Two dysfunctional systems

Since the start of the year, much of the world?s attention was focused on two trials on opposite sides of the world. In one, a brave truth-teller was persecuted by a vengeful administration after stirring up his patriotic followers in protest against tyranny. In the other, Donald Trump was acquitted by the Senate.

How to avoid disaster in the midterms

“The trick, says Senator Cory Booker of New Jersey, will be lowering the expectations of an impatient Democratic base that is eager to press the party’s slim advantage by forcing votes on issues like Medicare for All or by making structural changes that could secure the party’s power. Booker says there aren’t enough votes to pass statehood for Washington, D.C. and Puerto Rico right now, nor for expanding the Supreme Court. He’s taking his own lesson from the early Obama years.”

History suggests that Joe Biden and the Democrats are going to have a tough two years and a disaster in the midterms. Here?s their plan to avoid that.

It’s not stimulus, it’s relief

Paul Krugman in the NYT: “While coronavirus relief legislation is often called ‘stimulus,’ that’s not what Biden is trying to do. The economy in 2021 isn’t like the economy in 2009, depressed because there isn’t enough demand; we haven’t fully recovered because we’re still on partial lockdown, with some activities curtailed by the risk of infection.

“The goal of policy in this situation isn’t to pump up spending, getting people to eat out and travel. It is, instead, to help people, businesses and local governments get through the difficult period until widespread vaccination lets us go back to business as usual.

“And we know, as certainly as we know anything in economics, that the economy will be depressed at least into the summer and probably beyond. The last package didn’t provide remotely enough aid to get us through those months. Asking whether that package boosted the economy therefore completely misses the point; it’s obvious that America needs another round of disaster relief.”

Unity is a fine goal, but don?t expect much cooperation.

Why there will be no pandemic relief bill: blame Mitch

Paul Krugman in the NYT: “You might think that Republicans would set the plutocratic imperative aside when the case for more government spending is compelling, whether it’s to repair our crumbling infrastructure or to provide relief during a pandemic. But all indications are that they believe — probably rightly — that successful government programs make the public more receptive to proposals for additional programs.

“That’s why the G.O.P. has tried so frantically to overturn the Affordable Care Act; at this point it’s clear that Obamacare’s success in cutting the number of uninsured Americans has created an appetite for further health care reform.

“And that’s why Republicans are unwilling to provide desperately needed aid to economic victims of the pandemic. They aren’t worried that a relief package would fail; they’re worried that it might succeed, showing that sometimes more government spending is a good thing. Indeed, a successful relief package might pave the way for Democratic proposals that would, among other things, drastically reduce child poverty.”

Why Senate Republicans won’t help Americans in need.

Reforming the filibuster

Many activists will not tolerate a Democratic-controlled Senate that allows Republicans to block civil-rights legislation next year.

There is little doubt that if Democrats retake the Senate and the White House, the Republicans will be as obstructionist as they were under Obama. So if want to get anything done, they will have to face the issue of the filibuster. Mitch McConnell has warned the Democrats not to touch the filibuster but he is, of course, a unprincipled reptilian whose brain consists entirely of one giant amygdala, and who consequently is only interested in one thing: power. His open hypocrisy in stating that he would fill any SCOTUS vacancies that occur this year (after his refusal to bring Merrick Garland’s nomination up for a vote) amply demonstrates this fact. So we should ignore whatver he says about the filibuster. Rather than eliminate it entirely. I would like to propose a reform that would retain it while preventing Republican obstructionism while making the Senate more representative of the people.

Back in 2007, the Republicans controlled the Senate and had not yet eliminated the filibuster for judicial nominations. The Democrats used it often (but not nearly as often as the Rublicans were to use it during the Obama years) and came under fire as “obstructionists.” I wrote a piece urging the Democrats to take the offensive and defend themselves on the grounds that they represented the majority. At that time, 42% of Americans lived in states with two Democratic Senators, 40% in states with two Republican Senators, and 18% with one of each. Today, those figures are 44%, 40%, and 16% respectively (independent senators are counted with the party they caucus with).

The Democrats are in a good position to recapture the Senate in November. If so, their edge in constituents represented would likely increase. If they want to accomplish anything (assuming that they hold the House and gain the White House), they will have to do something about the filibuster. There is some debate concerning the constitutionality of the filibuster and they might well be tempted to abolish it altogether but I would like to suggest a better idea: on cloture votes (and only on cloture votes), weigh each senator’s vote according the population of their state and if the votes against cloture represent a majority of the US population, the vote fails. Pragmatically, it would make it virtually impossible for the Republicans to block anything and it can be defended as making the Senate more (small d) democratic. If the filibuster is a protection of minority rights, then this is one on steroids. In theory, a minority of only 18 Senators (representing the nine most populous states) could block a bill’s passage. I would also suggest that the filibuster as reformed be reinstated for judicial nominees.

Granted, there are one serious objection to this idea. The Constitution states (Art. I, sec. 3) that “each Senator shall have one Vote.” However, I think this can reasonably be construed to refer to votes on the passage of legislation and not to procedural votes such as closure. After all, the Constitution also says (Art. 1, Sec. 5) that “Each House may determine the Rules of its Proceedings.” The courts have given great deference to Congress’s procedural rules, holding them beyond judicial inquiry. The lead case is United States v. Ballin, 144 U.S. 1 (1892), where the Court stated

“The Constitution empowers each house to determineits rules of proceedings. It may not by its rules ignore con-stitutional restraints or violate fundamental rights, and thereshould be a reasonable relation between the mode or methodof proceeding established by the rule and ttie result which issought to be attained. But within these limitations all mat-ters of method are -open to, the determinatio. of the house,and it is no impeachment of the rule to say that some otherway would be better, more accurate or even more just. It isno objection to the’validity of -a rule that a different one hasbeen prescribed and in force for a length of time. The powerto make rules is not one which once exercised is exhausted. Itis a continuous power, always subject to be exercised by thehouse, and within the limitations, suggested, absolute andbeyond the challenge of any other body or tribunal.” 144 U.S. at 5.

But challenging weighted cloture votes presents a special problem. If the Democrats invoke cloture, the bill goes to a vote and then to the President. By the time a court can hear the case, the law in question will have duly passed both houses and been signed by the President, all in accordance with the Constitution. I can’t imagine any court invalidating a statute because it thinks the Senate should have debated longer. The case would be dismissed as moot. The courts could invoke the exception to mootness that it did in Roe v. Wade, i.e., that the issue was “capable of repetition, yet evading review.” However, even if the courts did ultimately strike down the procedure, the Democrats could then eliminate the filibuster altogether.

An idea worth considering, I think.