I have lost all faith in the Supreme Court to be a fair and impartial deciding factor in anything that affects the lives of everyday Americans. And those appointed by corrupt #45 are a disgrace to democracy, period.
The Roberts court will go down in history as one of the worst -- giving corporations unlimited power to flood American democracy with their money, while narrowing the voting rights of Black people by gutting the Voting Rights Act.
Robert Reich - am very glad I discovered your newsletter and subscribed - your topic always makes me think, it provides me with rational commentary and facts, and best of all, tells me the truth!
This is what I don’t understand. Don’t people like Roberts, Manchin, Sinema etc understand how they will be viewed throughout the rest of history? Why do they seem so ready and willing to plunge a dagger into our democracy’s back when they are the only ones who have the opportunity to defeat this authoritarian threat at the gate? Do they not understand that they will be remembered as the people who dragged this country back 70 years (blowing up roe v wade, civil & voting rights being blocked etc), throwing all the progress made in that time in the garbage? I’m just in awe as to how they can’t see past today or this voting cycle. For people like Manchin trying to ride the fence like things haven’t completely changed in the last 5 years is completely incomprehensible. Nothing is going back to what it was. Trump & Covid we’re inflection points and trying to go back to the way things were where a lot of these senators could keep their head down and ride the fence is now untenable. They need to wake up and understand there’s no middle anymore. You’re either on the side of autocracy or democracy.
They have this once in a lifetime, once in a million years opportunity to be heroes throughout the rest of American history. The ones who stood up & fought for our democracy when we needed it most. It’s not just the correct political choice, but it’s the moral and ethical choice too. And yet, they’re just standing there. Why? I just don’t get it. 😔
WOW, well said!!! There is and has been a concerted effort (more subtle in the past) to keep voters ("the people") divided. There is fear of a multicultural coalition that has the numbers and the will to end the reign of the 'wealthy few at the top' who currently run this country by buying political influence and buying out smaller businesses, ending good paying US jobs with cheaper foreign labor or automation, etc., to support their ongoing quest for more wealth and power. To divide us, they have successfully sewn dissent via culture wars (race, gender, sexual orientation, religion, class/socioeconomic status) for generations and MANY have bought into this division. They recognize that if these groups were united, vs divided, there would be enough power-of-the-people to use democracy (majority rule) in a way that changes the status quo and begins to benefit the majority, rather than the 'wealthy few at the top'. Unfortunately, many see how they benefit from their affiliation with the wealthy in the now, and fail to recognize that those same 'few at the top' will drop them when they no longer need them.
Also very well said. It boggles the mind how they've managed to convince so many millions of people to consistently vote against their own interests. They're not even hiding it. All these people need to do is just LOOK at what these people are doing and stop listening to what they are saying. McConnell sounds like a crazy person when he's describing the current GQP and then saying he's describing Democrats because anyone with a couple of working brain cells can see how the GQP are behaving compared to what they are saying and vice versa with Democrats. It's like these people don't want to see it.
I am always reminded of the swimming pool story during the civil rights era of the 60's. Instead of integrating the community pool so everyone could swim, the white people in charge drained the pool and filled it with cement. If they can't have all the control and get everything for themselves, they'd rather no one does. I'll never understand this thinking.
EXACTLY!!! Low income white Republican voters (ignorant and/or willfully ignorant) just fall in line irregardless of the negative impact to themselves. Heather McGee references the public pools/parks in "The Sum of Us". Anther more recent exampe is ppl against "ObamaCare" but then upset that someone might take their "ACA"! Or, like the pool, some would rather embrace authoritarianism (take their ball and go home) rather than share in democracy (if they can't get their way). There are so many examples for ppl to see that they are being hoodwinked and bamboozled! Most ppl are followers, by nature, so the blame is on self-serving leaders, in all institutions, that are sewing distrust in the institutions when it's actually the individual leader. The institutions fail to expose the rotten apples in their midst (bad cops, false prophets, corrupt politicians...) so the whole institution begins to rot. Then they throw out (provide) a distracting boogeyman- immigrants, the Left, ppl of color, antifa... to confuse their followers and keep them from discovering its their leadership that is the culprit and the interests of those their leaders serve.
Couldn’t agree more. It’s so clear & right in front of their faces and yet they refuse to see it. They stand there and scream & yell that the sky is red and anyone who thinks it’s blue or still blue, are idiots that don’t “get it.” We stand outside shoulder to shoulder and stare at the sky, but they’re convinced it’s red despite what science & their own eyes tell them. It’s hard to know what to do about something like this because it makes no sense.
I think we need to separate faith in the "Supreme Court as an institution" from the "current Justices on the Supreme Court" .... when we lose faith in the institution, we start to head down the path of American Democracy is a failure and cannot survive. I guess the question is do you/we believe that the will of the people can eventually (hopefully sooner than later) right the injustices and anti-Democratic tendencies that our current government exudes?
What if Senator Schumer were to go ahead and call for a vote on Voting Rights legislation and Biden's "Build Back Better" and, when it passes by a simple majority, declare these matters passed and ready for the President's signature? Opponents could then challenge this, so that it would soon end up before the Supreme Court. As "originalists", they should be repudiating the filibuster rule. In this way, the legislation could finally get done. The Dems are sometimes too proper, too respectful of an opposition that does not respect them, and too reverential toward bad law!
Good way to get the question of the constitutionality of the filibuster before the Supreme Court. But I wish I had more confidence that the Court's "originalists" would stick to their originalist principles.
Do you have any concerns about what will happen if the filibuster is eliminated and Republicans take over a simple majority of the Senate in one year, allowing them to pass whatever they want on a party-line vote?
No. I want dems to do it now. Completely. And get Pres. Biden's programs passed and into action. I really don't care what the Reps do next time they are in power. At least the filibuster will be gone and we will be back to "majority rules."
If the shoe was on the other foot right now and the Repubs were in power in the Senate with the Repubs having their equivalent of a Manchin and Sinema screwing their program , WHAT WOULD MITCH DO?
He'd make some noises about how the filibuster is obstructionist and undemocratic. But in the end the Senate Institutionalists would favor keeping the filibuster and so it would remain.
The real secret of the filibuster is that Senators like it because it allows them to avoid being pressured into party-line votes for bad and/or unpopular legislation. They can posture for their base/primary voters without having to enact bad legislation or having to cast polarizing votes that turn off general election voters. Manchin and Sinema are "taking one for the team" because it wont hurt them in W.Va and AZ. But lots of Dem Senators (probably most) secretly like the filibuster and want it to remain.
Whatever they say, they'd prefer to take a pass on voting to enact the BBB because it would expose them to blame for accelerating inflation and exploding debt. It's much better to get the virtue points of being for it in spirit, while blaming Republicans and the filibuster for why nothing happened.
Unfortunately due to the problem of money in politics and two Democratic senators apparently having been bought out Dems wouldn’t even have 50 votes for BBB. But they should be able to at least pass the revised John Lewis Voting Rights Advancement Act with 50+ votes, all Dems plus Republican Lisa Murkowski.
I think what David is saying is for Dems to ignore a vote for ending debate (pretend it doesn't exist). Push it through and then let it be legally challenged. I'm not sure I like the idea, but it's interesting nonetheless.
The filibuster is just a Senate procedure or rule. It doesn't have the force of law. For the sake of the federal voting rights bills I think the Dems should just act as if it doesn't exist. However, they still need 50% +1 to get anything done.
they would have to hide the real intent from Manchin/Sinema. The filibuster is all they have to hide behind. There is no way they would, willingly, support an effort to end it. Even if they did, what happens when it gets to the current supreme court that is majority Republican and supports republican views of pro business/billionaire (money influencing politics), pro gerrymandering, filibuster & electoral college (minority rule)... they could decide in a way that solidifies the filibuster rather than end it.
Yesterday I had (a safe, at-home brown-bag) lunch with a retired colleague who is a distinguished Constitutional law scholar who writes about executive power and Supreme Court. Among our free ranging conversation topics was today's Court. I mentioned my own combined confusion, dismay, and disgust with 6 members' ignorance of 1) the Constitution; 2) major case law that I am aware of (I am not a lawyer or legal scholar); 3) U.S. history; and 4) everyday reality (eg., Coney Barrett on "women's progress'" and wonderful adoption system to explain a lack of need for abortion and women's (or anyone's) rights to control their bodies and their lives; others on equity and equality). I asked my friend: how the f**k can this possibly be?
He laughed and replied: "The Federalist Society" No need for common sense, legal, historical, or contemporary knowledge for these people, many of whom hold multiple Ivy League degrees (like Ted Cruz, josh Hawley (Ph.D. in US History from Yale : )), Ron DeSantis, and others). The Harvard Law grads like Cruz and DeSantis almost certainly had a course in critical race theory with Derrick Bell!
"Textualism" and "Originalism" are now (perhaps always?) ideologies not legitimate modes of analysis and interpretation.
We can change term limits, age limits, nomination requirements. But how can confront radical ideologies supplanting sense and knowledge?
Can the Federalist Society be designated a terrorist group by law?
Our law defines ‘domestic terrorism’ in at least one place, but directions for what to do about people and organizations that fit that bill, I have not yet found. International terrorists, many clauses.
The current reeking mass that still calls itself the ‘Republican Party’ clearly qualifies today, as stated. There was a moment in the hours and days after the attack on the Capitol when it seemed that many Rs would stand up for what is right ( they are the ‘right wing,’ I keep hearing, after all ), at least the bare minimum of what is patriotic and lawful, but since then their behavior has returned to eerie weird clearly coordinated lockstep ritual denial of simple obvious facts, as if someone is threatening their family. — b.rad
yet another tactic of the wealthy/powerful... infiltrate and/or take control of any potential apposing entity- government agency that regulates you, and government at all levels (Fed, state, local), business competitor, election boards, the legal system, the military and police... And if all fails... just blow it all up (no one can have her if I can't).
I think it is clear that a minority party in Democracy should not have more voting power than the majority of the country. It is clearly unconstitutional and not Democratic. It's also not just or fair.
At every turn, I find myself exasperated that this is meant to be a majority rule liberal democracy when it has become a complete tyranny of the minority. If this country is going to be the majority rule country it was meant to be, the filibuster, gerrymandering, and the electoral college will all be eliminated. Adding 4 more seats to the Supreme Court is now necessary as well since this anti-majority court majority seems to think they can do whatever they want with no accountability. They are all anti-majoritarian instruments that have been used for that express purpose.
I’m sorry, but how can we call ourselves a REPRESENTATIVE DEMOCRACY when 41 senators represent 21% of the country? It’s absolutely absurd that this is currently how our country is constructed. 21% of the country is essentially ruling the other 79% when it’s meant to be the other way around. I don’t understand how we’ve gotten here. How this has been allowed to happen.
I hear you, Danielle. It's absurd. Our democracy was designed for a country that no longer exists. The distribution of our population has changed, our economy has changed, all in ways unimaginable more than two centuries ago. We need to update our democracy.
Thank you for the response, Robert. You hit the nail on the head. Our democracy works for a country that no longer exists, but some in government persist with it as if it will magically shift. I'm amazed that it has taken this long just to get to an inflection point where it is a clear choice between progress & backsliding, but at least we are finally discussing getting rid of things that no longer serve us.
I hate it when people say we are an evenly divided country. No, we aren't. There's far too much weight and deference given to land as opposed to people. Democrats represent 40 million more constituents than the GQP, but the house & senate are almost equal. None of it makes sense.
I have to believe that people will step up and do the right thing, especially when the watchful eye of history is on them. As disheartening as it gets, I live in hope! Thank you for your wonderful newsletter and comments!
some are walking around with blinders on finding distractions from the truth, others are being mislead about the truth, and some are comfortable and not directly impacted yet, so they just sit on the sidelines.
To me, so-called "originalism" and "textualism" are fancy-sounding code for "I have a lifetime appointment and zero accountability, so I can do whatever I want, ha ha." During the Obama presidency, there was a dispute about recess appointments, which are allowed by Article II, Section 2 of the Constitution. In ruling against the president (of course), Antonin Scalia called that constitutional provision an anachronism. So much for originalism. Additionally, "unconstitutional overreach" is now code for "I don't like that law/policy." I have no respect for people who twist words and phrases and invent meaningless terms to rationalize the pursuit of their own personal predilections, people who use their degrees from some of our country's most elite institutions to cause harm.
As for Manchin's and Sinema's embrace of the filibuster, I think they are using that as an excuse to prevent legislation that their Big Money donors oppose.
My two U.S. senators are, unfortunately, very partisan Republicans who are perfectly fine with blocking voting rights legislation. But, with regard to bringing congressional issues to court, and particularly with Trump and others going to court to quash congressional subpoenas, I have been wondering, doesn't the Speech and Debate clause in Article I, Section 6, apply?
Excellent summary. I'm with Madison and Hamilton and I know that Benjamin Franklin would have some choice words about the 60-vote cloture requirement, if he were around today.
But there's a small and perhaps not all that significant point in the Constitution that's generally overlooked, but I feel it's important. That document establishes the Vice President as head of the Senate and gives that person the ability to be the tie-breaker should ties occur. Implicit in that statement is the assumption that ties are an equal number of votes on each side, and since a 60-40 vote isn't a tie vote, then the ability of the Vice President to break the tie is non-existent. I feel that this invalidates the entire argument for the existence of the filibuster, but of course I could be wrong.
I have shared this with both of my Senators imploring them to act and be the strength our country needs right now to protect the rights of all Americans to vote and save democracy itself. Sad to say it but we can't depend on a corporate bought Supreme Court to act in a manner beneficial to the people. Excellent article.
Maybe as originally written, it could be of some use, however how it now stands it it is a detriment to democracy and must be illuminated to make congress work again. Screw the Supreme Court, they do not have say over everything, only dictators have this privilege. Why are we discussing this? ,just get it done. If the Democrats fear the retaliation in the future, they better think twice, cause under these conditions their will be no future. Legislature dictated by one section of congress is wrong , never was meant to be, and never will be if this is stuck down
Mr Reich, I just received a reply from Sen Brown, as follows:
Dear Mr. K:
Thank you for sharing your thoughts about filibusters in the United States Senate.
I understand the frustration caused by the frequent use of filibusters and threats of filibusters during recent sessions of Congress. Under Senate Rules, actual floor speeches are not required to invoke a filibuster. If a Senator indicates that he or she is filibustering, the Senate may not move on to other business until 60 votes are gathered in a procedure called "invoking cloture."
In 2013, faced with persistent obstruction of President Obama's nominees, the Senate reduced the number of votes required to invoke cloture on the confirmation of appointees to federal agencies and the federal judiciary from 60 votes to a simple majority. However, the Senate preserved the 60-vote threshold for legislation and nominees to the Supreme Court, recognizing the need for consensus on a lifetime appointment to our nation's highest court.
In April 2017, faced with opposition to President Trump's Supreme Court nominee, Neil Gorsuch, the Republican majority in the Senate reduced the number of votes required to invoke cloture for Supreme Court nominees to a simple majority. This change, known as the "nuclear option," enabled the majority party to end the filibuster of Neil Gorsuch's nomination with less than 60 votes, and he was confirmed as a Supreme Court Justice the following day.
The rules of the Senate certainly can be frustrating and sometimes prevent action on meaningful legislation, but they also serve to prevent a bare political majority from unfairly fast-tracking nominees and legislation that merits serious consideration and some level of consensus. As the Senate considers rule changes, I will keep your thoughts in mind.
"In April 2017, faced with opposition to President Trump's Supreme Court nominee, Neil Gorsuch, the Republican majority in the Senate reduced the number of votes required to invoke cloture for Supreme Court nominees to a simple majority."
So at least the Republicans were on the right side of the issue at that point. Maybe when they are back in the majority they will get rid of the filibuster for all votes. As long as we get rid of the filibuster, that's the point for furthering democracy. It doesn't matter which party does it.
Senator Gary Peters, and Senator Debbie Stabenow of Michigan (both Democrats) now have the article, too. I haven't heard either of them saying much lately. Perhaps this will be the elixir they need. Stand up and be counted, Senators!
Kind'a makes you wonder why all the Q-onspiracy theorists haven't picked up on this! It makes my head hurt! LOL! (I guess because it's filled with facts.)
You would think they would have figured this out by now, but when their leaders give them boogeymen to blame (ANTIFA, ppl of color, immigrants, socialist...) thy get distracted following those leads. Most ppl are followers so you have to blame their leadership that is manipulating them for self-interest. To make money off them, to keep the electorate divided while they pillage and plunder and conceal who the real culprits are. They want them ignorant and loyal... ripe for manipulation. Ever hear of "southern strategy"?
Preachin' to the choir, my friend. I agree. But like ol' Boris Badinoff famously said in a kids' cartoon: "Never underestimate the power of a schnook!" Good advice for any kid. Seems to have fallen on deaf ears.
The filibuster is just an unethical, undemocratic, and probably unconstitional tactic of a minority attempting to get its way and thwart a majority. It is typically favored the a party not in power, but sometimes even senators of the party in power even favor the filibuster (Manchin, Sinema) for political reasons. I like your idea Robert to challenge the filibuster in the courts.
As a person who is active in many progressive causes, I am frequently invited to write to my senators. As a person currently stranded in the state of Florida, I generally feel that it is absolutely useless because progressive citizens have no one in power here that would be open to any of my opinions. I like to think of Florida as ruled by the "Triumverate of Genuine Idiocy" - Rubio, Scott and the ultimate nut job: Ron DeSantis. So, it's no wonder I constantly feel like my opinion doesn't matter and that writing to them is a fool's journey.
I have lost all faith in the Supreme Court to be a fair and impartial deciding factor in anything that affects the lives of everyday Americans. And those appointed by corrupt #45 are a disgrace to democracy, period.
The Roberts court will go down in history as one of the worst -- giving corporations unlimited power to flood American democracy with their money, while narrowing the voting rights of Black people by gutting the Voting Rights Act.
Robert Reich - am very glad I discovered your newsletter and subscribed - your topic always makes me think, it provides me with rational commentary and facts, and best of all, tells me the truth!
This is what I don’t understand. Don’t people like Roberts, Manchin, Sinema etc understand how they will be viewed throughout the rest of history? Why do they seem so ready and willing to plunge a dagger into our democracy’s back when they are the only ones who have the opportunity to defeat this authoritarian threat at the gate? Do they not understand that they will be remembered as the people who dragged this country back 70 years (blowing up roe v wade, civil & voting rights being blocked etc), throwing all the progress made in that time in the garbage? I’m just in awe as to how they can’t see past today or this voting cycle. For people like Manchin trying to ride the fence like things haven’t completely changed in the last 5 years is completely incomprehensible. Nothing is going back to what it was. Trump & Covid we’re inflection points and trying to go back to the way things were where a lot of these senators could keep their head down and ride the fence is now untenable. They need to wake up and understand there’s no middle anymore. You’re either on the side of autocracy or democracy.
They have this once in a lifetime, once in a million years opportunity to be heroes throughout the rest of American history. The ones who stood up & fought for our democracy when we needed it most. It’s not just the correct political choice, but it’s the moral and ethical choice too. And yet, they’re just standing there. Why? I just don’t get it. 😔
WOW, well said!!! There is and has been a concerted effort (more subtle in the past) to keep voters ("the people") divided. There is fear of a multicultural coalition that has the numbers and the will to end the reign of the 'wealthy few at the top' who currently run this country by buying political influence and buying out smaller businesses, ending good paying US jobs with cheaper foreign labor or automation, etc., to support their ongoing quest for more wealth and power. To divide us, they have successfully sewn dissent via culture wars (race, gender, sexual orientation, religion, class/socioeconomic status) for generations and MANY have bought into this division. They recognize that if these groups were united, vs divided, there would be enough power-of-the-people to use democracy (majority rule) in a way that changes the status quo and begins to benefit the majority, rather than the 'wealthy few at the top'. Unfortunately, many see how they benefit from their affiliation with the wealthy in the now, and fail to recognize that those same 'few at the top' will drop them when they no longer need them.
Also very well said. It boggles the mind how they've managed to convince so many millions of people to consistently vote against their own interests. They're not even hiding it. All these people need to do is just LOOK at what these people are doing and stop listening to what they are saying. McConnell sounds like a crazy person when he's describing the current GQP and then saying he's describing Democrats because anyone with a couple of working brain cells can see how the GQP are behaving compared to what they are saying and vice versa with Democrats. It's like these people don't want to see it.
I am always reminded of the swimming pool story during the civil rights era of the 60's. Instead of integrating the community pool so everyone could swim, the white people in charge drained the pool and filled it with cement. If they can't have all the control and get everything for themselves, they'd rather no one does. I'll never understand this thinking.
EXACTLY!!! Low income white Republican voters (ignorant and/or willfully ignorant) just fall in line irregardless of the negative impact to themselves. Heather McGee references the public pools/parks in "The Sum of Us". Anther more recent exampe is ppl against "ObamaCare" but then upset that someone might take their "ACA"! Or, like the pool, some would rather embrace authoritarianism (take their ball and go home) rather than share in democracy (if they can't get their way). There are so many examples for ppl to see that they are being hoodwinked and bamboozled! Most ppl are followers, by nature, so the blame is on self-serving leaders, in all institutions, that are sewing distrust in the institutions when it's actually the individual leader. The institutions fail to expose the rotten apples in their midst (bad cops, false prophets, corrupt politicians...) so the whole institution begins to rot. Then they throw out (provide) a distracting boogeyman- immigrants, the Left, ppl of color, antifa... to confuse their followers and keep them from discovering its their leadership that is the culprit and the interests of those their leaders serve.
Couldn’t agree more. It’s so clear & right in front of their faces and yet they refuse to see it. They stand there and scream & yell that the sky is red and anyone who thinks it’s blue or still blue, are idiots that don’t “get it.” We stand outside shoulder to shoulder and stare at the sky, but they’re convinced it’s red despite what science & their own eyes tell them. It’s hard to know what to do about something like this because it makes no sense.
I think we need to separate faith in the "Supreme Court as an institution" from the "current Justices on the Supreme Court" .... when we lose faith in the institution, we start to head down the path of American Democracy is a failure and cannot survive. I guess the question is do you/we believe that the will of the people can eventually (hopefully sooner than later) right the injustices and anti-Democratic tendencies that our current government exudes?
What if Senator Schumer were to go ahead and call for a vote on Voting Rights legislation and Biden's "Build Back Better" and, when it passes by a simple majority, declare these matters passed and ready for the President's signature? Opponents could then challenge this, so that it would soon end up before the Supreme Court. As "originalists", they should be repudiating the filibuster rule. In this way, the legislation could finally get done. The Dems are sometimes too proper, too respectful of an opposition that does not respect them, and too reverential toward bad law!
Good way to get the question of the constitutionality of the filibuster before the Supreme Court. But I wish I had more confidence that the Court's "originalists" would stick to their originalist principles.
Do you have any concerns about what will happen if the filibuster is eliminated and Republicans take over a simple majority of the Senate in one year, allowing them to pass whatever they want on a party-line vote?
No. I want dems to do it now. Completely. And get Pres. Biden's programs passed and into action. I really don't care what the Reps do next time they are in power. At least the filibuster will be gone and we will be back to "majority rules."
Fair enough. The new majority can then repeal all of Biden's programs.
If the shoe was on the other foot right now and the Repubs were in power in the Senate with the Repubs having their equivalent of a Manchin and Sinema screwing their program , WHAT WOULD MITCH DO?
He'd make some noises about how the filibuster is obstructionist and undemocratic. But in the end the Senate Institutionalists would favor keeping the filibuster and so it would remain.
The real secret of the filibuster is that Senators like it because it allows them to avoid being pressured into party-line votes for bad and/or unpopular legislation. They can posture for their base/primary voters without having to enact bad legislation or having to cast polarizing votes that turn off general election voters. Manchin and Sinema are "taking one for the team" because it wont hurt them in W.Va and AZ. But lots of Dem Senators (probably most) secretly like the filibuster and want it to remain.
Whatever they say, they'd prefer to take a pass on voting to enact the BBB because it would expose them to blame for accelerating inflation and exploding debt. It's much better to get the virtue points of being for it in spirit, while blaming Republicans and the filibuster for why nothing happened.
Principles? The majority of the Robert's court have no principles.
Unfortunately due to the problem of money in politics and two Democratic senators apparently having been bought out Dems wouldn’t even have 50 votes for BBB. But they should be able to at least pass the revised John Lewis Voting Rights Advancement Act with 50+ votes, all Dems plus Republican Lisa Murkowski.
Collins may also be needed.
That is not likely to work since Manchin and Sinema probably won't vote for the end of debate and won't vote for the Voting Rights bills anyway.
I think what David is saying is for Dems to ignore a vote for ending debate (pretend it doesn't exist). Push it through and then let it be legally challenged. I'm not sure I like the idea, but it's interesting nonetheless.
The filibuster is just a Senate procedure or rule. It doesn't have the force of law. For the sake of the federal voting rights bills I think the Dems should just act as if it doesn't exist. However, they still need 50% +1 to get anything done.
they would have to hide the real intent from Manchin/Sinema. The filibuster is all they have to hide behind. There is no way they would, willingly, support an effort to end it. Even if they did, what happens when it gets to the current supreme court that is majority Republican and supports republican views of pro business/billionaire (money influencing politics), pro gerrymandering, filibuster & electoral college (minority rule)... they could decide in a way that solidifies the filibuster rather than end it.
We should take the chance and fight the filibuster before the SCOTUS, if necessary. I don't think the SCOTUS will support it.
Yesterday I had (a safe, at-home brown-bag) lunch with a retired colleague who is a distinguished Constitutional law scholar who writes about executive power and Supreme Court. Among our free ranging conversation topics was today's Court. I mentioned my own combined confusion, dismay, and disgust with 6 members' ignorance of 1) the Constitution; 2) major case law that I am aware of (I am not a lawyer or legal scholar); 3) U.S. history; and 4) everyday reality (eg., Coney Barrett on "women's progress'" and wonderful adoption system to explain a lack of need for abortion and women's (or anyone's) rights to control their bodies and their lives; others on equity and equality). I asked my friend: how the f**k can this possibly be?
He laughed and replied: "The Federalist Society" No need for common sense, legal, historical, or contemporary knowledge for these people, many of whom hold multiple Ivy League degrees (like Ted Cruz, josh Hawley (Ph.D. in US History from Yale : )), Ron DeSantis, and others). The Harvard Law grads like Cruz and DeSantis almost certainly had a course in critical race theory with Derrick Bell!
"Textualism" and "Originalism" are now (perhaps always?) ideologies not legitimate modes of analysis and interpretation.
We can change term limits, age limits, nomination requirements. But how can confront radical ideologies supplanting sense and knowledge?
Can the Federalist Society be designated a terrorist group by law?
Our law defines ‘domestic terrorism’ in at least one place, but directions for what to do about people and organizations that fit that bill, I have not yet found. International terrorists, many clauses.
<https://www.law.cornell.edu/uscode/text/18/2331#5 >
The current reeking mass that still calls itself the ‘Republican Party’ clearly qualifies today, as stated. There was a moment in the hours and days after the attack on the Capitol when it seemed that many Rs would stand up for what is right ( they are the ‘right wing,’ I keep hearing, after all ), at least the bare minimum of what is patriotic and lawful, but since then their behavior has returned to eerie weird clearly coordinated lockstep ritual denial of simple obvious facts, as if someone is threatening their family. — b.rad
yet another tactic of the wealthy/powerful... infiltrate and/or take control of any potential apposing entity- government agency that regulates you, and government at all levels (Fed, state, local), business competitor, election boards, the legal system, the military and police... And if all fails... just blow it all up (no one can have her if I can't).
Better almost too late than never department …
The Justice Department will create a domestic terrorism unit to counter rising threats : NPR
<https://www.npr.org/2022/01/11/1072123333/justice-department-domestic-terrorism-unit>
I think it is clear that a minority party in Democracy should not have more voting power than the majority of the country. It is clearly unconstitutional and not Democratic. It's also not just or fair.
I call it offensive.
At every turn, I find myself exasperated that this is meant to be a majority rule liberal democracy when it has become a complete tyranny of the minority. If this country is going to be the majority rule country it was meant to be, the filibuster, gerrymandering, and the electoral college will all be eliminated. Adding 4 more seats to the Supreme Court is now necessary as well since this anti-majority court majority seems to think they can do whatever they want with no accountability. They are all anti-majoritarian instruments that have been used for that express purpose.
I’m sorry, but how can we call ourselves a REPRESENTATIVE DEMOCRACY when 41 senators represent 21% of the country? It’s absolutely absurd that this is currently how our country is constructed. 21% of the country is essentially ruling the other 79% when it’s meant to be the other way around. I don’t understand how we’ve gotten here. How this has been allowed to happen.
I hear you, Danielle. It's absurd. Our democracy was designed for a country that no longer exists. The distribution of our population has changed, our economy has changed, all in ways unimaginable more than two centuries ago. We need to update our democracy.
Thank you for the response, Robert. You hit the nail on the head. Our democracy works for a country that no longer exists, but some in government persist with it as if it will magically shift. I'm amazed that it has taken this long just to get to an inflection point where it is a clear choice between progress & backsliding, but at least we are finally discussing getting rid of things that no longer serve us.
I hate it when people say we are an evenly divided country. No, we aren't. There's far too much weight and deference given to land as opposed to people. Democrats represent 40 million more constituents than the GQP, but the house & senate are almost equal. None of it makes sense.
I have to believe that people will step up and do the right thing, especially when the watchful eye of history is on them. As disheartening as it gets, I live in hope! Thank you for your wonderful newsletter and comments!
too much weight and deference given to PROFIT as opposed to people
some are walking around with blinders on finding distractions from the truth, others are being mislead about the truth, and some are comfortable and not directly impacted yet, so they just sit on the sidelines.
To me, so-called "originalism" and "textualism" are fancy-sounding code for "I have a lifetime appointment and zero accountability, so I can do whatever I want, ha ha." During the Obama presidency, there was a dispute about recess appointments, which are allowed by Article II, Section 2 of the Constitution. In ruling against the president (of course), Antonin Scalia called that constitutional provision an anachronism. So much for originalism. Additionally, "unconstitutional overreach" is now code for "I don't like that law/policy." I have no respect for people who twist words and phrases and invent meaningless terms to rationalize the pursuit of their own personal predilections, people who use their degrees from some of our country's most elite institutions to cause harm.
As for Manchin's and Sinema's embrace of the filibuster, I think they are using that as an excuse to prevent legislation that their Big Money donors oppose.
My two U.S. senators are, unfortunately, very partisan Republicans who are perfectly fine with blocking voting rights legislation. But, with regard to bringing congressional issues to court, and particularly with Trump and others going to court to quash congressional subpoenas, I have been wondering, doesn't the Speech and Debate clause in Article I, Section 6, apply?
WONDERUL SUMMARY OF MINORIITY KILLING OF OUR DEMORCRACY
Excellent summary. I'm with Madison and Hamilton and I know that Benjamin Franklin would have some choice words about the 60-vote cloture requirement, if he were around today.
But there's a small and perhaps not all that significant point in the Constitution that's generally overlooked, but I feel it's important. That document establishes the Vice President as head of the Senate and gives that person the ability to be the tie-breaker should ties occur. Implicit in that statement is the assumption that ties are an equal number of votes on each side, and since a 60-40 vote isn't a tie vote, then the ability of the Vice President to break the tie is non-existent. I feel that this invalidates the entire argument for the existence of the filibuster, but of course I could be wrong.
I have shared this with both of my Senators imploring them to act and be the strength our country needs right now to protect the rights of all Americans to vote and save democracy itself. Sad to say it but we can't depend on a corporate bought Supreme Court to act in a manner beneficial to the people. Excellent article.
Thank you, Susan, for taking action.
Federalist Society, for those who may not know the details: https://en.wikipedia.org/wiki/Federalist_Society
Sheldon Whitehouse has exposed this via Dark Money- https://www.youtube.com/watch?v=cjcXVKg43qY , not enough ppl are aware
thnx.
Maybe as originally written, it could be of some use, however how it now stands it it is a detriment to democracy and must be illuminated to make congress work again. Screw the Supreme Court, they do not have say over everything, only dictators have this privilege. Why are we discussing this? ,just get it done. If the Democrats fear the retaliation in the future, they better think twice, cause under these conditions their will be no future. Legislature dictated by one section of congress is wrong , never was meant to be, and never will be if this is stuck down
Sherrod Brown now has this text in his inbox. Truth be told, with Brown it's a bit like preachin' to the choir - I believe.
Good! I'm curious to see what he does with it. (You're very lucky to have him as one of your senators.)
Mr Reich, I just received a reply from Sen Brown, as follows:
Dear Mr. K:
Thank you for sharing your thoughts about filibusters in the United States Senate.
I understand the frustration caused by the frequent use of filibusters and threats of filibusters during recent sessions of Congress. Under Senate Rules, actual floor speeches are not required to invoke a filibuster. If a Senator indicates that he or she is filibustering, the Senate may not move on to other business until 60 votes are gathered in a procedure called "invoking cloture."
In 2013, faced with persistent obstruction of President Obama's nominees, the Senate reduced the number of votes required to invoke cloture on the confirmation of appointees to federal agencies and the federal judiciary from 60 votes to a simple majority. However, the Senate preserved the 60-vote threshold for legislation and nominees to the Supreme Court, recognizing the need for consensus on a lifetime appointment to our nation's highest court.
In April 2017, faced with opposition to President Trump's Supreme Court nominee, Neil Gorsuch, the Republican majority in the Senate reduced the number of votes required to invoke cloture for Supreme Court nominees to a simple majority. This change, known as the "nuclear option," enabled the majority party to end the filibuster of Neil Gorsuch's nomination with less than 60 votes, and he was confirmed as a Supreme Court Justice the following day.
The rules of the Senate certainly can be frustrating and sometimes prevent action on meaningful legislation, but they also serve to prevent a bare political majority from unfairly fast-tracking nominees and legislation that merits serious consideration and some level of consensus. As the Senate considers rule changes, I will keep your thoughts in mind.
Thank you again for being in touch with me.
Sincerely,
Sherrod Brown
United States Senator
Stay connected with what's happening in Congress. Sign up here for regular updates on the issues you care about the most: http://brown.senate.gov/newsletter/landing
"In April 2017, faced with opposition to President Trump's Supreme Court nominee, Neil Gorsuch, the Republican majority in the Senate reduced the number of votes required to invoke cloture for Supreme Court nominees to a simple majority."
So at least the Republicans were on the right side of the issue at that point. Maybe when they are back in the majority they will get rid of the filibuster for all votes. As long as we get rid of the filibuster, that's the point for furthering democracy. It doesn't matter which party does it.
Thus clearly demonstrating how "flexible" Republican values really are.
You're fortunate to have Sherrod Brown as one of your U.S. Senators. Always liked his moxie-ness
Yep! And to him, I'm no stranger with my not infrequent email rants!
Yes you are lucky DZK, Sherrod Brown is a good man. I am envious, I am a Missourian.
👍
Same here with Liz Warren. I have probably given her a smile!
Thank you all for reaffirming my faith in Sen Brown. By extension, it reaffirms my own perception that my faith is not in vain.
Senator Gary Peters, and Senator Debbie Stabenow of Michigan (both Democrats) now have the article, too. I haven't heard either of them saying much lately. Perhaps this will be the elixir they need. Stand up and be counted, Senators!
Good luck Michigan!
Sheldon Whitehouse has exposed this- https://www.youtube.com/watch?v=cjcXVKg43qY , not enough ppl are aware
Kind'a makes you wonder why all the Q-onspiracy theorists haven't picked up on this! It makes my head hurt! LOL! (I guess because it's filled with facts.)
You would think they would have figured this out by now, but when their leaders give them boogeymen to blame (ANTIFA, ppl of color, immigrants, socialist...) thy get distracted following those leads. Most ppl are followers so you have to blame their leadership that is manipulating them for self-interest. To make money off them, to keep the electorate divided while they pillage and plunder and conceal who the real culprits are. They want them ignorant and loyal... ripe for manipulation. Ever hear of "southern strategy"?
Preachin' to the choir, my friend. I agree. But like ol' Boris Badinoff famously said in a kids' cartoon: "Never underestimate the power of a schnook!" Good advice for any kid. Seems to have fallen on deaf ears.
Quite instructive. Good source. Thanks.
Is anyone planning to take this before the Supreme Court? Maybe this should be done.
It certainly should be. I recommend calling your senators and asking them to do it.
The filibuster is just an unethical, undemocratic, and probably unconstitional tactic of a minority attempting to get its way and thwart a majority. It is typically favored the a party not in power, but sometimes even senators of the party in power even favor the filibuster (Manchin, Sinema) for political reasons. I like your idea Robert to challenge the filibuster in the courts.
It would be interesting to see the true face of Supreme Court Justices on this issue! I am not optimistic!
Mitch McConnel and other Conservatives have been hypocritical in their politics in recent times. Once a hypocrite always a hypocrite.
But none of this can explain why the Democratic Senate does not change such rules!
As a person who is active in many progressive causes, I am frequently invited to write to my senators. As a person currently stranded in the state of Florida, I generally feel that it is absolutely useless because progressive citizens have no one in power here that would be open to any of my opinions. I like to think of Florida as ruled by the "Triumverate of Genuine Idiocy" - Rubio, Scott and the ultimate nut job: Ron DeSantis. So, it's no wonder I constantly feel like my opinion doesn't matter and that writing to them is a fool's journey.