Wednesday, December 4, 2019

Part I

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Kamala Harris Ends Her Presidential Campaign: The New Liberal Senator of 2016 Wasn’t Liberal Enough for the Democratic Party of 2019

Just last Saturday, the New York Times ran a front page article with the headline, “Harris,” meaning Senator Kamala Harris, “Dropped Out of Top Tier as Campaign Began to Unravel.” Now when a top tier candidate begins to have front page articles like this, you know that disaster is just about to happen. And it happened yesterday when Senator Harris withdrew from the race for the 2020 Democratic presidential nomination. Now, recall the fact that she did so on December 3, 2019, what makes that so significant is that the election is not until 2020. Not one vote will be cast until 2020. We’re still about seven weeks away from actual voting. And this means that you are watching this massive sorting in the Democratic campaign before a single vote is cast.

So what has been cast thus far? Well, for one thing, you’ve got all kinds of polling data. Secondly, you have all kinds of party machinations that has a lot to do with who seems to be having the support of the party and who does not. But the biggest issue is money and that is the big sweepstakes as we go into the voting period, which will begin in just a few weeks. The financial sweepstakes is the most important primary of all, and that is where Kamala Harris began to fall short. But the story of her candidacy is at least in some sense almost Shakespearian, because if you were to draw a line, a trajectory, from say 2008 when Barack Obama was elected president, to 2012 when he was reelected, to 2016 when Hillary Clinton was the Democratic nominee, to 2020, that straight line would seem to imply Senator Kamala Harris. She seems to embody just about that line, that trajectory. The point is that that trajectory didn’t happen. Something else is happening. That’s that lurch to the left in the Democratic party.

If you had been able to go to the average Republican, say four years ago, and speak of Kamala Harris as a potential Democratic presidential nominee, she would have appeared frighteningly liberal. That’s just four years ago as you consider that election cycle. But four years later, Kamala Harris elected as a liberal senator of an overwhelmingly Democratic state with a very liberal political culture, she found herself out flanked to the left, not once, not twice, but repeatedly. She then tried to create a kind of political identity for her campaign in something of the middle, but that didn’t work either. Because as it turns out, the former Vice President of the United States, Joe Biden, has most of that vote, whatever that vote is, wrapped up for now. The other issue is that a former vice president of the United States with the stature of Joe Biden within the Democratic party, has access to vast money resources, and that has become very clear in the course of the campaign.

But what has also become clear is that Biden isn’t raising nearly as much money as had been expected. So you’re really looking at the fact that the middle of the party is getting starved for attention. It’s being starved for energy. It is being starved for electoral prospects and money. But 2016 was something of a magic number for Kamala Harris, because that was the year she was elected to the United States Senate to follow Senator Barbara Boxer. She won the Democratic primary and then she won the general election. That was more or less a given because California is so overwhelmingly Democratic, there is not a single Republican that holds statewide office or has been elected by a statewide vote for a matter of many years now. So the first big lesson from the fact that Kamala Harris withdrew from the Democratic race yesterday is the fact that the Democratic party isn’t the party she planned her life for. It isn’t the party that even most Democrats assumed what followed that trajectory of 2012, 2016, 2020. And in this age of political extremes, the Democratic party is tending towards the liberal extreme. The big lesson, the first lesson is that Kamala Harris did not have a lane in the current party to make it even into the election year of 2020.

She did qualify for the next round of Democratic debates, but as she said in a statement to her supporters, she did not see a financial way forward. And the New York Times and the Washington Post both reported that in order to stay in the race even one more week, she would have to borrow sizable amounts of money. Clearly that’s untenable.

But there’s another big lesson when it comes to Senator Harris’s withdrawal from the race, and you’re not going to see the mainstream media give this dimension much attention. It has to do with the fact that Kamala Harris, prior to her election as a United States Senator, was the 32nd Attorney General of California. She held that office from January of 2011 to January of 2017, and before that she was the 27th District Attorney of San Francisco. After she graduated from law school, Kamala Harris began to work in the district attorney’s office there in San Francisco. She also worked in the San Francisco city attorney’s office, and in 2004 she was elected the district attorney. Now what is that role? What does a district attorney do? Well, in the California system and in most of the states in the United States, the district attorney is the chief prosecutor of the legal district. That’s why the prosecutor is called the district attorney. And when you look at a major city like San Francisco, you are looking at dozens and dozens of prosecutors who work under the authority and the direction of the district attorney.

The office of the DA, as the office is so often known, is an elected office. Thus, Kamala Harris ran for that office. She had to run for that office on some kind of platform. Here’s the problem, or at least here’s the problem for Senator Harris today running for the Democratic presidential nomination. She ran to a considerable extent as a law and order Democrat. She was after all, running for the responsibility as being the chief prosecutor of a major American city. And it was actually upon her reputation as a district attorney that she was able to run statewide for, what is among other things, the chief prosecutorial role in the state of California, the attorney general of California. But one of the shifts that has taken place in the Democratic party, is a shift against any kind of law and order candidacy. The accusation made by so many on the left is that the justice system is inherently corrupt and there is a basic spirit, a basic attitude against the government and against police and prosecutors when it comes to the energy in the Democratic party.

Now, one of the claims made by many of those pushing that energy is that there has been a racial disparity when it comes to prosecutions and arrests and also incarcerations. And you have a consensus growing in the United States between the left and the right, that there really is a problem of mass incarceration. It is untenable. It’s untenable politically. It’s untenable sociologically. It’s untenable financially. Again, a basic consensus now exists about that fact on both the left and the right. But the question is, how do you define the problem of mass incarceration as compared to a proper incarceration that is based upon the rule of law? Now, the fascinating thing at the moment is that the Democratic party doesn’t want to answer that question, and all the energy is in railing against prosecutions. And anyone who served as a prosecutor, especially of a major jurisdiction like San Francisco, not to mention the state of California is going to have a backlog of cases that some of the people in her own party would accuse her of prosecuting improperly.

As I said, when Kamala Harris was elected in 2016 as a United States Senator, she was positioned as a liberal candidate in a liberal state and an even more liberal party. But just three years later she has been outflanked to her left. Another one of the major assets that Kamala Harris had is the fact that she has won statewide office and is a United States Senator from California, which has not only a massive population but massive wealth in the Democratic party. And furthermore, given the fact that she had already won a statewide election, it was likely that she would have done very well in the state of California’s primary. But she didn’t even make it to that primary, for that matter, she didn’t even make it to the Iowa caucuses. She had a 100% pro-abortion record according to the abortion activists. She was liberal on just about every other issue you could imagine, but it was very interesting that early in the campaign cycle for the Democratic nomination, Kamala Harris really tripped up on the issue of Medicare for all.

In the digital age, there’s actually no way to get away with raising your hand to say you agree with Senator Sanders and Senator Warren when it comes to Medicare for all and then in the same debate appearing not to have remembered that you raised your hand and then raising it again basically and giving an affirmative and then backing off once again. By the time all that had happened, she had lost all credibility on the issue of healthcare reform and she had probably lost all of her momentum in the 2020 race. It is likely at this point that whoever wins that nomination is going to be someone who raises the hand when it comes to liberal affirmations and keeps that hand up.

Part II

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Elizabeth Warren Wants to Abolish the Electoral College: What that Really Means and Why it Matters

But next, we’re going to talk about another United States Senator. This one’s still running for the 2020 Democratic presidential nomination and still listed of course in the top tier, we’re talking about Massachusetts Democratic Senator Elizabeth Warren. Warren began with controversy over her own ethnic identity in the beginning of the race, but she began to gain a great deal of traction. She was sometimes mocked because she always said, “I have a plan for that,” but she really began to gain momentum when those plans made very clear how liberal she is, even in ways unexpected given her own role in the Senate. And again, what she did before she was elected to the Senate in the first place.

But when you look at Elizabeth Warren, it’s also very clear that there is a certain liability to having a plan for that, because that means that someone could look at the plan. That is Elizabeth Warren’s problem in the race right now. She had been gaining momentum in just about every early contest, but has been losing momentum in almost all of them precisely because, when it comes to the government expansion of healthcare, and the plan known as Medicare For All, she early in the campaign made clear that she would join that movement by joining Vermont Senator Bernie Sanders. And unlike Senator Sanders, who simply gives the affirmation that it will mean Medicare For All and will cost citizens almost nothing and they will get almost everything — Senator Sanders is deliberately vague — when it came to Elizabeth Warren, she had the reputation for not being vague but having a specific plan, so she released one. And releasing it was a political disaster because the numbers did not add up.

When a candidate in this kind of race begins to lose momentum, you see a familiar phenomenon. They begin to throw out issues that no one was talking about yesterday because they are trying to gain some kind of unique attention in the media and especially out there in the digital world. That’s what happened in recent days when Elizabeth Warren put out a tweet that stated, “My goal is to get elected, but I plan to be the last American president to be elected by the electoral college. I want my second term to be elected by direct vote.” Now that should interest all of us immediately because here you have a major top tier candidate for the Democratic nomination saying openly that she wants to be elected by the electoral college in 2020, but in 2024 she wants to be the first American president elected directly by the votes of the American people.

She went on to make a statement, I want to quote in full, she said, “I just think this is how a democracy should work. Call me old fashioned,” said the senator, “but I think the person who gets the most votes should win.” Now what’s behind that? What is behind that is the electoral college as a part of the American constitutional order. And we’re going to be looking at why it is so, and was so, and why it was necessary in order to get a sufficient number of states to ratify the United States Constitution in the first place. But the interesting thing is that Senator Warren, in making a statement that was intended to confuse, actually used language that does clarify. She says, “I just think this is how a democracy should work.”

Now her implication is that this is a democracy and thus it should work this way. Just as in a classroom with 20 children, 11 votes should be enough to win an election. She argues that it should work the same way. The popular vote should elect the president of the United States. But of course the popular vote does not directly elect the president of the United States, and that is because the electoral college was required in 1789 by the smaller states that would enter the union as the price of entering the union, because otherwise they would have been immediately out voted even in the very first year of the American constitutional experience by the larger states such as Massachusetts and New York. The electoral college works exactly as it was intended to work because otherwise a candidate could be elected president only by campaigning in the big states and then and now the big states turned out to be far friendlier to big government and generally more liberal than the smaller states. It was true in 1789; it’s basically true today.

In this sense, the electoral college is a parallel to the United States Senate. There are 435 members of the House of Representatives and those seats are apportioned by population. The state of California has dozens of seats. The state of Wyoming has only one, but when it comes to the United States Senate, California has two and Wyoming has two. And the left has hated that going back to the early years of the 20th century. That is because, as we discuss so often on the Briefing, the closer you get to the coast, the closer you get to population centers and the closer you get to American academic institutions, the more liberal and secular the culture becomes. If the electoral college were to be eliminated, you would never have another conservative president of the United States elected. The entire government would tilt radically to the left, because you’re looking at the population centers on the East Coast and the West Coast and you are looking at the middle of the nation as being reduced to what some in Hollywood and the East Coast call flyover country.

The votes in the electoral college are distributed by the formula in the Constitution, which means that you have an electoral vote for every member of Congress and for both senators. So, a big state like California has far more electoral votes than the state of Wyoming, which if you’re doing the math only has three. And you see the fury on the left when you consider that in the year 2000, George W. Bush was elected by the electoral college, even though he narrowly lost the popular vote. And in 2016 Donald Trump won by a larger margin than George W. Bush in the electoral college, but he also lost the popular vote by a larger margin. The reality is that states like California and New York can pile up the liberal votes. They can pile up the Democratic votes. So when Elizabeth Warren says, let me quote her again, “I just think this is how a democracy should work. Call me old fashioned. But I think the person who gets the most votes should win,” well we just have to remind her that old fashioned in this sense means 1789 — the United States Constitution, the electoral college from the beginning as defining the American constitutional order.

But that raises another issue. America is not and has never been a direct democracy. It isn’t a direct democracy even in the office that Elizabeth Warren holds. She is, after all, a member of the United States Senate and she was not kidnapped and forced to be a member of the United States Senate. She ran for that office. And the United States Senate is in this sense a non-egalitarian body. But America is not a direct democracy. If we were a direct democracy, then we wouldn’t even have Congress in the first place. We would just turn to endless referenda addressed to the American people. Instead the United States as a representative democracy, we elect persons who will represent us in Congress, in the House, and in the Senate. We elect one who will represent us as president of the United States. And you will note that right now, there are already many on the left who are arguing that not only must the electoral college go, but the United States Senate must go as well.

Part III

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The United States Is Not and Has Never Been a Direct Democracy: The Logic of American Constitutionalism

Next, I want to remind us that the controversy over the electoral college isn’t as new as Elizabeth Warren’s most recent tweet. It got rather hot back at the end of August this very year. The New York Times ran an editorial from the editorial board that was headlined, “Fix the Electoral College or Scrap It.” In an interesting sentence, the editors of the New York Times said, “What really disregards the will of the people is the winner take all rule currently used by every state, but Maine and Nebraska.” That means that the person who wins the election in that state wins all the electors. But the incongruity that comes to my mind is that here you have the editorial board saying it is wrong to take a winner take all policy when it comes to the votes within a state. Instead, they want to take a winner takes all policy when it comes to the entire national vote.

There was also what amounted to a debate over the issue that appeared the very same week in the pages of the Washington Post between two dueling columnists, the more liberal E.J. Dionne Jr., and the more conservative George F. Will. Dionne wrote, “The assumptions underlying a controversy are often more important than the controversy itself. Take the case of our blithe acceptance of the electoral college.” He goes on to say, “There is nothing normal or democratic about choosing our president through a system that makes it ever more likely that the candidate who garners fewer votes will nonetheless assume power.” He said, “For a country that has long claimed to model democracy to the world, this is both wrong and weird.” More to the point in his next sentence as he said this, he says, “There is also nothing neutral or random about how our system works. The electoral college,” he said, “tilts outcomes toward white voters, conservative voters, and certain regions of the country.”

Now that sounds awful, but what’s really going on here? Well first of all, E.J. Dionne, like Elizabeth Warren, talks about the United States as if it is hypothetically a direct democracy, which it has never been and was never intended to be. He says, “For a country that as long claimed to model democracy to the world this is both wrong and weird.” But this is not the kind of democracy that America has long modeled to the world. We are a representative republic, a representative democracy. That’s very different.

But then it is clear when he says, “The electoral college tilts outcomes towards white voters, conservative voters, and certain regions of the country.” Now, as I said, that sounds like quite an indictment, but realize it was intended from the beginning to give states with a smaller population, a genuine voice in the election of a president of the United States. What Dionne is really complaining about is that California, New York, Massachusetts, and other highly populous states can’t run away with the election and completely ignore smaller states, including much of the center of the country, which yes, is more conservative and in some ways less ethnically diverse than the coastal regions of the country. It is so now, it has been so for a very long time.

One of the complaints made is that this means that a farmer in Iowa has more of a vote in the United States presidential election, then someone living in Los Angeles. That’s true. But the point is, it was true from the beginning. It was true from 1789. A single farmer in South Carolina’s vote counted proportionally more than a single citizen of New York City in 1790. Otherwise, the first president of the United States, George Washington, could have been elected simply as a matter of accumulating enough of the popular vote in states such as Pennsylvania, Massachusetts, and New York. And the smaller states that required the electoral college, we’re not limited to southern states like South Carolina, but it was also required by states such as New Hampshire in the north.

George Will, quite persuasively, argued that the democrats will change their tune on this issue if they begin to gain a solid electoral majority in states such as Virginia and Texas. If that should happen, it’s already happened in Virginia, then the Democrats a few years from now are likely to be avid proponents of the electoral college.

But before leaving this issue, let’s just remind ourselves of what is necessary to amend the Constitution of the United States of America. The framers and founders never said, “This is a perfect document. It can’t be changed.” They even put in the process of amendment within the text of the Constitution ratified in 1789. What is thus required? Well, the Constitution can be amended in only two ways.

First of all, it can be amended by two thirds of the Senate and two thirds of the House approving a proposed amendment, which is then sent to the states and three quarters of the states must agree or ratify. If that happens, then that amendment amends the Constitution of the United States. The text of the Constitution is changed by the addition of that amendment. The other means is as a convention of the states. Two thirds of the states agreed to call a convention and then whatever the convention should decide is sent to the states. Again, three quarters of the states must ratify for the amendment to pass. The interesting thing to note is that America’s constitutional order is now well over 200 years old and there’ve been 27 amendments to the U.S. Constitution and all of them have come by the first method and not one of them by the second, which is one final point that reminds us of why we should be thankful that the president of the United States is not a dictator.

When Elizabeth Warren, going back to her tweet, says that her goal was to be elected, but then to be the last American president to be elected by the electoral college. She went on to say, of course, she wanted her second term to be elected by direct vote. She can’t do that. She can’t deliver that. And if it requires three quarters of the states, here’s the bottom line, she’s not going to be able to get a sufficient number of states. Even if she could get this through Congress, which she couldn’t, she’s not going to be able to get a sufficient number of states to agree to nullify their own influence in American presidential elections. But as Elizabeth Warren likes to say, and as we’re tired of hearing, she has a plan for that. You can count on this plan not getting very far.