Government by the people reversed by Senate refusal to act

Gordon L. Weil

In the U.S., somebody always wants to block somebody else from voting.

From the outset, people with property didn’t want average people to vote.  Whites didn’t want blacks to vote and men didn’t want women to vote.

The country is a great democratic experiment, but let’s not get carried away.  Anybody in political control was unlikely to allow others in on it.

But pressure for popular control could not be denied. African Americans got the right to vote, at first only in theory.  The popular vote replaced state legislatures in electing senators. Women gained the right to vote.  Eventually, the country moved toward a political process open to all. It took almost two centuries.

But popular democracy has begun to unravel.   Ironically, the largest turnout in history for a presidential election has unleashed the strongest efforts to turn back the rapid progress made since the passage of the 1965 Voting Rights Act.

From 1933 through 1994, Democrats controlled Congress for all but two years.   To end that control, the Republicans had to take the South away from their rivals and to make it more difficult for Democrats, especially African Americans, to vote.

Opposition to the 1964 Civil Rights Act led many southerners to jump to the GOP.  It expanded historic Democratic efforts to limit access to voting.

While the GOP’s strategy worked, it was thwarted in 2020 by two factors – Covid-19 and Donald Trump.  The virus threatened to keep voters away from the polls, calling for finding ways to help people vote.  Trump’s possible reelection stimulated unusually strong support and even stronger opposition.

Responding to Covid-19, many states expanded mail-in voting, and developed other measures including public drop boxes and more convenient times for voting including at places remote from Election Day polling locations.

Easier access attracted more voters. Nationally, people of each party and other electoral subsets turned out in greater numbers.  While improved access did not favor Democrats, it might have been a factor for them in swing states. 

Since 2020, states under GOP control have cut back on the use of methods easing access.  Early voting dates and polling places have been reduced.  New forms of voter ID are required in some states. Texas even claimed it ran out of voter registration forms due to paper shortages. 

The 2022 congressional elections will take place in newly designed House districts.  GOP-controlled states continue to pack Democratic voters into as few districts as possible.  The Democrats have done the same in a few places, but they have fewer opportunities because they control fewer states.

House elections this year are expected to produce GOP control, caused mainly by voter suppression and the new round of redistricting.  The Supreme Court won’t touch politically driven district design. It’s even tough to get it to look at race effects.

Congressional Democrats have thus far failed to enact federal legislation overriding voter suppression.  Added to reduced voter access, in the wake of the 2020 election some Republican states have moved to control how votes are counted.  

Trump attributed his election loss to corrupt vote counting resulting partly from the use of mail-in ballots.   He complained that mail-in ballots led to vote tampering, because early counts in his favor gave way to wins by Joe Biden after the envelopes were opened.  Repeated reviews, including by Republican officials, found no evidence that Trump’s claims were true.

When he and his backers failed with those claims, they attacked the vote counters.  In Georgia, for example, Brad Raffensperger, the GOP Secretary of State, refused Trump’s request to reverse Biden’s victory.  The GOP-controlled legislature eliminated his election authority in favor of its own designees.  Similar moves occurred in at least seven other states.

The Constitution gives states power over the “times, places and manner of holding elections,” but Congress may override them.  Partisan control of elections could end up giving one party a way to decide on winners, no matter the popular vote.  Democratic efforts in Congress to require multi-party control of the process have failed, thanks to the filibuster and solid GOP opposition.

The January 6, 2021 insurrection tried to force Congress to ignore the official results of presidential elections in some states.  Congress might now amend existing law to ensure that vote counting is purely procedural, just as it has always been.

Republican Sen. Susan Collins is a leader in that effort, which would do nothing more than preserve the historical process.  She has not supported any voter protection.  Independent Sen. Angus King expresses alarm at efforts to reduce popular control.

Faced with stepped-up GOP voter suppression, Democrats need to mount massive get-out-the-vote operations and to launch legal challenges to partisan control of the election process.  The political wars this year could grow even more bitter and hard fought.

  

Divided SCOTUS decides when Congress doesn’t

 

Gordon L. Weil

The U.S. Supreme Court looks like a divided legislature.

Seven of the nine justices expressed their sharply differing opinions in two recent Covid vaccination decisions. Only Chief Justice John Roberts and Justice Brett Kavanaugh, both conservatives, joined in the majority in both cases, and they alone refrained from making a comment.

Despite appearances, the central issue was not Covid vaccination. The rulings were about the role of the federal government and of the Court itself.  They were political, but more about personal beliefs than party affiliation.

The Court decides on what the law means, applying long-established rules of interpretation.  Justices are influenced by their views in applying those rules.  These views may go beyond partisan politics; they may be based on broader conservative or liberal ideology.

Justices making “political” decisions is nothing new.  John Marshall, the early and perhaps the most influential chief justice, favored a strong federal government. Between 1801 and 1835, his decisions always promoted this objective, aimed at influencing the young nation’s political development.

In both recent Court decisions, conservatives and liberals each expressed their political judgments.  All agreed on the serious threat to public health and the high personal cost of Covid-19, but that’s all.

In one case, six conservative justices interpreted the law narrowly, ruling that Congress had not given the Occupational Safety and Health Administration the power to require vaccinations in large companies.  They opposed an administrative agency exercising broad power without clear congressional approval.

Congress itself might have adopted such a mandate or given OSHA that explicit power. In effect, the Court found that Congress could have acted, but didn’t.  The Court has decided in major cases, like Roe v. Wade, when Congress didn’t, but this time the majority would not fill in the blank.

The three liberal dissenters had no doubt that Congress had given OSHA the necessary authority.  They concluded that the Covid crisis was so acute that the Court could interpret the law to help halt the spread of the virus.

The second case produced a majority of the three liberals, plus Roberts and Kavanaugh.  A simple majority of five controls the Court.  They ruled that federal funding for hospitals gave the government power to attach conditions, including a vaccination requirement for the medical staff. 

The conservative dissenters opposed a role for the federal government and found no authority for Congress to attach such conditions.  Kavanaugh split from his fellow conservatives and immediately came under blistering right-wing attacks for his independence.

In effect, conservative justices had turned against Marshall, the historic conservative who had promoted a strong federal government. Instead, they asserted that individual states have the power to fight the virus.

Behind its decisions, the Court wrestled with the question of whether Congress was doing its job. Its debate about what Congress meant highlights the failings of the legislative branch, which is supposed to set policy.  It’s no mistake that its powers compose the first Article of the Constitution.

In fact, Congress is not a co-equal branch; it is the first among equals.  Article III assigns the Supreme Court judicial powers, but “with such exceptions and under such regulations as the Congress shall make.”  It can also limit presidential powers.

When it fails to pass laws addressing public issues, Congress leaves it to the president and the Court, increasing their political power.  When the justices are drawn into making major political decisions, the Court’s neutral objectivity may suffer. 

If people believe it is just another political body, its authority can be weakened.  Roberts has been trying to maintain respect for the Court as an impartial body that should stay out of politics.  His positions in the two cases might be intended to reveal his sense of judicial nonpartisanship.

Both decisions were “by the Court” and unsigned. Technically, they did not end the cases, but left the final blows to lower courts.  The Court increasingly uses such quick procedural decisions, known as its “phantom docket” to make major rulings.  Chances for careful consideration among the justices are lost.

The media reported that the result of the decisions was to limit the scope of President Joe Biden’s vaccination policy, which could have political effects on his presidency.  But it paid less attention to the implications of the decisions that went beyond his political fate or even vaccinations.

The ongoing inability of Congress to resolve issues by making tough decisions undermines the democratic system.  Much of the reason is the Senate filibuster, which halts bills by requiring 60 votes to consider them.  Only a simply majority of senators is needed to approve the lifetime appointments of new judges.

If the Court increasingly serves as the federal legislature, then the main purpose of presidential and congressional elections may come down to picking the people who pick the justices.   

Biden should reach out to Republicans, not only Manchin

Gordon L. Weil

Republicans may suffer from a political split personality.

On the eve of the first anniversary of the assault on the Capitol, Sen. Ted Cruz (R-TX) called it a “violent terrorist attack.”

The next day, after a Fox personality humiliated him, charging, “You told that lie on purpose,” he backed off what he called his “mistake.”  He had erred, he said, because he sought to defend against Democrats and the media “trying to say that all of us are terrorists.” 

His first statement could be the voice of a deeply conservative but fair-minded Republican.  His retraction could reveal a politician fearful of offending the GOP establishment, now almost entirely taken over by former President Trump.

Cruz’s public debate with himself symbolizes the crisis of American government.  The Republican Party has undergone a major transformation, inherent in Cruz’s overnight shift, that may threaten the traditional political system.  Instead of seeking compromise, it exploits constitutional loopholes to block the Democrats.

President Biden has wasted much of the momentum of his election victory by failing to understand the Trump GOP’s unwillingness to serve as the loyal opposition.  He mistakenly gambled that, as in his early Senate days, the two parties would work within an agreed system.

Biden and most congressional Democrats concluded that his victory was a rejection of Donald Trump, which they hoped the Republicans would concede.  That could open the way to adopting new economic and social policies, including many promoted by the Democrats’ progressive wing.

Biden met with some initial success.  But, even without accepting Trump’s false election claims, Republicans mostly remained more loyal to Trump Republicanism than to the preservation on the traditional political system.  Besides, even some Democrats were wary of Biden’s most progressive proposals.

Biden has now dropped his bid for bipartisanship.  In his insurrection anniversary speech, he recast his 2022 political strategy.  No longer could he seek to win enough support to pass his most ambitious social and economic proposals.  Instead, he went on the attack.  His willingness to abandon the filibuster to fight GOP voter suppression is part of this new effort.

The unyielding Republicans have led Biden to make this year’s campaign a referendum on Trump.  The conciliatory president, who had appeared weak even to some of his supporters, became much tougher and more partisan.  His campaigning could be more like the confrontational Trump than the affable Biden.

Nothing reveals the state of the political order better than Maine.  Republican Sen. Susan Collins, once seen as a leading moderate and no friend of Trump, has become a loyal hardliner on most key issues.  She, too, shows a split political personality.

Democratic Rep. Jared Golden, a moderate who holds the Second District swing seat, advises Biden to settle for what he can get from Sen. Joe Manchin, his party’s moderate leader.  At least the president could see some of his program adopted, disappointing the progressives, but better than complete failure this year.

Collins and her GOP allies won’t yield to Biden.  With his congressional leaders, he won’t yet accept Golden’s counsel, but keeps fighting for policies they cannot pass.  The deadlock has become dangerous.  Former President Jimmy Carter, himself a Democratic moderate, worries about “losing our precious democracy.”

The time has come for Biden to change course. He needs to test whether the GOP split personality has any political value. Instead of focusing on Manchin, he should work on a moderate deal with some GOP senators not engaged in this year’s elections.

He could try calling together a small, bipartisan group of senators. If he engaged in good faith talks with a commitment to back an agreement they might reach, it would be worth seeing if progress is possible.  Members of the group would have to agree on a legislative package, stick to it and become the swing voting block by refusing to vote for anything else. 

Biden would have to make significant concessions to the GOP to get this deal. It would be far less than he wants, but probably more than he can otherwise get. 

Even a limited success could improve his leadership rating and give the Democrats a better chance of holding onto congressional control.  Without that control after this November’s election, Biden is not likely to accomplish much in the last two years of his term.

This effort could have an even broader effect. It might encourage conservative Republicans who believe their party must do more than simply block any Democratic proposal.  Rather than a new party, a new bipartisan, moderate and pragmatic coalition could be the goal.

If the democratic system is truly in danger, it could be revived by a practical effort that gives its survival a higher priority than divisive political games. 

"Quiet diplomacy' fails again; Olympic Committee backs China's genocide

Did you ever hear about “quiet diplomacy?”

Maybe not.  After all, it’s supposed to be quiet.  Also, it doesn’t work, at least not as intended.

It is meant to work when countries, facing heavy pressure, change their policies without having to make embarrassing public concessions. It fails when those applying the pressure get nothing for concessions they make to encourage a quiet deal.

The International Olympic Committee has acquired the reputation of being an historic failure in using quiet diplomacy.  It has just failed again with China, which is about to host the 2022 Winter Games.

Its first classic failure was the 1936 Olympic Games held in Berlin under Hitler and the Nazis.  The choice of Berlin may have been made in the hope that Germany would drop its anti-Semitic policies. Germany obliged by covering its objectionable public signage for a couple of weeks.  But American Jewish athletes were kept from competing.

The Olympics gave Nazi Germany the appearance of being an honorable member of the international community.  With these credentials, it carried out the Holocaust, the attempt to kill all European Jews, and the massacre of millions of Russians and Poles.

The IOC’s quiet diplomacy was carried out with little conviction.  It almost certainly knew it was legitimizing Hitler, which helped pave the way for Nazi genocide.  Genocide occurs when a government tries to end the existence of a group of people simply because of their membership in that group.

The IOC was not alone.  Money meant more than principle for some U.S. companies.  IBM sold Hitler equipment to identify Jews in the population. During World War II, Coca Cola stayed in business there and created a new German wartime brand called Fanta.  Ford Motors also remained.

After World War II, the United Nations was created to foster worldwide cooperation aimed at preventing any new genocidal regime, like the Nazis.  In 1948, U.N. members adopted the Universal Declaration of Human Rights.  Though not a binding law, it was an agreed standard of national behavior.

The Declaration recognized that genocide was a crime against humanity. Even if it took place within the borders of a single country, the world community would have a legitimate interest in fighting it.

In 2008, the IOC sponsored the Olympic Games in China.  As a result, that country gained in prestige, shifting the world’s focus from its human rights violations to its lavish athletic show.  It made sure it could win the most gold medals.  At the same time, its control extended to foreign journalists covering the events.

Once again, instead of influencing the host country, the IOC was used.  The Committee is almost entirely financed by the proceeds of the Games, so it was enriched by the lavish show.

In 2014, Russia, with a history of oppressing minorities, hosted the Winter Games.  Like China, it won the most gold medals.  Then, it was found that many Russian athletes had doped their way to winning.  Unchecked, Russia seized Crimea from Ukraine in 2015. 

Now, the IOC has again made China the Games’ host, anticipating big profits from its choice.  To do so, it had to ignore genocide, China’s attempt to wipe out its Muslim minority by imprisonment, abortion, sterilization and “reeducation.”  Meanwhile, there’s little doubt China will again win the most golds.

The Committee no longer claims that it is pursing quiet diplomacy.  Its chairman merely asserts that as an international body, it must be politically neutral.   To repair the self-inflicted damage and possibly to save itself, it awarded the upcoming games, without competitive bidding, to France, the U.S. and Australia.

China is ramping up aggressive moves to become the dominant world power.  It builds illegal military bases on false islands in the open ocean, ends democracy in Hong Kong and threatens Taiwan.  Echoes of Berlin.  But the Games must go on. 

The American consumer has unknowingly supported its genocide.  The U.S. market has become heavily dependent on cheap Chinese products.  But last month, Congress and the president banned imports from the region where repression is taking place.  The bill was strongly opposed by some American companies.

"Many companies have already taken steps to clean up their supply chains," said Sen. Marco Rubio (R-FL), an author of the bill. "For those who have not done that, they'll no longer be able to continue to make Americans -- every one of us, frankly -- unwitting accomplices in the atrocities, in the genocide that's being committed by the Chinese Communist Party."

President Biden has barred U.S. officials from attending the Games.  Chinese officials say that violates the Olympic spirit and they are right.  It violates the IOC’s false neutrality, its version of that spirit.

China also claims its genocide is its internal affair.  The world has heard that one before.