Time to draw a line in the sand on Republican traitors

Before the election in a number of posts I said that the time between Election Day and Biden’s inauguration would be one of the most challenging constitutionally for our country we’ve ever experience. I outlined many scenarios on how it could play out which I placed in many posts. There were too many variables in the election to know precisely how it would play out, but so far, I at least feel vindicated in my general assessment of this interregnum – not that it was too hard to figure out.

We are amidst the curse of living in interesting times. One of the challenges though of times like today is to figure out how to successfully navigate them so that better times (rather than chaos) lay ahead.

I figured we’d be in the streets at the moment, but right now it’s Trump supporters who are in the streets … and in the courts. Thousands of Trump supporters are in the streets of Washington, D.C. as I write, shouting for four more years of Donald Trump. It’s their constitutional right to protest and providing their protesting doesn’t lead to violence they should vent their spleens. They are protesting because they believe that Trump’s loss was stolen from them, even though after fifty lawsuits not one of them has produced any evidence that judges could accept. Just yesterday the U.S. Supreme Court in a unanimous decision seemed to put an end to it all, refusing to hear a case from Texas asking the court to overturn the results in four key states that voted for Joe Biden.

But of course, that won’t quite be the end of it. Monday the Electoral College votes in the fifty states plus the District of Columbia and certifies their electors. One of my fears is that Trump would put the U.S. military around some of these state capitols to keep the electors from doing just this. We’ll see if this happens. But it’s likely when Congress opens the votes on January 6, 2021 there will be objectors. This ain’t over until it’s over. Like Nixon’s helicopter scene, we won’t really know Biden is president until he is sworn in and a military attaché with the nation’s nuclear codes is by Biden’s side.

But it probably won’t be over even after then. We don’t know yet the results of Georgia’s two senate seat elections, but it’s likely if Republicans maintain a majority of senators that Mitch McConnell will be pressed to obstruct as much of the Biden Administration’s agenda as possible, possibly including refusing to vote on most of his cabinet and other choices. Indeed, Trump is likely to try to run a shadow presidency from Mar-a-Lago or wherever he ends up. I’ve suggested it might be Russia once the lawsuits and criminal charges are filed. Trump will demand attention and it will be up to us and the media to keep granting it to him or not.

Friday’s Supreme Court decision tossing out Texas’s case, joined by more than a dozen Republican state attorneys general and 120 Republicans in Congress, proves beyond a shadow of a doubt that the bulk of Republicans don’t want democracy and would prefer an autocracy where they are in charge instead. By signing on to this suit, they publicly engaged in sedition against the United States. It is this action that I think must be challenged. An implicit line in the sand was drawn that was stepped over when Republicans joined wholeheartedly in this effort. Now another and enforceable line in the sand should be drawn: The House of Representatives should not seat any member of Congress that seditiously joined in this lawsuit.

It’s been done from time to time. My brother today reminded me that we have a great uncle who wasn’t seated in the U.S. Congress in 1869 after the Civil War because his loyalty was questioned as a Democrat. The House, like the Senate, sets its own rules and it can simply refuse to seat representatives by a majority vote. Most of these representatives are already in Congress and won reelection. All of them, like Donald Trump, swore to defend and protect the Constitution of the United States. Their actions of sedition and treachery though prove through their signatures that they didn’t live up to their sworn oaths when it mattered. So, I say, refuse to seat the whole lot of them! Let that be democracy’s line in the sand. Let that be how we rise to the moment.

It can be done. Democrats control the House, even though they lost seats, so if Democrats stay united on this it can happen. The U.S. Constitution specifically allows each house of Congress to set their own rules. The rules for the current Congress have been set, but the rules for the next Congress have not. Refuse to seat them and require that governors of the many states send interim replacements, but only those who will swear fealty to the Constitution of the United States and publicly avow that they will not subvert the will of the people expressed through the voting process.

Of course, I’m not unmindful of the backlash this would cause. It’s hard to believe that it would be much worse than what we’ve already endured. But we need to think of the future and protect the most important thing of all: our republican form of democracy and our constitution and the many laws derived from it, including our freedoms. This is no time to be weenies about our democracy. It’s a time firmly avow by taking all necessary action to ensure nothing like this can happen again. In 2024, it should be simply unthinkable because of the emotional shock that we inflict now.

The most charitable workaround would be to seat those members who publicly disavow their actions at the House podium and promise to never subvert the electoral process or our constitution again. But I wouldn’t want this. I think they should all be permanently unseated. The price of their treachery must be borne. They should feel lucky if the least that happens to them is that they never take their seats. I would hope the Justice Department would look into seeing if any criminal charges apply and if so to go after these miscreants aggressively.

In 2021, Democrats need to make good trouble

Like many Americans, my heart sank Friday when I learned of Justice Ruth Bader Ginsburg’s death. I wasn’t surprised that before her body went cold Senate Republicans would move on and press a case to replace her as fast as possible. Both Trump and the Republican Party have every incentive to do so. For Republicans, what’s not to like about a 6-3 conservative majority, particularly since they sense they will lose the Senate in the upcoming election? Also, for them, wielding power means forcing people to do what they want. They lust for overturning the ACA, for a court that makes denying coverage for preexisting conditions illegal, and for overturning Roe v. Wade. For Trump, the impetus to get a replacement on the court before the election is vital to his plans to corrupt the upcoming election.

George W. Bush infamously found a path to 270 through the Supreme Court. It’s now a far more partisan institution, so getting a justice Trump considers a loyalist on the court before November 3 means that when his inevitable court cases challenging results come before the court, he is likelier to prevail. It will be 2000 on steroids. Recently Trump opined that he could issue an executive order not allowing Biden to take office. Trump never asks permission; he just goes for it and sees what happens. It’s not even clear that if the Supreme Court ruled against him that he would follow their ruling. In any event, a 6-3 conservative majority makes it less likely that they would.

The only consistent thing about Republicans in Congress is that if they can take an inch, they will take a mile instead. It’s all about maintaining raw political power. They are heedless to the consequences of doing so. A government controlled by a minority cannot be considered legitimate indefinitely.

Which is why if we get through this election, Biden wins the presidency and Democrats control Congress, it’s time for Democratic retribution. I’m dubious we’ll get it, as Biden promises to listen to both sides and stupidly thinks Republicans can be persuaded. But retribution by the majority is long overdue.

As it turns out, it’s not that hard to put Republicans in their place. Democrats though just have to show some spine. They will also have to clean up the messy mountains of trash left by the latest Republican administration. We need functional government again too.

To start, the Senate filibuster needs to end. It’s largely dead already, so it wouldn’t take much to make it die officially. The filibuster is not in the Constitution. It ends with a simple majority vote, presumably at the start of the new Congress when rules are agreed to through a simple majority.

Second: pack the court. The constitution does not specify nine justices. All it takes is a bill passed by both houses of Congress and signed into law, which will be in Democratic hands. With a 6-3 conservative court we will need at least three more, but let’s make it four for a clear liberal majority. It’s been done many times in the past. Republicans invented all sorts of reasoning for their tactics. So can Democrats. Here’s one: we’re a country of 330 million people now and too much power is in the hands of too few justices. This would more evenly distribute power making it harder for a minority to control a majority.

Third: pass a constitutional amendment that allows the Attorney General to be elected. Trump shows exactly what can go wrong when the Justice Department reports to a lawless president. I propose like the president we elect an attorney general to a 4-year term, every four years. Like the president, there would be a maximum of two terms that could be served by one person. To make it more interesting, run the Attorney General race during non-presidential voting years. It would give us a reason to vote. The amendment should provide that the Attorney General will control the budget of the Justice Department and directly submit appropriations to Congress, outside of the Executive.

Fourth: appoint an independent prosecutor to look into and prosecute potential crimes by Trump and his administration. To avoid the appearance of partisanship, he or she should be a diehard Never Trumper with a proven commitment to impartially upholding the rule of law.

Fifth: keep working with the states to pass the National Popular Vote Interstate Compact. When we have states representing more than 270 electoral votes passing laws agreeing to this compact, the Electoral College is effectively dead, because these states will award their electoral votes by law to the winner of the popular vote for President of the United States. Currently states with 196 electoral votes have passed this legislation, and it’s pending in states representing another 64 electoral votes. If those states passed legislation, we’d be just 11 electoral votes from getting rid of it for good. All it does it increasingly make it likely that our president won’t represent the majority of those who voted for him or her. Biden should make this his cause, and personally coax state legislatures to give it impetus.

Sixth: expand Congress. With Democrats in charge and with no filibuster, there’s no reason not to make the District of Columbia and Puerto Rico states. DC would still have more people in it than Montana, which gets two senators. But let’s also expand the House. With 435 seats, one representative represents more than 700,000 people. That’s too many people. We need a House that changes size based on population. This too can be done with legislation: no constitutional amendment required. The number was last raised in 1929. In the first congress, one representative represented about 30,000 people.

In the words of the late Rep. John Lewis, Congress needs to make good trouble. This is all good trouble. We’ve seen a lot of bad trouble these last few decades. We need a Congress that proportionately represents us, not disproportionately conservative states.

Election 2012 postmortem

Ouch! It must hurt to be a Republican after the walloping they got from voters last night.

What hurt them the most of course was President Obama’s reelection, called by CNN (which I was watching) at 11:18 PM Eastern Time. I was not really worried that Obama would lose, despite the tightness in the popular vote, because of polling in swing states. Still, Republicans must have really felt the sting from losing the White House. As a result, the Supreme Court is saved from new conservative justices, at least for the next four years. The Affordable Care Act will not be overturned. We won’t get entangled in any wars of hubris. Social Security, Medicare and Medicaid will not be gutted, and it’s hard to see how tax increases can be avoided on the wealthiest Americans.

Obama’s reelection was especially improbable given the poor state of the economy. He joins a small list of presidents to win reelection under these circumstances, the last one being Franklin D. Roosevelt. What is even more remarkable is that Obama did this while being additionally handicapped by being black. Not a handicap you think? Disturbing new research shows just how prejudiced Americans remain. Had Obama been born white he likely could have added five points to his electoral win. Yet he still won with a clear majority of the votes cast.

Overall, voters assessed the Republicans’ candidates and rejected them. Most Republicans simply can’t figure out how their message failed to resonate. Even Mitt Romney revealed that didn’t get it with his much reviled remark that 47% of the public would not vote for him because they were dependent on the federal government. Republicans lost badly because they are seen as elitist, out of touch with the real world, obstructive, obnoxious racists and misogynists. This was obvious, if not from their rhetoric and their “Put the White back in the White House” signs, then from the candidates they nominated. The crazier they were, the greater they lost.

The Senate was supposed to turn Republican this year. Retiring Democratic senators outnumbered retiring Republicans two to one. Two ultra pro-life candidates went down in flames. Todd Akin lost by 15-points to incumbent Clair McCaskill in Missouri, a state that Romney ended up winning. A couple of hundred miles to the east in Indiana, Richard Mourdock lost an easy seat in a bright red state to moderate Democrat Joe Donnelly. The only bright spot for Republicans was narrowly winning a seat in Nevada, won only by a point, and only because of ethical problems with the Democratic nominee.

Otherwise, the horror! An open lesbian, Tammy Baldwin won against former governor Tommy Thompson in Wisconsin. Democrat Heidi Heitcamp narrowly won against Rick Berg in dark red state of North Dakota. John Tester hung on to his Montana seat. In my state of Virginia, Democrat Tim Kaine won by nearly five points against former senator and governor George Allen. Scott Brown was tossed out of Massachusetts by progressive Elizabeth Warren. Many of these seats were salvageable had Republicans nominated someone relatively mainstream. But in most cases they went for candidates with “principle” (i.e. extreme positions) instead. They picked candidates they wanted to see in office, not candidates that could win in a pluralistic election. These losses were stupid and preventable, and fed the narrative that Republicans are deeply out of touch with the rest of America. Overall Democrats picked up two senate seats, an amazing accomplishment. In addition, there will be twenty female senators in the next congress, a new high.

Not that the elections went entirely bad for Republicans. They did manage to retain control of the House of Representatives. Not all house elections are called yet but it appears they lost only a handful of seats. Gerrymandering resulting from the 2010 census certainly helped there. Still, a few of the more egregious Republican representatives went down in flames, including Alan West in Florida. Progressive Alan Grayson won back a seat he lost two years ago in Central Florida, with 62% of the vote. Michele Bachmann came within a percentage point of losing her conservative seat in Minnesota.

There were many contributing factors to yesterday’s election results. Ironically, most of the television advertising unleashed by special interest groups and candidates may have proven unproductive. First, they stimulated interest in the election, since it was impossible to get on TV or radio and not hear political ads. Second, for the most part the ads canceled each other out, so they had no impact. They proved great for media companies bottom lines, but bought candidates of either party or special interests very little. What worked were messages directly from the candidates themselves, and early messages that set narratives.

The ground game was also phenomenal, at least for Democrats. I was receiving two or more phone calls (mostly robocalls) from candidates a day. There were dozens of emails as well, mostly soliciting donations. In my neighborhood the Obama campaign was relentless. They knocked on my door countless times (I don’t open my door for any campaign), left voice mails, left at least one brochure a week on my stoop and sent information through the mail. It was quite overwhelming and frankly more than a bit annoying. I simply could not turn it off, as much as I agreed with the candidates. Perhaps I would have received less attention had I not lived in a swing state.

I saw the effects at my local precinct Tuesday morning: long lines at the elementary school that nearly stretched outside. There were only three electronic machines at our precinct, which contributed to the slowness, so most elected for paper ballots, which were faster. Even subtracting out the crowds the energy level was high; the precinct buzzed. I cannot recall an election where I saw more voters at the polls. Even my daughter came up from her campus in Richmond to cast a vote. The result was clear during the evening, when Fairfax County was slow to report. A lot of precincts had large queues of people waiting in line to vote. For much of the evening, CNN was showing Virginia voting red, but it was clear to me that when Fairfax County’s vote finally came in, it would flip. And we did. Obama won Virginia sometime after midnight.

This was an election to remember, nearly as memorable as the 2008 election. If it demonstrates anything, it demonstrates an electorate whose demographics are changing. White America voted 58% for Mitt Romney, but it comprises a smaller proportion of the electorate. This problem will only grow worse for Republicans. They will have to moderate positions or risk obsolescence as a political party. The Tea Party and extreme social conservatives are doing them in.

The non-government of the United States

Govern: to exercise continuous sovereign authority over; especially: to control and direct the making and administration of policy in

Egypt is now a democracy, sort of, if democracy means letting the military govern a country for six months or so until elections can be held and if the military then actually cedes power to a real republic. Hoping for a democracy in Bahrain, oppressed Shi’ites attempted to create their Tahrir Square by occupying a traffic circle. The government there decided it had learned a lesson from Egypt’s protests: crack down fast and rule by violence, resulting in numerous deaths. Meanwhile, in Iran rabid Islamists want to try and execute protestors who recently demonstrated for more freedom there. The trend is the same: whether it is Tunisia, Libya, Iraq, Yemen, Jordan or even the West Bank, the Muslim world wants freedom, democracy and government that executes the will of its people.

Freedom is good, but about that democracy thing: it is at best a mixed blessing. Just because you have a democracy doesn’t mean that those running it will choose to actually govern. So be careful what you wish for. Egyptians, you may find yourselves longing for a little honest oppression after you try governing yourselves as a republic, because it is often a very messy process. As we here in the United States can attest, republics sure aren’t all they are cracked up to be. In fact, they tend toward dysfunction, with parties jockeying endlessly for power using all means, fair, unfair and often illegal.

At the close of the Constitutional Convention in 1787, Benjamin Franklin was asked, “Well, Doctor, what have we got— a republic or a monarchy?” He replied, “A republic, if you can keep it.” Two hundred and twenty four years later, you have to look at the mess we call our republic and wonder if maybe a monarchy would have been an improvement. If we had a king, perhaps he could at least shame our Congress into doing its job. For if a government is to work, it has to actually govern.

Here in the United States, governing is so 20th century. Today, there is no guarantee that an agency will have an appropriated spending bill, even by the end of their fiscal year. Instead, you will get one continuing resolution after another, usually based on last year’s funding. CRs are Congress’ way of telling the nation it cannot do its job. This happens because we have elected a Congress of polarized people who put ideology ahead of governing. Congress is currently debating another continuing resolution to fund the government. If they cannot agree on one by March 4th, federal employees like me will be indefinitely furloughed. I had best stock up on paint, because apparently I will have plenty of time to paint in March. For if you can count on anything in Congress, it’s on Congress skirting its job.

In case you have forgotten, here is how it is supposed to work: all appropriation laws would be signed into law before October 1 so agencies can work from an approved spending plan. The plan is supposed to execute the desires of the American people, as expressed through compromise involving two houses of government. What often happens these days is the actual bill to fund the agency gets signed into law late in the year, then a twelve month plan hobbled by continuing resolutions all has to get executed in a couple of months. It’s crazy, but that’s American democracy at work for you.

So let’s do a status check for Fiscal Year 2011 to see how well gears of our old republic are turning. Today is February 18, 2011, nearly five months into the fiscal year that started October 1, 2010. How many FY 2011 appropriation bills have actually been signed into law? Zero. Okay, well, how many have passed the House? Two (military construction/veterans affairs and transportation, both in the last Congress.) How many have passed the Senate? Zero. I don’t know what they are doing in Congress, but governing is obviously not very high on their agenda. It’s like they forgot how to mark up bills in committee, vote for or against them on the floor and send them to a conference committee. Ironically, the new House started off the year with a reading of the constitution.

The only spending “bills” that have passed are four “continuing resolutions” funding the government at Fiscal Year 2010 levels until Congress decides to get around to this messy thing called legislating. Here’s the thing about continuing resolutions. They really aren’t authority to spend any money at all. Congress and the president just pretend they are. They are a resolution, which amounts to a wish or a promise. If they were an appropriation, they would have arrived as bills, and when enacted would become a public law. A CR is not a public law. A CR is basically Congress saying “We need some more time to work on the bills, so is it okay if agencies meanwhile spend money at this rate until it runs out on this date with no guidance from Congress?” By signing it, the president is saying, “Okay by me.” What is missing is any intent from Congress on how the money should be used. That’s the part that Congress is supposed to do but is not. It’s called legislating, also known as representatives and senators doing this thing called “work”.

It is looking increasingly probable that Fiscal Year 2011 will end with no appropriations bills signed into law at all because the House and Senate are controlled by different parties and neither are principled enough to meet in the middle. Instead, eighty-seven new Republicans in the House want to cut $60 billion from non-defense agencies, which somehow must be done by September 30. The Senate does not want to do it. CRs have become the fictional instrument to keep a dysfunctional government running. The House and Senate seem likely to continue at loggerheads indefinitely, potentially until the 2012 election. Maybe in 2013 Congress will get around to actually directing agencies on how to spend their money.

To all appearances, Congress seems suspended in gridlock with not even a hint that either house will move toward political compromise. If you ask me, we now have a republic in name only.