Monthly Archives: December 2022

S-Day at the House

By tmess2 | Published December 31, 2022

The new Congress convenes on Tuesday.  After the new members are sworn in (including that con artist from Long Island), the first task of business of the House of Representatives is the election of the Speaker.  [CORRECTION:  Before new members are sworn in.]

Traditionally, the election of a speaker has been a formality.  The majority party votes for their chosen speaker, and the speaker is elected on the first ballot.  But, like a southern primary, the election of the speaker requires that a candidate get a majority of the votes (not counting those who vote present).  And representatives have become more willing to vote for a “third” candidate or vote present.  When a party has a working majority, a small segment of the party expressing disagreement over their party’s choice for speaker is simply a statement.  But when a party has a narrow majority, defectors can cause problems.

When the House convenes on Tuesday, the Republicans will have a 222-212 majority (due to the vacancy in Virginia which will not be filled until February).  There are a significant number of (anti-)Freedom Caucus members who think spineless Kevin McCarthy is not sufficiently wacko to be Speaker.  On Tuesday, we will find out if that number is fewer than five (in which case it does not matter) or more than ten (in which case McCarthy will not have a majority on the first ballot) and whether these members will vote for an alternative candidate (in which case five would block McCarthy) or abstain (in which case eleven would make Hakeem Jeffries the speaker). Continue Reading...

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Post-COVID Health Care

By tmess2 | Published December 26, 2022

We are now almost three years into dealing with COVID. Between changes to the virus and the development of vaccines, COVID has become one of those serious diseases that we just have to deal with rather than an all consuming emergency. But the response to COVID has created a political firestorm that will take years for our system to adjust.

Prior to COVID, those outside of county health departments (and their attorneys) rarely paid much attention to the laws in place to deal with contagious diseases. One of the major problems in our government (at all levels) is that (especially in those states with part time legislatures) is that nobody pays much attention to laws on the books until flaws in those laws create a serious problem. As a result, in many areas of the country, the laws still reflect a very traditional approach to pandemics and potential pandemics. For the most part, those laws allowed quarantine of sick patients and local restrictions designed to prevent the spread of disease. At the national level, quarantines of incoming travelers could also be imposed to assure that nobody was bringing in diseases.  (With all modes of travel being, compared to modern times, relatively slow, the potential for an extended quarantine was simply assumed in the planning for a business trip (and social travel of long distances was simply not common). 

These laws made sense in the nineteenth century. A significant part of the population lived in rural areas where it was easy for a family that had smallpox or similar life-threatening disease to isolate for a period of time.   And for people who lived in town, it was possible to get needed supplies to the quarantined homes by simply leaving them outside the home to be picked up after the delivery person left.  More significantly, travel was very limited and the number of jobs that were “essential” were relatively few.  While there were exceptions to the rule, goods that had to be transported from one part of the country to another tended to be more in the nature of luxury goods rather than necessities.  In short, it was possible to have a degree of success in stopping the spread of diseases by imposing strict quarantine rules without causing much of an impact on the economy.   And because of the limited contact between different parts of the country, the area subject to quarantine at any one time would be very limited as well.

In one of those coincidences, the science of fighting disease progressed somewhat faster than the science of transportation.  By the time that the car and the jet made it possible to have social travel between countries and for business people to hit six major cities in three countries within the same week, vaccines made most of the previously common deadly communicable diseases relatively rare.  In my personal experience, as an attorney to a county government, I can only remember quarantine coming up a handful of times, and some of those discussions were merely periodic reviews of policies and planning for worst case scenarios.  Because of the progression of medical science, the laws on quarantine became an “in case of emergency” backstop that were almost never used. 

Meanwhile, the changes to the global economy caused by the improvements in transportation have increased our dependency on products made by other people.  And urban/suburban vs. rural population has essentially flipped from urban areas representing around 20% of the national population prior to the Civil War to the rural population now fast approaching only 20% of the total population.  Continue Reading...

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That Senator From Arizona

By tmess2 | Published December 11, 2022

Just as Democrats were celebrating victory in Georgia, Senator Krysten Sinema from Arizona kicked off the 2024 election season by announcing that she was switching her registration from Democrat to Independent (or to use the Arizona terminology “Party Not Designated”).  With nothing else to talk about, barring any major developments in the lame duck session, here are my two cents on what is going on.

First, this decision will not change much in the U.S. Senate.  An old state representative from my area used to say that the most important vote that a representative cast was their vote for speaker on the first day of the session.  The party that won that vote would control the committees and the floor of the House (and, with them, would determine which bills would come up for a vote).  Similarly, for the Senate, that initial vote in January on the organization of the Senate is a big deal.  And Senator Sinema appears to still be intending to caucus with the Democrats and will support an organizational plan that reflects a 51-49 Democratic majority.  And, whether she is technically Senator Sinema (I-AZ) or Senator Sinema (D-AZ), her vote on individual bills is unlikely to change.  (And both due to the filibuster and the Republican majority in the House, the only thing getting through the next Congress will be consensus bills on which her vote will not matter.)

Second, one of Senator Sinema’s alleged reasons for the switch is that she is upset that the party leadership did not do more to protect her from pressure form progressives.  If that is true, Senator Sinema is too thin-skinned to be in the Senate.  The job of activists is to get the legislation that they want passed.  They are going to try to convince “friendly” or “persuadable” Senators to support that bill by any means available.  I’ve worked most of my adult life in various government offices.  Even though our decisions are not political (policy is made at other levels and we just apply it to individual cases), the electeds who I have served regularly get blowback over those decisions based on incomplete reporting of the facts.   To paraphrase President Truman, if you can’t stand the heat, get out of politics.

Third, the real reason seems to be an effort to avoid a primary and block the Democrats from running a candidate.  Based on her current approval rating, Senator Sinema was very vulnerable to a primary.  Even if she somehow survived a primary, a reasonable Republican would have a good shot at taking the seat.    But in a three-way race, a nutty Republican (Ms. Lake, Mr. Masters, Representative Biggs, Representative Gosar) would probably win.  In recent elections, even nutty Republicans have been getting over 45% of the vote.  If the Democrats ran a serious candidate, that candidate would almost certainly get over 30% of the vote.  But Senator Sinema would have a serious chance of getting 10% or more of the vote, flipping the seat to Republicans.

To the extent that the switch was a gambit to keep the Democrats from running a serious candidate, the initial reaction from potential Democratic candidate seems to show that the gambit failed.  There are several serious contenders who seem to exploring a campaign.

What is left is what will Democrats do to convince Senator Sinema that she should not run.  It looks like her Senate career is coming to a close, but Senator Sinema’s history shows that she is not a team player.  The only reason why she would not make a futile effort at running for another term would be if she left the Senate to do something else — preferably something that would not expire at the end of President Biden’s term in office.  I do not all of the options in play,, but, with a Democrat as governor in Arizona who can appoint a solid candidate to serve in the Senate if Senator Sinema decided to resign, Senator Schumer and President Biden should be exploring the possibilities.

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Georgia Runoff

By tmess2 | Published December 4, 2022

The last election of 2022 will conclude on Tuesday with the runoff election for U.S. Senator in Georgia.    While there are still some races that will go to recounts, all of the statewide and congressional races seem to be outside the margin at which a recount could make a difference.  (There are three races with margins between 500 and 600 votes — Arizona Attorney General, California Thirteenth District, and Colorado Third District.  In the Minnestoa Senate recount in 2008, the net swing from the original results to the recount results was 450 votes with an additional 87 votes gained in the election contest.  The closest of the three races going to recount is 511.   While other recounts have resulted in bigger swings, they were in races with bigger margins and Minnesota remains the largest swing that changed the results of a race.

The significance of the Senate race is not quite as big as it was in 2021 due to the Republicans apparently taking the House (but the Republican’s inability to reach a consensus on the next Speaker will be the subject of a future post) and the fact that the Democrats already have 50 seats.  But the result still matters for five key reasons.

First, the additional seat will alter the composition of committees.  With a 50-50 Senate, the committees are evenly divided.  While the rules currently allow a bill or nomination to proceed to the Senate floor on a tie vote, a 51-49 Senate would result in the Democrats having a majority on the committees.

Second, 51-49 is a majority.  On issues on which the Democrats (and the two independents who caucus with the Democrats are united), the Democrats will be able to pass bills and approve nominations without the Vice-President breaking the tie.  Thus, Vice President Kamala Harris will be free to do other things than hang around the Senate to break the ties.  With the loss of control of the House, this change will be more significant on nominations than on legislation.

Third, the extra vote reduces the influence of Senator Joe Manchin and Senator Krysten Sinema.  Currently, to get anything through the Senate, the Democrats need to keep both on board.  As Senator Sinema and Senator Manchin often want different (and sometimes contradictory) changes to legislation, being able to lose one of the two will make it easier to get things done.  On the other hand, the need to keep moderate Republicans (okay moderately conservative Republicans) in the House on board to pass any legislation will make this change less significant.

Fourth, 2024 will be a hard year for Senate Democrats.  There are three Democrats running in states that will likely go for the Republicans in the presidential race (Senator Brown in Ohio, Senator Tester in Montana, and Senator Manchin in West Virginia) and no Republicans running in lean Democrat states.  There are a handful of weak Republican senators (Senator Scott in Florida, Senator Hawley in Missouri, and Senator Cruz in Texas) who are vulnerable, but only to the right candidate.  In short, every extra seat now increases the odds that the Democrats will be able to get to 50 in 2024.

Fifth, a loss for unqualified Trump pick Herschel Walker will be another example that fealty to Trump is not enough to win in swing states.  That will not be enough to put a stake through the heart of Donald Dracul.   (I am not even sure if the likely criminal charges that will be filed in 2023 will be enough to derail the Trump train.)  But it will give more ammunition to traditional Republicans (a/k/a RINOs) fighting a last ditch effort against Trump’s hostile takeover of what used to be a proud party that stood for some ideas (often wrong ideas, but still ideas).  While I would prefer a viable Republican party that stood for something, anything that will undermine the ultranationalists and theocrats in their effort to destroy democracy and the Constitution is a good thing.

Currently, the numbers out of Georgia are looking good for a narrow win on Tuesday.  As was true in November, the results will come in three waves.  First, early in-person votes will be released shortly after the polls close at 7 p.m. Eastern (6 p.m. Central, 5 p.m. Mountain, 4 p.m. Pacific).  Over the next several hours, election day votes will be released.  As in other states, medium sized rural counties will tend to be released earlier with smaller rural counties and urban counties coming later in the evening.  Finally, absentee votes (i.e. mail-in ballots) will tend to be released over the next twenty-four hours.  In short, Senator Warnock will probably take the early lead but Mr. Walker will then have a surge later in the evening.  But then there will be a surge toward Senator Warnock.  If Senator Warnock is in the lead by midnight, he will almost certainly be re-elected.  But if Mr. Walker has a lead at midnight, it could be a long night into the following day before we know who has won.

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