A real constitutional crisis is well underway

I was hoping Trump’s defeat would lead to the death of the Republican Party. Obviously that didn’t happen. It is fair to say that the Republican Party is basically the Trump Party now, so in that sense it is dead. Ronald Reagan, for example, would not recognize the party, although he did much to put it on its present course. Its mission now is to echo whatever Donald Trump says and to remove if possible the few remaining Republicans who dare to criticize him. It’s unstated but obvious mission is to end democracy in the United States leaving only Republicans in charge.

Since Trump’s defeat, the party’s behavior has been truly appalling. They will leave no stone unturned in their quest to regain power, but it must be on their terms. They have tacitly conceded that they cannot win power fairly, so most of their effort is to ensure it is won unfairly.

Many of the prerequisites have been long in place, in particular the extreme right-wing bent of the federal courts. Most of their focus is on voter suppression of those they don’t want to vote. But many states are passing laws that make it impossible for election officials to do their job. Among these is to charge these officials with felonies if they send out an unsolicited absentee voter application or leave an absentee drop box unguarded. Georgia has given the state legislature permission to remove local election officials, or simply to overturn the results of the popular vote for the presidency if they don’t like the outcome. None of these actions are in the democratic spirit, but are signs of desperation for a party for whom losing power fairly is no longer an option.

January 6 should have been the acme of their awfulness. Now it appears to be the first true skirmish of our next civil war, like lobbing the first cannon ball at Fort Sumner. They appear willing to kill democracy to save it for themselves. Basically, it’s a party of traitors. Now the rest of us have to figure out what to do about it.

Legislatively, the answer is H.R. 1, the For the People Act. It would prohibit exactly the sorts of legislative excesses we are now seeing, including gerrymandering and voter suppression. Getting it enacted into law though is a very tough job for Democrats. It currently would need to pass cloture in the Senate, which means it would require sixty votes to end debate on it and bring it to a vote. With a 50/50 Senate, that won’t happen unless Democrats either find the spine to end the filibuster rule or make an exception in this case. Without it, the likelihood is that Republican election law changes in many states will give the party the wins they need to retake the House in 2022.

These other laws tilt the 2024 presidential election in their favor too, even more than it already is. Assuming President Biden runs for reelection, he would need a commanding victory. So far at least with his popularity at 62%, that at least seems plausible. Of course, a lot can happen in the interim, and you can count on Republicans in Congress to do just this. Senate Minority Leader Mitch McConnell has said his focus is just to obstruct every Biden initiative.

None of this matters if you rig the system. If Republicans regain their House majority, the next January 6 (actually January 8, 2025) won’t require an insurrection for Republicans to get a Republican president regardless of the Electoral College vote. They simply have to stand united and refuse to certify the results, which then allows the House to decide who the next president will be. In this scenario, the representatives of each state cast one vote as a bloc, so if a majority of states have a majority of Republicans representing them in the U.S. House of Representatives, they get to overturn the Electoral College and the popular vote.

As for presidential elections in 2028, 2032 etc., simply repeat. This is clearly where the party is going. They don’t intend to ever lose again and if it kills democracy in the process, so be it.

To change the way a president is selected would require a constitutional amendment. Good luck getting that passed by three-quarters of the states. There is some hope if the National Popular Vote Interstate Compact get passed by enough states, but that has stalled in recent years. Perhaps Democrats should focus their effort there.

In short, this is a four-alarm fire for our democracy. If we weren’t in a constitutional crisis before, clearly we are now. Fixing the problem looks increasingly unlikely.

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.

Presidential nomination theatrics don’t mean much. Here’s what really matters.

Are you a Bernie bro? Or just a Bernie supporter? Do you go gaga when Liz Warren comes up with new policy solutions? Does Kirsten Gillibrand’s blonde hair make you swoon? Can you identify with Kamala Harris’ multihued skin and mixture of black and Hispanic heritage? Do you feel a magnetically drawn to Beto O’Rourke but don’t really understand why? Does Pete Buttigieg’s candidacy flag your interest despite your inability to pronounce his last name properly?

There is no lack of Democratic presidential candidates out there, even though the first votes for the nomination are more than ten months away. It’s natural for us Democrats to project our hopes onto a candidate. I just want to posit that exactly who Democrats nominate won’t matter too much. Any of them will be more than acceptable, so let’s stop obsessing over their personalities and positions. Instead, if you care, place your energy behind movements, and not a particular candidate.

In electing Trump, Americans bought into the fallacious idea that one person can fix what’s wrong in America. Trump was going to be our strongman. Using bullying he perfected over seventy years; he was going to set America back on the right course. Of course, just the opposite happened. But even if you bought into his nihilistic vision of Make America White Again, he’s failing miserably at it even using his own benchmarks. Trump can’t save America. None of the Democratic presidential contenders can either. No one person can. We save American by caring enough about it to give it the time, attention and resources it requires.

We save America by taking back our government. So let’s talk about how to do that, noting that in 2018 we made great progress by gaining control of the House in a huge wave election. It’s not like we don’t have a whole lot of things that need immediate fixes. Otherwise, come January 20, 2021, most likely there will be only another long, dispiriting slog ahead of us trying to make change. No bully president or bully pulpit can make change. Only we can.

Nationally though there is plenty of work ahead of us. Here are some things we can do:

  • The Electoral College has got to go. The only official way to get rid of it is through constitutional amendment. The unofficial way is for enough states to join the National Popular Vote Interstate Compact. We need states representing 270 electoral votes to join in. States that join it will pledge their electoral votes to the candidate that wins the national popular vote. We have 181 electoral votes representing 11 states plus D.C. right now. This legislation is pending in fifteen states, consisting of 158 electoral votes. Considering the Electoral College brought us George W. Bush and the Iraq War, not to mention Donald Trump, it’s an effort worth your time and support. We need 89 more electoral votes. Check the map and see if your state is considering it and if so get involved. Just take a few minutes to write your state senators and legislators and urge them to vote for the bill. And if you can, join with neighbors to do it as a focused group.
  • Similarly, we need districts that aren’t gerrymandered to give disproportionate power to incumbents. I give money to the National Democratic Redistricting Committee. In theory even a Republican who believes in this should support this effort. The committee is not trying to stack the odds to favor Democrats. They want districts that are drawn in a nonpartisan manner. Given them some money and time.
  • Elect Democrats to the Senate. Democrats need just 4 net seats to turn the Senate blue in 2020. It is doable since Republicans have to defend twice as many seats as Democrats in 2020. The Arizona seat is open and Arizona is trending blue. Easiest seats to flip are Maine (Collins), North Carolina (Tillis) and Iowa (Ernst). Holding onto Alabama (Jones) will be tough. It can be done, particularly in a wave election, but it requires good candidates, support from people like you and high voter turnout.
  • End the filibuster. The filibuster rules in the Senate are largely dead anyhow, but what remains keep most legislation from even being considered if it doesn’t get a sixty vote threshold. The exception is narrow legislation that meet budget reconciliation rules and many court vacancies. To wield a majority to affect real change, what’s left of it has to go. Vote for senators who pledge to end it. Otherwise initiatives like addressing climate change and voting rights are likely to die there regardless of who is president and how big our majorities are in the House.
  • Vote for change. Unless incumbents have a strong record for voting for the change you want to see, vote them out and vote for someone who will. This is true for state and city offices as well as for national offices. The one exception: do not vote for a third-party candidate for president. All you do is shoot yourself in the foot, as these voters proved again in 2016.