The world’s most anti-democratic body?

January 5, 2022

[Audio version here.]

          And just like that, Senator Manchin killed any hope of a carveout for voting rights from the filibuster. As before, Manchin’s statements to the press are evasive as he attempts to make his unreasonable positions seem reasonable. On Tuesday, Manchin warned that “Anytime there's a carve out, you eat the whole turkey,” and said that modifying the filibuster would be a “heavy lift.” Manchin’s resort to homespun cliches is intended to conceal the fact that he is assisting Republican efforts to disenfranchise millions of Americans. There is no reason for further delay. Nothing that Manchin says should be trusted. Only one word to be uttered by Manchin will matter: “Yea” or “Nay” when Schumer attempts to break the filibuster on Martin Luther King Day.

          We should not be distracted by Manchin’s promises to consider “all options,” such as a “talking filibuster” or requiring that forty-one Senators remain on the Senate floor to sustain the filibuster. Those procedural smokescreens merely conceal the deeply anti‑democratic nature of the filibuster, which is layered on a deeply anti-democratic institution. The Framers intended that a handful of small states have disproportionate power in the original Senate in 1789—the cost of securing their agreement to adopt the new Constitution. Two-hundred-and-forty years and thirty-seven states later, the anti‑democratic nature of the Senate has been amplified in ways the Framers could not have imagined—even before the imposition of the filibuster.

          Without the filibuster, fifty Democratic Senators represent 190 million Americans, while the fifty GOP Senators represent 140 million Americans. Thus, Senators who represent 50 million fewer Americans than the majority party can prevent passage of legislation even in the absence of the filibuster. With the filibuster, it is possible for Senators representing only 34 million Americans (11% of the population) to prevent any legislation from passing—even if Senators for the other 300 million Americans are in favor of a bill. Whatever protections the Framers intended by giving small states greater sway in the Senate, they could not have intended the ludicrous outcomes possible under the filibuster.

          So, please don’t be fooled when you hear proposals to return to a “talking filibuster.” Measure the minor inconvenience of a talking filibuster on the bladders of aging Senators against the stranglehold on democracy imposed by the filibuster, where 10% of the population can impose its will on 90% of the population. The Senate is frequently (and erroneously) described as the “world’s most deliberative body.” But with  the filibuster, it is a strong contender for the title of “world’s most anti-democratic body.” Tell a friend. Better yet, tell your U.S. Senator. Instructions here: Chop Wood, Carry Water 1/3.

Fighting the unholy alliance of disinformation and insurrection.

          The insurrection on January 6th was fueled by disinformation peddled by the right-wing media and funded by corporate America. Corporations support disinformation generators like Fox News through advertising dollars and support the Sedition Caucus through political donations. We must push back against both by leveraging our consumer spending and political voices.

          On Tuesday, the House Select Committee revealed that Fox News personality Sean Hannity was advising Trump before and after the January 6th insurrection. See Politico, “Sean Hannity tried to dissuade Trump from Jan. 6 strategy.” Hannity is free to serve as a presidential adviser if he wants, but Fox News presents him as a journalist. In that role, Hannity has spread propaganda about January 6th he knows not to be true. While telling his viewers that “groups like antifa” were responsible for the assault on the Capitol, Hannity was begging Trump to tell his supporters to stop the assault.

          The dual role of Hannity as an adviser to Trump and as a make-believe journalist is a grave violation of journalistic ethics and a fraud on the American people. But Rupert Murdoch doesn’t care, neither do the Fox News advertisers. One of the reasons Hannity is immune from pressure by advertisers is that Fox News receives a share of the “basic cable” fees paid by cable subscribers like you and me. Even if you don’t watch Fox News, if you have cable that carries Fox News, you unintentionally support Sean Hannity’s dual roles as Trump confidant and news-provocateur. One way to pierce Hannity’s immunity is to join a campaign to have Fox News removed from your basic cable package. Details are at UnFox My Cable Box.

          And as noted yesterday, American businesses have broken their pledges to cease political donations to the Sedition Caucus. Judd Legum at Popular Information has released his own excellent analysis of which companies have honored their pledge and which have breached it. See Judd Legum, Popular Information, “Seven major corporations pledge not to support GOP objectors in 2022.” Check out the list and let your favorite airline, accountant, and drug manufacturer know how you feel about their continued support for members of the Sedition Caucus.

          Finally, I received a lot of enthusiastic feedback from readers about the suggestion to fill the editorial pages of newspapers with “letters to the editor” that counter the lies of the right-wing disinformation machine. One reader who has successfully transitioned to a full-time commentator began her career by writing op-eds. She recommends The Op-ed Project (“Whoever tells the story, writes history.”) I know from email correspondence with hundreds of readers that you have the skills and passion to write op-eds for the editorial pages of major newspapers. Try it! And don’t be surprised if my next response to you is, “You should turn that email in to an op-ed. Check out The Op-ed Project.”

          Another reader suggested the website “For the Love of Democracy: Speak Up!” The website offers an interesting twist: You identify an issue that interests you, and you will receive a “draft” to be modified and put into your own words—sort of like the “talking points” for calling Senators or letters created by text-bots. If you are interested in writing letters to the editor but are hesitant to do so, check out For the Love of Democracy! for a jump start.

          We are in a war against disinformation and part of our strategy is to overwhelm lies with truth. If thousands of readers of this newsletter join the conversation in major media outlets, that will make a difference.

One good thing that happened today.

          Trump had planned to hold a press conference at Mar-a-Lago as the House was commemorating January 6th with a moment of silence. The idea was an obscenity and an insult to the Constitution and those who lost their lives on January 6th. Trump’s advisers persuaded the usually unpersuadable Trump that holding the press conference was beyond the pale of decency and humanity. I take hope from this development. It says nothing about Trump, but it says that those around him understand the horrible truth of January 6th and want it to fade into the background. But Trump isn’t going to let that happen in 2022, forcing every Republican to embrace a credo that asserts the assault on the Capitol was a good thing for democracy. They know otherwise, and will hold their noses as they give lip service to Trump’s lies, hoping that the voters will be distracted by Critical Race Theory. Trump is the GOP’s greatest strength—and its Achilles’ heel.

Two court rulings on military mandates for Covid vaccines.

          Two court decisions are setting up a fight in the Supreme Court over the military mandate for coronavirus vaccines. Before Covid-19, members of the military were required to receive nine vaccines to prevent the spread of infectious diseases among the troops. No one complained. When the military added a tenth vaccine to that list—for Covid-19—Republican governors howled in protest because . . . well for no good reason given the pre-existing requirement of nine mandatory vaccines. Several GOP governors said that members of the state national guards could refuse to obey the order for mandatory vaccines. A federal judge (Stephen Friot) in Oklahoma issued a strong opinion that followed existing precedent saying that civil courts should not involve themselves in matters of military order. Judge Friot wrote,

          The vaccine mandate to which the governor objects is the one — in addition to the nine that already apply to all service members — intended to protect service members from the virus which has, in less than two years, killed more Americans than have been killed in action in all of the wars the United States has ever fought. The court is required to decide the case on the basis of federal law, not common sense. But, either way, the result would be the same.

          But a group of Seal Team Six members sued the military in a Texas federal court, where a Trump appointee (Reed O’Connor) issued an injunction against the mandatory Covid vaccine. The opinion is egregiously bad—in fact, it is so bad that if it were a brief written by a lawyer, the lawyer would likely be sanctioned for misleading the court by failing to cite controlling Supreme Court precedent. See Ian Millhiser in Vox, “One of America’s most partisan judges just gave Navy SEALs permission to defy a direct order.” For lawyers out there, Ian Millhiser’s take-down of the opinion is must-read. The Fifth Circuit Court of Appeals (or the Supreme Court) should rebuke Judge O’Connor for knowingly omitting controlling authority in his opinion.

Concluding Thoughts.

          After writing this edition of the newsletter, my personal reaction is, “We are in the thick of the fight.” I have been buoyed by the reaction of readers who say that they are resolving anew to engage in political activism in the face of dire warnings that the end is nigh. The next few days may be tough. The DOJ has announced that Merrick Garland will make a statement to the entire Justice Department on Wednesday. While I hope I am wrong, I expect Merrick Garland will likely explain his inaction in prosecuting the leaders of the insurrection with bromides about “following the facts” and “need for confidentiality.” Watching counter-demonstrations by wannabe insurrectionists on Thursday will be difficult. And we will likely learn on Friday that the Supreme Court’s reactionary majority doesn’t believe the federal government has the power to stop a pandemic that has killed more Americans than all U.S. military battles combined.

          None of the events of this week should discourage us. We have seen that Merrick Garland has little inclination to act boldly in a time of crisis. We know that angry white males with limited prospects like to parade with guns in front of local television crews desperate for content. And we know the reactionary majority will exalt religious freedom above all other rights guaranteed in the Constitution. All of that is old news. But the future is ours—if we are bold enough to claim it. I am hearing from readers that they are ready to go “once more into the breach” in service of democracy. As always, we have every reason to hope, but no reason to be complacent.

          Talk to you tomorrow!