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.

Having spotted an argument for stubborn bipartisanship on voting rights, I decided to respond at New York:

Right now, voting rights in America are subject to a condition of partisan gridlock in Washington that preserves Republicans’ ability to wreak havoc on voting and election laws in the states they control. So long as centrist Democrats Joe Manchin and Kyrsten Sinema refuse to consider a carve-out for voting-rights legislation to liberate it from the Senate filibuster, that’s where things will stand at least through the 2022 elections, in which the GOP has a very good shot at busting up the current Democratic trifecta.

The Manchin-Sinema position is that voting-rights protections must be enacted by a bipartisan coalition to instill confidence in the system given the Trump-induced mistrust that metastasized during and after the 2020 elections, inspiring the attempted and ongoing MAGA coup to challenge or overturn the results. The central question now is what happens when (it’s no longer really a matter of “if”) it becomes unmistakably clear that Republicans won’t cooperate with “compromise” efforts like those in which Manchin has engaged twice this year.

At the invaluable Election Law Blog, Ohio State University professor Ned Foley answers the question by suggesting Democrats might just want to let the GOP do its worst for a while, assuming the “worst” doesn’t fall below some hypothetical “floor” of “minimal conditions necessary for an election to qualify as being small-d democratic.” His basic argument provides sort of a theoretical underpinning for Manchin’s reflexive belief (sincere or merely tactical, given the very red political coloration of his state) that election reforms that aren’t bipartisan simply aren’t worth enacting.

Before addressing Foley’s take, I will emphasize that his counsel of strategic surrender for Democrats is contingent, not absolute: If Republicans violate the hypothetical “floor” that Foley discusses but does not define, then he says Democrats have no choice but to override GOP voter-suppression measures if they can, even if such partisan action exacerbates the GOP’s “electoral McCarthyism” (his term for the Big Lie ideology of pervasive but never documented “voter fraud” claims).

But Foley pretty clearly thinks that what Republicans are doing in states like Georgia and Texas isn’t so very bad, and concentrates his argument on the importance of keeping Republicans from falling into an authoritarian pit forever:

“[W]hen as now the especially dangerous and distinctive paranoid conditions of electoral McCarthyism have taken root, and are growing, it seems as if that kind of one-party imposition of its electoral policy preference upon the other party that suffers from the paranoia of electoral McCarthyism has the potential of being extremely counterproductive. Indeed, it risks propelling forward the possibility of a reaction that would cause the society to fall below the floor of what’s essential for small-d democracy, thereby bringing out the circumstance that is exactly desired to be avoided.”

It’s less obvious how Foley (or Manchin) would ameliorate “electoral McCarthyism,” other than this very wishful thinking:

“Might it not be a smarter strategy to let Republicans write the rules for upcoming elections (as long as they remain within the realm of adequacy in terms of casting and counting votes), and then be able to say to them after they have lost, ‘Hey, we conducted the process exactly how you wanted it; what possibly gives you a basis for complaining with the result just because you lost?'”

There are two pretty big and obvious problems with this surrender strategy. The first is the most obvious: What if Republicans don’t lose in 2022 or 2024? If they win, they may very well be convinced that making it harder for their enemies to vote saved them, and ask for more helpings of the same satisfying meal. They will, moreover, have the power to do just that in more states, and to thwart Democratic voting-rights efforts in Washington for the foreseeable future. A Democratic surrender on voting rights that produces defeat would be accurately viewed as a betrayal of the loyal minority constituencies that lifted Democrats to victory in 2020.

The second flaw in the surrender strategy is it relies on the premise there is some silver bullet that will slay the Big Lie; that there is a single item feeding Republican “mistrust” of the electoral system that can be disproved by letting them indulge their malign fantasies. There really isn’t.

Yes, some Republican base voters believe without evidence that there is currently rampant “voter fraud” that can be prevented with greater vigilance. Others think voting by mail is inherently corrupt; since it hasn’t been outlawed anywhere, wouldn’t reestablishing the traditional Election Day — part of the lost America Donald Trump promised to restore — be an important agenda item to be pursued with renewed vigor? Still others think the problem is easily herded minority voters who want to vote themselves government benefits (the heart of Mitt Romney’s famous “47 percent” remark); they might favor a return to literacy tests or polls taxes. Some “constitutional conservatives” reject any electoral outcomes that undermine “natural rights” (e.g., to property or to fetal “personhood”) that they regard as having been established by the Founders and God Almighty. They aren’t going to wake up and recommit to small-d democracy.

And then you have the people who exist in both political parties, and indeed every political party from the beginning of time, who don’t bother with theories or evidence or “rights” at all and simply favor whatever electoral arrangements improve their chances of victory. What makes today’s Republicans distinctive in that respect is that their leader, the 45th president of the United States, exemplifies that attitude as much as Jesus Christ exemplified the Golden Rule. Indeed, winning at any cost is Donald Trump’s Golden Rule.

Even in the more “reasonable” precincts of the Republican Party, among people who don’t promote the Big Lie and all but visibly roll their eyes at Trump’s excesses, there is currently an iron and nearly universal opposition to the enhancement of any federally established voting rights, even those (most notably those protected by the Voting Rights Act of 1965) that their own party accepted and even celebrated until the U.S. Supreme Court began tearing them apart in recent years. So even if Foley is right and the current passion for vitiating voting rights at the state level burns itself out, does that mean bipartisan support for establishing a durable national floor for voting rights via federal legislation will magically return? There’s no reason to think so.

It’s regrettable that purely partisan avenues are the only ones available to Democrats right now on this and so many other crucial questions. And yes, wherever possible, Democrats should exhibit reasonableness unilaterally as the sole custodians of small-d democracy. A voting-rights bill imposed by a filibuster carve-out or (even less likely) budget reconciliation need not include every conceivable or advisable reform, so as to enable Republican claims of a “power grab.” Restoring the Voting Rights Act to its original dimensions might be enough, along with modest measures to clarify how post-election challenges work so the courts don’t have to litigate them endlessly.

If today’s wave of voter suppression in the States grows worse next year and after the midterms, the folly of Manchinism will become more evident than ever. You cannot restore bipartisanship, on voting rights or anything else of significance, by giving power to your extremist opponents in hopes they will come to their senses or become glutted with too much winning.

As the specter of a Supreme Court repudiation of a constitutional right to choose an abortion becomes very tangible, I offered some thoughts at New York about where the fight over reproductive rights might ultimately go:

These are high times for the movement to abolish the constitutional right to an abortion. It has long since conquered one of our two major national political parties. Via that partnership, three justices strongly supported by the movement ascended to the Supreme Court when Donald Trump was president. Last week, all three joined justices Clarence Thomas and Samuel Alito in a shocking decision to green-light, at least temporarily, a Texas law banning all abortions after the sixth week of pregnancy. And now the odds are high that the Court will reverse or significantly modify its precedents on abortion in a case on the immediate horizon involving a Mississippi law that directly challenges the Court’s protections for pre-viability abortions laid down in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

If that’s how the deal goes down, anti-abortion activists, after they finish celebrating, will focus on spreading abortion bans into contested territory beyond the red states where they have routinely been enacted in recent years, right? Having spent 48 years arguing that states, not courts, should control abortion policy, they’ll be happy to slug it out with their pro-choice opponents in state capitols where neither side has a prohibitive advantage, right?

Not necessarily. Truth is, hardly anyone has ever joined the anti-abortion movement out of passionate support for states’ rights. Sure, in the immediate shock of Roe v. Wade, the idea that a policy matter controlled by state laws since time immemorial would instead be dictated by the federal courts seemed alien. But 48 years later, that shock has surely faded. There are no state legislators pining for the power they lost in 1973 when many of them weren’t yet born or were children playing with toys rather than the lives of women. And the official position of the anti-abortion movement has been clear from the beginning: As early as 1973, it had backed various versions of the Human Life Amendment, a device to place fetal rights into the U.S. Constitution and ban abortion nationwide, not simply reversing but displacing the privacy-based right to abortion identified in Roe.

While the movement suffered from a strategic split between those supporting both an amendment and a return to state-controlled election law and those for whom only the former would do, there was never any question that banning abortion everywhere by the most efficient means available was the common goal. The Human Life Amendment made its way into the national Republican platform as early as 1980.

But securing a constitutional amendment these days isn’t just problematic. The process — with its requirement of a proposal by a two-thirds vote of both houses of Congress (or a much less likely state-called constitutional convention) and ratification by three-fourths of the states — has made the prospect all but extinct for anything remotely controversial. So unsurprisingly, support has grown steadily among anti-abortion advocates for securing protections for “human life” by the same means once used to strip them away: the Supreme Court. As Garrett Epps notes, a recent amicus brief filed by two highly distinguished conservative legal thinkers, John Finnis and Robert George, makes the argument explicit:

“The prohibition of abortion, they told the [Supreme] Court in their brief, is ‘constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.’ No state can permit it, they say.”

The idea that the congressional devisers of the 14th Amendment thought the term persons included zygotes is preposterous, says Epps. But as a strategic matter, getting an increasingly conservative Court with members closely associated with the anti-abortion movement to adopt the Human Life Amendment by judicial fiat makes excellent sense, at least as a goal.

Even if that outcome presently looks distant, its logic is powerful to those accustomed to arguing that “the unborn,” from conception, are people who are metaphysically and morally indistinguishable from those we see walking around. As Harvard professor Jeannie Suk Gerson observed in 2019, the growing tendency of Republican legislators to discard the exceptions for pregnancies resulting from rape and incest, which used to be standard fare in legislation restricting abortion, reflects a “personhood” point of view. It’s significant that neither of the state abortion laws adopted in Mississippi and Texas that are creating such a stir right now has a rape or incest exception. That’s not because the lawmakers drafting them are simply stupid or cruel (though Texas governor Greg Abbott was arguably both in his ridiculous claim that he would eradicate rape in his state so pregnancies resulting from it would no longer exist). They simply reflect a different concept of personhood. And though efforts to put this radical concept into state constitutions have fared poorly in ballot tests over the years, it’s clearly gaining momentum in the anti-abortion movement and conservative legal circles.

Short of that long shot, if Roe is knocked down, you can expect conservatives to do the same thing progressives are talking about doing: promoting legislation in Congress to establish a preemptive national policy on abortion. It would be a statute, not a constitutional provision, and thus could quickly be reversed after one adverse election; but as long as it was in effect, it would ban abortions in New York, California, and Vermont just as surely as in Alabama, West Virginia, or Utah. It’s not a practical immediate possibility for Republicans because they control neither Congress nor the White House (a Democratic president would obviously veto such a law). But if Republicans regain the trifecta they lost in 2018 at a time when Roe has already been overturned, of course they would try to enact a preemptive statue, and, in fact, given the power of the anti-abortion movement in the GOP, they might well sweep aside or change the rules allowing filibusters to make it possible without a supermajority.

The bottom line is that happiness over a potential Supreme Court counterrevolution on the right to choose isn’t going to make anti-abortion activists complacent or even willing to play by a new set of rules in the traditional sandbox of state legislation. Give ’em an inch and they will want to take control of the reproductive systems of every woman in America. And let’s not concede any false equivalence between the two “teams”: Nobody is talking about forcing anyone to have an abortion. But the anti-abortion movement is very definitely talking about, and planning toward, a system in which every pregnant woman will be forced to carry pregnancies to term. And that would be true from sea to shining sea.