Courts Give Opposing Rulings on Mifepristone

Friday was an interesting day on the abortion front, and a vivid demonstration that two judges presented with the same facts and the same law can come to diametrically opposed decisions (presumably based largely on their personal politics).

In Texas, U.S. District Judge Matthew Kacsmaryk decided that mifepristone is not safe and banned it nationally. In Washington State, U.S. District Judge Thomas Rice decided that mifepristone is safe and ordered the FDA to continue allowing it to be prescribed in 17 states (and D.C.). The FDA cannot follow both court orders at the same time. The next step in this kabuki drama is that the U.S. Court of Appeals for the Fifth Circuit will uphold Kacsmaryk's ruling and the U.S. Court of Appeals for the Ninth Circuit will uphold Rice's verdict. When two appeals courts come to contradictory conclusions on an important matter, the U.S. Supreme Court almost always takes the case. The only question here is the timing. It could consider this an emergency and take the case immediately or it could let the process play out in the appeals courts and take it after each one has ruled.

The case is somewhat different than the run-of-the-mill abortion case. Usually some state legislature has banned abortions after [X] weeks. State legislatures probably have the authority to do that, at least after Dobbs. But in this case, there is a legal question of whether judges should be making decisions about medical matters about which they know nothing. The drug approval process is very detailed and involves many doctors, scientists, and drug experts, not to mention the FDA staff and the FDA administrator. Mifepristone has been in use for 23 years with very few complications or unwanted side effects. Can a single judge who never studied biology or medicine tell a whole host of doctors and scientists that he knows drug safety better than they do? And do this despite the drug being out there for almost a quarter of a century with almost no problems? We cannot imagine any judge even attempting to overrule the FDA on a cancer drug or a diabetes drug or any other any drug not closely tied to the culture wars.

It should be noted that the folks who brought the case to Kacsmaryk knew exactly what they were doing. He went to a Christian university (specifically, Abilene Christian University) before going to law school. He later worked for a Christian legal group and submitted an amicus brief to the Supreme Court arguing against contraceptives. He was well known in legal circles as a conservative Christian activist. He was appointed to the bench by Donald Trump. He is the only judge in the Northern District of Texas, so the group that decided to sue there knew in advance they would get him as the judge and they also knew with 99.999% certainty how he would rule. One wonders if he deliberately released his ruling on Good Friday.

Rice also went to a religious college (specifically, Gonzaga in Spokane). It is a Catholic school, so he is probably a man of faith. So the dueling opinions are not due to one judge being deeply religious and the other being an atheist. Rice was an assistant U.S. attorney in Spokane for 25 years before Barack Obama appointed him to the district court.

Rice's ruling was a bit of a surprise, but Kacsmaryk's ruling was long expected, starting on the day the lawsuit was filed. Washington State was so sure Kacsmaryk would ban mifepristone even before the hearings started that it ordered and stockpiled 30,000 doses of mifepristone (a 3-year supply for the state), in advance. Other states may have done something similar, but given the cost ($1,275,000), not every blue state may have funds available for a large purchase.

What happens next on the legal front isn't clear, although the Biden administration immediately filed an appeal to the Fifth Circuit. Some Democrats are claiming Kacsmaryk has no authority over the FDA and Biden should just ignore him. But Biden is afraid that could influence the appeals process in a negative way. He is also worried that openly defying the courts would give a future Republican president a precedent for doing the same thing. On the other hand, he has Rice's simultaneous decision as a cover. If he obeys Kacsmaryk's order, then he is disobeying Rice's.

Some abortion clinics are already switching to surgical abortions or medical abortions using misoprostol, which is less effective and less safe than the two-drug regime of mifepristone followed by misoprostol. Misoprostol has been around forever and is used to treat stomach ulcers and other conditions. Its use is not controversial. It would be ironic if the main effect of Kacsmaryk's ruling were to cause women seeking an abortion to end up using a drug that was less effective and had more complications than the preferred one.

A lot of the media coverage features outrage at Kacsmaryk's decision because it relates to the hot-button issue of abortion. It really should be directed to the fact that apparently a single federal judge who knows nothing about medicine or drug testing gets to overrule the hundreds of doctors, scientists, statisticians, and researchers at the FDA and drug companies who spent years and millions of dollars vetting and approving mifepristone. Who gave him this authority, if anyone? Judicial review isn't a power the Constitution specifically grants to even the Supreme Court, let alone to all 670 district judges. What's next? Can a devout Christian district judge ban Viagra because it encourages sexual activity not related to reproduction? Can a health-conscious district judge ban weight-loss pills because dieting and exercise are better ways to lose weight? Can a Christian Scientist judge ban all medicines because prayer has demonstrably fewer side effects and would save Medicare billions of dollars per year? What about an antivax judge who bans all vaccines nationwide because somebody somewhere had an allergic reaction to one vaccine once? The list goes on and on. The real danger here is that if this stands, every district judge will think that he or she is the Supreme Court and make national rulings. Once she opened the box, Pandora couldn't get it shut again and we may soon be in for a repeat performance. Or many repeat performances.

This is not just our view. HHS Secretary Xavier Becerra said essentially the same thing yesterday on CNN's "State of the Union": "When you turn upside down the entire FDA approval process, you're not talking about just mifepristone, You're talking about every kind of drug. You're talking about our vaccines. You're talking about insulin." Then he added: "If a judge decides to substitute his preference, his personal opinion for that of scientists and medical professionals, what drug isn't subject to some kind of legal challenge?" But even he didn't raise the question of what law grants every one of the 670 district judges the power to ban any medicine he or she doesn't happen to like. What is needed to get the discussion rolling is some national ruling from a district judge that conservatives really, really don't like. For example, some random district judge ruling that the federal, state, and local governments are forbidden from providing any funding for any purpose to any school run by a religious organization because that violate's the Constitution's "establishment" clause. It would even mean college students with Pell grants couldn't use them at religious schools. The reaction to this would come within 50 nanoseconds and start the discussion about whether a single district judge can make national rulings.

Mark Joseph Stern at Slate has an interesting analysis of the two cases from a legal point of view. For example, by law, after a drug is approved, there is a 6-year window in which people can file suits about the decision. Mifepristone was approved 23 years ago. Maybe the judge is not good at math, but if so, he could have appointed a special master to help him decide whether 23 is greater or less than 6. At the start of the case, Kacsmaryk also ruled that doctors who may some day treat patients who were prescribed mifepristone by other doctors have suffered sufficient injury have standing to sue. The ideal person to sue would be a woman who used mifepristone and said it injured her somehow. No such woman is a party to the suit. Much of Kacsmaryk's 67-page ruling was directly copied and pasted from the plaintiff's brief.

When the case makes it to the Supreme Court, which is inevitable, the justices will be in a bind. In the Dobbs decision, they said that the decision to allow or prohibit abortions should be up to the democratic process, meaning Congress and the state legislatures. If they take the case and sustain Kacsmaryk they will in fact be saying that the decision to allow or prohibit it is not up to the democratic process. It is up to one unelected activist judge. Chief Justice John Roberts knows that sustaining Kacsmaryk will completely destroy the authority of the Supreme Court, but even if he joins the three Democratic appointees, that is only four votes. He will have to get one of the other five to join him. It is our guess that Samuel Alito, Clarence Thomas, and Amy Coney Barrett won't join him, so he will have to work hard on Neil Gorsuch and Brett Kavanaugh to get at least one of them. Republicans should be careful what they wish for here. If they thought that Dobbs was a problem in 2022, they ain't seen nothin' yet. Next year could be 10x worse if Kacsmaryk is sustained. (V)

D.C. Appeals Court Upholds Part of Jan. 6 Prosecutions

The two rulings on mifepristone weren't the only big legal rulings Friday. Another one came from the D.C. Court of Appeals. It relates to over 300 criminal cases relating to the Jan. 6 coup attempt. Hundreds of rioters have been charged with obstructing an official proceeding (the counting of the electoral votes). The Court ruled that taking part in a riot that delayed the count by several hours is indeed obstruction of an official proceeding. Consequently, people who took part in the riot can be convicted on that charge. Therefore, hundreds of convictions stand and the defendants will be sentenced unless they appeal to the Supreme Court and it takes the cases. The maximum penalty is 20 years in federal prison.

Judge Florence Pan wrote for the 2-1 majority: "The broad interpretation of the statute—encompassing all forms of obstructive acts—is unambiguous and natural." The ruling is now binding in all D.C. federal courts unless it is subsequently overturned. One issue that the Court did not rule on (because no one asked it to) is whether Donald Trump's actions on Jan. 6, 2021, such as calling on people to march to the Capitol, which led to the riot, constitute an attempt to obstruct an official proceeding. We suspect that Special Counsel Jack Smith is going to read this decision very, very carefully. He will not delegate it to some student intern.

In a concurrence, Judge Justin Walker wrote that obstruction only occurs when the accused intended to obtain an unlawful benefit for himself or someone else. Nevertheless, he agreed that the law was applicable in this case because the unlawful benefit would apply to Donald Trump—awarding him the presidency even though he lost the election. Judge Greg Katsas disagreed with the other two because some of the rioters did not mutilate official documents. Both of the men were more focused on whether the rioters had "corrupt intent" than Pan was.

We hate to need to give more information about the judges, but given the first item today, it is clear that it matters a lot which judge gets which case. Florence Yu Pan is the daughter of immigrants from Taiwan. She has a J.D. from the Stanford Law School and was appointed by Joe Biden to fill the District Court vacancy created by the elevation of Ketanji Brown Jackson to the D.C. Appeals Court. When Jackson was elevated again, to the Supreme Court, Pan got Jackson's old job on the Appeals Court. She is the first Taiwanese American to serve on the D.C. Court of Appeals. Justin Walker is from a powerful Kentucky family. He was active in Republican politics from a young age. As a college student, he was an intern to Sen. Mitch McConnell (R-KY). He got his J.D. from the Harvard Law School. During the Brett Kavanaugh confirmation hearings, he gave 119 interviews and some paid speeches defending Kavanaugh. In 2019, Donald Trump appointed him to the D.C. District Court and a year later elevated him to the D.C. Appeals Court. Trump is not going to like his ruling. Greg Katsas is the son of Greek immigrants. He went to Princeton and then Harvard Law school, where he got his J.D. cum laude. He never was a district judge but Donald Trump appointed him to the D.C. Court of Appeals in 2017 anyway. He was confirmed by the Senate on a contentious 50-48 vote.

Of course, in future cases relating to the Jan. 6 rioters, the facts play a key role. How much did one have to do to obstruct an official proceeding? Would giving someone a baseball bat later used to break into the Capitol count? Would driving a rioter to the Capitol and then going home meet the test? Prosecutors will have to look at this case by case, but the general principle that trying to stop the electoral vote count is a crime is no longer in doubt. (V)

Montana Senate Election Is Getting Very Nasty

Only five states have a split Senate delegation: Ohio, Maine, Montana, West Virginia, and Wisconsin (we count the three independents as Democrats, as that is the party with whom they caucus). All 45 of the other states are either all blue or all red in the Senate. When senators from opposing parties represent the same state, they usually try to at least refrain from openly attacking each other. When they can work together on something nonpartisan (like getting pork for their state), they usually try to. Most people don't like to see their senators in open warfare with one another, so the senators generally try to avoid it.

That will be impossible in Montana this year and next. Sen. Jon Tester (D-MT) is up for reelection. Sen. Steve Daines (R-MT) is not. However, Daines is chairman of the NRSC. His job will be to defeat all vulnerable Democratic senators up in 2024—for example, his colleague Tester. When one senator's job is to make sure his colleague loses his job, friendly rivalry turns very nasty very fast. This has already happened in Montana.

When a reporter asked Tester if Daines took the NRSC job specifically to defeat him, Tester said: "That's your perspective. And I don't necessarily think that perspective is wrong." Montana has a lot of cattle, but the biggest beef in the state is now between the two senators.

The two men are very different. Tester is a down-to-earth dirt farmer with prairie populist views on most things. His campaign website features several photos of him on his farm. Daines is a buttoned-up conservative and strong supporter of Donald Trump, who Tester detests. The front page of Daines' 2020 campaign website features a big photo of... Donald Trump addressing a crowd. Here are the photos on the top of the front pages of their respective campaign Websites. The former has Tester smiling in front of a pickup truck, the latter has Daines standing behind Donald Trump at a rally.

The race is about to get worse, even though the Republicans don't have a candidate yet. The Republican-controlled state legislature wants to change the election rules specifically to defeat Tester. How do we know that? Well, because the proposed new rules will apply only to the 2024 Senate race and no other races. Not to gubernatorial elections, not elections for attorney general or other statewide offices, and not to House elections or state legislature elections. Just to Tester's election. The Republicans aren't shy about it at all.

Here's the deal. Currently, Montana elections are first-past-the-post. The candidate who gets the most votes wins. That's it. It isn't necessary to get 50% or more, just more than all the other candidates. There are no runoffs in Montana. So far, so good, right? Well, Montana has a relatively strong Libertarian bent and the Libertarian Party does moderately well there. Here are the results of Tester's three Senate elections.

Year	Tester	Republican	Libertarian
2006	49.16%	38.29%	2.55%
2012	47.58%	44.86%	6.56%
2018	50.33%	46.67%	2.88%

In the first two, the Libertarian candidate got just enough votes to deprive Tester of a majority. In 2018, he got a majority, but barely. So the Republican legislators put on their thinking caps and tried to figure out a way to force Libertarian voters to vote for the Republican. It wasn't hard. They just copied the top-two systems used in California and Washington. So in the bill, which has already cleared the state Senate, the partisan primaries would be replaced by an all-party primary with the top two finishers advancing to the general election. The top two would virtually certainly be the Democrat and the Republican. Since the Libertarian Party candidate would not be on the November ballot, Libertarian voters would more-or-less be forced to hold their noses and vote for the Republican, thus defeating Tester. Brilliant, no?

However, the Republicans realized that if they introduced this new system for all state elections, the Libertarians would be extremely angry and potentially take it out on the Republicans. Libertarians generally agree with the Democrats on abortion, same-sex marriage, and many culture-war issues (but not on economic issues). They say these are none of the government's business. So it is not impossible for a Libertarian to vote for a Democrat. They do have some common interests. To avoid really infuriating the Libertarians, the Republicans are saying: "It's just for this one election. Then you can go back to voting for the LP candidate."

Will this stunt work? We don't know, but we do know that if the system is changed, Tester will put a lot of emphasis on issues like abortion and LGBTQ rights where Libertarians agree with the Democrats and disagree with the Republicans. He will say: "The decision to have an abortion is between a woman and her doctor. Not between a woman and her congressman." Most Libertarians agree with this. They tend to see government as the problem, not the solution. The whole stunt could backfire spectacularly. Although the Republicans have already lost three Senate elections to Tester, so it's not like they can do worse than they already have. Well, unless Libertarians and/or civic-minded Republicans vote Democratic in other races just to reach the Republicans a lesson.

This is the modern Republican Party in action. If you can't win elections under the current rules, change the rules so you can. Sometimes it is this kind of stuff (which they don't really believe in or they would have made the change permanent and for all offices). Sometimes it is voter suppression. In the 21st century, it is rarely "support policies the voters want." (V)

Clarence Thomas Responds

Associate Justice Clarence Thomas almost never asks questions during oral hearings. His silence is legendary. He believes that the opposing lawyers should make their cases in their respective briefs and that oral hearings aren't even needed. But now that it has come out that he has happily accepted vacation travel worth half a million dollars from a wealthy Republican megadonor, Harlan Crow, he's kind of in the hot seat. Especially since he never reported it. So, the Justice decided to break his normal silence and comment on the matter. He said that Crow and his wife are "among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them." He also said that he sought guidance from other judges about whether personal hospitality from friends who did not have business before the Court was reportable and they told him it was not.

In fairness to Thomas, up until last month the rules for judges were fairly vague about what was reportable and what was not. Last month they were tightened and only hospitality at a friend's home can be omitted from reports about gifts. Still, getting so much valuable travel from a Republican megadonor ought to have been a signal to report it, just to be safe. Especially since Thomas did tend to report these benefits until the Los Angeles Times did a story about the perks Thomas was accepting. That was 18 years ago; thereafter he virtually never mentioned anything on his disclosures. A skeptic might just conclude that his policy on disclosures was not dictated by advice from colleagues but by the desire to keep the press from taking notice of the gifts.

Sen. Sheldon Whitehouse (D-RI), who chairs the Senate subcommittee that oversees the federal courts, was furious when he learned about Thomas' free travel. Whitehouse said: "This Supreme Court has lost its ethical compass. It's no wonder that the American people are losing faith in the idea that they can get a fair shake before the nation's highest court when they see a Supreme Court justice openly flouting basic disclosure rules in order to pal around with billionaires in secret." The chairman of the full Judiciary Committee, Sen. Dick Durbin (D-IL), wasn't any kinder. Durbin said: "This behavior is simply inconsistent with the ethical standards the American people expect of any public servant, let alone a Justice on the Supreme Court." Whitehouse and Durbin are both planning to introduce legislation to create new ethical standards for the judiciary. Sen. Chris Van Hollen (D-MD), who chairs the subcommittee that oversees funding for the federal courts, also wasn't a happy camper. He said: "It is unacceptable that the Supreme Court has exempted itself from the accountability that applies to all other members of our federal courts, and I believe Congress should act to remedy this problem." No doubt one or more bills will be introduced, but passing the Senate will be a problem because Republican senators will see them as a slap in the face to Thomas. Getting them through the House will be even harder.

Some Democrats want to go further than creating mandatory codes of ethics. Rep. Alexandria Ocasio-Cortez (D-NY) has called for Thomas to be impeached. She said that if other members of Congress don't introduce articles of impeachment, she will. She also noted that if Thomas has been friends with Crow for 25 years, then that friendship began after Thomas was put on the Court, which was 30 years ago. That is already a red flag. She also wants to know which judges Thomas consulted with who told him taking favors from billionaires in secret was fine.

This is not Thomas' first brush with controversy. His wife, Ginni Thomas, was active in the "Stop the steal" movement and the other activities related to Donald Trump's attempt to steal the 2020 election. She was in active contact with John Eastman, the lawyer who came up with the fake electors scheme. The Jan. 6 panel wanted the e-mails and text messages between Ginni Thomas and Eastman and the case made it to the Supreme Court. Not only did Thomas refuse to recuse himself from a case involving his wife, but he voted against giving the panel the documents. The other eight justices voted to give the panel what it wanted. If even Samuel Alito thought that the panel had a right to get the documents, did Thomas have some reason other than the possible implication of his wife in a crime? (V)

How to Make Trump Go Away

Frank Luntz is a Republican pollster and strategist who is not a big fan of Donald Trump. He recently held dozens of focus groups with Trump supporters to find out what makes them tick and why they love their hero so much. He also tried to figure out how some other Republican could peel some of them away from Trump. He learned some interesting things.

First of all, attacking Trump DOES. NOT. WORK. Sens. Ted Cruz (R-TX) and Marco Rubio (R-FL) tried that in 2016. It didn't work then and it won't work now. Forget it. Very briefly, what a Trump opponent needs to do is give the Trump voters the impression that while Trump cared about them in 2016, now all he cares about is himself. The new candidate has to show that he has listened to the base and is focused on what they want, not what he personally wants. That's the key. Here are some more conclusions from the many focus groups:

• Humility: Be humble. You can't win every Trump voter. You can't even win half. But you might be able to win a third, with the right message. The message has to be: "I will carry out Trump's (and your) agenda, but with a commitment to decency, civility, and a respect for everyone's personal responsibility."
  
  
• He changed: Trump started out working for you, but now Mar-a-Lago is Grand Central Terminal for politicians, political hacks, lobbyists, and the out-of-touch elites you despise so much. He changed and forgot you. He hated the establishment but he became the establishment. I know what you want and that will guide everything I do. I won't forsake you, I promise.
  
  
• Endorsements: Having endorsements from members of Congress means nothing to the average Trump voter. They are the enemy. Endorsements from ordinary farmers, small business owners, and veterans mean more. Make ads with them, but make sure they are authentic. Have them endlessly repeat: "I voted for Trump twice. I didn't leave him. He left me."
  
  
• Compliment his actions: Spare no effort to compliment what Trump accomplished but go after his comments and crude behavior. Say it is fine to bully China, but it is not fine to bully people at home. Say you will carry out his agenda, but with respect and decency for all.
  
  
• The grandchildren: Trump voters are old. Very old. They have grandchildren. Ask: "Is Trump a role model for your grandchildren? Is this what you want them to become?" Say that you will try to achieve his goals while being a decent human being your grandchildren can admire and respect.
  
  
• Hypocrisy: Trump's supporters are very good at detecting hypocrisy and don't like it one bit. During the 2016 campaign, Trump criticized Barack Obama for playing a few rounds of golf. Then as president, Trump played 300 rounds of golf at his own clubs. That cost the taxpayers $150 million for security. Secret Service agents had to stay at Trump properties overnight to protect him—and Trump charged the government the full room rate with no discount. Harp on that on things like: "Trump ripped you off." It will be deadly.
  
  
• Independents: There aren't enough Republicans in the country to win a presidential election. You need to win over millions of independents. Trump alienated independents so much that they voted for Democrats in 2018, 2020, and 2022. Think carefully about how you are going to win them. If all you do is throw pound after pound of red meat at the base, you will lose. Talk about smaller government and lower taxes. Talk about giving the state governments more power. Conservative-minded independents will respond to this.
  
  
• The echo chamber: You need to get some of the right-wing media heavyweights on your side. Tucker Carlson would be great, but failing that, at least Mark Levin, Dennis Prager, Ben Shapiro and Newt Gingrich. The Dominion lawsuit showed that everyone at Fox hates Trump and thinks he is a fool. That's probably true at other right-wing media outlets, too. But you need to get at least some of them to say that in public, not just in private e-mails.
  

Among current challengers, none of them are even coming close to doing any of these things. No one has come out and said: "Trump had good ideas, but he has forgotten his supporters and now thinks only about himself. And he acts like a buffoon. I will carry out your agenda but I won't embarrass you while doing so." (V)

The Loonies Are Fighting the Loomies

Rep. Marjorie Taylor Greene is... well, if you have been on this site for a while, you know who she is and we don't have to explain. But you might not know who Laura Loomer is. She is a far-right anti-Muslim activist, white nationalist, and racist. She celebrated the deaths of migrants trying to cross the Mediterranean. She's not an all-purpose bigot because she is Jewish and not antisemitic. She has been banned from multiple social media platforms for her incendiary postings, as well as being banned from payment processors, ride-hailing apps, and food-delivery apps for various reasons.

She ran for Congress in FL-21 in 2020, won the primary, but lost the general election despite working with Roger Stone. Mar-a-Lago is in FL-21 and she is immensely proud that Donald Trump literally voted for her. In 2022, she ran in FL-22 and got 44% of the vote in the primary against incumbent Rep. Daniel Webster (R-FL). After Elon Musk took over Twitter, she was welcomed back and has been saying things like: "Ron and Casey DeSantis are social climbers who will NEVER be Donald and Melania Trump." She also attacked Casey DeSantis, a breast cancer survivor, for playing the "cancer survivor card." Since Loomer is only 29, she has many more years of notoriety ahead of her.

Given this resume, Donald Trump naturally wanted to hire her for his campaign. She could be the liason to much of the party. But get this: Greene has warned Trump not to hire Loomer because she is a "documented liar." That's right, she is too crazy for Greene. That is not an easy place to get to. Especially if you're not a Chicago Bears season-ticket holder. She told Trump that Loomer loves Nick Fuentes, which is probably a lie since Fuentes is very antisemitic and Loomer is not. Besides, in Trump's eyes, that is not a disqualification, as he likes Fuentes.

When this story went public, Loomer responded by calling Greene a "snake" and a "traitor." She also said that Republicans should not tear each other apart because it is Holy Week and Passover. On Friday, it can apparently start again.

According to reports, Greene has Trump's ear and he has abandoned his plans to hire Loomer. When she got word of this, Loomer blamed her not being hired on RINOs and Democrats and said she was the victim of a hit job. She continued to swear her undying loyalty to Trump, though.

Note that this is a very predictable development when it comes to extremist movements, both left and right. When they have a clear goal (e.g., overthrow the tsar, exterminate non-Aryans, impose a theocracy on Iran, elect Donald Trump), they can usually get along. But eventually, they start to bicker over what the true purpose of the movement is, and they start accusing one another of not being "true" believers. The Trumpublican faction appears to be in the early stages of this, but you should expect to see more of this sort of finger-pointing. (V)

The Democrats' Hardball Tactics on the Debt Limit Seem to Be Working

Speaker Kevin McCarthy (R-CA) has threatened the U.S. and world economies with a deep depression by demanding massive budget cuts as the price for raising the debt limit. The limit is likely to be reached sometime in June (actually, it's already been reached, but the Department of the Treasury is keeping the government liquid with smoke and mirrors; that's what will stop working in June, thus making the debt limit "real"). Joe Biden has responded to McCarthy by asking him to produce a budget that he can get 218 votes for. Only then would the President be willing to discuss that budget with McCarthy. The problem, as Biden well knows and McCarthy is discovering, is that it will be virtually impossible to put together a budget that can get 218 Republican votes because his caucus is deeply fractured. Biden is refusing to budge on this.

Democrats are backing Biden. One top House Democrats said: "Republicans are in a hole and digging. So why take away their shovels?"

The split within the Republican ranks is becoming more evident. McCarthy has expressed distrust of the #2 House Republican, Majority Leader Steve Scalise (R-LA). He is also openly fuming with House Budget Committee Chairman Jodey Arrington (R-TX) because Arrington wants a timeline for the process different from what McCarthy wants.

Democrats support Biden's strategy because it forces Republicans to make tough choices about what to cut. Donald Trump has warned Republicans not to touch Social Security or Medicare. No Republican wants to touch defense spending. With those three huge items off the table, draconian cuts would be needed to everything else to eliminate the deficit, which the Republicans say they want. The problem is that many of the programs that would have to be eliminated are immensely popular with the voters and some members are scared to have to vote to kill them. Just one small example is food stamps. Rep. Marc Molinaro (R-NY) likes to tell people how he grew up with a single mom and how she relied on food stamps to feed him. He said: "That is a red line for me. We're not going to be touching or diminishing services or support for single moms." Some of the Republicans in districts Biden won are also against touching food stamps. There aren't 218 votes for cutting food stamps.

Well, what about cutting NASA then? Besides NASA being popular with the public, NASA is important for the economy of Florida. Are the 20 Republican representatives from Florida willing to gut it? We think not. What about farm subsidies? Nope, too many House members come from farming states. How about veterans' hospitals? No way. Waste and fraud? Yes! Republicans want to eliminate that. Unfortunately in the giant Excel spreadsheet that contains the budget, there is no line "waste and fraud" to cut. Talking about cutting the budget in the abstract is easy. Putting together an actual proposed budget that can get 2018 Republican votes will be close to impossible. Biden is counting on McCarthy being unable to put together an alternative budget. When that effort has clearly failed, Biden is going to tell McCarthy: "I gave you the chance to put together a budget we could discuss. Now where is it?"

Meanwhile, in the background, the Democrats are musing about a whole different strategy if talks come to a standstill. They want to force a vote on a clean bill to debt ceiling with nothing else in the bill. McCarthy does not want that bill to come out of committee and come to a vote. However, the House rules have a procedure known as a discharge petition that forces a bill out of committee and onto the floor for a vote of the full House. A discharge petition requires 218 signatures, so the Democrats would have to get five Republicans to vote with them. Can they find five? We don't know, but we do know that 18 House Republicans are in districts that Biden won in 2020. They don't want to be responsible for crashing the U.S. economy because they know who will get the blame.

The process of executing a discharge petition is slow, difficult, and painful. This is intentional because it is a mechanism for the minority, with the help of a few dissenters in the majority, to overturn the will of the speaker. It is not used often, but Democrats are starting the process as a backstop just in case McCarthy is unable to produce a budget and still refuses to budge. It is unlikely to be used, but if the choice is between a discharge petition and the U.S. government defaulting, it might become a viable option in the end. (V)

Why Are Swing Seats in the House Disappearing?

Charlie Cook's PVI (Partisan Voting Index) is widely used to compare House districts to one another and to see which ones are deep blue, deep red, or swingy. Cook regards districts from D+5 to R+5 to be swing districts, since depending on the candidates, either party could potentially win the seat. Back in 1999, there were 164 such swing districts. Now there are 82, exactly half as many. The question is: What happened? David Wasserman has an interesting article analyzing the disappearance of swing seats.

Wasserman starts out by noting that in 1997, there were 26 Democrats in red districts of R+3 or more and there were 14 Republicans in districts D+3 or more. That is another way of saying there were a lot of split tickets, because a Democrat in an R+3 district won even though his or her district voted Republican for president. Also vice-versa. Now there are just five Democrats in R+3 or redder districts and just four Republicans in D+3 or bluer districts. "Hyperswing" districts (D+3 to R+3) have declined from 107 in 1999 to 45 now.

Cook has computed the PVIs for 13 cycles now, so there is a lot of data to be explored. The big question is whether the disappearance of swing districts is due to gerrymandering or to hardening of partisan attitudes. Some districts give a big clue. For example, KY-05, a rural district in eastern Kentucky, has pretty much the same shape now as in 1997. But then it was R+2. Now it is R+32. That is a 30-point shift that can't be attributed to gerrymandering. It is largely the same batch of voters or their children. They simply have become massively more conservative in the past 25 years.

A look at other swing districts that have stopped swinging has shown that 58% ceased to be swing districts without any serious boundary changes. The people there simply became more liberal or more conservative. People moved in, people moved out, or opinions hardened. In the other 42% of the districts, it was changes to the boundaries that pushed them into more partisan territory. In some cases that was due to explicit gerrymandering, but sometimes even when a nonpartisan commission draws the maps, some districts will simply become more partisan because the goal is to divide the entire state up fairly, not to make every district 50-50. That would also have a gerrymandering-like effect and result in weird districts.

Also interesting is that in the nine states where independent commissions draw the maps (Arizona, Colorado, California, Hawaii, Idaho, Michigan, Montana, New Jersey and Washington), the number of swing districts dropped by 39% between 1997 and 2023. This is simply due to people becoming more partisan and not splitting their tickets any more. And across the 19 Republican-controlled districts, swing seats fell by 70%, from 56 to 17, which is consistent with the general observation that Republicans have swung rightward more sharply than Democrats have swung leftward.

So while, gerrymandering certainly has played a role in the loss of swing districts, it is not the only factor out there. And one conclusion is that if one sees swing districts as valuable, more states should opt for having independent commissions draw the maps. Of course, partisans who want to squeeze out every seat, both in red and blue states, oppose that. This is why many of the independent commissions were established by the voters in ballot initiatives. (V)

Welcome to the Future--in Tennessee

As the country gets more and more partisan and swing states disappear, blue states will become bluer and red states will become redder. That means it will become more and more common for state legislative chambers to have supermajorities of two-thirds or more. That's kind of the magic number number because it usually takes a two-thirds majority to override an executive veto, a two-thirds majority to expel a member, and a two-thirds majority to convict anyone in an impeachment trial. In Tennessee, we just saw that a two-thirds majority of state House Republicans could expel two young Black members who protested the lack of action on the part of the legislature after a school shooting occurred in Nashville. Although no one has said the quiet part out loud there (yet), the real reason is "we did it because we can." It is not due (entirely) to racism, because the Tennessee lawmakers also tried to expel a white woman. They just came up one vote short on her. In an interesting op-ed, Jeff Greenfield addresses this new world.

Expelling a member used to be extremely rare and only done in extreme circumstances. Until last week, the most recent member of the Tennessee legislature expelled was state Rep. Jeremy Durham (R), who was accused of sexually harassing women. The state AG investigated this and found 22 cases where he had done this, including a 20-year old woman he plied with a cooler of beer. After the report came out and Durham refused to resign, he was expelled. The next most recent expulsion from the Tennessee legislature was 36 years earlier, when state Rep. Robert Fisher (R) was expelled for soliciting a $1,000 bribe from Carter County Sheriff George Papantonioys to kill a bill the sheriff opposed. The third most recent expulsion in Tennessee was 124 years before that. They used to be very rare and done only when the expellee had engaged in deeply problematic behavior. Demanding action to prevent children in the state from being murdered is not deeply problematic behavior. In the absence of a supermajority, the two lawmakers who were expelled would simply have gotten a reprimand for being disorderly.

Next door in North Carolina, supermajorities in the state legislature greatly reduced the power of the state executive branch once Democrats won those positions (particularly the governorship). If Republicans win them in the future, no doubt the powers will be restored.

In Wisconsin, the situation is worse. Even though Wisconsin is probably the most evenly split state in the country, Republicans have supermajorities in both chambers due to their intense gerrymandering. This means they can pass any bill they want to and then override the veto from the governor, effectively undoing the fact that Wisconsinites choose a Democrat as governor. Obviously they can also expel any Democrat they don't like from either chamber. If they are clever, they could begin with members from swing districts they could win in the resulting special elections.

Even more ominous, state Sen. Dan Knodl (R) has said he would "certainly consider" impeaching Janet Protasiewicz, although he said this before she was elected to the Supreme Court. If she were to rule that abortion violates the state Constitution, the state House could impeach her for conspiring to murder unborn babies. And if she were to rule that the state legislative districts were unconstitutional, they could impeach her for, because, well, "We can." That would undoubtedly be followed by a new law stripping the state Supreme Court of the power to judge state maps. The law would be vetoed and then the veto overridden.

Would the legislature dare to this? Well, we got a preview in 2018. After Wisconsin voters chose Democrats for governor and attorney general, the legislature and the lame-duck governor passed a new law greatly reducing the power of both offices—because "We can."

Greenfield concludes by saying that the most important elections of the 21st century occurred in 2010, when Republicans flipped 20 legislative chambers and set us on the current course. This happened in no small part because Barack Obama didn't put any effort into retaining state legislative chambers, even though he had been a state senator himself. State legislatures are important. Surprise. Who knew? (V)

Election Fraud Is Real

Just maybe not in the way you were thinking. It is very rare for people who are not eligible to vote to cast ballots. And even some of that fraud is accidental, for example, green card holders or former felons thinking they were allowed to vote and then following through.

But there is another kind of election fraud that is real. That relates to signatures on petitions to get candidates or initiatives on the ballot. Candidates often need a certain number of signatures to get on primary ballots and all voter-initiated ballot measures need signatures to make the ballot. In some cases, especially for hot-button culture-war ballot initiatives like abortion, it is easy to find enough volunteers to gather signatures. But in other cases, the candidate or group sponsoring the measure usually hires a signature-gathering company to do the work. In fact, there is a whole industry of such companies out there. These signature petitions is where the fraud occurs.

For example, in 2022 in Michigan, five candidates who wanted to get on the Republican primary ballot were disqualified due to invalid signatures (i.e., not enough valid signatures). Election officials found evidence of "round tabling," in which a bunch of canvassers sat around a round table and passed petitions from one person to another so consecutive lines would be done in different handwriting and different pens. Officials estimate that at least 68,000 invalid signatures appeared on the nominating petitions.

A lot of the problem is economics. Back when canvassers were paid $2 for a signature, fraud didn't pay enough to make it worthwhile. Now signatures cost upwards of $20-$30 each and fraud is far more profitable, so there is a lot more of it. Prices have gone up because companies can't find people willing to work for $2 per signature. The work consists of standing outside a shopping center, movie theater, sports arena, etc. and trying to get people to sign the petition. Many are not eligible (e.g., in many states only registered Republicans can sign a petition to put a Republican on the primary ballot). The pandemic has made people unwilling to talk to strangers on the street and low unemployment means fewer people are forced into canvassing because it is the only work they can find. Also people are suspicious of signing things they don't understand these days, so it can take quite a while to get a single valid signature. That has driven the price up and led to fraud.

One way to reduce fraud is to pay canvassers per hour rather than per signature. But that means canvassers can stay home and play video games and file for payment. Fisherman are generally paid for the number of fish they catch, not the number of hours they spent fishing.

Some secretaries of state want to crack down on "bad actors," companies that wilfully and intentionally put bogus signatures on petitions. Colorado Secretary of State Jena Griswold (D) wants to change the law about holding companies responsible from a standard that they are guilty only if they knowingly submitted false signatures to a standard where mere negligence is enough for a conviction. She also wants to increase penalties for fraud. Finally, she wants to require canvassers to take a required course run by her office. One observation that election officials have made is that when the canvasser is just doing the work for the money, there is actually less fraud that when the canvasser is passionately interested in having the candidate or initiative make the ballot. That's where the big-time fraud occurs. (V)

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