On November 3, Republican senators utilized the filibuster to block consideration of another measure proposed by Democrats to safeguard the voting rights of all Americans, the John Lewis Voting Rights Advancement Act.  I need to note that one of the moderate Republican Senators whom I called out in Part II of this post for failing to fairly consider federal voting rights legislation, U.S. AK Sen. Lisa Murkowski, voted with Democrats to allow debate on the bill.

By coincidence, shortly before Part II was posted, U.S. UT Sen. Mitt Romney – another of the Republican Senators I specifically took to task for obstructing consideration of voting rights measures intended to protect all Americans’ voting rights — published an opinion piece in the Washington Post defending the filibuster, in which he stated in part, “The need to marshal 60 votes to end a filibuster requires compromise and middle ground. It not only empowers the minority but also has helped to keep us centered ….  Have Democrats thought through what it would mean for them for [former President Donald] Trump to [be re-elected and] be entirely unrestrained, with the Democratic minority having no power whatsoever?” 

I have genuinely high regard for Mr. Romney; over the last several years he has stood, sometimes alone among in his party, against Mr. Trump’s untoward conduct of the presidency.  If in his place, I hope that I would have had the courage to act as he did, but honorable sentiments such as I express are easy until one is put to the test.  That said, the Senate filibuster fosters the compromise of which Mr. Romney speaks only if both sides are acting in good faith.  It is a disheartening irony that it is the tribal failure of Mr. Romney and his sensible Republican Senate colleagues (now, save Ms. Murkowski) to break with the patently obstructionist and partisan members of their caucus over voting rights that has caused somebody like me, who values traditional institutional safeguards like the filibuster, to call for its abandonment.  As for Mr. Romney’s allusion to the danger the country will face if Mr. Trump is re-elected – a fear (indeed, a fright) that I absolutely share — I would suggest to him that the voting laws that Republican legislatures are implementing across the nation – statutes that the safeguards set forth in the Freedom to Vote Act (the “FVA”) are intended to circumvent – will, if unchecked, increase the potential that Mr. Trump will return to the White House.  If Mr. Trump returns, he will almost certainly be accompanied by Republican majorities in both Houses of Congress; and if such is the case, it takes no prescience to suggest that the first thing an obsequious Republican Senate majority will do is end the filibuster to do Mr. Trump’s bidding.

Senate Democrats must discard the filibuster, at least insofar as it blocks their ability to pass voting rights protections such as those set forth in the FVA.  I would readily give up the entire human infrastructure package that Democrats continue to haggle over if that was what was required to get Democratic Sens. Joe Manchin and Kyrsten Sinema to vote to modify the Senate’s filibuster rule to enable the passage of voting rights legislation.  There will always be benefit programs to consider.  As I suggested in Part II of this post, the race this year by state Republican-led legislatures to enact new voting laws, notwithstanding the lack of any credible evidence that voter fraud materially affected the outcome of the 2020 Presidential and Congressional races, cannot help but cause one to conclude that their efforts are no more than an entirely partisan attempt to tilt the electoral landscape in their favor.  I would submit that their obvious lack of good faith, if left unchecked, is an existential threat to our republic.

In the first published version of Part II of this note, I indicated that U.S. OH Sen. Rob Portman had voted to convict former President Donald Trump in the impeachment proceedings brought before the Senate earlier this year.  Sen. Portman did not.  I regret the error.  Not as deeply, however, as Mr. Portman should regret that it was an error.

[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.

A bit lost in the reporting on the Democrats’ continued infrastructure dithering was the October 20 vote by all 50 Senate Republicans against commencing debate on The Freedom to Vote Act (my acronym:  the “FVA”), a voting rights measure that U.S. MN Sen. Amy Klobuchar, U.S. WV Sen. Joe Manchin, and other Democratic and Independent Senators drafted specifically to attract bipartisan support for federal electoral reform.  A link to a summary of the bill set forth on Ms. Klobuchar’s Senate website (that in turn provides a link to the almost-600-page text of the bill itself, of which I confess that I have only read Title III, Subsection A, which restricts states’ right to remove their local administrators of federal elections) is attached below.  Among other things, the measure would make Election Day a public holiday, provide for uniformity in voter registration, state voter registration administration and voting procedures, increase security for cast ballots, and require disclosure of “Secret Money” contributed to campaigns.  It would also prohibit partisan interference or control of local election officials in the conduct of their federal election responsibilities and require states to engage in nonpartisan congressional redistricting.  Seemingly noncontroversial stuff – if one ignores the decade-long nationwide Republican Party efforts at state partisan gerrymandering, and, more recently, to restrict voter access and to take legislative control over federal election results they don’t like. 

Again, the Senate vote wasn’t upon the bill’s passage, but merely upon whether it could be debated.

https://www.klobuchar.senate.gov/public/index.cfm/2021/9/klobuchar-colleagues-introduce-legislation-to-protect-freedom-to-vote-and-strengthen-our-democracy

After taking Constitutional Law in law school, I spent no time – zero — in the area during my legal career, so there are undoubtedly a number of legal eyes — and, I suspect, a number of eyes that who don’t have legal degrees 😉 – reading these pages who know a bunch more about Congress’ authority to regulate federal elections than I do.  Its power appears fairly straightforward in some respects, in others perhaps not as obvious as media reports imply.  A link to “The Scope of Congressional Authority in Election Administration,” a report issued by the United States General Accounting Office (the “GAO”) to Congress four months following the Bush/Gore 2000 presidential election, is immediately below.  I don’t claim that this is the best or most current authority – merely that it is most pertinent that I located ;).

Two parts of the Constitution seem of particular import:

Article I, Section 4, Clause 1 [known as the “Elections Clause”]: 

“The Times, Places, and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing [sic] Senators.”

Article II, Section 1, Clauses 1-3:

“[A] President of the United States … shall … be elected, as follows:  Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress …. The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”   

One doesn’t need a legal degree to see that Congress’ Constitutionally-prescribed power under the Elections Clause to regulate the elections of Senators and Representatives is broader than its stated authority to regulate presidential elections under Article II.  As the GAO noted in its report, “At the time of the Constitution’s adoption in 1787, general elections for President were not contemplated.  The Constitution provides, instead, for the election of the President by electors appointed by each state.  The state legislatures are empowered to direct the manner in which the electors shall be appointed, and all 50 states and the District of Columbia, in turn, currently provide that presidential electors be elected by popular vote.”

In its report, the GAO cites a number of United States Supreme Court opinions regarding Congress’ power to regulate federal elections.  The two arguably of most interest, Smiley v. Holm (1932) and Burroughs v. United States (1934), ironically issued by Courts whose members would later be railed against by President Franklin Roosevelt for curmudgeonly finding unconstitutional various New Deal measures, each strongly upheld Congress’ right to supersede the states’ power to administer federal elections.  While the holding in Smiley, dealing with reapportionment of congressional districts, was perhaps not surprising given Article I’s straightforward text regarding Congress’ right to “amend” states’ regulations affecting congressional elections, the Court’s holding in Burroughs was textually a longer stretch.  The petitioners in Burroughs alleged that given the narrower scope of authority over presidential elections granted to Congress in Article II, the federal law under which they had been convicted of conspiracy could not be properly applied to their use of funds to influence the election of a state’s presidential electors.  As the GAO indicated in its Report, the Court found such a narrow a view of Congressional power “without warrant.”  The GAO quotes the Court as adding:   

“To say that Congress is without power to pass appropriate legislation to safeguard [a presidential] election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self-protection.   Congress, undoubtedly, possess that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.”

Reasonable?  Certainly.  In the one part of the ponderous FVA that I have read – limiting statewide election authorities’ power to override local elections officials – the FVA’s drafters went out of their way to assert that Article I’s Elections Clause grants Congress broad power over administration of “Federal Elections.”  The Elections Clause actually only authorizes Congress’ power over Congressional Elections.  I’ve previously suggested in these pages that the Trump presidency demonstrated that at this point in our history, it is the character of the President, not the power of Congress, that is our bulwark against autocracy.  Given Congress’ more limited Constitutionally-described powers with regard to presidential elections, taken together with the fact that the Supreme Court specifically declared that the statute it upheld in Burroughs did not “… in purpose or effect … interfere with the power of a state to appoint electors or the manner in which their appointment shall be made,” how confident are you today, with the conservative literalists sitting on the Supreme Court, that the Court would uphold a federal law insofar as it was cited as authority to limit a State’s administration and assessment of the outcome of its presidential election, and reject that State’s claim that such federal law violated the state’s Constitutional right for its legislature to appoint its presidential electors in the manner of its legislature’s choosing?

This is long enough.  I’ll repeat the above caveat:  I was never a constitutional lawyer.  I would welcome the guidance of anyone who can cite authority placing Congress’ authority to regulate presidential elections on firmer ground than suggested here, and/or the reassurance of anyone who is confident that I’m being paranoid. 

The “Ryan Syndrome” and the Filibuster in Part II.

Although most who care may already be aware, attached is a link to an essay by Robert Kagan that ran in the Washington Post on September 23, 2021.  I consider it at once the most important and disturbing opinion piece that I can remember.  I remarked in a note a while back that I thought former President Donald Trump was “more than a bit spent”; Mr. Kagan has most assuredly caused me to rethink that notion.  If you have access to the Post, I hope you will bring it up without delay; if you don’t, I most strongly urge you to find a way to to review it.

https://www.washingtonpost.com/opinions/2021/09/23/robert-kagan-constitutional-crisis/