Two Questions for Those 44 Republican Senators

I’d love to ask 44 distinguished minority members of the U.S. Senate these questions:

After hearing the evidence that shows how much effort the former president put into changing the result of the election by repeatedly lying about winning; urging his followers to “fight like hell” to protect their country by keeping him in office; putting pressure on election officials, members of his administration and Congress; calling for his supporters to come to Washington at the same time Congress was meeting to certify the election; telling the crowd — some of whom had histories of violence and had discussed plans to storm the Capitol — to march to that very building, saying he would accompany them, it being his last chance to stop Congress from certifying Joe Biden’s election, do you think the president hoped or expected that he would keep his job because the angry crowd would arrive at the Capitol and “stop the steal” by peacefully protesting the transfer of power, or that they would do something more dramatic?

After hearing the evidence above, and knowing that the president watched the riot on television for hours while failing to intervene and failing to summon help, ignoring numerous pleas to do so, while wondering why other people at the White House weren’t as excited as he was; and that he eventually told the violent mob that they were “patriots” and “special people” whom he loved, after finally telling them to go home peacefully, but never once condemning the violence, do you think he should ever be allowed to become president again?

I don’t know how the 44 Republican senators who voted this week to stop the trial, based on an absurd reading of the Constitution, would answer these questions. I assume they’ll use that reading of the Constitution to say their hands are tied. They’ll claim the Constitution just won’t allow them to convict him and disqualify him from ever holding office again. That’s even though, after being exposed to all the evidence, they could accept the verdict of the Senate that the trial is perfectly appropriate or announce that they have reconsidered their earlier vote. They could do either of those things, because, yes, it’s so often easier to think the best of people rather than the worst.

It’s Time To Fix English Again

The House impeachment managers have submitted an 80-page “trial memorandum” explaining why the former president should be convicted in the Senate and disqualified from ever occupying a federal office again. It describes the ex-president’s lies regarding who won the election and his encouragement of the mob that attacked the Capitol. It also explains why it makes perfect sense from a legal, historical and practical perspective for the Senate to convict impeached officials even though they have left office.

In response, the creep’s lawyers have submitted a 14-page response that’s too stupid to discuss (although it will give most Republican senators an excuse to vote against conviction). 

Anyway, here’s a specific issue I want to discuss. It’s a grammatical problem with the U.S. Constitution. This is the troublesome passage:

The Senate shall have the sole Power to try all Impeachments. . . . Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States . . . 

Since you can’t remove somebody from office after they’ve left office, there seems to be a problem here. The former president’s lawyers (who are unlikely to ever receive a dime from their client) put it this way:

Since the 45th President is no longer “President,” the clause ‘shall be removed from Office on Impeachment for…’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio [“from the beginning”] as a legal nullity that runs patently contrary to the plain language of the Constitution.

So, although other officials have been convicted by the Senate after they’ve left office, and barring someone from holding office again used to be the main reason for impeaching somebody, as opposed to removing them from office, and almost all experts on the Constitution say it’s totally fine to convict somebody after they’ve left office, and presidents could commit all kinds of High Crimes and Misdemeanors near the end of their term if you couldn’t convict them after they left the White House, the “plain language” of the Constitution does include that three-letter word “and”.

If only James Madison, George Washington and their colleagues had used the phrase “and/or” instead of “and”! Judgment against an official would extend to removal “and/or” disqualification. There wouldn’t be any room for confusion. The Constitution’s meaning would have been perfectly clear.

Unfortunately, nobody at the Constitutional Convention was familiar with the phrase. The first known use of “and/or” occurred in 1853, sixty-four years after the Constitution was written. 

Alternatively, the framers could have used “or” instead of “and”, giving us “removal or disqualification”. But then some lawyer would have claimed that an official can’t be removed from office and disqualified at the same time. They’d argue that the Senate would have to choose between the two options, either one or the other (understanding “or” in this case as the “exclusive or”, meaning one or the other, not both). 

In the near future, we’ll learn how all this plays out in the Senate. Nobody seems to think 17 Republican senators will agree to convict the demagogue, and without 50 Democrats and 17 Republicans voting “Yes”, he will escape judgment again.

Going forward, however, I have a suggestion. We English speakers need to adopt a single term for what’s called the “inclusive or”, i.e. the meaning of “or” that implies “this or that or both this and that”. It’s rather amazing that it took hundreds of years for somebody to invent “and/or” to do the job. But since it’s not a word — unlike hyphens, a slash isn’t ordinarily used to combine other words — we need a new word to take on this function. Perhaps unsurprisingly, I suggest “andor” without a slash. “Andor” sounds the same as “and/or” and after a while it wouldn’t look weird.

This isn’t the first time I’ve argued for a change like this. Four and a half years ago, I pointed out that we should change the way we use quotation marks. I won’t go into the details again (you can review my argument at length here), but instead of writing sentences like these:

He said “Go away.”

I can spell “cat.” 

We should write them like this:

He said “Go away”.

“I can spell “cat”.

The quotation mark should go in front of the period, not after!

So far, my quotation mark suggestion hasn’t exactly taken the world by storm. Maybe I was simply ahead of my time. At any rate, please do consider adopting my suggestion from today andor my suggestion from 2016. (See how incredibly easy that is?)

Small States and Minority Rule

Every four years we elect a president. Almost every four years, we discuss the Electoral College. From Jesse Wegman of The New York Times:

As the 538 members of the Electoral College gather on Monday to carry out their constitutional duty and officially elect Joe Biden as the nation’s 46th president and Kamala Harris as his vice president, we are confronted again with the jarring reminder that it could easily have gone the other way. We came within a hairbreadth of re-electing a man who finished more than seven million votes behind his opponent — and we nearly repeated the shock of 2016, when Dxxxx Txxxx took office after coming in a distant second in the balloting.

No other election in the country is run like this. But why not? That question has been nagging at me for the past few years, particularly in the weeks since Election Day, as I’ve watched with morbid fascination the ludicrous effort by Mr. Txxxx and his allies to use the Electoral College to subvert the will of the majority of American voters and overturn an election that he lost.

The obvious answer is that, for the most part, we abide by the principle of majority rule. . . . 

In the last 20 years, Republicans have been gifted the White House while losing the popular vote twice, and it came distressingly close to happening for a third time this year. 

Since 2000, we’ve had six presidential elections. The candidate who got the most votes only won four of them. This year, shifting 44,000 votes to the loser in Arizona, Georgia and Wisconsin would have resulted in a 269-269 tie in the Electoral College. That would have moved the election to the House of Representatives, where each state’s delegation gets one vote, regardless of population. Since most states have Republican-majority representation in the House — even though the House has more Democrats — DDT would have presumably been re-elected, hard as that is to imagine. 

Among the comments the Times article received, one person said the Electoral College is fine, since we’re a collection of states, the United States of America, not a collection of citizens. He said it’s only fair that we pick a president based on which states the candidates win, not how many votes they get. Besides, he added, votes in the Electoral College are “roughly” assigned by population.

I don’t agree that because we’re called the United States, we should ignore majority rule when it coms to picking a president. After all, the states we live in are supposed to be “united”. But his statement about the Electoral College being “roughly” based on population made me wonder.

How would the 2020 election have turned out if votes in the Electoral College were “precisely” assigned by population, instead of “roughly”? Today, the largest state, California, gets 55 electoral votes and the smallest state, Wyoming, gets 3. But California’s population is 68 times Wyoming’s. So if the Electoral College were precisely allocated by population, California would get 204 electoral votes, not 55. Quite a difference. The next largest state, Texas, would get 150 instead of 38.

Would that have made the result in the Electoral College much different? It was surprising to see that it wouldn’t. If you do the same precise arithmetic for all 50 states and the District of Columbia, Joe Biden receives 974 electoral votes instead of 306 and DDT gets 730 instead of 232. That looks like a big difference, but the percentages are about the same. Biden would get 57.2% of the electoral votes with the precise arithmetic and 56.9% with the rough arithmetic. It works out that way because some big states, like California and New York, went for Biden and some, like Texas and Florida, went for DDT. When you average it all out, the Electoral College result would be about the same either way.

There would be a big difference, however. Big states would be much more important in the Electoral College than small states. If California got 204 electoral votes instead of 55, it would make even less difference who won a bunch of little states like Wyoming, Vermont and Alaska. In fact, assuming precise arithmetic, the 25 largest states would get 1,423 electoral votes vs. 288 for the 25 smallest. 

What this shows is that the current Electoral College is significantly skewed to benefit smaller states. Voters in those states play a bigger role than they should, based on how few of them there are. Being precise about population wouldn’t necessarily change the winner every time, but a more accurate Electoral College would reflect where people actually live in these “united” states. It would also reflect the cultural divisions in this country, since smaller states tend to be more rural.

Unfortunately, it’s not just the Electoral College that is skewed toward smaller states. According to the Constitution, each state gets as many votes in the Electoral College as it has members of Congress. Wyoming gets three electoral votes because it has two people in the Senate and one in the House of Representatives. California gets 55 electoral votes because it has two senators and 53 representatives in the House. If seats in Congress were precisely allocated by population, California would still have two senators, but it would elect almost four times as many members of the House of Representatives as Wyoming. The ratio in the House would be California’s 202 to Wyoming’s one, not 53 to one.

If the makeup of the House of Representatives isn’t unfair enough, consider the US Senate. Each state, regardless of population, gets two senators. It was designed to give small states the same representation as big states, so each state, regardless of population, gets to elect two. Maybe that made sense when there were only 13 states and they were relatively close in population. Now we have 50 states with a very wide range of populations.

In 1790, for example, the largest state, Virginia, had 13 times as many people as the smallest, Delaware. Today, as noted above, California has 68 times more people than Wyoming. Furthermore, the 50 members of the Senate from the largest 25 states represent almost 275 million people. The 50 senators from the smallest 25 states represent 49 million.

The imbalance is made even worse by the fact that the Senate is responsible for approving nominations to the Executive Branch (including all the officials in the president’s cabinet) and the federal judiciary (including the Supreme Court), as well as approving treaties. Because of the way senators were to be chosen, the authors of the Constitution assumed that members of the Senate would be more responsible than the unruly members of the House of Representatives. That’s hardly the case today.

In addition, smaller states, which tend to more rural, tend to vote for Republicans. Of the 25 largest states, 15 voted for Biden and 10 for his opponent. Of the 25 smallest, 10 voted for Biden and 15 for the other guy. That’s why the Senate is where progressive legislation goes to die and liberal nominees fall into comas waiting to be approved.

Add this all up and it’s easy to see that a Constitution written in 1789 doesn’t work very well for a large, complicated country in 2020. The Senate is skewed to benefit smaller, more Republican states, while the House of Representatives and the Electoral College, which chooses the president, are skewed the same way, although less so. This unfairness explains why Hillary Clinton could beat her opponent by 3 million votes and lose, why Joe Biden could beat the same opponent by 7 million votes but not necessarily win, and why forward-looking legislation that would make the United States a much better place to live has so little chance of success. Maybe shifting demographics will eventually help, but in the short run, we have to assume the United States will be subject to minority rule from Washington in important ways and much too often. 

There Is No “Congress”

It is true that the Constitution of the United States of America created a legislature. Its principal function is to make laws. It comprises the legislative branch of the federal government, the other two branches being the executive and the judicial.

The authors of the Constitution called this legislative branch “Congress”. They also divided this “Congress” into two parts.

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

When a law or a change to a law is proposed, the Senate and the House of Representatives must both endorse the proposal in order for it to become official, i.e. “the law of the land”. (The Executive branch, embodied by a “President”, also gets to participate in the process. Sometimes the Judicial branch does too.)

So far, so good.

The Constitution nowhere mentions political parties, but it only took a few years for a “two-party system” to develop.

The Founding Fathers did not originally intend for American politics to be partisan. . . .  Alexander Hamilton and James Madison . . . wrote specifically about the dangers of domestic political factions. In addition, the first president, George Washington, was not a member of any political party . . . Furthermore, he hoped that political parties would not be formed, fearing conflict and stagnation . . .

Nevertheless, the beginnings of the American two-party system merged from his immediate circle of advisers. Hamilton and Madison . . .  ended up being the core leaders in this emerging party system. It was the split camps of Federalists, given rise with Hamilton as a leader, and Democratic-Republicans, with Madison and Thomas Jefferson at the helm . . . that created the environment in which partisanship, once distasteful, came to being [Wikipedia].

How does the two-party system affect Congress? If the majority in both the Senate and the House belong to the same party, it doesn’t make that much difference. If, say, the Racoon Party has the majority in both houses, there is general agreement on which laws to adopt (since senators serve for six years and representatives only serve for two, the members of the two houses sometimes have different priorities even when they belong to the same party).

But what if the Racoons are the majority in the Senate and the Otters are the majority in the House? Or the other way around? It is more difficult for the two majorities to agree on what the country’s laws should be. Sometimes it’s almost impossible.

Since 1857, when the Republicans joined the Democrats as one of America’s two major parties, there have been eighty-two sessions of Congress. By my count, the same party has controlled both houses of Congress sixty-six times, leaving sixteen sessions in which Congress has been divided. We are living through one of those sixteen sessions now, since the Democrats control the House and the Republicans control the Senate.

As we would expect, with two different parties in charge, things are not going well.

For example, the Democrat-led House agreed on legislation in May, almost three months ago, in order to deal with the suffering and disruption caused by Covid-19. Among other things, House Bill 6800 (unfortunately called “The Heroes Act”) would extend the $600 weekly increase in unemployment insurance, make another round of direct payments (up to $6,000 for a family), provide $25 billion to the U.S. Postal Service and increase aid to state and local governments.

The Republican-led Senate has not taken a vote on the House’s bill. Nor has the Senate proposed its own version of legislation to address the same issues (which would then be subject to negotiation with the House). The result is that the $600 increase in unemployment insurance agreed to earlier this year has lapsed. A moratorium on housing evictions is also ending.

So the country is in quite a pickle.

Now here’s what motivated me to express myself today. It’s a headline in The Washington Post.

Congress deeply unpopular again as gridlock on coronavirus relief has real-life consequences

Here’s one from USA Today.

Congress leaves town without a coronavirus stimulus deal, allowing $600 unemployment benefit to end

Here’s a classic example of the problem from an experienced New York Times reporter:

A conservative Republican House member profanely accosts a Democratic congresswoman as she strides up the Capitol steps to do her job during multiple national calamities.

With expanded jobless benefits supporting tens of millions of fearful Americans about to expire and a pandemic raging, Senate Republicans and the [Republican] White House cannot agree among themselves about how to respond, let alone begin to bargain with Democrats.

In a private party session, arch-conservative Republicans ambush their top female leader and demand her ouster over political and policy differences.

And that’s just the past few days.

By nearly any measure, Congress is a toxic mess . . .

Jonathan Chait is a columnist for New York Magazine. He referred to the problem twice in the past month:

If I could change one thing about political coverage, it would be the practice of attributing actions by one party to “Congress” [June 27].

The single worst practice in political journalism is attributing decisions by one party to “Congress” [July 26].

I’d make it “actions or inaction by one party”, but he made a very good point.

My suggestion is that when two different parties are in charge of Congress, people who write about politics for a living should make an effort to specify which party in which house is doing (or not doing) something. That would help readers understand where the dysfunction usually lies (hint: it’s not the Democratic side).

Since my suggesting this will have no effect, I’ll alternatively suggest that when we readers see references to Congress in times like this, we keep in mind that Congress has two parts and that one of those parts (same hint) is totally screwed up.

In fact, in times like this, “Congress” doesn’t really exist.