Electoral Count Act May Be Included in Appropriations Bill

The Electoral Count Act of 1887 has some ambiguities in it, particularly regarding the role of the President of the Senate (a.k.a. the Vice President of the United States) in the count. Donald Trump tried to exploit those ambiguities to get Mike Pence to toss out electoral votes Trump wasn't keen on. Most members of Congress realize they need to clarify the Act before Jan. 6, 2025. Democrats don't want a repeat of Trump's performance—ever again. Republicans don't want to give Kamala Harris any bad ideas on that date. So reform can probably be done if everyone works on it.

Senate Majority Leader Chuck Schumer (D-NY) has said he wants an update to the ECA included in the must-pass budget that needs to be enacted before Friday to prevent the government shutting down just before Christmas. Only Sen. Joe Manchin (D-WV) wants to put 330 million lumps of coal in everyone's Christmas stockings.

As usual, the budget bill is late because the parties don't agree on priorities. They never do. Most likely the Senate will pass a bill to continue the government for one more week to give the two sides more time to yell at each other over the budget. Nothing will change, of course, and both parties knew about this deadline a year in advance, but it's always like this.

The legislation Schumer has in mind would boldly state that the President of the Senate has no authority at all to question or set aside any electoral votes signed by a state's governor. If there were disputes and multiple slates of electors showed up, the one approved by the governor would win. If the governor signed off on a slate, then changed his mind and signed a second slate, we'd be in uncharted territory, but hopefully no governor would do that (although if Kari Lake had been elected governor of Arizona, we're not so sure).

The reason why this is not a slam dunk is that the wording of the proposed update is itself not clear. It says that members of Congress (but not the VP) could object—but only if the electoral votes from some state were not "lawfully certified." However, the update does not define what that means. For example, could a state legislator pass a law saying that the speaker of the state House has to do the certifying, not the governor?

In addition, there is some ambiguity of the role of the federal courts, if any, in disputes. The Fifth and Eleventh Circuits have ruled that the courts have no role to play in electoral vote disputes. Several members of Congress want this matter clarified.

These matters should be easily solvable, except that the House wrote the patch to the ECA and doesn't want the Senate to mess with its handiwork. There are big egos involved here. Will the Senate swallow its pride and go with the House version, even if it is imperfect, or will it insist on getting it right since this might be the last chance to do so? We should know in a week. (V)

Two Can Play the Investigations Game

As we pointed out yesterday, House Republicans are going to investigate Hunter Biden's laptop nine ways to Sunday. That's a given. It may also be the only thing the House Republicans do.

However, thanks to Sen.-elect John Fetterman (D-PA), the Democrats will have majorities on each Senate committee in January and the chairs will have subpoena power. And they intend to use it. To reward Fetterman, Schumer should create a Committee on Investigations and make Fetterman chairman, even if the other chairs would balk at that.

Talks are now underway about who gets to investigate what. Two items where the Senate is likely to pick up where the House Democrats left off are the oil industry's responsibility for climate change and Donald Trump's tax returns. But part of the plan is not only about the specific topics. The senators all realize that the media have a fetish about "balance." They know the media will cover the Hunter Biden laptop stories in detail, so they want to provide "balance" by providing other investigations the media can report.

One senator who can't wait to start is Sen. Bernie Sanders (I-VT), who is chairman of the Senate Committee on Health, Education, Labor, and Pensions. He has a whole laundry list of what he wants to investigate, including why healthcare is more expensive in America than anywhere else in the world and also union-busting practices at big companies. Sanders with subpoena power is probably not something CEOs of big companies are looking forward to. Jeff Bezos of Amazon is probably talking to his lawyers already (Full disclosure: Bezos does not own Electoral-Vote.com, though that could change for the low, low price of $1 billion). At Starbucks, Howard Schultz will be replaced by Laxman Narasimhan on April 1, 2023, so one of them is likely get a subpoena, depending on its timing. Union busting is something Sanders cares about a lot.

However, the 2024 Senate map for the Democrats is brutal, so the senators have to be careful not to look partisan for fear of upsetting independents. Nevertheless, there are plenty of areas of inquiry that most independents would consider legitimate. Certainly few of them would be upset by an inquiry into why Americans pay more for health care than anyone else. We can give you a sneak preview of the results of such an inquiry: In most other countries, the government negotiates directly with the pharmaceutical companies over prices and generally plays a large role in the health-care system. Remember, you saw it here first.

Since the House Republicans are going to be looking at the doings of Joe Biden's spawn, Senate Democrats think it is legitimate to ask a few questions about Donald Trump's spawn and spawn-in-law, especially Jared Kushner. Chairman of the Senate Finance Committee, Ron Wyden (D-OR) has already said that Kushner's business is on his radar. One question that might come up is: "How come the Saudis gave young Jared $2 billion to invest?" Crown Prince Mohammed bin Salman probably would ignore a subpoena. However, Jamie Dimon, CEO of JPMorgan Chase, the country's biggest bank, is nominally a Democrat (and one who loves the spotlight) so he would probably be happy to answer questions like: "Did the Saudis invite you to bid on a contract to invest their money?" If it turns out the Saudis didn't ask any of the big banks for bids on investing their money, Wyden may start wondering how Kushner got the contract and might just call him to testify on the matter.

Also on Wyden's plate is the matter of Donald Trump's taxes. A 1924 law gives the Chairs of the House Ways and Means Committee and the Senate Finance Committee the authority to get anyone's tax returns. After a 2-year battle, the former, Rep. Richard Neal (D-MA), got them. Is Wyden going to send an intern over to the other side of Capitol with a note asking Neal for a copy? That might be quicker than asking Treasury Secretary Janet Yellen, which could start the circus all over, although Yellen might just hand them over to Wyden without telling Trump, based on the Supreme Court decision that got Neal the tax returns in the first place. Wyden isn't talking about his plans on this front, but he is keenly aware of the situation. Wyden has been in Congress for over 40 years now. He knows how things work.

Sen. Gary Peters (D-MI) was chairman of the DSCC and did a spectacular job holding every incumbent's seat and even picking up Pennsylvania. His colleagues want him to do it again. However, he knows the map is brutal and might prefer someone else to get the blame for a disastrous 2024 performance. If he refuses, he will have ample time to focus on the work of the Senate Committee on Homeland Security and Governmental Affairs, of which he is chair. This committee has broad powers to investigate pretty much anything related to the homeland or the federal government. Peters would undoubtedly see this as a target-rich environment.

The bottom line here is that the House will not be alone running investigations. There is a huge danger for the Republicans that the public comes to perceive an investigation into why drug prices are so high in the U.S. as being a lot more serious than an investigation into d*ck pics on Hunter Biden's laptop. (V)

It's All about the Grift--As Usual

Donald Trump's former "fixer," Michael Cohen, is in the news again. In an interview with CNN, Cohen said that he didn't think Trump was serious about running for president. Cohen thinks he has too much to worry about with Fulton County D.A. Fani Willis, NY AG Letitia James, U.S. AG Merrick Garland and Special Counsel Jack Smith all hot on his tail. As evidence to support his view, Cohen notes that all Trump has done is file one piece of paper announcing a run and sent out a "truth" about it. The list of things he has not done is much longer. He has not hired a campaign manager. He has not hired a finance director. He has not hired a press secretary. He has not hired a scheduler. In fact, he has no staff at all. Anyone serious about a campaign always has a campaign manager in place who carefully orchestrates the announcement to get maximum publicity. Trump also hasn't held any campaign rallies. This is the strangest campaign announcement in history.

Cohen, who has more insight into Trump than most people, says the announcement is just another chapter in "the great grift of Donald." He wants the base to send money in the guise of campaign contributions. It wouldn't be the first time. In the interview, Cohen also touched on other topics, including:

• Which of the legal cases against Trump is the strongest?
• Is Trump is using his close advisors as fall guys?
• Did Allen Weisselberg testify truthfully in the case against the Trump Organization?
• What is going on with Trump's antisemitism?

Cohen is very coherent and convincing in the interview. (V)

The Select Committee Will Issue Its Final Report Next Week

The Select Committee investigating the Jan. 6 coup attempt is planning to go out with a bang, not a whimper. On Monday, it is going to announce its targets for referrals to the DoJ for prosecution.

Legally, recall that this is just a symbolic act with no significance. The DoJ can do whatever it wants to and doesn't need input from Rep. Bennie Thompson (D-MS). Politically, it is a whole different story. First of all, there will be massive publicity about the announcement, especially, if expected, the Committee calls for the indictment of Donald Trump on charges of sedition or seditious conspiracy and more. Trump will denounce the Committee, but how does that help his campaign for the presidency? Usually candidates want to play offense, not defense.

Second, like it or not, this puts enormous pressure on Merrick Garland to indict all the people the Committee refers to him. If he later says: "Well, a bipartisan committee spent a year working on this, interviewed 1,000 people, collected hundreds of hours of video and millions of pages of documents, and wrote a thick report with a zillion footnotes, but they don't really have a case," how is that going to go over? Then Democrats are going to start demanding Garland's impeachment. He's really going to have to do a lot of explaining if he drops the ball.

Thompson hasn't said what the recommendations will be, but the work of the Committee so far has suggested these categories are likely:

• Criminal referrals: It is virtually certain that the Committee will ask the DoJ to indict Trump. But there is also a substantial list of other people who are probably going to be named. These include Rudy Giuliani, Mark Meadows, and John Eastman, and probably more. There is evidence a-plenty against all of them. All of it will be turned over to the DoJ when the Committee shuts down.
  
  
• Campaign finance: Trump regularly misled his supporters into thinking they were donating to help him with election-related litigation when they were actually just contributing to his giant slush fund. Rep. Zoe Lofgren (D-CA) has called this "grift," though she didn't say if she thought it was a crime. But the DoJ might see it as a crime. In any event, it would be up to Congress to pass a law making it a crime for politicians to solicit money for one purpose and then to use it for something completely different.
  
  
• Ethics: The Committee subpoenaed five House members to appear before it and none of them showed up. It makes the House look rather toothless. There could be recommendations about dealing with recalcitrant members in the future. Also, nonmembers defied subpoenas. Doing something to make showing up a bit less optional could also show up in the list of recommendations.
  
  
• Corrupt lawyers: Many lawyers helped Trump try to steal the election. These include Eastman and Giuliani, but also Sidney Powell, Cleta Mitchell, Jenna Ellis and Christina Bobb. Will the Committee urge the relevant state bars to disbar all of them? Will it urge Congress to take action?
  
  
• The Hatch Act: The Office of the Special Counsel is charged with investigating violations of the Hatch Act, which bars officeholders from using their political power for partisan goals. It fell down on the job during the Trump administration, with numerous violations and no enforcement. Maybe there will be recommendations about fixing the office.
  
  
• Inspectors general: The inspectors general are supposed to be independent watchdogs overseeing federal agencies. They failed miserably during the Trump administration. The Committee might have recommendations for increasing their powers and making it harder for an administration to block them.

Will any of these recommendations be carried out? We don't know. We do know that in general, Democrats favor "good government" and will be open to things like increasing the powers of the inspectors general to root out corruption. Republicans tend to look at the short term. Since the Democrats are in power now, they might be willing to increase the powers of the inspectors general to investigate the Biden administration and let the future take care of itself. Those powers won't magically disappear when the next Republican wins the White House, so getting it done now might make it worthwhile, even if the long-term effect is to increase scrutiny on a future Republican administration. (V)

McConnell Steps Up His Attacks on Trump

Senate Majority Leader Mitch McConnell (R-KY) is not your garden-variety turtle. Usually, when danger appears, a turtle hides in its shell. Not so McConnell. He is getting increasingly angry and public about Donald Trump's blowing his chances for a promotion from minority leader to majority leader. In fact, he just got a demotion from a tied 50-50 Senate, where Chuck Schumer had to deal with him, to a 51-49 Senate where Schumer will unambiguously call the shots in January.

McConnell has talked about the Republicans' "candidate quality" problem before, but never specified how it happened. Was it just bad luck? Were the stars aligned against the Republicans? Was Ronna Romney McDaniel an evil enchantress who cursed the party? Well, no. McConnell is now saying the problem is Donald Trump. This is the first time he has said that directly. It is going to start a civil war within the Republican Party, with some leaders siding with McConnell and others siding with Trump, even if they believe that McConnell is completely correct.

What changed McConnell's mind? Well, that USA Today/Suffolk University poll showing that 61% of Republican voters want someone other than Trump to be the Party's nominee in 2024 probably impressed him. And obviously, he doesn't want Trump backing losers in 2024 Senate races, as he did in 2022. Another GOP senator, albeit one not willing to put their name to their words, said Trump is "leaking oil."

We won't be surprised if this is the start of a much more open confrontation between GOP senators and Trump. On the House side, probably not so much. But some governors, who are more insulated from D.C. politics, may also start feeling free to take pot shots at Trump. After all, he probably cost the Party governor's mansions in winnable races in Arizona, Michigan, Pennsylvania, and Wisconsin. He also made races where the Democrat was favored into races where the Democrat was a slam dunk in Illinois, Kansas, Maryland, and New York. His only gubernatorial win was in Nevada, but that was probably more due to crime being a big issue and the Republican gubernatorial candidate being the sheriff of Clark County (Las Vegas).

Will all the senators come around and support Trump in 2024? We don't know. So far, only one of them, Sen. Tommy Tuberville (R-AL), has bestowed their endorsement on him. It seems unlikely that any others will do so until it becomes clear who is going to be the nominee. Nobody wants to end up endorsing Trump if Gov. Ron DeSantis (R-FL) becomes the next president. Like Trump, DeSantis has a mean streak and a good memory for people who opposed him.

What is especially interesting is that Fox is not burying this story. The first sentence of its item about McConnell is: "Senate Minority Leader Mitch McConnell is blaming former President Donald Trump for Republicans' underwhelming performance in key midterm races, saying the party had 'candidate quality' issues." From any other news outlet, that would be simple and obvious summary of the actual news item. But from Fox, it is a direct criticism of Trump, something it rarely does. The Rupert Murdoch-owned New York Post and Wall Street Journal have criticized Trump recently, but Fox has so far not led the fight against the former president. Could this be a sign that Murdoch is slowly but surely moving away from Trump and will soon be actively pitching Ron DeSantis for president in 2024? It could be. (V)

Whither Rick Scott?

Maybe it sounds crazy, but probably the most endangered Republican senator in 2024 is Sen. Rick Scott (R-FL). Of course, that is because most of the 2024 states with Republican incumbents are deep red and Florida is merely reddish, rather than Mississippi crimson. But on top of that, Scott has made many serious mistakes that are bound to come back and bite him in the rear, especially if the Democrats can find a high-qualify challenger in 2024.

For one thing, earlier this year, Scott rolled out a 12-point plan to rescue America. It was intended as his platform back when he was planning to run for president. Among other things, it would abolish Social Security and Medicare in 5 years and require Congress to pass them again if it wanted to. If Congress deadlocked, as it generally does, they would just vanish. Republicans panned the plan soundly and a Scott presidential run wouldn't last a week. Many Republicans feel this is evidence that Scott has a tin ear.

Second, as chairman of the NRSC, he took a hands-off approach to the Republican Senate primaries, allowing untested and unqualified candidates to win the primaries and then go down to defeat in November. He could have actively intervened and tried to block Donald Trump's picks. Scott was afraid of Trump, however, and didn't step up. He is as much to blame for Democrats increasing their hold on the Senate as anyone other than Donald Trump. Every Republican senator (and many other Republicans not in the Senate) know this and hold it against Scott.

Third, his job as NRSC chairman was to win Senate elections, no matter who the candidates were. Typically in a midterm election, the president's party loses at least a handful of seats, sometimes 10-12 seats. Not only did the Democrats not lose any seats in the general election, they won an extra seat and took full control of the Senate. So Scott did a lousy job in the primaries and then another lousy job in the general election. He's 0 for 2.

Fourth, Scott ran against Mitch McConnell for the job of minority leader. He didn't come close. That shows horrible political judgment. You don't challenger the leader unless you think you have the votes to unseat him. Since he didn't, he should never have tried. McConnell now hates him. That's not a good place to be for a Republican senator.

Scott is so unpopular that some Republicans are talking up a plan to have Rep. Byron Donalds (R-FL) challenge Scott in a primary. Scott could probably win that, but a bruising primary probably wouldn't help him win reelection even if he won the primary easily, assuming the Democrats settled on one candidate early on.

Now, all this is not to say that Scott is a dead man walking. Far from it, but given the map and his many failures, he is probably the weakest Republican incumbent up in 2024. The Democrats' best plan for taking him down might be to arrange for a primary challenge if one did not surface organically, and then put a fair amount of money into oppo research and blasting Scott with negative ads—nominally coming from some other Republican. It would be a long shot effort, but better than trying to pick up seats in places like North Dakota or Wyoming. (V)

How Lake Lost

Donald Trump's endorsement got Kari Lake the GOP nomination for governor of Arizona. Fine. Good start for the would-be governor, specially since she had zero experience in politics or with campaigning. After the primary was over, her advisors urged to move to the center to pick up independents in the general election because they knew that Trump's base probably wasn't big enough to win a general election. She refused.

Business leaders in Arizona told her to tone it down and stop attacking businesses. She refused that, too. Strategists warned her about denigrating early voting, which is very popular in Arizona. She kept doing it. People told her to stop talking about 2020 and start talking about what she would do as governor. Nope again. Her whole campaign was about white grievances. It didn't work.

Lake was dead set on parroting Trump and settling scores that she never reached out to conservative Republicans who hadn't consumed the MAGA Kool-Aid, let alone independents and Democrats. In fact, she was so fixated on fighting McCain Republicans that at one rally she told the audience that if there were any McCain Republicans in the room, to leave now. It's pretty rare for a general-election candidate to tell members of his or her own party to scram. That's not thought to be a great vote getter.

In the end, Lake got her wish, kind of. McCain Republicans showed up to vote—only not for her. She ran 120,000 votes behind Kimberly Yee (R), who was reelected state treasurer. That means 120,000 Republicans came out to vote, just not for her. Take that, McCain Republicans! Lake lost by 17,000 votes. According to our staff mathematician, 17,000 < 120,000. Maybe if Lake hadn't told the McCain Republicans to buzz off, she would have won. Her campaign's policy director, Sam Stone, tried to deflect criticism from Lake and her campaign by saying many Arizonans just didn't want to vote for Trump or a Trump-allied candidate. Of course, Lake didn't have to be aligned with Trump. That was her choice.

Another choice was to sensationalize everything and go full-culture wars all the time. She vilified drag queens, even though she once hosted a drag queen show at her own home. She also wanted to go scorched earth on everything, despite her staff telling her not to.

Lake also decided to make a point about going back to the 1950s when women apparently wore tight dresses and high heels to vacuum the carpet before their husband and master came home from work. It is hard to imagine a photo more designed to drive away women than this one:

Some people called this "Servant leadership." Others said it was just plain "bootlicking."

Lake was so sure of that she was right and all of her advisors were wrong (even though she had never campaigned before and many of them had), that she spent time and energy endorsing other "winners" like Tudor Dixon in Michigan and Doug Mastriano in Pennsylvania. She not only endorsed Blake Masters in Arizona, but even gave some of her campaign contributions to him, so sure was she of an easy win.

Early on in the campaign, Lake began working on her transition, picking people to run all the state agencies. There is an old saying to the effect of: "Don't sell the skin of the bear before you have killed the bear." In her arrogance, she missed that one. Even after the election she was in complete denial. Four days after the election, her would-be chief of staff tried to break the news to her gently that it was over and that she had lost. Lake started to cry but, even after that, she didn't concede. Instead she filed lawsuits that are certain to be thrown out. In the end, a lot of her problems were due to her belief that she knew everything better than everyone else, even though they had lots of experience in politics and she had none. Sounds like vice presidential material on the Trump ticket to us. (V)

Raffensperger Wants to Abolish Runoffs

Georgia has had three bitter runoff elections for the Senate in the past two years; two in 2020 and one this year. Georgia Secretary of State Brad Raffensperger, who has run them all, has had enough. He doesn't think they are a good idea. He wants the state legislature to abolish them.

Only two states have runoffs, Georgia and Louisiana. Georgia has them after partisan elections and Louisiana has them after a nonpartisan primary on Election Day. Maine and Alaska have ranked choice voting. All the other states use first past the post.

Raffensperger's argument was largely logistical and economic. Running a second election only 4 weeks after the main one, and in the holiday season, put too much pressure on local officials who bore the brunt of the work. Also, a second election costs extra money. He didn't specify what he wanted as the replacement for runoffs. The obvious thing would be some kind of ranked choice voting. That would do the same thing as a runoff, but in a much simpler and cheaper way.

Given the history of the runoff, though, maybe getting rid of it altogether would be a better bet. Runoffs were instituted decades ago to make sure that Black candidates could never win elections. What lawmakers were afraid of was an election with half a dozen white candidates splitting the white vote evenly and one Black candidate getting just a little bit more than the best white candidate. By instituting top-two runoffs, the runoff would then be with the Black candidate against the top white candidate, virtually guaranteeing that some white candidate would win. That sort of white-supremacy-through-voting isn't exactly in favor anymore.

Raffensperger might also have noticed something else, though if he did, he didn't say so. If Georgia had no runoffs, then Sen. Raphael Warnock (D-GA) would have been elected in 2020 and 2022 anyhow, since he led after the first round of voting in both cases. However, in the regular 2020 Senate race, then-senator David Perdue (R) led now-senator Jon Ossoff after the first round of voting, 49.7% to 47.9%. It was only after the runoff that Ossoff took the lead. So, if Georgia had no runoff rules, the Senate would have been under Republican control for the last 2 years, and would be headed for a 50-50 situation on Jan. 3 of next year. Obviously, Republicans would have much preferred that to what actually happened. (V)

A December to Rhymember, Part IX: Men (and Women) of Steal

Let's take the theme that runs through most of today's posting and carry it through to the end. Leading off is B.T. in Bogalusa, LA:

There is a sore loser by the name of Kari Lake
Whose outrage, demands and accusations are all fake
She'll try anything to claim that seat
But clearly and fairly was beat
Concede now, Kari, for God's sake!

And here's a rather inspired effort from J.L. in Walnut Creek, CA:

Once upon a 1/6, eerie, while I watched the TV, cheery,
Happy to see the vote be certified on the Congress floor.
Suddenly arose a riot, rowdy, angry and unquiet,
Of those false patriots who claim to speak for the people whom they themselves abhor.
"'Tis some small group," I muttered, "who has fallen prey to lies.
Only this and nothing more."

As the GOP objected, to each vote Congress collected,
Right-wing members falsely said that votes were fraudulent by the score.
As each objection fell by the wayside, it was clear the GOP lied,
And democracy seemed to proceed as it had each election theretofore.
"The vote" I thought, "will be certified as it ever has before,"
But then the mob assailed the door.

Those in Congress now did flee, even those who did agree,
With the would-be Tsar who sought to rule from shore to shore.
They left the Capitol police to attempt to restore peace,
And keep the quisling mob from gaining entry through the door.
But undermanned, not supported and resisting violence galore?
The turncoats reached the Congress floor.

The offices they did ransack, people died in the attack,
While the Tsar cheered for renegades whom the rest of us deplore.
Eventually order was restored, the Capitol emptied of the horde,
And it seemed the country was not the same as it was before.
Would the right at least stop acting as he Tsar's pied piper troubadours?
And join instead democracy's guarantors?

First they gave such friendly speeches, appearing to repair the breaches,
And indicating a return to the amiable cordiality of lore.
All of them had been shaken and they seemed to be awakened,
To the threats that day unleashed upon the legislative corps.
"Surely," I thought, "the obstructionism of today is now done for."
But they then objected to the vote some more.

"Pharisees!" said I. "Party of evil! Hypocrites who seek upheaval!
You power-hungry sycophants from the age of dinosaurs!
Your electoral count disruption betrays your very souls' corruption!
And yet still you break your faith to the oaths on which you swore!
I implore you now to humbly uphold the oaths on which you swore!"
Quoth the right-wing "Nevermore."

And the traitors, ever unfit, still do sit, still do sit,
In the very hallowed chambers which house our democracy of yore.
They sell snake oil to the dim: Kevin, Mitch, Marj, Ted, and Jim,
And all the rest—each of them completely rotten to their core.
Can there ever be redemption despite their antics on the Congress floor?
Quoth Sicknick's ghost: "Nevermore."

It is our understanding that this references a famous poem by some famous writer, but we're at a loss as to which Poe-m that might be. We'd ask the staff poet, but she took the road less traveled... and got lost. That means there's plenty of room for submissions from people who aren't the staff poet. (Z)

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