democratic Party. That’s because every single Democrat apart from Manchin and Sinema supported setting aside the filibuster.

A variety of factors led them there. The obstructionism and radicalism of today’s [Republican Party] certainly played a part. Perhaps just as important, we’ve had our first real, detailed debate about the filibuster, and all the arguments in its defense were revealed to be so preposterous that it has become almost impossible for any honest person to oppose reforming it.

As Sen. Amy Klobuchar (D-Minn.), a more moderate Democrat, explained in a passionate plea, the Senate has adjusted filibuster rules to allow majority votes more than 160 times, including for such pressing matters as “approving compensation plans for commercial space accidents.”

So with two exceptions, every member of the Democratic caucus, from progressives such as Bernie Sanders (I-Vt.) and Elizabeth Warren (Mass.) to moderates such as Jon Tester (Mont.) and Angus King (I-Maine), agreed that the filibuster has to change here as well.

There was nothing like that kind of unanimity even a year ago. That glass is now 48/50ths full.

And the defeat of these voting rights bills, which is extremely painful for both Democratic legislators and their party’s base, might actually hasten the filibuster’s demise.

As I’ve noted, in every state where Democrats have a chance to take a Republican Senate seat, all Democratic primary candidates favor scrapping the filibuster. That includes both moderates and progressives. Though there are many things that divide, for instance, Rep. Conor Lamb and Lt. Gov. John Fetterman in Pennsylvania, they agree the filibuster should go.

Democrats, including the president who has spent so much time insisting that he can achieve bipartisanship, are simply done waiting for Republicans to see the light. The next step is for them to get mad enough to do something about it.

Which might happen. Even though the most likely outcome in 2022 is a Republican sweep (following the usual midterm election pattern), Democratic voters can and should be angry enough about the death of these voting bills — among many other things, including the Supreme Court’s likely overturning of Roe v. Wade this year — to organize, register and overcome Republican voter suppression to get to the polls in November.

If you’re a Democrat and you’re mad at Manchin and Sinema — and you should be — the answer is to make them irrelevant by electing a few more Democrats to the Senate.

Besides, they’ll probably be around for only a few more years. Manchin might not run for reelection in 2024, and if he does, he’ll probably lose, as long as Republicans find a halfway decent candidate in deep-red West Virginia. And after this, Sinema couldn’t win a Democratic primary for dogcatcher; if she runs again the same year, she’ll face a strong primary challenge [the latest poll shows she has an 8% — eight percent — approval rate among Arizona Democrats].

So it’s not hard to imagine the Senate considering voting rights again in the near future — and this time, there will be 50 votes to pass it.

Thanks to Manchin and Sinema, and to Republicans who remain just what they’ve been all along, Democrats can no longer afford to delude themselves about how politics works today. And for a change, they all know it.

The Best Argument Against the Filibuster: It’s Unconstitutional!

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There’s a rumor that Krysten Sinema (“Dem” – AZ) thinks her career — including being elected to the Senate — has been so impressive that her logical next step is to run for president. That’s why she doesn’t care that protecting the filibuster is killing the Democratic agenda and that, as a result, Democrats in Arizona hate her. She’s planning to run for president in 2024 under the banner of “bipartisanship”. It’s a ludicrous idea, but her big money donors are willing to fuel her fantasies. 

Filibuster reform may be dead for now but Thomas Geoghagen explains why the filibuster is  unconstitutional. From The New Republic: 

Over the course of many years and many think pieces, the case against the filibuster has been laid out. Typically, critics of the Jim Crow relic invoke various historical facts (some of which have apparently been lost on, or willfully ignored by, certain critical members of the Senate), as well as an array of practical and prudential bases. Onto the pile, however fruitlessly, let us add another: The filibuster is a plot against Vice President Kamala Harris—to take away her constitutional right to vote.

Article I, Section 3 of the Constitution makes it plain: Harris, as chair of the Senate, is given the responsibility to vote “when the Senate is equally divided.” In all the furor over the filibuster blocking voting rights legislation, keep in mind it is blocking Harris from this constitutional right, as well. The supermajority rule that ran counter to the Founders’ desires, now upheld by the filibuster’s status quo, is not just aiding in the disenfranchisement of voters by blocking meaningful voting rights legislation from passage—it’s also disenfranchising the woman sent to Washington to resolve the disputes of a divided Senate.

It would be fitting if Harris, given the chance to gavel the filibuster out of existence to pass the Freedom to Vote Act, reclaimed her rights at the same time. She can put that to the Senate on January 17 when any rules changes are being considered—by starting with a declaration that the filibuster is not just unfair or undemocratic but unconstitutional, as well.

The filibuster is not just a technical violation of Article I—though it is precisely that—it’s also a repudiation of its original design. That design created a bicameral legislature, with each house operating by majority rule, to replace the single legislative chamber that operated under the Articles of Confederation by supermajority or unanimous consent. By sneaking in a supermajority rule on the sly, as a procedural rule of debate, the Senate has essentially brought back a form of the obsolete Articles of Confederation. It shouldn’t really come as any surprise that the republic now faces a similar impetus toward disunion to the one it faced when the Articles were in place. The plot against Kamala Harris is not just a plot against the Constitution—it’s a force that threatens the existence of the United States itself.

It is without doubt a fact that the Framers wanted a deliberative legislative body. That’s why they divided the Congress into two houses—to provide a vital check and balance. Supermajority rule in the Senate upends the Framers’ intentions: It places too great a check on the House—without the House’s consent. More specifically, it inflicts an institutional injury on the House, as the “active principle of government” that the House is unable to redress. This is exactly what worried James Madison, Alexander Hamilton, and others who bitterly criticized supermajority rules.

Yes, as defenders of the filibuster point out, the Senate has a right to make rules as to its own proceedings, but trifling with majority rule crosses textual red lines. Beyond the aforementioned Vice President Voting Clause in Article 1, Section 3, there is also the “Presentment Clause” of Article I, Section 7, which says in two places—yes, twice—that any bill or resolution passed by the House and Senate, “shall, before it becomes law, be presented to the President,” and if sent back, then it must be “approved by two thirds of each House.” The Presentment Clause would make no sense if the Senate required more than a majority to send it to the president in the first place. Finally, there is the Enumeration of Super Majority Rules, the seven times in the text of the Constitution that specifically lay out where and when a supermajority is expressly required.

One might nevertheless ask, why not by majority rule permit Congress [to institute] rule by supermajority? Of course this is an academic question—for Congress, by vote of both Houses, has never adopted a supermajority rule. The filibuster is simply a rule of the Senate, which has the effect of limiting the ability of the Congress to act. But Congress itself has never approved it. Yes, there has long been a cloture rule for the so-called “talking” filibuster. In 1917, the Senate adopted such a rule, which then required a two-thirds vote—now reduced to three-fifths. And while this rule did have a disgraceful and pernicious effect in race-related matters, the talking filibuster of old only on rare occasions held up a majority vote, maybe once or twice a year or not at all. But in our time, the talking filibuster for which the rule was intended is gone; no one has to talk to block a bill. And what was a procedural rule to get to a vote faster is now a rule that stops a vote from happening at all.

No, Congress has not adopted and never would adopt such a rule. Why would the House consent? As it now exists, it lets the Senate place a much greater check on legislation passed by the House than the Framers ever intended. It’s bad enough that this upsets the balance of power between the Senate and House, but it also upends the balance of power between the federal government and the states. The Senate, representing the states, is blocking the House, representing the people.

For the sake of argument, let us assume the text of the Constitution is less explicit than it actually is. Allowing Rule 22, which bars a vote by the majority without even active debate, still violates two fundamental canons of constitutional interpretation. The first canon, or rule, is the expressio unius principle—listing the exceptions for supermajority implies the exclusion of all others. That principle is basic in constitutional interpretation. In the case of Powell v. McCormack, the Supreme Court barred the U.S. House from excluding Adam Clayton Powell as a member because of “unethical conduct.” That was not one of the bases listed in the Constitution, and the listing of those bases implied the exclusion of others.

Additionally, to allow the Senate to add a supermajority rule would violate a second canon, the so-called Federalism Canon—which calls for the balance between federal and state power to be left alone. The filibuster changes the relative balance of power between the Senate, representing the states, and the House, representing the people. It is no accident that in blocking voting rights legislation, it is being used to protect the states from being regulated.

Harris, as chair, could reach the same conclusions. Rather than just hope a Senate majority uses the “nuclear option” to rid us of the filibuster, she could press the button. For the reasons above, she could declare the supermajority for cloture to be in conflict with Article I.

She may fail in the attempt. A majority can overturn a ruling of the chair. It is not so easy even for some Democrats in the Senate to give up the filibuster. There are many, many other bills that the senators take up other than voting rights legislation. So individual senators are caught in a dilemma worthy of a class in game theory—though glad to remove it for A, they do not want to remove it for B, or maybe C, or maybe D, or maybe an unknown X that will arrive later in their six-year terms. So the filibuster remains in place forever—except now for the budget and for nominations to judgeships and political positions. In these two cases, the budget and nominations, there is no choice but to get rid of the filibuster or there would be institutional collapse of the courts and of the executive branch.

However, with the John Lewis Act and Freedom to Vote Act, we are speaking about the institutional collapse of democracy itself. Protecting the integrity of federal elections from state interference is necessary to the integrity of the federal government—it is an obligation that is set forth in the original Elections Clause, Article I, Section 4. It is the only clause, the only text, that says Congress can override any state regulation of a federal election. Ever since 1787, Article I, Section 4 has been in there, the original nuclear option, to protect the national government from institutional collapse. It is an outrage to use the filibuster to block even the power of the national government to save itself. Surely that must have at least the same priority as enacting a budget by majority rule.

Let the vice president show some muscle in defense of her country. Let the debate start on January 17 with a ruling from the chair that Rule 22 is in conflict with her own right to cast a vote when the Senate is evenly divided. Then let her dare the Senate to overrule her. To reclaim the right to vote in the blocked legislation, she should begin with reclaiming her own right to vote, as well.

By a quirk of history, the plot against America is now also a plot against a Black woman’s right to vote. Who says the vice president has nothing to do?