Today’s Edition: Good faith overcomes bad faith

July 22, 2021

          Wednesday was a frenetic day on Capitol Hill. It can be difficult to keep track of the details of each thrust-and-parry of partisan politics, but there is no need to do so. Indeed, trying to keep track of the minutia of congressional battles can be bad for the psyche. The essence of Wednesday’s news from Congress can be distilled as follows: Democrats are operating in good faith to pass legislation and protect democracy. Republicans are operating in bad faith to undermine the rule of law and sow chaos. The rest is detail.

Don’t play “chicken” with Nancy Pelosi.

          Minority Leader Kevin McCarthy nominated two GOP Representatives to serve on the January 6th Select Committee who objected to the count of the Electoral votes and who have actively promoted Trump’s Big Lie.  The nomination of Jim Jordan and Jim Banks to serve the Select Committee was an attempt to turn the Committee hearings “into the Gong Show.” The Hill, House erupts in anger over Jan. 6 and Trump's role.” McCarthy’s action was naked bad faith. But Speaker Pelosi surprised everyone by rejecting Jordan and Banks. It was a gutsy move. In doing so, Pelosi decided that the hearings were too important to be undermined by the antics that Jordan and Banks portended. Jennifer Rubin of the Washington Post describes the situation brilliantly in her op-ed, “On Jan. 6, Pelosi chose truth. McCarthy chose theater.” Rubin writes, in part,

          There’s no need to dive into political gamesmanship here [such as], “Were these tactics smart? Who won?” The media should be as serious about our democracy as Pelosi is. The “story” is simple: Republicans continue to cover up and defend a violent insurrection instigated by their cult hero.

          Kevin McCarty responded in a pathetic news conference in which he apparently believed that by speaking loudly, he could conceal the hypocrisy and depravity of his position. He claims that Pelosi has “broken the institution” of the House, apparently believing (incorrectly) that everyone will forget that he rejected a bipartisan commission that gave Republicans everything they demanded. See Talking Points Memo, “In High-Volume Press Conference, McCarthy Musters Fury That Pelosi Blocked His Jan. 6 Picks.” In a pique of petulance and impotence, McCarthy withdrew his other nominations from the Committee. Pelosi yawned in response, but GOP Rep. Liz Cheney attacked McCarthy for his bad faith. She said,

          At every opportunity the Minority Leader has attempted to prevent the American people from understanding what happened [on January 6], to block this investigation. I agree with what the Speaker has done. Any person who would be third in line to the presidency must demonstrate a commitment to the Constitution and a commitment to the rule of law, and Minority Leader McCarthy has not done that.

          It is true, of course, that Republicans will discredit the Select Committee as a “Democratic” effort to attack Trump—but they would have done so in any event. Pelosi’s decision was correct; she should not allow GOP bad faith to determine the course of hearings being held in good faith. Speaking of bad faith, Republicans are contemplating creating their own committee to investigate the insurrection they fomented. Business Insider, “McCarthy Says the GOP Will Run Its Own Investigation Into January 6.” If Republicans hurry, they can reserve space in the Four Seasons Landscaping Co.’s parking lot for its committee meetings.

Two-track roadmap in the Senate.

          Majority Leader Chuck Schumer has maintained “two tracks” for bills working their way through the Senate. The first bill is the bipartisan $1.2 trillion infrastructure proposal, which will require 60 votes to pass (because it is subject to the filibuster). The second bill is the $2.5 trillion budget reconciliation bill that is not subject to the filibuster. And looming over both bills is the fact that the ability of the U.S. to raise the national debt by continued borrowing will expire on July 31, 2021. The interconnections between those bills creates lots of opportunity for bad faith by Republicans. They are maximizing those opportunities.

          On Wednesday, Schumer called for a procedural vote to determine if the bipartisan infrastructure bill had sufficient bipartisan support to proceed. The vote failed to advance the bill to floor debate. See Vox, “The failed bipartisan infrastructure vote in the Senate, explained.” Republicans who are negotiating the bipartisan bill voted against advancing it to the floor on the ground that they couldn’t possibly agree to debate a bill on the Senate floor until every last detail of the bill is agreed to—making debate unnecessary. Bad faith. Republicans claim they are close to finalizing a bill that they will allow to advance to the floor for debate. They also have a bridge in Brooklyn they want to sell to Democrats.

          So, what happens if the vaunted bipartisan infrastructure bill never reaches a pristine state sufficient for Republicans to advance it to the floor? Schumer will simply cut and paste provisions of that bill into the reconciliation bill—and freeze Republicans out of the process entirely. Sounds swell, right? Enter Darth Vader, er, Mitch McConnell. McConnell is threatening to use the vote on increasing the debt ceiling as leverage to derail the infrastructure bill. See Talking Points Memo, “McConnell Floats New Plan To Derail Infrastructure Talks: Hold The Debt Ceiling Hostage.”

          To recap: McConnell is willing to plunge the financial markets into chaos by cutting off the ability of the U.S. to borrow money to meet current obligations. That would be bad, to say the least. McConnell doesn’t care. He is confident that “not a single Republican” will vote to raise the debt ceiling. That will remain his position until his corporate overlords remind him that he cannot kill the goose that generates the dark money that is the lifeblood of the GOP.

          It will be a wild ride over the next few weeks. In the end, the United States will remain a functioning democracy and a financially solvent nation. Those acting in good faith will prevail over those who seek only to destroy, obstruct, and deceive. Bad faith is self-limiting. It’s easier to operate in bad faith, until people catch on. Just ask the Fox News hosts who are suddenly urging viewers to get vaccinated after months of claiming that vaccinations are harmful. The mounting death toll among unvaccinated Americans has imposed a limit on their bad faith. See KSAT, “Texas has seen nearly 9,000 COVID-19 deaths since February. All but 43 were unvaccinated people.”

Two opinion pieces by constitutional law expert Professor Lawrence Tribe.

          Lawrence Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard. He is one of the most respected constitutional scholars in the world. He has recently written two essays worth your time. The first explains a crucial test facing Attorney General Merrick Garland. Rep. Mo Brooks spoke at the January 6th rally that preceded the assault on the Capitol. He has been sued by Rep. Eric Swalwell in a lawsuit claiming that Mo Brooks and Donald Trump are responsible for the insurrection.  Brooks has asked the Department of Justice to certify that “he was acting within the scope of his congressional office in joining Trump . . .  in addressing the angry, agitated, and partly armed mob assembled in front of the White House on Jan. 6.” The Department of Justice has until July 27th to take a position. See Boston Globe, “Merrick Garland’s insurrection ruling and democracy’s destiny.” Let’s hope that Merrick Garland does not give Brooks the certification he requests; doing so will effectively insulate Brooks (and Trump) from civil suits by members of Congress for the attack on January 6th.

          Separately, Professor Tribe explains the threat posed by the most recent anti-abortion law in Texas. See Lawrence Tribe in NYTimes, “Texas’s Abortion Law Upends the Legal System.” As Professor Tribe explains, the new Texas law allows any private citizen to sue any health care professional they suspect of violating the Texas ban on abortions after six weeks. By “crowdsourcing” such lawsuits, Texas hopes to avoid judicial challenges to state action. As Tribe writes, the law “effectively enlists the citizenry to act as an anti-abortion Stasi.” 

Concluding Thoughts.

          On Wednesday, Joe Biden participated in a town hall meeting in which he said that eliminating the filibuster “would throw Congress into chaos” and “result in gridlock” and that “nothing at all will get done.” See NYTimes, “Biden says ditching the filibuster would throw Congress ‘into chaos’ and lead to gridlock.” I have many reactions to Biden’s statement, but I will hold them, for now. I will give Biden the benefit of the doubt that he got caught up in the moment, did not mean what he appeared to say (that he opposes modifying the filibuster), and will retract the statement when he hears from concerned Democrats (and his bewildered staff). I hope his staff is working late into the night to draft an appropriate statement to undo the damage his comments will cause if left uncorrected.

          So, it was an eventful day in Congress and in the Executive Branch. For the moment, I counsel caution and restraint. We will know much more in thirty days. By then, the infrastructure and reconciliation bills will have passed (or not), the debt ceiling will have been lifted (or not), and the For the People Act will have passed, or not. Democrats have a big agenda that they must pass if they expect to keep the party faithful motivated and engaged. Let’s hope that all of the reassuring noises that have been coming from Schumer and Pelosi of late have substance. I believe they do because both leaders can count votes and know how to pass legislation. Keep the faith, stay the course, and remain calm. The rest is detail.

          Talk to you tomorrow!