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John Nichols

John Nichols

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Judge Who Framed Voter ID Laws As Constitutional Says He Got It Wrong


When the United States Court of Appeals for the Seventh Circuit in Chicago issued a critical 2007 ruling defending the constitutionality of voter ID laws, Judge Richard Posner authored the decision.

The arguments Judge Posner made for upholding Indiana’s voter ID law framed some of the essential underpinnings for the 2008 determination of the US Supreme Court—in the case of Crawford v. Marion County Election Board—that has since served as a justification for the enactment of ever harsher laws in states across the country.

According to the National Conference of State Legislatures, “a total of 34 states have passed voter ID laws of some kind.” Not all of those laws have been implemented, with a number of them facing court challenges.

With the status of voting issues protections complicated by the Supreme Court’s June 2013, decision to invalidate key sections of the Voting Rights Act, the wrangling over voter ID laws in states such as North Carolina and Texas has only become more legally complex and confusing.

So it should count for something that Judge Posner now says that he was mistaken in his 2007 decision.

Indeed, the judge’s rethink ought to inspire a national rethink—about not just voter ID laws but the broader issue of voter rights.

In his new book, Reflections on Judging, Judge Posner writes, “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID—a law now widely regarded as a means of voter suppression rather than fraud prevention.”

Judge Posner, an appointee of former President Ronald Reagan, is not stopping there.

In an interview with HuffPost Live, Mike Sacks asked: “Do you think that the court got this one wrong?”

“Yes,” replied Judge Posner. “Absolutely. And the problem is that there hadn’t been that much activity with voter identification…. [The Seventh Circuit judges] weren’t really given strong indications that requiring additional voter identification would actually disfranchise people [who are] entitled to vote.”

Posner continued:

“There was a dissenting judge, Judge [Terence] Evans, since deceased, and I think he [was] right. But at the time I thought what we were doing was right. It is interesting that the majority opinion [from the Supreme Court] was written by Justice [John Paul] Stevens, who is very liberal, more liberal than I was or am…. But I think we did not have enough information. And of course it illustrates the basic problem that I emphasize in book. We judges and lawyers, we don’t know enough about the subject matters that we regulate, right? And that if the lawyers had provided us with a lot of information about the abuse of voter identification laws, this case would have been decided differently.”

Judge Posner should have paid closer attention to the detailed amicus brief filed in 2006 by the Brennan Center for Justice, which explained how the Indiana law threatened to “exclude many eligible voters from participating in our democratic process.”

But the jurist, one of the most prominent on the federal bench, has now come around.

Judge Posner is making a bigger point about the challenges judges face in making determinations about complex and controversial concerns.

That broader point is certainly worthy of discussion.

But the specific point Judge Posner is making about voter ID laws ought not be lost on Americans as state legislatures and courts continue to wrestle with voting rights issues.

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Because voter ID requirements have been widely criticized as weighing more heavily of specific classes of voters—people of color, students, low-income voters, the elderly—legitimate concerns have been raised about equal protection and a host of other constitutional concerns.

The Supreme Court’s 2008 ruling has been used to defend voter ID laws as constitutionally credible.

Now, the judge whose decision helped to shape that decision says he was wrong.

The case against voter ID laws has always been compelling. voter ID laws respresent “solutions” in search of a “problem” that the Brennan Center describes as a “myth.” They are unduly burdensome and threatening to democratic participation by substantial portions of the nations voting-age population; the American Civil Liberties Union explains that “more than 21 million Americans do not have government-issued photo identification; a disproportionate number of these Americans are low-income, racial and ethnic minorities, and elderly.” And where voter ID requirements involve costs for those seeking, Attorney General Eric Holder has said: “We call those poll taxes.”

But as solid as the case against voter ID laws has always been, Judge Posner’s admission of error should—at least for honest observers—make that case a good deal stronger.

Ari Berman discusses “separate and unequal” voting conditions in Arizona and Kansas.

Shutdown Politics: Support for Democratic Takeover of House Spikes

John Boehner (AP Photo)

The numbers that matter in Washington are not the ones tossed around in discussions of debt ceilings or continuing resolutions.

The numbers that matter are found in the polls of public reaction to the ongoing government shutdown, and to the prospect that a bad circumstance could grow dramatically worse with the undermining of the “full faith and credit” of the federal government.

Those poll numbers explain why there has been at least some movement on the part of House Republicans—who engineered the shutdown as part of a scheme to derail implementation of the Affordable Care Act—to back down from their most hardline positions.

The latest data from NBC News and The Wall Street Journal is devastating for the GOP.

Fifty-three percent of Americans surveyed blame the GOP for the shutdown, while just 31 percent blame President Obama. Overall, approval ratings for the president are far better than those for the Republicans, and approval of the Affordable Care Act has spiked since the standoff began.

To the extent that this is a blame game, the Republicans are shouldering the burden. Indeed, their circumstance is far worse than in the shutdown of the mid-1990s. Then, only 44 percent of Americans blamed the Gingrich-led Republicans, while 33 percent blamed then-President Bill Clinton.

But this isn’t merely a blame game.

This is politics. And politics is a competition for power.

So the numbers that really matter are those that suggest there might have been some truth in the July 2013, observation by Congressman Tom Cole, the savvy senior Republican from Oklahoma, that “the only way Republicans will lose the House is to shut down the government or default on the debt.”

To wit:

Forty-seven percent of Americans surveyed for NBC now say they would like to see Democrats take charge of the US House of Representatives.

A mere 39 percent want the Republicans to retain control.

Some recent surveys suggest an even greater swing, with a Quinnipiac University National Poll putting Democrats up nine points.

In the fresh NBC poll, the lean toward the Democrats has increased five points over the past month, as the shutdown fight has evolved. In other words, as this fight has progressed, the Democratic position has improved at a rate of better than one percentage point per week. In politics, that’s a dramatic shift.

Make no mistake, Democrats need just such a shift to even begin talking about taking back control of the US House that they lost in 2010.

To achieve a majority in 2014, Democrats do not just need to win, they need to win big.

The political dynamic in the current House is defined by a combination of gerrymandering, a skewed first-past-the-post election system and big money influence. That dynamic favors the Republicans. Indeed, in 2012, Democrats won 1.7 million more votes than Republicans in House races across the country, yet the Republicans finished the election with a reasonably comfortable 234-201 majority. (With current vacancies, the split is now 232 Republican to 200 Democrats.)

To take the House in 2014—an off-year election where Republicans (as the opposition party to a president who is in his second term) begin not just with structural advantage but with what is traditionally seen as the political upper hand—Democrats would need a substantial shift.

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The Democrats had a 48.3 to 46.9 advantage in 2012. But because most districts are skewed to favor the Republicans, the Democrats moved from 193 seats after the 2010 election to 201 seats after the 2012 election.

Since the district lines will remain essentially the same in 2014 as they were in 2012, Democrats must win not just the handful of districts that favored President Obama while sending a Republican to the House. They need to be competitive in districts that leaned Republican in 2012. That’s unlikely if they merely maintain the 1.4-percent advantage the party gained in 2012. But it could happen if the Democratic advantage moves dramatically upward.

There is a long time between now and the 2014 election. A lot can change. But if the Democrats could reap just half the advantage they now have in the NBC polling—for a 3.5 percent margin over the Republicans in next year’s House races—that would begin to put the most marginal Republican House races in play. And that, despite the extreme impact of gerrymandering, increases the sense of vulnerability among Republicans in more competitive districts.

Those Republicans are starting to feel the heat.

And if the numbers keep moving in the Democratic direction, those Republicans will begin—despite all the pressures from the Tea Party and its wealthy benefactors, despite the very real threat of primary challenges—to start angling for negotiations and compromise. They won’t make a “do-the-right-thing” argument. They will make a necessity argument based on a prospect that did not exist a few weeks ago, that a majority carefully constructed through meticulous gerrymandering might not hold in the face of broad revulsion at obstruction and extremism.

John Nichols calls the Ryan plan to end the budget showdown a “Shock Doctrine” fix.

Paul Ryan’s Shock Doctrine ‘Fix’ for the Budget Stalemate

Paul Ryan. (AP Photo/Carolyn Kaster)

Forget about death and taxes.

If you are looking for certainties in American politics, count on this one: If a crisis of governing develops, the advocates for cutting Social Security, Medicare and Medicaid will arrive with a plan to resolve the “stalemate” by implemeting their favorite “fixes.”

Cue Paul Ryan.

The House Budget Committee chairman has for the better part of a decade been the most determined advocate on Capitol Hill for the Wall Street agenda that says earned-benefit programs should be reshaped as investment vehicles and voucher schemes that will benefit brokers and the health-insurance industry. The key to the project is to get Americans talking about “reforming” popular programs.

Unfortunately for Ryan, his previous attempts to peddle “reforms” have proven to be supremely unpopular—so much so that, when he was nominated in 2012 as the Republican vice presidential candidate, he became a burden on the ticket. His performance in the single vice presidential debate proved to be a comic exercise in the avoidance of his own past positions. And as Election Day approached, Ryan was bundled off to safety Republican states in the South, where his appearances would do no harm. NBC’s Saturday Night Live parodied the Wisconsin congressman’s inability to deliver his home state for the Romney-Ryan ticket. And he actually lost his own precinct, city and county in the industrial city of Janesville where voters began to realize that their representative was more interested in delivering for the financial-services industry interests that fill his campaign coffers than for Americans who rely on Social Security, Medicare and Medicaid.

Ryan’s kept reasonably quiet since the election that saw him run worse than the vast majority of his House GOP colleagues. But now he is back, trying to position himself as the Republican who can heal the great divide in Washington. In a much-discussed Wall Street Journal column—published at the critical juncture between the beginning of the government shutdown that was engineered by his caucus and the beginning of what could be a debt-ceiling standoff—the Budget Committee chairman scopes out what is supposedly a middle ground where Democrats and Republicans might get together an “actually agree on some things.”

What things? “Reforms to entitlement programs and the tax code…”

If that sounds like the austerity agenda that Ryan has been proposing for years, well, yes, it is.

What’s different is that the congressman thinks he can sell his failed ideas now as a way out of an otherwise irresolvable “standoff.” Readers of Naomi Klein’s The Shock Doctrine will recognize the scenario: a politician waits for a crisis to pitch an unappealing and otherwise unacceptable “fix.” Former British Prime Minister Margaret Thatcher employed this approach with her “TINA“—“there is no alternative”—pronouncements about so-called “reforms” of popular programs.

The key to the strategy is to make radical changes sound reasonable and necessary.

Ryan recognizes this.

In his Wall Street Journal op-ed, he buffs the rough edges that got him in trouble in the past. There’s no talk of individual accounts and vouchers.”

But the program remains the same.

“Here are just a few ideas to get the conversation started,” Ryan announces. “We could ask the better off to pay higher premiums for Medicare. We could reform Medigap plans to encourage efficiency and cut costs. And we could ask federal employees to contribute more to their own retirement.”

Translation: means-testing of Medicare. Make way for more price-gouging by the private companies that sell supplemental insurance. Launch a new assault on public employees who have already been hit with wage freezes and furloughs.

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Ryan suggests that the Obama administration has shown some openness to some of these proposals, but that does not mean that the Ryan plan can or should appeal to the American people, or to the House and Senate Democrats who were elected in 2012 to preserve Social Security, Medicare and Medicaid. Or for anyone who thinks that the better program for meeting America’s economic challenges might be to ask the wealthiest among us to pay a little more into Social Security and into the general fund.

Ryan assures his readers that his latest proposal is a sincere effort to end the “stalemate” in Washington—even as he takes swipes at President Obama for “giving Congress the silent treatment.” And he promises: “This isn’t a grand bargain.”

Sly move there. While his proposal may not be a full “grand bargain”—with partial privatization, vouchers and all the other highlights of past Ryan budgets—the plan that the Wisconsin Republican has rolled out is a downpayment on the grand bargain he’s been seeking for years. And, at a political juncture when Ryan’s Republicans can gin up a “crisis” whenever they like, no one should imagine that the congressman and his generous campaign donors are dreaming dreams of a much grander bargain.

Lee Fang introduces the “evangelical cabal” behind the government shutdown.

Yes, Federal Workers Are Essential

A National Park Service employee posts a sign closing access to the Lincoln Memorial following the government shutdown. (AP Photo/Carolyn Kaster)

House Speaker John Boehner says of his government shutdown: “This isn’t some damn game.”

He is right.

When the federal government shuts down, as it has because of Boehner’s decision to play politics with the traditionally perfunctory continuing resolution process, the people that Americans trust to serve the common good and the national interest are sidelined.

Yes, of course, politicians pick on federal employees in general and public workers in particular. But even the most over-the-top members of Congress recognize that a civil society is made possible by dedicated public servants who manage our parks, maintain our highways, process claims for pensions, keep job-training programs up and running, investigate civil rights violations and do their best to protect a fragile environment.

Government workers form the human infrastructure that underpins a great deal of what is good and necessary in the American experiment. We the people care for one another, we take on great challenges, we achieve great things, and we do this by forming a more perfect union and asking some of our fellow citizens to do perform the tasks that are necessary to its maintenance.

Federal workers are essential.

Those workers take on responsibilities that are required by law, in positions established by the Congress, in fields that have been determined to be essential to the maintaining of the American enterprise. Yet, they are now deemed “nonessential”—sent to the sidelines so that John Boehner can play what he certainly seems to be treating as a game.

“People aren’t having a heart attack and don’t need their wounds dressed, but it doesn’t change the fact that what we do over the long term makes an absolute difference to the quality of life in this country,” Carolyn Federoff, an attorney with the Department of Housing and Urban Development in Boston, explained after she was furloughed. “I never doubt that.”

She ought not doubt that.

And she might be intrigued to learn that, while they may not say it in so many words, members of Congress agree. Even the members who are perpetuating the shutdown.

On Saturday, the US House voted 407-0 to assure that federal workers will receive back pay when the shutdown is finished.

This was an admission, from even the most Tea Partisan of Republicans, that federal employees cannot be disregarded. They are needed.

Unfortunately, while federal workers are needed, they are not working.

And this is absurd—not just for workers but for all of us.

Roughly 800,000 federal workers have been furloughed as part of the government shutdown engineered by Texas Senator Ted Cruz and House Republicans to make a point about the Affordable Care act. That’s unsettling for those who are employed by the federal government. National Treasury Employees Union president Colleen Kelley says Federal workers are “unsure when they might be able to return to their federal offices, unsure whether or not they will be able to make their next rent or mortgage payment and frustrated and scared about their future.”

But this is about more than just federal employees.

The communities and the states where federal workers live are hurting, too. The economic uncertainty—and the potential damage to local economies—is real. And potentially devastating.

That’s why it was so right—and so important—for Congress to vote to assure that federal employees will be paid retroactively when the current crisis is resolved.

America cannot afford to lose the value added by public employees.

It is not just the work they do on behalf of the public interest and the great mass of Americans. These workers play a vital role in maintaining the economic viability of communities from Maine to California.

According to a Goldman Sachs study, every day of the shutdown robs the US economy of $400 million in economic activity—because of lost pay. The study estimates that economic growth would slow measurably—perhaps by 0.2 percents points—after just one week of a shutdown.

And the damage is most severe in areas of high government employment.

That explains why Democratic and Republican House members from Virginia and Maryland—centers of federal employment—sponsored a measure to guarantee that furloughed workers will receive their lost pay retroactively.

Maryland Democrats Ben Cardin and Barbara Mikulski joined Virginia Democrats Mark Warner and Tim Kaine to co-sponsor the back-pay legislation, along with House Republicans such as Virginian Frank Wolf.

“Hardworking federal employees did not cause our fiscal crises, nor did they contribute to the legislative gridlock,” says Cardin. “It is our responsibility to assure these public servants, mostly middle class and struggling to get by like so many other Americans, will be made whole again when it finally ends.”

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Congressman Mark Pocan, D-Wisconsin, sums things up when he says, “A shutdown isn’t fun and games; it’s detrimental to our economy and the security of middle class families.”

Pocan’s point is well taken.

It ought to be made more often.

Recognizing and defending the work that federal employees do is essential.

Recognizing the contribution they make to their communities and to the whole of the country is essential.

“Federal workers in Vermont and around the country should not have to pay the price for the House Republicans’ refusal to keep the government open,” says Senator Bernie Sanders, I-Vermont. “These dedicated workers have families to feed and bills to pay and we must make it clear that when this is over they are going to get paid.”

The shutdown is, as President Obama says, a “farce.”

But this farce is harming the people who work for us—federal employees—and it is harming us.

Federal workers have been locked out.

They want to work.

And we need them working.

John Nichols explains how our broken electoral politics led to the shutdown.

Wendy Davis: Yes, She Can

Texas State Senator Wendy Davis filibusters an abortion bill in June. (AP/Eric Gay)

Yes, Wendy Davis is making an uphill run for governor of Texas.

She’s a progressive, pro-choice woman with a dramatic personal story, who made her name fighting the powers that be. As such, she does not fit the currently accepted image of a winning statewide candidate in a place where, as Molly Ivins noted, there has been a tendency to elect “good ol’ boy” governors.

But Davis has some history on her side.

And that history counters the narrative of those who would write her off.

If Davis gets Texas voters excited, if she gets them to engage—and re-engage—her candidacy could change the politics of the Lone Star State. A win would be transformational. A strong showing would be transitional.

The key to the calculus is the excitement factor. Can the woman who this spring excited tens of thousands of Texans enough to get them to come to the state capitol to back her filibuster of an assault on reproductive rights now excite hundreds of thousands who don’t usually cast ballots in off-year elections to come vote?

It has happened before.

Less than a quarter-century ago, a populist coalition led by a bold Democratic woman who boldly promised a new politics and a “new Texas” won the governorship. And they did so by boosting turnout, especially among the historically neglected and disenfranchised voters that formed the candidate’s base.

In the gubernatorial election of 1990, Ann Richards replaced a two-term Republican governor, Bill Clements, and beat an exceptionally well-funded and well-connected Republican nominee, Clayton Williams.

The 2014 race to replace retiring Governor Rick Perry is the first open-seat Texas gubernatorial contest since 1990.

If 2014 is a Republican wave year—like 1994, when Richards was removed from office by a Republican upstart named George Bush, or like 2010—then Davis will have a very hard time. To deny that would be foolish.

But if 2014 is a more typical election year—and especially if it is an election year that sees turnout spike among young voters, African-Americans, Latinos and women—it would be foolish to dismiss Davis.

As foolish as it was to dismiss Ann Richards.

Back in 1990, Richards was—like Davis today—an outspoken state official who had made a name by challenging Democratic insiders and Republican money interests. She faced a tough primary to get the party nod, with fellow Democrats suggesting there was just no way Texans were going to elect a woman who absolutely and unequivocally defended the rights of women—especially their reproductive rights—and who was serious about empowering communities that had traditionally been neglected.

The Democratic primary and run-off in 1990 were vicious affairs, with opponents attacking Richards in the crudest and most personal ways. They didn’t just suggest that she was too liberal; one foe ran TV ads that suggested she was “soft” on capital punishment, while another accused her of having drug problems.

Richards won a brutal Democratic runoff race, but she went into the general election with a divided party and a deficit in her campaign treasury. Her Republican foe, Williams, was on the attack and, while he bumbled at several turns, he was rich enough to “own” the airwaves—outspending the Democrat two to one.

Yet, when the votes were counted, Richards won by a 100,000-vote margin, for a 49-47 finish.

What was her secret?

Ann Richards ran as Ann Richards. She was didn’t pull punches or tailor her message to fit the demands of campaign consultants.

Richards was proudly pro-choice. She promised to veto legislation that attempted to limit access to reproductive health services. Her campaign proudly circulated a letter from pro-choice activists that identified the Democrat as a champion in the struggle to defend abortion rights.

Richards defended voting rights. She advocated for low-income Texans and people of color. And she was blunt. Very blunt.

“Power is what calls the shots, and power is a white male game,” said Richards.

She made points that made sense to working women of every race and ethnicity.

“They blame the low income women for ruining the country because they are staying home with their children and not going out to work,” explained Richards. “They blame the middle income women for ruining the country because they go out to work and do not stay home to take care of their children.”

Ann Richards made so much sense, and she made it so boldly, so unapologetically, that voters who had grown frustrated with the process got engaged again. And new voters got excited.

Turnout was high on November 6, 1990—roughly 51 percent, as compared to 47 percent four years earlier. And the difference provided the margin by which Richards won.

Turnouts are nowhere near that these days. In 2010, just 38 percent of registered voters cast ballots for governor of Texas. In 2006, it was just 34 percent.

Richards got more people to the polls. And she got their votes, sweeping the communities she has spoken to, and spoken for. Sixty percent of women who came to the polls backed Richards, as did 65 percent of Hispanic voters and 90 percent of African-American voters.

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“She represented all of us who have lived with and learned to handle good ol’ boys,” recalled Ivins, “and she did it with laughter.”

It is often suggested now that, at some point in the none-too-distant future, Texas will “tip” into the Democratic column as women and people of color form a new majority that beats the “good ol’ boys” at the “white male game.”

But the fact is that Texas tipped almost a quarter-century ago. And then it tipped back.

Of course, there are differences between Wendy Davis and Ann Richards.

And, yes, of course, a lot has changed since 1990. The old Democratic courthouse establishment in all those Texas counties has, in many instances, become the new Republican courthouse establishment. The population of Texas has grown dramatically, and the demographics have shifted dramatically.

Some old truths remain, however.

Politics is supposed to be exciting. It is supposed to mean something. It is supposed to present real choices—choices that matter enough to get people to the polls.

Ann Richards practiced the politics of high expectations and high turnouts.

There is good reason to believe that Wendy Davis can do the same.

Yes, of course, Davis will be attacked—crudely, viciously. And, though she has a significant fund-raising network in Texas and nationally, Davis will be outspent. Dramatically.

There is no way she will win by running a cautious or apologetic campaign.

There is no way she will win by trying to identify the mythical center of Texas politics. As Jim Hightower, who won two statewide elections in Texas in the 1980s, reminds us, “There’s nothing in the middle of the road but yellow stripes and dead armadillos.”

The key to the 2014 election in Texas is going to be turnout. And the key to turnout is excitement, drama, a sense that something new is possible. Or, perhaps, something old.

Texas Democrats have not prevailed in a gubernatorial race since Ann Richards won an uphill contest in which many suggested she did not have a chance. But Texas Democrats have not has a candidate with the record, the determination and the popular appeal Ann Richards since then. Now, perhaps, they do.

Katha Pollitt calls Wendy Davis her “superhero” after Davis’s bold abortion-bill filibuster.

America Gets Primaried

(Courtesy of Flickr user brownpau. Licensed under Creative Commons.)

Very early Tuesday morning, just after the Office of Management and Budget told agencies to begin “the orderly shutdown” of the federal government, a frustrated Harry Reid went to the floor of the United States Senate.

The Senate—with its Democratic majority and its reasonable number of reasonable Republicans—stood ready to take action to prevent the shutdown from moving forward, he said.

But, the Nevada Democrat admitted, there was no indication that the Republican-controlled House of Representatives was prepared to join in a serious discussion.

Of the House Republicans, Reid said: “It is embarrassing that these people (who) are elected to represent the country are representing the Tea Party.”

Reid was griping.

But, to the extent that he is using the term “Tea Party” in the broadest sense—to refer to the money-and-media election complex that has developed to “police” Republican primaries—he was also stating the essential fact of the political moment.

There are a good number of reasonable Republicans in the House.

But they are not prepared to be reasonable. Though their party has little chance of prevailing in the quixotic bid to “defund Obamacare” via the government shutdown that began at midnight, it was too much to ask that they speak that “emperor-has-no-clothes” truth at the critical moment.


It is not because the American people have embraced the Ted Cruz fantasy. While it is true that many retain doubts about the Affordable Care Act, the broader issue of whether to halt its implementation was litigated last year.

The point of the 2012 election was clear enough. In case anyone missed it, the “numbers guy” in the House Republican Caucus, Budget Committee chair Paul Ryan, R-Wisconsin, joined the Republican ticket to make everything crystal clear.

“We made this campaign about big ideas and big issues,” said the 2012 Republican vice presidential candidate.

He was right.

Republicans offered their alternative to the American people.

And they lost.

Ryan and Romney lost the popular vote by 5 million votes.

Ryan and Romney lost the Electoral College by an overwhelming 332-206 margin.

Ryan and Romney lost every swing state except North Carolina.

Obama got the mandate—a bigger percentage of the popular vote, in fact, than Presidents Kennedy in 1960, Nixon in 1968, Carter in 1976, Reagan in 1980, Clinton in 1992 and 1996 and Bush in 2000 and 2004.

And the mandate went beyond the presidential race.

Democrats were expected to lose seats in the US Senate. Instead, they added two seats and won the popular vote for contested seats nationally by more than 10 million votes—ending up on the winning side of a 54-42 split.

Democrats also won the popular vote for US House seats by 1.7 million votes. In other words, gerrymandering and electoral processes that do not always produce a clear reflection of popular sentiment kept Paul Ryan, Eric Cantor and John Boehner in positions of leadership.

These are the undeniable facts of the 2012 election.

But there is an equally undeniable fact.

The same gerrymandering that helped Republicans to secure control of the House even when they lost the popular vote now defines the chamber. After the Republican wave of 2010, the new governors and legislators of states across the country drew Republican-friendly lines for House districts.

But they did not draw them a little Republican-friendly. They drew them a lot that way.

Contrasts between the Republican Congress of 1995–96, which forced the last government shutdown, and the Republican Congress of today, are stark.

The House Republican majority at the time of the last shutdown was 236. Now, it is a comparable 232.

But that’s where the comparisons stop.

National Journal reminds us that

* Back in 1995, 79 House Republicans represented districts that voted for Bill Clinton in the 1992 presidential election. Today, a mere 17 House Republicans represent districts that voted for Barack Obama in 2012

* Back in 1995, 141 House Republicans represented districts where the Republican presidential vote was at or below the 55 percent level. In effect, these were potential swing districts. Today, just 71 House Republicans represent even potentially swing districts where Mitt Romney attracted less than 55 percent of the 2012 vote.

* According to The Cook Political Report’s Partisan Voting Index, the average GOP House member represented a district with a 6.6-point Republican electoral advantage. Today, the figure is 11.1 percent.

A misread of those numbers imagines that everyone who represents an overwhelmingly Republican district is a hyper-partisan Tea Party activist who would never entertain the notion of compromise. In fact, many of the districts are represented by senior Republicans who were around for the 1995–96 showdown and embraced the negotiations that settled it—members like Wisconsin’s Tom Petri and Michigan’s Fred Upton.

They would, undoubtedly, do so again. Indeed, there are dozens of Republicans who would be prepared to end the madness of the moment.

But they cannot do so—for fear of being “primaried.”

In overwhelmingly Republican districts, the threat of a general election defeat—at the hands of swing voters infuriated with extremist stances and general dysfunction—is slim. But the threat of a primary challenge, and defeat, is real. With national networks of right-wing donors at the ready to fund runs against so-called “Republican-in-Name-Only” incumbents, the threat is amplified.

Upton, once considered a relative moderate, has faced repeated Republican primary challenges in his southwestern Michigan district. In 2010, the congressman got a wake-up call when his right-wing foe won 43 percent of the Republican primary vote. Upton got the message. He has moved steadily to the right, and that has provided him with some ideological insulation. But were he to emerge now as a supporter of compromise and cooperation, he would be in serious political trouble.

The same goes for Petri in Wisconsin and dozens of other Republican members. As Congressman Tim Ryan, D-Ohio, says, GOP colleagues who know better must embrace the shutdown politics “make it out of a Republican primary.”

The combination of gerrymandering, winner-take-all elections and big-money national politics has done more than establish a political landscape where Republicans have significant advantages in races for control of the House. It has established a landscape where reasonable Republicans are afraid to be reasonable.

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The prospect of being “primaried” matters more than the threat of punishment at the polls in November.

So Republicans who might once have sought common ground now refuse to do so.

They are protecting their political prospects. And it will probably work for them.

They won’t be “primaried.”

Rather, America is being “primaried.”

That’s the root of the crisis. And it provides a reminder that, if Americans want Washington to function, they had best establish election systems that allow the great mass of Americans to have their say—not the tiny percentage of voters who decide primaries in overwhelmingly Republican districts.

Groups like Common Cause and FairVote have for years been shouting out the pathologies creating by gerrymandering and a winner-take-all politics where most Americans are shoved to the sidelines. They’ve always been right. But they have often been dismissed as “good-government types” who are too much concerned with process and too little concerned with immediate political and governing crises.

Now, the pathologies they warned about are the crisis.

John Nichols shows how the government shutdown highlights the need for DC statehood.

Amid Shutdown Scrambling, a Powerful Reminder That DC Should Be a State

(AP/Pablo Martinez)

If the federal government shuts down because of the shenanigans of John Boehner and his congressional minions, most American cities will muddle through. They control their own budgets and have the power to tax and spend at sufficient levels to manage even when federal officials cannot seem to do so.

But it's different for Washington.

The residents of the capital city of the United States are not merely denied elected representation in the United States Congress—creating a classic “taxation without representation” circumstance. They are denied the sort of budget autonomy that would allow the district’s elected officials to easily -- without controversy or even comment -- access funds and resources needed to maintain local services.

“The city is an innocent bystander in this federal fight, but a local D.C. shutdown will amount to a great deal more than collateral damage,” says Congresswoman Eleanor Holmes Norton, the veteran civil rights activist who represents the District of Columbia as a non-voting delegate.

DC officials have emergency plans to maintain services—with Mayor Vincent Gray declaring all government operations essential and DC Council Chairman Phil Mendelson developing legislation to pay the 32,000 municipal employees from the district’s contingency cash reserve fund. Gray says that “everything the District government does—protecting the health, safety and welfare of our residents and visitors—is essential.”

This is a strategy that relies on creative reading of the federal Antideficiency Act. It may work, at least in part because, as Washington Post columnist Robert McCartney notes, there is no history of prosecuting local officials under the act and it’s unlikely the Obama administration’s Department of Justice “would decide to start charging people now.”

“President Obama, along with practically all Democrats and many Republicans, supports extending to the District the right enjoyed by the 50 states to spend money without waiting for Congress’s approval,” observes McCartney. “It hasn’t happened because other Republicans are worried about giving up their power to use the District budget to push cherished causes, such as blocking abortion funding or helping people get guns.”

That tendency to play games with regard to the District of Columbia creates lingering concerns, however.

So Norton has been scrambling to get House and Senate leaders to agree to a deal—like the one she arranged out with former House Speaker Newt Gingrich during the federal government shutdown of late 1995 and early 1996—that would allow Washington’s city government to maintain operations if Congress cannot reach a broader agreement on a continuing resolution.

“The Republican CR containing Obamacare may have a point to make, but shutting down the D.C. government is pointlessly destructive to the nation’s capital,” says Norton. “No member has ever indicated he or she wanted D.C. to shut down, many members are unaware that our local budget even comes to Congress, and most members do not know that the city government would be caught up in a federal shutdown. With the multiple steps we are taking, our goal is to convince the Congress that D.C. does not even rise to the rank of a hostage in this struggle between the administration and the Republican Congress. The city is irrelevant to any solution that might be needed. Since none of the parties has anything to gain, the least the city is entitled to is being allowed to remain open for all of the 2014 fiscal year.”

Norton is right, and she’s found sympathy for her arguments even among some key Republicans, such as House Oversight and Government Reform Committee chair Darrell Issa, R-California. But as a shutdown looms, tensions are rising since, as Senate Homeland Security and Governmental Affairs Committee chair Tom Carper, D-Delaware, even a short government shutdown would have a “swift and severe” impact on the district.

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Ultimately, this crisis within a crisis provides a reminder of the absurd circumstance of the District of Columbia.

Residents of Washington are taxed. They are subject to federal laws. They serve in America’s wars.

Yet, they have limited control over their own affairs and—despite Norton’s best efforts—a constrained voice in Congress.

The remedy is not complicated.

The District of Columbia should become an American state.

According to the latest Census estimates, the district has a larger population than two states—Vermont and Wyoming—and a larger level of economic activity than 16 states.

More than 40 years ago, then President Richard Nixon urged Congress to address the district’s circumstance, saying, “it should offend the democratic sense of this nation” that the residents of the nation’s capital city were then denied a voice in Congress and control over their own affairs.

The passage of time only makes the offense more severe and—as US politics grows more petty and petulant—more threatening to the taxed-but-not-represented residents of the District of Columbia.

Read Greg Mitchell on the “Disgrace” of shutdown media coverage.

Marriage Equality Fight Confirms (Again) That Chris Christie is No Moderate

Chris Christie is a committed social conservative whose reputation as a “moderate” is a manufactured political fantasy that the governor of New Jersey will abandon as soon as he begins bidding for the 2016 Republican presidential nomination.

But to make that 2016 run, Christie must be re-elected this November as governor of the socially liberal state of New Jersey. Only then can he pivot right and pitch himself as a sufficiently conservative candidate for Republican caucus participants in Iowa and primary voters in South Carolina.

So Christie must maintain the fantasy until November 5.

And that task just got a little harder.

On Friday, a New Jersey judge ordered state officials to begin allowing same-sex couples to marry starting October 21.

Concluding that the state’s existing civil union system wrongly deprives lesbian and gay couples of federal benefits that are available to married couples, Mercer County Superior Court Judge Mary Jacobson wrote, “Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey constitution.”

The ruling is historic. In June, the US Supreme Court invalidated the federal Defense of Marriage Act, in a decision that cleared the way for same-sex couples to receive the same federal benefits that are available to heterosexual couples. If it is upheld, Judge Jacobson’s ruling will make New Jersey the first state to establish marriage equality in response to the US Supreme Court’s ruling and its aftermath.

But Chris Christie has decided to stand athwart history, yelling “Stop.”

Immediately after Judge Jacobson’s ruling was made public, the governor’s office announced plans to appeal it to the state Supreme Court. If Christie’s lawyers appeal prior to October 21, the courts could issue a stay that would at least temporarily maintain the barrier to same-sex marriages in New Jersey.

That’s fine by Christie. He has already vetoed marriage equality legislation passed by the New Jersey legislature.

Typically, Christie has tried to have it both ways. Though he has gone out of his way to block same-sex marriages from taking place in New Jersey, he says he would abide by a referendum vote in favor of marriage equality. But there is nothing “moderate” about arguing that basic rights should be submitted to the whims of the electorate.

A referendum vote would very probably support same-sex marriage—polling suggests New Jerseyans favor marriage equality by a 60-31 margin. So why doesn’t Christie just accept the court’s ruling? Because he does not want those social conservatives in Iowa to think he cleared the way for fair treatment of lesbians and gays.

Christie’s challenger, Democrat Barbara Buono, is playing no such game.

She hailed the judge’s ruling as an affirmation “that all New Jerseyans, no matter who they love, deserve the right to marry.”

“It is also a stark reminder that Governor Christie stands on the wrong side of history,” added Buono. “At every turn, he has prevented our gay brothers and sisters from enjoying the same rights as other New Jerseyans. He must now make a decision whether to continue to be an obstacle or to be part of the solution.

Christie’s big-money re-election campaign, which highlights that carefully constructed “moderate” image, has kept the governor well ahead in the polls. And there is no question that Buono’s run remains an uphill one. But with the election barely a month away, she’s been handed an opportunity to confirm Christie’s conservatism—a conservatism that polls say puts him distinctly at odds with the vast majority of New Jerseyans.

As that distinction becomes clear, Buono argues, Christie’s cynicism might yet be his undoing.

“People have not been focused on the election,” Buono told radio host Michelangelo Signorile this week. “But when people get informed, and they learn that there is only one person standing between them and gay marriage and it’s Chris Christie then I think the polls will grow closer.”

House GOP Debt-Ceiling Plan: Paul Ryan’s Losing Ideas From 2012

Paul Ryan promotes his budget plan in 2011. (AP/J. Scott Applewhite)

Was there a presidential election in 2012? Yes.

Who won? Barack Obama.

Who was elected vice president? Joe Biden.

Who lost for president? Mitt Romney.

Who lost for vice president? Paul Ryan.

Cool, just wanted to get that straight.

The latest scheme from House Republicans might have confused folks.

House Speaker John Boehner, House Majority Leader Eric Cantor and House Budget Committee chairman Paul Ryan are not quite done threatening a government shutdown as part of the “Defund Obamacare” debacle. But they are already on to their next project: holding hostage any agreement to allow the debt-ceiling to rise.

Traditionally, increases in the debt ceiling to pay for spending that has already been agreed to have been approved with little debate and less opposition. This is how the “full faith and credit of the United States” is maintained, and that’s not the sort of thing that serious political leaders on either side of the partisan divide want to turn into a political football.

But no one accuses Boehner and Cantor of being serious about anything but political games. So, in advance of the mid-October date when an adjustment will be required, they are advancing a new plan—already vetted by the lobbyists on K Street—that would exchange a one-year lifting of the debt ceiling for:

  • a one-year delay of Obamacare

  • means testing of Medicare and other so-called “entitlement reforms”

  • sweeping tax reforms

  • pro-corporate tort reforms, including limits on medical malpractice lawsuits

  • approval of the Keystone XL oil pipeline

  • approval of offshore drilling

  • the undermining of regulations on business

  • moves that that likely to weaken the Consumer Financial Protection Bureau

  • elimination of net neutrality protections for a free and open Internet

“The bill the Republicans propose to put on the floor this week is nothing but a wish list of unrelated and partisan policies they know won’t go anywhere. As a result they are taking their country’s credit hostage to their own small agenda,” House Democratic whip Steny Hoyer, D-Maryland, explained Wednesday.

What’s notable is that this is not a fresh wish list.

It is, essentially, the program Mitt Romney and Paul Ryan ran on in 2012. Romney’s been sidelined—and even blamed by Heritage Foundation head Jim DeMint for failing (because of the Romneycare precedent) to “litigate the Obamacare issue.” But Ryan, the Republican Party’s “idea guy,” remains in the thick of things, and his fingerprints are all over the Republican debt-ceiling demands—just as they were all over the Republican Party’s 2012 platform.

New York magazine’s Jonathan Chait mocks the House Republicans with the astute observation that they are advancing “Romney’s agenda on taxes, regulation of the environment, finance and other business, Medicare, tort reform. That’s their opening demand: implement Romney’s economic plan or melt down the economy.”

The key thing to understand, however, is that the House Republicans did not have to open the Romney playbook for a refresher. They simply turned to Romney’s running mate, who remains a definitional player in their caucus.

That brings us to next question: What is Paul Ryan’s mandate?

After the 2012 election, Ryan chirped: “We made this campaign about big ideas and big issues, which is the kind of campaign we wanted to run, so we ran the kind of campaign we wanted to run.”

True. Ryan’s ideas were front-and-center in 2012.

President Obama acknowledged as much.

“Because our budget reflects our values, it’s a reflection of our priorities,” the president declared on election-eve. “And as long as I’m president, I’m not going to kick some poor kids off of Head Start to give me a tax cut.”

“If we’re serious about the deficit, we can’t just cut our way to prosperity,” Obama explained. “We’ve also got to ask the wealthiest Americans to go back to the tax rates they paid when Bill Clinton was in office.”

Given a clear choice, the voters sent a clear signal.

Ryan and Romney lost the popular vote by 5 million votes.

Ryan and Romney lost the Electoral College by an overwhelming 232-206 margin.

Ryan and Romney lost every swing state except North Carolina.

Despite what Paul Ryan might now choose to imagine, his side lost the battle of budget proposals.

Obama got the mandate—a bigger percentage of the popular vote, in fact, than Presidents Kennedy in 1960, Nixon in 1968, Carter in 1976, Reagan in 1980, Clinton in 1992 and 1996 and Bush in 2000 and 2004.

To say otherwise is to deny the results of the 2012 election.

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Paul Ryan can try if he wants.

But he should remember what happened when he peddled a fantasy about the closing of that Janesville General Motors plant.

After Ryan tried to blame President Obama for a closure was put in play during the Bush presidency, and that resulted from trade and economic policies that Ryan supported, his neighbors in Janesville pushed back.

Ryan lost Janesville, as a vice presidential candidate and a candidate for reelection to his congressional seat.

Ryan lost surrounding Rock County, as a vice presidential and a congressional candidate.

Ryan and Romney lost Wisconsin—by such a resounding margin that NBC’s Saturday Night Live made light of the home-state rejection on the weekend after the election.

But it wasn’t just Wisconsin, and it wasn’t just the top of the ticket.

Democrats were expected to lose seats in the US Senate. Instead, they added two seats and won the popular vote for contested seats nationally by more than 10 million votes—ending up on the winning side of a 54-42 split.

Democrats also won the popular vote for US House seats by 1.7 million votes. In other words, gerrymandering and electoral processes that do not always produce a clear reflection of popular sentiment kept Ryan, Cantor and Boehner in positions of leadership.

Now, they seek to use those positions to make debt-ceiling threats, with the purpose of implementing an agenda that was rejected by the American people. Which brings us to the final question: What was the point of the 2012 election if the will of the people can be thwarted by the politicians whose “big ideas” failed at the polls?

John Nichols slams Ted Cruz’s “fake-bustering” to defund Obamacare.

Fake-Bustering Ted Cruz Has a Plan to Get the America He Wants: Minority Rule

Ted Cruz, R-Texas (AP/J. Scott Applewhite)

Ted Cruz has figured out how to get the America he wants: he wants to impose minority rule.

No, not majority rule, minority rule.

The senator from Texas hatched a “plan” to “defund Obamacare” by threatening to shut down the federal government. He got a lot of true-believer conservatives—especially in the Republican-controlled US House—to buy into the scheme. But the Texan never rounded up significant support for his approach in the upper chamber.

The whole defunding scheme—which was never grounded in budgetary reality—has begun to look more and more like the sort of mess that costs political parties seats.

So the senator who made the mess is now on Cruz control.

He's trying whatever comes into his head -- like an all-nighter talkathon (a "fake-buster") that saw him reading Dr. Seuss and Ayn Rand as Tuesday gave way to Wednesday. At best for Cruz, it's a delaying tactic. At worst for Cruz, it slows action just long enougfh to assure that "crisis" votes will have to be taken by House Republicans on the eve of a government shutdown.

Above all, the exercise highlights the Texan's isolation from his own party, which for the most part is not backing his strategy. And from the process of governing as it has been understood across American history.

Senator Christopher Murphy, D-Connecticut, who drank Red Bull as he presided over the Midnight session referred to the Cruz performance as "this pointless fairy tale non-filibuster."

More precisely, Murphy said early Wednesday morning: “There’s no point to this other than advancing the career of one or two senators."

Actually, only one senator: Ted Cruz.

Critics of Cruz -- some Democrats, lots of Republicans -- suggest that this fight has always been about the senator's political ambition.

After Cruz waged a national campaign to get the House to follow his strategy, and after they did indeed vote as he said they must, the Texan acknowledged that Senate Democrats could simply strip the House’s defunding language from the continuing resolution, pass a measure that would avert a shutdown and call the House’s bluff.

Even as Cruz was abdicating responsibility his own strategy, he was telling House Republicans to “stand firm.”

They were incredulous.

Congressman Sean Duffy, a Wisconsin Republican who voted for the House version of the plan, said on The Laura Ingraham Show, “I think the strategy that Ted Cruz has been advocating for—it’s really hard to win when you can’t get the Senate on board and he’s proving that by the very nature of his surrender.”

But Duffy wasn’t finished.

“You can’t talk to the American people, you can’t talk to our bases on this strategy, and then completely roll over,” he said of Cruz. “Thank God he wasn’t there fighting at the Alamo!”


That’s not the kind of talk that Canada’s not-so-favorite son in the 2016 Republican presidential race likes to hear.

So Cruz has been winging it.

He's talking and talking and talking.

And he's proposing a new strategy to get what he wants: End majority rule.

We’re not talking the back-door strategy of faux filibuster gamesmanship. Cruz wants Senate majority leader Harry Reid, D-Nevada, to save him from the slings and arrows of his fellow partisans.

Reid plans to have the Senate vote Wednesday on removing the Obamacare language from the continuing resolution. The proposal will be rejected, handily and with a clear majority.

But Cruz is asking Reid set a sixty-vote threshold for the vote addressing the defunding issue.

“The Senate, generally on controversial votes, we work out an agreement for it to be subject to a sixty-vote threshold,” Cruz declared on Fox News Sunday. Otherwise, “the majority is going to run the minority over with a train.”

Cruz is wrong on principle: the majority should rule.

And he is wrong on the facts of how the Senate operates when dealing with controversial legislation, amendments and nominations.

During the gun-safety debate that played out earlier this year with regard to the Safe Communities, Safe Schools Act of 2013, a stack of amendments passed or failed on votes of 52-48, 54-46, 57-43 and 58-42. And the history of the Senate is filled with instances where major legislation advanced by relatively narrow majorities.

Justice Samuel Alito sits on the US Supreme Court based on a 58-42 vote.

Justice Clarence Thomas was confirmed by a 52-48 vote.

Senate Democrats (and at least a few Republicans) might have been quite pleased to operate under Cruz’s sixty-vote threshold for those controversial confirmations. But no such standard applied in 2006, when Alito was up for confirmation; nor did it apply in 1991, when the Thomas nomination was being considered.

The Cruz model for minority rule exists in the head of Ted Cruz.

But it cannot be found in the Senate rules.

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Reid says he plans to follow “basic Senate procedure” when it comes to the continuing resolution.

The majority leader does not appear to be getting substantial pushback on that position from Senate Republicans. Senate minority leader Mitch McConnell, R-Kentucky, and Senate Republican whip John Cornyn, the senior senator from Cruz’s homestate of Texas, have distanced themselves from Cruz’s latest gambit. And one of the most serious conservatives in the Senate, Oklahoma Republican Tom Coburn, says Cruz is “not realistic” and of the Texan’s overall strategy, “It’s not a tactic that we can actually carry out and be successful.”

A high-ranking Democratic aide says of Cruz, “No one is taking him seriously on this.”

No one should.

The Senate ought to be a deliberative body.

It ought to have thoughtful debates, extended debates.

But, ultimately, the Senate is a legislative chamber in the federal government.

It must legislate and govern.

And it cannot be the plaything of petty partisans who seek to rewrite the rules in order to avoid accountability within their own party caucuses.

This is not about Democrats and Republicans. This is not about liberals and conservatives. It is not even about Obamacare.

It’s about Cruz.

And a plutocratic fantasy that says the United States should be governed not by the majority of citizens or senators but by a minority. Perhaps even a minority of one Tea Party cowboy from Calgary.

John Nichols and Robert W. McChesney examine the special interests that dominate our "dollarocracy."

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