A Great Opportunity for the Democrats

Having fifty votes in the Senate and the Vice President gives the Democrats a chance to make real progress and seriously damage the radical right. From Greg Sargent of The Washington Post:

In the early morning hours on Friday, Senate Democrats passed a measure laying the groundwork to move President Biden’s big economic rescue package via the reconciliation process, by a simple majority. Republicans are already thundering with outrage.

The move does indeed pose a serious challenge to Republicans. But it’s one that runs deeper than merely moving toward passing this one package without them. It also suggests a reset in dealing with GOP bad-faith tactics across the board — and even the beginnings of a response to the . . . ideology loosely described as “Trumpism.”

First, the new move suggests a growing recognition that the conventional understanding of how “bipartisanship” works has things exactly backward — and that Republicans have manipulated the public debate on this topic for far too long.

For instance, Sen. Mitch McConnell (R-Ky.) is already denouncing this move. The minority leader railed that Democrats have “set the table to ram through their $1.9 trillion rough draft,” adding: “notwithstanding all the talk about bipartisan unity, Democrats are plowing ahead.”

McConnell’s underlying claim is that Democrats should allow their plan to be subject to a supermajority requirement via the filibuster [of 60 Yes votes] to facilitate bipartisanship. The idea is this: If a partisan majority [in this case, the 50 Democrats plus the Vice President] can’t pass things by itself, it must reach out for bipartisan support [from at least ten Republicans] . . .

This is a scam. The reality is the other way around: In McConnell’s hands, the filibuster has actually made bipartisanship less likely.

By preventing a partisan majority from passing things, McConnell has created the conditions for withholding the support necessary to enact them, for the instrumental purpose of casting Democratic presidents (such as Barack Obama) as failed conciliators.

This has worked as follows: GOP senators have withheld support regardless of the concessions made to win them over, because they calculate the president’s party will take the political hit for failing to make bipartisan deals.

The paradox here is that using reconciliation — moving to pass something by a simple majority — actually could bolster the conditions for good-faith bipartisanship. GOP senators who might be gettable will no longer have a built-in incentive to oppose a particular bill. It’s likely passing anyway, so the lure of helping [their own] party by opposing it — because the Democratic president will get blamed for failure — isn’t nearly as strong.

Under those conditions, Biden actually would have an opening to negotiate with Republicans in the quest for bipartisan support. In the conditions McConnell wants, the incentives for moderate GOP senators point in the other direction.

Whether Biden actually will end up negotiating down to win a few Republicans is an open question. But the point is, in McConnell’s cynical scenario, this would be nothing but a fool’s errand, because it would be far less likely to work.

McConnell’s other basic idea — that a supermajority requirement protects the minority — is also nonsense. Adam Gurri makes a key distinction between protecting the rights of the minority party and protecting those of minorities of voters. The latter are protected by many other veto points in the system. Protecting the minority party’s rights by subjecting all Senate business to a supermajority requirement is only about facilitating its ability to obstruct.

Senior Democrats have begun to articulate the idea that the true way to revitalize faith in government — and in democracy — is by successfully delivering on big-ticket items. Achieving bipartisan cooperation for its own sake will do far less to address deep civic division and disillusionment than robust and effective action on behalf of the common good.

The Biden plan now will be written by Congress. But the new move lays the groundwork for passage of a package that could spend as much as $1.9 trillion. . . .

In an interesting column, David Brooks suggests that such large-scale spending could begin to accomplish “social repair.” We should spend far more than what’s merely needed to fill the “output gap.” We should spend to address the deep inequalities and injustices revealed by the pandemic and longer-term structural ills such as flat wages and regional stagnation. Undershooting here, Brooks notes, carries far greater moral and civic risks than overshooting.

I’d go further: Such an approach also contains the seeds of a broader answer to Trumpist populism. Success in using robust government action to charge up the recovery and get the coronavirus under control — including sinking medical resources into rural America — could clear political space for Biden to restore humanity to our immigration system and sanity to our international climate efforts.

Spending effectively toward the common good might begin to defang destructive zero-sum nationalist appeals. That could pave the way for a “new synthesis” that combines bolder progressive economics with a refusal to backpedal on issues that Democrats have long seen as politically perilous in the face of right-wing populist demagoguery. Biden’s ambitious actions so far on immigration and climate suggest just this understanding of the moment.

All this might sound overly optimistic. And there are countless ways Democrats can screw this all up. But the early returns suggest they are constructively breaking with old ways of thinking. And that could portend a serious long-term challenge to the Trumpified [Grotesque Old Party].

Unquote.

Senate Democrats can change the Senate rules whenever they want. They just need the courage to do so (and the cooperation of their least progressive members).

The “And” Defense Doesn’t Work

I’m trying to say less about our former president and his minions — including the entire Republican Party — now that they have a lesser role in our lives, but a correction to the previous post is in order. Therein I considered the argument that a president cannot be impeached after leaving office because of the way the Constitution is worded. Two law professors explain why this is clearly wrong (I apologize for not noticing what they point out):

. . . Some have argued that the constitutional clause providing that “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” implies that any consequence of conviction must consist of both removal and disqualification from future office — which could happen only in the case of sitting officers.

That is not what the clause says. It says the judgment may not “extend further” than these two sanctions. It does not say that both sanctions must be imposed in every case. Indeed, most convictions over the years involved only one, removal from office.

Clearly, if punishment cannot extend beyond X and Y, it means that X and Y are both allowed, but nothing else is. The Senate can’t add punishment Z to the mix, but they can apply either X or Y or the two together.

In this particular president’s case, it means that, although it’s too late to remove him from office, he can be barred from a future government position. Unfortunately, however, he can’t be forced to shave his head and wear a dunce cap.

Despite the above, Republican senators will still argue that he’s beyond punishment. They fear the former president’s radical supporters. But it’s good to understand why they’re wrong about the Constitution.

(Note: I still say we need to add “andor” to English, so we can easily say “this andor that”, while leaving “and” to mean “both” and “or” to mean “either this or that, but not both”.)

The U.S. Senate At Work

With Democrats now having a majority in the U.S. Senate, I’ve been wondering what the senators are doing. They spend time at committee meetings and in their offices, of course, but, according to the Senate’s official site, this is everything they’ve accomplished in the Senate chamber since the attack on the Capitol on January 6:

Friday, Jan. 8: The ACTING PRESIDENT pro tempore declared the Senate adjourned . . . until 12:30 p.m. on Tuesday, January 12, 2021.

Tuesday, Jan. 12: The ACTING PRESIDENT pro tempore declared the Senate adjourned . . . until 10 a.m. on Friday, January 15, 2021.

Friday, Jan. 15: The ACTING PRESIDENT pro tempore declared the Senate adjourned . . . until 12 noon on Tuesday, January 19, 2021.

Tuesday: Jan. 19: A resolution honoring the memory of Officer Brian Sicknick of the United States Capitol Police for his selfless acts of heroism on the grounds of the United States Capitol on January 6, 2021.

Wednesday, Jan. 20:  A resolution to elect Patrick J. Leahy, a Senator from the State of Vermont, to be President pro tempore of the Senate . . . 

Also: Avril Haines confirmed by the Senate to be Director of National Intelligence by Yea-Nay Vote. 84 – 10.

Thursday, Jan. 21:  A bill to provide for an exception to a limitation against appointment of persons as Secretary of Defense within seven years of relief from active duty as a regular commissioned officer of the Armed Forces . . .  passed by Yea-Nay Vote. 69 – 27.
 
Friday, Jan. 22: Lloyd Austin confirmed to be Secretary of Defense by Yea-Nay Vote. 93 – 2 
 
Monday, Jan. 25: Janet Yellen confirmed to be Secretary of the Treasury by Yea-Nay Vote. 84 – 15.
 
Tuesday: Jan. 26: A resolution to provide for procedures concerning the article of impeachment against Donald Trump agreed to by Yea-Nay Vote. 83 – 17.
 
Also: Antony Blinken confirmed to be Secretary of State by Yea-Nay Vote. 78 – 22. 
 
Wednesday, Jan. 27: An objection was raised to voting on Alejandro Mayorkas to be Secretary of Homeland Security.
 
Thursday, Jan. 28: The debate and vote on Alejandro Mayorkas to be Secretary of Homeland Security was delayed.
 
 Also:  The Senate adjourned until 3 p.m. on Monday, February 1, 2021.
 
Monday, Feb. 1: The vote on Alejandro Mayorkas to be Secretary of Homeland Security was delayed again due to “inclement weather”.
 
To summarize, over the course of 17 weekdays, the Senate accomplished 8 things:
 
  • Four votes to confirm nominees to the president’s cabinet
  • One vote to approve an exception to a law regarding the Secretary of Defense.
  • Three resolutions.

Go Big or Go Home

Eric Levitz of New York Magazine on the choice facing the Democratic Party:

The Electoral College now has a four-point pro-[Republican] bias, meaning that if Biden [or whoever] wins the two-way popular vote by “only” 3.9 percent in 2024, he will have a less than 50 percent chance of winning reelection, and (2) the Republican Party has grown more openly contemptuous of democracy since Txxxx’s defeat. If the GOP does gain full control of the federal government in 2024, there is a significant risk it will further entrench its structural advantages through anti-democratic measures, so as to insulate right-wing minority rule against the threat of demographic change.

To defy political gravity, and fortify U.S. democracy against the threat of authoritarian reaction, Democrats need to either rebalance the electoral playing field through the passage of structural reforms, or attain a degree of popularity that no in-power party has achieved in modern memory. If the filibuster remains in place, doing the former will be impossible and the latter highly unlikely.

The Constitution limits the Democrats’ capacity to correct the biases of America’s governing institutions. But the party could significantly reduce the overrepresentation of white rural America in the Senate by granting statehood to the District of Columbia, Puerto Rico, and any other U.S. territory that wants it. The party could also prohibit partisan redistricting, ban felon disenfranchisement, erode practical barriers to the political participation of working-class people and immigrants, make it easier for workers to form unions, grant citizenship to 11 million undocumented immigrants, and pack the Supreme Court if it interferes with the implementation of these reforms.

But none of those measures are going to attract ten Republican votes in the Senate. And none of them are achievable through the budget-reconciliation process.

If Democrats do not pass structural reforms, their odds of retaining both chambers of Congress in 2022 aren’t good. The president’s party almost always loses seats in midterms. . . .

All this said, Democrats could have some extraordinary winds at their back. Biden has a decent shot of presiding over a post-pandemic economic boom. To the extent that Democrats can juice that recovery with further growth and wage-boosting measures — while maintaining the enthusiasm of their core interest groups — they may pull off the unprecedented in 2022.

But it’s hard to see how the party can do that while leaving the filibuster fully intact. Democrats will be incapable of honoring their (now decade-old) IOUs to civil-rights organizations, labor unions, and immigrant communities if they allow the Senate’s 60-vote threshold to remain in place. . . .

In the immediate term, the Democrats’ internal conflict over the filibuster will move to the backburner. Joe Biden’s COVID-relief package and green-infrastructure “recovery” plan consist primarily of tax-and-spending measures that the party can advance through the budget-reconciliation process. And Schumer has signaled that he intends to bend the rules of that process as far as the Senate parliamentarian will let him, arguing that both a ban on new vehicles with internal-combustion engines and a $15 minimum wage are actually, primarily means of reducing government spending, when you really think about it.

But once reconciliation is done, attention will turn to the large stack of Democratic-coalition priorities that are currently subject to a 60-vote requirement. It will not be easy for Schumer to tell the NAACP that his caucus values a “Senate tradition” (that is anti-constitutional, historically associated with Jim Crow rule, and less than two decades old in its present form) more than it values a new Voting Rights Act. Nor will it be easy for the majority leader to tell organized labor that it will just have to wait until next time to see a $15 minimum wage (assuming that doesn’t get through reconciliation) or collective-bargaining reform. And it might be hard for Schumer to accept that he probably won’t ever wield majority power again after 2022 because his caucus would rather maintain the GOP’s structural advantage in the upper chamber than abolish the filibuster and add new states.

For these reasons, Schumer, Senate Democrat Whip Dick Durbin, and Delaware senator (and Biden confidant) Chris Coons have all telegraphed an intention to eliminate the filibuster if McConnell obstructs their coalition’s priorities. The apparent hope is that — while Manchin, Sinema, and a few others support the filibuster in the abstract — in the heat of a legislative battle over voting rights or a $15 minimum wage, they may consent to weakening the filibuster while lamenting what Mitch McConnell is making them do.

Sinema and Manchin have repeatedly insisted that they will not “eliminate” or “get rid of” the filibuster. But there are plenty of ways to erode the Senate’s 60-vote requirement that stop short of filibuster abolition. You could create new exemptions, modeled on budget reconciliation, that allow for the passage of certain categories of legislation by simple majority vote. Or you could restore the requirement for those mounting a filibuster to speak continuously from the Senate floor. Or you could throw every Democratic priority into a reconciliation bill and then let Kamala Harris overrule the parliamentarian when she objects.

But Manchin & Co.’s cooperation with this scheme is far from assured. The Democratic Party has a vital interest in passing sweeping reforms that gratify its base and mitigate its structural disadvantages. But Joe Manchin doesn’t necessarily have an interest in the institutional health of the Democratic Party.

Our Republic’s founders famously disdained political parties. And partisanship is a pejorative in contemporary American discourse. But our democracy’s present affliction lies in the weakness of its parties, not in their strength. Were the GOP a stronger institution, the Txxxx presidency would never have happened. Were the Democratic leadership capable of formulating and enforcing a party line, the filibuster would not be long for this Earth.

While the Constitution failed to stymie the advent of political parties, it has kept them weaker than their overseas analogs. The Democratic Party is more of a loose association of elected officeholders than a coherent mass-member organization. As such, it has limited capacity to dictate terms to any of its incumbent senators, let alone to those whose job security would be enhanced by becoming Republicans. . . .

Thus the Democrats’ existential interest in eroding the filibuster remains on a collision course with its moderate senators’ aversion to power. Anyone with a fondness for democracy must hope that, against all odds, the forces of partisanship will prevail.

We Shouldn’t Expect Much From Republican Senators

How many Republican senators will vote to convict our former president and bar him from running for president again? Paul Waldman of The Washington Post says there won’t be enough of them:

Donald Trump’s second impeachment trial is coming soon. Senate Majority Leader Chuck Schumer announced Friday that the House will transmit the one impeachment article to the Senate on Monday, clearing the way for the trial to commence. Now begins the wrangling to determine whether 17 GOP senators might join (presumably) all 50 Democrats to convict Trump of inciting the Jan. 6 assault on the Capitol.

There’s been lots of discussion about what it would take to get to those 17 votes, in particular whether Minority Leader Mitch McConnell will vote to convict and bring others with him. There are almost certainly many more than 17 Republicans who in their hearts believe that Trump is guilty and would like their party to make a clean break with him. But whether they’ll take that position publicly is a very different matter.

Don’t bet on McConnell, or more than a couple of Republicans, coming through in the end. It’s a tricky political question for them, but the weight of their incentives will push them toward acquittal, no matter their personal feelings about Trump and what he has done to their party.

It’s true that there’s an effort to get them to convict. CNN reports that “dozens of influential Republicans around Washington — including former top Trump administration officials — have been quietly lobbying GOP members of Congress to impeach and convict Donald Trump.” One unnamed Republican member of Congress even said, “Mitch said to me he wants Trump gone.”

Which you might have gathered from the speech McConnell gave the day before Joe Biden’s inauguration. “The mob was fed lies,” he said. “They were provoked by the president and other powerful people.”

But it’s one thing to offer some harsh words about a specific misdeed and another to actually vote to convict the former president. As McConnell surely understands, while he other Republicans might want to make a clean break from Trump, the problem is that there will be no such thing. Any break from Trump will be painful and ugly.

Think of it this way: What does McConnell have to gain from voting to convict Trump, and what does he have to lose? He really has nothing at all to gain, even if he could gather 16 other Republicans to join him. That wouldn’t make his whole party turn the page and walk proudly into its post-Trump future. It would just touch off an internecine war, one that nobody would win.

Loyalty to Trump is still intense within the GOP. “If you’re wanting to erase Donald Trump from the party, you’re going to get erased,” said Trump advocate Sen. Lindsey Graham (R-S.C.), adding that trying to move forward without Trump would be “a disaster for the Republican Party.”

Graham may be wrong on the second part, but he’s right on the first. If McConnell were to vote to convict and bring others with him, he’d immediately be hit with a tsunami of rage from the right. Talk radio and Fox News would mobilize their audiences to pour down contempt upon a figure that they never much liked or trusted anyway. Enterprising Republican politicians would demand he be removed from leadership.

That’s already happening to Rep. Liz Cheney. In the days since the third-ranking member of the House Republican leadership voted to impeach Trump, she has earned a primary challenge from the right for her reelection. According to Politico, more than 100 House Republicans “have communicated to the leaders of that effort that they would support removing Cheney from leadership on a secret ballot.”

But standing up and saying it was just fine and dandy that Trump spent two months lying to his supporters, culminating with his incitement of a violent attack that could have resulted in the deaths of some of the very people who will be voting on impeachment, is not all that appealing. So Senate Republicans are coalescing around a plan: They can avoid defending what Trump did by finding safe harbor in a procedural objection.

The problem, more and more of them are saying, is that the Constitution doesn’t allow for the impeachment of a president who has left office, and therefore there shouldn’t be any trial at all.

In fact, the Constitution doesn’t say that the president can’t be impeached once he departs. While some legal scholars insist otherwise, the weight of opinion is that his impeachment would be perfectly fine.

But that doesn’t matter; for Republicans it’s an argument of convenience. And it’s one McConnell will eventually join.

When the vote comes, McConnell will deliver a dramatic speech finally revealing his position. He’ll reiterate his criticisms of Trump, for lying about the election and whipping up the crowd.

However, he’ll say, all that’s in the past now. Trump is no longer president. And Democrats are just wasting time trying to score political points when they should be addressing the country’s problems. Therefore, he’ll say with sadness, I feel I have no choice but to vote to acquit.

In so doing, he’ll save himself a lot of grief. The alternative is a gesture that won’t get him what he wants — a truly post-Trump party — but will threaten his own authority and deepen the GOP’s internal divisions. It’s not even a close call.

Unquote.

It’s not true McConnell would have nothing to gain from convicting him. McConnell could immediately insure that the creep couldn’t run for president again, even as a third party candidate. Some Republican senators would love that to happen. But these same senators would prefer that 17 other Republicans vote to convict and prohibit the malignant narcissist from running. They don’t want to be on record voting against their party’s favorite demagogue.

PS: A small group of Democrats [is] pushing the idea of passing a resolution stating that Txxxx violated the 14th Amendment — which forbids federal officials from ever holding office if they “engaged in insurrection or rebellion” against the government — and ban him from running again for president in that manner.