Congress: An Unnatural Disaster

Transcript

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

0:00:03 Clip: So, just a yes or no, you still do not have a plan? I have concepts of a plan. That is a damning non -answer. I'm not trying to make it about myself, Your Honor. I'm just trying to show his bias toward the defendant. Just don't make it yourself.

0:00:33 Clip: Something simple as a crack pipe, a used crack pipe. The rules were that you guys weren't going to fact check.

0:00:44 Thomas: And welcome to Opening Arguments. This is episode 1076. I'm your host Thomas Smith. That over there is lawyer Matt Cameron. And you heard a new intro that I haven't made yet because we're recording this a little early, but I bet it was spectacular. Matt, what did you think of that new intro?

0:00:59 Matt: Doubt. I'm sure it was fantastic as always. Don't even need to hear it.

0:01:05 Thomas: Always fun to change up those quotes. Matt, Oh, how you doing tonight?

0:01:09 Matt: I've spent the last day or two reading about how Congress passes the budget or doesn't, So I'm pretty annoyed. I'm in an unusual state of annoyance.

0:01:17 Thomas: Yeah. How many pages can they even write about a thing that doesn't happen?

0:01:22 Matt: There's so many.

0:01:22 Thomas: The different ways it doesn't happen? I guess there are actually. I guess I've answered my own question. There are a bunch of different weird reasons and methods for it not happening right yeah but

0:01:31 Matt: There's just a whole lot of twine and gum, mostly. But they to disguise it in stuff that looks like laws and procedure. But it's really, it's a mess.

0:01:39 Thomas: As much as it's it's terrible it's a mess it's all those things it's also you know there are times when maybe like we really need government um with the just devastating hurricanes that have been happening including one that's probably going on as we speak um use a government that actually does stuff for people, don't you think?

0:01:56 Matt: Think I one that is able to reliably dispense disaster relief would be ideal without having to jerk around. I

0:02:02 Thomas: So why can't we do that? Maybe should all listen in and find out why in the world we can't just, you know, have not even nice things, just have like things that are kind of okay. Status quo level things.

0:02:17 Matt: Want to spoil this one, but it's not the law. The law is not the problem here. Yeah, for once. Happens, on October 3rd, the same date that Helene was bearing down on Florida, the Florida Department of Health's most important priority was prosecuting a TV station for running a pro -choice ad. So we're going to talk about that.

0:02:33 Thomas: Wow. That doesn't sound like something you could do, Matt.

0:02:36 Matt: Doesn't sound like something that Defender of Free Speech Ron DeSantis would stand for.

0:02:39 Thomas: Yeah, well, let me get this straight. So Florida, again, devastating and not to minimize any of that. I never would because this is devastating people I know. People now, like Like literally having to evacuate amidst all that devastating stuff. And saying that instead of, you to help anyone with that and accepting and with the federal government and doing anything that a leader might do to kind of save lives and help people, Ron DeSantis' administration was doing something that's obviously not okay based on the First Amendment, a thing we all know about.

0:03:12 Matt: Just Just laughably stupid by any measure that anybody would know about the First Amendment. Yeah, that was the Department of Health's priority. That's where we're at.

0:03:20 Thomas: Meatball Ron. So looking forward to that breakdown.

0:03:23 Matt: And we got a quick footnote from the Young Thug trial. Just a quick check in there. I got a fun one at the end.

0:03:28 Thomas: So long since we've checked in with that. It feels like who knows what's going on in that time.

0:03:33 Matt: Pretty much what you'd think.

0:03:34 Thomas: Yeah. Is Ron DeSantis still running for president or something? Why is he still, I mean, I guess Trump is potentially. Yeah, that's true. And he probably figures 2028 or something. That sucks. All in a great mood because it's a hockey season again. The NHL has started. So not even you telling me how bad our government is paying our money. It's going to put a damper on that. So why don't we take a little break and then get to it?

0:03:40 Matt: Man, yeah.

0:04:03 Thomas: I'm seeing so much bullshit about this aid money for different things. And it's mostly what I see is just time after time, Republican members of Congress saying that Democrats aren't helping them, and then someone posting proof that they actually voted against whatever the funding thing is they're complaining about. It's nauseum, just forever. That's my exposure to this.

0:04:22 Matt: Headlines about this going back decades, especially Republicans from states where hurricanes tend to hit the most. Now, I want to say up front, as we're recording this, Hurricane Milton is bearing down on Florida. And by the time you hear this, it will have hit, unfortunately. And I want be careful how we talk about this. I don't want to make light of what's going on.

0:04:38 Thomas: No, not at all. That's crazy.

0:04:41 Matt: We're not trying to politicize the hurricane. It's actually the opposite. I want to make the point here about how badly we are politicizing disasters and how we need to pull a lot of that because it's very bad for everybody. Was that Florida has come out of this okay. It's looking pretty bad right now.

0:04:54 Thomas: Unreal. I mean, it's climate change for sure. I see I see there's just the size of this hurricane is just monstrous. Can't even believe it. People have lost their lives in these storms lately, and it's really tragic and sad. Only thing that I worry about is I would define politicize because I think that it is well worth noting that there is a political party who does want to help people more with these things. And so I we sometimes do that unfair game of like they do a bunch of things to undermine the ability for the government to help people in these situations. And then if we call them out on that, it's like, well, don't politicize this. You know, I

0:05:30 Matt: Well, I guess more I want to say that it shouldn't be a partisan issue at all. And actually, I've got a quote here from Tom Cole, the House of Pre -Operations Chair. This really says it all to me. He pretty recently within the last few days. To me, disaster funding should not be a partisan issue ever, comma. But sometimes it is. Have to step back. And that's just the mood I've been in, I guess, in the last few weeks. It's just, let's step back and look at what's actually going on and acknowledge that there aren't a lot of other countries that do things the way that we're doing them right now, that do the budget the way they were doing it right now. But certainly, they don't do disaster relief this way. And really, we have to ask why we're running the government this way and why we're allowing our government to be run this way? So I just want to talk about disaster appropriations. Obviously, we'll get into some of the myths around this, but I want to provide people with a solid set of information here about what's really going on, because the misinformation right now is out of control. It's honestly, that we have Republican leaders and Trump and everyone else coming out and talking about things that just aren't true at all. And in a time when people's lives are on the line, when there's massive property damage heading our way, this is a time where we should be actually talking about what to do about the problem. And if we can't fix a problem like this, then we really don't have a functioning government.

0:06:36 Thomas: What is what is the problem? I mean, where do you want to start? Because, far I as I know, thought FEMA and I thought they were helping people. And I thought it was a bunch of Republicans complaining about something that doesn't exist. But can these kind of failings of the system that you're talking about?

0:06:48 Matt: First of all, just the way that we appropriate money at all. Now, Congress has not successfully managed to appropriate for the entire federal government since 1997. Let's just start there.

0:06:57 Thomas: Yeah. We just do the continuing resolution nonsense with the, yeah, that

0:07:01 Matt: Just limping along for months at a time, threatening shutdowns over and over again. No other government on earth does things this way. None. None. There's just no other way to say that. The only other country that has even a debt ceiling is Denmark, and they set it so impossibly high, they never hit it. And Denmark, by the way, manages to pass a budget every year. I was just reading with great envy about Denmark's parliament yesterday and how successfully they do everything, because it's just a nice, simple, boring budgeting process, as it should be. But the continuing resolutions, as you mentioned, only continue the current funding. And right now, of course, after great effort, after spending most of September, wasting a lot of time on something I'm about to talk about, they were finally at the last minute able to avert yet another government shutdown. And we've had four just in the recent memory. Was just a continuing resolution, and it did not include everything that FEMA and White House were asking for. Just want to break down how that works. But first, let's talk about how that continuing resolution came to be. Because Mike Johnson and the congressional Republicans, hard - right congressional Republicans were trying to die this continuing resolution. To the Safeguard American Voter Eligibility Act, the SAVE Act. And is a ridiculous piece of legislation that

0:08:08 Matt: Would require...

0:08:07 Thomas: Sounds so great, Matt. We're going to safeguard our voter eligibility. Wow. What a positive thing. Yeah.

0:08:12 Matt: Who Who could I could argue, yeah. But it would be incredibly burdensome because it would require proof of citizenship to vote in any federal election. And setting up the system for that would be hard enough. Proving someone's citizenship is a lot more difficult than you might think in many cases. Not something that we're equipped to do right now. We don't have anywhere near the infrastructure farm.

0:08:28 Thomas: But at the same time, non -citizens can't and don't vote. So there be some way we're easily doing this already.

0:08:33 Matt: And a felony in most places for them to vote. And they also will have serious problems trying to naturalize if it turns out they voted at some some point. Very, very few people ever do. There's just maybe a couple of dozen cases in the last 20 or 30 years that even the Heritage Foundation in its last review of this could find, I think, 24 known cases. So you've got, on the one hand, a serious problem funding the government, and on the other hand, it completely non -serious non -problem. Mike Johnson was making the point that these are both very serious problems, and we have to fix them both at the same time right now. And Donald Trump was actually encouraging Republicans to shut down the government over this just before these hurricanes are about to hit, to As happened, I think, twice on his watch already, including the longest government shutdown in history was on his launch for no good reason. And it was right on the holidays, you might remember, at a time when federal employees were not getting paid. So this gamesmanship, the brinksmanship, the way that we do federal budgeting just to begin with is nonsense, and it needs to stop. And it's one thing, honestly, just a stop clock kind of way, it's something that Matt Gates is actually completely right about, that we

0:09:14 Thomas: That's a good idea.

0:09:37 Matt: Have to stop.

0:09:37 Thomas: Nah, don't care. Stop.

0:09:39 Matt: I don't have to give him credit, but I'm just saying it's one thing I've heard him say that I've ever agreed with, that we have stop with this because it's the basic job of Congress, especially the House, to fund the government. That's something they're supposed to do. In fact, I have this language here from the House Council website. I was really enjoying reading the House Budget Council's website. It's actually got a lot of very cynical stuff on it. But they say that the law governing Funding the budget process is not of a matter accounting, but the essence of a Republican form of government. It's a pretty highfalutin way to say that we really need to have a budget. When we talk about the budget, it doesn't work exactly the way that you might think. It's not that there's one bill that's called the budget. The president sends his recommendations for how he wants to spend money, and then we pass a whole bunch of appropriations to try to spend that money in different ways. And for the most part, Congress has been unable to agree on most of those appropriations, and we just keep going from resolution continuing to supplemental resolution to continuing resolution. And right now, kicking it down the road another three months, and the next one expires on December 20th. So we can have another argument about a shutdown right before Christmas. And this is just how we do it. And just to make it extra fun, appropriations that are designated as emergency requirements under the Balanced Budget and Emergency Deficit Control Act don't count. They even go to the budget. They're just like ghost money, basically. So there's a lot of games around playing with that. Happened was that the the way through September. You've got the hard right Republicans forcing this point and saying, we're not going to vote for a continuing resolution unless it's attached to the SAVE Act. And of course, everybody else pushing back and saying not only are we not going to vote with the SABE Act, but it's never going to pass the Senate. Biden's never going to sign it. And they're pretending like somehow they're going to pass it and implement it before November, which is absurd because voting's already started. And it would also take a lot of effort and a lot of funding and

0:11:14 Matt: A whole lot of infrastructure to set up.

0:11:14 Thomas: Do it'd be pretty stupid to try to stop. I mean, voting is long underway in several states. And also, once again, made up problem doesn't exist can

0:11:19 Matt: What they did instead was they pulled out a lot of other things from what was proposed, including supplements for additional storm funding they're about to talk about. And they passed a clean continuing resolution that was essentially just continuing the government as it is, which is not acceptable given that there's a lot of other places where they needed more funding this fiscal year. Year. So let's talk about how FEMA itself is funded. And FEMA goes back to 1978 when sort of the ad hoc disaster release the government had been doing was centralized into one agency. That agency, of course, was brought into the Department of Homeland Security and the largest federal reorganization in history, probably the largest reorganization of any government in history in 2003. And disaster funding is controlled by the Stafford Act, and that's the updated version of the Disaster Relief Act of 1974. It's at 42 U.S.C. 68, if you want to look it up. And the way that it does funding is it has a cost -sharing formula with the states, and the rest of the money, once they work out the formula of how much the states are going to pay and how much the feds are going to pay, is covered by appropriations to the Disaster Relief Fund, DRF. And that's kind of at the center of what we're talking about here. And the DRF is kind of an unusual fund in that it doesn't expire in the fiscal year the way that other appropriations do. And that makes sense. You want to make sure that disaster is available all the way through disaster relief. It's immune from government shutdown that way. So the money is available until it's spent. And the problem is, of course, that as with everything else, this has just become another partisan football to kick around. And so FEMA is never being fully funded in what it actually needs going forward, and it's constantly having to repay its bills. And what it had to do in August was the disaster release fund ran out, as expected, as it has every year for many years now. Know. And FEMA at that point has to switch over to immediate needs funding mode, INF mode. And when they flip that switch, it means that they can only focus on life -saving and life -staining efforts, and they have to put everything else on pause, which is pretty bad considering all the other disaster relief they do all and the other places their money needs to go. So when the White House was asking for not just $20 billion in FEMA funding for the DRF to replenish the DRF, they're asking for another $10 billion because of the coming storms. Because at this point, we've already had up to Hurricane Helene, they had 19 billion-dollar events this year.

0:13:31 Matt: Last year, we had 28, and we're on track to very likely have more than that this year, and have to meet the needs here. There's just no way around it. You have a disaster agency that is not properly funded, and We've Got Disasters happening. So by the time that $20 billion was appropriated on September 25th in the continuing resolution, they already had to deduct $6 billion of back expenses. And they didn't have the extra amount of storm money that the White House had requested. And luminaries like Matt Gaetz and Anna Paulina Luna, both, of course, of Florida, voted against entire continuing resolution, in voting to shut down the government because of the SAVE Act thing. I think that's notable. 100 Republicans voted against the CR. And it was also, of course. The hard right Republicans like Gaetz, and Luna, that were responsible for stripping out this additional supplemental funding for specifically for Helena and the other storms that that were coming, that they knew were coming. And what that means, though, is not necessarily that FEMA isn't funded now. So as Mayorkas has confirmed, they have the ability to pay for what's happening right now. The DRF is funded, but it's going to run out pretty quickly. And by the time of the next couple of billion -dollar events before the end of this year, they're to tap into next years funding, and this all has to keep going again, and it's just insane. It's just no no way to run a railroad, as they say.

0:13:31 Thomas: Say it sounds like though from what you're saying that like it's have enough funding I guess seems is to me there'd be two questions like how much are they helping people what's their budget how much money is going to that project and then of their budget you're talking about their ability to even have that money like have the actual money funded which it sounds like they've been able to do but it is going to run out potentially or is going to do I have that right and so like are those two different components and you they doing the first one well well

0:15:10 Matt: Yeah, well, I mean, well in the sense that they are not passing appropriations that actually meet the needs in any given year. If you look at the chart, I'm looking at this one in yellow, they have the actual appropriations, and in blue, they've got the supplementals that actually are required to cover the costs. And supplementals are always skyrocketing above the appropriations. They just are not being realistic about what they're putting out. But the problem is going to be when it switches over again from the disaster relief fund over to the immediate needs fund. And those are very different approaches and different things. So the states aren't going to get reimbursed for a lot of disaster recovery that's going to be coming in the next few months as soon as this DRF runs out. That can happen pretty quickly. The other issue is with the Small Business Administration. Right now, the SBA has $100 million in its fund for disaster relief loans, and that is nothing for what they need. And they've been asking for more for quite a while. And this doesn't just cover small businesses, which can get loans up to $2 million, but also for homeowners. They can get loans of up to 500 ,000 to repair or replace their homes. Can get money from this fund. And right now it has $100 million in it as we have this Category 5 generational hurricane bearing down on Florida.

0:16:13 Thomas: It's okay it's like once a century so we shouldn't have another one for another century then probably because

0:16:18 Matt: Or at least another year.

0:16:19 Thomas: We've only had like four of those in the last four hurricanes no it

0:16:23 Matt: Exactly, exactly. You know, again, I hope that it's not as bad as predicted, but it's looking pretty bad. I'm trying to make the point here that I think that this stuff should be funded automatically somehow. It should not be at the whims of these partisan agents. Finger pointing, this back and forth, it got really bad in the last couple of weeks because people, including Anna Paulina Luna, who is a hard right MAGA nut, as I'm sure you know, saying that this money had already has been spent because it was going to undocumented people. And I wanted to address that as well, because it's this sort of, I don't want to call it a hurricane, but I guess this conglomeration of immigration issues and climate change issues and the economy and all coming together in this mess. Just to be very clear about this, obviously, I think we all know how appropriations work. Congress designates the money to go to certain places, and that's where it goes. And the agency can't put it somewhere else, even if it thinks it should go somewhere else. So the Shelter and Services Program, the SSP, and that is a partnership with CBP. So when they're talking about this money going to migrants, what they're saying is what they are talking about is people who have been released recently from CBP custody because they don't have enough holding space at the border, when they transition them up here to housing, and then they're transitioned out into the community. So that money is a fraction of the disaster relief fund. It's not as if they're somehow spending money that's supposed to go to the DRF. It has nothing to do with the DRF. And these people are out there talking as if this money is coming directly from funds that were supposed to go to people that have survived a hurricane.

0:16:28 Thomas: Looks bad no way

0:17:52 Matt: And that's just not, it's

0:17:53 Thomas: The the claim that we're giving billions of dollars that should go to relief for hurricanes to undocumented immigrants is false I never wow wow that's crazy hey do I just I really want to ask and and uh sorry to be a nag but like when you say partisan game blah blah like we're just talking about republicans right or or Or not? Like, is there something that Democrats are doing that causes this trouble too? Because would really prefer to call a spade a spate if it's, yeah.

0:18:04 Matt: Just not true. Yeah. Course. Of course.

0:18:23 Thomas: So like, but I also, you know, I don't know. Are Democrats playing games with it that is messing with us too or what?

0:18:29 Matt: With the budgeting. Not that I could find. This is a pretty straight ahead request that the White House was making to fund FEMA to the appropriate level because we definitely have more storms coming. And the continuing resolution, of course, was to keep the government going. So I don't really think you can call that a partisan effort. I think they're just trying to maintain order the best they can. And it's these agents of chaos that are voting against this continuing resolution that effectively, if they'd had their way, would have shut down the government right ahead of a hurricane. Happy to say when Democrats are making mistakes or when they're politicizing things, but when it comes to these I don't see it. I don' t see how it's anything but a Republican problem.

0:19:03 Thomas: Well, I just want to make sure we use appropriate language then. It's not a part, because like, it's one frustrating thing I came across during Where There's Woke. Like this, this thing that happens in the New York Times is guilty of a lot of mainstream media. If there's an issue or a view or something where a hundred percent of sensible people basically think it's true like say global warming whatever it might be climate change or some other thing uh and then like republicans all one day decide to just not believe in facts or you know just say something stupid like flatter like let's say all the republicans decided flat earth one day which is kind of what they do on stuff then it gets cast is like, boy, well, Republicans believe that the earth is flat and Democrats don't. It's another partisan issue.

0:19:06 Matt: Of course. It's a partisan

0:19:47 Thomas: It is just another, yeah, it is just, you know, partisan politics again. You know, it's just like, no, it isn't partisan.

0:19:47 Matt: Issue. Yeah.

0:19:55 Thomas: It yeah. Exactly. And I just want to make sure we are clear on that. Because as you say, like, I do want to know if it is really a two sides issue. Sometimes, you now, like might be.

0:19:55 Matt: It' s a Republican issue.

0:20:04 Thomas: There is definitely corrupt Democrats at times And I want to know. But if it's not, I want to make sure that, we're like, describing it accurately. And it sounds like this is Republicans playing politics with people's lives. And this is Republicans preventing this from happening. And I don't really see it as a quote -unquote partisan thing.

0:20:04 Matt: Sometimes it is. I agree. Of course. But it' s partisan in the sense that the House of Representatives is controlled by the Republicans and the appropriations are controlled by Republicans and they are making it a partisan issue. And Mike Johnson has just again refused to call the House back into emergency session to revisit the funding issue. He said specifically he doesn't want to see this again until after the election, when given the scope of this storm, the DRF could quickly be running out again. Yeah, you're right. It's not partisan. It is just a right -wing Republican issue. That is what we are looking at, and there is no other way to say it. Will say that both sides have played a lot of games with the budget over the years. It was something I would love to go after doing the the reading I've been doing over the last couple of days, I'd love to get into some more depth about how we play games with the budget because it is really, I don't know. I mean, it's a legal issue, obviously, but it's also a political issue. And the way even that we designate emergencies, the way that we score keep to try to figure out if something's adding to the budget or not, just the basic ways that the sausage gets made here are so convoluted and so chaotic and so completely out of control that it's amazing that anything gets passed, really.

0:21:22 Thomas: Well, it doesn't, so.

0:21:23 Matt: Yeah. Just from noting the Budget House Council's report here, I just thought this was some interesting language. Numerous attempts to budget for emergencies have been made, mostly without success. Though certain funds in the federal government, such as within the Federal Emergency Management Agency's budget, do exist, attempts to set up an annual emergency reserve fund have not been successful. Negotiations between the Obama administration and Congress, largely through John Boehner, resulted in a parallel fund for disasters, whereby a set amount would be set aside for that purpose. Purpose. The notion that a disaster might not be considered an emergency did not seem to be part of the debate.

0:21:56 Matt: This is the kind of games they play. It's just calling whatever they can, trying to designate things like the Oceanic Administration's funding. They call that an emergency so that they can slip it through and not have to say that it's adding to the budget. I mean, it's totally irresponsible. And every state except Vermont has a balanced budget requirement in their constitution that requires them to balance the budget, including the one I'm in, one year, end to end, at the end of the year. And the federal government doesn't have that and probably never will.

0:22:22 Thomas: It shouldn't. I don'T care about balancing a budget. Like, yeah.

0:22:25 Matt: I agree. But totally agree because we do have all the money. And at some point we have to think about, right, right.

0:22:29 Thomas: You want to be utilizing your ability to take on debt that's an asset as a country, you know?

0:22:34 Matt: And 10 % right now of our expenditure is going to debt. And it shouldn't get that much higher, but that's not too unreasonable. Also when we're talking about the budget, I didn't mention mentioned this before, but only about 27 % of the budget is actually discretionary. The rest of it is mandatory and has to be spent on Medicaid and Social Security and other programs like that. That discretionary spending includes the military and all the social programs and disaster relief and things like that, so there's a lot to play with. And Republicans have, of course, been talking for years about how they want to cut discretionary funding, but every time they're pushed to do that, they don't really have any good ideas, and they certainly haven't this time around. That's where we're at on all of that.

0:23:08 Thomas: I guess going back to my question, so from what you're describing, while that all is a pile of nonsense and it sucks, it sounds like things right now should be working more or less how the best they can. Right. Because the funding's happening, even though they're kind of borrowing from the next year, they might have to borrow from the last year. Here. So what, what gives, you know, like, it? What Is it it, just is Republican misinformation now that are the complaints about FEMA and what is the relief and all that?

0:23:35 Matt: And also just not thinking ahead, requiring us to stress out about how we're going to pay for the next storm instead of just knowing there are more storms coming and having the money ready to go and having to go into this emergency mode, this INF mode.

0:23:47 Thomas: Literally saving for a rainy day, Matt.

0:23:49 Matt: Yeah that's literally what we need to do. Yeah and the one One other piece of misinformation too, I'm sure that people are aware of this, but there's been a lot going back and forth about the $750. And is the Serious Needs Assistance Program. That's part of the DRF. That's individual assistance to people who have just survived a hurricane or another disaster. And it's for emergency supplies. And that has been capped at $750 for quite a while. That somehow this is being blamed on Kamala Harris like everything else right now.

0:24:14 Thomas: The Harris vice presidential administration. Yeah, what, gets that? Just anyone? What is that?

0:24:19 Matt: It's actually for citizens and eligible non -citizens, But it's for anybody who can prove they live in the area of a disaster so they can buy emergency supplies immediately in the wake of disaster. But there's been some misinformation about how that's actually a loan, which is just not true, and about how it's somehow it's only $750 because all this money was going to undocumented people or migrants, also not true. That's just how it has been capped. So again, you can look at the law for this stuff if you want to, or you can just keep looking at TikTok, I guess.

0:24:45 Thomas: Oh, boy. Well, that's frustrating. And, you know, maybe we should give government back into the hands of people who actually are at least trying to make it work instead of the opposite of that. Matt, you hear that? Non -citizens vote in the election coming up because we say it's all according to our plan. That's why we weather controlled this hurricane to where it is, as so many Republicans seem to be claiming that Democrats control the weather, which is, yeah, yeah.

0:24:56 Matt: Think so. And Oh, we do. To be clear, up here in Boston, we just vote on where we want the hurricanes to hit. That's one of our annual votes. Sorry, Florida.

0:25:20 Thomas: Yeah what I love is like, dude, don't you want to be a part of the side that can control the whether then like that sounds like pretty bad ass. Like if it's like if you can't beat him, join him, you know, like, oh, well, I'm just I'm just with this party that throws unsuccessful coups and disgraces our government. Why don't I go to the other side that can literally steer hurricanes how are they doing that it's amazing

0:25:28 Matt: That's right. Wrong party. That is pretty cool. The power of the gods. Yeah.

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0:28:39 Thomas: Matt what's this I hear about Ron DeSanctimonious uh meatball ron what to prosecute companies that run wait pro -choice ads I I mean I thought in today's citizens united whatever capitalist hellscape that as long as you've got a bunch of money you can just kind of do whatever you want with all that but I don't know how the law works there.

0:29:00 Matt: Not if you're talking about things Ron DeSantis doesn't like. Let's check in on the state now of reproductive rights on the ballot. It's a good time to talk about that. Very quickly, before we get to Florida, four states have already created state constitutional rights to abortion. That's Vermont, Michigan, California, and Idaho last year. And Kentucky, and Montana all tried to put ballot measures up to specify that there's no no right to abortion in their state constitution, and those were all defeated.

0:29:23 Matt: It turns out this is a very popular issue on the side of people uteruses. So reproductive rights this year are on the ballot in 11 states. This is obviously the fallout from Dobbs that we now have a record number of states that are voting on reproductive rights, including some important ones that are a matter for the election. That's going to be good for turnout, I hope. We've to name those, we've got Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, New York, Nevada, and South Dakota. They're all in one way or another going to be putting kind of right to abortion into their constitution. And the one in Nebraska would limit it to the first trimester, but it's still going to been the constitution. But let's talk about Florida because back in 08 -1022, we talked about the Florida Supreme Court decision. You might remember this very tortured, like weirdly originalist analysis of their abortion statute. They determined that even though Florida voters in 1980 80, voted specifically to add privacy to the Constitution. And even though the Supreme Court in 1989 specifically said that right to privacy included the right to an abortion, you may remember that Florida Supreme Court decided otherwise. They decided based on some weird originalist analysis that actually didn't count that way.

0:30:29 Thomas: Wouldn't you know it, man.

0:30:31 Matt: It's amazing.

0:30:31 Thomas: Well, you know what?

0:30:32 Matt: Wait, wait.

0:30:32 Thomas: Someday we'll catch a break on that whole originalist analysis. It's a matter, you know, like probability wise, eventually it's got to go our way, right?

0:30:39 Matt: Yeah, no, it turns... History doesn't seem to be good to us. I don't know.

0:30:44 Thomas: Shucks. Well we'll keep trying on this originalist diagnosis and see if it ever comes up left.

0:30:48 Matt: Yeah. And as we discussed, of course, this was originalist analysis from back when Star Wars was in the theaters, but my favorite favorite kind of herbalist analysis.

0:30:55 Thomas: Yeah, father Peter Cusing's desires about our Florida Constitution. Well,

0:31:01 Matt: Lots of information available about what people were thinking at the time. So of course, in 2022, Ron DeSantis signed a 15 -week abortion ban. That's what the court was reviewing. They found that it was constitutional under the Florida constitution based on what we were just talking about. So voters have a chance in November, as I hope they do, to go out and vote on Amendment 4 in Florida, which would add the following language to the Florida Declaration of Rights. No law shall prohibit, penalize, delay or restrict abortion before viability or when necessary to protect the patient's health as determined by the patient'S health care provider. Imagine that. A doctor actually telling your doctor, actually helping to decide about your health care, which is not how it works, of course, right now in Florida. Campaign for Amendment 4 had an ad they were running that was called Caroline that featured a woman with a brain tumor who had been told by her doctor that she could only get cancer treatment if she had an abortion. And of course, she didn't want to have to do that, but it was the only way to save her life.

0:31:51 Thomas: Wow. That is horrible.

0:31:52 Matt: Is. And it's a perfect example of the kind of thing we're talking about when we're taking about the fallout from Dobbs. And was able to do this before this law went into effect, but she's saying under today's law, I'd have to leave the state. And this is a very powerful ad. It's very effective, which is exactly why the Florida Department of Health...

0:32:07 Thomas: I mean, I just want to take a second to recognize like, this is the kind of, that is a devastating, heartbreaking situation. You know, that's not, I know what these myths are about all people just using abortion for birth control, which like, I honestly, I don't really care if they did, but like, that'S not what it is. These are devastating, horrible horrible decisions. And the thing we need is some asshole with no expertise who has no connection to you deciding to limit your options completely in that case. That's what we really, really all want and need.

0:32:37 Matt: Well, especially in this case, I mean, it's extra heartbreaking because the reason that she couldn't get an abortion under today's law is that her cancer diagnosis is terminal. And so the abortion would not save her life. It would only extend her life, isn't

0:32:48 Thomas: My God. I didn't even think about that. Wow.

0:32:50 Matt: That horrible? Yeah. It's just unbelievable. And I Ron DeSantis and Florida Republicans understand how effective that story is, and that's why they want to try to stop it. On October 5th, investigative...

0:33:01 Thomas: Know what they could do is just not be evil. If it's like, ah, this ad is really effective against us because it depicts a really heartbreaking situation we've created. Should we we uncreate that situation? Nah, don't do that. Find a way around it.

0:33:13 Matt: Let's make sure doctors are facing five years in prison if they decide, you know, if they give something, a procedure that we think is done too early, just five years for them, enforcing people out of state, of course. So on October 6th, investigative journalist Jason Garcia will link to this, but he posted the letter that was received by WFLA and another station in Florida that had been running local ads in favor of Amendment 4, including this one about Carolyn. And this letter is really something. And the reporting on it from CNN was so deficient that I thought I should fill it in a little bit here, because it's so much worse than it was even reported. Let's start with the irony of the section that I just sent you, There's a paragraph I'd like you to read out for us.

0:33:54 Thomas: All right. Making me read again. I get it. Yeah. Okay.

0:33:58 Matt: Remember, this is from the Florida Department of Health telling

0:33:59 Thomas: I'm going to make you do math next show.

0:34:00 Matt: This Station why it can't air this ad.

0:34:09 Thomas: Advertisement is not only false, it is dangerous. Women faced with pregnancy complications, posing a serious risk of death or substantial and irreversible physical impairment may and should seek medical treatment in Florida. However, if they are led to believe that such treatment is unavailable under Florida law, such women could foreseeable travel out of state, seek medical care from unlicensed providers in Florida or not seek emergency medical care at all. Such actions would threaten or impair the health and lives of these women.

0:34:42 Matt: So close to getting it, aren't you? So close. It gets right there. It's incredible, isn't it? That they're saying this is misleading information. Women might think they have to leave the state to get abortions when it's literally this woman telling her story about how she would have had to leave this state because Because no doctor would give her an abortion under the current law.

0:34:58 Thomas: I mean that's just the old liar liar objection on what grounds because it's devastating to my case like uh you don't really that's yeah you just said all the things you didn't really give a good reason why that shouldn't be allowed

0:35:06 Matt: That's right. Yeah. Yeah. Just to be clear what we're talking about, the Heartbeat Protection Act that was upheld the by Florida court requires two doctors to certify in writing that in their reasonable medical judgment, not your doctors, just two doctors, that abortion is necessary to save the pregnant woman's life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant women other than a psychological condition. And one doctor certifies in writing that in reasonable medical judgment, there is a medical necessity for legitimate emergency medical procedures. And again, Carolyn's case would not have been covered here. The point is that this is worse than it sounds, because it's not just the Florida government contacting a TV station to say you can't run this. What of CNN, they said that the Florida Department of Health, however, cited local statutes in the cease and desist letters sent last week to these stations. Cited local statuts. So I had this thought of, which statutes? What are we talking about? Because what I'd read was that they were threatening criminal charges to these stations for running the ads. So I looked up the criminal charge, and it is chapter 386 of the Florida statutes. And what they were threatening to charge them with was creating a sanitary nuisance in Florida. A sanitary?

0:36:21 Thomas: Sanitary nuisance.

0:36:22 Matt: Which is pretty much what it sounds like. So it's the commission of any act by an individual, municipality, et cetera, et cetera, of just allowing anything by which the health and life of an individual or the health of individuals may be threatened or impaired. Now, examples in 386.041 include untreated or improperly treated human waste, garbage, dead animals, dangerous waste materials, improperly built septic tanks, keeping of diseased animals, right? This is what they're saying. And once you've been notice of this, that you are in fact instituting a sanitary nuisance, under 386-032b, they can institute criminal proceedings if

0:36:22 Thomas: Well, how is that defined? I

0:36:58 Matt: You fail.

0:36:58 Thomas: Didn't hear anything about like TV ads in there.

0:37:02 Matt: Saying that it's so dangerous to tell women that they're going to have to leave the state for healthcare, that it constitutes a sanitary nuisance. And I went looking at some of the case law around sanitary nuisance in Florida. And the first thing I found was

0:37:12 Thomas: Tell us some famous sanitary nuisances. I'd love to hear them. Oh

0:37:16 Matt: It's this one. The first one that I found was a trainer park that was literally just letting human waste flow directly into the ground.

0:37:22 Thomas: God, that's disgusting.

0:37:23 Matt: The conceded fact that the method of human waste disposal provided on the premises consists of cesspools, essentially holes in the ground with porous walls, so I mean that is a sanitary nuisance you're actually polluting sewage

0:37:34 Thomas: I agree. I like that's not a strong enough term for that, actually. It's just horrendously disgusting.

0:37:39 Matt: That's some kind of crime uh the court found in that case that dumping raw human waste was in fact a prima facie nuisance just on its face obviously a nuisance that is pretty annoying.

0:37:47 Thomas: I feels like we could sue Ron DeSantis for being a sanitary nuisance. He sounds exactly like a pile of just unprocessed sewage.

0:37:56 Matt: Raw meatballs. Yeah. I don't know why that never stuck. I really do like meatball, Ron.

0:38:02 Thomas: Ron, it's stuck enough. It's really good.

0:38:04 Matt: We're making fun, obviously, because this is funny that you had this guy. And by the way, this is written by John Wilson. I just want to name him, the general legal counsel for the Florida Department of Health. I looked him up. He's not been a lawyer for very long. His only previous legal experience was as a prosecutor. So I guess when you have a hammer, right? Everything looks like an unsanitary nail. That's his solution here. Because they were threatening civil injunctions as well under the same statute, but he was just a really pilot on. They were specifically saying that they could bring criminal charges. And we're laughing because it's funny and it's ridiculous. And obviously the campaign shot back a very good letter from their lawyers, obviously pointing out that this is a massive First Amendment problem and you can't have the government putting people in jail because Because basically, you're talking about 60 days for employees at the TV station for running a political ad in support of a ballot question.

0:38:52 Thomas: That can't be right.

0:38:54 Matt: It doesn't sound right. I'm not an absolute First Amendment expert, but I know enough about the First Amendment, I think we all do, that you can't criminalize political speech. That is really bad.

0:39:04 Thomas: I feel like, yeah, that's like one of the main things about the First Amendment from my memory.

0:39:09 Matt: We have a First Amendment. So you can't do that. And the idea that someone, and I don't know if DeSantis himself had to personally sign off on this, but it's a top administrator in the Florida government signing off on us. Obviously, it's the counsel for the entire Department of Health authorizing this threat to prosecute because they're telling the truth about how dangerous Florida's abortion statute is. Is. And it's just very concerning. And Florida is a police state. I think we already know that, and it's only becoming worse under DeSantis. But this, to me, really jumped out as where we're at these days.

0:39:44 Thomas: Yeah, and we're a mere stone's throw away from when people were spreading actual medical misinformation about COVID. COVID and that's fine that's totally cool that's not a sanitary nuisance

0:39:52 Matt: We have to protect that. We need to make sure that their free speech rights are upheld in all cases. Yeah, no, I just wanted to talk about this because this is the kind of thing that we have to name immediately as soon as we see it. We cannot have the government making these kinds of threats. I don't think any court, at least, well, I shouldn't say any court. I don't know. A Florida court might uphold that. Maybe you get that in front of the right judge on the right day, and they might decide that it is actually threatening people's lives to give them accurate information, even if it wasn't accurate, honestly.

0:40:22 Matt: Even if it's completely wrong, which it's not at all. This is a totally fair comment on the state of the law in Florida. But even if they're putting out misinformation, this is not a crime.

0:40:21 Thomas: That's just not yeah yeah

0:40:33 Matt: It's not a sanitary nuisance.

0:40:29 Thomas: As much as I think the sewage that comes out of Trump's mouth is unsanitary it's not technically a sanitary nuisance, Matt

0:40:40 Matt: That is very true. Not there yet. Yeah, that's administration. That's the state of things now. Of course, I do hope that everybody who lives in these 11 states has a chance to go out and vote for reproductive freedom. Time.

0:40:53 Thomas: Freedom of speech is a republican issue so I was told so I don't know what you're talking about here so

0:40:59 Matt: Yeah. In this one place for this one issue and this one topic.

0:41:03 Thomas: What happens here are there just no consequences to to this kind of like bullying for

0:41:08 Matt: Of Health is an appointed position. So in a reasonable, functional government, this is the kind of thing you'd lose your job over because there'd be enough of an outcry, but that's not DeSantis' government. That's not how it's going to work here.

0:41:18 Thomas: I feel like the legal system is not very good at that. You I've covered a lot of things too, where people are using the legal system to harass people. And it's like, worst case is like, it doesn't work. Worst case is not, oh no, you're in trouble now for this is horrible. What you're doing. Worst case is like, ah, stop it, you rascal.

0:41:41 Matt: Yeah, I mean, I'd like to see a bar complaint against an attorney who threatens something like that. It's but it's actually chilling political speech. Obviously, the campaign didn't take it seriously. The ads are still running. I think everybody understands that this is not really enforceable, but this is the kind of thing, as we were talking about on Monday, where you look down the road and this kind of threat becomes normal, this kind of thinking becomes normal that it's okay in some circumstances to find a way to threaten people with criminal violations for running political ads. You give that a few years and you put the right judges and the right prosecutors in in the right places. And none of this is inevitable.

0:42:15 Thomas: Makes want to listen to part two of why Trumpism is fascism, Matt. I can get my hands on that before the rest of everybody.

0:42:23 Matt: Soon. I've got 25 more pages of notes, so we could do this all year.

0:42:27 Thomas: I think we got through like one, two, so.

0:42:29 Matt: Just a couple. It's been very true. We've got more coming.

0:42:36 Thomas: That all sucks, Matt, how can we cheer, there's perhaps like a fetish of yours that you'd like to share, that can cheer us up, that's an oddly specific question.

0:42:45 Matt: I don't know why I ever decided to call this Matt's Footnote Fetish, because you're going to remind me of this forever.

0:42:50 Thomas: Know why.

0:42:50 Matt: But no, it's true. It's a great name.

0:42:50 Thomas: And you're stuck with it. And

0:42:54 Matt: This week's footnote is actually circling back to the Young Thug YSL trial in Georgia, Georgia, which is now the longest running criminal trial in Georgia history. It is in its 22nd month as of now, 22 months.

0:43:03 Thomas: They haven't even done anything, right? Like it's like still really early.

0:43:06 Matt: They still have 100 witnesses left to be called. It's not going to be finishing up anytime soon with so many witnesses. Yeah.

0:43:11 Thomas: Hundred witnesses. Holy crap. Oh,

0:43:16 Matt: And listeners, of course, should go back to OA 1047, where we talked to Ashley Merchant. That was one of my favorite episodes ever that that we've ever done, where covered the hearing in which Young Thug's attorney, Brian Steele, was sanctioned for pointing out about the ex parte hearing that was held with a witness. And of course, that ex meeting parte resulted in Judge Errol Glanville being removed from the case eventually after the appeals court got their hands on it. And Judge Paige Reese Whitaker was appointed to replace him. And I hadn't really been following because this trial has just been dragging on. There have been so many things going. But I caught this clip the other day, and I wanted to play it as today's footnote because it's a nice bit of good news. For those who haven't really heard a judge lose it on an attorney in court, as I certainly have, as all attorneys have at some point, this is pretty gratifying. So let's listen in to the current state of the Young Thug trial. I will say this is after Prosecutor Adrian Love has tried very badly, apparently, to introduce some social media content, which is hearsay. And so this is the response that she gets.

0:43:22 Thomas: So great. Yeah, it was really cool. People ought to learn what hearsay is before they become lawyers. I'm starting to realize. However

0:44:15 Matt: You know, yep,

0:44:18 Clip: It is, if it's disingenuous, if it is that, I mean, I don't want to malign the prosecutor standing in front of me right now, so I'm not going to say the possible things that it could be, but it is baffling to me that somebody with the number of years of experience that you have, time after time after time, continues to seemingly purposefully hype the ball to the extent you possibly can for as long as you possibly cam, and I really don't want to believe that it is purposeful, but honestly, after a certain number of times, you start to wonder how it could be anything but that unless it is just that you are so unorganized that you're throwing this case together as you try it and I am sorry to say that but this case is being made much more difficult for everybody because of the haphazard way in which it is being presented I'm going to take a recess for a few minutes

0:45:16 Thomas: So incompetent holy shit your honor ow she literally like takes the mic out and drops it and then leave wow that is incredible that's incredible and it and that'S obviously a different judge so did that other judge have to like go on timeout for a bit.

0:45:47 Matt: Pretty much. Yeah. No, yeah. Yeah, I Yeah. The appeals court took him off the case after that next partent disaster. Judge, Patrice Whitaker has been overseeing it for a while. And she's awesome. Yeah No, this is I've seen these kinds of speeches before given to prosecutors, but never quite like this. Lot of judges do not like it if the people bringing criminal charges that are trying people of their freedom don't appear to be organized or have their case together. And just as she said, you're kind of making it up as you go along here. And given the size and the complexity and the public image of this case, it certainly is shocking that they have to get a lecture like this.

0:46:25 Thomas: I'm all for a bit of improv, but if I'm going to make up a case, I'm not going to do it when it's a hundred witness, like impossible biggest case in Georgia history. That one I'd probably write some notes for like a couple things jot down.

0:46:37 Matt: Yeah, for a massive RICO indictment. Yeah. And, you know, Fulton County has been stretched out pretty thin. And obviously, they've got the Trump prosecution, but they do have the resources. And it does

0:46:47 Thomas: That to be the same prosecutor that met, the meeting, right? That was okay.

0:46:51 Matt: Yes, it is. Yeah, she's the lead on this one. Yeah.

0:46:54 Thomas: Great. Great. Matt, but will there be a bunch of consequences for people trying? No, there's no consequence.

0:47:00 Matt: I mean, getting that in a very public way is certainly a consequence. That is something that stings for a while. But the defense did move immediately for mistrial. She did not grant that mistrial, but it was worth the effort, I think, after hearing a speech like that.

0:47:04 Thomas: Fair. Yeah. Fair point. How do you recover from that?

0:47:15 Matt: One foot in front of the other, right? Back out, back to the stand.

0:47:19 Thomas: Honor, permission to jump out the window?

0:47:22 Matt: Pretty much. I mean, I'd heard this already and I was still cringing.

0:47:25 Thomas: Yeah, that is, wow. That's a dressing down of a quality I have not seen. You know, I also respect about it is that it wasn't like hyperbolic. It wasn't, you know, like it wasn't, it wasn't even like performative. Like it was just Just like this the truth of what's going on.

0:47:39 Matt: This is a mess.

0:47:42 Thomas: Pathetic. Yeah, it's just it's awful. And not even in a like she didn't even seem like that that mad. She's almost just disappointed.

0:47:51 Matt: I remember talking to Ashley Merchant about this, about everybody's just kind of trapped in this trial because, you know, it's just jurors and court officers and lawyers and defense and witnesses and everybody's kind of stuck in this bottle indefinitely, probably at least until the Super Bowl and beyond, it looks like at this point.

0:48:05 Thomas: Is that? Why did you say Super Bowl?

0:48:06 Matt: That was the original projection that I I saw is that it was going to be Super Bowl 2025. And

0:48:10 Thomas: That that was incredibly random, Matt. That was the most I was like. Do you have plans for that? Why would that be your unit of time? Yeah, of all people.

0:48:16 Matt: The last person to be. It's not how I measure my year. I don't even, I think it's the end of February, right?

0:48:23 Thomas: This is going to continue on until the World Rugby Tournament. What? I don't know. Why is that? Okay.

0:48:33 Thomas: So random. No, if you were a prosecutor who just got your ass absolutely handed to you in that way, is there any sort of thing you could do to just stop? Can you just like a motion to quit while you're not even ahead?

0:48:47 Matt: There's no way out but through.

0:48:48 Thomas: You can't just null process. You can just be like, hey, we We

0:48:54 Matt: Mean, I guess if you never want to be a lawyer again, you can just tuck your tail between your legs, but they

0:48:57 Thomas: So a trial starts, you're just trapped? You you can't untrial.

0:49:01 Matt: Certainly, they can always drop the charge. They can always null process it.

0:49:03 Thomas: That's what I'm saying.

0:49:04 Matt: But yeah, but that would be a complete disaster for Fannie Willis's office, obviously. So, you and they are alleging right now like this.

0:49:05 Thomas: Do that. Unlike this. Yeah, yeah, yeah.

0:49:13 Matt: But, you Know, they're alleging a pretty massive gang conspiracy and just to drop that in the middle, no matter how bad the case has gotten. And I

0:49:18 Thomas: That's true. Then it would get, you know, your next opponent would be like, they just quit in the face of this vicious gang that we have no proof of any connection really to young thug, but kind of, I don't know. I still don't like the merit of these actual charges. And it does concern me that like, if there is a lot of merit there, I kind of you know does suck that this is going this way but I really do you really delved into that or are you still just kind of you know going based on just the trial is going and that level of professionalism or not yeah yeah

0:49:47 Matt: Can see both sides of this case, to be honest. Think the prosecution is overreaching, but they usually are. I can certainly see how there does appear to be some aspect of the Young Slime Life or Young Stoner Life, depending on who you ask, label, that is actually running as a criminal organization. So, but the whole thing is just really huge and overbearing. And I think they could have just kind of isolated this down to one or two murder cases instead of having this massive organized crime thing. I think that was, they really did themselves in the size of this thing.

0:50:15 Thomas: Um well that's our show wow thanks for breaking that down and supporting the show, and we'll see you next time.

0:50:21 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:50:39 Thomas: Man, you got a squeaky chair. You gotta, you gotta fix that.

0:50:41 Matt: Sorry. Yeah, stop moving. All right.

0:50:43 Thomas: WD -40.

0:50:44 Matt: I do have to replace it. All meatballs. Yeah.