Democracy Decoded: Season 4, Episode 8 Transcript
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Trevor Potter: It would be a complete misread of this election to say that voters decided they didn't like democracy, they exercised their democratic rights in this election. So whatever the mandate might be for a Trump presidency, it does not include threatening or dismantling democracy. As we work to protect and improve our democracy, which is CLC's mission, we will have the support of the American people behind us in that important mission.
Simone Leeper: I'm Simone Leeper and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable, and inclusive democracy. I work for a nonpartisan organization called Campaign Legal Center, which is dedicated to solving the wide range of challenges facing American democracy. CLC fights for every American's freedom to vote and meaningfully participate in the democratic process. This season we have looked squarely at elections and the tried and tested systems that ensure our elections are safe, secure, and accurate. In this our final episode of the season, we're talking about the 2024 election. We're posting this episode on November 12th, one week after election day. Obviously there's a great deal we don't know about what the federal government will look like in January. What we do know is that we have a president-elect who ran explicitly against the core principles of American democracy that makes the coming weeks and months a crucial period for those of us who dedicate our professional lives to protecting the American system. There is hard work ahead and CLC is here to do it.
I'm here today with three of CLC's finest attorneys to discuss what's happening right now and how CLC will move forward in this unprecedented time for our country to help us understand the significance of this election and what comes next. I'm talking with CLC's President Trevor Potter and Senior Vice Presidents Paul Smith and Bruce Spiva. Trevor is a Republican former chairman of the Federal Election Commission and was general counsel to John McCain's 2000 and 2008 presidential campaigns and an advisor to the drafters of the McCain-Feingold campaign finance law. Paul is a litigator who has argued before the Supreme Court 21 times. During his four decades as an attorney, he has fought for the freedom to vote, gay rights, and fairer voting districts. He has also testified in the US about the ways the Supreme Court has gone astray in its decision making. Bruce is an attorney who has spent more than 30 years fighting for the freedom to vote, consumer protections, and civil liberties. He has argued before the US Supreme Court, run for Attorney General of Washington D.C., and worked tirelessly to promote D. C. statehood. Trevor, Paul, and Bruce, I know how valuable your time is just after election day, so thank you for taking the time to join us on Democracy Decoded. Starting off, what are the main threats to our democracy that we may have to face during this new Trump term? Paul, let's start with you.
Paul Smith: Well, we have a incoming president who has shown a lack of respect for democracy in a variety of ways, including resisting the peaceful transfer of power the last time he was in power and making promises to do things like abuse the Justice Department to go after his political enemies turning the army on demonstrators, pardoning the January 6th violator. All of those things make us concerned that democracy has stresses it's facing that it's not faced before, and so we want to be a big part of trying to make sure it gets through this tough period and we hope it will, we think it will.
Leeper: Trevor, what about you? What threats do you see us potentially facing to our democracy in the coming years?
Potter: The threats are in some ways very personal to the president-elect Donald Trump in the sense that senior figures of his first administration have said that he doesn't understand the Constitution and the limited role that a president can play in terms of the powers he has. And so we are on guard to protect the rule of law and the Constitution from overreach from what we call authoritarianism, by which we mean a president ignoring the constraints the Constitution imposes using the military against personal and political enemies, using the tax authorities, the IRS that way, using the Justice department and the power to prosecute, to go after people for personal and political reasons. That would violate our constitutional norms and we need to be prepared to step in and draw those lines when boundaries are crossed.
Leeper: Bruce, do you have anything to add on this point?
Bruce Spiva: Trump has said that he wants to be a dictator on day one. That is very concerning when a president or a president-elect speaks that is action and so cause for some concern and vigilance. The other thing I'd add is the courts have generally held as it comes to pro-democracy issues, although they have not been voter friendly, not the Supreme Court or many of the lower courts on which Mr. Trump has appointed judges, and of course as the incoming president, he's now once again going to have the power appoint judges. And so we're concerned about what kinds of rulings might come out on voting rights and redistricting.
Leeper: What's likely to be different about Trump as president starting in 2025 compared to his first term? Trevor, let's start with you.
Spiva: So the big change will be I think that he has a thought out agenda and is prepared to appoint only people who are going to enable him rather than stand in his way. Which in one way, a president has a right to try to enact their policies and agendas and to expect that their administration will support them. But in another way, a president is not a king, is not a dictator, and if they are going to attempt to do things that are unconstitutional, it is important to have people who will protect our rule of law and ensure the president doesn't do something that perhaps he will later regret. And that's the record as told by a whole range of people in the first Trump term that they prevented him from doing things that would've been mistakes for him and the country. And I think in term two, there are going to be fewer internal constraints like that, at least if he and his inner circle have their way.
Leeper: Bruce, do you see any other differences between Trump's first term and his potential second?
Spiva: His first term wasn't characterized by a great deal of discipline, and that can be both a good thing and a bad thing. It can be a bad thing obviously when it creates chaos, which can often lead to undermining fundamental rights. But it can be a good thing in the sense that a lot of these things that he's talked about carrying out when it comes to impinging on civil liberties and voting and democracy, hopefully will not actually come to pass.
Leeper: Paul, how about you?
Smith: He's now coming in armed with a recent Supreme Court decision, which he knows means that whatever he does, if it's an official act, it's likely he'll never be able to be prosecuted for it. So one of the last remaining real things that keep presidents in line, the potential for criminal prosecution has largely been taken away and it's clear Mr. Trump is quite aware of that.
Leeper: Let's talk more about that. How do you think that the US Supreme Court's ruling on presidential immunity will impact what a second Trump term will be like? Trevor, let's start with you.
Potter: Well, we start with the fact that there is a open, I think, dispute as to how broad that immunity is, what exactly it covers. That's something that the special counsel has already filed briefs on in one of the ongoing cases against Trump. That case won't proceed at this stage, but the special counsel has outlined ways in which he believes presidents can still be held accountable for acts that are not within their official responsibilities, but rather are political acts or personal acts. So it isn't that the president is completely immune, it is that the president has a level of immunity here that was not recognized before. Now, what that means in practice here is that I think he will hear that he is immune for whatever he does, but the key fact here is that does not mean that anyone else in his administration is immune. The people who are asked to do something illegal themselves are going to be in a very difficult position, because they can be held responsible. That's a basic premise of law going all the way back to trials after the Second World War that the defense of I was just following orders, if you know the order is illegal in whatever context is not going to work. So it puts people in the administration in a vulnerable position. Trump could fire them, but they'll have to weigh that against their own potential liability.
Leeper: Paul, do you have anything to add on this point?
Smith: Well, I must say first of all, I think it was a stunning decision that really is inexplicable. There's no legal basis for it, and it makes no common sense to say, we're going to give all this enormous power to one person and then say that no matter how badly they abuse that power, they can't be held criminally responsible if it's an official act or likely can't be held criminally responsible. It's really elevating the president above the law in a way that is completely out of step with American constitutional principles. One thing I would add though is that courts can still order the president while he's in office to stop violating the law. There are injunctions against criminal violations or any other violation of law will be available. What we're talking about with the immunity is criminal prosecution later on. So one of the interesting dynamics that we're going to see is how much are the courts, in particular the Supreme Court, going to be willing to try to rein a Trump administration in using injunctions? And in turn, how much is Mr. Trump going to be willing to defy court orders? And I think that'll be an interesting dynamic to watch going forward.
Leeper: So we've been talking about the immunity decision on the theoretical level. How is this going to play out potentially with real world implications? What kinds of things might Trump be able to do or try to do in light of the immunity ruling? Trevor, let's start with you.
Potter: Well, I think it's really important to emphasize that the immunity decision affects a president being criminally prosecuted after his term of office for having done something that violates the law and is unconstitutional. That's very different from the question of can an administration get away with breaking the law? The first thing that will happen is that people who are affected by that will go to court and we saw in the first Trump administration and have every possibility of seeing in the second, court orders that say what the administration is doing is in fact illegal and must stop. There is nothing in the immunity decision to prevent judicial review of actions by the executive branch if they violate current law.
Leeper: So on that note of using the courts to push back against potentially undemocratic actions, what is CLC's plan to preserve the rule of law and the Constitution during Trump's second term? Paul, let's start with you.
Smith: The primary goal of CLC since we're a pro-democracy organization, will be to make sure that we have free and fair elections in 2026 and 2028, so that will be our lodestar along the way, but we'll also be working very hard in the meantime to try to avoid politicizing of the government by the White House, trying to turn the Justice Department into an arm of the White House's political goals, trying to get rid of people based on their political affiliation or willingness to support Mr. Trump, that kind of thing, which would be extremely illegal, but also very harmful to the democratic nature of our country.
Leeper: Bruce, how do you see the future of CLC's work during this term?
Spiva: I think there'll be some significant continuity in that there are still unfair maps out there in terms of candidates selecting their voters as opposed to the other way around, and we'll continue to challenge those. We know we have to be creative to respond to some court decisions, and so sometimes we'll go to state court where that's a more conducive route. We have to be strategic, because the federal courts, unfortunately in many ways, and particularly the Supreme Court, have not been a friend to voting rights in recent years. I'm originally a litigator and they say that when you're a hammer, everything looks like a nail. So I and others maybe have to say, well, sometimes there's another solution. Maybe litigation is not the best way to address it. Maybe it's exposure. Maybe as Paul mentioned, enforcing ethics and pursuing policy, and obviously a lot of this will have to do with the contours of the Congress, but there are things that can be done in the States as well.
Leeper: Trevor, how do you anticipate CLC working in the next few years to preserve the rule of law in the Constitution?
Potter: On the crucial issue of ensuring that we have free and fair elections in '26 and '28, it's important to remember that elections are not run by the federal government, they're not run by the executive branch, so we will be working with the states where we have strong ties to ensure that those elections are run properly and that they're not interfered with in any way by the Trump administration. The one place that I think we will see a significant difference is that the Justice Department is charged with enforcing the Voting Rights Act and election rights that Congress has passed, and the Biden administration really focused on those issues when needed. I think we will see backtracking by the Justice Department and the Trump administration on some of those actions and policies.
Leeper: Trevor, one thing that might not immediately come to mind for our listeners is campaign finance, but you have your roots and CLC has its roots largely in campaign finance. Do you see any ways in which wealthy special interests will be affected or emboldened by this election?
Potter: Oh, I think there's no question that what we have seen in the campaign is something that we need to spend some time and call out. You may recall Supreme Court's decisions in the whole area of campaign finance going all the way back to the Buckley decision in 1976, is that individuals and later corporations could spend unlimited amounts personally independently of candidates in elections. The concept was that the government can only limit contributions to candidates because those are potentially corrupting or to parties, but not independent spending because it's not corrupting, at least hasn't been proved to be corrupting precisely because it is wholly, totally independent of candidates and parties. That's the legal theory, and we have seen that theory just vaporized in this last election. The poster child for that is Elon Musk who spent, according to his own words, hundreds of millions to win a particular state, Pennsylvania for Trump, but appeared at Trump rallies, coordinated with Trump campaign officials, became an integral part of the Trump campaign while making these expenditures. We're going to see that play out. We are told by president-elect Trump in giving Elon Musk some sort of major role in the administration, so we will have a direct line here between the spending of hundreds of millions of dollars and the ability to affect government policy.
Leeper: Now, this is something that we've touched on in some of your answers so far, but I want to dive into it a little more specifically. Assuming that it may be incredibly difficult to advance a pro-democracy agenda in Washington for the next four years, what opportunities might there be at the state level? Bruce, let's start with you.
Spiva: Many states have very strong explicit protections for the right to vote in their state constitutions, and we at CLC and others have used those to protect the right to vote in those states. Obviously, you can't have an effect nationwide necessarily if you're litigating in a given state, but sometimes these things have an impact even outside of the state that you're litigating in, but we're not done in federal court either. We have cases, we've had some successes in terms of stopping illegal purges of voters during the so-called quiet period before the election, and those cases will continue to be pursued and we believe will ultimately be successful in having those successful decisions upheld.
Leeper: Paul, what opportunities do you see at the state level?
Smith: Another one is in the area of political gerrymandering, partisan gerrymandering where the Supreme Court several years ago said, we aren't going to let the federal courts do anything about the problem of gerrymandering. The maps are so unfair sometimes that you get a legislature that bears no resemblance to the political preferences of the people. Hardly a democracy at all, but we've moved to state court in that area in the past and had great success in Wisconsin producing a legislature that was just elected, which is much, much more similar to the political persuasions of that purple state, and now we are moving forward with similar state court litigation in Utah where we expect by 2026 there will be a Democratic congressional district for the city of Salt Lake City. I'm doing a gerrymander there as well. I also think the states themselves are going to set up as kind of bastions of democracy. We've already seen a strong statement from Governor Newsom in California saying that he's not going to put up with violations of the Constitution that the states exist as part of the whole checks and balances system. Part of that is states can push back against the federal government and where we can, we will look for opportunities to work with state Attorneys General and others who are simply standing up for basic constitutional norms if necessary. It's hard to map out all of this in advance because we don't know exactly what the challenges will be, but I think it's pretty certain there will be challenges.
Leeper: There has been, as we all know, a ton of election-related litigation this year. What do we know about how the court rulings in those cases impacted voter's ability to make their voices heard on November 5th? Let's start with you, Bruce.
Spiva: Sure, yes. I've alluded to the purge litigation that we brought in Alabama and in Virginia. In Alabama, we successfully got the state to stop that and to put some 3,000 people that were affected by it back on the rolls. In Virginia, we were successful in the District Court and in the Fourth Circuit. Unfortunately, the Supreme Court stayed that action. We were able to contact all of those people to make sure that they were aware that they had the right to vote and that they could go on election day and exercise their freedom to vote.
Leeper: Paul, how do you see the election related litigation this year as having impacted voters' ability to make their voices heard?
Smith: It didn't have a great impact, in part because nearly all the cases that were brought before the election failed. The sole exception really is that Virginia purged litigation where they were able to get the Supreme Court to let them continue the purge of 1,600 people from the rolls. The election went off very smoothly, and if you're a pro-democracy organization, sometimes you recognize that democracy produces an outcome which threatens democracy, and that's really what we've seen here. The voters made their choice, and it's certainly important for us and for everyone to acknowledge that choice, support the transfer of power to the next elected president, and then start working hard to make sure nothing goes awry after that, whether it's the interference with reelection, politicizing the government in ways that are illegal as we saw four years ago, all of the problems which we've been talking about and which we anticipate. But in the meantime, we had a really very well run election and the outcome was very clear, and that's what you ask for in a democracy.
Leeper: Looking beyond the presidential race, how did things turn out at the state level in terms of ballot initiatives on issues like ranked choice voting and efforts to stop gerrymandering? Trevor, you've already touched on this, but could you expand a little more?
Potter: The area that is worth looking at in particular is the various initiatives involving either ranked choice voting or open primaries or some combination of those. There were six or seven states out there with those issues on the ballot. We know that the District of Columbia passed an initiative that involved primaries and an aspect of ranked choice voting, and it did so pretty overwhelmingly with the pitch that it was the best way to get independents involved in elections in the district. However, for the other initiatives that would've created new ranked choice voting or open primary systems, it was not a good day. We're going to have to take a careful look at why these failed, whether that's a messaging issue, whether it is the opposition of one or in some cases, both political parties to it and what we can learn from that.
Leeper: Paul, what thoughts do you have on the state initiatives?
Smith: It really does require advocates of these nonpartisan primaries and rank choice voting to go back to the drawing board and figure out a better strategy. Those approaches to trying to produce more moderate, less polarized outcomes in elections are valuable. It's just they clearly haven't been explained well enough to the people, and so they got rejected pretty much across the board in this last election. We're hoping Alaska's will survive because it's actually the best proof of concept. They've had some really good elections using that system and electing moderate centrist people who reflect the views of the whole state in a way that's different from the way the earlier system operated.
Leeper: In closing, could I ask each of you to share any final thoughts you might have or insights for the future of our democracy? We're going to start with Paul this time.
Smith: Let me first say that American democracy and American institutions are strong. We've had a democracy for a very long time, and it's come through a lot of challenges. World wars, civil wars, prior Trump administration, lots of challenges. It may be that the challenges to come are even more significant and more severe than we faced, at least in living memory, but I have confidence that if CLC and all of its allies in the pro- democracy movement and the American people remain vigilant and push back using what levers of power they can find to insist that democracy has to survive, we'll get through this and the people will have an opportunity to elect a different government if they so choose the next time around. It'll be tough, but we'll get it there.
Leeper: Bruce, what are your final thoughts?
Spiva: Protecting democracy and expanding democracy in the United States has never been a straight line in this country. From the beginning, only white male landowners could exercise the right to vote, and each subsequent generation of Americans has gone through a fight to try to achieve the ideal, and it's only an ideal, it's a powerful ideal of democracy. We went through a civil war and got the 15th amendment, but that didn't really result in voting rights for African Americans until 100 years later when the Voting Rights Act was passed. Women of any color could not vote until the ratification of the 19th Amendment. We've had litigation to try to enforce the civil rights laws. We have the 26th Amendment that gave the right to vote of young people that have achieved the age of 18, and we've had setbacks. We've had unfavorable decisions from the Supreme Court in recent years, but that's been the history of our country. It's a struggle and it's a journey, not a destination, trying to achieve that ideal of a true democracy that's inclusive of our pluralistic society.
Leeper: Thank you, Bruce. Trevor, what final thoughts do you want to leave our listeners with today?
Potter: I think it's really important to understand that it would be a complete misread of this election to say that voters decided they didn't like democracy. They exercised their democratic rights in this election. It was incredibly close in an election of what may be 180 million people. It looks as if there will be perhaps a million votes separating the two candidates here. So whatever the mandate might be for a Trump presidency, it does not include threatening or dismantling democracy. I think Vice President Harris was correct to say that a Trump presidency, as we have been discussing, can and likely will present some threats to democracy, but that doesn't mean a vote for Trump is a vote for an authoritarian, unconstitutional presidency. As we work to protect and improve our democracy, which is CLC's mission, we will have the support of the American people behind us in that important mission.
Leeper: Thank you Trevor, and thank you to all three of you for being here and speaking with us today.
Spiva: Thank you. Pleasure to be here.
Leeper: This has been a sobering week. As you know and just heard, American democracy is entering some uncharted waters. Our focus now as democracy advocates is on the future. House members and a third of the Senate will be back on the ballot in 2026. That election must be accurate, safe, and fair, and Americans will once again vote for a president four short years from now in 2028, that election too must be protected. People said it repeatedly in 2024, democracy is on the ballot. That may prove to be true in every American election for years to come. Special thanks to our guests, Trevor Potter, Paul Smith, and Bruce Spiva for joining us today. CLC is a nonpartisan legal organization dedicated to solving the wide range of challenges facing American democracy. We fight for every American's freedom to vote and participate meaningfully in the democratic process, particularly Americans who have faced political barriers because of race, ethnicity, or economic status.
I'm your host, Simone Leeper. I'd like to take a moment to thank everyone who's been tuning into Democracy Decoded this season. Your support of Campaign Legal Center is what makes this podcast and all the important work CLC does possible. Your tax deductible donation can directly fund our efforts to solve the wide range of challenges facing American democracy. And in the aftermath of this election, our fight to advance democracy through law has never been more important. If you would like to support our work, just go to campaignlegal.org and click on the donate button.
This season of Democracy Decoded is produced by JAR Audio for Campaign Legal Center. Leading the production for CLC are Casey Atkins, Multimedia Manager and Matty Tate-Smith, Senior Communications Manager for Elections. This podcast was produced by Sam Eifling and Reaon Ford, edited and mixed by Luke Batiot. Democracy Decoded is a member of The Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at democracygroup.org.