OA16: Dump Trump?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 16, coming at you early. Bonus time! Isn't that awesome? How are you doing, Andrew?

0:01:27 Andrew: I'm great, Thomas. How are you?

0:01:29 Thomas: Well, I'd say I'm doing about as well as I could be, given that your fantasy team is slowly taking over our matchup. We're going to record as well two friends can, with teams going at it right now, as we speak. Week.

0:01:42 Andrew: I want everyone to know what a divide we just breached in order to get this show out to you.

0:01:48 Thomas: Yeah, we weren't speaking to each other, but we decided, yeah, now we wanted to record this special episode for you. There's been some Trump news. Who would have thought? Trump news, you couldn't imagine, but there's been something. And as a result, Andrew had a great idea for a nice early episode for your guys. Can't wait to get to it. For that reason, we are setting aside our differences, our fantasy football differences, we both decided to, you know, wade into neutral territory here and do a recording for you guys. So let's get to our first segment, breaking down the law.

0:02:26 Clip: The law breaking down

0:02:33 Thomas: All right. Well, relevant question. I would say increasingly irrelevant question with how little chance there is of Trump winning. But Andrew, just in case, if Trump somehow won through, I don't know, mind control, massive mind time machine, some means like that, could he follow through on his promise to ban all Muslims from entering into the country?

0:02:57 Andrew: Yeah, and this is one of those questions that has a really simple and straightforward answer. It's not what you would expect, or at least it wasn't what I expected when I went and took a look at it. And that is, yes, Trump could follow through on his plan to ban all Muslims from emigrating into this country. Relevant is 8 U.S.C. 1182 F, which is a law that particular provision, I think, was amended in 1952, governs immigration and says title header is suspension of entry or imposition of restrictions by president. And the law passed by Congress says whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may bet he may by proclamation and for such period as he shall deem necessary suspend the entry of all aliens or of any class of aliens as immigrants or non-immigrants or impose on the entry of aliens any restrictions he may deem to be appropriate.

0:03:06 Thomas: Wow.

0:04:00 Andrew: So that's fairly unambiguous. As far as I know, it has never been used. Obviously, you know, 1952, that's sort of the Cold War era, early Cold War era, and suspect I that it's kind of a McCarthyite provision, but it's never been applied. There's no case law, but that is about as unambiguous as I could imagine. And yeah,

0:04:26 Thomas: Certainly not what I expected. I thought based on, inferior you coverage that's not our podcast, you know, not, not in-depth opening arguments podcast coverage. I thought it was going to be a for sure the other way, you know? Like, nope, can't do it. Sorry. Constitution. But sounds like, yeah, sounds like it's okay.

0:04:43 Andrew: That's right. And if you think about the Constitution, many of the rights within the Constitution—some go to individuals, but some extend to citizens. And so in this case, as it turns out, don't know if there's a grounds for raising a constitutional challenge to being denied the opportunity to emigrate to the U.S. as a class.

0:04:57 Thomas: Right.

0:05:11 Thomas: Because you're not a citizen, huh? Ah, man.

0:05:12 Andrew: Yeah, I mean, that would be a really, really hard lawsuit to bring, too. And until that would happen, you know, you would have no mechanism to declare you know, for a court to declare the law unconstitutional. And I can't off the top of my head, I can't think of a particular provision that would invalidate it. Now, again, remember that this is a this is delegation of congressional authority. So, you You know, if you had the unlikely confluence of a Trump presidency plus a Democratic Congress, then the Congress could simply repeal this section, 8 U.S.C. 1182 F. But that obviously seems pretty remote. Vote.

0:05:27 Thomas: Wow. Yeah.

0:05:52 Andrew: But it's a good, I mean, it's a good thing to remember that, you know, if you think that banning entire classes of people on the basis of ethnicity, national origin, religion is a bad thing, you Know, just because, you know, in the event that Trump loses, just because he loses doesn't mean that it's not also a good idea to pressure Congress to act, to remove this provision so that, You off the books and out of the hands of, whatever president in the future we might have. But this is the state of the law right now.

0:05:52 Thomas: Yeah.

0:06:22 Thomas: Wow, breaking down the

0:06:23 Andrew: Thank

0:06:24 Thomas: Law. The law, consider it broken down. All right, well, let's get over to our main topic for today's show.

0:06:34 Thomas: Yeah, so I don't know if you knew this, Andrew, you've been away. You've been birthdaying. Happy birthday, by the way.

0:06:42 Andrew: Thanks, Thomas.

0:06:43 Thomas: While you were away birthdaying, Donald Trump chose to have a bad news day. I think he picked that day so that you wouldn't notice because you mean a lot to him. But he, I'm sure when you woke woke up from your, from your hangover the next morning. I'm sure, I'm sure you were pleased to find out that Trump had not had a good news day. That was Friday. He, there's, it turns out there's tapes of him from 2005, kind of on a hot mic situation where he apparently didn't think it was, or maybe he didn't even care. Who knows? With Billy Bush, who we've learned is the cousin of W.

0:07:18 Andrew: Access.

0:07:18 Thomas: So it was Access Hollywood kind of in between. Tapes that didn't make it to the final, shockingly enough, didn't make the final product of him saying horrendous things about women and how he basically can do whatever he wants because he's a celebrity of some kind, and really horrifying stuff. I'm sure everybody knows about it by now. Lots of stuff that I don't want to really repeat on a show like ours. Yes, even a show where the end of it is "stop breaking the law, asshole." This is a bridge too far for me.

0:07:46 Andrew: I'm with you. We have to maintain decorum on this podcast.

0:07:49 Thomas: Yeah, yeah. So as a result, some questions arise, questions that Andrew thought might be great to do for you guys for a bonus show, because it's very timely. In the last couple days, we've even seen more and more Republicans dropping their support. People are urging Trump to quit. It doesn't look like he's going to as of now. He's tweeted that he wasn't going to drop out. But let's ask our expert, our resident expert, Andrew Torrez, what is the law here? Can he be forced out by the GOP? What happens if he drops out? All that kind of stuff. Are they stuck with him, basically?

0:08:27 Andrew: Let's walk through kind of step by step the process that the Republican Party would have to go through in order to replace Donald Trump as its nominee. And the first step would be formally withdrawing him as the nominee, which would require the Republican National Committee, which has 168 members, to convene a meeting. And they have have promulgated rules, I'm going to link the rules in the show notes, that describe the power of the RNC in this situation. So the first question you might ask is, can Donald Trump be replaced? And the answer to that is, we don't know.

0:08:44 Thomas: Yeah.

0:09:09 Andrew: But, but, right.

0:09:08 Thomas: There's no replacing Donald Trump, but someone can try.

0:09:12 Andrew: But but but here's the argument. There are two provisions that are going to be relevant that would potentially apply here. So the first is in the RNC rules, Rule 9A says that the Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for president of the United States or the Republican candidate for vice president of of the United States as nominated at the convention. There are two positions that are in tension here. The first is that there is a catch-all phrase that says the RNC can fill any vacancy created by death, declination, Right. And yeah.

0:09:57 Thomas: Yeah. Otherwise. So that sounds a little broad to me. It sounds like that would be anything. And, uh, one question I might have is, what was the point of the first few words? If I mean, I'm sure this gets into writing these things in general, because you do see that a lot in different, I don't know, contracts or law or whatever, but why do you write the first two words if it's like this thing, this thing, also everything else possible? You know, it seems weird that you would bother with that.

0:10:02 Andrew: Right. Yeah. Yeah, that's that's a great question. And when you when you look in contracts, you will often see illustrative lists. Right? And they will say that are that are followed by, you know, what we would call a catch all provision. Right, and the or otherwise is a catchall provision. So a fairly typical way of drafting, but frequently when you draft in such a manner, you would say something like there was a request put out for information, you might say turn over all information, be it written, digital, electronic, email, or stored in any other fashion whatsoever, including but not limited to. You know, the proceeding. And that makes it very, very clear that you want everything, right? And that you are including illustrations so that when people, if people fail to comply with those procedures, you would be able to say, you know—and they might say, oh, well, you said you wanted everything, but I didn't know you meant email.

You know, you would say, well I included email in the list, right? So that's one mechanism of drafting. But the flip side of that is, I think, sort of implicit in your question, which is when you're trying to figure out what a potentially ambiguous term might mean in a contract, there is a canon of interpretation, which essentially says you should not read out in legislation, in a a contract, here in administrative rules, you should not define an ambiguous word in such a way that reads out other words in the relevant passage, right? And so if you were to read otherwise as, you literally including anything, then that does turn that death or declination into a a kind of surplusage, right?

0:11:06 Thomas: Right. Yeah.

0:12:18 Andrew: Then it really, then what you're saying is that this provision should be read as, is hereby authorized and empowered to fill any and all vacancies which may occur, period, right.

0:12:30 Thomas: Yeah, why would you need the words? I mean, I get the logic of sometimes you're trying to give whoever's reading it more information, or you're trying to leave less wiggle room so that people can't be like, oh, well, I didn't think you meant that or whatever. But in the case of this particular, of legal text that we're analyzing here, it seems like the items listed are kind of like specific. You know what I mean? Maybe this is, I'm not sure if I'm making any sense, but they seem to be very specific and very contained. And therefore, I almost wonder if the otherwise is mean? It would be one one thing if they're like, vacancies that might be caused by death, you know, let's see, lightning bolt, bowling accident, like just any,

0:12:31 Andrew: Right, this yeah, and

0:13:14 Thomas: Just random, any possible thing, like fatigue, whatever, then it might be one thing. But when you're just naming two things that are like kind of just extreme corner case things that might happen, it's not like, I don't know, does that make sense? It seems weird that otherwise would then cover, or because you don't like the candidate it and want to just kick them out or something like that, you know, does that make sense, all?

0:13:36 Andrew: So let's tweak the factual pattern a little bit and make it a very, very easy case, which is to say, suppose you had a candidate, you had Donald Trump fall into a coma, right? Then I think if you go back and look at this passage, I don't think there would be much argumentation at all that the RNC has the power to replace somebody who's fallen into a comma, right, because that's pretty close to death, and it would clearly be contemplated, and it would be a vacancy that was created by an external force, right? But it, yeah, yeah.

0:13:39 Thomas: Right.

0:13:48 Thomas: It would be nice Yeah. Right.

0:14:10 Thomas: Is That the difference? So, like, they seem to be external forces, there's nothing in that list that suggests you can create the vacancy yourself. Okay.

0:14:18 Andrew: Right. And another clue, so again, right, in a situation where you have an ambiguity, right, the first step is always, is there an ambiguity? Right? Is this something that when read straightforwardly using the dictionary definition or the the industry standard definition of the terms. Is there ambiguity or is it clear? And here I think there's an arguable ambiguity. So when you have an ambiguity, then you look to all of these canons of interpretation to help give you guidance. So, you know, additionally, you might look at the fact that rule number nine has a header that is entitled filling vacancies in nominations, right? And there's no provision. You know this from a previous contract that we've discussed, Thomas, but there's not a provision here that says, you know, the headers are for convenience only.

0:15:10 Andrew: So the header is actually useful in helping us to interpret, you know, where this belongs. And again, the notion of filling a vacancy is different than, you know, creating or changing a nominee or something like that.

0:15:25 Thomas: Yeah. You're saying it's an ambiguity. It sounds to me like that doesn't give the, know, the party license to cause the vacancy to me. But are you kind of just saying it is ambiguous at this point? Or are you firmly saying they can't?

0:15:37 Andrew: I, I No. I'm not firmly saying that they can't, I'm saying that, um, I, I would lean in that direction and I think that, you know, as you read this contextually, um, there doesn't seem to be a broad grant of authority to create a vacancy, even if you believe that the otherwise gives you a broad grant of authority in filling a vacancy. Now, what are we lacking here? We're lacking two things that we sometimes look to in trying to figure out what ambiguous laws would mean.

0:15:44 Thomas: Okay.

0:16:10 Thomas: I bet our listeners can guess what those are. Just go ahead and guess.

0:16:14 Andrew: Okay. So, yeah.

0:16:17 Thomas: Send in your, send in your. We'll wait. Send an email.

0:16:20 Andrew: No, hopefully that's the case and that these will will seem familiar. So number one, we're lacking legislative history. We're lacking the statements by the folks who drafted this provision as to what they intended it to cover. And number two, and most importantly, we're lacking any kind of case law or precedent that tells us, you know, how this has been litigated before, because this rule 9a has never been used. Um, there has been a situation, um, in 1972, uh. The Democratic Party replaced, um. George McGovern's initial vice presidential running mate, Thomas Eagleton, uh after it was discovered that he had, uh undergone electroshock therapy and he was replaced with Sergeant Shriver. Uh, but that is the DNC. They have a different set of rules. It was a pretty straightforward provision. There was no controversy. And

0:16:22 Thomas: No, Hmm.

0:16:35 Thomas: Uh-huh.

0:17:10 Thomas: You know,

0:17:10 Andrew: Eagleton voluntarily withdrew? Go ahead.

0:17:10 Thomas: I Think this is a time where I got to do my usual thing of asking incredibly basic, dumb questions that probably wouldn't have occurred to a genius lawyer like yourself. What are the RNC and the DNC? Like, what are they? They're not, they're not part of the government, right? Are they, are private entity? Like what kind of, you know, so I'm wondering what, is this sort of a, just a contract thing? Like they've, once they have these rules, they have to follow them because they're in some sort of a contract with some us with the people. How's this legal setup work?

0:17:43 Andrew: That's a great question. They are private organizations. The parties are private Parties. And one of the things that came up frequently in the, particularly in the Democratic primary, was sort of the notion of fairness of superdelegates and the fairness of winner-take-all contests versus proportional contests and primaries versus caucuses and that sort of thing. And the answer is that is a private body that is taking on some quasi-governmental functions here in the nomination process. And so what binds them are there are election laws, but the specific procedures that the parties use to pick a nominee are up to the parties, right? Like there's literally nothing to prevent either party from promulgating a new set of rules and saying, hey, look, we're going to go back to the system that worked in 1936, and our party bosses are just going to pick who the nominee is, and you're going to like it, um.

0:17:48 Thomas: Yeah.

0:18:01 Thomas: But Let's say, okay, so in that situation somebody can probably sue somebody though, right? That's so like, if, if, uh, if the party elites or something, or whoever's in in control, does something that's against these rules that they've set out. Who sues whom? Just whoever wants to says this is a breach of contract of some kind or...

0:18:49 Andrew: Yeah. Yeah. Well, what Yeah. I mean that's that's right, but, um, the way in which you would, the way in which the party would go back to the 1936 system would be to amend its rules, right? Would be to say, hey, we're no longer going to follow this process anymore. We're going to to follow a different kind of process.

0:19:22 Thomas: Right, I get that. But I meant, let's say, in a situation like... I getthat they have ways they can do it that are totally kosher. Like, Iget that. So, there's probably some, I don't know what, some amount of votes they need or some time period of meeting and something or other to amend stuff. But, I'm just thinking in an emergency situation like this, what physically, you know, like legally stops them from just kind of doing whatever they want.

0:19:28 Andrew: Yeah, right.

0:19:47 Andrew: Yeah, and again, what stops them are their own procedures that they've published, and what would happen would be Donald Trump would bring a lawsuit against the RNC in federal court seeking an injunction, and we talked about this in the last episode.

0:19:58 Thomas: Ooh, injunctions. We know what injunptions are.

0:20:03 Andrew: Right. Yeah that would seek to prohibit them from their Their nominee. Right.

0:20:10 Thomas: Got it.

0:20:11 Andrew: And so that would be an order from the court telling the RNC, no, you can't do this.

0:20:16 Thomas: So that makes sense. And you know one other question I have, I hope it's a good time for it, but you mentioned that they replaced, was it the DNC replaced the vice presidential candidate at some point? Is that what you said?

0:20:28 Andrew: Yeah. McGovern's campaign replaced Eagleton. He agreed to withdraw and and he.

0:20:33 Thomas: Okay. So that's a question I had because there's also Also, simultaneous to the question of Trump quitting or whatever, there seems to be some tension between Trump and Pence right now. They're not in the conjugal relationship that they were when their logo was first announced. There's trouble in paradise. I'm wondering now, is that something Trump can do? Could Trump even say, "Pence, you're out"? Now, I guess there's two sides of it. But I suppose if your main candidate, if your presidential candidate says to the vice presidential candidate, like, "I don't want to run with you anymore," I'm assuming that the VP would probably just step aside voluntarily and that would kind of solve it. But I do wonder, crazier things in this election have happened than if Pence didn't want to step down and Trump was so pissed at him that he wanted him to, is there anything he can do? Or is it since the party has nominated them both, is it only the party that can do this kind of thing?

0:20:47 Andrew: Right, right.

0:21:29 Andrew: Yeah, it's the latter, right? It is the party that has nominated both Trump and Pence, and it's The RNC that gets to call the shots with respect to that. In any usual situation, right, the party is going to do what the presidential nominee of the party wants them to do.

0:21:33 Thomas: Hmm, yeah. Yeah. That's normal, we But we get, we're not in normal situations right now.

0:21:46 Andrew: Uh, yeah, yeah. Um, but, but no, that, that Donald Trump cannot unilaterally kick Mike Pence off the ticket. Uh, they would have to follow this exact same provision. Now, again, uh, I think it's a different scenario if Trump were to kick Pence off the ticket and, and the RNC wanted to validate. Right. That would strike me as more of a situation of a of an arguable vacancy that has been created by an external force that requires filling. Right. In this case, the outside force would be Trump kicking him off, then.

0:21:56 Thomas: Yeah. Well, But assuming, assuming Pence allowed that, because, like, you can't actually like, if again, it's weird, but if Pence was like, "No, I'm not leaving," there's nothing Trump can do, right? Yeah.

0:22:26 Andrew: Right, right. Yeah, that's that's correct.

0:22:34 Thomas: Interesting. The

0:22:34 Andrew: He has no power to act unilaterally. His power comes from the implicit idea.

0:22:40 Thomas: Party wanting to not explode. I was

0:22:41 Andrew: Yeah. And and that's right. And so, you know, you saw that, for example, with the Libertarian Convention, Gary Johnson narrowly won on the second or third ballot. I think it was the second ballot. He was a somewhat controversial choice because he's not a doctrinaire libertarian, and he wanted to pick Massachusetts Governor Bill Weld, who isn't a libertarian at all, as his vice presidential candidate. And there was some thought that the delegates might revolt on that. They didn't. Again, I think because of the, know, implicit political pressures of, you know, even for a party as dysfunctional as the Libertarian Party, that you, yeah, yeah.

0:23:21 Thomas: Gonna say, yeah. There's all eyes are on the Libertarian Party and their policies for sure, right?

0:23:27 Andrew: But, but, you know, yeah I mean you just don't deprive, I mean it's one of sort of the long-standing principles principles is, you know, you don't deprive the nominee of, uh, it's always been his until here, but you know his or her opportunity to, to name, uh their running mate. And, uh but that is just convention. That is there is no, uh legal, mechanism that's available to you.

0:23:43 Thomas: No, reason to go down this rabbit hole, but I, you know, Libertarian part- No, no.

0:23:51 Andrew: So it was a good one. No, no, no. It's a good one Yeah,

0:23:53 Thomas: I mean, what I'm going to ask, Libertarian Party, whole new set of rules, right? But there's, I mean, knows are if they even have rules, they are like, we "We don't need rules. We don't need any sort of binding thing telling us what to do."

0:24:03 Andrew: Would substantially impinge on your freedom. So bottom line of 9A is it's ambiguous. And the majority of scholars who have looked at it have concluded that it probably does not give the RNC the power to involuntarily replace a nominee who is not interested in stepping down or has not voluntarily stepped down or been incapacitated or killed. And the people holding that view are Josh Putnam, a lawyer from the University of Georgia, Morton Blackwell, an RNC member from Virginia, and Jim Bopp, who was an Indiana lawyer and the former RNC vice chairman. The minority position, that catch-all provision is broad enough to strike down Trump, is held by former New Hampshire Senator Gordon Humphrey. And also, I don't know if you remember Delegate Kendall Unruh, who led the Free the Delegates group at the Republican National Convention.

0:24:06 Thomas: Yeah, okay, yeah,

0:25:02 Andrew: That was the group that wanted the delegates to be able to vote their conscience rather than vote as they were pledged by the results of the various primaries and caucuses. And she put together a group. They lost. And then immediately after the RNC and Trump had that really bad stretch where you had the Democratic Convention, you had Trump attacking the Khans, the Gold Star family whose son was a hero, hero.

0:25:35 Thomas: Quaint to think back to times when that was his biggest problem, that he was doing some of the stupidest politics I've ever heard of in my life, which is going after a gold star Muslim family, like, anyway, those were the days of the Trump campaign.

0:25:44 Andrew: And there was talk about replacing him then. Kendall Unruh's group, there was a lawyer in that group that put out a memo that said 9A provides an adequate mechanism, even though we've You've just nominated Trump, you know, to do a takesies-backsies. Kind of the uncertain status of the law. I would say if Trump voluntarily withdraw, were to withdraw, then you would have a clear application of Rule 9A.

0:26:15 Thomas: Right. Right.

0:26:16 Andrew: But how you would go about persuading him to do that is – that's a task that I think is above either of our pay grades.

0:26:22 Thomas: Well, I don't think anyone's ever persuaded Trump to do anything in his life.

0:26:28 Andrew: So now let's pretend, though, that one of two things happens. Let's pretend either that the minority position on Rule 9A or prevails or that Trump agrees to step down voluntarily. So what would happen under this rule? What would happen is that the RNC would have to convene an emergency meeting. They'd have to give five days notice. And then delegates, representatives on the RNCs, not the delegates to the national convention, but representatives who are members of the RNCE from all 50 states, from D.C., Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and the U.S. Virgin Islands, Uh, all of those get three members who sit on the Republican national committee. So there's a state chair, there's an national committee member and, uh, uh.

0:26:31 Thomas: All right. Oh,

0:27:17 Andrew: And two national committee members. It looks like one male, one female. Okay. So those 168 individuals. Get together at this meeting. Each member unit then gets to cast their votes. And those votes are in proportion to the delegates that each state or territory had at the Republican National Convention. Okay.

0:27:48 Thomas: Okay.

0:27:49 Andrew: So, for example, right, has 546 delegates that were allocated during the primaries. So each of the three members of the California delegation to the RNC would get 172 votes at the RNC, right? And the smaller states would get less, right. Right. So then of those three people get to to vote separately. Right. So it's not like all three have to agree.

0:28:06 Thomas: Okay. Oh they're not bound to anything now at this point.

0:28:18 Andrew: No. You would take, you know, that hundred and seventy two for the delegation divided by three. That gets you fifty-seven point three votes for each person. You tally it all up, and then you go back to the same committee rule process that got you to Donald Trump having the nomination in the first place, which is whoever they would vote to replace would need to get a majority of the 2,472 total votes, which is 1,237. It doesn't have to be bound to the primaries. It doesn't have to bound it within a jurisdiction. It does not have to be bound anything.

0:28:52 Thomas: I was gonna say and this could be, could this be anybody? Could

0:28:55 Andrew: But yes, they they Could they could pick anybody. And it was actually one of the difficulties with the Stop Trump movement before the convention in that there was sort of no clear alternative around which you could rally. Right. Ted Cruz is despised by everybody who's ever met him. And, you know, John Kasich was sort. Yeah. Paul Ryan, who sort of said he didn't want the job and then, you Know, put out that like kind of campaign video. It would have been. But I think process on Ryan was, you know, here's somebody who hasn't run at all. You know, I mean, obviously he was Mitt Romney's vice presidential running mate, but he was, he was not vetted in the campaign process. The strategic choice I think would have been John Kasich from Ohio, obviously, but I mean he got like a hundred delegates out of 2,400. So

0:28:56 Thomas: Right.

0:29:07 Thomas: Alternative, yeah. Paul Ryan, Ryan. Yeah.

0:29:47 Thomas: Yeah,

0:29:48 Andrew: It would have Been very, very difficult to rally So, you know, there was no clear person with whom you could replace. Here, I think, right, there's an obvious choice, right? Which is to say, Pence has been a part of the national campaign for a couple of months now. And he had, by all accounts, a really strong performance in the vice presidential debate. And I think it would it would be a no brainer if the RNC were able to replace someone, they would rally around replacing with Pence. Right.

0:30:19 Thomas: Yeah.

0:30:19 Andrew: Like now, whether Pence would accept that is, you know, yeah,

0:30:24 Thomas: Well, I feel like he would, because, like, it's not, I don't think he has as much to lose. I think, I think he's the clear pick because he's already somehow made the calculation that way back when he accepted he was going to get on the sinking ship, for whatever reason, I don't know, I guess, because it's not like a failed VP is usually good, well set up for the next election. But then again, I think it's just a matter of time before he gets on the ship. Paul Ryan kind of was, if he wanted to be. So who knows, maybe that was his thinking. But yeah, do you think there's a difference? I guess this is just political opinion now, but do you think there is a big difference in Pence's mind of, "Okay, I was willing to be VP to this, you know, disaster of a campaign just to kind of get my name out there," but I'm not willing to lose an election for president because typically when you lose an selection for president, you don't, nothing, you're done after that, it seems like.

0:31:13 Andrew: I think that's right. Right. But I think if you were Pence, I think you would you would take the nomination and you would say, if it turned out terribly. Right. If you get killed by Hillary Clinton, which which would happen as we're about to go through and explain, you would say, hey, look, I stepped in here for the good of my party and the good of the country. And, you know, I.

0:31:36 Thomas: Yeah, yeah. A Little bit different than being a clear nominee and losing then You know, Like Romney Or Something

0:31:40 Andrew: Right. Yeah, I think that's right. Right. There's one other provision. You've kind of hinted at it. Some folks on the cable news channels have mentioned the Rule 9 in passing, although I don't know that anybody's gone into it with the sort of depth that we've done here. But there's another provision of the rules that could arguably apply here, and that is Rule 12. And what Rule 12 does is allow the the RNC to amend its rules, right? And the way in which that works is the RNCs, there's a subset of the that the Standing Committee on Rules. There are 56 members of that committee. And so the RNc Standing Committee On Rules would have to pass its amendment, and that would require a majority vote, 29 out of 56.

0:31:42 Thomas: Yeah,

0:32:33 Andrew: And then it would have to go to the entire RNC for a full vote, which would require to pass by a three-fourths margin, okay? And then, and here's the real kicker, that the amendment goes into effect 30 days afterwards. So we are here on October the 9th. The election, let's is November the 8th, which is exactly 30 days from today. So, yep, sounds like we've missed the window, but it is, you know, at least theoretically possible to amend and expressly give yourself the grant of authority. But the problem to fall outside that 30 day period. So, right.

0:32:42 Thomas: Hmm. Oh. Man, uh, And By The time they're hearing this tomorrow sounds like we Missed our window, so They really needed To do that earlier, they could have done a no homers rule on, and just No, don't Allow no Trumps, uh, or something like that, or just a rule to be able to, what, handpick somebody or something, something, yeah.

0:33:25 Andrew: Yeah. Yeah, yeah. Yeah yeah. And I mean, what I would do is amend rule nine a right. And, and put in a sentence that says, you in the event that it becomes the judgment of the RNC, that the

0:33:42 Thomas: Your Nominee is Somebody As ridiculous as say Donald Trump, like that level Of ridiculous, then we get to step in.

0:33:43 Andrew: Right, right, yeah, know, if we can take another shot at our Bernie Sanders supporting friends now might be a good time to do that, which is which is to say I remember the tremendous amount of outrage that, you know, my friends who were Bernie Sanders supporters directed towards the DNC superdelegates. Right. And it was this is totally undemocratic and horrible and terrible. And, you know, and my response back to them at the time was, hey, look, like, are you watching what's going on in the Republican Party right now? Like, the reason we have superdelegates is to prevent the DNC from being taken over by a Donald Trump.

0:34:27 Thomas: Yeah.

0:34:27 Andrew: Does that make it hard? Now, look. Does Does that make it harder for an outsider candidate like Bernie Sanders? You bet it does, right? And I was, like I've said this before, I was a Howard Dean supporter in 2004, and the entire party apparatus was geared up against Howard Dean, right, like he, you know, obviously he imploded on his own in the, you now, post-Iowa scream, but the reason he lost Iowa, in my my view, was that the entire DNC got basically the entire mechanism of the Democratic Party to unite behind John Kerry in late December and to stop Dean as the nominee. And they were successful in doing so. And I thought Dean would have been a stronger candidate. Judge that historically, right?

0:35:12 Andrew: I think if we had John Kerry on the show, which by the way, Secretary Secretary Kerry, if you're listening, we would love to have you on the show. But I think if we had John Kerry on the show, he would say, yeah, I didn't run the greatest presidential campaign in 2004. You know, that's the price of erecting gatekeepers is that it makes it harder for, you know, sort of truly insurgent candidates to break through. And, you know, the differential on that is Dean, they were able to stop Dean. They were not able to to stop Obama in 2008. Right.

0:35:45 Thomas: Yeah, Well, the other The other way to prevent that from happening is just don't vote for these morons in the the primary. That's how you could you Know, prevent a Trump. I actually, that's something, topic for maybe my show or something. But I've been kind of thinking over, like, what would the liberal version of Trump be? And and would we do that, you know? And it's it's interesting to think about, but I just think bottom line is even if we had gone with somebody like Sanders, you yeah, sure, that's a wild kind of outsider thing for Democrats, he's not insanely unqualified like Trump. There's all these other things. Anyway, I'm sure I'm getting us off topic a bit, but

0:35:53 Andrew: So, Yeah. Yeah, no. Look, I think I think it's worth discussing. I mean, in my view, right, where Democrats have had prominent potential candidates who lack any political experience, I've I've tended to oppose those as presidential candidates, it, too. Right. So, you know, Admiral Wesley Clark was a, you know, a figure in the 2000s. And, if you want to make an exception for, you know, Dwight D. Eisenhower, you can make, you know, but but I didn't support Clark because he had never held elective office. And that's the only sort of prominent Democrat I can think of in the past 20 or 30 years, you know, who came sort of seeking the top job with zero elective experience.

0:37:08 Andrew: But again, in conversations with Republicans, one of the things that I would frequently bring up is, do you remember your criticism of Obama when he was the Democratic nominee, which was he had a couple of terms in the Illinois state legislature and two thirds of a term in the US Senate, and he lacked really the experience to go in and get get the job done. And while that, you know, wasn't salient enough for me not to vote for him, like, I think that turned out to be a pretty prescient criticism, right?

Like, if you look at how Obamacare got passed in the first, you know, year and a half of Obama's presidency, I think it is not a difficult argument to make to say, gosh, if he'd had some executive experience, if she'd have been a mayor or a governor and, you you know, had learned how to work with the legislature, then, you know maybe this wouldn't have been, you know, such a debacle that it was, you know, sort of getting things passed and, you know, losing Massachusetts' Senate seat to Scott Brown and, know sort of everything that, you know, the botching of the rollout and everything.

0:37:21 Thomas: Interesting.

0:38:15 Andrew: Like, I think there was a fairly valid criticism of Obama that, you know he lacked the kind of experience necessary to come in and hit the ground running as president right away.

0:38:25 Thomas: But you're saying once they've made that criticism of him, this idea that they're all about a wild outsider, someone with no experience at all. It's kind of ridiculous. We need someone with absolutely no experience who knows how to run a business that his dad gave him money and not even argue and not even well, by the way, not even, not, he couldn't even run his own business based on millions and millions of dollars in loans. He got, couldn't even do it well, but okay.

0:38:39 Andrew: It, it look, you know, you, the idea that high level business experience translates into executive experience is just, I don't have words to describe how inadequate that analogy is, right? Like it is like the way in which you run a business is, you know, by by fiat, by accumulating a majority of the shares and then, you know, making your wishes known. And maybe you have an advisory board and, you know, there are, you potential circumstances in, you high level mergers and acquisitions where you have competing interests. But on a day to day basis, you don't have right opposition groups within your company that have have their own source of political power, you know, that that have to be dealt with.

0:39:34 Thomas: Yeah. And that's, and you're just talking about like organizationally, you know, that's not even to talk about like what you're actually trying to do, you make a profit versus in in different ways than you're trying to run the government. But sure,

0:39:40 Andrew: Yes.

0:39:49 Andrew: Yeah. Yeah, right. I'm taking I'm taking for granted the argument of, you well, he knows how to get things done. Right. And, and the way and even assuming that, you that to be the case, which I think, could you stand some scrutiny, that the way in which you get things done in business is just different than the way you get things done in politics. But I think we're a little.

0:40:10 Thomas: Sure. Let's get back to it.

0:40:10 Andrew: Yeah. So, OK, so let's assume we've passed this first hurdle somehow. We have convinced Donald Trump to step down and therefore we have now convinced the RNC to convene and they nominate Mike Pence and whomever Mike Pence wants to be his running mate to to be the replacement ticket.

0:40:28 Thomas: Oh, right. How does that work? Does he,

0:40:30 Andrew: It's the same, it's the same 9A, right? Like, because the provisions say, well, I think they would, I think они бы обратиться к практике, right? They would say, they would call up Pence and say, who do you want to be your vice president?

0:40:30 Thomas: Same, okay. Well, right, but technically, does the party just pick the running mate then? Or does Pence pick his running mate? Or would they allow him to, okay, right? But technically speaking, they're doing the replacing based on 9A. Interesting. Thing.

0:40:48 Andrew: Right? Yes. But again, they're not going to want to get into a, yeah, yeah. I mean, it's already disastrous enough.

0:40:54 Thomas: Yeah, yeah, yeah. It already is a disaster. Good point.

0:40:57 Andrew: Okay. So now let's assume they do that, and then they replace Trump as the nominee with Mike Pence. They replaced Mike Pence with, let's say, Chris Christie. OK, so you have Pence, Christie, 2016. Now we're done, right?

0:41:08 Thomas: Okay. Maybe. How about all those getting them on the ballot? Are we going to talk about that?

0:41:14 Andrew: Yeah. Yeah. No, that's exactly that's exactly the next step. And as you may remember from our Bush v. Gore series, which is episodes two, three, four, and five, although there are minimum federal election requirements, how elections are handled is conducted on a state-by-state basis. And so the answer is, in terms of who gets on the ballot depends, you would have to go into each of the 50 states, and you would have to litigate in every single state, and you would have to seek an injunction to replace and Pence on the ballot with Pence and Christie. And in 36 states, there are laws that require, order to have access to the ballot, that the candidate be selected at a deadline, right, at a particular place in time.

0:41:42 Thomas: Oh, man.

0:42:11 Thomas: Oh, geez. So then could you even count? Maybe this will come down to each state's rules. And of course, we wouldn't expect you to know every single state's different election rules. But what would I wonder? So where do those votes go? Let's say Trump and Pence are still on the bullet. I could see an an argument of, well, you're voting for whoever the Republican nominee is, but I could also, I would also think like, well if your, if your vote is not going to specifically Pence and Christie, how would it possibly count for them? And it sounds like, would you have to write them in? Is that what you would have to do?

0:42:12 Andrew: And OK. Yeah.

0:42:41 Andrew: So so let's get to that in a minute, because I have I have looked at all of those state laws which are a little bit different. Right. But before we get there, sort of the first question is, could you get Pence Christie on the ballot and saying you can't get him on in 36 states? And then the remaining 14 states are Arizona, Arkansas, California, Connecticut, Illinois, Georgia, Kansas, Maryland, New Hampshire, New Mexico, New York, Oklahoma, Pennsylvania, and Tennessee. And in those states, though there's no fixed ballot deadline, the issue that you have is that many of those states have early voting. Right. So Arizona, California, New York, for example, have all we know they've already printed up their ballots because people have already mailed back in ballots.

0:42:43 Thomas: Oh, okay. Sure. Okay. Uh-huh. Yeah.

0:43:30 Andrew: Right. So the immediate case that I would look to for precedent for getting on in the other 36 states is a case that involved the Senate candidate from New Jersey. And so there was a freshman sitting senator. His name was Bob Torricelli, Bob the Torch Torricelli, who this is this is he was he he won in 1996. He succeeded a long time.

0:43:50 Thomas: What era are we talking? Oh okay. Cause that, that was an old timey sounding nickname. I wasn't sure if we we were talking like 30s

0:43:59 Andrew: I'm yeah. Yeah. I thought it was kind of a mafia sounding nickname. But and no, that is a statement of opinion. That is no nothing aimed at the potentially litigious Mr. Torricelli. But no, he succeeded Bill Bradley to the Senate in 1996 and then was running for reelection in 2002. And in the course of his reelection, it became known that he accepted illegal campaign contributions from six separate donors that totaled, I believe, $7 million. And the Senate Select Committee on Ethics issued a letter of admonishment to Torricelli. Now, he was never arrested. He was never indicted. He was never convicted of campaign fraud or campaign finance abuse or anything like that. But it looked really, really, really bad. This was New Jersey. It was a very, you know, it was a safe Democratic seat.

0:44:01 Thomas: Yeah yeah yeah nothing defamatory yeah yeah

0:44:56 Andrew: And as we got closer and closer to the election and more and more of this information came out, the Democrats decided that they were going to ask Mr. Torricelli to step down. So it's a really analogous situation to the current situation. And the New Jersey law, still in effect, required 51 days. And Torricelli stepped down on September 30th. So again, again, right about this time, with only 34 days left till election day. And so that New Jersey statute, let me read it to you, said, in the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall not occur later than the 51st day before the general election, or in the even of an inability to select a candidate because of a tie vote, blah, blah.

0:45:43 Andrew: "One, in case of the office to be filled by voters of the entire state, the candidate shall be selected by the state committee of the political party wherein such vacancy has occurred." And relevant subsection D, "a selection made pursuant to this section shall be made not later than the 48th day preceding the date of the general election and statement of such selection shall be filed with the secretary of state." So that looks pretty strongly like you've got to know within 51 days and you have to have a replacement candidate within 48 days, right?

0:46:13 Andrew: Right well, the New Jersey Supreme Court decided differently. They ruled seven and zero. So what happened? Exact same situation that I described before. The Democratic Party went. They filed seeking an injunction to stop the state from printing ballots with Torricelli's name on it and replace him with their preferred candidate, Frank Lautenberg. And so they filed for an injunction and the New jersey Supreme Court granted the injunction and said that, that they were guided by the principle that election laws are to be liberally construed so as to effectuate their purpose.

They should not be construed so as to deprive voters of their franchise or so as to render an election void for technical reasons. And they distinguished that New Jersey statute. We talked about how you go about distinguishing prior cases and laws from From state statutes like New York, for example, that says "the failure to file any petition or certificate relating to the designation or nomination of a candidate for party position or public office or to the acceptance or declination of such designation or nomination within the time prescribed by the provisions shall be a fatal defect." And the court also looked at and distinguished at laws in Colorado, Washington, and others, for example. So essentially, the New Jersey Supreme Court went out of its way to read that mandatory filing period as an optional filing period, right, as creating a safe harbor that if you get in before the 51st day and you replace a candidate before the 48th day, you'll definitely make it on the ballot. If you're late, then the question becomes, can you get on the ballot?

0:46:13 Thomas: Oh yeah

0:47:48 Andrew: And they asked at oral argument, they asked, the petitioners for the democratic party, you know, look, what's your drop dead date? How long does it take you, uh, before you can no longer get the ballots printed appropriately? And the answer was, you Know, next Wednesday, day, right? It was a couple of days. And then the court issued the order. And back then, this was 2002, there was less early voting and the issue involved absentee ballots. And what they did was actually mailed out new absentees ballots to people who requested them. And the end result was Because Lautenberg replaced Torricelli on the ballot. Lautenberg won and went to the Senate, so is senator from New Jersey. That kind of represents, I think, the high watermark in of what Trump would have to do. But now remember that Trump would have to win these lawsuits in every state.

0:48:29 Thomas: Wow. Yeah. Yeah, I was gonna say, because that was just one state where you talked about that. Yeah okay.

0:48:50 Andrew: And yeah, right. And that was that was New Jersey. And They specifically, you know, called out states that have ironclad rules. Right. Like we read the fatal defect in New York and there's similar provisions in in many other states where I think it would be very, very difficult to persuade the Supreme Court of those states that even though the statute says fatal defect, what doesn't really mean a fatal defect, effect.

0:48:55 Thomas: New Jersey, yeah.

0:49:19 Thomas: Would the Supreme Court be able to step in, because this is going to be like something that he would have to win in all, you know, in every state, would they be able to step-in and say, I got this one, and rule on it real quick, or is that impractical?

0:49:30 Andrew: The Supreme Court would not be able to step in and issue one ruling because is really a question of how you interpret the laws in 36 different states that prevent you from having access to the ballots. Now, if he lost, the Supreme Court could group together cases. If there was sort of an equal protection violation or something like that, the state, the The Supreme Court could group together similar cases and say, no, no. You made a mistake in interpreting your state law. Right. That's that's what the Supreme Court did in Bush v. Gore. Right. But that was dealing only with an appeal from Florida. Right.

0:49:40 Thomas: It's a state's issue. Okay.

0:50:09 Thomas: Right.

0:50:10 Andrew: It was not trying to consolidate together appeals from multiple different states.

0:50:10 Thomas: True. It sounds like, yes, they could possibly replace him. They could use this rule 9a, but at this stage in the game, the ballots will be the big issue, you right. Yeah.

0:50:25 Andrew: Right, right. And Here we can look to, again, the question you had started to ask is what happens if so suppose the Pence-Christie campaign is now able to get to win in some states but not others. So you have Trump and Pence are listed as the candidates on some ballots in some states. Pence and Christie are listed is the candidates and others. Isn't there the possibility that you could just have the state count votes for Trump and Pence as votes for Pence and Christy? And here the the best the closest case that I can find occurred in Missouri. This was a 2000 Senate race between Mel Carnahan, the former governor of Missouri, and John Ashcroft, hero of the religious right, later attorney general under George W.

0:50:27 Thomas: Yeah.

0:51:20 Andrew: Bush. So you may be able to tell where this case is going. Um, and Mel Carnahan died, uh, with, you know, six weeks left to go in the election. And the state party basically said, uh. We're going to replace him with his widow, Jean Carnahan, and we're going to construe a vote for Mel as a vote for Jean. Fact, worked, and Jean Carnahan won $1,075,872 to $1,039,409. Absentee ballots that were cast for Mel Carnahan were not counted as Jean Carnahan, right?

0:52:03 Andrew: Right. And and the same thing happened in in Minnesota when.

0:52:03 Thomas: Weird. Why Is that why weren't they, that doesn't, it seems like it'd be Easier to Count those than

0:52:10 Andrew: Yeah. Yeah. You Would think. Again, it's you know, it's a question of state by state application of laws so that so again, you know, know, you think you have an analogy for removing Trump. But the reason why the analogy breaks down when you move from a Senate election to the presidential election has to do with the way in which we vote for president, which is codified by the 12th Amendment of the Constitution and by the U.S. federal elections law, 3 U.S.C. 1. Both of these, again, a shameless plug for our Bush v. Gore episodes, which I think are really good, by the way, episodes Two through five.

So most people know that when you vote for president in your state, you are not actually voting for president. You are voting for a slate of electors and that those electors go and convene a meeting of the electoral college and then the electors submit their electoral votes. And that's what counts towards getting that magical 270 number. And in the past, we have had problems with what are called faithless electors. That is, an elector on a slate that is bound to vote for the candidate who wins in that state, who instead votes for somebody else. So there was one faithless elector who failed to vote for John Kerry in 2004.

0:52:11 Thomas: Hmm.

0:52:46 Thomas: They Are Very good. Okay.

0:53:35 Andrew: Again, didn't matter. One faithless elector in 1988 who voted for Lloyd Bentsen, who was the vice presidential nominee, as president over Michael Dukakis, who was the Democratic presidential nominee. So, you know, this sorts of things have happened throughout history. Faithless electors have not determined an election in recent years. But you could imagine, right, again, let's go back to 2007, right? It would take only a swing of three faithless electers to have made Al Gore president instead of George W. Bush. So the result of that is many states have laws that prohibit faithless electors, right?

0:54:15 Thomas: Yeah.

0:54:15 Andrew: And this is, I think, the fatal nail in the coffin, right, this is where our story sort of comes to a close. So the federal election law, 3 U.S.C., the relevant provisions, 3 U.S.C. 4 says each state may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote. OK, so that seems to suggest that you have wide latitude to substitute Pence for Trump. However, if the state has a law that prohibits that practice, that prohibites the practice of voting for a faithless elector, it would also prohibit having an elector vote for Pence if Trump is the name on the ballot, right?

0:55:04 Thomas: Right.

0:55:04 Andrew: Right. Because that's no, that is literally no different in practical application. It's different in intent, but it's no different in practical obligation than voting for Bentsen when he was Dukakis's vice president as president. Right. And there Are 26 states that have statutes that prohibit faithless electors. You cannot become president from either party without the votes from these. And let me give you an example of the differing kinds of state laws, right? So let's start with your state, Thomas, California, which says this is State Code Section 6906 says the electors, when convened, if both candidates are alive, shall vote by ballot for that person for president and that person for vice president of the United States who are respectively the candidates of the political party which they represent, one of whom at least is not an inhabitant of the state. OK, so that says you're bound to vote for the party nominee.

0:55:18 Thomas: Are

0:56:07 Andrew: Now, could that arguably be Pence over Trump? I think you have a good argument there. But you look at, for example, Alabama's statute, I'm not going to read the entire thing, but it says that will vote as an elector for the persons named as nominees on the ballot. It. Right. So they vary state by state. I'm not going to go through 26 different state laws because that would put our readers to sleep.

0:56:36 Thomas: But I mean let It suffice to say when we're talking about about elections that typically, even the biggest blowouts are not that big, really. One state or, you know, is going to make a huge difference or two states or, you know. There's not much room for error here. And if the ballots are not correct and you can't have your candidate on the ballots or something in a couple states, it's pretty fatal, right?

0:56:49 Andrew: Yeah, no, that's I think that's right. And, you know, there are a number of, you Know, of these state statutes that, know, come from what would what would be core Republican states, you know, the states that you would need in order to, you know, actually mount a campaign for president, right? So, you know, maybe, okay, fine, it's not going to work.

0:57:16 Thomas: Yeah. You could get lucky and they they were all

0:57:22 Andrew: And yeah, yeah, but they're not. Know, so the bottom line is talk and I think I think Republican Party operatives know this. So we basically outlined, you know, the three hurdles that you have to get over. Right. Number one, you have to have the power to replace a nominee who doesn't want to be replaced. Uh, that's an ambiguous question, meaning that there's going to be a public lawsuit, right? If the RNC were to convene and declare a bankruptcy, Trump would sue the RNc, uh, which is, I mean, you want to talk about literally unprecedented. A president suing the party that nominated him is

0:57:22 Thomas: Blue or something, but yeah, yeah,

0:58:00 Andrew: A fairly amazing, you know, you think the news, yeah, a presidential candidate, Thank you, you know, would be the news coverage of that would be fairly amazing, I think. So you have to get over the step of actually having the power to replace an unwilling, a nominee who's unwilling to step down. You would then have to litigate state by state, and I mean in the next couple of days, and win on liberal interpretations in deep red states of construing election results in order to get ballots replaced, replaced. It's going to be a practical impossibility in a great majority of the states, and then third, when you have ballots that don't match the nominee of the party, you have this potential, these potential faithless elector laws coming into

0:58:04 Thomas: A presidential candidate, you mean, or yeah, yeah,

0:58:53 Andrew: Play in a majority of states in this country. And so I think the net result is, when you hear Republican Party operatives talking about replacing Trump as a candidate, they are saying, "We are willing to concede this election," right? There's, and I mean that 100%, they're saying, We want to conceded this election. Get on with the business of life.

0:59:07 Thomas: With a slight amount of dignity,

0:59:16 Andrew: Yeah. And not have to deal with a month of people associating the Republican brand with, you that we have seen about Donald Trump. You You know, that political calculation is also saying, and we are willing to accept the wrath and revolt of the Large Part of Our of our party that has supported Donald Trump To this point, you know, even though the answer to the question is is is, I think, you know, sort of here are the hurdles and it's a really, really long shot. I think this is, it's really instructive to know, you what it means when you see a talking head on CNN who identifies himself as a, you know, Republican attorney and member of the RNC who is saying the RNC should replace Trump as a candidate. What they are saying is, I think we should punt on the election, allow Hillary Clinton to be president and regroup in four years. There

0:59:16 Thomas: Yeah. Oh, of Trump supporters, right, yeah wow,

1:00:10 Andrew: Is no other way to interpret that statement.

1:00:12 Thomas: Or I mean, maybe they just haven't listened to opening arguments, so they don't know that there's really no, they think there's some chance to fix it. Wow, well, excellent, excellent analysis. Thanks so much for that. I think that pretty much paints the full picture. Sounds like, sorry, Republicans, you're kind of stuck.

1:00:16 Andrew: Could be. Could be

1:00:31 Clip: He who questions training, only trains himself at asking questions. What?

1:00:39 Thomas: All right. And for today's listener questions, thanks so much for submitting these, by the way. Daniel Andrew Duncan asks, what are the varying rules on how federal laws get passed through Congress? I keep hearing you need 60 senators, but growing up, I had learned it was a simple majority in both houses. What is he talking about there? The different majorities you need for different things?

1:01:01 Andrew: Yeah. And what he's talking about is the way in which the Senate has changed its operations in the past 20 years. And a lot of this comes from a policy put into place by Harry Reid when he was majority leader of the Senate. Answer is it still only requires a majority. I know it's hard to believe when you listen to CNN. It still only require a majority in both houses to get a law passed. But in the Senate, there is a procedure whereby instead of voting yes or no on a law, you can vote to table the law. Uh, and that means to indefinitely postpone and consider it later. Okay. And, um, in order to break that process, right.

1:01:46 Andrew: To, and the, that, that vote is called cloture, right? To, to bring everything to a close, uh, that requires 60 votes instead of 50. And in the past, um, what you would a senator is you would, if you were a part of the minority, you would filibuster, because the idea is when you, when you don't vote for cloture, the idea that debate is still continuing. And so you would have to have a filibustering, and that's where you get the Mr. Smith Goes to Washington, you know, people reading the phone book, that sort of thing. But essentially, the Senate has agreed to on previous question calls to sort act as though there's a standing filibuster and not require the senators to actually come in and debate.

1:02:32 Andrew: So all of these bills that you see, you know, failing with 54 votes in the Senate or what have you are they're not failing on a yes, no basis. They're failing on the fact that they're failing to get the votes in. Question and cut off debate. Uh, and, the um, way to break that log jam is to change the Senate practices to require on votes to continue debate that they actually continue debate. That is that we have a real filibuster. Um, and why, uh, the parties have not moved to that practice. This. I don't know. Right. Like that, that seems to me to be a much more, um, more expeditious process that, you know, look, you could still filibuster when it comes time to, you Know, things upon which you really, really don't want laws passed.

1:03:19 Andrew: Uh, You know, you would not, you Would then be able to pass ordinary legislation with 51, 52, 53 votes. Um, I, I guess there is such partisanship and such distrust that, You know You know, neither party wants the other side to be able to to pass laws with a bare majority of the Senate. And so that kind of inertia has kept it going. But don't worry, Daniel, you were not misinformed in high school civics. It still only requires a basic majority. But there is this procedural rule in place that the exception has swallowed everyday practice in terms of cutting off debate.

1:03:50 Thomas: Yeah. Wow. I had no idea. So they're just treating it like there's always a filibuster and therefore you need... Wow. Crazy. Crazy. I didn't notice. See, people should be more outraged about this stuff. I mean, I suppose Congress has a very, very, low approval rating, so maybe that's part of it. All right.

1:03:55 Andrew: Yep. Yep. I agree. I disagree. Yeah, that's true, too.

1:04:09 Thomas: Well, we got to get out of here. Thank you for answering that question. Thank you for submitting your questions, listeners. Very, fun very to be able to answer those. And they're great questions. I had no idea about that. All right, well, that's it for today. Hey, anything else before we tell people to stop breaking the law?

1:04:15 Andrew: Yeah, keep them coming.

1:04:26 Andrew: Nope.

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