Matt Robison

Republicans are setting up a trap for Democrats on COVID relief

The news that Senate Majority Leader Mitch McConnell none-too-subtly expressed his opposition to passing any pre-election Covid economic relief dragged a simmering political question into the light: why exactly are Republican Senators being so stubborn about stopping something that would appear to help them politically--certainly a lot more than it helps Democrats?

There would seem to be a compelling case for them to have made a deal. Further Covid relief is wildly popular, including among 55 percent of Republicans (and it is pretty hard to find many issues these days that can garner that kind of Republican approval and get 88 percent of Democrats). It is also highly salient to voters: two-thirds of voters in key battleground states want the Senate to prioritize Covid relief over confirming Amy Coney Barrett, and overall, the pandemic remains voters' top concern.

Even more important for Senate Republicans' calculus, GOP Senators like Susan Collins, Thom Tills, Cory Gardner, and Martha McSally, who are the most endangered, would benefit the most by delivering an economic boost in the runup to the election. Among the nine or so Republican Senators in the greatest electoral peril, most have come under direct fire on Covid relief, said they are in favor of further aid (some are even running on their Covid relief credentials), and have positioned themselves as problem-solvers who aren't in lockstep with their party on the issue. A successful Covid bill would solve some of these problems and fit powerfully into their narrative. It wouldn't have to be a major watershed either: even a slight bump of 2-3 points might give Republicans a chance to eke out a handful of wins and hold on to their majority.

So what's going on? The answer has changed over time.

The emerging thinking is that right now, McConnell sees the writing on the wall. He may soon be a Minority Leader under a Democratic President. So his best move has become to leave his option open to lay the entire economic mess created by the pandemic at Democrats' collective feet, in order to jam up their agenda in a re-run of the 2009 stimulus playbook that was so politically successful for his party.

In fact, he's probably decided in recent weeks that he's actually got Democrats poised over a pretty good January trap door: instead of hitting the ground running by fixing the census, passing pro-democracy reforms, or doing a big climate bill, a new president and potentially a new Senate majority will have to expend precious political capital (including possibly blowing up the filibuster) and take responsibility for trillions in additional spending, with all of the inevitable problems and Republican donor outrage that goes with it.

But several Senate insiders – all granted anonymity due to the sensitive nature of this issue – stressed that things have changed a great deal during the five months that another round of federal economic support has been under discussion. If there's a major trap ahead now, it is not as if Democrats have blundered into it: there were solid reasons for each party to have followed the course they did.

In mid-March, as Covid lockdowns began, Democrats and Republicans were largely on the same page, and their political incentives for major economic intervention were going in the same direction. Right after the Senate passed the CARES Act 96-0 and with the US GDP in free fall, one veteran Democratic leadership staffer told me that it was inevitable that there would be multiple rounds of major, bipartisan Covid-related stimulus through the fall. At the time, this sentiment was widespread and seemed totally warranted.

However, only weeks later, rapid re-opening especially in Republican-led states caused swift drops in weekly unemployment claims and a surge in the retail sector (these kinds of positive economic indications even had Democrats temporarily fretting about the potential for a "V-shaped" recovery that would lead to a roaring third quarter economy and, despite all of Trump's disastrous blunders, make his economic management appear strong).

By the summer, headlines began to focus on a "mixed" recovery, and as a result, both parties could look at the same data and reach different conclusions. Democrats were eyeing weak durable goods and industrial production, a looming eviction crisis, and state and local government deficits with alarm, and Republicans were seeing unemployment and stock market rebounds and concluding that things were looking up.

This is at least part of the reason why after the House Democrats passed their $3 trillion HEROES Act in May, Senate Republicans waited until July and only then proposed their much slimmer $1 trillion HEALS Act. They could have acted more aggressively, but didn't see a pressing need – indeed, they continued to believe that time and economic trends were on their side. For their part, Senate Democrats could have gotten on board with the Senate Republican bill and, perhaps following some amendments, set a reasonable floor for negotiators to work with to achieve a bill by September. But at the time, they still saw further relief as so obviously necessary – most of all for Donald Trump's politics – that there was no reason to negotiate against themselves.

And of course, other factors were at work. Some Republicans (think Rand Paul, the lone Republican Senator to vote against his party's Covid relief bill) have genuine ideological opposition to further spending. Others with more philosophical flexibility were eyeing their political positioning in a party facing an uncertain, potentially Trump-less future: traditionally, being against government spending is the safest political ground for ambitious Republicans to stand on.

On top of that, President Trump pulled his usual routine of giving no indication of what he wanted, leaving Mitch McConnell with a fractured caucus (despite Democratic caricatures, McConnell does not pull all of the strings, but actually has to read and react to his team). Not to mention that once the death of Ruth Bader Ginsburg opened up the prospect of a polarizing Supreme Court nomination fight, Senate Republicans and Trump operatives jumped at the chance to ignite their base and move the campaign focus onto relatively more favorable ground (with just about anything being better for them than more focus on Covid). Indeed, at this point, keeping the confirmation on track has become another reason to avoid diverting to Covid relief.

The bottom line is that Democrats may now be poised over a dangerous January trap, but it's not as if they were strategically slipshod or that Republicans were exceedingly clever. Indeed, Democratic leaders may have been right all along that a Covid relief bill would be in Republicans' best interest, but there were simply too many cross-currents that intervened along the way.

The next question will become if Democrats are facing a looming trap, can they evade it? If – absent a Trump victory – the incentives all line up for Senate Republicans to hold out until the new year and stick Democrats with the mess, there are still opportunities in the form of two pieces of legislation considered to be "must-pass" in a post-election lame duck session: the National Defense Authorization Act and a Continuing Resolution to fund the government past December 11. This means that there will be chances for Democrats to at least defray some of the costs of a January Covid bill by attaching them to government or defense funding and getting them done on Republicans' watch. They could, for example, accept Senate Republicans' $500 billion Covid relief bill with additions in the House, attach them to one of these legislative vehicles, and dare them (and a potentially outgoing President Trump) to shut down the Pentagon or most of the federal government to stop it.

Would this maneuver work, or at least improve the politics of a big January aid bill? It's too soon to know. The only thing that has been clear from the winding path of Covid relief is that Democrats will have to stay nimble – things can change fast.

Donald Trump is gaming the Census--can Dems repair the damage if they win?

The Census, as newspapers are at always at pains to remind us, is sneakily important. It helps drive how much power each political party holds in Congress for the next decade, and where trillions of dollars in government funding go. It determines where we draw congressional district lines inside our states and guides how we understand and improve the condition of our people.

And it is in trouble.

There have been two sets of problems. The first, brewing since as far back as 2017, was a mix of mismanagement, mistakes, and bad luck, including "budget woes, potential cyber-security weaknesses, hiring shortfalls, testing cutbacks, [and] a bankrupt printing company." All of which was followed of course by the massive disruption of the pandemic. While efforts have been mixed, the Census Bureau has at least tried to work through these issues.

The second, however, was deeper and more insidious: a series of engineered crises intended to manipulate the count. The most notorious was the Trump administration's plan to include a question on citizenship status, ostensibly to improve the estimate of how many people could vote but actually intended to "allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats." This is not an assertion by Democrats, it is a documented fact (verified, improbably, through an estranged daughter's discovery of a hard drive belonging to a deceased Republican operative).

Supreme Court Chief Justice John Roberts slapped down that plan as a transparently audacious ploy with a paper thin alibi, but there have been other attempts to skew the results that were almost as brazen. Trump issued an Executive Order directing the Census to use other federal data to identify and remove undocumented immigrants from the count (despite the fact that likely no such data set exists and the constitution directs that all persons be counted regardless of immigration status; Trump has requested expedited Supreme Court review of his order).

And the Census Bureau decided to stop its count early – a plan subsequently halted and then reinstated by the Supreme Court – leading to what Government Accountability Office (GAO) managing director for strategic issues Chris Mihm called a likely "drastic undercount" of nonwhite communities, as well as other potential gaps and distortions.

The count is now battered, with unknown consequences. "We essentially are in unchartered territory in modern Census history, first because of the unprecedented scope of the disruption to Census operations, and then because of the unprecedented political interference in Census implementation, which clearly could result in unacceptably flawed Census data," said Terri Ann Lowenthal, a nationally-recognized expert on the Census.

So the big question– with the Trump administration clearly hellbent on manipulating the process for the remainder of its time in office – is whether there is anything that Democrats can do to save it if they take control of the presidency, and especially if they add a Democratic Senate.

The answer seems to be possibly, if the problems are clear, and if Congress gets in gear quickly.

According to Justin Levitt – a professor of constitutional law who has written about the legal ramifications of the Census debacle – the first step in a rescue would be to use congressional oversight and executive control of the agency to open the books. "Transparency and communication have been so sharply curtailed in recent months that nobody really knows what's going on under the hood there," he said. "The problems may amount to paper cuts or they could be cuts to the jugular, but to fix them we would have to understand them better. It's sort of the old G.I Joe refrain – knowing is half the battle."

If there are gaps, or if the count has been manipulated to remove respondents based on purported immigration status using other federal data sets, Levitt says that Congress could potentially move quickly to enact a new law resetting the deadlines for finalizing the results: "Census has been asking all year for more time to do the analysis and data cleanup right, and it hasn't happened. So if there's a change of control, you'd likely quickly see a move to pass a new statute allowing more time to do the post-count processing to get the data as accurate as they can be."

But a critical element in getting that done, especially quickly – let alone enacting any other further policy direction on how to handle a repair – could be the GAO report that comes out with the Census Bureau results and details any issues with accuracy or undercounts. If there are gaps that mostly affect Democratic constituencies or blue states, Republicans are likely to be unmoved – indeed, any Democratic-led moves that could affect the numbers, and therefore tilt the apportionment of House seats in the 2020s, is going to create a DEFCON 1 level of alarm for Senate Republicans. Even in the fraught scenario where Democrats have removed the filibuster, Republicans can still slow the process, and there remains a high likelihood of lawsuits in response to any Democratic legislation that lacks bipartisan support (there's probably going to be litigation even with such support).

However, a GAO report produced under the current Republican administration that corroborates undercounts – and especially that shows them occurring in rural, Republican-leaning areas in Republican or mixed representation states with multiple House seats (think Ohio, Pennsylvania, etc.) – could garner Republican Senate support. The 2010 version of that report showed some significant undercounts even absent all of the considerable problems of recent years, and there are early indications that some gaps are indeed occurring in Republican-leaning areas, with some of the lowest self-response rates falling in states like Mississippi, Louisiana, and Alaska.

If Congress does manage to push back the timeframe for finalizing the count early in 2021, further steps could get even trickier. For one thing, some of the mess may be hard to clean up or even identify – "it's not like their data files are going to have numbers crossed off in bold red lines that you can just undelete," notes Levitt. Agency executives and congressional investigators are going to have to dig through reams of data and a lot of weedy statistics to make sure they understand the contours of where and how problems occurred.

Another challenge is that if gaps are found (mostly in the form of undercounted areas, but also overcounted areas which can also skew the numbers), there are limits at present on how much the raw numbers can then be adjusted to bring them closer in line with reality through modeling and statistical methods. Under current law, these methods are allowed and can even be mandatory for drawing district lines and calculating funding formulas, but not for the all-important apportionment of congressional districts among states – which is the area of greatest interest to the two parties since it affects control of the House of Representatives.

That is an issue that a newly-Democratic Congress could also fix, since it's the legislative branch that ultimately sets the policy on how the numbers are calculated. "Congress, which has constitutional responsibility for the Census, must look long and hard at whether 2020 Census data can and should be used for purposes fundamental to a representative democracy and in ways that allow Congress to carry out its constitutional role as a prudent steward of federal dollars," said Lowenthal.

However, with a fast-ticking clock, lags in passing new bills, legal challenges, and the partisan pitfalls of developing legislative guidance on how to repair the count (through modeling, unwinding Trump directives on undocumented immigrants, or cross-referencing numbers with other data to verify accuracy), nothing is going to be straightforward.

No matter what Democrats do, the Census is sure to be controversial and hard-fought. Given the stakes, it will need to be early and high on the to-do list.

Trump's support is collapsing — but there are 7 reasons why Dems shouldn't get too comfortable

The run of strong polls for the Biden campaign over the last week – including both national polls with eye-popping leads and swing state results with growing margins – has led to some cognitive dissonance.

On one hand, the sheer volume of promising results has launched a streak of "it's obvious that President Donald Trump is going to lose" analysis from influential outlets like The Washington Post, The New York Times, and Politico. When added to other factors like the drumbeat of bad news for the president, the shrinking calendar, and a mounting Democratic advantage in swing state TV advertising, confident Democratic whispers have been spreading.

On the other hand, many remain haunted by 2016. All this year, each fresh piece of encouraging news has had an almost perverse effect, as Democrats now harbor Pavlovian expectations of letdowns, like a never-ending "Debbie Downer" skit on Saturday Night Live.

The dilemma is that accepting recent evidence at face value feels jinx-y and complacent. Ignoring it feels oblivious and obstinate.

But there is a coherent middle ground to stand on: it is reasonable to believe both that Biden's position is strong, and yet that lingering pitfalls ahead – especially given the astronomical stakes involved – are grounds for caution.

Here are seven reasons that Democrats can feel justified to tap the brakes on their optimism without feeling like they are being hopelessly paranoid.

1) The way people respond to polls could make recent results more blip than bump.

Big news events can make members of one party more likely to respond to polls, introducing a temporary bias. This could very well be happening right now in the wake of revelations about Trump's taxes, Covid diagnosis, and wild first debate performance.

Even if it is limited, this bias doesn't have to be much to account for recent results. Biden's margin in polling averages (a far better measure of where things stand than individual polls) has actually increased only two or three points, well within the range of quirky polling effects. His average margin in the swing states has only increased by a point. This is why Democratic operatives feel good about the consistency of Biden's polling leads up to now, but are not too enthusiastic about the recent surges. When a series of gaudy Quinnipiac state results emerged on Wednesday, Priorities USA Chair Guy Cecil took to twitter to call shenanigans: "I…will chime in here to simply say we are not up 11 in Florida and 13 in Pennsylvania."

2) Tightening down the stretch could still put key swing states within reach

There is a long-held belief that high-profile races tend to get closer at the end, as wavering partisans drift back to their political home base. The evidence is inconclusive: the fact that almost all presidential elections since 1980 have ended up tighter down the stretch is an indication, but hardly dispositive.

The more pertinent factor is that the a comparison of polling averages in top battleground states between 2020 and 2016 shows that Trump's deficit right now is basically where it was four years ago. Biden's average advantage is 4.7 points. Clinton's was 4.8. Biden is in a much stronger position than Clinton was in many ways, and methodology adjustments from pollsters have probably made it less likely that there are systematic errors masking Trump strength. But still, even a couple points of tightening (especially from a possibly temporarily inflated average – since the margin was only 3.7 a week ago) would bring a number of swing states into real palm sweat territory.

3) The skullduggery factor

If the swing state margin ends up closer to 3 or 4 points, we start to enter "The Suppression Zone": a range where determined Republican efforts to undermine the Election Day vote could tilt the outcome. As an example, while Democrats are generally a lot more likely than Republicans to vote by mail this year, two-thirds of African American voters prefer to vote in-person. At the same time, this will be the first Presidential election since 1980 where Republicans have been freed from a legal consent decree preventing them from, among other things, "seeking to discourage African-Americans from voting through targeted mailings warning about penalties for violating election laws and by posting armed, off-duty law enforcement officers at the polls in minority neighborhoods." Not only has Trump pledged to resume these kinds of activities (following explicit, albeit slightly more subtle, efforts to "suppress" black votes in 2016), but his Russian allies are actively trying to bolster his efforts by once again targeting racial divides.

In 2016, Hillary Clinton's underperformance in just 10 majority-black zip codes in Wisconsin cost 24,000 votes in a state Trump won by 23,000. Targeted Election Day vote suppression aimed at key African American majority precincts could easily close moderate swing state polling gaps this year. Already, stunningly long lines for early voting, targeted removal of (disproportionately Black) voters from voting rolls, and elimination of ballot drop-off locations are disrupting the ability of Black Americans to vote.

4) Counting rules

Matters are far from smooth on the mail-in voting side either. Given that absentee ballot requests from Democrats are outpacing Republicans' in swing states by as much as 3 to 1, Democrats are right to be concerned about the craggy landscape of state counting rules. Democratic attorneys have mounted a robust legal effort to protect mailed votes, but many lawsuits have ended with "mixed results." New rulings portend serious problems: in Pennsylvania, for example, a state Supreme Court decision discounting so-called "naked ballots" puts more than 100,000 votes at risk.

The vote-by-mail proposition has always been fraught. Back in 2008, experts estimated that "3.9 million requested ballots were never received; 2.9 million ballots mailed to voters were never returned; and 800,000 returned ballots were rejected." People who vote from home are also more likely to make mistakes, and signature mismatches remain a significant source of rejected ballots.

While states have been working hard to improve their ability to process the vastly higher volume of mailed votes this year – and mitigate the kinds of problems that go with them – many remain hamstrung by rules that will add confusion and conflict. A number of key states such as Iowa, Michigan, and New Hampshire only start to process mailed ballots a few days before Election Day; Wisconsin and Pennsylvania do not start until November 3rd itself. Delays, confusion, challenges, and the inevitable wave of post-election lawsuits are exactly what Trump is hoping for in order to shave down Democratic vote margins or create a contested election adjudicated by federal courts.

5) The Supreme Court

This is such a longstanding and well-plumbed source of Democratic stress, with a few significant new pieces emerging in recent weeks. The current 5-3 Republican-appointed Court seems to be leaning toward applying the "Purcell Principle" to various state voting disputes, which holds that courts should avoid last-minute changes to election laws that could introduce confusion. It's a reasonable proposition, but the problem is that without such changes this year, it will be hard to fix problems that will lead to even greater voter confusion and wrongly-discarded votes. Already, the Court has reinstated a South Carolina ballot witness requirement on these grounds, and it seems poised for similar vote-limiting rulings in Pennsylvania and Wisconsin. There is also justifiable worry about what a Justice Amy Coney Barret would do in a contested election: there are certainly a number of realistic scenarios where the Supreme Court could get involved to resolve the outcome, and she has refused to recuse herself.

While some experts have downplayed this danger because "the Constitution places a heavy thumb on the scale toward counting every vote…[and] there is no legitimate role for the Department of Justice during an election contest," there is little indication either that the current Attorney General will apply the law evenhandedly or that the Supreme Court will faithfully interpret the Constitution. The 2000 Bush v. Gore case put an end to the quaint idea that the Supreme Court would not employ tortured logic to deliver a partisan outcome.

6) The Senate

The presidency delivers an awesome degree of power (though not quite in the way people usually think). So a Biden win is critical, especially compared to the alternative. But a Senate majority would give Democrats a real chance at instituting badly-needed pro-democracy reforms that could save our entire system of government, and then passing actual policy through legislation. And the race for the Senate is poised on a knife's edge. Between the Cal Cunningham "scandal" in North Carolina, close polls in key states, and Georgia's unusual primary system--and the possibility of Democrats stumbling over themselves--there is good reason to feel that no amount of Democratic surge is too much, especially since these races will be subject to all of the same potential for suppression, confusion, and delay as the presidential race.

7) 270 is not enough

As I've argued previously, thinking of the presidential contest as merely being about achieving 270 Electoral Votes is no longer sufficient. Given the surprisingly high chance of a complete collapse of the American system of government following a close election this year, Biden likely needs to win by multiple states' worth of Electoral Votes for Americans to feel reasonably sure they've averted a catastrophe.

In sum, politics is hardly a predictive science. So it is still entirely possible that Biden and Senate Democrats will win in a romp, and if that happens, plenty of pundits will say that the signs were there all along. But there are also some darker linings to the past week's worth of silver clouds. Democrats certainly have plenty of firm evidence to feel good. They are also well-justified to continue to feel uneasy.

Donald Trump can't escape blame for America's disastrous failure to manage Covid-19

Bob Woodward's revelation that President Trump was well aware of how deadly and contagious Covid-19 was in early February definitively answered a famous question from an earlier presidential scandal: "what did the president know, and when did he know it?" But there has still been much lingering confusion – much of it intentionally sown by the president – around two related questions: whether the US really did fail in its pandemic response, and whether that failure is actually Trump's fault.

So let's clear this up once and for all. The answers to both questions are a resounding yes: we failed on Covid, and Trump was the leading cause.

As examples of some of the rationalizing and data-chopping that have muddled the issue in recent months, the president claimed in July that our high Covid case counts are simply due to more testing, and then this week he claimed again that we were doing exceptionally well relative to an invented baseline of two and a half million deaths, especially if you only count "red states."

The conservative media have helped Trump muddy the waters. The libertarian journal Reason reached a mixed verdict on whether the US compares favorably to the European Union on Covid mortality rates. Ross Douthat argued in the New York Times that America's performance is satisfactory on cumulative excess deaths when measured against peers in Europe or Latin America, and that any struggles we have are attributable to multiple causes.

These assertions are misleading at best, and simply wrong at worst. More testing was not the cause of more cases (Sten Vermund, dean of the Yale School of Public Health, called this claim "blowing smoke"). Red states alone have one of the worst death rates in the world. And the favorable death rate comparisons are cherry-picked. In reality, we have the most deaths of any country by far and our per capita death rates are twice as high as the average among high-income countries. The FREOPP World Index of Healthcare Innovation (a source that Douthat paradoxically cites) puts the US 27th out of 31 countries in its "COVID-19 Pandemic Performance Rankings."

Indeed, since the US has one of the best public health infrastructures in the world, the most money, and the most global influence, shouldn't we be doing far better than most other countries? And why wouldn't we compare ourselves to the Asian countries that lack some of our advantages and are still running laps around us? China was where the virus started, has four times our population, and yet has had 1/40th the total deaths of the US. Other Asian countries have shown that with smart government leadership it is possible to beat back Covid almost completely. They are certainly beating us hands down.

So of course we have failed.

Nor should one buy arguments that the blame for our dysfunction should be more broadly ascribed to cultural or bureaucratic factors. Of course there are many influences that contributed to the mess we are in. But the idea that libertarian social currents or CDC test-development delays are the real culprit are simply a "whataboutism." There are many clear, specific, and demonstrable ways that our government has cost us in lives and economic suffering. We can attribute most of them directly to Donald Trump.

Trump failed in three clear ways: he was responsible for missing the early signs of danger, for refusing to lead a fast ramp-up when he did know the danger, and for leading in the wrong direction ever since.

First, the Trump administration worked overtime to turn off the mechanisms that previous governments had established as our early-warning radar. The Trump administration "explicitly dismantled the office in the White House" meant to deal with potential pandemics. It cut CDC staff inside China by 2/3 and allowed other on-the-ground health monitoring functions to wither as tensions rose around Trump's trade war. And when the information that was available led US intelligence to warn the President with increasing urgency throughout January, he ignored it.

Second, Trump deliberately and stubbornly sat on his hands in the face of danger to the American people. The Trump-imposed blindness to the threat set us back by multiple – and critical – weeks. Yet there was still time to act by the end of January, when Secretary of Health and Human Services Alex Azar announced a public health emergency.

But Trump spent February golfing, lunching, and watching TV, while claiming that the threat would disappear "like magic." He delayed accelerating production of personal protective equipment, especially masks, and was slow to lift tariffs on Chinese imports or invoke the Defense Production Act, steps that would have made equipment widely available earlier. These shortages led to concerns that medical providers would not have enough, and thereby contributed to confusing guidance for the public not to wear masks. That likely helped spread the disease much faster in the early days, with ripple effects that we are still feeling (studies show that routine mask use by even half the population would have flattened out disease spread and reduced the need for ongoing lockdowns).

There is no more damning fact than knowing that accelerating our national response by a mere two weeks would likely have prevented 90 percent of the subsequent first wave deaths, a figure that easily equals 100,000 Americans. This was totally do-able: the CDC's respiratory-disease chief publicly called for widespread school and work closures three weeks before Trump issued social distancing guidelines on March 16. Fifty-three countries imposed similar national guidelines or lockdowns before Trump took action.

Third, since March 16, Trump has spread confusion and inhibited our ability to implement public health measures that have been proven life-savers elsewhere. Researchers at Stamford University analyzed 38 million English-language articles about the pandemic and found that, as The New York Times described it, Trump "made up nearly 38 percent of the overall 'misinformation conversation,' making the president the largest driver of the "infodemic" — falsehoods involving the pandemic."

Trump pushed re-opening by Easter, urged a slowdown of testing, called for "liberating" states with anti-lockdown protests, pushed quack remedies like hydroxychloroquine or injecting disinfectant, and has sent mixed messages on masks. One could argue that America's opposition to mask-wearing is cultural, so Trump is not to blame. But pockets of mask resistance fall predominantly among Republicans, a group that is highly responsive to messaging from the President. We can only imagine what might have happened if Trump had clearly and consistently pushed mask-wearing as patriotic duty throughout this year.

Among the worst mistakes is that Trump has failed to lead on using all federal resources to address either the continuing shortage of tests or the resulting inability to enact meaningful contact tracing programs, neutering the most effective public health tools we have.

There are a lot of confusing and complicated things going on in this pandemic, as there are in our politics. The question of whether Donald Trump was responsible for a catastrophic failure in responding to Covid is not among them. Leadership matters in a crisis, and America's elected leader failed miserably. with disastrous consequences.

Democrats won't win the battle against Trump's illegitimate Supreme Court pick--but they can win the war

Boiling with outrage at Republican hypocrisy, agonized over the prospect of a 6-3 Republican-appointed Court, and encouraged by promising early polls, Democrats are revving themselves up for an all-out fight for the Supreme Court and egging on party leadership to do the same.

But as painful, agonizing, even repugnant as it may seem, the smartest and most strategic approach is to do the opposite. Democrats have to engage as little as possible on the nomination.

In other words, the only way for Democrats to win is not to try.

They need to start by confronting a difficult truth: despite the wishful thinking of some activists, Democrats are unlikely to actually delay the Senate confirmation vote past November 3. Numerous senior Senate staffers consulted for this article – and granted anonymity so that they could speak candidly given the tensions inside the party on this issue – confirmed that Democrats can at best be "annoying" in the coming weeks, but cannot create sufficient holdups to run out the clock before the election. Employing arcane tactics like quorum calls and adjournment votes, slowing the hearing process, or withholding unanimous consent might move the calendar back by a matter of days or a week. But this is not exactly "shutting down the Senate," and hardly enough to prevent a pre-election confirmation.

Some may see value in employing those tactics anyway in order to keep the stakes of this fight center stage. But the fight for Ruth Bader Ginsburg's seat was lost, before she passed away, in the 2016 race for the Presidency and the 2018 race to control the Senate, elections that gave Republicans, who have abandoned any fealty to democratic norms, the power.

The question now is whether Democrats can reclaim that power and win the larger fight. Not for this one seat, but for the longer-term and ultimately far more critical goals of having a fair Judiciary, preventing another authoritarian figure like Trump from gaining the Presidency again, and putting the rules of American democracy back on the level, so that Democrats have a fair chance to attain the power that the people's votes would otherwise confer.

These are battles that Democrats can win, but they require winning elections. And a good way to win is to set the terms of what the race is about. The Chinese military philosopher Sun Tzu observed that "those skilled in war bring the enemy to the field of battle and are not brought there by him." That is why President Trump and Republican strategists were so giddy at the prospect of a Supreme Court nomination fight: it gave them their best chance of dragging Democrats onto a field of battle of Republicans' choosing, moving from a set of issues on which they were definitively losing to one that at least gives them a puncher's chance. As Politico bluntly summarized it, "Trump allies [were] buoyed [that] the Supreme Court confirmation fight has taken focus away from the coronavirus outbreak six weeks before the election."

The coronavirus crisis – including the economic dislocation it has caused – and the attendant need for affordable health care coverage is a hands-down winning issue for Joe Biden and the Democrats. It drives turnout from the Democratic "base" by stoking anger at Trump's failures on the issues that progressives rank as their top concern. And it also moves the small segment of remaining swing voters: the sub-groups that lead Biden pollster John Anzalone has named as key drivers of Democrats' improved position in 2020 – including seniors, independents, college-educated voters, and suburbanites.

One need not speculate about whether Democrats can win with this message. They already are. The focus on the nexus of Covid, economic pain, and protecting health coverage has given Joe Biden an incredibly consistent polling lead both nationally and in the swing states (CNN polling guru Harry Enten called them "the steadiest on record").

So why at the very end of the most important American political race in living memory would Democrats allow Republicans to control the issue terrain by getting dragged into a battle over the Supreme Court that they can't win?

The case for engaging in this fight boils down to polls: some showing the Supreme Court as an important issue to Democrats, others showing voters more broadly aligned with Democrats on key Supreme Court issues like abortion as well as the general proposition that the winner of the election should choose the next Justice. Some have also argued that if Senate Democrats don't make a show of contesting the nomination, there will be a dampening effect on base voter enthusiasm.

But the polling case is superficial. It is true that there are polls showing Democrats rating the Supreme Court more highly as a voting issue than Republicans even in the weeks before the death of Justice Ruth Bader Ginsberg. For instance, a Morning Consult headline last month blared that "The Supreme Court Is Becoming More Important for Democratic Voters." But while the accompanying article showed that 57 percent of Democrats in their survey cited the court as a "very important factor," that actually ranked only 10th on a list of important issues to Democrats. The top three? Coronavirus, health care, and the economy.

It is also an almost-universal law of American politics: voters do not care about process. Inside-the-beltway talking points about Senate precedent and rules seem murky at best to them, and at worst seem like silly political games (this is why the staffs of Senators running for president are at such pains to get their candidates to stop talking about bills and hearings and amendments).

Trump's best chance to pull off a come-from-behind win starts with clawing back voters who were previously with him but have drifted away. He won in 2016 on his surprising, unforeseen strength with non-college-educated white voters. Their support has eroded by fourteen points this year. But this group also tends to break heavily his way on polarizing hot-button social issues. That is exactly why Republicans are so excited by the potential for a nomination fight: it draws the attention of the voters they need most onto the issues where they align best.

And it is not just the potential to sway these voters, but also to mobilize them, that has Republicans spoiling for this fight. In the three biggest swing states that determined the election in 2016, Trump has more headroom to grow than Biden because there are more non-college educated white non-voters who can be drawn off the sidelines than demographic groups that favor Democrats. Per NBC News, "In Michigan, Pennsylvania and Wisconsin, where Trump's combined margin of victory was just 77,444 votes, 4.9 million eligible noncollege whites didn't cast ballots in 2016. By contrast, only 1.6 million eligible nonwhites and 1 million eligible college-educated whites didn't vote."

Deciding not to take on a scorched-Earth approach to an illegitimate SCOTUS nomination does not mean Democrats have to meekly roll over. It means acting strategically to win in the long term: first by prevailing in the election, and then by asserting their power afterwards to make meaningful and enduring change.

To win the election, they should de-emphasize the Supreme Court nomination issue in itself, using it only as a pivot back to their winning message: Trump's coronavirus failures and determination to take away your health care. Smart Democrats across the party spectrum have recognized that this is the best approach. Elizabeth Warren said that Democrats need to speak about the nomination in terms of "what's at stake in the lives of millions and millions of families." And Nick Gourevitch, one of the Democrats' leading pollsters, tweeted: "An effective message against Republicans: People are suffering, dying, and out of work. And the GOP just doesn't care. They are doing absolutely nothing about it, instead dropping everything on a political power grab to rush a lifetime appointment through the Supreme Court."

Then, if Democrats manage to win unified control, they must then enact pro-democracy reforms as their very first order of business. As I have argued previously, the best thing Democrats could do to drive the enduring change that they want is to get rid of all of the systemic distortions, vote-suppression, and corruption that has built up under Republican control in recent years.

They already have the blueprints to do this. Democrats made the first act of their new House majority the introduction of the For The People Act of 2019, which would have put in critical structural improvements in three areas: campaign finance, ethics and, most importantly, voting rights. It is sitting on the shelf, ready to go. And just last week they introduced the Protecting Our Democracy Act, 153 pages of steps to wash away the abuses of the Trump administration. There are also ready-to-go plans to clean up the Justice Department and the Federal judiciary. Democrats can even make the pending lawsuit that could undo the Affordable Care Act under a 6-3 Republican Court majority moot with a simple bill (if they win the election).

And what about fixing the government institutions themselves – the Senate and the Supreme Court? The arguments around filibuster reform, expanding the number of seats on the Supreme Court or federal appellate courts, enacting judicial term limits, and other measures are complicated (I happen to favor all of these steps). But none of these things are possible without first being in a position of power. That means winning the election.

This prescription is surely frustrating to many. It requires patience, discipline, and the ability to see the bigger picture. But this is also the best way to turn that frustration into something productive, to strike a lasting blow for democracy and equality that would truly honor everything Ruth Bader Ginsburg stood for.

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