Today’s Edition: “The test of our time.”

July 14, 2021

          On Tuesday, President Biden gave a speech in Philadelphia calling for the protection of voting rights. Biden said that the need to protect voting rights is “the test of our time.” Biden continued,

          We'll be asking my Republican friends in Congress and states and cities and counties to stand up, for God's sake, and help prevent this concerted effort to undermine our election and the sacred right to vote. Have you no shame?

See NPR, “Texas Democrats Press Biden On Voting Rights In Washington.”

          Biden is right that Republican efforts to cling to power by disenfranchising Black voters is “the test of our time.” Biden delivered his speech with vigor and passion, but “asking” our “Republican friends” to desist is not the answer. As Biden spoke, members of Philadelphia’s Indivisible chapter protested outside the venue, urging Biden to take bolder action. Indivisible members are modeling the activism necessary to “pass” the test of our time. So, too, were Texas Democrats, who were working the halls of the Capitol in an effort to spur congressional Democrats to action. See ABC News, “Texas Democrats pressure Congress to block state-GOP voting restrictions.”

          In yesterday’s newsletter, I suggested that the moment had passed for Biden to lead on the issue of voting rights and would instead be swept along by momentum created by others. Some readers disagreed, saying that Biden has shown a knack for picking the right moment for departing from the middle path. They urged patience on my part and trust in Biden’s political instincts. Fair point, but Biden is constrained by the realities of the congressional calendar and the 2022 election cycle. Voter protection legislation must pass in 2021 if Congress expects states to conform their 2022 voting rules to the standards in the For the People Act. I don’t know what the cut-off is for passing voter protection legislation, but there is no reason to wait until the last moment. You can call that impatience if you like; I believe that acting sooner rather than later is both prudent and practical.

          In truth, Biden can exert moral suasion only. It is up to Democrats in the Senate to rise to the challenge of overcoming Republican obstructionism. On Tuesday evening, Majority Leader Chuck Schumer announced that Democrats on the Senate Budget Committee had reached a deal on a $3.5 trillion infrastructure bill. See The Hill, Democrats reach deal on $3.5T price tag for infrastructure bill.” Under a ruling by the Senate Parliamentarian, the infrastructure bill can bypass the filibuster because it is a budget reconciliation bill. Democrats need only convince all fifty members of the Democratic caucus to support the bill in order to secure passage. Whether that will happen is still open to question. The two Senators who are still on the fence are—Let’s all say it together—"Manchin and Sinema.”

          The good news is that Senator Manchin has said that he will support an infrastructure bill passed by the reconciliation process. The amount at which he will support a reconciliation bill remains an open question. As noted in The Hill article above, Manchin has said that he would support a reconciliation bill if its “$1 trillion or $1.5 trillion or $2 trillion, whatever that comes out to be over a 10-year period, that’s what I would be voting for.” Manchin also announced on Monday that any infrastructure bill must be “paid for” by revenue enhancements. More good news is that Chuck Schumer told reporters that the $3.5 trillion bill would include revenue generating measures to cover the cost of the expenditures. See The Hill, “Schumer: Democrats considering option to pay for all of infrastructure agenda.” The fate of the smaller $1.2 trillion bipartisan bill negotiated by Manchin and Sinema remains unclear. See MSN, “As Republicans Wobble On Bipartisan Infrastructure Deal, Convenient Offramps Await.”

          Let’s hope that Democratic Senators take notice of the fact that forward progress in the Senate does not involve cutting deals with Republicans. We are facing “the test of our time.” Fortunately, it is an “open book” exam, and we know the answers. The only question is whether Democrats have the political will to pass the test.

The filibuster rule is unconstitutional.

A reader sent a note with a link to an article that makes the case that the filibuster rule is unconstitutional. See Gregory L. Diskant writing in National Law Journal, “The Filibuster Is Unconstitutional.” The reader asked, “Why aren’t more people talking about this?” Good question. I was not previously aware of the strong arguments against the constitutionality of the requirement of a supermajority to end debate in the Senate. Diskant outlines several arguments in support of his assertion that the filibuster is unconstitutional, but the thesis of his article is this:

          [T]he framers provided that only “a majority of [the Senate] shall constitute a quorum to do business.” Today that means that only 51 senators must be present for the Senate to do its business. And under Supreme Court precedent, only a majority of the quorum, 26 senators, is necessary to enact legislation. In contrast, the Senate rules require 60 members of the Senate to be both present and in favor cutting off debate. How can it be that the Constitution requires the presence of only 51 senators “to do business” and 26 senators to enact legislation, but the will of those majorities can be blocked unless 60 senators are somehow present and consent?

          Members of Congress are immune from lawsuits relating to congressional business. Diskant notes that any suit challenging the constitutionality of the filibuster must name members of Congress as defendants and will therefore be dismissed. So, is there no remedy? There is. As Diskant says, “Senators . . . heal thyselves.”

“The word for what Trumpism is becoming.”

          David Frum has written an article in The Atlantic entitled, ““There's a Word for What Trumpism Is Becoming.” Frum makes the case that Trump’s tactics (and those of the GOP) have a clear historical antecedent: fascism. The essence of Frum’s argument is that Trump does not deny that he incited a violent insurrection on January 6th but instead embraces the violence as a justified response to his defeat in 2020. The “forcible suppression of opposition” is a defining characteristic of fascism, and the January 6th Insurrection was an effort to suppress the “opposition” by use of force.

          Trump has become increasingly explicit in the last few weeks in claiming that the violence on January 6th was justified. His latest gambit is to claim that Ashli Babbitt is a martyr who was killed while rightfully protesting the theft of the 2020 election. Trump has begun to claim that Babbitt was shot by “the head of security for a certain high official, aDemocrat.” Trump’s claim is false. See Talking Points Memo, “Report: Trump’s Claim About Officer Who Fatally Shot Ashli Babbitt Is Fully Wrong.” The point of Trump’s lie is this: He is claiming that Babbitt was justified in assaulting the Capitol and that her killing was therefore wrongful. As noted above, the claim that the use of force (by the insurrectionists) to suppress the opposition (Democrats in Congress) is a defining characteristic of fascism.

          Why does this matter? Is it helpful to characterize Trump and those among his base who support violence as “fascists”? Let me answer that question by asking another question: Is it helpful to pretend that Trump and those who support violence are legitimate participants in American democracy? No, it is not. By being honest about the threat Trump poses, we are more likely to undermine his supporters and protect democracy.

          I know that it is painful for some to contemplate the fact that the leading GOP contender for the 2024 nomination is following in the footsteps of violent dictators of the last century. Don’t read Frum’s article if such discussions serve only to invoke anxiety or depression. But we must be honest about the threat we face if we are to have any hope of stopping it. The important point is that Trump has entered a new phase of justifying the violence of January 6th. Whatever else you believe about America, the number of people who share Trump’s views is a minority that will continue to shrink as Trump glorifies violence in the run-up to 2024.

Concluding Thoughts.

          To my grammarian friends and readers, before you send a note correcting my usage of “entitled,” please read this: Grammarist, “How to use entitled vs. titled correctly.”

          The tide of voter suppression legislation and frustration over the Democrats’ inability to set aside their differences has caused a spike in comments from readers who are on the verge of giving up hope going into 2022. Don’t. Those feelings are understandable, but readers who feel that way should take heart from the fact that the majority of Americans are good, decent, and peaceful people. Will a minority of angry and grievance-fueled Republicans regain control of Congress or the presidency? Maybe, maybe not. But only temporarily, if at all. A source of grievance for Trump’s base is that the world is slipping away from their control and will continue to do so as their numbers shrink. That dynamic may fuel anger and violence over the short term, but it will also inevitably ensure their defeat. We don’t have to win every battle; we need only win enough of them to keep the flame alive until we can achieve victory. We can do that.

          Talk to you tomorrow!