Robert Kagan writes in the Washington Post that 2024 is shaping up to be the mother of all constitutional crises:
First, Donald Trump will be the Republican candidate for president in 2024....Second, Trump and his Republican allies are actively preparing to ensure his victory by whatever means necessary....The amateurish “stop the steal” efforts of 2020 have given way to an organized nationwide campaign to ensure that Trump and his supporters will have the control over state and local election officials that they lacked in 2020. Those recalcitrant Republican state officials who effectively saved the country from calamity by refusing to falsely declare fraud or to “find” more votes for Trump are being systematically removed or hounded from office.
....The stage is thus being set for chaos....Most Americans — and all but a handful of politicians — have refused to take this possibility seriously enough to try to prevent it. As has so often been the case in other countries where fascist leaders arise, their would-be opponents are paralyzed in confusion and amazement at this charismatic authoritarian.
Meanwhile, Rick Hasen, a law professor and election expert at UC Irvine, says much the same thing:
The United States faces a serious risk that the 2024 presidential election, and other future U.S. elections, will not be conducted fairly, and that the candidates taking office will not reflect the free choices made by eligible voters under previously announced election rules. The potential mechanisms by which election losers may be declared election winners are: usurpation of voter choices for President by state legislatures purporting to exercise constitutional authority to do so, possibly blessed by a partisan-divided Supreme Court and acquiesced to by Republicans in Congress; fraudulent or suppressive election administration or vote counting by law- or norm-breaking election officials; and violent or disruptive private action that prevents voting, interferes with the counting of votes, or interrupts the assumption of power by the actual winning candidate.
How serious is this threat? I don't know, but Hasen is pretty level headed and he says he's scared shitless.
How can we avoid this? The only real answer is to pass federal legislation that sets rules for counting votes. Democrats have such legislation written and ready to go. However, it can't be passed via reconciliation and Republicans will filibuster it, so it requires 60 votes to pass. The only way it will become law is if Democrats kill the filibuster and then pass it with 51 votes.
Will they do it? It seems unlikely at the moment, but if they don't they can hardly claim to be taken by surprise in 2024 if Trump and the Republican Party do exactly what they're saying they'll do and steal the election in broad daylight.
"However, it can't be passed via reconciliation..."
Which is more realistic, modifying/ending the filibuster for election rules legislation, or the presiding officer, VP Harris, saying what can go into a reconciliation bill? The first takes 60 votes to advance, the second takes 60 votes to defeat. You do the math.
The VP is not the dictator of the Senate. The Senate goes by rules, which currently cover the rules for the filibuster and reconciliation bills. The rules can be changed by majority vote, but apparently some Democrats will not vote to do this. Even if Harris unilaterally fired the parliamentarian, those Democrats might still not vote for the reconcilation bill.
The problem is not the mind or the will of "Democrats" it is what the "moderate" Democrats are doing. If they don't support a bill, it won't pass.
The rules for reconciliation bills are completely clear. If you read the Congressional Budget Act you will not find the term "parliamentarian". The presiding officer, VP Harris, decides what can and cannot go into a reconciliation bill. If any senator raises a point of order disagreeing with the presiding officer, it takes a vote of 60 senators to sustain the point of order.
Apart from Honeyboy Wilson’s excellent analysis of the rules, the rules of the senate are not self-enforcing. They’re respected when all sides recognize that the rules will be fairly administered and that they themselves will benefit from the fair and impartial enforcement of those rules. That’s clearly not the case with the senate.
When there are no rules, there is only power. When there is only power, there are no rules. The Democrats are in charge and they should exercise their powers to the fullest without regard to these mythical senate rules—just as the Republicans have done for decades.
Those two alternatives are exactly equal in terms of which is more likely, because they are, at heart, exactly the same. In part, that's because you are wrong about it taking 60 votes to end the filibuster for anything. It can be done with a majority vote, just as it was for nominees and judges, and then Supreme Court justices.
In the end, you're going to need a majority to do either. If Joe Manchin and Kyrsten Sinema aren't willing to suspend the filibuster, then they also will not be willing to vote for a bill that Harris has declared valid under reconciliation. If all 50 Democrats are on board, you can do it either way. If they are not, then neither of them is possible.
That's not quite correct. It would take a two thirds majority of the Senate to "end the filibuster" by changing the Senate rules.
What happened in the cases you mention was in truth a farce. The presiding officer ruled that a motion for cloture was lost because it got fewer than 60 votes. A senator moved to over-rule the presiding officer, which was passed with a simply majority. The presiding officer then asked it if was the sense of the Senate that the rules meant appointments only needed 51 votes, and again a simply majority voted yes. In other words, they voted to interpret the rules contrary to their very plain meaning.
There's no reason Democrats couldn't carve out a similar interpretation for anything they liked, including bills regulating elections. But the so-called "moderates" refuse.
When Reid nuked the filibuster for federal judges, Manchin voted against it. But then he voted for all the judges that the rule change permitted to come to a vote. He will do the same with what can go into a reconciliation bill. He will vote against allowing it into the bill. But there won't be 60 votes, so it will go into the bill. Once that vote is over, he will vote for the reconciliation bill.
The filibuster will definitely be killed. It will be killed by the Republicans as soon as they take control of the Senate.
They will do so with no more embarrassment than they showed when they prevented Obama from appointing a Justice to the Supreme Court a year before the election, then turned around and let Trump appoint one just a month before the election.
I'm totally not convinced. They had the chance to eliminate it 2015-2018 but did not do so. I think the GOP likes the fillibuster because they can use it to prevent passage of bills they don't like that are from their own radical members. They prefer gridlock no matter who is in charge.
I agree with this in the present moment but McConnell isn't going to be there forever and once he's gone, it's katie-bar-the-door after that. Because if GOP controlled state legislatures can pass legislation they want easily eventually those legislators will filter their way into Congress and will demand the filibuster be eliminated to pass their agenda because they had done so so easily back in their home states because there is no filibuster in their legislatures.
Unlikely. GOP cherishes the filibuster far more than Democrats because it saves them from far more embarrassing votes than is the case for Democrats.
Well, the Democrats rarely fail to snatch defeat from the jaws of victory. However, everything has been totally crazy for at least the last five years, including the weather, so perhaps cynicism is NOT warranted.
Oh please, "the Democrats" pretty clearly get it. But unfortunately it's a 50-50 Senate, which means the Dems are at the mercy of a couple of their stupidest Senators. And they're rat-fucking Biden's entire agenda... not just voting rights.
It's mistake to call it a 50-50 Senate. Better to call it 48-52 or, at best, 48-48-2.
Agreed that Dems need to kill the filibuster. But it is way too early to get this freaked out about what might happen in 2024. Politically speaking, that is worlds away from now. Anything could happen between now and then. We really have no idea. It seems likely now that Trump will walk away with the Republican nomination but that process is still 2 years in the future. A lot could change between now and then.
I'm hoping for the mortality table to strike.
https://www.sorryantivaxxer.com/
Yeah, given his crappy diet and distaste for exercise, I hadn’t expected the two-time LOSER to survive his first term. But hope springs eternal …
Indeed but what if that happens and the wackos simply transfer their cult of personality to Junior or Desantis?
Trump's former lawyer Michael Cohen claims this is all a bluff: Trump's making more money now than ever, and won't want to give that up for a White House run he may not prevail in.
We're completely fucked. Dems don't get it and they won't until it's too late.
Incorrect. But lessons will be learned by yourself. The only.mistake the Democrats in the budget committee made was the 3.5 trillion blunder when Biden told them to go lower due to his bipartisan work bill, likely getting through.
The Republicans are basically killing the debt ceiling as a tool though. It's toast.
No. This is not, "Dems don't get it." This is specific individuals who, for their own idiosyncratic reasons, are standing in the way. Blaming the party as a whole is not productive.
Democrats "get it." Just not enough of them care either way, is all. Most of them prioritize winning reelection above all else, and, consequently, try to avoid votes they deem risky in political terms.
The question is not will Democrats kill the filibuster, but will Manchin and Sinema kill it?
That's the only holdup. Without those two self interested attention hogs the filibuster would already be dead by now.
It's not the party who is asleep in the face of danger, just those two.
Waste of a post. Its 19 Senators that oppose getting rid of the filibuster. Partly because it is irrelevant.
I don't think it's 19 anymore but maybe more like five or so.
Trump's Alzheimer's and him pissing off his handlers(Russia, China) by not standing down will hurt the Organization. I personally think the Democratic/Republican parties begin to disband and the 2024 election is the beginning of that process.
Not a great effort on this post. The filibuster is irrelevant.
If Covid doesn't flair up over Thanksgiving and Christmas...then Dem's should be ok.
The only justification for the filibuster is that more debate on the topic is needed. Once a filibuster is filed, hold the Senate in session to debate the bill. Cloture (60 votes) ends debate. If no debate takes place, then surely the chair can rule that debate has ended and a majority (51 votes) can proceed to final consideration. Manchin and Sinema have said they support the talking filibuster. So give them one. And let the networks carry McConnell and Romney speaking about why they won't let a Democratic majority prevent default on the national debt. Yes, Dems will have to face a talking filibuster when they are in the minority, but the only justification for the filibuster is that more debate is needed? Right? Make elections matter again.
If I understand the Eastman document that has everyone so freaked out, he argues that the current Vice President determines who the next President is. So it should be fairly easy for VP Harris to declare electors invalid from any state that engages in voter suppression. Thus, no Texas or Florida, no SC or NC, no Georgia, no Pennsylvania, no Arizona. Basically, California, NY and Massachusetts decide who's President, according to the legal geniuses from Claremont. Works for me.
The problem with the document is it ignores capitalism. That kind of chicanery won't work when debt liquidation and dollar collapse destroy state economies. For the far left, this is fine. But the Republicans are a billionaire party. Revolution would be coming out of the woodwork and it wouldn't be what they hope for. I think the Eastman document is poorly understood.
Sure. I'm totally confident we can count on getting five votes in the Supreme Court to support that.
Well, sure, but remember Eastman clerked for Thomas, so you start with Thomas Alito Barrett Kavanaugh and Gorsuch and keep your fingers crossed.
Carving out an exception to the filibuster for voting-rights legislation would open the way for Republicans in control of some future Congress to pass national voter-suppression measures in the name of ‘protecting’ the votes of ‘legitimate’ voters. Given the undemocratic makeup of the Senate, it would allow a bare majority of a party that represents a decided minority of the citizenry to ensure its dominance.
The filibuster should go, but only in conjunction with other democratizing measures. I would like to know what could be done without requiring a Constitutional amendment, since that route seems unlikely. Unfortunately, rules adopted by either house cannot bind future Congresses. And this dilemma will persist as long as one party is willing to undermine democracy in order to gain power. The precedent is Jim Crow, when the Dixiecrats disfranchised African-Americans to dominate elections in the South. Somehow, we put an end to that, but the regime lasted far, far too long.
The problem you have is not really understanding why Republicans are passing voter bills. They aren't to suppress the vote, it won't change a thing. It's to narrow the electors able to be chosen that supports the billionaire agenda. Oh the riot in that. Yet, progtards don't get it. You simply don't respect the workers.
Repeal the Reapportionment Act of 1929 and replace with a formula for expanding congress at a set ratio to population after each census.
I think 2028 is more likely to be the fatal year than 2024. Trump won't run in 2024 but keep everybody thinking he will, for the money. By the time he bows out, with some hissy fit or another, it'll be too late for the rise of another viable candidate. Who will have to wait another four years. Reading tea leaves of course but who isn't.
I read that article, it’s brilliant and it is confirms my opinion on your situation.
… by the way!
Isn’t this a little weird?
Democrats don’t dare to end the ridiculous filibuster simply because if they end up in minority after the midterm will they need it
.... but if they keep it will they not be able to defend the right to vote and in that case will they surly end up in minority
Catch 22?
A comment from a dumbfounded Swede
The GOP is a radical organization and subverting our democracy in broad daylight. I think the threat is significant and Democrats should kill the filibuster and pass the bill with their majorities in Congress.
That said, something bugs me about the scenario that Hasen lays out (one of many possibilities for 2024).
Assume:
1. Biden wins the popular vote by millions (very likely)
2. Biden wins the Electoral College under practices used through 2020
3. New state laws allow GOP legislatures to ignore the popular vote and designate their own preference (i.e., Trump) as winner of the states' electoral votes
4. Supreme Count blesses the new laws (say, by 5-4 vote)
5. Congress (majority party TBD) blesses adjusted EVs to declare Trump will be president
Aside from the fact there are a lot of big ifs in this example, I have a question:: Then what?
I agree that we would have an epic crisis on our hands. How that gets resolved is anybody's guess. But the assumption that many seem to make -- that we doomed to accept another four years of Trump (and a permanent GOP-controlled White House) -- is not what I think would happen.
That scenario would rightly be seen as a stolen and illegitimate election. Such an unprecedented event would be met with an unprecedented response.
We could speculate on what would happen, but I think "the country goes along with it" is the least likely option.
Biden isn't running in 2024.
Not an unreasonable scenario. But I disagree -- this country WOULD "go along with it."
Democratic leaders would be calling for calm, for following the rules, for going the legal route. Demonstrators would be mocked on all networks as people with "time on their hands" and told to "get a job." Thieves and gangs would take advantage of peaceful protests, marches, and demonstrations to bust up the commercial side of town, knowing the Democrats would get all the blame, like the Black Lives Matter demonstrators back in the day.
The newly installed Republican prez would institute martial law, call out the troops. Perhaps urban centers would even be bombed at some point.
Resistance is futile. So we can't ever let it come to this.
Lolz, bombing urban centers. Please try. Military supplies would be raided and those bombs would turn on "rural centers" quickly. Genocide and rural cleansing would be next. Are you a ignorant moron who doesn't get it??
Why, yes you are. BLM is no comparison. It was a ad hoc protests were a farce. This is capitalism dying. Rural famine.
There'd be violence on the streets of America if what you lay out occurred. But I doubt it would be all that intense, or anywhere near the levels required to prevent rightfully elected president-Elect Trump from taking office.
(Yes, that's right: nothing in the constitution requires popular vote for president. In my view, in the scenario you outline, Trump is president. Would he enjoy popular legitimacy? No. But that's not a constitutional requirement.)
Filibuster reform? Legislation on voting procedures? That’s the answer? Nope. Arm yourself. The war is here. You had better get ready to fight. It’s sad. It’s tragic. It’s also unavoidable now.
The potential mechanisms by which election losers may be declared election winners are: usurpation of voter choices for President by state legislatures purporting to exercise constitutional authority to do so
I'm somewhat surprised we haven't seen more discussion of GOP legislatures changing to legislative electoral vote selection in advance of the general election. AFAIK you could remove the "purporting" part if that's the case: the constitution is utterly unambiguous on this point: The method of choosing electors is a state legislative prerogative. It becomes dubious only when a legislature tries to mess with the process after the popular vote. But if they obviate the vote in advance in favor a vote of the legislature? Nothing constitutionally doubtful. I doubt they'd even face substantive blowback from their constituents: they could just say it's an anti voter-fraud measure.
(Perhaps part of the reason this isn't being discussed more openly is: it's in the wings but they don't want national media covering it and/or, in some states the constitution must be changed, which is beyond a simple majority vote of the legislature, so it's more cumbersome).
Incorrect. The term "legislature" in context clearly refers to the entire duly constituted state government and not simply the legislative branch. Also I don't think at any point in our history a state decided to overturn the will of the states voters and substitute the will of the legislature. I think it would be pretty amazing if this happened now, even with all this Trump hysteria. Just look at Arizona with all their "audit" nonsense. I think people underestimate the degree to which Republicans have "drunk the kool-aid". They really expected to find fraud. The same will happen when republicans appoint someone to run Fulton county's voting or whatever. They votes will still be counted the same way as before.
I think a large part of it was their surprise of doing as well as they did unlike 2016 when internal polling was good. Even though internal polling wasn't showing a huge Democratic victory, it ended up closer than expected with swing voters going noticeably Republican. So they became emboldened by their own arrogance.
fwiw, why Democrats didn't do better has been bashed to death(covid lockdowns which Dem govs mishandled, black crap, still bitter over Obama policy failures), the 2020 election was easily the biggest projection miss since 48.
I don't think we're underestimating. Here's how they're spinning the results of the "audit" in AZ.
I love how you constantly downplay the threat to democracy, and when "level-headed" people start screaming, you're like, well IDK maybe.
Faced with two options: (a) saving American democracy, or (b) keeping those convivial get-togethers with Republicans on his houseboat, Joe Manchin declared it a no-brainer.
Yes, it's definitely freak-out time, especially since the mainstream media is absolutely clueless, as indicated by this article from Kevin's old employer.
https://www.motherjones.com/politics/2021/09/trump-coup-memo/
Nope, this article misses the point. Fraud is everywhere. Including political theatre which is nothing more than a excuse for treason. Treason is heavy handed.
The guy who said the presence of a FCS wasn't evidence of anything, in fact, had wanted to investigate the genetic manipulation to include an FCS to increase infectiousness of bat coronaviruses to humans.
He lied from the start. Whatever expertise and qualifications he has, the bottom line is that he's been lying.
https://theintercept.com/2021/09/23/coronavirus-research-grant-darpa/