July 28: Some Basic Realities For Democrats on Voting Rights
Watching an intra-Democratic argument on voting rights strategy intensify in Washington, I offered some advice to both sides at New York:
There has been an underlying disagreement within the mostly Democratic coalition favoring voting rights that was nicely captured in this New York Times report on Friday:
“A quiet divide between President Biden and the leaders of the voting rights movement burst into the open on Thursday, as 150 organizations urged him to use his political mettle to push for two expansive federal voting rights bills that would combat a Republican wave of balloting restrictions … In private calls with voting rights groups and civil rights leaders, White House officials and close allies of the president have expressed confidence that it is possible to ‘out-organize voter suppression,’ according to multiple people familiar with the conversations.”
Both sides in this argument are partly wrong. Those who expect Joe Biden to force the For the People Act or the John Lewis Voting Rights Act through the Senate via some major revision in the ability to filibuster are probably expecting the impossible. Yes, perhaps if Biden personally and insistently and abrasively lobbied Arizona’s Kyrsten Sinema to abandon her very consistent defense of the filibuster, up to and including encouragement of a primary challenge to her when she is up for reelection in 2024, she might decide her current and very insistent independent-maverick “branding” isn’t going to keep working for her. But Joe Manchin? He would be thrilled to get attacked by a Democratic president or Democratic advocacy groups for insisting that he won’t support voting-rights measures unless at least some Republicans support them. His state is so very red that the threat of a primary challenge to the sole remaining successful West Virginia Democrat is a laugher.
Short of a nuclear attack on West Virginia, it’s hard to identify anything Biden might do to Manchin that wouldn’t run a high risk of backfiring. And he does need Manchin on the reconciliation bills Democrats are using to get around the filibuster to enact Biden’s social and economic agenda. It’s just too bad voting-rights bills don’t qualify for reconciliation.
Yes, it is intensely frustrating that Biden cannot bring himself to come out forthrightly for filibuster reform, but it probably doesn’t matter since it is not happening unless the Democratic Senate Conference gets bigger, making senators like Manchin and Sinema irrelevant on the subject. So at some point voting-rights advocates need to focus on that goal.
At the same time, White House claims that Democrats can “out-organize voter suppression” are partially wrong as well. Yes, restrictive provisions like voter-ID requirements, limits on voting by mail, and even voter-roll purges can be countered and perhaps overcome by intensive efforts to educate and energize the voters Republicans are trying to keep from the polls. But you cannot out-organize a partisan gerrymander, or a law that lets election officials or state legislators overturn the outcome of an election after votes are cast.
Voting-rights advocates will eventually have to play the cards dealt to them by the system as it currently exists. That means refraining from too much anger aimed at Democratic pols who have little choice but to concede defeat on some legislation and concentrate on legislation (i.e., those reconciliation bills with many items vital to the people whose voting rights are also under attack) they can enact with no margin for error in the Senate and little in the House. At the same time, Biden and his staff and Democratic “pragmatists” in Congress should never for a moment be cavalier about the legislative obstacles they face in defending democracy itself. They may have to accept a tactical defeat on voting rights in this Congress. But they should never, ever, give up on making it happen later if not sooner.
Here’s another idea for reversing SCOTUS’ ruling on Citizens United v. FEC;
A diarist named Smintheus posted on unbossed.com a very quick and simply remedy for this power-grab by corporations;
Congress should prohibit any corporation from engaging in this new political spending if it has any non-American shareholders, or owners. Because after all, foreigners have no 1st amendment protections.
This brilliant idea was picked up by PLS who posted the diary “How to hoist the SCOTUS on their own petards!!!” on Daily Kos. This stroke of genius not only undoes SCOTUS’ treasonous decision, it seriously weakens the hold corporations CURRENTLY have over our democracy.
This is AN EXCELLENT way to punish SCOTUS and the Republicans for attempting a coup of our government on behalf of corporations.
Here is the statute upon which the tactic succeeds;
U.S. Code § 441e. Contributions and donations by foreign nationals
(a) Prohibition
It shall be unlawful for—
(1) a foreign national, directly or indirectly, to make—
(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;
(B) a contribution or donation to a committee of a political party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 434 (f)(3) of this title); or
(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.
(b) “Foreign national” defined
As used in this section, the term “foreign national” means—
(1) a foreign principal, as such term is defined by section 611 (b) of title 22, except that the term “foreign national” shall not include any individual who is a citizen of the United States; or
(2) an individual who is not a citizen of the United States or a national of the United States (as defined in section 1101 (a)(22) of title 8) and who is not lawfully admitted for permanent residence, as defined by section 1101 (a)(20) of title 8.
Here is the above mentioned section 434 (f)(3)
3) Electioneering communication
For purposes of this subsection—
(A) In general
(i) The term “electioneering communication” means any broadcast, cable, or satellite communication which—
(I) refers to a clearly identified candidate for Federal office;
(II) is made within—
(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.
(ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the regulation provided herein, then the term “electioneering communication” means any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate. Nothing in this subparagraph shall be construed to affect the interpretation or application of section 100.22(b) of title 11, Code of Federal Regulations.
– end of code description –
Piecing together the most salient parts of the above statute, we have the following;
“It shall be unlawful for a foreign national, directly or indirectly, to make a contribution in connection with a Federal, State, or local election, or expenditure for an electioneering communication. The term “electioneering communication” means any broadcast, cable, or satellite communication which refers to a clearly identified candidate for Federal office, is made within 60 days before a general, special, or 30 days before a primary or preference election.”
The limiting phrase in this law is “which refers to a clearly identified candidate for Federal office.” Because the Citizens United v. FEC ruling refers to non-identified candidate communications, what Congress needs to do is extend this statute to include ANY elections-related communications. An example of why this extension seems very reasonable would be in order to prevent a foreigner from an oil producing country from bombarding U.S. television shows with ads that claim “Global warming is just a hoax; keep buying our oil.”
Smintheus’ solution seems very promising. We should explore it a bit further, and if it proves solid, quickly take action on it.
With their ruling in favor of Citizens United v. FEC, the Conservative members of the Supreme Court have committed treason far more dangerous and egregious than their having stolen the 2000 election for Bush. This time they have gone too far by handing our democracy to corporations. The way to remedy this treason is simple and straightforward.
The first step is for Congress to end or fix the filibuster rule so that Republican and Blue Dog Senators can no longer usurp majority rule in the Senate, and prevent the second step.
The second step is for Congress to create two new Supreme Court seats, increasing the total number of justices from nine to eleven. FDR failed in this in the 1930s because he tried to create SIX new justices, and because he was not facing as great an assault on our democracy as we are now. The American People would support Congress’s appointing these two new justices in order to preserve our democracy.
The third and final step is for someone to challenge the new ruling in the courts and have the suit move its way up to the Supreme Court. I’m not sure if that can happen before the Citizens United v. FEC decision allows corporations to hijack the 2010 election. If so, such a delay is not an acceptable option.
Until Citizens United v. FEC is overturned, Obama and the Democratic Congress have a course of action. According to the Constitution, the President is not bound by Supreme Court decisions. There is a famous instance when the Supreme Court rendered a decision and a president said something to the effect that; “Well, you’ve made your decision. Now try to enforce it.” I think it was FDR, but I’m not sure on that.
SCOTUS’ handing our democracy to corporations with this decision can and will, if we let it stand, defeat any and every major progressive initiative after the 2010 elections. If this decision stands, we risk losing both our Senate and House majorities.
We need to put aside every other initiative right now and concentrate our power on defeating this decision by advocating for Congress to end the filibuster, create two new SCOTUS seats, and then have the new SCOTUS reverse the decision. We need to alert the public about this assault on our democracy so that they will fully back Congress’s decision to end the filibuster in order to create the two new seats.
We cannot do everything at once. If we try to assume a business-as-usual approach and continue to work on many other initiative while also working on this one, we risk failing. That is not an option we can afford.
WE NEED TO TABLE ALL OTHER INITIATIVES UNTIL WE GET THIS JOB DONE.
The vast majority of blog posts on all of the Liberal/Progressive sites for the next several weeks should be about getting this done. We should organize our efforts so that some blogs are focusing on some parts of this, and other blogs are focusing on others. We need to organize and fight like our democracy depended on it, because it does.