We've got a special double-barreled, two-guest show for you on this week's episode of The Downballot! First up is Tiffany Muller, the president of End Citizens United, who discusses her group's efforts to roll back the corrupting effects of the Supreme Court's Citizens United decision as we hit the ruling's 13th anniversary. Muller tells us about ECU's short- and long-term plans to enact serious campaign finance reform; how the organization has expanded into the broader voting rights arena in recent years; and research showing the surprising connection many voters drew between the GOP's attacks on democracy and their war against abortion rights.
Then we're joined by law professor Quinn Yeargain to gape slack-jawed at the astonishing setback Gov. Kathy Hochul experienced in the state capitol on Wednesday when a Democratic-led Senate committee rejected her conservative pick to lead New York's top court. Yeargain explains why Hochul's threatened lawsuit to force the legislature to hold a full floor vote on Hector LaSalle defies 250 years of precedent and what will happen if she eventually retreats—as she manifestly should.
David Beard:
Hello and welcome. I'm David Beard, contributing editor for Daily Kos Elections.
David Nir:
And I'm David Nir, political Director of Daily Kos. The Downballot is a weekly podcast dedicated to the many elections that take place below the presidency from Senate to city council. Please subscribe to The Downballot on Apple Podcasts and leave us a five star rating and review.
David Beard:
So we've got a bit of a special episode this week. What are we doing?
David Nir:
So we actually have two guests. We're doing two interviews. First up is Tiffany Muller, who is president of End Citizens United, one of the leading campaign finance organizations in the country. She is going to tell us about everything her group does to, of course, rollback Citizens United. And then in the second half of the program, we are having on constitutional law expert Quinn Yeargain to talk about some astonishing developments in the New York Capitol on Wednesday where a state senate committee voted down a nomination for New York's top judge that had been submitted by Governor Kathy Hochul. What has happened is pretty unprecedented, and what might happen next is even more so. We have a terrific episode, so please stay with us for both discussions. Joining us today is Tiffany Muller, the president of End Citizens United, which is one of the leading advocates for campaign finance reform in the United States. Tiffany, thank you so much for being on The Downballot today.
Tiffany Muller:
Thanks so much for having me.
David Nir:
So for listeners who may not be familiar with all of the intricacies — obviously the phrase “Citizens United” gets tossed around a lot, but maybe you could give us a short history of how our contemporary campaign finance system really came to be, and specifically the role that the Supreme Court's Citizens United decision played in creating it? And I should add that this week is now the 13th anniversary of that ruling, and really that is just the worst bar mitzvah ever.
Tiffany Muller:
It really is. It really is. I think the idea about who gets to have voice and say in our democracy, and the tension between our democracy representing the people and a democracy that the special interest and the wealthy big donors are trying to influence have existed throughout history. For example, the direct election of senators actually came about in part because of a campaign finance scandal wherein Montana, the folks who owned the copper mines, the so-called Copper Kings of Montana, basically bought US Senate seats, and it created this big scandal. And Teddy Roosevelt, a Republican president, as your listeners know, actually called for public financing of contributions and a ban on corporate donations at the beginning of the 20th century. And that ban on corporate donations actually lasted all the way up until the Citizens United decision. But throughout history, we've seen other scandals that have led to changes.
The Watergate scandals of the 1970s led to the creation of the Federal Election Commission. Some of the scandals in the '90s and 2000s that were corruption scandals actually led to additional restrictions on campaign finance and on bundling. But what we saw with the Supreme Court decision in January of 2010 was the Supreme Court basically said in the Citizens United ruling, it said, "Look, money equals speech, and corporations are people," and it combined these two really terrible ideas, and it put a for sale sign on our democracy. And so while money and politics has always been a problem and has always threatened to drown out the voice of regular people, the Citizens United decision really supercharged this. And what we have seen is the flood of unlimited and undisclosed funding flooding into these elections has really drowned out the voice of everyday people, and has caused gridlock and dysfunction in our system.
David Nir:
I love the fact that you went back to the direct election of senators, just something that happened more than 100 years ago. I wasn't expecting that history detour. Could you maybe talk a little bit about specifically what the Citizens United ruling allowed that wasn't allowed previously and that is now simply the law of the land, and has been for more than a decade?
Tiffany Muller:
Yeah. So it did a couple of things. Number one, it allowed corporations to actually spend in elections and to impact elections. Literally this case was about Citizens United, which was incorporated, that wanted to run an anti-Hillary Clinton ad, and they sued and said that it was a violation of their freedom of speech to not be able to run this ad. And so the decision actually allowed corporations to directly participate in elections in a way that they had not been able to do for 100 years. But the other thing it did is, it actually set up the rulings that have since come that have allowed super PACs and have allowed unlimited and undisclosed spending into our elections. So for your listeners, prior to the Citizens United ruling, about 75% of money that was spent in an election, you could trace it back to its source. You could actually trace it back, see where that money was coming from, who was trying to have influence in an election.
Now, about 75% of that money is untraceable. It's dark money. It's undisclosed money. And that's all come about in the last 13 years. And the problem, as we know, is that that just creates multiple opportunities and angles for corruption. It creates opportunities for corporations or big special interests to have outsized influence over the policymaking. And let's take a pretty specific example. I'm guessing your listeners care a lot about climate change. And prior to the Citizens United ruling, Republican senators in the Senate were joining with Democratic Senators in the Senate to try to solve the crisis of climate change in our country. There were 14 different instances of Republicans and Democrats coming together to try to address that issue. After the Citizens United decision, there have been zero instances of Republicans joining with Democrats to try to solve the climate crisis. And that's not because climate crisis has gotten better.
As you all know, it's gotten worse. We're seeing more and more impacts all the time. But it's because the oil and gas lobby and the oil and gas industry are the number one contributors on the Republican side of the aisle. And they don't even have to spend all of the money. They actually only have to threaten to spend the money. So what they say is, if you vote for that bill, or if you try to take on green energy, we're going to knock you off in your primary. We're going to go spend all this money against you. And it creates the inability to actually address the real priorities facing the American people. So the ruling had direct consequences, and then it's had long-term consequences that we've seen play out over the last decade.
David Beard:
So now within that context we have in Citizens United — your organization, so tell us how that came to be in the wake of this ruling? Obviously when you lose a Supreme Court case, particularly one that's based in what they cite as the constitutional requirements, you're in a very tough spot, but obviously folks came together and they formed this organization. So tell us about that and how you got your role in?
Tiffany Muller:
So we are almost eight years old as an organization at this point. I think that one of the things that's been most surprising to everyone is how much in the lexicon Citizens United as a decision is. It's just one of those Supreme Court rulings that people know about. And they may not know exactly what they did, but they know it was bad and that it hurt them. I started my career doing gay rights work in Kansas, I did domestic violence and sexual assault work, I have worked on campaigns all across the country, and a lot of the work that I personally have done has all been about who gets to have power in our system, who gets to have a voice. Taking this job felt like my career kind of coming full circle. It was a real opportunity to bring my experience creating change on Capitol Hill, to my experience with campaigns, to my experience with grassroots movement, to really create and build political power around campaign finance reform and around protecting our democracy.
And we know voters really care about this issue. We have seen it over and over and over again. I know we'll talk about what happened in 2022. We're really proud of being powered by our grassroots donors. I mean, our average contribution is just $14, but we have raised $200 million since our founding, which has helped us win 600 times. It's helped us elect 600 candidates to office. We've run over 100 independent expenditures, and there are 73 members of Congress now that refuse to take corporate PAC money, a new record and a sign of a growing movement to say, no, we're going to run our campaigns differently, we're going to make sure that the American people know we're working for them. So we're really proud of what we've built in just eight years.
David Nir:
So Tiffany, I want to ask you about something that Beard referenced a minute ago, which is he made the very good point that the Citizens United ruling, here we had the conservative Supreme Court majority saying that United States Constitution requires this ruling, that this isn't simply a matter of statute, it's a matter of the Constitution. And so it's not a ruling that can simply be overturned by passing a law. So you talked about at Citizens United supporting candidates to office who of course are supportive of campaign finance reform, but how would you describe maybe more broadly the project to really push back against or even maybe one day overturn Citizens United? What is the overall action plan?
Tiffany Muller:
Yeah. We have both long-term and short-term goals, because there are things that we can do legislatively today to make the system better, and then there's the longer term goal of overturning Citizens United, which will either take a ruling by the Supreme Court to overturn themselves, or passing a constitutional amendment. And let's start with what gives us so much hope. And what gives us hope is that 80% of Americans want to see this ruling overturned. It doesn't matter if you're Democrat, you're independent, or you're a Republican, you think there's too much money in politics, and you think it's hurting your life. So we know that the people are with us. Even in a red state like Montana, when they had a ballot measure saying that they wanted to see Citizens United overturned, it passed with 72% of the vote. So long-term, we need to overturn Citizens United, which can be done, again, through either the Supreme Court overturning themselves, or through a constitutional amendment.
But in the meantime, we can actually pass legislatively changes to our campaign finance system and to our voting rights and to protect our democracy. So we helped flip the house in 2018 on a message of actually passing comprehensive democracy reform, and in 2021, we passed that bill through the House not once, not twice, but actually five times. We had all 50 members of the Democratic caucus of the Senate as supporters of the bill, and we came within two votes of changing the filibuster to pass it. We were so close to getting that passed that I believe that we have fundamentally changed the debate on both the filibuster and on a bill setting national standards that would actually begin to take on some of these issues. And we're going to take back the house in 2024, and we're going to be that much closer to actually getting this passed. And look, that bill, for your listeners who may not remember, that bill did everything from addressing voting rights to ending gerrymandering, to making sure that all of the money spent in our elections was disclosed and transparent to cracking down on Super PAC coordination to beefing up the Federal Elections Commission, there are a lot of things in our system that right now are broken that we can actually fix legislatively.
David Beard:
Now obviously ending Citizens United is the first and primary goal of your organization. It's in the name, but you've also done a lot of work around defending the right to vote, expanding voting rights. So how do you define sort of the issue area of the organization? And also tell us about the Democracy Defender program that you recently launched this past year.
Tiffany Muller:
Well, these issues are all really connected. And again, this goes back to who has power and who has voice in our democracy? Who gets to participate? And so the same people who are trying to buy our elections with big money are oftentimes the same people who are trying to gerrymander maps to make sure that politicians are picking their voters rather than the other way around. They're the same people trying to pass voter suppression bills to make it harder for people to vote around the country. So to us, these are different sides of the same coin or different legs of the stool, if you may.
They're all really connected issues. And in January of 2020, we actually merged with Let America Vote because we understood how closely tied these issues are. And so the big comprehensive democracy bill that I was talking about actually had redistricting, it had money and politics, and it had voting rights in it, and it's become really a critical part of our work to make sure that voters understand all of the different threats really facing our democracy. That election denial is a threat to our democracy, that folks spreading the big lie is a threat to our democracy.
And then it is not an existential threat, but a direct threat to their day-to-day lives. And it directly impacts everything from the cost of prescription drugs, so whether or not we have an economy that's working for them. So one of the programs you asked about that we were really excited to launch this past cycle was our Democracy Defender program. And this was actually us getting involved for the first time in Secretary of State and Attorneys General races across the country because they have so much power and authority over the administration of our elections and over how our democracy really is executed in states.
The other thing we were seeing was really, really frightening candidates running on the other side. Folks who were just flat out refusing to accept the outcome of not only the 2020 election, but saying that they would not accept the outcome of the 2024 election, that they would make sure that their candidate of choice won the 2024 election no matter what the voters said. It was an actual fundamental undermining of everything our democracy is built on.
One of the things that we are most proud about is the work that we did in those races and the fact that all of those election deniers and battleground states were soundly defeated. From Arizona to Nevada to Michigan, just across the board those folks lost their races. And we've been doing focus groups, we've been talking to voters across the country, and it is amazing to me how much voters, even voters who are swing voters and don't typically really tune into election news, understood that democracy was being threatened and they felt like this election was more important than ever, and that they understood that their Secretary of State and AG candidates were directly threatening their right to vote.
David Nir:
That's so interesting that you mentioned those focus groups because that's exactly what I wanted to talk about with you next, which is to what extent did you see that this issue actually had salience with voters before the election? Because obviously we were going into a midterm year, we had reasons to be very worried as Democrats about just traditional midterm patterns. But there were also these major, major issues that were really running through the surface of American politics — abortion and democracy that wound up mattering so much to voters and a lot of pundits and analysts and even pollsters really missed the boat on this one.
So I'm wondering, did you have an inkling that we were going to run the table against these election deniers or even do better than expected? Or did it come as a surprise to you as it did to so many of us? I'll admit myself, was definitely very, very pleasantly surprised at how election night turned out.
Tiffany Muller:
So it's so interesting. So since the 2018 cycle, we have seen over and over that voters really care about these democracy issues and that they'll vote on them. So we saw that play out in 2018 when we helped flip the House. We saw it play out in 2020 when we helped flip the Senate. We saw it in our polling that it was continuing to resonate. We saw multiple polls before the election that democracy was the number one issue that voters were concerned about, that it was even above inflation and cost for voters. And I will tell you, I was still a little skeptical, right?
Because all the conventional wisdom was saying, "No, that's not possible. This election is only going to be about inflation and crime, and it's going to be a typical midterm for us and we're going to have a really tough time winning these seats." And so we definitely saw indications that voters were really paying attention and that this was especially I would say from September through Election Day, I think we saw kind of democracy continuing to tick up and tick up and tick up. But if you remember, there was a lot of questions about why did Biden do that big democracy speech right before the election?
David Nir:
Oh, of course.
Tiffany Muller:
And it turns out that was exactly the right thing to do. Voters were really tuned into it in a way that wasn't being picked up, wasn't being touted in kind of the conventional punditry. I will tell you we did a post-election poll right after the election, and threats to democracy was the number one reason why independent voters chose who they were going to vote for, Democrats or Republicans. And in the battleground House seats that we were pulling in, it's why we won independent voters by four points.
That's the difference between winning and losing in these seats. And again, we've been doing focus groups since then, and to hear them talk about it really cut through. They understood the January 6th connection. They understood the election denialism, they understood what it meant if these folks won election. And here's the other thing, David or Davids, they understood its connection to abortion. They directly connected overturning a Roe v. Wade to our very democracy.
And when you hear them talk about it, they talk about it as the Supreme Court has turned political, they are overriding the will of the majority. They are doing political things through basically a captured court, that might not be their exact words, but through a captured court. What we've seen from the Supreme Court is they started by undermining our democracy and making our democracy less responsive, and that then allows them to set up these other really awful decisions like Dobbs. So these issues are really intrinsically linked, both for all of us, but also in voters' minds.
David Nir:
I think that's really fascinating because the conventional wisdom beltway punditry is almost like irritated when Democrats, especially you were talking about Joe Biden, try to paint this sort of holistic portrait of this is what the modern GOP wants. This is what the conservative movement is all about. This is what the Supreme Court is aiming for. And they want to deal with things piecemeal, they don't see it at all as part of a whole, but what you're saying here is that voters are unsurprisingly way smarter than your typical pundit, and they do understand that this is a whole, and that this all folds together abortion and democracy and I'm sure so much more.
Tiffany Muller:
Yeah. I was even in focus groups recently where they were talking about the attacks about trans athletes competing, and they were even able to link that back to the attacks on a woman's right to choose and to the attacks on democracy. Actually, I mean, I'm always amazed when the voters give us so much more hope than maybe we had before the election, but voters don't go into the ballot box and just cast their vote on just what their receipt from CVS is saying that week. They go in and say, who is going to create the life I want? Who's going to represent us? Who shares my values?
Basically, they took a look at the GOP and they said, "These folks are batshit crazy. I might not love everything about Democrats, but they have a much better sense of how we want our lives to be led." And that really mattered. It really mattered in this election. And I think that, I don't know, I sometimes joke around that we get too stuck in the 1992 model of Democratic politics that it can only ever be about the economy.
And it turns out that voters are just more complicated than that. They care about more than that. And then in a two-year span where we had January 6th, where we saw what the January 6th committees uncovered, where we saw 300 voter suppression bills and over half of Americans having an election denier on the ballot and the overturning of Roe, again, voters were like batshit crazy, or kind of stable and status quo. I'm going stable and status quo.
David Beard:
And to pick up on something that Nir said about often DC insiders that get quoted a lot in these papers, they're often pretty cynical. And you can tell that they're sort of irritated. I'm sure you see this from End Citizens United. It's sort of the earnestness of oh, this is not some sort of trade group just trying to get some extra bucks for their members. There's a real earnestness to End Citizens United and a belief that we can make American democracy better. And I feel like 2022 was a real validation of voters being like, "Yes, the American democracy is something we value, and we want to have that earnestness and we want to protect it in the face of all this cynicism that you always get emanated out of DC all the time."
Tiffany Muller:
Oh, yeah. As you may imagine, I'm not so popular on K Street here in DC. They're not inviting me for drinks.
David Nir:
Good. Good.
Tiffany Muller:
I love that question. That question's great. We both want to create change and win elections and win campaigns, but yes, we believe we can create change that helps the American people. And if that makes us earnest or sometimes viewed as even naive here in DC, I will take it because I know that we are getting shit done, we are winning elections. We are winning elections on this issue, and again, the people are with us.
Our power doesn't come from anything I do or don't do in this position, our power comes from the people. Our power comes from the one million donors who have given us an average of $14 over the last eight years, and our power comes from the folks who get out there and vote and vote on this issue. And we're going to keep harnessing that to drive change in any way we can.
David Nir:
I love this message so much. I have felt better about the state of American democracy since the November elections than I have in quite some time, and I feel even better after talking to you today, Tiffany. So I want to ask you before we go, where can our listeners learn more about End Citizens United and how can they get involved?
Tiffany Muller:
Please, we need all the help we can get. Again, this is the things that is more powerful than money in politics, is all of us joining together. And so you can find us at endcitizensunited.org. You can also follow us on Twitter. We are at @StopBigMoney. I am @Tiffany_Muller, M-U-L-L-E-R. And please get involved. We need your help. We have a lot of important races to win in 2024. I've been saying that Kevin McCarthy better not get too comfortable with that gavel because we're going to take it back in November.
David Nir:
Couldn't agree more. Tiffany, thank you once again.
Tiffany Muller:
Thank you so much for having me. This was great.
David Nir:
So, holy crap, something absolutely wild — unprecedented maybe, I don't know — happened in the New York State Senate today. We had to bring on one of our all-time favorite guests, who just so happens to be one of the top experts on state constitutions and state law and New York state procedures, law Professor Quinn Yeargain, to tell us about what the hell just went down in Albany. Now we've talked about this before — Kathy Hochul picking to fill the vacant position of chief judge on New York's top court, the Court of Appeals — but get us up to speed on everything that went down on Wednesday.
Quinn Yeargain:
Yeah, so first off, great to be here. So the drama's been building for weeks, months perhaps, over exactly what Governor Hochul was going to do in terms of who she was going to nominate. A lot of disappointment from the progressive legal community when the nominees she chose happens to be one of the most conservative, most unacceptable nominees she could have picked. And then now the drama over the Senate considering the nominee, the Judiciary Committee earlier Wednesday, voting to not advance Hector LaSalle's nomination to the full Senate.
Now, nothing about how the Senate has considered his nomination is unusual in the broad scheme of things. It's not unprecedented for a judicial nominee to be rejected by a state Senate. Obviously we've seen this happen at the national level a number of times quite prominently. It is something that's a little bit more unusual in New York where even more conservative judicial nominees have gotten through the New York state Senate without much problem even when it was controlled by a more progressive group.
What makes all of this just really bonkers is that Kathy Hochul has decided that the right strategy to employ in this moment is to argue that the Senate is behaving unconstitutionally by having only the judiciary Committee vote down the nomination and to not provide the nomination with a full vote on the floor of the Senate. And she's argued that it is unconstitutional for them to do so and that she's indicated that she might actually sue them to force them to hold a floor vote. She's retained a really excellent lawyer to apparently perhaps represent her in a lawsuit that she might file to force the state Senate to do this. And that's where it gets really unprecedented. Nothing like this really has any modern or even really historical precedent, a governor suing a state senate to try to get them to confirm a nominee. It's a bold move. We'll see how it plays out for her.
David Nir:
Let's back up a little bit. We should rewind and maybe recap some of the stuff we've talked about on previous episodes, though there certainly was more news on Wednesday that we want to hit as well. Beard, maybe we should talk a little bit about this wild unforced error that Hochul engaged in the first place of picking Hector LaSalle, this appellate court judge, from this shortlist when she had so many better options.
David Beard:
Yeah, I think there's a ton of interesting legal aspects, particularly to this lawsuit that Quinn was just referencing if it actually takes place and actually gets ruled upon. But the biggest thing for me from this whole episode is just the massive, massive political malpractice that Governor Hochul has been doing from really start to finish. First off, in picking LaSalle out of a list of seven potential nominations that you get from a commission that is in New York that submits options to the governor, she picked the most conservative choice, the one that was most likely going to be a huge problem for her if progressives decided to fight it, which they almost certainly were going to.
So she picked this fight when she could have just taken another nominee and probably had them sail through. Probably even one more moderate than the progressives would've liked could have easily gotten that person through. And then time after time when labor groups came out opposed to him, when pro-choice groups came out opposed to him, when senators came out opposed to him and it became clear that they were not going to have the votes, at any of these steps Hochul could have just cut her losses, withdrawn the nomination and picked somebody else. We saw most famously George W. Bush do that with Harriet Miers. When the votes weren't there, he pulled the nomination and nominated Alito instead, which worked out great for conservatives in the end. We probably would've preferred Harriet Miers, but it is what it is.
But Hochul instead of at any point being like, "Oh, this is not going well for me. This is not going well for Hector LaSalle. He's not going to become the chief judge. He's going to lose," has just been incredibly stubborn to her own detriment. She has upset all of her allies or a big chunk of her allies with no benefit gained fairly inexplicably. And I really, really don't understand what advice she's getting. I saw on Twitter somebody say either she's getting good advice and ignoring it or she's getting terrible advice. And I don't know which one is worse.
David Nir:
So Quinn, in the vote in the committee in the Senate on Wednesday, the breakdown of that vote was a little bit unusual, definitely different from what we see in the United States Senate. Can you explain those numbers, what they were and what those numbers actually mean?
Quinn Yeargain:
So in the New York Senate, everything has to be a little bit different because it's New York. The options that are available to committee members when voting are against, for, and advance without recommendation. Historically, people vote to advance without recommendation when they have a small problem or they don't want to hold things up, is my understanding of that. And in this particular case, if you really broke it down, there were 10 no votes and nine yes or kind of yes votes, where there were 10 no, two yes, and seven advance without recommendation. The Republicans were the ones who provided the advance without recommendation. And so the Democrats basically had split in terms of how they were actually voting. And so what this really means at the end of the day is that the nomination was rejected by the committee on basically what was a 10-9 vote.
David Nir:
Reading tweets from that hearing, it sounded like kind of a train wreck. At the very least, LaSalle did not seem to be prepared for hostile questioners. Maybe you could talk a little bit about one of these decisions that at first got less attention, but I think crescendoed later on that LaSalle had been involved with. And that's the Bridgeforth case. Is that one that you can talk about?
Quinn Yeargain:
It's a well-accepted rule for at least the last several decades anyway, that when jurors are being considered, they can't be rejected on the grounds of their race. This is articulated by the U.S. Supreme Court in a very famous case, Batson. And over the last several decades, states and federal courts have sort of ironed out the parameters of what that means.
The basic construct of this case was LaSalle joining an opinion in which it was basically established that, as bonkers as it sounds and it really is this bonkers, that you could reject someone for what are apparently non-racial reasons based on how dark their skin is. I don't really see that there's a lot of daylight between rejecting someone on the basis of race and on the basis of how dark their skin is. I think that even LaSalle recognized that this was a huge liability because he seemed to accept that the Court of Appeals was correct when it unanimously overruled this decision.
But this has been one of the more bizarre opinions that he is joined because one of his biggest backers in the state senate, Luis Sepulveda, had specifically said, "Well, it's not really about one juror's darkness, it's that she was darker than someone else." I don't know why that was a comment that he provided on the record to focus, but it is. It's so clearly a problem. And it is so clearly I think something that is emblematic of his record to some extent too, where we're normally not paying attention to the crazy stuff that state appellate court judges say and do. It usually goes totally unnoticed. And it may well be the case that Kathy Hochul in picking him was totally unaware of this. But such a perfect example of this sort of lurking conservative record in the background that either nobody knew about or they knew about and didn't care about. I don't know which one is worse honestly,
David Nir:
That brings me to something else. You flagged for me, Quinn, the other day this letter from retired judges speaking out in favor of LaSalle and you talked about people not knowing his record or maybe knowing it and not caring. But maybe there's a third possibility, which is what these judges essentially said, and we're getting really into the weeds here, but I think it's important. They said, "Yeah, he has a record, but it's not his record even though his name is on these opinions." So tell us about this wild letter from these judges and these memorandum opinions that they claim that he doesn't actually own authorship of.
Quinn Yeargain:
It really is just an out there letter that I... So it is a number of former judges who basically make the point that you can't judge LaSalle for the opinions that he joined, or in some cases even authored, because they were short opinions that were ultimately based on draft opinions coming from the court's staff attorney's office basically. And as a result, it's unfair really to say that he agrees with something or it's logic that he agrees with or that it's his position just because he as a judge signed onto an opinion expressing something. Maybe we're all being really unreasonable here because judges are always willing to put their names on things that they don't always agree with.
The problem with all of this is that it either does one of two things. It either exposes. Professor Noah Rosenblum at NYU has really been excellent about tracking all this and he was the one who really dissected a lot of this letter. But it either shows that judges genuinely do not give a shit about some cases. Just truly honestly do not give a shit. And that's deeply horrifying, right? Deeply, deeply horrifying that they might just... Using something almost autopen, just to sign without even thinking about it and certain opinions. And I'm sure that happens at the district court level where the caseload is huge and they don't have time to maybe consider each individual case. I know that happened a lot during the foreclosure crisis, for example.
The other alternative is that they genuinely don't believe that the opinions that a judge signs onto says anything about who they are as a person, what their values are, anything like that, and that there is this critical distance that exists between what somebody believes in their heart of heart of hearts and how they believe they should apply the law. It's a familiar argument, but it's utterly bonkers that obviously the law is malleable. And in different people's hands it can mean different things. You can get these amazingly just opinions in the hands of the right people. But it shows this apathy, this intellectual dishonesty, and honestly just to some extent, laziness. But also, it's just so out of touch with the fact that when judges sit on high and they issue these edicts, some of them really don't grasp how they affect the lives of the litigants that are involved in what's going on here. That, to me, is deeply frustrating if that's truly what they believe. Given that they, well, I don't know, they sign their names to this letter. I don't know how much I should actually attribute that opinion to them given that we shouldn't do that, but...
David Beard:
Maybe it was just drafted by some staffer, so it doesn't even count that they signed it.
Quinn Yeargain:
Right. Who knows?
David Beard:
What's really impressive here is that almost no one who has gone out in support of LaSalle has come off looking better for this, including somewhat inexplicably Hakeem Jeffries, the House Democratic minority leader — who obviously represents New York, but is a federal politician and did not need to come out in support of LaSalle and make a lot of people mad at him, but did so anyway for reasons beyond me.
But I want to ask a little bit more about this potential lawsuit, because obviously, as we all learned during the Garland nomination, if you remember back to the late Obama years, the U.S. Senate will certainly say, "Shove it," to any nomination that they don't want to deal with. That's pretty common across the country in Senates that have the advise and consent responsibility. But here in New York specifically, they've got a statute that Hochul is trying to use to potentially force this vote. So can you go into that statute and why you don't think it's likely to be effective?
Quinn Yeargain:
So there are two real arguments, I think, that are being made. It could be that one of them is just a public relations argument, and one of them is the actual substantive legal argument, and it's the same one, but they're being articulated as two totally different things. The first thing, which relates to this New York state constitution itself, is that the Senate provides advise and consent to the governor's judicial nominees. Now, that is a ridiculously common mundane provision that exists in pretty much every constitution. It exists in the U.S. constitution. It has existed in U.S. Constitutional Law before there even was a U.S. constitution. It's based on state constitutional provisions that existed from 1776 until 1789. It's based on how Parliament has considered different candidates at various points in its history. This is a very, very old idea.
So it is in the New York State Constitution that the state Senate gives advice and consent. Governor Hochul and some surprising people are waving this flag and making what really sounds like a first-year law student or first-day law student argument, which is just, "It says advice and consent. You have to give advice and consent. It's a problem if you don't give advice and consent," without grasping that this is such a mundane common practice. It's genuinely difficult sometimes, I think, to describe how utterly bonkers and meritless an argument can be in a way that doesn't sound melodramatic, but I'll put it in the plainest terms I possibly can. If any court in New York embraces this argument that would be so unprecedented, it is genuinely difficult to grasp. It would overturn basically 250 years of how courts interact with legislatures. Courts do not generally get involved in what legislatures do.
They allow legislatures to run their own internal rules, to select their own officers, to do all these things. We might logically question whether all of those things are entitled to deference by courts. Fine. But one of the most core, fundamental central things is that legislatures have the right to vote on what they want to vote on and not vote on the things they don't want to vote on, unless the Constitution of their state says otherwise. So for Kathy Hochul to come in and say, "No, this has advice and consent, therefore, you must vote on this nomination." Having the Judiciary Committee do it by itself, that is insufficient. Under the state constitution, you must have a floor vote, utter bullshit. It makes me so mad that this argument is being advanced because it is baseless.
So second, there is this statutory argument, right? There is in the Judicial Officer's Provision of New York State statutes, there is a requirement, that within 30 days of nomination being made, the state Senate has to vote on it. Seemingly, that's something that would require a floor vote in this situation. But since the 1970s when the constitutional provision relating to judicial nominations was adopted, and this law was adopted too, it has been violated at least a handful of times without any real problem. There have been votes after 30 days. No real problem there. I think that there is at least a plausible case that this law is unconstitutional itself. There is a full, complete process for judicial nominations and confirmations in the state constitution. It relies on the state Senate's advise and consent. This is bootstrapping another process on top of that.
It is modifying the advise and consent requirement because it's saying to the state Senate, "Whatever process you have internally for dealing with this, insufficient. You must do this other thing." The thing is, if the drafters of the New York constitution wanted to add in a provision like this; they could look to how Hawaii has done this. They could look to how Tennessee has done this. They could look to how Utah has done this, all of which impose an affirmative requirement on the state Senate to vote. In Hawaii and Tennessee's cases, within a certain amount of time, or the nomination's confirmed by default. In Utah's time, the failure to do so results in a vacancy. There are models for this. This law, I believe there's a plausible case that's unconstitutional, but the advise and consent argument itself, utter bullshit, beyond belief. I'm astounded that any reputable person is signing their names to this. I'm not saying, by the way, that no court in New York will possibly sign on to this, but if they do, it is utter nonsense.
David Nir:
The amazing thing to me is that let's say some court did sign on to this and tried to force the Senate to hold a floor vote, and the Senate said, "Okay, well hold a floor vote." It feels like LaSalle is cruising for a bruising anyway, because Democrats have a super majority, 42 seats in the 63 member state senate. Republicans have only 21 seats. We just saw in the vote on the committee that only two Democrats voted in favor and 10 voted against. So with a ratio like that, I don't really see how LaSalle would even get to a majority of the 63 member Senate.
Quinn Yeargain:
I think that's a big part of it too, and I think that it relies on two conditions that I don't think are necessarily met. The first of them is that every single Republican in the state senate will vote to confirm him. Maybe, maybe it's a good chance to give the left in New York state a black eye, maybe. But then you also have to think the governor is choosing, choosing to go down a path of degrading so horribly her relationship with the state Senate. If the state Senate is forced to vote on this, how does that result in a sufficient number of Democrats in the state Senate voting yes? Because if I am Andrea Stewart-Cousins, the majority leader, and I am in this situation where I have to schedule this floor vote, I'm sure as shit going to be whipping every single member that I have to vote against it because no, I'm not going to have the governor step in and tell me how to manage my chamber.
David Beard:
I think you have to imagine that if you're one of these swing Democrats who hasn't come out and taken a position on LaSalle, and by some measure the executive and judicial branches come together to force a vote on the state Senate, and you have 20-plus Democrats already out and opposed to LaSalle, do you really want to align yourself with the minority of Democrats and the Republicans? Maybe get yourself a primary challenger the next time you're up for election after all this to vote for this guy, or just take what seems to be the much clearest, safer vote for any New York Democrat almost who hasn't taken a position and vote against him. So there's really no result where he actually probably becomes chief judge at this point. It's just like when will Kathy Hochul realize that?
Quinn Yeargain:
I think another big part of it is if Kathy Hochul came in with giant coattails, and it was the case that swing district legislators were concerned about being seen as insufficiently supportive of her agenda or in any way where she is not an anchor on them, I think there's a good case to be made here that swing district state Senators view her as an anchor. Okay, maybe they're opposing him for whatever the wrong reasons are, whatever, but they get to say, "Look at this. I stood up to Kathy Hochul and said, 'No.'" It's the exact kind of stuff that red state Democrats loved doing during the Obama years. It really does not make sense to me at all why anything like this would happen.
David Nir:
So Quinn, we should wrap up, but before we do, what happens next? I think there's a couple of paths here, but let's assume that LaSalle does not make it onto the Court of Appeals. Either his nomination dies right now following this vote of the committee, or let's say, there is a floor vote and he loses on the floor. What happens? Does Hochul go back to the drawing board? Does the commission come up with a short list again? Can she pick from that first list of seven names, what goes on?
Quinn Yeargain:
On? I think that there is a little bit of ambiguity about this from some of the discussions that I've been seeing. I think it depends on how his nomination is ultimately dealt with. If she chooses to withdraw it, I think she may be able to go back to the original slate of nominees. If it's voted down, then it's my understanding that the Commission on Judicial Nomination will have to start over and solicit more names, and this could be... I don't think that this is what she's doing. You could imagine a lawsuit that tries to answer that question of: has he actually been rejected by the state Senate or are they just not going to consider his nomination anymore to try to ascertain which path we have to go down? But that's separate then, forcing the state Senate to do something. You might just need an opinion from a court as to what actually happened here.
I don't know. It seems as though we're careening towards some sort of resolution in the courts in some form or another, whether it's just figuring out exactly what happens next, because again, this is an unprecedented situation. We haven't encountered this situation since the 1970s when this process was adopted, so it hasn't really been executed. So I do think it will come down to the reason that his nomination is ultimately not confirmed, where there is a plausible case that if she chooses to withdraw that she can just pick another nominee. Maybe that's potentially what's going on here too, that she doesn't want to pick from one of the other nominees. She wants an entirely new slate and getting the state Senate to just say no is easier. I don't know. It feels like just wild guesses at this point like, maybe she's doing this and maybe she's doing this. I have no idea.
David Nir:
Well, I don't think we have any better idea, but Quinn Yeargain, thank you so much for joining us to discuss this late breaking news. You can find him on Twitter at, Yeargain, Y-E-A-R-G-A-I-N. They also are the publisher of Guaranteed Republics, a new newsletter that you can find on Substack, definitely recommend you check it out. Quinn, thanks so much.
Quinn Yeargain:
Of course. Thank you.
David Beard:
That's all from us this week. Thanks to Tiffany Miller and Quinn Yeargain for joining us. The Downballot comes out every Thursday everywhere you listen to podcasts. You can reach out to us by emailing thedownballot@dailykos.com. If you have an already, please subscribe to The Downballot on Apple Podcasts and leave us a five-star rating and review. Thanks to our producer, Cara Zelaya, and editor, Trever Jones. We'll be back next week with a new episode.