Tag Archives: US Senate

Bernie Sanders Can Now Get Stuff Done (In Theory)

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It’s just one of the encouraging changes in Washington. From The Guardian:

As Democrats take control of the Senate, Bernie Sanders has taken on his new role as chair of the powerful Senate Budget Committee. [Correction: No, he hasn’t. The Republican leader in the Senate is using the threat of a filibuster to stop Democrats from becoming committee chairmen. See “So Much For Unity — U.S. Senate Edition”. I assume this is a temporary problem.]

At the helm of the Budget Committee, Sanders will be in charge of theĀ reconciliation process, which allows Congress to move through legislation without the 60-vote supermajority needed to overcome filibuster. Reconciliation can be used to move through key coronavirus relief measures, including stimulus payments.

Sanders has said that heā€™d love for a bipartisan effort on coronavirus relief, but he wonā€™t let a desire for bipartisanship delay action.

ā€œWe should hear what my Republican colleagues have to say, but we are not going to spend months and months and not address the incredible pain millions of families are experiencing,ā€ Sanders said.

Senator Sanders described his goals in The Guardian today:

In this moment of unprecedented crises, Congress and the Biden administration must respond through unprecedented action. No more business as usual. No more same old, same old.

Democrats, who will now control the White House, the Senate and the House, must summon the courage to demonstrate to the American people that government can effectively and rapidly respond to their pain and anxiety. As the incoming chairman of the Senate budget committee that is exactly what I intend to do.

What does all of this mean for the average American?

It means that we aggressively crush the pandemic and enable the American people to return to their jobs and schools. This will require a federally-led emergency program to produce the quantity of vaccines that we need and get them into peopleā€™s arms as quickly as possible.

It means that during the severe economic downturn weā€™re experiencing, we must make sure that all Americans have the financial resources they need to live with dignity. We must increase the $600 in direct payments for every working-class adult and child that was recently passed to $2,000, raise the minimum wage to $15 an hour, expand unemployment benefits and prevent eviction, homelessness and hunger.

It means that, during this raging pandemic, we must guarantee healthcare to all. We must also end the international embarrassment of the United States being the only major country on Earth not to provide paid family and medical leave to workers.

It means making pre-kindergarten and childcare universal and available to every family in America.

Despite what you may have heard, there is no reason why we cannot doĀ allĀ of these things. Through budget reconciliation, a process that only requires a majority vote in the Senate, we can act quickly and pass this emergency legislation.

But that is not enough. This year we must also pass a second reconciliation bill that deals with the major structural changes that our country desperately needs. Ultimately, we must confront the grotesque level of income and wealth inequality and create a country that works for all and not just the few. Americans should no longer be denied basic economic rights that are guaranteed to people in virtually every other major country.

This means using a second reconciliation bill to create millions of good-paying jobs rebuilding our crumbling infrastructure and constructing affordable housing, modernizing our schools, combatting climate change and making massive investments in energy efficiency and renewable energy.

It means making public colleges, universities, trade schools and Historically Black Colleges and Universities tuition-free and forcefully addressing the outrageous level of student debt for working families.

And it means making the wealthiest Americans and most profitable corporations pay their fair share of taxes. We cannot continue to allow profitable corporations like Amazon to make billions of dollars in taxes and pay nothing in net federal income taxes. And billionaires cannot be allowed to pay a lower tax rate than working-class Americans. We need real tax reform.

There is no reason Joe Biden could not sign into law two major bills that will accomplish most of the goals I listed above within the first 100 days of the new Congress. We cannot allow Mitch McConnell and the Republican leadership to sabotage legislation that would improve the lives of millions of working Americans and is wildly popular.

Let us never forget. When Republicans controlled the Senate, they used the reconciliation process to pass trillions of dollars in tax breaks primarily to the top 1% and multinational corporations. Further, they were able to confirm three rightwing US supreme court judges over a very short period of time by a simple majority vote.

If the Republicans could use the reconciliation process to protect the wealthy and the powerful, we can use it to protect working families, the sick, the elderly, the disabled and the poor.

Unquote.

Now all the Democrats have to do is to overcome McConnell’s scheme, so Sanders and his Democratic colleagues actually become committee chairmen.

So Much For Unity — U.S. Senate Edition

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As part of a good news agenda, I’ve got a post lined up about Bernie Sanders becoming chairman of the Senate’s Budget Committee. Sanders ascends to that powerful position because Kamala Harris is now the vice president and three new Democratic senators were sworn in yesterday. That means the Democrats get 51 votes in case of a tie and the Republicans only get 50.

But as of now, Sanders isn’t chairman of anything. The odious Republican senator from Kentucky, Mitch McConnell, is already up to his old tricks.

You see, the Senate requires something called an “organizing resolution”. According to the Senate’s official site:

At the beginning of a new Congress, the Senate adopts an organizing resolution listing committee ratios, committee membership, and other agreements between the parties on the operation of the Senate. Typically a routine matter approved byĀ unanimous consent agreement, on occasions when the Senate has beenĀ closely divided, the organizing resolution has provoked fierce debate.

The Democrats have said they’re willing to organize the Senate the way it was organized the last time there were 50 Democrats and 50 Republicans. That was the situation in 2001, the only difference being that Republicans had the White House, giving them the ability to break ties in their favor.

But organizing the Senate the same way as last time isn’t good enough for Mitch McConnell now that Democrats have the edge. He wants to change the organizing resolution so that the Democrats agree to never require majority rule in the Senate, i.e. to never abolish theĀ  filibuster. That’s the ability of a single Senator to stop vital legislation without even identifying himself in public.

In 2021, if a senator wants to filibuster legislation, they don’t even have to hold the floor by talking for hours, the way an exhausted Jimmy Stewart did in Mr. Smith Goes To Washington.

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Today, senators can simply say “No” to a piece of legislation — without even publicly identifying themselves. To override a senator’s filibuster, it takes a supermajority of at least 60 senators (a 60-40 vote). So unless your party has 20 more senators than the opposition, a filibuster can kill important legislation, even though most senators (and a majority of Americans) want it.

So here’s what McConnell is doing:Ā 

McConnell is threatening to filibuster the Organizing Resolution, which allows Democrats to assume the committee Chair positions. Itā€™s an absolutely unprecedented, wacky, counterproductive request. We won the Senate. We get the gavels (Sen. Brian Schatz of Hawaii).

Because of McConnell’s new demand, the U.S. Senate’s organizing resolution is still the one they had last week when the Senate and White House were run by Republicans. That means they’re still in charge of the committees that approve legislation before it can go to the whole Senate for a vote (and before the Senate can approve many of Biden’s nominees). Bernie Sanders and his Democratic colleagues who are supposed to be in charge of those committees are as powerless as they were before the inauguration!

It sounds like Democrats have to agree to keep the filibuster or they (and we) are screwed.

Except for one thing. Kamala Harris can take the gavel whenever she wants. Being Vice President of the United States automatically makes her President of the Senate. And that makes Democratic Senator Charles Schumer of New York the Majority Leader of the Senate, instead of the odious Mitch McConnell. In other words, the Democrats can now tell Mitch McConnell to go to hell if they want to. Whoever is Majority Leader of the Senate gets to control the proceedings, deciding, for example, what legislation the Senate gets to vote on. It’s quite a system.

Of course, the Constitution doesn’t mention the Senate Majority Leader. The Constitution doesn’t even mention political parties. Nor does the Constitution mention the filibuster. Someone who’s written a book about the filibuster and used to work for a Democratic senator explains where the filibuster came from:

The filibuster was not part of the original Senate because the Framers knew exactly how it’d be used — they saw McConnell coming. The filibuster represents Calhoun’s vision, not Madison’s. Calhoun wanted a Senate where the minority could block the majority (Adam Jentleson).

That’s John C. Calhoun, the Southern senator who wanted to protect the South and slavery from the Northern majority.

Calhoun was profoundly racist. He was slaveryā€™s leading defender in the Senate. He argued on the Senate floor that slavery was a ā€œpositive good.ā€ And he was motivated to innovate the filibuster by the desire to protect slavery — to give the South veto power. Bad, bad guy.

The filibuster means that, in many cases, you need at least a 60-40 vote to get something done in the Senate.

The de facto supermajority threshold was first forged against civil rights. Jim Crow-era segregationist senators repurposed a 1917 Senate rule to force every civil rights bill to clear a supermajority threshold, blocking them all. Only civil rights bills were blocked in this way.

The authors of the Constitution favored majority rule, except in a few special cases, like overruling a president’s veto or removing a president from office. Mr. Jentleson quotes an article in The New York Times:

The supermajority threshold of today flies in the face of the framersā€™ intent. They wanted the Senate to be a place where debate was thorough and thoughtful, but limited, and where bills passed or failed on majority votes when it became clear to reasonable minds that debate was exhausted. Originally, Senate rules included a provision allowing a majority to end debate, and an early manual written by Thomas Jefferson established procedures for silencing senators who debated ā€œsuperfluous, or tediously.ā€ Obstruction was considered beneath them.

The reason the framers set the threshold at a majority is that they wrote the Constitution to replace the Articles of Confederation, which they saw as a disaster because it required a supermajority of Congress to pass most major legislation. As Alexander Hamilton wrote inĀ Federalist 22, the idea that a supermajority encouraged cooperation had proven deceptive: ā€œWhat at first sight may seem a remedy, is, in reality, a poison.ā€ Rather than encourage cooperation, he prophesied, the effect of requiring ā€œmore than a majorityā€ would be ā€œto embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice or artificesā€ of a minority to the ā€œregular deliberations and decisions of a respectable majority.ā€

So here we are. The Democrats can now make any rules they want for the Senate and adopt those rules by a 51-50 vote, as long as those rules don’t conflict with the Constitution. They could then pass any legislation they want and get President Biden’s signature on it. That would include things like Biden’s massive Covid relief bill, elements of the Green New Deal and statehood for Washington D.C. and Puerto Rico (giving the Democrats four more votes in the Senate). They could even expand the Supreme Court to cancel out the Republican majority’s ability to find reasonable laws unconstitutional.

Will they use their authority to defang Mitch McConnell, get rid of the filibuster and restore majority rule to the Senate? Before today, it was doubtful, because there are conservative or “traditionalist” Democrats who worry about changing Senate rules (see “Fear vs. the White Male Effect”). Back to Twitter:

The fact that Mitch McConnell can use the filibuster to prevent the majority from taking control of the Senate is a pretty good argument against the filibuster (Dan Pfeiffer).

McConnell makes mistakes and this may have been one. His obstruction playbook relies on stringing Dems along and keeping them believing a bipartisan deal is just around the bend. Filibustering the organizing resolution to prove he wonā€™t filibuster Biden was too clever by half (Adam Jentleson).

Democrats who want to save the filibuster claim it encourages the two sides to work together for the common good. But they’re wrong:

To those who say the filibuster encourages bipartisanship, Hamilton addressed this directly in Federalist 22: “What at first sight may seem a remedy, is, in reality, a poison,” he wrote of a supermajority threshold. It doesn’t encourage cooperation, it encourages obstruction (Jentleson).Ā 

The fact is that the Democrats are the party of Yes and the Republicans are the party of No. It’s time to stop making it so easy for them to say No to the majority, especially today when we face so many crises that require urgent action.Ā 

Yeah, the Senate Can and Should Convict Him After He’s Gone

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There’s a bit of a disagreement about whether the Senate can vote to convict our impeached president after he toddles off on January 20th. The legal experts who say the Senate can do it and should do it have by far the best argument.

Yesterday, Prof. Laurence Tribe of Harvard Law explained why the Senate can act.

Prof. Stephen Vladeck of the University of Texas law school explains it below:

Yesterdayā€™s vote by the House of Representatives to impeach President Txxxx (again) came notwithstanding objections from Republicans that such a move is unnecessary. Because Mr. Txxxxā€™s term ends at noon on Jan. 20, the argument goes, there is little point in expending energy to reinforce what is already, despite Mr. Txxxxā€™s best efforts, a legal inevitability.

But some commentators have gone further ā€”Ā arguingĀ not only that CongressĀ shouldĀ not impeach and remove Mr. Txxxx but also that come Jan. 20,Ā itĀ cannotĀ do so, because the ConstitutionĀ doesnā€™t allowĀ for the impeachment and removal of ā€œformerā€ officers. This argument is wrong as a matter of text, structure, historical practice and common sense. And Mr. Txxxx is the poster child for why, even after he leaves office, such accountability is not just constitutionally permissible but necessary.

With the Senate not expected to reconvene until next Tuesday, Mr. Txxxxā€™s impeachment trial could not begin until Wednesday afternoon at the earliest ā€” after the inauguration of his successor.Ā Article II, Section 4Ā of the Constitution provides that the ā€œPresident, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.ā€ If that were all that the Constitution said about impeachment, there might be something to the argument that once the individual no longer holds the office, the impeachment power becomes defunct.

ButĀ Article I, Section 3Ā says more. In describing the powers of the Senate to conduct an impeachment trial, it provides that ā€œJudgment in cases of impeachment shall not extend further than to removal from office,Ā and disqualification to hold and enjoy any office of honor, trust or profit under the United Statesā€ (emphasis added).

That latter clause is the key, because it drives home that the Senate hasĀ twoĀ decisions to make in impeachment cases: First, it must decide whether an officer should be removed. Then it must decide whether this person should be disqualified from holding any future federal office. Indeed, of the eight officers the Senate has ever voted to remove, it subsequently voted to disqualify only three of them ā€” reinforcing that removal and disqualification are separate inquiries. And as this procedure and historical practice make clear, by the time the Senate votes on disqualification, the officer has already been removed. In other words, disqualification, at least, is itself necessarily a vote about a former (as opposed to current) officer.

More than that, the disqualification power is both the primary evidence of and the central reason the Constitution allows for the impeachment of former officers. Were it otherwise, an officer facing impeachment, or an officer who has already been impeached and is about to be removed, could also avoid disqualification simply by resigning. In 1876, disgraced Secretary of War William Belknap tried exactly that ā€” resigning minutes before the House vote on his impeachment. The House impeached him anyway, concluding that his resignation did not defeat Congressā€™s impeachment power. And although some senators ultimately voted to acquit Belknap (who narrowly escaped a guilty verdict) because he was no longer in office, the SenateĀ as a bodyĀ first concluded that it had the power to try former officers, adopting a resolution that Belknap could be tried ā€œfor acts done as Secretary of War, notwithstanding his resignation of said officeā€ before he was impeached.

The Belknap case cemented two precedents: CongressĀ canĀ impeach and remove former officers, but the fact that the defendant is no longer in office is one factor that senators may take into account in deciding whether to vote to convict. So, when President Richard Nixon resigned in August 1974 in an effort to forestall his seemingly inevitable impeachment and removal, that act did not deprive Congress of the constitutional power to still impeach, remove and disqualify him; it merely mitigated the perceived political expediency of doing so. By resigning, Mr. Nixon took at least some responsibility for his conduct. And the circumstances of his resignation left no reason to believe that he would ever again be a candidate for federal office.

But there is no indication that Mr. Txxxx plans to resign. His term ends next Wednesday only because Section 1 of the 20th Amendment says so. He is not going willingly. And he has made no secret of his interest in running for president again in 2024. Whatā€™s more, under theĀ Former Presidents Act of 1958, he stands to receive significant financial and other tangible benefits, including a handsome annual stipend, funds for offices and a staff, and a pension. But that same statute denies such benefits to a former president who was removed ā€œpursuant to Section 4 of Article II of the Constitution.ā€ So whether Mr. Txxxx is impeached, convicted and disqualified determines not only whether he could ever again hold federal office but may also bear upon the extent to which federal taxpayers will be subsidizing his activities in the years to come.

The conservative argument would say that the Constitution leaves Congress powerless to deal with such a case ā€” or with any scenario in which a president commits grossly impeachable acts in his final days in office. Not so. Whether heĀ shouldĀ be convicted and disqualified remains, under the Constitution, in the sole purview of the Senate.

And whereas the conservative argument against a post-Jan. 20 impeachment presupposes that the matter will inevitably end up in the courts (which may be sympathetic to Mr. Txxxx), that claim, too, is erroneous. In 1993, the Supreme CourtĀ heldĀ that itā€™s not for the courts to review the propriety of impeachments. As Chief Justice William RehnquistĀ wrote, neither any extrinsic evidence from the Constitutional Convention nor contemporaneous commentary suggested that the founders even contemplated ā€œthe possibility of judicial review in the context of the impeachment powers.ā€ Itā€™s ultimately Congressā€™s call ā€” for former officers as much as current ones.

Unquote.

If the authors of the Constitution had been a bit more careful, they would have written “removal or disqualification”, not “removal and”. Damn founding fathers! That blemish seems to be the only reason to say the Senate can’t act after the 20th. As the professors explain, it’s not a good reason and not how impeachment has worked in the past.

I don’t know if there are 17 Republican senators who will agree to convict DJT (that plus the 50 Democrats will be enough). There are excellent reasons to do so. For one thing, he deserves to be convicted. Another reason is it will permit the Republicans to free themselves from the threat that he will run again in 2024 (actually, it will stop him running again and seeking campaign contributions as of January 20th, which he will no doubt do if given the chance). Any Republican senator who wants to run for president has a motive to remove competition.

A third reason is that we shouldn’t have to subsidize this guy’s gilded lifestyle after he leaves office. He’s supposed to be a billionaire. Let him uses his own resources, assuming he stays out of prison. In particular, he can afford to hire his own security detail, especially now that it’s been revealed that Ivanka and Jared wouldn’t let the Secret Service use the bathrooms in their D.C. mansion.

PS: I don’t know if it’s true, but former presidents are supposedly eligible for top secret briefings from the government. We shouldn’t trust one more secret to the Lord of the Lies and his extremely big mouth.

Majority Rule Would Reveal How United We Are

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Conservative columnist Jennifer Rubin of The Washington Post has given up on the Republican Party (“How Do We Hold the Traitors to Democracy Accountable?”):

The degree to which the Republican Party embraced an attempted coup is both chilling and unsurprising given the GOPā€™s descent into authoritarianism. It should prompt some soul-searching by Republicans who did not join the coup. Is this a party I should be associated with? Is this a party that can be trusted with power? If the answer to either question is no, they should form a new party whose only requirement is loyalty to the Constitution.

But she sees positive possibilities ahead (“America Isn’t Hopelessly Divided. It Only Looks That Way Because of Our Constitution”):

I get it ā€” and agree with it to some extent: Americans are deeply divided, inhabiting two parallel political universes, ingesting different media and adhering to contradictory visions of America. One increasingly defines the United States as a bastion of White Christianity; the other sees a creedal nation defined by its founding documents. But perhaps the ā€œcivil warā€ perspective is overwrought and distorted.

First, letā€™s get some perspective. Yes, a shift of a mereĀ 39,000 votesĀ in a few close swing states in 2016 would have made Hillary Clinton president. And yes, an even slimmer shift ofĀ about 33,000 votesĀ would have kept President Txxxx in office this year. But a shift of 269 votes in Florida in 2000 would have given the election to Al Gore. Were we more dividedĀ then?

More generally, we can see that it is the Electoral College that transforms President-elect Joe Bidenā€™s margin of 7 million votes into a multistate nail-biter. But forget the Electoral College for a moment: Democrats have won the popular vote in the past four consecutive elections with margins ranging from 2.9 million (Clinton in 2016) to 10 million (Obama in 2008). And Al Gore, by the way, won by more than half a million votes nationally. One ā€œsolutionā€ to the deep division problem, then, would be to junk the Electoral College.

A similar lack of majority rule givesĀ Republicans control of the Senate, despite having support from a minority of the population. The disproportionate power of lightly populated states turns significant majority rule by Democrats into persistent minority rule by Republicans. Gerrymandering offers many Republicans a similar artificial advantage in their House seats.

In other words, we have an enduring and significant majority in favor of Democrats nationally, but our constitutional system consistently hands that advantage over to a Republican Party that is increasingly radical, irrational and racist. (As The Postā€™sĀ Dan BalzĀ writes, ā€œFor Txxxx supporters, cultural preservation of an America long dominated by a White, Christian majority remains a cornerstone of their beliefs.ā€ That isĀ the definitionĀ of white supremacy.)

We could get rid of the Electoral College by constitutional amendment or through the National Popular Vote Interstate CompactĀ (which would instruct each stateā€™s electors to cast their votes for the national popular vote winner). But there is an alternative answer, which is also a function of our constitutional system.

One positive aspect of the Txxxx era is that it made many Democrats understand the value of federalism. State lawmakers and election officials prevented a coup by the Txxxx campaign. State attorneys general, over the course of 138 cases, also blocked Txxxx on an array of issues. AsĀ NBC News reported, this includes: ā€œthe ā€˜travel banā€™; the Deferred Action for Childhood Arrivals program, or DACA; family separations at the U.S.-Mexico border; the ā€˜national emergencyā€™ declaration to build the border wall; international student visas; student loan protections; clean water rules; transgender health care protections; automobile emissions; a citizenship question on the 2020 census; U.S. Postal Service operations; and Obamacare.ā€

Federalism is not an unalloyed benefit to progressives, as we saw when states banned same-sex marriage, access to abortion and common sense precautions to prevent the spread of covid-19. But, if you combine the ā€œlaboratories of democracyā€ with local activism (which prevailed in one state after another on same-sex marriage) and a Democratic presidentā€™s persuasion, you might make real progress on everything from police reform to health care to education.

The other benefit of pushing decision-making down to the states is that state governments are less polarized and more functional than the federal government. Democratic governors work with Republican legislatures; Republican governors work with Democrats. Budgets get passed and balanced ā€” without the backstop of printing money.

So where does that leave us? Our divisions are considerable ā€” aggravated not solely by ā€œpolarization,ā€ but also by the descent of one party into nuttery and by a Constitution that gives that party disproportionate power. Where possible, lawmakers should reduce that distortion (e.g., the National Popular Vote Interstate Compact) and deploy federalism.

Finally, our politics is more fluid than we imagine. Virginia and Colorado used to be dependable red states. No more. Stacey Abrams showed Georgia politics can shift as well. We need not accept that states are fated to remain in one partisan column. Activism, outreach and demography can change the electorate, and hence the result of elections.

The bottom line: Democrats have a small but stubborn national popular vote majority. The electorate as a whole agrees with their positions on gun safety, climate change and health care. The trick is expanding democracy, maximizing the benefits of federalism and working hard to create an electorate that resembles the increasingly diverse ā€” and progressive ā€” population.

Unquote.

Ms. Rubin doesn’t mention statehood for Washington, D.C. (pop. 685,000) and Puerto Rico (3.2 million), but giving full voting rights to citizens there would help restore majority rule to the Senate.