Those of us who had hoped that once Trump was out of office we would not need to worry about our democracy have had to realize that the potential to lose our democracy is not over just because Trump is out of the White House. We are in a very perilous moment. It is even likely, given the structural problems of our electoral system, that we could lose our democracy. I am not being histrionic when I say we could lose our democracy. I wish I were. Here is the reason why.
The Republican Party Only Cares About Power
The Republican Party has become a party in name only. It has been taken over by what used to be a fringe element of extremists. These extremists still believe in Trump and Trumpism (authoritarianism rather than democracy/ white supremacy over a multicultural country). Their highest goal is to stay in power and they are willing to cheat to win if that’s what it takes to be dominant. They don’t give two hoots about maintaining our democracy. The GOP is casting out the last of its moderate, decent members. Mitt Romney was booed by Republicans at the Utah GOP Conference and Liz Cheney is about to lose her leadership role in the House.
This is happening even though the GOP is becoming a less popular party nationally and is trending more and more towards kooky and bizarre Representatives who are pushing the Big Lie that Trump won the election he lost: Matt Goetz and Marjorie Taylor Greene, Josh Hawley and Ted Cruz. As the GOP loses market share, it becomes even more desperate to stay in power and willing to resort to cheating to win elections.
Almost Every Midterm Election the Party in the White House loses Congressional Seats
The Democratic Party has narrow majorities in the House and with a 50/50 party split in the Senate, must rely on Kamala Harris’ vote to break a tie. In midterm elections it is typical for the party in the White House to lose seats in the House and Senate. Typically 27 House seats get flipped and 3 1/2 Senate seats. If that happens in the 2022 midterms the Republicans will regain control of both the House and the Senate. That would result in Kevin McCarthy and Mitch McConnell taking control of these chambers of Congress. Biden’s agenda would be over. Why? Because the Republicans have vowed to keep Biden from passing legislation just as they did with Barack Obama. If they can prevent good legislation from passing, if Biden does not succeed, the Republicans can benefit. Americans usually blame the party in the White House when things do not go well. If Republicans can defeat Biden’s agenda, they can say, “See, he didn’t help you have better lives. Try us again instead.”
Republican Party Already Has Outsized Power in Congress
The Senate has a built in bias that favors Republicans getting elected. The bias is built into the Constitution. Rural states like Wyoming or Montana each get 2 Senators. But California and New York with much greater populations also get just 2 Senators. In other words, the more rural red states represent a far smaller number of Americans. 41 million more Americans living in blue states are represented by fewer Democratic senators. If this were really a representational democracy, people living in blue states would have much greater representation in the Senate than they do now.
This underrepresentation is unfair to 41 million Americans. In the future, unless we pass legislation that addresses this problem, 70% of our Senators will represent only 30% of the US population for decades to come. This is a structural problem baked into the Constitution by the Founding Fathers who could not have predicted that the population density in certain states would cause such an imbalance giving rural areas in the US more representation than more densely populated states on either coast.
The House is a bit different from the Senate but the Republicans still have a huge advantage getting their party members elected. House seats are determined by states based on district lines that are drawn by the party in power in each state. Republicans have gained power in state houses across the country by rigging the system to over represent Republicans. They will continue to do so as long as they maintain control of state legislatures. Dems control only 18 state legislatures. In the election in 2020, the GOP held onto their power across the US in state legislatures. Republicans control 30 state legislatures.
Using gerrymandering and voter suppression the Republicans have tilted power in the House in their favor. North Carolina is a good example of how they do it. North Carolina is close to a 50/50 state, Democrats to Republicans, by population. But by using partisan gerrymandering the Republican led state legislature of North Carolina has arranged to have 8 Republicans and only 5 Democrats representing their state in Congress. Now multiply that by every state with a Republican state legislature and you quickly see how Republicans are able to maintain their over-representation in the House.
There is a Solution
What is the solution? The solution is HR1 or S1, the For the People Act. It is sweeping reform that creates a fair playing field. The bill requires that new district lines be drawn using independent commissions. It would end partisan gerrymandering. The bill also reforms money in politics and exposes the sources of “dark money”. It would make it easy for people to vote not harder as the Republican state legislatures are trying to do with the passage of 361 voter suppression bills in 47 states that are calculated to make voting harder for Democrats (people in cities, young people, people of color).
But There is a Problem
The For the People Act will not get passed unless the filibuster is modified or done away with.
Why?
The current filibuster rule requires a super majority of 60 senators to pass legislation like the For the People Act. There is NO WAY the Dems will get 10 Republicans in the Senate to vote for that bill. Why? Because it would dismantle the power they currently have. Remember that Mitch McConnell has vowed to keep Biden from passing legislation just as he did with Obama. The bill would also make it improbable that the GOP would hold onto power in the House. Their goal is the opposite- to hold onto power in any way they can.
There is a Way Around the Problem
The Dems could pass this legislation into law nonetheless.
How?
By using the so called “nuclear option” to alter the rules surrounding the filibuster requirement of a super majority. Mitch McConnell invoked the “nuclear option” for judicial and executive appointments. The nuclear option can be invoked with a simple majority vote. That’s what Mitch did after stabbing Barack Obama’s Supreme Court pick, Merrick Garland, in the back by refusing to let his nomination be called for a vote. Once McConnell took charge in the Senate, he changed the filibuster rule so that the party in power in the Senate only needs a simple majority to approve judicial appointments. That’s how he was able to jam thru all those judges when Trump was president. Of course the Dems can make judicial and executive appointments now as well with a simple majority. Once the filibuster rule is altered it benefits whichever party has the power in the Senate.
The filibuster is NOT written into the constitution. When our country first began, majority rule was the way legislation was passed in both the House and the Senate. The House still passes legislation using a simple majority vote. It is the Senate that has become the trainwreck when it comes to passing legislation. The 60 vote super majority to pass most legislation has resulted in a lot of gridlock and the country has become more and more politically tribal partly as a result of the failure of our government to provide people with what they need to be able to get ahead in America- affordable school, affordable healthcare and much more.
Mitch McConnell deserves the blame for making it next to impossible for a Democratic president to pass legislation. But once gridlock occurs, CONGRESS as a whole (both Dems and Republicans) usually get blamed for it. And if Americans don’t have better lives the party in power gets the blame. The real blame lies with the Republicans at this point. Because of their track record with Barack Obama we know that their goal is to stand in the way of the success of ANY Democratic administration with the hope that the electorate will blame the party in power and vote for the GOP in the next election.
McConnell’s game plan is to prevent Biden from passing legislation to help Americans. He is pulling the same stunt on Biden that he did with Obama. The difference is that this administration, led by Biden, knows what Mitch is up to and Biden is a pragmatist. Biden, Schumer and Pelosi know that unless the filibuster rule is modified or eliminated, the Dems will not be able to pass numerous bills Biden promised the American people when he ran for president. Many of these bills have already been passed by the House (gun regulation, ease of voting, new ways of policing, jobs creation linked with climate change legislation, new ways to think about infrastructure and more) and all they need is Senate passage. They are extremely popular with the American people.
For these bills to become law, however, Biden MUST change the filibuster rule. I think the game plan of the Biden team is to attempt to show the American people that the Republicans are forcing Biden’s hand. The Dems will show that Republicans will blockade and obstruct all the great legislation Americans are yearning for. To mark their point, the Dems will introduce legislation with the expectation that the Republicans in the Senate will obstruct over and over again, proving to the American people that the GOP is not on their side. Once they have made their point to show why they have to modify the filibuster, I believe they will use the nuclear option. But only if two key senators are on board.
There are numerous ways to modify the filibuster. Senators Joe Manchin and Kristin Sinema will have a big say in how it is done and IF it is done.
Joe Manchin seems to be onboard with three key elemental protections. Here is what he has said:
“The main thing is, being a former governor and a former secretary of state, we should have accessibility at the polling place, you should have fairness in the voting process, and it should be secured,” Manchin said. “Those three things have to be done.”
One part of For the People Manchin likes is the restoration of the Voting Rights Act of 1965. The Voting Rights Act was gutted in 2013 in a ruling by the U.S. Supreme Court.
People who know Manchin say he might be convinced to modify the filibuster if he can be seen as the hero who saves our democracy. It is rumored that he will not run again. If he hears from his constituents that they want him to take this role, perhaps he will do it. Mitch McConnell has said he is 100% focused on making sure Biden’s agenda is thwarted. There will not be 10 Republican votes for this bill. The filibuster will be invoked by the Republicans. The stage will be set for Manchin to be the hero.
How to Modify the Filibuster
The filibuster rule has been altered before to allow passage of certain types of bills. Bills affecting the budget don’t need a super majority, for example. They are subject to something called “reconciliation”. Democrats were able to pass the Covid Relief bill with a simple majority thanks to reconciliation. The Dems will probably also have to use reconciliation to pass the infrastructure bill since the Senate parliamentarian, a young woman who has the awesome power of interpreting the Constitution to tell everyone what can and cannot be passed under the rules, has clarified/decided that there can be more than just one budget-affecting bill passed annually using reconciliation as the way to pass it with a majority vote. That’s lovely, but it’s not enough.
There is just no way to say the For the People Act fits under the umbrella of reconciliation. To get passage the Dems will have to modify the filibuster rule some other way. I see two good ways to do that.
First way. There could be a carve out for legislation affecting our democracy. That modification would not eliminate the filibuster, merely modify it. That might help Joe Manchin and Kristin Sinema who have vowed not to eliminate the filibuster.
Second way. Another approach would be to return to the talking filibuster. Call it the Mr. Smith Goes to Washington modification. A return to the talking filibuster with two key changes:
- The talking filibuster would be available for the oppositional minority to use to express the reason for their opposition, but the amount of time to talk would need to be limited so that one Republican senator could not pass the baton to another and another Republican senator, allowing indefinite obstruction once again.
- Once the time limit was up there would need to be passage by majority vote, not a super majority. Again, this modification would help Manchin save face because it would not eliminate the filibuster. In fact it could be characterized as a RETURN to the good old days when the filibuster was a way to voice opposition. Note: These days any Senator can trigger a filibuster by phoning it in. Literally. No need to even show up and say why he or she opposes the legislation. Returning to the old style talking filibuster would be a painful imposition on these lazy Senators who hardly even show up to be on C-Span anymore and spend most of their time wooing donors.
I think this will turn out to be the way of choice to modify the filibuster, IF it gets modified, because it looks like it is a return to the good old days.
The Dems have to accomplish this alteration fast if they hope to preserve our democracy.
JULY 31st is the Last Clear Chance to Save Our Democracy!
We only have until July 31st for the Senate to vote (by simple majority) to use the so called “nuclear option” to alter the filibuster once more to allow the passage of the For the People Act.
After July 31 Congress has a recess for the month of August. The states will receive final census data in September. After that, the state legislatures will be racing to divide up the districts and Republican led legislatures will be drawing the lines the way they did in North Carolina, to get maximum Republican representatives into the House. Those lines, once redrawn, could be challenged by a lawsuit, sure, but it would be like trying to clean up in aisle 3, aisle 6, aisle 10 and on and on instead of avoiding this big mess in the first place. The Supreme Court has held that racial gerrymandering will be struck down, but the Court has not banned partisan gerrymandering (gerrymandering based on political affiliation). The Court might allow partisan gerrymandering to stand.
July is not a long way off. After that, our next chance for fair maps will not come until after the next Census which is 10 years from now. This is why the current moment is so perilous.
What Could Do the Trick?
There are some really effective groups that are already working to pressure constituents in West Virginia and Arizona to tell these two Senators to stop standing in the way of altering the filibuster. They are getting people to write letters and make calls to Joe Manchin and Kristin Sinema. Currently those two Senators are hearing mainly from Republican constituents in their state who do not want them to alter the filibuster. That must change. If these two Senators hear from constituents and groups who want fairness in our legislative system, they will be able to step up to do the right thing and defend themselves against criticism from the right. Call them. Especially if you live in Arizona or West Virginia.