Today marked the first day of the 117th Congress. My understanding is that the Senate currently sits at 51-48 in favor of the Republicans, because Perdue’s seat is technically vacant pending the outcome of runoff, whereas Loeffler continues to occupy her seat (she was appointed to it and the full term is not yet up). The House currently sits at 222-211 in favor of the Democrats, with a vacancy in Louisiana due to Rep.-elect Letlow’s death last week, and a vacancy in New York due to the unresolved race in the 22nd. Pelosi was re-elected as Speaker despite not having the support of five moderate Democrats.

But, it’s been an eventful weekend in addition to that.

On the litigation front, yesterday the 5th Circuit quickly dismissed Gohmert’s appeal of his lawsuit against Pence regarding the 12th Amendment, agreeing with the lower court’s ruling that the plaintiffs lacked standing. The 5th Circuit is generally seen as the most conservative of the appellate courts, and the three-judge panel who tossed the appeal consisted of a Trump appointee and two Reagan appointees.

Also yesterday, we learned that the “arsonist wing” (to borrow Senator Sasse’s term) of the GOP Republican caucus has at least 12 members, including not only Senator Hawley but also another Senator with clear Presidential ambitions, Ted Cruz. Cruz and 10 other Senators (four of whom just joined the Senate today) floated a plan whereby on January 6th Congress would appoint an Electoral Commission to perform an “emergency 10-day audit” of the election results, which would theoretically allow a state time before January 20th to convene its legislature and “certify a change in their vote, if needed” in light of the Commission’s findings. This plan has been roundly criticized as anti-democratic by such Republicans as Senator Romney, Senator Toomey, and Governor Hogan. And, it is doomed to fail since the House will clearly not vote to support the plan.

However, it is nonetheless a very distressing development. Steve Schmidt, the former Republican political operative who announced last month that he would register as a Democrat, argued today that January 6th will represent the first shots in a “political civil war” within the Republican party, with the vote on January 6th representing a “loyalty test,” and with the “autocratic” wing pushing out the remnants of the “pro-democracy” wing in the 2022 Republican primary season. While I haven’t seen any media speculation regarding what I’m about to say, I suspect that if the Democrats were to win both Georgia Senate races next week, the schism within the GOP might come sooner than that: If McConnell no longer has the power of Majority Leader to bind his caucus together, might the likes of Romney, Toomey (who has already announced his retirement in 2022), Sasse (just re-elected in 2020), and Collins (ditto) decide to leave the GOP caucus and sit as independents, or perhaps even take steps towards formation of a new conservative party?

And then we have today’s big news, where the Washington Post released an hour-long audio recording of a call that took place yesterday between Trump and Georgia’s beleaguered Republican Secretary of State Raffensperger, plus attorneys and other advisers on both ends. The call consists largely of Trump asserting that he really won Georgia by hundreds of thousands of votes, and imploring Raffensperger to “find” enough votes to change the result. Raffensperger wasn’t having any of it.

In the hours since the call was released, there has been speculation that in the call Trump may have violated Georgia and/or federal laws regarding solicitation of election fraud. But even notwithstanding that potentiality: to the extent the call provides a window into Trump’s beliefs and his current state of mind, it’s frightening stuff. He seems to genuinely believe the election was stolen from him, based on conspiracy theories and arithmetic not grounded in actual facts. If his term weren’t coming to a natural end in 17 days, I suspect we’d need to talk once more about impeachment and/or the 25th Amendment.

Oh, and there’s reporting today that this week Trump intends to give the Presidential Medal of Freedom to Republican Congressmen Nunes and Jordan. I have no words.

We’re now 1 day away from the swearing in of the 117th Congress, 3 days away from the two Georgia Senate runoffs, and 4 days away from when the new Congress (with the old Vice-President presiding) meets to formally open and count states’ electoral college votes.

The 116th Congress passed two significant bills in its dying days. One was the Consolidated Appropriations Act, 2021, which is commonly thought of as the second major piece of COVID-19 stimulus legislation (the first having been March’s CARES Act). However, like many year-end consolidated appropriations acts before, the 2021 bill is filled with lots and lots of other things – in fact at over 5500 pages it is supposedly the longest bill ever passed by Congress. Of particular interest to me is the inclusion within this bill of a pet project of retiring Senator and HELP Chair Lamar Alexander, a bill to ban so-called “surprise medical bills”, which arise in situations where a patient is seeking care at an in-network facility but unknowingly (or unavoidably) is treated by out-of-network providers like anesthesiologists. There was a time when it was thought Trump might not sign the bill, but he finally did on December 28th.

The other bill is the National Defense Authorization Act for Fiscal Year 2021. The bill had passed in December with veto-proof majorities. Trump vetoed it anyways, on December 23rd, citing two reasons: he objects to the bill’s language that would rename military bases that were named after Confederate officers; and he wanted the bill to include a repeal of Section 230 of the Communications Decency Act of 1996, which he believes is inappropriately protecting Facebook, Google, Twitter et al. Some have suggested that Trump’s real motivation for vetoing the bill was its inclusion of new stronger anti-money-laundering provisions, including a new requirement that all corporations tell the U.S. Treasury who owns and controls them. However, last week the House voted to over-ride the veto and yesterday the Senate followed suit, making this the first veto over-ride of the Trump Administration.

As for Georgia, yesterday Trump tweeted that the runoff elections were “both illegal and invalid.” There has been speculation that Trump’s rhetoric may lead to lower-than-expected Republican turnout in Georgia: If some of his base believes elections are inherently rigged, then why would they bother to vote? This dynamic is adding to the difficulty of assessing what will happen in these races. Intuitively, the Republicans are coming into these races with huge structural advantages. First, Purdue had a 1.8% lead on Ossoff in the general, and the Libertarian candidate had attracted 2.3% of the vote. Similarly, in the ‘jungle special’ the Republican candidates in total attracted 1.0% more of the vote than the Democratic candidates in total. Second, in general Republicans have enjoyed greater success than Democrats in getting their base to turn out for non-Presidential elections. On the other hand, you have unprecedented amounts of money flowing in for the runoff, with more flowing to the Democrats; you have Trump casting doubt to his base about the election’s integrity; and you have a little bit of ‘demographic leakage’ to the Democrats (two months’ worth of deaths and voters turning 18). If forced to make a prediction, I think we’ll end up with a split decision with Purdue and Warnock prevailing, giving us a 51-49 Senate. But, I have very little confidence in that prediction. As was true in the general, it will likely take days before the Georgia drama is settled.

And before that happens, we’ll have an interesting January 6th on Capitol Hill. It has been expected for weeks that there will be formal challenges to certain states’ electoral votes in the House. It was less clear until recently as to whether any Senator was prepared to make a parallel objection in the Senate. But then Senator Hawley (R-MO) confirmed that, yes, he would make such an objection. That will place Republican Senators in the unpleasant position of having to vote, on the record, on whether or not to disregard certain states’ certified election results. In the wake of Hawley’s announcement, Senator Sasse (R-NE) penned a lengthy essay on his Facebook page about the election, referring to Hawley and others (albeit not by name) as “institutional arsonist members of Congress.” On the plus side, yesterday a Trump-appointed federal judge threw out the Gohmert v. Pence lawsuit on standing grounds. Amusingly, the previous day Pence’s DOJ-penned response to the lawsuit basically said that Gohmert had named the wrong defendant and that if he wanted to sue anybody it should be Congress, pointing out the inherent absurdity of suing the Vice-President in an effort to increase the Vice-President’s power.