Whereof One Can Speak 🇺🇦

Nothing special, one post at a time since 2012

A Plan To Increase Majority Rule

Most bills introduced in Congress never make it out of committee, let alone receive a vote on the House or Senate floor. But even when a member of Congress knows their bill is doomed, they can still have a good reason for introducing it. For one thing, it can identify a problem and let people know how to fix it. 

Earlier this week, Rep. Sean Casten, a Democrat who represents the 6th district of Illinois southwest of Chicago, submitted two bills as part of what he called “A Common Sense Vision for American Democracy”. As part of the same package, he proposed a resolution suggesting an amendment to the Constitution.

He gave a very good speech explaining why he did this. He argued that the principal reason Congress rarely accomplishes anything important, even when it’s something favored by most voters, is that minority rule is built into our system of government. It’s a rather obvious point, but worth repeating: if majority rule was a bigger feature of our government, it would be easier for our government to do things the majority of us want our government to do.

I recommend reading or watching Rep. Casten’s whole speech (although he attributes a point of view to his Republican colleagues that they don’t share). Here’s some of it:

People say: Why is it that people in this institution are failing to do things that are overwhelmingly popular?

When we see those little polls that say Congress has a 20 percent approval rating, that should be a red light that we got to fix things…. If we are going to do that, we have to first acknowledge some unpleasant, if self-evident, truths.

First of all, … our Founders actually weren’t perfect. They weren’t Moses. They weren’t Jesus. They were fallible people just like us….

The second thing we got to acknowledge is that our Founders didn’t actually think the Constitution was perfect….

The third thing, and this is the one that I think is most important for us here today, is that our Founders did not understand democracy nearly as well as we do…. They were an amazing group of people. They did an amazing thing, but we have 233 years of wisdom that they did not have….

What’s clear, the answer to that question, ‘‘why is it that we can’t do things that the majority of the American people want?’’ is in large part because while our Founders paid lip service to democracy … they didn’t trust that people in a fully democratic society could elect a President, so they created the Electoral College. They created the Senate expressly to frustrate the will of the majority….

When it was founded, the biggest state had 10 times the population of the smallest state. Today, it is up to almost 70. So, we have massively disenfranchised huge numbers of … people because of a structure that was designed to disenfranchise large, but not as big, numbers of people.

We kick a bill out of here, you can get 50 votes in the Senate with people representing 17 percent of the United States population.

When our voters ask us why we can’t get things done that are supported by the will of the majority, it is built into our system.

And then finally, our Founders created the Supreme Court with largely no checks and balances — lifetime appointments, no ethics obligations….

Remember, Marbury v. Madison that significantly expanded the power of the Court relative to the legislative branch came after the Constitution was signed. This is a different structure than what they contemplated, and effectively gave the Supreme Court not the ability to write laws but darn close to it, because you get one Supreme Court Justice that flips the majority, and all of a sudden, you can say that our work here, all the good work we put in [in Congress], is unconstitutional and overturned …That is not majoritarian….

In a healthy democracy, we should all be competing for that mythical center of the electorate. We shouldn’t be sitting there and saying: I have a 20-year plan to stack the Court with Justices who will agree with me to overturn the will of the American people.

We shouldn’t be sitting there saying: Well, I can control the Senate if I just find a couple of senate seats in a couple of low-population states with cheap TV markets….

We will be healthier, both of our parties, if we commit ourselves to the idea, as Jefferson said, that if we are not representing the will of the majority, because no form of government ever consistently does, let’s fix it so that we do, which brings me to the three bills we introduced today.

The first bill is a constitutional amendment to add 12 national at-large Senators….Imagine what would happen if 10 percent of the Senate had an interest in representing the will of the American people….It would make it that much harder for them to filibuster a good bill that comes out of here because why would you filibuster something that is supported by the majority of the American people?

It would also, by adding 12 senators, add 12 more electors [to the Electoral College] who represented the popular vote. That would reduce the number of scenarios where we could have the popular vote winner lose an election to the electoral vote winner. That is the first bill.

The second one is to expand this House, and in the next Census, 2030, say let’s go out and look at the smallest State in the Union and say the size of that State is going to set the size of a congressional district, because if we are the House of Representatives, we should make sure that all of us represent as close as we can the same number of people.

The House hasn’t grown since 1911. The population of the United States has grown three and a half times since 1911…. So let’s expand the House and make us more representative. If we did that based on the last Census, that would add something like 130 seats to this House [e.g. California would have 67 representatives instead of 52; Florida would have 37 instead of 28].

Again, that would add more votes to the Electoral College. It would make [presidential elections] more representative.

And then the third bill … is to restore the Supreme Court to their Article III responsibilities….Article III of the Constitution lays out the scope of the Supreme Court. It says that they are responsible for matters of admiralty law, maritime law, matters relating to ambassadors, disputes between the States, and appellate jurisdictions the Congress may see fit to provide from time to time.

If we have a Court that is consistently not fulfilling the will of the American people, if we have a Court that is consistently encroaching on our power here in this Chamber, overturning our judgments and what we do, it is in our power to … reduce their appellate jurisdiction…. If the courts are going to say that a law we passed is unconstitutional, we will select from a pool of circuit court judges, appellate court judges, at random, and it will take at least 70 percent of them to overturn a bill…It takes two-thirds for us to overturn a veto, right? Let’s hold them to the same standard….

Also, it would eliminate the shadow docket. Why do we allow ourselves to live in a world where the Supreme Court can just decide to rule on something and not even explain it? Let’s get rid of the shadow docket.

I am not perfect. You aren’t perfect, Mr. Speaker. None of us in this room are perfect. Our Founders weren’t perfect, but we are perfectible, and we have a job that affords us the opportunity and the responsibility to make our government a little bit better, a little bit more responsive, a little bit more democratic.

Unquote.

It may take a long time to do the kind of things Rep. Casten (and others) want to do. It may never happen. But more of us should understand why the president, Congress and the Supreme Court aren’t as representative as they should be. Maybe more of us will vote for politicians who want more majority rule. Maybe one day somebody we vote for will do something about it.

Next time, however, I’ll offer a corrective to Rep. Casten’s speech. He may have been giving his Republican colleagues the benefit of the doubt, but he claimed they believe in something they really don’t.

What Is To Be Done?

That’s the title of an 1863 novel by Nikolai Chernyshevsky. It’s about a woman who escapes the control of her family and finds economic independence. (Lenin borrowed the title for a pamphlet about a few “burning questions” in 1902.)

It’s the phrase that came to mind in reaction to the Supreme Court Six’s effort to make America fit their reactionary politics.

Here are two aspects of the situation that make it remarkable (there are others).

One is that the six reactionary Republicans are trying to justify their bizarre rulings by referring to made-up legal theories. As right-wing judges have done for years, they cite “originalism” and “textualism”, the ideas that the Court should pay close attention to the Constitution’s precise text and the specific intentions of its authors. It just so happens that the text and the perceived intentions always support whatever justices like Alito and Thomas prefer to do. Justice Kagan pointed this out in her dissent to the EPA case:

The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.

The “major questions doctrine” is a classic conservative invention. Paul Waldman explains that one:

[It] holds that agencies can’t regulate in ways that aren’t explicitly laid out in statutes if what they’re doing is too consequential — into precedent. Yet in practice, everyone knows that the major questions doctrine, being vague and versatile, will be used only to strike down agency regulations the conservatives don’t like; regulations from Republican administrations they find pleasing will be left intact.

Another right-wing invention concerns “independent” state legislatures. Mr. Waldman continues:

Lest anyone think, on the final day of its term, that the court wasn’t champing at the bit to give Republicans even more power, it announced it will be hearing the case of Moore v. Harper. That’s a challenge to the North Carolina Supreme Court’s striking down of an absurdly gerrymandered congressional map on the grounds that it violated the state constitution.

Conservatives are eager to use this case to enshrine the “independent state legislature theory,” which would effectively say that legislatures alone can set rules for how federal elections are carried out, making state constitutions, governors’ vetoes and the decisions of state courts essentially irrelevant.

Why are conservatives attracted to this idea? … The reason is simple: At this moment in history, there are multiple states where Republicans have successfully gerrymandered themselves into control of a state legislature despite the fact that the electorate of that state is closely divided.

In these states — including Wisconsin, North Carolina, Pennsylvania and Georgia — … the legislature remains firmly in Republican hands no matter what. So if the legislature alone has the power to write election rules [no matter what the state’s constitution or courts say], they can [help] Republicans win.

The Supreme Court Six’s decision-making is all about the Republican agenda. It’s all about power.

So how did we get here? That brings up another remarkable aspect of our situation. Trump toady and US senator Lindsey Graham is outraged that Senate Democrats might want to do something about this renegade Court (like changing the filibuster rule, which Republicans did in 2017 in order to easily install Supreme Court justices of their choosing). Graham says it took 50 years for Republicans to skew the Court and now Democrats want to clean up the mess in a matter of weeks.

Josh Marshall responded to Graham:

This is true. It took them 50 years. But it’s also the first time in history a party plotted to take over the Courts like this. There were 3 Democratic appointees on the Court when it decided Roe. And one of those was one of the two dissenters. The Roe Court was dominated by Eisenhower and mostly Nixon appointees. Yes, lots of elections [over 50 years]. But the first time in American history any party or movement tried to do such a thing. And when the election thing stopped working, they started stealing seats.

The best you can say about the Republican capture of the Courts is that they stole it fair and square, to paraphrase Theodore Roosevelt. When it wasn’t stealing seats, it was winning elections with the fewest votes, i.e., exploiting the minoritarian quirks of the political system.

… What Graham is complaining about here is that Democrats want to put the whole thing before the peoples representatives with an up or down vote, i.e. majority rule. Graham is saying that’s not fair. The minority gets to say you can’t vote on it….

Having captured the courts through unprecedented political means, Republicans like Graham now want to dive headlong onto the fainting couch when the other side wants to repair the damage by political means. And unlike the crafty efforts to steal seats or exploit the minoritarian quirks of the Constitution, the remedy is the most foundational of democratic remedies, passing laws by majority vote. Whether Democrats will be able to pull this off will come down to the results of the November election.

Republicans like Graham are so deep in the world of partisan scheming and theft that a majority vote looks like the ultimate travesty. The simple reality is that the corrupt Court majority is the fruit of Republican corruption and the answer is majority rule.

But what can be done? I want to blog about that next time.

How To Fix “Our” Problems, Including Guns

After our two most recent massacres, a group of senators is discussing federal gun control legislation. There’s no reason to think they’ll come up with anything that enough Republican senators will support (it’s not even clear that the Senate’s most conservative Democrat — from rural West Virginia — will support something that upsets the gun cult). 

So consider the final paragraphs of today’s New York Times editorial:

In Washington, D.C., there is talk that Republican and Democratic lawmakers might make a deal on some type of national red flag law, which would allow the police to take guns away from people judged to be an imminent danger to themselves or others.

Senator Chris Murphy, Democrat of Connecticut, has been leading a bipartisan group of senators that is considering establishing a more comprehensive federal background check system, a reform supported by 88 percent of Americans.

We have seen these bipartisan efforts on gun safety measures come and go without results. Still, in the face of Republican intransigence, Democrats — Mr. Biden, in particular — should do whatever they can. Senator Murphy, who has led the charge for tougher gun regulations since Sandy Hook, put it well on the floor of the Senate this past week:

“What are we doing?” he asked his colleagues. “Why do you go through all the hassle of getting this job, of putting yourself in a position of authority” he wondered, if the answer is to do nothing “as the slaughter increases, as our kids run for their lives?”

It’s a question that speaks to the Senate directly and the entire system of American government more broadly. Yes, the country’s democratic system represents the diversity of views in this country on guns. But as currently structured, Congress is fundamentally unresponsive to the needs of its most vulnerable citizens and has been corrupted by powerful interest groups, allowing those groups to block even modest changes that the vast majority of Americans support.

We Americans all share this vast country and need to figure out how to make it better and keep one another alive and thriving. Right now, we’re failing at that primary responsibility. There are glimmers of hope, especially at the state level, that things are changing. But even there, progress is agonizingly slow and won’t be enough for the hundreds of Americans who will be shot today and tomorrow and every day until action is taken.

Unquote. 

The Times editorial board says we Americans” are failing. Earlier in the editorial, they say the United States is failing. In other editorials, they’ve said Congress is failing. They only once suggest that it’s Republican politicians who are resisting gun control legislation (“in the face of Republican intransigence”), and that their resistance is causing “we Americans”, the United States and Congress to fail.

The Times doesn’t suggest it, but there’s one way to address “our” failure. There are already so many guns in circulation that the problem might never be sufficiently addressed, but there’s a sure-fire way to make a dent in it:

  1. Elect Democratic presidents.
  2. Elect a Democratic majority in the House of Representatives.
  3. Elect a Democratic majority in the Senate, a majority that includes enough senators willing to abolish or reform the Senate filibuster (the Senate’s absurd rule that permits 41 senators to stop the other 59 from passing most legislation).
  4. After taking care of the filibuster, the Democratic president and Democratic Congress will be able to do lots of things, including gun control legislation.
  5. Among all those things will be adding four qualified justices to the Supreme Court, the number of justices needed to restore sanity there.

If that sounds too complicated, there’s a simpler solution:

  1. Nobody ever votes for a Republican again.

Understanding Their Perspective, and Thus Their Agenda

Jay Rosen of New York University recently listed the things he spends “most time puzzling about these days”. Here are his top two, although I’ve reversed the order, because one of them describes the world as most Republicans see it, a perspective that helps generate their warped political agenda:

        1) The Republican Party is both counter-majoritarian and counter-factual.

By “counter-majoritarian” I mean the Republicans see themselves as an embattled . . . minority who will lose any hope of holding power, and suffer a catastrophic loss of status, unless extraordinary measures are taken to defeat a sprawling threat to their way of life. This threat comes from almost all major institutions, with the exception of church and military. 

It includes — they believe — an activist government opening the borders to immigrants, Black Lives Matter militants destroying property and intimidating police, a secretive deep state that undermines conservative candidacies, “woke” corporations practicing political correctness, big tech companies tilting the platform against them, a hostile education system with its alien-to-us universities, an entertainment culture at odds with traditional values, and the master villain in the scheme, the mainstream media, holding it all together with its vastly unequal treatment of liberals and conservatives. 

These are dark forces that cannot be overcome by running good candidates, turning out voters, and winning the battle of ideas. Which, again, is what I mean by counter-majoritarian. Something stronger is required. Like the attack on the Capitol, January 6, 2021. 

Stronger measures include making stuff up about election fraud, about responsibility for the attack on the Capitol, about the safety of vaccines— to name just three. A counter-majoritarian [political party] thus implies and requires a counter-factual party discourse, committed to pushing conspiracy theories and other strategic falsehoods that portray the minority as justified in taking extreme measures. 

The conflict with journalism and its imperative of verification is structural, meaning: what holds the party together requires a permanent state of war with the press, because what holds the party together can never pass a simple fact check. This is a stage beyond working the refs and calling out liberal bias. 

Basic to what the Republican Party stands for is freedom from fact. For it to prevail, journalism must fail. There is nothing in the [journalistic] playbook about that.

        2) We have a two-party system and one of the two is [against democracy].

The Republican Party tried to overturn the results of a free and fair election. When that failed it did not purge the insurrectionists and begin to reform itself; rather, it continued the attack by other means, such as state laws making it harder to vote, or a continuation of the Big Lie that [somebody else] actually won

By “anti-democratic” I mean willing to destroy key institutions to prevail in the contest for power. This is true, not only of individual politicians, but of the party as a whole. As (Republican) and Washington Post columnist Michael Gerson writes, “For the activist base of the Republican Party, affirming that [the loser] won the 2020 presidential contest has become a qualification for membership in good standing.” A qualification for membership. 

Journalists had adapted to the old system by developing a “both sides” model of news coverage. It locates the duties of a non-partisan press in the middle between roughly similar parties with competing philosophies. That mental model still undergirds almost all activity in political journalism. But it is falling apart. As I wrote five years ago, asymmetry between the major parties fries the circuits of the mainstream press. 

We are well beyond that point now. Now we live in a two-party world where one of the two is anti-democratic. Circuits fried, the press has to figure out what to do . . . 

Unquote.

A thought occurred to me after reading Prof. Rosen’s post, so I left a comment:

It seems that the two biggest purveyors of right-wing propaganda and disinformation in the US are Fox News (the Murdochs) and Facebook (Zuckerberg). Do we have to accept the present behavior of these two institutions — actually, the behavior of these individuals — as facts of nature or are there practical ways to reduce their negative influence? Ways to address the problem have been suggested, but maybe there needs to be a more organized, targeted approach.

What do you do to sociopathic billionaires in order to get them to cease and desist? I don’t know, but that’s why people tried to assassinate Hitler.

The President and Congress Can Protect the Right to Vote

Now that the American Rescue Plan is on the brink of becoming law, the Biden administration and Congressional Democrats are giving more attention to voting rights and the restoration of majority rule. In response, Republican politicians are producing attacks like this from Sen. Cassidy of Louisiana:

Democrats are selling out their own voters in a brazen attempt to permanently solidify their majority. States make their own voting laws, not the federal government. This power grab is shameful.

Maybe Cassidy isn’t familiar with the Constitution:

Article 1, Section 4: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Amendment XVII: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years . . . 

From CNBC:

President Joe Biden on Sunday signed an executive order aimed at helping to ensure all Americans have the right to vote by increasing access to voter registration services and information.

Biden’s executive order aims to take initial steps toward making the polls more accessible to Black and other minority voters, including Native Americans and people with disabilities.

It also calls for initiatives to improve access to voting for federal employees, active duty military and other voters overseas, and Americans in federal prison.

The executive order directs federal agencies to increase voters’ access to registration and information on elections online, as well as through more regular distribution of vote by mail and voter registration applications.

The executive order also calls for federal agencies to better coordinate with state governments on voter registration, as well as for updating the website Vote.gov.

Biden also called for Congress to restore the Voting Rights Act, which was signed into law in 1965 following a violent protest in Selma, Alabama, that left some participants injured.

The late Rep. John Lewis, D-Ga., who was one of the activists leading the march, suffered a fractured skull. Lewis passed away last year.

Biden’s executive order coincides with the 56th anniversary of that protest, known as Bloody Sunday.

“Today, on the anniversary of Bloody Sunday, I am signing an executive order to make it easier for eligible voters to register to vote and improve access to voting,” Biden said in prepared remarks.

“Every eligible voter should be able to vote and have that vote counted. If you have the best ideas, you have nothing to hide. Let the people vote.”

Biden’s executive order is an “initial step,” according to the White House. The president plans to work with Congress to restore the Voting Rights Act, which eliminated discriminatory practices such as requiring literacy tests in order to vote.

“I also urge Congress to fully restore the Voting Rights Act, named in John Lewis’ honor,” Biden said.

In 2013, the Supreme Court invalidated a central plank of the act which required nine states with a history of discrimination, mostly in the south, to receive federal approval to change their election laws.

Biden also plans to work with lawmakers to pass the For the People Act that was passed by the House last week, which includes additional reforms to make voting “equitable and accessible.”

“This is a landmark piece of legislation that is urgently needed to protect the right to vote, the integrity of our elections, and to repair and strengthen our democracy,” Biden said.

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