 Okay. Welcome, everyone. I don't want to start too late. We only have an hour. I am Beth Daly. I am the Executive Editor and General Manager of the Conversation US. Many of you are here because you read us and you know what we do, but I'm going to take about one minute to get a little more in depth than introduce Naomi to start our very informative and exciting panel on democracy today. So the conversation, if you read it, you know that we're trusted, we're explanatory journalism, we're analysis. But it's done every day through this incredibly unique collaboration between academics, scholars that really know what they're talking about who write for the general public. And we have a team of about 22 editors who edit and collaborate with them to basically produce digestible journalism in the public interest. We're in about 800 to 900 news outlets each month. We're read about 15 to 16 million times. Everything from Washington Post to scientific American. Some of you go to our website, but many of you read us on small news outlets like Kitsap Sun or large ones like Los Angeles Times. So that's who we are. I want to sort of, before I introduce Naomi, tell you sort of the rules of the road for today, which is going to be a vibrant and spirited conversation. We want you to be part of it. We'd like you to post questions on the Q&A. And then we have someone behind the scenes who will give Naomi questions to ask our panelists and discuss. We found out it works better this way. So that's wonderful. So please make please do use the Q&A button. It's quite important and we're really eager for your questions on this incredibly important topic. So I'm so pleased to introduce Naomi Shalit, our senior editor of Politics and Democracy, second time around for senior editor. Naomi tried to escape us through semi-stepping back, but we lured her back in. I don't know for how long. So Naomi is a graduate of Princeton where she earned a degree in Religion in New York Eastern Studies. She began her career at the San Jose Mercury News, one of the great news outlets that has definitely been decimated a bit. She's been at main public radio, edited the opinion pages for two main newspapers, and with her husband, founded the Main Center for Public Interest Reporting, which continues today. Very great investigative nonprofit news outlet. And without further ado, I'm going to pass it over to you, Naomi. And I'm going to go hide myself and I'll see everyone at the end, eager for this. Thanks so much, Beth. This is the year where politics and democracy and law all come together in the coverage of an election. I've covered many elections over a 35 year career. This is the hardest and most unusual, certainly presidential election that I've ever covered. And that almost every political journalist would tell you that because we're not only covering an election between two candidates or two likely candidates. We're also covering four criminal indictments and two constitutional law cases of enormous importance. So I'm going to introduce the two scholars. That's probably the most you're going to hear from me today, except when I asked some questions. Both of these scholars have written a lot for us and all of it in an attempt to help you understand what's behind the daily news headlines. Stephanie Lindquist, who has just been named the new dean for the Washington University in St. Louis School of Law, has been on Arizona State University's faculty since 2016 and currently serves there as executive director of the Center for Constitutional Design where she's helped to facilitate national dialogue about constitutional norms. Lindquist is a nationally recognized constitutional law and U.S. Supreme Court expert. If you read the conversation, you have seen her many stories 18 since 2018 for us on a number of topics, including the Trump prosecutions as well as the Constitution and the rule of law. She's written that many because she's a joy to work with and because she has expertise in the two colliding worlds that we used to cover separately as journalists, law and politics. Charlie Hunt, Charles R. Hunt, if you want to understand how Congress works and why it does what it does, Charlie hunts your man. He teaches and researchers at Boise State University in Boise, Idaho. He's written two books, one a textbook about Congress and the other about electoral advantages members of Congress get from having deep local roots in the places they represent home field advantage. His stories from the conversation have ranged from a piece about how Pennsylvania's voters were unlikely to reward the carpet bagging Dr Oz with a place in the Senate to a series of pieces that were we've run two of them now and have many more in the Senate during this election year that look at fundamental myths and truths about politics and each of those latter stories includes a wonderful little video from Charlie explaining what he's been what he's saying in the story. So I'm going to start with a question that's going to both of you scholars. And then I'll have individual questions for you and then eventually we'll get to the to the audience's questions. Many people are saying that democracy is at stake in the upcoming election. Stephanie and Charlie let's start with Stephanie what does that mean to you. Thank you Naomi and thank you for inviting me to join you on this webinar it's really exciting to be here and I'm a huge fan of the conversation as you know one of you, and of your team so appreciate the opportunity to be here. What's at stake here are the continuation of our constitutional democratic norms. We have seen in the past some of those norms being eroded, and I can give you an example. One is the perpetuation of a myth was there several examples one is the perpetuation of a myth that the election was stolen, and that is indeed a myth the one is simply not there that there was any fraud in connection with the 2020 election. And in addition to that we've seen the undermining of other norms so for example, it has always been the case that a presidential candidate has the opportunity to appoint Supreme Court justices and we saw the unfortunate, I would say undermining of that particular norm, when Gary, when Merrick Garland was denied the opportunity of a hearing in the Senate. And I think when people talk about the demise of democracy they're focusing mainly on allegations of election fraud because that really does undermine faith in our institutions and our democracy. I think that's the concern. In addition to that we're seeing an erosion of these very important norms that really underpin and undergird our democratic government. Thanks to Charlie. Thank you also thank you Naomi and the conversation I really love writing for the conversation, maybe even more than your readers love reading it though. I love reading it as well as a consumer so I really appreciate being a part of this. You know when I think about this question. I think about a an associated press poll from just a couple of months ago that found that about two thirds of American adults say that democracy in the US could be at risk depending on who wins the presidential election in the fall. This includes majorities of both Democrats and Republicans so both parties feel this way. But obviously they feel this way for very different reasons for folks on the left there's obvious concern about electing someone again who is, you know, an avowed authoritarian who as Stephanie put wonderfully just then you know, made all kinds of false claims about the election, and then incited a ride at the Capitol when those claims didn't take. You know, the right has centered their own concerns in, you know, things like government overreach and undeniably growing federal government, but also in the fact that, you know, a majority of folks on the right a majority of these Republicans. I believe Donald Trump's claims about 2020 and seem ready to believe that any loss that he might face sort of must be a result of cheating or dirty tricks right. So when I think about a democracy being at stake in this in this election, you know I do have those same significant concerns that Stephanie talked about you know about the misinformation and false claims and things like that. But broadly, you know about how whatever the outcome is later this year, the sort of growing reality that more and more of our beliefs as a country about democracy itself seem increasingly irreconcilable. Okay, on that cheerful note. My job every day I come in to document what's happening to democracy in America. So, Charlie last year was the least productive year in Congress in the, and at least 50 years according to the Washington Post you could quibble with how they defined it but it's, it was spectacularly unproductive. It wasn't even an election year is democracy just not working anymore. Yeah, I mean what I've been saying is you know this is the number of the Congress is this is the 118th Congress and I like to say you know 118th this might be the worst one yet. But, you know we have a recipe, you know part part of this is sort of run of the mill like we have a recipe right now for inaction that is not unique to this time right we have divided government. And we have a divided Congress right we have a president of one party, a house that's controlled by the other. And we have a Senate that is just barely controlled by the Senate by the President's Party. You know what, what is newer is this is what seems increasingly to me like a total misalignment between the House and the Senate, you know the House and the Senate have always been at each other's that you know almost as competitive with each other as the two parties, but it sort of goes beyond party control and goes to the cultures of those two chambers and so you know when we talk about a dysfunctional Congress. I do put the blame a little more squarely on the House, you know the Senate has generally answered with a little more urgency than the House some of these major issues around the border around Israel around Ukraine right. But you know despite all of this inaction reelection rates in Congress remain as high as they've ever been right 90 plus percent of members get reelected when they choose to run again right so how on earth could this happen. The answer is that we have increasingly kind of one sided districts in terms of the electorate so we have very red or very blue districts. You know, things like gerrymandering play a role in this although it's not the only, the only cause. And, but regardless of the cause, you know the members of Congress, you know are clearly identifying the groups of voters in their districts that they need to win reelection so in a kind of perverse way they are being responsive. The voters they're being responsive to right are generally more ideologically extreme than the rest of the country. And so that's one problem. The other thing here is that a lot of newer members of Congress seem to kind of see Congress not so much as a place to put your head down and get some work done right, but maybe more as a kind of public relations pit stop on the career ladder. You know a chance to kind of make some noise and get in front of a camera and I'm not just talking about Matt Gates here although he's kind of a poster child. And so, you know I'll sneak in here a word of caution about reforms like term limits which I know a lot of people like but you know just know that you might end up with some more, you know what we call show horses rather than work horses in Congress if you do things like that. You know the last thing I'll say about this is the way the modern Congress operates, you know backbenchers don't have a ton of control and so Congress is only as good and effective as its leaders. And I think sort of between both chambers over the past year we've seen that there's a lot left to be desired in terms of having a well organized well directed legislative legislative process by leaders who a know what they're doing and be can hold the seat for more than eight months. It's been a big problem as well. Okay, great that's really helpful to understand that Stephanie that the, not to pick on Congress but let's pick on Congress. The current Congress is on track to be the most polarized ever and the American public is similarly politically polarized so we hear the word polarized a lot polarization. Can you actually define what polarization is and how our democracy can or can't respond to this polarization. Sorry about that. I think of polarization in different ways, depending upon whether you're looking at the elite or at the regular electorate, the writ large. It's easy to see polarization elite and the elites because Charlie, as I'm sure has documented in his various books, you can see over time how polarization Congress has emerged and has become profound. So, for example, there was a time when Democrats and Republicans would vote together to enact legislation. And unfortunately, what has happened if you look at the data you see the Democrats and the Republicans divide. And they divide in the in the sense that they refuse to collaborate and up to in terms of enacting legislation. So they don't vote across the aisle. And that's what's really become exceptional in this current age that we live in, where we just simply don't see we might see a little as Charlie pointed out, but we really just don't see those legislators operating across the aisle. So when it comes to the elites in Congress, it's easy to see it because you just look at their voting behavior. And one thing I'll add about that, just to highlight a point that Charlie made one of the issues that's happened in our in our electorate in our elites among our elites is that elections are so close today. With really on a razor razor's edge of 5050, that the stakes have become extremely high, right. And they're so high that it's difficult for either party, either faction to give in to the other party. So that is one of the issues that that we have there's very little movement around that 50% point and I'm sure Charlie can share some data with us in the electorate in the population. Polarization is, I think, evident in terms of people's attitudes, opinions and beliefs, and those attitudes, opinions and belief beliefs have also diverged greatly over time so that you see, and it's, it's quite remarkably unidimensional in the sense that the groups really have deviated from each other, they're at polarized ends on issues of immigration, abortion, etc. And they tend to be quite the word is a cluster, unidimensionally around those issues and that's what we're seeing in the population. And as Charlie has mentioned, you know, in terms of getting our democracy back on track, we have to think about some of the reasons for the polarization the electorate. And before we can, you know, identify a solution to these causes. And I just jotted down several causes, some of which Charlie has already mentioned, but I think it's worth mentioning in this webinar. One is that primaries, primary elections, bring out the extremist voters to vote because of the most motivated to vote and therefore they are going to elect the most extreme candidates that of course presses away from the middle to the extremes, in terms of the kinds of people that we elect to office that is a considerable concern, gerrymandering has the same effect by creating very heterogeneous or sorry homogeneous districts. And so by doing so they tend to elect people that are a little more extreme as well so we have, and they're they're quite predictable and who they're going to elect. And gerrymandering is a big part of this. But Keith pool, who was one of my colleagues at the University of Georgia argued that in fact that one of the biggest causes of polarization is the big sort that in the electorate people have become so polarized in their attitudes and opinions, much of which is driven by populism, identity politics and social media, that they really want to live and actually get married to people that like minded people. So there was a time, of course we know, when Americans would, you know, if you're a Republican from a Republican family you'd be happy to marry a Democrat. No more it's not as welcoming for a family to welcome in to, you know, welcome in someone of a different political party and the big sort really is so evident people are moving to states and the communities that they feel that they will be, you know, more comfortable ideologically. So primaries gerrymandering the big sort, the rise of populism populism is anti establishment politics and anti elitism, and that tends to drive extreme politics as well. So we can talk more about identity politics and social media but those are the reasons why we have this polarization to reverse these processes. I look to see to hear what Charlie has to say, very difficult, probably has to be one of the grassroots level, where we actually start the actual, you know, people in the electorate refuse to allow ideological differences to divide them so much that they cannot be neighborly. And that, I think is what we really need to work on together. An interesting point you make because we ran right before the Super Bowl. There are two scholars who study how polarization and partisanship has infected our food choices as well. And so they laid out what a conservatives table at a Super Bowl party would be and what a liberals table at the Super Bowl party would be. So you raise the issue of how do we get at this, which was the question I was going to ask Charlie but before I'm interested in how do we get at it in Congress but you've actually spoken more about how to get at it in the grassroots and I'm wondering, is ranked choice voting some form of the experiments that are being conducted in Alaska and Maine. And I think California with sort of jungle primaries and different non partisan ways to get people out to vote. Can those help address what you're talking about Charlie you want to take this. Sure, I'd be happy to. I do think they can help. But I think there are a couple of other core issues. Here's, you know, some of which Stephanie spoke to really well I think, you know, one thing I always tell my students is that polarization is a measure of distance right. We are talking about, you know, the parties have always in certain ways been on one side or the other but there used to be more overlap, you know, not so anymore. You know, the most the most conservative Democrat in Congress is more liberal than the most liberal Republican in Congress, which which certainly did not use to be the case as recently as 30 years ago 20 years ago even. And, you know, to me there are sort of two core problems here you know one is institutional. One has to do with sort of the public will. So, you know, for example in this election you're coming up most Americans report that they cannot stomach the matchup that we are headed towards here. This rematch of 2020 right nobody seems to want this and yet here we are. And so, you know if you want to avoid stuff like this in the future if you want to think about you know how did we get here, and how can we make sure we don't get here again with this, this match up that nobody seems to want. You know one would be a real breaking point and change in the end sort of appetite political appetite on the voters part in terms of things like support for a third party and maybe we'll talk about in a little bit. This is so difficult to achieve. And then I think the other one is more structurally you need these kinds of changes and how we run our elections. So, you know, I'm, yeah, major reforms like rank choice voting like campaign finance reform like more proportional systems of representation and elections that make sense to voters and have outcomes that we can understand right. Maybe also doing away with, you know, some of these other kinds of outcomes that voters sort of put up with but don't really understand or don't know how to justify and I'm talking about things like the electoral college. And, you know, I don't see either of these things right you know a massive new third party or a these major sort of root fundamental level changes to elections, as all that likely in the short to medium term, but we have changed our system in the past right In the 1970s, we didn't really have any kind of meaningful presidential primaries before the 90 for the early 1900s we didn't even directly elect our senators our state legislatures did that right. So we can change and we have changed it's just a question of whether there is a public will to do so. Right, how well that public push can be organized and that's where I think I think Stephanie's right I think that's where a lot of that grassroots push really comes because we have learned that we can't necessarily trust our leaders to sort of tackle these changes right especially if they have so much at stake. And then yeah whether lawmakers are in the mood to kind of to follow that will and follow the lead of their of their voters. I think most likely you're right Naomi that you know you're going to see a lot of these changes at the state level first and a lot of states are doing really interesting things rank choice voting is one of them. And so so that gives me hope that we that we might have states, you know, exercising that role as we call them these kinds of laboratories of democracy that they'll try these things out. We'll see evidence that voters are increasingly accepting some of these changes that you know we instituted a rank choice voting and we're all still here right that maybe then that will give more states the evidence they need and maybe in Congress, the evidence it needs to try to pursue these changes at a more kind of holistic level. Thank you that's a remarkably positive way of looking at the situation, and especially that at least at the local level these changes are local and state level are being made, which I think and the states are the laboratories of democracy. So, here's one place where that's the case. I'm going to switch a little from polarization, Stephanie, special prosecutor Jack Smith is said in a filing at the Supreme Court on the Trump. 2020 election interference case that delay in the resolution this a quote of these charges threatens to frustrate the public interest in a speedy and fair verdict, the national interest in resolving these charges without further delay is compelling. He wrote, presumably this refers to the 2024 presidential election, but Jack Goldsmith scholar at Harvard in law fair recently wrote that quote Jack Smith's rush to try Donald Trump violates Justice Department rules and presents tricky issues for the Supreme Court on the immunity issue. Can you explain what's at play here please. Well, I have a lot of respect for Jack Goldsmith. He's an extraordinarily, you know, insightful lawyer and has a lot of experience what he's getting at here is that the Department of Justice has its own rules that are very clear. That prosecutors and other officials in the Department of Justice cannot engage in any activity that might influence an election. This is where Comey came and got into some trouble when he was commenting on Hillary Clinton's email account, etc. because it looked like he was doing that or at least that's what happened as a result of what he said. And so and so Goldsmith is concerned that Jack Smith is is in violation of that principle and that norm within the Department of Justice is actually a rule. In terms of his pressure to have this go to trial prior to the 2024 election, and to Jack Goldsmith that looks like that's an effort to influence the election and that would be clearly in violation of the DOJ rules. I also might, on the other hand, offer an alternative perspective on what Jack Smith is doing. I think we know that if the trial is delayed till after the election. And if Donald Trump is elected this investigation and this prosecution will come to an immediate end. I suspect that the Department of Justice would close this investigation close the trial. That's at least been what has been proposed. And so one might say that Jack Smith is not necessarily attempting to influence an election. What he's trying to do is to seek justice before the opportunity for justice is coming to an end. And I think that's potentially an alternative perspective on what he is doing. Gotcha. Thank you. You know, I have another question for the two of you, but I'm seeing that we're close to 230 so I'm actually going to go to the questions from the audience that we have. So, aren't the Constitution and the structure of Congress, especially the Senate, inherently undemocratic. And there's a second question that's part of this won't the speeding train continue to rock from rail to rail with no way to achieve a more equitable democracy. Stephanie, you want to pick that one up first and then Charlie can take it. Yes, I mean, absolutely. We, I think better have a sort of a system of government that's better characterizes the Republic than a democracy in the pure sense. A democracy is when all of the people have an individual's vote on every policy matter that can come before the government. And of course, that's not the case. And we don't have pure democracy because we have all of these checks and balances and that's the way the framers anticipated that the government will work would work. They were concerned about in effect mob rule coming to dominate the democracy and its decision making procedures. And so they wanted to add these checks and balances into the process to slow government down and make sure demagoguery does not ultimately result in, you know, the public being swayed in one direction and the government following suit. So there's, there's a lot of benefits to having these checks and balances. And while having said that I want to say some are somewhat odd. Charlie has mentioned the electoral college and again that was put into place, because the framers were concerned that in certain circumstances. It may be the case that the electorate needed to be there. The result that came from the electorate needed to be modified by, you know, wise electors who are part of the electoral college and could moderate any kind of majoritarian impulses that could be negative or might be damaging to to the democracy. And that is an, but it's nevertheless a very odd system. And, you know, to Charlie's point about our changing some of our rules I 100% agree that changing our electoral procedures such as adding rank choice voting is one option we can do that without changing the Constitution. But the reader the viewer's question has to do with the Constitution and I think it's worth noting that we have not amended our constitution since 1992. That is because the constitutional threshold for many the Constitution under article five is quite high. It requires two thirds of Congress and then three to vote to adopt the amendment and then three quarters of the state have to ratify. There's an alternative way we can talk about but that's the major way that's used and think about achieving a two thirds vote in both chambers of Congress right now. Very difficult to do. So eliminating some of these checks on democracy as the viewer has suggested might be very difficult. I have Charlie do you want to tackle that or we've got some other questions that you could answer. I'll just add quickly that I agree with everything Stephanie just said. You know, I think it's important to you know we do have some of these core inequalities if we're thinking about for example the House and the Senate right it does strike. I want to recognize that it strikes certain strikes some I'm guessing it strikes the question asker who asked the question in a wonderful way by the way, the runaway train that for example, you know, you know California population 3839 million like that gets two senators and so does you know my the state I'm in right now Idaho which has you know a little over a million voters that does seem to kind of contradict this idea of one person one vote that is sort of suffused throughout our system. But you know you balance that alongside some of these other needs of checks and balances that Stephanie was talking about and so you know the other thing I'll say about the Constitution is that I think I think it's commonly attributed to Thomas Jefferson that you know he used to the other tongue in cheek or not that you know any Constitution is only truly legitimate for something like 19 years that it needed to be that that each new generation would be what we should have to start from scratch with a new Constitution right every generation. I wouldn't look forward to that process for us that seems a little chaotic. But I think it does sort of speak to Stephanie's point that it is really difficult to amend the Constitution and that's a good thing in a lot of ways, but that, you know, I think there is a growing sense that it's getting too difficult to make some of the changes that we need to make, especially when we have such a polarized law making environment and in Congress as we were talking about earlier. You know, there's a question here Charlie that goes to the previous column that you wrote about Iowa New Hampshire from a listener who says as a foreigner in this country. I see the presidential primaries as the most undemocratic election process, essentially half the country does not get to choose a candidate. And this year is certainly a case in point when the Republican candidate was essentially enshrined by possibly the least two populated states I'd add main to being a least populated state. So if you I'd love you to speak to that and and the idea that that was set up in the past as a reform, in fact, and now appears to be an impediment. Yeah, I think this is a really important question. You know, in some ways I mean if our main concern is how democratic a process is, then certainly it's an improvement on what we've had throughout most of American history, which is sort of party conventions, sort of you know, picking via these delegates, and not through actual votes, the these nominees, you know, on the other hand, you know, there's increasing talk of I'm guessing some of your readers, your, the conversations readers saw as reclines. You know columns this past week essentially saying that the democratic convention should pick the nominee instead of going with Biden. There's precedent for this in American history, but it would certainly strike many as not so democratic. In terms of the way we do primaries now, they are the result of reforms and there are some good reasons for staggering the primaries like this it does help make sure that individual states get plenty of attention from these candidates. But I think, I think that this, our viewers correct and that what we end up getting the lion's share of attention in Iowa and New Hampshire and just some extent South Carolina which is this Saturday. But even, even now we're only on the fourth primary fifth primary, and we're essentially down to two candidates for president on the Republican side. And so, you know, it would be there are a couple of advantages for, you know, going all at once if we if all these states voted on the same day. You know, number one, each voter in each state would have essentially the same, you know, the same voice in the process that would, again, go to that one person one vote idea. And the other thing it might do is it might increase turnout that having all of the primaries on the same day would make it sort of akin to the general election where there is lots of attention being paid. You know the countdown to election day and all of these things. And there would be a lot more certainty, right in the process. And so I would certainly be open to moving our primaries all to all to one day. And, you know, we see that with, you know, things like super Tuesday where we have, you know, a dozen or so primaries all the all on the same day and it gets a lot of attention and probably a lot of turnout as well. So, I think, I think that's a fair point. Just to add, oh, I'm sorry, go ahead. That's fine step. Go ahead. I was just going to add to add to the complexities associated with the primaries and is that the primaries obviously allow Democrats and Republicans to vote for the candidate. In some cases, the rules, you know, vary. They, they, in some states you're allowed to vote in the alternative parties, the opposing parties primary, which can moderate those extremists. Extremist candidates that we talked about, although I don't know there's any ever been a situation Charlie may know where crossover voting like that is actually made a difference. But my guess is, well, maybe in some small way it has. But it is interesting to think about how the variation from state to state also may either expand, you know, people's opportunity to influence the outcome of a primary or, or actually decrease that opportunity. Gets us back to federalism, which we were talking about a little earlier. So, a lot of what we're hearing out in public right now. And also there's a question that's come in is about is about dissatisfaction with the way the Supreme Court is ruling, at least from one side. And interestingly, I'm just doing a story on whether doing a story with another scholar on whether what is happening with Trump really the comparisons to Navalny made by him and his allies, taking that apart and saying is this really persecution, compared to what happened with Navalny and a big part of the answer to that is the judiciary is independent. So, one of the questions we've gotten is, you know, what remedies are available when appointed judges act with impunity job security applies to elected representatives but not the Supreme Court. My sense is the answer is they act with impunity. Indeed, they do once they're appointed now. There have been lots of studies that have shown that the Supreme Court does respond to public opinion at the margins. One of the my favorite theories here is by a scholar from Ohio State Larry bombs, who's hypothesized this thing called the Georgetown effect where when members of the Supreme Court come to Washington DC over dinner parties they end up talking to friends and colleagues and it moderates their views about politics and moves them into the middle. I don't know if there is some empirical evidence to show that that does actually work that way to some degree. But they do operate with impunity and of course there have been proposals to set term limits on the Supreme Court, etc. That would have in many circumstances would require a constitutional amendment. There have been some discussions that might be done legislatively but I think it would be challenged if it was done legislatively, it would be challenged in the Supreme Court and probably struck down. So we may want to rethink the structure, the institutional design of our Supreme Court. We are an outlier around the world in the sense that there are very few nations that appoint their highest constitutional court judges for life in the way that we do. Now remember there's one other way that we can check them through the appointment process they can be checked in the sense that politics can influence and potentially moderate the people that are appointed to the Supreme Court. But there is impeachment right they can be removed their impeachment that has happened once not not the removal but the impeachment. Back in the early days of the Republic there was a justice who was impeached justice chase, but not convicted so you know that that that solution does exist, but it is rarely obviously used. So we do, we do stand as an outlier in the world in terms of the power of our Supreme Court. The impeachment leads me to a question for Charlie Charlie you've just written a piece for us news and world report about the use of the impeachment power by the House and I'd love you to explain a little bit what your observations were there because I think they're really interesting. Sure I'd be happy to. So, you know, as, as we all know, you know we witnessed two impeachments of our previous president, both were, well both impeachments were successful but they were not ultimately successful in terms of conviction in the Senate. And, you know, to Steph's point this is a process that's put in as a method of accountability that there is this, you know the framers had this sense and I think it was the right one that there are extraordinary circumstances where you need a form of accountability beyond elections that some some actions that are taken some things that are said are so far beyond the pale and such a breaking of the oath of office that are elected officials take that you need a method of getting them out of there before the next election. And impeachment is is the process that they came up with and so, you know what I, what I wrote about was basically that you know this this recent impeachment that the house did this was a, you know, all for all intents and purposes a party line vote there were a couple of Republicans who didn't go along with it, but there were enough to impeach the Homeland Security Secretary Alejandro Mayorkas over, you know what they said was a sort of refusal to enforce immigration law. You know, I think, I think that's a charitable way of putting it I think I think in reality what we can say is that this is a policy disagreement that, and it's a serious one the situation at the border really matters. You know, to me this is a way of using impeachment that was not really what the framers had in mind. And, you know, to some extent I sort of connected it to and I don't think this is quite a fair comparison. Since I think you know the first impeachment of President Trump was over a significant, a significant moment where he, you know, in essence attempted to extort a leader we now know know very well, President Zelensky of Ukraine over you know to sort of dig up dirt on Joe Biden who at that time, and he turned out to be right that was going to be his opponent, and this sense that, you know, maybe that maybe the Democrats, you know, regretted going that route, once faced with what most Americans I think would agree is the much much more serious charge of inciting an insurrection on January 6 right that this was the one like that's exactly the kind of behavior that the framers had in mind like if it's not that than what. And that, and that you know there's this concern that the more you water down this process the more you use this process for simple policy disagreements. The more it's going to lose that actually really important power that Congress has to hold, not just not just for presidents but as Steph was saying you know Supreme Court justices or, or cabinet secretaries, accountable for, for these types of things and I think this is especially important for non presidents for cabinet secretaries and for justices. As Stephanie was just talking about these folks are not elected they're appointed and so, you know, accountability is this really key bedrock of, of democracy that if we're going to have a democracy voters and regular Americans need to have a sense that our institutions are accountable to them that's like the essence of democracy, and that if we can't have that. And if we can't have that through the impeachment process then you know what's the point. You know, just on that point to Charlie. The framers considered putting in the impeachment clause the word mal administration. That was some of the language that had been considered and a mal administration is, you know, sort of implies the idea that you've got someone who's incompetent administrating the law, then they can be impeached and they they decided not to use that language because the crimes or the high crimes and misdemeanors that were prosecuted and under the impeachment clause to be something significant in terms of a violation of public trust. Yeah, mal administration just doesn't jump to that level does it. I'm at you. So, this year the Democratic Party's opposition research arm American bridge is this is reported by Reuters trying to thwart third party presidential candidates by what Reuters said was flagging technical issues, or starting a legal third party candidates navigate a patchwork of laws to get on state ballots. Is it anti Democratic to try to suppress the candidacy of a third party. Steph why don't you start Charlie if you want to add that's fine. Well, and I don't want to steal Charlie thunder he's the expert in electoral politics but certainly it's Democratic for third parties to emerge I mean it's. But the problem we have in this country and it's I'm just going to cite of one of the few social science laws that actually exists and that's a thing called do verges law. And when you have a first pass the post single member district system that we have that we borrowed from the British. But it essentially meant it's essentially drives us toward a two party system, because people who might otherwise vote for a third party in a single member district realize that by voting for the third party candidate they're throwing their vote away. It's very difficult for third party third parties to emerge now in history of course, the Republican Party, you know, emerged from the wig party so we have had these kind of what we call in political science electoral realignments where parties shift the electric shifts and in its dedication or its, you know, adherence to a particular two parties over time. It would be nice if we had multiple parties but we don't have the kind of system that allows for them is the Democratic Party acting in a way that's anti Democratic well. You know, procedurally speaking if there's laws that place limitations on putting a third party candidate on the ballot, and they're able to take advantage of those. You know, procedurally speaking to be acceptable, but third party, you know third parties would be great they're just very difficult to achieve in the United States, Charlie. Yeah, I would I would totally agree with everything. Everything you just said stuff. You know I do think a true multi party system right by which I mean more than two right. Could right or would go a long way towards reducing a lot of the sort of zero sum conflict that we have between the two parties right now. You know if nothing else that you know this idea that you know any gain by one party is automatically means a loss on the others right any seat a Democrat wins means a Republican lost there right and vice versa. And I think stuff this is what you were talking about earlier with this the stakes the raising of the stakes I think I think having multiple parties beyond just these two would really ratchet down the temperature on polarization and threats to democracy I think in terms of producing possibilities for things like coalition governments like we see in other countries. You know in this case I think, yeah I think the Democrats might ease their guilt about this with the fact that yeah successful third party is made difficult, you know number one by these structural forces that stuff talked about and I'm so happy that we got to do verges law in here, but also by what whether there's a question of whether or not there's actually true demand for this in the public right. Plenty of charts, I'm sure we have seen them in the past show that between 40 and 50% of Americans identify as politically independent right that's way more than either party. And so you look at that and you say oh well there's definitely room for a third party. The problem is that of these independence, the vast majority lean towards one party or the other and vote, almost exactly the same way as the typical Democrat or the typical identifying Republican. And so at the end of the day only about 10% of Americans are what we would call sort of pure independence who refuse right when asked twice to say that they lean towards either party. And of this 10% right, most don't vote at all, right, the ones that do vote have wildly different political beliefs right they are not all Mitt Romney's and Joe Manchin's right they're not all centrist. They could be libertarians they could be socialist right they could have some far left views and some far right views. They could be Joe Rogan right. There isn't a group right that could organize a major political movement. And so, you know, my question sort of looking forward the next decade or so is whether we hit such a breaking point with our two party system that there are that there are that there is some set of voters that just says, you know what, I'm willing to moderate my policy views, enough to form a third party but it would require a moderation of views first based on what we know about public opinion. It's so interesting because I am constantly hearing questions from people about third parties how are they going to do what's going to happen. And every time I go to a scholar they say, not going to happen, not going to happen it's just they can't hear the history. It's just not going to happen. And yet, you see, very intelligent, interesting people in politics, saying, we need a third party and here's my third party, and they get people to join them. And then it doesn't work. So what is, is the, are they just ahead of their time. Well it may not work. Well, by the way, ranked choice voting could help in terms of, I think, promoting some alternative parties to the Democratic and Republican Party. In some ways, what these movements to create third parties even in the face of du verges law which Charlie and I've mentioned this ironclad law of American politics, even in the face of that they can influence the two parties by creating the third party pull one of the parties in one direction or the other, and have the influence that way and you know you look at Ross Perot back in the 90s right, he did have an influence and with all of his charts talking about the deficit. He had an influence and, and so that's what they're seeking, I believe, Charlie. Yeah, I think, I think that's exactly right. You know, I would, I would just add also that, you know, and whatever this third party would be, would certainly face an uphill battle in terms of things like getting on the ballot, right. You need to demonstrate some amount of support first before you can get on the ballot you need to have organization, you need to have money, right, that's really important. You see these kinds of struggles with folks like you know Robert F. Kennedy Jr, who, you know, is a is a, you know, he's trying to find he can't find a home for for a party right he's trying to get on the libertarian ticket we don't know if that's going to happen. And getting on the ballot is really is really difficult right, you know, Perot was someone who had, you know, millions billions of dollars and wouldn't and had that you know disposable income to do that not everybody has that right. So you either need, you know, a lot of money, a famous name right someone who can really break through or ideally both. And so far I don't get the sense, you know, I certainly that at least Democrats and probably everybody is sort of worried about, you know, the emergence of a third party and spoiling the election and things like that. And as of now I'm not, I'm not sure that there is a really viable third party candidate that has sort of come forward yet. Yeah, you know, I'm not convinced that the more people learn about Robert F. Kennedy Jr the more they're going to want to vote for him so we'll see. I will say having lived in Maine for a very long time. Angus King became governor running as an independent. However, everybody knew he was a Democrat and he wouldn't have won the Democratic primary. So he ran as an independent and he was not only elected he was reelected. So this is definitely a Charlie question I think writer says in speaking recently with my congressman he mentioned that Republican representatives that he sees outside of the chamber will express frustration about their party, but will continue to vote with them. The question is why that is the question isn't it. I think what you have right like certain reports like these come out all the time that you know that if you looked at their behavior on the floor of Congress right or in press conferences. I think that these people like could never stand to be in the same room together. But then you hear reports like oh I'm really good friends with this other member of Congress who, you know, accused my party of, of, you know, all kinds of unspeakable things just yesterday. And, you know, there is some sense of, you know, it's shrinking but there is some sense of collegiality going on in Congress. And so you do get these kinds of reports. In terms of why they sort of continue to go along with this right this goes back to a sort of a political science truism from a political scientist named David Mayhew who said that, you know, this thought experiment that members of Congress, we can think of them as what he called single minded seekers of reelection right that their behaviors that we observe out in the wild right whether that's in Washington or home in their districts can be viewed through the lens of this is something they are doing in order to win reelection and on its face that sounds kind of nefarious right oh they're selfish they just want to get reelected. Another way of looking at that thinking about that is, they want to do what their voters want so that their voters can look for them again right, you know, like elections are not just right vehicles for politicians to, or at least they should not just be vehicles for politicians to, you know, a vanity exercise or for them to, you know, show everyone how much everyone loves them right there a mechanism of accountability it is why we have them so that if you're not doing a good job will kick you out right. In this case, you know, these, these Republicans are looking at trends that we've been observing over the past, you know, 50 or more years where there is an increasing alignment between how a party votes for Congress. You know, the numbers of which party they choose and how a party votes for president right so now we have almost no, you know, a very small sliver remaining of, say, Democrats who are elected in districts that Donald Trump one, or Republicans elected in one it is, I think only a couple of dozen at this point, whereas, you know, it used to be at least as many you would have like dozens and dozens of Democrats elected to Congress and districts that Reagan one in a landslide. And so when members of Congress see trends like that, particularly Republicans, they, they realize that if I start going after Donald Trump or if I start voting against my party or voting for impeaching Donald Trump or something like that. First of all, they understand who Donald Trump is and that he will go after them right and that he will talk make fun of them in their in his speech. And that voters will see that and say, his, their primary voters and say, you know, oh, they're not being sufficiently loyal to Donald Trump and I love Donald Trump a whole lot more than I love my member of Congress who I can barely name right. So they are recognizing that that linking of fates between presidential candidates and congressional candidates. Okay, we have four minutes, and I have a huge question that I need you both to answer in as short a way as possible, and that is, what's the primary concern you have regarding the 2024 election, and the immediate aftermath. No, you want to go first. Oh, sure. Boy it is hard to choose. I think my primary concern is that, you know, I think we all are facing a lot of anxiety about, I mean I am right I do this for a living but I still I, I love our democracy I love the system that we have I try to be critical of it no matter where I can, because if you love something you want it to improve. And, you know, I think there's increasing anxiety and concern that you know the kinds of stuff we saw in 2020. You know which was unbearable enough as it was, you know it's just a dress rehearsal for this year. And I think it's incumbent upon all of us to not just get sort of swallowed up in the anxiety, but also keep ourselves informed by reading and also by, you know, taking whatever action. You know we can to have this be a sane process and to tell the truth about what's going on and so, you know that's why that's why I read a lot of the folks on the conversation so I can rely on their expertise where I don't have it. I think I think yeah that's that's my concern is that things have only ratcheted up in terms of the personal nature of how our politics has gotten what Steph was talking about before so that's that's something I'm watching out for. Thanks Charlie Steph last word. I mean I'm an institutionalist I believe that institutions are critically important they're hugely important for our democracy to survive. And so my concern is about the courts and how involved the courts are in this election. And of course I care a lot about the courts I teach constitutional law. Certainly courts have been involved in elections in the past Bush versus Gore is the one that the case that comes immediately immediately to mind, but here we actually have a candidate that's on trial for in under a criminal indictment and so the courts are front and center in this election and judges are as well. And that worries me a lot not not because I think the justice system shouldn't just operate as it should, which means cases are broad and they should be tried etc, but that they are so front and center and the bedrock the spine of our democracy in my opinion is a belief in the rule of law. And so I do worry that this election is having a negative impact on that. Thank you both. I think I turn this over to Beth now. And I'm back. I'm a period. Thank you. Thank you all for the fascinating and really like deep and broad conversation. I feel we could go on. I'm so sorry we couldn't get to the many, many questions. But what we will do we promise is to send a link of this recording and answer your questions with follow up links and whatnot from stories. So we get to everyone. I just want to thank the participants again, Stephanie and Charlie, Naomi. Thank you for being a moderator and thank you to our wonderful readers who are listening in and asking really smart questions without you. We don't exist. So thank you so much. Thank you for the conversation. Thank you everyone.