No, Biden isn’t a tyrant, and yes, the mandate is legal

President Joe Biden took a significant step in combatting the COVID-19 virus this week by utilizing the significant amount of executive power his office permits.  However, is it a wise policy?  Does it violate constitutional rights?  Is Biden acting like a king or dictator?  These are a few of the questions worth exploring.

What exactly is the Biden administration doing?

President Biden delivering his message about vaccine mandates

The president’s role as chief executive requires him or her to carry out the laws passed by Congress.  When our legislative body creates a law, they sometimes purposely leave portions of it vague to allow the executive branch flexibility in how to best carry out the law.  For instance, with regard to the Social Security program, the law does not dictate in what way payments are made to recipients.  This allows executive branch officials to determine if they should send checks, use direct deposit, or even consider other digital programs.  The flexibility allows for efficient functioning of government.  This much is clear — when the law does not specify how a law should be enforced, it is the prerogative of the executive branch on how to enforce that law (provided they do not violate the Constitution in the process).  Presidents cannot simply give random orders unless they are based on an already existing law.  They cannot enforce what does not exist.

In this instance, President Biden is utilizing the Occupational Safety and Health Administration (OSHA) to implement policies based on the Occupational Safety and Health Act of 1970.  This law established OSHA and empowered the Secretary of Labor and the Director of OSHA to create policies under the law to ensure the safety of the workplace in the United States.  Since the Secretary of Labor works at the pleasure of the president, this person has a responsibility to develop policies which the president wants.  

In this case, the Secretary and OSHA will be writing new regulations which

  • Require all private employers with 100 or more employees to ensure those employees have received vaccination for COVID-19 or those unvaccinated employees must produce a negative COVID test one each week.  This new rule is expected to affect nearly 100 million workers in the country.  The penalty for non-compliance will be $14,000 per offense.
  • All healthcare facilities which receive Medicare or Medicaid reimbursement from the federal government must have its employees vaccinated.
  • Employees of federal education programs such as Head Start or Department of Defense schools must receive a vaccine.

Additionally, President Biden ordered the Transit Security Administration (TSA) to increase fines for individuals who failed to wear masks and for those abusive towards flight attendants.  The federal government is also planning on allocating $2 billion for testing (rapid test and PCR).

Outside of the requirements, President Biden also asked for governors of individual states to establish mask and vaccine mandates for their public education systems.

Is there any precedent for a vaccine mandate?

The United States has faced a few similar situations in the past.  In the early 20th century, Massachusetts enacted legislation which required vaccination for smallpox for all adult citizens and fined those who refused.  Henning Jacobson, a Swedish immigrant, refused and appealed the matter to courts, claiming the Massachusetts law violated his 14th Amendment rights under the Due Process Clause.  Jacobson’s argument contended the state’s action in mandating a vaccine deprived him of his ‘liberty.’  In the Due Process Clause, the state must demonstrate some rational basis for why they would take deprive someone of a freedom.  In this instance, Massachusetts claimed that eradicating smallpox and creating a better public health environment constituted a legitimate government interest in mandating a vaccine.

In Jacobson v. Massachusetts (1905), the United States Supreme Court ruled that the state legitimately held policing powers, which included, “… such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”  The Court stated that issues such as a public health crisis, particularly the increasing cases of smallpox at the time, override the liberties of Jacobson.  

Justice John Marshall Harlan also articulated a key principle which many Americans forget about the freedoms granted to us.  Harlan wrote,

… the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.

Despite what people might want to believe, there is no absolute freedom in our society

In 1922, the Supreme Court also upheld the constitutionality of mandatory vaccines for public and private school students.  While states are under no obligation to create such vaccine mandates, the Court noted that such mandates did not violate the Constitution (see: Zucht v. King).  Society has long accepted vaccinations as a key aspect in public health and the fight against serious disease, and this is one of the reasons we haven’t seen a significant challenge to this concept in nearly a century.

Every state requires vaccinations for school, and West Virginia provides no exemptions for personal or religious belief. Required vaccinations are not new

Federal courts at all levels do not appear in any mood to overturn precedent.  Students at Indiana University filed suit after the school required a COVID-19 vaccine for all students and staff (with a few exceptions carved out).  A federal district court and the 7th Circuit Court of Appeals ruled that Indiana held the authority to require the vaccines.  The Supreme Court turned down an appeal for an emergency injunction (which could have temporarily halted the mandate until the matter was resolved in its entirety).

The Biden administration’s new rules seem solidly grounded in legislation, and the president seems confident that any legal challenges would fail.  When asked about those potential legal challenges, Biden responded to critics, “Have at it.”  

Why is this happening now?

For the Biden administration, this seems to be a move that makes sense for a number of reasons.  First, the vaccination rates of Americans have plateaued over the last few months.  Despite financial incentives and massive public relations campaigns, states have struggled to increase vaccination rates. 

The unvaccinated Americans also have taken the position that they have seen what COVID-19 does and they don’t seem to mind the risk.  While doctors and other health care professionals recommend taking the vaccine, a substantial number of Americans don’t feel comfortable taking it.  The stagnation in vaccination rates has led to the rise of the rise of the ‘delta’ variant of COVID.  The mutation of COVID makes it more difficult to defeat in the long term.  

Infections, hospitalizations, and deaths related to the virus are increasing, and this is a public health problem, obviously.  However, there is undoubtedly political calculus behind the vaccine mandates.  

President Biden and his administration have a razor thin majority in both houses of Congress right now, meaning their ability to pass legislation is limited.  Democrats are delicately trying to pass a bipartisan infrastructure deal while simultaneously threading a budget bill through Congress.  The Biden administration must deal decisively with problems which can be solved with executive action only.  They can solve this problem without Congress, so they must.  There’s no time to waste, particularly considering that the 2022 mid-term elections will be coming soon.

Democrats want to head into the 2022 mid-terms with legislative victories in their pocket and light at the end of the tunnel when it comes to solving the pandemic.  President Biden’s approval numbers have taken a hit with the American withdrawal from Afghanistan and COVID problems.  His average approval rating is trending in the high 40s, but that’s down significantly from the beginning of summer.  

The vaccine mandate is a calculated gamble to solve an important problem for the nation.  Is it a ‘make or break’ moment for Biden’s presidency?  No, but the political benefits outweigh the risks of not acting.  Within West Virginia, Governor Jim Justice is lamenting the rise in infections but he refuses to take any action as our state’s chief executive.  He has continually passed the buck to county and local administrations, causing significant confusion with absolutely no positive results. 

If the increase in vaccinations with these federal mandates can stymie the COVID problem, Biden will look incredibly good in the eyes of voters for taking decisive action at a key moment in the pandemic.  The people most likely to claim that Biden is a ‘tyrant’ who has overstepped his authority were never going to vote for him anyway.

Biden is not a tyrant, dictator, king, or any other authoritarian trope 

Americans have a strange way of viewing presidents, particularly ones who take strong executive actions.  The use of executive orders or government agency regulations to shape policy always tend to cause selective outrage.  Presidents from both parties utilize these as means of achieving their goals.  They are far more common than what people realize.  Yet, Americans only complain about them when it’s a political foe in the White House.  

Legislative bodies benefit from debate in lawmaking, and a slowed process.  However, situations exist in government where quick, decisive action is warranted.  Our chief executive needs that flexibility in responding to situations in such a manner.

The American presidency does more in permitting one single person to exercise power than any other democracy.  It fuses the role of head of state and head of government where most nations divide those roles.  In his famous Federalist #70, Alexander Hamilton wrote that our republic needed an ‘energetic’ president for effective administration of the laws.  The energy included several characteristics, including unity (a single person acting as executive) and competent powers

Powers exhibited by the president, whether Biden or Trump or anyone else, must still obey the Constitution and comply with other existing federal laws.  Their actions are subject to review by the courts, and they are ultimately responsible to the people.

Hamilton’s work also contained wisdom which explains why Republicans are currently frustrated with Biden’s unilateral action. He wrote, “Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike.”  

Republicans will attempt to seize upon any opportunity to gain seats in Congress and the majority in either house.  And I suppose that’s part of what the minority party does, particularly when the difference in the number of seats in both houses is so small.  A person can question the wisdom of President Biden’s policy.  But to suggest the president is somehow crowning himself king over the nation or a tyrant?  This is an attempt to play on the fears of Americans.  Don’t fall for it.  

I find it equally frustrating that Republicans have taken their hypocrisy to new levels when they have suggested for the entirety of President Biden’s term that he is confused, senile, or incompetent, but now they want Americans to believe that same crazy old codger is somehow launching a secret Marxist takeover of the nation. Could that senile old man have plotted all of this in his fragile mental state? I am convinced that both major political parties in the United States have serious flaws, but Republican leadership continually embarrasses itself in their quest to gain power.

The COVID-19 virus killed 4.6 million people worldwide in the 18 months. The deaths show no signs of relenting unless we take drastic action. In 2020 alone, nearly 378,000 Americans died from this virus, making it the third leading cause of death (behind cancer and heart disease). This nation created a vaccine to tamp down a deadly plague and the refusal to take it is harming society as a whole. We have the ability to end this and return to life as normal.

Critics would argue that government doesn’t dictate what people eat or ingest, which often cause heart disease and cancer, the two leading causes of death for Americans. This is true, but those diseases do not easily spread to other human beings.

President Biden was correct when he stated, “We’ve been patient. But our patience is wearing thin, and your refusal has cost all of us.” It’s time to end this. If you’re eligible for a vaccine, take the vaccine. It’s safe, it’s effective, and it saves lives.

Afghanistan really is another Vietnam …

After nearly 20 years, four presidential administrations, and thousands of deaths, the United States armed forces precipitated a departure from Afghanistan, marking one of the most significant foreign policy disasters in American history.  Why was this such a disaster?  Because the Taliban, whom the United States removed from power in 2001, reclaimed authority over Afghanistan with little resistance from the American trained and equipped Afghani military forces.  The United States invested nearly $1 trillion and thousands of lives only to see the pre-war status quo return.  

Why did America send forces to Afghanistan?  

American foreign policy in the Middle East radically changed after the events of September 11th, and the immediate objective of President George W. Bush became the elimination of al-Qaeda and the capture or kill of its leader, Osama bin Laden.  The Bush administration immediately clarified to the world that no distinction would be made between terrorists and those who harbored terrorists.

Bin Laden and al-Qaeda had been hiding out in Afghanistan for years at that point, and of course,  conducting a number of terrorist attacks against the United States.  For a variety of reasons, the ruling members of the Taliban refused to turn over bin Laden and his followers to the United States.  The Bush administration and the American people were in no mood to negotiate, thus the American mission included not only eliminating al-Qaeda, but removing the Taliban from power.

In its mission, the United States incorporated the Northern Alliance (an amalgam of Afghani rebel groups), Great Britain, Germany, Italy, Australia, and Canada.  In the first two years of this war, this coalition effectively removed the Taliban and dispersed al-Qaeda.  The time since then included a great deal of counterinsurgency work, slowing stamping out the remnants of these groups.  The coalition has been very effective in killing the enemy, holding cities, and occupying territory.  However, the United States could not stay in these towns forever, nor could they eliminate every member of these groups.  Despite 20 years of fighting, the Taliban always held certain regions of Afghanistan and maintained a sizable base of support from the people.

What mistakes were made in this war?

Sadly, this war was doomed to failure from its inception because the United States did not learn its lessons from the Vietnam War.  

The United States chose the wrong objectives.  After the attacks on September 11th, the United States would settle for nothing less than direct military action to apprehend or eliminate responsible parties.  In seeking justice for those attacks, they made the mistake of attempting regime change in Afghanistan, a nation with a history as the ‘graveyard of empires’ (see: Soviet-Afghan War).  

No, the Taliban would not willingly give up bin Laden or his al-Qaeda followers, but would it not have been possible to send American forces into Afghanistan with the mission of attacking terrorist bases and ignoring Taliban forces unless they attempted to disrupt the American mission?  This type of military action would allow Americans to pursue and eliminate its enemy while refusing to engage in a long term project of overhauling a nation’s political and governmental system.  

The objectives chosen by the Bush administration sent the United States into almost a virtually endless conflict because it not only declared war on terrorism, but did not distinguish between terrorists and those who harbored them.  A war on terrorism is a war on an idea, and there will always be terrorists in the world.  The United States cannot police the entire world.  Simply put, America spread itself too thin.  This problem became more salient after the start of the Second Gulf War in 2002.

In Vietnam, the United States also chose poor objectives.  Rather than focusing on helping a poor nation victimized by imperialism, the United States was concerned about the spread of communism and stopping it at all costs.  The country was too afraid to lose a proxy war to the Soviet Union and this guided their intervention in a nation they had long ignored.

Regime change doesn’t work without wholesale support from the people.  After the Allied victory in World War II, the United States had tremendous success in its occupation and rebuilding of several nations.  In Europe, American forces established a strong military presence in both Germany and Italy.  In Japan, the United States solely took control and took a firm position in South Korea.  American influence undoubtedly affected these nations and the establishment of new governments in the post-World War II era.  American cultural imprints are still visible today in these places.  So, why has the United States failed to repeat these successes?  

In the cases of Germany and Italy, their nations and societies were not radically different from American culture.  A common Western cultural vibe translated to an easy transition away from the ugliness of fascism.  Also, these nations needed the help of the United States to push back against the aggression of the Soviet Union.  They wanted an American presence far more than they wanted a Soviet presence.

There is a similar truth in Japan and Korea.  Though these Asian nations were not akin to the Westerners in culture, they did have the problem of the Soviet Union looming over them.  In fact, many historians now believe Japan surrendered to the United States not because of the atomic bombs, but out of a fear of the Soviet Union moving its forces from Europe to assist the United States in the Pacific.  Surrendering to the United States would garner much more favorable terms after the war than surrendering to the Red Army.  Moreover, surrendering to a ‘miracle weapon’ like the atomic bomb would allow Japan to maintain some sense of honor in defeat. 

In both Vietnam and Afghanistan, regime change didn’t work because the people were never unified behind it.  In the case of Vietnam, the United States failed to understand that vast majority of people saw them as the next iteration of colonizers who would pick up where France left off.  The American government propped up weak and corrupt administrations in South Vietnam and Afghanistan which neither controlled the entirety nor had the support of their people.  

It’s also fair to characterize the situations in Vietnam and Afghanistan as internal struggles, rather than external problems of Europe, which sought to protect Western nations.  The divisiveness in Vietnam and Afghanistan meant a unified nation needed for genuine change probably wasn’t going to happen. 

The United States never learned that more troops, more money, and more bombs cannot always win a war.  Groups like the Viet Cong, or the Taliban, are true believers in their cause.  They fight for different reasons than an invading army, and as such, they are willing to lose large numbers of men to achieve their objective.  In Vietnam, the United States killed the enemy at a ratio of nearly 20 to 1.   The ratio is somewhat similar for the 20 years the United States has operated in Afghanistan.  

Don’t let anyone fool you into thinking the United States military isn’t capable of winning a war in the sense of achieving tactical objectives.  The American armed forces clear villages, find and eliminate enemy combatants, and do so with stunning efficiency.  This does not mean the military always wins a war.  An army can achieve its tactical objectives without achieving its strategic objectives.  The enemy in both Vietnam and Afghanistan demonstrated they would continue fighting regardless of the losses.  In the two decades of this war, American troop losses were at 2,442.  Consider the length of time and the losses inflicted on the Taliban, this is a small number.  (Losses in Vietnam were close to 60,000.) Unless the United States killed every last man in the Taliban, they were not going to achieve the victory they sought.  Just like in Vietnam,  citizens were eventually wondering why we were there and if the cost in dollars and human life was worth it.  

No one established a clear exit strategy.  Despite two decades to plan a real exit strategy, four presidents failed to establish one.  Government officials never wanted to create a deadline for leaving, believing it would only encourage the Taliban and other terrorist groups to hold out until American forces left the country.  The policy of multiple presidential administrations was to stay until the military completed its task. 

Unfortunately, the propped up government in Afghanistan (and previously in South Vietnam) relied too heavily on American armed forces as a permanent crutch, one which would never leave until the job was done.  American support in terms of personnel, military hardware, and money seemed like a never-ending spigot which the democratic Afghani government never was too interested in turning off.  President Joe Biden remarked this past week that one more year, or five more years would not make a difference in achieving this objective.  Much like in a game of poker, it’s time to fold the hand when you realize it cannot win.  Yes, you put a lot of money into the pot, but there’s no use in throwing away more resources at a losing proposition.  

Eventually, the American government treated the situation in Afghanistan like Vietnam.  We would leave when the Afghan military could stand on their own and slowly draw down our number.  In the 1970s, President Richard Nixon called it ‘Vietnamization.’  No one created a clever name for it this time, but it’s the same terrible plan — which is no plan at all.

Does the Taliban represent a threat to the United States?  

Yes, and no.  In the traditional military sense, the Taliban has a fighting force of somewhere in the neighborhood of 70,000 men.  The quick fall of the new Afghani government meant that quite a bit of the military hardware provided by the American armed forces haas now fallen into the hands of the Taliban.  Of course no one wants modern military equipment to fall into the hands of some bad people, but the Taliban, as a ruling entity of Afghanistan, is not going to attack the United States.  

The concern Americans should have about the Taliban is the same concern from 20 years ago.  The Taliban provides safe haven to terrorist groups like al-Qaeda, where they can operate training camps and conduct planning for attacks against the United States and its allies.  

Also, we should have a serious concern for the individuals left behind in Afghanistan.  In the absence of the Taliban, women gained significant measures of freedom and equality.  Now, the radically strict Sharia Law implemented by the Taliban threatens those gains.  Afghanis who assisted the American military as interpreters, informants, or soldiers face retribution for their actions.  These individuals are so concerned about Taliban rule that they swarmed American airplanes leaving the country and were clinging to the landing gear of aircraft as they took off.  People literally fell to their death rather than live under Taliban rule again. 

Who bears the blame for this disaster?  

Four presidents bear the blame for the policies which led to a terrible result in Afghanistan.  President George W. Bush initiated these policies, established poor objectives, and left future presidents in a situation where ending the war would be unpopular.  Bush created a broad based conflict when a more precise objective was needed.

President Barack Obama followed a sad pattern of increasing American personnel in the region and failing to follow through on timetables at removing troops after these troop surges.

President Donald Trump initiated peace talks with the Taliban during his tenure, and created a deadline for May 2021 for American withdrawal from Afghanistan. 

Now, current President Joe Biden oversaw a withdrawal of American troops which appears haphazard, at best.  Incidentally, the failure of the Afghan military to put up a fight against the Taliban reflects poorly on America as a whole.  However, Biden is the current occupant of the White House, and the buck stops there.  Success or failure rests on him. 

The American people must also take on some of the blame. For years, we supported a broad based war that presidential administrations and Congresses carried on without any real exit strategy. Armed conflicts need definitive, measurable objectives so that we may apply pressure to our government if they do not achieve those goals or if they do achieve them and do not return the military home.

We now must swallow the bitter pill of failure.  Biden did what other presidents probably wanted to do.  He abandoned a foreign policy which wasn’t working.  America’s national interests in Afghanistan could not be sustained without a near permanent military presence.  Neither Biden nor any successive presidents could justify sending more Americans into harm’s way.

Citizens in the United States have rightfully expressed concern about a potential humanitarian crisis we are leaving behind.  Yet, there are humanitarian crises all over the world where we have no military forces.  Do we not also care about those people?  The United States cannot solve every problem of the world.  Attempts to do so continually undermine our credibility when there is a vital interest where American force is warranted.  

The Honeymoon is Over: The future of Biden agenda

ike most marriages, a presidential administration begins with a warm, fuzzy feeling of hope.  When President Joe Biden took the oath of office on January 20th, he brought a breath of fresh air after four years of poor policy decisions.  Once a president takes office, he still must govern effectively. 

The road ain’t as long as President Biden would like

The administration’s first 100 days were filled with successes and hope for the the coming year.  President Biden scored a policy victory by passing The American Rescue Plan Act of 2021, which authorized $1.9 trillion of spending on COVID relief and assisted in the distribution of vaccine delivery.  The administration reached its goal of vaccinating 100 million Americans within the first 100 days of the president’s term.  American citizens received a stimulus check.  The economy added jobs in recovering from the COVID shutdown.  President Biden’s approval ratings hovered in the 60-something range.  Supporters of the administration mentioned the president’s name in the same breath as Franklin Roosevelt.

The Biden administration hoped to parlay early victories into support for a broad sweeping infrastructure bill known as The American Jobs Plan.  Democrats also proposed a bold attempt at reforming the nation’s elections laws in the For The People Act, which would have likely ended partisan gerrymandering, changed campaign finance laws, and established nationalized standards for ballots and voting procedures.  Maybe he is or isn’t FDR, but you can’t say President Biden isn’t swinging for the fences.

In politics, however, even early victories in an administration sometimes can’t produce enough political capital to govern in the way he or she would like.  And unfortunately for this administration (and probably the nation as a whole), the honeymoon is over for President Biden and America. 

The problems add up

President Biden’s agenda has always hinged on the elimination of the filibuster in the Senate.  The practice of stalling a bill to death means 60 votes are required to push legislation forward.  However, changing Senate rules to end the filibuster only requires 50 votes (Vice President Kamala Harris holds the tie-breaking vote in an evenly divided Senate).  Senator Joe Manchin (D-WV) has refused to vote in favor ending the filibuster, dealing a significant blow to the Biden administration. 


Senate Majority Leader Chuck Schumer (D-NY) advanced the For The People Act though Democrats had always understood it would not pass.  A vote only served to put senators on the record about where they stood on the matter.  The measured failed on a 50-50 vote where no one crossed party lines.

With the voting rights legislation out of the picture for the foreseeable future, President Biden and his team turned their attention to the infrastructure bill.  The Senate could pass the measure using the reconciliation process (a procedure which only requires a majority of votes if the bill relates to spending / budget issues).  It’s how Democrats passed the The American Rescue Plan.  Yet, Senator Manchin threw a wrench in the works again.  West Virginia’s senior senator did not want to use the reconciliation process to pass a bill unless at least one Republican senator would vote for the bill.  Manchin has always maintained that the nation needs to work on reestablishing bipartisanship. 

In that spirit of bipartisanship, Manchin has attempted and succeeded in brokering a deal which will involve support from at least 11 Republicans, including Rob Portman (R-OH) and Mitt Romney (R-UT).  This bill would spend $579 billion immediately and add additional money over the next decade to address a number of infrastructure projects which the nation desperately needs.  

President Biden’s agenda seems to have stalled

So, isn’t this a good thing?  Not exactly for the Biden administration the context of this article.  The politics of who receives credit for this infrastructure bill matters.  The 21 Democrats and Republicans in Congress have a chance to raise their profiles and let everyone know they made it happen, and the president was along for the ride.  Moreover, the bill has crossover appeal amongst the moderates of both parties, but the more liberal wing of the Democrats has expressed frustration over it.  

Congresswoman Alexandria Ocasio-Cortez (D-NY) spoke of her frustration with bipartisan deals, noting, “… when these bipartisan deals come together, they tend to underserve the communities that are already underserved …”  

Senator Bernie Sanders (I-VT), perhaps the most liberal in Congress, also didn’t seem too keen about this bill.  Sanders and other members of the more progressive wing of the party believe the term ‘infrastructure’ should include pieces such as climate change, paid family leave, foster care, and funds dedicated to health care.

Members of Congress in the more liberal wing felt a sense of relief when the White House stated they would pursue a two-bill tandem process, which would include a reconciliation budget bill to take up the issues not included in the infrastructure compromise.   The president almost inadvertently torpedoed the entire thing by implying he would veto the infrastructure bill without support for the budget bill.  He later clarified that he would not veto the compromise bill.

The bill isn’t a done deal, and a revolt from his own party isn’t out of the question, and this might be more damaging to his administration than if Republicans kept stonewalling in the Senate.


President Biden also must contend with a growing number of mass shootings across the country.  At the halfway point of this year, more than 270 mass shootings have occurred.  The president’s ability to respond to gun violence is limited to executive orders and these cannot supersede law.  Making any meaningful change to gun policy would require new legislation and Republicans will not yield on this issue.

The president’s accomplishments with regard to vaccine distribution and economic relief seem like a distant memory for most Americans.  Most of the Americans who wanted a COVID vaccine have probably already received one, and stimulus money is long gone.  Throw in a heat wave that is crushing the Northwest and other ‘normal’ problems and no one cares about the fact that unemployment numbers were down in May.

Earlier this year, President Biden tasked Vice President Harris with focusing on the crisis on the southern border and that situation has not improved.  The number of illegal crossings hit a record high in March, and initially, analysts believed those numbers might decrease.  However, the numbers for April and May have eclipsed the record set in March.  Each of the last three months has seen more than 170,000 illegal crossings.  

Vice President Harris complicated matters when dropped the ball in an interview with NBC’s Lester Holt.  When confronted with a question about why she had not been to the border to personally visit, Vice President Harris responded in a flummoxed manner, “And I haven’t been to Europe … And, I mean, I don’t understand the point that you’re making. I’m not discounting the importance of the border.”  It didn’t go over well with anyone.  

What’s holding back the Biden agenda?

1.  A divided Senate — When President Biden took office this year, he did so with a slight majority in the House of Representatives and an evenly divided 50-50 Senate.  This limits his ability to persuade Congress to act.  When Franklin Roosevelt took office, Democrats held 58 of the 96 Senate seats and 311 of the 435 House seats.  In the advent of Lyndon Johnson’s administration, his party controlled 65 Senate seats and 268 House seats.  Barack Obama’s initial numbers were 60 and 256, respectively.  Modern presidents who were known for substantially advancing legislation had an easier path to establishing meaningful policies because they had Congress’ backing.  Without a unified government, any president will struggle. 

2.  Heightened partisanship — The degree to which members of both major parties stick to their tribe affects the Biden agenda, or any president’s agenda.  Members of Congress are too scared to deviate from the official party line.  Democratic and Republican leaders have made it clear they are willing to punish members who go too far off the reservation.  You can believe that Republican leadership made this principle quite clear when they removed Liz Cheney (R-WY) from leadership after her criticism of former President Donald Trump.  Party officials also hold sway over committee assignments, campaign finances, and potential primary challenges.  Only a few members, such as Joe Manchin, have any immunity to this.  If Democrats, for instance, wanted to fund a primary challenger against Manchin, he would only benefit from this.  West Virginia’s generally conservative nature would view a primary challenge against Manchin as a sign that he’s doing the right things.  Also, Manchin’s age must be factored in.  He isn’t facing re-election until 2024 and at that point, he might retire.  He’s one of the rare members of Congress who is as close to bulletproof as you can be.  However, Manchin is the exception and not the rule.

With the 2022 mid-term elections right around the corner, both parties understand what’s at stake.  Democrats need more legislative victories to cement their hold on both houses of Congress (and free them from the tyranny of Joe Manchin).  Republicans hope to stall out the rest of this front half of Biden’s term, with the premise of telling voters that the president did not deliver.  The 2022 mid-terms mean both parties have incentives not to stray from the party line.

3.  Joe Manchin — On one hand, I really like Manchin because, in many ways, he represents a number of political ideas I like.  He’s an old-school Democrat and that’s where I fit in, but he’s also (unintentionally) obstructing policies which an administration has a right to implement when they occupy the White House.  The tactics of the minority party’s ‘run out the clock’ mantra have to change, and Joe Manchin isn’t helping that.  The divided Senate wouldn’t be an issue if Manchin would vote to eliminate the filibuster.  It would be less of an issue if he would be willing to vote for the reconciliation process.  

4. The short memory of voters — American voters only see what’s right in front of them, and the present situation shows us problems and inefficiency. Republicans have more than a decent chance to reclaim both houses of Congress in 2022 and a plausible reason is that the American public won’t remember the positive changes that arrived with the Biden administration. You can see this in a slow decline of President Biden’s approval ratings. The president’s political capital is drying up and there is little room for significant legislation to move forward until after the Election of 2022.

End the filibuster

The United States Congress is undoubtedly one of the most peculiar legislative bodies in the world.  Writers of the Constitution established two unique houses within its legislative branch, each with its own modes of election, representations, differing qualifications, and purposes.  

Though both houses must pass any bill for it to become a law, the Senate was always intended to be (and has been) the de facto upper house.  Yet, the upper house and one of its bizarre procedures continually prevents legislation which would otherwise advance the interests of the majority of American citizens.  Yes, we’re talking about the filibuster.  

A brief background 

In the House of Representatives, time for debate of any given bill on the floor is limited, and for good reason.  With 435 voting members, allowing all members of the House to engage in debate is counterproductive.  Limited debate also means House members must come to the debate with a general understanding of the bill, committee recommendations, and the ability to discuss in a pointed manner.  

Filibusters continue to trend upward

The Senate always maintains a lower number of members, and as such, permitting longer debate is not such a bad idea.  A senator can attempt to persuade fellow members of the body to his or her side of an issue by drawing out the merits or flaws of a bill.  The Senate’s great failure, however, is that ending debate on any given bill requires a supermajority of 60 of its 100 members.  The Constitution does not call for this supermajority to end debate, but the measure is part of the Senate’s rules.  Somewhat paradoxically, Senate rules can be changed with a simple majority vote.

Because the balance of power between Democrats and Republicans vacillates by a only few senators each term, the likelihood of either party obtaining a supermajority is small.  In the last 40 years, it only happened during President Barack Obama’s first two years in office.  Democrats had 60 seats, allowing them to pass The Affordable Care Act without a Republican filibuster.

The time is long overdue for the Senate to change its rules and eliminate the filibuster, permanently. 

An anti-democratic concept 

The filibuster works against one of the central concepts of a representative democracy — a plurality vote.  In most American political institutions, the system is based on a plurality vote, meaning the side with the most votes carries the issue.  The filibuster is anti-democratic, allowing the minority party to block legislation supported by a majority of senators.

Yes, there are other instances where a supermajority is needed to act on a given change, such as amending the Constitution or overriding a presidential veto.  However, those mechanisms attempt to make changes that have more finality than merely advancing legislation out of one house of Congress.  

Legislation is stalled 

How many beneficial pieces of legislation never happened because of the Senate filibuster?  On more than one occasion, Southerners filibustered various civil rights bills.  In 1957, Senator Strom Thurmond (R-SC) set the record for a filibuster, speaking for more than 24 consecutive hours.  

“Each presidential administration and new Congress should receive a fair chance to implement policies, particularly at the beginning of a term, when the American people have spoken in recent elections.”

Since the end of the Civil Rights Movement, the use of the filibuster expanded to nearly every topic of legislation — campaign finance, lobbying reform, health care, gun reform, economic stimulus, immigration, etc.  In fairness, the perspective of whether a bill is good or bad often depends on a person’s ideological beliefs.  

However, allowing Congress to engage in its primary task of legislating means taking the risk that they will make mistakes.  This is part of how policy formation works.  If a law establishes a policy which works well for the American people, those elected officials will have earned the right to reap the success.  If the policy turns out poorly, voters can hold them accountable and elect new officials who will vote to reverse a poor policy decision.  As the situation currently stands, the filibuster allows senators to not make difficult decisions on legislation that has widespread support among voters.

Two key pieces of President Joe Biden’s agenda have widespread support in the public, but face an uphill battle due to the filibuster.  HR 1, or the For the People Act, currently has 68% of voters backing its changes to election laws.  The American Jobs Plan, or the Biden infrastructure plan, has a similar amount of support from the public.

Each presidential administration and new Congress should receive a fair chance to implement policies, particularly at the beginning of a term, when the American people have spoken in recent elections.  

Inactivity is activity 

Any party in the Senate minority counts on legislative inertia.  When a minority party can block policy changes, it means nothing happens.  In these instances, nothing is something.  When the people elect officials to improve the conditions of the nation, they do so with the expectation of positive change.  If the minority party can prevent change from occurring, they see it as a victory, and as an added bonus, it allows them to campaign that the opposition didn’t fulfill their promises.  A majority party cannot be expected to deliver on promises when need more than a majority of voters.

Disproportionate power

Each state receives two senators regardless of its population, and this is an important means of protecting smaller states from the legislative whims of larger states.  Yet, that senatorial advantage of small states is exacerbated by the filibuster,  allowing certain individuals to wield a disproportionate amount of power.

The 21 least populous states in the Union are home to approximately 35 million people, which is still significantly less than California’s approximately 40 million people.  These smaller states, by themselves, could stage legislation gridlock with their senators despite only representing slightly less than 10% of the nation’s overall population. 

When any senator filibusters, his or her fellow party members have shown reluctance to vote for an end to debate.  As such, a senator from Wyoming, the least populous state (with a scant 576,000 people), can prevent legislation from coming to a vote that would benefit the nation.

Moreover, crafty senators such as Joe Manchin (D-WV) have learned how to leverage their position as a ‘moderate’ party member to provide them with extraordinary amount of influence. 

Senator Manchin is the key vote for Democrats, and he knows it

After the 2020 Elections, Democrats miraculously pulled off a tied Senate.  Since Vice President Kamala Harris’ one Constitutional responsibility is to break tie votes in the Senate, Democrats have an opportunity to legislate.  However, no Democrat can break ranks in voting if they hope to achieve their legislative aims.  

Manchin has already exhibited a willingness to defy the party and the president and don’t expect him to change.  In West Virginia, Manchin perpetually performs a balancing act in maintaining his Democratic chops while pleasing an increasingly more conservative constituency.  West Virginia’s senior senator claims he does not wish to abandon bipartisanship, and that’s not a bad goal.  

While we can take Manchin at his word for wanting to bring Americans together and applaud the effort, I would hope even he could see that the circumstances of his calls for bipartisanship seem to indicate he’s also concerned about the ‘Trump effect’ in West Virginia.  His current position as the lynchpin of the Senate allows him to keep walking a tightrope to win another term in 2024.  

Manchin’s efforts earned him an invitation to the White House last week and First Lady Dr. Jill Biden made a trip to Charleston with the senator (and West Virginia’s unofficially official ambassador Jennifer Garner).  Also, Manchin’s wife, Gayle, was recently nominated by President Biden and confirmed as a co-chair to the Appalachian Regional Commission.

Meanwhile, important legislation vital to the nation and supported by large swaths of the nation remains in limbo because … well … Joe Manchin.  

The bipartisanship Manchin seeks comes at a high price, and it’s a price he doesn’t have to pay. Manchin is 73 years old with financial assets above and beyond most Americans, let alone West Virginians.  For those outside of the Mountain State, the Manchin name is almost as politically connected as a family can be.  Legislation held up in the name of bipartisanship will neither affect Manchin nor his family.  It does, however, affect most of his constituents.  

The filibuster has already been eroded by both parties

Filibusters do not extend to judicial nominees and other executive appointees, though they once did.  In years past, the minority party could filibuster a nominee to any federal court, including the Supreme Court.  Federal courts already faced a backlog of cases without the filibustering of appointed judges.  

In 2013, then Senate Majority Leader Harry Reid (D-NV) led the effort to change rules to allow judicial nominees (other than Supreme Court nominees) and other executive appointments to proceed without the option of a filibuster.  

“The time is long overdue for the Senate to change its rules and end the filibuster, permanently.”

Subsequently, Republicans acted in accordance in 2017, when then Senate Majority Leader Mitch McConnell (R-KY) ended the filibuster for Supreme Court nominees, paving the way for President Trump to appoint three justices to the nation’s highest court (none of whom tallied more than 54 votes in confirmation).

Congress also passed the Congressional Budget Act of 1974, which permits the Senate to waive the 60 vote supermajority on bills associated with the budget and spending.  For nearly 50 years, the Senate moves forward with legislation dealing primarily with the nation’s fiscal policies because it is necessary to the functioning of the federal government.  The time has come to extend this process, known as ‘reconciliation.’  

Federal law will still remain consistent 

Despite what Manchin and other elected officials might have us believe, the end of the filibuster will not usher in an era of back and forth legislation, undoing the actions of a previous Congress.  To effectively legislate, either major party will still need to secure the trifecta of controlling the presidency, a majority in the House, and a majority in the Senate.  Even if they achieve this end, they must still produce results or face the prospect of being voted out of office.  

Punched in the mouth: No scripted presidency for Biden

“Everyone has a plan until they get punched in the mouth.” 

— Mike Tyson, former heavyweight boxing champion 

Mike Tyson was asked about an upcoming fight with Evander Holyfield, another great heavyweight champion, specifically as to how Tyson would try to disrupt Holyfield’s fight plan.  This is when Tyson uttered his now famous maxim about taking a punch to the mouth.  That was part of Tyson’s fight strategy all the time.  He hit them with such power and ferocity that most fighters would freeze in the moment and their plans would crumble under the weight of a devastating uppercut.  

President Joe Biden’s administration now faces its first real punches in the mouth.  Through the president’s first 100 days, few major challenges presented themselves.  Members of the Republican Party threw a few jabs, just feeling out the new chief executive.  Now into a steady rhythm, the administration is absorbing a few power shots that will try to throw Biden and his team off balance.  

The jab 

The latest and perhaps most devastating setback for Team Biden is the latest jobs report.  In April, the United States added 266,000 jobs, according to the Department of Labor.  That doesn’t sound too bad until you consider that analysts predicted a significantly higher number, about four times that number to be more precise.  Unemployment rose slightly from 6.0% to 6.1% and the jobs numbers from March were revised (to 770,000 jobs added and down from the original estimate of 916,000).  This is definitely not the news the administration hoped to see.

Though the president cannot single-handedly control the economy (for good reason), he or she takes credit when the country prospers (re:  Bill Clinton) and also bears the blame when the economy spirals out of control (poor Herbert Hoover).  This is part of the game, so to speak.  

So what’s the play for the administration?  The jobs report obviously gives the GOP ammunition, but the president and his people should spin this as simply one month’s worth of data, and the long term predictions for economic growth still show a positive trend.  Moreover, this is an opportunity for Biden to stress the need for his infrastructure bill, which could establish millions of jobs.  

The right cross 

The problem of the jobs report will dissolve with the next news cycle, though it stings.  A greater problem has been brewing at the southern border of the United States, and thus far, it’s the serious threat to The White House’s agenda.  So far, the administration has not used the term ‘crisis,’ but it’s a crisis.  Previous presidential administrations have consistently passed down this problem to their successors, and that’s unfortunate, but the problem belongs to Biden and he must own it.

Migrants came across the border in record number in April 2021

In March, the U.S. Customs and Border Protection tallied over 170,000 encounters and apprehensions of migrants illegally entering the country.  This staggering figure represents the most in a 20 year time frame, and stretches manpower thin.  The numbers for each of the first four months of Biden’s presidency compared to President Donald Trump’s show significant increases in illegal border traffic.

What’s causing the increase in the number of migrants crossing the border?  Men and women have been coming from South America, Central America, and Mexico for decades, and that’s not new at all.  However, the surge of migrants has increased under the inability of many of those nations to adequately provide care and vaccinations for COVID-19.  The recovery from the pandemic also limits economic opportunities in nations already short on jobs.  During the pandemic last year, Central America endured a series of brutal hurricanes which inflicted significant damage.  It’s also likely that many poor migrants saw a Biden administration as far more permissive on its immigration policies than former President Trump.

The Biden administration is currently transferring unaccompanied children who crossed the border from the custody of Customs and Border Protection to the Department of Health and Human Services (HHS).  This is not an insignificant action, considering Customs and Border Protection are responsible for detention whereas HHS provides care and shelter.  President Biden also increased the number of refugees the United States would take from 15,000 to 62,500 — a salve upon the wound, at best.  

The Department of Homeland Security (DHS) also has a role to play in this situation, as they have been tasked with reuniting families who had previously been separated in crossing the border or during processing by Border Patrol agents. 

President Biden has personally made an appeal via the media for migrants to not come to the United States and to definitely not sent their children.  However, to stop the humanitarian crisis at the border, broader policy changes need to happen on immigration.  Any president’s authority to take unilateral action has limits.  Congress must establish legislation for any long lasting change to occur, and that might be a problem … 

The body blow 

About that need for legislation?  It shouldn’t be this much of an issue for President Biden to guide legislation through Congress during this early portion of his term.  Not only does the president enjoy a 54% approval rating, but Democrats currently control the House of Representatives (218-212 with five vacancies) and the Senate (50-50 with the Vice President casting tie votes).

Unfortunately, the nature of the Senate’s rules on debate make it possible for the minority party to stifle any legislation which they might find too objectionable.  Under Senate rules, debate on a bill cannot end unless 60 senators agree.  Since it is rare that either party ever has this many senators, it’s often difficult for legislation to pass even if a party has a majority of senators.  Thus, any senator who wishes to continue ‘debating’ a bill can stall the process under what is known as a filibuster (it comes from the Dutch word for ‘piracy,’ so draw your own conclusions).  

Members of the Senate can vote to change the rules of the body, with only a majority needed to eliminate the filibuster.  Okay, so Democrats can do that, right?  Not exactly.

Senator Joe Manchin, a very moderate Democrat from a very red state (my beloved West Virginia), believes he can somehow restore a sense of bipartisanship to American politics.  As such, he wrote in an op-ed piece for The Washington Post, “There is no circumstance in which I will vote to eliminate or weaken the filibuster.”  

To be fair, Manchin’s argument pertaining to why he won’t vote to end the filibuster has some merit.  He rightfully pointed out that without the minority party’s ability to potentially halt legislation, there could be drastic swings in federal policy.  This is true when we consider the pendulum-like nature of party control in Congress.  Popular or successful policies could be eliminated simply because the majority party disagreed with them.  

Manchin might be correct about swings in policy making at the federal level, but while he stands firm, legislation important to the nation sits idly in committee rooms of the Senate.  Two of these pieces of legislation (already passed by the House), are significant in the future of this nation, and both would genuinely benefit his home state.  Of course, any vote for a Biden initiative appears to many West Virginians as some kind of betrayal (it’s a wonderful, yet strange place to live).

Is it possible that President Biden’s agenda hinges entirely on Joe Manchin?

The For the People Act (also known as HR1) would prevent partisan gerrymandering, mitigate the influence of big money in elections, and require states take significant actions to make voting easier.  Additionally, The American Jobs Plan would make a significant investment into the infrastructure of this nation (long overdue) and provide millions of jobs for Americans (mostly blue-collar jobs according to The White House).

While I think some moderate Republicans are open to negotiations about these pieces of legislation, the current leadership structure of the GOP does not want either of these bills to pass the Senate.  If either of these bills passes, President Biden will have two signature pieces of legislation passed in less than a year.  The implementation of these policies would win elections in 2022 for Democrats and Republicans want to prevent this.  The GOP treats these bills as a zero-sum game, where a victory for Democrats means a defeat for them.  While they cause more gridlock in lawmaking, the American people miss out on opportunities. 

If anyone thinks the GOP cares about bipartisanship, look no further than the recent infighting in House leadership where Minority Leader Kevin McCarthy (R-CA) caved to the right wing of his party in moving to hold a vote to remove Liz Cheney (R-WY) from a leadership position, due to her vote to impeach former President Donald Trump and her refusal to perpetuate the lie that Trump was cheated out of the 2020 Presidential Election.   The GOP seems to be sending a clear message to anyone in the party that stepping out of line will come at a price.

The GOP also didn’t seem to care much about bipartisanship in the Trump administration, when they passed the Tax Cuts and Jobs Acts of 2017.  This law passed both the House and the Senate with zero votes from Democrats.  (Note:  The 51-48 margin in the Senate was achieved through the reconciliation process.)

I understand what Joe Manchin is hoping to do for the country, but the Republican Party has not, and will not play by the same rules.  This is why his insistence is such a blow to the Biden administration.  In past years, presidents from either party were given an honest chance to implement their agenda without the opposing party becoming the party of ‘no.’  

This is where the Biden administration seems to find itself at the moment, hit with some serious punches to the mouth.  Yet, the Manchin situation is the most devastating shot.  How does President Biden counter?  What does he do about one rogue senator?

Oh, about that Mike Tyson fight against Evander Holyfield?  Tyson was right, to an extent.  We do see what happens to a plan when someone gets punched in the mouth.  Holyfield, known as one of the great counterpunchers in boxing history, took Tyson’s best shots and stuck with his plan.  He TKO’d Tyson in the 11th round.  Here’s to hoping Biden can channel his inner-Holyfield.

For the people, for the win

Traditionally, individual American states are left to establish their own election and voting laws.  However, a number of states have created policies which placed unconstitutional and unnecessary obstacles to voting.  Southern states notoriously discriminated against people of color for decades before the Voting Rights Act of 1965 ended many of these practices.  This legislation also required states with a history of discriminatory practices to seek preclearance from the federal government before changing election laws.

In 2013, the Supreme Court ruled in Shelby County v. Holder that the ‘preclearance’ requirement was no longer valid considering the Voting Rights Act was based on racial data several decades old.  The decision allowed states latitude in creating election laws again.  Numerous states have passed laws requiring photo identification to vote, which could be construed as a form of poll tax and an unnecessary obstacle for voting.  States have revised legal codes to make it much easier to purge voter registrations if citizens do not vote often enough.  In the last few months, several state legislatures have tightened restrictions on early and absentee voting for no discernible reason.

To address accessibility to voting and other election related issues, Democrats in the US House of Representatives created HR1, known as theFor The People Act.  This bill is an all-encompassing reform of a large number of policies which have made the United States less democratic in terms of elections.

Voting

In terms of voting, the bill requires automatic voter registration in each state, and citizens can still opt out if they desire.  The bill will also permit registration via internet, require states to allow same-day registration (on Election Day), and provide funds to states to promote additional registration drives and the importance of voting.  

HR1 will also maintain that states provide more accessibility features in terms of voting for citizens with physical disabilities.  States must also restore voting rights to felons who have served their criminal sentences.  On Election Day, the ballots would be standardized for federal elections and provide more consistency nationwide.

Senate Majority Leader Chuck Schumer (D-NY) promotes the For the People Act

Mail-in voting and absentee ballots would become easier to obtain and use and states would be required to establish contingency plans for voting in the event of natural disasters or a health related issue (you know … like a pandemic).

Representation issues in Congress

One of the more important features of this bill encourages and supports (but not require) that Washington, D.C. become a state, thereby guaranteeing them representation in the House and Senate.  The bill points out that D.C. already has more population than a few other states and promotes the idea that citizens within the capital city deserve this.  

Similarly, the bill also encourages and supports federal voting rights (but not statehood) for Guam, Puerto Rico, American Samoa, the US Virgin Islands, and the Northern Mariana Islands.  For those keeping score at home, these are all American territories, but they do not receive the same rights and privileges as states within the union. 

In what may be the most important aspect of this bill, states would be obligated to establish an independent commission which would draw borders for Congressional districts within a state after the census numbers determine population gains or losses.  This would take authority away from state legislatures to gerrymander districts to help or hurt parties, races, or particular candidates.  

How gerrymandering can affect election outcomes

This section of the bill also would end the practice of ‘voter purges’ where states often delete citizens from the registration database if they have not recently participated in an election.

Campaign Finance Restrictions 

Non-citizens would be prohibited from participating in any type fo electioneering activities, expanding a current ban on foreigners not being permitted to donate to campaigns.  Additionally, the new law would ban the practice of creating corporations for the purpose of funneling foreign money through those corporations for use in election related activities.

Online ads would become more transparent in who funded them, including requirements for disclosure of top donors to a particular group.  “Deepfake” videos would be banned from political ads, and publicly traded corporations would have to disclose financial information (including donor lists) to shareholders.

Campaign Finance Empowerment

The federal government would launch a pilot program in three states which would provide every eligible voter with a $25 voucher for a donation to a candidate.  These citizens could then take the voucher and give it to the candidate of their choosing.  The idea behind this program would be to allow for more Americans to express their voice through donating funds to a candidate that they might not otherwise donate due to a lack of finances.

Candidates for federal office would be eligible for ‘matching funds’ when they receive smaller contributions (under $200).  Those contributions would be matched up to six times the value to amplify the voice of small donors.  (To receive the matching funds, federal candidates would have to meet certain eligibility requirements. )

Small contributions would also benefit political action committees (PACs).  Under HR1, any contribution under $200 to a PAC could be placed in a special account where a contribution of up to $10,000 could be made to any one candidate (as opposed to the usual limit of $5,000).

Strengthening the Federal Election Commission 

Currently, the Federal Election Commission (FEC) has a six person team to make decisions about campaign finance enforcement and the even number sometimes inhibits the ability to act.  This bill would reduce the size to five members, chosen by the president on staggered terms, to enforce campaign finance law.  

The FEC would have the ability to more effectively monitor Super PACs by an expanded definition about what types of coordination these entities could have with candidates or their campaigns.  

Congressional and Presidential Ethics Requirements 

Some other requirements which affect those running for and holding federal office:

  • The president would have the option of either divesting any stocks or financial holdings which might cause a conflict of interest or place his accounts into a blind trust.  The president would also be prevented from having any government contracts through any of his or her business holdings.
  • Presidential appointees would be required to disclose political donations.
  • Congressional members and their staff cannot advance any legislation that financially benefits themselves or members of their immediate family.
  • House members would be banned from serving on the board of any for-profit companies. (Apparently, the Senate already has rules in place for this.)
  • Staff members of a Congressional office must disclose outside compensation and reports will be available about this information.
  • Presidential and vice presidential candidates must disclose income tax returns and any returns on personally owned businesses for the previous 10 years.

What are the pros of HR1?  

I believe democracy deserves free and fair elections where voting should be as easy as humanly possible.  I cannot understand why automatic voter registration hasn’t been part of the American way.  Other democracies have been doing this for years.  Standardized ballots, early voting, mail-in voting, no more ‘purges’ of legitimate voters — these all make sense.  Having a more uniform system of voting is one aspect of a democracy where a nationwide policy is better than 50 different entities have a wide variety of rules and regulations.  When we have allowed this, marginalized groups, particularly racial groups, have been the victims of discrimination.  

Changes from HR1 mitigate some of the effects from the Citizens United v. FEC decision, which gave rises to Super PACs and more ‘dark money.’  Requiring more disclosure of funding sources and how campaign finances are spent lets citizens know who funds the candidates and to what extent.  This can only help democracy, not hinder it. 

The impact of Citizens United on campaign spending is undeniable

The experimental voucher program and matching funds program could considerably alter elections for the foreseeable future.  Candidates who have widespread appeal among citizens who do not have monetary resources would now possess the ability to financially express support for candidates.  Currently, most Americans do not contribute money to campaigns or candidates. This would be an entry point for many Americans to consider donating to a candidate.

HR1 might effectively end the ridiculous practice of gerrymandering, where state legislatures have the ability to draw congressional district lines to the benefit of their preferred candidates or political party.  This practice, by both Democrats and Republicans, establishes districts where no real competition exists.  As a result, members of the House of Representatives often do not fear losing their seat because they never have to make difficult decisions on legislation.  

And the cons … ?

The most significant problem with this bill might be the same problem most bills present:  the cost.  Added expenses to the federal government for the necessary standardization of voting equipment, ballots, and other devices would only increase an ever expanding budget.  Neither Democrats nor Republicans seem to possess any motivation to reduce government spending, and this issue already existed prior to the COVID pandemic.  

HR1 also adds more layers to an extremely large federal bureaucracy.  Who will monitor the expanded regulations?  The FEC will most likely need more employees and states will need additional resources to comply with a number of the requirements this law would demand.

The bill is a monster of nearly 800 pages and it would change quite a bit of policy in one fell swoop.  Congress might be more pliable in changing election laws in a more piecemeal approach, where one bad provision doesn’t sink a bill full of good changes.

Statehood for Washington D.C. and federal voting rights for territories  would not be required by HR1, but the bill would create a commission to study changes for federal territories and encourages statehood for D.C.   This is most likely to be construed as a power grab by Democrats.  If territories were granted electoral votes in the presidential elections (similar to D.C. in the 23rd Amendment), these areas would likely vote in a more liberal fashion, handing any Democrat an easier path to the presidency.  The possibility of statehood for D.C. or any of the territories would also receive a healthy dose of skepticism because it would likely mean more Democrats serving in Congress.  The United States has an obligation to do more for its territories, but we should be asking why Democrats appear so concerned about this now?  

This bill would weaken state sovereignty.  In our federalist system, the line of demarcation between the national government and state governments will become more blurred.  States generally make their own policies about elections and this bill will take one more power and place it under the vast umbrella of the federal government.  

A compelling argument exists for the uniformity of elections nationwide.  Southern states, in particular, have repeatedly demonstrated their willingness to enact discriminatory practices in elections which either prevent voting or establish unnecessary obstacles to participate in the most important form of political participation.  Moreover, the federal government does maintain an obligation to promote the general welfare and secure the blessings of Liberty for the American people.  

Will this bill pass?

HR1 has already passed through the House of Representatives by a 220-210 vote, almost entirely along party lines (one Democrat voted against, two Republicans did not vote, and two other seats were vacant at the time of the vote).  The Senate will advance the bill since Democrats are in the majority, but the road will be long for the bill to become law.  Why do Republicans not like the bill?

The simplest explanation is that the passage of this bill translates to a strategic loss for Republicans.  If this bill passes, they will lose more elections.  The makeup of Americans in terms of Democrats and Republicans in modern history has leaned towards Democrats.  To offset a numerical disadvantage, Republicans have utilized vast financial resources and gerrymandering to win elections.  (Both parties gerrymander districts when they think they can get away with it, but the Republicans just happen to be better at it.)

Passing this bill would mean independent commissions with members of both major parties would work together in creating fair boundary lines.  If they cannot agree on a redistricting plan, a panel of federal circuit court judges in that state would take over the task.  This would diminish the ability of Republican controlled state legislatures to establish districts that maximize their representation in the House.

Republicans would also lose ground in the financial arms race of elections.  Money does not guarantee a win in an election, but candidates don’t win without it.  Allowing matching funds for small donations helps individuals who do not have access to significant wealth.  These contributions and the experimental voucher programs would benefit people more likely to identify as Democrats rather than Republicans.  Furthermore, the requirements of disclosures of top donor lists from Super PACs would demonstrate who funds the groups with some of the most ridiculous and dishonest attack ads.  These individuals who fund and operate Super PACs would also face more limitations in terms of what types of interactions they can have with those candidates.  

Republicans do not want this bill to pass and they currently have 50 votes in the Senate.  Since HR1 is not a budget related bill, debate is not limited and the GOP members would filibuster this bill if necessary.  Breaking a filibuster and ending debate would require 60 votes and obviously, it’s a difficult hurdle to overcome.  But, Democrats can pass this bill based on what transpires in the next few months.

President Joe Biden and his team can move this bill across the finish line, but it will depend on a few factors:

  • Can this administration deliver on its promises of vaccination availability for Americans?  Biden promises 100 million shots in his first 100 days in office and the administration says it is on track to meet that goal.  The more this administration delivers on promises and meets objectives like this, Senate Republicans will face more pressure to vote for legislation supported by Biden. 

  • What will happen with the Biden team’s infrastructure bill in Congress?  The success or failure of this legislation will help to determine the fate of other legislation in the future.  The more momentum Democrats build now in not only passing legislation, but efficiently carrying out those policies will make it increasingly difficult for Senate Republicans to vote no on HR1 (or any other legislation).
  • Can the administration tamp down distractions?  In any given moment in the United States, issues manifest themselves and government must response.  Gun violence has already returned and the pandemic is still an ongoing reality.  Jobs reports, GDP, market activity, and international crises will also take attention away from other legislative priorities.  

I want to see this bill pass, but the odds are against it at this point.  Democrats need all the stars to align to sufficiently pressure Senate Republicans into passing this bill.  The odds seem to be against these things coming to pass, particularly since the Biden team prioritizes the infrastructure above election law.  I put the odds of it passing as low, but it would be instrumental in making the United States a more democratic nation.