1 00:00:18,316 --> 00:00:22,196 Speaker 1: Hello, Deep background listeners. Noah Feldman here. I've recently started 2 00:00:22,236 --> 00:00:26,116 Speaker 1: making regular appearances on Axios Today, the daily news podcast 3 00:00:26,236 --> 00:00:30,356 Speaker 1: from Axios. I always have great conversations with host Naila Budo, 4 00:00:30,996 --> 00:00:32,876 Speaker 1: and I hope I'm able to shed light on the 5 00:00:32,956 --> 00:00:36,276 Speaker 1: legal issues that are making headlines. Here's my latest interview 6 00:00:36,276 --> 00:00:39,596 Speaker 1: on Axios Today. If you like getting smarter faster, you 7 00:00:39,636 --> 00:00:42,716 Speaker 1: can subscribe or listen wherever you get your podcasts. I've 8 00:00:42,716 --> 00:00:44,916 Speaker 1: made it a daily habit, and I hope you will too. 9 00:00:45,556 --> 00:00:48,436 Speaker 1: At one pm Eastern time today, members of Congress will 10 00:00:48,436 --> 00:00:51,356 Speaker 1: meet in a joint session to officially count electoral votes 11 00:00:51,396 --> 00:00:54,636 Speaker 1: for the presidential election. Vice President Mike Pence will open 12 00:00:54,676 --> 00:00:57,996 Speaker 1: the electoral vote certificates to be read aloud, which fulfills 13 00:00:57,996 --> 00:01:01,276 Speaker 1: his constitutional role as President of the Senate. This happens 14 00:01:01,276 --> 00:01:04,236 Speaker 1: every four years after every presidential election, but it's getting 15 00:01:04,436 --> 00:01:08,396 Speaker 1: much more attention this year because of the dozens of 16 00:01:08,476 --> 00:01:12,556 Speaker 1: Senators House Republicans planning to object to the electoral results 17 00:01:12,596 --> 00:01:16,796 Speaker 1: from battleground states like Pennsylvania, Michigan, and Georgia. Noah Feldman 18 00:01:16,916 --> 00:01:19,756 Speaker 1: is a constitutional law professor at Harvard and our resident 19 00:01:19,876 --> 00:01:23,556 Speaker 1: legal ex hid for Axios Today. Noah, can we have 20 00:01:23,676 --> 00:01:26,636 Speaker 1: a free mini constitutional law class with you for a 21 00:01:26,676 --> 00:01:31,916 Speaker 1: second year anytime? Can you explain the twelfth Amendment in 22 00:01:32,036 --> 00:01:35,676 Speaker 1: what it says about what's supposed to happen today. What's 23 00:01:35,676 --> 00:01:38,796 Speaker 1: supposed to happen is that all of the states have 24 00:01:38,996 --> 00:01:42,796 Speaker 1: chosen electors. They've each only chosen one slate of electors. 25 00:01:43,356 --> 00:01:46,356 Speaker 1: They send that slate in on essentially a piece of paper. 26 00:01:47,396 --> 00:01:51,156 Speaker 1: Both houses of Congress meet in joint session. They're presided 27 00:01:51,196 --> 00:01:53,716 Speaker 1: over by the quote President of the Senate, better known 28 00:01:53,756 --> 00:01:57,396 Speaker 1: as the Vice President, Mike Pence. Mike Pence is supposed 29 00:01:57,396 --> 00:02:00,836 Speaker 1: to read out the votes they're supposed to be counted, 30 00:02:01,276 --> 00:02:04,156 Speaker 1: and if, as is the case, there's a clear majority 31 00:02:04,156 --> 00:02:07,356 Speaker 1: of them for one, Joe Biden, Joe Biden is supposed 32 00:02:07,396 --> 00:02:09,876 Speaker 1: to become the president. And that's how the process is 33 00:02:09,916 --> 00:02:14,076 Speaker 1: laid out in the Constitution and has written. That's pretty straightforward, 34 00:02:14,396 --> 00:02:18,236 Speaker 1: except in life, there's always a twist. So the twist 35 00:02:18,276 --> 00:02:20,116 Speaker 1: I think maybe we have to go back to the 36 00:02:20,156 --> 00:02:23,796 Speaker 1: Electoral Count Act. This is like eighteen eighty seven, which 37 00:02:23,836 --> 00:02:26,396 Speaker 1: is now so important. Can you just sort of explain 38 00:02:27,036 --> 00:02:31,636 Speaker 1: that process and how that has sort of further elaborated 39 00:02:31,676 --> 00:02:35,356 Speaker 1: on what we've seen in the Constitution. Yeah, the twist 40 00:02:35,516 --> 00:02:39,516 Speaker 1: is what if you can't just so simply add up 41 00:02:39,556 --> 00:02:42,596 Speaker 1: and count all of the electors who are sent in. 42 00:02:43,236 --> 00:02:46,916 Speaker 1: And in the first instance, that could happen if, for example, 43 00:02:47,076 --> 00:02:49,956 Speaker 1: a state can't get its act together and it sends 44 00:02:49,996 --> 00:02:53,156 Speaker 1: in two slates of electors, one for example, sent in 45 00:02:53,156 --> 00:02:56,396 Speaker 1: by the state legislature, another sent in by the governor 46 00:02:56,436 --> 00:02:59,516 Speaker 1: of the state. That raises a question for the person 47 00:02:59,596 --> 00:03:03,316 Speaker 1: doing the counting, which one do you count? And this 48 00:03:03,436 --> 00:03:08,196 Speaker 1: mess actually happened in eighteen seventy six when there were 49 00:03:08,236 --> 00:03:11,036 Speaker 1: contested slates of electors from a couple of different states, 50 00:03:11,556 --> 00:03:14,596 Speaker 1: and as a result, we genuinely did not know who 51 00:03:14,636 --> 00:03:18,036 Speaker 1: the president was. After that happened, Congress passed this law 52 00:03:18,076 --> 00:03:21,316 Speaker 1: in eighteen eighty seven to set up rules for what 53 00:03:21,436 --> 00:03:24,876 Speaker 1: should be done by Congress when they came to count 54 00:03:24,996 --> 00:03:29,916 Speaker 1: the votes. And those rules are actually pretty straightforward as written. 55 00:03:30,516 --> 00:03:32,916 Speaker 1: They say, among other things, that when there's no multiple 56 00:03:32,956 --> 00:03:36,396 Speaker 1: slates of electors, and that's the case this year, that 57 00:03:36,636 --> 00:03:41,156 Speaker 1: basically the congressman and the vice president actually have to 58 00:03:41,236 --> 00:03:46,236 Speaker 1: count the electors who came in unless there's some evident, 59 00:03:46,476 --> 00:03:51,236 Speaker 1: clear reason that they were not real slates of electors 60 00:03:51,236 --> 00:03:54,596 Speaker 1: that reflect the intent of the electors that were passed 61 00:03:54,676 --> 00:03:57,516 Speaker 1: or that were lawfully cast, so as written, that law 62 00:03:57,556 --> 00:04:00,316 Speaker 1: would not lead to any weirdness. Here can we part 63 00:04:00,356 --> 00:04:02,676 Speaker 1: something you said though? First, First, let's just talk about 64 00:04:02,676 --> 00:04:06,196 Speaker 1: the fact that there are not multiple slates of electors. 65 00:04:06,196 --> 00:04:09,876 Speaker 1: Every state has met that is not in contention here, correct, 66 00:04:09,956 --> 00:04:13,316 Speaker 1: And in no state did a rogue slate of electors 67 00:04:13,316 --> 00:04:16,396 Speaker 1: get proposed. All of the electors actually are the people 68 00:04:16,556 --> 00:04:19,756 Speaker 1: actually chosen by the citizens of those states, and that's 69 00:04:19,836 --> 00:04:23,116 Speaker 1: why there are no contested slates of electors in this election. 70 00:04:23,636 --> 00:04:26,116 Speaker 1: But this brings a sire second point that you made, 71 00:04:26,236 --> 00:04:29,156 Speaker 1: which is this idea of evidence, which is what we 72 00:04:29,236 --> 00:04:33,516 Speaker 1: are hearing from Republican lawmakers as to why they are 73 00:04:33,516 --> 00:04:36,636 Speaker 1: planning to object today. Yeah, and so just to describe 74 00:04:36,636 --> 00:04:40,436 Speaker 1: the mechanics, what's supposed to happen is that if there 75 00:04:40,476 --> 00:04:45,316 Speaker 1: are objections to the electors submitted that are proposed by 76 00:04:45,836 --> 00:04:50,356 Speaker 1: congressmen or by senators, then the two houses separate out. 77 00:04:50,356 --> 00:04:52,436 Speaker 1: They're all sitting in joint session, they separate out to 78 00:04:52,516 --> 00:04:55,516 Speaker 1: debate each on its own, and then they each vote. 79 00:04:55,836 --> 00:05:00,116 Speaker 1: And the only way that any electors could be rejected 80 00:05:00,636 --> 00:05:04,036 Speaker 1: by the joint session. Is if a majority of the 81 00:05:04,076 --> 00:05:07,596 Speaker 1: Senate and a majority of the House vote to reject 82 00:05:07,676 --> 00:05:12,196 Speaker 1: those electors. What, unfortunately, from my perspective, is going to 83 00:05:12,276 --> 00:05:16,316 Speaker 1: happen is that some Republicans are going to raise objections 84 00:05:16,516 --> 00:05:20,756 Speaker 1: and they're going to require a vote to happen. Elected 85 00:05:20,876 --> 00:05:24,956 Speaker 1: congressman and elected senators are going to say, without any 86 00:05:24,996 --> 00:05:28,396 Speaker 1: meaningful grounds for saying it, that the people didn't really 87 00:05:28,476 --> 00:05:32,596 Speaker 1: elect Joe Biden in some specific states. In other words, 88 00:05:32,756 --> 00:05:37,196 Speaker 1: some actual, real House of Representatives, members, actual senators are 89 00:05:37,236 --> 00:05:40,836 Speaker 1: calling for something very much like a constitutional coup. Data 90 00:05:41,316 --> 00:05:43,916 Speaker 1: and the fact that that's going to happen, even though 91 00:05:43,956 --> 00:05:46,516 Speaker 1: we know it's going to fail, shows you that this 92 00:05:46,596 --> 00:05:50,196 Speaker 1: is not just theater, that is not trivial. So can 93 00:05:50,236 --> 00:05:52,756 Speaker 1: I ask you about the idea of our trust in 94 00:05:52,796 --> 00:05:56,036 Speaker 1: the democratic process. What kind of effect do you think 95 00:05:56,196 --> 00:05:58,996 Speaker 1: this week will have on that? It's going to have 96 00:05:59,036 --> 00:06:02,516 Speaker 1: a bad effect. You know, it's bad enough that a 97 00:06:02,636 --> 00:06:06,916 Speaker 1: reasonable percentage of Americans now say or tell posters that 98 00:06:06,956 --> 00:06:10,036 Speaker 1: they don't believe that Joe Biden won the election. I 99 00:06:10,036 --> 00:06:12,316 Speaker 1: mean that's worrisome because what it shows you is that 100 00:06:12,556 --> 00:06:15,196 Speaker 1: lots of people don't accept the outcome that has been 101 00:06:15,236 --> 00:06:18,756 Speaker 1: independently verified by all fifty states, including states that are 102 00:06:18,756 --> 00:06:22,636 Speaker 1: controlled by Republicans. So that's scary because you can't really 103 00:06:22,716 --> 00:06:25,116 Speaker 1: run a democracy in the long run if lots of 104 00:06:25,116 --> 00:06:27,876 Speaker 1: the citizens believe that the only outcome they will trust 105 00:06:27,956 --> 00:06:30,996 Speaker 1: is the one where they win. The most fundamental principle 106 00:06:30,996 --> 00:06:34,236 Speaker 1: of democracy is I like my candidate, You like your candidate. 107 00:06:34,396 --> 00:06:36,676 Speaker 1: We vote, and we count up the votes, and whoever's 108 00:06:36,716 --> 00:06:40,196 Speaker 1: candidate got the most votes wins. The minute we think now, 109 00:06:40,316 --> 00:06:43,356 Speaker 1: I don't believe it unless it was my guy, then 110 00:06:43,836 --> 00:06:46,436 Speaker 1: the more it's difficult, or in fact impossible in the 111 00:06:46,436 --> 00:06:49,956 Speaker 1: long run, to sustain democracy, because democracy depends on the 112 00:06:49,996 --> 00:06:52,716 Speaker 1: idea that the next time around will count up the votes, 113 00:06:52,756 --> 00:06:54,916 Speaker 1: and the next time around, the person who gets the 114 00:06:54,956 --> 00:06:58,716 Speaker 1: most votes will win. And so when you break that norm, 115 00:06:58,836 --> 00:07:02,316 Speaker 1: you can't run elections in the ordinary way that they've 116 00:07:02,316 --> 00:07:05,796 Speaker 1: been run previously. And it's even worse than ordinary people 117 00:07:05,796 --> 00:07:09,876 Speaker 1: thinking that is, elected representatives whose own only validity in 118 00:07:09,956 --> 00:07:12,236 Speaker 1: sitting there is that they ran in elections and got 119 00:07:12,276 --> 00:07:15,196 Speaker 1: most votes are saying, oh, you can't trust those votes, 120 00:07:15,396 --> 00:07:19,316 Speaker 1: including I should say, including people who ran in this election. Yeah, 121 00:07:19,356 --> 00:07:20,796 Speaker 1: including it well, which in the case of the House 122 00:07:20,796 --> 00:07:23,676 Speaker 1: of Representatives is one hundred percent of them, right, All 123 00:07:23,716 --> 00:07:25,396 Speaker 1: four hundred and thirty five of them ran in this 124 00:07:25,396 --> 00:07:27,556 Speaker 1: election because they have to run for office every two years, 125 00:07:27,836 --> 00:07:31,436 Speaker 1: and so if they think that the votes are skewed 126 00:07:31,476 --> 00:07:34,436 Speaker 1: and are unfair, why should they even be the ones 127 00:07:34,596 --> 00:07:37,796 Speaker 1: sitting there. So this is very very short term thinking 128 00:07:38,276 --> 00:07:40,716 Speaker 1: on the part of these Republicans who are going to 129 00:07:40,756 --> 00:07:44,316 Speaker 1: be objecting because what they're basically doing is undermining their 130 00:07:44,436 --> 00:07:49,076 Speaker 1: own legitimacy in the democratic system, undermining democracy as a whole, 131 00:07:49,596 --> 00:07:52,956 Speaker 1: all in the hopes of pleasing their own constituency. And 132 00:07:52,996 --> 00:07:56,116 Speaker 1: they may be thinking, oh, it's a game, wink, wink, nudge, nudge. 133 00:07:56,516 --> 00:08:00,676 Speaker 1: It is not a game. Democracy operates on a very 134 00:08:01,236 --> 00:08:03,836 Speaker 1: very clear set of rules, and it has to because 135 00:08:03,916 --> 00:08:09,036 Speaker 1: it's very vulnerable to being tweaked and to being delegitimated. 136 00:08:09,156 --> 00:08:13,116 Speaker 1: There's no law of nature that says democracies must always survive, 137 00:08:13,356 --> 00:08:17,316 Speaker 1: and frankly, that includes our own democracy. Democracies are fragile. 138 00:08:17,676 --> 00:08:20,036 Speaker 1: If you break the norm that the person with the 139 00:08:20,076 --> 00:08:24,556 Speaker 1: most votes wins, you cannot be confident in maintaining democracy 140 00:08:24,556 --> 00:08:27,876 Speaker 1: in the long run. From a constitutional standpoint, How would 141 00:08:27,876 --> 00:08:31,636 Speaker 1: you suggest we try to fix this. The simplest fix 142 00:08:31,876 --> 00:08:34,916 Speaker 1: is to begin by amending this eighteen eighty seven law. 143 00:08:35,316 --> 00:08:37,476 Speaker 1: Even that might not be enough, though, because Congress would 144 00:08:37,476 --> 00:08:39,636 Speaker 1: have to pass any such law. We might need to 145 00:08:39,636 --> 00:08:42,556 Speaker 1: amend the Constitution itself. And here's where you might want 146 00:08:42,556 --> 00:08:45,396 Speaker 1: to look to every other country in the world. Essentially 147 00:08:45,436 --> 00:08:49,596 Speaker 1: every functioning democracy says we don't want the election results 148 00:08:49,796 --> 00:08:54,556 Speaker 1: to be judged by politicians, because politicians are themselves subject 149 00:08:54,676 --> 00:08:57,796 Speaker 1: to the incentive of trying to please their constituents. So 150 00:08:57,836 --> 00:09:01,436 Speaker 1: instead they say, let's have an independent electoral commission that 151 00:09:01,556 --> 00:09:05,476 Speaker 1: judges the results of elections. And our constitution doesn't allow 152 00:09:05,476 --> 00:09:08,116 Speaker 1: for that because there were no independent electoral commissions back 153 00:09:08,156 --> 00:09:09,796 Speaker 1: in seventeen eighty seven. No one had thought of that 154 00:09:09,876 --> 00:09:12,636 Speaker 1: idea yet. But I think it might be time for 155 00:09:12,716 --> 00:09:16,036 Speaker 1: us to think about amending our constitution so that the 156 00:09:16,196 --> 00:09:18,956 Speaker 1: foxes are no longer guarding the Henhouse, in other words, 157 00:09:18,956 --> 00:09:21,636 Speaker 1: so that the people judging who won the election are 158 00:09:21,636 --> 00:09:24,956 Speaker 1: not themselves people who ran for office in that election 159 00:09:25,156 --> 00:09:27,556 Speaker 1: and will run the next time. And I recognize that 160 00:09:27,596 --> 00:09:29,716 Speaker 1: would represent a big change from the way we've done things, 161 00:09:29,916 --> 00:09:31,716 Speaker 1: but it would not be a big change compared to 162 00:09:31,836 --> 00:09:34,996 Speaker 1: every other modern democracy in the world. Pretty much, as 163 00:09:35,036 --> 00:09:38,516 Speaker 1: a constitutional law scholar, how often do you recommend amending 164 00:09:38,516 --> 00:09:42,636 Speaker 1: the constitution? Barely? Ever, We've been very creative over the years. 165 00:09:42,676 --> 00:09:46,356 Speaker 1: Our constitution is alive in my opinion, It's evolved a lot, 166 00:09:46,516 --> 00:09:49,476 Speaker 1: and so it's continued to work even under new circumstances. 167 00:09:49,836 --> 00:09:53,156 Speaker 1: So I really don't like to recommend new constitutional amendments. 168 00:09:53,236 --> 00:09:55,716 Speaker 1: But this time, maybe that one time where we just 169 00:09:55,756 --> 00:09:57,716 Speaker 1: flat out and need it. You know, the frameworks were 170 00:09:57,756 --> 00:10:02,756 Speaker 1: very interested in incentives, and here the incentives, unfortunately, of 171 00:10:02,796 --> 00:10:06,516 Speaker 1: Congress don't align with the incentives of the public in 172 00:10:06,636 --> 00:10:09,596 Speaker 1: having the public's voices heard. What are you watching for today? 173 00:10:10,036 --> 00:10:16,276 Speaker 1: I am watching for how willing elected congressman and centators 174 00:10:16,316 --> 00:10:20,916 Speaker 1: will be to flatly, with no good reasons, say I 175 00:10:20,956 --> 00:10:23,476 Speaker 1: think we should throw out the vote. I'm looking for 176 00:10:23,636 --> 00:10:27,196 Speaker 1: how willing the Vice president Mike Pence, who of course 177 00:10:27,236 --> 00:10:31,516 Speaker 1: would be reelected himself if Donald Trump more elected, is 178 00:10:31,556 --> 00:10:34,636 Speaker 1: to appear to be non objective. You know, he should 179 00:10:34,676 --> 00:10:37,316 Speaker 1: be bending over backwards to be objective because his job 180 00:10:37,396 --> 00:10:40,436 Speaker 1: is literally on the line. Those are the questions that 181 00:10:40,516 --> 00:10:43,476 Speaker 1: I think will make the subtle, nuanced differences. But the 182 00:10:43,556 --> 00:10:46,156 Speaker 1: reality is the mere fact that these objections are going 183 00:10:46,196 --> 00:10:49,436 Speaker 1: to be raised is a very bad thing for democracy. 184 00:10:49,996 --> 00:10:53,076 Speaker 1: And my last question to you, this is the last step, right, 185 00:10:53,156 --> 00:10:57,556 Speaker 1: there's no other like today is the last step in 186 00:10:57,556 --> 00:11:01,396 Speaker 1: the process of Joe Biden taking office on January twenty. 187 00:11:01,716 --> 00:11:03,756 Speaker 1: It's the next to the last step. The last step 188 00:11:03,876 --> 00:11:06,556 Speaker 1: is the oath of office administered to Joe Biden on 189 00:11:06,596 --> 00:11:10,356 Speaker 1: inauguration day, you know, and you know it's a sign 190 00:11:10,436 --> 00:11:12,676 Speaker 1: that we're still a functioning democracy that you'd say, oh, 191 00:11:12,756 --> 00:11:16,076 Speaker 1: this is the last step. Right, In a true Banana Republic, 192 00:11:16,516 --> 00:11:21,316 Speaker 1: people would be worried that between January six and January twenty, 193 00:11:21,916 --> 00:11:25,036 Speaker 1: you know, the elected president could suddenly go missing or 194 00:11:25,356 --> 00:11:27,676 Speaker 1: appear on a different border, or the army could be 195 00:11:27,676 --> 00:11:29,716 Speaker 1: called into the streets. Now, I don't think any of 196 00:11:29,716 --> 00:11:32,156 Speaker 1: those things says any prospect of happening here in the 197 00:11:32,196 --> 00:11:34,676 Speaker 1: United States. But the mere fact that we're having this 198 00:11:34,756 --> 00:11:38,076 Speaker 1: conversation at all shows you that we're no longer in 199 00:11:38,116 --> 00:11:41,756 Speaker 1: the realm of reliable, stable democracies, and that's really the 200 00:11:41,796 --> 00:11:44,876 Speaker 1: realm we want to be in. Frankly, Noah Fellman hosts 201 00:11:44,876 --> 00:11:48,116 Speaker 1: a deep background podcast with our partners at Pushkin. He 202 00:11:48,276 --> 00:11:51,916 Speaker 1: is our resident legal expert here on Access Today. Thank 203 00:11:51,956 --> 00:11:54,276 Speaker 1: you for your time, Noah, Thank you for having me