Tuesday, July 26, 2022

BTRTN, the Midterms: Democrats' Chances of Holding the Senate Improve

Tom is back with an updated race-by-race look at the Senate midterm elections.   

We are most of the way through the primary season, and a good time, we thought, to take another in-depth look at the Senate races, our first since March.  At that time we posited the then novel idea that the Democrats just might hold on to the Senate, given, essentially, the strength of their candidates in the swing elections and the weakness of the likely GOP nominees, several of whom would be replacing retiring GOP incumbents.

Since then, the Democrats’ electoral prospects for holding the Senate have become even more promising.  That’s because that very dynamic is playing out in real time: the swing state GOP candidates are, on cue, committing various gaffes and are being out-fundraised by their Democratic opponents.  The Democrats, for their part, are running smart campaigns that are distancing themselves from the misery being experienced by the Biden Administration.

The macro-environment, of course, heavily favors the GOP.  Biden’s approval ratings are basically handcuffed to the inflation rate, and the more the latter goes up, the former goes down.  But that adverse environment is far more important for House elections, which, at this juncture, are pointing to a near-certain GOP takeover.  The Senate races are not independent of national electoral dynamics, but are far more dependent on the candidates themselves.

By our reckoning (based on our race-by-race models), the Democrats have improved their chances of holding the Senate from 51% in March to 58% today.  (Our forecast for the Dems holding the House remains a mere 1%.)  Remember, this is not a prediction, but rather a snapshot – if the elections were held today, the Democrats would likely keep the Senate.  But things can and will change in the ensuing months, and we will continue to monitor each race.

Today we’ll drill down on each Senate battleground race and explain why the Dems fortunes are promising and on the upswing.


Before we review the Senate, you might be interested in our credentials as election forecasters.  Here is our track record in Senate races since 2008 when we began.

Over this period we have only missed 15 Senate races out of nearly 250 predictions, and our "batting average" on close races – those decided by five or fewer percentage points -- is 73%.  To give an indication, in November, 2020, we predicted that both Georgia Senate races would go to runoff, and in January, 2021, we predicted that Democrats would win both of those runoff elections.  Not many of our fellow forecasters went four-for-four on Georgia in those momentous elections that were all decided by two points or less.


Here are the main takeaways of this 2022 Senate analysis, then we’ll get into the detail: 

·        The Democrats’ task is relatively simple – they just have to defend all 14 of the seats that they currently hold that are up for reelection to hold on to the Senate.  Only one Democratic incumbent, Patrick Leahy of Vermont, is retiring, whereas four GOP Senators are retiring out of the 20 seats they must defend.

·       Of these 34 Senate elections, only 10 are going to be truly competitive.  Only four of the Democrats 14 seats are in that group:  Arizona, Georgia, New Hampshire and Nevada.  As of now, in varying degrees, the Democrats have the upper hand in each, leading in both the polls (albeit by small margins in some), in fundraising (typically by larger margins), and, frankly, in the quality of the candidates themselves.

·        Furthermore, the Democrats are mounting stiff challenges to the GOP in the six competitive races for Senate seats held by Republicans, especially in Pennsylvania, Ohio and North Carolina, providing the Democrats with an opportunity to flip several seats, an outcome that would render the votes of Joe Manchin and Kyrsten Sinema far less crucial to Democratic legislation than they are now.  This may not matter much, however, if the Democrats lose the House, though it might make the passage of more progressive judges (which require only a majority in the Senate, with no House role) somewhat easier.  Pennsylvania is a particularly promising "flip" opportunity at this point, and the only race we are rating a flip at this juncture.

·      Here is how we peg the outcomes – this snapshot -- at this still relatively early juncture:


As everyone reading this surely knows, the current Senate is split 50/50 between the Democratic and Republican caucuses.  There are only 48 Democrats, but two Independents, Bernie Sanders of Vermont and Angus King of Maine, caucus with the Democrats.  The Democrats control the Senate by virtue of the tie-breaking vote capability held by Vice President Kamala Harris.  There are 34 seats up for election this November, 14 of them currently held by Democrats, and 20 of them by Republicans.  

But most of those 34 races will not be terribly close.  Based on our BTRTN ratings of those races (which are more or less in line with all the other rating services), at most 10 races will be truly competitive.  Those 10 races will decide which party will control the Senate in 2023.

The chart summarizes our rates of each of the 34 races.  We see the advantage to the Democrats in five races -- defending the four they hold (Arizona, Georgia, Nevada and New Hampshire) plus, at this stage, a flip of Pennsylvania.  Two of those races, Georgia and Nevada are so close that they are "toss ups," while the other three are in the "lean" category.  As of the, the GOP has three toss ups of their all, all in seats they are defending (North Carolina, Ohio and Wisconsin) while we consider two others, Florida and Missouri, as "likely" to remain in the GOP camp.  All of this is, of course, subject to change as we move ever closer to the elections.


Let’s take a line-by-line look at each race, then we will drill down on the 10 that really matter.  Keep in mind, race dynamics could change as we complete the primary cycle and head down the stretch drive.  It is possible some of these races will drop from “battleground” status, and others may tighten up enough to become a battleground.  


Let’s review the battleground states, and we’ve sorted them, based on our current BTRTN assessment, based on the likelihood that the Democrats will win.  Keep in mind the Democrats have to win four of these ten races to maintain control of the Senate.

New Hampshire.  The New Hampshire primary is the last in the nation, not until September 13, and that will not give the GOP much time to consolidate around their nominee to challenge Democratic incumbent Maggie Hassan.  This is a state that Biden won by +7 in 2020, though Hassan won her seat a mere tenth of a point in 2016.  There has been some polling from March to June that pits Hassan against the three main GOP contenders (former Army Special Forces outsider Don Bolduc, State Senator Chuck Morse, and former state representative Kevin Smith), and on average Hassan is ahead of them by about five points on average, although there is some evidence the race is tightening.  But Hassan maintains a gigantic funding advantage, having raised $21 million, with over $7 million still on hand, dwarfing the figures of her competitors combined.  For now, we maintain our BTRTN Rating at Lean Democratic.

Arizona.  Former astronaut Mark Kelly, a Democrat, won a close special election in November, 2020, for the seat once held by John McCain, defeating then-incumbent GOP Senator Martha McSally by +2 points.  Now he is running again for a full six-year term in a state that Biden won by only three-tenths of a point.  Kelly’s likely opponent (the primary is on August 2) will be tech entrepreneur Blake Masters, who has won Trump’s support.  Kelly has been spanking him soundly in the limited polling to date, and also crushing him in fundraising.  Kelly has raised an astonishing $52 million thus far and has spent only roughly half of it.  For his part, Masters has performed par for the course for GOP candidates in this election cycle; when asked about gun violence, his tone-deaf assessment was as follows: “Its gangs.  Its people in Chicago, St. Louis, shooting each other very often, you know, Black people frankly,” he said.  Ahem.  We have changed our BTRTN Rating from Toss Up Democratic to Lean Democratic.

Pennsylvania.  There have already been many chapters written in this wild race thus far, with seemingly another written every day.  One candidate suffered a stroke, the other can’t spell the name of his alleged home town – and these are the candidates that won the primaries.  It all started when Republican Senator Pat Toomey opted not to seek reelection, throwing this purple state Senate seat up for grabs.  Then Trump-backed Army Ranger Sean Parnell was forced to drop out of the GOP race after credible charges of domestic violence emerged, and Trump then moved on to support TV personality Dr. Mehmet Oz, who squeaked out a primary win over hedge fund CEO David McCormick.  Lieutenant Governor John Fetterman, who is a good fit with mainstream Pennsylvanians, won the Democratic nomination just days after his stroke.  Oz has neither run any TV ads since the primary nor failed to quash carpetbagger charges, indeed he exacerbated them with the notorious hometown misspelling.  Fetterman is well ahead in the polls and in fundraising, having raised $8 million in the last quarter versus $3 million for Oz.  We have changed our BTRTN Rating from Toss Up Republican to Lean Democratic, which would be a flip for the Democrats. 

Nevada.  Democratic incumbent Catherine Cortez Masto won a close race in 2016 (+2) to claim her first-term seat in a purple state that Biden won by +3 in 2020.  GOP challenger Adam Laxalt has deep mainstream GOP political roots, as the former State Attorney General is the grandson of former Governor (and Reagan pal) Paul Laxalt, and the son of former New Mexico Senator Pete Domenici.  But this Laxalt is a full-on Trumpster, having led, in Nevada, Trump’s attempts to overturn the 2020 election outcome.  Candidate Laxalt recently made his own contribution to the GOP candidate gaffe-a-thon, proclaiming Roe v Wade a “joke” in a state in which 57% of the voters believe abortion should be legal.  (It is also worth noting that 62% believe Biden’s election was legitimate.)  She also is well ahead of Laxalt on the fundraising front.  Despite all this, the most recent polls have Masto up by only +3 points each, and thus we have changed our BTRTN Rating from Lean Democratic to Toss Up Democratic.

Georgia.  Reverend Raphael Warnock won a special election on January 5, 2021, one of two stunning Georgia Senate wins that day over GOP incumbents (the other by Jon Ossoff) that gave Democrats control of the Senate and thus radically altered the course of Joe Biden’s presidency.  Now Warnock is running for a full six-year term.  He will be facing former Georgia Bulldog football star Herschel Walker, like Oz a Trump-backed celebrity with no political experience.  He also may very well be the worst candidate in the entire field (at least unitl the Missouri primary is settled, see below).  Walker has a history of mental illness, claiming multiple personalities, one of whom happened to abuse his wife.  More recently, he disclosed the existence of three children that he had fathered, an admission that shocked his own campaign staff.  (Walker has long railed against absentee fathers; apparently, he is one of them.)  Walker also recently made this profound statement on Climate change:  Since we don’t control the air, our good air decided to float over to China’s bad air so when China gets our good air, their bad air got to move. So it moves over to our good air space.”  Hmm.  Warnock, for his part, is being helped by his own mega-fundraising prowess (he outraised Walker by a $17 million to $6 million margin in the second quarter), and will also be buoyed by Stacey Abrams’s powerhouse voting machine, so instrumental in electing Warnock, Ossoff and Biden in 2020/21.  (Abrams herself will, of course, also be on the ticket in 2022 as the Democratic candidate for Governor.)  The Senate race polling has been back and forth and tends to slightly favor Warnock at this point, and we have maintained our BTRTN Rating as Toss Up Democratic.

Wisconsin.  GOP Senator Ron Johnson is an outright Trumpster, a trafficker in conspiracy theories, a vaccine skeptic, is notoriously dismissive of January 6 critiques (“largely a peaceful protest”) and apparently offered an alternate slate of 2020 Wisconsin presidential electors to Mike Pence.  He also has an approval rating that is deeply underwater, at 36%, as of April.  June polling has Johnson running more or less even with the three major Democrats vying for the chance to unseat him (the primary is August 9):  lieutenant governor Mandela Barnes (who is the frontrunner), state treasurer Sarah Godlewski, and Milwaukee Bucks executive Alex Lasry.  We are maintaining our BTRTN Rating as Toss Up Republican. 

North Carolina.  Richard Burr is another purple state GOP Senator who is retiring.  Burr won the state by +6 in 2016, and Trump took the state by a single point in 2020.  The GOP primary was won by U.S. Representative Ted Budd, with Trump’s endorsement, who beat former Governor Pat McGrory.  Former state Supreme Court justice Cheri Beasley is atop the Democratic ticket, and so far the polling has Budd ahead of Beasley, on average, by a low single digit margin.  As in many other races, the Democrat Beasley is out-fundraising Budd by a 3:1 margin.   But it will be a tough one for Beasley to win, and we are maintaining our BTRTN Rating as Toss Up Republican. 

Ohio.  Yet another GOP Senator, Rob Portman, is retiring in Ohio, giving the Democrats a small opening in a formerly purple state that has become increasingly red (Trump won it by 8 points in 2020).  The GOP primary was won by yet another Trump-backed celebrity non-politician, Hillbilly Elegy author J.D. Vance.  The Democrats have another strong candidate, U.S. Representative and former presidential candidate Tim Ryan.  Ryan is running an excellent race, his campaign focused squarely on mainstream (even conservative) issues, such as China-bashing and law-and-order messaging, steering clear of the Democratic Party’s progressive agenda and the Biden Administration.  He has also been drubbing Vance in fundraising.  It is working, as he is running even with Vance in the polls in a very tough state.  We have changed our BTRTN Rating from Likely Republican to Toss Up Republican.

Missouri.  The Democrats have no real business holding out any hope for Missouri, which Trump won in 2020 by +15 points, even though GOP Senator Roy Blunt is retiring.  But former Governor Eric Greitens, if he wins the August 2 primary, would be an even worse candidate than Georgia’s Walker.  Greitens, you may recall, was an ambitious Governor when he was forced to resign in 2018 due to a lurid sex scandal – he not only had an affair, but was accused of blackmailing his paramour by threatening to expose compromising pictures of her.  That was bad enough, but then Greitens’ ex-wife levied domestic violence charges against him.  And yet, he’s back, and running even in the polls with fellow Republicans Attorney General Eric Schmitt and U.S. representative Vicky Hartzler.  As for the Democrats, former Marine Lucas Kunce and former state senator and rep Scott Sifton are among those in the field.  Not surprisingly in this red state, all three GOP candidates lead the two Democrats in head-to-head polling (last conducted in May), though Greitens’ led was by the narrowest margin.  But the entire race was upended by the late June announcement by mainstream Republican John Wood that he was entering the race as an Independent.  Wood, an attorney who recently was a senior investigator for the January 6 Committee, wanted to offer Missouri voters an alternative to Greitens (though he also says he will continue to November even if Greitens loses the primary).  While he appears to be attempting to save Missouri from the humiliation of electing Greitens, his campaign clearly opens the door for the Democrats if Wood and the GOP nominee split the Republican vote.  Many twists lie ahead, including the primary, thus for now we maintain our BTRTN Rating of Likely Republican. 

Florida.  The Democrats are running a terrific candidate in U.S. Representative Val Demings, the one-time police chief of Orlando and more recently a House impeachment manager in the first Senate trial of Donald Trump (she is the presumptive candidate as the primary is not until August 23).  That high-profile gig earned her serious consideration in the Joe Biden veepstakes.  But despite the strength of her candidacy, Florida has been a disappointment for the Democrats in many a high profile race in recent years, and GOP incumbent Marco Rubio has led Demings by a good margin in most 2022 polls.  Those margin appear to be narrowing from double to single-digits.  Unlike in other battleground states, Rubio and Demings are about even in fundraising, each having in the $13-15 million range on hand.  We are maintaining our BTRTN Rating at Likely Republican.

Stay tuned.

Monday, July 25, 2022

BTRTN: Paging Billionaires... 2024 May Be the Best Shot for a Third-Party Presidential Bid in a Century

Steve’s not saying a third-party candidate is the right answer, the best answer, or even a good answer. But such a candidacy may at least be addressing the right question.


During the 1960 Presidential campaign, John F. Kennedy noted that fiscally conservative Republican Richard Nixon had been criticized by The Wall Street Journal. “That’s like the L'Osservatore Romano criticizing the Pope,” JFK wryly observed.

Well, here’s something that is actually worse: watching The New York Times repeatedly trash an incumbent Democratic President.

And that is what is currently happening to Joe Biden.

Young Voters Say It Is Time for New Blood” cries a Times headline. That, however, was a whiffle ball compared to the laser cannon the Times fired off the previous week: “Most Democrats Don’t Want Biden in 2024, New Poll Shows.” Saying his support was “hemorrhaging,” the Times quoted from the poll they conduct in concert with Sienna College that found that only 26% of Democrats favor Biden’s renomination. Then the real zinger: Peter Baker’s article entitled “At 79, Biden is Testing the Boundaries of Age and the Presidency,” which included this quote:

“His energy level, while impressive for a man of his age, is not what it was, and some aides quietly watch out for him. He often shuffles when he walks, and aides worry he will trip on a wire. He stumbles over words during public events, and they hold their breath to see if he makes it to the end without a gaffe.”

Biden “shuffles.” Geez, NYT, with friends like this…

Of course it is not just the Old Grey Lady sounding the alarms. Biden age-watching has become a sport on all the flavored news channels, and then there was the recent Axios Poll that concluded “Most voters don’t want Biden or Trump on the 2024 ballot.”

Which is problematic, because as of this moment, that is the most likely scenario for 2024. Even after the January 6 Committee finishes eviscerating Trump’s innards, it still appears that he will have the Republican nomination for the asking.

And – as of now -- the only person who is going to stop Joe Biden from taking the nomination in 2024 is, uh, Joe Biden. This could happen: Biden truly is a “team” guy, and if he is convinced that he would be a liability in 2024, he may step aside. But there’s no indication of any such abdication coming out of the White House as of now.

Biden v. Trump in 2024. Yep, the match-up that seemed old, unsatisfying, and uninspiring in 2020 is heading for a re-match in Season Two of America Doesn’t Have Talent.

Here’s what makes such a rematch Chernobyl-grade toxic. In this Presidential election, we will see a truly once-in-our-nation’s history scenario in which each party effectively has an “incumbent,” and both “incumbents” have massive liabilities.

There’s the real incumbent – Biden – and his devastating statistic: an AP-NORC Survey that reports that a mind-blowing 85% of US adults say that the country “is headed in the wrong direction.” Personally, I want to go to a party of the 15% who seem to think everything is peachy keen.  That would be the most upbeat gathering I have attended since 2015.

It makes all the sense in the world that 85% of Americans think the country is going in the “wrong direction.” Of course, Republicans will all say that. The problem is that many, many Democrats today would also say that “the country is heading in the wrong direction” – through no fault of Joe Biden. Dems are watching a Supreme Court attempt to put the country back in the 1950s, children continuing to get slaughtered by AR-15s, and the continued pervasiveness of “The Big Lie” among Republicans even as the January 6 committee exposes the sham.  You bet most Dems think the country is heading in the wrong direction.

The problem is that the statistic makes Joe Biden look awful.

Indeed, just about the only good news Biden got last month was that Bernie Sanders announced he would not challenge Biden in 2024. Biden actually breathed a sigh of relief, happy that he would not face a very serious challenge from a Democrat who is older than he is.

Bernie Sanders, of course, was simply hewing to the time-honored tradition that you don’t primary an incumbent President. Ted Kennedy tried in 1980, humiliating himself, but wounding Jimmy Carter in the process. And Republican firebrand Pat Buchanan took on the elder George Bush in 1992. Internecine warfare is never pretty, and the simple fact that a member of their own party thought they were vulnerable had to have damaged Carter and Bush. Not coincidentally, both lost the general election.

But it is not certain that all Democrats will follow Bernie’s example.

When asked, all the plausible future Democratic presidential candidates bite their lips and dutifully toe the party line that Joe Biden is the man, and that the nomination in 2024 is his. But you can bet your bottom dollar that Pete Buttigieg and Amy Klobuchar have shadow political operations humming in the background waiting for Biden’s shoe to drop. Gavin Newsom, meanwhile, is clearly aiming to raise his national profile with the campaign ad he ran in Florida, and with the new law that uses the vigilante provisions of Texas’s anti-abortion laws to target those who violate California gun laws.

Biden himself seems to continue to be driven by the singular belief that drove his 2020 candidacy: he felt – and he may well have been exactly right – that he was the only candidate who could beat Trump. Biden believed it then, and he appears to believe it now.

So the Democrats are looking at running potentially the weakest incumbent since Jimmy Carter. The only good news? The “Republican Incumbent” could be running his campaign from Leavenworth Penitentiary.

Why do we refer to Donald Trump as effectively the Republican “incumbent?” The GOP is accustomed to seeing their defeated Presidential candidates politely surrender their party leadership and recede from the spotlight. Smashing yet one more genteel custom of democracy, Donald Trump has refused to accept that he lost in 2020 and he has turned the “Big Lie” of the stolen election into the litmus test for candidates seeking his endorsement. The practical effect is that Republicans are forced to behave as if Trump won and treat him accordingly.

“Treating him accordingly” essentially means that the nomination is his if he wants it. Painfully, Trump is making clear noises that he intends to run, signally that the only real question is whether he will announce his bid before or after the midterms.

Would he face a primary challenge? Ron DeSantis is the only significant Republican who has refused to rule out a run, and the Florida Governor must be pumped by the poll that showed him running 39/37 ahead of Trump in New Hampshire.

But such a brazen challenge to Trump is fraught with risk. If he takes on Trump and loses, he may well be banished to Republican Siberia for the rest of time. If he takes on Trump and wins, he may have alienated a large percentage of die-hard “Trump nation” – and any Republican needs that support to win. DeSantis is a young man. He will have many shots at the White House, and the only thing he could do to screw up his long-term prospects is to alienate Trump’s base by challenging him in 2024. Same goes for Greg Abbott or anybody else who is playing the long game and hoping to inherit Trump’s followers.

So, sure, what’s left? A bunch of William Weld wannabees? Mike Pence sure looks like he is going to make a run, but the last time we looked, he was not terribly popular in Trump country. Maybe Liz Cheney? Adam Kinsinger? Glenn Youngkin? Mitt Romney? For a Republican to try to primary Trump is a charge of the light brigade right into the heart of the far-right brigade, straight into the valley of death.

So, for now, we have to assume that it will be Biden v. Trump in 2024.

And, if you believe the Axios poll, the majority of Americans are nauseated by their choice.

Which is why one has to wonder if 2024 may finally be the year that some very rich, very ambitious, and very aggressive wild-card pounces on the rarest of opportunities… a third-party candidacy that actually has a chance at winning the White House.  

Not since Teddy Roosevelt and the Bull Moose party in 1912 have conditions so favored a legitimate third-party candidate.

Here is the stat, again from The New York Times, that should make all those Private Sector Presidential Wannabes start to drool that their time has come:

“A majority of American voters across nearly all demographics and ideologies believe their system of government does not work, with 58 percent of those interviewed for a New York Times/Siena College poll saying that the world’s oldest independent constitutional democracy needs major reforms or a complete overhaul.”

“Major reform or complete overhaul.” That is a clarion call for a true outsider.

We stand at a unique moment in history. A majority of Americans believe that their government is broken. A majority of Americans disagree with what their government has done on abortion rights and what it hasn’t done on assault weapons.  Most Americans have already decided that their choices in the 2024 Presidential campaign have overwhelming liabilities.

Does anyone really think that two borderline octogenarians with lousy favorability ratings are what the country is craving right now? These candidates will have a tough time uniting their own parties, let alone the country.  You think there is polarization between our political left and right? Polarization is pulling apart the parties themselves. Trump has taught his base to loathe “RINOs” as much as Democrats and spends his time trying to defeat Republican incumbents who are not swigging the Kool Aid by the pitcher.

Meanwhile, Democratic Progressives are furious that Biden’s FDR-sized agenda is being gutted, denuded, miniaturized, sterilized, and castrated by one jerk from West Virginia.

Americans think their government is broken: Trump broke it, Biden can’t fix it, a permanently gridlocked Congress can’t accomplish anything, so an illegitimate, unelected Supreme Court is running the country… and 85% of Americans think the country is on the “wrong track.” Did I miss anything?

The winning platform for 2024 is all there for the taking: a self-funded charismatic declares that the government is so irretrievably broken that it cannot fix itself. It cannot be fixed by a Democrat or a Republican. It needs someone from outside of government who will return American government to the will of the people: fiscally constrained, taming the national debt, taxing the superrich, protecting abortion rights, regulating guns, and creating Federal oversight for reckless and irresponsible social media companies. Expand the Supreme Court and impose term limits, get rid of the filibuster, gerrymandering, and the Electoral College. Above all, reform the very process through which we amend the Constitution – which political polarization makes an impossibility. Perhaps this platform concludes with a call for a new Constitutional Convention to reform all the loopholes, legally codify that which had been merely honored “customs,” and create a government that can neither be tyrannized by a majority nor a minority.

In other words, create a government that is able to implement what the majority of people want.

That is the winning political platform in 2024. It is not right wing, it is not progressive, it is not even centrist. The winning platform is the promise of re-orienting government to implement the will of the majority of citizens.

Please don’t get me wrong: I’m not saying a third-party candidacy is the right thing, or even a good thing. Heck, when Howard Schultz made noises about a third-party candidacy in 2020, this writer urged a national boycott of Starbucks to stop an egomaniacal blowhard from siphoning votes away from the Democratic candidate and thereby handing the Presidency once again to Trump.

And many would argue that a third-party candidate who espoused the platform noted above would be --by definition -- left of the political center, and once again siphon votes away from Biden in 2024.

But the issue in 2024 is different. Biden’s approval ratings are not the worst on record for a President – four Presidents fell into the 20s – but if they remain stuck where they stand now, having him as the sole opponent of Trump may be a higher risk than a left of center Third Party candidate who could take votes from both traditional party candidates. 

Could a third-party candidate even have a chance of winning?

The conventional wisdom says no: too hard to achieve without a party organization, name recognition, endorsements, blah, blah, blah.

The truth is that it has never been easier to run as a third-party candidate. All it takes is the time and money… and a multi-billionaire who starts today has enough of both. Time and money to build an organization, to get the candidate’s name on the ballot in all fifty states, to build a brand-name, and to hone the right message.  Then punch away until you get enough support to get a podium at the Presidential Debates. A young, persuasive, well-informed charismatic political outsider could easily outshine Biden and Trump in a debate. Once on the equal footing of a debate stage, an effective third-party candidate could create the plausibility of victory and jump-start a momentum shift. A competent, charismatic multi-billionaire (or someone with multi-billionaire supporters) who started now and was prepared to blow through two billion dollars could be extremely well-positioned to take on a field of Joe Biden and Donald Trump in 2024.

This is where our notion of the year of “double-incumbents” is interesting. Because the only thing better than running against a badly weakened incumbent is running against two badly weakened incumbents.

The billion dollar question: who is the mega-billionaire who could pull it off?

There are actually a number of people out there who could give it a very serious run.

Doubt it?

Can you spell O-P-R-A-H? A brilliant communicator, nearly universal name recognition, a super-successful business-person, a salt-of-the-earth biography, someone whose appeal cuts across polarized politics… the day Oprah Winfrey were to announce her candidacy, she’d be standing on third base.

At eighty years old, Michael Bloomberg hardly represents the kind of generational shift young people crave. But a $76 billion net worth counts for plenty. Bloomberg probably regrets participating in the Democratic party ten-podium madness of 2020, and has to be watching the current state of our politics with his trademark arrogance.

Mark Cuban was actually asked if he is considering running for President, and got himself quoted saying that “based on everything I know now, no. But I mean like you said, if things go south, it depends on how they go south and how far south and whether or not I thought I would be the right person. I wouldn’t do it just to do it. I would only do it if I thought I was the right person.”

Rule of thumb: billionaires think they are the right person for everything.

Google “Is Jeff Bezos running for President?” It seems such speculation is almost automatic for persons of  spectacular wealth… and Bezos’ purchase of the Washington Post demonstrates his interest in politics.

Elon Musk? You may be able to buy Twitter and possibly Mars, Elon, but no Air Force One for you. You must be a natural born U.S. citizen. Musk was born in South Africa.

Sheryl Sandberg? Lean in!  There were numerous stories about Sandberg considering a shift to politics after Meta, and the rumor mill had Sandberg in consideration for a cabinet post had Hillary won, and considering a run at Diane Feinstein’s seat. Count on Zuckerberg to contribute ample coin to this effort.

Another billionaire who scored a Democratic podium in 2020 is Tom Steyer, who, at 65, comes off as a feisty young man relative to Trump and Biden.  

Andrew Yang? Why, the Presidency is the only logical step for a man who was soundly thumped in the New York Mayoral race!

And we haven’t even started on the entertainment celebrities: Tom Hanks. Dwayne Johnson. Bruce Springsteen. The list goes on…

However, it is every bit as likely that it is some person you haven’t heard of … someone who just took a software company public and is cocky enough to believe he or she can solve the world’s problems. Maybe this mystery person is a true idealist and wants to return America to her glory as a functioning democracy. Maybe this mystery person is just an opportunist who sees a once-in-a-lifetime grab at the gold ring. Maybe it’s a bit of both…

Sure: this magical candidate will have to deal with every reality of governing that causes gridlock today. This candidate cannot wave a wand and end the filibuster, the Electoral College, gerrymandering, or pass a single Constitutional amendment.

Neither, however, would this person be hamstrung by rigid party affiliation. Republican Senators might not feel an obligation to vote lock-step knee-jerk against an Independent the way they do against a Democrat. And a President who won on a platform of adherence to the will of the American majority has created a powerful bully pulpit.

Meanwhile, Democrats had better start thinking very, very hard about whether they are prepared to nominate a candidate who would be 86 years old by the end of his second term. If, that is, he won a second term.

Joe Biden was the right guy in 2020. He was the only Democrat who could beat Donald Trump, and he did.

The hope is certainly that Joe Biden can turn things around and have inflation tamed, Covid solved, Ukraine free, the filibuster eliminated, abortion rights restored, AR-15s far away from elementary schools, and right-wing militias behind bars, all by 2024.

But when The New York Times is already at Def Con three, it is time to make sure we are asking the right question.

Somebody out there will realize that the question in 2024 will no longer be “who can beat Trump in a two-person race?” (Or, for Republicans, “who can beat Biden in a two-person race?)

Somebody is out there saying, “Americans are screaming that their government is broken, and they don’t think that either of their options are going to fixing things.” Those Americans are not some “silent majority,” nor are they the virulent minority.

Somebody is going to have a clear shot at winning because they finally call them what they are: the real majority.  

The question of the day is not "how do we ram programs through a broken process?" The question of the day is "how do we fix our government so that the will of the majority is easily implemented and reflected in our laws?"

I’m not saying a third-party candidate is the right answer, I’m not saying it is the best answer, and I am not even saying it is a good answer… but at least that mystery outsider has the opportunity to address the right question.


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Monday, July 4, 2022

BTRTN: To Indict, or Not to Indict...Thoughts on the Fourth of July

Will Merrick Garland bring criminal charges against Donald Trump, or not? Today, Steve urges that the will of the people be heard on the day we celebrate the will of the people being heard.


When the history books are written, some future Alexis de Tocqueville could well point to a five-day period in June, 2022, as the inflection point when the centrifugal force of polarization of the United States began pulling the nation apart at the seams. Or, we can hope, as the week when Americans finally woke up to the fact that their government was wildly out of touch with the will of the majority of citizens, and decided to do something about it.

On Friday, June 23, the United States Supreme Court overturned Roe v. Wade in a decision that despite having been previously leaked, still managed to absolutely stun a nation that overwhelming believes that women should have access to abortion.

Then, on Tuesday, June 28, a previously unknown White House staffer appears to have tilted the odds that, for the first time in American history, a former President of the United States will be charged with criminal activity conducted during his time in the White House.

Each, alone, represents a super-charging of partisan animosity: in the one case, progressives are furious at a Supreme Court of dubious legitimacy stripping away a Constitutional right articulated and affirmed by previous Courts. The flagrant hypocrisy of three Trump-appointed Justices, who lied to Senators about their beliefs on Roe, puts a Bunsen burner of contempt under the outrage about the decision itself.

In the other bombshell, the possibility that an Attorney General appointed by a Democratic President would bring criminal charges against a former Republican President is the ultimate in “uncharted territory” in a decade that seems to have been devoted solely to the exploration of uncharted territory. Imagine the right-wing rage as Fox News accuses “politically-motivated” Democrats of a "witch hunt," using the powers of government to torpedo Trump’s chance at re-election?

And just think about the reaction of progressives if – after the stunning evidence compiled by the House January 6 Committee – Attorney General Merrick Garland fails to bring charges against Trump.

Either way, Merrick Garland is holding a match, and a neutron bomb of societal rage is set to be triggered.  The only question now is which one.

To accuse, or not to accuse. That is the question. And only one person gets to make that fateful decision.

It's crazy, isn't it? In this government "by, of, and for the people," only one person gets to decide whether criminal charges will be filed against Donald Trump.

And some of the most intense polarization is among Democrats themselves on the very question of whether Garland should bring charges. A number of thoughtful left-leaning people are deeply concerned about what would happen if Garland pursues charges against Donald Trump… and they point out a number of powerful reasons why such an action could backfire.

For starters, many are worried that no matter how strong the case, it is very far from certain that Garland could secure a conviction. In our hyper-polarized society, it is likely that at least one of twelve jurors would be sufficiently pro-Trump to hang a jury. Then, of course, Donald Trump would proceed to scream vindication, equate the “failure to convict” with “full exoneration,” and once again -- as he did with both failed impeachments -- label the prosecution a baseless, politically motivated sham... a "partisan witch hunt." These liberals worry that Trump would emerge stronger from such a trial, and in a vastly improved position to retake the White House.

Other Democrats point out that a conviction would not be a slam dunk even before a jury of the most even-handed and non-political citizens imaginable. The error of making any conclusions based on the hearings of the January 6 Committee is that Democrats and ostracized Republicans Cheney and Kinsinger have controlled the entire process, with no opposing counsel challenging their allegations, no cross-examination of witnesses, no defense witnesses who could offer alternative explanations that create reasonable doubt.

This worry becomes acute when you realize that a verdict of “guilty” carries the burden of proving not just that a crime took place, but that it did so with criminal intent. The New York Times published a front-page article on June 19 titled “A Key Hurdle for Prosecutors: Proving What Trump Believed,” which asserted that:

“If the Justice Department were to bring a case against him, prosecutors would face the challenge of showing that he knew – or should have known – that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal.”

If Donald Trump was – as former Attorney William Barr openly speculated – “detached from reality” – then how is Trump's intention to be proven? If Trump truly believed that the election was stolen from him – however baseless this delusion was – his state of mind was one of someone fighting for what he felt to be true, not propagating lies that he knew to be untrue. Was he lying, or simply speaking preposterous untruths? There is a difference, and the difference is “criminal intent.” Trump’s lawyers will mount a defense asserting that plenty of “experts” found “evidence” of “election fraud,” and that Trump “listened to the opinions" of advisors who thought the election was fair as well as those who thought it was fraud – and then he made a judgment, something presidents do all the time. 

It is a Catch-22: how do you prove a man is lying when he has manufactured an alternative media universe that provides constant reinforcement that his manipulated version of reality is actually true?

Garland must of course deal with the question of what exactly what Trump is being charged with. Is it the “corrupt obstruction of an official proceeding,” by attempting to upend the formal tally of Electoral votes? is it “conspiracy to defraud the United States,” based on his efforts to overturn the election? Is it "seditious conspiracy," for motivating the January 6 mob to take up arms against the government? Jury tampering? Or, as Pat Cipollone supposedly warned if Trump succeeded in achieving his goal of joining the mob at the Capitol on January 6, “every crime imaginable?” With each, Garland must not only prove that a crime has been committed, but that it was done so as a willful act with knowledge of illegality. The trick will be to prove Donald Trump knew these actions were illegal when it is clear that he simply kept looking until he found clowns who would tell him that what he wanted to do was legal.

Many Democrats take an extraordinarily pragmatic approach to this calculation, urging that the only real purpose of a criminal conviction is to severely damage Donald Trump’s ability to win the presidency again. Here's a little-known and rather unsettling fact: there is no law barring a convicted felon from running for President. Indeed, a felon can run for Federal office from prison. But there is no doubt that conviction of a felony – and possible jail time – would be a crushing blow to Trump's ability to re-take the White House in 2024.

Which is why some Democrats believe that the case being brought against Trump in Georgia for attempting to interfere with the election is the one to focus on. Most important: like Watergate, the evidence in Georgia is a recorded conversation. There is no need to rely on witness accounts, circumstantial evidence, or the recollections of White House staffers. It is the easier case to make, should proceed on a faster timeline, and some legal experts believe that the Georgia case is the one that is most likely to result in a jail sentence for the former President. This line of logic concludes that Garland should let Georgia do the heavy lifting and only proceed with the far more charged, complex, and risky DoJ prosecution if Georgia does not result in a conviction.

Among the most thoughtful in the “don’t indict” camp are those who point out the wisdom of Gerald Ford’s willingness to jeopardize his own chances for election to the White House when he issued a “full and complete pardon” to Richard M. Nixon. Ford envisioned that the spectacle of a former President on trial for crimes against the United States would rip the nation further apart at a time it needed healing.

If you think that the idea that Ford’s “best interests of the nation” logic is flawed or specious, consider this fact: Bob Woodward, Carl Bernstein, and Teddy Kennedy – and many other Democrats – came to believe over the long view of history that Jerry Ford made a wise decision. It helped the nation move on from Watergate. The selfless Ford, however, lost to Jimmy Carter in 1976.

Today, we have to face the ugly reality that filing charges against Trump could create open season for every future President to weaponize the DoJ to search and destroy political opponents. Think this sort of venomous “tit for tat” is unlikely? Just watch what happens if the Republicans take over the House in the mid-terms.. there are sure to be bills to impeach Joe Biden within days after the new Congress is installed in January. It’s possible that every President going forward will be impeached if the opposing party controls the House of Representatives. Our politics are just that ugly and just that vindictive.

There is one final reason Garland might elect to not pursue criminal charges:  the reputational risk– both personal and to the institution of the DoJ -- of failing to convict. There’s a statistic that the Southern District Court of New York has a conviction rate of 95% of its cases, and when you hear that, your first instinct is to exclaim, “wow, they must be great lawyers!” Then you realize that their strategy is to not bring charges unless they are absolutely certain that they can secure a conviction. That’s sort of like learning that the reason the New England Patriots have the most Super Bowl wins is because they were given the choice of opponents, and they elected to play the New York Jets seventeen times each season.

Reputational risk is a fair hypothesis for why the new District Attorney of New York, Alvin Bragg, is not prosecuting Donald Trump’s company, a decision that caused two veteran Southern District prosecutors to resign in protest. Fear of failure appears to be a more decisive consideration than doing the right thing.

Garland may decide that a failed prosecution of a President of the United States would destroy the reputation of the DoJ, and refrain from pursuing an indictment.

In short, there are any number of reasons why Merrick Garland might decide to not press charges against Trump.

But what should Merrick Garland do?

How about this idea, inspired by the fact that it is July 4. 

Why don't we let the people decide? 

Merrick Garland should not take this momentous decision away from the American people. He should put the case before them in a Grand Jury to seek indictments, and if Trump is indicted, Garland must prosecute Trump to the full measure of the law.

The reason is simple: that is the essential American premise of equal justice under the law.

The United States system of justice does not hesitate to prosecute young Black men for minor drug charges. But our system of justice seems to think twice before taking on the rich and powerful. The rich and powerful have the attorneys who can fight back.  The rich and powerful have the resources to contest, muddy the waters, delay, appeal, tie up resources, and try the case in the media before it ever reaches a trial. The rich and powerful can ruin that 95% conviction rate.  They can embarrass the prosecutors and create risk that the D.A. won’t be re-elected.  They can make that one failure to convict the lead in the D.A.’s obituary. 

On June 28, the remarkable Cassidy Hutchinson made it far more difficult for Merrick Garland to avoid pressing criminal charges against Trump. She made it clear what was happening at the White House during the famous 187 minutes, and her stunning quotes that demonstrated keen awareness among White House senior staffers of the likelihood that crimes were being committed... both Rudy Giuliani and Trump’s Chief of Staff Mark Meadows sought pardons for their actions. If the President’s Chief of Staff feels he needs a pardon, it’s a damn good bet that the reason for the concern was discussed with the President. 

On Thursday, June 30, The New York Times ran a breathy lead editorial under the title “Hutchinson Changes Everything.” Yes, and no. Cassidy Hutchinson is heroic, to be sure, but she did not provide a “smoking gun.” A “smoking gun” is unambiguous proof of guilt. It is listening to a tape of Richard Nixon’s voice approving a secret plan to have the CIA direct the FBI to terminate its investigation into the Watergate break-in all while Nixon was telling the American people that he had done nothing to impede the FBI investigation.

A smoking gun would be if somebody turned on the recording mechanism on an iPhone in the Oval Office just as Donald Trump instructs a lackey to contact the leader of the Proud Boys, or announces that “I know we lost the election, but we have to pretend we won,” or perhaps just as Trump thunders, “I don’t care if it is illegal, we have to stop those electoral votes from being counted.”

Ms. Hutchinson provided graphic and vital testimony, but no smoking gun. 

At the end of the day, there are only two things that will cause Merrick Garland to press charges on Donald Trump.

One would be the “smoking gun.”

The other would be to hear the overwhelming outpouring of outrage from American citizens who are tired of a criminal justice system that aggressively targets young Black men but is frightened of taking on the really big cases for fear of failure.

Merrick Garland needs to let the people decide.

And today, on the Fourth of July, Merrick Garland needs to hear from "we, the people."

He needs to hear that it is not his job to worry about whether America will suffer from societal division if he prosecutes a former President.

That it is not in his purview to worry about whether Donald Trump will emerge stronger politically if he is charged but not convicted.

And Merrick Garland needs to hear that he should not wait until somebody hands him a “no brainer” smoking gun to proceed with pressing charges against Donald Trump. 

The January 6 Committee has done its job. It has presented more than enough evidence for us to believe that it is likely crimes were committed by the former President of the United States. 

As such, we are not terribly interested in whether Merrick Garland concurs, or whether Merrick Garland thinks that a trial of the President is good for our politics, good for our society, or good for his reputation.

It is time to let the people judge.  Let’s pick twelve Americans, vetted and agreed by all parties to appear fair-minded, open to objectively weighing the evidence, and then let’s hear what they conclude. We are more interested in their opinion than Merrick Garland's.

Let twelve Americans weigh the evidence.

Because there are now mountains of evidence that Donald Trump committed crimes in his attempt to hold onto power. There is now evidence that Donald Trump knew that persons in his January 6 mob were carrying weapons when he directed them to the Capitol. We have evidence that he had been told that his scheme to demand that Mike Pence overturn the election was illegal. There is the audio recording of Trump attempting to defraud the United States of America by pressuring Republican Georgia officials to manipulate the election results. There is the crime of obstructing an official act of the government by directing a violent, armed mob to storm the United States Capitol. There is the fact that he sat and did nothing to protect the United States Capitol and its legion of government employees from the murderous rage of the mob he convened and incited.

There is a mountain of evidence that Trump was being advised by experts that he was dead wrong in his assertions of election fraud. There is a mountain of evidence that Trump wanted his mob to disrupt the official business of the United States Congress. There is a reasonable expectation that a President of the United States -- who swore an oath to preserve, protect, and defend the Constitution -- should know the Constitution well enough to know that the Vice President does not have the power to overturn an election.

And yes, he either knew the actions he took were illegal – having been told by his legal experts – or he damn well should have known. Something tells me that twelve ordinary Americans are not going to accept a delusional aversion to reality as an acceptable rationale for breaking the law.

This is no time to hide behind invented and unachievable legal standards, no time to worry about political consequences, and no time for timid people or tepid resolve.

Merrick Garland has one job: enforce the law of the land.

If Donald Trump is not held accountable for his attempted coup of the United States government, Merrick Garland will have committed an egregious abdication of official government responsibility that is on a par with Trump’s own flagrant flouting of his Constitutional oath.

It is time for our opinion to be heard.

It is time for every American who cares in "equal justice for all" to write to the Department of Justice and demand that criminal charges be brought against Donald Trump.

We cannot expect this broken government of ours to do the right thing on its own. We now know that our leaders are more concerned about their jobs, their reputations, and their power than they are about doing the right thing.

The only thing they notice is when we rise up and tell them what they must do.

We, the people.

Write to Merrick Garland today. Tell him to do his job. Tell him to do the right thing. Make sure he hears the will of the people.

Do it today.

It’s the Fourth of July. It is the day that the will of the people is heard.


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