“Purity” and “Quality”: A Crisis in the Making

More than 100 experts on democracy, from John Aldrich to Daniel Ziblatt, have issued a “statement of concern” regarding the imminent crisis in American politics:

We, the undersigned, are scholars of democracy who have watched the recent deterioration of U.S. elections and liberal democracy with growing alarm. Specifically, we have watched with deep concern as Republican-led state legislatures across the country have in recent months proposed or implemented what we consider radical changes to core electoral procedures in response to unproven and intentionally destructive allegations of a stolen election. Collectively, these initiatives are transforming several states into political systems that no longer meet the minimum conditions for free and fair elections. Hence, our entire democracy is now at risk.

When democracy breaks down, it typically takes many years, often decades, to reverse the downward spiral. In the process, violence and corruption typically flourish, and talent and wealth flee to more stable countries, undermining national prosperity. It is not just our venerated institutions and norms that are at risk—it is our future national standing, strength, and ability to compete globally.

Statutory changes in large key electoral battleground states are dangerously politicizing the process of electoral administration, with Republican-controlled legislatures giving themselves the power to override electoral outcomes on unproven allegations should Democrats win more votes. They are seeking to restrict access to the ballot, the most basic principle underlying the right of all adult American citizens to participate in our democracy. They are also putting in place criminal sentences and fines meant to intimidate and scare away poll workers and nonpartisan administrators. State legislatures have advanced initiatives that curtail voting methods now preferred by Democratic-leaning constituencies, such as early voting and mail voting. Republican lawmakers have openly talked about ensuring the “purity” and “quality” of the vote, echoing arguments widely used across the Jim Crow South as reasons for restricting the Black vote.

State legislators supporting these changes have cited the urgency of “electoral integrity” and the need to ensure that elections are secure and free of fraud. But by multiple expert judgments, the 2020 election was extremely secure and free of fraud. The reason that Republican voters have concerns is because many Republican officials, led by former President Donald Trump, have manufactured false claims of fraud, claims that have been repeatedly rejected by courts of law, and which Trump’s own lawyers have acknowledged were mere speculation when they testified about them before judges.

In future elections, these laws politicizing the administration and certification of elections could enable some state legislatures or partisan election officials to do what they failed to do in 2020: reverse the outcome of a free and fair election. Further, these laws could entrench extended minority rule, violating the basic and longstanding democratic principle that parties that get the most votes should win elections.

Democracy rests on certain elemental institutional and normative conditions. Elections must be neutrally and fairly administered. They must be free of manipulation. Every citizen who is qualified must have an equal right to vote, unhindered by obstruction. And when they lose elections, political parties and their candidates and supporters must be willing to accept defeat and acknowledge the legitimacy of the outcome. The refusal of prominent Republicans to accept the outcome of the 2020 election, and the anti-democratic laws adopted (or approaching adoption) in Arizona, Arkansas, Florida, Georgia, Iowa, Montana and Texas—and under serious consideration in other Republican-controlled states—violate these principles. More profoundly, these actions call into question whether the United States will remain a democracy. As scholars of democracy, we condemn these actions in the strongest possible terms as a betrayal of our precious democratic heritage.

The most effective remedy for these anti-democratic laws at the state level is federal action to protect equal access of all citizens to the ballot and to guarantee free and fair elections. Just as it ultimately took federal voting rights law to put an end to state-led voter suppression laws throughout the South, so federal law must once again ensure that American citizens’ voting rights do not depend on which party or faction happens to be dominant in their state legislature, and that votes are cast and counted equally, regardless of the state or jurisdiction in which a citizen happens to live. This is widely recognized as a fundamental principle of electoral integrity in democracies around the world.

A new voting rights law (such as that proposed in the John Lewis Voting Rights Act) is essential but alone is not enough. True electoral integrity demands a comprehensive set of national standards that ensure the sanctity and independence of election administration, guarantee that all voters can freely exercise their right to vote, prevent partisan gerrymandering from giving dominant parties in the states an unfair advantage in the process of drawing congressional districts, and regulate ethics and money in politics.

It is always far better for major democracy reforms to be bipartisan, to give change the broadest possible legitimacy. However, in the current hyper-polarized political context such broad bipartisan support is sadly lacking. Elected Republican leaders have had numerous opportunities to repudiate Trump and his “Stop the Steal” crusade, which led to the violent attack on the U.S. Capitol on January 6. Each time, they have sidestepped the truth and enabled the lie to spread.

We urge members of Congress to do whatever is necessary—including suspending the filibuster—in order to pass national voting and election administration standards that both guarantee the vote to all Americans equally, and prevent state legislatures from manipulating the rules in order to manufacture the result they want. Our democracy is fundamentally at stake. History will judge what we do at this moment.

Unquote.

The two Democratic senators who seem most reluctant to suspend the filibuster in order to protect democracy should read this statement.

Senator Joseph Manchin
306 Hart Senate Office Building
Washington D.C. 20510

Senator Kyrsten Sinema
317 Hart Senate Office Building
Washington D.C. 20510

Bad News and Possible Good News

The bad news isn’t actually news, but it’s good news that more people are finally admitting how bad it is. From Charles Pierce of Esquire:

Call me the Wet Blanket of the Gods, but I despair of ever making common cause with people who volunteer to live in Bedlam. From IPSOS:

. . . 56% of Republicans believe the election was rigged or the result of illegal voting, and 53% think [X] is the actual President, not Joe Biden.

There is no longer any reason to try to “understand” these people. Nor should there be any compunction about doing whatever we can to read them out of American politics, because they clearly have opted out on their own. They should be considered anathema, as should the entire Republican Party and the modern conservative movement that animates it.

Anything that can be done without including them should be done for the good—to say nothing of the sanity—of the country. Raw political power should be used to push through whatever of this administration’s policy priorities can be passed without any Republican help whatsoever. Majoritarianism should be invoked without mercy, and by whatever legitimate means necessary, and the window of opportunity to do that is closing fast.

It doesn’t matter if 53 percent of them say they believe the former president* is still the president* because they actually believe it, or they say it because it makes them one of The Elect. The effect on democracy is the same. They are poison in the bloodstream. And they’re proud of it.

Only 30% of Republicans feel confident that absentee or mail-in ballots were accurately counted . . . As a result, 87% of Republicans believe it is important that the government place new limits on voting to protect elections from fraud. Finally, 63% percent of Republicans think [X] should run for President again in 2024 . . . 

This is beyond the beyond. There is no compromise with this. There is no common ground. There is no deal to be struck. Millions of our fellow citizens are lost in rebellion against reality, and the only solution for the common good is to isolate them from decision-making and hope enough of them find their way back to make the country governable again. I’m not optimistic.

Unquote.

Today it was announced that the Manhattan district attorney has convened a grand jury to look at possible criminal behavior by the former president, his associates or his company. It’s unlikely the grand jury will indict anybody soon, but it’s a good development. Maybe he’ll have to run for president from jail.

And some observers think it’s becoming more likely the Senate filibuster’s stranglehold on progress will be loosened. From David Atkins of Washington Monthly:

The pressure to end the filibuster is getting strong enough you can feel all way from Arizona to West Virginia. But this time the impetus isn’t coming from outside activists or anti-gerrymandering and vote suppression reformers: it’s coming from inexorable forces within Congress itself.

A series of crucial votes looms in the near future, and it’s not clear that the internal calculus of Republican senators in the [X] era can permit a compromise with Democrats. Even less can Democrats permit an entire year and a half of legislative stalemate that not only threatens to derail democracy but would functionally disable the basic functions of government.

The immediate triggers for all this are 1) the imperiled January 6th Commission; 2) the debt ceiling fight; and 3) rising awareness that if nothing is done to curtail it, Republicans will simply rig elections in their favor and even refuse to certify their defeat even if they do lose their own rigged game. . . . 

The hostility of Senate Republicans toward accepting even the basic premises of a bipartisan commission to examine the January 6th insurrection on the Capitol has pulled a wet blanket over the hopes of optimists seeking to avoid partisan entrenchment. It is possible that Republicans are simply using hardball negotiating tactics and will eventually . . .  strike an agreement. But it’s unlikely. . . . 

Democrats, meanwhile, cannot afford not to investigate it. It was the most damaging assault on the foundations of American democracy since the Civil War, and members of Congress themselves were just minutes from potentially being murdered by the right-wing mob. Pressure will mount considerably to push the Democratic senators still defending the filibuster (most notably Arizona Senator Kyrsten Sinema and West Virginia Senator Joe Manchin) to change their stance if Republicans refuse to come to the table . . . 

But an even bigger battle looms ahead of the commission. As Dave Dayen notes at The American Prospect, Republicans in Congress are even likelier than they were in the Obama Administration to hold the government hostage over the debt limit–thereby threatening the full faith and credit of the United States Treasury. Democrats, for their part, are far less inclined to lend credibility to conservative crocodile tears about deficits or hamstring their own ability to help people or craft policy. . . . 

Ryan Grim is confident enough in this trajectory to predict that this is how the filibuster goes down. Grim believes that the debt ceiling will be the cue to enter Act II of Adam Jentleson’s speculative timeline for the end of the filibuster in his book Kill Switch: the flash point that will turn Manchin’s and Sinema’s Mom-and-apple-pie defenses of the filibuster into regretful reforms. There is good reason believe this analysis is correct. . . .

I’m Intentionally Avoiding This Topic

It’s too damn depressing. But for the record, here are two stories from the front page of The New York Times:

— With Florida Bill, Republicans Continue Unrelenting Push to Restrict Voting

Republican lawmakers are marching ahead to overhaul voting systems in states where they control the government, Next up: Texas

— G.O.P. Seeks to Empower Poll Watchers, Raising Intimidation Worries

As Republican lawmakers seek to make voting harder and more confusing, they are simultaneously making a push to grant more autonomy to partisan poll watchers. In the past, poll watchers have been used to intimidate voters and harass workers.

One from The Washington Post:

— As [ex-president] seizes on Arizona ballot audit, election officials fear partisan vote counts could be the norm in future elections

The GOP-backed recount of Maricopa County’s ballots has been criticized for abandoning state guidelines and allowing the rules to be set by a private contractor who promoted claims that the election was stolen.

And a full story from The Guardian:

— Why a filibuster showdown in the US Senate is unavoidable

During Joe Biden’s first 100 days in office, there are few issues more pressing than the escalating attack on the right to vote in America. Democrats may be running out of time to address it.

As Republicans have pushed more than 360 bills across the country to restrict access to the ballot, the president and Democrats have strongly condemned those efforts, but they’ve been unable to stop them. Even though Democrats control both chambers of Congress in Washington, they can’t pass a sweeping voting rights bill because they don’t have enough votes to get rid of the filibuster, an arcane senate rule that requires 60 votes to advance legislation. A showdown over the filibuster has loomed over the first 100 days of the Biden administration, but during the next 100 days, it’s clear that a showdown over getting rid of the procedure is unavoidable.

Amanda Litman, the executive director of the Run for Something, a group that recruits candidates for state legislative races, told me this week she thinks some Democrats still don’t fully appreciate how dangerous and consequential the GOP’s ongoing efforts are. “This is really an existential crisis. It’s a five-alarm fire. But I’m not sure it’s quite sunk in for members of the United States Senate or the Democratic party writ large,” she told me.

“If the Senate does not kill the filibuster and pass voting rights reforms … Democrats are going to lose control of the House and likely the Senate forever. You don’t put these worms back into a can. You can’t undo this quite easily,” she added.

Chuck Schumer, the Democratic leader in the Senate, last week set August as a deadline for Democrats to pass their sweeping voting rights bill, which would require early voting, automatic and same-day registration, among other measures. . . . 

But the window for Democrats to have the most impact with their legislation is rapidly closing. The decennial process of redrawing district lines is set to take place later this year, and a critical portion of the Democratic bill would set new limits to prevent state lawmakers, who have the power to draw the maps, from severely manipulating districts for partisan gain. While it’s probably already too late to set up independent redistricting commissions for this year, Democrats could still pass rules to prevent the most severe partisan manipulation.

“You could pass new criteria, including a ban on partisan gerrymandering…require greater transparency in the process,” Michael Li, a redistricting expert at the Brennan Center for Justice, told me. “There’s a lot that could be done.”

I also asked the Minnesota senator Amy Klobuchar, a Democrat who chairs the Senate committee currently considering the bill, what kind of message it would send if Democrats failed to take any action to protect voting rights while they held the reins of government. “Failure is not an option,” she said, adding she wasn’t going to let the filibuster stand in the way.

“This is our very democracy that’s at stake,” she said. “I’m not gonna let some old senate rule get in the way of that.”

The prime example of a purported Democrat who doesn’t recognize the crisis is Senator Joe Manchin of West Virginia. From Vox’s profile of Manchin:

Some filibuster reformers hope that, as the year goes on, the reality of Republican obstruction will become clear to Manchin and he’ll be driven to change his mind — that Senate rules will in the end be just as negotiable to him as the details of Biden’s stimulus bill. For instance, reformers hoped a GOP filibuster of Democrats’ big voting rights bill, the For the People Act, could spur holdout senators to change the rules to pass it, because it’s so important.

Manchin recoils at the very idea. “How in the world could you, with the tension we have right now, allow a voting bill to restructure the voting of America on a partisan line?” he asked. He says that 20 to 25 percent of the public already doesn’t trust the system and that a party-line overhaul would “guarantee” that number would increase, leading to more “anarchy” like that at the Capitol on January 6. He added: “I just believe with all my heart and soul that’s what would happen, and I’m not going to be part of it.”

Unquote.

What Manchin is saying is that the millions of Republicans who have bought the Big Lie — that the 2020 election was stolen from the leader of their cult — are so angry that interfering with Republican efforts to make voting as hard as possible would make the crazier ones even crazier. For that reason, he’s willing to let Republican politicians in the Senate and across the country do whatever they want to get Republicans elected, by, for instance, insuring that fewer poor people, Black people, Spanish speakers and college students vote, and when they do vote, their votes don’t matter, because Congressional districts have been gerrymandered to, yes, get Republicans elected.

It’s positions like these that get Manchin referred to as a “moderate” Democrat.

The Senate Moves Slowly. You Can See What They’re Doing.

Now that Democrats hold the White House and the House of Representatives, the locus of legislative action is the Senate. Democrats were able to pass the massive American Rescue Plan because a Senate rule allowed them to do so without Republican support. But so much more could be done without the filibuster rule that usually requires 60 out of 100 senators to vote Yes.

So I’ve been paying some attention to the Senate’s proceedings. The Senate has a leisurely schedule with sessions that start late in the day, long weekends and frequent vacations. I assume senators are doing something away from the Senate chamber, because it’s frequently empty. In fact, the Senate chamber is usually lightly populated even when business is being done (that’s apparently why they don’t allow the whole chamber to be shown on TV).

Like the House, the Senate has a website. You can click on Floor Proceedings to see what they did on previous days and then click on Live Proceedings to see if they’re doing anything at the moment.

This is what the Senate accomplished on Tuesday: they honored an Army chaplain and advanced two of the president’s nominees.

Untitled

On Wednesday, they took action on two nominations again (one was from the previous day), honored the 100th anniversary of the birth of a baseball player, and approved a bill to allow the Department of Veterans Affairs to give Covid vaccines to some people not usually eligible for treatment.

On the video feed, you’ll sometimes see the Senate majority leader standing at a podium, reading from a stack of paper, uttering the same words over and over again, in order to get a few things done. The majority leader makes a motion and then the Senate’s president pro tem, who on most days is a random senator from the majority party, has a clerk read something about the motion. The president pro tem then asks for a roll call vote. The majority leader, apparently the only other senator in the room, says “aye”, the president pro tem says it appears the ayes have it, and announces that the motion is agreed to. Then they repeat the same song and dance on another motion. The Senate’s rules aren’t designed for efficiency. 

Of course, sometimes a motion is something important, so the whole Senate has to vote.  The senators come back to the chamber to tell the clerk how they’re voting. This takes quite a while, and unlike the House, the Senate doesn’t show a running total of the Yes and No votes.

In addition, senators sometimes make speeches, either regarding the motion under consideration or something else they want to talk about. You’re not allowed to see if there are any other senators present. Some of these speeches are very good. I happened to catch two excellent ones this week.

Senator Menendez, Democrat of New Jersey, made a speech condemning the stupid racist remarks of a Republican senator from Wisconsin, and Senator Warnock, Democrat of Georgia, called on the Senate to pass two bills that would reform our elections and protect voting rights (the For the People Act and the John Lewis Voting Rights Advancement Act). Both of these speeches were met with applause, but it was hard to see how many people were clapping or who they were.

I turned on the video when Menendez and Warnock were already talking, so would have missed their opening remarks, except that Vimeo has the official Senate video with the added benefit that you can scroll back to what happened earlier. Once the Senate is done for the day, both Vimeo and the Senate site make the whole day’s proceedings available. 

The Menendez and Warnock speeches are both on YouTube. Senator Menendez started by saying he took no pleasure in coming to the Senate floor to make these particular remarks, which suggested he was going to let loose on his Senate colleague. That’s what he did. Senator Warnock’s speech was his first as a senator. He pointed out that the entire Senate should support improving our democracy and helping people vote, the same way Republicans often did in the past. It’s not clear if there were any Republicans in the room when he spoke.

A Possible Way to Address the Filibuster Mess

After four years of political hell, Democrats have a chance to actually move this country forward. In order to do that, Senate Democrats have to either abolish the filibuster or seriously reform it.

Today, ending debate in the Senate requires a “cloture” vote. That means sixty senators have to vote Yes on cloture before the Senate can stop debating and actually vote on legislation. A filibuster is the refusal of forty-one or more senators to vote Yes on cloture. That means the debate proceeds or the Senate gives up and moves on to something else.

But as Senator Warren said last night, senators aren’t sent to Washington to conduct a debate society. If Senate Democrats can’t all agree to totally get rid of the filibuster and allow a simple majority of senators to end debate, they can seriously reform it.

E. J. Dionne shows how it might be done:

Democrats won both Georgia Senate seats in January’s runoffs, giving them control of both houses of Congress and the White House for the first time in a decade. But their ability to advance legislation — from raising the federal minimum wage to democracy reforms in the John Lewis Voting Rights Advancement Act — can be thwarted by the Senate’s 60-vote supermajority filibuster rule.

Progressives’ anger at Minority Leader Mitch McConnell (R-Ky.) and his caucus, who use the filibuster to block every initiative they can, is nearly matched by their frustration with Democratic Sens. Joe Manchin III (W. Va.) and Kyrsten Sinema (Ariz.), whose opposition to getting rid of the filibuster means Democrats are stuck with it, since they’d need all 50 votes in their caucus, plus Vice President Harris as a tiebreaker, to do it. . . .

Manchin hasn’t budged, though. Monday, when asked if he’d reconsider his stance on eliminating the filibuster, he shot back: “Jesus Christ, what don’t you understand about ‘never’?”

Democrats are right to see the urgency: Republican state lawmakers around the country are moving to enact voter suppression measures that will, if passed, put the slender Democratic majorities in the Senate and House of Representatives in jeopardy in 2022 and beyond. Without democracy reform, and with the Supreme Court’s recent assaults on the Voting Rights Act, sticking with the filibuster could make it nearly impossible for the Biden administration to pursue its agenda.

But Democrats should proceed with caution: In 2001, I warned that if Republicans harangued Sen. Jim Jeffords (Vt.) over his apostasy on their party’s policy priorities, they would regret it. He would switch parties and, in a 50-50 Senate, shift the Senate majority. The next month, it happened. The same concern now applies to Democrats with Manchin. Push too far, and the result could be Majority Leader McConnell, foreclosing Democrats’ avenue to pursue infrastructure, tax reform and health reform legislation.

So, what can Democrats do?

. . . Instead of naming and shaming them, Democrats might consider looking at what Manchin and Sinema like about the filibuster. Sinema recently said, “Retaining the legislative filibuster is not meant to impede the things we want to get done. Rather, it’s meant to protect what the Senate was designed to be. I believe the Senate has a responsibility to put politics aside and fully consider, debate, and reach compromise on legislative issues that will affect all Americans.” Last year, Manchin said, “The minority should have input — that’s the whole purpose for the Senate. If you basically do away with the filibuster altogether for legislation, you won’t have the Senate. You’re a glorified House. And I will not do that.”

If you take their views at face value, the goal is to preserve some rights for the Senate minority, with the aim of fostering compromise. The key, then, is to find ways not to eliminate the filibuster on legislation but to reform it to fit that vision. Here are some options:

MAKE THE MINORITY DO THE WORK

Currently, it takes 60 senators to reach cloture — to end debate and move to a vote on final passage of a bill. The burden is on the majority, a consequence of filibuster reform in 1975, which moved the standard from two-thirds of senators present and voting to three-fifths of the entire Senate. Before that change, if the Senate went around-the-clock, filibustering senators would have to be present in force.

If, for example, only 75 senators showed up for a cloture vote, 50 of them could invoke cloture and move to a final vote. After the reform, only a few senators in the minority needed to be present to a request for unanimous consent and to keep the majority from closing debate by forcing a quorum call. The around-the-clock approach riveted the public, putting a genuine spotlight on the issues. Without it, the minority’s delaying tactics go largely unnoticed, with little or no penalty for obstruction, and no requirement actually to debate the issue.

One way to restore the filibuster’s original intent would be requiring at least two-thirds of the full Senate, or 40 senators, to keep debating instead requiring 60 to end debate. The burden would fall to the minority, who’d have to be prepared for several votes, potentially over several days and nights, including weekends and all-night sessions, and if only once they couldn’t muster 40 — the equivalent of cloture — debate would end, making way for a vote on final passage of the bill in question.

GO BACK TO THE “PRESENT AND VOTING” STANDARD

A shift to three-fifths of the Senate “present and voting” would similarly require the minority to keep most of its members around the Senate when in session. If, for example, the issue in question were voting rights, a Senate deliberating on the floor, 24 hours a day for several days, would put a sharp spotlight on the issue, forcing Republicans to publicly justify opposition to legislation aimed at protecting the voting rights of minorities. Weekend Senate sessions would cause Republicans up for reelection in 2022 to remain in Washington instead of freeing them to go home to campaign.

In a three-fifths present and voting scenario, if only 80 senators showed up, only 48 votes would be needed to get to cloture. Add to that a requirement that at all times, a member of the minority party would have to be on the floor, actually debating, and the burden would be even greater, while delivering what Manchin and Sinema say they want — more debate. . . .

In a 50-50 Senate, and with the Republican strategy clearly being united opposition to almost all Democratic priorities, Biden and Majority Leader Charles E. Schumer (N.Y.) need the support of Manchin and Sinema on a daily basis. They won’t be persuaded by pressure campaigns from progressive groups or from members of Congress. But they might consider reforms that weaken the power of filibusters and give Democrats more leverage to enact their policies, without pursuing the dead end of abolishing the rule altogether.