What Would Two More Senators Do For Democrats?
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Part of me thinks... So I got really sick in January 2020 after I went to the Iowa debate. And part of me thinks I got COVID then and was like patient five in the US. And the debate was a super spreader event. From a Bayesian point of view, that's not too likely. Okay, what about this? I was in China in January 2020. And after I got back, I got sick. And so did...

Claire, and I think you, and I think Micah, because there was one podcast that we recorded where like, maybe I was on the upswing a little bit, but I was literally the only person in studio. You gave COVID to everyone in the office in January 2020. Oh no.

Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk. We are now five weeks away from Election Day, and the forecasts are still inversions of each other. Republicans have a 68% chance of winning the House, and Democrats have a 68% chance of keeping their majority in the Senate.

As of the time of this recording, 62 deaths have been recorded as a result of Hurricane Ian, and that number is expected to rise. Natural disasters, particularly hurricanes, have a long history of shaping perceptions of politicians. So today, we're going to talk about what that means for Florida Governor Ron DeSantis and President Joe Biden a little over a month before Election Day. We're also going to look at how natural disasters can shape the public's perception of climate change.

While individual weather events are hard to attribute to climate change, Americans and politicians who experience extreme weather close to home appear likelier to take human-caused climate change seriously.

Later on, we'll turn our focus to Congress and answer a listener question that we didn't get to on last week's Model Talk. Biden's pitch to the American public is that there's a lot more he could do with 52 senators than 50 senators. Is that actually true? And lastly, the Senate seems poised to pass the Electoral Count Reform Act. How far will it go in preventing any future attempts to overturn an election? Here with me to discuss it all is Editor-in-Chief Nate Silver. Hey, Nate.

Hey, everybody. Also here with us is senior science writer Maggie Curve. Hey, Maggie. Hello. And our senior elections analyst, Nathaniel Rakich. Hey, Nathaniel. Hey, Galen.

Also, a regular reminder that we have a live show coming up in Washington, D.C. on October 25th. It's just three weeks away, so get your tickets. There's a link in the show notes. As usual, a little birdie told me that there will be some special guests. I'm not sure, but maybe one of them might be Nathaniel. Has anyone heard something similar? I haven't heard. Well, folks will just have to get tickets and find out.

Let's begin with Hurricane Ian. We don't yet know the full cost in human life and damage of the storm. And of course, that's the primary story here. The preparations and response are also, though, a political story. And the dynamics here are particularly notable, given that DeSantis has been at odds with Biden on things like COVID, immigration, education, and LGBTQ issues in high-profile ways.

It's also high stakes given that the midterms are close at hand and DeSantis appears to have presidential ambitions himself. So to start things off, what has the recovery looked like so far in terms of the state and federal government working together? Nathaniel.

So far, I would say that, you know, everybody's kind of playing their part. DeSantis has kind of put aside some of his, you know, normal sharp edged rhetoric. And he said that, you know, the Biden administration was doing a good job or quick action, I think was the exact quote. So, you know, they are, you know, working together and doing the usual things that governments do to dig out from hurricanes. But of course, this is going to take a while. And, you know, it can often be in the

kind of lengthier recovery process that it becomes clear that maybe things aren't going as well. Um,

Not to say that'll happen in this case. Hopefully it won't. The one kind of, I think, piece of criticism that I think some folks have gotten is in particular Lee County, which is the county that was directly hit. The officials there were criticized for not evacuating soon enough. They evacuated on Tuesday, even though on Monday there were indications that the storm was going to be bad in their area, even if it wasn't scheduled or slated to be a direct hit there at the time.

But this has raised a lot of interesting discussions about probabilities and things that we talk about here at FiveThirtyEight. And meteorologists always say that if you're anywhere within the cone of uncertainty within a hurricane, you should take the storm seriously because that kind of uncertainty basically represents the, you know, realistic range of outcomes for where the hurricane could hit.

And, you know, you shouldn't necessarily just look at where the black line going down the middle of the of the cone is because that's just the most likely outcome. But it doesn't necessarily, you know, probabilistically it could be anywhere within the cone and maybe even a little bit outside the cone. And so it's been kind of an interesting debate about, you know, how folks in Lee County, which were within the cone, but not on the black line, how soon they should have reacted to the storm.

Yeah, I think actually this is something that the National Weather Service has thought about in terms of how to relay probabilities to folks and how to sort of divert attention away from just that black line because of where the outer bounds are and where the uncertainty lies in this. Nate, do you have thoughts on relaying this kind of information to the public? Well, so first of all, the cone only represents two-thirds of possible outcomes. People might assume it's like, I mean, I don't know what they assume, to be honest.

If they say it's some like 95% confidence range, usually at 538, we're showing a 95% range or 90% range. It's actually narrower than that. And so there have been disputes in the past about whether it should show more uncertainty. Generally, visually, I think works better than using numbers. We believe in that at 538. But these are difficult decisions in part because

evacuations can be costly in two ways. Number one, you can have deaths related to evacuation. The infamous case is Hurricane Rita, where traffic in Houston was very bad. It was during a heat wave and there was something like there was a bus that caught on fire. So there were like 100 some deaths there.

due to evacuation. I'm not sure how common that is in other storms. And two is that there is, I think, pretty solid evidence of kind of like the crying wolf effect, right? That if you evacuate and the damage is minor, then people are less likely to evacuate the second time or the third time, which is salient in a state like Florida. It gets hit by hurricanes pretty often. And so my inclination is

Not to second guess as much, but I do wonder here if that cone caused problems, right? If you're looking at the New York Times, it's a good illustration of like where the cone was. And at first on Monday, the cone is wider because there's more time and more uncertainty. And Lee County is just kind of like on the edge of that cone now.

On Tuesday, the cone's narrower, but the forecast track has shifted a little bit southward, right, toward Lee County. So it's still on the edge of the cone. And like, I do wonder if that cone being only 67% maybe gave a false sense of security, right? If you're anywhere within that cone, then that's

fairly likely, right? Including on the border of that cone. It's not like the edge of private, it's like the edge of like the center distribution, but still fairly likely. So that's something I think should merit discussion. I think it's also, I mean, just like there's cost to evacuating. Like even if there's not like a risk to life and limb, like that's an expensive proposition for a lot of people. I mean, you're talking about

loss of food. You're talking about transportation costs. You're talking about cost to find another place to stay, especially when the cost of those places to stay is going up because the demand has just suddenly skyrocketed. You know, you're talking about time off of work. And there's a lot of people that cannot afford to do that unless they're absolutely certain that the alternative is worse. So I think that there's

Just the way that we have sort of set up how this risk-benefit balance is in the U.S., like nobody's going to pay you to get out of the way of a hurricane. And as long as you kind of have to balance whether you can actually afford that or not, there's going to be a lot of people that stay.

Yeah. So we're getting here at some of the logistics in terms of preparing for a storm, which is one thing that politicians will get judged on. Of course, the next thing that politicians will get judged on is the aftermath. And that has both upsides and downsides for politicians.

politicians. And I think there are some pretty obvious examples. I know that there are some empirical questions about just the degree of impact that this can have on someone's, say, approval rating. But it's easy for all of us to think of examples where politicians got good reviews for handling a hurricane, like, say, Chris Christie with Superstorm Sandy, or bad reviews like Bush with Katrina. I'm curious, what do we know about

how the public reacts to hurricanes and how politicians treat the recovery in broad strokes. So not just focusing on those maybe outliers.

Yeah, so I actually have an article coming out on the site shortly that's looking at this. I went back and looked at hurricanes and tropical storms that have caused at least $10 billion in damage in the U.S. this century and tried to look at how they affected governor's approval ratings. Of course, we can't know for sure how they affected them because...

Correlation isn't causation, but I looked at a poll from before the storm and a poll from after the storm. And actually, I found that, you know, the effect is pretty inconsistent, you know, and sometimes often actually it's quite minor. On average, the governor's approval rating went up by about four percentage points. So maybe they got a bit of a bump, but

you know, really it's not something significant, not something you would consider like a major change in their political fortunes. And as you kind of alluded to, Galen, there are kind of lots of exceptions on either side. You know, there are some governors who get like a big boost, you know, kind of a, you know, almost like a rally around the flag effect. And then there are some governors who are panned for their response and get a negative boost, which I suppose is called a, you know, there's a word for that, a

But it's escaping me at the time. But, you know, and that's usually, you know, this usually happens for like rational reasons. Right. So like Chris Christie after Hurricane Sandy was really lauded for working with in a bipartisan manner with Barack Obama's administration. And that really helped his approval rating, particularly among Democrats. And he soared into, I think, like the 70s in terms of his approval rating.

For Hurricane Katrina in Louisiana in 2005, Governor Kathleen Blanco, she was really second-guessed in terms of when she was ordering this evacuation. And of course, the recovery from Hurricane Katrina took months, and in many ways, New Orleans still hasn't recovered. And so that was generally seen as a botched recovery.

recovery. And of course that is something that's shared between the state and federal government and local government. Um, but you saw blank Broncos approval rating really declined by nine points immediately after Katrina. And then it can continue to decline as kind of, you know, the state, uh, had a really sluggish recovery. So, um,

I think basically the story here is that nobody should count on getting an approval bump or I suppose on the flip side, nobody should count on a politician getting less popular. But it can happen if somebody has a particularly strong or weak response to a hurricane. And my article also cites a lot of academic research that backs these findings up.

Yeah, in reading over a draft of your article and some of the other research on this, it was really striking to me how like, oh, this is how democracy is supposed to work. People who are competent in emergencies get rewarded and people who aren't don't. They get punished. Florida in particular is a state where politicians can...

pad their bona fides by responding well to hurricanes. I think Rick Scott is a prime example of somebody who became quite popular in the state because of his response to hurricanes and the way he was sort of omnipresent on media in the run-up and in the aftermath. Jeb Bush was also considered really competent in responding to hurricanes. To what extent have we seen sort of DeSantis follow that playbook so far? I mean, I think DeSantis is trying to shapeshift between being a

quote unquote, normal, pragmatic Republican politician in a swing state and being Trump on steroids or a more refined, tactically intelligent version of Trump. Clearly, he's not in any sort of like on the lips mode on hurricanes. I think he said complimentary things about the federal response. And that's, I think, consistent with if you're going to pick any issues

and wants to project normalcy, then this is one of them, right? You don't want to be grandstanding too much. It's pretty easy to think of examples where politicians were hurt by an ineffective response, right? You get to demonstrate leadership. And so I think this is just kind of very consistent with his MO of how he tends to govern. And he's starting from a place of popularity, right? Yeah. I mean, his numbers are fine,

I think he's ahead of Charlie Crist by like seven points in our polling average, which is fine, but not fantastic for an incumbent against, frankly, a retread candidate like Charlie Crist. Yeah, I mean, he's a little polarizing, but walks the right side of that line for the most part as far as Florida goes, I guess.

Yeah, he's about as popular as you would expect in a state like Florida, which is light red. A recent poll that I found put his approval rating at 50%. All right, so that's where things stand for now. Of course, we're going to watch the recovery and see how it goes.

But there's also another way that storms can shape perceptions, which is on the issue of climate change. And as I mentioned at the top, there's no real rigorous way of going about assigning blame on climate change for single weather events. Of course, we have had catastrophic hurricanes for hundreds of years. But that doesn't change the fact that people see this as part of a trend, and therefore it changes perceptions on climate change. So Maggie, what's the research on that?

So there's, I mean, there's a number of different interesting threads here. I think that one thing that I sort of run across is that when they do reviews of multiple studies and kind of looking at like what the

general outcome is across dozens of different pieces of research. One of the things they find is that experiencing extreme weather events, experiencing large hurricanes, experiencing flooding, big temperature anomalies, that those things tend to make people more likely to say that they are believing in climate change, that they are concerned about climate change.

But it doesn't seem to have a strong signal showing that they're actually doing anything about that. Like it doesn't seem to change behavior as much.

What about vote intention? Are people who experience extreme weather events then more inclined to vote for candidates who make, you know, environmentalism or climate change mitigation a priority? And on the flip side, like, are the places like South Florida that experience more extreme weather and are maybe more at risk from rising sea levels, are politicians from those areas more inclined to kind of lead on these issues in Congress?

So there's this one study that I found from January 2022 that was really interesting to me because it was sort of trying to look at how extreme weather and natural disasters affect the actual outcomes of elections and campaign contributions. And so they were looking at extreme weather events between 1990 and 2012 and

And they found that in the short run, after one of these events happened, you saw an increase in contributions to the Democratic Party, obviously probably related to the fact that the Democratic Party has this reputation as being more environmentally inclined. And they also found that there was a small penalty that anti-environment incumbents experienced after those kinds of events.

But it tended to only happen if the incumbent was particularly anti-environment to begin with. So the election would become more competitive if the incumbent leans towards that anti-environment position. And the more things that they had, the more times that they had voted against environmental policies, the more things that were involved in their election.

persona of like not supporting the EPA, like that kind of stuff.

Those were situations where the increase in campaign contributions tended to be skewed to the challenger and the incumbent was less likely to be reelected. But it kind of took those specific kind of situations for there to be a real penalty for not being the environmental candidate even after some kind of big disaster had happened.

So is the lesson here from both pieces of this conversation, like perceptions about politicians and perceptions of climate change, that ultimately these things are on average marginal? I mean, it kind of seems to be the case. Like when studies have looked at what politicians do when their districts are affected by hurricanes or by major temperature swings, they

Those are even marginal, fairly, effects. So, like, with the hurricanes, you got people supporting more environmental measures, supporting more environmental policies. If their specific district had been hit by the hurricane...

But even in the same state, if their district wasn't hit by it, they didn't have the same amount of change. It seems to be very specific to location, very specific by party. And the changes, while they can last, don't necessarily make like these big shifts in sort of what's happening within a party within like a state.

All right. Well, let's shift our focus to Congress. And for that, we're going to say goodbye to Maggie. Thank you so much for joining us today. Yeah. Thank you so much for having me. So what would 52 senators actually get Joe Biden?

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We got a great question for last week's model talk that we didn't get to and that also didn't have that much to do with the actual model. So we're going to take some time to answer it today. And joining us to discuss is Atlanta Journal-Constitution's Washington correspondent, Tia Mitchell. Welcome back to the podcast, Tia. Thanks for having me back on. Missed you guys. We missed you too. So, uh,

Are you ready to answer this question that we got from Harry? I'm ready. Okay, here's the question. Biden has made remarks along the lines of, give me two more Democratic senators and I will enact my agenda. Would the two Democrats most likely to win a new seat be likely to side with Biden, or would they be more in the mold of Sinema and Manchin?

That's the question. According to the forecast, there is about a 37% chance that Democrats win 52 or more seats in the Senate this fall.

And beyond maybe the two new senators in this hypothetical situation, it's worth asking about the other senators that are already in the Senate and how they would feel about some of the parts of the agenda that Manchin and Sinema have seemingly been holding up. But let's begin with Manchin.

sort of how Democrats would get here. What are the potential two extra senators that we're talking about? You know, who would be the 51st and 52nd Democratic votes, Nate, according to the forecast? This is the model part of the question. So the most likely Democratic pickup is John Fetterman in Pennsylvania, who I think would be a pretty reliably loyal party member. After that, we're talking about Mandela Barnes in Wisconsin, who is

I think would also be fairly progressive, perhaps Tim Ryan in Ohio, who a little bit more ambiguous. He's at times, he's been a pretty reliable Biden voter. He at times has tried to brand himself as more of a centrist. Probably if you get elected, then in the first couple of years, you tend to be pretty loyal to the party and more willing to take risks. Then you kind of get to reelection. It becomes more of a wild card, but

But I think it's probably right that if Democrats gain these seats, then those are probably the people that add to the reliable Biden caucus.

Yeah. And in fact, the four Democratic candidates in those most likely Democratic pickup opportunities, so that's Pennsylvania, John Fetterman, Tim Ryan in Ohio, Mandela Barnes in Wisconsin, and Sherry Beasley in North Carolina, have all come out in favor of eliminating the filibuster. So it seems likely that in the event of 52 or 54 seats, the filibuster would be gone pending what other senators feel.

And to be clear, if Democrats are getting 52 seats in the Senate, have they kept control of the House, statistically speaking? Because obviously this isn't a relevant question if they get 52 seats in the Senate but lose the House. No, it's definitely not a guarantee. I haven't looked at that exact probability. But no, that's not safe to assume, I don't think.

The reason being – oh, I forgot to mention Beasley, the candidate in North Carolina. But all of these – all four of those most likely Democrats I think would be toward the party median if not a little left and would be reliable parts of the Biden majority. But no, because the thing is you have all these races that are like within –

A point or two, right? If Democrats just happen to get over the finish line in Pennsylvania and North Carolina, say, right, and happen to hold on narrowly in Nevada and Arizona, Georgia, that could happen with a mediocre environment for Democrats. They just kind of get lucky in the close races, right? So it's not a foregone conclusion that they would have the House. I think it's likely but not safe for certain.

Tia, you spent a lot of time in the halls of Congress talking to politicians about where they stand on Biden's agenda and so on. I'm curious. So it seems like the two potential extra senators that Nate mentioned would be maybe more likely to

sort of follow Biden's lead, maybe even want to do away with the filibuster. But maybe more importantly, what about the senators who are already there? I think there's been some sense that Manchin and Sinema have provided cover for other moderate Democrats and like they have done a lot of the speaking out so they don't have to. Is 52 the magic number for sort of getting everyone on board because it's only been Sinema and Manchin who are opposed?

Yeah, I think you're right on both points. Yes, mansion and cinema, because they've been willing to put themselves out there as opposed to getting rid of the filibuster or creating new carve-outs, that has allowed maybe those who...

ambivalent or tending to agree that they want to keep the filibuster intact, that allows them to not have to speak up because, you know, with Manchin and cinema opposed, nothing can get done. Yeah, Manchin and filibuster. But yeah, with Manchin and cinema willing to say, I'm not willing to do it,

Then that allows other people to just remain silent, knowing it's not going to get done. And I do think they may not be as far resolute as Manchin and Sinema, but they could have reservations. You know, even President Biden had reservations about changing the filibuster. Now he's come around on it, particularly with certain issues like abortion or voting rights.

partially because, you know, folks on the left were pushing, pushing him, pushing Congress to do things. But I definitely don't think even if they got to 52, again, you've got to get 50 votes in the Senate. And so you can only afford to lose two. Manchin and Sinema, you're assuming would be the two they lose. But then it just takes one more person to say, ah, I

I don't know about this. And the other point I want to say is that's because they worry what happens if they lose control of the Senate. Now, we can talk more about whether that's a good or a bad gambit, but they're thinking if we get rid of the filibuster, we screw ourselves if Republicans retake control. And who are those other senators potentially? Who are we talking about when we talk about people who Sinema and Manchin might be providing cover for?

The person I think of immediately is Senator Tester. He comes from a conservative state. And again, he hasn't necessarily been out there like Manchin and Sinema, but I wonder, could he become that vocal person if it becomes, again, part of the conversation?

Tia, isn't it true, though, that all 48 Democratic senators other than Manchin and Sinema voted to change the filibuster rules when the voting rights bill came up for a vote in January? Do you think that they would retreat from that? Do you think it was just like some of them supported like just a one time exception for the rule? Even if they did vote for the carve out at that point, they voted knowing it was going to be symbolic because they didn't have the votes to do it.

So I don't I still wouldn't. And again, I'm not saying Tester would be would go against reforming the filibuster. I'm saying he's somebody, again, a Democrat from a conservative state who may have reservations about it. Those are the kind of things I think about. Yeah. Tester has been I mean, he's a talented politician and in some ways, you know,

is kind of the Democrat that progressives might want, right? He is usually a pretty reliable vote, more so than Joe Manchin. He has lived a little bit of a blessed life electorally, where first elected in 2006, very good Democratic year, reelected in 2012, which was a year where Mitt Romney was not that appealing a candidate to white working class voters, reelected in 2018, another very good Democratic year, and now 2024 is likely to be a

pretty challenging test. And so he might be in the category of someone who, um, might have some reservations. There's also like old institutionalists, right? You know, Diane Feinstein is someone who at times has been reluctant to get on board with the more progressive parts of the agenda. Also seen as being maybe a little senile at her age. Frankly, I think we're allowed to say that. Um, so if you have 52 free, free, free speech, uh,

But also if you have exactly 52, and there are scenarios where they have 53 or 54. If you have exactly 52 when two of them are not going to get on board with the more progressive portions of the agenda, then any circumstance where some senator is absent, any circumstance where someone dies or retires or has a scandal and has to be replaced, it leaves you on fairly thin ice. Yeah.

Yeah. To your point, though, Nate, from the beginning, right, in a world in which this would be useful, Democrats also have to have the House. And I think at that point, you're looking at an environment that like was pretty good for Democrats and it's not just a fluke type of thing. So I do wonder if, you know, if Democrats have the House, do they also have actually 54 seats in the Senate? Because in our forecast, there's not much differentiation between Democrats.

Mandela Barnes, Tim Ryan and Sherry Beasley. And so you would think that maybe in an environment where they win the House, all three of those could very well win because it's a systematically good year for Democrats. Yeah, maybe that's actually a better way to frame the question, which is if Democrats keep the House, how many senators have they won? I mean, I'll admit that I have my trouble wrapping my head around

54, right? I mean, what's our model? It's unlikely for sure. An 11% chance. I'm not sure I bet on that 11% chance of 54 or more happening. But there is something important here for the context about what if this happens. If Democrats actually gain two seats in the Senate and keep the House, then they're going to feel pretty jubilant and

triumphant, because that is unusual for a midterm. You can debate whether the fact that it's so unusual means that we should discount our forecast or whatever, but that would be a big deal. Democrats would feel, I think, very emboldened to be bolder relative to-- if this weren't such a surprise relative to historical norms.

Okay, so Tia, let's talk about what we're actually talking about here. What are the parts of the Biden agenda that Democrats have not been able to get through with the 50-50 split in the Senate?

So the two biggest things are abortion and voting rights. So on abortion, particularly as the Dobbs ruling was leaked, but even before then, you know, Democrats would like to have federal protections for abortion rights. In the House, the House only needs a majority vote. The House has voted repeatedly, led by Democrats, to create those federal standards.

But with the filibuster in the Senate, you need that 60 vote supermajority unless you change the rules. Now, they have changed the rules for different things. You know, they changed it. Republicans, when they were in the majority, changed it for judicial appointments.

mainly because Donald Trump's appointees couldn't get confirmed because Democrats in the Senate were using the filibuster. But they also used a carve out to kind of avoid the fiscal cliff with raising the debt ceiling. That was used kind of there was like this filibuster carve out that allowed them to raise the debt ceiling and avoid a default.

So you have people like Senator Warnock, who I cover, or a lot of senators who are like, we have done it before. Why wouldn't we do it for abortion, for voting rights in particular, which Warnock is very passionate about? So, again, with voting rights, we've seen the Supreme Court slowly but surely invalidate portions of the Voting Rights Act.

And that was passed in the 1960s. And it was all about creating federal protections for the right to vote, particularly in Southern states where in the Jim Crow era,

The states were enacting laws that made it harder for black people to vote, if not outright illegal in some ways. So the Supreme Court has said that without new voting standards passed by Congress, we can't allow states to be held to standards that are, you know,

50, 60 years old. That's not fair. You need to update your voting standards. And until recently, that was the Voting Rights Act was being reauthorized. But in this highly partisan climate we have now in Congress, Republicans have blocked the changes to the Voting Rights Act. They have there has not really been negotiations on it.

And so now Democrats are saying, let's just do what we think is right. Of course, there was extra energy around that after the 2020 election, not only with protecting the right to vote and not allowing suppression, but also protecting poll workers. Also, with the coronavirus pandemic, you know, there were a lot of

Voting changes that proved effective in turnout that Democrats would like to enshrine. And many Republicans have been hesitant to that, partially because they think it benefited Democrats. So Democrats in Congress would like to create these federal standards and these federal protections. But again, Republicans have used the filibuster to block that.

So I think those are maybe the two biggest issues. There's also immigration reform. There is social spending that Biden wanted to get through, like extending the child tax credit that didn't happen. So pretty expensive social programs.

Are we thinking here that with 52 Democratic senators or maybe 53 or whatever, and of course, this is highly hypothetical, they could very well lose the chamber. Democrats are going to be like blowing up the filibuster and passing immigration reform, expensive social programs, federal laws for abortion rights and voting rights laws.

I definitely think abortion, voting rights and the child tax credit you just mentioned are like the three biggest priorities that Democrats could get the most buy in to blowing up the filibuster. I think if I were to name a fourth, you might get immigration in there. But immigration becomes so much more partisan and political for Democrats.

all the reasons that, you know, you can think of. And so I think progressives would want to get immigration reform in there too, or at least like, you know, protection for the dreamers, things like that. But it still is so much more fraught politically. And that's where you start, again, you start losing Democrats who would say, hey, wait a minute now. I don't think, you know, I don't think this type of legislation works.

should be something that we blow up the filibuster for. They might be okay with the legislation, but put it through our rules as they exist, they would say. Yeah, immigration is where Jon Tester takes his stand, I think, right? I mean, there are different buckets here. One bucket is issues that could probably be done through reconciliation efforts.

Anyway, at least arguably, but it just helps to have 52 instead of 50 because you don't need to rely on cinema or mansion. I think there's this category of areas where Democrats feel as though their rights have been unjustly taken away by the courts. So abortion and voting rights, as Tia mentioned, then the broader category of electoral reforms. If this were moneyball and Democrats were actually trying to do things that help them in the future, then –

passing anti-gerrymandering standards would be highly useful. That would be a smart thing to do. And I think with 52, you might have that because there are cases where they feel like court rulings have gone against them or will go against them. They need this to kind of hold serve, so to speak. The big nuclear option would be to expand the Supreme Court. I don't think it happens with 52. Maybe it happens with –

with 53 or 54, who knows, right? But that creates some deterrence. The Supreme Court are, among other things, political actors, right? And if they feel like Democrats might have the option to actually expand the Supreme Court and it's a credible threat, then that might rein the court in a bit, I think.

So this all ultimately comes back to the filibuster. And we said up front, Nivana, you suggested that maybe everyone besides Manchin and Sinema really are on board with blowing up the filibuster. If this became a real possibility and people are voting to determine the future of the filibuster, knowing that Sinema and Manchin themselves cannot stop it.

is ending the filibuster. I mean, right, because, okay, you make a carve out for abortion or voting rights and you're ending the filibuster because then when Republicans have control of the Senate, they will say, well, I mean, we want to make legislation that's not about voting rights or abortion. And maybe they want to make legislation including on voting rights and abortion, but other things too, say immigration. They carve out the filibuster for immigration themselves and they pass whatever laws they want. Is this a good bet for Democrats?

Because this is all what it's going to come back to in this moment where Tester plus the extra two, say it's John Fetterman and Mandel Barnes. Is this in their interest to do, to end it? Democrats long term. I think this goes back to this question that Democrats have been grappling with, which is like, how do they combat this?

of Republicans who have been willing to do things in recent years that violate the kind of traditions in the gentleman's agreement, so to speak, as to like how the parties interact with each other. So, you know, back in the day, it was the rules are the rules. And even if we don't agree with each other, we're going to

play by these unwritten or written rules of like decorum or whatever, or like, again, these gentlemanly kind of agreements with each other, for lack of a better term. And then Republicans in the past, you know, 10 or 20 years were like, forget the rules. We trying to govern. We have an agenda and we're going to pass it by any means necessary. And if that means blowing up the rules, we will do it because we know what we're trying to accomplish. Right.

And I feel like Democrats have, you know, that whole, if they go low, we go high, you know, and Democrats, you have a constituency of Democrats who are like, you know, quit trying to play nice, just play at their game. They blew up the filibuster, you blow up the filibuster worse. But for whatever reason, I feel like Democrats have been hesitant to kind of play the same game and we're seeing them come around to that. But, you know,

Democrats are late to that party of like, we pass our agenda by any means necessary. And so I think that's the question that Democrats are now faced with. Is it more important to kind of play in the box, and that box includes written and unwritten rules, or is it more important to pass

the agenda that your base is asking of you. And so far, Democrats have said our agenda is really, really important, but we want to play by these rules.

Again, they're talking about, you know, because we have we're in the majority and we're going to play by the rules because we might be in the minority and then we lose the rules. But again, Republicans don't have that tactic. Republicans said, while we're in the majority, we're going to pass our agenda and we'll worry about the effect of it when we're not in the majority anymore.

Yeah. And I think a related concept is like Democrats need to decide if it's more important for them to play offense or to play defense. I think if they decide they want to play defense, right, I think for the foreseeable future, because of the Senate's bias toward rural states, which have become more Republican, I think you can expect Republicans to control the Senate more often than Democrats to control the Senate. And so if Democrats want to play defense, they can look at that and say, well, you know, if we keep the filibuster in place, um,

As I was assuming, Republicans don't change it when they have control, but...

If we keep the filibuster in place, you know, Republicans will be prevented from passing their agenda more often than we'll be prevented from passing our agenda. But I think if you want to look at it from kind of a playing offense perspective, I don't see a scenario where Democrats get back to 60 seats in the Senate anytime soon, not without coalitions changing. On the other hand, that's definitely on the table for Republicans within the next decade or so. And so the filibuster in that sense constrains Democrats 100 percent of the time

I'm rounding up, when they have control. But maybe it only constrains Republicans, you know, 80 or 90 percent of the time when they have control. So, you know, it seems possible for Republicans to pass their agenda with the filibuster in place at some point in the future. Whereas for Democrats, if they ever want to pass some of these reforms, I shouldn't say ever because things could change in multiple decades. But in the near future, if they wanted to, you know, implement filibuster,

you know, abortion protections or voting rights protections, I think this is the time for them to do it. And so they have to eliminate the filibuster in order to take advantage of that while they still can, basically. There's, at the very least, no guarantee that Republicans would respect the filibuster. But the filibuster is kind of hanging by a thread. And again, I'm going to repeat a point from earlier. If Democrats actually...

pull this off, they gain two seats in the Senate and hold the House, right? They're going to be like, this is our mandate from the public to go do all this stuff, and we may never get another chance, right? I think they're going to see it as like a bonanza, and they won't be held back by – well, I don't know. I mean, I guess Biden is the constraint because Biden is possibly running for re-election and is kind of running on this agenda of moderation. So I think the stuff that –

gets more into defending rights, quote unquote, is stuff that could happen. Whereas like immigration reform is not in that category. It probably wouldn't happen as much, but yeah. All right. Well, in just five weeks, we will find out how this all shakes out in the Senate and House. Let's move on and talk about the Electoral Count Reform Act.

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Last week, Senate Minority Leader Mitch McConnell announced his support for the Electoral Count Reform Act, which would reform the way that Congress certifies elections. This is a bipartisan bill and comes in response to the January 6th attack on the Capitol. Tia, what is explicitly outlined in the Senate's Electoral Count Reform Act? You know, it's a lot of things, but essentially it says the vice president is there to be a figurehead,

He or she can't control the votes, can't throw things out, can't make decisions unilaterally.

And then the other big thing that it does is creates a new threshold for challenging the electoral votes sent by any individual state. Right now, it only takes one member of either chamber to like trigger the process to challenge votes. This would raise the threshold to it takes 20 percent of the members in.

in both chambers to have to agree to move forward with the challenge. So there are other things in there, such as making sure that the governor of every state certifies the slate of electors. So that kind of puts some responsibility on the state and would prevent these kind of alternate electors that we saw were attempted in 2020.

There's been significant resistance amongst Republicans to kind of hold Trump accountable for the role that he played in January 6th or even talk about January 6th, investigate it. So who are the Republicans involved here? Like, how did this come to be a bipartisan bill that now seems likely to pass, including with Mitch McConnell's support? Like, what brought those Republicans on board? So I think privately, there are way more Republicans who are horrified, troubled, fearful, scared about Trump

January 6th and want to make sure it never happens again. Now, many of those Republicans will not publicly express it in those terms, but privately, that's how they feel. They were appalled by what happened. They were scared for their lives and they want to prevent another insurrection. That was a threat on their lives.

So you were there on January 6th along with all of the lawmakers that you're talking about. Right. Have you seen an evolution in the way that lawmakers have talked about this or talked to you about it? Like, do they continue to say, this was really messed up. We need to make sure this never happens again. Has there been a softening? Like, how are Republican lawmakers talking to you about these issues today? Yeah.

Yeah, there is an evolution. And I actually, for the anniversary of January 6th, earlier this year, I wrote about that evolution from the perspective of Republicans. It's not so much that they deny the violence of January 6th. And most of them will at least softly admit that it was supporters of then President Trump who facilitated that violence.

But you see more and more from Republicans publicly that they don't like directly addressing January 6th and its causes. They'd rather pivot to, you know,

What about ism? You know, Democrats are mad about January 6th, but what about the Black Lives Matter rallies? Or, you know, in some far right Republicans like the Marjorie Taylor Greene's and the Matt Gaetz's and some members of the Freedom Caucus have said, yes, January 6th was terrible and it was violent, but we don't really know who did it.

Or, you know, there are people who were arrested by January 6th, and those people are not being treated fairly by America's criminal justice system, which is very ironic given, you know, that kind of puts them in the same boat as the Black Lives Matter people in some ways. But to your point, many of them are hesitant to call out the root causes. So, but nonetheless, it looks like there are 10 Republicans supporting this. Who are those 10 Republicans?

So, yeah, the Senate always was more willing to condemn January 6th and to speak out about its root causes. So, for example, you know, we're talking about 10 and I think it's up to like 13 Senate Republicans are willing to support.

And it may be even more if and when the bill actually comes to the floor, which will be after the midterms. But, you know, in the committee that passed the Electoral Reform Act changes, all but one Republican on the committee, which we know the committees are pretty evenly divided. So all but one Republican on that committee changes.

in support of the bill. The Senate in general, Republicans and Democrats are supportive of these changes. On the House, however, very, you know, relatively few House Republicans voted in favor of their version of the legislation, which is similar, but a little bit different. The House and the Democratic majority, for example, wanted one third of

the body to agree in order to challenge electoral votes instead of the 20% in the Senate vote, in the Senate bill. Nathanael, you've been tracking part of the fallout from January 6th and how lawmakers across the country have been talking about it, how candidates across the country have been talking about it, as well as like the nuts and bolts of, you know, how it happened in the first place. How far does this bill go to really ensure that something like January 6th can never happen again?

Yeah, so, I mean, a lot of the kind of shenanigans, let's say, you know, happened on the state level, of course, and that is, I think, the real part that needs shoring up. And, you know, I mean, you saw this in like 2020, right? I mean, like, you know, even if...

had decided, yeah, I can unilaterally throw things out or whatever. Like the issue was that the, the kind of the quote unquote fake elector scheme was so kind of half baked that like there wasn't a genuine like alternative slate of like Trump votes in places like Pennsylvania and Arizona to, to even like be proposed. So like it, there were many problems with kind of the Trump plan basically is what I'm saying. Yeah.

And the Electoral Count Reform Act that was proposed, at least in the Senate, you know, it can't change state laws, of course, but it does do a fair amount to kind of tidy things up in terms of the pipeline from the states to Congress. So, you know, as Tia kind of alluded to, it's specifically kind of

zeroes in on the governor and says, Congress shall accept the certified results that were certified by the governor. And so that kind of prevents a situation where maybe the Secretary of State goes rogue or the legislature goes rogue, or there are multiple versions of the electors floating around there. It identifies which one should kind of take precedence. And it's

in the event that the governor goes rogue, there's also, of course, there would be court challenges. And this bill also provides for expedited judicial review of those challenges to make sure that those things could be resolved more quickly. So those, I think, are

Oh, and then there's also an archaic law that lets basically state legislatures override the results of the election by declaring a quote unquote failed election. And this Senate proposal would eliminate that. So a lot of those kind of the most obvious like loopholes, if you want to call them that,

are closed by this reform act. But kind of that said, you know, I've seen a few scholars who, you know, were kind of hopeful about this bill, but also kind of cautioned against, you know, we're always fighting the last war. And, you know, if you close these loopholes, which is not that we shouldn't close those loopholes, but if you close those loopholes, then people will find other ways to do it. So, you know, I don't think that anybody should be under the illusion that passing this act, you know,

ties everything, you know, ends all the problems with American democracy. But it does seem to, you know, in addition to the kind of congressional threshold, you know, increasing the thresholds for objecting and stuff like that, you know, it seems to address the more, you know, it kind of it comes at the problem a little bit earlier in the pipeline as well, which I think is the was the really weak point in the pipe in order to finish the terrible metaphor. Yeah.

Yeah, I think the judicial review part of this is actually maybe the most important part of the bill because it's not about one particular loophole or contingency, but about the fact that it establishes that basically if there is a fight that the courts get to decide. And the courts, by and large, were not willing to play ball with the GOP's electoral shenanigans in

2020, we can get into theories about why I think Democrats don't tend to understand the court and its incentives very well and why it's very conservative on some things and maybe not as much on other things. But so there's that. And there's also the signal that it sends that GOP leadership is not willing to play ball with too much extracurricular activity. So I think this is like a

With that judicial review provision, I think this is a bill that has more teeth than like the original version, which I don't think had that clearly as much. It certainly wasn't reported. Yeah, exactly. The original version was very kind of band-aid-y. Yeah. I'm just going to say I still struggle with the fact that so much of our American democracy is built around justice.

the fences that are put up can be breached easily. You know, like you have to agree to follow the rules. And so we create these rules and democracy is set up that once the rules are created, people agree to follow them.

And our democracy has proven to be very flimsy with just a few bad actors, you know what I mean, who just decided, OK, these are the rules. So what? You know, and that to me is the limitations even of these reforms, because what we saw in 2020, yes, it ultimately failed and there was not an overthrowing of our government.

But we came close. And yes, these rules are being put in place to, again, create some more fences and create some more barriers. But there are still access points that require people to like, you know,

just have to agree to abide by the rules. And that's why I still look at this stuff and I say, you know, there are still in the, I'm sure the judicial scholars and people looking, again, there will always be loopholes because if there are people who decide for, you know, whatever their motivations are that like, I don't like this rule or I don't like this outcome, no law or no rule in some ways can hold people back who wish to

push through. I worry about that. Yeah. I mean, if you undermine respect for the ruled law, then at some point people are consenting to abide by court decisions and rules. And I mean, yeah, I think you're right that if that trust is eroded too much, then the specifics start not to matter as much. I mean, I guess maybe both sides still feel as though, or not both sides, but kind of like the Democrats plus the institutional McConnellist

McConnell-esque GOP wing, which is now a minority wing of that party, right? I guess they still feel like maybe they can ride out the storm once Trump has exhausted his eligibility, no longer interested in running. And, you know, I mean, Mitch McConnell's life isn't great in a world where there's no respect for the rule of law, right? The life of a Supreme Court justice is not good even when a case where the rule of law has been undermined.

But yeah, I'm not sure what the long term, you know, this is helpful in the short term. The long term is still very much in question, I think. High variability, as we like to say in 8. Yes.

We're going to have to leave it there. Thank you so much, Tia, Nate, and Nathaniel. Thanks, Galen. Thank you. My name is Galen Druk. Emily Vanesky is in the control room. She's also our intern. Chadwick Matlin is our editorial director. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we will see you soon. Bye.