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. 

 

 

Divided government has failed; Georgia run-offs could save it or kill it

 

Gordon L. Weil

Divided government – each party controlling part of the government – seems appealing.  It could produce compromise and block extreme policies.

But divided government is a failed myth.  Its virtues are elusive, and it often produces stalemate. Look at the federal government and Maine.

In October, President Trump passed a full year, one quarter of his term in office, refusing to talk with Democrat Nancy Pelosi, Speaker of the House. For a man who strives to set records, this gap in basic contact may be one.

In Maine, former GOP Gov. Paul LePage vetoed more bills than all his predecessors together over 100 years.  He threatened to veto all bills from the Democratic Legislature unless it abolished the state income tax. It didn’t, and he didn’t.

Checks and balances are basic to American government. The legislative, executive and judicial branches of government are supposed to keep a check on one another, maintaining a balance of power.

In theory, if government power is divided by the parties between the executive and the legislative branches or even within the legislature, that should produce balanced policies.  That could encourage voters to split their votes.  That’s what they did this year.

If voters saw the election as a referendum on President Trump, then obviously the decision went against him and to the alternative, Joe Biden.  Some Biden voters might ordinarily have supported a Republican incumbent, but opposed Trump.

After voting for Biden, many voters picked Republicans down the ticket.  Unusual in a presidential election year, the winner’s party lost some House seats and made only slight gains in the Senate even with more GOP senators up for reelection.  There was obvious ticket splitting. 

The immediate future of divided government is a prime focus of Georgia’s January run-off elections for two U.S. Senate seats.  If the GOP holds onto even one of them, divided control will continue in Washington.  Divided for sure; shared not likely. If the Democrats win both, they will control.

The proof that the current version of divided government does not work is shown by the failure so far to adopt a Covid-19 economic support bill.  Earlier relief bills served well, but more was needed to help people, small business and states weather the ongoing economic cutbacks and closures.

With an eye on the election, the parties could not agree.  The Democrats wanted major new aid and passed a big-spending bill in the House.  Senate Republicans resisted adding to the national debt, and would not agree to even a respectable fraction of what the Democrats had proposed. 

Having adopted strict party discipline, as if Congress were the British Parliament, the Republicans united to oppose a reduced, but still generous, Democratic compromise, even though some suggested they could break ranks.

The Democrats could hope the GOP would suffer for its opposition to more government aid.  The Republicans, even defying Trump, refused major new spending.  Neither sought whatever political credit might come from compromising.

This week, a bipartisan group finally came up with a GOP-sized compromise. Pushed by human needs resulting from the Covid-19 resurgence, it proposed a temporary patch.  Passage is not certain.

Add to party discipline the rise of extremism.   Legislators may worry they will lose their seats in party primaries if they compromise on extreme conservative positions.  Compromise could be good for the country, but perhaps not for their own political survival.

Democratic President Obama appointed some Republicans as federal judges. Trump and GOP Senate Leader McConnell appoint only true GOP conservatives. No compromise. So much for the promise of shared control.

Nowhere is divided government’s demise more obvious than at the state level. Only 11 states have divided governments, usually a governor of one party with a legislature of the other.  There are now 24 Republican “trifectas” (governor, house, senate) and 15 Democratic trifectas, including Maine.

In the 2020 elections, the Republicans increased their state control.  Their one-party control means they will influence U.S. House redistricting in more cases than the Democrats.  Redistricting takes place only once every ten years.

Biden-Trump brought out many voters, but with the exception of the presidential race, the effect of the election was to underline GOP support.  In Maine, with a popular Democratic governor, Republicans gained House seats.

In some states with GOP governors and Democratic legislatures, divided government has a chance of working.  In others, with Democratic governors and GOP legislatures, the Republicans have tried to legislate away the power of the governor.

In the federal government, if the GOP controls the U.S. Senate, divided government shows little sign of working.  Sen. Collins and others would have to break with McConnell to change that situation. 

Divided government has failed. The Georgia Senate races matter, because they will either keep it alive or end it.

 

Trump’s election claims meant to undermine Biden, lay basis for 2024 run

 

Gordon L. Weil

A conservative federal judge, a lifelong Republican, gets to decide on the Trump campaign’s effort to throw out all the votes in Pennsylvania, a state critical to Joe Biden’s election.  

If you are Republican, you might hope that the judge will help his party’s candidate.  But you might be surprised to learn that the president who appointed him was Democrat Barack Obama.

If you are a Democrat, you might be outraged that Obama’s Republican judge was confirmed while his Supreme Court nominee, a Democrat, was blocked by the GOP Senate.

If you prefer the rule of law over the law of the political jungle, here’s a good judge on a bad case.

Facing the Covid-19 crisis, many states allowed for a major increase in mailed-in ballots.  Reluctant to visit polling places, voters gained lower risk access by the expanded use of absentee voting.  In some states, mailed-in ballots exceeded in-person voting.

Trump claimed that mail ballots invite vote tampering and fictitious voters.  The opportunities for cheating were so obvious to him that no evidence was needed.

He also charged that vote counters themselves cheated and election officials of both parties favored Biden.  He cast himself as the victim of a national conspiracy.  Enough votes should be thrown out to make him the election winner.

As in any human activity, some cheating must exist in the conduct of elections. Historically, it has never affected more than a few ballots, not enough to change the result.  Every case must be spotted almost immediately with hard supporting evidence.

Trump’s advocates acted like his political toadies, not trained legal experts. Despite making big promises, Rudy Giuliani ranted about conspiracy theories but offered no evidence. 

After making baseless charges, they dropped their fraud claims and admitted that both parties had been treated the same.  They still insisted the election should be overturned.

The Pennsylvania case boiled down to two voters whose ballots were rejected, because they ignored voting rules. If successful, they wanted the election nullified, leaving Pennsylvania with no electoral votes.  The judge rejected the demand that an election could be erased, because of a complaint by two voters.

While the focus has been on his futile attempt to retain office after having lost an election, Trump may be laying the foundation for his political future.  His fundraising has surely been designed to help his financial future.  Trump’s plan could be that claiming an unjust defeat now helps him build and retain a disgruntled political base for 2024. 

Just as he dismissed the Obama presidency, Trump may use his fraud claims as the basis for trying to undermine Biden.  He could lead a potentially large, dissident minority that seeks Biden’s failure. Not only would that strategy aid his next campaign, but it could weaken Biden’s moves to undo his policies.

There has been furious talk about the damage caused by Trump’s efforts to claim victory and block the transition.  Some of that talk may be written off to politics.  But the assertion that Trump threatens democracy is real.

The American system of government begins with votes by “We, the People.”  Everything else is built on that foundation.  If basic decisions, like who should hold public office, are made by anybody other than the people, that’s not democracy.

For a quarter century, partisanship has increased.  In particular, Trump and his supporters believe that more than merely disagreeing with the Democrats, they face an opposing party threatening their freedom.  If so, any action to block its access to power is acceptable.

In the extreme, this amounts to saying that to save America, you may have to throttle democracy. 

That approach can be seen in Trump’s way of governing.  His executive orders amount to authoritarian rule, not decision-making by the people’s elected representatives.

This aggressive form of government operates because congressional Republicans fear running afoul of the millions of people who support Trump.  They remain quiet, refrain from showing leadership, and allow him wide discretion.

Republican senators say Trump has the right to go to court if he believes the elections were not fair.  He relied on their forbearance.  But, without evidence, going to court is not a right.  If merely asserting a right would assure courtroom success, judges would be kings.

But many judges take their independence seriously, as did Judge Matthew Brann in Pennsylvania.  The Constitution held firm at the federal court in Williamsport, Pennsylvania.

“This Court has been presented with strained legal arguments,” Brann wrote, “... unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state.”

In short, you can’t have America without democracy, and democracy means voters – all of them.