The FVA, the Constitution, the “Ryan Syndrome,” and the Filibuster: Part II

[If one intends to review this post, but has not yet read Part I (which is a bit below), I would start there.]

I noted in Part I of this post that in the latter part of October, all 50 Senate Republicans voted against commencing debate on the Freedom to Vote Act (the “FVA”), although the measure had been specifically designed by moderate Senate Democrats to garner bipartisan support.  After the vote, MSNBC Commentator and former Republican Congressman Joe Scarborough professed puzzlement that moderate U.S. Senate Republicans such as Mitt Romney, Rob Portman, and Lisa Murkowski — Mr. Romney and Ms. Murkowski voted to convict former President Donald Trump in his Senate impeachment trial earlier this year — voted against even debating a measure intended to ensure and increase voter participation which all Americans, certainly all American legislators, should seemingly support.  Mr. Scarborough suggested that American democracy may well depend upon the relative breadth of our citizens’ voting rights, a sentiment with which I agree.  Although I was also initially perplexed by the obstructionist votes of that handful of Senate Republicans for whom I still hold a modicum of respect [including Messrs. Romney and Portman (who’s actually retiring in 2022)  and Ms. Murkowski), I’ve decided that my expectations were misplaced.  With due apologies to two eminent psychologists that follow these pages for having the temerity to venture into their field, I would venture that these Republican moderates have succumbed to what I consider the Ryan Syndrome.

All will recall the former Speaker of the House of Representatives, U.S. WI Rep. Paul Ryan.  Mr. Ryan has spent all of his adult life in the Republican cocoon.  By all accounts highly intelligent, well-meaning and well-liked, possessing an unsurpassed command of public policy issues, between 2015 and 2018 Mr. Ryan nonetheless went from (1) sharply criticizing former President Donald Trump’s obviously racist campaign declarations and isolationist policies to (2) rationalizing Mr. Trump’s early overreaching conduct of the presidency to (3) bowing to his caucus’ political demands arising from Mr. Trump’s popularity with the Republican base instead of placing the Congressional check on Mr. Trump’s excesses that anyone of Mr. Ryan’s ability and demeanor would have understood was necessary to protect our constitutional framework to (4) buckling under entirely by resigning the Speakership and his House seat.  His reward for his Republican constancy:  he sits on the Board of Directors of Fox Corporation, owner of the Fox News Channel and the Fox broadcast network.  He received an appointment to lecture at Notre Dame University.  He moved his family to Washington, D.C. in 2019. He is undoubtedly welcome at all Republican gatherings and continues the relationships with all of the conservatives that he established over a lifetime.  He did not betray his compatriots.  He still belongs.

No state has found substantive evidence of voter fraud that materially affected the outcome of the 2020 presidential race. Given such lack of evidence, one can reasonably infer from the concerted efforts of Republican organizations in multiple states to limit voter rights and opportunities that these organizations have determined that if all legally authorized voters cast ballots, it portends significantly diminished Republican influence. The purposes of these voting measures are political and partisan, nothing more.

Mr. Romney and Ms. Murkowski, as most are aware, are children of former Republican Governors.  Mr. Portman began working on Republican congressional campaigns right out of college, in the late 1970s.  For those that have spent lifetimes enmeshed in Republican party politics, it seems likely that all of their friends are Republicans.  The vast majority of their social events are presumably hosted and attended by Republicans.  They live in the Republican Party cocoon.  I would pose that it might be one thing for some Republican Senate moderates to have voted to convict Mr. Trump on the impeachment charges brought by the House earlier this year – one gets the impression that the Republican Senators voting to convict have been cut some slack within the caucus, since all even somewhat sane Republicans including Republican Senate Minority Leader Mitch McConnell reportedly intensely dislike Mr. Trump, don’t consider him “one of them,” recognize that he did indeed incite insurrection, and find him a disgrace to the country and their party – but it might be an entirely different matter within the Republican tribe for these Republican moderates to vote for a measure that the GOP believes will threaten its influence – and could cost some of their friends their jobs.  Speaking of what he called the “Loyalty Foundation” in American politics, Psychologist Jonathan Haidt observed in The Righteous Mind:  “The love of loyal teammates is matched by a corresponding hatred of traitors, who are usually considered to be far worse than enemies.”  Particularly if one has sincere misgivings about substantive Democratic Party policies – these are Republicans, after all — how likely is one to vote for a measure that seems destined to result in the implementation of policies in which you do not believe and to end the careers of a number of your friends?  Ex-Republican Mr. Scarborough has his new MSNBC buddies to talk to; who is going to talk to you if you do that?  The Democrats?  You’ll be a pariah.

I do not suggest that Congressional Democrats, having been raised in a corresponding cocoon, would perform any differently if the country’s demographic tendencies were reversed.  In these moderate Republicans’ places, I hope I would do better, but am not sure that I would.  Human frailty is reality.  To protect itself, a government needs to account and compensate for it.  Speaking as “Publius” in Federalist No. 51, James Madison wrote, “In framing a government … the great difficulty lies in this:  you must first enable the government to control the governed; and in the next place oblige it to control itself.”    

I have in the past voiced support for the Senate filibuster while expressing exasperation for the manner in which Republicans led by Mr. McConnell have wielded it for purely partisan purposes.  Most of the federal laws that have had an enduring beneficial effect in our nation’s history have either been passed (or at least ultimately accepted) on a bipartisan basis.  I have been and remain concerned that in such a closely-divided and hyper-partisan political environment, whatever can be done by simple majority can just as easily be undone by a simple majority.  In a recent email, a good friend called me a “‘rule of law’ guy,” which I consider a compliment.  At the same time, he quoted French classic liberal Frédéric Bastiat, who declared in the first half of the nineteenth century:  “When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time, a legal system that authorizes it and a moral code that glorifies it.”

Lacking M. Bastiat’s breadth or eloquence, what has occurred to me, as I have watched Republicans thwart voting rights safeguards that I have come to believe are our best protection against autocracy, is more prosaic:  that Republicans have abandoned the principles that appear today in virtually every significant commercial contract but are scarce present in the Constitution:  reasonableness and good faith.  (There is only a reference to “unreasonable” searches and seizures in the Fourth Amendment.  The phrase, “good faith,” does not appear in the Constitution.  The document does have references to federal offices being of public “trust,” but to me that is not the same thing.)  In the same manner that the Constitution’s drafters could not conceive of nationwide media, air travel, or that important men in Congress [by definition, if you were in Congress in those days, you were already important, and male ;)], would cede their branch’s prerogatives to the President, they – the same or collaborators of the men who when signing the Declaration of Independence had pledged to each other their “lives,” “fortunes,” and “sacred honor” – could not fathom that national representatives would endanger the system of government that they had risked their lives to establish over petty partisan politics; that members of Congress would need a Constitutional reminder and admonition to act “reasonably and in good faith” to protect the republic.

It is clear that Republicans will not act in good faith, even to protect our democracy.  Accordingly, the Senate filibuster must be discarded, at least insofar as it prevents the passage of a law containing the voting rights safeguards set forth in the FVA.  While I would prefer that Democrats find a rational way to fashion a carve-out for voting rights legislation without entirely scuttling the filibuster, if such is not feasible (How many carve-outs to a rule can one create before the rule is effectively vitiated?), so be it; then the filibuster must go.  (Winston Churchill once remarked, “Conservative policy is essentially a tentative policy, a look-before-you-leap policy, and it is a policy of don’t leap at all if there is a ladder.”  By exploiting a legislative mechanism to seek to limit the voting rights of those with whom they disagree, Republicans have taken away the ladder underpinning the filibuster.)  One might question, given the concern I expressed in Part I of this note — that Republican state legislators in some states may well be driven to use every Constitutional loophole in order to select presidential electors that will vote for the Republican presidential candidate notwithstanding their state’s contrary popular vote totals — whether I am confident that the benefits of any voting rights bill will withstand such nefarious intent.  Candidly; I’m not sure; but taking all possible steps to secure free and fair voting rights for all of our citizens seems to offer our republic’s most robust available safeguard.