Taking back Congress, Democracy, and the Country

Democrats need to start thinking- and acting- outside the box.

For the past several years, Democrats have been self limited to reacting- never acting- always in response to some outrageous Republican lie. Think: Democrats are for open borders to freely allow killers and other criminals to enter the country; Democrats want to take all of your guns; Democrats want to spread the gay agenda (making all your children gay); and most recently, Democrats are anti-Semites and want to kill babies. Those last two are so grossly outrageous that one wonders how anyone- let alone the President of the United States and a Republican Congresswoman head of the Republican Committee to elect their party members to Congress (Lynn Cheney of Wyoming, daughter of Dick)- could spread such obvious falsehoods. But there is no doubt that a significant number of Republican voters now believe that Democrats not only hate Jews (apparently millions of us are self hating) and are not only in favor of infanticide, but that the killing is already occurring.


The solution is not for Democrats to constantly be back on their heels, reduced to denying lies.. Democrats have to pick a very specific agenda, and move forward on it, methodically, without a lot of publicity or media attention, and take back Congress, then change it so that future members won’t be able to grandstand and block legislation as has happened over recent decades.

Democrats should first change fundamental procedures in House committee hearings: no more five minutes of grandstanding or speechifying for each member, rotating by party, as key witnesses are being grilled but know that they can run out the clock rather easily, as Matthew
Whitaker and William Barr recently did. Instead, every committee should designate an experienced trial lawyer to conduct all questioning. The members will have to sacrifice their opportunity to get their moment in the sun, but if we can ask Marines to risk their lives on missions, surely we can ask Democratic Congressmen and women to give up the opportunity to make five minute speeches at a helpless witness sitting at a table. Every experienced trial lawyer (and I am one, with over 42 years under my belt in civil and criminal trials) knows that you can’t conduct an effective cross examination of a witness with a five minute time limit, interspersed with examinations by a hostile lawyer, every five minutes, that break up any possible flow. A good cross examination of a hostile witness (i.e., a Bill Barr or a Donald Trump, Jr.) is focused, tight, has objective questions that can’t be ducked to which the examiner already knows the answer, and culminates in a question that no matter how the witness answers, the effect is to discredit him or her.

If committee members have questions to which they want answers (and not just an opportunity to vent at a witness), they can submit them in writing to the committee chair before the hearing, and the chair can decide if they will be given to the trial lawyer to ask. And if committee members are sulking because they aren’t getting their five minutes in the limelight, one solution would be to designate one or two to meet in the hallway after the hearing and make whatever speeches they desire to the assembled media, alternating the members who do so each day until all members are accommodated.

The same rules will apply to Republicans: they can either designate one of their own to ask questions or bring in a trial lawyer, as they did in the Senate Judiciary hearing on Brett Kavanaugh with a Maricopa County (Phoenix, Arizona) prosecutor. In any event, after the Republican questioner is finished, the Democratic trial lawyer will have the last word- the last series of questions, if any are needed to clarify or puncture any dubious assertions made during the Republican lawyer’s questions. Also, there will be no time limit. Just as in real trials, there is no chance to “run out the clock.” However, the Chair will have the power to tell a lawyer he is at the end of his rope if the opportunity is being abused as some sort of filibuster rather than good faith questioning (I don’t expect any Democrat to engage in that sort of tactic, however).

Democrats should also make clear that once they retake the Senate, the era of “Senatorial courtesy” that allows one Senator to block a nomination and the era of the filibuster is over. Done. Kaput. Henceforth, each house of Congress will operate on simple majority rules, but with protections written in to allow the minority to bring bills to the floor and to propose amendments to any bill. If Democrats can’t win those political battles on their merits, then tough luck for them. Hopefully, they will have learned some valuable lessons from decades of Republican obstructionism and outright cruelty (trying to repeal the Affordable Care Act would have led to thousands of deaths).

As for the daily spokesperson for the House Democrats, Nancy Pelosi should cede this position to rotating Congressmen and women. There are currently 235 in the House. Assigning two per day to this chore, pairing the most recent members to the longest serving, would mean that in 118 days everyone would have a chance to shine. Of course, the Democrats will need a coherent strategy so that the spokespersons will be in tune with the whole Democratic caucus.

And what should that strategy be? The Democrats already have a good start, but they haven’t made their case in committee hearings. Their election reform bill is a good one, but it was dead on arrival in Mitch McConnell’s Senate (more on that below). I think they should start over with extensive fact finding committee hearings. They should make a public case for election reform- ending voter ID restrictions that disenfranchise the poor, ending gerrymandering that allows states like North Carolina and Pennsylvania to have Republican majorities in the House that belie the actual vote totals in each state, and end voter purges and vote suppression as occurred in Florida and Georgia in recent years.

The Democrats should hold hearings on the voter photo ID laws and bring in the legislative leaders from each State that enacted them a decade or more ago, put them under oath, and have them reveal to the country that the uniform laws passed in states with Republican controlled legislatures almost simultaneously were not the result of any actual hearings or any reports of any voters coming to the polls as imposters and casting ballots in the names of other registered voters. Get them under oath to admit that the sole purpose of the law was to suppress legitimate Democratic votes and to win close elections. Get them to admit that the uniform legislation was handed to them by national Republican operatives (I saw Karl Rove’s brain behind this strategy, just as he made sure that anti-gay marriage issues were on many States’ ballots in the 2004 election to bring out the evangelical voters).

Do the same with gerrymandering laws that created strangely shaped districts to ensure Republican control of the House. Have the legislators admit under oath that the sole purpose was to create and maintain those majorities even when they were a minority party in that State.

Then Democrats need to reform those laws. They should use the power vested in them by the Constitution- specifically the Equal Protection Clause of the Fourteenth Amendment and the lifting of voting restrictions in the Fifteenth:

“... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

And the Fifteenth:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

The Congress shall have power to enforce this article by appropriate legislation.”

This legislation should be carefully crafted as if one were building a structure intended to last for a hundred years or more. The Congress should mandate that voting in both Federal and State elections will be subject to stringent standards intended to make those elections fair and equal to all. Paper ballot backups should be required even where voting machines exist to prevent hacking or electronic malfunctions. Additional precincts have to be added in any State that had areas with long waits at the polls or distant travel to vote. No State should be allowed to purge rolls of voters or enact any law that may restrict voting rights without being precleared by the Justice Department (the old Section 5 of the 1965 Voting Rights Act that the Supreme Court imprudently concluded in a 5-4 vote in the case of 2013 in Shelby County v. Holder was no longer necessary, followed immediately by some states- most notably Texas- acting to restrict voting by likely Democratic voters). No State’s legislature will be allowed to redraw districts for Federal or State elections until approved by the Justice Department. Every State should be required to have a bipartisan election commission that will draw up district boundaries.

Then Democrats need to attack the toxic role of large sums of money in the process. One idea is to allow every citizen eligible to vote in a Congressional district or a State race to have a sum of public money in the form of a voucher which each citizen can dispense to candidates as he or she sees fit. If Georgia has four million voters, for instance, and every voter has a $100 voucher, that’s $400 million dollars that can be spent. The voucher can be divided to support multiple candidates in multiple races. However, no person will be allowed to give actual dollars to any candidate, and no candidate for State or Federal office will be allowed to ask any person for money. Those actions will be considered bribery or soliciting a bribe. No out of State person will get a voucher or be allowed to contribute money.

As for a candidate spending his own money or a PAC trying to influence an election by spending millions on attack ads- that won’t be prohibited. But the pernicious effects of that “dark money” can easily be dealt with without in any way bruising their First Amendment rights of Free Speech. Simply, every attack ad against a candidate will have to first be previewed by the person attacked, who will have a right to film a response that will run immediately after every airing of the attack ad, the same length of time, free of charge. Passing that one act of legislation will do more to undo the terrible effects of the 2010 Supreme Court decision in Citizens United v. FEC than anything else- without doing any damage to the First Amendment. Any PAC attempting to influence an election will realize that every real dollar they spend will only enable the attackee to have a free ad immediately following theirs which will undo any harm they intend. I’m sure they’ll eventually find a way to spend their money (probably by printing their slanders and libels and sending them via direct mail) but the candidate attacked will still have millions of dollars of public money from the voucher system to deal with that kind of low blows.

In addition, States should be required to allow early voting, automatic voter registration when persons get driver’s licenses or apply for any form of public assistance, allow mail in ballots and internet voting, all to increase the participation in elections.

Medicare for All has been a big issue with Democrats. They should get together and agree that the ultimate goal is to have every American insured at a reasonable cost. The first step towards Medicare for All is a public option that allows any person under 65 to purchase Medicare insurance at cost- in other words, it will cost the taxpayers nothing. A second step, to shore up the financial underpinnings of Medicare, is to take away the restriction on taxes to only earned income. Persons making billions from stock deals, real estate passive income, interest income, and capital gains, should be subject to the same low tax (about 2.9%) as any self employed person. By the same token, there should no longer be any cap on Social Security taxes (12.4 % of $128,400 is the current cap, or $15,921.60). If a wage earner makes $40,000 and pays a total of about 7.5% tax (Social Security and Medicare combined- the employer matches it), why shouldn’t someone making a billion dollars a year do likewise and pay 12.4% of his gross income? As time passes, Democrats can start to find ways to subsidize persons who can’t afford to pay the premiums. The increase in tax revenue by expanding the base of income is one way to accomplish this. Repealing some of the massive tax cuts to the rich would be another.

The one thing that Democrats fail to realize is the power that is theirs to wield, and that is the power of the purse. By Constitutional requirement, Article I, Section 7 (“All Bills for raising Revenue shall originate in the House of Representatives”) the House has the sole power to initiate appropriations bills. Literally nothing can function in the Federal government- not the Executive Branch, the Judicial, the Congress, the military, any agency- unless the House appropriates money for it. The Democrats should eschew massive omnibus spending bills, and come up with a plan to enact legislation that currently is being blocked in the Senate, including the bills to reform elections. Using a scalpel rather than a broadsword, the House should pass bills that micromanage the CIA, the NSA, reducing the vast black budgets to nothing and requiring them to account for every dollar spent.

Democrats should micro manage the military, cutting out wasteful programs that exist solely to put money in defense contractors’ pockets (i.e., nuclear attack submarines that currently have no known enemy, vast spending on exotic weapons programs that are useless in the age of low tech terrorist attacks and guerilla warfare in locations like Afghanistan).

More importantly, the Democrats who control the House should find programs in every State represented by a Senate Republican- Kentucky being a prime example- who lives only for the purpose of blocking any Democratic proposed legislation. Not one Federal dollar should flow into the State of Kentucky for any purpose, including farm subsidies, military bases (Fort Knox can be closed or moved), until Mitch McConnell moves forward and passes the reform bills needed to restore our democracy. It may seem like dirty pool or crass politics, but it doesn’t even come close to the level of a Mitch McConnell who would not even allow Barack Obama’s Supreme Court nominee, Merrick Garland, to meet with senators, let alone have a committee hearing or a Senate vote. Sometimes those chickens come home to roost, and the Democrats in the House should make very clear that Mitch McConnell and any other obstructionist Republican- or flamethrowers like Lindsay Graham- will have to pay the consequences. The harm to the people of their States should be short term (much like Trump’s closure of the entire government for more than a month, or his insane tariffs, which may last much longer). But the Democrats only have to win this battle once, then they can forever keep that weapon in their arsenal, ready to use the moment a Republican dares to try to thwart the will of the voters in this country.

Once that battle is won, then all else is possible: a Medicare for All public option; raising the national minimum wage; sensible gun control- including universal instant background checks and a ban on assault weapons and large magazines; voting reforms; and campaign reforms that go far towards ensuring fair elections with maximum participation.

Finally, Democrats should, in this time of economic boom, give Republicans what they have always pretended to want: a balanced budget. By repealing the tax cuts for the super rich, cutting vast waste out of the Pentagon’s budget, expanding the tax bases for Social Security and Medicare, the Democrats should be able to get close to balancing the federal budget. And if they send a balanced budget to the Senate, it will be fascinating to watch Republicans back track on their Tea Party rhetoric.