[Hopefully, all reading this note will excuse my adaptation of a well-known fable.]
“Look, we did something that was historic, we saved tens of millions of lives worldwide when we, together, all of us, we got a vaccine done. This was going to ravage the country far beyond what it is right now, take credit for it… it’s great, what we’ve done is historic. … [I am both vaccinated and boosted.]”
Former President Donald Trump, December 20, 2021
So, the man died and arrived at the Pearly Gates. The Lord looked out, saw him, and said, “What are you doing here?”
“I died, Lord,” he replied.
“What did you die from?”
“I died from the Coronavirus, Lord.”
“How did that happen? Did you get vaccinated? Did you get boosted?”
“No, Lord! It was my freedom! It was my faith!”
“So … First, I sent you Dr. Fauci, an eminent doctor, who told you vaccinations were safe. Then, I sent you Pope Francis, who told you that getting vaccinated was an ‘Act of Love.’ Finally, I even sent you … Donald Trump, who told you that vaccinations protected America.
Yesterday, Chris Wallace announced he was leaving Fox News for CNN+, CNN’s streaming service. It is reported that his Fox News contract was up, and he’s out of there. As I noted when CNBC News Anchor Shepard Smith left Fox News in 2019, I place the highest credibility upon those willing to speak the truth when the truth is contrary to their own interest. I accordingly considered Mr. Wallace’s approach on Fox News a particularly vital contribution to the ongoing cable news debate of national issues specifically because he was on Fox News, which generates its revenues by serving Trumplican sugar to an audience that laps it up. I observed when noting Mr. Smith’s departure:
“It is no surprise to the readers of these pages that I am generally in agreement with the sentiments expressed by the Morning Joe panel and the rest MSNBC lineup (although I’m occasionally surprised that they don’t asphyxiate themselves on their own hyperventilation); I enjoy the relish with which the majority of the CNN talking heads pursue [former President Donald Trump’s] falsehoods and inanities (although I wonder how they avoid drowning in their own antagonism); but I’m always acutely aware that no matter how sincerely these MSNBC and CNN commentators hold their views, they’re on those networks’ air because their employers’ business models in part involve inciting antipathy toward Mr. Trump and his cohort. What made Mr. Smith different was the fact he was speaking to an audience that generally mostly strongly disagreed with the truth he offered.”
It also made Mr. Wallace different. It has been reported that Mr. Wallace recently objected to Fox News leadership regarding the network’s airing of Patriot Purge, a 3-part series conducted by Fox News Commentator Tucker Carlson. I have been aware without following the situation closely – I want to spend as little of my remaining life space as possible attending to Mr. Carlson, and to the reporting on Mr. Carlson’s pronouncements – that Patriot Purge seeks to rewrite the history of the January 6th Capitol insurrection, and has been lampooned by credible fact checkers for boosting Trumplican propaganda.
Godspeed to Mr. Wallace in his new endeavors. Although he is reported as leaving of his own volition, I doubt that the Murdoch Family and Fox News leadership care that much.
“The nationalization of the broad masses can never be achieved by half measures, by weakly emphasizing a so-called objective standpoint, but only by a ruthless and fanatically one-sided orientation toward the goal to be achieved.”
[The wrenching verdict in the Kyle Rittenhouse trial this past Friday may have been the legally-correct result, but the conclusion is inescapable that the whole situation was a senseless waste caused by a clueless teenager, carrying an assault weapon with no idea as to the potential consequences of his actions, who traveled from his home in Illinois to a Wisconsin city where he had no valid business. On Sunday, we had the senseless tragedy in Waukesha caused by the apparently random act of a man, reported by The New York Times to have “a long, violent criminal history,” who was out of jail on bail that the Milwaukee County District Attorney’s Office now states was set “inappropriately low.” The families of those killed and injured in Kenosha and Waukesha should be giving thanks this week instead of grappling with unfathomable loss. Although there is no solace for these families, when considering these tragedies I thought of an experience I described in these pages in February, 2019. While there is so much in our current national and global situation to concern us, perhaps the help TLOML and I received on a dangerously cold night — from an elderly African American gentleman who, demographically, probably voted for President Joe Biden and from young Caucasian auto mechanics, at least one of whom, demographically, probably voted for former President Donald Trump — offers some consolation, at least for those not gripped by the deepest despair, that most of our people have good in them. May you and your loved ones, as well as those from afar who have found refuge within our nation, have a warm and healthy Holiday.]
Over the weekend, we were in Milwaukee for a family gathering, and our fairly new Prius was struck, opening a gash on the left rear side that we were pretty sure when we discovered it was at an angle such that wind shear would cause some of the rear fender to rip off if we tried to drive back to Madison without having it attended to. (No note was left.) From an engine standpoint, the car was completely drivable. We were able to make an appointment at a nearby service center (more on the shop below), and at a few minutes past 5 on a Friday night, set off to drive about 4 miles in significant winds and bitter, bitter cold with the dark coming on.
We didn’t make it. About half way to the shop, we heard a bang and realized that part of the fender had flipped back due to the wind. We pulled over in the now almost-dark to retrieve what had come loose, cars moving around us, fairly concerned about what we were going to do.
A van slowly pulled up behind us and stopped. Its motor kept running, its headlights stayed on, and its emergency flashers came on. An African-American gentleman, in his mid-50’s – warm, friendly, reassuring — got out of the van, came up, and — with cars continuously going by us and in temperatures and wind cold enough to numb your bare hands in a couple of minutes — helped us put the pieces temporarily back in place, and with duct tape he provided, we got the fender patched sufficiently so we could finish the drive. Then we exchanged names, we thanked him – I don’t think it was possible for us to thank him profusely enough – shook hands, and … he bid us good night, and went on his way.
Got to the service center. The shop is for engine repair, not body work, but the rep and a couple of the technicians came over and when they heard that our goal was simply to make the car secure enough to get back to Madison, they said they thought they could attach a couple of fasteners that would hold the left rear together, and told us to go to dinner (we had family with us in another car) and come back in about an hour.
When we got back, the car looked like it had a few stitches, and was clearly sturdy enough for us to get it home. We asked what we owed; we heard: One of the guys had some time. No charge. Glad we could help.
For those of us that tend to focus on the seemingly paralyzing political acrimony we have at home and the serious issues we face here and internationally, it’s good to recall: There exists, as there always has, a good will, a kindness, a generosity of deed and spirit in America.
Back in August, I posted a note about a town hall meeting conducted earlier in that month in a central Wisconsin park by a Republican Congressman. I observed in the piece:
“There was appreciable attendee support for the bipartisan Senate infrastructure bill, particularly as regards expanded broadband access. The Congressman indicated that he generally supported the bill (since then, Mr. Trump has expressed his opposition to the bill; it would be instructive to learn whether the Congressman has changed his position).”
Devoting greater space to broadband wasn’t warranted in the context of the post, but there was actually a meaningful discussion during the town hall about the area’s need for broadband. One constituent identifying herself as a realtor specifically told the Congressman that she was having trouble selling certain homes in the area because they did not yet have access to broadband.
As all who care are aware, on November 5, the House of Representatives at long last passed the bipartisan Senate infrastructure bill discussed during the town hall. President Joe Biden will sign it into law today. The measure addresses national infrastructure needs which both parties acknowledge are necessary – such as assistance for roads, bridges, rail, water quality, and broadband. This was a bill that even Senate Minority Leader Mitch McConnell supports and voted for. 13 Republican members of the House of Representatives broke ranks with Republican House Leadership and voted for the measure — support that was required for passage given six Democratic defections (we’ll get to them in a minute).
Wisconsin has five Republican members of Congress. At least three of them represent rural districts that probably all desire broadband expansion. Not one – including the Congressman whom we witnessed being told by his constituents in that summer session that they needed broadband and supported the bill, and indicating to them that he supported it – voted for it. They were clearly afraid of former President Donald Trump, who issued a statement after the bill passed, declaring in part, “Very sad that the RINOs in the House and Senate gave Biden and Democrats a victory on the “Non-Infrastructure” Bill. All Republicans who voted for Democrat longevity should be ashamed of themselves … [Emphasis Added].”
This is a package that the American people overwhelmingly support and need. One could not ask for a more naked indication from the former President that his focus is all about winning, not about serving – which is the basis upon which we supposedly elect our representatives. While there may well be a handful of Republicans that opposed the measure due to concerns that it will increase the deficit, perhaps spur inflation, or the like – valid policy positions, even if one does not agree with them – it is manifest that the vast majority of Republicans that voted against the measure did so, although they know it’s a good bill, because they cower before Mr. Trump. In a characterization that is gentler than it could be, they lack the fortitude we have a right to expect in our representatives.
The six Democratic House members who voted against the measure containing provisions that they clearly supported – the four members elected in 2018 who have gained significant notoriety as the self-styled “Squad,” and two representatives elected in 2020 whom I understand have publicly associated themselves with the “Squad” — exhibited the same tribal intransigence and disregard for what is in the interest of the American people as did the goose-stepping Republicans who opposed the bill. Their vote amounted to stamping their feet because they couldn’t have their way on the Democrats’ “human infrastructure” package. In this context, it doesn’t matter whether the programs within “human infrastructure” measure that they seek are good or bad; President Biden — whose “whole agenda” these six Democrats claim to support — wanted them to vote for the infrastructure package now. They refused. The American people need adults representing them, not children throwing hissy fits. These six Democrats are at the very least immature, arguably wantonly selfish.
It is sometimes difficult to see a way forward in a political atmosphere so saturated with tribalism, fear, distrust, and antipathy. I consider the votes against the infrastructure bill by those Republicans and Democrats who actually supported the substance of the measure and understood that it would help their constituents – whether the votes arose from political subservience or stubborn unwillingness to accept that ours is a system of compromise – to be disheartening betrayals of – in the Constitution’s phrase – Offices of Trust.
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.
Of course, former Virginia Governor and Democratic Candidate Terry McAuliffe lost the Virginia Gubernatorial race to Republican Candidate Glenn Youngkin. In this October 30 post, I made an off-hand remark that Mr. McAuliffe’s electoral prospects might be adversely affected by, among other factors, the fact that “Congressional Democrats currently don’t look like they can run a two-car funeral.” Although a number of pundits have opined that Mr. McAuliffe’s defeat was due more to his politically unwise debate declaration that parents shouldn’t be telling schools what they should teach than to Congressional Democrats’ currently cloudy national fortunes, three thoughts:
The first: having now had a chance to see a few more clips of Mr. Youngkin, I think he could present a long-term disquieting picture for Democrats. He is conservative, but appears happy and upbeat. He seems to have a likable visage more akin to former President Ronald Reagan’s than to not only former President Donald Trump’s, but to the dark, angry, confrontational demeanors exhibited by Trump Wannabes such as FL Gov. Ron DeSantis and TX Gov. Greg Abbott. In Tuesday’s election, Mr. Youngkin demonstrated Mr. Reagan’s ability to attract strident conservatives while appealing to moderate Republicans and Independents. For a Republican in a “blue” state, he won by a respectable margin. We’ll see how he does, but if Mr. Youngkin governs moderately and seemingly successfully, he may have that “something” that the Trump Wannabes lack – which is a scary prospect for Democrats.
The second: I saw it reported yesterday that House progressives are reportedly seeking to reinsert the recently-eliminated paid leave measure into the human infrastructure package notwithstanding the apparently continuing opposition to the provision of U.S. WV Sen. Joe Manchin, without whose vote nothing (that’d be: nothing) will pass the Senate. Putting aside whether paid leave is substantively good or bad policy, one is left to wonder:
Should it stay or should it go now? If it goes, there will be trouble; and if it stays, it will be double. Democrats need to come on, and let us know: Should it stay or should it go now?
I apologize for putting the lyrics in your head that will stay with you for the rest of the day; but the Democrats’ philosophic … er … Clash … has now reached comedic proportions ;).
Finally: after the post, a good friend that follows these pages sharply disagreed with my characterization of Congressional Democrats’ management abilities; his assessment: that they can’t run a one-car funeral. I fear that the American electorate is already making up its mind as to whether they should stay or go.
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.
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.
My frustration with the Democrats’ machinations over human infrastructure is increasing exponentially, and recently caused me to rip off the email set forth immediately below – admittedly not of the tone I generally try to maintain in these pages — to a few friends that tend to be more progressive than I am:
“Put [a]side whether or not the “Human Infrastructure” bill that Progressives are pushing, and its final size, is a good or bad thing. What they’re missing is: for the future of democracy, it doesn’t matter. Those that hatch all these conspiracy theories and the whackos that believe them aren’t going to be dissuaded by benefit structures. If Democrats had any sense, they’d pass a measure all could agree on, call it a victory (which, compared to where we’ve been, it will be), and focus on voting rights. That’s where our system will be lost or perhaps (only, “perhaps”) preserved. I’m very concerned … “
The responses were instructive:
“… The Human Infrastructure bill … matters in the sense that if the Democrats are trying to motivate all their voters they need to pass it to show the Progressives that voting with the Democrats can lead to progress on their agenda. … You are right the “wackos” aren’t going to be dissuaded by benefit structures nor will the denial of those benefit structures dissuade them. … I do agree that the final size is probably of less importance. … I agree that the voting rights bill is even more critical to our whole system of government and that’s where our system will be lost or perhaps (only, “perhaps”) preserved. The real battle will be over voting rights and the end of the filibuster necessary to protect those rights. … I am very worried.”
“My anxiety is growing (again) as well. … We are careening. Take the $1T infrastructure, take the $?T lowest common denominator of everything else and move on. Means test it. Roll back some of the Trump tax cuts as ways to reduce deficit and inflationary pressures. Seems obvious to us centrists. Indicates that “democrats” are not one party. The only unifying principle is ‘Never Trump.’ They need to boil up some statesmanship and act for the good of the country.”
“I agree completely. While sympathetic to the Progressive agenda, I’d tell them, look…the cold hard truth is that we simply don’t have the votes to pass what you want. You can piss and moan about that and not vote at the mid-terms, but be prepared for the dire consequences of that action. Plus, the orange Godzilla monster is going to follow that up 2 years later and you’ll really know what hell is.”
TLOML is in an exercise group composed of women who are all progressively inclined. She advises that a recent discussion indicates that all of these women are exasperated by progressives’ intransigence and unwillingness to face reality. They want what is doable to be done.
From this small and obviously anecdotal sample, I would suggest that Congressional Progressives are fighting for principle when the majority of those sympathetic to their views are willing to compromise in order to actually achieve … progress. While one can sympathize with Progressives’ annoyance with moderate Democrats’ objections to some parts of their human infrastructure proposal – U.S. WV Sen. Joe Manchin’s objections to certain of the measure’s climate-protection provisions, while understandable for a coal state representative, are perhaps particularly galling — it’s time for them to agree on infrastructure bills, pass them, declare victory, and move on.
To borrow the arresting phrase of a wise [at least, when he agrees with me ;)] man: Democrats need to start focusing on the prospect of the resurrection of the orange Godzilla monster. Yet, there’s scant indication, based upon their internecine antics to date, that they appreciate that their dithering may be paving hell’s way.