Michael Waldman Transcript — Oct. 9, 2025
Kevin Johnson/NPF (00:00:00):
So a recurring theme of this conference, as you all know and you all are very familiar with is journalism’s urgent role in democratic institutions which are now under threat like never before. And we’ve heard that sentiment come through time and time again with each panel. Michael Waldman knows the high stakes of this challenge like few others. Michael is president and CEO of the Brennan Center for Justice at NYU School of Law, a nonpartisan law and policy institute that focuses on improving systems of democracy and justice. The Brennan Center is a leading voice on voting rights, money in politics, criminal justice reform and constitutional law. Michael, a constitutional lawyer and writer, is an expert on the presidency and American democracy and has led the center since 2005. He was a member of the Presidential Commission on the Supreme Court of the United States in 2021. I could go on with Michael’s bio for some time, but I’ll allow you to peruse it in the information that we’ve provided, but mostly I want to welcome him to our conference. He’ll have some remarks and then we will open it up for questions after. So please welcome Michael Waldman.
Michael Waldman/Brennan Center for Justice (00:01:47):
Thanks. I think I’m more visible if I’m up here. Hi, everybody. Thank you so much. I know I am at the tail end of a lot of speakers and it’s exciting for me, but I hope not taxing for you. I’m really thrilled to be here. The role you play right now is more vital than at any other time in memory. The role of local news of nonprofit news is ever more important, especially as the big legacy media organizations pull back from their responsibility to tell the people what’s really going on. I want to introduce, because I’m going to be calling on her later, my colleague Rebecca Autrey from our media team. Among other things, we are eager to be of help to all of you in your work and what you do, and I should say I come from a family of journalists. My brother Steve Waldman has spoken before the National Press Foundation on numerous occasions.
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He runs the organization Rebuild Local News, which is, as I gather, sort of a trade association for local and nonprofit newsgathering, and co-founded Report for America. I don’t know if there are any Report for America fellows here. Oh, that’s good to know. My mother was one of three women out of a class of a hundred in the Columbia Journalism School class of 1953. So one of the songs she used to teach me when I was a little kid was a song about the “I have five little helpers. They taught me all I know. Their names are who and what and when and where and why and how.” So I’m not a journalist, I have been a writer, but I hope I understand the challenges you all face at a time when access to information is being restricted, when propaganda is being asserted and when breaking through the din is really hard.
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As you just heard, the Brennan Center for Justice is a nonpartisan law and policy institute. We work as we see it, to strengthen, to reform and when necessary to defend the systems of democracy and justice in this country so they work for everybody. We’re affiliated with NYU School of Law, which is a great resource for us. We were started 30 years ago by the family and clerks of the late Supreme Court Justice William Brennan when he left the Supreme Court and among many other things, he was one of the great justices in the Warren Court, which was a time very different from now where the Supreme Court was very active but in some ways was almost beyond the country playing a different role and whether that was an excessively assertive role is one of the things we debate all the time. But Justice Brennan, among his many achievements, was the author of New York Times v. Sullivan, which as you know is one of the protections for robust debate and free media in this country that is increasingly under explicit assault.
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We do believe this is a moment where we are in a great fight for the future of American democracy, that the stakes really are that high, that the democratic rollback that we’ve seen in a lot of countries is certainly something we are all in the middle of and it’s a challenge for you and for us to understand it, to narrate it, to separate the noise from the signal, to understand what’s really important and to make it real, tangible and understandable for people who are not following this professionally, not following it day by day. I’ll mention a few of the things that we are working on that we are focused on that we think have both great constitutional and national import and also very specific implications in communities and for people and I want to really as much as possible, both talk about hear your comments and your questions, but also lay out for all of you how we can be helpful to you. I should mention the Brennan Center is a nonpartisan organization. We have a staff of 190 including for example, 15 social scientists, enormous data sets around voting and all kinds of other democracy and governmental issues, a lot of lawyers, a lot of journalists, and so we hope to be helpful to all of you and want to be able to continue in that role.
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I’ll mention three great challenges right now facing the country that I think should be of particular import. One is what is the great constitutional issue of our time, which is the dramatic and I would say radical effort to expand presidential power. With all of that means – and I know you’ve heard some of this, you’ve heard from police chiefs and mayors about some of what they’re facing in their communities – but this is a really big deal, and I think the public really understands it and increasingly cares about it. The Supreme Court term that began on Monday will be a very significant test of a lot of this, what is particularly new, what is particularly troubling and it’s really important that we find ways I would argue not to normalize it, not to just get used to it, is the calling of emergencies as a basis for presidents to be able to use the tools of power that have been lying around often dormant for years and override local government and override the laws.
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President Trump has declared many more emergencies in the last eight months than most presidents do in their entire four or eight year terms. These laws have been on the books for the duration of the country. There are few barriers on the abuses of power that can come with the use of those laws. They’ve just been held back for a variety of reasons by other presidents who understood the risks of using them. I mentioned a couple that are worth just being aware of the Alien and Sedition Act. At the last time I thought about the Alien and Sedition Act of 1798 to be perfectly honest, was high school history and it was on the exam and this was a kind of a notorious set of laws to suppress, dissent, suppress the free press and other things that was passed and signed into law by President John Adams, Thomas Jefferson called it the Reign of Witches.
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There’s one part of the Alien Sedition Act that is still on the books. It’s the Alien Enemies Act. It is a wartime statute that requires our country to have a declared war with a foreign government. It’s only been used three times in the war of 1812 in World War I and notoriously in World War II where it was used to detain Japanese and other nationals. It is now being used by this administration to detain and deport Venezuelan migrants and non-citizens without due process and the courts have thumped around on this. There’ve been a lot of lawsuits, but it continues to be used. But the courts have finally begun to weigh in on this including the Fifth Circuit Court of Appeals Federal Court, which as you may know is the most extremely conservative federal court in the country, said, no, this is illegal to use the Alien Enemies Act for this.
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This is a case that’s going to go up to the Supreme Court. There are other cases that will be before the Supreme Court as well testing whether the courts as an institution or whether Congress will stand up to this set of extraordinary assertions of executive power that we’re seeing. The courts are always very reluctant to get in the middle of this kind of stuff. They don’t usually want to challenge the executive. They don’t want to get in the middle of what might be a fight between the other branches and the US Supreme Court this term we thought there would be these great fights where they would have to either stand up to President Trump or Cave and they found a third path which was to give him what he wanted quietly and hoping nobody would notice. They call it the shadow Docket that is a kind of a new and scary name for something that’s been around for a while.
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It’s when they hear a case on an emergency basis. What it gives them the ability to do is to make a ruling without explaining why they’re making the ruling. Very often, very early in the course of litigation, reaching down to overturn something some judge did. Very often they don’t put their names on the decisions, they’re called procuring, but that means they just don’t want to put their names on it and very often there isn’t a public debate over what’s going on. And in those cases, which have been the most significant cases this year in front of the Supreme Court, the Trump administration in its assertions of executive power in its emergency appeals to the Supreme Court. They’ve won 85% of the time mostly without the justices putting their names on the cases that now is not really going to avail them right now because the term has begun as of Monday, the big rulings, they’re going to be big arguments, I’ll just flag for you, and these are all things that have local implications as well as grand constitutional dimensions, but these are all around this issue of presidential power. One has to do with the tariffs. So the very significant Liberation Day worldwide tariffs is the center of the current administration’s economic policy and when President Trump announced this in March and the world economy did backflips and it’s all been very crazy since then, people might have said, well, wait a minute, can Presidents do that? And the answer is no. They can’t. Presidents cannot unilaterally set tariff rates any more than they can unilaterally set income tax rate, which they of course also can’t.
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Effectively, the administration is claiming emergency powers to do this. Every federal court that has looked at this has said that what has been done with these tariffs is illegal. Now on November 6th, the Supreme Court is hearing the case. It’s a case brought by conservative organizations, in part, and small businesses. We have filed friend of the court briefs, amicus briefs in these cases on the issue of emergency powers. But this is something that is not ideological. It’s been something that people from across the political spectrum very concerned about this exertion of presidential power, this big tax increase. And of course, as you know, these taxes affect local businesses. They affect manufacturing that used aluminum imported and all these other things. So this argument that’s going to come up before the Supreme Court is going to be a conservative law professor Michael McConnell, who was a federal judge from Stanford, said he thinks this is the biggest case on presidential power since the case involving Harry Truman’s attempt to seize the steel mills in 1952.
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Finding a way to tell that story so that it isn’t just abstract law professor stuff, but local businesses whose livelihoods are going to be very much affected by whatever the outcome is, I think is a real challenge, but I think people are very, very interested in that. There are other cases that will be before the court also that deal with the question of who has control over the power of the purse. The constitution gives Congress the power of the purse, the administration, and there’s always a lot of fighting back and forth between Congress and president, whoever they are, all parties. This didn’t start here, but this administration has been unprecedentedly aggressive in arguing it can fire people, fire federal workers, stop spending money that was ordered by the law by Congress to be spent and even in the case for example of U-S-A-I-D and other agencies shutting down agencies without Congress on these issues, the Supreme Court has often been very deferential to presidents.
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Again, this is the Supreme Court. This is the same body of justices of course, who just a year ago issued the ruling that was unprecedented in its scope, giving presidents immunity from criminal prosecution for illegal acts done while in office. So this court is not temperamentally inclined to stand up here, but the power of the purse is the heart of Congress’s power and if your members of Congress don’t assert their own role here, they’re an advisory body, not actually the sovereign entity that they were intended to be. If you look at the drafting of the constitution, they all assumed that it was Congress that was supposed to be the lead branch in the government, not the presidency and not the courts. Sooner or later, Congress will step up to its role, but right now this is a big set of cases that again have specific implications in communities. It is very possible as well that the issues around the use of the military domestically will come before the court. Some of this is kind of new. I mean you all know that this has unfolded with increasing velocity in the last two months.
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The Posse Kamata Act has that come up at all? The posse Kamata is the law. We won’t have too much Latin, but that prohibits the use of the military domestically for all kinds of obvious reasons. The military is for defending the country against foreign enemies, not for domestic use. There are all kinds of risks with the use of the military domestically, whether in Los Angeles or Portland or now Chicago or all the other Memphis, the other cities where either the Marines as in Los Los Angeles or the Federalized National Guard or other troops are being sent in as well as the vastly increased and growing ice and CBP ranks of masked armed federal agents. The rationale keeps shifting around about why these troops are being sent in and they’re being sent in to protect federal facilities. That’s actually the strongest legal argument. Are they being sent in to do immigration enforcement? Are they being sent in to fight local crime, which is the job of local police, not the federal government? Are they being sent in to quell an insurrection which doesn’t exist?
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I think given the shifting rationales, the genuine underlying rationale of using the troops is to use the troops, is to show dominance, is to stir the pot, is to create fear, especially among immigrant communities and I guess one of the challenges is these things are happening in city and then another city and then another city. There are hyperlocal stories in a number of different places, but at least our sense strongly is that people are really following this. The issues of abuse of power are rising up very much in the polls and other things as central topics and I would not be afraid to bring the broad constitutional questions in front of your readers and your followers because I think people get this and this is not really about necessarily what kind of immigration policies we should have or anything else, but I think people do recoil from troops and boots on the streets.
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So this is all around these issues of presidential power and the fight over what kind of constitutional system we’re going to have Related to that, I’ll mention the other big thing that we focus on, and as you heard, the Brennan Center has especially been focused on the systems of democracy and how they work and to make sure that they work for everybody and these systems have been under enormous stress in the last several years, whether it’s redistricting money in politics and voting, there’s a lot going on and a lot of pressures. And one thing that’s of particular note is when you look in particular at, we are very focused on making sure that in 2026 and beyond that the election, which is so critical will be free and fair and secure and accurate, and the election system came under a lot of pressure in the last half decade.
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I mean, think about COVID with the threat to not be able to run elections basically in the massive rapid changes and how elections had to be run, violence, threats of violence, disinformation, foreign hacking, all this stuff. And what’s really noteworthy is despite all that pressure because of a lot of work by a lot of elected officials, excuse me, election officials, most of them not elected at the state and county and local level, the system held the elections really were free and fair and secure. The 2020 election in the middle of COVID had the highest voter turnout in a hundred years and the Department of Homeland Security under President Trump said it was the most secure election in American history. The guy who said that, by the way, Chris Krebs was fired and now is under investigation for having said that, but it was accurate. This didn’t just happen and we have come to understand that these election officials who are in your communities, they don’t have glamor jobs.
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They didn’t sign up for this. They didn’t sign up for knowing that whatever decision they made would subject them to abuse, but they were playing just an extraordinarily important role. And one of the things as we’ll describe that we can do is connect you with them if it’s helpful so that people, we have found that given all the disinformation, all the myths, all the rumors around elections, the best voices to explain how well they’re being run and to give people the confidence in the tally and the confidence in the vote is not lawyers based in New York City, but election officials in the local communities who are very much of the community. And again, as I say, it’s very much folks from both parties or no party at all.
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So that gives us a considerable amount of confidence that the 2026 election will be secure and safe and as free and fair as it can be. We have all kinds of issues relating to voter suppression and racially discriminatory voting laws and other things that keep it from being fully free and fair, but there’s reason to think it will be strong, but there is one new factor that it’s important. I think people understand and to find a way to translate that again to the folks who rely on you, which is for the first time the federal government itself is a force to undermine the election, to undermine the integrity of the election, to undermine trust in the election. One of the publications we’ve done in the last few months looks at the Trump administration’s systematic campaign to undermine the election and some of it is things you might’ve heard of.
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Some of it is stuff that you probably don’t know about that’s pretty technical. Everything from there was a purge of the election security operation of the federal government firing of all these experts who were both cybersecurity and physical security experts who state and local election officials really relied on and there has been a robust effort by us, by other organizations from across the political spectrum to find a role for these folks to be able to help make sure that from the outside of the government to do what they had done to make sure that local officials had the tools they needed to protect the elections. There was an executive order from March signed by President Trump that purported to take personal control by the president in effect of the election system. Now the constitution is very clear. States run elections in the United States, Congress has the power to pass laws to set national standards.
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The president has no role under the constitution on purpose in running elections. This is something where the Brennan Center representing the League of Women voters did go to court and a court very quickly and joined this, but one of the things it did was to say that in order to register to vote with a federal form, you had to produce a passport to prove your citizenship. Not even a birth certificate. Now a passport, about half the people in the United States don’t have a passport. Birth certificates have their own problems because people don’t know where they are or their names have changed because they’re women who got married or whatever the reasons are, but this would’ve just been devastatingly restrictive in terms of who could vote. A court blocked this, but there continue to be all kinds of efforts to push to get something like this to happen. There also are demands in that executive order demanded that states make voter roll information with a lot of sensitive private stuff in it available to Doge because what could go wrong with that? Right? That got blocked, but nevertheless, the Justice Department now has continued and I think Becca, tell me if I’m getting the account right, but 27 states have received demands for the voter rolls from the federal government to create a national voter database, which we expect they will use to claim, oh, there’s a lot of non-citizens voting or something like that.
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The states have tremendous legal power to refuse to do this. One of the things we do is we have a tracker showing which states have gotten what request and this is the kind of thing we can do to help you particularize and localize it. This kind of thing is going to happen all between now and the election. No doubt you’re all following or aware of the redistricting fights that are going on. It’s important. Again, this one is both parties have gerrymandered since the beginning of the country when they can. I always point out that in the very first, it didn’t start last week, it didn’t start in Texas or California. The very first congressional election, Patrick Henry drew a congressional district to try to keep James Madison from getting elected to Congress so they had gerrymandering even before they’d invented the word gerrymandering. It’s grown more potent in recent years because of digital technology and the ability to use data files to really slice the electorate up.
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But what’s really new this year is it’s really supposed to happen. I could fall off the side. That would be exciting. That hasn’t happened in the last three days, has it? Good. I don’t want to be the most memorable speaker that way. It’s supposed to happen every 10 years. The census is in the constitution so you can draw among other things so you can draw district lines and the census was kind of a radical innovation at the time. It was not a typical thing to count up all the people. What started in Texas a few months ago is very unusual because it’s in the middle of the decade and as you probably know, Texas is redrawing its map explicitly to benefit one political party, five seats in this instance for the Republicans at the expense of communities of color, at the demand of someone who doesn’t live in Texas and in mid decade, and then that has set off a partisan arms race.
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California has proposition 50 on the ballot. That is the response, which is to redraw California’s maps despite the fact that there is an independent nonpartisan redistricting commission that drew the maps to say that if Texas does their thing, then California is going to draw basically an equal number of seats to benefit the Democrats. You’re seeing this kind of thing play out all over the country. Although the fact is that those are the two big states with the most congressional seats at play, and of course there are local and local and state maps being drawn to. I think with all of that, and it can really seem very just like a food fight, finding a way to show people how representation matters and that it’s not only about congressional but also school district, city council and other things. And there are other cases in front of the Supreme Court this term where they may finish the job of gutting the Voting Rights Act of 1965 that will very much affect communities and how they’re represented.
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These are just some of the things that are underway right now. These are some of the fights that are happening at one level. They’re more arcane, more technical, more legalistic than what might typically be of interest to people. But we have felt, at least our sense is there is an increasing and a growing concern about these things that stretches across party and ideological lines. If you look at the polls, polls are not perfect. If you look at the polls due process, abuse of power, corruption in the u gov poll in August was higher as an issue than inflation. The third, it was in corruption, inflation and abuse of power as the top three issues. People are paying attention to this stuff. They’re not paying attention particularly because the politicians, Democrats, Republicans are doing a very good job of narrating it for them, but what you’re conveying to them, they’re really hearing.
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So I think the hard part, the next part is to draw some threads so they understand how it all fits together. We can be helpful, we hope on specific things where we can be looking at the data, providing background. We have a lot of stuff on our website and other things, and we’ll make sure Becca will join me and we’ll talk about how we can be specifically useful. But anyway, that’s what’s on our minds right now at this moment of challenge and crisis. We’re fortunate, I guess, to be able to work on this stuff and you are fortunate to be able to cover it and someday we hope to be less fortunate. Yes. Whitney,
Katarina Sostaric | Iowa Public Radio (00:29:03):
Go ahead. Hi, I am Katarina. I report for Iowa Public Radio. A couple of questions about election policy. You mentioned the thing about the federal government requesting voter files from states. When I’ve asked the Iowa Secretary of State about that, he said that’s a public record anyway, so it’s not that big of a deal that people can request that. So I’m wondering what your thoughts are on that. And then also I would like to hear your thoughts on the increasing use of the save system to verify voter citizenship.
Michael Waldman/Brennan Center for Justice (00:29:32):
Sure, and Becca, without putting you too much on the spot, if you could come up here because a lot of these are things, the answer to better than I do. Some of the records are public and some of them involve personalized data and a lot of states have resisted this. This was tried by a commission in 2017 and at that point, state secretaries of state from all over the place of both parties resisted because of the personal data that was involved. The other challenge, and you raised the save system, and that’s really a big part of it. It seems like one of the goals here because there is no federal, unified centralized database of voters in the United States, and that has been on purpose because we have this state-based system. The SAVE is a federal database purportedly of citizens, and the idea we think is that they’ll check these state voter rules against the SAVE database and go, aha, look, all these people are not properly on the rolls.
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The problem is the SAVE database is really, really flawed. It’s full of errors. All the data that it gets from the other parts of the federal government, a lot of it is inaccurate. And the federal government itself has said that. So the challenge will be, again, in terms of how you cover it is if a year from now there’s a big grand announcement from DHS or something like that saying, we have looked at this and we have found all these flaws, and so we demand therefore that the voter rolls be purged of what we believe from the safe system to be these non-citizens. And it will sound very real and official, but it’s actually kind of a very inadequate flaw and somewhat phony list. I’ll mention, is there anyone here from Louisiana?
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I can’t see you. Oh, all the way. Oh, hello. So the secretary of state of Louisiana, who’s a Republican, did a big study on this very issue and released the results a few weeks ago, and she looked at the voter rolls of Louisiana and of course Louisiana has a rather storied political tradition. Governor Earl Long once, former years ago, Quip, he said, when I die, I want to be buried in Louisiana because I want to stay active in politics. There’s an assumption there’s a lot of fraud and a lot of people, dead people voting and that sort of thing. She looked at these roles and she announced that they had found 74 examples of what they believed to be non-citizens voting in Louisiana in the last 40 years, and we counted at least 74 million votes cast during that time. And she said to her own surprise, basically it turns out non-citizen voting is not actually a systemic problem in Louisiana, and we hope that Congressman Mike Johnson, the speaker of the House of Louisiana, heard that since he’s been pushing the legislation premised on there being an epidemic of non-citizen voting, there can be that kind of analysis done in each state.
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But so the problem is both the privacy at the state level, but then the kind of misuse of it for polemical purposes that we expect to happen at the other end at the federal level. Hi,
Ethan Weinstein | VTDigger | Vermont (00:32:46):
Thank you for being here. Sure. My name’s Ethan Weinstein. I work in Vermont and I write for a nonprofit, and we, like many other nonprofits, have relied on communicating with our readers and donors about how our work supports democracy. I read some recent reporting, I think in Neiman Lab about how, while as you say, Americans really care about our democratic institutions, they don’t like to be talked to from news organizations in this way saying, our work is what is keeping this backbone of our country alive. So I’m wondering to the extent that we rely on our readers to give us money to do this work, do you see different ways we should be communicating about the value of our reporting and how it connects to democratic institutions?
Michael Waldman/Brennan Center for Justice (00:33:44):
It’s a good question. It’s a challenge. As I said, we’re a nonprofit. We don’t get any money from either NYU or the government, so we face similar institutional challenges. I think democracy is a somewhat vague and overused term at this point, and it became somewhat partisan in its use in the last few years, so that when President Biden said democracy is at stake, what he seemed to be saying is Vote for Joe Biden, and that was about the substantive depth of it. I think as with all of this stuff, finding a way to connect the abstract institutional challenges to how things play out in people’s lives and people’s communities. I mentioned the spending cuts that are the subject of a lot of these constitutional fights in front of the Supreme Court. We work on the issue of money and politics and showing people not just that there was nearly $2 billion in dark money in the last federal election, meaning undisclosed sources, but that this is why they drug prices are high or this is why there’s chemicals in their water or whatever it is.
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I do think that there’s a considerable distrust of national institutions right now and a considerable disquiet in the country looking at the 2024 election. The thing that strikes us, strikes me as so particularly significant is this was the first time since the 18 hundreds that the incumbent party lost the White House three times in a row, different parties, Democrat, republican, Democrat. There is a real basic disconnect people have with national politics, with the effectiveness of government. It’s economic, it’s social, and I think that they’re more likely to, I think there is a hunger to see local institutions, state-based institutions as a more trustworthy way than what they’re getting out of the national news, which is all partisan, and we all know what the challenges and problems are, but it’s a,
Lauren Gibbons | Bridge Michigan (00:36:02):
Hi there. I’m Lauren Gibbons. I’m a reporter with Bridge Michigan, and I’ve used Brennan Center as a resource many, many times during the redistricting process, so thank you for being a resource. My question is about the many, many multi-state lawsuits against the Trump administration that are percolating. Our attorney generals involved. I’m sure anyone else in here from Democratic states have covered a lot of these issues, and I’m curious if any of these challenges to either federal funding or education or some of the requirements to get certain things, do any of those stand out to you or are really illustrative in telling some of these stories as we kind of parse through which lawsuits to really dig into?
Michael Waldman/Brennan Center for Justice (00:36:48):
Yeah, I think that the ones around funding are easiest to understand, and it’s important to note, and you’re right in focusing on the attorneys general. The federal courts have been very stingy in recent years and decades, even around the issue of standing, in other words, who gets to bring a case? You can’t just say, oh, I don’t like this policy. I’m going to go to court. And they’ve actually been reluctant despite the constitutional magnitude of a lot of these recent cases. They’ve been reluctant to let a lot of private groups or private citizens, but they really have taken states seriously. And so a number of the cases around tariffs and around early on in the first week of the administration, pardon me, there was a funding freeze that just went into effect for overnight that affected a lot of, especially state grants to NGOs and the states have had the standing to bring those cases.
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So we are very often involved in the front of the court briefs in these cases, the amicus briefs which bring in outside scholars or voices. We’ve been doing a lot of that, for example, on the funding freeze cases around scientific research and other kinds of grants that have been cut off. We have web on our website, brendan center.org. There’s a dedicated page to this stuff, and you can find a lot of that there, and we’d be very happy if we have the ability to connect you and others to local folks. But I think the ags have a particularly strong role to play, and they’re all working. A lot of them are working with each other, as you may know.
Taylor Vance | Mississippi Today (00:38:45):
Hi, my name is Taylor Vance. I’m a reporter with Mississippi today, a news outlet based in Jackson, Mississippi. Mississippi, of course, has a very ugly, well-documented long history of racism, racial discrimination at the ballot box. The two primary ways that have been used to sort of combat that is with the Department of Justice dragging the state, kicking and screaming into compliance or with civil rights organizations filing lawsuits under the Voting Rights Act. Well, just recently over with a case about state legislative districts, three Judge Panel ruled that we had diluted black voting strength in our legislative districts. That case has been appealed because it’s a three judge panel. It’s gone directly to the US Supreme Court. Our State Attorney General is asking us Supreme Court to recognize that there is no private cause of action under section two of the VRA and I believe there’s also that case from the eighth circuit that’s pending before the US Supreme Court. So I guess my question would be what is your response to that, and do you think that the US Supreme Court will keep that part of the RA intact?
Michael Waldman/Brennan Center for Justice (00:40:13):
So my response is it’s even worse than that. So as you absolutely correctly, note, the Voting Rights Act of 1965 was in many ways the most successful civil rights law. It’s key provision was Section five, under which states with a history of discrimination and voting, had to get permission in advance pre-clearance from either the Justice Department or federal court to change voting rules. And it had a huge pro-democracy and effect all over the country, but especially in the South, that was the subject of the 2013 case, Shelby County. But in Shelby County, when they made that ruling, they said, don’t worry, there’s still section two and Section two, as you said, is where you can sue after the fact for against discriminatory voting policies. Now, the Supreme Court has cut back on that too already. In a case called Bevi a few years ago, they made it much harder to use section two being, in other words, to bring lawsuits against restrictive voting rules, but it still very much is in place and is the central protection against racial discrimination in redistricting and the structure of government and local government all over the place now the eighth circuit, but some other federal courts have started to say, oh, it turns out that you cannot, there’s no private right of action.
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Citizens, civil rights groups, voters cannot bring these cases only now we’re discovering this after 50 plus years. But that was wrong. Only the Justice Department can do that. This is entirely ungrounded in law and history. It would be catastrophic for voting rights in this country. And there’s some cases where when the eighth circuit ruled that way, I think that it was not appealed to the US Supreme Court in part because I may be wrong on this because folks didn’t know how that would go, but now the Supreme Court in a basically unrelated case said, oh, we’d like you to argue the case. And by the way, is the Voting Rights Act itself entirely unconstitutional? Could you tell us that? And this is around that the brand started analysis, 93% of the voting rights cases were brought by private parties, by the naacp, by private citizens.
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And it’s not just around congressional maps, school boards at large districts and city councils. All of those are where this stuff has the biggest impact. That is stuff that is both outside the gaze of the national media, but very much within your gaze. If the Supreme Court makes a very unwise decision on section two in the cases that are in front of it right now, one analysis that I saw, it wasn’t by us, said that this could affect again in Congress 16 seats because the lines could be redrawn in a way that disadvantaged voters of color. We have a lot of material on this on our website. As I said, we have a lot of social scientists. We have the biggest voter data file anybody has in the country. I think about a billion records in an actual supercomputer in our office with good air conditioning. I’m assured, and they tell me it doesn’t need to be on the cloud, and I don’t know any better, but our social scientists are happy to really go in detail on this stuff. This is an area that they’re very knowledgeable about and eager to talk about.
Whitney McKnight | The Edge (00:44:01):
Hi, this is Whitney McKnight from the Edge in Madison County, Kentucky. I personally have used the Brendan Center before. I love you guys. So thank you very much for being here.
Michael Waldman/Brennan Center for Justice (00:44:11):
Thank you for what you do.
Whitney McKnight | The Edge (00:44:12):
I have a two part question. First I would like to ask you, what is your evidence for the statement you made that Congress is going to step up and reclaim their power to the purse? And the second part is how is Congress going to act differently now that Mitch McConnell is leaving?
Michael Waldman/Brennan Center for Justice (00:44:29):
The evidence is the, well one could say is the triumph of hope over experience. It is highly unusual for Congress. So the whole premise of the separation of powers is that the three branches each are, as they said back then, jealous of their prerogatives. And Congress in the past has been that way under both parties because again, they become merely an advisory body if they don’t take advantage of controlling the power of the purse. What’s changed is the hyper-partisanship that we see, obviously under Trump, but also under Biden and other recent presidents. And it used to be that both political parties were patchworks of different regional and ideological factions, and the Democrats were the white Southern segregationists and the northern social Democrats, and the Republicans had the liberal Rockefeller Republicans in the Northeast and the isolationists in the Midwest, and now the Democrats are the left party and the Republicans are the right party.
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And for the first time, for the first time in the last few years, the most conservative Democrat is to the left of the most liberal Republican in Congress. Nevertheless, you do see, especially in the Senate and sometimes in the House because the margins are so small, a real struggle to hold their party units together. And I think that some of this will just depend on the outcome of the election. Obviously if party control shifts, which is expected to be more likely in the house than in the Senate, but I think you’re seeing some of this even during the shutdown where Marjorie Taylor Greene just broke with the Republicans on the healthcare issues and some of those and John Federman voted to reopen the government. So I think that there are cracks in the coalitions, I think with Mitch McConnell leaving. So Senator McConnell had a particular focus on a lot of the issues we work on.
(00:46:46):
He cared enormously about campaign finance in particular and about voting and in ways that were, he started his career with, he wrote a big op-ed in support of public financing of campaigns, but when he got into the Senate decided that he was going to do everything he could to, in a partisan way, protect the interests of his party and stop people from even talking about when the Voting Rights Act. The last time the Voting Rights Act of 1965 came before the US Senate was in 2006, and this sounds like it’s science fiction or from an alternate universe, but it got 98, it passed the Senate 98 to nothing after Shelby County McConnell put the word out that nobody was to even discuss a compromise on how to fix the Voting Rights Act. I think Thune, who’s his successor, I’m sure has very similar views on a lot of these things, but he doesn’t seem to care as passionately and as personally and as deeply about it.
(00:47:49):
So I think that a lot of the challenges that the country faces in national government is because the Senate is such a broken institution. I think McConnell’s willingness to break norms, to refuse to, when President Obama, a year before he left office, nominated Merrick Garland to be on the Supreme Court and the word went out, don’t even meet with Garland, that had not happened before. There are a lot of those kinds of things. I think the Senate is always a problematic institution, but I think again, there has to be a willingness for people in both parties to talk with each other about how to fix it. McConnell was often an obstacle on that.
Sean Keenan | Atlanta Civic Circle (00:48:34):
Hey there, thank you for joining us. I’m Sean Keenan here from Atlanta, and forgive me, this one’s a little bit grim and frankly, I think kind of the tone of this fellowship has been a little bleak, which is good. I don’t think anybody flew here to hear everything’s fine. You said earlier, democracy is a vague and overused term, which makes me wonder about, I guess it’s precarity. You also said that we are in a fight over what kind of constitutional system we are going to have. And admittedly, I didn’t know until I just looked it up. Dictatorships also have constitutions in many cases. A lot of people are tiptoeing around these big spooky terms. Right now, I just feel like I can’t go home unless I at least have some kind of answer on this. Have we achieved authoritarian dictatorship? And if not, how will we know?
Michael Waldman/Brennan Center for Justice (00:49:28):
Well, we’re out of time, and I think that we’re in the middle of a great fight to find out the answer to that. I think that there are a lot of things that our government is doing right now, and I’m not generally hyperbolic about this kind of stuff. I try not to be. I think many of the things that are being done by the federal government and especially by the executive, are illegal, violate the Constitution, violate people’s rights and would radically change the structure and the way our government works and its accountability. I don’t think that anything is resolved, and I think that the great challenge is to know how people can properly push back, how the Congress can, if it ever will reassert its role. So much of the reason we look to the courts is because of the vacuum created by Congress being so so weak.
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Again, not just starting last year, but over many years, how will we know? We will know when people really are so afraid to speak out that they don’t. We saw this year a lot of institutions crumble in the face in unexpected ways, in the face of, again, illegal demands by the federal government, a lot of the universities, the law firms and others things, but a lot of others pushed back and found that they lived to tell the tale. Some law firms signed agreements when there were executive orders aimed at them, other law firms refused, went to court, won, and got more business from other clients. Just to give one example, one of the challenges is again, I do think that the specter of troops on the streets for no particular reason, there is no insurrection. There is no hellish war zone in Portland or any other American city.
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People notice this, and I do think that finding a way to cover how people are responding. So on October 18th for example, there’s the no kings protest. Now a lot of people sort of roll their eyes at that stuff. It’s a lot of very decorous people with little signs marching around. But the last one was a lot of people, and I have a feeling there’s going to be a lot more this time. So I think that what you see when you look at other countries where there’s been democratic retrenchment or backsliding is in a sense, it’s the kind of momentum has a lot to do with it. And whether people think, oh, you know what? The normal laws of gravity have not been entirely repealed, politics has not changed that much, and people can push back on things they don’t like and sometimes succeed. So I think we will know. I don’t think it’s a toggle switch where you’re either authoritarian or you’re not, you’re a democracy or you’re not. These have been issues that have been fought out over the course of American history, though rarely with as much explicit on the line as now.
(00:52:49):
Hi.
Abbey McDonald | Salem Reporter (00:52:50):
Hi. I’m Abbey McDonald with Salem Reporter in Oregon. There’s a common joke that if Watergate happened today, it wouldn’t last one news cycle. So I was just wondering if you could kind of wax poetic for me about the future role of journalism and how to maybe rebuild the fourth pillar?
Michael Waldman/Brennan Center for Justice (00:53:07):
It’s a great question. I can go on. It would be an epic poem, and this is relevant as we think about Bob Wood, not Bob Woodward, but Robert Redford having recently died, and of course playing Bob Woodward in the movie. So first of all, it’s important to understand the true story of the role of media played in Watergate for the first year of the scandal. Very few media outlets actually covered it very much at all. The Washington Post was very unusual. The New York Times missed it only CBS news among the three national news broadcast networks, which of course is a different era. It was a very big deal when Walter Cronkite devoted 12 minutes to Watergate on one of the shows, and then the top bra at CBS told him not to do it again.
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A lot of journalists knew something was really wrong, and in fact, Robert Redford bought the rights to all the president’s men before the book was written because he was promoting the movie The Candidate, which if any of you’ve ever seen, had the chance to see the movie The Candidate. It’s really good. And he was out on the campaign trail and all the reporters said to him, oh, Nixon’s stealing the election. There’s a lot of skullduggery, but we can’t really write about it. Only once a few things happened that were official in the trial, a judge really cracked down, and one of the defendants in the trial revealed that there was perjured testimony, and then there was a confirmation hearing for an FBI director. It’s basically normal Washington stuff sort of blew up, and then it became this all consuming media frenzy for a year and a half.
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It’s really important to keep pushing and to understand that it doesn’t happen right away. You’re right though that back then there were things that were seen as so shocking and they were arbiters that people trusted and relied upon to tell him. It was shocking that it became something that wasn’t just Democrats being shocked. So when Nixon, in October of 1973, fired the special prosecutor who was seeking his tapes, and then the Attorney General Richardson, the Republican resigned and his deputy was fired. This was called the Saturday Night Massacre. It was a really big deal, and for the first time, all these newspapers, which a year before had supported Nixon’s reelection, called for him to resign. And again, a lot of that was because they were more trusted as arbiters. So what would happen now? I mean, first of all, it might be in one new cycle there would be an Amen chorus of partisan or ideological saying, praising the burglars for fighting communism or something like that.
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A lot of the stuff would be on all sides instantly relegated to the bubbles. What’s interesting, I go back to the, not to polls are just a snapshot, but the notion that corruption is the number one issue, inflation number two, and abuse of power is number three. That’s not because Walter Cronkite told them it was people. Your readers have intuited that from the bits and pieces of information they’re getting from all the things you’re covering. And so I think that citizens are actually processing it in a way which is heartening, but I think it’s a job for all of us and all of you to continue to draw the narrative thread so that they don’t think this is, oh, this is just politicians throwing food at each other. That’s what happens all the time. But yeah, Watergate played out as it did in a particular media environment, but it really wasn’t such a heroic story for the media until a few people with badges and judicial robes started making it more. So.
Mike Tony | Charleston Gazette-Mail (00:57:27):
Last question, Mike Tony Charleston Gazette Mill in West Virginia. Our governor, Patrick Morrisey activated several hundred personnel, West Virginia National Guard personnel to deploy here to Washington dc and I wanted to get your thoughts on to what degree you find it problematic that Red State governors, Republican governors are supporting President Trump in deploying military forces within the US and how that might, does that risk normalizing what you see as the administration disregarding checks against that and as you argue, abusing leeway to deploy forces within the us?
Michael Waldman/Brennan Center for Justice (00:58:27):
Yeah, it’s very concerning and it is really important to understand. It’s really unusual. Governors control their national guards. They are the ones who decide whether to use them within their borders. Overwhelmingly, I can’t think of other times where the National Guard was deployed from one state, let alone on a partisan basis into other states over the objections of the governor from those states. I mean, going back to the Civil War would be the closest. The only time I can think of Washington DC as Mayor Bowser probably described, it was a little different situation because it’s not state. It’s a federal territory, and there are lots of ways in which even on January 6th when the National Guard was finally deployed, it was not from Washington. It wasn’t the Washington DC National Guard. It was, I think the Merrill National Guard was sent in. The partisan dimension of it is really challenging, and the idea that these are being sent across the country in a showy, demonstrative political way is really, really wrong. And I guess I think that the challenge, of course, is finding ways without sounding history to show people how different it is and how troubling it is.
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When they wrote the, I wrote a book on the history of the Second Amendment, and it’s really striking if you ever have time to read the actual transcripts of the constitutional convention, it’s kind of mind blowing. James Madison took pretty much verbatim notes. He fudged it a bit to make it look like his own views or what everyone had, but they’re practically like watching C-Span. And so many of these issues were really things they debated at the time and in the ratification conventions of the different states, including Virginia, West Virginia was part of, at the time part of Virginia. One of the reasons that a lot of people back then the anti-federalists opposed the Constitution was because they thought that the federal government would nationalize their militias and marched them out of state and marched them and used them at one state against the other. And that’s one of the reasons they insisted on the Second Amendment as a price for getting the Constitution ratified.
(01:00:48):
So these issues were very much front and center people. They thought that it was as potentially tyrannical. They understood that it was necessary because they didn’t want to have what was called a standing army, meaning like what we have now. The US Army, the Constitution actually allowed for it. They had some faith in it because George Washington was the president and they trusted him, but they were very worried about that very issue. One of the things that I think is hard to talk about without it sounding again overly dramatic, is the degree to which when you don’t have a Voting Rights Act, when the Supreme Court refuses to police partisan gerrymandering as they did since 2019 in a case called Ruche, when Congress is so dysfunctional, it won’t set national standards on things a lot of the time. What that means is states have the ability to act on their own in a way often that oppresses their own people. And what you’re seeing develop on a lot of different issues, whether it’s abortion rights or voting or these other things are red states and blue states developing their own social systems. Your life is really different in one state versus in another. And the whole progress of the country over 250 years has been to get away from that. And so I think finding a way to explain that to people. So again, it’s not a judgment to say this is really unusual and actually something that the framers were really worried about.
(01:02:19):
I do think DC was a slightly unique situation because it’s a federal territory rather than a state, but certainly Texas, when the national government the other day federalized, the Texas National Guard to send troops to Chicago and Portland, there hasn’t been something like that that we’re aware of in American history since the 18 hundreds. Before I let you go, Becca, you don’t have a microphone. Oh, you do have a microphone. Why don’t you describe how we can be of help to them?
Rebecca Autrey/Brennan Center for Justice (01:02:51):
Sure. Thank you all so much for joining today.
Michael Waldman/Brennan Center for Justice (01:02:55):
Come stand next to me. I think the camera’s just pointed at me.
Rebecca Autrey/Brennan Center for Justice (01:03:02):
Thank you all so much for joining today. Just wanted to flag reiterate what Michael said. We’re here to help. Please feel free to reach out on the papers that were passed out. You’ll see my colleague Julian’s contact information. He’s based in New York. Feel free to email him with any questions. I’m also happy to share my contact information. I’m based in our DC office, and we have some resources on that paper. Also, feel free to take a look around our website. We’ve got a lot there. One resource that I don’t think we’ve mentioned to Taylor’s sort of broader question about state legislatures and voting. We do have voting laws Roundup that looks at state laws that have been passed, both restrictive and expansive. So that might be helpful in some reporting along those lines. Yeah, feel free to reach out. We’re here to help.
Michael Waldman/Brennan Center for Justice (01:03:59):
We have a lot of folks who can talk on background, give you background information. A lot of people who can talk on the record, on broadcast or whatever we do newsletters. I encourage you to subscribe to, at the very least, the briefing newsletter, which comes out every Tuesday. Not only I write it, but it summarizes our work and has links to everything we have found ourselves having to become more of a nonprofit newsroom to get the message out to people. So you may find things that are useful there.
Kevin Johnson/NPF (01:04:36):
Well, thank you to Michael and to Becca. They’ve made just an excellent case of what a terrific resource the Brennan Center is. It covers a waterfront of issues that are on the front burger today, and I think would benefit many of you as you continue reporting back home. But again, many thanks Michael and Becca. We really, really appreciate you
Michael Waldman/Brennan Center for Justice (01:05:06):
Being here. Thanks to all of you for what you do.
