The Case for a Democratic Environment

UPDATE (9/9/22): FiveThirtyEight updated their partisan lean metrics hours after I published this. The story has been updated to reflect the new data.

Special election charts and results as well as the above generic ballot polling average are by FiveThirtyEight. I wanted to credit them in the captions but WordPress is being dumb.

I think people are underestimating how likely it is that we’re in at least as favorable an environment for Democrats in 2022 as we were in 2020. Yes, Democrats are only ahead on the generic ballot by 1.2% at the time of this writing, whereas in 2020 they were ahead by 7.3%. But the polling in 2020 was notoriously bad. Democrats only wound up winning the House popular vote by 3.1%. That’s a 4.2% miss! In 2018 – when Trump was not on the ballot – the generic ballot got things exactly right. It predicted Democrats winning by 8.6% and they won by 8.6%.

The ‘Trump effs up the polls’ theory is going to be tested again this year (it makes sense since he destroys everything else that I love!) but in the meantime, let’s assume the generic ballot is correct, or at least close to correct (lets say for the sake of argument ±2%, which is in between the 4% error 2020 and the 0% error in 2018). Then the environment is anywhere from R+1 to D+3. So either slightly worse than 2020 or about the same.

But we also have other figures to go by, namely special elections. The advantage of special elections is that they aren’t polls. They’re actually elections where people go out and make a choice. The disadvantage is that they are usually low turnout affairs that attract only the most politically engaged. Still, they usually are pretty predictive. In the special elections since Dobbs, Democrats have been overperforming by between 7 and 11 points (depending on how you count Alaska).

So based on the generic ballot and special elections we can say that we’re in anywhere from an R+1 environment to a D+11 environment. To be clear, I don’t think we’re in a D+11 environment, so let’s use D+7 (the conservative calculation of special elections) as our high. So the environment is anywhere from R+1 to D+7, for a median of D+3. That puts us in basically the exact same environment we were in in 2020, when Democrats won 222 seats.

So Democrats should expect to win 222 seats? Not so fast. You forgot about redistricting! There’s a number of different ways to calculate the effect of redistricting but I think the easiest way is to look at how many districts Biden won. On the old map Biden carried 224 districts. On the new map he would have carried 225, according to Redistricter.

But Democrats ran 1.5% (or 2 seats) behind Biden; one of the reasons their House majority is so thin. So instead we can look at each district’s partisan lean or (PVI) using data from FiveThirtyEight. In a D+3 year Democrats should expect win every district with a PVI <R+3. This would give us a final result of 220D-215R. In an R+1 year it would be 206D-229R. A D+7 year would give Dems 237 seats, one more than they won in 2018, which makes me think we’re not in a D+7 environment (though stranger things have happened). So going by PVI we’re looking at Democrats winning anywhere from 206-237 seats, with the median being 221.5.

Another way of looking at it is to use FairVote’s Monopoly Politics Projections, which allow you to estimate each party’s share of seats based on different environments. I like this better because it uses toss-ups (so I have less likelihood of being wrong). In a D+3 environment there are 218 safe/lean D seats and 181 safe/lean R seats, with 36 toss-ups. 218 is the exact number you need to win the House. An R+1 environment gives us 209R-183D with 43 toss-ups. They don’t allow you to calculate D+7 but back of the napkin calulation tells me there’d be about 232 lean/safe D seats.

So going by FairVote, Democrats could expect to win anywhere from 183 seats (an R+1 environment where Republicans win all the toss-ups) to 254 (a D+3 environment where Democrats win all the toss-ups) with the median being 218.5. In a D+7 environment, Democrats would win close to 280 seats if they won all the toss-ups, but nobody’s had that kind of majority since the 1970s so I’m going to assume that’s not going to happen. Let’s stick to 254 (D+3 w/ all toss-ups) as our high.

So based on my read of the current environment Democrats are favored to win around 221.5 seats using PVI or 218.5 seats using FairVote’s projections. I guess this was all a long winded way of me saying that things are really freaking close! Also, someone’s going to have to be chopped in half. I suggest Marah Palintola.

Ranked choice voting is hard!

Where Things Stand Two Months Out From the Midterms

Sagearbor, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons

Democrats are looking to defy history. Can they? Here’s a thread I wrote, analyzing how the current race compares to past races. Enjoy!

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In good Republican years they tend to run away with the race around labor day as pollsters switch over to likely voter (LV) models. For instance, at this point in 2014, Republicans were ahead by 0.3%, but less than a week later they were leading by close to 4%

Democrats are currently leading on the generic ballot by 1 point, and Democrats and Republicans are essentially tied in LV polls taken in the month of September.

This is good news if you’re Democrats because it differs from 2010 and 2014 when Republicans were leading by 7.8 pts and 3.4 pts respectively in LV polls taken in the first half of September

Generally the party out of power holds an enthusiasm advantage, however this year, with the overturning of Roe v Wade, Democrats have closed the enthusiams gap, especially when compared with past midterms.

We’ve seen it in special elections where Democrats have overperformed by an average of 7-11 pts since the Dobbs decision (depending on how you count Alaska).

Whether this can hold for the next 2 months remains to be seen, but in past midterm cycles the party out of power has tended to run away with the race after labor day. Needless to say, the next few weeks should tell us a lot about where this race is headed.

Thank you to @FiveThirtyEight @baseballot @MorningConsult @pewresearch and @RealClearNews for doing all the hard work.

Originally tweeted by Tommy Meyer (@TommyzTakes) on September 7, 2022.

Democrats may not be Doomed in the Midterms

In 2010 Scott Brown stunned the political world by winning a Special Election for the Massachussetts Senate seat vacated by Ted Kennedy after he died. Brown won 52-47, a 5 point margin in a state Obama had won two years earlier by 26 points. It was a stunning upset and a harbringer of things to come as Republicans picked up 63 seats in the 2010 midterms to easily retake the House in what then President Barack Obama called a ‘shellacking.’

Fast forward to 2022 and we have a very different situation. Democrats have overperformed in special elections by an average of 5.7pts since the Dobbs desicion overturning Roe V Wade. Democrats have overtaken Republicans on the generic ballot (at this point in 2010 it was R+4.5) and the Senate seems to be moving farther and farther away from Republicans – with Fetterman leading by 10pts in Pennsylvania and Mark Kelly leading by 8 in Arizona. Even Wisconsin and Ohio look within reach for Democrats (though we’ve been burned by polling in these states before).

The president’s party almost always loses ground in the midterms. In the 19 midterms that have taken place since World War II, the president’s party has lost seats in the House in all but two: 1998 (after the Clinton impeachment) and 2002 (after 9/11). Needless to say if Democrats don’t lose the House it would be a shocking turnaround from where we were just a few months ago. It would be less shocking if Democrats don’t lose seats in the Senate, but that’s still only happened 4 times since WWII.

So why are Democrats overperforming in a year where – if history is any guide – they should be losing ground? Well I’m sure the Dobbs decision overturning Roe v Wade certainly has something to do with it. As the Washington Post reported Monday 1 in 3 women have lost access to abortion, and more restrictions are coming. I think some of Democrats’ recent legislative victories have also helped though people usually don’t vote based on policy. We’re also seeing an improving economy with inflation and gas prices falling after (hopefully) peaking in June.

But I think the biggest reason is that Republicans have simply become too extreme. They’ve leaned into the Trumpist wing of the party, at the expense of regular voters. Republicans had a choice to make after January 6th. Trump or democracy. They chose Trump. That was a mistake and now they’re reaping what they’ve sewn. His voters simply don’t come out when he’s not on the ballot (just ask Republicans running in 2018) and it turns most Americans, at least the ones who vote in midterms, actually like democracy. They’re not okay with Republicans abdicating their responsibility to protect it. They like having rights and are not okay with Republicans taking those rights away, like the right to an abortion. And they’ll take boring competence that they don’t have to think about every day over the constant chaos, corruption, and conspiracies that come with Trump and the Republican party.

I never thought I’d see the day when one of our two main political parties simply stopped believing in democracy. When your response to someone trying to overturn the results of an election and a literal violent attack on our democracy is to look the other way or worse; actually defend these actions, you have turned your back on democracy and our not worthy of even being elected Dog Catcher (no offense to Dog Catchers). A democracy where voters don’t punish politicians for that kind of behavior is a country dangerously close to no longer being a democracy. I’m glad to see that maybe, just maybe, Republicans are in for the type of ‘shellacking’ they deserve.

Gerrymandering: The Real Voter Fraud

Steve Nass, CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons

The left and the right are locked in a never-ending battle between what’s worse: voter fraud or voter suppression? The truth is, neither. Neither is that much of a problem in this day and age. And both are a distraction from what is really disenfranchising people: gerrymandering.

How does gerrymandering disenfranchise people? Well the entire point of gerrymandering is to force the other party’s voters to “waste” their votes. A vote is considered wasted when it’s cast for a losing candidate or anything cast for the winner above 50%. If you think about it, it doesn’t matter whether someone wins with 51% of the vote or 81% – they still win – so that extra 30% of voters could have been put to much better use in other, more competitive districts. Similarly, in a district where a party routinely wins 81% of the vote, the 19% of voters who voted for the other party might as well have just stayed home. They know their vote isn’t going to matter much. Anyone who lives in a state that routinely votes one way or the other in a Presidential election (I’m looking at you New York!) knows the feeling.

In a perfect world nobody’s vote would be wasted. Unfortunately we don’t live in a perfect world. So long as we have single-member districts with winner-take-all elections where the winner need only win a plurality (as opposed to a majority), a certain number of votes are going to be wasted. The next best thing is to have each party’s share of wasted votes be about equal. If each party is wasting votes at around the same rate, that means the map is probably pretty fair.

Which brings us to the efficiency gap. The efficiency gap is a way of measuring the difference between each party’s share of wasted votes. If Democrats, for instance, waste 20% of their votes, and Republicans waste 30%, then the efficiency gap is 10% in favor of Democrats.

The goal of the gerrymanderer is to maximize the number of votes the other party wastes, while minimizing the number of their own party’s wasted votes. Another way of looking at is, their goal is to maximize the efficiency gap in their own party’s favor. They do this through what’s called packing an cracking. To go back to our above example, Republicans may pack Democratic voters into a district where their candidate routinely wins 81% of the vote while the surrounding three districts give Republicans about 55-60% of the vote. This would result in a region that is 1D-3R, even if there are an even amout of Republicans and Democrats in the region. If that 30% of Democratic voters were to be unpacked and spread more effieiently into the surrounding districts, a Democrat could win 2 or more of those districts.

The Dallas/Forth Worth area is a good of packing in action. Voters in Dallas and Fort Worth are packed into those three oddly shaped districts in order to create four Republican districts. Biden won this area by more than a million votes (which is more than Trump won the entire state of Texas by).

Forth Worth/Dallas area has 3 Democratic districts and 4 Republican districts

Cracking is where you take an area that has a high concentration of one party’s voters and you split them up into multiple districts so they represent a minority in each. The Orlando area is a good example of this. It’s split up into 5 seperate districts, 3 of which lean Republican – despite the fact that Biden won this area by more than 17 points.

The Orlando region is split into 5 seperate districts, 3 of which lean Republican

All of this should be far more offensive to people than supposed voter fraud or voter suppression. This is literally a case of politicians choosing their own voters, instead of the other way around. The stated goal of gerrymandering is to dilute the power of your vote by either putting you in a district where you’ll never be able to elect a candidate of your choice, or where your candidate would be elected no matter how you vote. I can promise you, this has much bigger effect on the power of your vote than voter fraud ever will, and it does far more to disenfranchise people, especially people of color, than any of the new voting laws that have been signed into law recently.

With the focus on voter fraud and voter suppression we’ve turned a blind eye to the real threat to our democracy: gerrymandering, and by obsessing over the last election and claiming it was”rigged” we’re allowing politicians to literally rig the next one. Let me leave you with this: the map isn’t yet completed but if things hold more than 90% of US House races this year will be uncompetitive. Control of Congress isn’t going to be decided in November. It’s being decided right now. Pay attention.

What the Heck is Going on With Voting Rights?

I’m sure many people are wondering: what in the heck happened yesterday? Well Leader Schumer actually did something quite brilliant, in my opinion. I don’t know, maybe this has been done before but it’s the first I’m hearing of it. Basically Schumer used a bill that already passed the Senate, in this case a NASA bill, as a shell for the Freedom to Vote Act and John Lewis Voting Rights Advancement Act. The House will vote on amendments to add the text to the NASA bill and then send it back to the Senate. The new bill, called the Freedom to Vote: John R Lewis Act (I know, they should have named it the John R Lewis in Space Act or something!) can be brought up for debate in the Senate with a simple majority – because a different version, the original NASA bill, already passed the Senate.

The fact that Schumer was able to use existing Senate rules to get around a filibuster on the motion to proceed and bring the bill up for debate tells me his head’s in the right place. I’ve been arguing for months now that a rules change using the “nuclear option” was unlikely, as Manchin and Sinema still seem staunchly opposed, but there are ways around a filibuster using existing rules.

So what happens next? Well today the House will vote on the amendments then pass the bill and send it back to the Senate. The Senate can then bypass the filibuster and immediately move to consideration of the bill. Republicans will still be able to block a final vote though, which Democrats still need to find a way around.

The least likely way around it is that Democrats will find 60 votes to invoke cloture and end debate. The second least likely way is for Democrats to use the “nuclear option” to create a voting rights carve-out – similar to what Harry Reid did in 2013 or what Mitch McConnell did in 2017 for Supreme Court nominees. The most likely option, and one Manchin has floated in recent days, would be to go back to the ‘present and voting’ standard for invoking cloture.

Let’s back up a second. In 1975 the threshold for cloture [ending a filibuster] was changed from two-thirds of those present and voting to three-fifths of the entire Senate (60 votes). This was supposed to make it easier to break filibusters but it ended up having the opposite effect. Since it now took 60 votes to end a filibuster no matter how many Senators were actually present, the entire burden was on the majority to find the votes (maybe they should call Brad Raffensperger). The minority didn’t even have to show up. Going back to three-fifths of those ‘present and voting’ will mean the minority will at least have to make sure they have enough Senators on or near the floor to deny the majority three-fifths.

The end result would be that this would make talking filibusters more likely, because they’ll be easier to defeat. And the minority will have to be more selective about when to employ the filibuster – since it’s going to require most of their caucus to be on or near the floor. This option also has the benefit of not being such a radical change. It would simply restore the Senate rules to what they used to be. Still, this would likely require Democrats to change the rules using the ‘nuclear option,’ something Manchin still seems against.

The final option is for Democrats to break the filibuster using existing Senate rules. This would be grueling and time consuming but, as a last resort, could work. There’s nothing in the Senate rules saying that debate needs to be ended by cloture. The other way to end debate, the way they used to do it, is to simply ‘call the question.’ Once everyone who wants to speak has spoken the clerk will call the roll and the measure can pass by a simple majority. The problem with this is, the minority can keep that vote from taking place by continuously holding the floor (a talking filibuster). Members can switch off talking and offer amendments and motions that could theoretically keep the filibuster going indefinitely. Though the minority would only need one member holding the floor to maintain the filibuster, the majority needs all their members there to make sure there’s always a quorum present (51 Senators), otherwise the Senate will recess, which only aides the filibustering Senators’ efforts to delay.

Still, there’s reason to believe that Republicans couldn’t keep the filibuster going forever. Government funding runs out February 18th and I’m sure Republicans don’t want to force the government into a shut down eight months before an election. I’m also sure they would rather be out there campaigning and fundraising, something they can’t do if they’re stuck in Washington filibustering. These would be powerful incentives to end their filibuster, especially if it seems Democrats are not caving. It becomes a game of wills.

So as you can see there are a number of options available for Democrats to get around a filibuster and get voting rights over the finish line. Which option they choose remains to be seen. The one thing I can tell you: it’s going to be very interesting!

The Biden Theory of the Case

It’s easy to get lost in the minutia of day to day politics but I really think people are missing the forest for the trees. In the grand scheme of things Biden’s little spat with Manchin and Build Back Better isn’t really going to matter. The bill will pass and disappointment about what gets left on the cutting room floor will inevitably fade and give way to excitement about what IS in the bill. Think about the argument we’re having right now: Do we want universal pre-k or or a universal child allowance? Should we make the largest investment ever in combatting climate change or the largest expansion of affordable healthcare in a over a decade? Or maybe we should focus on the greatest expansion of civil rights and voting rights since 1965? These are not bad problems to have.

I just don’t buy all the punditry saying Joe Biden misread his mandate or made a mistake by going too bold and now people are inevitably going to be dissapointed. It’s easy to play Monday morning quarterback but let’s game out some other scenerios. Biden ran on a bold, progressive platform. What would have happened if he said, “Never mind. I only got 50 votes in the Senate, so all that stuff I said I was gonna do – I’m not even going to try.” He would have had a progressive revolt and thrown away any chance of doing anything. Biden has a difficult task before him – keeping the disparate factions of the Democratic party together and united behind his agenda – and in my opinion (Manchin spat aside) he’s done so masterfully.

I just finished reading Evan Osnos’ biography of Joe Biden (you can thank my long layover in Texas for that). I highly reccommend it. It really helps you understand what he’s doing and why he’s doing it. Here’s the Biden theory of the case: the only way to save our democracy is to prove that a democratically elected government can deliver results for people. Put another way, the only way to defeat Trumpism is to show Trump’s supporters that their voices are being heard and that they don’t have to turn to someone like Trump to get a government responsive to their problems. That’s why Biden’s been so singularly focused on Build Back Better. It’s why he’s billed the infrastructure bill a “blue collar blueprint to rebuild America.” And it’s working. Wage growth for those without a college degree has outpaced wage growth for those with a degree since January 2021 – the longest period on record.

The bad actors are going to act bad – that’s what they do – the only thing we can do is make the outrage they’re peddling less appealing. Remember: the outrage machine only amplifies anger and resentment, but there has to be an existing base of anger and resentment for it to amplify, and though you’re never going to remove all the things that make people angry or upset, you can reduce it to a level that is sustainable. Just like how reducing transmission of the virus allows society to function normally, reducing anger and resentment to a sustainable level will allow democracy to function. The only way out is through helping people, not punishing them.

Of course governing effectively is only one piece of the puzzle. There’s an important second piece too. If making the bad actors less appealing is step one, reforming democracy to shore up the weaknesses exposed by the bad actors is step two. Biden has gotten a lot of flack (including from me) for not paying enough attention to voting rights. Bad actors all across the country are using the “Big Lie” as an excuse to pass restrictions that make it harder to vote, and they’re likely to continue in 2022. Passing both the Freedom to Vote Act and John Lewis Voting Rights Advancement Act will push back against these state level restrictions and also put an end to gerrymandering, which causes increased polarization by making elections less and less competitive.

In order to pass both of these bills we will need to reform the filibuster – though filibuster reform shouldn’t be thought of as a means to an end, rather, reforming the filibuster is itself essential to saving our democracy. The fact is that one of the reasons people no longer believe democracies can deliver is because whichever party is out of power does their damnest to make sure the party in power can’t get anything done. Giving the minority a blanket veto over the majority’s agenda is insane and runs counter to the way our democracy was designed. Fixing the filibuster will allow our government to function as intended and be more responsive to the needs of it’s people – instead of our current state of affairs where politicians make big promises on the campaign trail that are impossible for them to fullfill once in office.

Finally, we need to update the Electoral Count Act to clarify the Vice President’s role in the counting of electoral votes and also what constitutes grounds for challenging a state’s votes. It’s unclear at this point whether this is something Democrats will have to do on their own or whether there’s enough establishment Republicans (I’m looking at you Mitt Romney) to pass a filibuster proof bipartisan bill. Obviously for big changes like this you’d prefer it to be bipartisan but if going it alone is the only way then that’s the route Democrats must take. This is just too important. Besides, both the 14th and 15th Amendment, which gave citizenship and voting rights to freed-slaves, passed on party-line votes.

Biden has not paid nearly enough attention to voting and democracy reform in the first year of his presidency but it looks like that is starting to change – a very welcome sign for those of us worried about the future of democracy.

Biden has a great task ahead of him: literally saving American democracy. But if he can pass Build Back Better, voting rights and election reform, on top of the infrastructure and COVID relief bills he’s already passed, that would go a long way towards meeting his goal of proving democracies can function. It would also safeguard our democracy against future attacks. I don’t know if it will save Democrats in the midterms but I would still call it a success – and though this has been said about every President, I think it’s the case now more than ever: Biden’s success is America’s success.

How to Pass Voting Rights (Without Getting Rid of the Filibuster)

Photo by Artem Podrez on Pexels.com

When the Senate returns on Monday from their August break, they’ll have a lot on their plate: reconciliation, a bipartisan infrastructure bill, raising the debt ceiling; but perhaps nothing on their agenda is more important or more urgent than voting rights. Luckily there is still a path forward for Democrats if they choose to take it, and contrary to popular belief, it doesn’t necessarily involve eliminating or even necessarily reforming the filibuster (though doing so would undoubtedly make the path forward easier). In this piece I will explain the path forward on voting rights and why the window for action is closing fast.

First a word on Senators Joe Manchin and Kyrsten Sinema. Progressives have been needling them for months now to support ending the filibuster and neither of them has budged. Manchin has voice tepid support for some modest reforms, but Sinema has only dug in further. I can’t tell you how many times I’ve heard people say, “just convince Manchin,” as if he wasn’t the most stubborn person in the world and as if convincing someone to do something against their interests when you have absolutely no leverage on them wasn’t a complete waste of time; and there’s no time to waste. With the release of the census data last month the process has already begun to draw new Congressional maps. The further along states get in that process, the harder it will be to unravel extreme partisan gerrymanders. That’s why most experts believe that if a bill isn’t passed by the end of September, it will probably be too late. With the Senate not getting back until half the month is nearly gone that gives them an incredibly small window for action.

Still, all hope is not lost and there is a path for passing meaningful reforms in time to affect redistricting and the 2022 elections. Majority Leader Chuck Schumer teed up a vote on the For the People Act as well as on a standalone redistriting reform bill as the first order of business when the Senate returns on Monday. He also made clear that Democrats plan to replace the text of the For the People Act with a slimmed-down version that Democrats have been working on with Manchin. It’s imperative that by the time the Senate gets back they have the text of the Manchin compromise bill finished, otherwise Republicans will be able to hide behind the excuse that they’re voting against the more controversial (though still wildly popular) For the People Act instead of a slimmed-down package of modest reforms. This wouldn’t be ideologically inconsistent for Republicans, who last month voted against moving forward on the bipartisan infrastructure bill until the text was finished. In order to put maximum pressure on Republicans, we need to eliminate any excuse they can hide behind for blocking voting rights.

Nonetheless we should expect Republicans to filibuster. At that point Democrats should bring up the John Lewis Voting Rights Advancement Act, which the House passed last month. Once again Republicans will filibuster and it’s at that point that Democrats should take one more swing at trying to convince Manchin and Sinema, and any other members of their caucus who may be on the fence, to agree to make changes to the filibuster so that the bill can be passed.

It would be lovely if this were the end of the story, if Manchin and Sinema would have an epiphany and agree to eliminate the filibuster so that the bills can pass by a simple majority – but that is unlikely to happen. When Manchin and Sinema do refuse, it’s time for a good old fashioned talking filibuster. As I’ve pointed out in the past, bringing back the ‘talking filibuster’ doesn’t require any rule changes. It doesn’t require the consent of Manchin or Sinema or anybody else, it just requires some procedural maneuvers by Majority Leader Schumer. This will be painful (there’s a reason we don’t have talking filibusters anymore) but you know what they say: if you want to pass voting rights you’re going to have to sit through a few days of Ted Cruz reading banned Dr Seuss books. Desperate times man, desperate times.

There’s another reason Democrats need to do this as soon as they get back on Monday. That is because government funding runs out September 30th. This provides Democrats with leverage as there will be extra pressure on Republicans to end their filibuster so that the Senate can pass an appropriations bill and avoid going into a costly government shutdown. I have no doubt Republicans would shut down the government to block voting rights, but how long do we think they could keep it going? As workers are furloughed, SNAP benefits dry up, and people can’t get benefits for social security and medicare – eventually Republicans will fold.

We haven’t seen a talking filibuster in awhile so people may not be familiar with how it ends but it’s fairly simple. Once everyone who wants to talk is finished talking, and Senator can “ask for the yays and nays,” on the question and the measure can be advanced by majority vote.

So that’s it right? We’re done? Well, not exactly. Now we’ve got to do it all over again because the pending question that the Senate just voted on – and spent weeks debating – was whether to begin debate. Next the Senate must vote on the measure itself. This can also be filibustered but if we’ve just spent weeks enduring a talking filibuster, its highly unlikely that anyone will have the appetite for another one.

So that’s the path ahead. Is it easy? No. Is it painful? Yes. Is it the only way? It’s looking increasingly likely that’s the case. There is a clear path forward on voting rights. Democrats just need to choose to take it.

Fact Check: House Republicans’ Bogus Claims About Pelosi and January 6th

If you haven’t watched House Republican’s press conference to pre-empt Tuesday’s first hearing of the House Select Committee on January 6th; don’t; that is, unless you’re taking a class in gaslighting, in which case this is a beautiful case study. I don’t want to amplify the lies so I’m not going to link to it, nor am I going to quote from it, instead I’m just going to give you the facts. They are as follows:

The Speaker of the House is not in charge of Capitol security, nor is Senate Majority Leader Mitch McConnell. Capitol security is overseen by the Capitol Police board, which consists of the House Sergeant-at-arms, the Senate Sergeant-at-arms, and the Architect of the Capitol. House Sergeant-at-arms (SAA) Paul D. Irving was appointed in 2012 by Republican John Boehner, and the Senate Sergent-at-arms was appointed in 2018 by Mitch McConnell. The Architect of the Capitol, J. Brett Blanton, was nominated by Trump.

While the SAAs do technically answer to the leaders of each House respectively, the D.C. National Guard does not answer to the Speaker, nor does she have the power to activate or refuse to activate them. They answer to the President, Vice President, Secretary of Defense, or Secretary of the Army. According to reports, on January 4th Capitol Police Chief Steven Sund wanted to pre-emptively call the National Guard but was rebuffed by House Sergeant-at-arms Paul D. Irving because he didn’t like the “optics.” House Republicans have falsly attributed that conversation to Nancy Pelosi and Paul D. Irving. There is no evidence of this. In fact, when the Washington Post asked for evidence to back up this claim, House Republicans sent them a letter that they (meaning House Republicans) wrote to the Speaker two weeks earlier asking why the request for the National Guard was denied, and whether Pelosi was involved in the decision. Last I checked, “I also accused them of it two weeks ago,” is not proof.

Also, in a brilliant piece of gaslighting that, I have to say, even I’m impressed by, Republicans don’t even accuse Pelosi of denying the request to send the National Guard in their letter. Here’s what they actually say:

The SAA “acting on your behalf.” Presumably they say this because, as I mentioned earlier, techhnically the SAA does answer to the Speaker, but it would be unusual for members of Congress to involve themselves in day-to-day operations of Capitol security.

Finally, there was a report issued by Capitol Police’s Intelligence and Interagency Coordination Division (IICD) in the weeks prior to January 6th warning of the possibility of violence, but a Bipartisan Senate Rules Committee Report released in June states that, “IICD did not convey the full scope of known information,” to Capitol Police. Republicans again suggest without evidence that Pelosi was briefed on the report, however that seems unlikely since Capitol Police officers weren’t even made aware of the full scope of the threat. Pelosi’s staff have said that she was not briefed.

What Republicans are doing here is simple: they’re not just twisting facts or being misleading they are blatantly, unabashedly lying. They are fabricating stories out of thin air to gaslight and deflect blame. Don’t let them distract you. We need to get to the bottom of what happened on January 6th, including the security failures, but by falsely attributing the blame to the Speaker when they know damn well that doesn’t make sense, Republicans are showing that they are unserious and not interested in getting to the truth.

Finally, it’s worth noting that Republicans talk about this investigation being “duplicitous” and unneccessary, but what they’re calling for is an investigation into literally the only thing that’s already been investigated: the security, planning and response failures on January 6th. Don’t believe me? That’s the name of the damn report!

jan-6-hsgac-rules-report-1Download

Oh, and one last thing: Elise Stefanik certainly told more important lies than this in her press conference Tuesday but this stands out for just how easily provably false it is. At one point she said, “Nancy Pelosi is the most disliked elected official in America.” A quick hop on over to RealClearPolitics shows that that isn’t true. In fact, that title belongs to the man literally standing next to her

I point this out, not to be petty but because I think this gets at the heart of how untethered to the truth and to basic norms of moral decency this party has become.

What Brnovich Means for Voting Rights

Yesterday, the Supreme Court decided in Brnovich v. the Democratic National Comittee to uphold two Arizona voting restrictions against claims that they violate Section 2 of the Voting Rights Act. The problem with the decision wasn’t that they upheld Arizona’s restrictions against casting a ballot in the wrong precinct, and so called “ballot harvesting,” the problem was that the Supreme Court used the case to severely weaken Section 2, just as many predicted they would.

I’m almost more upset with the DNC than I am the Supreme Court. The DNC should have never brought this case. Arizona’s laws were mild compared to some of the restrictions we’ve seen passed this year, and they should have known that the 6-3 conservative majority would use the case as an excuse to weaken Section 2.

Section 2 of the Voting Rights Act, for those who need a refresher, prohibits any practice that, “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” In his majority opinion justice Samuel Alito takes it upon himself to offer new “guideposts” for judging Section 2 cases. Alito says that, “courts must consider the opportunities provided by a state’s entire system of voting when assessing the burden imposed by a challenged provision,” and that the size of the burden is “highly relevant.” A “mere inconvenience,” Alito says, is not a violation of Section 2.

The most bizarre part of his opinion is the section where he says that courts should look at any law in comparison to what voting was like in 1982, the last time Section 2 was updated.

If I’m reading this correctly, he’s essentially saying that if it’s easier to vote than it was in 1982, when most states didn’t have early or absentee voting, then the restriction doesn’t violate Section 2. I’m no election law expert but this seems like flawed reasoning.

Though he places a high burden of proof on those challenging a voting restriction, he places almost no burden on the state to prove the restrictions are neccessary, simply saying that trying to prevent voter fraud is a “strong and entirely legitimate state interest.” This suggests that a state can simply say they’re preventing voter fraud without providing any evidence, and as long as the claim is even remotely plausible, that’s good enough.

As I’ve said before, not all voting restrictions are the same. Preventing voter fraud is an important and legitimate state interest and states should be able to take reasonable steps to ensure their elections are free from fraud and abuse. But when you make it harder to vote you should at least be able to show some evidence you’re preventing fraud. The Supreme Court disagrees.

Though this ruling mostly deals with disparate impact, or claims a restriction disproportionately effects voters of color, it also weakens discriminatory intent claims. Discriminatory intent is harder to prove becuase not only do you have to prove that a law disproportionately effects voters of color, you have to prove the state intended to discriminate. This is at the heart of the Justice Department’s case against Georgia’s new voting restrictions. The filing claims that Georgia Republicans intended to discriminate against black Georgians, knowing that 9 in 10 of them vote Democrat. People smarter than me have speculated that DOJ focused on discriminatory intent instead of disparate impact because they anticipated yesterday’s ruling, but the ruling also makes discriminatory intent cases harder to prove saying, “partisan motives are not the same as racial motives.” This seems to suggest that you can discriminate against a protected group so long as it benefits you politically.

It there’s any silver lining to this ruling it’s that it’s made it abundantly clear that we need to pass new legislation to protect voting rights. The John Lewis Voting Rights Advancement Act would update the formula for deciding which states are covered under Section 5 of the Voting Rights Act, based on whether they have a history of discrimination and voter suppression. States covered under Section 5 need to preclear changes to their voting laws with the Justice Department. Today, Congressmen Mondaire Jones (D-NY) and Ruben Gallego (D-AZ) introduced a bill to strengthen and restore Section 2 of the Voting Rights Act in response to the Brnovich decision. There’s also the For the People Act, which would set a floor for voter access, making voting easier and more accessible. It would also deal with vote dilution by ending partisan gerrymandering. It would also nullify many of the draconian measures we’re seeing passed in states today.

The Supreme Court has proven they will not protect voting rights, in fact, bringing cases before them only seems to make things work. This is a problem only Congress can solve. In reaction to the Brnovich decision, DOJ put out a statement saying, “the department urges Congress to enact additional legislation to provide more effective protection for every American’s right to vote.” President Biden simply said, “democracy is on the line.” Will Congress protect it?

How to Bring Back the Talking Filibuster

Blah blah blah, “Mr. Smith Goes to Washington,” blah blah blah. Okay now that I’ve gotten that out of the way: with Democrats’ failure to get around a Republican filibuster and bring the For the People Act up for debate in the Senate, the focus has once again turned to the filibuster, and while it’s not likely we’re going to see an end to the legislative filibuster any time soon, reforms such as bringing back the ‘talking filibuster’ may still be on the table. Ever since Senator Joe Manchin seemed to endorse the idea back in March, there’s been article after article pontificating about bringing back the ‘talking filibuster’ but very few articles have gone into what that process might actually look like. How exactly would the Senate go about bringing it back? And what rules would need to be changed? That is what I’ve decided to look into for this article, and frankly, the answer might surprise you.

Contrary to popular belief bringing back the ‘talking filibuster’ wouldn’t require any rule change. We could have a talking filibuster tomorrow and it wouldn’t need the approval of Joe Manchin or Kyrsten Sinema or anyone else besides Majority Leader Chuck Schumer. Let me explain: The current ‘silent filibuster‘ exists because Senators can request what are called ‘holds’ on bringing up legislation. A ‘hold’ is basically letting the majority leader know that you plan to object when they bring a measure to the floor. This begins the process of a filibuster, which takes up considerable floor time, and if the majority leader doesn’t have the votes to invoke cloture and end debate, they usually consider it a waste of time to even introduce the bill. In this way, the mere threat of a filibuster is usually enough to keep the Senate from even considering a bill. That is why filibusters have gone from Senators talking for hours on end to a Senator, or more likely a staffer, simply sending an email.

Because a single Senator can object to moving forward on legislation, a Senator from say, Wyoming, representing less than 600,000 people, can thwart the will of 59 Senators representing 71% of the population, or 233 million people.

The other reason we don’t see talking filibusters anymore is because of the “dual-tracking”system created in the 1970s. This basically allows the Majority Leader to put legislation that is being filibustered off onto a separate track and immediately move on to other business on a new track. That is what happened with the For the People Act yesterday and the January 6th Commission before that. In both instances a cloture vote failed and the Senate moved on to other business. This option is usually quite enticing to a Majority Leader, instead of enduring hours, sometimes days, of delay effecting not only that bill, but everything on the Senate calendar.

But there’s nothing stopping a Majority Leader from bringing up legislation that a Senator has requested a ‘hold’ on and there’s nothing forcing them to immediately file a cloture petition once a bill’s been introduced, as has become current practice. There’s also nothing forcing them to put legislation off to the side once the cloture motion has failed and move on to other business on a new track. Schumer could have instead introduced the For the People Act with a ‘motion to proceed,’ which is debateable, and allowed Republicans to stand there and talk it to death. Senate rules allow any Senator to speak for as long as they want on any matter before the Senate. Once everyone who wants to speak has spoken, the motion could be passed by majority vote and the Senate would begin debate.

Now if you’re saying to yourself, “Wait a minute they just spent hours, maybe days debating! That was just on whether to bring the bill up for debate?” Now you’re starting to get why the filibuster is such an effective tool for minorities to block legislation and why majority leaders usually choose to avoid filibusters at all costs.

Because filibusters are possible on any debateable motion, there are currently two choke-points when considering legislation: one on the ‘motion to proceed‘ and one on the measure itself. Since there are no rules on the length of speeches in the Senate, a filibuster can go on for as long as a Senator is willing to talk. Technically each Senator is only allowed to speak two times on any subject but that is rarely enforced, plus they can offer motions or amendments, both of which are debateable, which means each Senator would get to speak twice on every motion and amendment as well. Obviously you can see how a determined minority could essentially make a filibuster go on indefinitely.

Though the minority is required to have someone constantly holding the floor and talking, most of the burden is on the majority. The minority only needs one Senator on the floor at a time. The rest are free to go home and watch reruns of Three’s Company or do whatever until it’s their time to talk. By contrast, the majority needs to keep nearly their entire caucus on or near the floor in case of a quorum call. A Senator may at any time note the absence of a quorum (51 Senators). The clerk is asked to call the roll and if the majority can’t get at least 51 Senators to the floor by the end of the roll call, the Senate is suspended until a quorum can be established. This only further aids the minority in delaying whatever they’re filibustering. The only thing limiting this as a tactic for delay is the fact that a Senator loses the floor when they note the absence of a quorum.

The majority is not powerless though. Let’s say Schumer decides to bring the For the People Act up again for a vote in late August or early September. Republicans stage a filibuster which goes on for weeks. Government funding runs out at the end of September and Congress needs to pass an appropriations bill by the end of the month in order to avoid a government shutdown. There will be significant pressure on Republicans to end their filibuster so the Senate can vote on the appropriations bill and keep the government open. However Republicans could point out that all Schumer has to do is use “dual-tracking” and put the bill off to the side momentarily in order to pass the appropriations bill, and they wouldn’t be wrong. In this way “dual tracking” takes away one of the biggest incentives a minority may have to end a filibuster: public pressure.

So as you can see, there are no rules that needs to be changed to bring back the talking filibuster, but there’s a reason we don’t have them anymore. They waste a lot of time and place a significant burden on the majority. They are also extremely difficult to break. There are rule changes, however, that would make us more likely to see these ‘talking filibusters’ again by shifting the burden to make filibustering more painful for the minority, and easier for the majority to break.

The first rule change would be to make the “motion to proceed” nondebateable. This would take away one of the two choke-points so the minority would only have one opportunity to filibuster. This way, the minority wouldn’t be able to block a bill from even coming up for debate, as happened with the January 6th Commission and the For the People Act.

Another change would be to get rid of “dual-tracking.” This is more tricky because “dual-tracking” is not an actual rule. It was basically created out of thin air when Majority Leader Mike Mansfield asked unanimous consent to set aside a measure being filibustered and move onto another bill on a new “track.” Majority Leader Schumer would simply need to choose not to use that power and come up with a compelling reason why he is not using it or why it should no longer be allowed.

The final rule change that would make a ‘talking filibuster’ more likely is one that Manchin seemed to endorse for the fisrt time last week, that is, shifting the burden. Instead of it taking 60 Senators to end a filibuster, it should take 41 to maintain it. This would mean that the minority would need to keep at least 41 Senators on or near the floor at all times. If the minority’s numbers drop below 41 the majority could file a cloture petition and, unless there are 41 votes against it, cloture would be invoked to end debate and move forward on the bill. This has the added benefit of making it a little easier for the majority to endure a filibuster, since they would only need 10 or so Senators on or near the floor to maintain a quorum.

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So as you can see, though a ‘talking filibuster’ could be brought back tomorrow without any rule change, there are changes, such as making the motion to proceed nondebateable, getting rid of “dual-tracking” and shifting the burden to invoke cloture, that would make ‘talking filibusters’ more likely and possibly grease the wheels to get the Senate moving again. These small changes would ensure that minorities still have a means to block egregious legislation without giving them a blanket veto over the majority’s agenda. It would also put this matter behind us so we wouldn’t have to read any more articles referencing “Mr. Smith Goes to Washington,” which I think we can all agree, would be a very good thing.