Under The Big Top
Posted: January 28, 2023 Filed under: Uncategorized | Tags: Congress, Congressional Oversight, Debt Limit, U.S. Constitution Leave a commentClowns are the pegs on which the circus is hung.
— P.T. Barnum
As expected, the 118th Session of Congress got underway with a real spectacle after fifteen ballots to finally elect Kevin McCarthy (RMAGA – CA) as the Speaker of the House. In his vision quest to finally achieve his lifelong dream to be Speaker, he gave enormous power to the clowns that constitute his main supporters in the Republican caucus. Some observers argue that he gave away too much power, and thus will have little ability to actually govern or to accomplish much of anything. Assuming that the Republicans in the House of Representatives really intend or desire to accomplish anything of substance, those observers may be right. The bottom line, however, is the same. Not much of value will come out of the House in the next two years. Anything that does is likely to be ridiculous — such as their current effort to do away with the Internal Revenue Service and eliminate federal income taxes — and is almost certainly assured to fail in the Senate and absolutely will be vetoed by President Joe Biden.
There are, however, some elements of Mr. McCarthy’s concessions to the most extreme elements of his caucus that can cause real harm to our country. (I say most extreme in the context of believing that all elements of the House Republican Party are extreme. I don’t think that there are any “moderates” left. There are only hard right wing and dangerously hard right wingers in the Party now. The evidence is based not on public pronouncements, but rather on actual votes. So far, no matter how extreme the issue, the Republicans have voted unanimously. We will see if some long time Republican members realize that the country is being taken hostage and form their own bloc to counter the crazies.)
Many analysts have focused on the moves inside the House and how damaging they may prove to be. Some of it is arcane to the casual observer, but has real consequences to how things are accomplished. Or not accomplished. I do not intend to go into each and every corner of Mr. McCarthy’s concessions to the extreme right. However, there are two that we should pay attention to as the consequences could impact us all. One is the impending battle over raising the debt limit in the United States. The other is the formation of a new committee called The Select Subcommittee On The Weaponization of the Federal Government. The Chair of the Judiciary Committee Representative Jim Jordan (RMAGA – OH) will chair the subcommittee. Some critics grimly call it “The Tin Foil Hat Committee” or “The Committee to Obstruct Justice” because its primary goal is to investigate the Department of Justice, the FBI, our intelligence agencies and according to Mr. Jordan, to investigate why conservatives are being targeted by the federal government and therefore he needs to protect the First Amendment, including such violations of the amendment as is embodied in the investigations into the events on and before 6 January 2021.
It has become a twenty first century game for Republicans to try and hold the debt ceiling hostage when a Democrat is in the White House. When a Republican is president, the necessary legislation passes without remark or notice. Separating the hyperbole from the facts is important. Without going into all of the history, one should note that the Fourteenth Amendment (one amazing Amendment, by the way) says in part, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” In other words, pay the bills lawfully incurred by the U.S. government. Simple, right? All it means is that we as a country, just like most consumers, buy things on credit and pay them off over time. And it’s in the Constitution. There should be no problem but somehow in this century Republicans try to use it as a way to cut spending by the federal government (and thereby shrink the size of the government and eliminate or shrink programs they don’t like). Their concerns are over future spending. That’s legitimate and should be debated in every Congress. But they present it to the American public as some kind of current fiscal responsibility, not future. Again, let’s look at the facts. The debt ceiling was originally an accounting step that Congress took during World War I to allow more flexibility to the Treasury Department to spend during the war without continually coming to Congress for approval. It was not meant to be the same as a budget, appropriation or authorization. It is only in recent decades that it has become a weapon that the Republicans use against the Democrats, depending on which party is in power. According to the U.S. Department of the Treasury’s official web site, the debt ceiling has been raised 78 times since 1960. Forty-nine times under Republican presidents and twenty-nine times under Democratic presidents. That is not exactly a Democrat spending problem. Math can be a tricky subject and one can manipulate the numbers a lot of ways whether discussing absolute dollars, percentages, relative dollars or other measures. That said, most experts conclude that the three presidents to have the national debt grow the most were, in order, Abraham Lincoln, George W. Bush and Donald J. Trump.
Here is the bottom line. The U.S. has never defaulted on its debt. We have already passed the debt ceiling but the Secretary of the Treasury is using “extraordinary measures” to keep paying the bills until there is a new limit (which allows more borrowing). Those measures run out around June. The U.S. has never defaulted on its debt in our entire history. No one knows exactly what will happen because it has never happened before. However, there is near unanimous agreement by serious financial experts and economists that it will trigger a world wide recession, including sky rocketing interest rates in the U.S., millions of jobs lost, the government shut down, social safety nets dry up and an economic nightmare for the average citizen. No one wants that to happen. And that’s the rub. Republicans know that Democrats can never allow that to happen and so, voila, the perfect hostage situation. Speaker McCarthy wants to “negotiate” with President Biden over spending cuts in order to raise the debt. The president says that there can be no negotiation because raising the debt limit is the normal business of the Congress under the Constitution and has nothing to do with future spending. Here’s the problem for the president. Mr. McCarthy is coming to the table with a wide ranging and drastic reduction in government programs, including in Social Security, Medicaid and Medicare. If the president gives in to even a little bit of that agenda in exchange for raising the limit, the Republicans have scored a tremendous political victory without having given up anything in return, merely doing their Constitutional duty. That is not a “negotiation.” Further complicating the issue is that members of Mr. McCarthy’s caucus probably would not mind seeing the U.S. default on its debts. Their goal is create as much chaos, anarchy and division as possible in order to fill the vacuum with their own autocratic policies and leaders. In other words, there is no guarantee Mr. McCarthy can pass anything without the Democrats help.
Some of those same extremists that would not mind destroying the American and world economy are on the Weaponization Committee. Chairman Jordan is under investigation for his actions leading up to the attempted coup on 6 January 2021. Other prominent members of the committee include MAGA supporters that are also under investigation. The panel will have thirteen members and Mr. McCarthy has already put eleven Republicans on it. Representative Jerry Nadler (D-NY) automatically gets a seat as the senior minority member on the Judiciary Committee. That leaves space for two other Democrats. Democracy in action.
It is a dangerous situation. While little of substance will come out of that committee, it will be used to try to investigate the investigators and as a cudgel against any other member of the government or a particular agency that irks them. Mr. Jordan has already demanded that the Department of Justice turn over all of their investigatory information on the 6 January coup. This would be unprecedented in American history. The Congress cannot interfere in ongoing criminal investigations. It would completely undermine the rule of law in our country. DOJ rebuffed the request but I am sure that the committee will haul the Attorney General, Director of the FBI and others before their panel to brow beat them, bully them and otherwise yell and put forth misinformation. In other words, their goal is to create more chaos, more attempts to undermine American’s faith in the government and our institutions and to foment more efforts to bring down our democracy. Also in their aim is the Department of Education and “Big Tech.” They are chartered with the ability to access the same information shared with the Intelligence Committee, another unprecedented move. They will investigate the “unfair” search warrant at Mar-a-Lago and the discovery of classified papers found in President Biden’s home (but not those recovered from Mar-a-Lago because, as one Representative put it, “he’s been investigated enough.”) They most certainly will project the insurrection on 6 January as a group of patriots exercising their First Amendment rights (see above) and of course try to cover up their own involvement in the coup attempt. Recall that 147 Republicans voted on 6 January 2021 to overturn the election. All eight of the Senators and 118 of the Representatives are part of the current Congress.
In simple terms, the Weaponization Committee can try, and will try, to investigate anything that they want to anywhere in the country and anywhere throughout the government. Witch Hunts, indeed. More dangerously they will attempt to gain access to the most sensitive information available to our justice and intelligence systems. No one knows what they may do with that information or how destructive they may be. Every Republican in the House voted to authorize this committee. That is why I despair that there are no moderates left on the Republican side of the aisle.
The clowns are in charge in the House. The circus is underway. It will be quite the show. One hopes that it results only in fury and showboating and lots of air time on Fox News rather than causing real harm to our democracy.
The Insurrection Continues
Posted: January 6, 2023 Filed under: Uncategorized | Tags: Congress, Partisan, Politics, Speaker of the House, United States Constitution 1 CommentThe Democrats are the party that says government will make you smarter, taller, richer and remove the crabgrass on your lawn. The Republicans are the party that says government doesn’t work and then get elected and prove it.
P.J. O’Rourke — American Satirist
As I write this, the House of Representatives failed for the twelfth time to elect a Speaker of the House, a position that is second in line to the presidency. Until a Speaker is selected, no other business may be conducted in the House, including swearing in the Members. Technically, right now, we do not have a House of Representatives and you have no representation in that body. This is the first time since 1856 that it has taken so many votes to elect a Speaker, and the first time since 1923 that more than one vote was required. In 1856 it took 133 votes over two months. In that case, the main issue was the debate over whether slavery should be allowed in the new states joining the Union or not. It was a substantive issue with real consequences. Today’s votes have nothing to do with any substantive issue. It is purely and plainly a power struggle within the Republican Party. Whether a political party has a huge majority or a slim one, as in this case, that party is expected to put together the votes to select a Speaker and to institute the rules for the incoming Congress. The current crop of Republicans are failing in every respect and the humiliation of the would be Speaker Kevin McCarthy (R-CA) continues.
I have written in this space before that Mr. McCarthy is a textbook example of a poor leader, and now we can observe just how bad he is. Apparently, he wants the title of Speaker of the House but he doesn’t really want the job. In his attempts to get himself elected, he has abdicated most of his responsibilities and given those that are holding him politically hostage everything that they have asked for, and yet he still does not have enough votes. It is likely that later today, or tomorrow, or next week he will end up as Speaker, but he will be the weakest one to serve in that position in a very long time. The intra-party fight is mostly over power. To outsiders it seems like an arcane collection of rules and patronages and who can chair what committee. It is a fight for power. It has nothing to do directly with policy or governing. However, those arcane rules and committee assignments will set the tone for what, if any, legislation comes to the floor for a vote. Primarily, those Republican Members gumming up the work of the House now are the very same ones who want to spend their time in office impeaching President Biden (allegedly Mr. McCarthy has promised that they can start hearings to do so in order to get their votes) investigating the J-6 Committee, and generally seeking revenge on any Democrat, Republican or citizen that they perceive to be their “enemy.”
This week’s boondoggle is only a preview of things to come. I do not expect any serious work to be accomplished over the next two years. Should there be a Speaker McCarthy, and should he accidentally want to do some serious work, such as, oh say raise the government debt limit on expenditures already made, and thus keep from ruining our economy and plunge the world into a previously unknown crisis, he can be challenged by one disgruntled Republican who can force a vote on his continued Speakership. In other words, Mr. McCarthy is mostly powerless, held hostage by the people within his party that have no interest in actually governing. They are only interested in power, Fox News exposure and raising money. Chaos and anarchy are their goals. They are a mix of insurrectionists, grifters, election-deniers and idiots. And Mr. McCarthy is ready to turn the People’s House over to them so that he can get his portrait mounted in the Capitol.
Actually, this should come as no suprise.
Today is the second anniversary of the insurrectionist attack on our government in an attempt to keep the former president in power. For the first time in our history, there was no peaceful transition of power from one president to the next. Similarly, in the House, there is no peaceful transition of power from one leader to another. In this case it is not because one party or opponents of those newly in power fought to keep the transition from happening. This is an intra-party Civil War for the heart and soul of one of the two major parties in the United States. The situation is entirely the creation of the Republican Party.
There is a straight line connecting the events from two years ago to those of today. In 2021 it was an outside attack on our government. Today it is an inside attack. The enemy is within. Never forget that Mr. McCarthy headed up not only the Republican Caucus in 2021, but also the Sedition Caucus. Even after the attack on 6 January he voted against certifying the free and fair election of Mr. Biden and he led 139 of his fellow Republican Representatives to do the same. (There were also eight Republican Senators in the Sedition Caucus.) For two years, those now obstructing the smooth functioning of the government have tried to disrupt the entire electoral process. Many of these same people are open admirers of Russian President Vladimir Putin and Hungarian Prime Minister and budding oligarch Victor Orban. Their goal is to create enough chaos and disruption to allow a “strongman” to rise to power and take control of the government. They cloak themselves in patriotism but have no idea what the Constitution means or what it stands for. In a way, we should be thankful for their dysfunction. If they were organized and united they could be an even greater threat to our democracy.
Thomas Jefferson famously said that “the government you elect is the government you deserve.” I think we deserve better than the circus we are witnessing in the House of Representatives. As the dysfunction continues over the next two years, I believe that the American people will come to realize that they deserve better and will throw the bums out (well, many of them). It remains to be seen how much damage the insurrectionists can do in the meantime. Thank goodness the Senate remains as a buffer to the insanity.
We Must Continue to Stand With Ukraine
Posted: December 27, 2022 Filed under: Uncategorized | Tags: Congress, Ukraine Russia, United States, Vladimir Putin 1 Comment“Your money is not charity. It is an investment in the global security and democracy that we handle in the most responsible way.”
—Volodymyr Zelenskyy in a speech to a Joint Session of Congress on 21 December 2022
As we celebrate the holidays and look toward a new year, it is important to remember that the war in Ukraine continues. This is day 307 since the Russian invasion in February. Fierce fighting continues in eastern Ukraine and the entire country is subject to air raids from missiles, drones and artillery. While the Ukrainians continue to fight with courage, tenacity and ability, they are still outnumbered and with fewer technologically advanced weapons than their Russian counterparts. It is a a brutal war.
Recently, Russian President Vladimir Putin announced that he will send 500,000 additional troops to the Ukrainian front. Such numbers are staggering and could easily overwhelm the Ukrainians on the ground. That is until we pull back the curtain and it reveals that most of the 500,000 are conscripts off the street and, literally, convicts recruited from prisons throughout Russia. They are sent to fight with little or no training and often suffer from lack of adequate weapons, winter clothing and food. Such is the Russian way of war. Even their most vaunted Army units are in trouble as outlined by a recent article in the Washington Post. The “200th Separate Motor Rifle Brigade” was considered one of the most elite units in the Russian military. Originally tasked with protecting the nuclear missile submarines of the Russian Navy based in the far northern Kola Peninsula, since the end of the Cold War, the “200th” was often tasked to take on some of the Russian military’s toughest assignments. Last February, they were among the lead elements of the invasion tasked with taking Kharkiv. Since then, their staggering losses of experienced personnel and of state of the art equipment leaves them, in the estimation of several European intelligence assessments, in such a state that it “cannot be considered a fighting force.”
The Russians are losing the ground war. Unfortunately, Mr. Putin is determined to continue the fight. His goal seems to be the total obliteration of Ukrainian culture, quality of life, and the civilian population. In the dark of winter, the fighting on the front will continue with heavy casualties on both sides while attaining only minor tactical advantages. Operationally and strategically, the winter fighting will remain stagnant.
The result? Nearly daily Russian terrorist attacks on civilians in Ukraine. If he cannot win on the battle field, Mr. Putin will punish the civilian population. Terrorism is the only way to describe the continued attacks on schools, hospitals, museums, power stations and water plants. Mr. Putin is determined to destroy the will of the Ukrainians to resist. Clearly, he has never studied history if he believes that a reign of terror descending from the skies will turn the tide of war. He obviously never studied Britain’s response to the intense bombing of World War II, his own nation’s resistance in that same war to the Germans in Leningrad or Stalingrad, or countless other stories of a determined population strengthening their resistance to tyranny while under relentless attack.
Mr. Zelenskyy was in Washington D.C. last week to convey directly to the U.S. Congress and to all of us as citizens that Ukraine will not fall to Russian aggression. They are unwavering in their determination. But they need continued help from the U.S. and NATO and Mr. Zelenskyy was here to make sure that we do not get weak-kneed in our support. With the swearing in of a new Congress in January, numerous MAGA Republicans are pushing to end, or at least severely restrict, the aid we send to Ukraine. (Incredibly, some are open admirers of Vladimir Putin — their view of a strong and effective leader.) For the time being, our support of Ukraine continues thanks to the Omnibus Bill passed by the House and Senate as they headed out the door for the holidays. The all encompassing bill (ostensibly a 1.7 trillion dollar spending bill, it is packed with numerous amendments addressing everything from tax law to the Electoral Count Act of 1887) included 45 billion dollars for Ukraine. Thus Mr. Zelenskyy’s statement that this is not charity, it is a fight for the rule of law and the sanctity of democracy. I agree with him.
The war in Ukraine is not some far off, obscure war where the average American could probably not even find it on a map (of course the average American isn’t very good about locating places on a map of the United States). It is nothing less than a line in the sand that western democracies will not see the post World War II world order go up in flames. Ukraine is the first attack on European soil since the 1940s where one country is determined to take over another through military force. The West either believes in supporting democracy or all democracies will be threatened. The Baltic States, Finland, Norway and Sweden certainly understand the stakes due to their borders with Russia. Polish history makes them very aware of the dangers of this Russian threat. This is the biggest test yet as to whether we in the U.S. and NATO believe what we say or whether we are going to look away. Our domestic politics sometimes obscures this point. But if we do not help Ukraine, we may as well tell the world that we are no longer a world player, and China would certainly be glad to hear that as they continue to threaten a peaceful Taiwan.
The size and scope of our support is growing as the conflict continues. The U.S. and NATO are walking a fine line in trying to keep Ukraine in the fight and capable of defending themselves without expanding the war into the rest of Europe. In November, a missile landed in Poland near the Ukrainian border and killed civilian workers. It turned out to be a Ukrainian air defense missile gone astray, but it raised serious concerns as it exemplified a possible Russian provocation. President Joe Biden declared that we will defend every inch of NATO territory. What if the next “stray” missile is Russian and we have the intelligence to support the fact that it was not accidental? Such a scenario will severely test NATO resolve and engender debate as to the appropriate response. (Most likely the response would be measured and on a similar scale, such as a cruise missile slamming into the launch site from which the missile came. The problem, of course, is that a miscalculation or misunderstanding the intent can quickly lead to a massive escalation.)
I have at least two recommendations to move our country’s support of Ukraine to a new level. One is to declare Russia a terrorist state. There is no question that they meet the criteria. The torture, rape, abduction and murder of Ukrainian civilians by Russian soldiers are war crimes. Mr. Putin’s order to indiscriminately bomb cities and towns along with the deliberate targeting of humanitarian facilities are terrorist activities. Car bomb or exploding drone? No difference. To do so incurs certain legal and international actions and the West is not certain how the Russians might respond, as well as concern over the second and third order impacts on our other friends or allies. At this point, it is necessary. Make the proper diplomatic preparations and then do it.
The second game changer would be to give the Ukrainian military offensive weapons. The U.S. and NATO are reluctant to do so in fear that the Russians would see it as provocative and a possible act of war should they be used against the Russian motherland. It is a risk worth taking in my opinion. Through training, effective intelligence to monitor their use, and other measures to modify the weapons the West can minimize the chances that the Ukrainians would misuse the weapons. The rationale for supplying them is that as long as Russia has safe havens for their missile launching aircraft, drones and ships, they run no risk and can fire at will to destroy Ukrainian cities. Bringing Russian logistics hubs, training centers, and bases in occupied Ukrainian territory into the war raises the stakes for the Russian military and contributes to the unmistakable decline in Russian morale. It could help to convince more Russian soldiers to defect or go home (thousands already have), and the increased destruction of the Russian military could lead to increased unrest in Russia, including some in the government that do not want to see their military and economy destroyed because Mr. Putin has some kind of crusader-like vision quest for Ukraine. It is worth the risk.
I am sure that efforts already are under way to curtail third party efforts to supply Russia. Most notably, Iran is sending armed drones in vast numbers for the Russians to use against Ukrainian cities. There is also open source reporting that North Korea is probably supplying Russia with artillery and ammunition for use in the war. The U.S. and other nations have the means to make this too painful for those countries to continue their support. To date, China has not helped Russia militarily. Diplomatic efforts must continue to ensure that they do not do so.
As it is, Mr. Biden promised to send a Patriot missile battery to Ukraine. This is a very advanced air defense system. It will take time for the battery to arrive and for the Ukrainians to get properly trained in its use. Some have criticized the decision as being provocative and could lead to an escalation by the Russians. Not so. As Mr. Biden pointed out, it is a defensive weapons system. It won’t be used unless the Russians continue to attack Ukraine.
To me it is not only important from a geo-strategic viewpoint for the U.S. to continue to support Ukraine. It is in our national interests to help them. It is not an act of “charity” or done at the expense of our own citizens. It is absolutely a case of pay me now or most certainly we will be paying much more later, including with the blood of our sons and daughters.
A Good Day for Democracy
Posted: November 14, 2022 Filed under: Uncategorized | Tags: Congress, Politics 1 CommentLast week’s election was a tribute to American democracy and to Americans. As I write this, the make-up of the House of Representatives is unknown, but it likely will be controlled by the Republicans with a majority of between two and seven Members. Regardless of the result in the upcoming runoff election in Georgia, the Democrats retained control of the Senate, which will provide a buffer for any craziness that comes from the House in 2023 (a function the Senate traditionally fulfills regardless of which party may be in power) and will allow President Joe Biden to continue to appoint members to senior administration positions, and most importantly, to appoint members of the judiciary.
Historically, last week’s results are very unusual as the party in power at the mid-term elections of a president’s first term almost always loses seats (often lots of seats) in the House and Senate. Not this time. While the Democrats seem ecstatic over the results, it still is likely that the Republicans will control the House. To me the Democrats celebrating the results of this election is like the losers of the Super Bowl celebrating. “We only lost by one point as time expired! What a great victory!” There are no “moral victories.” It is still a loss, and despite the signal that some of the more mature members of the Republican Party understand the message that voters sent, there are still a whole bunch of MAGA Republicans in the House (and elsewhere) just salivating at the prospect of being in charge. Time will tell which branch within that party prevails, but I fully expect that the craziness coming from the MAGA crowd will only increase. Buy your tickets now for the three ring circus that the House of Representatives will be for the next two years.
That said, we as a country, should celebrate this election. Democracy worked. Most of the truly extreme candidates did not win. Election-deniers conceded (so far) that they lost their races. No significant fraud or disruptions to voting occurred. It went as planned and as it should, despite the best efforts of those on the far right that desperately wanted things to go awry. The system worked. That in itself is a great accomplishment as many of us were not so sure that it could work, much less that it would. Thankfully, it appears that we stepped back from the brink of losing our Republic.
In another series of votes last week, we learned that the Supreme Court is hopelessly out of touch with the majority of Americans and that two things can be true at the same time. Last summer Kansas held the first state-wide referendum on abortion rights in the wake of repealing Roe v Wade in the Dobbs v Jackson’s Women’s Health Organization decision. Kansans overwhelming defeated an amendment that would have prevented abortions in the state. In the recent election, voters in five states either rejected restrictions on abortion or outright affirmed a women’s right to choose — all of the states that had the issue on the ballot. In Montana and Kentucky voters rejected further restrictions on abortion. Vermont, Michigan and California approved amendments to enshrine abortion rights. So far whenever the issue is left to the voters, rather than to male dominated state legislatures, the people have voted in favor of women’s rights. Many thought that Roe got it right — they want abortion to be safe and legal. To me, this demonstrates that the Supreme Court is out of touch. It also demonstrates that individuals may personally oppose abortion (they would never have one or help to facilitate one) but that they still do not want government officials, elected or otherwise, interfering in what is the most personal of decisions. Some also rebelled at the idea of imposing other’s religious beliefs on everyone. Additionally, I think many Americans have learned that the issue of abortion is about more than just a “cavalier” decision on wanting children or not. There are complicated emotional, economic, and practical issues at play. We have also (re)learned that draconian anti-abortion laws really do impact women’s health. It is not a black and white issue to most voters. It’s complicated. And they so voted.
It will take some time to fully digest the import of this election. However, even as results continue to trickle in and there inevitably will be recounts and challenges, it is clear that democracy won. People understood that our political way of life was on the line and they responded. We should all give ourselves a pat on the back.
A Clear and Present Danger
Posted: June 24, 2022 Filed under: Uncategorized | Tags: 2020 Election, 2020 Election. Insurrection, Congress, Coup, J6 Committee, Sedition, Supreme Court 2 CommentsFor anyone that cares about the fate of our country now, or in the future, this was one busy week in Washington D.C.! While the Supreme Court was busy making our country less safe and rescinding a Constitutional right for the first time in our history (while threatening to continue to eliminate more in the future), the Select Committee to Investigate the January 6th Attack on the United States Capitol (commonly referred to as the J6 Committee) continued its hearings. Yesterday was the fifth in the series, and at least to this observer, the most compelling of them all. Which is saying something as each has been ever more riveting than the previous ones and they continue to boggle my mind with the audacity of the ex-president’s attempted coup.
While we were aware of seemingly isolated events in real time in late 2020 and early 2021, the J6 Committee is able to connect the disparate dots into a comprehensive explanation of the attempted coup following the 2020 election. What seemed to me at the time as a series of egotistical bloviating statements, coupled with wild and preposterous claims by unprofessional and clueless attorneys acting simultaneously with unscrupulous election officials and elected officials in key swing states can now be described as a preposterous, but highly coordinated, well-executed series of conspiratorial schemes to decertify the presidential election to keep the former guy in office. For the first time in our history (there seems to be a lot of that these days), a losing president refused to conduct a peaceful transfer of power to his successor and tried to retain power for himself. The ongoing hearings reveal just how close we came to losing our Republic.
Many an amateur historian wondered how the democracies in Italy and Germany could lead to dictatorships in the 1930s. We now know how it happens because we came oh so close to having it happen here. A charismatic leader creates a cult-like following and then finds people within the system that are willing to do anything to gain power for themselves in support of the would be autocrat. Based on yesterday’s sworn testimony, we now have a poster boy for those that would overthrow our way of life. His name is Jeffrey Bossert Clark, an Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice (DOJ). While his is a Senate confirmed position, he is relatively low on the hierarchy to be known to the average member of the public. He is now known far and wide as the man who was willing to stage a coup within DOJ in order to help the now ex-president stay in power. (As a side note, he was the subject of a pre-dawn visit by federal agents on Wednesday executing a search warrant to confiscate electronic devices for investigation into their possible use in a criminal enterprise.)
Mr. Clark worked a behind the scenes deal with the defeated president to become the Acting Attorney General of the United States. As was abundantly clear during yesterday’s testimony, Mr. Clark had no experience, expertise, or ability to run the DOJ. What he did have was the willingness to send out a bogus, deceitful, and unscrupulous letter to officials in Georgia and other states insinuating that the DOJ was investigating election fraud. Which was a lie. (Seemingly, the best way to find a place in the ex-president’s inner circle is the ability to unabashedly and unashamedly tell bold faced lies.)
His involvement seems like the “smoking gun” demonstrating the ex-president’s intent, ability, and effort to undo the free and fair election that gave President Joe Biden the presidency by roughly 7 million votes.
The then president continued to push the actual Acting Attorney General Jeff Rosen and Deputy Attorney General Richard Donoghue to send out the letter mentioned above. For days and in multiple conversations they explained that they had investigated every claim of fraud or improper election activity and there was nothing that impacted the outcome of the election. It was a free and fair election. As he testified yesterday, and in Mr. Donoghue’s contemporaneous hand written notes provided to the J6 Committee, Mr. Donoghue and Mr. Rosen explained that they could not “just change the outcome of an election. It doesn’t work that way.” The now ex-president responded “I don’t expect you to do that. Just say that the election was corrupt and leave the rest to me and the Republican Congressmen.“
(In yesterday’s proceeding, sworn testimony from at least two sources included the fact that Republican Representatives Mo Brooks (ALA), Matt Gaetz (FL), Louie Gohmert (TX), and Scott Perry (PA) asked for “blanket pardons” before the 2021 Inauguration. Additionally, it is believed that Representative Marjorie Taylor Greene (GA) asked for one. There was also a request for blanket pardons for “every Congressman or Senator who voted to reject the Electoral College vote submissions of Arizona and Pennsylvania.” aka the Sedition Caucus. Anyone that continues to support him now, knowing what we know with who knows what other gasp inducing revelations to come, is a traitor to the ideals of our nation.)
The ex-president knew that there was no corruption, he just needed DOJ to officially corrupt itself by signing a false document to fool the American public into thinking something was amiss so that he could use his allies in the Congress to decertify Electoral College votes for Mr. Biden and throw the whole process into chaos.
It was a premeditated plan with a beginning a middle and an end to keep him in power. As the hearings continue, we now know that there were multiple avenues of corruption intended to decertify Mr. Biden’s victory and to keep the former guy in office. The insurrection on 6 January was not a random act but rather part of a larger plan to pressure Vice President Mike Pence into changing the Electoral College votes, or, should that fail, bring down the Congress and decapitate the number two and number three office holders behind the president. We shall see what else the committee brings forward, but my guess is that the intent was to create such chaos and uncertainty with the attack on the capitol as to allow the president to invoke the Insurrection Act and declare Martial Law to keep himself in power until he could rig things to keep Mr. Biden from assuming the office.
There are two things that worry me going forward.
First, unlike former president Richard Nixon, this ex-president is not going away. He continues to rile up his cult followers in the public and in elected office to pursue the Big Lie that he won the election in, as he likes to say, “a landslide.” Over one hundred successful candidates for office in this year’s Republican primaries are advocates of the Big Lie. In many ways, the events surrounding the 2020 election were a dress rehearsal for 2024. Only a few real patriots that understood and stood by their oaths to the Constitution saved the day. Next time there will be people in place that do not take their oath seriously and will be willing to do whatever it takes to put their person in office. Apparently, some people put their oath to support and defend the Constitution in the same category as checking the box for terms of service to get on a web site.
As former Republican United States Circuit Judge John Michael Luttig, a conservative’s conservative, warned in a previous J6 Committee session, that there “was a war on democracy instigated by the former president and his political party allies on January 6” when “knowing full well that he had lost the 2020 presidential election… he and they set about to overturn the election that he and they knew the former president had lost.” He then went on to say that the ex-president’s actions today create “a clear and present danger” to the future of our democracy. Words no judge states lightly.
Second, what do we do about it? The danger of indicting and sending a former president to trial, under a new president from a different political party opens an entire series of questions about what that means to the future of our country. Does it set a precedent for every succeeding administration to pursue the previous one as punishment or payback? Would we be, as Dana Milbank of the Washington Post put it, “one bunch short of becoming a banana republic?” It is scary stuff. Unprecedented in U.S. history. It could start a Civil War — taking our current cold civil war to a hot one. Unknown territory.
On the other hand, the ex-president’s actions and those of his cronies and accomplices are also unprecedented. If we believe that in these United States “no one is above the law” then why would we not prosecute him? Clearly, I am not an attorney, but to this layman’s eyes the ex-president and many of his accomplices broke the law. They tried to overthrow the government. They were willing to establish an autocracy with one-man rule. Why should that go unpunished? If ever there was a political crime in our history since THE Civil War, this it. And he is planning to do it again. He told us as much. Holy Moly! As I have mentioned in this space on many previous occasions, autocrats from Mussolini to Saddam to Trump tell us exactly what they are going to do. They do not always succeed, but they have no shame and their ego is such that they are convinced that they can get away with it. Why let a petulant bully get away with crimes just because he happens to be a former president?
Taking the emotion out of it, hard to do, at least for me, there are pros and cons whichever way DOJ decides to go. There is every possibility that however Attorney General Merrick Garland decides to pursue this, or not, it could go south and turn out very badly for our country. To me, we have too much to lose by not pursuing every legal measure available to hold the former guy accountable. It is far more dangerous to our country in the long run to turn a blind eye to the coup ring leader. After each of his impeachment trials he was emboldened to take ever more egregious actions. If he is not held accountable for an attempted coup, who knows what he is likely to try next.
I agree with Judge Luttig. He is a clear and present danger to the future of our Republic. If one believes that, then there is no question as to whether to pursue a legal remedy to hold him accountable. Do it.
The Coming War Over the Supreme Court
Posted: September 21, 2020 Filed under: Uncategorized | Tags: 2020 Elections, Congress, Constitution, Donald Trump, Justice Ruth Bader Ginsburg, Mitch McConnell, Supreme Court 3 CommentsLast Friday we learned of the death of Justice Ruth Bader Ginsburg. Please take a moment to think of her and her family. She was a great American and a great American success story, coming from humble roots in middle class Brooklyn New York to rise to the Supreme Court. Along the way she was a true trail blazer and a forceful voice for human rights. She will be missed.
Her death opens a seat on the Supreme Court and offers Mr. Donald J. Trump the chance to put a third Justice on the Court. Elections do have consequences. The question then becomes, when do the consequences of an election kick in? In 2016 following the death of Justice Antonin Scalia, Senate Republicans kept an open seat on the Court for roughly a year claiming that no new Justices should be nominated or voted on until after the election of a new president. President Barack Obama’s nominee Merrick Garland did not even get a hearing, much less an up or down vote.
The real player in the drama then and now is Senate Majority Leader Mitch McConnell (Tr – KY). As much as Mr. Trump has pushed and pulled and ignored the norms surrounding the office of the president, Mr. McConnell has done the most to undermine the legitimacy of the Senate and the norms that used to guide our selection of judges to federal courts and to the Supreme Court. Along with unilaterally changing the required number of votes to approve a Supreme Court Justice from 60 — which normally meant that whichever party was in power would have to have some votes from the other party in order to confirm a nominee, thus allowing for more moderate judges to make it on to the court — it now only requires 51 votes which gives each party a chance to approve radical judges aligned with their party’s interests.
Indeed, Mr. McConnell has been so focused on getting judges on to the federal courts that very, very little else has been addressed over the last two years in the Senate. Mr. McConnell put his pursuit of judges over the lives of the now 200,000 Americans dead from Covid-19. He will not address any of the pandemic relief bills so desperately needed to fight the virus and to restore our economic well being. So much for claiming to be pro-life.
Much has been and will be written about the sheer utter hypocrisy of Republicans surrounding the nomination and confirmation of a new Justice during an election year. In 2016 it was a full ten months before the election. This year it is only about six weeks before the election. In fact, some states already have early voting underway. You will see lots and lots of video clips of one Republican Senator after another twisting themselves into more knots than a pretzel trying to explain why it was different then than it is now. Sad. Additionally, please remember that there is no such thing as the “Biden Rule” or “Thurmond Rule” or even a “McConnell Rule.” That is a lot of smoke to hide what is actually going on. There is only the law.
The bottom line? There is no shame in Trumpland. They will do whatever they want and without regard to the lies, hypocrisy and sheer awfulness of it. It won’t change so I won’t waste time arguing it or bemoaning it. To quote the president’s remarks about the deaths of so many of our fellow citizens, “It is what it is.”
There is no shame. It is just pure power politics. In effect, they will steal a Supreme Court seat for the second time.
What action can those that still have a sense of duty do to stop it? Procedurally, not much. The Constitution is vague about this issue. Article III, Section I of the Constitution says merely that:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Significantly, there is no indication of how many Justices there shall be or exactly what their role should be. Starting with the Judiciary Act of 1789, Congress shapes the size and authority of the Court. Of the three branches of our government, the Supreme Court is probably the one that most resembles its origins and relies heavily on custom and tradition in the process of taking care of business. Chief Justice John Marshall, appointed to the court by President John Adams, is credited with shaping the court into the form and substance we know today. The number of Justices on the court varied over time until 1869 when the number became nine and remains so today.
All of this is background as to what means are available to Democrats, and perhaps a few Republicans, to delay the confirmation until after the election and leave the choice to the winners in the White House and the Senate.
Since it now takes only 51 votes to over-ride any legislative maneuvering and to confirm a nominee, the opposition to a hasty process can only come from political pressure. It is an election year and several Republican Senators are up for re-election and find themselves in very tight races. This issue could have a significant impact on who is elected or re-elected. If their constituents forcefully voice their opposition to proceeding without regard to the election, some sitting Senators may find it difficult to support Mr. McConnell’s plan.
So far two Republican Senators have indicated that they do not support moving ahead with the process until after the election. Is it possible more might join them? Possible, but not a sure thing. Tremendous pressure will be applied to every Republican Senator to stay in line. In that regard, when the vote is taken will be critical.
By all accounts, the only thing that Senator McConnell values more than changing the face of the judiciary is retaining his power and prestige as majority leader. He will use everything in his power to keep power. It is conceivable that to protect vulnerable Senators that could be harmed by having to vote for a Trump appointee prior to the election, he will hold hearings before the election to gauge the political winds and hold off on the actual vote until after the election. Those that are re-elected are safe, those that are not have nothing to lose. The question then becomes a matter of conscience as to how individuals may vote, a commodity that unfortunately seems to be in short supply in the current political arena.
It would be a real insult to our democratic ideals if the Republicans lose the White House and their majority in the Senate but go ahead and confirm a Trump appointee.
There are many scenarios that could play out. I have no idea what will happen. The Republicans have a three seat majority. If three Republicans vote against a nominee, the Vice President would be the tie breaker. The Democrats would need to convince at least four Republicans to vote against a nominee, something that will be difficult to do should the nominee be a truly qualified jurist.
It seems that for the Democrats to stop the appointment of another conservative Justice, thus giving them a 6-3 advantage on the Court, they need to play hardball.
During the last four years the institutions of our government have been abused, even debased, in the pursuit of power by Mr. Trump and Mr. McConnell. To play the same game, some advocate for the Democrats to say that should the process ignore the election results that they will expand the Court to include more Justices. The law designating the number of Justices can be changed by a majority vote.
Personally, I think this is wrong. It would never stop as eventually one party loses the majority and the other looks to regain the upper hand. Our system of government has been under assault for four years, messing with the Supreme Court would be the beginning of the end of any restrictions on changing the rules to suit one party and undermining everything we used to hold as important to our fundamental system of government.
It may also backfire in that some voters may vote against the Democrats if they threaten to expand the Court.
There are some twists and turns that could influence the outcome. Two Senate institutionalists are retiring this year. Senators Lamar Alexander (TN) and Pat Roberts (KS), with no debt to pay to Mr. McConnell, or to Mr. Trump, may put the traditions and unwritten norms of the Senate and the judiciary above party politics. Should Senators Lisa Murkowski (AK) and Susan Collins (ME) stick to their avowed decision to oppose a nominee that would be the four votes needed to stop this move.
Another wild card vote comes from Arizona where Senator Martha McSally is currently behind her Democrat opponent former astronaut Mark Kelly. Since Senator McSally is an interim appointee (she fills the seat that belonged to John McCain), if Mr. Kelly wins the election he would be seated by the end of November bringing down the Republican advantage in the Senate.
Numerous possibilities will be floated in the coming weeks. There are no arguments to be made or scenarios to play out should Mr. Trump get re-elected and Mr. McConnell retain his majority in the Senate. There would be nothing that could, or should, stop Mr. Trump from seating his third appointee. Mr. Trump will campaign on this issue and try to make it a referendum that he thinks will help him win. Of course he wants the campaign to be about anything that distracts from his horrifying dereliction of duty mismanaging the pandemic and the loss of over 200,000 of our fellow citizens.
However the next few weeks unfold, two things are certain. Our nation lost a truly historic presence in the Supreme Court and an already wild and improbable election cycle where anything can happen just got even wilder and more unpredictable.
R.I.P. Republican Party
Posted: August 25, 2020 Filed under: Uncategorized | Tags: Congress, Cult of Personality, Donald Trump, Partisan, Republican National Convention, Republican Platform, United States Constitution 1 CommentOver the last four years the Republican Party as a whole, but especially in Congress, lost its way. They abandoned everything that they used to believe in in order to assuage the Tweeter-in-Chief. As a result, the party has been on life support most of that time. We can now call the time of death as Sunday 23 August, 2020.
The Republican Party is now officially a wholly owned subsidiary of Trump Family, Inc.
Lest you think I am exaggerating, on the eve of the Republican National Convention, the party announced that for the first time in its history, they would have no platform. In a one page declaration of “whereases” assailing the media and affirming their enthusiasm for Mr. Trump, they concluded by saying,
“Resolved, That the Republican Party has and will continue to enthusiastically support the President’s America-first agenda;
Resolved, That the 2020 Republican National Convention will adjourn without adopting a new platform until the 2024 Republican National Convention.”
I guess it boils down to “I’ll have what he’s having.” More succinctly, the Republicans now publicly declare that they stand for nothing. There is no official vision, plan, policy, or goal that they will try to achieve over the next four years. Whatever the president says at the moment, is, I suppose, what they will do, even if tomorrow they need to reverse course when he changes his mind after seeing something on Fox News. The Republicans will just wait around for a kingly pronouncement.
Unfortunately, Mr. Trump does not have a vision or plan for the future either. In interview after interview on Fox News and other friendly venues, interviewers have tossed him softball questions as to what to expect over a possible second term. So far, zilch, nada, zip, nothing. His replies only have been rambling statements about past grievances, pet peeves, or “acing” a cognitive ability test.
I find it sad, and a bad omen for our country. I believe firmly in the two party system as part of the checks and balances that keep our country on a relatively middle of the road path to the future.
Arguably, many past platforms may have been exercises in producing wish lists by those that write them. More positively, they provide a blueprint, plan, policies and aspirational goals that the respective parties want to accomplish should they carry the election. Now, according to their own document, there is nothing that the Republicans want to achieve other than whatever Mr. Donald J. Trump and his family declare in the moment that they should do.
The Republican Party is dead. The Cult of Trump is alive and well.
The Republican National Convention is now nothing short of a coronation for Mr. Trump. Indeed, Mr. Trump has repeatedly declared that the upcoming election would be “rigged.” Yesterday, to kick off his convention, he declared that “the only way they can take this election away from us is if this is a rigged election.” Think about that. His party has given him carte blanche to do whatever he wants, and he publicly declares, repeatedly, that the only election result he will accept is if he wins.
That is a combination that should concern us all, especially given Mr. Trump’s increasingly lawless actions.
I do not wish to insult the intelligence or motives of those that support Mr. Trump. It is a long American tradition to distrust the government, the media, and experts about anything and everything. Mr. Trump is nothing else if not a salesman. He knows how to tap into that resentment. No matter the facts, or the eloquence of the argument, no one is going to sway the die-hard Trump supporter that they should stop supporting him. Listening to the language showered upon him in the first day of the Republican Convention shows he has attained a Messianic following. It is truly a cult of personality. His support rests upon cultural and emotional issues, not a coherent vision for the future. That is not going to change no matter how outrageous his behavior becomes over the coming months. His followers are going to “stick it to the man” no matter what.
The establishment Republican Party that may have moderated his behavior ceased to exist. They will not do their Constitutional duty. I blame the Republican members of Congress and their obvious cowardice in the face of actions by a president that they would have wholeheartedly condemned in any other modern president Republican or Democrat. Perhaps future historians will be able to figure out why there has been such a wide-spread display of cowardice on their part. I cannot explain it.
It is now up to the voters to decide. We need to weed out the merely outrageous aspects of Mr. Trump’s behavior that distract us nearly every wearying day. Instead it is time to focus on those actions of his, as aided and abetted by a cowering Senate, that threaten our future as a Republic.
We cannot be intimidated or cowed. Too much depends on it. Please vote, no matter what.
Putin’s Obedient Servant
Posted: July 3, 2020 Filed under: Uncategorized | Tags: Congress, Constitution, Dereliction of Duty, Donald Trump, Force Protection, Russia, Russian Bounties, Russian Meddling, Vladimir Putin Leave a commentAs Mr. Donald J. Trump continues to work hard over the last week to cement his status as the Worst President Ever, there are numerous examples of his total failure as a leader and as a person. Whether it is continuing to espouse that COVID-19 will “sort of disappear”; promoting “white power”; holding thinly disguised rallies at national monuments; or running for president of the Confederacy, there are large numbers of occasions when one can only shake your head and hope that the election gets here soon.
And then it gets worse.
There may be no part of the job of President as important as that of Commander-in-Chief. People die when the president gets it wrong. For that matter, people sometimes die even when everything goes as planned. It is a tough world and it is part of the pact between the military and the American people that service men and women will go in harms way to protect and defend the Constitution and our way of life in exchange for the promise that their lives, talent and American treasure will not be wasted in futile exploits and that those in charge — all the way to the president — will do all that they can to keep them safe in an inherently dangerous profession. In the military it is known as force protection.
As a country, we can be reasonably certain that the recent revelations that Russian operatives worked with the Taliban in Afghanistan to put a bounty on the lives of US and coalition service members are true. The evidence is startlingly clear. The price for an American death was as much as 100,000 dollars.
Within a normal administration this would have caused one of several, or multiple, courses of action to kick in immediately upon learning of this threat. The Russians would be warned at the highest level of government that this was a dangerous game that must stop immediately. Likely, sanctions would be leveled against all involved. Probably, especially if further evidence was uncovered, those involved in Afghanistan would have been on the receiving end of a capture or kill operation.
As we know, sadly this is not a normal administration. The official announcement was that no action will be taken against Russia.
And then it gets worse.
Mr. Trump says, “I think it’s a hoax by the newspapers and the Democrats.” These remarks came on 1 July after several days of credible reporting that Mr. Trump continuously decried and belittled.
The excuses for inaction have come fast and furious. Among those floated were the assertion that Mr. Trump was never briefed on the situation. When that was reported to be inaccurate, the excuse was that it may have been in a written intelligence document but no one verbally briefed him. When that did not quite pass the smell test, the reason given was that the intelligence reports were not “verifiable.” Well now. That is not an intelligence term. Most intelligence reports in this vein are not verifiable. The terms of art are “credible” or “not credible.” When there is credible evidence of a terrorist attack, it is not verified that an attack is actually going to happen until it does. The country does not — or at least did not — wait for an attack before acting. The killing of Osama bin Laden was based on credible intelligence — they did not know for sure that he was in that villa at that time — it was verified when they got a DNA match from the dead body. The terms that Mr. Trump and his enablers use are just gobbledygook designed to deflect from Mr. Trump’s dereliction of duty as Commander-in-Chief.
Rather than being bogged down in the weeds over who was briefed and to what level, etc. etc. etc. the real question should be what action would a president take once the story broke? The answer is easy. The president picks up the phone and calls for an immediate update and then works with his staff for appropriate responses to counter the Russians or to put out a credible explanation as to what actually happened should the facts have been misinterpreted.
So now we all know about it. Who knew about it when is not now important. What is Mr. Trump going to do? Apparently, whine about how it is unfair to him and that it is all designed to make him look bad and on and on with his usual “poor me” schtick. Despicable.
It seems that the lives of US service men and women fighting our nation’s wars are less valuable than whatever political ax Mr. Trump has to grind.
The signal to Mr. Putin? Do whatever you want Vlad because the USA is not going to hold you accountable. It is open season on Americans abroad and on our national security at home. Kill our folks. Interfere in our election. Conduct cyber attacks on our businesses and infrastructure. Do whatever you want because the stable genius in the White House will not do anything to upset his personal apple cart full of Russian money.
To me, that is the best and most plausible explanation as to why Mr. Trump refuses, time and time and time again, to do anything to upset his “friend” Vladimir Putin. My sense is not that Mr. Trump is protecting Mr. Putin. My strong belief is that Mr. Putin is protecting Mr. Trump’s secrets and Mr. Trump is afraid that if he says or does the wrong thing, the Russians will put it all out there. Putin is the name, blackmail the game.
No one with oversight responsibility has yet to see Mr. Trump’s taxes or the financial records of Trump, Inc. Mr. Trump has fought long and hard in court to keep those records secret. I am willing to bet that those records are full of illegal at the worst, unethical at the best, transactions. Mr. Trump and Trump, Inc. had multiple bankruptcies. US banks stopped lending him money for his far flung schemes. My bet is that Russian oligarchs, beholden to Mr. Putin, bailed him out and in return Mr. Trump and his businesses helped the Russian Mafia to launder money and to conduct other illegal schemes.
Have you ever seen the movie The Godfather? It’s all you need to know as to how Mr. Trump is entangled with the Russians. And believe me, Mr. Trump is not the Godfather. I don’t think he is even as smart or as skilled as Fredo.
We know that our values are totally corrupted when the Commander-in-Chief will take no action to protect our troops and the Party of Trump in the Congress stays silent. It is hard for me to decide which is more loathsome — a president that will not do his job or members of Congress that protect and defend a corrupt president rather than our troops.
The Supremes And Our Presidential Election
Posted: May 22, 2020 Filed under: Uncategorized | Tags: 2020 Elections, Congress, Constitution, Electoral College, Historical Perspective, Seventeenth Amendment, Supreme Court, Twelfth Amendment Leave a commentWhile you were focused on the coronavirus pandemic and its devastating impact on our society, other government functions continue as intended. Among those continuing to function, although for the first time in history they did so via video conferences, was the Supreme Court. A number of pending cases could produce profound precedents that could change the ways our government functions.
Among these are two cases involving the Electoral College and whether or not the individual Electors are obligated to vote for the Presidential and Vice Presidential candidates with the most popular votes in their respective states. The two cases stem from the 2016 election and are Chiafalo v. Washington [the state] and Colorado Department of State v. Baca. In both cases, Electors voted for candidates other than the one with the most popular votes in their state. In the Chiafalo case the Washington State Supreme Court ruled that under the Constitution the state has the power to enforce the state law that requires Electors to vote for their party’s candidate. In the Baca case, however, the The United States Court of Appeals for the 10th District (in Denver) over-ruled the state’s law requiring Electors to vote for their party’s candidate saying that under the Constitution, once an Elector is appointed, they are free to vote as they choose.
In all, in 2016 seven Electors voted for candidates that were not the one’s they were supposed to represent.
It is now up to the Supreme Court to decide which determination is correct, with profound implications for our future elections. The practices and traditions which have served us well for all these many years could be codified through the Court’s action or it could be thrown on its ear.
So what does this mean to us? Perhaps a little background is in order as the Electoral College (which is a process rather than a place — and is never mentioned in the Constitution) is often misunderstood by many of us.
The Founding Fathers did not trust the great American unwashed average citizen to make rational choices as to our elected officials. The House of Representatives was to be “The People’s House” where they could participate in governing, but the real power was in the Senate. Recall that Senators were not popularly elected until the passage of the Seventeenth Amendment which was ratified in 1913. Before that, State Legislatures elected each state’s Senators.
Likewise, the Founding Fathers did not trust a direct popular vote for president. Alexander Hamilton wrote in the Federalist Papers that the Electors would have the “information and discernment” to determine the best person for President. Under the original text of the Constitution, state legislatures selected the Electors and each Elector would cast two ballots for president. The candidate with the most votes (assuming it is a majority) would be President and the candidate with the second most votes would be Vice President. Then came the election of 1800 where Thomas Jefferson and Aaron Burr tied with 73 votes each. The decision then went to the House of Representatives where after 36 ballots (neither could garner a majority), Jefferson was voted in as President.
Following this near debacle, the Twelfth Amendment was ratified in 1804. This modified how Electors cast their ballots, separating the vote for President from that of Vice President. It did not designate how the Electors would be chosen.
Over time, most states decided that the Electoral votes from their state would go to the candidate with the most popular votes. (Maine and Nebraska have laws that divide the Electoral votes by Congressional district. It is thus possible that votes from those states could go to two candidates.) Twenty-six states and the District of Columbia (they gained Electoral votes under the Twenty-third Amendment in 1961) have laws that bind the Electors to vote the same as the popular vote.
In practice, when we vote we do not vote for the president. We vote for Electors who promise to vote for a particular candidate. Most Electors are party luminaries or workers in the same party as the candidate. Where laws do not govern the specifics of how a state’s Electors must vote, it is assumed that by pledging their loyalty to a particular party’s candidate, they will so vote.
Over time, “faithless Electors” — those that do not follow the popular vote — have not decided any election. However, there were at least five presidential elections where the winner would have been different if ten Electors had changed their vote. Likewise, there have been five elections where a president lost the popular vote but won the Electoral College vote (1824, 1876, 1888, 2000, and 2016).
Here is another fun fact about presidential elections. If the electoral vote is tied, the decision rests with the House for President and the Senate for Vice President. But here’s the rub. Each state votes as a block and each state counts as one vote. Thus the vote for President from the North Dakota delegation (with only one Representative) counts the same as the vote from California with 53 Representatives.
Clearly, our president is not, and never has been, decided by the popular vote in any way that would be comparable to our election for every other office in the land since 1913. Over the years there have been many attempts to do away with the current system and to have the voters directly decide on the President and Vice President. It would require an Act of Congress and ratification from the states to do so because it would be a change to the Constitution. The closest attempt to change it was the passage of a resolution in the House of Representatives in 1969 calling for a direct vote with a run off if no candidate received at least forty percent of the vote. The resolution failed to pass in the Senate.
The dilemma the Supreme Court faces is how to interpret the Constitution without upending two centuries of practice. Essentially, our country devised a new way of electing our presidents, different from the original ideas of the Founding Fathers, even if we keep the relics and traditions of that system. If the “originalists” on the Court decide that the Constitution intended for Electors to use their discretion and vote for whomever they want, the popular vote could become meaningless as there would be no obligation to vote for the winner in their respective states. They could vote for anyone, potentially throwing the system into chaos. If the Court decides that states can in fact determine how their Electors are chosen and that the Electors must vote as per the state’s law, then they run the risk of voiding what some consider to be the original intent of the Founding Fathers.
Given the ongoing destruction of long-standing norms, practices and ethical behavior that previously stood the test of time, it is imperative that the Court codify existing practice and give the states the power to best determine how their Electors will be allocated. Further, the Congress should again address the issues surrounding the use of Electors to determine our presidents. Even if one is in favor of the way we have come to interpret the value of the Electoral College (theoretically giving more states a chance to participate in the selection of our presidents) it is time to put into law how those Electors are chosen. To do otherwise invites disaster in either the near or long term. I have voiced my opinion in this space in previous postings that I believe we should do away with the anachronistic Electoral College and provide for direct popular votes for president.
Either way, we should not leave it up to chance. The forthcoming decision from the Supreme Court will have a direct impact on our future elections. Let’s hope that they get it right and keep the states in charge of enforcing votes from their Electors. The Congress must then follow up to instill a rigorous and uniform method for selecting Electors and their subsequent votes — either by putting our current system into law or by abolishing the Electoral College and providing for the direct election of President and Vice President. The future of our Republic demands it.
Tom
Into The Fray 
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