Trump’s final foe – the states: from fighting Covid to presidential election

 

Gordon L. Weil

What’s the difference between Maine and Tennessee? A lot.

Maine is the third most successful state in combating Covid-19 while Tennessee ranks seventh from the bottom. 

Maine has two U.S. senators, one Republican and one Independent, who accept the election of Joe Biden as president.  Tennessee has two Republican U.S. senators, who signed on to an election challenge of state decisions.

Covid-19 policy and the election challenge are linked. Both are harmful to the states.

On fighting the virus, the Trump administration shifted responsibility onto states with often disastrous results.  On the election, the self-interested president and his congressional backers have sought to override the constitutional clause assigning the states the deciding role in presidential elections.

One side, which dominates Tennessee politics, favors limiting the role of government and has supported virtually any Trump move, even at the expense of their own state.  In Maine, a majority appears to favor a traditional role for government and balances a strong commitment to individual rights with community interest.

That translates into resistance to wearing masks in Tennessee with the resulting high spread of the virus.  Maine has deployed a mask mandate and experienced higher compliance.  The result is a much lower Covid-19 spread.

Senators from states like Tennessee, which originally supported Trump’s election claims, opposed a large Covid stimulus bill to help individuals and provide federal aid to states.  Senators from states like Maine, who leave elections to the states, favored more aid for state budgets.

If there were ever a subject on which compromise was needed, it was on the most dangerous public health crisis the country has ever faced.  Yet, despite the claims that it was a compromise, the most recent stimulus bill limited spending to a level in line with the Tennessee position.

Similarly, the bitter split over unsupported charges that the presidential election was subject to ballot tampering (only in states Trump lost), showed open resistance to bipartisanship and even to the American political tradition of accepting election results.  The challenge is purely partisan, coming only from Republican-dominated states.

Dealing with both Covid-19 and the presidential election, Trump and his allies have been ready to push the states around.

To avoid possible blame for misjudging and mishandling the Covid-19 crisis, Trump shifted almost all key aspects of crisis management, except scientific work, to the states.  The lack of presidential leadership left the patchwork fight against a virus that knows no boundaries.

Seeking to claim victory in the face of clear and documented defeat, Trump has sought to override the constitutional provision through which the states kept the control of elections for themselves when they created the federal government.

Maybe Trump is teaching the country a lesson about the American system of government. He believes in an all powerful president, showing little respect for the states. Over his term in office, he has challenged the basic nature of the system.

The system survives.  The courts have consistently ruled against Trump’s case based mostly on his assumptions about voter behavior and unsupported claims of tampering. Judges rejected his challenges and stressed that the states make the final judgment.  A congressional majority agrees.

But government has also failed. In the absence of clear presidential leadership, the inability of Congress for months to even try to unify around a Covid-19 policy harmed the country and denied state aid.  If a crushing majority could pass the defense bill over a presidential veto, why not a virus bill?  Surely, the threat is as great.

Under these circumstances, federalism itself has suffered.  The states have done as well as they could by conducting fair elections and, in many cases, fighting against both the virus and the indifference and political exploitation of the crisis by Trump and Congress.

That states like Maine and Tennessee can diverge on policies is a strength of the federal system.  But 50 different solutions by the states do not work in a worldwide pandemic.

Congress treats states as mere federal subsidiaries, left begging for benefits doled out by Washington.  And it continues to pass laws that give great powers to the federal executive.  The result is a decline in the checks and balances of the federal government and in its relationship with the states. 

The states seem to have been sacrificed for political expediency. In the words of a once famous comedian, they “don’t get no respect.”

Senators were originally meant to represent their state’s interests in Congress.  The election controversy shows that many represent their party or focus only on partisans they need for their reelection – Trump’s loyal base. 

Unless the congressional commitment to federalism improves, the core of the Constitution will fade into nothing more than a pleasant myth.

 

‘Blue Dogs’, hostile GOP could limit Biden’s policy choices

 

Gordon L. Weil

President-elect Joe Biden is turning Maine Rep. Jared Golden into a major congressional power broker.

That wasn’t Biden’s plan, but it results from his quest for cabinet diversity right after a close House election.

Golden is a moderate-to-conservative Democrat, elected by a district that has twice voted for Trump. He is a member of the Blue Dog caucus, composed of the most conservative House Democrats.  For a second time, he opposes electing Democratic Rep. Nancy Pelosi as Speaker.

While Biden won the presidency, House Democrats lost seats. That’s unusual, because the coattails of a newly elected president often add more members of his party.

This year, some voters split their ballots, balancing their votes for Biden with support for Republican congressional candidates.  Apparently they sought to maintain divided government after Trump departs.

With three seats still undecided, Pelosi has a five-seat majority in the 435-member House.  Biden has picked three Democratic House members for his team.  Even if they are replaced later by Democrats, at the outset his party may control the House by only two votes.   Biden has boosted the ability of Golden and his fellow Blue Dogs to be swing Democratic members.

During the presidential primary campaign, Sen. Bernie Sanders called for a massive outpouring of voters to support progressive policies. Some left-wing House Democrats, elected in 2018, thought they would gain more allies. Sanders’ voters hoped that, if Biden won, he would pick a progressive cabinet.

Sanders got his massive turnout, but the result was a clear message that voters want moderation, and they like some Trump policies.  There would be no revolution. Biden will have to proceed carefully, forced to keep little-known Golden in mind as much as the celebrated Rep. Alexandria Ocasio-Cortez.

Biden’s avowed goal has been to appoint a cabinet of qualified people, reflecting the diversity of the American population.  Given past discrimination against women and Blacks, he understandably wants a new look. 

But his appointments suggest that either he has not heard the mixed message from the voters or he hopes to expand his appeal to some Republicans.  But, in the 2022 mid-term elections, the Democrats, the party of the president, would normally be expected to lose seats. 

In his effort to increase diversity, Biden may encourage support for politicians who criticize what they label as “political correctness.”  They are backed by white voters with less than a college degree, people who supported Trump.  They may not be impressed by Biden’s approach.

Another potentially troublesome aspect of Biden’s team is that it includes so many former Obama officials.  One ABC reporter caught himself as he started to refer to the “O’Biden” administration.  You might guess that’s what reporters are saying among themselves.

Trump tried to erase Obama and to discredit almost anything his administration had done. So it is not surprising that Biden seeks to bring back the architects of Obama’s policies to renew and strengthen their influence on the country.  But he seems to have gone too far.

If the new administration looks too much like Obama’s, the risk is that it will do little more than try to erase Trump.  Tom Vilsack, Secretary of Agriculture through all eight years of the Obama administration, will be back in the same job. Will he come up with new ideas? Why not a new person as associated with nutrition as with crops?

Biden has offered little by way of a vision that goes beyond traditional Democratic rhetoric.  His administration seems mostly designed to avoid extremes, but where does he want it to go?

Biden and his cabinet will have to try to strike a balance between Sanders progressives and traditional, blue-collar Democrats.  If he keeps his eye on the mid-term elections, he will need to manage both his diverse party and a deeply divided Congress.  That’s a huge challenge.

By temporarily trimming the House Democratic majority, he has made more difficult passing new policies, especially in his first 100 days when he is at the peak of his power.  His best hope for major changes may be adding the public option to the Affordable Care Act and in foreign policy. 

Republican senators should not block Biden’s cabinet choices. As in the past, a new president should be able to pick his team. If not, it’s a declaration of war.  But a closely divided Senate and a House influenced by Blue Dog Democrats are unlikely to accept some of Biden’s progressive proposals.   

Biden needs to reach out to Republicans and more traditional Democratic voters directly, over the heads of congressional GOP leadership, while pleasing progressives. That will be a tough balancing task.

Not only must Biden depend on Golden and his allies, but he might even learn something about political balancing from this Maine moderate.

 

Rejecting Trump, courts protect democracy, federalism and themselves

 

Gordon L. Weil

Suppose New Hampshire enacts a law allowing tiny lobsters to be fished, smaller than permitted in Maine.   Because lobsters migrate, the N.H. law could later reduce the Maine harvest.

Because one state can directly challenge another state in the U.S. Supreme Court, Maine sues N.H.  It claims that the neighboring state’s law, though it only governs lobster fishing in the Granite State, harms Maine, and the Court should nullify it.

But the Court rules that Maine cannot sue N.H. for an action taken by its state government that controls activities only in that state’s waters through the exercise of powers that N.H. undoubtedly has.  No luck, Maine.

That’s just what happened when Texas tried to get the Supreme Court to rule that four other states had violated their own laws in running the presidential election in each state. Texas wanted to override rulings by state supreme courts that the election procedures did not violate their own state laws.

The Court said that Texas was not allowed to bring such a case against other states.  In effect, it said, this is a political question, not our judicial business.  Everybody has a right to go to court, but they abuse that right when they have no case.  No luck, Texas.

In just a few words that fit with rulings of lower courts, this decision amounted to a lesson about democracy, the states and the law itself.

The Trump election complaints boiled down to these propositions: mail-in voting is more subject to fraud than in-person voting; Biden won thanks to mail-in ballots; Biden’s victory was surprising (to Trump, at least); the courts ought to conduct an independent investigation and, if the complaints are correct, annul the election.

Trump jumped right to the end and concluded the election was fraudulent, and he ought to be declared re-elected.

The judicial answer amounted to explaining to all that courts don’t investigate anything, but adjudicate based on the facts presented by the parties. Courts decide if that’s evidence and how the law applies to it.

In other words, the mere possibility of fraud or even its likelihood, as claimed by Trump, is not enough.  Courts need proof, evidence not assertion.

Despite their promises, Trump’s lawyers produced no evidence. They tried to exploit a belief that   evidence is only a matter of opinion, implying that undisputed facts don’t exist.

Here the Trump election case overlaps the Covid-19 pandemic. Scientists, for whom evidence is essential, warned about the coronavirus threat.  Seeking to minimize the crisis, Trump’s contrary view was not based on evidence.  He tried to cast doubt on the scientific evidence.

The U.S. is paying the price for the federal government and many states ignoring the scientific evidence, because it did not fit Trump’s political goals.  It’s just like the presidential election, where he denies state determinations that there was no fraud and he lost

Most Republicans in Congress either supported Texas or remained silent. Some of them falsely claimed that Congress has more power than the people in deciding who won. They had no problem rejecting the will of an overwhelming national popular majority.

These attitudes endanger the American system of government. If enough GOP members of Congress share them, it is a recipe for political paralysis.

All the courts that ruled on Trump’s complaints rejected the effort to have judges decide the election.  Under the Constitution, that decision is made by the people, not us, they said. 

Republicans around the country so badly wanted Trump to win that they abandoned what the courts saw so clearly.  Trump believed that, having appointed so many federal judges, they would return the favor by putting loyalty to him ahead of their own integrity and the Constitution.  He was mistaken.

Biden probably hopes unrealistically for cooperation and compromise. Perhaps he calculates that after the GOP rejects this approach, the Democrats will win big at the next election.

What’s the alternative? The disappointed Texas Republican state chair declared that, "perhaps law-abiding states should bond together and form a Union of states that will abide by the Constitution." 

That’s secession.  In this case, it rejects the lawful actions of all 50 states and D.C. and of state and federal courts at every level.  Would that “Union” elect its own president?  Impossible.

Another option would be for Congress to trim the supremacy of federal law over state law.  Let states go their own way and “bond together” on domestic policies as they see fit.  Does America need a confederation like Switzerland with a weak, rotating presidency?  Absurd.

America is great when it is united. A permanently divided America would no longer lead the world.  Trump and his allies take the country in that direction. Does that prospect bring the country back from the brink?

 

 

Maine senators could push filibuster reform, end tyranny of the minority

 

Gordon L. Weil

As the new Senate prepares to convene, moderate senators like Maine’s Collins and King could take the lead to end the tyranny of the minority by reforming the historic filibuster.  It is undemocratic and undermines good government.

The Constitution provides that both houses of Congress make almost all decisions by a simple majority, one vote more than half of the members.  The few requiring two-thirds include ratifying treaties and convicting impeached officials.

The Senate sets its own rules.  From 1789, when it first convened, until 1917, the Senate favored unlimited debate with no rule to cut it off.  In the absence of such a “cloture” rule, opponents of a measure might occasionally try to continue debate endlessly – the filibuster.

In 1917, President Woodrow Wilson asked the Senate to adopt a “cloture” rule, making it possible for two-thirds of the senators to end debate and proceed to a vote. Wilson worried that unlimited debate could block necessary actions during World War I.

The filibuster became the tool of choice of southern senators seeking to block civil rights legislation.  Usually once or twice each session, a talkathon took place, impossible to overcome with a two-thirds vote cloture rule. Finally, in 1964 the Civil Rights Act passed after cloture was voted.

Senators were originally meant to be representatives sent by state legislatures to the federal government.  But the Constitution was formally amended to require that they be popularly elected.

The Senate has changed cloture.  It has become an almost routine part of its lawmaking. 

First, it is easier to end debate, because the required majority was dropped from two-thirds to three-fifths, now 60 of the 100 senators. It became more tempting to use, because it seems somewhat more democratic.  It takes a 41-member minority to block that majority and thus control the Senate by preventing final votes.

Second, congressional Republicans adopted strong party discipline.  GOP senators are expected to see themselves less as representatives of their states and more as member of their party. The result is that, if there are 41 Republican senators, they could determine if an issue came to a vote.

In practice, the intent of the Framers of the Constitution that Congress should act by a simple majority was informally amended away.  Some people may believe in “strict construction” of the Constitution, meaning it should apply as written, but this change joined many other practical “amendments” over the years. 

In recent years, both parties abolished the supermajority required for cloture on almost all presidential nominations.  The GOP extended it finally to include Supreme Court justices.  Cloture by 60 senators remains for almost all issues.

The people and parties came to mean more than being state delegates.  Still each state has equal representation in the Senate.  In 1789, Virginia, the largest state, was considered to have a population ten times greater than Delaware.  Today, California has a population 69 times greater than Wyoming.

The practical effect is that a majority of the senators can come from states with only one-fifth of the national population.  Though that may never happen, it is a sign that minority rule is possible.  It can certainly happen when only 41 senators are required to prevent a vote.

Despite the gradual whittling down of the cloture vote, each party preserves it to protect their influence for a time when it may be in the minority. This minority veto might promote compromise, but it now yields deadlock.  Important measures, like the stimulus package, have been blocked. The filibuster survives.

It would make sense to find a way to preserve the requirement for something more than a simple majority to end debate.  But a new rule should prevent senators representing only a fraction of the population from overruling senators representing the majority of people.

Here’s the solution. Debate should be ended by a simple majority, but the majority for ending debate must include senators representing more than half of the U.S. population.  For this purpose only, each senator would represent one-half of their state’s population in the previous census.

The result would almost always require cloture to be voted by senators from both parties. It would retain the filibuster’s higher hurdle before a final vote, while preventing minority control and promoting cooperation.  It is closer to the Constitution’s original intent than the current rule.

This is called a “qualified majority.”  In reality, it’s a simple majority of both the states and the people. Versions of it are used in the EU and in Switzerland.  Both combine votes by state-like entities with a popular majority. They ensure broader support for major decisions, but prevent minority rule.

The Senate adopts its rules in January. Instead of sticking with today’s undemocratic cloture rule, Maine’s two independent-minded senators could offer this practical proposal in the opening caucus of each party.