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Gosar and Rittenhouse are the Republican Party of 2021

In a sick and twisted sense, it’s fitting that white supremacists celebrate the Kyle Rittenhouse verdict the same week that House Republicans stood with Representative Paul Gosar for fantasizing about murdering AOC.

If you haven’t been following the news recently, you may not have heard that far-right Congressman Paul Gosar tweeted a doctored video of him murdering Representative Alexandria Ocasio-Cortez and striking President Joe Biden. While both of those points have rightly gotten considerable media attention, the video also featured undocumented immigrants crossing the border. The not-too-subtle suggestion from the video is that immigrants crossing the border should be treated with violence.

Apparently, those messages are A-OK with Gosar’s Republican colleagues in the House. After all, only two Republicans voted to censure him: Representative Liz Cheney (R-WY) and Representative Adam Kinzinger (R-IL). Cheney and Kinzinger are the same Republican representatives who voted to impeach Donald Trump for his coup attempt and currently sit on the 1/6 Committee investigating the insurrection.

The kid-glove approach to Gosar contrasts sharply with how House Republicans are treating other members of their conference. They have already punished Liz Cheney (formerly the third-ranking Republican in the House of Representatives) for daring to tell the truth about 1/6. They are threatening to punish the 13 moderate Republicans who voted for Biden’s infrastructure bill. (Those same members are also receiving death threats.) Yet all but two House Republicans stood with Representative Gosar when he all-but-encouraged violence against a colleague.

Gosar – who has already been implicated in the insurrection and whose six siblings were featured in an extraordinary ad opposing his re-election – took note of that support. After initially deleting the tweet, he retweeted the video after the censure vote in an act of defiance. The lesson that he apparently learned was that his Republican colleagues had his back and that he should double down.

To be sure, not all of his Republican colleagues agree with Gosar’s extremism; some have mildly condemned it while opposing the censure on weak procedural grounds, arguing that it went too far in stripping him of committee assignments. Rep. Don Bacon (R-NE) expressed concern with the precedent that the censure would set. Oddly, he had less concern about the precedent set from doing little to nothing when a member of Congress threatens another member.

Aside from Cheney and Kinzinger, everyone else in the House Republican conference is either sympathetic to Gosar or too cowardly to stand up to him. They either outwardly support violence or refuse to condemn it in a meaningful way.

What does that tell us? The fascist takeover of the House Republican conference is all but complete.

Photo Credit: Gage Skidmore, Flickr

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A person of color’s right to vote and the ‘right’ to filibuster are not remotely equal

Over at NY Mag, Ed Kilgore writes about how Vice President Kamala Harris has unveiled a fallback strategy in case voting rights bills fail to pass Congress.

First, for some context, NBC News reports on the Harris announcement:

Vice President Kamala Harris will announce Thursday a $25 million investment by the Democratic National Committee to support efforts to protect voting access ahead of the 2022 midterm elections.

The announcement comes as Republican-controlled states around the country have passed a wave of restrictive voting rights laws fueled in part by former President Donald Trump’s false claims about the results of the 2020 election.

President Joe Biden has been criticized by some Democrats and civil rights advocates for not taking a more aggressive approach to fighting those new laws after Senate Republicans blocked voting rights legislation last month.

Kilgore argues that “it’s true Democrats have failed to overcome Republican resistance to voting-rights legislation, either by securing GOP support or by convincing Democratic centrists like Joe Manchin and Kyrsten Sinema to restrict or abolish the competing right of Senate minorities to kill legislation via the filibuster.” (Ed. note: Emphasis added.)

He concludes, stating that “what Harris announced should be treated as a serious and important contribution to the cause of voting rights, not dismissed as an excuse for failure to do the impossible in Congress.”

I do not take issue with Vice President Harris or her announcement. In fact, it is vital for at least one of America’s major parties to invest in voter protections while the other party attempts to dismantle what’s left of democracy in the United States.

However, there are at least two major issues with this piece: 

1) A person of color’s right to vote and the “right” of 41 (mostly white) senators to block legislation are not remotely equal competing interests. The filibuster is the perfect demonstration of white supremacy in Congress. It was used to deny civil rights in the middle of the 20th century. Now it’s used to deny voting rights protections in the 21st century.

2) There is nothing “impossible” about the Democratic majority using their majority to pass voting rights bills. Is it difficult to get 50 senators (51 with VP Harris) to agree on legislation? Yes. But it is hardly an “impossible” task.

After all, Republicans managed to eliminate the filibuster for Supreme Court nominees, allowing them to ram three Trump appointees onto the Supreme Court – including a seat that they held vacant for a year in the hopes of winning the White House in 2016 and another that they filled merely days before Election Day 2020 when voters opted to kick Donald Trump to the curb. (In January 2021, voters elected a Democratic Senate majority.)

It’s also worth noting that the Supreme Court just gutted the Voting Rights Act of 1965 that the DOJ is relying on in a lawsuit challenging Georgia’s voter suppression law. So one of the fallbacks that Kilgore mentions is basically dead in the water.

The only thing preventing Senate Democrats from eliminating the filibuster for voting rights bills, reforming the filibuster (i.e. a “talking filibuster”), or eliminating the filibuster entirely is the will to act decisively in order to protect our democracy.

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Analysis Opinion

Should Donald Trump be permanently banned from Facebook and Twitter?

Free speech and free assembly are essential rights in any democracy.

Average citizens should always have the right to petition their government for redress, peacefully assemble (with reasonable limits during true emergencies, including pandemics), and protest. We hold these values deep in our hearts.

Speech, assembly, and protest are clearly protected under the First Amendment, but they only prevent the government from imposing undue restrictions on the population. It is a failsafe against an unchecked, Chinese-style authoritarian government where censorship is the rule.

That being said, corporations are not the government. They may restrict content on their platforms – and there are many legitimate reasons why they should. Facebook, Twitter, YouTube, Instagram, and other social media companies all have sets of rules that define a code of conduct for users – and users agree to those terms in order to use their services.

So when we hear griping from some about how Facebook or Twitter ban high-profile politicians like Donald Trump from their platforms, it is not a genuine First Amendment argument so much as a political or ideological argument. Seeing that Trump routinely broke those platforms’ terms of use with little or no consequences for years, it’s more surprising that he was allowed to continue to use them despite breaking the rules than that he eventually faced a ban.

In fact, it took a coup attempt on January 6 for Twitter, Facebook, and YouTube to finally crack down on the former president. Likewise, it took far-right extremists organizing a violent insurrection online for Apple and Google to pull the far-right social media app Parler from the App Store and Google Play. (Parler is already back on the App Store.)

Big Tech’s laissez-faire attitude toward violent extremist groups organizing, recruiting, and spreading dangerous conspiracy theories and propaganda on their platforms is disconcerting, to say the least. They have contributed to the erosion of American democracy, allowing anti-democratic forces to propagate and thrive online while restricting users for artistic expressions of nudity.

So what should Twitter, Facebook, and other social media giants do about Trump?

Until January 20, 2021 at noon, Donald Trump was president of the United States. In effect, as president, he was the most visible representation of the American government with a dedicated communications staff, a press pool, and access to the international press. He was a regular on cable’s highest-rated ‘news’ network, Fox.

Needless to say, Trump enjoyed (as do all presidents) a giant platform, a megaphone – or, as President Theodore Roosevelt would say, a bully pulpit – even without his Twitter account. The idea that Trump’s Twitter and Facebook bans amount to unconstitutional censorship is laughable on its face.

However, just as social media companies have the right to ban him from their platforms, they also have the right to unban him. But should they?

As the lead organizer of anti-democratic and white supremacist forces in the United States, Trump poses a particular threat to American democracy. He has already attempted a coup, inspiring supporters to gather in Washington DC on January 6 and then instructing the mob to go to the Capitol as Congress convened to certify the Electoral College results.

Trump’s actions that day – and in the months both prior and since – have endangered the lives of our nation’s leaders. Former vice president Mike Pence and Speaker of the House Nancy Pelosi were specific targets of insurrectionists, although all members of Congress can count their lucky stars that the plot was ultimately thwarted.

Indeed, law enforcement was less fortunate on that day. Outrageously, countless Republicans in Congress ignored the pleas of  Gladys Sicknick, the mother of fallen Capitol Police officer Brian Sicknick. Instead, the focus of the likes of House Minority Leader Kevin McCarthy and Senate Minority Leader Mitch McConnell has been to re-write history and cover up Trump’s unprecedented attacks on our democracy.

Facebook’s ban extended but not permanent

In response to news that Facebook would extend Trump’s ban on the platform until January 2023 – while leaving the door open for a return – the disgraced former president yet again repeated the Big Lie.

“Facebook’s ruling is an insult to the record-setting 75M people, plus many others, who voted for us in the 2020 Rigged Presidential Election,” Trump said in a statement.

Should the ban get lifted, Trump has repeatedly demonstrated that he will immediately resume the same behavior that got him banned from social media platforms in the first place. He will use Twitter, Facebook, YouTube, and other platforms to lie, divide, incite violence, and spread conspiracies.

A second insurrection is certainly not farfetched. His supporters – including disgraced former National Security Advisor, retired general, and convicted felon Michael Flynn – are calling for a military coup. Flynn previously called on Trump to declare martial law and overturn the election results.

Should the government sanction Big Tech?

It should go without saying that what Trump and his acolytes are doing is not normal political discourse. It is sedition.

Social media companies who aid in undermining our democracy – either directly advocating the overthrow of a democratic government or simply failing to police their platforms – should find themselves in legal trouble for facilitating violence.

That being said, I do not support governments – federal or state – taking action to force social media companies to restrict or ban speech from any particular individual. Social media companies should, however, face civil penalties if they fail to act when there are credible threats of violence. They should also have clear terms of use that are applied consistently.

I also oppose laws in states like Florida that compel social media companies to host content that violates their terms. A new Florida law makes it illegal for companies to ban candidates. The Florida law directly challenges Facebook and Twitter’s ability to moderate content, including fake news and hate speech. It’s a dangerous law that should be immediately struck down.

We need to strike a balance – one that protects the rights of individuals to express themselves in actual public forums (i.e. on the street) and curtails the ability of violent extremists to organize.

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Opinion

A fair and democratic compromise on the filibuster

The filibuster remains in the news as a hurdle to progress on everything from the minimum wage to voting rights. So here is a proposal on the filibuster that everyone should be able to support.

Rather than completely eliminate it – as I’ve argued in the past – the Senate could modify its rules so that in order to filibuster a bill, you have to physically stand at a lectern, speak, and hold the floor for as long as you can stand. Let’s call it the Mr. Smith Goes to Washington rule.

In that classic American film, Jimmy Stewart’s character talks non-stop on the Senate floor for 25 hours in a bid to delay a corrupt appropriations bill and defend his own reputation against scandalous (and completely fabricated) accusations.

The Mr. Smith Goes to Washington rule would give the minority party the chance to delay a bill and rally the American people against it. If a bill is as bad as opponents claim, they could still potentially stop it. However, it would not give a minority of senators a veto that does not exist in the Constitution. Once opponents cede the floor, the bill moves to a vote.

It’s a fair and democratic compromise. Opponents of a bill will still have an opportunity to slow and potentially kill unpopular legislation. Meanwhile, it will restore the concept of majority rule in the Senate and make it a functioning governing body again.

Photo Credit: John Brighenti, FlickrCC BY 2.0

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Rethinking Impeachment for the modern political era

On Saturday, February 13, 2021, former President Donald Trump was acquitted by the United States Senate after being impeached (indicted) by the House of Representatives on January 13. 57 Senators (including 7 Republicans) voted to convict Trump of Incitement of Insurrection, a historic and extraordinary article of impeachment. The Republicans who voted to convict Trump included Richard Burr, Bill Cassidy, Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse, and Pat Toomey. This is the highest number of Senators from an impeached president’s party to vote for conviction. Still, it is extraordinary that Trump was acquitted given the evidence against him, the fact that many Senators’ lives (including Republicans) were at great risk during the insurrection, and the fact that the stability of our democracy is at stake.

The extraordinary acquittal of Donald Trump begs the question of what exactly can a president be impeached for. If a president of the supposed largest democracy in the world can get away with inciting an insurrection against that democracy and not suffer any consequences (including being allowed to run again in 2024 if Trump chooses), a dangerous precedent has been set for the future. It’s a precedent that will imperil this democracy for years to come.

The Trump presidency exposed many systemic and structural flaws of our political system. The second Senate acquittal of Trump points to a possible flaw in the impeachment clause itself. What we mean is that the framers of the constitution did not construct it around the idea of political parties. The two main political parties dominate. They largely set the rules. What’s supposed to be a system of “checks and balances” is now merely a means of neutralizing the other party during a divided government. During impeachment, it has usually meant that there will never be enough votes to convict and remove an impeached president from office. Growing partisanship and the precedent set by Trump’s second impeachment will probably ensure that future impeached presidents who actually commit high crimes will remain in office or will be able to run again if the impeachment trial happens after the president leaves office after losing an election.

Even among the 7 Republicans who voted to convict Trump, politics very much played a part.

Senator Richard Burr of North Carolina is serving his last term in the chamber. So, he felt free to apparently vote his conscience.

Bill Cassidy of Louisiana just won reelection to the Senate in 2020 and will not face voters again until 2026.

Susan Collins just won reelection but has sometimes been known to go against Trump in rare circumstances. Both Collins and Lisa Murkowski are in states that use Ranked-Choice Voting and there has been debate about whether or not RCV has actually helped the two Senators.
The Alaska Public Media explains Murkowski’s situation in Alaska:

It’s easy to imagine Murkowski would lose to a Trump-endorsed candidate in a closed Republican primary. She already lost a primary election in 2010, before she angered tons of Trump supporters with her inconsistent loyalty to him.

But in August 2022, it won’t be just Republican voters who decide whether Murkowski should advance to the November ballot. She and whoever else wants the seat, of any party, will be on the same ballot for all primary voters. The top four will advance to the general election, and voters will rank them on the November ballot.

Murkowski said the new open primary and ranked-choice voting puts her in a better position.

“I think so,” she said. “I actually, after giving it a fair amount of study, I like that this will put forward, hopefully, a process that is less rancorous.”

Pat Toomey of Pennsylvania is, like Richard Burr, not seeking re-election. 

Ben Sasse, won convincingly in 2020 and won’t have to face voters again until 2026. Sasse of Nebraska had a strong win in a very conservative state (outside of Omaha and Lincoln) despite him being known for speaking against Trump periodically. 

Romney may be in a more vulnerable position. He’s up for re-election in 2024 and is expected to run for his seat again. However, Romney was elected to the Senate in 2018, in a very conservative state, despite forcefully speaking against Trump at times, especially during the primary in 2016. 

The point here is that impeachment will only work if there’s enough political will to do so, not because it’s the right thing to do in a democracy that depends on executive accountability. 43 Republicans chose to acquit and some believe that Trump would have been convicted had there been a secret ballot. 

Newsweek notes:

Senator Mazie Hirono, a Hawaii Democrat, said that “most” Republican senators would vote to convict former President Donald Trump of inciting the attack on the U.S. Capitol if they were given the opportunity to use a secret ballot.

In a Tuesday interview with CNN, Hirono suggested Republicans were making their decisions out of “fear.”

“If the Republicans could vote by secret ballot…most of them would vote to convict,” Hirono told CNN. “So again, that shows that they are hiding behind an unconstitutional claim.”

Only two other presidents in United States history have been impeached by the House. In both cases, the Senate was unable to convict. Andrew Johnson was impeached in 1868 for violating the Tenure of Office Act. The Senate acquitted him weeks after. The Tenure of Office Act was said to be passed to prevent Johnson from removing civil officers without senatorial consent

Time goes on to explain:

Johnson’s defense argued that he hadn’t appointed Secretary of War Stanton in the first place, which meant that he wasn’t violating the Tenure of Office Act. They also claimed that Johnson intended to push the Act before the Supreme Court. Historian Hans L. Trefousse argues that the Senators who voted against removal decided that Johnson was being pushed out of office for political reasons: “[The] weakness of the case… convinced many that the charges were largely political, and that the violation of the Tenure of Office Act constituted neither a crime nor a violation of the Constitution but merely a pretext for Johnson’s opponents.”

This result set a major precedent for future presidential impeachments: that Presidents shouldn’t be impeached for political reasons, but only if they commit, as the Constitution stipulates, “treason, bribery or other high crimes and misdemeanors.”

As one of the defecting Republicans, Senator James Grimes, said, “I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an Unacceptable President.”

Bill Clinton was impeached by the House in December 1998 and acquitted in February 1999 for perjuring himself before a grand jury regarding a sexual relationship with White House intern Monica Lewinsky and for allegedly obstructing that investigation. The House impeachment vote and the Senate trial vote fell largely on party lines. 

The only case in which impeachment may have actually worked was in the case of Richard Nixon. In 1974, the House Judiciary Committee approved three articles of impeachment against President Richard Nixon for obstruction of justice, abuse of power, and contempt of Congress. Nixon resigned before an impeachment vote went to the full House after being compelled to comply with the special prosecutor, investigating Watergate. As the evidence against Nixon mounted, his political support among Republican Senators plummeted. Nixon was faced with the fact that he would likely not withstand a Senate trial vote and resigned from office in August 1974. 

We are far removed, in terms of both time and politics, from the days when we came close to holding a corrupt president accountable for his crimes. Even Donald Trump’s actions, which led to his first impeachment, were worst than what Nixon did during Watergate. Not only was Trump acquitted by the Senate, but his polling rose even in the midst of his impeachment trial and in the weeks after. Right after Trump’s Senate acquittal, he did exactly what many Democrats feared an acquitted Trump would do, swiftly moving to purge officials who tried to hold him accountable. Many described the act as his Friday Night Massacre, a reference to Nixon’s Watergate scandal. In the months to follow, and even as the country was gripped with a devastating pandemic and historic racial justice protests, Trump would go on to launch some of the biggest attacks on democracy in US history.

Given its apparent ineffectiveness in an era of growing partisanship and party politics, we may need to rethink the impeachment clause of the constitution altogether. We may need to devise a new way to hold presidents accountable for their crimes and abuses. This will likely require a constitutional amendment, but barring something miraculous, this is very unlikely in our current political era. So, we’re left to imagine a political system that could do a better job at holding presidents accountable, for instance, in special circumstances that could trigger a national recall vote. Parliamentary democracies solve this problem by holding snap elections. 

We must fight for nothing less than full and sweeping democratic reforms. Such a fight will be enormously difficult given our current political circumstances and barriers, but it’s required if we seek to rebuild a badly damaged democracy.

Photo Credit: House Television via ABC News

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A democracy, if we can keep it

Democratic House managers in Donald Trump’s Impeachment Trial have spent the past three days detailing the attack on the US Capitol Building, Trump’s incitement in the weeks leading up to January 6th, and his delegitimization of and attacks on the 2020 election. 

New footage of the attack, both inside and outside of the Capitol Building, has been harrowing. We’ve learned that some members of congress who were specifically targeted were, in some cases, seconds away from dangerous encounters with the Trump-emboldened insurrectionists. 

A video clip played during the trial showed Senate Majority Leader Chuck Schumer and his armed security detail narrowly escaping insurrectionists who had broken into the building moments prior. In another clip, Capitol Hill Police Officer Eugene Goodman is seen directing Senator Mitt Romney to run for safety before Goodman confronted insurrectionists and diverted them away from the Senate chamber. 

At one point at the trial, Richard Barnett, the man who broke into and vandalized the office of House leader Nancy Pelosi, is shown to have been armed with a stun-gun. Other insurrectionists were seen angrily hunting for government officials such as Mike Pence. Some had called for the Vice President’s hanging

If Republicans are unable to join with Democrats to convict Donald Trump for inciting a violent insurrection at the US Capitol that could have resulted in the deaths and injuries of multiple members of Congress, we will have entered a very dark and dangerous period for our democracy. We will no longer be able to represent the world’s stable democracies, and it would represent the biggest internal threat to our republic since the Civil War.

South Carolina Senator Lindsey Graham, interviewed on Fox News the night of Wednesday, February 10th, appeared to be angrier at Democratic House managers for showing footage of the violent and deadly Capitol insurrection on January 6th, than those who carried out the insurrection and the person who incited the insurrection, Donald Trump. 

Graham stated:

You’ve got Democratic politicians being silent or encouraging acts of violence. I mean, you’ve got the sitting Vice President, when she was a US Senator, telling people they shouldn’t stop [protesting against the murder of George Floyd in June 2020] and trying to bail them out. So, if I were the Trump team, I would expose the hypocrisy here, and I would go after the argument that it was preplanned, and the idea that the president was in on it is absurd. This thing is collapsing before their eyes and the Not Guilty vote is growing. So, it’ll be over by Sunday.

Senator Graham is right when he says “it’ll be over by Sunday.” If Republicans, once again, acquit Donald Trump of his destructive abuses of power while he was in office, it will mark the figurative end of a functioning constitutional democracy in the United States. No democracy can withstand an all-out assault against it by a party that has turned to fascism and authoritarianism in a two-party system.

Senator Graham is not alone in his assault on US democracy. The Park County (Wyoming) Republican Party censured Congresswoman Elizabeth (Liz) Cheney for voting in favor of impeaching Donald Trump on February 5, 2021. In fact, a total of 10 county Republican Parties in Wyoming have voted to censure Representative Cheney.

The Arizona Republican Party voted to censure former Senator Jeff Flake, Governor Doug Ducey, and the widow of the late Senator John McCain.

The New York Times explains:

Though largely symbolic, the political scolding during a meeting of the state G.O.P. on Saturday underscored a widening rift in Arizona between party officials who have made clear that their loyalty lies with former President Donald J. Trump and those in the party who refused to support him or his effort to overturn the election results in Arizona, which President Joseph R. Biden Jr. won.

The party cited Ms. McCain’s and Mr. Flake’s criticisms of Mr. Trump and Mr. Ducey’s use of emergency orders related to the pandemic, which gave him broad control to enact policies without the legislature’s approval such as closing “nonessential” businesses in the spring.”

One week after the far-right insurrection at the United States Capitol, and the day the House voted to impeach then-President Trump for an unprecedented second time, media outlets began to report that House Republicans were intimidated into voting against impeachment, partly by death threats against them and their families.

During an appearance on Meet The Press on January 13th, US House Representative Jason Crow from Colorado explained the fear that some Republicans had for their safety.

The majority of them are paralyzed with fear. I had a lot of conversations with my Republican colleagues last night, and a couple of them broke down in tears — saying that they are afraid for their lives if they vote for this impeachment.

Tim Alberta, the chief political correspondent for Politico wrote:

Crow is right. Numerous House Rs have received death threats in the past week, and I know for a fact several members *want* to impeach but fear casting that vote could get them or their families murdered.

Still, while more congressional Republicans than we see publicly are against the actions of Donald Trump, the majority of the party, from voters to members of Congress, continue to support the party’s slide into authoritarianism, led by Donald Trump. Trump is the first president in US history to incite an insurrection against the US Capitol Building to overturn an election and overthrow democracy itself. 

US democracy is at a dangerous point, despite the election of Joe Biden in November of 2020. While having President Biden in power may prevent the outright destruction of democratic institutions, it may not be enough to neutralize a radicalizing and dangerous Republican Party and far-right. 

If Senate Republicans acquit Donald Trump in the days to come, they are setting a precedent that will irreparably harm this democracy for generations. This will give permission to any future far-right ideologue who may lose their political races to say that elections at the national, state, and local levels are rigged against them. 

Republicans will spend most of their time further delegitimizing our electoral system. Republicans with majorities in state legislatures will pass draconian voter suppression laws that are more severe than we’ve ever seen. Far-right terrorism against our state capitols, elected officials, and even voters, will escalate. The Republican Party and the far-right understand that they can no longer win a national majority because of their oppressive and anti-democratic positions, and because of changing demographics. They have jettisoned democracy for fascistic and authoritarian tactics. The turn to fascism and authoritarianism is all they have left because they refuse to accept a changing society.

If Senate Republicans acquit Donald Trump, we will know that it will be over as Lindsey Graham proclaimed on his Fox News interview, but what will be over is our democracy. Benjamin Franklin’s worry about keeping a democratic republic would be validated. Unfortunately, we may not be able to keep it this time.

Photo Credit: Architect of the Capitol

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Analysis Opinion

The filibuster is anti-democratic. It’s time to eliminate it.

The newly-elected Democratic majority in the Senate is currently debating whether to keep or nix the filibuster. There are strong policy, political, and Constitutional arguments for eliminating the filibuster – and there is little reason to preserve it.

The policy case for killing the filibuster

Small states are already overrepresented in the United States Senate and the Electoral College. When you add a supermajority requirement to pass major legislation – a requirement that does not exist in the Constitution (more on that later) – you only give small states even more power. It is a de facto veto power for small-state senators like Mitch McConnell and Lindsey Graham. It’s also a veto for insurrectionists like Josh Hawley and Ted Cruz.

As the insurrection demonstrates clearly, safeguarding our elections and ensuring voting rights must be a top priority of President Biden and Congress. It is simply unacceptable to let Mitch McConnell veto any progress on some of the biggest issues of our time – be it a ban on political gerrymandering ahead of redistricting, stricter anti-corruption and nepotism laws, new disclosure requirements for donors and super PACs, universal voter registration, and so many more badly-needed reforms.

Much of President Biden’s agenda hinges on eliminating the filibuster. It is true that Democrats can bypass the filibuster with an arcane process known as budget reconciliation – a process that only requires a majority vote in the Senate – but it is only limited to budget-related priorities. Election reform and strengthening ethics laws, for instance, likely does not pass muster under reconciliation.

In addition, Republicans still have a majority on several Senate committees even though they are now in the minority. New members like Mark Kelly, Raphael Warnock, and Jon Ossoff have yet to even receive their committee assignments. McConnell is seeking to tie the hands of the new Democratic majority.

Will the Democratic majority willingly accept this arrangement? And if they do, will Democratic voters forget come 2022 and 2024? I think not.

Senate Majority Leader Chuck Schumer needs to use every tool at his disposal to ensure that Democrats can govern. That means killing the filibuster and changing the Senate’s rules to limit GOP obstruction. The American people expect results, not excuses.

From a policy perspective, the filibuster is absolutely noxious. During the Obama years, the filibuster effectively killed the DREAM Act, common-sense gun control, cap-and-trade climate change legislation, and a myriad of other progressive priorities. Meanwhile, filibusters did not stop the Bush or Trump tax cuts, which were passed through a majority vote using budget reconciliation.

Likewise, McConnell used reconciliation in his attempt to repeal the Affordable Care Act (a.k.a. “Obamacare”). The effort only failed because Senate Republicans lacked even a simple majority in support of repeal. (Senator McCain infamously gave the bill a thumbs down on the Senate floor.)

From a public policy point of view, it’s nearly impossible these days to get a 60-vote consensus on basic governance, let alone controversial issues. The minority party can use this power – which is not found in the Constitution – to stifle any semblance of progress. Indeed, a minority of senators from states already overrepresented in the Senate can grind the lawmaking process to a complete halt. This is not the way to govern a country.

The political case for killing the filibuster

Nearly eight years ago, I penned a piece titled “It’s Time to Kill the Filibuster.”

The context was different then, but the points remain the same today. To briefly recap, Senate Republicans blocked President Obama’s judicial nominees, including three nominees to the D.C. Circuit Court of Appeals – which is regarded as the second-most powerful court in the land. Not only did Republicans weaponize the filibuster to stymie popular legislation, but they also denied President Obama’s judicial appointments an up-or-down vote on the Senate floor.

Democrats wisely responded with the nixing of the filibuster for cabinet-level and judicial nominees. They left an exception in place for the Supreme Court. But they acted far too slowly and ultimately ceded control of the chamber after the 2014 midterm elections. Two years later, Trump won the Electoral College with narrow wins in Michigan, Pennsylvania, and Wisconsin – but failing to capture the national popular vote.

Wielding their newfound power and taking full advantage of the Obama-era vacancies that they engineered – including a SCOTUS seat after refusing to even hold hearings for President Obama’s Supreme Court nominee, Merrick Garland – the GOP rammed its judicial nominees through the Senate. As soon as the filibuster got in their way, they killed it for Supreme Court nominees. Unlike Democrats, they did not hesitate.

They acted decisively after the death of Justice Ginsburg as well, voting on her replacement a mere week before the election – four years after saying that voters should decide a vacant Supreme Court seat in an election year.

None of President Trump’s nominees – Gorsuch, Kavanaugh, and Barrett – would be on the court today if not for Mitch McConnell’s use of the so-called “nuclear option” to kill the filibuster. What would have been a 5-4 liberal majority with Garland on the Court became a 6-3 conservative majority thanks to Republicans’ obstruction tactics and their swift reversal on the filibuster when it became politically expedient.

The lesson that Democrats should learn from this is that they should use their power when they have it to advance the public good – within the constraints of the Constitution. There is no constitutional right to the filibuster. In fact, I would argue that the filibuster itself is unconstitutional.

The Constitutional case for killing the filibuster

The Constitution requires the president to nominate judges and the Senate to offer its “advise and consent.” (The same is also true for Cabinet appointments, ambassadorship, etc.) That means debating and voting on nominations.

Confirmation requires only a majority threshold, something that the filibuster expressly denies. The Constitution does not grant the power to block lawfully-nominated judges for seats on the federal bench with a minority of votes. Republicans have essentially short-circuited the Constitution to suit their political goals.

The country was founded on the principle of majority rule. Indeed, the Vice President’s sole role – other than acting as the successor to the president in the case of death, resignation, or removal – is to cast a tie-breaking vote in an evenly divided Senate. The Founders expected the Senate to be a majority body and nothing else – except in specific circumstances, as outlined in the Constitution. Only a few exceptions require more than a majority: ratifying treaties, Constitutional amendments, and convicting an impeached president or members of the Cabinet.

I am not a constitutional scholar, but I can read the plain text of the Constitution and see that the Founders’ obvious intent was for the Senate to be a body where the majority carried the day – with few exceptions. So why keep this relic that makes an undemocratic body even less democratic?

The choice is clear. The filibuster must be eliminated.

Photo Credit: John Brighenti, Flickr, CC BY 2.0

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Analysis Opinion

January 6, 2021: Trump’s failed coup attempt is a ‘date which will live in infamy’

Seventy-nine years ago last month, the Japanese bombed Pearl Harbor in an unprovoked attack on America.

The nation was never the same after that day. President Roosevelt addressed a joint session of Congress to declare war, drawing the United States into World War II. In one of the most quoted lines in presidential history, Roosevelt remarked that December 7, 1941 – the day of the attack – was a “date which will live in infamy.”

One could argue that January 6, 2021 is the 21st-century equivalent of that day – except instead of a foreign power attacking the United States, it was an attack from within.

For months, the defeated outgoing president attempted a soft coup, hoping to overturn a free and fair presidential election through frivolous lawsuits and other machinations that one could only dream up in a poorly-written fiction novel. Trump bullied and threatened state officials – many of them Republican allies – to do his dirty work for him. Thankfully, these efforts went nowhere; Republican state officials, like Georgia’s Secretary of State, Brad Raffensperger, held their ground.

When those attempts failed – including a futile effort to have Vice President Mike Pence disregard the will of voters and the certifications of several states – the desperate aspiring dictator turned to his supporters in a long-shot push to cling on to power. At a rally filled with lies where he trashed his own vice president and allies in Congress, Trump riled the crowd into a frenzy and directed his supporters to head to the Capitol.

The mob breached the Capitol’s inexcusably (and perhaps intentionally) lax security, damaged federal property, and forced lawmakers convened in a joint session of Congress into hiding. At the end of the historic day, five people were dead, including a police officer.

The consequences of this day will not be known for some time, but it is safe to say that – like after the attack on Pearl Harbor – our country has changed forever. What happens in the days, weeks, and months to come – including decisions on whether to invoke the 25th Amendment or impeach the president – will be consequential. The legal and professional consequences for the insurrectionists, co-conspirators, and their enablers in Congress and elsewhere may well determine whether there are future attempts to violently thwart American democracy.

If this brazen attack on our democracy goes unanswered in the waning days of the Trump presidency and the early days of the Biden presidency, there almost assuredly will be a repeat of this day not far down the line – and that coup attempt may very well succeed.

Image Credit: Tyler Merbler, Flickr, CC BY 2.0

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Opinion

The Republican Party is increasingly authoritarian

Donald Trump’s behavior after losing the election was expected. The lame-duck president signaled an unwillingness to accept the results weeks in advance, and he planted the seeds of doubt regarding mail-in ballots as far back as June.

What’s more shocking is the willingness of large chunks of the Republican Party to play along with his authoritarian power plays and repeated attempts to overturn the presidential election (and no other election). If successful in his quest to invalidate millions of votes, Trump would effectively be dismantling what’s left of American democracy.

But he’s not alone in his attacks on American democracy.

As if on cue, Republican lawmakers in Georgia are proposing the elimination of no-excuse mail-in voting, nixing secure ballot drop boxes, and instituting a voter ID requirement for absentee ballots. The proposed legislation is in response to the president’s false claims of rampant mail-in voting fraud. Instead of standing up for Georgia voters and defending the rule of law, these lawmakers are bending the knee to a would-be autocrat.

Likewise, the attorney general of Texas, Ken Paxton, has made a mockery of the courts with a frivolous lawsuit against the battleground states of Georgia, Michigan, Pennsylvania, and Wisconsin. Paxton claims that the four battleground states – all of which President-elect Joe Biden won – improperly changed their election procedures to accommodate voters during the COVID-19 pandemic. (It’s worth noting that several subordinates recently accused Paxton of bribery and abuse of office.)

Not to be outdone, seventeen Republican state attorneys general (along with the president himself) threw their support behind the Texas lawsuit, asking the U.S. Supreme Court to intervene and throw the election to Trump. Undoubtedly the publicity-seeking attorneys general will relish their moment in the sun – but at the cost of democratic norms and the reputation of the courts in the eyes of the public.

Michigan Attorney General Dana Nessel – who was recently the target of armed Trump supporters protesting at her home – called Paxton’s lawsuit “beneath the dignity of the office of [the] attorney general and the people of the great state of Texas.” She added that the complaint has “already been thoroughly litigated and roundly rejected in both state and federal courts — by judges appointed from both political parties.”

By the way, if it strikes you as odd that one state sues another state (let alone multiple states) regarding how they conduct their own elections (over a month after that election is already completed, no less), that’s because it is highly unusual.

Which brings us back to the title of this piece. The Republican Party is increasingly authoritarian. And it’s not just Trump that we’re talking about but his enablers in Congress and state government as well.

Photo Credit: Gage Skidmore, Flickr