Thursday, October 22, 2020

Biden answers on court-packing

 After weeks of vague answers on court-packing, Joe Biden has come forward with an answer to the question of whether his administration would attempt to expand the Supreme Court so that Democrats could appoint additional justices to balance out the new conservative tilt of the Court. In an interview with Norah O’Donnell of CBS, Biden backed away from progressive calls to pack the Court but said that he would consider other methods of reforming a judicial system that Biden says “is getting out of whack.”

“If elected, what I will do is I’ll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it’s getting out of whack,” Biden said in the interview, which will air Sunday on “60 Minutes.”

“It’s not about court-packing,” Biden added. “There’s a number of other things constitutional scholars have debated and I’d look to see what recommendations that commission might make.”

“So, you’re telling us you’re going to study this issue about whether to pack the court,” O’Donnell pressed.

“No,” Biden responded. “Where, there’s a number of alternatives that go well beyond packing.”

“This is a live ball,” O’Donnell responded.

“Oh, it is a live ball,” Biden agreed. “No, it is a live ball. We’re going to have to do that. And you’re going to find there’s a lot of conservative constitutional scholars saying it as well.”

“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets what they want,” Biden continued. “Presidents come and go, Supreme Court justices stay for generations.”

Based on the clip, concerns about court-packing will be relieved, but they won’t completely go away. Biden, who has said as recently as last week that he is “not a fan” of court-packing, nevertheless left the door to expanding the Court cracked slightly open. Biden’s answer was not an explicit statement that he will never support packing the Court, but it did assuage concerns that the confirmation of Amy Coney Barrett would make him flip on the issue.

Polling has indicated that voters think both parties are wrong on Supreme Court issues. Most Americans opposed the rush to replace Justice Ginsburg before the election, but numerous polls show that they also oppose efforts to expand the Court. Further muddying the waters, voters approve of Judge Barrett and believe that she should be confirmed to the Court.

It is no surprise that Biden, one of the most moderate Democratic presidential candidates, would distance himself from the unpopular court-packing plans. Biden and his advisors can certainly read the polls and want to avoid handing Republicans a controversial issue with which to erode Biden’s lead.

The obvious question is what sort of reforms Biden’s bipartisan commission might propose. Earlier this week, an article in Bloomberg discussed several alternatives to court-packing, some of which might even gain support from Republicans.

The most obvious and probably the most popular way to reform the Supreme Court would be to impose term limits on justices. This would prevent situations like the last years of Ruth Bader Ginsburg in which justices hang on to their seats in hopes that a friendly president will be elected. Term limits would still have the problem of making the Supreme Court political as presidents campaign on their appointments to the Court, but they would at least fall upon predictable a predictable schedule rather than upending a campaign when a justice dies or retires.

Another alternative would be to reconstitute the Court with a balanced bench. Under this plan, there would be 10 lifetime justices, five appointed by Democrats and five by Republicans. These 10 justices would pick an additional five federal appeals court judges to join the Court for a one-year term. The 15-judge panel would decide cases for that year. Propoenents argue that such a court would be less partisan and more centrist.

A third proposal is a lottery system in which every federal appeals court judge is appointed as an associate Supreme Court justice. Cases would be heard by a panel of nine randomly selected judges with a maximum of five nominated by any president of one party.

Congress could also take away power from the Court by imposing a supermajority requirement. If the Court is not allowed to make sweeping decisions on a 5-4 margin, it would mean that broader agreement would be needed and fewer decisions would be rendered on a partisan basis. In reality, the Court’s conservative wing often fractures and Chief Justice Roberts seems to be the new swing vote.

The final proposal is most likely because it is the simplest and easiest to implement. Congress could simply strip jurisdiction from specific pieces of legislation. While it remains to be seen whether this method would be constitutional, Article III does stipulate that Supreme Court jurisdiction is limited by “such Exceptions, and under such Regulations as the Congress shall make.”

A downside to stripping jurisdiction is that such laws would be difficult to pass without a supermajority or without eliminating the filibuster. The opposition party would be unlikely to support a law over which the Supreme Court had no jurisdiction. Another weakness is that if a law can be passed stripping jurisdiction, a new law can be passed reinstating it.

The battle for the Supreme Court is not over, but we can breathe easier that Joe Biden is not anxious to pack the Court. As with many issues in our divided era, reform proposals are much easier to make than to push through Congress. This is especially true of sweeping changes and constitutional amendments.

The difficulty in making changes is what the Framers intended and is a feature, not a bug, of our system. That does not stop both parties from desperately trying to find shortcuts rather than following the constitutional guidelines.

Originally published on The First TV

Wednesday, October 21, 2020

About the Hunter Biden emails...

 A couple of people have asked me why I haven’t written about the Hunter Biden email brouhaha. One reason I haven’t is that I wasn’t sure about the authenticity of the find. I’m still not, but the recent statements from Director of National Intelligence John Ratcliffe and the FBI make this seem like a good time to address the issue.

To recap, the story of the laptops is pretty shady. David French does a good job of summing up the problems with the scenario in The Dispatch. These problems include inconsistencies in the repair shop owner’s story, questions about why Hunter would repair his computer in Delaware when he lives in LA, and why, if the FBI has had the computer for months, the emails were omitted from the Senate report on Hunter’s activities that was released in September and failed to find criminal wrongdoing. The top line of the report is that Hunter’s activities were “very awkward.”

But problems with the story don’t mean that the laptop trove is not authentic. There is evidence to support the claims as well, such as the Fox News report that Hunter Biden’s signature matches the signature on paperwork at the repair shop, although Fox notes that the signature has not been verified. Fox News also claims to have verified one email with one of its recipients, an anonymous source, who claims that a reference to “the big guy” means Joe Biden.

Now, we also have Ratcliffe’s statement that the emails are “not part of some Russian disinformation campaign.” That was confirmed by the FBI yesterday that the agency had “nothing to add at this time” but would “evaluate the need to provide defensive briefings” to Congress “if actionable intelligence is developed.”

So, it appears that at least some of the emails are genuine but that the investigation is ongoing. It isn’t impossible that incriminating emails were manufactured and salted away among the genuine emails, but let’s assume that all of the emails are genuine. What do they tell us about Hunter Biden and, more importantly, Joe Biden?

The evidence for wrongdoing is pretty thin. What the New York Post originally called a “smoking gun” was an email in which an advisor to the board of Burisma thanked Hunter for “giving an opportunity to meet your father.” That’s it. There is no allegation that anything improper happened at this meeting and, aside from the email, there seems to be no evidence that the meeting ever took place.

In the past, Joe Biden has claimed that he never spoke with Hunter about his “overseas business dealing.” The email does raise questions but does not disprove that claim.

The Biden campaign responded to the Post’s report with a statement that no meeting with Vadym Pozharskyi, the alleged author of the email, was on Biden’s official schedule. The campaign did not rule out the possibility of a brief, informal meeting. If true, that casts doubt on the Post’s claim that the email was a smoking gun for corruption.

For example, if Biden and Pozharskyi were introduced and shook hands, the brief exchange could be considered “meet[ing] your father” as described in the email, but it would fall far short of the nefarious plotting that the Post report implies.

Likewise, the “big guy” email is also not conclusive. The allegation that “the big guy” is the former vice president seems to be based solely on the unsworn testimony of an anonymous source.

There might be supporting evidence out there, but so far we have not seen it. There are no pictures of Biden shaking hands with Pozharskyi. Unlike Donald Trump, Joe Biden has released his tax returns and there is no evidence of questionable transactions. Biden has earned millions since leaving office, but that money is easily traceable to speaking fees in which he earned a minimum of $10,000 per event and lucrative book deals.

In my view, the specifics of the Biden campaign’s denials are telling. Although it has been pointed out that the Bidens have not denied that the emails are legitimate, they have denied the underlying conspiracy theory that the Post report paints. I think that is the core truth of the matter.

In a statement, a Biden spokesman flatly called out the Post’s reporting, saying, “We have reviewed Joe Biden’s official schedules from the time and no meeting, as alleged by the New York Post, ever took place.”

The statement continued, “Investigations by the press, during impeachment, and even by two Republican-led Senate committees whose work was decried as ‘not legitimate’ and political by a GOP colleague have all reached the same conclusion: that Joe Biden carried out official U.S. policy toward Ukraine and engaged in no wrongdoing. Trump administration officials have attested to these facts under oath.”

And that claim is accurate. Numerous organizations on both the right and left have fact-checked the Trump claims about Joe Biden’s activities in Ukraine and found them to be false. Biden, who was vice president at the time that he pressured Ukrainian authorities to fire the country’s head prosecutor. In other words, Biden didn’t make US policy on the issue, he carried it out. Further, US policy matched that of our allies who agreed that the prosecutor needed to go. The US and other Western European nations were pushing for a prosecutor who would be tougher on corruption, rather than more lenient. Ironically, this would have put Burisma and Hunter Biden in legal jeopardy if they had been engaging in shady activities.

Taken in its entirety, the trove has so far been much ado about nearly nothing. For people who were already convinced that Biden was corrupt, the emails are a smoking gun. For others, there is so far no “there” there, even though there was an appearance of impropriety that was, as the Senate Republicans said, “awkward.” If there was firm evidence, the Trump Administration would have investigated and prosecuted Biden years ago rather than waiting until two weeks before the election.

My prediction is that the Hunter Biden saga will have very little impact on the election unless more damning evidence comes to light. I say this for two reasons. First, Hunter Biden is not on the ballot. The allegations are an attempt to tar Joe Biden with Hunter’s activities but so far the evidence does not support the claims. The allegations are not sticking to the candidate.

Second, this election is about Donald Trump, not Joe Biden. In April 2019, long before the impeachment and the pandemic, 52 percent of voters said they would never vote for Trump. Since then, the revelations of Donald Trump’s real – not imagined – corrupt activities with respect to Ukraine and his failing grade on the pandemic have not swung many votes in his direction. In an August poll, by an almost two-to-one margin, Biden voters said that their vote was against Trump rather than for Biden.

Donald Trump is not going to overcome the objections to his character and competence by attacking Hunter Biden. At best, the Hunter Biden story may slightly depress Democratic turnout and motivate some lackluster Republican voters. With Joe Biden leading by double-digits in many polls, it probably won’t be enough to sway the outcome of the election although it could shift some very close states such as North Carolina and Ohio.

Further, Trump’s own erratic behavior is likely to overshadow the already thin claims against the Bidens. Trump is already shifting the focus of the news by walking out of an NBC interview and attacking Anthony Fauci. The upcoming debate will also change the focus of the conversation. The president has little discipline for staying on message and the Hunter Biden story is not very compelling to most voters anyway.

Originally published on The First TV

Tuesday, October 20, 2020

What does Section 230 actually say?

 One recurring theme of the past few years has been conservative allegations of unfairness on social media. Often these allegations have been paired with calls to reform or repeal Section 230 of the Communications Decency Act, which governs internet companies such as Facebook and Twitter. Twitter’s removal of the Hunter Biden email story is only the most recent example.

Many of the people who are talking about Section 230 have probably never read it. As a result, there is a lot of bad information about what the law says and does. In the words of Inigo Montoya, “I do not think it means what you think it means.”

To begin with, it’s important to understand why Section 230 became law in the first place. Last January, David French explained in Time how the law had its origins in a pair of federal court rulings from the 1990s. One ruling held that Compuserve could not be held liable for user-posted content because it did not moderate the discussion boards while the second did hold Prodigy liable because it moderated and removed comments that violated user guidelines.

Essentially, the two rulings created an all-or-nothing situation in which companies took on massive liability if they enforced any standards on users. The situation created an incentive for companies to take a hands-off approach from user forums, which would quickly allow the internet to deteriorate into a cesspool of filth.

Congress saw the problem and uncharacteristically took action. In 1996, Section 230 became law with strong bipartisan support in an attempt to find a middle ground between the two extremes. You can read the full text of Section 230 here, but the meat of the law is section (c):

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

One of the misconceptions about Section 230 is that social media companies are not considered publishers, but note that the law exempts them from being considered a publisher only in the case of posts “by another information content provider.” In other words, Twitter is not a a publisher of content posted by its users, but it is a publisher when it posts its own content.

As an example, when a news website posts an article, it is the publisher of that article and liable for its content. It is not, however, the publisher of the comments section and has no liability for what individuals post in response. This is as it should be.

Note also that Section 230 does not require viewpoint neutrality or objectivity. The law gives social media companies broad latitude to set their own standards and to enforce them. Content can be “constitutionally protected” and still be banned by the social media platform.

This is also as it should be. Social media companies are private platforms and the right to set their own standards is covered by the First Amendment right to free expression. Social media users have a First Amendment right to expression as well, but that right does not include a right to access on a platform that belongs to someone else.

Because social media companies are private, not government entities, the First Amendment does not apply in cases of posts being throttled or removed. Ironically, the right-wing calls for more regulation of social media are literally requests to restrict the First Amendment to combat perceived censorship. The idea is absurd on its face.

It’s also ironic that much of the battle against social media censorship is being carried out on… wait for it… social media. The fact that social media platforms are, for the most part, open marketplaces of ideas is evident by the fact that Donald Trump and a myriad of others can attack Twitter for censorship on Twitter itself undercuts the argument that social media censorship is a serious problem.

This isn’t to say that social media standards and enforcement don’t have problems. There definitely seems to be a bias against conservatives and Republicans. The social media giants should be evenhanded in the enforcement of their standards, but this is more of a customer service issue than one of censorship.

And some of the problem is self-induced by right-wing posters. I know many people who push the bounds of decency and then brag about being banned. In some circles, victim status from having spent time in “Facebook jail” or “Twitmo” gives the user street cred.

More than encouraging fairness, the effect of repealing Section 230 would likely be to end social media as we know it. Companies would have the choice of either no regulation, a world in which threats and obscene material could not be removed, or strict liability for everything posted by every user. Many discussion forums would probably be taken down. If not, decent people would flee as social media became even more vile.

Rather than an expansion of government and encroachment on the First Amendment, a better solution would be for disaffected Twitter and Facebook users to vote with their feet and find an alternative. Parler was the rage among Republicans a few months ago and other competitors will arise to fill any niche created by tech company bias. The social media giants can change or risk losing traffic and revenue. The solution is in free markets, not growing government.

This is especially true on the eve of an election in which Republicans are preparing for a bloodbath. Allowing government to determine what is “fair” strikes me as a bad idea at any time but especially when Democrats are about to take control of both the White House and Congress.

Originally published on The First TV

Monday, October 19, 2020

Here's how early voting looks so far

 We are two weeks from Election Day, but many states are already weeks into the voting process. The availability of early voting and mail-in ballots means that many voters have already cast their ballots. It also means that we have some statistics that we can examine for hints at the direction of the election.

Professor Michael McDonald of the University of Florida runs the US Elections Project. Part of this study is a page dedicated to early voting statistics and analysis. Despite the fact that McDonald is a Florida Gator, the Elections Project contains interesting and compelling information about the state of the election so far.

McDonald’s analysis shows that early voting is occurring at a record pace. So far this year, 27.9 million have voted compared to 5.9 million at this point in 2016. That means that almost five times as many Americans have rushed to vote this year as in 2016, which was also a record year with 40 percent of all votes being cast early. This year, 20 percent of the 2016 vote total has already been cast.

The intense interest in voting early could be due to several different causes. It could be due to intense interest in the election and and readiness to vote. It could also be due to the pandemic and a desire to avoid long lines and crowds on Election Day.

When I voted early last week on the first day that Georgia polls were open, the line stretched around the courthouse square. I often vote early due to a work schedule that frequently takes me out of town, and I have never had more than one or two people in front of me. Last week, I waited 90 minutes. It may be worth noting that most people kept some social distance and wore masks but I didn’t see anyone look at the line and then decide to leave. The only person whose intention was obvious was a gentleman wearing a MAGA hat.

Not all states report party affiliation for early voters (Georgia does not), but among the states that do, Democrats have built up a significant lead. In those states, 53 percent of votes cast were by Democrats while 25 percent were Republicans and 20 percent had no party affiliation. The Democrat advantage applies to both mail-in ballots and early in-person voting.

It is important to note here that the data does not show who a person voted for but only the registered party of the voter. The statistics show that a voter was a Democrat or Republican but would not indicate if they voted for their own party’s candidate or crossed the aisle.

Democrats typically tend to vote early in-person in larger numbers than Republicans, who usually request and return more mail ballots. This year, however, Democrats have “dominated” both early voting methods. McDonald theorizes that the disparity may be due to Donald Trump’s attacks on mail-in ballots but that the decline in Republican mail ballots may be offset in other ways.

“If Republicans are listening to President Trump’s rhetoric disparaging mail balloting, we might expect to see more Republicans voting in-person early,” he writes. “Republicans have less of a disadvantage among in-person early voters than mail voters, but overall a deficient continues to exist.”

McDonald points out another problem for the Trump campaign with an anecdote about how he personally received three mailers from the Trump campaign addressed to the previous owner of his house, a person who had not lived there for several years. The mailers encouraged the person to request an absentee ballot and vote Republican.

McDonald notes that this “poor targeting” is not the only problem, saying Trump’s “money has largely been wasted because Trump’s supporters are listening to his rhetoric about mail ballot fraud. Even if occasionally he grudgingly tells his supports to vote by mail or vote early, Republicans aren’t doing it yet. Maybe Trump feels he can waste his money this way, but throwing away money only means the Biden campaign has even more of a cash advantage over Trump.”

“Meanwhile, the Biden campaign is analyzing the same early voting data of individual voters available to me,” he adds. “They are merrily scratching names off their target universe and re-concentrating their efforts onto voters they want to vote who haven’t participated yet. This means that Biden is able to more effectively use the money he has.”

As I reported in September, Joe Biden has had a fundraising advantage over Donald Trump over the past few months. Currently, the Biden campaign has almost twice as much cash on hand as Team Trump.

The bottom line is, as McDonald says, “Trump is putting his eggs into the Election Day basket, and that is risky. It is not unheard of for bad weather to happen on Election Day – a snowstorm, rain, or even a tropical disturbance. Bad weather is known to depress turnout. There will be fewer polling locations because of COVID, so Election Day lines could be unusually long and miserable to stand in with bad weather. A COVID issue could unexpectedly shutter an election office or polling location, creating last-minute chaos.”

Donald Trump’s persistent message that mail-in ballots are bad may have inadvertently depressed Republican voter turnout at least in the opening weeks of the early voting stage of the election. Whether this remains true for the remaining weeks and whether it balances out with the in-person voting on Election Day remains to be seen.

Originally published on The First TV

What if Hillary had won?

 Acouple of recent conversations made me wonder how things might be different if 80,000 people had voted differently in 2016 and Hillary Clinton had edged out Donald Trump in the Electoral College. One school of thought holds that the second President Clinton would have represented the end of America as we know it, but is that really what would have happened?

If other election results were significantly unchanged, Clinton would have been faced with Republican majorities in both the House and Senate. As with Barack Obama, the same Republicans in Congress that enabled Donald Trump would have acted as a brake on Hillary’s progressive agenda.

One of the first places where history would have diverged would have been the appointment of a replacement for Antonin Scalia. While I agree that any Hillary or Obama appointment would have been a step down from Scalia, Hillary would not have been able to appoint a fire-breathing liberal to the Court.

Why? Because a Republican Senate would not have to confirm a far-left justice. We would not have Neal Gorsuch or Brett Kavanaugh, but moderately liberal Clinton appointments might not have significantly shifted the balance of the Court.

Still, judicial appointments are an area where Trump has hands-down performed better than Hillary would have. Trump’s appointments are a clear conservative victory… Except that if Joe Biden wins and Democrats take control of the Senate and pack the Court, those gains might quickly prove ephemeral.

Another area of difference is with trade. Hillary waffled on the Trans Pacific Pact, but I am skeptical that she would have abandoned the treaty. She definitely would not have launched the tariff war that Donald Trump began.

While many Trump apologists view this as a weakness for Hillary, as an economic conservative, I disagree. Trump is actually to the left of Hillary and Obama on trade as he himself acknowledged when he compared his trade policy to that of Bernie Sanders.

Far from being a winning strategy, Trump’s trade policy has been disastrous. His taxes on trade have offset the benefits of tax reform for most Americans and devastated American manufacturing and farm exports. Trump’s farm base was pacified with billions of dollars in bailouts but the US manufacturing sector was in a recession for all of 2019. The rest of the country followed in February 2020, a month before the pandemic hit the US in earnest and after negative economic growth began in the fourth quarter of 2019 following the escalation of the trade war with China.

How do you get Republicans to cheer for tax increases? Have President Trump call them tariffs. But tariffs are taxes and come with all the negative economic consequences of any other tax increase.

But what about the stock market? The Dow has been on a tear throughout the Trump era. Wouldn’t the stock market have crashed under a Hillary Administration?

It’s true the stock market has done well under Trump, even recovering most of its losses from the pandemic spring, but many of the stock market graphs touting Trump’s success with the market end in 2017. If we zoom out and look at a longer time scale, we see that the market has been on a steady climb since the recovery from the Great Recession began in 2009. The market has been tumultuous since the onset of the trade war in 2018.

It’s also true that tax reform would have never happened under Hillary Clinton. I favored tax reform, but the new tax laws also have a downside. Federal revenues flattened after the tax cuts while spending increased sharply under Trump. As a result, both the federal budget deficit and the national debt ballooned even before the pandemic.

If Hillary had been president with a Republican Congress, federal spending would have been more restrained. In fact, when Barack Obama was president, the much-maligned John Boehner led the House to reduce federal spending in consecutive years for the first time since the Eisenhower Administration in 2012 and 2013. Ironically, most Republicans that I talk to refuse to believe that this victory occurred.

But wouldn’t Hillary have eviscerated the Second Amendment and instituted abortion on demand? Remember that Republican control of Congress would have limited her actions on those issues to tinkering around the edges with Executive Orders as Obama did. Barack Obama was president for eight years and Republicans in Congress stonewalled gun control for the entire time. In fact, President Trump has been more successful at enacting gun control than Obama, having instructed his bureaucrats to ban bump stocks without going through Congress.

As for abortion, the practice has been in long-term decline for decades regardless of which party occupied the White House. Abortion declined throughout the Obama years and is now at a lower level than prior to Roe v. Wade when it was totally illegal in many states. This milestone occurred before President Trump took office.

What else might have been different if Hillary Clinton had become president? There are both good and bad possibilities. Our allies would not have been alienated by our erratic foreign policy and attempts to retreat from the world stage. The US would not have recognized Jerusalem as the Israeli capital. On the other hand, the US would likely still be party to the Iran deal and the Paris Accords. Deregulation, another big accomplishment of the Trump Administration, would never have happened. Republicans would have likely prevented abuses of executive power by Hillary that they ignored under Donald Trump.

Some things would not have been different. With the Iranian threat to moderate Arab nations growing, the Middle East treaties might still have happened. In a Hillary presidency, Obamacare would still have not been repealed and there would still have been no border wall. Hillary Clinton would still not be locked up.

One of the other big differences would be the outlook for the current election. Rather than being on the brink of electoral disaster, Republicans would be poised to expand their hold on Congress and to elect a conservative president. Conservative America would be united against Hillary and the suburbs, seniors, and minorities would not be fleeing the Republican Party.

Hillary would also have probably responded better to the pandemic. Clinton would have been more likely to heed expert medical advice and follow the pandemic plan established by the National Security Council rather than winging it. The pandemic response might not have been politicized. Tens of thousands of lives might have been saved.

Both Hillary Clinton and Donald Trump represented mixed bags for America. In some areas, Hillary would have been worse, but in others, Trump has been the worse of the two.

There are two lessons here. One is that a Democratic president, even with control of Congress, won’t necessarily mean the end of America or an economic implosion. America is resilient and has been strong enough to withstand both Barack Obama and Donald Trump. We can also survive Joe Biden and/or Kamala Harris.

The second is that control of Congress is ultimately at least as important as controlling the White House, if not more so. Especially if President Trump loses the election, it is important for Republicans to maintain control of the Senate. Doing so will minimize the ability of a Democratic administration to enact radical progressive change.

Divided government would also encourage the parties to work together as the Founders intended. A government in which the two parties are at a standoff should be the goal of conservatives who truly believe in limited government since both parties have shown that they cannot be trusted with unchecked power.

Originally published on The First TV

Friday, October 16, 2020

Ben Sasse unloads on Trump…and it may be a sign of things to come

 In a sign of things to come, Nebraska Republican Ben Sasse let President Trump have it with both barrels this week. Senator Sasse spoke truths rarely voiced by Republicans for the past four years in a phone call with constituents earlier this week, but, as the president sinks in the polls, Sasse’s criticism may become more common as vulnerable Republican incumbents attempt to save (and distance) themselves.

Sasse, who was an outspoken critic of Trump earlier in his presidency, was responding to a constituent who asked, “Why do you have to criticize him [President Trump] so much?”

Sasse began by responding, “We should distinguish between policy agreement and policy disagreement and then also long-term political implications as well.”

Sasse said that he had worked hard to develop a good relationship with Trump and then touted areas where “the president has now adopted traditionally Republican positions that he used to reject, for the majority of his life, when he was funding Democratic candidates.” In particular, Sasse said that Trump has nominated very good judges.

“There are a lot of places where he and I differ as well,” Sasse continued, “And these aren’t mere policy issues, and I’m not at all apologetic for having fought for my values against his in places where I think his are deficient, not just for a Republican but for an American.”

“The way he kisses dictator’s butts, the way he ignores that the Uighurs are in literal concentration camps in Xinjiang right now, he hasn’t lifted a finger on behalf of the Hong Kongers,” Sasse went on. “I mean he and I have a very different foreign policy. It isn’t just that he fails to lead our allies, it’s that the United States now regularly sells out our allies under his leadership. The way he treats women and spends like a drunken sailor. I criticized President Obama for that kind of spending, I criticize President Trump for it as well.”

Shifting to the president’s personal traits, Sasse said, “He mocks evangelicals behind closed doors. His family has treated the presidency like a business opportunity. He has flirted with white supremacists.”

Sasse then addressed Trump’s response to the Coronavirus pandemic. “At the beginning of the COVID crisis, he refused to treat it seriously,” Sasse charged. “For months, he treated it like a newscycle by newscycle PR crisis rather than a multi-year public health challenge, which is what it is.”

“Now, in his partial defense here, I think that lots of the news media has pretended that COVID is literally the first public health crisis ever and somehow it’s Donald Trump’s fault, that’s not true,” he qualified, “But the reality is that he careened from curb to curb. First, he ignored COVID and then he went into full economic shutdown mode. He was the one who said that 10 to 14 days of shutdown would fix this, and that was always wrong.”

Sasse also said that he thought Trump would ultimately drive the country further to the left. President Trump erred when he mistook an electoral fluke for a broad popular mandate.

“I think folks have regularly misunderstood the meaning of 2016,” Sasse said. “Donald Trump didn’t win the presidency because America actually wants more reality tv around the clock…. I think the overwhelming reason that Trump won in 2016 was because Hillary Clinton was literally the most unpopular candidate in the history of polling.”

“It has always been imprudent for our party to try to tie itself to a Trumpian brand and that’s what I’ve been worried about for five years,” Sasse said.

Sasse fretted, “I’m worried that if President Trump loses, which looks likely, that he’s going to take the Senate down with him,” adding that he is concerned about the possible loss of the filibuster and its effect on religious liberty and free speech.”

“I’m looking at the possibility of a Republican bloodbath in the Senate and that’s why I’ve never been on the Trump train,” Sasse said.

Sasse takes a long view, speculating that court-packing could lead to “dozens of people on the Supreme Court,” that our allies in the Pacific will side with China “because Trump’s isolationism is so weak” that our allies doubt us, that “young people [will] become permanent Democrats because they’ve just been repulsed by the obsessive of our politics,” and that women will leave the Republican Party permanently.

“What the heck were any of us thinking that selling a tv-obsessed narcissistic individual to the American people was a good idea?” Sasse asked rhetorically. “It was not a good idea.”

Can I get an amen?

Sasse makes many of the same points that I have made over the past five years. That includes earlier this week when I decided to support Joe Biden for president and Republican candidates for Congress. What Sasse says is what many prominent Republicans must have known all along. I am glad to hear Senator Sasse speaking out about Donald Trump’s flaws, but, for this election, it is too little too late. The Republicans are about to lose both the White House and the Senate to a blue tsunami.

I sympathize with Sasse’s fears about Democratic control of the presidency and both houses of Congress, but the time to sound a warning against Donald Trump was years ago, not two weeks before the election. If more Republicans had spoken out against Trump’s excesses, if they had done their constitutional duty and removed him from office last January, then we would be looking at a completely different campaign.

If Donald Trump was not at the top of the Republican ticket, Mike Pence would not be making inane comments and retweeting conspiracy theories. A Pence-Biden debate would have had a completely different outcome than the disastrous Trump-Biden debate. Republican incumbents in Congress would not be shackled to a sinking ship. If Mike Pence was the nominee, I and many other disaffected conservatives would have voted Republican rather than Democrat or third party.

Whose fault is the looming Republican electoral disaster? Ultimately, it is Donald Trump’s fault, but Republicans in Congress also deserve a large share of the blame. The GOP promised to hold Trump’s feet to the fire and then proceeded to let him run amok, circling their wagons to protect him from accountability. The Republican Party even protected Trump from primary challenges by canceling many state primaries, ensuring that their deeply flawed candidate would be the standard bearer, no matter how unpopular he was.

In 2016, the Republican embrace of Trump was a matter of necessity to defeat Hillary Clinton. In 2020, the party had a choice and knowingly, purposely, eagerly hitched itself to the man who half the country wanted removed from office only nine months ago. A man who 52 percent of voters said they would never vote for even before the pandemic.

Ben Sasse’s criticism of Trump is honest and refreshing, but it comes too late. The Republican Party is about to face losses of historic proportions because Republican voters have lived in a pro-Trump bubble for the past four years and been in denial about Trump’s widespread unpopularity, aided by congressional Republicans and pro-Republican pundits on television and radio.

If more Republicans had demonstrated the moral courage of Democrats who united to stand against Bernie Sanders, things might have been different, but, sadly, we will never know. America and the Republican Party are about to pay the price for the Republican failure to stand up for the principles that they professed before Trump came down the escalator.

Originally published on The First TV

Monday, October 12, 2020

The ‘Dirty Dozen’ races that will decide control of the Senate

 Last week, I took a deep dive into swing state polling in the presidential race. Today, I’ll focus on the other big concern for Republicans this November: control of the Senate.

As you probably already know, Republicans started the campaign with a three-seat advantage. This means that Democrats need a net gain of at least three seats just to even it up. In that case, tie votes in the upper body would be decided by the vice president, which would be either Kamala Harris or Mike Pence. (Although at this point I think it’s looking likely to be Harris.)

The list of battleground Senate seats looks a lot like the list of presidential swing states, but there are differences. Sometimes local conditions mean that a Senate seat is vulnerable in a state that looks pretty solid for a presidential candidate.

Democrats have a structural advantage this year because Republicans are defending more seats. Twenty-three Republican-held seats are up for re-election compared to only 12 Democrat seats. The fact that 2020 is shaping up to be a difficult year for Republicans means that more of these Republican seats are vulnerable than would be in a more typical year.

On the Democratic side, only two of the 12 seats up for election are not rated as “solid Democrat.” Those are Gary Peters in Michigan and Doug Jones in Alabama.

In Michigan, Peters has consistently led in polling and holds an average five-point lead over Republican John James. Peters will almost certainly retain his seat, but the story is different in Alabama.

Doug Jones won a special election in Alabama in 2018 when Republicans nominated the supremely bad candidate, Roy Moore. Even though Moore was unpopular enough to push Republican voters across party lines, Alabama is still a very red state. Jones is trailing former Auburn football coach Tommy Tuberville by about 10 points. The outcome of this race will likely increase the number of Republican seats that Democrats need to flip to four.

That was the good news for Republicans. The bad news is that 10 of the 23 Republican seats up for election are vulnerable to Democrats. This includes two where Democrats are favored to win and another half-dozen that are considered toss-ups.

Here is the full list of Republicans in trouble:

  • Arizona – Martha McSally seems destined to lose her second Senate race in two years. In 2018, she lost the election to replace Jeff Flake to Kirsten Sinema and then was appointed to replace the retiring Jon Kyl. Now McSally is trailing Democrat Mark Kelly by seven points in a state that seems to be turning blue.
  • Colorado – Cory Gardner is trailing former governor John Hickenlooper by an average of eight points. Colorado is another state that is trending more and more blue in the Trump era.
  • Georgia – David Perdue is three points ahead of Democrat Jon Ossoff in this tossup race. Perdue is likely to win this close race, but it may require a runoff.
  • Georgia special election – Kelly Loeffler, appointed by Gov. Brian Kemp to replace Johnny Isakson earlier this year, is in trouble, largely because Republican Doug Collins is mounting an intraparty challenge in this jungle primary race that I detailed last week. The two Republicans are splitting the vote and leaving Democrat Raphael Warnock with a lead in this six-way race. The two top vote-getters will compete in a runoff where Loeffler is likely to best the Democrat.
  • Iowa – Joni Ernst, a Tea Party favorite, trails Theresa Greenfield by five points. This could be the third pickup for the Democrats.
  • Kansas – Kansas is normally a red state but polling in the race to replace Pat Roberts, who is retiring, indicates a tossup. Republican Roger Marshall may have a slight edge over Democrat Barbara Bollier.
  • Maine – Susan Collins, the perennial aisle-crosser that Republicans love to hate, is trailing Sara Gideon by four points. Collins may have reached the end of her tenure in the Senate as well.
  • Montana – Donald Trump will win Montana comfortably but Steve Daines is in a tight race against a popular former governor Steve Bullock in this Battle of the Steves. Daines holds an average three-point lead and seems likely to hold on to his seat.
  • North Carolina – Thom Tillis was trailing challenger Cal Cunningham when the Democrat became embroiled in a sexting and adultery scandal that only broke a few days ago. At this point, Cunningham still leads in the polling average by five points but has seen his lead slip. With three weeks to go, the race could go either way but the Democrat still has the edge.
  • South Carolina – In the most surprising tossup race of the year, Lindsey Graham is struggling for survival against Democrat Jaimie Harrison in a race I profiled at The Resurgent a few weeks ago. This race is about as close as it gets, with recent polling showing a one-point race and polling favoring both candidates. Graham has a slight structural advantage but this one looks like a nail-biter.

If you’re keeping score at home, it looks like Republicans will flip one Democratic seat — Alabama — and Democrats are poised to flip at least four (Arizona, Colorado, Iowa, Maine) Republican seats and possibly as many as eight (adding Kansas, Montana, North Carolina, and South Carolina). That represents a net gain of between three and seven seats for the Democrats.

At this point, the smart money is on Democratic control of the Senate next year. FiveThirtyEight rates the odds of a Democratic takeover at about 69 percent. There is a nontrivial chance that Republicans can retain the Senate but it will require a very good night in which nearly all of the tossup races go red.

There is also a decent chance that we won’t find out who controls the Senate on Election Night. Both Georgia races are subject to a rule requiring a majority of the votes. If no candidate gets 50 percent, the top two candidates compete in a runoff. The runoff is scheduled for January 5.

Originally published on The First TV