You Win Some, You Lose Some, Part I: The Filibuster

Thursday was a very big news day and, as you might gather from the headlines we're using, partisans on both sides of the aisle got some good news and some bad news. First up is the biggest news of the day, and the unhappiest news for members of the blue team: Filibuster reform suffered a huge setback. Two of them, in fact, in the form of Democrats' two favorite U.S. Senators.

This week, most of the attention has been on Sen. Joe Manchin (D-WV). Maybe Sen. Kyrsten Sinema (D-AZ) was jealous, because she seized the initiative on Thursday with a speech on the floor of the Senate shortly before Joe Biden was set to arrive on Capitol Hill to do some arm-twisting. Her preemptive strike was so unexpected, in fact, that almost nobody heard it. There were only a couple of dozen people in the gallery when the Senator declared that while she strongly backs Democrats' elections legislation, she will not support "separate actions that worsen the underlying disease of division infecting our country ... There's no need for me to restate my long-standing support for the 60-vote threshold to pass legislation."

Given how things unfolded, when Biden and the 50 Senate Democrats and independents sat down for their meeting about an hour later, most people in the room were unaware of Sinema's remarks. And while she was present, she did not speak up, nor did she ask questions. Manchin, by contrast, did speak up, and he asked a strange question, putting it to the President whether former West Virginia senator Robert Byrd was ever willing to play around with Senate rules in the manner Biden is pushing for. That seems like a gotcha question, except that Biden—who was colleagues with Byrd for three decades—was able to respond truthfully that Byrd supported changing the rules through parliamentary maneuvering numerous times, and also that Byrd lamented the power of the filibuster late in his career.

Did Manchin not know that? It seems hard to believe. But if Manchin did know, then why did he ask the question? The answer would seem to cut the Senator's "the Senate rules are sacred" position off right at the knees. In any event, Manchin was apparently unimpressed by what he heard during the meeting, and afterwards issued a statement in which he said he would not "vote to eliminate or weaken the filibuster."

So, is filibuster reform dead? It certainly looks that way, and that is certainly how the other Democratic senators were interpreting Sinema's and Manchin's words. That said, the two senators were at the White House last night for a chat with Biden; one wonders why the two would attend the meeting if their minds were 100% made-up. Note also that they keep avoiding the full Sherman, and saying that they won't vote to eliminate the filibuster, and they won't vote to weaken the filibuster, but never saying they won't vote to change the filibuster. Clearly, a carve-out would weaken the filibuster, and is off the table. But is the resumption of the talking filibuster a weakening? Guess it depends on how Manchin and Sinema define that. In any event, if Biden can win one of them over, then the pressure on the holdout—especially if it's Sinema—would be enormous. Senate Majority Leader Chuck Schumer (D-NY) postponed voting on the voting rights legislation from today to next Tuesday.

Meanwhile, buried within the arcana of parliamentary procedure, there may be another option available to the Majority Leader if filibuster reform doesn't work out. Former Senate aide James Wallner points out that all the focus right now is on Senate Rule XXII, which is the one that lays out the terms of filibusters. However, there is also Senate Rule XIX, which sets the rules for debate on the Senate floor.

Rule XIX was in the headlines back in 2017 because one of its provisions is that "No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator," which was used to shut down Sen. Elizabeth Warren (D-MA) on the floor of the Senate after she said mean things about then-Senator but also then-AG nominee Jeff Sessions. However, there are other parts to rule XIX, including this: "[N]o Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate."

If Schumer decides he wants to try to exploit this opportunity, there would be four elements to the plan:

1. Open debate: The decision to begin discussing a bill is, itself, filibusterable. However, as we noted yesterday, Schumer is already going to use a loophole to overcome that hurdle. So, debate will commence.
   
   
2. Not all days are equal: Note that Rule XIX doesn't say "same day," it says "same legislative day." A legislative day begins when the Senate is called into session, and doesn't end until it adjourns. And so, if Schumer ends each workday by calling for a recess, rather than an adjournment, then the "legislative day" can stretch on for weeks or months.
   
   
3. Filibuster: Meanwhile, as the rules state, each Republican would be allowed to speak twice. There's no limit on their speaking time, but they can't leave the Senate floor. So, if you imagine they can each hold on for 6 hours on two different occasions, then the Republican members could eat up 600 hours. That's 25 days if the Senate remains perpetually in session, and probably more like 2 months of actual Senate time. During that time, the upper chamber would not be able to do anything else (like, say, confirm judges).
   
   
4. Endgame: Eventually, each Republican would have exhausted his or her opportunities to speak. Senate rules decree that "[W]hen a Senator yields the floor and no other Senator seeks recognition, and there is no order of the Senate to the contrary, the Presiding Officer must put the pending question to a vote." In other words, at that point, the bill in question would come up for a vote, since all the Republicans would have exhausted their speaking chances and so would be unable to seek recognition. And it would only require 51 votes instead of 60, so if the Democrats stuck together, they could carry the motion.

Why hasn't this option been discussed before? Well, to start, it would require buy-in from Manchin and Sinema, who would have to agree to recesses rather than adjournments. It seems strange that they would allow a back-door to the Jimmy Stewart filibuster when they won't support a straightforward change. On the other hand, this would be a one-off, and wouldn't change the Senate's rules at all, and so would theoretically address their concerns.

Beyond that, there are a couple of other reasons you don't hear much about this option. The first is that it would be much more painful (weeks or months of gridlock) than a change to the filibuster, and would not be available for getting other legislation passed (unless Schumer wanted to use the same trickery, and bear the same pain, again). The second is that the circumstances for invoking Rule XIX have to be just right, including the existence of a bill that allows the Majority Leader to exploit the initial loophole that begins debate. That said, Schumer is certainly aware that XIX might be used to foil the Republicans' obstructionism—the last Majority Leader to use the "legislative day" trick was Schumer's mentor, the late Harry Reid, in 2013.

So, will Schumer actually do it? He just might if he feels the Democrats face an existential crisis, and there are no other options, and the two Democratic flies in the ointment are willing to play along. The first thing that the blue team would need to do, whether pursuing a change to the filibuster, or doing an end-run around it, is combine the two voting rights bills. And the House did exactly that on Thursday. (Z)

You Win Some, You Lose Some, Part II: Vaccine Mandates

The latest developments on the filibuster front were not the only bad news for the Biden administration on Thursday. The Supreme Court also killed the administration's large-employer vaccine mandate, thus erasing one of the most significant tools available for bringing the pandemic to its close.

The unsigned decision was 6-3, and in case you need any help figuring out who was who, the three liberals on the court wrote (and signed) a fiery dissent that included this observation:

Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible.

The rest of the dissent is not any cheerier.

The six justices who voted to strike down the mandate absolutely stood on their heads in order to get the result they desired. The statute that the vaccine mandate was based upon is the one that allows the Occupational Safety and Health Administration (OSHA) to protect employees from "grave danger" resulting from "new hazards." In other words, when it passed the legislation creating the agency, Congress said: "There may be dangers we do not know about or anticipate, so we will give the agency the leeway to respond to them." What the six conservatives decided yesterday is that COVID-19 is not a workplace grave danger, it's a grave danger that exists everywhere, and "everywhere" just so happens to include the workplace. This being the case, according to Chief Justice John Roberts & Friends, it is beyond the purview of OSHA. Never mind that OSHA has regulations about things like fires and floods which, according to our meticulous research, sometimes happen in places besides the workplace.

The news was not all bad for the White House. Roberts and Associate Justice Brett Kavanaugh decided that while workplaces in general cannot be compelled to impose vaccine mandates, it is acceptable to require vaccines of healthcare workers. So, that policy was upheld 5-4. It's not so easy to reconcile a "yea" vote on one mandate with a "nay" vote on the other, and the two justices didn't try all that hard in the (also unsigned) opinion, where again the identity of the majority is known because the minority issued a blistering, signed dissent. Kavanaugh is being lambasted by conservatives, many of them slurring him as "Cuckanaugh." Some are also slamming Senate Minority Leader Mitch McConnell (R-KY), blaming McConnell for Kavanaugh's presence on the court. Of course, that last point is something that liberals would agree with.

With its hands fairly tied, the Biden administration urged large employers to impose mandates anyway, even without government insistence. Many of them might do it; they don't want to lose workers in a tight labor market, but they also don't want half their workforce to be sick. Meanwhile, this isn't going to help SCOTUS' reputation very much. One wonders if a decision about Trump's presidential papers will be coming soon, so as to push this decision to the back pages as quickly as is possible. (Z)

You Win Some, You Lose Some, Part III: Trouble in GOParadise

Though there was plenty of unhappy news for Democrats yesterday, the Republicans did not get off scot-free. It's only medium-importance news right now, since it's just a few early cracks in the foundation. But if the cracks grow, it could become very big news, indeed. In short, tensions are flaring right now, and may drive one or more wedges right into the heart of the Republican Party.

First up, there is Sen. Lindsey Graham (R-SC), who spends even more time groveling before Donald Trump than Sen. Ted Cruz (R-TX) does. And the South Carolinian, who appeared on Fox in order to do a little groveling before Sean Hannity, made a rather bold statement about his loyalties, announcing that he will not support Mitch McConnell for another term as Republican leader unless McConnell has a "working relationship" with Trump.

Who knows exactly what Graham is hoping for here. McConnell and Trump hate each other, first of all, and as we've written several times this week, it looks like the Minority Leader might be orchestrating a campaign meant to undermine the former president. Further, given that Trump is not in office right now, the only thing that McConnell might work with him on is supporting Republican candidates in 2022. But the Kentuckian isn't going to back a less electable candidate just because that person happened to have done the most to kiss Trump's rear end. In any event, Graham's threat is rather empty. Even if the Republicans reclaim the majority in the Senate, the Senate Majority Leader is not "Speaker of the Senate." McConnell doesn't need 50 or 51 or 52 votes, he just needs a majority of the Republican votes (25 or 26). That said, if Graham speaks for a faction that is prepping to go to war with McConnell, then things could get ugly on that side of the aisle.

And McConnell is not the only prominent Republican who has displeased Trump. The New York Times' Maggie Haberman, who is sort of the Trump whisperer, and so is usually right about these things, says the former president is very angry with Gov. Ron DeSantis (R-FL). It would seem that DeSantis, like McConnell, has not been deferential enough. With Trump, you must kiss the ring (and other things) early, and often.

That Trump is already having issues getting along with DeSantis affirms our sense that a hypothetical Trump-DeSantis 2024 ticket is not happening. Trump needs a number two whose inferior status is crystal clear. Beyond that, however, it's always seemed inevitable that Trump and the other prominent Republicans could not stay in the same tent forever, and that there would either be a bitter internecine war, or else that Trump would take his ball and go home and form his own party. Maybe we're seeing early signs that things are headed in that direction. (Z)

You Win Some, You Lose Some, Part IV: Justice Drops the Hammer

In his Jan. 5 speech, AG Merrick Garland made clear that his department has been going after the lesser offenders from 1/6 first because that's just good prosecutorial practice, but that heavier-duty arraignments were coming. It turns out he wasn't kidding. In news that will gladden the hearts of many Democrats, and some Republicans, but that will infuriate the 1/6 truthers, Stewart Rhodes and 10 other members of the Oath Keepers have been charged with seditious conspiracy in connection with their actions on 1/6.

Seditious conspiracy is not a charge you see every day. It's covered in 18 U.S. Code 2384, which reads:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

As you can see, a conviction potentially carries a hefty 20-year sentence.

The last time a group was charged with seditious conspiracy was in 2010—the Michigan-based Hutaree militia. Members of the militia made many statements about overthrowing the government, including on social media, but the judge tossed the charge because she said that the militia members' hotheaded words were not enough to constitute sedition—that is, a serious attempt to overthrow the government. Notably, there was a group convicted of seditious conspiracy in 1954, when four Puerto Rican nationalists stormed the U.S. Capitol.

In short, it's a tough case to make. However, the DoJ does not file charges unless they strongly expect to win. That appears to be doubly true of a DoJ under the leadership of Merrick Garland, and it's got to be triply true when dealing with a political football as big and imposing as this one. Presumably, Garland & Co. have taken notice of the fact that careless talk wasn't enough for a conviction in 2010, but actually storming the Capitol was enough in 1954. The Oath Keepers know full well which side of that divide they fall on, and so should be nervous.

Others who should be nervous: Anyone who is higher up in the pecking order than the Oath Keepers. Clearly, the DoJ is not playing around here. And if the Oath Keepers are, or may well be, guilty of seditious conspiracy, then there are others who are just as exposed (or nearly so). Donald Trump? Possibly. The people who ran the command center at the Willard Hotel? Very possibly. The members of Congress who may have aided the insurrectionists in conducting pre-January 6 reconnaissance? Definitely. Keep in mind that, as Garland himself explained last week, you start with the little fish in order to potentially get dirt on the medium fish. And then you use the medium fish for help in bringing down the big fish. If Rhodes and the other Oath Keepers worked with Roger Stone, or John Eastman, or one or more members of Congress, there will be enormous pressure to sing. And if someone is looking at 20 years, singing is a very likely outcome. So, it's not a great time to be one of the big fish of 1/6. (Z)

You Win Some, You Lose Some, Part V (?): Ducey for Senate

You will notice that, in contrast to the first four items, this headline has a question mark in it. That's because we're not entirely certain who wins and who loses here. In any event, it's not close to official yet, but there is much whispering in Arizona that the term-limited Gov. Doug Ducey (R-AZ) could jump in on this year's U.S. Senate race.

Ducey, of course, is a nemesis of Donald Trump. And that is because Trump lost Arizona in 2020. There are those who might argue that loss was the fault of the former president, and not of the current governor, but that's not how The Donald's mind works. He "knows" he won, and he thinks it was Ducey's job to make that into reality. Never mind that, even if Ducey was willing to cheat (and there's no indication he was), the Arizona Secretary of State was (and is) Katie Hobbs (D), and she never would have played along.

The reason people are speculating about a Ducey senatorial run is that he just delivered his final State of the State address, and it mentioned Joe Biden no fewer than six times. That kind of speech sounds much more like a potential stump speech for a Senate candidate than an update on affairs in Arizona. After all, the president is pretty far removed from most matters of interest to state residents.

If Ducey, at 57, wants to continue his political career, then tossing his hat into the ring makes a lot of sense. Since he's barred from the governor's mansion, and any other elective job would be a step down, and a position in the Biden cabinet is unlikely for a Republican—particularly one who just excoriated the President—then the Senate is really the only possible option in 2022. Further, the other Republican candidates—state AG Mark Brnovich, businessman Jim Lamon, Peter Thiel acolyte Blake Masters, Maj. Gen. Mark McGuire (ret.), and Arizona Corporation Commissioner Justin Olson—are busy trying to out-Trump one another. Those fellows won't all be factors in the race, but if two of them hang on and split the Trumper vote, then Ducey could triumph by attracting the non-Trump Republicans.

In the short term, it is probably good news for the Democrats if Ducey jumps in the race. Sen. Mark Kelly (D-AZ) does not have any serious opposition, and isn't likely to draw any, so he can sit back, relax, and raise money while the Republicans duke it out. Kelly already has $20 million on hand, and will have at least doubled that by the time of Arizona's (very late) primaries on Aug. 2.

In the longer term, however, if Ducey advances, he's probably the toughest opponent that Kelly might face. The Governor has twice won statewide and is an excellent fundraiser (which will be necessary if he starts tens of millions of dollars in the hole). There are some Trump voters who will stay home or leave the Senate race blank if the candidate is someone who is not Dear Leader-approved. However, there are also some NeverTrump voters who cast ballots for Kelly last time but would be willing to vote for Ducey this time. Put it this way: You can bet your bottom dollar that Mitch McConnell is rooting for Ducey to run and to win the nomination. And McConnell is not known for rooting for things that help Democrats. (Z)

You Win Some, You Lose Some, Part VI (?): RNC Threatens to Skip Presidential Debates

Another item with a question mark, and thus another item where we're not sure who will be helped or hindered. The Republican National Committee, which has wholeheartedly embraced the notion that everything in the world is unfair to conservatives, is upping the ante when it comes to the presidential debates. On Thursday, chair Ronna Romney McDaniel sent a letter to the Commission on Presidential Debates (CPD) warning that the RNC is going to adopt a rule declaring that if big changes are not made, the Party's presidential candidate will be forbidden from participating in the debates.

Asserting that "voters have lost faith in your organization," the RNC has five demands for the CPD. The executive summary:

1. Term limits for the CPD's Board of Directors
2. Prohibitions on political statements by members of the CPD
3. "Transparent" criteria for selecting conflict-of-interest-free moderators
4. A "transparent" code of conduct for those moderators
5. At least one debate scheduled prior to the start of early voting

In the abstract, these all seem like good and reasonable suggestions. In practice, however, the devil is in the details. For example, undoubtedly partisans on both sides can agree on transparent criteria for choosing moderators, who should play it down the middle. However, the real problem with the moderators in 2020 was that they, and in particular Chris Wallace, struggled to maintain control because of the bad behavior of Donald Trump. The letter from the RNC makes no mention of that little problem, much less changes that might be made to keep it from happening again.

What McDaniel & Co. want, in effect, is veto power (or something close to it) over the moderators. And since the modern Republican Party, particularly the Trump wing, regards any journalist who is to the left of Tucker Carlson as "fake news" and hopelessly biased, this demand is one that likely cannot be met. Again, Chris Wallace—who is most certainly not a liberal—was unacceptable. And so, the Republicans surely won't regard folks like Chuck Todd (Meet the Press), Judy Woodruff (PBS NewsHour), or Jennifer Rubin (The Washington Post) as acceptable, and will boycott. Meanwhile, the CPD and the Democrats will never go for folks like Sean Hannity (Hannity), Hugh Hewitt (The Hugh Hewitt Show), or Laura Ingraham (The Ingraham Angle).

If the RNC was really interested in improving the process, then McDaniel would have worked behind the scenes, and would have been willing to do some giving in exchange for some taking. But doing it this way—turning it into a public pissing contest—is not likely to be productive. The CPD cannot set the precedent that all a political party has to do is write a couple of angry "open" letters and the rules will be changed.

The Chair is not stupid, and she certainly knows this. And so, one has to conclude that the real purpose here is to excuse the Republican presidential candidate from having to debate in 2024, while making it the fault of... everyone except the Republican candidate. In particular, if Donald Trump is the candidate, the debates are basically a losing proposition. He doesn't need the publicity, and he's not going to be allowed to walk all over Joe Biden, or whoever the 2024 nominee is, again. And in a more proper debate, Trump is a guaranteed loser because he's not eloquent and he doesn't know anything about policy. At best, he holds serve. At worst, he says something really stupid or offensive that becomes the next great Trump meme.

Returning to the question at the start, then, who wins and loses here? Well, if it's Trump vs. Biden in 2024, and the RNC skips the debates, then the winner is probably the viewing public. Everyone knows these men and what they stand for, and wasting another 4-6 hours on a non-debate debate does little good for anyone. If it's not Biden in 2024, then his successor nominee probably benefits because the debates will be turned into town halls, and the person will get to present themselves and their program without interruption. And if it's not Trump in 2024, well, we suspect that the RNC will quickly change its mind, since a non-Trump candidate probably needs the national exposure. People don't watch the conventions anymore, and so the debates—particularly the first one—are the best way to reach low-attention voters. (Z)

This Week in Schadenfreude

The MyPillow guy, Mike Lindell, embarrasses himself so often that we could use him for this feature pretty much every week. That would get boring, though, so he gets a pass unless he really, really steps in it. Well, he really, really stepped in it this week.

Lindell, of course, believes that the 2020 presidential election was stolen from Donald Trump. He seems to believe that even more firmly than Trump does. At very least, Lindell is willing to spend his money pursuing the matter while Trump isn't. Anyhow, Lindell's basic shtick is that he has proof of his claims, that said proof is overwhelming, and that it will be made publicly available... very soon. Such claims, absent the promised evidence, are incredibly selfish, as they do serious damage to democracy just so that Lindell, Trump, et al. can soothe their hurt fee-fees.

Like the boy who cried wolf, Lindell has failed to deliver so many times that he's had to be more and more outlandish in order to get attention. And that was the dynamic that played out this week. Lindell was appearing on Dr. Gina Primetime, one of the main programs on the (mostly) streaming network Real America's Voice. That's right, he's been reduced to appearing on "channels" that even OANN looks down upon. And during his appearance, Lindell claimed that the latest round of allegedly soon-to-be-released information includes "enough evidence to put everyone in prison for life, 300 and some million people."

Needless to say, the claim is absurd on its surface. Very few crimes carry a life sentence, particularly crimes that are non-violent. Plus, 300 million people would mean every American above the age of 5, including every single person who voted for Donald Trump. It would also be a strange country, indeed, if 10% were placed in the position of acting as jailers to the other 90%. Especially since putting 300 million people in the currently existing prison infrastructure would mean about 1,100 people per cell.

Lindell is getting absolutely torched on Twitter, of course. That includes tweets from folks who are usually more reserved, like Larry Sabato:

As Mike Lindell's body double, I hereby exonerate all 300 million of you. You may cite this in legal documents. Enjoy your freedom! https://t.co/E28uHWK7If

— Larry Sabato (@LarrySabato) January 12, 2022

There are also quite a few tweets along these lines:

Lindell: “I have enough evidence to lock up 300 million Americans!”

“How did you come up with that number?”

Lindell: “I did the meth!”

“You mean math?”

Lindell: “That too”

— Smite! (@7Veritas4) January 13, 2022

The late-night hosts have also had a field day, most notably Lindell nemesis Jimmy Kimmel. Heck, even The Washington Post shredded Lindell.

Now, we should point out that we hesitated a bit before writing about Lindell. We're not willing to make sport of folks who suffer serious illness, injury, or death—only people who behave like jerks and have that reflect back on them in a manner that is not permanently debilitating. Similarly, we're not Donald Trump, and so would not target someone who is disabled or is not responsible for their own behavior. And so, while Lindell seems like he's still in the jerk/grifter category, it's getting to the point that psychoses or other underlying issues have to be considered a potential explanation for his behavior. If that turns out to be the case, then of course we withdraw this item. But for now, the umpteenth occasion on which Lindell has made himself a national joke is cause for a bit of schadenfreude. (Z)

Note: We had some technical issues yesterday, and weren't able to include a predictions entry. To retain the same schedule (T/Th looking backward, W/F looking forward), we're going to skip today, too. They'll be back on Tuesday!

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