Today's Edition: Speaker Pelosi meant what she said.

July 25, 2021

          The political news over the weekend focused on progress on the bipartisan infrastructure bill. On Sunday talk shows, Republican Senators said that the bill would be voted on the week of July 27, 2021. See NBCNews, “Senators hopeful bipartisan infrastructure spending bill could land Monday.” The $1.2 trillion bill is still not in final form, and as NBC reported un-ironically, “A remaining sticking point is where to spend the money.” As they say, “It is always good to know where you are going to spend a trillion dollars before passing a bill.” Republicans want to spend a small portion of the funding on mass transit, while Democrats want to spend at least 20% of the bill to improve public transportation. Republican Senator Rob Portman said that the negotiations were 90% complete and was confident a vote would be held in the Senate this coming week. See Reuters, Republican lawmaker says public transit dispute holding up U.S. infrastructure bill.

          Though it appears that the bipartisan bill is close to final passage, it is not. When a group of Senators appeared with Joe Biden on the White House lawn in late June to announce a bipartisan infrastructure framework, Speaker Nancy Pelosi said that she would not allow a vote on the bipartisan agreement unless it was paired with the larger reconciliation bill proposed by Biden. (“Let me be really clear on this. We will not take up a bill in the House until the Senate passes the bipartisan bill and a reconciliation bill.”) Over the weekend, Nancy Pelosi reiterated her original statement, to the shock and surprise of Senator Portman, who apparently believed that Speaker Pelosi would forget her admonition in June. See ABC News, “Portman slams Pelosi's threat to delay infrastructure vote.”  

          Republicans have always known that a bipartisan bill alone would be a non-starter. And, yet they pushed negotiations on the bipartisan deal so they could get everything they wanted—only to oppose everything else in the reconciliation bill. It feels like a trap that has been set with the help of moderate Democrats. There may be many twists and turns in the next week—including the possible cancelation of Senate recess. See The Hill, “Schumer warns August recess in danger as infrastructure work piles up.” And don’t forget about the expiration of the Treasury Department’s ability to borrow on July 31, 2021, about which Mitch McConnell said that “not a single Republican” would vote to extend the ability to borrow. The Congressional Budget Office released a statement last week, saying that “if the debt limit is not raised, the Treasury would probably run out of cash and be unable to make its usual payments starting sometime in [] October or November.” See Congressional Budget Office, “Federal Debt and the Statutory Limit, July 2021.”

          Lost in the drama of the infrastructure fight and the possible default of the U.S is the effort to pass voting rights reform. Joe Biden’s statements last week at a town hall opposing the elimination of the filibuster were deeply disappointing. Charles M. Blow captured that disappointment in his op-ed, “Mr. President, You’re Just Plain Wrong on Voter Suppression.” Blow describes Biden’s prioritizing infrastructure over voting rights as follows:

          Biden has a vision of what he wants his legacy to be: the builder, not necessarily the defender. He wants to be the one passing out checks, not the one sticking out his neck. [¶] During Biden’s victory speech, he said to his Black supporters, “You’ve always had my back, and I’ll have yours.” I’m sorry Mr. President, but that statement rings hollow because in Black people’s greatest time of need, you’re more concerned about roads than rights.

          Blow called Biden’s comments about the filibuster last week “contemptible”—far harsher than my criticisms in last week’s newsletter. But in response to my criticisms, several readers sent emails noting that Biden was addressing elimination of the filibuster, not modification of the filibuster, and urged patience. That is a fair point. Biden did say during the town hall that he supported returning to the “talking filibuster.” I don’t think Biden meant what he said. Under the “talking filibuster,” a filibuster lasted only as long as one Senator could hold the floor—an amount of time limited by the size of the Senator’s bladder. See The Brennan Center, “The Filibuster, Explained.”

A return to the talking filibuster would effectively be the end of the filibuster because legislation would be blocked for only a day or two. Instead, I believe that Biden was referring to a proposal in The Atlantic by Norm Ornstein, “The Smart Way to Fix the Filibuster.” Under Ornstein’s proposal, the burden is on the opponents of legislation to keep 41 Senators on the floor to block advancement of legislation, rather than requiring proponents to come up with 60 votes to overcome the filibuster. While not a solution, such an approach would highlight that it is Republicans who are blocking legislation, rather than Democrats who are failing to generate support for legislation.

          Let’s hope that Democrats can bring closure to the infrastructure and reconciliation bills this week—so they can address voting rights. Until the Senate votes on the For the People Act, it would be wrong for Senators to take a summer vacation. Too much is at stake, and we are running out of time.

The “alternative view” of Merrick Garland’s cautious approach.

          Over the weekend, many readers sent me a link to an article about Merrick Garland in The Washington Post, “Merrick Garland will not deliver your catharsis.” (“Progressives want a dramatic de-Trumpification of the Justice Department. But the attorney general has a different theory of how to heal America.”) Several readers suggested that the article provides a counterpoint to my criticisms of Garland’s silence about efforts (if any) to investigate misconduct in the Justice Department and the Trump administration. The article is balanced and fair in describing the opposing views of Garland’s performance. That said, I believe it strongly supports my view that Merrick Garland misunderstands the moment in which he and America find themselves.

The article notes that Garland has said, “I am not going to look back” when considering whether the DOJ engaged in misconduct. If prosecutors refuse to look back, they will never prosecute anyone. Moreover, if there was ever a moment to look back, this it is. Adam Schiff makes this point in the article when he says the following:

          The administration and the leadership at the Justice Department need to recognize that we are not in the same circumstances as a new administration usually finds itself. This administration finds itself taking over after one of the most destructive, institution-breaking regimes we’ve had in this country. And I think that means that both the administration generally, and the [Justice] Department in particular, are going to have to err on the side of transparency.

          Here’s the problem with Garland’s approach. Trump did two things. He broke the DOJ as an institution, and he caused the American people to lose trust in the DOJ. While related, those are independent problems, both of which need to be addressed. Garland has decided that he can fix both simply by returning the DOJ to “business as usual” before Trump—and assuming that doing so will magically restore the trust of the American people in the DOJ. It will not. As Noah Bookbinder says in the article,

          “If you want to change the way the department works going forward, and you want to really restore the American people’s confidence in it, you have to come clean about what happened.”

          Garland believes merely following the old norms of the DOJ will fix everything. But as the author of the article says,

          When does following Justice Department precedents and protocols — precisely the norms Garland is bent on reaffirming — work against a larger sense of what it means to do justice?

          Let me answer the author’s question: We have reached the moment when following precedents and protocols work against a larger sense of justice. And to be clear, what the American people want is justice, not “catharsis.” By describing the desire for justice as a need for emotional purification belittles the legitimate desire of the American people for assurances that no man is above the law. In the absence of that assurance from the DOJ, how can we trust in government? No, the American people do not want emotional gratification. They want assurances that democracy works.

Concluding Thoughts.

          Well, I broke my promise to stop talking about Merrick Garland. If you feel an overwhelming urge to send a note explaining to me why Merrick Garland is taking a low-key approach, let me assure you I understand his approach, but I believe it is both wrong and harmful to America after four years of lawlessness by the former president. However painful it might be to grapple with the last four years, pretending they didn’t happen will be worse.

          So, is there nothing we can do, except stew in our frustration? No, there is something we can do. Next time you interact with your Representative or Senator, ask them what they are doing to demand rehabilitation and reform of the Department of Justice. Representative Adam Schiff has introduced the “Protecting Our Democracy Act, which will institute safeguards to prevent many of the abuses that took place in the DOJ under Trump. To date, the Biden administration has “pushed back” against those reforms and Garland hasn’t taken a position. If Biden hears from Representatives and Senators that their constituents are unhappy over the lack of action, something will get done. In other words, it’s up to us. It always is. Let’s not bemoan that fact but roll up our sleeves and get to work.

          Talk to you tomorrow!