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The Three Fantasies That Explain Why Congress Does Not Work

Steven Pearlstein, a professor of public affairs at George Mason University, has written a very interesting op-ed over at Politico that goes a long way toward explaining why Congress, especially the House, is completely dysfunctional and why that is unlikely to change any time soon. Here is a brief summary of his points:

In the end, each of these factions is convinced of its righteousness and is not going to budge. Each of them is big enough to defeat proposals from the others, but not big enough to get its own legislation through. So the gridlock continues. (V)

Democrats Might Be Willing to Accept a Compromise on the Border

Joe Biden asked Congress to appropriate $106 billion for Israel, Ukraine, Taiwan, and the border. Nearly all Democrats are fine with aid to Ukraine and Taiwan, most are fine with aid to Israel, but many have problems with beefing up border security. All Republicans are fine with aid to Israel and Taiwan and beefing up border security, and some are OK with aid to Ukraine. Getting everyone on board with everything is tricky. However, enough Democrats are now considering reducing immigration that a bill with funding for all four items might be able to pass Congress with mostly Democratic and some Republican votes. That seems to be the current direction.

Even pro-Putin Republicans who don't want to help Ukraine don't want to vote against more money for border security, lest that be a millstone around their necks in the primaries next year. Democrats who are afraid of being battered on border security in the general election are warming to a bill that might immunize them against attacks that they are for open borders. For example, Sen. Jon Tester (D-MT), whose state does border on a foreign country, albeit to the north rather than to the south, said: "Look, I think the border needs some attention. I am one that thinks it doesn't hurt." Sen. Tammy Baldwin (D-WI) and some other Democratic senators are with Tester on this.

The battle is about asylum. Republicans believe that anyone who shows up at the border and says: "I am in danger in my country" gets in. They want to stop this. They also don't want acceptance of the "dreamers" to be part of the discussion. But increasingly many Democrats are coming to realize that if they are to get a bill, they are going to have to give up some of their priorities. Otherwise the votes won't be there. But groups that support immigrants and immigration don't want any backsliding among Democrats here, even if it means no aid to Israel, Ukraine, and Taiwan.

Getting to 60 votes in the Senate and 218 in the House will be tough; many Democrats are going to have to give up some top priorities and swallow hard to get anything at all. Sen. Alex Padilla (D-CA) is working to get some kind of path to citizenship for the dreamers in the bill, but Republicans don't want it. Maybe if he were to agree to a 10-year path for dreamers who had a clean record (and had never taken any form of welfare) or had served in the military or law enforcement, he could get enough Republican votes, but it won't be easy.

Still, Democrats who want to help Ukraine, Israel, and Taiwan are probably going to have to accept less immigration as the price for nine Republican votes in the Senate and five in the House. They are starting to realize this and deal with it. (V)

Does Trump Have a Ceiling?

Warnings for Joe Biden are everywhere. There have been many reports about young voters as well as Black and Latino men becoming disaffected with Biden. There have been demonstrations against Biden's Middle East policies. The Siena College poll with Trump winning five of the top six swing states has been reported far and wide. Is it curtains for the President?

One consistent fact that has been largely overlooked is that Donald Trump has not improved on his 2020 showing at all. Just about everywhere, Trump is polling below what he achieved in 2020 and 2016. Here are the numbers:

Current polls for Trump vs. 2020 and 2016

Consider Arizona. The thin vertical red line at 49% shows what Trump got there in 2020. The thin vertical gray line shows what he got in 2016. Morning Consult and Emerson have Trump at 46% now—less than either 2020 or 2016. The Siena poll has him at 49%—the same as 2020. In Georgia, all three polls have Trump underperforming both 2020 and 2016. In Michigan, three of the four recent polls have him trailing what he got in 2020 and 2016. In fact, among all 18 polls Trump is beating his 2020 and 2016 performance in only one poll: Siena in Nevada.

So what is going on? Here are the analogous charts for Biden, with the thin vertical red line being Biden 2020 and the thin vertical gray line being Hillary Clinton 2016.

Current polls for Biden/Clinton vs. 2020 and 2016

Here's the answer: Biden is underperforming the Democratic candidate in both 2020 and 2016 in every poll everywhere, excepting that he managed to tie 2016 in one poll in Wisconsin. So what is happening is not that Trump is getting stronger. He seems to have a ceiling that he cannot break through. His upcoming trials may strengthen the resolve of his base but are unlikely to convince many independents to switch from Biden to Trump. Trump seems to have a ceiling of about 48-49% everywhere. Biden's ceiling seems to be 50-51%. According to the staff mathematician, 50 > 49.

The two charts make it easy to understand what is going on. Biden is losing part of his base, especially young voters, Black men, and Latinos. But they are not migrating to Trump. They might not vote or might vote for a third party. This shows that all is not hopeless for Biden. He needs to address the concerns of these voters. Inflation and grocery prices are a big issue with many of them, and the future of democracy is probably an issue as well.

There is a limited amount he can do about inflation, but he can certainly propose ideas, watch the Republicans kill them in Congress, and then campaign against the Republicans. During the pandemic, the government sent everybody a couple of checks. How about Biden asking Senate Majority Leader Chuck Schumer (D-NY) to introduce a bill to send everybody who filed a tax return in 2022 and had an adjusted gross income under $100,000 a $500 inflation-compensation check? People who made $100,000 to $500,000 would get $200. Above that, nothing. IRS has that information in its computers. Maybe some hack could be worked out for people who didn't file at all in 2022 because they didn't make enough money.

Republicans would vote it down as "increasing the deficit." Fine. That vote (and abortion) could become the centerpieces of Biden's campaign. He could say: "I tried to help you but the Republicans killed my plan." In the (very unlikely) event that enough Republicans were on board to pass the bill, he would get the credit, not them. Just trying would be win-win. When voters asked him what he has done for them, he would be able to say: "I tried, but Republicans don't care about you" or talk about the checks if the bill passed. An alternative would be eliminating the federal gas tax until Jan. 1, 2025. Or maybe both. On Monday, we noted Larry Hogan and Gov. Gretchen Whitmer (D-MI) tried stunts like this and they worked. Trump can bluster, but a president can use the power of incumbency to try to do popular things and then blame the other side when they balk. (V)

It's the Savings, Stupid

Inflation and the price of eggs are the talk of the town these days, but there are other ways to measure economic pain. Here is a different one. The chart below shows the percentage of U.S. adults who say they could cover their basic expenses for 6 months from their savings if they lost their income.

Pct of people who could live on savings since 2021

In Jan. 2023, about 20.5% of adults could hack it. Now it is only 16.5%. That is a drop of 19.5% of the January number, a significant dropoff. In other words, millions of people can't make it on what they are earning now due to higher prices and are using up their savings to make ends meet. Biden needs to have something to say to these people. Just saying that "if Republicans win in 2024, what they will do is slash billionaires' taxes and throw you a couple of crumbs" won't work. Many of the hard-pressed people will reply: "I'll take the crumbs, thank you." That's why it is essential that Biden tries to do something concrete now. Success isn't essential. Visibly trying is essential.

According to Jesse Wheeler, the senior economist at Morning Consult, one thing the data suggest is that people's spending habits are not very elastic (as economists use the word). People don't want to downgrade their lifestyle, even when times are tough. They could switch from national brands to store brands at the supermarket, dine out less often, watch TV at home instead of going out to movies, and so on, but these changes are difficult for many people to accept. They'd rather eat up their savings than change their lifestyle. Wheeler is uncertain how long this can last, though. (V)

Liz Cheney's Book: Trump Knew He Lost

In D.C., stuff leaks. CNN managed to get ahold of Liz Cheney's new book a week before its official release. In it, Cheney paints a scathing portrait of the Republican Party, especially leaders who enabled Donald Trump and who were "willing to violate their oath to the Constitution out of political expediency and loyalty to Donald Trump." She calls Trump "the most dangerous man ever to inhabit the Oval Office."

Cheney hits Rep. Kevin McCarthy (R-CA) especially hard. She wrote that Trump told McCarthy that he knew he had lost the election. McCarthy told her: "He knows it's over. He needs to go through all the stages of grief." She will probably not be allowed to repeat that during Trump's trial because it is hearsay. Of course, McCarthy could be subpoenaed and asked directly if it is true, but McCarthy is such a coward, he might prefer perjuring himself to offending Trump.

In the book, Cheney calls out many of her House colleagues as hypocrites. They knew Trump lost, but did his bidding anyway. Specifically, she wrote: "So strong is the lure of power that men and women who had once seemed reasonable and responsible were suddenly willing to violate their oath to the Constitution out of political expediency and loyalty to Donald Trump."

Cheney calls out Rep. Jim Jordan (R-OH) by name. She wrote that Jordan said: "The only thing that matters is winning." She also calls out the now-Speaker Mike Johnson (R-LA), who wrote an amicus brief supporting the idea of throwing out electoral votes of four states Trump lost. When Cheney confronted him, Johnson said: "We just need to do this one last thing for Trump." Cheney also noted that while signing some pieces of paper, Rep. Mark Green (R-TN) muttered: "The things we do for the Orange Jesus."

The book also discloses that on Jan. 4, Cheney was accidentally included in a call with Trump's surrogates. She was alarmed when she heard their plans to get Mike Pence to obstruct or delay counting the electoral votes. Also, in his speech on the Ellipse on Jan. 6, Trump called on the crowd to get rid of the Liz Cheneys of the world. Liz' father, Dick, called her immediately afterwards and warned her. See, he has a heart after all. Who knew? (V)

Pence Spills the Beans to Smith

ABC News has a scoop about what Mike Pence told Special Prosecutor Jack Smith earlier this year. According to ABC, Donald Trump surrounded himself with crank lawyers, espoused "unAmerican" legal theories, and moved to the edge of a constitutional crisis, even though according to Liz Cheney, he knew he had lost the election.

Pence told Smith that in early January 2021, he informed Trump that there was no evidence of election fraud, but Trump kept claiming the election was stolen. If Cheney's report is true, then Trump was simply lying to Pence as he knew he had lost and was just hoping to bully his way to another term. Many of the questions Smith's team asked Pence related to items in Pence's recent book. The investigators had all read the book, but they wanted Pence to repeat the comments under oath, which he happily did.

However, Pence also offered up many previously undisclosed details. For example, for a short while, he had decided simply not to show up on Jan. 6 to preside over the counting of the electoral votes. What would Congress have done then? However, Pence's son, Michael Pence, a Marine, said to him: "Dad, you took the same oath I took. It was an oath to support and defend the Constitution." That convinced Pence not to play hooky.

The level of questioning from Smith's lawyers was so detailed, they quizzed him about a comma in his book. In the book he wrote:

"You know, I don't think I have the authority to change the outcome of the election on Jan. 6."

But he told investigators the comma was not intentional. He meant to write:

"You know I don't think I have the authority to change the outcome of the election on Jan. 6."

The latter (comma-free) version makes it clear that Pence believed that Trump knew Pence could not do what Trump was asking him to do. Pence repeatedly told Trump that having one person decide which votes to count and which to discard was fundamentally "un-American."

When Trump asked Pence what he should do, Pence told him to accept the results, take a bow, travel around the country to thank supporters, and then run again in 2024 if he wanted to. Upon hearing that, Trump just walked away.

There is no doubt much more and Pence is almost certain to be a star witness in the insurrection trial that will start on March 4. He saw Trump up close and can testify to many things no one else knows about. (V)

Biden Campaigns against Boebert in Her Own District

Control of the House is on knife's edge, so every House seat that is in the range R+5 to D+5 will be fought over tooth and nail in 2024. Also a few outside that range. One of those is CO-03, that of Rep. Lauren Boebert (R-CO). It is R+7 but Boebert made a fool of herself so many times that in 2022, it was the closest race in the entire House and her 2022 opponent, Adam Frisch, is running against her again in 2024, only better known and much better funded than last time. Joe Biden knows this and so yesterday he campaigned in Boebert's district. That was no accident. A flight from D.C. to Pueblo, CO, where Biden went, takes 4 hours each way, plus time to and from the airports. It is a substantial amount of time, even though the president doesn't have to stand in line at a TSA checkpoint for an hour.

Biden's nominal purpose there was to visit wind-tower manufacturer CS Wind, which benefited from green-energy subsidies in the Inflation Reduction Act that Biden signed. He was there to tout the 850 new jobs there the law created. He could have gone to some company in Maryland or Virginia that is also creating new jobs as a result of the IRA, but he clearly chose CS Wind because it is in CO-03. It also indicates that one of Biden's pitches next year will be that the IRA will not only fight climate change, but more importantly (for some voters) will create new jobs in an industry with a sunny (and windy) future. Expect more presidential visits to companies that got subsidies from the IRA in the coming year.

Naturally, Frisch was standing next to Biden while he talked about the new jobs at CS Wind, right? Well, no. He was 175 miles away at a water summit talking to agricultural leaders about water management, drought resilience, and other issues of great importance to Colorado farmers. How come? Well, the district is R+7, so Biden is probably not so popular there and the more distance Frisch can put between himself and Biden, the better. Biden understands this, of course, so no hard feelings. He will do what he can to help Frisch, even if it means staying 175 miles away from him.

Also, the local media will be reporting on this "snub" in detail. When they interview Frisch, he is going to talk about how he doesn't care about national politics and is running entirely to improve the lives of the people in CO-03. And maybe he'll even mention that the current representative, Ms. Boebert, seems to spend her time grandstanding and fighting with Rep. Marjorie Taylor Greene (R-GA), rather than fighting for the people of Colorado. This whole "snub" thing could resonate with Republicans who then think: (1) Frisch doesn't like Biden and (2) Frisch would rather talk to Colorado farmers than to the president, so maybe he isn't so bad after all, even if he is a Democrat. We don't know for sure, but we suspect this whole story was carefully choreographed in advance by Frisch and Biden's campaign staff. (V)

Republicans Support Local Control--Except When They Don't

In theory, Republicans believe that power should be located at the lowest possible level, and certainly not with the big bad federal government. Except when they don't like the consequences of this theory. Most big cities are very blue, even in deep red states. For example, most Texas counties are deep red, except for those containing Austin, Dallas, El Paso, Houston, San Antonio, and some poor counties near the Mexican border with large Latino populations. The conflict between blue cities and red states is becoming increasingly bitter, with states overruling cities, stripping them of power, taking over election offices, and otherwise limiting local independence. In other words, Republicans like the idea of local control—except when they disagree with what the locals are doing.

The Local Solutions Support Center, an organization focused on helping cities deal with "abusive state preemption," has logged almost 700 state bills this year designed to limit what cities and counties can do. So much for supporting local control. Thus far, 92 have passed. For example, Gov. Ron DeSantis (R-FL) signed a law empowering the state attorney general to pursue election-related crimes and also requiring cities and counties to suspend local ordinances if someone sues alleging that they are preempted by state law. DeSantis has also removed two local prosecutors, one of whom said he wasn't going to charge people seeking abortions or gender-affirming care.

More clashes are expected soon. Gov.-elect Jeff Landry (R-LA) has promised to confront his state's largest city, New Orleans, on several issues. Among other things, he is going to withhold funding for the city's water infrastructure unless the local DA agrees to prosecute women who are seeking an abortion. So red states are fine with using their power to go after blue cities they have power over, but you can imagine what would happen if Joe Biden were to announce that he is cutting off infrastructure money for Louisiana until it stops prosecuting women for seeking an abortion. The red states would howl to the moon. They think it is fine for one level of government to blackmail lower levels—as long as they are the blackmailers and not the blackmailees.

One area that is especially contentious is election management. Many red state legislatures want to make it as hard as possible to vote (e.g., 9 a.m. to 7 p.m. Election Day only and no absentee ballots). Many blue cities and counties want to have weeks of early in-person voting and an absentee ballot for any eligible voter who requests one. Many big cities have large numbers of minorities, whereas rural counties do not, so there is a racial component as well, with white state legislatures trying to restrict what Black mayors, county executives, and local election officials can do.

Another area of conflict is education, which has always been a local affair in the U.S. Traditionally, the boards of the 17,000 school districts in the U.S. ran the schools in their districts without state or federal interference. But now many states, led by Florida, are banning books and passing laws about what teachers can talk about in class, like Florida's "Don't say gay" law.

But there is more. When the Nashville Metropolitan Council voted against bidding for the 2024 Republican National Convention, the state defunded its convention center, took control of its airport, and cut the council in half. In Missouri, the state passed a law requiring cities to spend 25% of their budgets on the police, even if some cities don't think that is needed. State legislatures have also banned city ordinances relating to tobacco, guns, plastic straws, and other things the state legislators don't want regulated. So much for all the talk about home rule. (V)

Monica Lewinsky Turns Constitutional Scholar

When thinking of constitutional scholars, one might conjure up people like Lawrence Lessig or Laurence Tribe. Probably not Monica Lewinsky. Yes, she's famous, but for things other than her comprehensive knowledge of the Constitution. Nevertheless, she just wrote an op-ed arguing for six new amendments to the Constitution. We suspect that if these were put to a national popular vote, they would probably all pass. Of course, to actually amend the Constitution, they would have to pass Congress and 38 state legislatures, and that is not going to happen for partisan reasons. Nevertheless, they are worth looking at because they make so much sense. If nothing else, her op-ed could start a discussion about bringing the Constitution, which was written in the 18th century by a bunch of slave-owning rich white men, into the 21st century. To say that these men got everything right for the ages is, just maybe, a tiny bit arguable. Here are her six proposed Amendments:

  1. Pardon me, actually no: The pardon power in the Constitution is unrestricted. The founding parents very much understood the concept of Nemo iudex in causa sua (No man shall be his own judge), but the words aren't there. An amendment could explicitly ban self pardons and perhaps say that pardons of members of the president's family have to be confirmed by the Senate.

  2. Security clearances: Presidents sometimes abuse their access to confidential material. How about an amendment requiring the president, vice president, members of Congress, and Supreme Court justices to go through the process of getting a security clearance with the results being made public? If the FBI says that candidate [X] is a security risk, that is something the voters might be interested in knowing before voting for them.

  3. Suspension of the Constitution: In 1863, Abraham Lincoln suspended habeas corpus. Maybe not such a great idea. Even less good is Donald Trump's flirtation with suspending the entire Constitution. Maybe an amendment should make it explicit that no one, not even the president, can ever suspend the Constitution. It could even add that trying to do it is an impeachable offense.

  4. Retirements: Most companies require most employees to retire before 70 or even earlier. Donald Trump is 77. Joe Biden is 81. Sen. Chuck Grassley (R-IA) is 90. Former senator Strom Thurmond celebrated his 100th birthday in the Senate, but probably wasn't even aware of where he was or what he was doing there. Since there are lower limits on age in the Constitution (25 for the House, 30 for the Senate, 35 for the presidency), maybe there should be upper limits as well. Sure, experience is valuable, but there are enough 50- and 60-year-olds with plenty of experience. A mandatory retirement age of 75 for all elected federal and state offices, as well as for the U.S. and state Supreme Courts, might not be a bad idea. It is not as though it would be impossible to find candidates under those conditions.

  5. The Electoral College: The Electoral College might have made some sense when most voters were yeoman farmers who didn't know anything about politics or governance. Then, picking some wise local people (the electors) to vote for president might have been justifiable. Now it is impossible to justify why a Wyoming voter has four times the clout of a California voter. If it is impossible to get the votes to abolish the Electoral College altogether, then Plan B could be to have one elector for each congressional district (and D.C.), since they all have roughly the same population. Then Wyoming would have 1 elector and California would have 52.

  6. I am a woman. Hear me Roe-r: While we're at it, how about finally passing the Equal Rights Amendment, which could be updated to include a section guaranteeing every resident of the U.S. the right to reproductive freedom?

Of course, all of this is just a pipe dream. None of these things could get through Congress, even though in a popular vote, probably all would pass. (V)

Henry Kissinger Is Dead

Undoubtedly, readers are aware by now that former NSA and Secretary of State Henry Kissinger passed away yesterday at the age of 100. If you would like to read an obituary, they are easily had, from outlets including The Washington Post, The New York Times, CNN, NPR, the BBC, the Associated Press and Fox. Unfortunately, Drew Ortiz' write-up for Sports Illustrated is still pending.

We don't see a lot of value in adding yet another standard obituary, so we're working on something a little different. Maybe it will work out well, maybe not, but at very least we want to take time to try to get it right. So, instead of rushing it for today's post, we'll have it tomorrow.

If readers have comments on Kissinger and/or his legacy, we welcome them, and we will probably incorporate some of them into our coverage tomorrow. (Z)


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