While mulling some recent material from The Bulwark, I thought I’d explain something to the converted “Never Trumpers” the outlet represents, and did so at New York:

For a while now I’ve had a guilty-pleasure reading habit: The Bulwark, that semi-official outlet of Never Trumpers who view themselves as having definitively broken with the GOP thanks to their former party’s thralldom to Donald J. Trump. I share its contributors’ belief that they (the tribe usefully described by Miller as Red Dog Democrats) represent not just a self-promoting claque of elite scribblers but a real if marginal faction of the Democratic Party, having burned a lot of bridges on their way out of the GOP. Their views appear to parallel those of a significant number of suburban Republicans and independents who voted Democratic in 2018 and 2020. And given the very close balance between voters of the two parties, as reflected most recently in 2020, Democrats really can’t afford to contemptuously reject any potential adherents, however alien or even repugnant they might find their backgrounds.

So it’s understandable when Bulwark co-founder Charlie Sykes expresses frustration that Democrats refuse to consider their pleas for policy concessions on grounds of holding old grudges:

“The spending. The wokeness. The repeal of the Hyde Amendment. I could go on …

“These are difficult times for folks on the center-right, who’ve tried to join Democrats in a loose alliance to protect the Republic from Trumpism …

“Litmus tests are applied: it’s not enough to be pro-democracy, NTers are also expected to embrace the elements of the progressive agenda — from free community college, to abortion, rent moratoriums, police funding, transgenderism, CRT, social spending, and the candidacy of Greta Thunberg for sainthood.”

Sykes fears it’s all very personal, and warns, “If you cancel moderates/conservatives for their past sins, you don’t have a coalition.”

Here’s the thing, though: It’s not really about the Red Dogs. Yes, I’m sure it’s been tough for them to watch Democrats largely come together around a legislative program that’s significantly more progressive than the one advanced by the Obama administration. But Democrats have been coalescing around the basics of the Build Back Better agenda for some time now. That the famously moderate Joe Biden now embraces it is a sign of how the party has slowly evolved, not some sort of betrayal or surrender to the left. And anyone who paid close attention to the 2020 presidential primaries should have understood that there is less distance between Joe Biden and Bernie Sanders than between Joe Biden and the Joe Biden of the 1990s.

Part of what has happened is simply a resolution of internal conflicts among Democrats that left them defensive and at times incoherent. A classic example is one that Sykes mentioned: abortion policy. For years, Democrats claimed to value reproductive rights even as they accepted significant limitations on them: e.g., the Hyde Amendment, which made abortion services, unlike any other medical services, ineligible for any sort of federal support. That amendment, along with acceptance of some largely symbolic restrictions on rare late-term abortions, and the whole “safe, legal, and rare” messaging introduced by Bill Clinton, represented concessions to a significant bloc of Democratic voters and Democratic pols who did not recognize reproductive rights at all.

That has changed over time. Anti-abortion Democratic politicians are a rare and shrinking breed, and there are now significantly fewer anti-abortion Democratic voters than there are pro-choice Republicans. Most Democrats, including Joe Biden, have made the leap into a more coherent and unified position. They aren’t going to turn back the clock to satisfy ex-Republicans, but they aren’t insisting on a “litmus test” just to annoy or exclude them, either. The same could be said for other policy tenets once beloved by a significant number of Democrats — from fiscal hawkishness to armed interventionism to an openness to “entitlement reform” — that remain attractive to the newest proto-Democrats. As for the idea that Democrats are some sort of rigid ideological cult: Come on, seriously? Look at what’s going on with the attempted enactment of the Build Back Better reconciliation bill. If this is an intolerant and exclusive political party, I’d hate to see a loosey-goosey one try to function. It may just be that the issues Red Dogs fret about may lie outside the still relatively loose bounds of party unity.

This doesn’t mean Red Dogs should despair, but it may mean another painful reevaluation of priorities, recognizing that most have already had to sacrifice a lot of old allegiances and even the habitual language used to make sense of the political world. In many respects, the Never Trumpers resemble their spiritual (and in some cases biological) predecessors, the neo-conservatives. These were people who broke with the Democratic Party out of a conviction that Democratic views on national security made continued party loyalty impossible. But most of them retained many views that horrified their new Republican allies until they accepted the inevitable role of a factional minority and grew to accommodate or even share the policy positions and ideological language of the GOP, which was increasingly dominated by conservatives with their own ideological-consistency demands.

Most Red Dogs have no illusions about the party they’ve left and understand their constituencies are too small to form a third force or demand concessions from a position of strength. Most, I suppose, will get used to the strange and sometimes lurid landscape of the Donkey Party. Others will embrace the posture of the gadfly, the people of no party or coalition. But it’s really not personal. It’s just politics.

While listening to the blame game about why Democrats are struggling to enact Joe Biden’s agenda  and put themselves in better shape for the midterms, I made an unconventional argument at New York:

Between the struggle in Congress to get Joe Biden’s agenda enacted; the president’s own sagging job-approval ratings; the persistence of Donald Trump; and a bad moon rising over Donkey Party prospects in the 2022 midterms and maybe even some 2021 elections; the search for scapegoats is understandable if not terribly fair. 

But the underlying problem is a 2020 election that fell short of expectations, and fell even shorter of what the party needed to govern effectively. Initial relief over finally ejecting Donald Trump from the White House and excitement over winning control of the Senate should not obscure the fact that Democrats emerged from the last election with the stage set for their present troubles.

Consider how they underperformed in every significant category:

The 2020 presidential misfire

A lot of the pre-election chatter revolved around the question of whether Biden would win by a landslide and earn a clear policy mandate, or would instead win by a more modest margin. (And of course, many Democrats feared that Trump might win legitimately, despite Biden’s polling lead, or make good on hints that he would try to steal the election.) Ultimately, a mere 44,000 votes in Arizona, Georgia, and Wisconsin kept Trump from tying Biden in the Electoral College. Yes, Biden ultimately defeated Trump by a 4.4 percent national popular-vote margin, nearly as big as Barack Obama’s margin over Mitt Romney in 2012. But the final polling averages at FiveThirtyEight projected an 8.4 percent Biden win, with the Democrat likely to carry Florida, North Carolina, and the 2nd congressional district of Maine along with the jurisdictions he ultimately won.

In the run-up to the election, I was one of many analysts who thought that perhaps a Biden win in Florida on November 3 might settle it all early enough to avoid a contested election, even if Trump was as unscrupulous as we expected:

“It’s a different matter, of course, if Florida is called for Trump or the state is just too close to call as the morning after Election Night dawns. There are definitely some Biden paths to victory without Florida being in his column, but they may not be entirely apparent in early returns if Trump is leading in most of the battleground states. So Democrats would be well advised to kick out the jams in the land of Mickey Mouse and the NBA bubble.”

Unfortunately, they didn’t. Perhaps there was no margin of victory by Biden that would have convinced Trump not to claim a stolen win and seek to execute an election coup that finally failed on January 6. But a close race definitely made it much easier for Trump to fire up the MAGA base, convince rank-and-file Republicans to believe his Big Lie about a stolen election, and ensure lockstep GOP obstruction of Biden’s actions as president.

The House fiasco

To say that House races didn’t turn out as expected would be a major understatement. The respected Larry Sabato’s Crystal Ball projected just prior to Election Day that Democrats would win 243 House seats, a net gain of 10. Instead they won 222 seats, a net loss of 11. Here’s what Cook Political Report’s House race wizard David Wasserman had to say when the dust settled:

“[I]n the House, Republicans nearly swept the 27 races in our Toss Up column and won seven races in our ‘Lean’ and ‘Likely’ Democrat columns. These included some big upsets: Republicans held every vulnerable seat in Texas, picked up four Biden/Clinton-won seats in California and even picked up two Miami area seats Clinton had carried by more than 15 points in 2016.

“In 2018, Democrats won most of the Toss Ups and even four seats we had rated as ‘leaning’ or ‘likely’ Republican — not entirely dissimilar. But this time, instead of a strong majority, Speaker Nancy Pelosi is left with 222 seats and virtually no margin for error — especially with Reps. Cedric Richmond (LA-02), Deb Haaland (NM-01) and Marcia Fudge (OH-11) set to decamp for administration posts.”

This last point is worth underlining: Given Pelosi’s narrow margin of control in the House, you might think the president-elect would ask his intended appointees who were House members to hold off for a while until his agenda had been mostly enacted. He did not and that’s why House Democratic centrists were in a position to join with their Senate counterparts in holding Biden’s agenda hostage this summer and fall (even as House progressives felt their own oats in a narrowly divided House and made their own threats).

The Senate fail in North Carolina

You might say that whatever bad luck or skill Democrats had in the late stages of the presidential and House races was matched by their great fortune in those two January 5 Senate runoffs in Georgia, where they won control of the upper chamber and a governing trifecta. That may be true. But it was an Election Night fail in North Carolina that left Democrats with 50 Senate seats and a situation inviting any one senator to hold the party agenda hostage.

Democrat Cal Cunningham led Republican incumbent Thom Tillis in nearly every poll of their contest for months and months. Then in the final weeks of the campaign it all slowly unraveled, as CNN reported at the time:

“Text messages leaked last week and reports detailing Democrat Cal Cunningham’s alleged extramarital affair this summer have undercut the image he has carefully crafted, as a man of integrity who serves in the Army Reserve. While Democratic and Republican strategists say it’s too early to know how the scandal may influence his race against GOP Sen. Thom Tillis, particularly in the age of Trump, Republicans now have a new line of attack — and are planning to put millions of dollars behind it in the final days of the campaign.”

It worked, and while Democrats still won control of the Senate, they didn’t have the margin for error the much-predicted North Carolina win might have given them. And that in turn gave any one Democratic senator the power to veto the budget-reconciliation bill advancing much of Biden’s domestic agenda. Two senators, Joe Manchin and Kysten Sinema of Arizona, have used that power aggressively, likely paring the size of that bill by more than half from its original dimensions, and creating a yet-to-be-resolved battle over its specific provisions.

The state legislative disaster

The U.S. House disappointment was made worse by the failure of Democrats to win nearly all of their ambitious goals for flipping state legislatures and getting control of redistricting after the 2020 census. Politico succinctly described the disaster:

“By Wednesday night, Democrats had not flipped a single statehouse chamber in its favor. And it remained completely blocked from the map-making process in several key states — including Texas, North Carolina and Florida, which could have a combined 82 congressional seats by 2022 — where the GOP retained control of the state legislatures.”

Democrats also fell short in Arizona and Georgia, while losing control of both chambers of the New Hampshire legislature, leaving the GOP in control of 61 chambers overall as compared to 37 for Democrats.

Coming just before a reapportionment and redistricting year, this was a disappointment that will continue to sting for a decade, with Republicans now expected to net somewhere between six and 13 House seats in 2022 from the new maps alone, immensely complicating the already difficult Democratic goal of maintaining House control. Since a majority of state legislatures also draw their own maps, the Republican advantage at the state level may be perpetuated as well.

The legacy of Democrats’ 2020 fumbles

To be clear, ejecting Trump from the White House by any margin was critical, and however fragile the Democratic trifecta now seems, it was better than divided control of Congress. Still, to the extent that Democrats are now struggling with legislation this year and fretting over midterm elections on the horizon, 2020 was the big win the party needed and didn’t get. The biggest problem still ahead could be a 2024 presidential election close enough to nourish the Big Lie and undermine confidence in democracy among a dangerously high percentage of rank-and-file Republicans. It does little good to look back in anger, but we should all have some sympathy for what elected Democrats are going through now. It’s not all about the events of 2021.

 

After absorbing a lot of Democratic gloom-and-doom about the midterms, I offered some silver lining at New York:

The 2022 midterms don’t look great for Democrats, who will try to buck history by hanging on to super-slim congressional majorities. Thanks to the particular lay of the land, Democrats have a decent chance of maintaining control of the Senate. But the House? Not so much: The two times since the New Deal when the president’s party won net House seats in a midterm (1998 and 2002), the president in question had sky-high job-approval ratings. Even if you believe Joe Biden’s plunge in popularity has been stemmed or even turned around a bit, he’s not going to have 60 percent-plus approval in November 2022 unless really crazy things happen. There’s just too much partisan polarization for that these days.

Thankfully for Democrats, even if they lose their congressional majorities next year, Biden himself won’t be an underdog for reelection in 2024. After all, the last two Democratic presidents were reelected after historically terrible midterms. Democrats lost 54 U.S. House seats in 1994 and 63 in 2010. Yes, they had bigger majorities going into those elections than Democrats have now. But they lost the national House popular vote by an identical 6.8 percent in both midterms, which is pretty bad, particularly since Democrats suffer from a voter-inefficiency problem in House elections (too many voters concentrated in too few districts).

It’s possible for a president’s party to lose a midterm so badly that bouncing back in the next cycle is all but impossible. Consider the man whose unique comeback accomplishment Donald Trump will be emulating if he runs in 2024, Grover Cleveland. The president Cleveland defeated in an 1892 rematch, Benjamin Harrison, was a Republican whose party lost an incredible 93 House seats in the 1890 midterms. This, mind you, was at a time when the House had only 332 members, which means the GOP lost over half their caucus in one cycle (an even worse percentage than in 1894, when Democrats lost a record 125 House seats during the midterm after Cleveland’s comeback triumph). In this era of polarization, nothing like that is going to happen to Democrats in 2022.

Looking more broadly at the power of incumbency, there have been 13 sitting presidents since World War II who were on the general election ballot. Nine of them won. The four losers all faced special circumstances. Gerald Ford had not previously been elected to anything more than the U.S. House; he ascended to the vice-presidency and then the presidency when disgraced predecessors resigned, and he pardoned the president who appointed him, the especially disgraced Richard Nixon. Jimmy Carter was caught up in a historical realignment that he had held off four years earlier by carrying his native South, which then resumed a massive Republican trend. George H.W. Bush suffered from a terrible economy but then also a party split (third-party candidate Ross Perot won a lot of previously Republican voters). And we all know about Donald J. Trump, who was impeached twice and seemed determined to offend swing voters.

In retrospect, what’s most remarkable is that Ford and Trump very nearly got reelected despite their handicaps, exhibiting not the weakness but the strength of incumbency. And it’s with that perspective that any early handicapping of a potential 2024 rematch should be considered. Trump benefited from incumbency in 2020, as will Biden in 2024. So the idea that the 45th president has some built-in advantage over the 46th — absent the renewed election coup so many of us fear — doesn’t make a lot of sense.

 

Listening to the back-and-forth among Democrats on what to include in a shrunken Build Back Better package, I offered a way out of the dilemma at New York:

It’s clear the price tag of the Build Back Better budget-reconciliation bill will have to come down from $3.5 trillion to the roughly $1.5 to $2 trillion their senatorial majesties Joe Manchin and Kyrsten Sinema will allow. The two ways to pare the package are pretty obvious: enact a few big things in their original glory and drop others, or enact the whole enchilada in some sort of bargain-basement form. The latter approach typically involves either means-testing to reduce the number of beneficiaries, which progressives and those who poll likely voters stoutly oppose, or providing shorter-term benefits and daring Republicans to kill them if they can, which some progressives and polling mavens do like.

My colleague Eric Levitz recently weighed these options and came down emphatically in favor of the few-things-done-well approach (or, as his headline put it, “against temporary half-assed reforms”). More important, it’s the strong preference of House Speaker Nancy Pelosi, as she wrote to her caucus over the weekend:

“Overwhelmingly, the guidance I am receiving from Members is to do fewer things well so that we can still have a transformative impact on families in the workplace and responsibly address the climate crisis: a Build Back Better agenda for jobs and the planet For The Children!”

Aside from imposing that approach on unhappy progressives favoring a broader if less permanent agenda and on “centrists” who want means-testing or other limitations on the “transformative” items remaining, there’s the question of choosing what’s in and what’s out. It won’t be easy to achieve consensus, and any resolution will leave significant elements of the Democratic coalition unhappy.

But a lot of the angst involved in this set of decisions depends on a bit of dogma that really needs to be reexamined: Congress cannot do anything important in an election year.

Yes, it’s true that members of Congress up for reelection in any given cycle, as well as their Senate colleagues whose majority status is at risk, are less likely to favor perilous votes in an election year — particularly for the party controlling the White House in a midterm election where they are likely to lose ground in any event. But how about votes on genuinely popular initiatives that may actually improve the reelection odds of incumbents supporting them while giving that party’s challengers a strong and united message?

This could be one way out of the current Democratic dilemma: Remove from the FY 2022 budget-reconciliation package and reserve for a FY 2023 follow-on measure — to be debated and enacted in 2022 — some tasty, poll-tested initiatives that aren’t central to any short-term economic-stimulus strategy. A very good candidate for this treatment is the expansion of Medicare to include dental, vision, and hearing benefits. It’s very popular (a June 2021 Kaiser Family Foundation survey found 90 percent of respondents called it a “top” or “important” priority for Congress). It’s also pretty expensive (the enhancement was “scored” by the Congressional Budget Office as costing $358 billion in 2019).

Delaying, rather than dropping, the initiative could reduce the price tag of the Build Back Batter package significantly without infuriating its progressive proponents (such as Senate Budget Committee chairman Bernie Sanders). The delay may also accommodate dubious but strongly expressed centrist fears that too big a spending package right now could escalate inflation and/or make Democrats look fiscally irresponsible.

A shift from 2021 to 2022 for the most popular spending initiatives may be even more effective if matched with the most popular revenue-raising measures to pay for them, which might include higher taxes on the very wealthy or Medicare drug-price-negotiating authority.

For this gambit to work, of course, Democratic leaders would need to be resolute about their willingness to move another big reconciliation bill in 2022. The centrists who forced down the size and shape of the Build Back Better package would also need to be open to it. They should be since they say they’re just hesitant to commit to more spending before we know the future direction of the economy.

As for the impact on Democratic prospects in the midterms, it’s hard to see how a united party advancing a clear, highly popular agenda just as voters begin to focus on their 2022 preferences (presumably late next summer or even in the early fall) could fail to benefit. The Democratic base would be gratified by a promise delayed yet still fulfilled, while persuadable swing voters are precisely those boosting the poll numbers of the most popular initiatives like the Medicare expansion. If you’re like me and figure that Democrats will probably lose the House next year no matter what they do and that they need to accomplish all they can before 2023, splitting the original Build Back Better wish list into sequential pieces of legislation makes perfect sense.

So it’s possible for Democrats to have their cake and eat it, too, while remaining unified. The first step is to stop assuming their ability to legislate ends with 2021.

After months of reading and writing about Democratic congressional battles over infrastructure and reconciliation, I offered a bit of a historical corrective at New York:

If you follow the buzz in Washington, you would think there are massive divisions in the Democratic Party between “progressives” and “centrists” that threaten to blow up Joe Biden’s agenda. The “centrists” in particular have been troublesome by insisting on the shrinkage of said agenda, both quantitatively (various demands to reduce the price tag on the Build Back Better budget-reconciliation package) and qualitatively (complaints about too much climate-change activism or too many new entitlements or too little means-testing or too many taxes).

But lost in all the bickering and hostage taking is the fact that Democrats in Congress are almost certainly more united than they’ve ever been. And there are a lot more “centrists” working quietly in harness with party leaders and progressives than are out there making demands at press conferences.

There are two major groupings of Democratic centrists (or “moderates,” a term used almost interchangeably) in the U.S. House: the Blue Dog Coalition and the New Democrat Coalition. The Blue Dogs have eternally made “fiscal discipline” a signature issue for their membership and have in the past been more than willing to stand up to party leaders. Of the nine “rebels” led by Josh Gottheimer who insisted on a vote on the bipartisan infrastructure bill before they would countenance a reconciliation bill in the big blowup in September, eight were Blue Dogs (plus, Blue Dog co-chair Stephanie Graham made some sympathetic noises). But ten Blue Dogs stayed out of the rebellion.

The minority status of the rebels becomes even clearer if you look at the New Democrat Coalition, a newer group that was once considered close to the now-defunct Democratic Leadership Council (the famously controversial organization that coined the “New Democrat” brand). There are 95 NDC members in the House. Nine of them (ten if you count Murphy) were among Gottheimer’s rebels. Fully 85, including all the group’s leadership, were not.

In the Senate, every member is a caucus, so you don’t tend to have factional groups. Joe Manchin and Kyrsten Sinema have been the hostage takers and naysayers among “centrist” Democrats. But think about all the other “centrists” who haven’t been issuing demands or kicking and screaming about the Build Back Better package. I would count a lot of Senate Democrats as conspicuously moderate over the years: Michael Bennet, Tom Carper, Chris Coons, Dianne Feinstein, Maggie Hassan, Jeanne Shaheen, John Hickenlooper, Tim Kaine, Mark Kelly, Amy Klobuchar, Jon Tester, and Mark Warner. Maybe some of them sympathize with Manchin and Sinema on this or that issue. But they aren’t out there disrupting Democratic unity, are they?

In fact, if you look back at legislative challenges faced by recent Democratic presidents, the relative loyalty of today’s brand of “centrists,” becomes plainer. In 1993, Bill Clinton, himself a stalwart of the DLC who would drive some progressives batty, pushed a budget-reconciliation bill through Congress that had already been significantly pared of progressive provisions before it was introduced. In the end, though, Clinton lost 41 House Democrats and six Senate Democrats (nearly all of them conspicuous moderates or conservatives) who joined Republicans in voting against the legislation.

In 2009, Barack Obama had to deal with well-organized centrist Democrats in both chambers to get his budget enacted; the complex structure of Obamacare was one legacy of the compromises he had to accept after Joe Lieberman, among others, killed the “public option” before it was even incorporated into legislation. Fifteen Senate Democrats worked together to reduce the overall cost of the budget. In the end, 20 House Democrats voted against the package despite a host of accommodations.

The bigger picture is that in recent decades, ideological polarization has consolidated left-of-center voters and pols in the Democratic Party while right-of-center voters and pols have gone Republican. And partisan polarization has greatly reduced the number of ticket splitters. Both forces tend to enhance party unity in Congress. In 2008, despite Obama’s big national victory, 48 Democrats were elected in House districts carried by John McCain. In 2021, there are only seven House Democrats representing districts Trump won last year and only three from districts Trump carried by more than two points. The real outlier among House Democrats is Jared Golden of Maine, whose district went for Trump by seven points. Is it any wonder he’s one of the most vociferously adamant rebels against Biden’s budget bill? Or could anyone be surprised that Manchin isn’t “loyal to Biden” when Biden got less than 30 percent of the vote in West Virginia?

The real problem for Democrats in 2021 isn’t ideological disunity: It’s their shaky control of both chambers, which tempts individual House and Senate members to set themselves up as power brokers and posture for swing voters and wealthy and powerful interests back home.

After the 1992 elections, Clinton’s Democrats held 257 House seats and 57 Senate seats. After the 2008 election, Obama’s Democrats held 257 House seats and 59 Senate seats (which would soon become 60 when Arlen Specter changed parties). Now, Biden’s Democrats control 220 House seats and 50 Senate seats. Even a very unified party will have problems with such a small margin for error and that much incentive for factional or individual demands. And those who treat the current tensions as some sort of inherent “Democrats in Disarray” problem may be forgetting how much trouble Republicans had managing small congressional margins in 2017 and 2018. Remember the Obamacare repeal that never happened?

The cure for Democratic “disunity” isn’t expulsions or an imposed ideology; it’s to win bigger margins in Congress or to lose majorities altogether. Difficult as the status quo undoubtedly is, all Democrats would prefer the turbulent exercise of power to no power at all.

Got far down in the weeds of an obscure but important issue at New York this week:

The now-notorious Eastman memo — the script Donald Trump gave to Mike Pence for overturning the election results on January 6, 2021 — was potentially more dangerous to our nation than the rioters he incited to storm the building. The document provided a spurious, but convenient, constitutional rationale for Pence to abuse the authority granted to him in the 12th Amendment to tabulate electoral votes as part of a pro forma process for confirming Joe Biden’s election. According to Eastman, a lawyer on the president’s legal team, Pence had the lordly power to disregard state-certified electors, ignore the procedures spelled out in the “unconstitutional” Electoral Count Act, and either hand an unearned victory to his own ticket or kick the election into the House. Pence decided not to go there, though he seems to have strongly considered it.

I have feared that the attempted 2020 electoral coup may have been a dress rehearsal for Trump. But no matter what happens in the 2022 and 2024 elections, there will be one important change in the scenery when a joint session of Congress convenes to count electoral votes in January of 2025: Instead of Republican Pence, Democrat Kamala Harris will preside. As Russell Berman notes in The Atlantic, there’s a quiet debate underway as to what role she might play if Trump is the Republican nominee and tries again to steal the election:

“Should Trump or his acolytes try to subvert the 2024 election, the last Democrat with any power to stop the steal — or at least try to — would be Harris. ‘She’s certainly going to have quite a job on her hands on January 6, 2025,’ Laurence Tribe, a Harvard law professor and liberal constitutional scholar, told me. Nine months ago, Tribe and other Democrats praised Pence for interpreting his authority narrowly, but the next time around, they might ask Harris to wield the same gavel more forcefully.”

This does not mean there is significant support in liberal legal circles for some sort of reverse-Eastman memo, with Kamala Harris refusing to acknowledge electors that Trump won, relying on some outlandish constitutional argument. As Matthew Seligman of the Campaign Legal Center told me, election lawyers are unwavering on this point.

“It’s critical to be clear that the Constitution does not vest the vice-president (as president of the Senate) with any unilateral authority at all to reject electoral votes or to resolve disputes about competing slates of electors,” he said. “That theory was the basis of the Eastman memo, and it is absolutely incorrect — whether it’s Vice-President Pence, Vice-President Harris, or any other politician of any political party.”

But the Electoral Count Act (which Eastman wanted Pence to disregard) does give some powers to the vice-president, while leaving certain potential issues maddeningly unclear, with virtually no court precedents to govern the sort of scenarios that could conceivably emerge in future elections. Distinguished Harvard emeritus professor Laurence Tribe told Berman it was clear the ECA gave the vice-president the power to reject “ungrounded challenges to state certifications.”

So if, hypothetically, a Republican-controlled Congress was tempted to supplant electors certified by the appropriate officials under a given state’s laws with some self-appointed alternative slate (like the fake Trump electors Eastman wanted Pence to recognize), Harris might be able to gavel such a move out of order. But as Seligman told me, the ECA does not give the veep “freewheeling authority to pick and choose how to count electoral votes, for good reasons or for bad reasons, and it would be dangerous if it did so.”

If a 2024 Team Trump (or anyone else) gets its act together enough to organize more regularly constituted electoral vote larceny — either by an entirely legal certifying authority that chooses to ignore or distort the popular vote, or by muddying the waters with a conflicting certification by a legitimate state body such as the legislature — there may be nothing Harris can do about it short of asserting powers she doesn’t have, and which a Republican Congress could formally deny her by challenging her decisions. But here’s the thing: The operations of the ECA in such uncharted territory are murky at best, as one might expect from an 1887 statute developed under the shadow of the very different disputed presidential election of 1876.

But prospects for fixing the ECA in the near term have been stalled by the lack of interest of congressional Republicans determined to “move on” from the embarrassing events of January 6. Perhaps the realization that Kamala Harris will be in the chair in 2025 will sink in enough to make them reconsider that hands-off stance toward placing clear limits on her power — power she will be strongly encouraged to exercise to the maximum extent if she’s defending not just another Democratic victory but democracy itself. For that matter, lawmakers in both parties need to understand the ECA is going to be a problem in future elections after which we have no way of knowing who will be sitting in the vice-president’s chair when the deal goes down, or which party will control Congress.

It’s true congressional Republicans may fear the wrath of Trump should he decide an otherwise non-controversial ECA fix could tidy up the muddy track he prefers in order to keep his legal and extralegal options open for a post–Election Day reversal of fortune. But if they value the Constitution and the rule of law, they may be forced to cast a very difficult vote to stop a Trump coup in 2025. Precluding at least some of this risk by clarifying the ECA at this early juncture might be an easier vote, and they can always tell their MAGA constituents they are just reining in Kamala Harris.

Watching all the arguing and fighting among Democrats over the infrastructure and reconciliation bills, it occurred to me we should count some blessing, so I did so at New York:

September was a tough slog for the Democrats whose trifecta control of Congress and the White House has made it essential, but hardly easy, to reach internal agreement on the Biden priorities of an infrastructure and budget reconciliation bill. As of Thursday night, it is entirely possible the Build Back Better reconciliation bill will get a severe haircut thanks to the demands of centrist Democrats like Joe Manchin and Kyrsten Sinema, and that the package will be significantly less progressive than originally envisioned. Totally aside from this set of problems, Democrats are presently stymied by the Senate filibuster on other key priorities ranging from voting rights to abortion rights to a path to citizenship for immigrants.

But these frustrated and sometimes battling donkeys should stop kicking and braying long enough to count their blessings. They came very close to not having a trifecta at all. And the narrow margins Democrats have to work with now could have been less than zero.

Most obviously, Donald Trump’s efforts to illegally reverse the presidential election outcome based on the Big Lie that he won should not make us forget that a shift of just over 77,000 votes in four states (Arizona, Georgia, Nevada, and Wisconsin) would have given him a Electoral College majority, despite Biden’s large win (which would have nearly reached seven million votes even with the above-stipulated shift) in the national popular vote. You have to reach a little deeper to come up with a hypothetical Republican conquest of the House, since the GOP won eight of the closest ten House races and still fell five seats short.

It’s pretty easy, by contrast, to see how Democrats might have fallen short in the Senate long after November 3: Had the two Republican incumbents won those January 5 U.S. Senate runoffs in Georgia, as most observers initially thought they would do, then Mitch McConnell would still be Majority Leader rather than the ranking obstructionist. Indeed, the most common explanation of those pivotal Democratic victories over David Perdue and Kelly Loeffler is that Trump made the runoffs all about his grievances while continuing to undermine Republican voter confidence in the electoral system.

Democrats were fortunate as well that new senators Jon Ossoff and Raphael Warnock were solid progressive Democrats, not the sort of Blue Doggy centrists wary of the national party that Georgia and other southern states once routinely sent to Washington.

In any event, life in America would obviously be very different if Trump were still in the White House. And had Republicans hung on to control of the Senate, there would be no Democratic-designed FY 2022 budget reconciliation bill for Manchin and Sinema to undermine. In all likelihood, Congress might have still enacted a significantly pared-down version of the American Rescue Plan, but would have probably called it a day. It’s doubtful McConnell would have felt any real pressure to let a significant number of Senate Republicans back a bipartisan infrastructure bill that Donald Trump loudly opposed. And all the developments that have depressed Joe Biden’s job approval ratings in recent months would still have likely happened anyway, with no countervailing public appreciation for what he may yet accomplish with his congressional allies.

The Democratic trifecta of the 116th Congress will leave a massive or modest legacy depending on what happens between now and November of 2022 — and obviously on what happens in the 2022 midterms. But the situation could be so much less promising and so much more depressing, and Democrats, especially disappointed progressives hoping for a new New Deal, should keep that in mind.

 

Surveying the gloom over Joe Biden’s current popularity, I offered some historical perspective at New York:

What do pessimists think about the trajectory of Joe Biden’s presidency? It’s not good, according to the Atlantic’s David Frum:

“Democracy is genuinely on the ballot in 2022 and 2024, as it was in 2016, 2018, and 2020. But this time, so too are prices, borders, and crime. If the Biden administration cannot deliver better on those issues than it has so far done, Trump and his enablers will be just as happy to scoop power by default as to grab it by stealth or force.”

That’s right: NeverTrumper Frum thinks conditions in the country could be so terrible by 2024 that Trump won’t even have to cheat or stage a coup to regain power. But while we cannot really know what course events may take between now and 2024, we do know the historical record, which suggests that presidents in Biden’s situation tend to get reelected, even if they look eminently beatable at some point during their first terms.

Since World War II, nine elected presidents have sought a second full term. Six of them (Eisenhower, Nixon, Reagan, Clinton, George W. Bush, and Obama) were reelected, the first three by landslides and the fourth by a near-landslide. Of the three losers, one, George H.W. Bush, had a “party fatigue” problem; his party had held the White House for 12 years when he ran for reelection. That leaves two presidents who pretty much earned defeat on their own: Carter and Trump. That’s probably unfair to Jimmy Carter, since he inherited a horrific domestic economic situation that had been largely cooked up by Nixon with a big assist from OPEC. He also took office in the midst of a giant ideological realignment that cut his southern regional base right out from under him. And even Trump, who worked very hard at alienating voters, had the back luck to be in office when COVID-19 struck, not that he helped matters much.

The point is that the power of incumbency should never be minimized. Five of the six reelection winners (all but George W. Bush in the highly anomalous 2002 midterms) lost ground in their first midterm election. Two lost calamitously: Democrats lost 52 House seats in Clinton’s first midterm in 1994 and 63 House seats in Obama’s first midterm in 2010. For that matter, Donald Trump lost 40 House seats in 2018, yet very nearly won reelection.

Yes, Biden’s job approval rating has been steadily sagging during the last three months and is now (per Gallup) at 43 percent. Using Gallup as well, Obama’s job approval rating hit 40 percent in August of 2011, and bumped along in the low 40s until it began to climb over 50 percent just prior to his reelection. Similarly, Bill Clinton’s rating fell all the way to 37 percent in mid-1993; was at 39 percent in August of 1994; and was only at 42 percent in early 1996. By the time he faced voters in November of that year his job approval was well over 50 percent. And yes, Trump secured some of the highest job approval ratings of his presidency during the run up to the 2020 elections, when he outperformed expectations.

Frum suggests Trump might cakewalk to a 2024 restoration if Biden doesn’t turn a lot of things around. But in reality, there is nothing that might give Uncle Joe more abiding hope of his own comeback than a comeback by his divisive predecessor, a totally known quantity with a demonstrated low ceiling on his support. Three times major parties have renominated a losing presidential candidate in the next cycle; on all three occasions these were rematches: Grover Cleveland (versus Benjamin Harrison) in 1892; William Jennings Bryan (versus William McKinley) in 1900; and Adlai Stevenson (versus Eisenhower) in 1956. Cleveland famously won. Bryan and Stevenson lost ground.

Does Trump resemble the stolid Cleveland in any significant way? Not really. He managed to come close to reelection by polarizing the country to the breaking point. Since then he has done absolutely nothing to appeal to any voters who failed to support him in 2020, and he’s the least likely person in America to change his ways.

Joe Biden will need both skill and luck to dispel the malaise currently afflicting his presidency. But based on what other presidents have done, and given his likely 2024 opponent, his reelection remains a solid — if hardly sure — bet.

With the clock running down and real problems emerging on the legislative front, the president is beginning to meet with key congressional Democrats representing different factions. At New York I took a shot at suggesting what he needs to get them to understand:

We have breathlessly been told by all the Beltway insider outlets that Joe Biden has summoned various congressional Democrats to the White House in hopes of saving his 2021 legislative agenda, which is on the brink of disaster thanks to the irreconcilable demands of competing factions. For once, the eternal “Democrats in disarray” narrative is accurate. On September 27, the House is scheduled to vote on the Senate-passed infrastructure bill, a vote rebellious House “centrists” extorted from Speaker Nancy Pelosi in order to get the votes for a must-pass budget resolution. They are quietly backed by rebellious Senate centrists. Multiple House progressives, who have their own cheering gallery in the Senate, are promising to kill the infrastructure bill if it comes up before the fiscal year 2022 budget reconciliation bill is enacted, which won’t happen for weeks. The one sure thing is that if this transpires, House Republicans will make certain there are not enough votes for the bill in their ranks to save it.

There is also potentially on tap a government shutdown (in just nine days!) and a national-debt default (about a month from now), but salvaging his presidential legacy has to be job No. 1 for Biden right now. What should he tell his troops? Here are some thoughts:

This is a BFD!

Biden should find some way to recycle his famous words to Obama about Obamacare.

The success or failure of the governing coalition Democrats managed to secure in 2020 (and in those two crucial Senate runoffs in 2021) is about to be determined by what happens in the next few days and weeks. If they fail, there will be no tomorrow, no Plan B. Next year will be a lot like 2010, when Democrats lost the ability to pass legislation against Republican obstruction and then got clobbered at the polls. It took them eight years to recover from that debacle. Another one could be staring them in the face.

Biden remembers that, and so do many Hill veterans. He needs to impress on them that this is no time to listen to hammerheaded pollsters or greedy donors or Twitter activists. Like it or not, Biden has defined the paired infrastructure and reconciliation bills as central to his presidential legacy and to his party’s case for maintaining power. He needs to make every Democrat tempted to sabotage either bill feel that his failure would be theirs as well, whether or not they lose their own seats in 2022, which some undoubtedly will if the Biden agenda implodes.

The posturing needs to stop

Obviously, the president must acknowledge and show respect for the fact that legitimate differences of opinion exist in his big-tent party. But lawmakers posturing and grandstanding in order to get a shout-out at Politico as big-time wheeler-dealers are not legitimate or worthy of respect. Biden needs to challenge congressional Democrats very directly on this: Let’s go a week without any name other than mine and Nancy’s and Chuck’s appearing in the national political media. If they are questioned about intra-Democratic negotiations, they should refuse comment, go vague, or say “watch and learn.”

Why is this important? Because the centrist-progressive (and on some issues House-Senate) dynamics are reciprocal and virtually guarantee escalation. A ceasefire in factional hostilities requires some peace and quiet.

Public demands, threats, and hostage taking must end instantly

Whether it’s centrists placing some arbitrary “cap” on the size of a reconciliation bill they can accept or progressives making their votes for reconciliation contingent on inclusion of this or that priority, the proliferation of absolute and totally irreconcilable demands is what has really brought congressional Democrats to the brink of disaster.

Biden needs to show Democrats he understands how and why this is happening: It’s mostly the result of the extremely small margin of control in both Houses — which in fact, objectively speaking, gives every senator and every group of a few House members the power to destroy their party’s agenda. In the past, if that had happened, leaders might have been able to offset intraparty hostage taking by securing votes from the opposition. That’s just not practicable in the current environment. Even on the so-called bipartisan infrastructure bill, Republicans are now making it clear they would love to see it go down to defeat and will work to produce that outcome.

But while expressing empathy for the temptations facing individual members, Biden has to insist that the public demands and threats stop right now and promise with whatever cold anger he can muster that there will be real consequences for those who go rogue at this sensitive moment. Successfully negotiating the size and shape of the reconciliation bill, for example, is going to be excruciatingly hard if the landscape is constantly shifting because Problem-Solver X or Progressive Caucus Y has laid down some personal marker through a press release or a staff leak.

There’s one plan, and we’re all sticking to it

With the clock running down on the endgame for the 2021 legislative saga, Biden and his closest congressional allies really need to adopt a strategy and demand universal support for it right now, even if that means some backtracking by congressional factions. If the infrastructure bill is going to be salvaged, Biden has to bluntly tell progressives the days of “linkage” between reconciliation and infrastructure are now over: The infrastructure bill will be on the House floor next week and it has to pass. But at the same time, Biden needs to tell centrists that while he and Pelosi and Schumer will listen to everyone’s point of view on reconciliation, he needs commitments of support now for the final product, and to threaten permanent ostracism by the entire federal government (within the limits of the law) for anyone who refuses to comply.

In asking Democratic factions and individual members to give up their leverage over one another, Biden will supply his own leverage to keep the party united. It’s probably the only thing, at this point, that will work. And what does the president have to lose in making some exceptional promises and threats of his own? He’s a 78-year-old man who has spent nearly a half-century putting himself in the position to enact the kind of legislative package that is at stake right now. If he loses it, his presidency will at best be hollow and short, and his party will go into the wilderness. Only he can stop that from happening.

Pouring over the details of the gubernatorial recall election in California, some significant patterns emerged, as I noted at New York:

The overwhelming defeat of the effort to recall California governor Gavin Newsom was a big victory for a Democratic Party that has had its troubles lately. With the margin of victory for the “no on recall” campaign roughly doubling the already-robust advantage shown in pre-election polls, the earlier scare that the recall threw into the ranks of the Golden State’s dominant party dissipated entirely. With about three-fourths of the expected vote now counted, “no” leads “yes” by a 63.8 to 36.2 margin (which could get even larger if the usual pattern of last-cast mail ballots leaning Democratic manifests itself once again).

The “no” vote was remarkably close to Joe Biden’s performance in California in 2020 (he won 63.5 percent). Given the extreme partisan polarization that underlay the recall vote (exit polls showed 89 percent of self-identified Republicans voting “yes” and 94 percent of self-identified Democrats voting “no”), that means the partisan patterns of the presidential race were reduplicated to a remarkable extent in a non-presidential special election, where Democrats often experience a “falloff,” particularly when they control the White House (and in this case, the governorship). That’s great news for California Democrats, and not a bad sign for Democrats nationally, who are bracing for the midterm losses the “White House Party” typically suffers.

But in assessing the implications of the results, it’s important to look back at what happened down ballot in California in 2020, while looking ahead to the most critical 2022 battleground, the fight for control of the House. Of the 13 net House seats Republicans gained in 2020, four were in deep-blue California. There is no likely path for Democrats to hang onto House control in 2022 without flipping some or all of those lost seats in one of their strongest states.

Precisely because of the reduplication of the 2020 patterns, there’s really nothing about the recall returns that suggests Democrats are sure to claw back some House seats in California. Two of the four seats Republicans flipped in 2020 (with Asian-American women Young Kim and Michelle Steele as candidates) were centered in Orange County. While “no” won in Orange, the recall race there was closer than the Biden-Trump contest of 2020. A third battleground seat was the one Republican David Valadao won in a very competitive section of the San Joaquin Valley. The recall improved on Trump’s 2020 performance in every county in his district (e.g., Trump won 55 percent in Kings County, but “yes” on recalling Newsom won 63 percent). These results could reflect an intensifying alienation of this heavily agricultural area from Sacramento’s environmental and water-supply policies. Or it could reflect a drop-off in Latino turnout that could spell disaster for Democrats in close 2022 races. Either way the recall numbers should give pause to Democratic optimism about midterm House races.

One study of 2020 returns in California showed Latino turnout trailing non-Latino turnout by about 10 percent. One mail-ballot tracker for the recall showed the turnout gap between Latinos and non-Latino white voters swelling to 20 percent. Youth turnout for the recall was also terrible, exit polls suggest. Yes, these are constituencies that are difficult to mobilize in special elections. But that’s also true of midterm elections, which is a problem Democrats in California and elsewhere need to solve.

The bottom line is that Newsom won the Democratic and Democratic-leaning elements of the California electorate by strongly encouraging partisan polarization via his lavishly funded campaign. This was the obvious smart strategy in this heavily Democratic state. It’s less clear the same strategy will work wonders downballot for Democrats in 2022, which they probably will not have a big financial advantage and shifts in public opinion away from the presidential winner may have settled in, as they did for the last three presidents. Even if Democrats hang onto their monopoly of statewide offices and their super-majorities in the state legislature, any failure to make progress in House races could contribute to the much-dreaded moment when Californian Nancy Pelosi hands over her gavel to Californian Kevin McCarthy, and the Democratic trifecta that gives Biden a chance to implement his agenda comes to an end.