January 6 Doesn't Justify Wrecking the Filibuster
Plus: Yelling "fire" (literally and metaphorically), fundraising with non-fungible tokens, and more...
Joe Manchin spoils the fun again. And by fun, I mean attempts to ram through a federal voting bill by any means necessary.
Republicans are not fans of the bill and have previously blocked debate on voting-related legislation several times, filibustering attempts to get it through in June, October, and November 2021. Now, Senate Majority Leader Chuck Schumer (D–N.Y.) is threatening to change Senate rules if conservative lawmakers try that again. But Sen. Joe Manchin (W.Va.)—one of two Senate Democrats, along with Kyrsten Sinema (Ariz.), who has been opposed to such shenanigans—doesn't think that's the way to go.
As it stands, 51 votes are all that are needed to pass a post-debate bill in the Senate. But 60 votes are needed to open and to close debate, meaning it takes 60 Senate votes to actually get anything passed. And getting 60 votes for Democrat-led legislation in the Senate—where 50 members are Republicans—is a tall order.
That's why Democrats have been itching to eliminate or temporarily override the filibuster so they could pass a voting bill with a simple majority (a.k.a. the "nuclear option").
Some supporters suggest that passing the voting bill is too important to play by normal rules and are using the upcoming anniversary of last year's Capitol riot as fuel for this position (though nothing in the voting legislation would or could have prevented that).
For instance: "Trump and his MAGA mob keep telling us in word and deed what they are up to. They believe violence may be necessary if they don't get their way in elections. … And so the question for the Senate — and for filibuster fetishizers Sens. Kyrsten Sinema (D-Ariz.) and Joe Manchin III (D-W.Va.) — is whether to stop the former president and his ilk," wrote Jennifer Rubin in The Washington Post, mixing everything up with particularly melodramatic flair.
Others—like the New York Post's Rich Lowry—have called this conflation unhinged:
The latest pitch for the Democratic voting agenda is more cynical and detached from reality than ever. We are to believe that the only way to counteract the furies unleashed on Jan. 6 is by imposing same-day voter registration and no-excuse mail voting on the states, ending partisan gerrymandering and requiring the counting of ballots that arrive up to seven days after Election Day, among other provisions completely irrelevant to events that day or afterward.
Standing in the way of any filibuster changes have been Manchin and Sinema. And neither seem to be budging, despite Democratic colleagues "launching a full-court press to pressure [them] to back changes to the filibuster that would allow Democrats to pass voting legislation," as CNN puts it.
On Tuesday, Manchin said "being open to a rules change that would create a nuclear option, it's very, very difficult. It's a heavy lift."
"Once you change a rule or you have a carve out, I've always said this—anytime there's a carve out, you eat the whole turkey," Manchin told reporters. "There's nothing left because it comes back and forth."
Manchin seems well aware that any short term gains from blocking filibustering of the voting rights bill could come back to bite Democrats later. "I think that for us to go it alone, no matter what side does, it ends up coming back at you pretty hard," Manchin said, referencing a previous Democratic attempt to confirm lower-level judges without filibuster and then Republicans doing the same to push through Supreme Court nominees.
"I've always been for rules being done the way we've always done, two-thirds of the members voting," he added. "Any way you can do a rules change to where everyone's involved, then basically that's a rule that usually will stay."
How exactly Democrats would change Senate procedure is still unclear. Several options have been discussed, notes The Hill:
Democrats have floated a talking filibuster that would let opponents slow down a bill for as long as they could hold the floor, but then the bill would be able to pass by a simple majority.
Another idea being discussed would be to create a carve out that would exempt voting rights legislation from the filibuster while keeping it intact for other areas — an idea endorsed by President Biden.
They've also looked at smaller rules changes including getting rid of the 60-vote hurdle for starting debate. That change would leave the hurdle in place for ending debate, meaning they could debate voting rights legislation but would still need GOP support to ultimately pass it.
Democrats have also looked at getting a guarantee on amendment votes or making it easier to get votes on bills that get significant support in committee.
Schumer has said the Senate will vote on a rule change by January 17, regardless of whether Manchin and Sinema are on board.
"It has to be done for the good of this country," Sen. Dick Durbin (D–Ill.) told The Hill recently.
But while Durbin and other Democrats may be all in on filibuster reform lately, their tune was often different when they were the minority party, points out Ashe Schow. In 2018, Durbin said ending the filibuster "would be the end of the Senate as it was originally devised and created going back to our founding fathers."
FREE MINDS
You can yell "fire!" (literally and metaphorically). Always read lawyer and Section 230 historian Jeff Kosseff on free speech. In his latest, at The Atlantic, he tackles the persistent myth that yelling fire in a crowded theater is illegal and why this trope is still lacking when it comes to misinformation and inflammatory rhetoric online:
In the past year, some health experts have joined Collins in applying the metaphor to inflammatory propaganda against public-health measures during the pandemic. The national-security whistleblower Alexander Vindman used the crowded-theater trope to describe the Fox News host Tucker Carlson's sympathetic portrayal of the January 6 rioters. Still others have categorized hate speech in a similar way. "When it comes to the amplification of hate, Big Tech is profiting off of yelling 'Fire' in a crowded theater," the civil-rights advocate Rashad Robinson said at a House hearing in December. "And so I understand that we have these conversations about the First Amendment, but there are limitations to what you can and cannot say."
The subtext of such statements is that certain speech is too harmful to ignore. But what exactly should be done about it? TV networks can opt not to show or discuss Carlson's documentary, and privately operated online platforms can take down inflammatory misinformation and hate speech before it goes viral. Perhaps because Facebook and Twitter remove some false or misleading posts—while failing to remove others—these platforms have created the expectation that someone should step in. And the crowded-theater metaphor suggests that this someone is the government.
In reality, though, shouting "Fire" in a crowded theater is not a broad First Amendment loophole permitting the regulation of speech. The phrase originated in a case that did not involve yelling or fires or crowds or theaters. Charles T. Schenck, the general secretary of the U.S. Socialist Party, was convicted in a Philadelphia federal court for violating the Espionage Act by printing leaflets that criticized the military draft as unconstitutional.
More here.
FREE MARKETS
Political candidates embrace non-fungible tokens. "What began in early 2021 as a new way to promote art using the blockchain technology that underlies cryptocurrencies has expanded to the gaming world, retail stores, comic book franchises and now politics," notes Roll Call. "The profusion of NFTs comes even as legal experts are trying to figure out if the tokens constitute a security offering, similar to what public companies offer in stock issues, and therefore subject to regulation by the U.S. Securities and Exchange Commission."
QUICK HITS
After St. Louis elected a reform DA and arguably the most progressive mayor in America, homicides plummeted 25%. I'm not suggesting one caused the other, but imagine how much incredibly dumb shit the press would be saying had homicides risen 25% https://t.co/bjVHAJudn7
— David Menschel (@davidminpdx) January 4, 2022
• The Centers for Disease Control and Prevention (CDC) will stick with its earlier recommendation about when to end isolation after a positive COVID test or symptoms. Earlier this week, White House COVID-19 adviser Anthony Fauci said the CDC may add a negative rapid test to its recommendation, but the agency has decided against that.
• A record number of Americans quit their jobs in November.
• News consumption is way down from 2020 levels.
• Schools are reverting to 2020's COVID playbook, writes Kerry McDonald.
• There's a standoff between Chicago teachers and schools. Schools are scheduled for in-person learning, but the Chicago Teachers Union "told its teachers in a memo that Jan. 18 will be the next day of in-person instruction," notes the city's CBS affiliate. The district "has not yet addressed the plan beyond canceling classes Wednesday – and Mayor Lori Lightfoot earlier said the union does not get to make such a decision."
• A new lawsuit is challenging Ohio's 25-year-old school voucher plan.
• In California, new regulations adopted by the State Water Resources Control Board "prohibit overwatering yards, washing cars without a shutoff nozzle, hosing down sidewalks or watering grass within 48 hours after rainfall," the Los Angeles Times reports.
• Kosovo is banning cryptocurrency mining in a bid to save electricity.
