Tag Archives: Senate

Josh Marshall Hits A Home Run

Talking Points Memo just celebrated 25 years of online political reporting. It’s a “go-to” source for many, if not most, political observers. Heather Cox Richardson, among others, frequently cites publisher Josh Marshall, and TPM is one of my trusted sources for insightful political analysis.

In a recent column, Marshall proposed a basis for evaluating Senators, and I strongly agreed with his criteria for “purging” those who don’t pass his tests. He identifies a series of issues that he says can give voters “a clear indication of whether they are serious about confronting the challenge of the moment or battling back from Trumpism.” He analogizes the process to a status interview you might hold if you were a new manager hired to turn around a failing company–a “sit down” with every employee to determine whether they’re part of the solution or part of the problem.

Marshall identifies five issues. The first is the filibuster. He writes that lawmakers who support keeping the filibuster “are not serious about moving the country forward in any positive direction.” Support for the filibuster means that Senator should be primaried and removed from office, because absolutely none of the legislation that is required to repair America’s government can happen with the filibuster in place. As he writes, “If you support the filibuster that means that your response to Trumpite autocracy is to do nothing and hope for the best. That’s unacceptable and you need to go.”

The second identified issue is Supreme Court reform. Marshall notes that it is only within the past two or three years that he has reluctantly come to that conclusion, which has been forced by the corruption of the Court majority.

They have cut free not only from precedent but from any consistent or coherent theory of the Constitution, no matter how wrongheaded. The purpose of the high court is not to run the country. It is to render decisions on points of constitutional and legal ambiguity in a good faith and broadly consistent manner. It is now engaged in purely outcome-driven reasoning, mixing and matching doctrines and modes of jurisprudence depending on the desired ends, with the aim of furthering autocratic and Republican rule. That is the heart of the corruption. Passing laws doesn’t matter if they can and will be discarded simply because six lifetime appointees don’t like them. That’s a perversion of the constitutional order. I know this one is hard to swallow for many people. It doesn’t come easily to me either. But the facts of the situation and fidelity to the Constitution require it.

Like Marshall, this conclusion was difficult for me, but the sheer intellectual dishonesty of the majority has convinced me that we will not return to the rule of law without substantial Court reform.

Those first two criterions are Marshall’s “most important,” because without them, the next three won’t happen.

Number three is (finally!) making DC and Puerto Rico into states. He acknowledges that this isn’t as essential as the first two, but it’s very important, and it’s the right thing to do. DC and Puerto Rico should in fact be states. It really is bizarre–and unfair–that citizens living in two U.S. jurisdictions simply don’t have the political rights that every other American enjoys.

We now know that Marshall’s number four is especially important. He calls it “clearing the law books.”

As we’ve seen over the last year, the U.S. federal code is full of laws which assume the sitting president broadly supports the federal Constitution, civic democracy and the best interests of all American citizens. We know now that that is a dangerous assumption. There are lots of laws which grant the president vast powers if things get super weird. And the president is in charge of deciding whether they’re weird. A lot of this is the dirty work of the corrupt Republican majority on the Supreme Court. But a lot of the laws are genuinely far too ambiguous. We need to change all of those laws. That involves potentially creating different harms by weakening the presidency. There are cases when you want a president to be able to move expeditiously and effectively in emergencies. Laws will have to be revised with that contrary danger in mind. But right now the balance is far too much in the direction of presidential power.

And number five? Here, Marshall proposes something near and dear to my heart: outlawing gerrymandering with a federal legal framework governing how maps can be legitimately drawn.

As Marshall acknowledges, it’s not an exhaustive list. But it would be a strong beginning.

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it’s The Structure, Stupid!

A reader recently sent me a link to an article from Governing with a provocative title suggesting that the current crisis with democracy should be blamed on the states. The article pointed to a variety of problems that this blog and many others have frequently addressed, including the Electoral College, gerrymandering and vote suppression, and the structure of the Senate.

Despite the article’s title, the problems identified in the article can’t fairly be attributed to the states, although some of them (gerrymandering and vote suppression, certainly) are activities conducted by the states. The very real problems the article enumerates–and a couple it doesn’t–are more properly designated as structural. 

One of the problems with a population that is largely civically-ignorant is the widespread belief that we just need to elect the “right” people who support the “right” policies, and longstanding issues will be resolved. Very few Americans recognize the structural roots of our dysfunctions, and consequently, there are few, if any, efforts to address them.

The linked article identifies several of these structural impediments to a genuinely democratic system–defined as a system truly reflecting the will of the voting populace. I’m well aware that there are a number of scholars and pundits who are unenthusiastic, to say the least, about such a system; they remind us that the Founders were leery of “the people” and created impediments to what they characterized as mass prejudices and popular passions. (Indeed, the Bill of Rights is correctly identified as a counter-majoritarian document.) Most Americans today, however, give at least lip service to the notion that a democratic system, in which elected officials act in ways that reflect the expressed will of the majority, is the ideal.

We don’t currently have such a system, and as the linked article reminds us, the constitutional prerogatives of the states in our federalist system are largely to blame.

Consider all the ways states serve to frustrate the will of the people. First, the Electoral College, which votes state by state, has already installed five presidents whom the voters had rejected nationwide. The many additional near misses make frequent future recurrences a statistical certainty.

The U.S. Senate is even more counter-majoritarian. As of 2023, a majority of the U.S. population is clustered in states that together get only 18 of the 100 senators. The minority get the other 82.

We can blame the Founders for the Electoral College, but the clustering of the population is a more recent demographic reality–and even more damaging. That said, even among the Founders there were those who failed to understand why their “states’ rights” colleagues insisted on the equality of states, which were, after all, artificial creations, rather than the equality of the people who lived in them. As the article reminds us, Federalists like James Madison were bitterly opposed to what they saw as a grossly undemocratic Senate. “Ultimately, however, they accepted the proffered compromise (equally populated House districts, plus states as Senate districts), but only as an unavoidable concession to get the required nine state ratifications.”

One result of this empowerment of states rather than people has been a gradual shift of voting power to rural inhabitants at the expense of urban Americans. (One study found that a rural vote counts one and a third compared to a vote cast by a city dweller.)

As the article reminds us, states have used their prerogatives to suppress votes and–in states that allow initiatives–to overrule the results of popular votes. (In Indiana, which lacks a referendum or initiative, no rational observer would suggest that majority members of our legislature even try to reflect the will of the people.)

Making matters worse, in the U.S., changing structural defects is incredibly difficult.  That’s why the effort to eliminate the Electoral College is through an interstate compact rather than a Constitutional amendment. As the article reminds us, the U.S. Constitution has been described as the hardest in the world to amend.

It requires a two-thirds vote in both chambers of Congress, followed by ratification by three-quarters of the state legislatures (or a constitutional convention process that has never been used).

Winning a two-thirds vote in the already counter-majoritarian Senate is hard enough, but ratification by the states can be harder still. Only recently, states that represented just 22 percent of the U.S. population were able to block the Equal Rights Amendment, against the wishes of states representing the other 78 percent.

If and when we emerge from our current descent into fascism and autocracy, we need to address the structural issues that have facilitated that descent–including a thorough revamping of the Supreme Court.

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Republican Lemmings

Lemmings are small rodents living in the Northern Hemisphere, primarily in the Arctic. They are known for large migrations– but mostly for a myth of their mass suicides, as large numbers follow their leaders off cliffs.

Today’s GOP is filled with the human variety of lemmings. We saw them emerge during the pandemic, as anti-science hysteria led to the rejection of mask wearing and vaccination.  Even after the pandemic, vaccination rates have continued to fall–and that decline has followed a partisan pattern.

There are two ways people can avoid vaccination. Families can get a religious or medical exemption from state laws requiring childhood vaccinations in order to send their children to public school. Or adults can simply fail to take advantage of vaccine availability. In states that voted for Donald Trump, the number of children receiving exemptions has increased.  Adult noncompliance rose in both blue and red states, but more in red states. 

Although states, not the federal government, set vaccine mandates, the incoming administration could encourage anti-vaccine sentiment and undermine state programs. Trump’s nominee RFK, Jr. would absolutely do so. He dismisses out of hand any studies that refute his beliefs. As the linked article notes,

He claims that the measles-mumps-rubella vaccine causes autism, despite more than a dozen studies performed in seven countries on three continents involving thousands of children showing that it doesn’t.

He has claimed that “there is no vaccine that is safe and effective.” (Childhood vaccines have prevented more than one million deaths and 32 million hospitalizations over the past three decades.) He has encouraged people not to vaccinate their babies: “I see somebody on a hiking trail carrying a little baby, I say to him, ‘Better not get him vaccinated.’”

When asked about the polio vaccine, Mr. Kennedy claimed that it caused an “explosion in soft tissue cancers” that killed “many, many, many, many, many more people than polio ever did.” Setting aside the fact that an “explosion in soft tissue cancers” hasn’t occurred, studies comparing children who received early batches of polio vaccines with unvaccinated children found no differences in cancer incidence. By 1979, paralytic polio was eliminated from the United States. When Mr. Kennedy says he wants vaccines to be better studied, what he really seems to be saying is he wants studies that confirm his fixed, immutable, science-resistant beliefs. 

The author of the article, a doctor who previously served at the FDA, explained that the panel authorizing vaccines is composed of actual “skeptics,” who require significant evidence of efficacy before approving them.

Vaccine skepticism is baked into the systems with which health experts monitor vaccines after they’re authorized for use. We know that clinical trials are not enough; we need to constantly ask questions and examine new data. That’s why we have surveillance systems that can detect problems too rare to be picked up in clinical trials. 

That ongoing surveillance allowed the FDA to discover that the Johnson & Johnson Covid-19 vaccine caused dangerous clotting in about one in 250,000 people.

Detecting such risks allows us to weigh these rare harms against the enormous benefits of these vaccines.

Mr. Kennedy, on the other hand, has claimed that the Covid-19 vaccines, which have saved the lives of at least three million Americans, are “the deadliest vaccine ever made.”

Kennedy routinely misrepresents studies he cites and ignores data that doesn’t support his conclusions. And this is the person that Donald Trump has nominated to be Secretary of Health, presumably as a reward for Kennedy’s political support. 

In one sense, the nomination of JFK, Jr. is no different from Trump’s other choices, none of which have been even slightly based on the suitability of the nominee. Trump rather obviously sees these positions as rewards for loyalty–I rather doubt the notion of qualification has ever occurred to him. (After all, he himself is massively unqualified for the Presidency.–or for that matter, any responsible position.)

All of which brings us back to the issue of those Republican lemmings. At this point, it is more likely than not that this parade of clowns, misfits and ideologues will be confirmed by a Senate controlled by Republican invertebrates who value their own immediate political prospects far–far–above concerns for government competence and/or the common good. (And yes, Indiana’s Todd Young is one of them.)

 It isn’t very nice to point this out, but people who take Kennedy’s anti-vaccine delusions seriously are overwhelmingly MAGA crazies and Christian Nationalists, so–on the bright side– we might see a decline in the number who will survive to vote for GOP troglodytes. 

Meanwhile, sane Americans will watch as the lemmings go over the cliff. Unfortunately, they’ll take rational governance with them.

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Fetterman Hits The Ground Running!

Those of us hoping that John Fetterman would win Pennsylvania’s Senate race and defeat the oleaginous “Dr. Oz” should be very pleased with the initial steps Fetterman is taking as he prepares to assume office.

U.S. Senator-elect John Fetterman on Friday announced two key staff hires for his office on Friday, including tapping the author of a book calling for the abolishment of the arcane Senate filibuster to be his next chief of staff.

The Pennsylvania Democrat said in a statement that he has hired Adam Jentleson to oversee his D.C. office as chief of staff and that longtime party operative and labor organizer Joseph Pierce will be his state director.

A veteran of the Senate who served under former Majority Leader Harry Reid of Nevada, Jentleson also wrote the 2021 book, Kill Switch: The Rise of the Modern State and the Crippling of American Democracy, which examines Senate rules that powerful interests have exploited to obstruct progressive legislation with overwhelming majority support among the American public”

 Jentleson has been a strong voice for ending the filibuster, which he insists is necessary to protect American democracy. I couldn’t agree more.

Those who haven’t followed the Senate’s inner workings may not realize that the filibuster in its current iteration bears little or no resemblance to the original rule. Whatever original purpose the filibuster may have served, for many years its use was infrequent. For one thing, it required a Senator to actually make a lengthy speech on the Senate floor.. In its current form, it operates to require government by super-majority–it has become a weapon employed by extremists to hold the country hostage.

A bit of history is instructive.

The original idea of a filibuster was that so long as a senator kept talking, the bill in question couldn’t move forward. Once those opposed to the measure felt they had made their case, or at least exhausted their argument, they would leave the Senate floor and allow a vote. In 1917, when filibustering Senators threatened President Wilson’s ability to respond to a perceived military threat, the Senate adopted a mechanism called cloture, allowing a super-majority vote to end a filibuster.

In 1975, the Senate again changed the rules, making it much, much easier to filibuster.

The new rules allowed other business to be conducted during the time a filibuster is (theoretically) taking place. Senators no longer are required to take to the Senate floor and publicly argue their case. This “virtual” use has increased dramatically as partisan polarization has worsened, and it has effectively abolished the principle of majority rule. It now takes the sixty votes needed for cloture to pass any legislation.

This anti-democratic result isn’t just in direct conflict with the intent of the Founders, it has brought normal government operation to a standstill.

Meanwhile, the lack of any requirement to publicly debate the matter keeps Americans  from hearing and evaluating the rationale for opposition to a measure–or even understanding why nothing is getting done.

There is really no principled argument for maintaining the filibuster in its current form. During the campaign, Fetterman repeatedly promised to support efforts to end the filibuster in the Senate, explaining that abolishing it would allow  key legislation to pass on gun control, labor protections, abortion rights, and voting access.

Jettleman has also pushed for Democrats to brand Supreme Court Justice Amy Coney Barrett’s nomination as “illegitimate” in order to pave the way for eventually eliminating the filibuster and adding more seats to the court. In 2020, he had an op-ed in the New York Times a few days after Ruth Bader Ginsburg’s death, in which he argued that– while Democrats did not have the power to block a nomination by then-President Donald Trump–they could  and should work to delegitimize it.

I first read about Fetterman when he was the very unorthodox Mayor of Braddock, Pennsylvania, and (while I’ll admit to being somewhat puzzled by his choice of clothing) I was impressed. Here was a person who actually wanted to be mayor, wanted to improve his community, unlike the many politicians who clearly view local office solely as a stepping-stone.

Fetterman is evidently bringing that same sensibility to the Senate. His choices of staff are indications that he will focus on the nuts and bolts of actual governance, rather than following the culture war/negative partisanship of Senators like Indiana’s Mike Braun. (Braun is so uninterested in the nuts and bolts of legislating that he has announced he’ll leave the Senate and run for Governor.)

Fetterman joins other Democrats who seem intent upon actually addressing the problems we face. Getting rid of the filibuster would allow them to do so.

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And Furthermore…

I am convinced that the biggest problem America faces– the reason we can’t solve or even address the other multiple problems that grow worse each day they are ignored–is the GOP. 

Permit me to share some observations that support that thesis.

Paul Krugman–Nobel winning economist and opinion writer for the New York Times —took on the “reliably awful” Ted Cruz and his anti-gun-legislation GOP cohort, including Texas Lieutenant Governor Dan Patrick, whose “solution” involved locking school doors rather than controlling firearms. (Patrick has obviously never talked to a Fire Marshall..) As Krugman and literally hundreds of others remind us,

Mass shootings are very rare outside the United States. Why are they so common here? Not, according to the U.S. right, because we’re a nation where a disturbed 18-year-old can easily buy military-grade weapons and body armor. No, says Patrick, it’s because “We’re a coarse society.”

I know it’s a hopeless effort to say this, but imagine the reaction if a prominent liberal politician were to declare that the reason the United States has a severe social problem that doesn’t exist elsewhere is that Americans are bad people. We’d never hear the end of it. But when a Republican says it, it barely makes a ripple….

What distinguishes us is that it’s so easy for people who aren’t nice to arm themselves to the teeth.

What also distinguishes us are outmoded rules of governance that allow representatives of a minority of citizens to block action supported by the majority. (Recent polling by Pew and others tells us that ninety percent of Americans want stricter gun regulations, especially more stringent background checks.)

It isn’t just gun safety. Republican senators routinely object to pretty much anything proposed by the majority or by the Biden Administration. I get absolutely livid when people complain that “Biden isn’t doing anything.” These are people who clearly have no idea how easy it is for Republicans to block administrative measures. One recent example, reported by Daily Kos:

When Sen. Jon Tester (D-MT) came to the floor Wednesday afternoon to ask for unanimous consent to approve Dr. Shereef Elnahal to serve as the Veterans Affairs deputy secretary for health and Sen. Rick Scott (R-FL) objected, Tester blew, telling Scott: “You want to talk about why the American people think the United States Senate is dysfunctional? The senator from Florida could look in the mirror.”

Elnahal had impeccable credentials–he’s currently the chief executive officer of University Hospital in Newark. Furthermore, he’d had a hearing in the Committee on Veterans’ Affairs and been approved unanimously.  As Tester pointed out, the need to have the position filled is urgent. “The VA is continuing to battle the impact of COVID-19 pandemic with veterans cases, hospitalizations, and death on the rise again, and VA staff are dealing with burnout and increasing turnover in our VA system.” The job hasn’t had a Senate-confirmed person in it since January 2017.

And what was Scott’s objection? Well, we don’t know, because he refused to say. (Of course, Elnahal is brown…) But under Senate rules, and thanks to the Memorial Day recess,  his objection will delay a vote until sometime in late June.

And don’t get me started on the filibuster…..

As Jamelle Bouie recently wrote in the New York Times,

I am thinking about the ways that narrow, destructive factions can capture the counter-majoritarian institutions of the American system for their own ends. I am thinking of how they can then use the levers of government to impose their vision of society and civil life against the will of the majority. And I am thinking of this in the context of guns, gun violence and the successful movement, thus far, to make the United States an armed society.

Two weeks ago, a gunman killed 10 people at a grocery store in Buffalo. Three days ago, a gunman killed 21 people, including 19 children, at an elementary school in Uvalde, Texas.

Although there has been, in the wake of both atrocities, the requisite call for new gun control laws, no one believes that Congress will actually do much of anything to address gun violence or reduce the odds of gun massacres. The reason is that the Republican Party does not want to. And with the legislative filibuster still in place (preserved, as it has been for the past year, by at least two Democratic senators), Senate Republicans have all the votes they need to stop a bill — any bill — from passing.

I am old enough to remember when Republicans and Democrats had good-faith, substantive disagreements about the proper way to address national problems. Those days are long gone–and so is the time when currently-obsolete Senate rules and procedures served any legitimate legislative purpose.

Go re-read Pastor Pavlovitz’ warning. And help get out the vote.

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