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Democrats face a daunting Senate map in 2024

If Democrats thought that 2022 was a difficult environment, they only have to look at the Senate map in 2024 to see that it can get even tougher.

During this year’s midterm elections, Democrats outperformed across the board with few exceptions. The president’s party typically loses across the board. Instead, the party gained governorships, state legislative chambers, and trifectas. In fact, for the first time since 1934, the president’s party did not lose a single state legislative chamber.

If that was not enough of an accomplishment, Democrats will hold the Senate and possibly even gain a seat. That is pending the outcome of Georgia’s Senate runoff between incumbent Raphael Warnock and the Trump-backed, scandal-plagued challenger, Herschel Walker.

Meanwhile, the red wave proved to be nothing more than a ripple in the House of Representatives. Republicans were crowing that they might win as many as 50 or 60 seats. With only five races left uncalled, the Republicans currently stand at a bare majority of 218 seats. At best, they can hope for 223 seats, although that appears unlikely.

Democrats are well-positioned to regain control of the lower chamber in 2024 with numerous obvious targets in Biden-won swing districts in California and New York, in particular. The Senate is an entirely different story.

The Senate map in 2024 looks brutal for Democrats

The Senate is looking far more precarious for the party. Democrats have few genuine targets and about a dozen incumbents who are at least marginally vulnerable. It’s arguable that Democrats will need to win the Georgia runoff next month to have a fighting chance at keeping the Senate in two years.

Worse yet, all of the Democratic targets in 2024 are basically a stretch. First, we’ll go over the numerous opportunities for Republicans, and then we’ll look at the possible targets for Democrats.

Republicans start with a considerable advantage

Although we do not know yet whether the incumbents will run for re-election, Republicans can target Democratic incumbents in Trump-won states. The two most vulnerable incumbents are Jon Tester in Montana and Joe Manchin in West Virginia.

West Virginia is one of the Trumpiest states in the country, second to only Wyoming (sorry, Liz Cheney). Joe Biden failed to even clear 30 percent of the vote in the Mountain State. Joe Manchin is a popular former governor and won a close Senate race in 2018 against the state attorney general, Patrick Morrisey. Despite his record as a conservative Democrat, that might not be enough to save him in 2024.

Jon Tester has won close races many times before. The senator was first elected in 2006 as Democrats won both the House of Representatives and the Senate amid a backlash against former president George W. Bush over his handling of the disastrous Iraq War, a botched federal response to Hurricane Katrina, and corruption scandals within the Republican-controlled Congress.

The good news for Senator Tester is that Biden won over 40 percent of the vote in Montana in 2020, so he would only need to run roughly ten points ahead of the top of the ticket. Needless to say, that is a considerably better starting position than the Democrats face in West Virginia.

Beyond Montana and West Virginia, Sherrod Brown is defending a seat in Republican-trending Ohio. Like Tester, Brown rode into the upper chamber amid backlash to former president George W. Bush. While Tester is known for his folksy personality, Brown embraces a pro-union, blue-collar working-class agenda. Will it be enough to buck the Buckeye State’s rightward drift?

Democrats must also defend seats in numerous swing states that will likely determine the 2024 presidential election. They include seats in:

  • Arizona
  • Michigan
  • Nevada
  • Pennsylvania
  • Wisconsin

Given the fact that partisanship is resulting in fewer crossover voters, these states are likely to vote for the same party in both the presidential and Senate races. In 2020, Susan Collins was the only senator from either party that won despite their party’s presidential nominee losing statewide. This is a continuation from 2016 when every Senate race mirrored the presidential election.

Lastly, they will have to defend seats in Democratic-leaning states like Maine, Minnesota, New Mexico, and Virginia. If Republicans have a particularly good election in 2024, these states would be in play. It is at least conceivable that Republicans could manage a filibuster-proof majority.

Democrats have few legitimate targets

Democrats have only four Republican-held seats that are even remotely competitive: Florida, Indiana, Missouri, and Texas.

Indiana will have an open seat if incumbent Republican Mike Braun announces an expected run for governor, but the Democratic bench is thin. Former senator Joe Donnelly could potentially make it competitive against a weak opponent – as he did in 2012, winning against Richard Mourdock – but is he even willing to consider running another longshot campaign?

Meanwhile, as a member of Joe Biden’s cabinet, former South Bend mayor Pete Buttigieg has his sights set on a much higher office: the Oval Office. Should Biden decline to run for re-election, Buttigieg is expected to make a second run for president.

Rick Scott wants to gut Social Security and Medicare and has always won his elections by a hair, but Florida has trended Republican. Ron DeSantis just won by almost 20 points against former Republican governor Charlie Crist. Democrats have a slightly stronger bench in Florida than Indiana, but it’s not stocked with charismatic potential candidates.

Ted Cruz barely won re-election in 2018 and is unpopular within both parties, but you cannot beat something with nothing. Beto O’Rourke just concluded a third consecutive losing campaign (counting his failed bid for president), but maybe one of the Castro brothers could make this competitive. Again, it’s a stretch.

Insurrectionist Josh Hawley is up for re-election in 2024. However, it’s not at all clear that that is even considered a negative in a state as red as Missouri. Former senator Claire McCaskill is a potential Democratic nominee for Senate here, which would be a rematch of 2018.

The one potential silver lining for Democrats: an unexpected retirement or death could give them a chance to win a special election that we do not currently know about. Otherwise, the map is grim.

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Senate prepares for vote on voting rights and filibuster reform

Senator Chuck Schumer announced today that he is moving ahead with a planned vote on voting rights and a potential rule change meant to reform the filibuster.

Filibuster reform is necessary in order to pass voting rights since the Republican Party is united against the voting rights bills currently under consideration in Congress, including the John Lewis Voting Rights Act and the Freedom to Vote Act. (Senator Lisa Murkowski voted to allow debate to proceed but does not support the bill as written.)

According to Politico:

Chuck Schumer will bring elections and voting legislation to the Senate floor in the coming days, using existing congressional rules to evade an initial GOP filibuster.

The House will imminently pass a bill containing both sweeping federal elections reform and beefed up Voting Right Act provisions. Because the bill will be sent to the Senate as a “message” from the House, it will not be subject to an initial filibuster by the GOP and will be debated on the floor.

Instead, the Senate will confront its raging debate over the filibuster when Majority Leader Schumer moves to shut down debate.

“The Senate will finally debate voting rights legislation, and then every senator will be faced with a choice of whether or not to pass the legislation to protect our democracy,” Schumer wrote in a memo, obtained by POLITICO, to Senate Democrats.

The voting rights legislation is necessary to combat dozens of voter suppression laws passed in Republican-controlled states over the past year, including in Georgia where it is now illegal to give voters water or food while standing in line. The voter suppression laws are part of the reason – along with Donald Trump’s attempted coup and pushing of the Big Lie – why the United States is now considered a backsliding democracy.

Filibuster reform

Under current Senate rules, 60 votes are required to end debate on a bill and move on to a vote. There are exceptions to the filibuster, such as the budgetary process known as reconciliation, but it only covers budgetary matters.

Rather than completely eliminate the filibuster, 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. This is what is known as the talking filibuster, and it was the tradition in the Senate for over a century.

Personally, I like to call this proposal the Mr. Smith Goes to Washington rule. As I wrote last March:

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.

According to reporting from Politico and others, Schumer and Senate Democrats are considering implementing the talking filibuster / Mr. Smith Goes to Washington rule. This would restore the Senate’s long tradition of allowing unlimited debate (or at least as long as senators can stand) without giving the minority a veto.

Another possibility is that the Senate could create a carveout for voting rights legislation. The chamber created an exception to the filibuster – on a bipartisan basis, no less – to allow a debt ceiling increase just last month. As Senator Ed Markey of Massachusetts observed, if the Senate can create a carveout for the debt ceiling, why not voting rights?

Of course, this all hinges on the cooperation of Senators Joe Manchin and Kyrsten Sinema, who have said that they oppose eliminating the 60-vote threshold, thus killing voting rights legislation in the process. If the senators truly support voting rights (as they claim) and a functional Senate where the majority can actually govern, they will get behind filibuster reform that includes either a talking filibuster or a carveout for voting rights.

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McConnell and Senate Republicans defend Rounds from Trump attacks

Senator Mike Rounds came under withering fire from former president Donald Trump this week after South Dakota’s junior senator admitted over the weekend that Trump lost the 2020 election.

Rounds appeared on ABC’s This Week on Sunday where he plainly acknowledged that “the election was fair.”

“As a part of our due diligence, we looked at over 60 different accusations made in multiple states,” Rounds said on This Week. “While there were some irregularities, there were none of the irregularities which would have risen to the point where they would have changed the vote outcome in a single state.”

Unsurprisingly, Trump took exception to the statement that the election was fair – which is obvious to anyone who is not a fanatical Trump supporter.

“‘Senator’ Mike Rounds of the Great State of South Dakota just went woke on the Fraudulent Presidential Election of 2020 … Is he crazy or just stupid?” Trump said in a statement using scare quotes. “I will never endorse this jerk again.”

More surprisingly, several Senate Republicans defended their colleague. Mitt Romney – a frequent Trump critic who voted for Trump’s second impeachment after the January 6 insurrection – backed Rounds. But Romney was joined this time by several Republican senators who did not vote for impeachment, including Minority Leader Mitch McConnell, Minority Whip John Thune, and other rank-and-file members like Kevin Cramer and Shelley Moore Capito.

“I think Sen. Rounds told the truth about what happened in the 2020 election,” McConnell told CNN. “And I agree with him.”

“I’ve always said I agree that the election was not stolen – at least to the degree that it was illegal theft,” said Senator Kevin Cramer (R-ND). “I’ve moved on a long time ago, and most members of Congress have, including Mike.”

For his part, Rounds has refused to back down, doubling down this week that the election was fair.

Is this a new strategy within the Senate Republican caucus to challenge Trump’s false contention that the election was “rigged?” It’s possible, considering many within the party blamed Trump for depressing turnout in Georgia’s twin runoffs last January, resulting in a split 50-50 Senate with Vice President Kamala Harris as the tie-breaking vote. If Republicans had held even one of those seats last year, McConnell would still be the majority leader.

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The US is now considered a backsliding democracy

For the first time, the United States is considered a backsliding democracy.

That finding is according to the International Institute for Democracy and Electoral Assistance, which is based in Stockholm, Sweden. The think tank notes that the US began to backslide “at least since 2019.”

The report specifically cites eroding civil liberties, a decline in freedom of assembly after the George Floyd protests in the summer of 2020, and former president Donald Trump’s questioning of election results.

“A historic turning point came in 2020-21 when former president Donald Trump questioned the legitimacy of the 2020 election results in the United States,” the report says. “The visible deterioration of democracy in the United States, as seen in the increasing tendency to contest credible election results, the efforts to suppress participation (in elections), and the runaway polarisation … is one of the most concerning developments.”

Unwelcome company

The think tank categorizes countries into three groups: democracies (including backsliding democracies), hybrid (among them Russia and Turkey), and authoritarian (such as China and Saudi Arabia).

The United States joins the ranks of Hungary, Poland, and Slovenia as backsliding democracies. All told, backsliding democracies have doubled in the past decade and now account for a quarter of the world’s population.

Meanwhile, Ukraine was removed from the list of backsliding democracies after improvements in recent years. Serbia and Mali were removed from the list of backsliding democracies because they are no longer considered democracies.

The International Institute for Democracy and Electoral Assistance is not alone in its assessment of the perilous state of democracy in the United States. One hundred and fifty top scholars of American democracy have signed a letter warning that “midnight is approaching.”

“Defenders of democracy in America still have a slim window of opportunity to act. But time is ticking away,” the scholars write, arguing that Congress must act to protect voting rights.

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Murkowski slams Republican colleagues over January 6 Commission opposition

Senator Lisa Murkowski of Alaska has criticized her Republican colleagues for their opposition to the January 6 Commission.

At the urging of Donald Trump and Minority Leader Mitch McConnell, the vast majority of Senate Republicans plan to block the bill that would establish an independent commission tasked with investigating the insurrection. The commission would also make recommendations for preventing a future attack on the Capitol.

As we reported earlier today, only three Republicans in the Senate – including Murkowski – have signaled that they would vote against a planned filibuster when the bill comes up sometime tonight. That isn’t sitting well with Murkowski.

CNN reports on her comments:

“To be making a decision for the short-term political gain at the expense of understanding and acknowledging what was in front of us, on January 6, I think we need to look at that critically,” she said.

“Is that really what this is about is everything is just one election cycle after another? Or are we going to acknowledge that as a country that is based on these principles of democracy that we hold so dear. .. One of those is that we have free and fair elections, and we respect the results of those elections and we allow for a peaceful transition of power. I kind of want that to endure beyond just one election,” she continued.

It’s too bad that Senator Murkowski is in the minority within her party. If there were more Republicans like her, Trumpism might have never taken hold in the first place.

Image Credit: AFGE, Flickr

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Senate Republicans likely to filibuster January 6 Commission

Senate Republicans appear likely to have enough votes to successfully filibuster the bipartisan January 6 Commission.

According to the AP:

Senate Republicans are ready to deploy the filibuster to block a commission on the Jan. 6 insurrection, shattering chances for a bipartisan probe of the deadly assault on the U.S. Capitol and reviving pressure to do away with the procedural tactic that critics say has lost its purpose.

The vote Thursday would be the first successful use of a filibuster in the Biden presidency to halt Senate legislative action. Most Republicans oppose the bill that would establish a commission to investigate the attack by Donald Trump supporters over the election.

“We have a mob overtake the Capitol, and we can’t get the Republicans to join us in making historic record of that event? That is sad,” said Sen. Dick Durbin of Illinois, the No. 2 Senate Democrat. “That tells you what’s wrong with the Senate and what’s wrong with the filibuster.”

The filibuster is likely to hold despite Gladys Sicknick – the mother of fallen Capitol Police officer Brian Sicknick – urging Republicans to support the commission. Senate Minority Leader Mitch McConnell came out against the commission last week.

So far, only two Republican senators – Mitt Romney and Lisa Murkowski – say they will support the commission bill as it is currently written, which passed in the House of Representatives with bipartisan support. Susan Collins says that she will oppose a filibuster but wants changes to the House-passed bill. Ten Republicans would need to join all Democrats for the bill to overcome a filibuster.

What is the proposed January 6 Commission?

The proposed independent commission would be made up of both Democrats and Republicans, most likely former lawmakers. It would be tasked with investigating the January 6 attack on the United States Capitol. Trump supporters ransacked the Capitol to prevent the certification of the Electoral College results in what amounted to an attempted coup that put at risk the lives of members of Congress and Vice President Mike Pence.

The commission would have subpoena power to force witness testimony and officially document what happened on that day. It would also offer recommendations to prevent a future attack. Importantly, the scope of the proposed independent commission’s investigation would be broader than anything that individual Congressional committees would have the necessary jurisdiction or expertise in.

McCarthy’s motivation for opposing the commission is clear.

One likely witness is Republican House Minority Leader Kevin McCarthy, who had an expletive-filled phone call with former president Donald Trump as the insurrection took place.

“Well, Kevin, I guess these people are more upset about the election than you are,” Trump said during the phone call.

The former president refused to call off his supporters for several hours, only after it became clear that the coup attempt had failed. When he finally released a video tepidly telling his supporters to “go home,” he repeated his lies that the election was “fraudulent.”

For his part, McCarthy is seeking to become the next Speaker of the House. So he has a clear motivation in not wanting to see a commission force his testimony and upset Trump supporters in the leadup to next year’s midterm elections.

Time to eliminate the filibuster.

Should the filibuster hold, Republicans could only bury the commission depending on whether or not Democrats eliminate or reform the filibuster. Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona are the two main holdouts. Aside from the commission, the filibuster also threatens the Democrats’ entire agenda.

We have argued on here that the filibuster is anti-democratic, and it’s time to eliminate it. This latest abuse of the filibuster – blocking an independent commission from investigating and offering recommendations to prevent a future attack on the Capitol – demonstrates yet again why the antiquated obstruction tactic must go.

Photo Credit: John Brighenti, Flickr, CC BY 2.0

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Biden backs filibuster reform

In an important shift, President Biden now appears to be on board with reforming the filibuster.

According to Vanity Fair:

Biden indicated in an interview Tuesday that while he remains set against eliminating the filibuster entirely, he will support efforts to reform it, making the procedure what he says it was originally “supposed to be.” “I don’t think that you have to eliminate the filibuster. You have to do it what it used to be when I first got to the Senate back in the old days,” Biden told George Stephanopoulos in an ABC News interview. “You had to stand up and command the floor. You had to keep talking.”

Biden, who spent decades in the upper chamber, reveres the body’s traditions and, both as senator and vice president to Barack Obama, was known for his knack for bipartisan dealmaking. In ascending to the presidency after four years of polarization under Donald Trump, Biden expressed confidence that cooperation between Democrats and Republicans would be possible and that he could work within the existing system to deliver for the American people. He’s by no means abandoning those aspirations. But, he acknowledged to Stephanopoulos, the filibuster has helped bring the Senate to the point where “democracy is having a hard time functioning.”

That should be a welcome line for the growing number of Democrats who have called for the filibuster to be eliminated or reformed, particularly with Mitch McConnell and the GOP threatening to exploit the tool to thwart efforts to fight back against their disenfranchisement crusade in states across the country. (McConnell on Tuesday blasted efforts to reform the filibuster, saying it was the only thing preventing a “scorched-earth Senate.”) “He’s being vague about it, but that’s alright…As a student and creature of the Senate, he certainly knows how to choose his words carefully on this subject,” said Senator Dick Durbin of the interview. “But I think he’s acknowledging the obvious: the filibuster has really shackled the Senate.” Biden isn’t going as far as some progressives would like, but reforming the filibuster to make it more difficult to use is something that could still make a difference in terms of the power McConnell’s minority party can wield. 

If you follow us regularly, you’ll know that we are supporters of reforming or eliminating the filibuster. The filibuster stands in the way of pro-democracy reforms like the For the People Act and Washington DC statehood. The filibuster is also stymying efforts to combat state-level voter suppression.

Having the president of the United States as an ally to your cause is important, especially if you want to convince members of his party to change the rules in the Senate.

Watch the relevant part of the interview below:

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For the People Act aims to build a real American democracy

US Speaker of the House Nancy Pelosi (C), Democrat of California, speaks alongside Democratic members of the House about H.R.1, the "For the People Act," at the US Capitol in Washington, DC, January 4, 2019. - Democrats announced their first piece of legislation to reform voting rights provisions, ethics reforms and a requirement that presidential candidates release 10 years of tax returns. (Photo credit: SAUL LOEB/AFP/Getty Images)

Praised by many as a sweeping and historic reform to US democracy, House Democrats passed H.R. 1, also known as the For The People Act. The bill passed the Democratic-controlled House of Representatives on March 3, 2021. This is the second time the bill has been voted on by the House. The bill was first introduced and then passed in the newly-Democratic House in March of 2019 but was quickly blocked from ever receiving a vote in the Republican-controlled Senate. The current bill, which aims to greatly expand voting rights, develop a strategy to lower the influence of money in politics, end gerrymandering, foster government transparency, and more, will again face hurdles in the Senate, but this time because of the filibuster. 

So, what’s in the bill? Below, we’ll take a look at a few of the bill’s most important components. 

Voter registration modernization

All states would be required to begin Automatic Voter Registration for federal elections. Eighteen states, plus DC, have already implemented AVR. Voter registration in every state would become opt-out as opposed to the opt-in system most states have. In this case, eligible citizens would need to indicate that they don’t want to be registered to vote. This is likely to be a very insignificant number of people. Some 50 million eligible voters would be added to the rolls.

Voter purging has been one of the main tactics employed by Republicans to suppress Democratic turnout. A state’s ability to purge voters from voter rolls would be greatly curtailed under  H.R. 1. H.R. 1 would not stop all cross-check purges, as there does need to be a system that identifies duplicate registrations, but it aims to stop the abuse of the system through voter suppression purges by putting in place needed protections or so-called conditions on removal of registered voters.

As it becomes harder for Republicans to win majorities, we’ve seen them engage in increasingly brazen voter intimidation tactics. One example, among dozens, is in Michigan in October 2020, where far-right actors were charged with felonies by the state’s Attorney General for voter intimidation where they used racist robocalls to target and intimidate Black voters from voting.  H.R. 1 would ban these and many other deceptive practices and all voter intimidation in federal elections.

H.R. 1 aims to end the disenfranchisement of individuals with previous felony convictions. States would be required to inform citizens of their restored voting rights in writing; however, this does not apply to those who are currently incarcerated. An amendment to H.R. 1 that would have restored the voting rights of those who are currently serving time in prison, failed in a 97-328 House vote. 

The Appeal explains:

Representatives Cori Bush of Missouri and Mondaire Jones of New York, who were both elected to the House last year, proposed an amendment to H.R. 1 that would have allowed those convicted of felonies to vote from within prison. Only Maine, Vermont, and Washington, D.C., enable anyone with a felony conviction to vote from prison, and other states are debating whether to join them. Some other nations, including Canada and Israel, have national mandates that extend voting rights to incarcerated people.

The amendment failed today in a 97-328 vote. Not a single Republican voted for the measure, and it also failed among Democrats. However, activists and lawmakers fighting to expand voting rights say they’re hopeful that the vote was the beginning, rather than the end, of a national debate on voting rights for prisoners.

“This fight is not over—it’s only the beginning,” Bush told The Appeal: Political Report. “The victory was in getting those 97. Look at who those 97 are. They’re a mixture of what our caucus is made of: not just progressives, not just people who claim to be progressive, not just people who look like me.”

Even with the failure of the amendment, this is a monumental step in the right direction and a sign that we are moving closer to voting rights for those who are currently incarcerated.

The end of gerrymandering

Under H.R. 1, partisan gerrymandering would effectively be banned, an extraordinary development for US elections and politics. Independent redistricting commissions would be created in states and they would be tasked with developing plans to redraw districts. The redistricting process would be open to participation and review of the public. Efforts would be made to ensure that the commission equally represents Democrats, Republicans, and even third parties. Most importantly, rules would be put in place to ensure that the political power of communities of color is not diluted, a current practice that ensures Republicans win far more seats than they should based on their vote share.

Limiting the power of big money in politics

The passing of Citizens United in 2010 was a crushing blow to democracy. 11 years and 6 federal election cycles later, we are seeing the consequences of this disastrous Supreme Court decision. Extremely wealthy individuals can now spend unlimited sums of money on Super PACs which can have large impacts on political races.

The intercept explains:

Under the bill, candidates for congressional office could opt into a system that would provide matching funds for small donations. To qualify, the candidate would need to raise $50,000 from at least 1,000 individuals; take no more than $1,000 from any contributor; and spend no more than $50,000 of their own money.

In return, all donations to the candidate up to $200 would be matched with public funds at a 6 to 1 ratio. Thus if you gave $10 to someone running for Congress, they would receive that plus another $60, totaling $70.

The Civil Rights Act of our time

We’ve only covered just a few of the historic components of H.R. 1. Just these components alone would make H.R. 1 one of the most important pieces of legislation in the history of this country besides the 1964 Civil Rights Act. H.R. 1 would not only repair the damage done to the Civil Rights Act of 1964 by Republicans in the decades since its passing, but it would greatly expand access to voting and put in place protections against voter suppression in unprecedented ways. The act would help to build a political and electoral system worthy of the 21st century. 

The stakes in passing this historic legislation in the Senate are monumental. As Republican politics continue to become more unpopular with time and as demographics continue to trend against them, they have now completely jettisoned democracy for authoritarian measures even as they already have a structural advantage in the House and the Senate. Let there be no doubt that Republican attempts to further impair US democracy will continue and grow. 

The Washington Post explains the current, broad attack on US democracy in 43 states:

In 43 states across the country, Republican lawmakers have proposed at least 250 laws that would limit mail, early in-person and Election Day voting with such constraints as stricter ID requirements, limited hours or narrower eligibility to vote absentee, according to data compiled as of Feb. 19 by the nonpartisan Brennan Center for Justice. Even more proposals have been introduced since then.

The impact of H.R. 1 not passing the Senate will have immediate effects. It will likely impair Democrats’ chances of holding on to their very slim majorities in the House and Senate in 2022, making passing this type of legislation impossible for many years to come. 

What’s required is filibuster reform. Right now, current Senate rules require 60 votes to break a filibuster. It’s more likely that we will figure out interstellar space travel this year than it would be to find 10 Republicans to help break a filibuster for ground-breaking legislation. It’s also unlikely that we can even eliminate the filibuster outright since conservative Democrats such as Joe Manchin and Kyrsten Sinema have both voiced that they are against eliminating the filibuster. Still, passing H.R. 1, or any other progressive legislation, doesn’t require the elimination of the filibuster. There are ways to reform the filibuster in a way that establishes majoritarianism in the Senate. Our recent article offers a fair compromise on the filibuster. The Washington Post article referenced above also offers proposals for filibuster reform.

We must pass H.R. 1 — for the people and for the survival of our democracy.

Photo Credit: SAUL LOEB/AFP/Getty Images

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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, Flickr, CC 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