Today’s Edition: “Don’t believe everything you read on the internet.”

October 19, 2021

          As the 2022 midterms approach, congressional members of both parties are announcing that they will not seek reelection, either because they are retiring or seeking a different office. As explained in Ballotpedia, 27 members of Congress have announced they will not seek reelection (as of October 18th). Of those 27 members not seeking reelection, 13 are Democrats and 14 are Republicans. Based on those numbers, the political press is predicting a midterm meltdown for Democrats. Headlines on Monday included The Hill, “Democrats face grim political reality in midterms,” Vox, “How screwed are Democrats in the Senate?”, and Politico, “House Dem retirement rush continues with 2 new departures.” Politico included the following topline analysis of the retirements: “They are a sign of the party’s diminishing hopes of keeping the House majority after next year’s midterm elections.”

          Here’s my advice: Don’t believe everything you read on the internet.

          The immediate cause of Monday’s flurry of doom saying was the retirement announcements of two senior Democrats in the House. A reader sent a note with the Politico story (above) and offered the following analysis of Politico’s assessment of the retirements:

          The Politico piece below is a typical pundit's repetition of shopworn shibboleths about elections. Yes, senior representatives retiring is usually not a good sign.  But these two guys are 68 and 81, each with 13 terms in office. More importantly, both districts voted 69% Democratic in 2020, meaning these two retirements do NOT presage any ‘sign of the Party's diminishing hopes of keeping the House majority.’  Instead, they represent good opportunities to groom two younger Democrats more in tune with the times.

          Politico noted that neither Democratic district was in danger of flipping, but put the following negative spin on the story: “But the departure of such senior Democrats does not inspire confidence in the party’s midterm prospects.” So, there you have it! Despite the fact that the retirements are in “safe” seats, they “do not inspire confidence.” The goal of the Politico reporter was to write a story about the peril faced by Democrats, notwithstanding the facts. Mission accomplished!

          Let’s look at the facts. The Ballotpedia entry (cited above) reports the following:

Members of Congress not seeking re-election           

               Democrats      Republicans

Senate         0                        5

House       13                        9

Totals       13                      14

          The 13 Democrats not seeking reelection are composed of 5 members who are running for other offices and 8 who are retiring. Do these numbers suggest a “Democratic rush to retirement” as stated by Politico? Hardly. The numbers of House Democrats not seeking reelection in each cycle from 2012 to 2020 were: 23, 16, 16, 18, and 9. During that same period, the number of House Republicans not seeking reelection were: 20, 25, 24, 34, and 26. So, the current number of Democrats not seeking reelection—13— is on the low end of retirements by both parties over the last decade.

          There is one striking imbalance in the above numbers. In the Senate, 5 Republicans—10% of the GOP caucus—will not seek reelection. You would never know that fact from Vox’s headline, “How screwed are Democrats in the Senate?” The Vox analysis does not bother to mention the current retirement announcements by Republicans. Moreover, as with other articles predicting Democratic disaster in the midterms, the article discusses only the challenges and deficits facing Democrats without acknowledging that the Republican Party faces existential threats to its existence. Obviously, if you examine only the problems facing one party in a competitive situation, you will create a distorted picture of reality.

          As always, I am not trying to minimize or dismiss the problems faced by Democrats. They are many and daunting. But we are in for a year-long journalistic frenzy in which reporters write the easy “counter-narrative” story that “the governing party faces challenges.” That is always the case. You should not let those stories get under your skin or diminish your efforts to protect and expand the Democratic majorities in Congress. Yes, we have problems. But Republicans have bigger problems—and more of them. Let’s focus on what we can do to give Democrats the margins they need to enact Biden’s agenda, reform the Supreme Court, and protect the voting rights of all Americans.

Republican lawmakers in 38 states seek to overturn 2020 election.

          GOP legislators from 38 states have signed a letter asking for a “forensic audit” of the 2020 election results in all 50 states. The lawmakers demand that states “scrub their voter rolls, and decertify their electors if they determine that the results of the 2020 race were certified prematurely and inaccurately.” The state legislators then demand that the U.S. House of Representatives hold its own vote for the president in the 2020 election. See “Dozens Of State Lawmakers Sign Letter Calling For MAGA Audit Of All 50 States.”

          The proposal is ludicrous and anti-democratic. Sadly, no Republican official has or will condemn the letter as a dangerous strategy that is corrosive to our democratic bonds. The letter is signed by only 138 Republican state legislators (out of 7,400), but the sentiments undoubtedly reflect the feelings of the rank-and-file of the GOP. That fact should concern us, but it should also give us some hope that Republicans will confuse and demoralize the GOP electorate in 2022 and 2024. Trump is already suggesting that Republicans should not vote unless the issue of alleged fraud in 2020 is “resolved” before 2022.  Since that won’t happen, some Republicans will stay home in 2022. Good.

Senate to vote on Freedom to Vote Act on Wednesday.

          Chuck Schumer has scheduled a vote on the Freedom to Vote Act for Wednesday of this week. The Act is Manchin’s attempt to craft a voting rights bill capable of attracting bipartisan support. Manchin has failed to convince a single Republican to vote for a bill that he believes is “non-partisan.” Unless Manchin and Sinema agree to a carve-out of the filibuster for voting rights legislation, the Act has no hope of passage this year. Perhaps the stonewalling by Republicans will help Manchin and Sinema see that the filibuster does not “encourage compromise” as they claim.

DOJ appeals Texas anti-abortion lawsuit to Supreme Court.

          The Texas anti-abortion statute was enjoined by a federal district judge, whose decision was reversed by the Fifth Circuit. The DOJ has now appealed the Fifth Circuit’s decision to the Supreme Court. See summary in Axios. Four leading constitutional scholars, including Laurence Tribe and Erwin Chemerinsky, have written an article urging the Supreme Court to block implementation of the Texas law. See The Guardian, “The courts have a new chance to block Texas’s abortion law. They must take it.” The authors argue that the presence of the DOJ as a plaintiff empowers the Court to enjoin the statute:

          This case stands on a very different footing from the one that a conservative 5-4 supreme court rejected on September 1 on procedural grounds. With the United States now suing, there is plenty of precedent for the federal government to come into court challenging a state law before it is enforced, and a state cannot hide behind sovereign immunity as a defense.

          Tribe, et al. also criticize the Fifth Circuit for relying on cases that were “entirely inapplicable” and “irrelevant” to “a suit brought by the United States to force a recalcitrant state to obey the Constitution.”

          If the matter were heard before a fair and impartial tribunal that followed the law, the Texas statute would be enjoined without delay. The DOJ’s appeal of the Fifth Circuit’s ruling to the Supreme Court will be an empirical test of the Court’s claim that it is non-partisan. The Texas statute was designed to flout Supreme Court precedent. If the Court does not strike down the statute in a 9-0 decision, it will be further proof that the Court has lost its legitimacy and serves only as proxy in the cultural and religious war being waged by the Republican Party.

The failed coup-leader seeks to suppress evidence of his guilt.

          Trump attempted a coup and failed. He is now seeking to suppress evidence of his guilt by invoking a privilege that does not belong to him personally. See NYTimes, “Trump Sues to Block Release of White House Papers to Jan. 6 Inquiry.” The question of executive privilege is enormously complicated and nuanced, as is made clear in two excellent essays by Jonathan Shaub in Lawfare, Executive Privilege and the Jan. 6 Investigation and How the Jan. 6 Committee Can Make It Easy to Prosecute Bannon for Contempt. If you are interested in the law relating to executive privilege, I highly recommend both articles.

          Biden has garnered praise for “waiving” executive privilege as to the events of January 6th,. Likewise, the DOJ has been praised for opining that the waiver was appropriate under the circumstances. But as Shaub notes, the waiver granted by Biden is narrow. The relevant caselaw gives both Bannon and Trump legitimate purchase to assert executive privilege. Biden could remove the grounds on which Bannon and Trump rely by making a further, more explicit waiver relating to Bannon’s conversations with Trump. Unless Biden does so, the likelihood is great that Bannon and Trump will tie up the Committee in litigation until after 2024. By then, it will be too late.

          What can we do to speed up the investigation of Trump by the House Select Committee? Tell President Biden that getting to the truth about January 6th is not a partisan issue and that his judgments should not be clouded by fear of Republican response. He should waive executive privilege to the fullest extent possible regarding the events of January 6th, not on a case-by-case basis. He should expressly waive privilege over all documents that Trump seeks to conceal under cover of the privilege. And he should reconsider his choice for Attorney General in light of the ongoing coup attempt by Trump and his co-conspirators. The White House can be reached at 202-456-1111 on Tuesday through Thursday from 11:00 AM to 3:00 PM Eastern.

Concluding Thoughts.

A reader posted a comment on yesterday’s newsletter saying the following:

         Action is the antithesis of anxiety.”

Words to live by!

Talk to you tomorrow!