Not surprisingly, the Sunday talk shows were focused on the voting-rights bills that are in deep doodoo. House Majority Whip Jim Clyburn (D-SC) appeared on multiple shows to say that they are on life support, but aren't quite dead yet. He didn't explain how they could be revived, though. He just said that after the 1964 Civil Rights Act was passed, John Lewis and others didn't give up, and that led to the 1965 Voting Rights Act. Of course, the Democrats had large majorities in the Senate then and a president who knew every senator's weak spot and was not shy about applying maximum pressure precisely there. None of that is applicable now.
Majority Whip Dick Durbin (D-IL) told CNN's Jake Tapper that the speech Minority Leader Mitch McConnell (R-KY) made on the floor of the Senate attacking the voting rights bill was out of bounds, although he said that Biden's criticism of McConnell was perhaps a bit too strongly worded. Sen. Tim Kaine (D-VA) was on "Face the Nation" lamenting that he tried to get Republican support for the bills, but only one Republican senator, Lisa Murkowski (AK), offered it, and only for the John Lewis Act, not the other one. Al Sharpton called for a vote to put Manchin and Sinema on record about where they stand.
The rubber is going to meet the road tomorrow. Last week the House passed a bill that combines the Freedom to Vote Act and the John Lewis Voting Rights Act. The Senate will vote on it tomorrow. The Republicans are going to filibuster it and then the ball is in Majority Leader Chuck Schumer's (D-NY) court. He could call for an up-or-down vote to bring back the talking filibuster and see what happens, or he could chicken out and do nothing. If Sens. Kyrsten Sinema (D?-AZ) and Joe Manchin (D?-WV) vote against that, as they have promised, they will be on the record with blocking voting rights, with all the consequences of that (see below). (V)
Democrats are deeply disappointed with Sen. Kyrsten Sinema. Well, most of them are. In a speech on the House floor, Rep. Ruben Gallego (D-AZ) said: "We won't shrink from protecting our democracy and the voting rights of all Americans. It's past time for the U.S. Senate and Sen. Sinema to do the same." It's rare for a member of Congress to call out another member from the same party on the House floor, but Gallego did it. What does that mean?
It means he wants all Arizona Democrats to know that if he were a senator from Arizona, he would have voted to kill the filibuster. So, hypothetically, if Arizona Democrats had to choose between him and Sinema in a 2024 primary, they should pick him. This is not exactly an announcement of a campaign, but it doesn't leave much to the imagination. Many Democrats want to dump Sinema in 2024 and Gallego will clearly be happy to oblige once he wins his 2022 House race. He has a lot going for him. He is a Latino in a state full of Latinos. He is a Marine Corps combat veteran in a state full of veterans. He is the child of two immigrants in a state full of immigrants. And for the college-educated suburban voters, he has a bachelor's degree from Harvard in international relations. He served two terms in the Arizona House, where his first successful bill granted in-state tuition to any veteran attending a state university in Arizona. He also worked with a group trying to recall then-Maricopa County Sheriff Joe Arpaio. Gallego is now on his fourth term in the U.S. House. That sounds like a plausible CV for a candidate for the Senate, even if he's never coached a single football game. He will probably get some competition, but we guess he will try for a promotion in 2024.
Gallego isn't the only Arizona Democrat who is madder than hell with Sinema. The state party chair, Raquel Terán, said: "We are disappointed, to say the least, that she has chosen to protect an antiquated rule over her constituents." The minority leader of the Arizona House Democrats, Reginald Bolding, challenged her defending a "Jim Crow-era filibuster."
On Friday, Gallego went on CNN to bash Sinema some more:
Barring some change of heart on Sinema's part concerning the filibuster, it looks like Gallego is going to challenge her in 2024. Actually, that's probably a done deal no matter how she proceeds. And since the challenge is coming from the left, it does tend to incentivize her newfound commitment to centrism. However, she needs to keep in mind that while "centrism" may help get Republican votes in the general election, it probably doesn't help much, if at all, in the primary. It's the mirror image of the problems Republicans have: they have to be Trumpy in the primary but not Trumpy in the general election, except in states where Trumpists are an absolute majority of the entire electorate.
Various groups are already starting to raise money to defeat Sinema in a primary. One of them is the "Primary Sinema Project." It had its two best fundraising days ever last week. It released a memo lambasting her. One of the group's organizers said: "I don't know what she gains from doing what she did. Either she delivers on the policies that we're asking for or she's out." The group raised $28,000 after Sinema's speech announcing that she was not going to vote to weaken the filibuster. It also has 37,000 followers on Twitter. These are small numbers, but the primary is 2½ years away, an eternity in politics.
This isn't the only group preparing to oust her. The "Primary Sinema Pledge" is collecting pledges through CrowdPAC for donations to defeat her. The local Indivisible group is unhappy with her, as are other Arizona grassroots groups.
Sinema may also lose national groups. The League of Conservation Voters spent $800,000 on her 2018 election. They have sent her a letter announcing that henceforth senators who vote against altering the filibuster aren't getting a nickel from them.
In short, Sinema may be getting some money from big corporations for her efforts, but we strongly suspect that she is going to have a very tough primary in 2024. Her hope has to be that there are half a dozen primary opponents and they split the anti-Sinema vote. There are currently five Democrats in the Arizona House delegation, so Gallego may get some company. But if Gallego announces his run in early 2023 and quickly garners endorsements from top state Democrats, he might be able to clear the field. (V)
Sometimes, vice presidents get projects dumped on them that they don't want. Sometimes they ask for and get projects they do want. One of the projects Kamala Harris specifically asked Joe Biden for, and got, was working on passing voting-rights legislation. She thought that since she had served in the Senate, she could talk the senators into it. She worked on it very hard, talking to senators, getting civil rights and other groups to pressure the senators, and more. She invested a lot of time and energy in the project, hoping to reap the benefits when the bill passed. Oops. Maybe that will still happen, but the chances are getting dimmer by the day. What does that mean for her political future?
One insider said that she actually did pretty well. When Harris got to work, many Democratic senators wanted to keep the filibuster intact. Now there are only two and one of them is from a very red state and the other is—how shall we put this gently?—kind of flaky. So Harris actually flipped a number of her former colleagues. But a 2024/2028 pitch of "On account of my work, the voting-rights bill died only 52-48 instead of 58-42" is probably not a winner.
Harris has not admitted defeat, though. When a reporter asked her what's next, she said, "Well, we keep fighting." It's not clear how she is going to do that, however.
Although she doesn't need more problems at the moment, several of Harris' staff members have quit due to disagreements with her over how high a profile she should have. The staff felt she was too low-profile and should be out there cheerleading for Biden's programs much more. She does have her defenders, though. Melanie Campbell, the president of the National Coalition on Black Civic Participation, said Harris was stuck due to the one-president-at-a-time rule.
Maybe filibuster reform and the voting-rights bills were doomed from the start. Biden has spent hours talking to the two recalcitrant senators himself, so he can hardly blame Harris for her failure to budge them. We think that both (V) and (Z) have better shots at being on a Trump '24 ticket than Mike Pence, but that Biden won't dump Harris if he runs again. That would be hugely insulting to both Black voters and women, and he can ill afford to offend either group. So assuming she doesn't mess up on something that was potentially doable, she is probably safe for the moment.
However, if Biden decides to call it a presidency after one term, everything suddenly changes. There will be a huge primary field, probably as big as in 2020. Harris was a spectacularly bad candidate in 2020, and in 2024 her Democratic opponents are going to say: "She was put in charge of passing the voting-rights bills and saving democracy and she failed miserably." What is she going to say? "Vote for me because it wasn't my fault?" Also not a great campaign slogan.
Of course, she could yet have some success. For example, she is also in charge of dealing with the southern border. Maybe she can solve that problem. Or maybe she should ask for an easier assignment, like making peace in the Middle East. If she asks politely, maybe noted statesman Jared Kushner could give her some tips. (V)
That sound you hear is the other shoe dropping. Last Thursday, we had an item on the Ohio Supreme Court throwing out the maps the Ohio state House and Senate had drawn for themselves. On Friday, the Court also threw out the redistricted congressional map, saying that it violated the state constitution's ban on gerrymanders. Even though the U.S. Supreme Court has no problem with even the most extreme partisan maps, some states have constitutional requirements or laws forbidding gerrymandering. Ohio is one of them. Democrats know they will get no help from the U.S. Supreme Court about Republican gerrymanders, but they may get help from state Supreme Courts in states that actually formally forbid the practice, as in Ohio.
The Court ordered the state legislature to try again—and fast. The new map has to be drawn and approved before the March 4 filing deadline. Under the old map, which is now history, 12 of the 15 districts were drawn in such a way that they would have gone for Donald Trump in 2020, even though statewide Trump's win was only 53% to 45%. The Princeton gerrymandering project gave the map an "F" grade.
Despite the clear rule in the state Constitution against gerrymandering, it was not obvious at the beginning of the lawsuit that the plaintiffs would win. The decision was 4-3, along party lines, except that the chief justice, a Republican, broke ranks and voted with the Democrats. If she had aligned with her three Republican colleagues, including Pat DeWine, the governor's son, the map would have been upheld. The message here is that even when the (state) Constitution explicitly forbids something, 75% of the partisan justices will just ignore it when they don't like the result it requires. Of course, we don't know how the three Democrats would have voted had it been the Democrats doing the gerrymandering. However, we do have a pretty good guess. (V)
Arizona is going to be a key state this year. Not only is there a hot Senate race, as Sen. Mark Kelly (D-AZ) seeks a full term, but Democrat Katie Hobbs has a decent shot at being elected governor of this now-swing state. Donald Trump is backing Blake Masters (R), a Trumpish employee of Peter Thiel's foundation, in the Senate race against Kelly. Masters has gotten millions in super PAC donations from Thiel. His main opponent is Arizona AG Mark Brnovich (R), whom Trump hates because he didn't sue to overturn the 2020 election. However, Brnovich has twice won statewide election and Masters has never run for public office before. Trump is also backing former TV anchor Kari Lake for governor in a field including former congressman Matt Salmon, wealthy real estate developer Karrin Robson, and wealthy businessman Steve Gaynor. So, Trump has a lot of interest in the state he narrowly lost in 2020.
Consequently, on Saturday, he showed up in Pinal County, which occupies most of the land between Phoenix and Tucson. Trump carried it by 17 points in 2020, so he got a friendly reception in its county seat of Florence, AZ. He opened his rally by claiming the 2020 election was rigged, despite 60 judges throwing out cases making that claim (because none of the plaintiffs had any evidence indicating that it was rigged). Then he attacked the media for reporting the truth rather than his lies. In fact, the first media outlet to call Arizona for Joe Biden was none other than Fox News. And the "audit" conducted for the state Senate by Cyber Ninjas (R.I.P.) showed that Biden's margin in Arizona was actually slightly larger than the official tally.
The whole speech was vintage Trump, with falsehoods, lies, and whoppers in practically every sentence. He also attacked Anthony Fauci, even though Trump has become a recent convert to advocating vaccination. He called Fauci a "king" and the crowd chanted "lock him up." Maybe the good doctor and Hillary Clinton can do time together. Trump also attacked the current governor, Doug Ducey (R-AZ), which is causing establishment Republicans some grief. They want Ducey to jump into the senatorial primary because they think he is the only candidate who can beat Kelly, but Ducey knows that if he decides to run, Trump will do everything he can to have him lose the primary. So far, Ducey has resisted all calls for him to announce his candidacy, but the filing deadline is months away, so he could change his mind.
In addition to the above, Trump naturally attacked Joe Biden, the voting-rights bills, and the House Select Committee. Unlike previous ex-presidents who have built houses, formed charitable foundations, or just taken up painting, Trump is clearly still obsessed with politics. He is planning to hold about two rallies a month until the election. The next one is in Conroe, TX, on Jan. 29. (V)
DirecTV is a company that provides television service via satellite to people who don't have (or want) cable TV. It is popular in rural areas that are not served by cable and don't have broadband Internet. It is not the only satellite provider, but it is the biggest, with 15 million subscribers. On Friday it announced that it will drop OAN as soon as the current contract expires, which is in April. DirecTV is 70% owned by AT&T, and has been a crucial source of funds for OAN. In fact, about 90% of OAN's income is from the fees AT&T pays it for providing content.
OAN's business model is to provide news content for people who think Fox News is a left-wing outlet and don't want to watch its socialist propaganda. OAN's anchors lie constantly, especially about the 2020 election. It also broadcasts conspiracy theories about the coronavirus all the time. The station is one of Donald Trump's favorites and he often praises its coverage of him. It is owned by Herring Networks, which is a company set up and run by the right-wing Herring family in San Diego. We doubt there is a close connection with Sen. Elizabeth Herring Warren (D-MA), because she is from Oklahoma, not California.
Without its major source of income, OAN is not likely to last long, unless it can find a new source of revenue almost instantly. A new carriage deal is not likely, but it's at least possible that some right-wing tycoon could step in and subsidize the channel, as with The Federalist (Richard Uihlein), The Daily Wire (Farris Wilks), or Breitbart (Robert Mercer). Of course, a TV channel is a bit more expensive to keep going than a website is. If you are interested in the background on the Herrings, OAN, how it got started, and AT&T's role in fostering it, Reuters has published a detailed investigative report on the subject. (V)
Donald Trump is suddenly boosting boosters. What happened? He is not great at math. In 1988, he paid $408 million for the Plaza Hotel and spent millions upgrading it. Then he sold it in 1995 for $325 million. The staff economist advises us that, in business, you're actually supposed to try to increase the value of your assets. Trump seems to have missed that lecture in Business 101. There is an old line that the best way to make a small fortune in the restaurant business is to begin with a large fortune. It would seem that applies to real estate, too.
Anyhow, given his poor track record, numbers-wise, we are dubious that Trump has conducted a detailed analysis of the pandemic trends. Our guess is that somebody on his staff pointed out that the people dying of COVID-19 are largely his voters and losing 1,000+ voters a day to the disease isn't going to help his 2024 chances much.
We have had many questions about this very issue, but other people are also doing the math, including a recently retired New York Times reporter, Donald McNeil Jr. He agrees with us that someone must have clued Trump in on what's going on.
A recent C.D.C. study showed that 91% of recent deaths are among unvaccinated people. In Texas, it is 95%. So who are the unvaxxed? At the outset of the pandemic, many Black folks were hesitant to get it because they remembered the 1932-73 Tuskegee experiment, even if they were born half a century later. Latinos were also hesitant because many of them also don't trust the government. But that has changed. Vaccine resistance is now a white phenomenon. Currently, 86% of Democrats and 60% of Republicans are vaxxed. Also, 90% of atheists but only 57% of white evangelicals have gotten jabbed. In short, if you're white, Republican, and you love Jesus, you are disproportionately likely to be unvaccinated. Sound like the base of anyone you know? So it's no surprise COVID-19 death rates in Trump counties are three times higher than in Biden counties.
Currently, about 1,800 Americans are dying every day of COVID-19. The C.D.C. expects that to soon hit 2,600/day. That's currently 60 Arizonans, 36 Georgians, and 34 Wisconsinites per day. Trump lost Arizona by 10,000 votes, Georgia by 12,000, and Wisconsin by 21,000, To save you the trouble of firing up a calculator app, 10,000/60 is 167 days, 12,000/36 = 333 days, and 21,000/34 = 618 days. Hopefully those numbers are right; we asked the staff mathematician to double check them, but as you might imagine, he was "indisposed." Anyhow, the math is bad for Trump, and if death rates continue climbing, those numbers get worse.
And that's not all. The top five causes of death in America now are heart disease, cancer, COVID-19, accidents, and stroke. Four of the five mostly take down the old, the overweight, and people who live far from hospitals. In other words, Trump's rural base. Maybe with some prompting, Trump has seen the handwriting on the wall, and it is equations like: 10,000/60 = 167. But when he tries to tell his voters to get vaccinated, he gets booed. If he had championed anti-pandemic measures from the beginning, he might have won in 2020. But now it could be too little, too late. (V)
Yesterday Glenn Youngkin (R-VA) was sworn in as governor of Virginia and immediately got to work. On Day 1, he signed nine executive orders and two executive directives. The first executive order banned the teaching of Critical Race Theory in Virginia schools. The next one forbade schools from mandating masks, even though a state law requires schools to take measures recommended by the C.D.C., so his order is probably illegal. The third one fired the entire Virginia Parole Board, so he can put his own people on it. The fourth one ordered the AG to investigate a sexual assault case in Loudoun County.
The fifth executive order calls for a review of the Virginia Employment Commission and the state DMV. Number six is an attempt to repeal all COVID-19 restrictions that have been imposed on businesses, in order not to burden them. E.O. seven takes a stand against human trafficking. The eighth one establishes a commission to combat antisemitism. The last one withdraws Virginia from a regional alliance intended to reduce greenhouse gas emissions.
The two executive directives—which are similar to executive orders, but are generally broader declarations of philosophy—are intended to reduce state regulation of businesses and to prevent the state government from requiring COVID-19 vaccinations or even asking about vaccination status. So in case you were wondering if Youngkin was a real Republican, yes, he is a real Republican. And this was only the first 24 hours. (V)
Joe Biden set up a commission to study the obviously broken Supreme Court. But he told them not to make any recommendations. So they didn't. The whole exercise was simply intended to stall until progressives forgot that they wanted to pack the Court. In that sense, it worked. But it didn't change the underlying problem that the Supreme Court has become an unelected nine-person minilegislature. It sure extends those famous checks and balances, though: The president gets to veto bills Congress passes and SCOTUS gets to veto laws that the president signs. Of course, the latter is not in the Constitution. The Court just decided to do it in 1803 in Marbury v. Madison and nobody said: "Uh uh. You can't do that."
Scott Boddery and Benjamin Pontz have written an interesting op-ed piece for Politico Magazine proposing an approach that removes at least some of the contentiousness out of the whole process of selecting justices and avoids an ever-expanding Court and prevents it from becoming bigger than the House. If the Democrats were to expand the Court to 13 justices, then the next time the Republicans took over, they would make it 15. Then the next time the Democrats took charge, it would become 17. Then on to 19. Sooner or later it would hit 435 and the Court would need a new building the size of the House of Representatives.
Boddery and Pontz' proposal is simple and doesn't even require a constitutional amendment, just a garden-variety law. And the beauty of it is that in the long run, it is politically neutral, not favoring either party. The core idea is to get rid of the idea of having a fixed number of justices and let the number go up and down over time. After each presidential election, the new president would get to nominate one (or maybe two) justices for Senate confirmation, most likely in his second year, since the first year is typically about getting his platform passed. When a justice died or retired, the seat would simply remain vacant until the next regularly scheduled presidential nomination. This means that sometimes there would be an even number of justices and the Court could deadlock. Maybe not having the Court overrule Congress 5-4, 6-5, 7-6, or 8-7 on very contentious issues wouldn't be a disaster. This would be the actual originalism since the Founding Parents saw Congress as the primary organ of government and described it in a detailed Article I. The whole judiciary was an afterthought. When the Supreme Court has a tie vote, then the appeals court decision is binding, but only for its circuit. So be it.
Among other things, this scheme would free up justices to retire when they had enough, without regard to which party controlled the White House or the Senate. If the justices felt that the Court was getting too big, they could informally set an expected retirement age since a retirement would not set off a massive partisan fight. Partisans who wanted to dominate the Court would then have a clear strategy: win presidential and Senate elections. This scheme would take (bad) luck out of the mix and give the power to shape the court to the people by having a regular schedule for new justices.
Among other consequences, when there was an even number of justices, the justices might be more inclined to compromise and make narrower decisions in order to get a majority. Also, presidents wouldn't keep looking for younger and younger nominees because picking a 60-year-old with lots of experience wouldn't be as unthinkable as it is now because the expected retirement in 25 years wouldn't trigger a huge battle.
The question of whether a president gets one or two nominations per election is an interesting one, at least statistically. In a period of 36 years, there are nine presidential elections. If a president got one nomination per election victory, there would be nine appointments every 36 years. If every justice served 36 years, the equilibrium number would be nine justices. Historically, only one justice has ever served 36 years, so on the average, the Court would be smaller than nine justices. One modification of the plan would be to give the president two nominations on his first win and one on his second as a kind of bonus. If we go back nine presidential elections, the 2 + 1 scheme would have given the president two nominations in 1988, 1992, 2000, 2008, 2016, and 2020 and one nomination in 1996, 2004, and 2012, for a total of 15 in 36 years (1989-2025). That might have led to a small expansion of the Court, but not in a clear attempt to pack it with partisans.
In any event, this plan would be an improvement over the current system in which luck has a huge role in the composition of the Court. And again, it doesn't require an amendment to the Constitution, just a law. And since it gives each party a mechanism for controlling the Court (win elections), it might actually pass Congress.
Another thing the Senate could do to make the system fairer is create a rule saying that when one-third of the members sign a petition calling for a vote on a nomination, a floor vote of the full Senate must be held within 7 working days. That would prevent the majority leader from blocking votes, as happened with Merrick Garland. If the majority does not like the president's nomination, fine, but make them go on the record voting no. (V)
Score another win for Donald Trump in his quest to punish all 10 House Republicans who voted to impeach him. On Friday, Rep. John Katko (R-NY) announced that he won't run for reelection this year. His district, NY-24, is currently D+3 but the state Democrats are probably going to make it even bluer, so even without Trump's active opposition, he would have had a hard time getting reelected. All of a sudden, this is going to be one of the Democrats' best pickup opportunities. In fact, Katko is the only retiring Republican in a D+x district. The district is south of Mexico, north of Geneva, east of Greece, and west of Rome. If your geography is a bit rusty, try this map for help.
Two other Republicans who voted for impeachment, Anthony Gonzalez (OH) and Adam Kinzinger (IL), are also leaving Congress next January and Liz Cheney (WY) is facing an uphill battle to hang onto her seat.
The other six face varying degrees of difficulty in November. Trump has endorsed primary challengers to Republican Reps. Jaime Herrera Beutler (WA), Peter Meijer (MI), and Fred Upton (MI). He is still looking for challengers in the other races. His message to Republican office holders is crystal clear: Oppose me and I will destroy you. He just needs to end one more Representative's career, and then he will officially be even better at ruining members of the House than he is at ruining Atlantic City casinos. (V)