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Political Wire logo 2020 Democrats Hit College Campuses
Warren Calls for End of Electoral College
Nunes Sues Twitter for Allowing People to Insult Him
Trump Repeatedly Inflated His Net Worth to Deutsche Bank
Another Prosecutor Leaves Mueller’s Team
A Damaged Soul and a Disordered Personality

TODAY'S HEADLINES (click to jump there; use your browser's "Back" button to return here)
      •  Biden's First Gaffe of This Cycle: I'm Running
      •  Gillibrand is Definitely Running
      •  Trump Starts Deep in the Hole for 2020
      •  Trump Bashes McCain
      •  Sanders Bashes Trump
      •  Washington State Senate Passes a Bill Requiring Candidates to Release Tax Returns
      •  Monday Q&A

Biden's First Gaffe of This Cycle: I'm Running

A political gaffe is usually defined as when a politician accidentally tells the truth. Joe Biden is no stranger to gaffes, and when addressing a group in Delaware Saturday, said: "I have the most progressive record of anybody running for the—anybody who would run." Before he could backtrack more, the audience was on its feet, cheering. If that weren't enough, earlier in the day Sen. Chris Coons (D-DE) told reporters that he had spoken with Biden just before and the former veep was almost certain to run.

That would surprise no one, of course. Biden would love to be president. He has already run for the office three times and come up short. Maybe there should be a message there for him, but apparently he does not think so. Only this time, the odds are longer. He is well known, but he doesn't sit well with the activist base. They are not looking for an old white man who didn't treat Anita Hill well, and has been best friends with banks and credit card companies for decades. His strength is that he might bring the white working class back into the Democratic fold, but Sen. Amy Klobuchar (DFL-MN) and former Colorado governor John Hickenlooper could also do that. When the campaign really gets going, Biden's long track record will be front and center, including things that might have been popular back when he did them, but are not so popular now. (V)

Gillibrand is Definitely Running

Sen. Kirsten Gillibrand (D-NY) is now officially running for president. No one doubted it, really, but her video confirms it. The video hits most of the right notes for a liberal Democrat: universal health care, ending gun violence, paid family leave, getting money out of politics, etc. But there is little in her video to distinguish her from a dozen other Democrats who support the same policy goals. The one issue that is hers alone is fighting sexual violence in the military, but it is doubtful that is enough to light a fire under many Democratic voters. She's a woman, but there are close to half a dozen women running, so that doesn't set her apart from the others, either.

One thing Gillibrand is going to do that will get a lot of attention though is that on Sunday she will give a speech in front of the Trump International Hotel in New York. The contents of the speech haven't leaked yet, but she might paraphrase Shakespeare with: "Friends, New Yorkers, and countrymen, lend me your ears. I come to bury Trump, not to praise him." We'll soon know.

Time will tell if she can make it to the front of the pack, but a recent Morning Consult poll has her behind seven other Democrats, with 1% of the vote. In the four small states that go first, she is eighth. In politics, a week is a long time, but she has her work cut out for her. (V)

Trump Starts Deep in the Hole for 2020

Axios' Mike Allen has an interesting piece about Donald Trump's chances in 2020. Allen sees that demographic changes are making Trump's road to victory narrower. Among Southern states, North Carolina, Georgia, Arizona, and even Texas may be in play next time. None of them were in 2016. This means that Republicans are going to have to spend money in states that should be free. Taking three or four states from the "definitely red" column and putting them in the "lean Republican" column isn't a plus for Trump.

In the North, Trump eked out tiny wins in Michigan, Wisconsin, and Pennsylvania in 2016, in part because many voters hated Hillary Clinton. She won't be on the ballot in 2020. Also, Democrats won easy victories in both Senate and gubernatorial races in all three states in 2018. That shows that the Democratic Party is far from dead in the Midwest. With the right candidate, the Democrats could win all three. Polls put Trump's approval rating well below 50% in all three of them. That has to be worrisome to his staff.

But presidential races are about a choice, not about the president's approval, and Trump is brilliant at caricaturing his opponents and dominating the media. It will take a special kind of Democrat to be able to stand up to the onslaught. In addition, after a brutal primary, the Democrats may be badly divided, with supporters of the losing candidates saying: "I'm not going to vote for the lesser of two evils." (V)

Trump Bashes McCain

Donald Trump doesn't know when to stop. Over the weekend, he bashed the late senator John McCain, who has been dead for 7 months now:

McCain's daughter, Meghan, immediately tweeted: "No one will ever love you the way they loved my father."

Trump has various gripes with McCain. One of them is that McCain fought in Vietnam and was captured. Trump dodged the draft, so the comparison doesn't look good for Trump. Another, as (clumsily) alluded to in the tweet, is that McCain allegedly gave the FBI the dossier about Trump that former British spy Christopher Steele compiled. Trump would have preferred that McCain had shredded it.

Finally, McCain's thumbs down vote on Trump's plan to kill Obamacare was the deciding vote. Trump can't get over that. Still, it is hard to see how attacking a decorated, dead, and much-admired veteran and senator is going to get a lot of suburban women to vote for Trump in 2020. (V)

Sanders Bashes Trump

Most of the Democrats running for president are largely talking about health care, paid family leave, and other bread-and-butter issues. They aren't saying much about Donald Trump. Not so Sen. Bernie Sanders (I-VT). He attacks Trump all the time. He calls Trump "the worst president in American history." He says that Trump "does not know the difference between truth and lies." He denounces Trump's attacks on the media as "beyond disgraceful." None of the other Democrats are nearly so angry.

Might Sanders' strategy work? He comes across as very authentic and very angry, which is certain to strike a chord with many Trump-hating Democrats. It could propel him to the Democratic nomination, but might end up as a liability with independents and Republicans for whom his diatribes could be a bridge too far.

Sanders has another strength that the others don't have. His pitch that the system is rigged for the rich is sure to get him some votes among working-class whites all over the country who feel the same way. None of the other Democrats have come out swinging the way Sanders has.

Beto O'Rourke didn't even mention Trump in his launch video. Sen. Kamala Harris (D-CA) has merely said that we need a new president. That is hardly the passion that Sanders has. Whether dumping on Trump and promising to break up the big banks will get Sanders the nomination remains to be seen, but so far most polling puts him either first or second (after Joe Biden) in the race for the nomination. (V)

Washington State Senate Passes a Bill Requiring Candidates to Release Tax Returns

By a vote of 28 to 21 along party lines, the Washington State Senate has passed a bill requiring all candidates for president to release 5 years of tax returns. Democrats control the state House by a margin of 57-41 so it is sure to pass the lower chamber as well. Gov. Jay Inslee (D-WA), who is running for president, is certain to sign it, as he has released his tax returns on previous runs for public office.

If the bill becomes law, it is certain to be challenged in court. On the one hand, the Supreme Court tends to give the states a fair amount of leeway in drawing up their election laws. On the other hand, the five Republican appointees could easily rule that states can do whatever they want for state offices, but for federal offices they can't impose any requirements not in the Constitution.

In a sense, the bill doesn't matter. All the Democratic presidential candidates are sure to release their tax returns, so it won't affect any of them. If the Court upholds the law, Donald Trump won't be on the ballot and thus won't be able to win the state. Of course, Washington is so blue that Trump has no chance to win it even if he is on the ballot.

Nevertheless, it still matters some. First, some Republican voters may stay home in 2020 if they can't vote for Trump and that could hurt downballot candidates. Second, if the Supreme Court gives the green light to this bill, it could encourage a dozen other states to do likewise, including the swing state of Colorado, which the Democrats control. That would actually hurt. (V)

Monday Q&A

Another day, another dollar, and another good mix of questions.

Can you envision a scenario in which a presidential pardon gets deemed an illegal act, and then gets voided? Is that even possible? M.N., San Jose, CA

The Constitution doesn't put too many limits on the pardon power, and the matter has not been fully explored by the courts, so the answer to your question requires us to connect a few dots. Nonetheless, the weight of the evidence suggests that there are indeed scenarios where a pardon could be voided.

The most obvious kind of pardon that might be voided would be one in which a president tried to pardon himself. There has been some disagreement on this point, with some folks suggesting that a president can indeed pardon himself, but the vast majority of the legal scholarship comes down on the side of "no, he can't do it." This is true today, and it was true in 1974, which is a big part of the reason that Richard Nixon did not try to pardon himself. The major arguments here are that: (1) the power to self-pardon would put the president above the law, which is clearly not what the framers of the Constitution envisioned, and (2) the power to self-pardon would violate the precept, foundational to American (and English common) law, that no man may be his own judge.

There is also another issue in play here: A president cannot utilize the powers given to him by one part of the Constitution in a manner that violates some other part of the Constitution. For example, if Donald Trump had responded to the violence in Charlottesville by pardoning all the "good people" who are white, but not the ones who are black or Latino or Asian, that would violate the Equal Protection Clause, and the pardon would be subject to voiding. Similarly, Article II, Section 3 decrees that the president "shall take Care that the Laws be faithfully executed" (this is generally referred to as the Take Care Clause), while Article II, Section 1 specifically requires the president to take an oath to "preserve, protect and defend the Constitution of the United States" (this is generally referred to as the Oath Clause). If a president tried to pardon himself, or his friends/cronies/underlings in order to facilitate the commission of a crime, he would be violating both the Take Care and Oath clauses, and such a pardon would also be subject to voiding by the courts.

Finally, there is near-universal agreement that a pardon granted in exchange for a bribe would be fraudulent, and subject to voiding.

The big question for the Democrats in 2020 (other than who is running) seems to be whether they will go left to energize the base, or appeal to the center to recapture Obama-Trump voters. It seems to me, though, that going left will only drive the center back toward Trump, while the base on the left would likely vote for the eventual Democratic nominee anyway, just to avoid 4 more years of Donald Trump. Surely, Democratic candidates on the left at least understand this, even if they don't agree with it. So, what is the overall benefit to the Democrats to appeal to the left, rather than the center in 2020? Or, is this all just a show for the primaries by each candidate before the party as a whole realigns toward the center for the general election? P.F., Fairbanks, AK

To start with the final part of your question, it is true that Democratic presidential candidates often tack leftward during the primaries, and then center-ward during the general election. There are some candidates who could very well run that playbook this year (Beto O'Rourke? Joe Biden?). But there are also some who are going to stick to a progressive/lefty message throughout, like Bernie Sanders and Sen. Elizabeth Warren (D-MA).

As to your main question, you're operating on the assumption that there are only two options for young and/or progressive voters: the Democrat or Trump. But that overlooks two other possibilities: vote third party or stay home on Election Day. A candidate who does not get the progressive wing excited is going to lose out on a lot of money, and a lot of volunteer time, and very possibly a lot of votes. That candidate certainly could assume that in the end, the desire to defeat Trump will conquer all. And, after four years of his being in office, that assumption may prove correct. On the other hand, Hillary Clinton operated under that assumption, and consequently focused much of the latter part of her campaign on how horrible Trump is. We all know how that worked out.

My question has several parts: (1) In plain language, what are the significant reasons the Founding Fathers created an Electoral College instead of allowing citizens to vote directly for a president?; (2) How can the Electoral College remain "legitimate" vis-a-vis the Supreme Court ruling of "One man, one vote?"; (3) Finally are there any reasons why the American polity has not directly addressed the legitimacy of this institution? D.S., Albuquerque, NM

For those who are interested we have a lengthier essay about the Electoral College.

Anyhow, there are two primary reasons that the Electoral College was created. The first was because the small states at the time the Constitution was written (Rhode Island, Delaware, Georgia, Connecticut, etc.) were a little leery about the document, particularly about the risk that they would be turned into the lackeys of the big states (Virginia, Pennsylvania, Massachusetts). Giving those small states outsized influence in choosing the president was a way to assuage (some of) their concerns. The second was that the framers were a little nervous about pure democracy, and the possibility that the "great unwashed" might make stupid choices. So, the Electoral College was an insurance policy against that. The Framers hoped that the electors would step in and override a truly bad choice. Alexander Hamilton wrote on this subject in Federalist No. 68, arguing that the Electoral College would act as a hedge against candidates whose only selling points were "talents for low intrigue, and the little arts of popularity." He might have been in error about that.

Moving on, "one man one vote," addressed most famously in Reynolds v. Sims, is an intra-state principle. In other words, the Supreme Court ruled that it's not fair for one representative or one state legislator to represent 10,000 people when another one in the same state represents 50,000—the districts have to be drawn reasonably equally. But this principle is not inter-state. Since the framers specifically built into the Constitution that some people's votes count more than others in federal elections, both in the case of the U.S. Senate and the Electoral College, it would not be in the purview of the Supreme Court or Congress to declare otherwise.

Finally, to get rid of the Electoral College would require a constitutional amendment, which in turn would require the support of three-quarters of the state legislatures (in other words, no more than 12 states could object). Given that the setup gives undue power to small states, and massive undue power to swing states, there are far more than 12 states that have an incentive to keep the current system. So, no amendment.

I just happened to wonder at the site's regular use of the word "shenanigans" to describe attempts at voter suppression/vote stealing. "Shenanigans" seems to me to be a very mild, almost comical sounding way to describe very undemocratic, downright criminal behavior. So I wondered at your use of it. R.K., Minneapolis, MN

We do what we can to point out bad behavior without erring on the side of preaching or editorializing more than necessary. It seemed to us that 'shenanigans' navigated that divide pretty effectively. However, you may be right that it's a bit too soft, and that our verbiage should be a little sharper. We will reflect upon that.

Are there estimates for how much it will cost annually to maintain Donald Trump's wall, if built? S.R., Kansas City, MO

In his budgets, Donald Trump tends to obscure how much money he wants for building, how much he wants for repair, and how much he wants for maintenance. So, for those who want a ballpark answer, it is necessary to look at Barack Obama's final budget, where he asked for $274 million for maintenance of the existing fencing. Trump's wall, if completed, would be roughly three times as long as the current barrier, and so a crude estimate of the maintenance costs would be 3 x $274 million, or $822 million in annual upkeep. Of course, the hypothetical Trump wall would be built on particularly challenging terrain, and often in places that are pretty far from the populated areas. So, it seems likely that $822 million is a little low, and that something like $1 billion is closer to being correct.

The next most senior Republican after Sen. Chuck Grassley (R-IA), the current President Pro Tempore, is Senate Majority Leader Mitch McConnell (R-KY). Assuming Grassley retires before McConnell, and the GOP retains the Senate majority, will he be chosen as both PPT and Senate Majority Leader? Is there anything barring this, and has a similar situation ever happened? J.M., New Glasgow, Canada

What the GOP would do in this hypothetical circumstance is anyone's guess. Having one person in both posts hasn't happened before, but it's not prohibited, either. In fact, a number of constitutional scholars have suggested that the Senate Majority Leader and the President Pro Tempore really ought to be the same person, reasoning that the most important role of the PPT these days is their place in the line of succession, and that it hardly makes sense to consistently have someone who is an octogenarian or a nonagenarian in line for one of the most physically demanding jobs in the world.

In your profile of Stacey Abrams, you mentioned that Abrams was meeting with Joe Biden, potentially to discuss being his vice presidential candidate, and that she would be a very attractive VP candidate if paired with an old, white centrist like Biden. This got me wondering: Have presidential candidates ever declared their VP candidates from day one of their campaign, or at least well before they win the nomination? Why doesn't an earlier declaration happen more often? It seems like it would be a great way to project that you want your administration to include multiple factions of a party that includes a variety of individuals and ideologies. A.J., Baltimore, MD

First, recall that presidential and vice presidential candidates were chosen by their party conventions up through the 1940s and 1950s, so there was no real possibility of a nominee or an aspiring nominee to jump the gun on their running mate prior to that time. Since then, no person who landed their party's nomination named their running mate extra early, with the obvious exception of presidents who were running for reelection and who confirmed that they would keep their VP on the ticket a second time.

There are at least four reasons that we don't see too many early VP declarations:

  1. Waiting on a VP choice allows a candidate to assess, and address, their greatest area of need
  2. The VP announcement is a nice PR boost, often timed to steal attention from the other party's convention
  3. It might look presumptuous to voters
  4. Candidates for office are leery of breaking with precedent, and tend to do things the way they've always been done

Given how crowded the Democratic field is this year, it's certainly possible that two of the candidates might declare themselves to be a ticket, to separate themselves from the crowd. However, that would likely come off as a stunt, just as it did with Sen. Ted Cruz (R-TX) and Carly Fiorina in 2016, or Ronald Reagan and Sen. Richard Schweiker in 1976.

Note that none of this precludes the possibility of secret agreements, along the lines of "If you don't get the nod, I'll trade you the VP slot in exchange for your delegates." That sort of thing has certainly happened.

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---The Votemaster and Zenger
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