Today’s Edition: Reality is a stubborn thing.

October 26, 2021

          As Biden is preparing to leave for an international trip later this week, he is hoping that Democrats will close a deal on his Build Back Better agenda. The details are changing so quickly it makes little sense to discuss current positions, but one development could portend a historic shift in tax policy. Senate Democrats, including Senators Warren, Manchin, and Sinema, are discussing a “billionaire’s tax” that would tax wealth, not just income. Reports suggest that Democrats will propose a tax on unrealized capital gains of taxpayers with capital assets of $1 billion, or more. (Talking Points Memo). Another provision under consideration is increasing the tax rate on earners who report more that $100 million in income per year for three consecutive years. The wealth tax would replace the proposed increase in tax rates on corporations and taxpayers earning more than $400,000 per year initially proposed by Biden.

          Although the proposed “billionaire’s tax” would affect only 614 billionaires in the U.S., there are more than 30,000 households in the U.S. with a net worth greater than $100 million. Once the concept of taxing wealth takes a foothold, the temptation to expand the pool incrementally will be strong. The wealth tax reflects a proposal that Senator Elizabeth Warren has been promoting for years. Given the increasing stratification of wealth in America, the wealth tax will help align tax burdens with wealth rather than income. Under an income-only system, people who work for a living—i.e., earn income from wages—pay a higher percentage of their wealth in taxes than Americans whose wealth is based on assets.

          I doubt anyone could have predicted this turn of events a few days ago. We may be in for more surprises yet. But the participants in the negotiations continue to send positive signals that a deal is likely. Stay tuned.

Fallout from stories in Rolling Stone and WaPo.

          I mentioned in yesterday’s newsletter an article in Rolling Stone reporting that two organizers of the January 6th rally were cooperating with the House Committee investigating the events of January 6th. The article has produced a firestorm of reaction, including calls for the expulsion from Congress of any member who participated in planning the attack on the Capitol. The article is here: Rolling Stone, “Jan. 6 Protest Organizers Say They Participated in ‘Dozens’ of Planning Meetings With Members of Congress and White House Staff.”  

          The reaction to the Rolling Stone article was amplified by a special report in the Washington Post on the “command center” set up in a hotel near the White House by coup-plotters. See WaoPo, “Willard Hotel was Trump team 'command center' for denying Biden presidency ahead of Jan. 6.”

          It is worth taking the time to read both articles because they will inform much of the media reporting on the insurrection in the next few months—and may provide a guide for the House Committee’s investigation.

          Before discussing the articles, I want to finish my discussion of whether state legislatures can “override the will of the people” by substituting an alternate set of electors after the popular vote has taken place. The answer to that question is at the core of the events discussed in Rolling Stone and WaPo stories, linked above.

Part 3 of discussion of purported ability of legislatures to overrule elections.

          As I hope I have convinced you previously, the Constitution does not permit a state legislature to substitute its own slate of electors in place of the electors chosen by popular vote. Why, then, is there persistent talk of legislatures overriding the will of the people? Here’s the answer: Some Republicans—led by Rudy Giuliani, John Eastman, and Steve Bannon—assert that that state legislatures have “plenary power” to decide which electors are appointed. By “plenary power,” those Republicans mean that legislatures are free to ignore existing state statutes for appointing electors and can exercise a free-floating power to substitute an alternate state of electors after the popular vote has appointed electors.

          The “plenary power” argument is ludicrous. Legislatures must follow the laws they establish. All fifty legislatures have directed that electors are chosen by popular vote. Moreover, the Constitution says that Congress selects the date for appointing electors—a date that has been set by statute as the first Tuesday in November. There are no “do‑overs” when it comes to appointing electors. As explained in Just Security, “No, State Legislatures Cannot Overrule the Popular Vote,”

          [U]nder the constitutional timing provision as implemented by federal law, the absolute last day a state legislature could have decided to appoint the state’s presidential electors for this election was November 3, 2020.  Once that date passed, the determinative popular votes had all been cast, and therefore the legislature’s authority to change the state’s manner of appointing electors in 2020 passed as well.

          The “plenary power” argument is thus no argument at all—it is a naked call for state legislatures to engage in rebellion by ignoring the Constitution and their own statutes. Fringe elements in the Republican Party continue to promote the theory. We must therefore stand ready to defeat such arguments whenever they arise. Attorney Marc Elias of Elias Law Group did so repeatedly—and successfully—after the 2020 election. Elias founded an organization called Democracy Docket, which is devoted to education and advocacy about voting rights, elections, and democracy. If you want to support Marc Elias in his mission to force states to observe the Constitution and comply with their own laws, check out Democracy Docket.

Democrats call for expulsion of Republicans who planned the January 6th insurrection.

          None of the above stopped the fevered machinations of Rudy Giuliani, John Eastman, Sidney Powell, Steve Bannon, and others. After Trump’s loss on November 3, 2020, they set up a “command center” at the Willard Hotel, which is near the White House. From that command center, the coup-plotters orchestrated efforts to convince state legislatures to overturn the election results by designating alternate slates of electors (one from the popular vote, and one from the legislature exercising its “plenary authority.”)  

          Per the Washington Post story,

          Trump allies were calling members of Republican-dominated legislatures in swing states that Eastman had spotlighted in his memos . . . . encouraging them . . . . to reassign electoral college votes from Biden to Trump, two of the people familiar with the operation said.

          If it is true that Trump allies in the command center were attempting to convince state legislators to “reassign electoral college votes” from Biden to Trump, the Department of Justice should open criminal investigations to determine if Trump’s allies violated any federal laws. Although the House Select Committee is investigating what happened in the command center, there is no indication that the Department of Justice is doing so.

          The Rolling Stone article has likewise provoked outrage because it details the involvement of several members of the House in planning Trump’s political rally on January 6th. The reporting in the article is confusing because it alternately uses the terms “rally,” “protest,” and “demonstration” without clarifying which events on January 6th are being described. Reps. Alexandria Ocasio-Cortez and Eric Swalwell both assumed that the Rolling Stone article described planning for the violent assault on the Capitol. For example, Rep. Alexandria Ocasio-Cortez said,

Any member of Congress who helped plot a terrorist attack on our nation’s Capitol must be expelled.

          I absolutely agree with Rep. Ocasio-Cortez’s statement and would add “and prosecuted to the fullest extent of the law.” The problem is that Rolling Stone makes clear in the last paragraphs of a lengthy article that the planning for January 6th discussed in the article did not include planning the assault on the Capitol. Per Rolling Stone, one of the cooperating witnesses described the meetings with members of the House as follows:

          It was in a variety of calls, some with Gosar and Gosar’s team, some with Marjorie Taylor Greene and her team … Mo Brooks. The Capitol was never in play.

          So, a fair reading of the Rolling Stone article is that some members of Congress helped plan the political rally that preceded the attack on the Capitol, but the article does not say that members of Congress “helped plot a terrorist attack” on the Capitol. Although I firmly believe that members of Congress who assisted Trump in any aspect of the attempted coup should be expelled from Congress and prosecuted, it doesn’t appear that the sources cited in the Rolling Stone article will implicate members of Congress in planning the assault on the Capitol. As I said above, I urge you to read the Rolling Stone article for yourself because it will be the basis for many news stories in the coming days. Knowing what it says will be helpful.

Correction.

          Yesterday, I wrote that the sources described in the Rolling Stone article “claim that Trump dangled the prospect of “blanket pardons” for their assistance in organizing the rallies.” A sharp-eyed reader noted that it was Rep. Paul Gosar (not Trump) who “dangled the possibility of a “blanket pardon” from Trump. Apologies for the error.

Concluding Thoughts.

          I have devoted a lot of space in the last three newsletters to ensuring that Democrats accurately represent the threats from Trump and the Republican Party. Please do not interpret those efforts as a lack of concern about the GOP’s efforts to prevent free and fair elections in 2022 and 2024. I am deeply concerned about the GOP’s effort to remain in power by destroying the touchstone of democracy—the peaceful transfer of power. To be effective, we must be clear-eyed and dedicated to the truth, regardless of how inconvenient or complicated or nuanced the truth might be.

          Historians will trace the demise of the Republican Party to their decision to subordinate truth to power. From that point, it was a quick trip to QAnon conspiracy theories and vaccination resistance and The Big Lie. We must be better than that if we have any hope of preserving democracy for future generations. The coming battles will be fought with information—one party will arm itself with truth, the other with falsehoods. In the end, reality will prevail (it is a stubborn thing)—and will favor those who were courageous and disciplined enough to accept reality while remaining optimistic about the future.

          Talk to you tomorrow!

Post-script: The first winter snow has fallen in the Sierra Nevada mountains. The fire stalled about 1.5 miles from our cabin and is no longer a threat. Thanks to all of you for your concern and to members of CalFire who directly engaged the fire to prevent its spread to our community.