Superior Solution For The SCOTUS Emergency

Barrett by Chip Proser

by David Leibowitz

Indivisible has recently posted a web page titled “The 2-Step Strategy to Win the Supreme Court Fight” that clearly lays out the available conventional grassroots tools and strategies for dealing with the SCOTUS emergency. The first step is to block the approval of any Supreme Court nominee during the remainder of the current Senate session. The conventional methods now being brought into play in that effort are worth trying and could succeed, but have a high probability of failure. Neither of the two Republican senators whose cooperation we require is up for re-election this year, with their next general elections being more than two and more than four years away. The three Democratic senators whose cooperation we require are standing for re-election this November--but their primaries are over and their re-election this November seems to be essential if the Democrats are to win control of the Senate next year. The next election at which they could pay any price from the Democratic base for voting “yes” on a SCOTUS nomination this year is a whopping six years off. The grassroots anger that will erupt immediately following any “yes” vote by any of the five senators will have been forgotten by virtually all voters by time each senator’s next election contest rolls around with its fresh current issues. Therefore, all five senators whose cooperation we need in this emergency are effectively free to vote “yes” for a Trump SCOTUS nominee in 2018 with political impunity—and they know it. If any one of them responds favorably to petitions, phone calls, emails, demonstrations, newspaper ads and other conventional lobbying efforts, it will be as a matter of conscience, decency and political courage only. In politics, other considerations often override those personal attributes. Yet we need a minimum of four of those five senators to vote “No”. There’s got to be a better way!

There IS a better way: the conditional pledge drive. In a conditional pledge drive, a very large number of individuals who cumulatively hold real power over a targeted incumbent politician sign conditional pledges, that are then bundled together by the drive’s organizers and presented to the politician to induce the politician to behave a certain way. The pledges are not declared effective and their submission to the politician does not commence until a targeted minimum number of them has been collected (based on analyses of the voting population and history in the politician’s district). The pledges can take various forms depending on the political context. In the current context, pledge drives can be designed to influence a politician to vote “No” on any nomination to the Supreme Court either for the remainder of the current session of Congress (step 1 in Indivisible’s classification), the entire duration of the next session of Congress (step 2), or the remainder of the current Presidential term (steps 1 and 2 combined). Below, I will discuss, with examples, conditional pledge drives intended to compel a politician to vote “No” during the remainder of the current session of Congress. First I will discuss conditional voter pledge drives, using Republican Senators Susan Collins and Lisa Murkowski as examples. Then I will discuss conditional pledge drives targeting Democratic Senators Joe Donnelly, Heidi Heitkamp and Joe Manchin III. In the course of that discussion I will introduce two additional kinds of conditional pledge drives and make some recommendations concerning the structuring of conditional pledge campaigns.

Conditional Voter Pledge Drives targeting Susan Collins and Lisa Murkowski

In the current context, a conditional voter pledge targeting one of the Republican senators might say, for example:

Dear Senator [Collins][Murkowski]: I am a registered voter in your state. The right of a woman to have a safe and legal abortion during the first trimester of pregnancy is extremely important to me. Preserving that right is so important to me that I hereby solemnly make the following pledge: If you fail to vote “No” on all of President Trump’s Supreme Court nominations that come to a vote before the next Congress is seated in 2019, then I will not vote for your re-election in [2020][2022] and I will vote for one of your opponents in that election if any opponent is acceptable to me, regardless of your performance as my senator in all other respects. I will behave as a single-issue voter in [2020][2022], basing my voting decision solely on your 2018 failure to vote “No” on all of Trump’s Supreme Court nominations, and my goal in that election will be to remove you from office.

The primary purpose of a conditional voter pledge campaign is to convince the targeted politician that to fail to fulfil the stated requirement of the pledgees now will be to commit a political suicide that will take effect at the politician’s next run for office. This is likely to compel the politician to vote the right way.  The secondary purposes are to raise the consciousness of voters who currently may support the politician and to help remove the politician from office in the next election in case the politician votes the wrong way now. Thanks to these secondary effects, funds invested in a conditional voter pledge drive are not wasted even if the pledge drive fails to achieve its primary purpose. A conditional voter pledge drive is purely an issue-focused drive and welcomes and solicits pledges from all registered voters eligible to vote in the next primary or general election, including current supporters of the targeted politician.

Under the existing circumstances, a well-executed conditional voter pledge drive is the only tool in our arsenal that has the power of compulsion. All other available methods depend upon the good will and reasonableness of the targeted politician and can safely be ignored by that politician-- especially since senators Collins and Murkowski will be under tremendous compulsive pressure from the Republican establishment. The compulsive mechanism of the conditional voter pledge drive relies directly on actual vote numbers. It is therefore more powerful than the compulsive power of the Republican Party, which depends on the granting or withholding of financial support and political favors so is at best one step removed from actual vote numbers. If a sufficient number of conditional voter pledges are collected statewide, our side should prevail.

A conditional voter pledge drive is a major undertaking, comparable to (but less expensive than) an election campaign for a political candidate in the same political district. It also has unique challenges arising from the time delay between the action being sought from the politician and the corresponding response from the voters. On account of those characteristics, it is appropriate for only a small subset of political situations. The current Supreme Court emergency is such a situation because:

(1)      The issue [effectively, a woman’s right to a safe and legal abortion] is very easy for virtually every voter to understand;
(2)      The issue is of such great importance, and its linkage with the filling of this particular Supreme Court seat is so strong, that a large percentage of the electorate ought to be willing to become conditional single-issue voters in this particular case;
(3)      The action being requested of the politician [don’t vote for any Supreme Court nominee until the next Congress is in session in early 2019] will seem extremely reasonable to most voters;
(4)      The action being requested of the politician is of a simple yes-or-no nature, with no ambiguity about it;
(5)      The issue is of such great importance that a groundswell of grassroots support can be expected-- which would enable the statewide collection of signed pledges in a reasonable period of time at relatively low expense, once such a campaign is initiated and publicized; and
(6)      The terrible cost to society of failing to stop Trump from getting a nominee approved before 2019 justifies the expense of conditional voter pledge drives.  Well-targeted and well-run conditional voter pledge drives are likely to succeed, whereas all other options currently available seem likely to fail.

A conditional voter pledge drive will not have the power of compulsion unless it is structured in such a way that (a) a sufficient number of the pledges will be redeemable two or more years into the future, and (b) the targeted politician will be convinced that a sufficient number of those pledges will be redeemed at her next election contest to end her political career if she defies the pledgees now.Otherwise, the pledges may have no more power than an ordinary petition. I have already figured out the kinds of structures that should meet the two requirements to make the pledges redeemable and compulsive to the politician.

A conditional voter pledge drive in Maine or Alaska can be reinforced by a conditional future voter pledge drive in the same state and a nation-wide conditional contributor pledge drive.

Joe Donnelly, Heidi Heitkamp and Joe Manchin-- the three Democrats currently known to pose the greatest risk of voting to approve a Trump SCOTUS nominee in 2018-- are all up for re-election this year but, are effectively immune from attack by any conditional voter pledge drive that comes due in this year’s general election. They will then remain safe until their next elections in 2024.The six-year delay between deed and any potential punishment poses the greatest challenge to a conditional pledge campaign that can be found in American politics. We need a strategy with sufficient power to compel these three senators to hold the SCOTUS seat open until the next session of Congress.

1.        Conditional Voter Pledges. An example of such a pledge, specialized for this emergency situation, follows. Elements of it that are not self-explanatory are then briefly explained.

Dear Senator _______: I am a registered voter in your state, and I am registered under a classification that qualifies me to vote in Democratic Party primary elections. The right of a woman to have a safe and legal abortion during the first trimester of pregnancy is extremely important to me. Preserving that right is so important to me that I hereby solemnly make the following pledge: If you fail to vote “No” for every one of President Trump’s Supreme Court nominations that comes to a vote before the next Congress is seated in 2019, and if I still qualify to vote in the respective election(s) in 2024, then: (a) I will vote against you in the 2024 Democratic primary election; (b) if you have more than one challenger in the2024 Democratic primary, I will vote for the one that is endorsed by [NAME OF SENATOR-SPECIFIC PLEDGE ORGANIZATION] to avoid splitting the vote against you; and (c) if you are the Democratic candidate in the 2024 election, and if polling close to the 2024 general election suggests that your defeat in the general election will not compromise Democratic control of the U.S. Senate, I will vote for your Republican opponent in the 2024 general election. I will behave as a single-issue voter in that election, basing my voting decision solely on your 2018 vote in favor of Trump’s Supreme Court nominee, and my primary goal in that election will be to remove you from office.

Explanations/Comments:  The “SENATOR-SPECIFIC PLEDGE ORGANIZATION” is the special-purpose entity that is set up to carry out the pledge campaign in 2018.  If the targeted senator votes for a Trump SCOTUS nominee in 2018, that organization will extend its existence for the following six years in order to participate in the 2024 elections. Prior to the 2024 primary election, if the incumbent senator has more than one primary opponent, all the pledgees will be polled to select a single candidate on whom to concentrate their votes. It is essential that there be only one senator-specific pledge organization per senator.

2.        Conditional Future Voter Pledges. An example of such a pledge, specialized for this emergency situation, follows. Elements of it that are not self-explanatory are then briefly explained.

Dear Senator _______:  I am a resident of your state. I meet all of the state’s qualifications to be a registered voter except that I am too young. I will be old enough to vote in one or both of the 2024 Democratic primary election and the 2024 general election.  The right of a woman to have a safe and legal abortion during the first trimester of pregnancy is extremely important to me. Preserving that right is so important to me that I hereby solemnly make the following pledge: If you fail to vote “No” for every one of President Trump’s Supreme Court nominations that comes to a vote before the next Congress is seated in 2019, and if I am still a resident of your state at the relevant future time: (a) I will register or preregister to vote, under a classification that will qualify me to vote in Democratic primaries, in time to qualify to vote in the 2024 Democratic primary (if I will be old enough to vote by its date) or the 2024 general election (if I will be too young to vote in the 2024 Democratic primary). (b) If I qualify to vote in the 2024 Democratic Primary, I will vote against you in that primary election, and if you have more than one opponent in that election I will vote for whichever candidate is endorsed by [NAME OF SENATOR-SPECIFIC PLEDGE ORGANIZATION] to avoid splitting the vote against you. (c) If you are the Democratic candidate in the 2024 general election, and if polling close to the date of the 2024 general election indicates that your defeat in the general election will not compromise Democratic control of the U.S. Senate, I will vote for your Republican opponent in the 2024 general election. I will behave as a single-issue voter, basing my voting decision solely on your 2018 “yes” vote in favor of Trump’s Supreme Court nominee, and my primary goal in that election will be to remove you from office.

Explanations/Comments: The six-year delay until 2024 offers a big opportunity to recruit individuals who are still too young to vote into the current political process.  Since younger voters are the most progressive voters of all, this type of pledge should really scare the politician!

3.        Conditional Contributor Pledges.  An example of such a pledge, specialized for this emergency situation, follows. Elements of it that are not self-explanatory are then briefly explained.

Dear Senator _______:  I am an individual who is legally qualified to make political contributions in the United States. The right of a woman to have a safe and legal abortion during the first trimester of pregnancy is extremely important to me.  Preserving that right is so important to me that I hereby solemnly make the following pledge:  If you fail to vote “No” for every one of President Trump’s Supreme Court nominations that comes to a vote before the next Congress is seated in 2019, then I will immediately make a political donation of at least $________ to [NAME OF SENATOR-SPECIFIC PLEDGE ORGANIZATION].  [NAME OF SENATOR-SPECIFIC PLEDGE ORGANIZATION] is a single-purpose entity, the sole purpose of which is to persuade you to vote against all of President Trump’s Supreme Court nominations for so long as the current session of Congress continues, and to see to it that in case you vote “yes” for any Trump Supreme Court nominee during the current session of Congress, your political career will be ended in 2024.

Explanations/Comments: Six years is a long time and people forget easily. In case the targeted senator votes “yes” for a 2018 Trump nominee, the pledge organization will need to keep track of as many of its pledgees as possible over that period, and inform them from time to time of the most recent terrible Supreme Court decision that was made possible by the 2018 vote of the targeted senator. In election year 2024, the pledge organization will need to remind all pledgees of their commitment, it may need to recruit a high-quality candidate to oppose the targeted senator in a 2014 primary or to conduct a poll of its voter and future voter pledgees to endorse a challenger in the primary, and then it will need to help support the campaign of the challenger in the primary. For all these things it will need adequate funding. The best time to collect those funds will be during the period of outrage that immediately follows the targeted senator’s “yes” vote, and then immediately following news-making terrible Supreme Court decisions during the following years. Furthermore, each signer of any of the three pledge types should be encouraged to make a small financial contribution at the time of pledging. In addition to supporting the pledge effort, this initial contribution will serve psychologically to commit them more strongly to honor the pledge they make.

Concluding Comments

The scope of the voter pledge drives (both kinds) would be limited to the senator’s state, while the contribution pledges would be nation-wide in scope, and all would be carried out by a single-purpose entity created for that sole purpose.

Alternatively, an existing political organization might carry out one or more senator-specific pledge drives, but it would need to set up a segregated account for all pledge-campaign-related activities relating to a given senator.) After the purpose has been achieved (either after the senator votes “no” in 2018 as requested, or else after a senator who voted “yes” has been defeated in 2024) all remaining funds would be distributed and the special-purpose entity would be dissolved. The remaining funds would be distributed preferentially to any similar pledge drives (targeting any other senators who voted “Yes” in 2018) that are still active. If no other such pledge drive remains active, the remaining funds would be distributed pro rata to other ongoing political organizations that were specified by the final fund’s original contributors at the time they made their contributions.

By combining all three types of pledge into a single pledge campaign, and by reminding pledgees periodically over the six-year period of the terrible consequences that the “yes”-voter’s 2018 vote is continuing to have, it should be possible to make the pledges (a) objectively redeemable in 2024 and (b) subjectively convincing and compulsive to the politician in 2018. Appropriate details of the pledge campaign’s structure and plan of action would be explained and documented to the politician in 2018 to persuade the politician that a “yes” vote would be a career-ending vote.

Conditional pledge drive campaigns require work, but they are the only tool at our disposal in the current SCOTUS emergency that has the power of compulsion-- in contrast to all the other standard lobbying methods that consist basically of relatively-impotent, expensive begging. There can be no confidence that the standard lobbying methods will work on the five politicians we need to influence. On the other hand, well-conducted conditional pledge drives against them would seem to be very likely to succeed. There is no time for an individual like me working alone or a small group of individuals with sparse resources to organize a conditional pledge drive in time. Already-existing political groups with existing funding, facilities, and media and campaigning expertise MUST step in and make the effort. Established organizations often don’t want to take risks like this, but the current situation requires at least one of them to do so and to move boldly, quickly and decisively.

If you are a decision-maker in a political group with the resources to participate in such campaigns, I would be happy to help your organization design a conditional pledge campaign.

David Leibowitz
DLpolitical@aol.com