Advisory Opinions - Can Kamala Take the Money … Legally?

Episode Date: July 25, 2024

Sarah and David are joined by Notre Dame law professor Derek Muller, who teaches “Presidential Nominations in a Time of Uncertainty,” to discuss the legality of swapping out (presumptive) party nominees, the potential consequences of doing so, and the complexity of state election laws at-large. The Agenda: —Can Kamala Harris inherit Joe Biden’s PAC money? —Will Republicans successfully keep Kamala off the ballot? —What’s up with Ohio? —Could Donald Trump replace J.D. Vance? —What does “natural-born citizen” mean? —Should political parties be state associations for primaries? —Should faithless electors be bound? —Campaign finance: restrictions, or no restrictions? Show Notes: —LaRouche v. FEC —Charles Spies’ “Biden Has 100 Million Reasons to Stay In” —Chiafolo et al. v. Washington Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Benefits vary by card, other conditions apply. Ready? I was born ready. ["I'm Ready"] Welcome to Advisory Opinions. I'm Sarah Isgur and yes, David French is here with COVID in such a state as he is in. David, thanks for being here. It's Sarah. I feel better than I sound. That's all I'll say. And I just hope my voice does not repel all the listeners. And I have no idea how this sounds in like two times speed or 1.5.

Yeah. Well, the good news is that you don't have to listen to David all that much today because we have special, special guest, Professor Derek Muller from Notre Dame joining us. Caught my eye recently because he was teaching a little quick summer seminar to law students, presidential nominations and elections in a time of uncertainty.

Boy, that felt really appropriate this month. Professor, thank you for joining us. Well, thanks for having me. My classes didn't start until late August, but I told my students a lot can change in six weeks. So we need to jump on this right now. Six hours. Yeah.

Well, I thought that we could focus on three different buckets today. One, the legal challenges to the money that was donated to the Biden PAC. Two, ballot access challenges that Republicans seem to want to bring against the bait and switch of now putting Harris at the top of the ticket. And three, what happens if Donald Trump

wants to switch out JD Vance now, post nomination and convention and pre some of these ballot access deadlines? So let's start with the first one. As people probably are not aware, when you have a pack for a primary campaign, you are accepting money both for the primary, the max out for the primary, but you can also then accept money for the general election. You just can't spend that money until you actually win the nomination. And then of course, if a candidate drops out of the primary, as all but one of them do, You just can't spend that money until you actually win the nomination.

And then of course, if a candidate drops out of the primary as all but one of them do in a contested primary, that general election money, you can't just give that to another candidate along the way. So for instance, if in the 2016 Republican primary, all the candidates didn't want Donald Trump to be the nominee. But as each one dropped out, they couldn't then just hand off their money baton to the remaining candidates so that they could sort of amass a fortune against Donald Trump. You're limited on how much you can give to another candidate. I believe it's still $5,000. Or you can give the

money to the campaign committee, the RNC, the DNC, stuff like that. The Harris people are arguing, though, that because she was always going to be Biden's vice presidential pick, that she can still access this money. There's people, smart people on both sides of this, professor, who are just dead certain that she can get the money and dead certain that she can't. Will you walk us through some of the FEC, like who can sue, can you get an injunction, and who's right?

Yeah, I mean, maybe, I mean, we can talk about the end of the day, about what the end game looks like, the likelihood of the lawsuits and all that stuff, but we can set up the sort of two sides of this. Because everyone agrees that what Biden could do, he could give all this money to the Democratic National Committee, to the DNC, about $96 million. Give all that money to the DNC, the DNC can use that for get out the vote efforts, soft money, expenditures, as we label them, so on, just not sort of direct campaign expenditures from the Biden campaign.

So it has some value, but not as much value as you would have if you had control over it. Likewise, you'd give it to a PAC, and the PAC could spend that money for independent expenditures alongside the campaign, critiquing Donald Trump and JD Vans, whatever they wanted to do, but again, not as valuable as

having the cash in hand. So there's a reason why the Harris campaign wants to be able to say we are entitled to this 96 million and don't have to give it to somebody else and essentially start over. So on the one hand, the Harris argument is, look, we've been on the FEC paperwork from day one. Biden was planning on running for re-election very early. He launched the campaign. And when you have that, you put two names on it, because it's going to be Biden for the presidential candidate and Harris for the vice presidential candidate. It's an unusual election in the United States. Very few elections, you were voting for two people simultaneously. You were usually voting for one person at a time, not so for president. Both are on the same ticket. And so the argument

is that if we're amending the filing, we're just moving the names around on the same paperwork that lets us move from one spot to the other. So a couple things in their favor. There's a, there are some FEC opinions, you know, one from, especially in 1992, talking about how There are some FEC opinions, one from especially 1992 talking about how for a Lyndon LaRouche candidacy, there's really two names, but they're really treated as a single candidacy for FEC purposes. So that's the Harris campaign's argument. And then you have the Trump campaign, which actually filed a complaint in front of the Federal Election Commission yesterday or this morning.

The days are running together now, saying you can't do that, right? We can look at the code, the code says money goes to the candidate, the Federal Register says that when you give the money, it goes to the candidate, if the candidate drops out, that money can't be given to somebody else.

There's a very simple, straightforward, textual matter to say Biden was the candidate, Biden is no longer the candidate. Therefore, the money cannot go to another candidate, in this case, Harris. Well, let me, and I just want to go ahead and pre-apologize. As soon as I hear my own voice, I cringe. So the enforcement mechanism for all of this, that I think, you know, I've heard both of these competing arguments. And we've known for some time, for a long time, the FEC was, the Federal Election Commission

was broken, hard to even achieve a quorum, but now you've got six commissioners. What is the enforcement mechanism? How would a Republican who wants to stop the transfer of this money go about stopping it? Or is it something that the Democrats can just do it and then later on down the line, if it turns out that that was wrong, then they just, you know, give back the money to donors or something along those lines? Is it really a possible to stop a transfer or is it more a matter of sort of compensating donors after the fact? Yeah. So it's a long process here to think about how this enforcement happens.

So I wouldn't, I mean, I know some people might use the term, I wouldn't say the FEC is broken. I would say the FEC is doing what it's designed to do. It's an even-membered commission. It was designed in the 70s to have six commissioners. And there's a reason why very few other commissions in the United States have six or even numbers because usually you need a majority at consensus. So the thought coming out of Watergate was we need to have bipartisan consensus before moving forward. So that makes it hard to achieve things. That's kind of deliberately so. And

as the FEC is considering this, already we've seen one Republican Commissioner, Sean Cooksey, coming out and sort of floating out the statute in the federal register and suggesting there are going to be problems with this. On the flip side, we have a Democrat and Commissioner Lindemar, who's, she said that she essentially put out a statement saying that she thinks that there's probably no problem with the Harris campaign using the money already. So providing that public statement, and she's been a commissioner that's more moderate and has joined Republicans in a lot of matters in the past.

So it seems like right now the FEC is not gonna move forward with the complaint from the Trump campaign. We won't know that for at least probably 60 days, there's sort of a statutory window to sort of take the complaint and investigate and then determine things. So just thinking as a practical matter, that gets us into late September, early October at the earliest before we even know what the FEC does, whether the FEC is going to prosecute

or choose to enforce this or no, or if it says there's another reason. And then you have to go to court after that, either the FEC enforcing it or the Trump campaign trying to challenge that enforcement. And the likelihood that a court is going to issue an injunction in the days before the election to say, don't use this money, just seem exceedingly slim. So the most likely outcome I would say is that even if the Trump campaign is going to win on this, some kind of plausible argument that they could and say that Harris can't use the money, what we're facing is maybe in two years,

we get a court decision that says, yeah, you can't do this, the FEC can enforce this against you, and the FEC levy's a fine against you. And that fine is probably one of the largest, maybe the largest fine in FEC history. But in two years, you know, if you've won the White House, maybe you don't care, right?

And that maybe sets up a different dynamic thinking about campaign finance issues, but where we might find ourselves. Yeah, to be clear, I was not wanting to say FEC is currently broken. It has been in the past. You know, in 2019, they didn't even have a quorum. But now they've got six commissioners.

In theory, they can operate, you know, but in the past, they didn't even have a quorum because of a lot of reasons, but now they're a functional body. This seems messy to me, right? Like, the donor intent, when you gave your 20 bucks, you were giving it to Joe Biden running for president, and maybe to Kamala Harris as vice president,

but that's not what this is now. Like it's a totally different pack. So even if you could argue that he could put her on the pack because she was gonna be his vice presidential nominee, I guess I've got a few problems with that. One, of course, there is no such thing as a vice presidential nominee in a primary. And I should know,

because I ran Carly Fiorina's campaign in 2016 and we could not. I don't think anyone thinks we could have just taken Ted Cruz's money because he named her his vice presidential nominee. Like nobody in a million years thought that was the case. So after Biden would have gotten the nomination, she would have then had the vice presidential nomination. That would give her legal significance then on that ticket. I hear that post-nomination that perhaps she would have some access to that money. But pre-nomination, there's the donor intent problem, and then there's the no legal significance problem. And I'm curious what you think about how one could use this moving forward. Like should you always just put a second person on your pack in case you get

hit by a bus so that way someone else can take the money like your second favorite candidate? Boy, I don't want to go into the disaster scenario. So a couple of things. One is, I think there are investigations right now about the conditions in which you can seek a refund as a donor, right? I think that's, you know, I think it's deep unlikely, deeply unlikely that people who donated to the Biden-Harris campaign are gonna be upset about the money.

So there are interesting things to think about that and donor intent and all that. But I think your rights are, it's a much more salient point to say that there is a bit of a bait and switch here. And again, to think about the legal significance, and I think Charlie Speis wrote a piece in the Wall Street Journal a few days ago really highlighting this point about the legal significance and saying, right now, the vice presidential nominee is not a thing.

It is only a thing after the convention, after the convention has said who is your vice presidential candidate. Now, to be fair, the flip side is there's no presidential candidate on the Democratic side either. That's also not a thing. It's just the general election funds that you are collecting are in the hopes that one day you will get nominated at the end of the line and then you can flip on the general election switch and grab that money. So when Biden is running this campaign, now this is what donors do all the time, right?

Ron DeSantis raised tons of money his first day of the campaign. Gobs of that was stuff he could never touch until he became the nominee, right? Because he's collecting both primary and general funds. When it comes to sort of this bucket though, it's a strange one because unlike Rhonda Santus or Nikki Haley or anybody else, they're not naming that second name as sort of the just-in-case vice presidential candidate that you might have. And again, I don't know how voters would take that. If voters just, you say, oh no, this is just my just hit by a bus person that I put on the campaign ticker. I'm not sure how many people would go for that.

So maybe it's a reason why we don't see that happening more often. Can I clarify something? The $96 million, is that only general election funds or is there some left in the primary account? Because the primary account, I actually hear your point, the general election funds you couldn't touch until she was the vice presidential nominee no matter what.

And she can't touch that money right now, right? Because we're not in the general election. But if there were primary money left, a primary is for Joe Biden to become the presidential nominee. I have not seen any commentary on this. And it's something I've only raised with a couple of people because it has not been reported. I think there's some amount of money,

probably still for the primary, a smaller amount, right? Because they're going to run out of that in a couple of weeks. But I don't see a very good case for Harris being able to get that amount, right? Because they're going to run out of that in a couple of weeks. But I don't see a very good case for Harris being able to get that either, right? So on the primary side. Now again, I think it's a much smaller bucket. I haven't seen a lot of that delineation, but I'm interested.

Again, I haven't read the Trump complaint from the FEC or what that briefing is going to look like. But I do think that that's a much tougher climb for the Harris campaign. Much easier to say that she's entitled to the general election. You know, just as a practical matter, one thing I wonder about,

so the Harris campaign has had this incredibly successful 24 or 48 hours of fundraising, giant amounts of dollars coming in. Is there an argument for the Democrats to just say, hey, given the tsunami of money coming in, let's just do the easiest possible thing and send it to the DNC. No muss, no fuss. The DNC can still do a lot of good with this. Harris is not going to lack for cash. Why even touch this electrified fence? Yeah. So one is I feel like that could have been a good fundraising gimmick too, to say,

listen, we have to start over from scratch. But not really scratch because you're giving $95 million to the DNC and then claiming to start over from scratch. Right, exactly. But I would be a little careful about the numbers we're seeing floating around. Because whenever you see campaigns float out how much X dollars they've raised, or especially when ActBlue as a platform is saying, here's how much money has come in, you have no idea how that money is being distributed. How much is going to the Harris campaign? How much is going to the DNC?

How much is going to the DSCC? How much is going to the DCCC? How much is just going to other candidates or other things that are being aggregated by the joint fundraising committees or whatever it might be? So there's no question this has been a huge boon to the Harris campaign to see the money coming in. I'm very interested to see how that sort of has more particularly parceled out among the different groups in the days ahead.

But I don't think it would have been a crazy idea to say, hey, let's just give it all to the DNC claim where we have to start over and really push for a different fundraising campaign. But right. So to be clear, as we end this bucket, this bucket doesn't matter for a whole lot of reasons. Reason number one, this bucket doesn't matter. It definitely won't be resolved until well after the election, if it's ever resolved at all.

You know, when it comes to like mootness stuff, you have especially in campaign and election world, capable of repetition yet evading review. Technically, this is capable of repetition, but like, is it? So, whether this even gets resolved is one reason this conversation maybe doesn't matter. And then number two is, if she wins, she gets $96 million in the Harris campaign. If she loses, she gets $96 million in the DNC coffers to help the Harris campaign. And when we're talking about a billion or so dollars that are going to get spent and the fact that money has not been productive in presidential elections for some time now,

probably this $96 million is just not make or break for the Harris team or for the Trump team to prevent the Harris team. That's probably right. Although I would point out, and this is the slightly cynical take, right? We do have a candidate running who was convicted of felonies for intentionally misrepresenting paperwork relating to campaign finance funds. So if the Harris campaign is going in saying, like, we're just going to sort of ignore the law and do what we think and not seek an advisory opinion and move ahead, not that we're in great precedent to think about those situations, but that there are other legal consequences

that come down the line. Usually when we think about the FEC levying fines, it's, you know, the Obama campaign accidentally accepted $20,000 from non-citizens and so therefore it has to figure out a way of dealing with it. This is a pretty aggressive and large, large movement. I don't think there's a- And not an accident, as you said. Yes. So I don't think there will be criminal charges, but it's the one thing that's interesting in the back of my mind to think about, oh, if we're intentionally bringing forward these

things, what might happen? But I think you're right, Sarah. At the end of the day, I don't think it's getting resolved before the election is the point. And then we'll see what happens at the end. Our sponsor for this episode is the American Property Casualty Insurance Association, the primary national trade association for home, auto and business insurers. Third party litigation funding has been discussed on this podcast before, and the folks at APCIA want you to learn more about it. Third-party litigation funding allows investors, even foreign entities, who have no relationship to the claimant or issues being litigated, to invest in a lawsuit. This practice drives up the cost of goods and services for every American family, individual, and business, regardless of whether you're involved in the litigation.

It also impacts insurance affordability and availability. Because of that, APCIA says it's time for transparency and mandatory disclosure of third-party litigation funding. It's time for sensible reform. To learn more about third-party litigation funding, visit apci.org. That's apci.org. All right. Next bucket, ballot access. You've heard Republicans upset about the, quote, bait and switch aspect of this. And, you know, here's the part that I do agree with. They've spent however many months

and however many tens of millions of dollars and their convention running against one candidate. And then as soon as their convention's over, the other parties like JK were actually gonna do a different candidate. Ballot access wise, is there any argument for any state that Biden must be on the ballot

or that they can't put Harris's name on the ballot instead? No. I mean, we can spend some time talking about it. So I mean, I don't even understand the argument for what they're even thinking. So I think there's a couple of layers to this. One is ballot access deadlines and another is presidential nomination. Election codes are very complicated in the states. When you get into an election code, it's usually, the Secretary of State might compile one, it's 600 pages, it's not just one chapter, it's sprawling across the,

it's just a mess. And many of these have a lot of dates, a lot of deadlines, and a lot of things that are fairly confusing in contemporary language about no later than 77 days before such and such date, right? But before this- Just footnote, by the way, this was my job on the 2008 Romney campaign.

My job was to make the binder for every state about ballot access with a one page summary on the front of that state section with the major deadlines and days. And I was like, how am I supposed to do this in only one page? It's all craziness and really hard to do the like, you have to sit there with a calendar and like your fingers and toes and like be really good at counting and God forbid you get it off by one. Yes. No, exactly right. So you have all these states that have all these deadlines. And if you spend a little time in the code, you're going to see deadlines or a little time on Secretary of State's websites. And they'll say, let's just pick, you know, I'm in Indiana

here at Notre Dame. Let's just pick Indiana. So Indiana will say you have to have July 15th. That's our deadline for withdrawing a candidacy. And so if you're not careful, you're going to look at that and say like, Oh, July 15th, like Joe Biden, he's the nominee, he can't be replaced at this point in time. And then you get into the code and the code says, well, except for subsection, ABCD, this is the deadline. And you go to that subsection, and for subsection ABCD, this is the deadline. And you go to that subsection, and the subsection is for presidential elections. And presidential elections are different, and they have a different deadline. So in Indiana, the withdrawal deadline is July 15th, and then there's a separate deadline

for presidential elections, which is actually September 10th. So you can do that for all of these states. So the earliest state right now is Washington state with an August 20th deadline. We can talk about Ohio in a moment too, but, so August 20th. Stupid Ohio. I'm a Michigan native, so you won't hear complaints from me.

Okay, so you also then have this nomination process and Joe Biden is not the nominee. Any more than Donald Trump was the nominee one week ago, right? The nomination happens at the convention. And so what happens for presidential primaries, they're very different. Not only presidential primaries are choosing delegates, but the winner of the presidential primary in your state may not be the nominee. And the loser not be the nominee, and

the loser might be the nominee. It's a very strange process. So the states have this whole special ballot access rule set for major parties, which are Democrats, Republicans, and occasionally others in some states, that say when you get to the convention, you pick a nominee, your state chair sends us paperwork saying, here's who the nominee is, and that's whose name appears on the ballot. So it's at a later date, and it has to be a later date because the nomination doesn't formally happen for Democrats or Republicans until a majority of the delegates at their convention under their party's rules

choose the nominee. And that's why there's no nominee for Democrats yet and why there can be a switch. You know, that's why you see newspapers, for example, if they're following their style guides prior to the convention, they'll say presumptive nominee. And then after the convention, it's nominee, you know, so it's two things. One, Sarah, it's great to have a real expert on this. This is just it is the best. Two things. One, Sarah, it's great to have a real expert on. It's nice, right? This is just, it is the best. Yeah.

The second thing is, my own theory about some of the stuff we saw on Twitter about, you know, Joe Biden is not eligible, et cetera, wasn't at all about making a legitimate argument that Joe Biden was not eligible. It was about trying to whip up the base. This is intentional deception to whip up the base into believing both sides are the same, both sides mess with the rules when it's in their interests and cheat on elections when it's in their interests.

This wasn't about any sort of serious argument because anyone who's got five seconds of experience with presidential nominations knows there's no nominee until the convention. This was specious from the beginning, which made me think it was not about the actual argument. It was about something else entirely. But that's just, feel free to ignore my cynicism leaking out. Well, I will say, I mean- David's high on full medicine. I will say, I mean, when one of the memos

that was circulated very early said, oh, here are the ballot access deadlines and the deadlines that have passed. And then you get to page three and there's like a note saying, oh, this analysis doesn't examine presidential elector elections. Saying, well, then what doesn't examine presidential elector elections. Well, then what is it being circulated for, except to suggest to people that all of this stuff

in the first couple of pages is sort of meant to confuse people. So I think it is a problem of putting the information out there without it being carefully and thoroughly vetted. Can we talk about Ohio? Yeah. Because it's going to be relevant to our Trump replacing Vance conversation, potentially.

Potentially. Okay. So when we're talking about Ohio, so states for a very long time have had their deadlines and parties for a very long time have ignored them. Okay. They just, they want to hold their conventions later and they like holding their conventions later. They have a shorter window to use the general election money, which gives you kind of a more focused area to spend the money. They want the convention boost. They want to highlight themselves most of all.

There's a reason sort of the incumbent president or the incumbent president's party gets to go second among the two, the Republican and the Democratic conventions. No one wants to hold a convention in the middle of the Olympics, the Republican and the Democratic conventions, no one wants to hold a convention in the middle of the Olympics. So you're trying to pick a date that's going to be convenient. And they picked this late August date. So this late August date is the date the Democrats are going to nominate their candidate.

And then this spring, states like Ohio and Alabama sent the DNC letter and saying, by the way, your nomination is going to be too late to appear on our ballot. So you should think about that. Ohio has had an August 7th ballot deadline. They've had that for a while. Now, in past years, when it looks like the parties are going to miss the deadline, the legislature shows up, changes the rule as an exception for one year. The parties meet it and they move on. Ohio this year, there was some wrangling about

it in the legislature. Some Republicans wanted to kind of log roll the bill with another one about foreign funding of ballot initiatives in the state, prohibiting campaign contributions for that purpose. And then the legislature couldn't agree. And then Democrats are looking around saying, well, what are we supposed to do? We've got this August 7 deadline. We could sue, we could not sue. So then a couple of things happen simultaneously. One is that Republicans did, Governor DeWine called special session, they passed a new

deadline, but they didn't get that bill signed until June 2nd. And it takes 90 days for a law to take effect. So the law doesn't take effect until September 1st. So there's technically a window where Democrats might be out of compliance between August 7th and September 1st, right? But of course, on September 1st, the Secretary of State is going to look and say, you're in compliance, your name's going to be on the ballot, we move forward.

But I think even that risk alone was too much for Democrats to say, we don't want any kind of litigation. So they've moved starting in late May to create a virtual roll call, which you might have seen some media discussions about. The notion that is instead at the convention, the roll call for president, we're going to have a virtual roll call sometime between August 1st and 5th. I think those rules will be finalized today July 24th. And we'll have a virtual roll call. It takes at least 300 delegates to put a nominee's name forward. If we get a majority of the delegates, then we will have declared a candidate. And once we've done that, the rest of the convention can be its own thing. But we've done this before August 7th, put to bed any of these ballot access deadlines and can move forward.

Okay. Given that, we've seen reports that former President Trump is having buyer's remorse about his vice presidential pick, JD Vance. Let's be clear, this is very Trump anonymous sources close to Trump and blah, blah, blah. They picked him out of hubris because they thought the election was a lock and now they're not so sure and JD Vance isn't polling that well, blah, blah, blah. So I say all that to say the likelihood that this is a real hypothetical at this moment

feels pretty low. But nevertheless, if I were a lawyer at the RNC, and I had a little bit of free time, you know, after dinner some night, I would be thinking about this perusing in my brain. If they call and say, you know what, it's August one, just kidding. Let's go with Nikki Haley or Glenn Youngkin, the governor of Virginia. What would you tell them, Professor? Well, the first thing I'd say is he's been the nominee for about 15 minutes. So maybe you should take your foot off the gas. Give him a minute. Give him a minute.

OK, so one is it doesn't just happen with a with a you can just replace. Right. Can't just swap out Once the convention has voted for somebody, the rules will dictate death, disability, withdrawal. There are opportunities to withdraw from the party's internal rules. So it's not as easy, like right now, Democrats can still pick anyone they want for their presidential candidate.

They can pick anyone they want for their vice presidential candidate, totally up to the delegates. But once you've given that nomination, it locks it in, so it's not possible to just replace. But once you've given that nomination, it locks it in. So it's not possible to just replace. But suppose they're able to convince a candidate to step down or withdraw or a candidate dies or something like that. The party can get together and say, here's our new nominee. Here's our new nominee because we have rules that allow us to do this

expeditiously. But this is where things get really tricky because what's happening right now, and I can't tell you on a state by state basis, right? But after the convention, the state party chairs, we're talking about this nominating process across the United States, the state party chairs submit paperwork to the secretary of state saying, here's our nominee. And that is going to have a legal effect because now you've submitted the paperwork.. There are different approaches that states have. Some states will say you can replace the nominee subject to your own convention rules up until our drop dead date, August 20th, September 1st, whatever it might be. In other states, and Wisconsin is one of them, that says, at least apparently under its statutes,

that you can only replace if the candidate has died. They put express prohibitions in there to prevent just people from withdrawing at the last minute for political expediency. This is for all offices, not just president. And the other states don't have any provisions at all about how to substitute a nomination if something has changed. So at this moment, it becomes exceedingly difficult to swap out a nominee, at least formally on the ballots.

You're going to have to go state by state. You have to open up Sarah's binder and try to figure out what is going on across each of these states and whether or not they let you. And then you have to try to litigate. And you're litigating each state individually. And then you're trying to get success on each state individually, because there are going to be different considerations. And states say, well, I need this ballot deadline because we print them at this date and we're running out of time and so on. So it's very hard to unring that bell once you've made the nomination and submitted the paperwork into the state parties.

Deeply messy process across the states. And this is why, for instance, it would have been nearly impossible to replace Trump after the Access Hollywood tape, for instance, in 2016, as much as there was lots of chitter chatter about it. You talked to Reince Priebus, who was RNC chairman at that point and an attorney, and he was very clear with people. There's actually not really anything to do at this point. Yeah, I mean, as I tell people, there are sort of two possibilities that you have at that stage, especially after the ballots start going out. One is you just tell electors, stay the course, stay the course and we'll solve this at the end.

Which is the vice president withdraws or something like that. Again, I'm thinking more of a candidate's death more than anything else. We go through the electors vote for a deceased candidate, the Congress counts votes for a deceased candidate, and then we show up on inauguration day and the vice president becomes the president. And then you replace the vice president. There are mechanisms to do that. Or the other is you tell everyone, just ignore the name on the ballot, our electors are going

to vote for the right guy. Just ignore Vance's name, we're voting for Youngkin. Just ignore Biden's name, we're voting for Harris, whatever you want to do, which creates its own problems with, with faithless electors and all that stuff. But the notion being electors are the ones really with the choice in December. They can kind of do what they want. So there are like really messy, messy options that come once those ballots are printed and once those deadlines pass.

So the bottom line is Trump is stuck with Vance and we hope that Peter Thiel, Elon Musk checks are worth it. We'll see. We'll see how the campaign goes. There's still, there's already a lot that's happened in the last 15 days. I wouldn't be surprised to see a lot happening in the next hundred. You know, it's funny that you raise that because I keep getting people asking me what's going to happen, what's going to happen, what's going to happen.

And at this point I'm thinking, hey, why are you asking me? I'm not a political professional. Ask Sarah. But on the other, if you're gonna project that you think you know what's gonna happen over the next 100 days, after just the last 20 days, then I mean, you're just posturing at this point.

You're just absolutely posturing. That's one of the things that after the terrible assassination attempt and then that iconic image of Trump, people are saying the election is totally over now, it's done. Thinking, we'll probably have 17 different extremely dramatic events between now and then. Hopefully not as dramatic as that, but we've already had one, this historic withdrawal, and people are comparing it to Lyndon Johnson in 68. Johnson withdrew after one primary. He withdrew after New Hampshire, as I recall. I was not quite old enough, Sarah.

You'll be glad to know that I don't remember that. But you were alive, weren't you? No, no. Wait. Yes, you were. All right, great grandpa. Can't even remember when your birthday was. No, no, no, no.

I was born in 69. So, but alive, no, probably not even. Oh, interesting. Yeah. Yeah. But in any case, I, probably not even. Oh, interesting. Yeah. Yeah. But in any case, I don't remember it. No, it's nothing like, yeah, I think it's nothing like John's.

I mean, even that, it was before the modern primary era where you had primaries, but you know, there were kind of noise and we would see what would happen at the convention. This is very late. And only because of this debate, which also has never happened before, like hosting this debate before anyone's the nominee between two candidates. You know, I am still gobsmacked by that entire course of events that Biden was the one who

wanted this, that this was his idea and it was his rules. And the Trump team, even right before, with all of the rhetoric about he has dementia, he's not ready, he can't do it, then right before the debate, the Trump team's like, wait a minute, maybe we overplayed his disability and they're starting to try to correct the preconceptions and the predictions. And then it was worse than anyone imagined. I mean, just worse than anyone

could conceive of. So we're, when historians talk about this time, I don't really have a question. I'm just sort of observing. When historians talk about this time, it's going to be difficult to believe that these things actually occurred and that these were decisions made by rational people, one after the other, that brought us to this point. So no question, just an observation. I have a question. I forgot bucket number four here, which is sort of a very online

bucket, but I think it's worth a few moments of our time, which is the idea that both of Vice President Harris's parents were immigrants and not US citizens at the time of her birth. And so there's an online conversation about whether she is eligible to be president because of the natural born citizen requirement. Now this part I think is very clear. By virtue of her being born in the US, we have held that someone becomes a citizen automatically and therefore they are natural born. It's like you don't need to be naturalized.

That's what the term natural born has been taken to mean. So if you're born to US parents, but in Canada, you don't need to be naturalized into the United States. Therefore you're still natural born, even if you were born somewhere else on a military base, et cetera. We've had that with John McCain, Ted Cruz, yada, yada. But this conversation is about the birthright citizenship part, that when you're born to

non-U.S. citizen parents in the United States, where do we get this idea that you automatically become a U.S. citizen? We have long held that you do, but some legal scholars are arguing that that is a mistaken reading of the 14th Amendment. So, Professor, how would that legal challenge work? I mean, it would fail as all of the natural born citizen challenges have failed before. So I mean, we have, I mean, there are a lot of these

challenges that were filed with Marco Rubio in 2016. Unlike Cruz, he was born in the United States, but Cruz had a citizen parent. Rubio did not. When courts consider these challenges, they threw them out all the time. This happened with Nikki Haley. She was in a similar boat this year. No one challenged her.

No one challenged Harris in 2020 when she appeared on the vice presidential ticket in all 50 states in the District of Columbia. No member of Congress, despite all of the objections that were filed in 2021 on counting electoral votes, no member of Congress has tried to challenge her eligibility. So I just think that you have seen these things crop up as sort of interesting theories about what natural born citizen means, how it comes about as birthright citizens. I think the consensus view, the unanimous view, right,

is that, you know, those who are citizens at birth, whether by being born to a citizen parent abroad under federal law or born in the territory of the United States, are natural-born citizens. They're probably wonky and interesting ways of describing it. But given that Vice President Harris has been serving as three and a half years in that role, and that we say, you know, the vice president has to have the qualifications to be president, you know, that there would have been a time to to litigate and raise these issues and, and probably lose on them as we saw with, again, with Rubio and challenges to others before, before him. But, but I think these things will, will go nowhere,

except, yeah, I think as David was pointing out earlier, more, more smoke online, uh, to, to whip up at least some people on the front, uh, on these issues. Here, for our textualists, by the way, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.

So to take out some of the middle part here, all persons born in the United States are citizens of the United States. That would seem to answer it. Where you have the legal scholars focus in on is the end subject to the jurisdiction thereof. Their argument is that for instance, if you are here illegally or without legal status, you are not subject to the jurisdiction of the United States and therefore your child isn't subject to the jurisdiction. But this becomes a real problem for the Harris argument, because of course, her parents were here as professors. And so like they were subject to the jurisdiction. They were here on visas. I don't see any real textualist argument historical argument even if you want to

get into maybe some historical artifact on whether someone illegally present in the United States would be subject to the jurisdiction doesn't apply here so yeah it's a professor I think it's asure. Yeah, it's a phrase that has just, I mean, with Obama, with McCain, with Cruz, with Rubio, with Jindal, with Haley, with Gabbard, with Haley. These are the cases that I look at, right? When people are talking about these things. It's just a tremendous uptick. I mean, we could say we're a nation of immigrants, but we have a nation of politically active immigrants or the children of politically active immigrants in ways that we didn't before. I mean, it would be very convenient. People have talked about this for a very long time about a simple amendment to the Constitution

that takes out natural born citizen, which is the source of all this stuff, and replacing it with a 21 or 35 year citizenship requirement, which allows, wouldn't allow naturalized citizens, but just a really long window to say, we don't think you're secretly here from France trying to take over the presidency, which was the real concern at the founding, right? Like, that's not what we're going to do here. But, you know, I'm ending the Constitution. Although I got to say, in terms of someone like playing the long game secretly to act as a foreign agent, there's Senator Menendez, who was just convicted of acting

on behalf of a foreign government, while chairman of the Senate Foreign Relations Committee. So no allegation that he was doing it for the last 35 years, but you never know. Sleeper cells. And the weird thing is, Sarah you never know. Sleeper cells. And the weird thing is, Sarah, it's still accurate to call him Senator Menendez.

He's still a senator. Well, he has some grifts to do for the next few weeks. He can't resign until the end of August. Little cash to collect. Yeah, yeah. All right, so professor, you did this one hour pop-up seminar to walk through all of

these issues with your students. What are y'all going to focus on this fall? Are you going to like each week wait and see what the news brings? Do you have a syllabus? How does this work? If you are a, you've signed up for this class, they're probably listening to this podcast right now wondering how is this class going to work? Yeah, when I come up with a syllabus for election law, I try not to be a prisoner of the moment

to give the bigger themes that are happening and then some of the more narrow and specific themes at various times. So I treat a little bit modular and I keep some flexibility, especially at the end of the semester for recent developments or to bump things around. So I talk about the right to vote

and who has the right to vote and how we conceptualize of who's in or outside the political community for the right to vote. Talk about race and voting when it comes to the Voting Rights Act, when it comes to redistricting and thinking about all of the different political considerations that go into redistricting more generally. I think about these ballot access issues, about who gets on the ballot, who should be kept off. I think about associational rights of parties, really interesting ways of thinking about

voters, the institutional party, the party in government, how they relate to each other for open primaries, closed primaries, all those kinds of issues. Sometimes when I taught in California, I did a lot more on ballot initiatives, a lot more popular democracy out west. And I also talk a lot about campaign finance issues when I'm dealing with campaign contributions, campaign expenditures, coordinated expenditures, thinking about corruption in the political process. So there's never, never any, you know, boring moments in the class. It's just a question of how politically salient they are on any given week. Okay, lightning round then.

Do you think that political parties should be treated as state actors for the purpose of primary elections? Oh, that's a great question, Sarah. Do you want to explain the significance of that for the listeners who may not? No, I'm going to make the professor do it. She wants a lightning round. I mean, the point is, the awkward point here, right, is that we want political parties to be sort of private associations, able to exclude people from membership, to identify who they want to include. But 100 years ago, when the Democratic Party of Texas

said we want to exclude black voters from our party, the state got very, the Supreme Court got really uncomfortable with that and said, well, of course you can't do that. And it's ever since been a series of refinements of trying to figure out, well, what are those things that are state action, that are subject to constitutional constraints, and those things that are not because they implicate the private rights of association that the parties have? So there's a, the complex answer is I tend to fall more on the private rights of association of the parties to define their membership, but there's a the complex answer is I tend to fall more on the private rights of association of the parties to define their membership But there's undoubtedly it has public effects and at some point that runs out on the ballot

That's a squish law professor answer from the ivory tower though It's a good squishy answer though. I'll accept it Okay, do you think that the faithless electors 2019 Supreme Court decision was correctly decided in that, yes, states can bind their electors to vote for whoever wins the popular vote in their state, which kind of undoes the entire purpose of an electoral college? Like, why are we doing this? Yeah, I think it's fine for the court's decision. And it's fine because I'm kind of a congressional supremacist

and Congress has long counted electoral votes that from replaced electors under this system, it counted them in 2016, it counted electors who were replaced in Colorado and Minnesota. In my judgment, once Congress makes that adjudication and that determination, it wants to accept those kinds of electors and accept the votes from the states in that way.

I think that's the process we should defer to. The court didn't really talk about that, just sort of talked about the state authority rather than the congressional piece. But for me, I'm happy to say if Congress has done it, I defer to the congressional judgment in that case and say it's acceptable. Once again, I think that is not only an acceptable answer, but perhaps the acceptable answer. I filed an amicus brief in that case and no one bit on it, so I can't. This is my chance for glory. Okay. Campaign finance law.

Is it not enough or is it too much? I love this. I did not know we were doing the lightning round, but I'm on the edge of my seat. I love this. I did not know we were doing the lightning round, but I'm on the edge of my seat. I love this. Um, I don't know. I feel like I mean almost whatever you do there's going to be money Like that's the one thing. Right. Money's like water. It finds a way. Or like life in Jurassic Park. It finds a way. I mean, I think the thing we are seeing and and again, I think the interesting thing, I'm

not a political scientist, but I try to keep up on what the political scientists are doing on this front. We're seeing that small money donations, which we thought were going to kind of be this great unlocking of democracy a generation ago, are really driving a lot of polarization in the United States, which is very strange if you think about it. But the point is, it's very easy to collect money nationwide, even if you are in the Bronx, Panhandle, Florida, wherever it is. And so you have a different incentive as a fundraising mechanism to get that money. So there might actually be, I think, beneficial ways of loosening campaign finance restrictions be, I think, beneficial ways of loosening campaign finance restrictions to empower the party's ability to control membership or control its members or to allow members of Congress

to not be as beholden to the national audience, the breadth as much as the depth of intensity of preferences. So, I think we could probably benefit from some loosening of campaign finance restrictions, but in ways that might be counterintuitive to some of the audience. Would you sign on to my no limits immediate full disclosure? Uh, no. Yeah, I mean, that's not, that sounds fine. Sure.

I mean, a lot of states don't have limits. This is an interesting thing too. I was going to say Pennsylvania, Virginia, Texas. It's not like we have a bunch of these states that have just been overrun by huge amounts of corruption. I think it turns out that the campaign finance restrictions or no restrictions, none of it makes a lot of difference. I do think, I think no disclosure under a certain dollar threshold

is something though that I think is valuable. I think there are a lot of reticent donors who don't wanna give. So I think there's a threshold, but to the extent like immediate disclosure and unlimited contribution seems like a, yeah, let's see how it works for a couple of cycles. Yeah, I mean, maybe instead of making the current limits,

the limits on the money, maybe those current limits need to be the limits on disclosure, for instance. Yeah, yeah. Sort of just transfer the whole thing over into a disclosure function. So you give anonymously. That's an interesting idea. You get the right of anonymous donation if it's under a certain threshold. And if it's over a certain threshold, you have automatic immediate disclosure.

I think I could get on board with that because I've always had an NAACP versus Alabama issue with some of these mandatory disclosure rules, especially in a hyper-polarized environment where people will be punished by employers, by colleagues, et cetera, for donating to a candidate. I think I like that. Now let's just call Congress and make that happen. What's sort of interesting is when you see those immediate reports like you were talking about from

ActBlue, right now, if you give under $200, you do not have to give your name. Now some people choose to give their name, but you're not required to under... Well, you have to disclose your name because they have to know if you go over $200, right? Because if you give them the aggregate. But ActBlue and WinRed, they just do total disclosure. So if you give a nickel, they will disclose, even though they don't have to, because they don't want to deal with figuring out when you've crossed the $200 threshold. So it's actually...

Yeah, yeah. So the campaign's just anonymized under $200. But ActBlue doesn't. So if you want to anonymize under 200, you can write that $199 check, put it in the mail to your favorite campaign. I'm sure they would love the campaign manager to have to cash those things individually, but you get the anonymity you want. Yeah. I mean, there are plenty of people who, if you just want to support someone, but you don't want anyone to know, yeah, you just give that $199 to the campaign, as you noted.

Well, Professor Derek Muller, this has been a treat and a midsummer's delight. I hope your students appreciate how much fun your class is, and I see your office is decorated with lots of Notre Dame stuff, even though you're from Michigan, which is interesting. Yes, no, big Notre Dame fan. It's great to be here.

It's great students, it's a great university. And yeah, appreciate it. As a big Notre Dame fan, did you enjoy the Michigan national title? I mean, is Michigan your number two team in Notre Dame one? What's the hierarchy here? No, I grew up a Michigan State fan. I then have also taught at the University of Iowa and Penn State.

So I think I've triangulated basically every anti-Wolverine bias except being in Columbus. So it puts me in a unique camp. All right. Well, thank you so much for joining us and answering all of these questions. I found it terribly enlightening. Thank you. Well, that was fun, David. Any takeaways? Yeah, I really enjoyed that. I meant it when I said, it's so refreshing to have an actual expert who can explain things very clearly. And both elements

are important because we have a lot of experts who can't explain things, but he was very, it was very, very clear. And Sarah, the bottom line is, to me, there's a lot of sort of interesting legal theorizing, but this no legal theorizing is going to essentially avoid the reality that it's now Harris versus Trump and it's Trump has Vance and Harris has whoever she's going to choose. And while there might be some legal confusions around money, it's probably not going to be relevant to the election and might be relevant afterwards, but not during. And it's just kind of game on at this point. I mean, is that, is that your assessment as well? Yeah. Yeah. I mean, for as much uncertainty as there appeared to be just a couple weeks ago

on any number of fronts. I mean, you remember I talked about what could happen post-election and faithless electors and all of that. It's all been sort of wiped away. The gray clouds are gone and it's blue skies for the time being at least. Yeah, for the time being. And I think it's interesting.

I think one of the reasons why you're seeing such euphoria on the democratic side isn't necessarily as much as people are trying to make it look like Kamala Harris is some sort of like awe-inspiring campaigner and candidate, which those of us who have memories beyond that of a goldfish remember 2019 and know that she has real limitations, but, you know, you begin to see what it means when people who had no hope 48 hours before now feel like they have hope. There's a certain level of exuberance that's attached to that. Have no idea how long it'll last.

Uh, but for right now, the Democrats are obviously in their phase of exuberance. Having gone from no hope to hope. How much hope? I don't know. We'll see. I think that's right. Well, you know what? We have not gotten to talk about the farting leprechaun case going on bonk in the Fifth Circuit. So I do feel like that's on the hook for us. And other than that, I've sort of enjoyed a little bit of a slow legal news couple weeks since the end of the Supreme Court term, but no doubt that's about to change. And for the month of August, we will be interviewing authors on some of the best legal books of the year. So look forward to that. We've got quite a lineup coming.