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Tag Archives: Mitch McConnell
The Fall Campaign
Traditionally, Labor Day Weekend was seen as the start of the Fall campaign (at least by the media). If that was ever true, it no longer is. With cable and websites like Facebook and Youtube, there are a lot of relatively inexpensive way to get advertisements out during July and August. If a campaign waits unti September to begin its ad campaign, the other side has already defined the race.
But, by this point in the cycle, we are down to the last handful of primaries, and the national committees and big PACS are already looking to decide where they are going to be spending the big bucks in late September and early October. (As the change in the mechanism for advertising has obliterated Labor Day as the start of the fall campaign, the change in voting habits (with a significant percentage casting early votes or mail-in ballots) has also altered when the big final push begins. While, in a close race, last minute news and ads can make a difference, it is just as important to get as many votes locked in as early as possible so that the last-minute spending can be focused on a tiny number of votes.
But that is the inside baseball stuff of campaigns. The purpose of this post is to set the stage for the next eight weeks. For the past two years, Democrats have had the frustration of a very narrow margin in the House of Representatives and a dead-even Senate. Because Nancy Pelosi may be one of the all-time great Speakers, Democrats have been mostly able to pass things in the House. The Senate, however, has been very, very difficult. The filibuster rules has limited the Democrats to passing anything significant via the reconciliation process. Even the reconciliation process requires keeping the entire Democratic caucus together which has proven difficult as a single member can insist on changes to any proposal. And the lack of a majority has also prevented any changes to the filibuster rule (again due to the ability a single Democrat to veto any proposed change).
Posted in Elections, General Election Forecast
Also tagged Arizona, Donald Trump, Florida, Georgia, Herschel Walker, House of Representatives, J.D. Vance, Kevin McCarthy, Lindsay Graham, Nancy Pelosi, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, Raphael Warnock, Ron DeSantis, Ron Jonhson, Senate, Wisconsin
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The Most Dangerous Branch — End of Term Reflections
In the Federalist Papers, the Judiciary was called the “Least Dangerous Branch.” The thought was that the Supreme Court relied on the other branches to follow through on court orders. However, in our legal system, court orders are usually obeyed. And, between gerrymandering, filibusters, and the equality of the states in the Senate, it is very hard to get the types of majorities that allow real change in the “political” branches. Courts, however, simply require a majority to act. And the relentless campaign of the far right has left us with a Supreme Court that borders on being as political as any other branch of government. That is not to say that every decision is political. There are lots of legal issues that are not partisan in nature. And there are some issues that split conservatives. However, on this Court, when there is a clear partisan divide over an issue, the result is a foregone conclusion regardless of what the true facts and precedent dictate. The last week of the term gave us three cases in which Senator Mitch McConnell’s abuse of Senate rules resulted in rulings that we would not have gotten in 2015.
The first case is Kennedy v. Bremerton School District. What makes this case significant is that this case is ultimately about what version of the facts one chooses to belief. The normal rule is that appellate courts take the facts as found by the lower courts or in the light most favorable to the lower court. In this case, however, a major conflict between the two opinions is their characterization of the facts. The majority sees the practice of the petitioner — a public high school coach kneeling on the football field at the end or the game — as a private act of worship. The dissent (and the lower courts) saw the act as a public display by a government employee in the course of his employment. The normal practice when the case is this fact-dependent and the facts are unclear is to “dismiss as improvidently granted.” Instead, the majority picks and chooses the disputed evidence that supports the legal rules that it wishes to establish notwithstanding compelling evidence supporting a contrary reading of what happened. In doing so, the Supreme Court announces that the Lemon test for the Establishment Clause has been discarded (as well as other tests for an Establishment Clause violation) and replaced by (wait for it) a historical analysis of what would have been considered an establishment of religion. It should shock nobody that this approach means that very little will be a violation of the Establishment Clause. With the Establishment Clause neutered, that just leaves the Free Exercise Clause and the Free Speech Clause. Given the fact that the Supreme Court has greatly expanded the impact of these two clauses, the end result for the forces of protecting the rights of Christian Theocrats over the rights of everybody else is a foregone conclusion.
The second case Oklahoma v. Castro=Huerta. This case involves criminal jurisdiction on tribal lands in Oklahoma. Several years ago, in a 5-4 decision (with Justice Ginsburg) on the Supreme Court, Justice Gorsuch and the four liberal justices ruled that no treaty or act by Congress ever formally disestablished the native reservations in Eastern Oklahoma even as non-Natives bought the land on the reservation. As such, the lands were still legally part of those reservations. Under federal statute, crimes by natives against natives on reservations have to be tried in tribal court or federal court (depending on the offense). The new case involved crimes against natives by non-natives. With Justice Barrett instead of Justice Ginsburg, there were five votes against tribal authority and in favor of state authority. As such, the majority — thanks to a rushed confirmation by Senator McConnell in the fall of 2020 — found that Oklahoma also had the authority to try such cases in state court. Now, both this decision and the earlier decision are based on statutes. In theory, Congress could fix the laws related to the relationship between tribal authority and state authority to fix the issues brought out by cases (or actually appropriate the money to hire enough prosecutors, public defenders, and judges to handle a large number of cases on tribal lands in Oklahoma), but the deadlock in Congress makes this highly unlikely.
Posted in Climate Change, Elections, Judicial
Also tagged 2020 Redistricting, Alabama, Chevron deference, Environmental Protection Agency, Establishment Clause, Free Exercise Clause, Free Speech Clause, Independent State Legislature doctrine, Justice Ginsburg, Justice Gorsuch, Justice Jackson, Louisiana, major questions doctrlne, North Carolina, Voting Rights Act
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Impeachment vs. 14th Amendment vs. 25th Amendment
Up until his very last minute in office (and beyond it), Donald Trump is making history in ways that his descendants will not like. In fifty years, instead of saying that a person’s name is Mud(d), we might be saying that his name is Trump.
Right now, there are three possibilities being discussed in D.C. and on op-ed pages. Each have some legal questions associated with it.
The first option — which seems dead in the water as the Cabinet and Vice-Coward Mike Pence seem to be reluctant to take responsibility for suspending Trump’s presidency is the Twenty-Fifth Amendment. Many constitutional amendments are simple establishing one basic rule. E.g. authorizing or repealing prohibition, giving women the right to vote). Others, like about half of the bill of rights, have multiple related but separate concepts (e.g. First Amendment covering freedom of speech, freedom of religion, and freedom of assembly). The Twenty-fifth Amendment is one of those multi-part amendments addressing several aspects of presidential succession.
Posted in Donald Trump, Impeachment
Also tagged Donald Trump, Fourteenth Amendment, Impeachment, Insurrection, Twenty-Fifth Amendment
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Kentucky Primary and Moscow Mitch
Tuesday is the COVID-19-postponed primary in Kentucky, and a lot has changed since the originally-scheduled date. And those changes put Democrats in a somewhat familiar position — do you vote for the candidate that most closely resembles your position or the candidate with the best chance to win.
For most of the year, Amy McGrath was the strong favorite to win the race. She raised a significant amount of money who saw her background (including her veteran status) as potentially appealing to swing voters who will be necessary to beat Moscow Mitch in November. While she does not have a record, she is perceived as a moderate — a necessity to win in a red state like Kentucky.
In recent weeks, the resurgence of issues surrounding racism have contributed to a surge of support for State Representative Charles Booker. His status as a person of color and his positioning of himself as a progressive have contributed to this rise in support from Democrats who want to take a stand in the general election.
Sunday with the Senators: Moscow Mitch’s Calculus
You may have wondered why Moscow Mitch allowed for a vote to release the whistle blower complaint, and then publicly announced that if the House voted to impeach, the Senate would hold a trial according to established rules. For starters, he’s underwater, with an average -23 favorability. That’s right — that’s average, the latest polling shows him at -24, or 30 favorable/54 unfavorable. He’s got a real challenge running next year against Amy McGrath. There’s no public polling yet, but she’s a strong candidate, and while she lost her last Kentucky race, that gives her the experience necessary to overcome any errors, and let’s face it, while 2018 was a wave, there’s a chance 2020 may be a tsunami. In addition, she raised close to $11 million in Q3, more than most 2020 presidential candidates. Moscow’s numbers for Q3 aren’t out yet, but he had about $7 million CoH at the end of Q2, so she might have bested him.
Mitch didn’t get where he is without being able to read polls, and the constant uptick in voters favoring impeachment has got to be giving him the willies. While there is a dearth of state-by-state numbers, the numbers in favor of the inquiry rise daily, including among Republicans, Evangelicals and white men without college degrees — and that’s not just the Orange Menace’s base, it’s Mitch’s too.
Jeff Flake has said that if there were an impeachment vote in the Senate that was secret, 30 – 35 Republicans would vote to oust General Bone Spurs. But secret isn’t going to cut it, and Moscow Mitch knows that. Thus, he’s keeping his options open. Because his calculus is whether he can, first, keep his seat, and second, hold the Senate in 2020. And those are his only concerns. (No, sorry, folks, he doesn’t actually care about law or history.)
Posted in Senate, Sunday with the Senators
Also tagged MoscowMitch
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Call the House Back
Since the events of last weekend, a major focus of the press has been whether Moscow Mitch will call the Senate back into session to deal with gun control. After all, there are several bills that the House has passed regarding background checks, etc., that would be useful starting points for Senate debate.
It has become pretty clear that Moscow Mitch intends to stay in his turtle shell and hope that — as in the past — other issues will gain media attention and the focus on Republican inaction on this issue will pass. But there is one thing that Democrats can do to highlight the Senate’s failure and that is for the House to return to Washington to take another look at gun control.
Technically, it’s not necessary because — as discussed above — the House has already done its part. But, unfortunately, the House passed its bills in the ordinary course of business — meaning that the media paid those bills little attention as they were passed. The purpose of recalling the House into session is not a need to pass new bills (although we should do that as well) but to demonstrate that the House is doing the People’s business while the Senate is standing in the doorway and blocking up the halls (with apologies to Bob Dylan).
Posted in Donald Trump, House of Representatives, Senate
Also tagged Do Nothing Republicans, Reasonable Gun Control, White Siupremacist Mass Murderers
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The Walk and Chew Gum Agenda
Earlier this week, the petulant child-in-chief stated that Democrats on Capitol Hill can either choose to work on legislative issues or investigate him. As we have gotten used to over the past several years, President Trump simply does not understand the rules for how government works. This latest temper tantrum, however, is a challenge to Democrats on Capitol Hill. It’s important that our leaders show that we can do both and do both in a big way.
Because President Trump can veto any legislation and because Senator Mitch McConnell is best at blocking legislation and lousy at getting anything done, it is unlikely that Democrats can actually get any significant laws passed until after the 2020 election. But Democrats can make a big deal of the House passing a set of laws that will be the core of the legislative agenda in 2021.
On infrastructure, the appropriate committee needs to draft a bill that will make a major down payment on the backlog of crucial infrastructure projects. And then, the Rules committee can set aside a healthy block of time to debate that bill on the floor of the House. During that debate, Democrats from every swing state and swing district can speak about what that bill will mean for their area — the type of speeches which can be blasted on you tube with highlights on the local news. Then Democratic Senators can regularly ask when Mitch McConnell will let that bill come up for a vote in the Senate.
Posted in Donald Trump, House of Representatives
Also tagged Donald Trump, Immigration, Infrastructure
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