Speaker 1: Hello, Deep background listeners. Noah Feldman here. I've recently started
Speaker 1: making regular appearances on Axios Today, the daily news podcast
Speaker 1: from Axios. I always have great conversations with host Naila Budo,
Speaker 1: and I hope I'm able to shed light on the
Speaker 1: legal issues that are making headlines. Here's my latest interview
Speaker 1: on Axios Today. If you like getting smarter faster, you
Speaker 1: can subscribe or listen wherever you get your podcasts. I've
Speaker 1: made it a daily habit, and I hope you will too.
Speaker 1: At one pm Eastern time today, members of Congress will
Speaker 1: meet in a joint session to officially count electoral votes
Speaker 1: for the presidential election. Vice President Mike Pence will open
Speaker 1: the electoral vote certificates to be read aloud, which fulfills
Speaker 1: his constitutional role as President of the Senate. This happens
Speaker 1: every four years after every presidential election, but it's getting
Speaker 1: much more attention this year because of the dozens of
Speaker 1: Senators House Republicans planning to object to the electoral results
Speaker 1: from battleground states like Pennsylvania, Michigan, and Georgia. Noah Feldman
Speaker 1: is a constitutional law professor at Harvard and our resident
Speaker 1: legal ex hid for Axios Today. Noah, can we have
Speaker 1: a free mini constitutional law class with you for a
Speaker 1: second year anytime? Can you explain the twelfth Amendment in
Speaker 1: what it says about what's supposed to happen today. What's
Speaker 1: supposed to happen is that all of the states have
Speaker 1: chosen electors. They've each only chosen one slate of electors.
Speaker 1: They send that slate in on essentially a piece of paper.
Speaker 1: Both houses of Congress meet in joint session. They're presided
Speaker 1: over by the quote President of the Senate, better known
Speaker 1: as the Vice President, Mike Pence. Mike Pence is supposed
Speaker 1: to read out the votes they're supposed to be counted,
Speaker 1: and if, as is the case, there's a clear majority
Speaker 1: of them for one, Joe Biden, Joe Biden is supposed
Speaker 1: to become the president. And that's how the process is
Speaker 1: laid out in the Constitution and has written. That's pretty straightforward,
Speaker 1: except in life, there's always a twist. So the twist
Speaker 1: I think maybe we have to go back to the
Speaker 1: Electoral Count Act. This is like eighteen eighty seven, which
Speaker 1: is now so important. Can you just sort of explain
Speaker 1: that process and how that has sort of further elaborated
Speaker 1: on what we've seen in the Constitution. Yeah, the twist
Speaker 1: is what if you can't just so simply add up
Speaker 1: and count all of the electors who are sent in.
Speaker 1: And in the first instance, that could happen if, for example,
Speaker 1: a state can't get its act together and it sends
Speaker 1: in two slates of electors, one for example, sent in
Speaker 1: by the state legislature, another sent in by the governor
Speaker 1: of the state. That raises a question for the person
Speaker 1: doing the counting, which one do you count? And this
Speaker 1: mess actually happened in eighteen seventy six when there were
Speaker 1: contested slates of electors from a couple of different states,
Speaker 1: and as a result, we genuinely did not know who
Speaker 1: the president was. After that happened, Congress passed this law
Speaker 1: in eighteen eighty seven to set up rules for what
Speaker 1: should be done by Congress when they came to count
Speaker 1: the votes. And those rules are actually pretty straightforward as written.
Speaker 1: They say, among other things, that when there's no multiple
Speaker 1: slates of electors, and that's the case this year, that
Speaker 1: basically the congressman and the vice president actually have to
Speaker 1: count the electors who came in unless there's some evident,
Speaker 1: clear reason that they were not real slates of electors
Speaker 1: that reflect the intent of the electors that were passed
Speaker 1: or that were lawfully cast, so as written, that law
Speaker 1: would not lead to any weirdness. Here can we part
Speaker 1: something you said though? First, First, let's just talk about
Speaker 1: the fact that there are not multiple slates of electors.
Speaker 1: Every state has met that is not in contention here, correct,
Speaker 1: And in no state did a rogue slate of electors
Speaker 1: get proposed. All of the electors actually are the people
Speaker 1: actually chosen by the citizens of those states, and that's
Speaker 1: why there are no contested slates of electors in this election.
Speaker 1: But this brings a sire second point that you made,
Speaker 1: which is this idea of evidence, which is what we
Speaker 1: are hearing from Republican lawmakers as to why they are
Speaker 1: planning to object today. Yeah, and so just to describe
Speaker 1: the mechanics, what's supposed to happen is that if there
Speaker 1: are objections to the electors submitted that are proposed by
Speaker 1: congressmen or by senators, then the two houses separate out.
Speaker 1: They're all sitting in joint session, they separate out to
Speaker 1: debate each on its own, and then they each vote.
Speaker 1: And the only way that any electors could be rejected
Speaker 1: by the joint session. Is if a majority of the
Speaker 1: Senate and a majority of the House vote to reject
Speaker 1: those electors. What, unfortunately, from my perspective, is going to
Speaker 1: happen is that some Republicans are going to raise objections
Speaker 1: and they're going to require a vote to happen. Elected
Speaker 1: congressman and elected senators are going to say, without any
Speaker 1: meaningful grounds for saying it, that the people didn't really
Speaker 1: elect Joe Biden in some specific states. In other words,
Speaker 1: some actual, real House of Representatives, members, actual senators are
Speaker 1: calling for something very much like a constitutional coup. Data
Speaker 1: and the fact that that's going to happen, even though
Speaker 1: we know it's going to fail, shows you that this
Speaker 1: is not just theater, that is not trivial. So can
Speaker 1: I ask you about the idea of our trust in
Speaker 1: the democratic process. What kind of effect do you think
Speaker 1: this week will have on that? It's going to have
Speaker 1: a bad effect. You know, it's bad enough that a
Speaker 1: reasonable percentage of Americans now say or tell posters that
Speaker 1: they don't believe that Joe Biden won the election. I
Speaker 1: mean that's worrisome because what it shows you is that
Speaker 1: lots of people don't accept the outcome that has been
Speaker 1: independently verified by all fifty states, including states that are
Speaker 1: controlled by Republicans. So that's scary because you can't really
Speaker 1: run a democracy in the long run if lots of
Speaker 1: the citizens believe that the only outcome they will trust
Speaker 1: is the one where they win. The most fundamental principle
Speaker 1: of democracy is I like my candidate, You like your candidate.
Speaker 1: We vote, and we count up the votes, and whoever's
Speaker 1: candidate got the most votes wins. The minute we think now,
Speaker 1: I don't believe it unless it was my guy, then
Speaker 1: the more it's difficult, or in fact impossible in the
Speaker 1: long run, to sustain democracy, because democracy depends on the
Speaker 1: idea that the next time around will count up the votes,
Speaker 1: and the next time around, the person who gets the
Speaker 1: most votes will win. And so when you break that norm,
Speaker 1: you can't run elections in the ordinary way that they've
Speaker 1: been run previously. And it's even worse than ordinary people
Speaker 1: thinking that is, elected representatives whose own only validity in
Speaker 1: sitting there is that they ran in elections and got
Speaker 1: most votes are saying, oh, you can't trust those votes,
Speaker 1: including I should say, including people who ran in this election. Yeah,
Speaker 1: including it well, which in the case of the House
Speaker 1: of Representatives is one hundred percent of them, right, All
Speaker 1: four hundred and thirty five of them ran in this
Speaker 1: election because they have to run for office every two years,
Speaker 1: and so if they think that the votes are skewed
Speaker 1: and are unfair, why should they even be the ones
Speaker 1: sitting there. So this is very very short term thinking
Speaker 1: on the part of these Republicans who are going to
Speaker 1: be objecting because what they're basically doing is undermining their
Speaker 1: own legitimacy in the democratic system, undermining democracy as a whole,
Speaker 1: all in the hopes of pleasing their own constituency. And
Speaker 1: they may be thinking, oh, it's a game, wink, wink, nudge, nudge.
Speaker 1: It is not a game. Democracy operates on a very
Speaker 1: very clear set of rules, and it has to because
Speaker 1: it's very vulnerable to being tweaked and to being delegitimated.
Speaker 1: There's no law of nature that says democracies must always survive,
Speaker 1: and frankly, that includes our own democracy. Democracies are fragile.
Speaker 1: If you break the norm that the person with the
Speaker 1: most votes wins, you cannot be confident in maintaining democracy
Speaker 1: in the long run. From a constitutional standpoint, How would
Speaker 1: you suggest we try to fix this. The simplest fix
Speaker 1: is to begin by amending this eighteen eighty seven law.
Speaker 1: Even that might not be enough, though, because Congress would
Speaker 1: have to pass any such law. We might need to
Speaker 1: amend the Constitution itself. And here's where you might want
Speaker 1: to look to every other country in the world. Essentially
Speaker 1: every functioning democracy says we don't want the election results
Speaker 1: to be judged by politicians, because politicians are themselves subject
Speaker 1: to the incentive of trying to please their constituents. So
Speaker 1: instead they say, let's have an independent electoral commission that
Speaker 1: judges the results of elections. And our constitution doesn't allow
Speaker 1: for that because there were no independent electoral commissions back
Speaker 1: in seventeen eighty seven. No one had thought of that
Speaker 1: idea yet. But I think it might be time for
Speaker 1: us to think about amending our constitution so that the
Speaker 1: foxes are no longer guarding the Henhouse, in other words,
Speaker 1: so that the people judging who won the election are
Speaker 1: not themselves people who ran for office in that election
Speaker 1: and will run the next time. And I recognize that
Speaker 1: would represent a big change from the way we've done things,
Speaker 1: but it would not be a big change compared to
Speaker 1: every other modern democracy in the world. Pretty much, as
Speaker 1: a constitutional law scholar, how often do you recommend amending
Speaker 1: the constitution? Barely? Ever, We've been very creative over the years.
Speaker 1: Our constitution is alive in my opinion, It's evolved a lot,
Speaker 1: and so it's continued to work even under new circumstances.
Speaker 1: So I really don't like to recommend new constitutional amendments.
Speaker 1: But this time, maybe that one time where we just
Speaker 1: flat out and need it. You know, the frameworks were
Speaker 1: very interested in incentives, and here the incentives, unfortunately, of
Speaker 1: Congress don't align with the incentives of the public in
Speaker 1: having the public's voices heard. What are you watching for today?
Speaker 1: I am watching for how willing elected congressman and centators
Speaker 1: will be to flatly, with no good reasons, say I
Speaker 1: think we should throw out the vote. I'm looking for
Speaker 1: how willing the Vice president Mike Pence, who of course
Speaker 1: would be reelected himself if Donald Trump more elected, is
Speaker 1: to appear to be non objective. You know, he should
Speaker 1: be bending over backwards to be objective because his job
Speaker 1: is literally on the line. Those are the questions that
Speaker 1: I think will make the subtle, nuanced differences. But the
Speaker 1: reality is the mere fact that these objections are going
Speaker 1: to be raised is a very bad thing for democracy.
Speaker 1: And my last question to you, this is the last step, right,
Speaker 1: there's no other like today is the last step in
Speaker 1: the process of Joe Biden taking office on January twenty.
Speaker 1: It's the next to the last step. The last step
Speaker 1: is the oath of office administered to Joe Biden on
Speaker 1: inauguration day, you know, and you know it's a sign
Speaker 1: that we're still a functioning democracy that you'd say, oh,
Speaker 1: this is the last step. Right, In a true Banana Republic,
Speaker 1: people would be worried that between January six and January twenty,
Speaker 1: you know, the elected president could suddenly go missing or
Speaker 1: appear on a different border, or the army could be
Speaker 1: called into the streets. Now, I don't think any of
Speaker 1: those things says any prospect of happening here in the
Speaker 1: United States. But the mere fact that we're having this
Speaker 1: conversation at all shows you that we're no longer in
Speaker 1: the realm of reliable, stable democracies, and that's really the
Speaker 1: realm we want to be in. Frankly, Noah Fellman hosts
Speaker 1: a deep background podcast with our partners at Pushkin. He
Speaker 1: is our resident legal expert here on Access Today. Thank
Speaker 1: you for your time, Noah, Thank you for having me