Update on the Kulturkampf: Scalia edition

I’ve been using the term Kulturkampf (German for “culture war”), because Trump and Bannon are waging a culture war on the left and on the “establishment” (right and left). The term “Kulturkampf” comes from 1870s Germany, in Bismarck’s “culture battle” leading the Protestants and German nationalism against the Catholic Church. It was a predecessor to Hitler’s similar goal of nationalism against the Catholic Church, and the term Kulturkampf came back into use in the Nazi era. When I use the term Kulturkampf, I’m not trying to be overly inflammatory. I’m thinking that we are in the middle of a nationalist culture war more like 1870s Germany, but I worry that it could get much worse. So I use the term Kulturkampf because of that ambiguous, and because the word “kampf” hints at Bannon’s agenda and the real “alt-right” racist/white nationalist forces that are behind Trump.

In the midst of all this fawning praise of Scalia the Giant tonight, over the next month or so, and every four years, I want to note that first, I assign Scalia’s Matter of Interpretation when I teach Constitutional Law or Constitutional History, and I try to present his arguments faithfully and with balance. But he introduced the word “Kulturkampf” in an inappropriate context. If we’re being generous, it was thoughtless, but if we’re being less generous, it was deliberately provocative and imprudent (im-juris-prudent).  In 1996, the Supreme Court overturned an anti-gay Colorado law in Romer v. Evans.  Scalia dissented, and used the word “Kulturkampf” favorably, as if a kulturkampf was obviously a good thing for voters to wage against gays, as if it would be peachy to hint at the glories of German nationalism in the same context as anti-gay discrimination:

“The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a ‘bare … desire to harm’ homosexuals … but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago … and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. … This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality … is evil. I vigorously dissent.”

I think Scalia deserves credit as one of the “great” Justices in terms of influence and jurisprudence, but I would not call him a good judge in terms of human prudence. In the second half of his career on the Court, starting around the time of his “Kulturkampf” dissent in 1996, he became a caricature of himself, playing to his Federalist Society/Fox News fans with bombast, hyperbole, esoteric phrases, insults, and more partisanship than principle. I’m trying to keep an open mind about Neil Gorsuch, but all of the Scalia worship from him and his supporters isn’t helping.

Update on the Kulturkampf: the Trump family’s war on Muslims and the Courts

Donald Jr. retweeted the following yesterday: “When it’s revealed that the #QuebecShooting terrorists are Muslims, Trump will have a tremendous spike in political capital. #MuslimBan.” This is nakedly instrumental propaganda of bigotry (in case you’ve been watching Fox News, it turns out that the shooter was a white racist and a Trump fan, while the Muslim man in reports was actually a witness, not a suspect). It is a preview of how the Trumps and Bannon will exploit every terrorist incident over the next four years, and how they will lie and mislead to fan hatred of Muslims. Note the repeated use of #MuslimBan: Donald Jr. also personally tweeted, “If @JustinTrudeau cared about the safety of Canadians he’d follow @realDonaldTrump’s lead with a #MuslimBan #QuebecShooting” The Bannon/Trump team know exactly what they are doing. The Trump base wants a Muslim ban as an explicit message against Islam. Again and again, they are telling the base that it is a ban against Muslims. But as Giuliani admitted, they changed the wording just enough to make a formal argument that it is about specific countries, not religion. Here is the win-win for their culture war: they want the base to understand that it is the Muslim ban they demand, they want to give the cowering elite GOP a flimsy excuse that it’s not formally a Muslim ban, and they also want the courts to strike it down so the Trumpers can go to war against the judiciary. This is why we have to vigilantly defend immigrants and the judiciary for the next four years.

Non-profits and religious institutions can oppose Trump

I’ve received lots of questions about how tax-exempt non-profits  can legally oppose the Trump administration. The bottom line is that the free speech rights are broad under the IRS rules. Note: I’m a law professor, not a practicing lawyer, just to be clear. Here is what I researched for religious institutions, but it generally applies to all non-profits. It is long established that tax-exempt religious institutions can advocate for issues, but cannot officially endorse or oppose candidates for elected office. Clergy under some circumstances can endorse or oppose such candidates, although the lines aren’t clear. Are cabinet or judicial nominees considered “candidates” for public office? In line with a reasonable interpretation of IRS documents, the clear consensus is that they are not, so a non-profit can officially oppose any of Trump’s nominees and Trump’s actions and policies, even if he has filed for re-election.


Federal law prohibits political campaign activity by charities and churches by defining a 501(c)(3) organization as one “which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.” The IRS clarifies that religious institutions “can engage in a limited amount of lobbying (including ballot measures) and advocate for or against issues that are in the political arena.”

1. That means that a congregation (or non-profit) in its official capacity and its clergy can advocate in many ways.

2. Members of congregations and non-profits are not the same as the institution or its clergy. Members can speak on list-serves and organize their own activities for or against candidates, as long as they don’t claim to speak for the organization officially. If a non-profit leader ever wants to get close to the line in opposing Trump’s re-election campaign, the leader (or member) should be clear that he/she does not represent the organization officially. To be careful on this issue, I think one would want to discuss and organize as individual members against a candidate, but one should not act as an official entity on any specific candidate for elective office.

3. As I read these documents, I had a question: can a non-profit officially oppose NOMINEES for office, e.g., Bannon, Sessions, or a Supreme Court nominee. The IRS is clear that the prohibition applies to “candidates for elective public office.” See the document below, re-issued this past September 2016. This sentence is the heading of the document, and the rest are details, so a fair legal reading is that there is no restriction on speaking for or against nominees.
To be careful, I kept researching, and I found the following establishment political sites that clarified that religious institutions CAN officially oppose political and judicial nominees:

1. The official GOP site (attached below).

2. Center for Arizona Policy

3. Forbes Magazine: clergy can endorse or oppose candidates for elective office outside their institution:
“Can Your Preacher Tell Who To Vote For?”
“Actually she can. It just depends on where, when and how. Here is the example in the ruling.
Minister C is the minister of Church L, a section 501(c)(3) organization and Minister C is well known in the community. Three weeks before the election, he attends a press conference at Candidate V’s campaign headquarters and states that Candidate V should be reelected. Minister C does not say he is speaking on behalf of Church L. His endorsement is reported on the front page of the local newspaper and he is identified in the article as the minister of Church L. Because Minister C did not make the endorsement at an official church function, in an official church publication or otherwise use the church’s assets, and did not state that he was speaking as a representative of Church L, his actions do not constitute campaign intervention by Church L.


4. Liberty Counsel: clergy under some circumstances can endorse, and religious institutions can endorse or oppose judicial and cabinet nominees:

The IRS rule is copied in full below.

IRS Rule: The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations
Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violating this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes.
Certain activities or expenditures may not be prohibited depending on the facts and circumstances. For example, certain voter education activities (including presenting public forums and publishing voter education guides) conducted in a non-partisan manner do not constitute prohibited political campaign activity. In addition, other activities intended to encourage people to participate in the electoral process, such as voter registration and get-out-the-vote drives, would not be prohibited political campaign activity if conducted in a non-partisan manner.
On the other hand, voter education or registration activities with evidence of bias that (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention.

2. GOP summary:
A Church Can:

Conduct non-partisan voter registration drives
Conduct non-partisan voter identification drives
Conduct “get-out-the-vote” drives, encouraging members to vote
Conduct petition drives regarding legislation or other issues
Distribute non-partisan voter education information
Educate church members on legislative and political matters
Discuss doctrine as it applies to politics, legislative matters or candidate positions
Introduce political candidates and allow them to address the congregation in their capacity as candidates as long as all candidates seeking the same office are given an equal opportunity to participate, and the church does not express support or opposition for any particular candidate(s).
Host candidate forums where all candidates are invited and allowed to speak
Lobby on behalf of specific legislation
Support or oppose political appointments (such as judges or cabinet officials)
Make expenditures on behalf of referendums
Rent church member contact lists to favored lobbying groups
Pastors may endorse candidates as individuals, but not on behalf of a church, (if title and church name are used, include a “title and affiliation for identification purposes only” disclaimer)
A Church Cannot:

Endorse or campaign for candidates for elected office in the name of the church
Contribute money or make “in kind” contributions, (such as resources or services), to a candidate, political party or political action committee
Distribute materials that endorse a particular candidate or political party
Allow candidates to solicit funds from the congregation (from the pulpit)
Create a church political committee that would do any of the above

Obama Can Appoint a Special Prosecutor on Russian Contacts (and even on conflicts of interest and “Emoluments” violations)

Questions are swirling about potentially illegal contacts between the Trump campaign and Russian officials. There is credible evidence that former campaign manager Paul Manafort was on the payroll of the pro-Putin Ukrainian government and did not register as a foreign agent in the U.S. The leaked 35-page report mentions specific allegations about Manafort and Trump advisor Carter Page coordinating with Russian officials, and suggests some Russian “engaging” with Trump nominee Michael Flynn, as well as Jill Stein. The 35-page report contains some erroneous details and some allegations that seem dubious (especially about Trump lawyer Michael Cohen). Trump has alleged that the leak was politically motivated and perhaps illegal. There is a plausible question of whether some intelligence officials are illegally smearing or leaking about Trump.

In yesterday’s press conference, Trump was asked, “Can you stand here today once and for all and say that no one connected to you or your campaign had any contact with Russia leading up to or during the presidential campaign?” He evaded this question and then abruptly ended the press conference. Trump also did not present a plan that remotely addresses his unprecedented degree of financial conflicts of interest, which overlap with the problem of Russian influence and kompromat. Some have claimed that President Trump will be in violation of the Constitution’s Emoluments clause (see below).

So what are the next steps?

  1. We can hope that the Republican Congress will investigate. I am optimistic that Senators John McCain, Lindsey Graham, and Marco Rubio will take steps in that direction. It is unclear how far they would be willing to go.
  2. We can hope that FBI Director Jim Comey might investigate fully, but he serves under the Attorney General, and we should have no faith in Sessions as an independent, unconflicted law enforcement official.
  3. There is one more move to consider carefully: Obama’s Attorney General Loretta Lynch can appoint a special prosecutor with jurisdiction over the illegal contacts or conspiracy with Russian officials. A special prosecutor’s term does not end with an administration. It is open-ended, so the special prosecutor would continue to serve during the Trump administration… unless the new Attorney General fired him or her, only for “good cause.”

I am not necessarily endorsing this unprecedented path. There is a good argument to be made that it is too soon to move so swiftly, that the intelligence materials are too questionable and too unsubstantiated. Lynch, a Democrat, appointing a special prosecutor could backfire as an overreach, perceived as partisan. Even if Lynch appoints a Republican-affiliated lawyer, maybe anything an “Obama” prosecutor finds will not be viewed as legitimate or reliable. Perhaps we should let the intelligence community and journalists do more of their jobs first, and then we should rely on options 1 (Congress) and 2 (Comey). But I am nevertheless going to explain how this process would work as a legal matter, because there are only eight days left to consider it.

First, keep in mind that we no longer have the statute that created the Office of the Independent Counsel, which had given us Kenneth Starr. Congress passed the Ethics in Government Act in 1978 after Watergate, and the act included the process for appointing an independent counsel or independent prosecutor. Under the statute, Congress or the Attorney General could refer a legal investigation to a special panel of the D.C. Court of Appeals, which could then appoint its own choice of lawyer with no fixed term and with an unlimited budget. The Attorney General could fire this independent prosecutor only for “good cause.” The statute was reauthorized twice (1987 and 1994), but after the Clinton impeachment, Congress let the statute lapse in 1999.

The replacement is the “special prosecutor,” most prominently seen with Patrick Fitzgerald’s investigation of the leaks during George W. Bush’s administration about CIA operative Valerie Plame, leading to scrutiny of Karl Rove and the conviction of Scooter Libby. The office of special prosecutor is governed by federal regulations, based on statutes found in 28 U.S.C. Sections 509-519. I’ll go step by step through the relevant regulations:

600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

Let’s start with Paul Manafort, the clearest case so far. He was Trump’s campaign manager. There is an obvious conflict of interest, particularly because the allegations spill over into the rest of the Trump campaign and the administration. Manafort’s actions overlap with the allegations about Carter Page and Trump himself.

600.3 Qualifications of the Special Counsel. An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.

I’m not sure if these same regulations applied to Patrick Fitzgerald in 2003, because he was a U.S. Attorney at the same time of his appointment. Perhaps he had to leave that office to accept the special prosecutor role formally. In any event, if Attorney General Lynch were to appoint a special prosecutor, he or she would have to come from outside the federal government to adhere to the strict letter of the regulation.

Now things get ever more interesting. I mentioned that President Trump would be in violation of the Constitution’s Emoluments clause on Day 1 because his hotel empire would be a vehicle for foreign payments over market value. Article I, Section 9 states: “No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” The word emolument is used elsewhere in the Constitution, and it clearly means “payment,” not a redundant synonym for present or gift. The problem is that it is still not clear how to enforce this clause, other than by impeachment Some argue that a competitor hotel could bring a civil claim for a constitutional violation, like a constitutional tort based on the unfair or corrupt business practice. It turns out that a special prosecutor can also have civil jurisdiction over this civil matter, and could seek an injunction to make sure the federal constitution is followed:

600.4 Jurisdiction.

(a) Original jurisdiction. The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.

(b) Additional jurisdiction. If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.

(c) Civil and administrative jurisdiction. If in the course of his or her investigation the Special Counsel determines that administrative remedies, civil sanctions or other governmental action outside the criminal justice system might be appropriate, he or she shall consult with the Attorney General with respect to the appropriate component to take any necessary action. A Special Counsel shall not have civil or administrative authority unless specifically granted such jurisdiction by the Attorney General.

Attorney General Lynch would have to explicitly grant jurisdiction over the Emoluments Clause. After Trump’s disregard of the conflicts of interest over his business dealings and foreign influence, Lynch would be within reason to grant such jurisdiction from the beginning. It is also conceivable that violations of the emoluments clause could constitute criminal bribes — if involving quid pro quo arrangements — and could raise questions about illegal conduct by American or foreign officials.

Two other regulations are relevant: § 600.5 gives the special counsel the power to request staff, and § 600.6 equates the special prosecutor’s “powers and authority” to that of a U.S. Attorney.

The special counsel does not have a fixed term. Instead, the special counsel serves with a certain degree of job security. He or she does not serve at the pleasure of the President or the Attorney General. The Attorney General can fire the special prosecutor only for “good cause”:

600.10(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

         There is a separate question as to whether the terms of DOJ officials generally end when the President’s term ends. The answer is no. 28 U.S.C. Section 515 and the regulations at 600.1 through 600.10 are silent on the special prosecutor’s length of term, making it an indefinite term. Given that the special counsel is equated with a U.S. Attorney as the regulations indicate in CFR 600.6, perhaps the term is implicitly four years. But a U.S. Attorney’s office extends four years, regardless of changes in administration. There is a tradition for U.S. Attorneys to submit letters of resignation at the end of an administration, but there is no legal rule for them to do so. The fact that U.S. Attorneys retain their jobs as a formal matter across administrations was the origin of the controversy for George W. Bush firing U.S. Attorneys in 2005. This document from the Bush White House in 2001 confirms that U.S. Attorneys continue to hold office after the change of administrations.

Thus, if Attorney General Lynch appointed a special prosecutor with a directive to investigate the Russian hacks, the Trump campaign’s contacts with Russian officials and possible implication in hacking, extortion, and quid pro quo deals, and/or the Emoluments clause, the only way to get rid of this special prosecutor would be if the new Attorney General can establish a case of “good cause,” a limited list of unprofessional behavior, not merely a difference of opinion or priority. But if Lynch appoints an independent, trustworthy lawyer, perhaps Trump would understand the benefit of having an independent investigation into his administration and also of the intelligence agencies (which he believes are maligning him) for signs of their illegal leaking or even manufacturing claims.

Should President Obama and Attorney General Lynch go down this unprecedented road? I am honestly not sure. But I suggest that it is worth discussing for the last eight days it would be possible. Whether or not it is wise, such a move seems to be legally permissible and would be a way to navigate the uncharted legal territory we are confronting in these very unusual times.

Leor on Sports: Why the Celtics Need to Trade for DeMarcus Cousins

By: Leor Handelsman

Ever since we traded Kevin Garnett and Paul Pierce to the Nets in 2013 for plentiful high draft picks, our future looked promising. Since then, we have traded for Isaiah Thomas and Jae Crowder, signed Al Horford, and drafted Marcus Smart and Jaylen Brown, therefore providing excellent, young talent. Although our balanced team is playing great, currently third place in the conference, we are no match against powerhouse teams such as the Cleveland, Toronto, Golden State or San Antonio. You simply can not compete for the title when your three best players are Thomas, Crowder, and Horford. There is only one team in history that has won the title without a first team all NBA player on the roster: The 2004 Pistons. But even though we do not have that superstar on our roster, we have the assets to trade for one. In the 2013 deal with the nets, we landed their 2017 first rounder, which is most likely going to be the first or second overall pick in the draft. Looking forward, there are two standout players that will most likely go first and second overall: Markelle Fultz and Lonzo Ball. The only problem: They are both point guards, the one position that the Celtics don’t need. In order to get the best value out of that pick, we need to trade it for a superstar.

Celtics’ general manager, Danny Ainge’s next task is to find that superstar. The few big-time players that have just begun their primes are the following: Anthony Davis, (who is locked into a contract until 2021 and is pretty much untradable), Jimmy Butler (the Bulls have made it clear that he is going nowhere), and Paul George (same situation as Butler). At this point, the Celtics are almost desperate to make a big splash soon. However, there is one player left. Demarcus (Boogie) Cousins. Although very few people have noticed, Boogie has been one of the best centers in NBA history. If you’re reading this, then you’re probably laughing and thinking that Jed Shugerman’s 15 year old child is insane. How could anyone compare a guy that has never made the playoffs to legends like Shaq, Chamberlain, and Kareem?
Well get ready, because I’m about to throw some crazy stats at you. In his first six seasons, Cousins averaged 20 points, 11 rebounds, 1.5 steals, and 1.2 blocks per game. Only two other players in the history of the NBA have put up those numbers in their first 6 seasons: David Robinson and Hakeem Olajuwon. Even if we take away the steals category, only 11 players have accomplished what Cousins has done, and they are all either Hall of famers or soon to be. This season, Boogie Cousins is averaging 28 points a game, and overall, his stats have improved all around. Also, Cousins will fit into the Celtics’ unselfish offense immediately, and is the perfect example of a guy you can build your team around. Somehow, despite having teammates that completely lack talent, Cousins has averaged 3 assists a game, and that number rises every year. His shooting range is also excellent for a big man. He surprised basketball fans everywhere when he made 73 shots from downtown in just 65 games, last season. This year, Cousins is shooting 37% from deep, and is knocking down almost 2 three-pointers a game. Cousins would be a wonderful addition to the Celtics roster.

The Celtics need to made an impact now. Piling up draft picks is a good strategy that has gotten them into the great place that they are in now. But at some point, we need to turn those unpromising assets into an all-star that will help our team. But why are the Celtics waiting? What player is going to come their way who has more talent then Demarcus Cousins? It takes a couple years to turn a 2017 draft pick into a star, but we never know whether Isaiah, Crowder, or Bradley will be gone by then. Trading for Cousins would make the Celtics an instant contender and potentially bring a banner home to TD Garden.

The Electoral College: What happens next? (Don’t get your hopes up)

The Electors vote state by state on Monday. I’ve been receiving a bunch of questions about the Electoral College and what happens next. The bottom line is that the Electoral College needs to agree on one single candidate with a simple majority of 270 votes to decide the election. If the 233 Democratic electors and at least 37 defecting Republican electors cannot agree on a single candidate, the presidential selection moves to the House, and the House will certainly pick Trump.


Let’s go step by step through the 12th Amendment, ratified in 1802 to clean up the mess after the infamous presidential election between Jefferson vs. Adams and then Jefferson vs. Burr. I hear there’s a Broadway play about it or something. Anyway, the original constitution’s electoral college process gave the presidency to first place and the vice presidency to second place, but the framers did not envision party tickets. Because every elector had two votes, the Democratic-Republican electors cast both ballots for Jefferson and his running mate Burr, and they forgot to coordinate to “spoil” one single vote to give Jefferson a one-vote lead over Burr. The accidental tie had to be resolved by the House, and that opened the door for Burr’s perfidy and 37 rounds of voting before Jefferson struck political bargains to win the presidency.

So here is the 12th Amendment, summarized and quoted:

Step 1: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President…. they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President … The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.”

The bottom line is that a candidate needs a bare majority to be elected. Today, that number is 270 out of 538. To block Trump from getting a majority, 37 Republican electors need to vote for someone other than Trump (and none of the 233 Democratic electors can vote for Trump).  But then the election goes to the House:

Step 2: “[I]f such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote… a majority of all the states shall be necessary to a choice.”

The House then votes from the top three candidates from the electoral college. They cannot just debate and debate and stall until they agree on Ryan, or Kasich, or Romney, or Cruz, or Jeb Bush, or whomever. They are locked into Trump, Clinton, and whomever might come in third on Monday. That’s not a lot of choice and not a lot of time to coordinate to find a single alternative.  Note that this vote is not a majority vote by members, but a vote by state delegation. The Republicans will have a significant majority in terms of members, but an even bigger majority of state delegations. I think the number is about 35 state delegations, but  I haven’t done an exact state-by-state count, but all they need is 26. There are a lot of Dakotas and Carolinas, but not a lot of Californias and New Yorks. [Update: my rough count of House delegations is 32 Republican states, 17 Democratic, 1 tie.]

I want to be clear: it is worth the effort to delay and obstruct Trump’s election. It would be great to keep undermining Trump’s legitimacy by forcing the race to go to the House, and it would give the public more time to find out a few more details about the Trump campaigns involvement with Russian hacking and Trump’s business conflicts of interest, etc. But realistically, the House Republicans are not going to choose Clinton or a third-place finisher over Trump. Some of them might not like Trump, but they dislike Trump for very different reasons. Some are tea partiers, some are libertarians, some are free traders, some are establishment conservatives. They are not going to agree that Clinton or (let’s say) Paul Ryan or Mitt Romney would be better. And if they would prefer Ryan or Romney in the abstract, these House members would be petrified of an uprising against them: in the next primary or worse. Moreover, it’s not clear which alternative candidate would agree to serve as president under these conditions of backlash. And additionally, there is not enough time for these Republican defectors to coordinate and agree which alternative candidate would 1) have the best chance of winning the House, and 2) agree to serve.

So in order to avoid the House vote entirely, the 270 electors (233 Democrats and 37 Republicans) would all have to agree on one single candidate, and that candidate would need to be willing to serve after such a shocking turn of events.  Clinton is not going to win 37 Republicans. Kasich, Ryan, or Romney are not going to win all 233 Democrats with so little time left to convince them all. And moreover, many of those 233 Democrats and 37 Republicans would have to be willing to face fines and penalties in many states for voting against the state’s popular majority result. There is not enough time to assure them that this defiant vote is going to be effective.

There are two more things to remember: 1) Two Republican electors already decided they could not vote for Trump. But instead of standing up and building a group, they cowardly resigned.  2) Very few electors have defied their state’s vote in American history. The most “faithless electors” were in 1876, but that was unusual, in that Greeley, the losing presidential candidate, died between the election and the electoral college meeting, and the electors did not want to vote for a dead guy. In the twentieth century, a small number of the “conscientious electors” defected because they preferred a more racist candidate, and a very small number were voting a protest against the electoral college itself (one elector in 2000 with Bush v. Gore, when you might have expected more).

Larry Lessig at Harvard claims that 20 or 30 electors, behind the scenes, have expressed interest in defecting. I hope he’s right. Lessig is a brilliant scholar. But there is a big difference between asking questions and actually going through with it, and we would be hearing more about their plans or coordinating around a single alternative candidate if they were very serious. I don’t think this movement is going to succeed if it is totally under the radar. And if it seems like a backroom conspiracy, those electors might be less likely to follow through on Monday.

I would love to be wrong. I would love to be even more shocked by Monday’s electoral college results than I was by the Nov. 8th election day results. But I just want everyone to be realistic, and that partly means being realistic about the cowardice and madness of the modern Republican Party’s leadership. If they are willing to cover up for Vladimir Putin, they are willing to do almost anything to get Trump into the White House.

[Update on Dec. 15: I’ve heard a few people hope that the Electoral College gets postponed somehow. Who has the power to postpone the Electoral College? Not the Obama administration. The problem is that Congress has already passed a statute setting the date for the Electoral College (“the Monday after the second Wednesday in December,” so it’s always mid-December). Here’s the congressional statute:
To move the date, Congress would have to quickly revise that date, and there is neither the time nor the will to get that through a hyper-partisan pro-Trump Congress. It’s not up to the Obama administration to change it without Congressional approval. And it’s not up to the federal courts. It’s theoretically possible, but with the recounts settled, I see no legal foundation for the courts to intervene, even if they could find a Constitutional basis for ignoring the statute or inserting a new constitutional interpretation to avoid the date). The Courts know that the law creates a solution for such a problem: not a back-up date for the Electoral College, but a back-up body, the House of Representatives. It’s fine to make all the phone calls you want, but there are going to be many more crises and more activism over the long haul. We need to stay focused and engaged in sustainable, practical ways, too.]


Can the Senate confirm Merrick Garland (or Hillary Clinton) to a life-time seat on Jan. 3d?

David Waldman at DailyKos floats this procedural twist, not for an almost worthless one-year recess appointment to the Supreme Court, but a full permanent appointment. He argues that for a few minutes… or a few hours… on Jan. 3d, the Senate will have a majority of 34 Democrats and 32 Republicans before the newly elected/re-elected Senators are sworn in, and VP Biden could preside over a rump Senate. According to Waldman, this new “Senate” could create new procedural rules in that moment, especially eliminating the cloture/filibuster rules. Barack Obama will still be president with the power to re-nominate Garland. Or as I’ve suggest, Obama could nominate Hillary Clinton, to make her Justice Clinton an act of poetic justice.

However, Sean Davis, an expert on Senatorial procedures and a former Senate aide, first turns to the Constitution to find a major textual problem with this approach. The Twentieth Amendment states that the terms of the new Senators begin immediately when the old Senators’ terms expire:

“The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.”

I’ll add that this amendment was drafted and ratified to deal with the problem during the Great Depression that FDR was elected in the middle of an economic crisis with a mandate for the New Deal, but Hoover’s term continued until March under the old timeframe, leaving a lame duck in charge and stalling democratically approved solutions. The idea of the amendment was 1) to rely on a fixed constitutional date, rather than congressional statute, which implicitly makes the dates less able to be politicized, and 2) to speed up and streamline the transition to a new Congress and a new President. Based on the text and the purpose of the Twentieth Amendment, the new Senators become Senators immediately at noon on Jan. 3d. There is no gap in time when the new Senators are not full voting members of the Senate, regardless of the oath.

Second, Davis also points out that there is a contradiction in Waldman’s argument. Waldman argues on the one hand that the Senate is not a continuing body, so it can re-write new procedural rules at noon on Jan. 3d. But if it is not a continuing body, what power does it have as a rump Senate without the new Senators? It only becomes a legitimate new Senate with the new Senators included. Waldman’s rump Senate of 66 Senators is not a Senate yet at all if it’s not merely a continuation of the old Senate. Ultimately, the Supreme Court would have to rule on the legality of Garland’s confirmation in the next year, and my bet, given these observations, would be an 8-0 ruling that it would be invalid (Garland obviously would need to recuse). Then Garland would be off the Supreme Court, and off the important D.C. Circuit, and Trump would get to fill those two seats anyway. Zero steps forward, two huge steps back.

Davis cites a number of established Senate rules that prohibit Waldman’s procedural steps, and he makes a strong argument that the Senate rules are continuous from one Congress to the next. That’s an important point for both sides. Democrats desperately need to preserve the filibuster rule for the next four years (and maybe longer). The filibuster will preserve the Senate Democrats’ power to block Trump’s SCOTUS nominees  and protect key parts of ObamaCare, and who knows what else.

So I’d add my third point: If Waldman is right that the Senate can write new brand new procedural rules, the filibuster would be vulnerable to elimination. And if Biden uses new rules to ram through Garland, the GOP Senators would kill the filibuster. McConnell might kill the filibuster anyway, but I think that possibility is low right now. The chances of losing the filibuster go from low to 100% if Biden pushes through Garland. I’d rather have the Democrats use the filibuster as aggressively as the Republicans have, rather than lose the filibuster in return for the relatively old Merrick Garland. Since when is a pro-death penalty conservative nominee worth such a price from the left?

Finally, a fourth point: we don’t want Biden to risk so much political capital and so much support by pulling this move. Biden may be a good nominee to run against Trump in 2020. I’m not suggesting he is the best option, but at this stage, he is one of our options with the gravitas, experience, and appeal to the Midwest working class to defeat Trump. That might be the best reason not to pull this move: defeating Trump is more important than any single office, seat on a Court, or piece of legislation.