Philip Blumel:
It was a supremely interesting decision. Last week, the US Supreme Court ruled unanimously that states have the power to bind their state presidential electors to vote for the state popular vote winner. At first glance, you might not think this has much to do with term limits. Hi, I’m Philip Blumel. Welcome to No Uncertain Terms, the official podcast of the term limits movement for the week of July 13th, 2020.
Philip Blumel:
It turns out this case caused quite a stir at USTL Headquarters. In this week’s podcast, executive director Nick Tomboulides and I discuss why. Hey, Nick.
Philip Blumel:
So I want to talk about this case. Before we get started, let’s describe it in more general terms and before we get into details, but as I said in the introduction, the Supreme Court ruled that states can bind their state presidential electors to vote for the state’s popular vote winner in the electoral college. This was an issue that went all the way to the Supreme Court because there were several electors in the 2016 election that even though they were bound to vote for Hillary Clinton, they actually changed their vote and voted for Colin Powell instead. And they did so really because they wanted to convince Republican electors in other states to ditch their obligation to cast their electoral vote for Donald Trump and basically cause a little bit of a rebellion in the electoral college.
Philip Blumel:
Well, only seven people went along with this little rebellion, but the reason why it went to the Supreme Court is because in Washington state is one of six states that have laws that actually punish you for not being a faithful elector, that is to say, you’re electoral college, your state voted a certain way, you’re supposed to reflect that state’s view in the college to elect the president of the United States. And these electors were actually not just removed, but they were actually charged and fined for this. These electors went all the way the Supreme Court, arguing that they have the right to vote their conscience in the electoral college.
Philip Blumel:
Now, the Supreme Court unanimously said, no, you don’t. The reason why the Supreme Court made that argument is because in Article Two, Section One of the Constitution, the Constitution says that “each state shall appoint in such manner as a legislature thereof may direct a number of electors to cast these votes.” And the court said, well, look. “In such manner as the legislature thereof may direct.” That means that they can choose electors that have committed to vote the way that the state voted in the popular vote. The electors said, no, no, no, no, that’s not true. It doesn’t say that. Manner doesn’t give you all that kind of discretion. But the Supreme Court said, yes, it does.
Philip Blumel:
Now, what’s fascinating about this is that it was a unanimous decision, but it’s actually two decisions because the majority of the court said that, well, this article allows states to choosing the electors and therefore it gives them the right to make some wide range of decisions regarding who they’re going to be. But there was a concurring decision from Justices Gorsuch and Thomas, and they sort of agreed with the electors a little bit and said, well, wait a minute. It doesn’t actually say that the states by using the word manner can make all these decisions, but because it’s silent on the issue, the states can do so under the 10th Amendment because in the 10th Amendment, it says that if the powers aren’t delegated to the federal government, then they are withheld, retained by the people and the states, so under the 10th Amendment, they could do it.
Philip Blumel:
So the entire court agreed for different reasons. And this is where it started getting interesting for fans of term limits.
Nick Tomboulides:
Right. They all agreed on the fact that states could punish the electors who go rogue at the electoral college. But as you mentioned, they agreed for different reasons. Normally in the Supreme Court, if Clarence Thomas agreed with the reasoning by Elena Kagan or whoever writes the majority opinion, he would just keep his mouth shut. But in this case, he actually felt compelled, he felt strongly enough to add this concurring opinion to say, okay, we agree with your conclusions, but you went about it the wrong way.
Nick Tomboulides:
And it really came down to what is the definition of this word manner in Article Two of the Constitution, because it gives the states the power to appoint electors to the electoral college. State legislatures have that power in a manner directed by the state legislature, and by manner, the majority believes that allows you to set qualifications for the electors. An example of the qualification would be you are thrown out or you are fined if you don’t vote for whoever you pledged. So if you were a Hillary Clinton elector, if you were supposed to vote for old godzillary in the electoral college and you didn’t and you voted for Colin Powell, you get fined $1,000. Not every state does that, but the Supreme court says states do have the right to do that.
Nick Tomboulides:
But it was fascinating by that was in the 1995 case US Term Limits v. Thornton, our case, two of the same judges from this modern case because Supreme Court Justices almost never retire, they have no term limits, they said that manner did not allow states to set qualifications and therefore states couldn’t term limit their own congressmen. So Clarence Thomas, amazingly in this decision, in this case of, let me try to pronounce it, Chiafolo v. Washington, he kind of slipped a pro term limits message into his written opinion. He caught the other judges in a glaring inconsistency, in hypocrisy, based on the 1995 ruling that we were involved in US Term Limits v. Thornton. Because back in that case, these judges said that manner did not allow states to set qualifications for their Congress members, and one of those qualifications would be term limits. And now they’re saying that does include qualifications for electors to the electoral college, and Clarence Thomas nailed them on that.
Philip Blumel:
And he didn’t need to add this. I mean, that’s the amazing thing because he was making the argument based on the 10th Amendment, not about this use of the word manner. So he threw it in sort of a wink, as you said, sort of threw in the term limits argument. Remember 1995, this was a split decision 5-4, and this was made of course by an old court. And back then they said that the use of the word manner in Article Two, Section Four was very closely prescribed. It really didn’t mean a whole lot. When the Constitution gave states power to make time, place, and manner decisions about elections, time and place, of course, are a state provision, but manner doesn’t really mean that much.
Philip Blumel:
Well, now in this new decision, in a unanimous decision in a modern court, they said the word manner in Article Two, Section One, same article, different section, they said that manner actually means a lot more. So here we have a split decision from the past that contradicts a unanimous decision from the present on the issue of what the word means. It creates instability in these decisions, instability in the law that can be addressed in the future.
Nick Tomboulides:
Yeah, because you’ve got now a word, manner, that has been used by the Supreme Court twice in high profile decisions and they give it a different definition between the two decisions. It’s not a consistent uniform definition.
Philip Blumel:
It cries out for resolution in the future.
Nick Tomboulides:
It does. In one case, they’re claiming that it’s strictly to set procedural boundaries around an election. In the other case, they’re saying that it’s pretty much wide open, it includes qualifications, and it could include something like term limits, and Clarence Thomas is reminding them of that. So I think it’s a foundation for maybe revisiting that case, US Term Limits v. Thornton, and once more investigating whether states have the authority to impose term limits on their Congress members.
Ken Quinn:
Hi. This is Ken Quinn, regional director with US Term Limits. I really do not understand why the Constitution’s Article Five convention is so confusing for some people, especially when the men who drafted it and voted for explain in great detail, the very reason for it in their writings.
Ken Quinn:
When we examine the debates at the federal convention, the Federalist Papers and the Anti-Federalist Papers, the debates at the state ratifying conventions, letters of correspondence between the framers during this period, the debates in Congress in 1789 over the very first Article Five application, and the 400-plus Article Five applications passed by the state legislatures, the evidence is irrefutable that a convention can only propose the amendment or amendments that two thirds of the legislature specified in their application to Congress.
Ken Quinn:
Here is a great example of what I’m referring to. In Federalist 85, Alexander Hamilton argued against the effort by the anti-Federalists to call a second convention to adopt another constitution and explain how difficult that would be as opposed to simply proposing amendments to the Constitution once it was ratified. In this quote, he also explains the difference between a con-con, a constitutional convention, which requires unanimous consent versus an Article Five convention, which only requires two thirds or nine states to call it, and three fourths or 10 states to ratify an amendment since at that time, there were only 13 states.
Ken Quinn:
“Every constitution for the United states must inevitably consist of a great variety of particulars in which 13 independent states are to be accommodated in their interests or opinions of interest, hence the necessity of molding and arranging all the particulars which are to compose the whole in such a manner as to satisfy all the parties to the compact, but every amendment to the Constitution, if once established, would be a single proposition and might be brought forward singly, and consequently whenever nine or rather 10 states were united in the desire of a particular amendment, that amendment must infallibly take place. There can therefore be no comparison between the facility of effecting an amendment and that of establishing in the first instance, a complete constitution.”
Ken Quinn:
Do you see how straight forward this is? Just as we need two thirds of Congress to propose amendments, we need two thirds of the state legislatures to apply for one. Thank you, Mr. Hamilton, for making this so easy to understand. At US Term Limits, we are doing exactly as you suggested by trying to get two thirds of the states to apply for a convention to propose a simple, easy to understand, nonpartisan, and desperately needed amendment, congressional term limits. Please sign our petition at termlimits.com and join the revolution.
Nick Tomboulides:
I wonder how they would rule if the Thornton decision were challenged.
Philip Blumel:
Think about it.
Nick Tomboulides:
Again, you could see sort of the inverse of this decision. You could see the majority of Roberts, Alito, Thomas, Gorsuch and Kavanaugh, the conservative, the originalist textualist judges saying term limits are fine and dandy based on the 10th Amendment. That’s power that’s reserved to the states. And then you could see some of the liberal justices concurring with them and saying it’s legal. Not 10th Amendment, but Article Two manner. Now that manner has been, I guess, redefined by part of the court and expanded, pretty much Pandora’s box has been opened.
Philip Blumel:
I mean, think about if US Term Limits v. Thornton was today, given the majority of the court agreed that manner is a very expansive word and that the minority of the court felt that term limits would be allowed by the 10th Amendment explicitly. That court decision may have been very different if it was made in 2020.
Nick Tomboulides:
For sure. You’ve got a lot of really old and ineffective and corrupt politicians on Capitol Hill sweating right now, because if this decision is ever overturned, it would be the silver bullet that probably gets Congressional term limits completed in a year or two, because overnight you would have nearly half of the US Congress functioning under term limits, and that half would not allow the other half to get away with not having term limits. They would insist, they would demand that some constitutional amendment be adopted to create uniformity across all of Congress. So this really would be a shot in the arm for the term limits movement if this decision ever gets overturned.
Philip Blumel:
They mentioned US Term Limits v. Thornton numerous times. Over and over again, they make reference to it, so it was pretty explicit what they were up to, I think.
Nick Tomboulides:
If I was Clarence Thomas and I had to live among snobby politicians in Washington, DC all the time, I would constantly be thinking about term limits as well. It would be the only thing on my mind.
Philip Blumel:
There’s a couple other lessons out of all this, though, that I want to bring up. First of all is that as long time listeners of the podcast know, US Term Limits is trying to implement a strategy to impose tournaments on Congress via a Article Five amendment writing convention. And we get pushback on that from people that oppose term limits mostly, but also some conspiracy people that are afraid of the Article Five process because they’re afraid that the states utilizing the convention process to make decisions is inherently dangerous and could run away and create all kinds of other problems.
Philip Blumel:
But what I find so fascinating about this firstly, is that the electoral college is a state convention process. It’s not Article Five, of course, but similar to an Article Five convention, the states are given the power under the Constitution to choose delegates in the manner that they choose and put them together with the delegates from other states to make the decision on choosing the president of the United States. This has been around since the beginning of the country and it’s never run away. In fact, in the modern era, the closest it ever got to a conspiracy to runaway was in 2016 when these seven electors out of the entire electoral college decided to vote faithlessly, that is to say, they ignored what the instructions from their state was and voted their own way. That’s just what people that are worried about a convention running away are worried about, but it was seven of them and they got punished because it’s contrary to the law, and the punishment was held up unanimously by the Supreme Court of the land. I mean, talk about a case study of why a runaway convention is not a realistic threat.
Nick Tomboulides:
Exactly. And you’ve actually got laws in several states. I believe at least seven states have laws, similar punishments for faithless commissioners or faithless delegates to an Article Five convention. Just like they have punishments for faithless selectors in the electoral college. So I’m guessing if this ever went to court, and in this era, everything goes to court, court would probably rule in the states’ favor that they have the right to punish these federal commissioners in the same way they punish their own electors. The process is really safe. A lot of people don’t really understand what conventions are. They’re assemblies that were designed to pinch hit for a legislature.
Nick Tomboulides:
When the framers put that in the Constitution in 1787, they weren’t dealing with a blank slate. They’d actually had, I think, 32 different interstate conventions in the preceding century that had to do with all sorts of topics. The New England states would get together all the time and talk about relations with Indian tribes. They would talk about price inflation. And the reason you do it that way is so that you can hone in on a specific topic and so you can come up with a specific answer to a specific problem and getting a job done, and they’re much more efficient than a legislature. That’s why a convention was created. That’s why we have the electoral college, that’s why we have the Article Five convention, and that’s why we have things like the Uniform Law Commission as well.
Scott Tillman:
How can you tell if a politician is lying? That’s easy. Their lips are moving. This is Scott Tillman, the national field director with US Term Limits. Like most Americans, I don’t trust politicians. About the only way you can count on what a politician says is if you can get it in writing. At US Term Limits, we run a very aggressive pledge program and we get it in writing. Over 300 congressional candidates have signed the US Term Limits pledge to co-sponsor and vote for the US Term Limits Amendment of three house terms and two Senate terms and no longer limit.
Scott Tillman:
And because there are two ways to amend the Constitution, we have a pledge for state legislators. We now have almost 1100 state legislative candidates who have put their commitment to term limiting Congress in writing by signing this pledge. I pledge that as a member of the state legislature, I will co-sponsor, vote for, and defend the resolution, applying for an Article Five convention for the sole purpose of enacting term limits on Congress. You can find the names of these candidates on our website, termlimits.com, and you can contact candidates in your area and ask them to sign these term limits pledges. Like our page on Facebook, and there you’ll find instructions on getting the pledge to candidates in your area. Help the movement by taking action to help us term limit Congress,
Philip Blumel:
Another thing worth bringing up is, you mentioned it, the Uniform Law Commission, because this is another ongoing convention of the states that has been around since 1892. It’s not in the Constitution. It’s something that the states dreamed up themselves and put together. It relates to this case very closely because the law that Chiafolo and the other faithless electors were trying to overturn was a law that came out of the Uniform Law Commission.
Philip Blumel:
Now, Uniform Law Commission is a convention of states. Every state participates, including Virgin islands and DC and Guam and all that. They all send delegates to the convention, and these delegates work out and hammer out model legislation so that the laws that are passed on a certain subject are uniform around the country so that it’s easier to do business. A person from Florida can do business with someone from New York and not have a completely different legal system. So it’s a very useful thing.
Philip Blumel:
And the way that the states have decided to deal with it is to have this ongoing convention of the states. Six states have decided so far to prove the recommendation, because that’s all it can be, the proposal of the Uniform Law Commission to have these faithless elector laws, but probably more will, particularly now that the Supreme Court has validated it and on a unanimous basis. But the key thing about that is how many times has the ULC run away in its more than a hundred year history, Nick?
Nick Tomboulides:
0.0 times. The states to decide the selection process for the commissioners. They nominate them. They go to an annual meeting. They participate in committees. They study the legislation and then they draft it. And then they propose these model laws. Because as you said, you want stuff to be consistent from jurisdiction to jurisdiction. I don’t want to go to New York and pay $100 for a parking ticket and then go to Los Angeles and get the death penalty. It forms a very useful purpose and the delegates never run away. You never hear of Uniform Law Commission calling for something crazy.
Nick Tomboulides:
It really is when you’re trying to evaluate what kind of purpose can conventions, interstate convention serve, it’s a good example of the ingenuity that you can get when the states put their best and brightest people together. And I would say it’s an excellent model for what a term limits convention can accomplish. The only difference would be with the term limits convention, the topic would be term limits rather than uniformity within the law. You just change one topic to another, but it’s that same solid structure, that solid foundation that can get something done.
Philip Blumel:
Now, the Uniform Law Commission is more like an Article Five convention than the electoral college because this is a case where the state send delegates to hammer out proposals, and those proposals don’t go into effect until those proposals are sent back to the states for them to adopt or not adopt, similar to the idea of the Article Five convention. But one thing that’s different ,though, and which makes the tournament’s convention safer even than the Uniform Law convention from the point of view of people that are worried about it running away, is that the Uniform Law Convention can pick up any subject.
Philip Blumel:
The Uniform Law Convention, this is one of the great fears of the conspiracy nuts who are worried about Article Five convention, is that yeah, but what if someone raised their hand and picks up another topic? Well, in the Uniform Law Commission, that’s actually welcomed, and yet it still has never run away because it has to go through a process, though discussion. The Uniform Law Commission has rules. They have to vote on the proposal, and then if the states don’t like the proposals, they just don’t adopt them. And the term limits convention being limited to one subject, it doesn’t even have that minuscule danger that the ULC has, and that minuscule danger has never led to any problems for the Republic.
Nick Tomboulides:
The ULC was created by a bunch of patriotic thinkers in 1892. The convention we’re trying to use to get term limits was created in 1787, and I’ll tell you how it was created. It wasn’t a bunch of aliens that just landed on this planet in 1787 and thought, hey, let’s mess with America and put this convention thing in the constitution. It was James Madison. It was George Washington. It was Benjamin Franklin. It was Alexander Hamilton. It was the founding fathers and the framers who created this, and so I take it very personally as an American when people quarrel with the idea of an Article Five convention because this is part of the Constitution that the framers of this Republic gave us in order to fix the Republic.
Nick Tomboulides:
Because you remember the first draft of the Constitution gave Congress all the power over amendments, and then some folks spoke up. it’s debated whether this was George Mason or James Madison or Charles Pinckney. They spoke up and said, no, Congress might abuse its power, and when they abuse their power, you need a way to reign them in, and hence the Article Five convention was born. It is a brilliant part of our Constitution, and we can’t overlook that and we can’t overstate how important that is.
Philip Blumel:
No, that’s right. The Article Five was a great addition to the Constitution. It’s been underused. It’s about time. We used it. There’s important problems at the national level that only states can solve, and the Article Five convention is the only way to do it. The opposition that we are seeing is actually opposition to term limits because they don’t want to admit that they’re opposed to term limits. That’s really the bulk of the opposition that we see to the convention. Over 80% of Americans want this and there are going to get it eventually.
Nick Tomboulides:
Amen.
Philip Blumel:
Thank you for joining us for another weekly episode of No Uncertain Terms. In states around the country, we continue to lay the groundwork for votes on the term limits convention. Right now we’re working on an Arizona pledge push. If you live in Arizona, please send a message to your state legislative candidates, asking them to sign the USTL pledge. The pledge commits the signer to co-sponsor for and defend the resolution calling for a term limits convention under Article Five of the US Constitution. It’s easy. Just go to termlimits.com/az-pledge-push. Use the message provided or write your own. It’ll take just two minutes. You can bet these candidates will be attentive as the primaries approach. The pledge is the key to keeping their interest after the election. The page again is termlimits.com/az-pledge-push. Thanks. We’ll be back next week.
Speaker 5:
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Speaker 6:
USTL.
Speaker 7:
Stay tuned. Next week, we are going to be talking about congressional committees and seniority and stupid career politicians who are defending a corrupt and broken system. You don’t want to miss it right here on the No Uncertain Terms podcast.