All posts by Richard Pildes

“The Age of Political Fragmentation”

The Journal of Democracy has published this new essay of mine. Whether we look to the internal factional struggles currently taking place in the Democratic Party, or the most recent German elections that required putting together a coalition of three different political parties with conflicting views in order to be able to form a government, the democracies of the West are experiencing what I characterize as political fragmentation that makes delivering effective government all the more difficult.

The article can be found here, and this is the short abstract for the essay. I will soon post a much fuller analysis of these issues:

The deepest challenge to Western democracies in recent years is “political fragmentation.” This fracturing of political power into so many different parties and groups makes it difficult for democratic governments to deliver effective governance. A force driving this fragmentation is the communications revolution, which poses a more profound challenge to political authority than is generally recognized. Fragmentation reflects popular beliefs that governments are failing to address the major issues of the day. But fragmentation also makes it all the more difficult for those governments to act. Democracies must figure out how to meet this challenge, lest their inability to deliver on the issues that their citizens find most urgent leads to further distrust, alienation, and anger—or worse.

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“The Vice President’s Non-Existent Unilateral Power to Reject Electoral Votes”

Matt Seligman, Senior Counsel at the Campaign Legal Center, has this 33-page legal analysis on this question. Here’s the abstract:

This Essay explains the errors in the theory advanced by John Eastman in a memorandum presented to President Donald Trump and Vice President Mike Pence which claimed that Pence had the unilateral authority to reject electoral votes when Congress convened on January 6, 2021. That Unilateral Rejection Power theory is fatally flawed in four respects. First, it rests on a misreading of the critical phrase in the Twelfth Amendment that does not follow from its text. If anything, the text indicates the Unilateral Rejection Power is incorrect. Second, it draws on an erroneous history of the Vice President’s role in the electoral counts of the 1796 and 1800 presidential elections. Third, it ignores the dispositive drafting history of the Twelfth Amendment, which definitively demonstrates that both chambers of Congress understood Article II, section 1, clause 3 to assign to Congress rather than the President of the Senate the power to count votes and decide disputes relating to that count. Congress drafted the Twelfth Amendment using precisely the same words regarding the process of counting electoral votes, thus incorporating that settled understanding. Finally, it defies reason that the Founding generation, who had just fought the Revolutionary War to overthrow a monarch to establish a representative democracy, would create a constitution that vested a single official with the legal authority to retain power for a lifetime.

This Essay offers these legal arguments in full view of the more fundamental point: that the Unilateral Rejection Power theory is a dangerous view that undercuts the basic principles of American democracy. It may seem that nothing more than that needs to be said—and that even engaging in rigorous legal argument with such a radically antidemocratic interpretation of the Constitution legitimizes a view that should simply be shunned. The tragic reality, however, is that radically antidemocratic legal views like the Unilateral Rejection Power theory have perilous influence with a powerful faction in the American political system and thus present an immense danger if not decisively rebutted. For that reason, I believe it is critical to expose that the Unilateral Rejection Power theory is not only gravely morally wrong—it is, beyond any doubt, legally wrong as well.

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More on John Eastman

“The Lawyer Behind the Memo on How Trump Could Stay in Office”

NYTimes:

John Eastman’s path from little-known academic to one of the most influential voices in Donald J. Trump’s ear in the final days of his presidency began in mid-2019 on Mr. Trump’s favorite platform: television.

Mr. Trump, who had never met Mr. Eastman, saw him on the Fox News talk show of the far-right commentator Mark Levin railing against the Russia investigation. Within two months, Mr. Eastman was sitting in the Oval Office for an hourlong meeting.

Soon, Mr. Eastman was meeting face to face at Mr. Trump’s urging with the attorney general, William P. Barr, and telling him how Mr. Trump could unilaterally impose limits on birthright citizenship.

Then, after the November election, Mr. Eastman wrote the memo for which he is now best known, laying out steps that Vice President Mike Pence could take to keep Mr. Trump in power — measures Democrats and anti-Trump Republicans have likened to a blueprint for a coup.

After Election Day, Mr. Eastman served as a behind-the-scenes legal quarterback of sorts for Mr. Trump, alarming some of Mr. Trump’s aides, who feared he had found someone to enable his worst instincts at one of the most dangerous moments of his presidency. And it surprised many of Mr. Eastman’s longtime friends and others, who questioned whether his access to power had skewed his vision of reality….

Now, confronting election results that showed Mr. Trump lost, one of Mr. Trump’s aides reached out to Mr. Eastman to see whether he could come over to the hotel to help Mr. Trump’s team.

Mr. Eastman said he was only in the room for 15 minutes before being ushered out — but it was long enough, he said, for him to catch Covid-19 there, and he became ill for several weeks.

In that subsequent meeting with Mr. Trump and Mr. Pence, Mr. Eastman was the only adviser to the president in the room.

“It started with the president talking about how some of the legal scholarship that had been done, saying under the 12th Amendment, the vice president has the ultimate authority to reject invalid electoral votes and he asked me what I thought about it,” Mr. Eastman said.

“It’s a little bit more complicated than that, that’s certainly one of the arguments that’s been put out there, it’s never been tested,” Mr. Eastman said he replied.

Mr. Eastman said that Mr. Pence then turned to him and asked, “Do you think I have such power?”

Mr. Eastman said he told Mr. Pence that he might have the power, but that it would be foolish for him to exercise it until state legislatures certified a new set of electors for Mr. Trump — something that had not happened.

A person close to Mr. Pence, who was not authorized to speak publicly about the Oval Office conversation, said that Mr. Eastman acknowledged that the vice president most likely did not have that power, at which point Mr. Pence turned to Mr. Trump and said, “Did you hear that, Mr. President?”

Mr. Trump appeared to be only half-listening, the person said.

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“Inside Manchin’s search for GOP votes on elections reform”

Politico:

Senate Republicans are finally coming to the table on elections reform. Sort of.

As Sen. Joe Manchin (D-W.Va.) pursues a longshot bipartisan agreement, some Senate Republicans are engaging in preliminary discussions with him on the issue. Even though Senate Republicans have ruled out legislation Manchin and a group of Senate Democrats introduced last month, which amounted to an intraparty compromise on elections and ethics reform, that’s not stopping the West Virginia Democrat from frantically looking for GOP partners while a much-anticipated vote on the legislation remains on pause.

“I’ve been talking to him about some things that I could be for,” said Sen. Roy Blunt (Mo.), the top Republican on the Rules Committee. He listed a few areas he could back, including: “some ballot security ideas, an election advisory commission, [developing] standards that states would need to comply with to get federal funding in the future.”

“We’re negotiating with Republicans in good faith and we’ll see what happens,” Manchin said this week. “We have some recommendations from our Republican friends that are going back now. So we’ll see how that goes.”

In addition to Blunt, Sen. Lisa Murkowski (R-Alaska) is among the Republicans speaking with Manchin on the issue. Others were reluctant to discuss their involvement….

But with no change in Senate rules, the latest Democratic plan has no chance of passage. Some Democrats had privately hoped that Manchin could be swayed to change the chamber’s rules if he tried and failed to get Republicans on board. Manchin, along with Sen. Kyrsten Sinema (D-Ariz.), is adamantly against both nixing the legislative filibuster and creating a carveout just for voting legislation….

“Joe’s just thinking: is there anything we can agree on,” said one Senate Republican. “The problem with most of what he wants to do substantively has to do with taking over the state role, and we can’t go there because we don’t believe in it.”

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“Our republic is gravely sick. A new poll confirms it.”

In case you were having too cheery a Saturday morning. From Henry Olsen, Washington Post:

Many Americans are increasingly concerned that our national heritage, our democratic republic, is seriously in danger. A new poll from the University of Virginia’s Center for Politics confirms that we have reason to worry — and that the fault is in ourselves, not our political stars….

That’s why the Center for Politics poll is so worrying. It surveyed 2,000 voters on a host of issues related to democratic health, especially how each viewed members and leaders of the other party. It found that large numbers of Joe Biden and Donald Trump voters view the other party with fear and contempt.

The most frightening findings show that supermajorities of voters in each camp believe the other side is bent on destroying the country. More than 80 percent of Biden and Trump voters agree that elected officials of the other party “present a clear and present danger to American democracy.” More than 70 percent of both sets of voters believe that some extreme media voices on the other side should be censored “despite the U.S. Constitution’s First Amendment.” More than 75 percent of Biden and Trump voters believe that Americans who strongly support the opposite party also threaten the American way of life. In short, politics has stopped being about how to govern a shared country and is more about a naked, “Lord of the Flies”-style struggle for power.

It should be no surprise, then, that voters on both sides of the partisan divide are embracing views that are inconsistent with democracy. More than 60 percent of Biden voters and roughly 80 percent of Trump voters believe things like “true citizen[s]” should “help eliminate the evil that poisons our country from within” and America “needs a powerful leader to destroy the radical and immoral currents prevailing in society today.” Nearly identical shares of both sets of partisans — about 45 percent — say America would be better off if the president could take “needed actions without being constrained by the Congress or the courts.” There’s a word for a strong leader whose word is law: dictator.

Substantial numbers of Americans in each camp are even willing to break up the country. Forty-one percent of Biden voters and 52 percent of Trump voters say the “situation in America is such” that they would favor Blue or Red states “seceding from the union to form their own country.” That would surely fail if only one side wanted a separation. The dissolution of Czechoslovakia into the separate states of the Czech Republic and Slovakia in 1993, however, shows what might happen if enough people want it.

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“Scores of lawmakers’ leadership PACs spent vast sums on luxurious dining, lodging, and travel, new Issue One and Campaign Legal Center report shows”

From the report:

New research from Issue One and Campaign Legal Center shows that scores of lawmakers are not using the bulk of the money they raise in their leadership PACs to assist other candidates, political groups, or their parties — the intended purpose of leadership PACs when they were approved by the Federal Election Commission more than 40 years ago.

While most members of Congress primarily use their leadership PACs to make political contributions, Issue One and Campaign Legal Center found that the leadership PACs of 120 members of Congress spent less than 50% on politics between January 2019 and December 2020 — roughly one of every five members of Congress….

“Leadership PACs represent the worst of pay-to-play political giving,” said Issue One Founder and CEO Nick Penniman. “People of conscience in Congress and at the Federal Election Commission must rein in the abuse of leadership PACs and prohibit leadership PACs from being slush funds for politicians to pursue lavish lifestyles.”

Adav Noti, senior director for trial litigation and chief of staff at Campaign Legal Center, added: “Too many members of Congress are using leadership PACs to enrich themselves. When candidates use funds given by donors for personal expenses, the risk for corruption is heightened — it raises concerns that wealthy special interests, expecting favors in return, are aiding what is essentially a slush fund that allows an elected official to live a lavish lifestyle.”

Issue One and Campaign Legal Center have urged both Congress and the Federal Election Commission (FEC) to address the abuse of leadership PACs.

In 2018, Issue One and Campaign Legal Center submitted a rulemaking petition to the FEC, asking the Commission to clarify the regulations of the personal use of leadership PAC funds, but, to date, that petition remains pending.

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“Ohio’s top elections official rejects fraud claims”

From Ohio Capitol Journal:

A spokesman for Ohio Secretary of State Frank LaRose said the office didn’t want to get dragged in last week when a fellow Republican echoed former President Donald Trump’s baseless fraud claims and called for an audit of Ohio’s 2020 election.

But the state’s top election official won’t condemn Trump or say whether he’ll support the former president if he runs again in 2024. And despite his assertion that “it’s easy to vote and hard to cheat in Ohio,” LaRose wouldn’t comment on restrictions that forced large-county voters to wait hours to cast early ballots last year.

Former state Treasurer Josh Mandel is one of many Republicans eagerly trying to take up the Trump mantle in the race to succeed retiring U.S. Sen. Rob Portman, who is also a Republican….

“Anyone who suggests that Ohio’s 2020 election was anything less than the most successful and secure election on record is wrong,” the spokesman, Robert Nichols, said in an email. “Just like every election, the 2020 presidential election already has been audited and revealed an accuracy rate of 99.98%. We’re happy to help any Ohioan who may be unfamiliar with our safeguards understand the accessibility, accuracy, and security of how Ohio elections are administered.”

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“High-stakes election tests Fulton amid state takeover threat”

From Atlanta Journal Constitution:

Fulton County is running an election for its life in this November’s race for Atlanta mayor. If the county stumbles, Georgia’s government might take over.

Fulton will try to prove itself after 2020 elections scarred by slow results, long lines, lost absentee ballot requests and constant criticism from Republican President Donald Trump and his supporters.

The county will be challenged by the higher standards required of Georgia’s new voting law, which demands quick ballot counting, greater transparency and investigations of discrepancies.

Fulton’s defenders say the takeover attempt is a politically motivated effort to undermine a county where 73% of voters backed Democrat Joe Biden for president.

But repeated election deficiencies in Fulton are indisputable, from extreme voting wait times in last year’s primary to a series of different problems in November, with unfounded suspicions of fraud mixed with real mistakes.

A monitor installed by the State Election Board found “sloppy” election processes but no evidence of “any dishonesty, fraud or intentional malfeasance.”

Since then, the county has tightened ballot-handling procedures, hired new election managers and rewritten training manuals.

Whether those changes will result in a seamless election day and voter confidence remains to be seen.

“There were very many valid concerns. The only problem is, they were overshadowed by the invalid concerns” about fraud, said Carter Jones, who observed the election during November for the State Election Board. “Fulton has to take some accountability and reform some of this stuff before it’s reformed for them. The more holes in their ship, the more likely it is the state takes over. Figure it out, folks.”

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“Maine, Nebraska remain Electoral College battlegrounds after redistricting”

Ally at Politico:

Maine Democrats and Nebraska Republicans had the unique ability to use redistricting to influence who wins the House in 2022 and the White House in 2024 — but neither were successful in locking in a noticeable advantage for their party.

The only two states in the country that allocate Electoral College votes by congressional district finalized this week maps that will remain in place for the next decade. But the new lines only modestly tweaked the battleground seat in each state.

Under the new lines, Donald Trump would still win Democratic Rep. Jared Golden’s rural Maine district. And GOP Rep. Don Bacon will still represent an Omaha-based seat that gave its vote to Joe Biden.

“There is a ‘Nebraska nice’ slogan,” Bacon said, noting that Republicans did not attempt to crack the city of Omaha in a way that would doom Democrats competing in the district.

The result: The two most consequential congressional districts in the country are fairly insulated from partisan gerrymandering. They will remain among the most contested places in the battle for the House next year — and Omaha and rural Maine will still be on the travel schedule for presidential candidates in 2024.

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“The Trailer: So long, swing seats: Gerrymandering is already shrinking the midterm map”

From Washington Post:

Just three states have approved new congressional maps for the next decade: Oregon, Maine and Nebraska. Forty-one states are still crowded around the drawing board.

But the patterns, and their political impacts, are already obvious. Where one party controls the process, it’s creating as little competition as mathematically possible. Where the power’s been handed to a nonpartisan commission, the maps may be more competitive than ever. …

But where nonpartisan commissions are drawing the maps, people with no particular stake in who controls Congress are finding it easy to draw competitive districts. In Colorado, where voters handed the redistricting process to a committee, draft maps keep the city of Denver mostly inside of the 1st District; doing so, and not drawing from its precincts to make other seats bluer, leaves the increasingly Democratic state with two swing seats and six safe seats divided evenly between the parties.

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“Virginia polls hint at a dug-in electorate”

From The Hill:

In what has become a critical bellwether of the national political environment the year before a midterm election, former Virginia Gov. Terry McAuliffe (D) and former Carlyle Group chief executive Glenn Youngkin (R) are locked in a neck-and-neck battle to identify every persuadable voter in a commonwealth that has trended increasingly Democratic in recent years.

But to judge from the public polls, the two men are hunting for a voter who barely exists: Surveys show the race to be Virginia’s next governor is virtually tied, and incredibly stable amid a turbulent political environment in which issues far beyond their control — a raging global epidemic, a chaotic exit from Afghanistan and even a potentially cataclysmic debt default — dominate the headlines….

Pollsters say the apparently immoveable electorate is a result of a heated political environment that has only become more entrenched on their respective sides.

“It seems that partisan tribalism has deepened so much over the past five years that what we generally talk about as the fundamentals of a race are pretty much etched in stone from day one,” said Patrick Murray, the polling director at Monmouth. He said a similar dynamic is happening in Monmouth’s home state of New Jersey, where Gov. Phil Murphy (D) maintains a stable lead over his Republican challenger.

Those results are reminiscent of California’s recent recall election, in which Gov. Gavin Newsom (D) survived a significant threat to his political career by casting the election as a referendum on the national Republican ticket, and by tying his most prominent rival — radio host Larry Elder (R) — to former President Donald Trump.

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“Census race categories increasingly fail to reflect how people see themselves”

From the Washington Post:

When results of the 2020 Census were released over the summer, nearly 50 million U.S. residents had checked a box for “Some Other Race” — an increase of 129 percent from a decade ago. The nation’s population is becoming more diverse, and demographers say people are marking that box because government categories for race are increasingly out of step with the ways people identify themselves.

Part of the problem lies in the fact that based on 1997-era standards,the form asks about race and Hispanic origin in two separate questions. The race question offers choices that pinpoint some identities with granular specificity while lumping others into broad categories that span continents and skin tones.

For Hispanics, identifying themselves on the census questionnaire can be especially bewildering. Hispanic is not one of the race choices, as it is not considered a racial category, but many respondents miss that nuance.

In 2020, over 15 percent of all respondents marked Some Other Race, either alone or in combination with another race; the vast majorityof them were Hispanic.That made Some Other Race the second-largest “alone or in combination” group in the country, edging out “Black or African American,” and leaving demographers with increasingly imprecise information about who lives in America.

“It’s very confusing,” said William Frey, a Brookings Institution senior demographer who studies diversity. “If you say you’re Hispanic, they [then] ask you to fill out a race question, and many people say, ‘I’ve already filled it out — I’m Hispanic.’ The distinction between ethnicity and race is something that most people don’t make.”…

One reason it is so hard to classify people by race and ethnicity is that the categories are subjective and not scientific, said Jeffrey Passel, a senior demographer at Pew Research Center. “These are social constructs. There’s nothing inherently biological about race,” he said. “What is viewed as Black at one point in time may not line up with what is viewed as Black at another point in time.”

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“Supreme Court will hear Ted Cruz’s challenge of campaign contribution limit”

From Bob Barnes at the Washington Post:

The Supreme Court said Thursday it would consider Sen. Ted Cruz’s challenge to a law limiting post-election political contributions to repay a candidate’s loan to his campaign.

The Federal Election Commission (FEC) asked the court to take the case, after a three-judge panel in Washington sided with the Texas Republican and said the law unconstitutionally restricts a candidate’s political expression.

The case is among five the justices accepted as they began to fill out their docket for the term that begins Monday. The court will be meeting in person to hear arguments for the first time since March 2020. It will be the first time Justice Amy Coney Barrett takes the bench with her colleagues.

The provision Cruz challenged is part of the 2002 Bipartisan Campaign Reform Act. It limits the amount of money that federal candidates can raise and use after an election to repay personal loans. The government defends the law as necessary to prevent the appearance of quid pro quo corruption.

The limit is $250,000. Cruz, as part of his 2018 Senate reelection campaign against Democrat Beto O’Rourke, lent his campaign $260,000 the day before the general election.

The point was to challenge the law, as only $250,000 of that could be repaid with money raised after the election.

The FEC failed to demonstrate “that quid pro quo corruption or its appearance arises from post-election contributions to retire a candidate’s personal debt.”

It added that the government has not identified “a single case of actual quid pro quo corruption in this context” and that “many states impose no restriction on using post-election contributions to repay candidate loans.”

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“Democrats divided: Progressives, centrists say trust is gone”

AP:

In their fight over trillions of dollars, their paramount policy goals and perhaps their political fate, this isn’t helping: Democratic progressives and centrists say they don’t trust each other. They’re tossing around words like “stupid” and “insanity” and they’re drawing lines in the sand.

Congressional majorities of both parties have rich histories of infighting when it comes to enacting their priorities, even when they control the White House and both chambers of Congress. Democrats had to overcome stark internal divisions in 2010 to enact President Barack Obama’s health care law. The GOP fell short in 2017 when it failed to repeal that statute, President Donald Trump’s top goal.

This time, Democrats’ internal battling over a 10-year, $3.5 trillion package of social and environmental initiatives comes with virtually no margin for error and lots at stake….

Yet instead of waiting for that accord to be struck, House leaders were honoring “some stupid, arbitrary deadline” that moderates demanded to debate and vote on the infrastructure bill this week, complained Rep. Pramila Jayapal, D-Wash., who heads the nearly 100-member Congressional Progressive Caucus.

As for moderates, Rep. Stephanie Murphy, D-Fla., told reporters Wednesday that she wanted Biden, party leaders and outside allies like labor unions to lobby House Democrats to back the infrastructure measure.

“If the vote were to fail tomorrow or be delayed, there would be a significant breach in trust that would slow the momentum in moving forward in delivering the Biden agenda,” said Murphy, leader of the centrist House Blue Dog Coalition….

“It either shows Democrats can be trusted to govern” or not, he said of how the party will handle the current fight.

“It’s like the gunfight at the OK Corral,” Lawrence said. “Everybody has their guns pointed at each other. You either pull the trigger or go back into the saloon and try to work this thing out.”

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