A Modest Proposal For How You Can Help Stop The REAL Steal

In my last post, I exhorted everyone to vote in every election, whether the outlook was good or not.  Simply put, it's the only way to build any political muscle.  And, given that the right to vote in this country is now hanging by a fraying thread, there is literally no time like 2022 to start.  Except in Virginia and New Jersey, where next week would be an excellent place to start, if you live in either state and you have not done so already.  There are also a handful of special elections between now and the midterms as well.

But I would like all of you to do more than vote.  I'd like to to get as actively involved as possible, as much as your time and treasure will permit you.  I feel strongly enough about this that, for the first time, I just got involved with an organization that I highly recommend, and with which I have no connection other than as a volunteer.  If you want to be able to encourage voters in swing states, and don't live in one, or you aren't able to get out and about, or you're just people-shy, which is no disgrace (or confrontation-shy, which, in this day and age, I absolutely understand), and you don't mind getting a small case of writer's cramp, this may be just the thing for you.

The Progressive Turnout Project operates a program called Postcards to Swing States.  If you volunteer to participate, it mails you a supply of postcards, a list of names and addresses of swing-state voters, and instructions on how to fill out the postcards with a message encouraging each recipient to vote.  As a volunteer, you supply the postage and the labor in filling out and mailing the postcards.  My wife and I recently sent 500 postcards to first-time voters in Colorado.  That's a lot of postcards.  On the other hand, you can make a social event, or a series of social events, and get your friends involved in filling out the postcards and sharing the cost of the postage.  And, in the process, generate some positive election energy that may spill over into other activities.

You can learn more about it here.

So, what are you waiting for?

Unpacking A Solution To The Supreme Court

In the whole 36-year arc of my legal career, first as a paralegal, then a law student, then a law clerk, and finally as an attorney for nearly three decades, I have always tried to have, and always wanted to have, tremendous respect for judges, and especially for appellate court justices.  In our system of justice, the law that governs all of us, both its content and enforcement, is very much in their hands.  In the bedrock case on American judicial review, the Supreme Court's ruling in Marbury v. Madison, John Marshall, the Supreme Court's first Chief Justice, prefaced his ruling by citing the principle that "[i]t is emphatically the duty of the Judicial Department to say what the law is."  

Unfortunately, those nearly three decades of experience on my part has seen an erosion in the quality of the personnel on the benches of our justice system, as political considerations have increasingly factored into the selection and approval process.  This is not to say that their are not many fine jurists serving the interests of those who appear before them, and the nation as a whole.  One need look no further than the ruling by Robert L. Pitman, a federal district court judge in Texas, pausing the recent and utterly cruel Texas law establishing vigilante rights against abortion seekers, to see an example of this.  This, however did not stop a federal appeals court from promptly undoing his work.  Nor does it forestall the likelihood that the current Supreme Court will use this case to partially or even completely undo the constitutional right to request an abortion prior to fetal viability that the Court recognized in Roe v. Wade, and has subsequently upheld several times over the past five decades.

The current Supreme Court.  As packed by George W. Bush, Donald Trump, and especially Mitch McCONnell.  With a significant amount of aid, of course, from dozens of pathetically supple Republicans in Congress, in turn supported by the wealth of the 1% and the votes of religious fanatics.  Sadly, but perhaps appropriately, there is no clearer and more powerful symbol of the systemic politicization of our nation's judicial system than its highest court.  

Its current supermajority of six Republican appointees includes two men likely to have committed sexual abuse, a political legacy from a Reagan appointee, and a former law professor who, at her express-checkout-speed confirmation hearing, could not identify the contents of the First Amendment.  To say nothing of a Chief Justice who promised he would only call balls and strikes, and has instead put considerable effort into re-writing the rule book on the fly.  You need only look at his masterpieces of constitutional perfidy, the Citizens United and Shelby County cases, in which money became speech, corporations become people, and African-Americans lost the right to vote. to know the extent to which that statement is true.

And, like a fish that rots from the head down, the entire federal bench has felt the effects of the poisonous extent to which our entire system of government has been bought out by the wealthy.  It shouldn't shock anyone that legislators with inside-the-market dealings are more than happy to approve federal judges with exactly the same problem.

Nor should it shock anyone that the Supreme Court's corrupt composition has finally caught the attention of the public, and the public has weighed in.  And the public is giving the Court a big thumbs-down.  Even the business press is doing so.  Hell, even high-ranking Republicans are doing so.

Indeed, Joe Biden was elected President in no small part because he promised to be responsive to the demands of progressives to clean up the mess the Republicans have made of our judiciary.  Among other things, those demands included expanding the number of justices on the Court so that Biden could then create a supermajority of liberal court justices.  Biden, whose political plate was fairly full when he came to office, decided to do what many politicians before him have done:  refer the matter to a committee, empowered to make recommendations (preferably, politically palatable ones).

In this case, however, it's looking like Biden's kick-the-can solution to this crisis isn't going to give progressives their preferred solution.  Early reports indicate that the commission he appointed is not going to green-light the court-packing option, preferring instead to consider a range of possibilities that might attract broader support, such as limiting the terms of justices.  That latter option, however, almost certainly would require an amendment to the Constitution, which, I'll remind you, requires for its approval a two-thirds majority in both houses of Congress AND three-fourths of the state legislatures.  Yeah.  Good luck with that happening.

And, progressive as I am, I have never been a big fan of the whole court-packing concept.  The historical precedent on this subject is not encouraging.  And, even if that was not the case, the potential for political retaliation is all too obvious.  We could eventually have a Supreme Court bench that would require an entire state to house it.  And, otherwise, perhaps be no better off than we are now.  There is, of course, the possibility of legislation to control the court's docket, taking off of it cases relating to fundamental rights, such as abortion and voting.  But, there again, the potential for political retaliation exists.  And, even if it didn't, have we really considered the downside of doing something like that?  Is it really that difficult to imagine a situation in which we might need the availability of the Court to rule in such a case?

You can, I think, considering all of this, scarcely blame Biden's committee for punting, if in fact that's what it has chosen to do.  So what should we do?

Before we discuss the answer to that question, it's time for progressives to take a hard look at what many of them didn't do when it absolutely, positively, could have made a gargantuan difference.

Vote.

I'm thinking in particular about two elections in which many progressives didn't do that.  Or worse, cast a vote for a third-party candidate that was destined to do no more than salve the softer side of their conscience.

2000.  And 2016.

A combination of Al Gore and Hillary Clinton presidencies would have given us a liberal Court that would have been impervious to the worst attempts of the right wing to destroy our democracy.  And even one of them might have been enough to do that.

Fellow progressives, do you want to know why the right wing is, frankly, beating the living daylights out of us?  It's very simple.  They play the long game.  They're willing to take the thousands of steps they need over decades to get where they want to go.  They understand the value of taking a path that lessens the obviousness of their intentions, and increases the probability of reaching their destination.  They are people who believe, rather than think, which makes it easier to follow orders and march.  They are not people who want to solve problems; they see themselves and their beliefs as the solutions to all problems.  All they want to do is obey.  And, unfortunately, there are nefarious, well-resourced individuals who are willing to take advantage of that kind of faith.

So they organize.  And donate.  And knock on doors.  Year in, and year out.  And you know something else they do year in and year out?  Vote.

This is why the Court's building on Maryland Avenue in D.C. is now the High Temple of Gilead.  This is why the Court is slowly but surely turning the First Amendment's freedom of religion protects into freedom for only one, clearly preferred religion--and, especially, the freedom for that religion to stomp all others out of the marketplace of ideas and the American way of life.  This is perhaps the most significant reason behind the transformation of the United States government into one that is run of, by, and for the multinational corporations that have been declared to be people, at the expense of the needs and concerns of actual people.

Sit at home in 2022, nurse your bothsiderisms with respect to our political choices, and watch the power of choice disappear.  By then, it will be too late to reflect on the fact that even a compromised choice is better than none at all.  And we are perilously close to none at all. And the only option after that is civil war.

As Walt Kelly once put it, we have met the enemy, and he is us.

"But it's too late," you might say.  "The Court is packed and it would take years to unpack it."  It might.  Clarence Thomas has been on the Court for nearly 30 years.  He's unlikely to be around much longer.  And, in any case, Stephen Breyer will probably be ready to retire in a few years.  Do we want to see a six-Justice conservative majority turn into a seven-Justice majority?

There is no excuse for not getting out in every election, getting out every like-minded voter that you can, and together voting every single solitary person with an R after his/her/their name out of office.  You want to unpack the Court?  That's how you unpack it.

More to say about voting and the need to do it next time.  As they used to say in the heyday of broadcast TV and radio, stay tuned.

The Bullies In The Democratic Senate Caucus

I've written a great deal recently about the decline and fall of mainstream media, specifically, about how corporate media monopoly power, the drive for profits at the expense of everything else (including the truth), the relentless hectoring from right-wing hacks, and, finally, the chasing of clicks in an all-digital world have led the American political press to abandon the role that the framers of the Constitution foresaw for it, thus enabling business interests to slowly turn the United States first into a plutocracy (rule by the rich), and then into a kleptocracy (rule by the rich who have turned to theft to become richer).  

If you're reading this, and you're under the age of, let's say, 50, you may have a hard time understanding how American political discourse could have looked any different.  And, if that's the case, I can't say that I blame you a bit.  For me, it may, in fact, be one of the relatively few advantages of having just turned 65 (along with signing up for Medicare).

Let me put it another way, then.  Once upon a time, and no kidding, political media in this country had the capability of producing stories that discussed not merely personalities, but issues.  Actual challenges confronting the country as a whole, regardless of location or partisan affiliation.  They did so in a way that discussed the dimensions and the details of one or more issues in something like real depth, as well as potential solutions around which the nation and its leader could rally and enact into law--or, at least, into public policy.  By way of an example, and relevant to an issue urgently facing us in the present moment, they routinely produced articles like this.  

USA TODAY may not get a lot of respect from its media peers, but here at least is a prime example of how those peers used not only used to routinely discuss major political issues, but make connections among them that help us to understand how interrelated both the challenges we face and the available solutions are.  In this case, infrastructure and climate change.  We need to address the needs of the former not only to address the current economic needs of people and businesses, but also the challenges of adapting to a changing world, one whose changes are in fact the by-product of how we meet our economic needs.  As a partner in an immigration practice, I look forward to the day when we can go beyond the first tentative steps we've taken to publicly discuss the links among climate change, infrastructure, and immigration, i.e., how climate change is driving workers toward us who have the skills we need to address the change in the first place.  A topic for another day.

In the short run, my point is this:  where are the other similar articles that should be making these same connections?  For that matter, where are the articles discussion either issue in isolation, which would be better than nothing.  Maybe they're out there, but they certainly aren't prominent and, as a voracious consumer of political news and commentary, I'd like to think that I could see more of them.

Instead, what we get are discussions not of the issues, but of the partisan horse-racing connected to them, and the personalities that shape the races.  Everything is play-by-play, and little real analysis (and even less that would challenge the status quo) is produced

So, what we end up getting, instead of what we need, is this.  Not a discussion of the need to address climate change and infrastructure needs, but a discussion of a full-scale "panic" among Senate Democrats over the fate of a budget reconciliation bill designed to address both issues.  A full-scale "panic," mind you, that is supported by a handful of actual quotes in the article itself.  And this is from a media source that is friendly to the interests of progressives.  You can imagine what people on the other side of the ideological fence are saying.  (In fact, you don't have to:  you can just take a look here.)

And how connected is the reality?  Maybe, just maybe, not so very much.  When the content of the reconciliation bill is discussed, it polls rather well.  It certainly does so among Democrats.  And, in fact, if Joe Biden is to be believed, it's fully supported by 48 out of 50 Democrats.  More about the exceptions in a little bit.

What has been surprising about all of this is that a significant number of moderate, even corporate-allied Democrats, including Biden himself, have moved closer to the progressive perspective on the issues addressed by the reconciliation bill, even its provisions related to paying for the bill's expenses by raising taxes on the wealthy.  All by itself, that's a news story, although (again) it's not a story that has earned coverage equal to its magnitude.  For one thing, it reflects the extent to which the center of political gravity in the U.S. has gravitated to the left for the first time since before 1980.  Moderates like Biden recognize this.  It doesn't hurt, of course, that progressives have themselves finally recognized the need for flexibility and consensus-building in advancing their goals, a need that leaders like Pramila Jayapal has recognized and successfully strived to address.

As a consequence, it's the progressive size of the political debate that is on the march, and that should be reflected in news coverage that has any moral and professional integrity.

What do we get instead?

We get a focus on the fanatics.  Not just on the rumors and lies spread by the personality cult that calls itself the Republican Party, but on the two Senate Democrats that are doing everything they can to stall the reconciliation bill (among others) to death.

I'm not exaggerating when I say that.

When a legislator is asked to consider supporting a bill, he/she/they can do one of three things.  They can support it as is, supported with changes that are requested or negotiated, or refuse to support it.  To be sure, they can pretend that they are doing or not doing one of those things, but there's always the availability of the James Baldwin test to shine the light on the make believe.  To paraphrase Baldwin, don't believe what they say if it doesn't match up with what they do.

And, in the case of Manchin and Sinema, it doesn't.  True, they initially voted to authorize the drafting of the bill, along with their colleagues, at a dollar amount ($3.5 trillion) requested by Biden.  True also, they agreed, along with their colleagues, to tie a vote on the final bill to a vote on a supposedly "bipartisan" bill on physical infrastructure, as opposed to the human infrastructure and green economic provisions to be included in the reconciliation bill.  But that was literally months ago.  And, since then, both senators have been running away from their votes and their words.

In the case of Sinema, the "running away" has been quite literal.  Not only has she refused to meet with her own constituents to discuss provisions of the reconciliation bill, she has refused to engage with them even when they have attempted to do so in public places, even when they have gone so far as to follow her into a restroom (a move I would not had made; I would have let her go in by herself and then tried to engage her when she came out).  On the handful of occasions when she has specifically criticized the bill, she has reversed positions she has held in the past, such as allowing Medicare to negotiate the price of covered drugs.  If anything, she has spent more time on fundraising than she has in addressing any concerns she might have about the bill, even going so far as to teach a course on the subject.

Sinema, unlike Manchin, is a bit of a rookie politician, which may explain why some of her publicity stunts (e.g., curtseying when she voted against a minimum wage increase) have something of a Barnum quality that does nothing to enhance her political reputation.  Her inexperience, combined with her donor obsession, can only lead one to conclude that her non-stop opposition to the bill without any counter-proposals makes it clear that she will not vote for any version of the bill, and is hoping to run out the political and procedural clock on it in order to keep her corporate sponsors happy.

And Manchin?  Well, it's no secret that he has had deep corporate connection for years, especially connections with the fossil fuel industry, which is hardly surprising for a West Virginia politician.  But this simply means, as he has demonstrated amply, that he understands the need to play the game with a degree of polish and finesse that Sinema has not yet demonstrated she might possess.  The two differ on style rather than substance.   The problem with Manchin is not that he's said little or nothing about the bill, it's rather that he's been all over the place publicly with his comments on it, whether it's the dollar amount, or its potential fiscal impact, or its green economic provisions, or how many of its family-values provisions should actually be enacted.  What he hasn't done, like Sinema, is identify a version of the bill that would earn his vote.

If we apply the Baldwin test, this can only lead us to one conclusion:  neither Manchin nor Sinema, cowed by the debt they owe to their corporate donors, and unwilling to consider employment outside of the U.S. Senate, will support any version of the reconciliation bill, anytime, and are hoping that they can stall the whole process long enough to let intervening events prevent it from ever seeing the light of day on Biden's desk.  No doubt, a key part of their calculation has been the view that progressive politicians would fold, as they have in the past (as they did, in fact, during the debate over the ACA).  In making that calculation, they failed to anticipate both the superior numbers and consensus among those politicians, as well as Biden's sympathy to them concerns.  But this has not discouraged either of them, or motivated them to change course.  They are willing to sacrifice not only the interests of the nation, but specifically the interests of voters in their own state, so that they can stay in Congress a while longer and eventually join the permanent lobbyist class.

So, the bill is effectively dead, as some unnamed Senate Democrats allegedly are thinking, right?

Well, that depends on how frightened Democrats in both houses are of the media's balls-and-strikes approach to doing their job.

But, since Manchin and Sinema are hell-bent on trying to run out the clock, there seems to me to be only one logical response:  take control of the clock.

Schedule votes on the caucus' preferred version of the bill.  Every month.  Every week, if the Senate rules and calendar make that possible.  No matter how many times that it attracts only the votes of 48 Democrats in the Senate.  Keep doing this, right up to Election Day.  Make it an issue, along with the other issues the Republicans are handing them on a daily basis (abortion bans, restrictions on voting rights, the efforts of anti-vaccine imbeciles to infect us all, etc.).  And, in the run-up to Election Day, remind voters of all the good thing that are NOT happening because of the Republicans that the voters need to take out of office.

And, in the process, dare Manchin and Sinema to either come out in the open about their motives, and risk the wrath of voters, or vote to do the right thing, and risk the wrath of their donors.  Or, cut a deal to avoid the wrath of both.

I have said this many times, and will believe it until the day I die:  the only effective response to bullying is to bully back.  Manchin and Sinema are effectively acting like bullies.  Time to think outside the box, and give them the response they deserve.

Who knows?  If nothing else, it may remind our political media what their job should be.  As well as the need to start doing it.