Today’s Edition: A glimmer of hope.

December 9, 2021

          Let’s start on a positive note. On Wednesday, a glimmer of a sliver of a smidgen of hope appeared on the horizon for voting rights legislation. Politico reported in cryptic terms that Senate Democrats were working on unspecified rules changes that would allow a floor vote on one or more of the voting rights bills that have been foundering on the shoals of the filibuster. Senator Tim Kaine is reportedly leading a reform effort that does not include abolishing filibuster but that would somehow create a path for passage of the Freedom to Vote Act and/or the John Lewis Voting Rights Advancement Act. Per Politico, Kaine expressed “cautious optimism” that the rule changes could be implemented by January, with passage of voting right legislation following shortly thereafter.

          I was immediately skeptical of the report because of the steadfast opposition of Senator Manchin and Sinema to elimination of the filibuster.  But the The Hill reported that Manchin was quietly lobbying Republicans to support the rule changes. See The Hill, Manchin quietly discusses Senate rules changes with Republicans.” Senator Tester confirmed the reports by saying that Manchin and Sinema were “absolutely” open to the rule changes under discussion.

          We should accept the above reports at face value and hope for the best. It would be an extraordinary feat if Biden could sign voting rights legislation within the first year of his presidency. But we should not relent in our efforts to win without the benefit of the John Lewis Voting Rights Act or the Freedom to Vote Act. While Senator Manchin’s effort to persuade Republicans is laudable, recall that he has been working for more than two months to convince his GOP colleagues to support the Freedom to Vote Act. Manchin was a co-author of the Freedom to Vote Act, which Democrats diluted until it was consistent with Manchin’s tepid view of the right to vote. To date, Manchin has not convinced a single Republican to support the Freedom to Vote Act. It is unclear why anyone believes Manchin will be more successful in convincing his Republican friends to support rules changes that will circumvent the filibuster.   

          The most important point is this: We must simultaneously fight like hell to pass voter protection legislation and refrain from predicting disaster if we do not pass such legislation. Of course, it would be better to pass the Freedom to Vote Act, but if we do not, the fight is not over. Please don’t tell anyone that it is, and don’t listen to anyone who tells you that we are doomed if we do not pass voting rights legislation in 2022. We should be optimistic but must temper that optimism with realism. The likelihood of passing election reform in 2022 is remote. If it happens, we should celebrate in the streets. If it doesn’t, we should redouble our efforts by taking to the streets to encourage historic levels of voter registration and turnout.

The Senate votes to override vaccine mandates for employers with more than 100 employees.

          The headlines (and stories) are confusing about a vote in the Senate on Wednesday regarding vaccine mandates for large businesses. One headline read “Senate votes to nix Biden's vaccine mandate for businesses.” The headline may be literally true but is misleading. The Senate vote will not affect the national vaccine mandate for large businesses. Here is the short explanation: The Senate was voting on a resolution to overturn an OSHA rule requiring employers with more than 100 employees to mandate vaccinations for their employees. Congress can overturn an administrative rule by majority vote—but the president can veto the resolution.

          Biden will veto the resolution if it makes its way to his desk—which it won’t. In order for the resolution to pass, the House must also pass the resolution—which it won’t. So, the OSHA rule will remain in effect until a court enjoins its implementation—which a court did yesterday.  See CNBC, “U.S. court temporarily halts Biden's vaccine mandate for federal contractors nationwide. The fate of national vaccine mandates will be decided in Court, not in Congress. The vote in Congress thus amounted to performance art.

          That said, two Democratic Senators—Manchin and Tester—voted with 50 Republicans to overturn the OSHA regulation. Manchin cynically said that he favored incentivizing businesses to encourage vaccines rather than forcing vaccine mandates on businesses. That is a swell sentiment—unless some state governments do everything in their power to discourage vaccinations. See, e.g., Florida governor signs sweeping laws against vaccine, mask mandates | Courthouse News Service.

          Meanwhile, three states (NY, ME, and NH) have called out the national guard to support their overwhelmed hospital systems. See CNN, “Three Northeast states deploy National Guard amid medical capacity crisis due to pandemic.”  

Don’t panic about reports of a “constitutional convention” called by the states.

          At least once a week, I receive an email from a reader asking about a fundraising appeal to prevent Republican states from calling a constitutional convention. Sadly, progressive organizations are over-hyping the possibility of a constitutional convention to fundraise. They are incorrectly suggesting that a “rogue” constitutional convention is imminent and that it will pass authoritarian amendments to the Constitution. Neither suggestion is true. But this story will be getting more traction in the coming days because a national conservative group of state legislators has renewed their commitment to call a constitutional convention. See The Hill, “Conservatives prepare new push for constitutional convention.”

          Here is why a “rogue” constitutional convention will not be called and why, if it is, there will be no “authoritarian” amendments to the Constitution. In order for the states to call a constitutional convention, the legislatures of two-thirds of the states—34—must call for the convention. Republicans control both chambers in only 30 state legislatures—and it is exceedingly unlikely the GOP will ever control both houses in 34 state legislatures.  So, the likelihood of a constitutional convention called by Republican states legislatures is exceedingly unlikely.

          But let’s assume 34 state legislatures call for a constitutional convention. In order for any amendment to pass, it must be approved by three-fourths—38—state legislatures. Democrats control both chambers in 17 states and one chamber in 3 states, so no constitutional amendment could pass unless at least 8 states under Democratic control approve the amendment. If a constitutional amendment passes with support from 8 states under Democratic control, the amendment will not do the draconian things predicted by fearmongering fundraisers.

          That said, we should not relent in our efforts to expand Democratic control of as many state legislatures as possible. Those legislatures can do plenty of damage without calling a constitutional convention.

Concerns over inflation disappear when Congress passes defense budget.

          A primary argument from Republicans and their Democratic sympathizers who oppose the Build Back Better bill is that it will contribute to inflation. Congress will pass the $768 billion defense budget bill this week.  The price tag for the Build Back Better bill is $1.7 trillion over ten years. The defense bill is a one-year appropriation. Over the next ten years the U.S. will spend $9.2 trillion on defense—more than five times the spending in the Build Back Better Bill over the same ten-year period. See “Opinion | Lawmakers who fret about spending quietly pass hundreds of billions for ’defense’.”

          Spending on childcare, expanded Medicare benefits, and increased wages for home healthcare workers has roughly the same inflationary impact on the economy as spending on drones, tanks, and military bases. And yet, we heard not a whimper of protest from the inflation hawks in Congress. If people believe that congressional spending contributes to inflation (a dubious proposition), then they should be concerned about all congressional spending, not just spending on social programs.

Concluding Thoughts.

          There are many other stories swirling in the news cycle today: Insurrectionists fighting the House Special Committee on January 6th, the reactionary majority on the Supreme Court suggesting that states must provide funding to religious schools, battles over redistricting, and Russian military movements near Ukraine. It feels like we have been in an accelerating news cycle for five years. The velocity of the news stream is making it increasingly difficult to maintain calm and discern what is important.

          Since the early days of this newsletter, I have urged my family (and readers) to maintain perspective by taking a long-term view. If we focus on the last four hours, it is easy to work ourselves into a frenzy. But if we measure our progress over the long term, we increase the likelihood that we will remain in the fight until we achieve ultimate victory.

          Dan Rather wrote about his memories of the attack on Pearl Harbor. His essay, Dec. 7, 1941 (and today), is worth your attention, but his conclusion speaks to us all during these fraught times. Rather writes,

Victory and justice are never assured. We cannot always count on happy endings. But successes are possible. Perseverance is necessary. And even when the future seems bleak, we should not succumb to pessimism. I think those who were forged in the times of Pearl Harbor and were able to see the war to victory were forever shaped by a spirit that from the soils of anguish can bloom seeds of hope. I call upon those memories many times to return me to equilibrium. Especially on this day. December 7. A day that not only lives in infamy, but a day that also spawned a repudiation of despair.

          Well said. Each of us must have a point of equilibrium that anchors us in turbulent times. When you can, disconnect from the news stream and return to your point of equilibrium. We are engaged in a long-term fight for the soul of democracy—as is every generation. Let’s not bemoan that fact but embrace it. Keep your eyes on the horizon—not on your iPhone—and we will have a much greater chance of success. Indeed, we cannot fail.

          Talk to you tomorrow!