Power Grab

by Jason Chaffetz

  Instead, opponents of the Electoral College have created an end run around the Constitution. The National Popular Vote Interstate Compact (NPVIC) seeks to gain cooperation from states for a radical new approach to electing a president that guarantees large liberal states can control the outcome without getting rid of the Electoral College. States merely have to agree to give up their Electoral College votes to the eventual winner of the popular vote nationally.

  The group’s website disingenuously describes the process as a way to “guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia.” Except that is not true. The candidate who wins the most popular votes in Colorado, for example, will receive no Electoral College votes from that state, which recently joined the compact. Instead, Colorado will by law pledge its votes to the national winner. In the last election, that winner received her entire margin of votes over her opponent from one state—California. And who will care about the needs of a Navajo voter in a less populous state when they really need to win the vote of a Silicon Valley executive?

  The caveat of NPVIC is that no one has to give up those electoral votes until they manage to completely rig the election by gaining support from enough states to represent a majority of the 538 electoral votes. The needed number is 270. With the pledge from Colorado’s new governor, Jared Polis, in March 2019, the total of pledged electoral votes stands at 181. Those 181 votes come largely from the Clinton Archipelago states of Vermont, Massachusetts, New York, New Jersey, Rhode Island, Maryland, the District of Columbia, California, Hawaii, and Illinois. New Mexico is on tap to join next. Nevada’s Democratic governor recently vetoed that state’s attempt to join the NPVIC, releasing a statement that explained, “Once effective, the National Popular Vote Interstate Compact could diminish the role of smaller states like Nevada in national electoral contests and force Nevada’s electors to side with whoever wins the nationwide popular vote, rather than the candidate Nevadans choose.”

  Beyond the constitutional questions raised by this effort, one has to wonder if supporters have truly thought it through. Governor Polis, who some readers may recall joined me for a CNN online series called Freshman Year in 2009, is a very progressive Democrat running a state that is controlled by its Blue urban centers. He and I were chosen as freshmen to be featured by CNN because we represented the opposite sides of the freshman class that year.

  Try to imagine what would happen if Donald Trump manages to win the popular vote in 2020. How would Polis explain to his liberal voters that NPVIC would theoretically send his state’s nine electoral votes to Trump? Though NPVIC is not likely to be in place by 2020, it would be fun to watch the fireworks if voters in places like New York, the District of Columbia, Hawaii, and California were forced to consider the possibility that their states’ electoral votes could all go to Donald Trump. There would be an absolute national crisis.

  The idea that a state’s electoral votes could be pledged to a candidate with very limited support in that state flies in the face of the whole notion of one person/one vote. The system will produce only politicians fighting to win Californian votes. If your state’s votes are pledged to the winner of California, you do not have one vote. You have no vote.

  The other target of Clinton Archipelago representatives is the Senate, where Democrats argue a profound small-state bias gives an inordinate power to kill legislation supported by popular majorities. In fact, one popular meme after the 2018 midterms was a misleading attempt to combine all Democrat and Republican votes in Senate races across the country to come up with a popular vote total. It went something like this: Senate popular vote—55.4 percent for Democrats, 43 percent for Republicans, but Republicans gain three seats. This messaging was used to argue that Senate representation is inherently unfair and does not represent the will of the people.

  What gets lost in the popular vote messaging is the truth. Once again, the biggest state has an outsize influence. California’s supermajority Democratic legislature has adopted a jungle primary system that allows the top two vote getters in the primary to face off in the general election regardless of party. This effectively eliminates Republicans from contention in statewide races where the state’s densely populated urban counties outvote their rural counterparts. With that one state’s massive Democrat advantage, races for U.S. Senate don’t often have a Republican challenger in the general election. So the 40 percent of Republicans in California don’t even have the option of voting for a Republican on election day. Furthermore, with only one-third of Senate seats up for election in any given year, there are disparities in the number of incumbents from each party. In 2018, Democrats were defending 26 seats. Republicans only had 9. Sure, each race still has two candidates, but many races involving incumbent candidates are lopsided in favor of the incumbent.

  The notion that because one party lost an election, they should now eliminate all structural advantages to the other party, while maintaining their own structural advantages (such as proportional representation in the House of Representatives), is anti-American. Our system was created to protect minority voices and viewpoints and to ensure those voices are not drowned out by a large number of votes in a small number of locations.

  Restoring Checks and Balances to Prevent Abuse

  Even more critical than protecting our diversity of voices is the need to maintain and strengthen traditional checks and balances among the three branches of the federal government and down through the state and local levels. The good news on this front is this: checks and balances work. They do slow things down. They aren’t as expedient as putting all the power in one convenient dictator, but they prevent abuse. They create accountability. And most important, they have bipartisan support. But there is a caveat to that support. That support can be conditional upon which party is in power.

  Too often the party in power, seeing no immediate benefit in strengthening or protecting those checks on itself, looks the other way when abuse happens. In this case, building bipartisan support for stronger checks and balances is difficult. It’s not hard to get support on this issue; it’s just hard to get it from both parties simultaneously.

  Reining in the power of the executive branch to make law should be the first order of business. For decades, Congress has allowed the executive branch to take on authority not granted in the Constitution. For example, in 1976 Congress passed the National Emergencies Act authorizing presidents to use broad discretion in managing and funding emergencies without congressional approval.

  Since then, presidents have invoked that power fifty-eight times. I believe President Trump had the authority to designate the situation on our borders a national emergency, thus enabling him to redirect money to build the wall. I don’t think presidents should have that authority. But the fact remains that previous presidents have exercised it with impunity. Therefore, President Trump can also do so. I agree with Representative Mark Meadows of the House Oversight Committee, who tweeted back in March 2019:

  One thing lost in discussion: the President’s executive action on the border is LEGAL, within the law as written. You can argue whether it should be, and if Congress wants to permanently rein in executive power, I’m in. Until then: @POTUS is right to address the border emergency.

  If Congress has a problem with a president exercising that authority, then Congress should by all means check the president’s power. Pass legislation to rein in that authority for all presidents and let’s strengthen that check and balance. But absent universal action, I can’t support a position that suggests that the exercise of discretion over national emergencies is available to some presidents and not to others.

  It was telling to me that during that whole debate, we didn’t hear Democrats demanding legislation to permanently restrict a president’s power to designate national emergencies. Their argument was that President Trump should not wield that power. I don’t know if Democrats, who favor a strong central government and lean toward socialis
m’s greater reliance on force to restrict freedom, could ever be persuaded to rein in the executive. But if ever that were going to happen, it would be now, during the Trump presidency. Republicans in the Senate should initiate and vote on such legislation. If it doesn’t pass, let Nancy Pelosi and her House majority explain to the public why they wouldn’t support strengthening their own check and balance on Donald Trump.

  Now is also the best time to shore up oversight authority by passing legislation to give Congress a means of enforcing subpoenas for documents and witness testimony. Relying on the Justice Department to enforce those subpoenas is a mistake. It has not worked. Once again, President Trump’s administration is in a position to follow in the footsteps of its predecessor and ignore congressional subpoenas. They can technically ignore document requests, deny access to witnesses, and basically refuse to participate in congressional oversight investigations. Again, they shouldn’t have that option. But because Congress allowed other administrations to do so, they have little argument to stop the Trump administration from following suit. If they want to enforce cooperation with their investigations, they need to create laws that apply to Democratic and Republican presidents alike. Responsibility for the failure to enact such measures falls equally to the leadership of both parties. Certainly Speaker Pelosi has shown no interest in permanently recovering power her party long ago ceded to strong executives. But Republican leadership during the Obama administration was equally culpable for their unwillingness to choose this battle.

  There is one area in which Congress is threatening to overstep the authority of the checks and balances granted to the body. With a Supreme Court now leaning conservative and with the very real possibility that another liberal justice could be replaced with a conservative appointee, Democrats are seeing the Supreme Court potentially move out of their reach for a generation. They themselves weakened the check on judiciary appointments during the Obama administration when Senate Majority Leader Harry Reid got rid of the sixty-vote requirement on most nominees in 2013. This paved the way for Republicans to apply that same threshold to Supreme Court nominees.

  Now, with the possibility of a third Trump appointment to the Court, Democrats are considering changing the process to favor their party in the short term.

  Presidential hopefuls Kamala Harris, Elizabeth Warren, and Kirsten Gillibrand have all acknowledged they would consider sweeping changes to the Supreme Court to offset the conservative majority. Beto O’Rourke and Pete Buttigieg have also signaled possible support for expanding the court to neutralize conservative justices. Warren calls it “depoliticizing” the Supreme Court. Kamala Harris suggested, “We are on the verge of a crisis of confidence in the Supreme Court.”

  For their part, progressive nonprofit activist groups are all in for packing the courts. Ezra Levin, cofounder of Indivisible, told Politico: “Any Democratic presidential candidate who is serious about implementing a progressive agenda has to seriously consider appointing new justices to unpack the courts.” Wow. How did the courts get “packed” in the first place? Apparently because the Republican Senate refused to hold a confirmation vote on an Obama appointee (Judge Merrick Garland) in 2016. Advocacy groups like to pretend that Garland was denied the seat. In reality, he was merely denied a vote. To be sure, it was a norm-breaking move for Senate majority leader Mitch McConnell, but not one that changed the balance of power on the Court. Democrats never had the votes to confirm Garland.

  The fact is, every Supreme Court justice now sitting on the bench got there through a legitimate confirmation process. To imply that the courts are “packed” and that there is a “crisis of confidence” merely because conservatives hold a slight majority on the Court is a level of hyperbole even Donald Trump can appreciate.

  Fortunately, not every Democrat in the Senate is on board with the court-packing plan. Senator Jon Tester told Politico, “It’s like changing the rules of the Senate. I think it’s a mistake. Probably the biggest mistake I ever made was voting on the rule change on judges.” I agree with Tester. Anytime we mess with long-standing institutions, we risk undermining our own stability. Changing the process or the size of the Court to suit short-term partisan goals is a bad precedent to set. As this process has already shown, any advantage to one party can eventually be used to favor the other. Better to reach bipartisan consensus on any major structural changes that affect checks and balances between the branches of government.

  A check on Congress that could use some shoring up relates to oversight responsibilities. In my book The Deep State I wrote extensively about the changes I believe need to be made on that front and the subversive powers that fight against them. But suffice it to say that the boundaries of congressional authority as set in Supreme Court precedent in Watkins v. U.S. need to be codified and enforced. The case found that oversight investigations could not have an unlimited scope, but must “be related to and in furtherance of a legitimate task of Congress.” That is still a broad mandate to oversee government, but it restricts oversight from interfering in individual lives or private markets.

  Congressional oversight, even partisan-driven oversight, can be effective when used to inform legislation and check executive branch expenditures. Using oversight authority in that way helps maintain credibility and improve outcomes. Unfortunately, the oversight function has lost a lot of credibility even just in the short time since I’ve been gone from Congress. Intelligence Committee chairman Adam Schiff arguably abused his authority by trading on the credibility of his security clearance to spread misinformation. That same Representative Schiff, upon first being appointed to the Intelligence Committee, thought differently of the committee’s role.

  It’s the least partisan and probably the most productive of all the committees on the hill. That’s in large part because the meetings are in closed session due to the classified information. There’s no grandstanding because there is no one to grandstand to. We get our work done and don’t use each issue to bash each other.

  A return to those values would certainly help. Schiff’s own efforts to politicize the committee, misrepresent classified information, and prejudge the outcome of investigations may have provided some short-term advantages for the 2018 midterms, but the long-term implications weaken his leadership and his committee’s credibility. Speaker Pelosi should remove him and replace him with a chairman whom the intelligence community can trust.

  I worry that the extreme left and the socialists among us are engaged in a massive power grab, not because we the people have come together to say this is the direction we’re trying to go in, but because they don’t think the public will defend what we have. What does that mean to people like you and me? We have to defend our rights.

  Let the Rule of Law Govern

  We also have to defend our laws and our standards. They are under threat—not from those who would destroy them, but from those who would selectively enforce them. We are a nation of laws. But if our laws are not equally applied, they are meaningless. As American citizens, we cannot afford to let emotion drive the enforcement of the rules or the application of our standards.

  We cannot tolerate one standard for Hillary Clinton and another for Donald Trump. Too often we are being asked to condemn people for behaviors long tolerated by previous administrations. When we call it out, we hear cries of “Whataboutism”—suggesting that just because it was done by a prior administration, that doesn’t make it right. That may be true, but it’s important to call out double standards. We should not settle for a nation in which laws and standards apply only when we disagree with the person being accused. That’s not the nation we want to live in. We can do better.

  As we evaluate the work of Congress, we will get better results if we can learn to look past the narratives we are being fed and instead demand to see the factual and the evidentiary foundations of the work Congress is doing.

  Protecting the Bill of Rights

  There is no positive path forward without preserving the rights we somet
imes take for granted. Americans have always had to vigilantly protect the God-given rights spelled out in the Constitution’s Bill of Rights. Despite broad agreement that those rights are inalienable, we don’t always agree on how to apply those freedoms. They were hard won, but they can be lost in a single generation.

  Our First Amendment rights still come under attack in countless ways—a problem that I have seen escalate since 2016. We face blatant suppression from social media censorship, unwritten restrictions on college campus speech, prohibitions on our ability to finance campaigns, and overly broad definitions of racist, bigoted, or hate speech that encompass the expression of long-standing religious beliefs. In my observation, these attempts to restrict speech are almost always aimed at shutting down political speech. The number of news stories that have been written suggesting that engaging with Trump supporters somehow normalizes abhorrent views is a disappointing narrative coming from the fourth estate.

  I have come to appreciate how strong and powerful freedom of speech is, but I’m disheartened by how quickly free speech supporters change position when they encounter someone with whom they disagree. In my experience, the people who preach tolerance the loudest are often the least tolerant. Preserving this fundamental right to free speech is not optional. It is a bulwark of our system. If that means we sometimes have to protect speech with which we disagree, that is the price we pay to live in a free country.

  Our Second Amendment rights are perpetually under siege as antigun groups attempt to punish the law-abiding for the sins of criminals. This is an issue near and dear to my own heart.

  I didn’t grow up with guns. My family didn’t hunt. We enjoyed hiking and camping in the outdoors, but my dad was not one to take us hunting. I shot a gun at camp, and I was intrigued by guns, but it wasn’t until my own family became the target of a crime that I came to appreciate the right to bear arms.