Topics of Discussion:
Thomas: Hello and welcome to Opening Arguments, this is episode 391! I’m Thomas, that’s Andrew, how’re you doing, Andrew?
Andrew: I’m fantastic, Thomas, how are you?
Thomas: I’m just so excited because we obviously did the live Q&A yesterday.
Thomas: It was great. Everyone was fantastic.
Andrew: It always is! [Laughs]
Thomas: I dunno why I’m bringing it up. [Laughs] Any announcements this time? I guess not.
Andrew: Naw, I think we’re good on announcements, we can get right into the meat.
Thomas: Still plugging away on our amicus briefs.
Andrew: Indeed, we are.
Thomas: Just working so hard on ‘em. Mine I had to dot a couple I’s, I also had to check a couple cases. Just, you know, be able to cite them properly, I had to distinguish one of mine.
Andrew: That’s 100% plausible, yes.
Thomas: [Laughs] Still working! I’m still typing it out, still working hard. Okay, let’s get to the episode. We are going to talk about – yeah, I’m so glad we’re going to address this. The insider trading probe. What is going on? That will be our first segment, I’ve got questions, and then also Republicans want us to have to die in order to vote, I think is the proper-
Andrew: Yes. Yeah, that is the right way to put it.
Thomas: For the main segment, so here we go!
Insider Trading Probe
Thomas: G. Zachary Terwilliger, what a clownhorn of a week! So, Andrew, we just had the FBI raids the guy, took the guy’s cell phone and all that, and then I just the headlines that were like well they dropped the probe on – so they dropped the probe on some of the Senators but not against Burr. Give us the update, what’s going on? Who’s a criminal, who’s not? What do we make of this?
Andrew: [Laughs] Well, they’re likely all criminals.
Andrew: But some of this falls into the category of “there aren’t laws for the kinds of crimes that these are.” Let me be clear, because I am not courting any defamation lawsuits from any of these members of the U.S. Senate. So the gravamen of the allegations is that each of these four senators – and those four senators are Diane Feinstein, Democrat of California; Kelly Loeffler, Republican of Georgia and probably the second most hard hit from these allegations; James Inhofe from Oklahoma; and Richard Burr from North Carolina – had access in some way to information that was not otherwise available to the U.S. public that the coronavirus was gonna be super-duper bad. All four either on their own behalf or through intermediaries and through family members sold off a bunch of stock right before the stock market went in the toilet thanks to the coronavirus.
This, by the way, let me say in general it’s very, very difficult to prove insider trading on these kinds of facts, but that these are not the kinds of things that go without consequence in the private sector. For example, one of the reasons why Ray Cassar was fired – he was the CEO at Atari back when Atari was owned by Warner Communications in the early 1980s – in December of 1983 Atari was not going to hit its sales targets. Atari had been a hugely growing company year over year and 20 minutes before publicly announcing that, Ray Cassar sold off a bunch of his Atari stock.
Andrew: And look, he was arrested and charged. Ultimately, I think there was a non-prosecution agreement, I know he was not convicted of insider trading, but he was fired as CEO of Atari and rightfully so.
Thomas: I’m sure you’re gonna get to this, but if he had done that, you know, one second into the announcement or something – can you still kinda get in early enough but as the information is going public?
Andrew: That’s not a crazy corner case. That question of when is information sufficiently public and baked into the share price is at the core of disputes over what counts as insider trading.
Andrew: It’s part of the reason why it’s really, really hard to bring insider trading cases. I will tell you, I read some of these in law school, but there is a group in the literature that says “we ought to allow insider trading.”
Andrew: That basically makes the argument that you made, and what it says is if informed insiders are buying up stock then that is actionable information in the market, so even if we don’t know what they know, we know some of what they know and so that’s going to then better reflect-
Thomas: Yeah but that’s – [Sighs]
Andrew: Yeah! [Laughs]
Thomas: Still seems kind of self-serving.
Andrew: Uh, yeah!
Thomas: Like you’ll get the information eventually once we profit first.
Andrew: Right, yeah. It is a law and econ theory that is unconcerned with the obviously unfair distributive effects of that rule.
Thomas: I’m sure I’m jumping the gun-
Thomas: But shouldn’t they just not be allowed – okay, I get that you have stock. Stock is a form of payment and its incentive, that way if it performs well the stock goes up, it’s part of their payment package, fine. That I get. But couldn’t there easily be regulations saying if stock is part of your payment for, say, being the CEO of Atari or whatever, it is, you can’t sell it. You just have to have it; you have to sit on it the whole time you’re there and then maybe after.
Andrew: It would be trivially easy to do that. It would be trivially easy to do what my profession does, which is it’s not hard to imagine how lawyers could have insider information.
Andrew: I represented Microsoft; I was aware when Microsoft was about to engage in a major settlement that was going to affect their stock price.
Thomas: Oh, I thought you knew they were gonna do Vista before they did it.
Thomas: You could’ve just dumped all that stock.
Andrew: I did not have any advance knowledge-
Thomas: Isn’t that the bad one?
Andrew: I think that was, and Windows ME, that was a piece of crap too.
Thomas: Oh yeah.
Andrew: But look, it’s not hard to imagine. I’m a lawyer, I represent a company, I know that company is about to turn to a settlement, admit liability. There’s tons of inside information that I could potentially have that would affect the stock price and the law is just super clear that I can’t trade in that. I have to publicly disclose any individual stock purchase over $10,000.
Andrew: I guess the theory is alright, we’re not even gonna waste –
Thomas: Hey that’s still $9,999 dollars of profit you could get, I guess.
Andrew: That’s … I suppose, but I’ve declined to do so and I no longer represent any publicly traded company, so much for that. But it’s really, really easy to draw a bright line and people who are in restricted industries that are not in the financial sector tend to say “oh yeah, sure, obviously that should be the case.”
Obviously, it should be the case that if you’re a sitting member of Congress that everything should have to be in a blind trust. You should not be allowed to make individual trading decisions. That’s a no brainer.
Thomas: If only some Senator from Massachusetts who should be President had introduced this very idea.
Andrew: This exact bill word-for-word? Yeah, that’d be neat. So okay, those are the allegations. Today the DOJ dropped its inquiry into Feinstein, Loeffler, and Inhofe. All three of those had the excuse – however bad [Laughs] – of “we were working through intermediaries. “I wasn’t the one that traded!” Loeffler’s case it was her husband who mostly sold most of it and in Feinstein and Inhofe’s case it was wealth managers and investment managers.
Feinstein said “oh, I definitely did not tell my investment guy to sell off everything 20 minutes before coronavirus wiped out a third of the nation’s wealth.” I don’t think that’s a super great argument, but that’s kind of where we are with respect to insider trading and it’s a really good reason why we should beef up our insider trading laws.
Now that leaves Richard Burr. It is the case as you point ed out in the introduction, the FBI has executed a search warrant for his cell phone. Let’s describe what that means. In order to persuade a judge to issue a search warrant that judge must be persuaded that you have probable cause to believe that the cell phone is an instrumentality of a crime that has been committed.
We’ve talked about that before, I think most people know that who’ve listened to the show, but the classic TV show “you don’t want me to have to come back with a warrant,” that’s because getting a search warrant requires you to prove to a judge that you have probable cause to think that somebody committed a crime and that they committed a crime – that evidence of the instrumentality of the crime is available with the stuff that you intend to search and seize. That’s pretty high level.
There are two ways to view this. If George W. Bus were President then the obvious face-level objective way to view it is that the DOJ is proceeding with the investigation of the person who traded in his own name – and it was a lot of money, it was $1.7 million dollars – and decided not to go after the people who had the intermediary excuse: Loeffler, Feinstein, Inhofe. That’s very plausible, that is the way in which if this were 2016 Opening Arguments, case closed.
[Sighs] Because it is 2020 Opening Arguments, it must be pointed out that Richard Burr is the Chair of the Senate Intelligence Committee and that as a result of these investigations he has stepped down from his position as Chair. He has not resigned his Senate seat yet, and has been replaced with whiney do-nothing lapdog Marco Rubio.
Andrew: By the way, Marco Rubio still not interested in doing his job. You might recall, he was one of the –
Thomas: He never votes, right? He doesn’t do anything.
Andrew: Yeah, one of the attacks by Donald Trump, one of the only true things that Donald Trump said in the 2016 primary was that Marco Rubio had the lowest attendance rating of anyone in the Senate. I’m not kidding, it’s one of the few things where you can go to PolitiFact and see “Oh! Donald Trump said a thing that was true by accident!”
Thomas: I know people are gonna hate me for this, but during those Republican debates one of the reasons he was so effective is that he did actually say some true things about his Republican rivals, about the Iraq war, he did actually say some true things [Laughs] about Republicans.
Andrew: Yeah. Especially about how small Marco Rubio is.
Andrew: I want to tell you – Rubio’s argument at the time was like “dude, I’m running for President, of course I’m missing a lot of votes,” but the response back was “you miss a lot of votes even for people who run for President and even when you’re not running for President” and in fact, I’ll link it in the show notes. If you to govtrack.us [Laughs] from January 2011 to May 2020, Rubio missed 292 of 2,774 rollcall votes, which is 10.5%.
Andrew: And again, here I’m quoting from a government oversight agency (quote) “this is much worse than the medium of 1.7% among the lifetime records of Senators currently serving” (end of quote).
Andrew: So, look, I long ago picked Richard Burr as the pivotal figure high atop Yodel Mountain. Here is somebody who was the Chair of the Senate Intelligence Committee and was not obviously a Trump lackey and now the Senate Intelligence Committee is chaired by somebody who is equal parts lazy, stupid, and cowed by Donald Trump.
The Senate has real work to do in terms of, you know, conducting inquiries into foreign efforts to shape the 2020 election. This happens to take somebody who, again, not a Trump critic, not somebody who didn’t vote for impeachment, didn’t vote to allow witnesses, but somebody who was at least kind of reasonably intelligent and independent and has replaced them with Marco Rubio. I don’t like going through that, but with Bill Barr as the head of the DOJ I feel like it would be irresponsible not to point out the political consequences.
Thomas: Okay, but going back to – because I don’t wanna let our people off the hook. Going back to Feinstein and others, how do they just get off by saying they didn’t tell their person? First off, what are the odds? How did their money person know to do that? Seems curious. Then couldn’t the FBI or whoever it is, DOJ, whatever, couldn’t they say “well we want the following records, or phones or whatever to see if in fact you did or didn’t message them or tell them?”
Andrew: Let’s talk about Feinstein directly. I wanna say, at the outset, if this were my DOJ I would, on the available facts, I certainly would continue the investigation. The point of this segment is I believe we should have more robust insider trading laws. Here’s what happened with Feinstein specifically: The FBI requested that she answer questions, which she did, and that she turn over documents, which she did. She did so voluntarily and her claim is that her husband, who is a super-rich investment banker, he sold off his investments in a biotech company right before coronavirus hit. Feinstein also points out that she disclosed that that transaction was done in her Senate financial forms. Basically, what she says is “hey, I don’t tell my husband what to buy and sell.”
The argument is – particularly there was a recent amendment in 2012 which explicitly prohibits lawmakers and their congressional aides from using insider information – that is information gained being a member of the U.S. Senate, from buying and selling stocks. Here’s the argument either way. For continuing the investigation is come on, you just used your husband as a proxy to buy and sell these stocks and you obviously told him-
Andrew: Coronavirus is about to hit, maybe you don’t want to have a small biotech company that’s about to go bankrupt. Those are perfectly reasonable inferences to make, whether you have evidence or not. I don’t know – [Laughs] If you’re Feinstein how do you disprove that inference? I’m gonna turn over the zero emails – well great, but are you telling me you didn’t see your husband at any point? You didn’t sit down and have dinner together? Come on!
The second half of that is in exercising prosecutorial discretion, how do you make a case that the husband was a sock puppet for the wife? Again, the Feinstein case and the Loeffler case overlap that way, in that both have pointed the finger at their respective spouses and said “look, I didn’t do this, they did it.”
But if you want a legal distinction between Feinstein and the others and Burr, that’s the distinction. The distinction is do you have a potentially exonerating intermediary that says I do not come within the 2012 amendments because the lawmaker did not buy or sell stocks, either individually or on their own behalf. Make sense?
Thomas: Yeah. I guess.
Andrew: You want somebody to primary Diane Feinstein? I will donate to that campaign.
Thomas: I think what bothers me about that, particularly with Diane Feinstein is, isn’t she like 812 years old?
Thomas: You still need to insider trade your way to a few more million dollars at the age of 82 or whatever? Have some dignity. I dunno.
Andrew: Yeah, and Feinstein, also on the Senate Intelligence Committee.
Andrew: These are – part of that is – there hits a point where it is – and it’s why I think the laws need to be much stronger – where it would be implausible to be a good actor and have an actively trading family member. Because you’re on the Senate Intelligence Committee, suppose you don’t come home and say anything about any specific details at all. You don’t say coronavirus, you don’t say whatever, but you come home, I dunno, my family knows when I’ve had a crappy day.
Andrew: When you come home from top secret briefing-
Thomas: Your wife’s like “sell all the shares in law!”
Andrew: [Laughs] Right! It’s kinda hard to hide at minimum your overall knowledge of is this gonna be a good thing or a bad thing.
Thomas: Andrew’s really grumpy! Sell all the shares in law/Transformers, I guess?
Thomas: Sell the Transformers, it’s one of those things.
Andrew: It’s definitely one of those two things!
Andrew: Either short the law or short Transformers!
Andrew: So, there you go. Like I said, I do not want to embrace the conspiracy theory element, there is a perfectly reasonable justification for proceeding against Burr and not against the others, but I think we would be negligent if we didn’t talk about the fact that that legal determination, or the ongoing legal investigation into Burr benefited Donald Trump. It took out a reasonable person from the Chair of the Senate Intelligence Committee – now Burr is still on the Intelligence Committee – and replaced him with a worthless lapdog. There you go!
Thomas: Yeah. [Sighs] Yeah, we need Elizabeth Warren’s law to go into effect on this.
Andrew: Yeah! Again, would not be hard! Just say that members – define it broadly – that members of Congress neither on their own nor members of their extended family, nor blah blah blah, may not engage in a transaction over $10,000 in any quarter of any given stock. It’s super easy, and if they complain be like yeah, I’m sorry, you’re gonna have to put your stuff in a trust and it’s gonna have to buy and sell mutual funds while you’re in Congress.
Thomas: Yeah, you get to be one of 100 Senators.
Thomas: Or I guess maybe we include the House, but anyway, you get to be in government at a very high level. The penalty for that [Laughs] the tradeoff for that-
Andrew: You don’t get to buy and sell individual stocks.
Thomas: Take what’s likely your vast wealth that you already have, most likely, and put it in a different form.
Andrew: In a different investment vehicle! Again, we’re not saying it’s gotta be coffee cans and mattresses, it’s not confiscatory. Yeah. Alright.
Thomas: [Sighs] Okay, on to our main segment.
Republican Opposition to Remote Voting
Thomas: Alright, on to our main segment. Yeah, the House Republicans are really mad about not having to risk their lives to vote, right?
Thomas: They’re pissed about that?
Andrew: [Laughs] They are. Because again remember the game plan for the Republican party is to complain that government doesn’t work, and then do everything they can to break it to prove that they were right.
Andrew: So, if you oppose – and here with coronavirus it’s a win-win situation for them. Democrats are more likely not to show up to cast votes if you have 435 people milling around licking each other, which is what they do during normal vote – citation needed on that, but seriously, they’re right jammed up against each other. It’s gross on the floor of the House of Representatives, I know, I’ve been there. So, it’s all wins. Democrats are more likely to be responsible, so thus maybe you have a situation where you have a quorum of folks present but actually a majority of Republicans, because Democrats are staying home. That’s a real possibility.
Republicans are also feeding their infantile and insane Q-Anon base that says “there’s no need to social distance and coronavirus is a hoax and also was invented by the Chinese and don’t think about the fact that these two things are contradictory.” Being against being responsible and saving lives is also part of the far-right Republican platform.
Thirdly, what I led off with which is and if what you do to combat those first two is basically say alright, the House won’t be taking any votes while we’re under – without having a quorum of representatives present, then they win because the House isn’t doing anything! That is then proof of their argument that the House can’t do anything.
What happened? Because – again, reason number a billion why it was a celebratory moment and worth building on that the Democrats retook the House in 2018 – Democrats retook the House in 2018! Don’t know if you heard that, Thomas! [Laughs]
Thomas: Oh, cool!
Thomas: That’s why we have Trump’s tax returns.
Thomas: Sorry, shouldn’t rub that one in.
Andrew: That’s fine.
Thomas: Little did you know laws don’t matter anymore.
Andrew: I kind of thought that maybe they did. So, on May 15th Nancy Pelosi fast-tracked, brought up, and the House voted for, H.R. 965 which says “at any time after the Speaker is notified in consultation with the House attending physician” I did not know that was a position but apparently it is.
Andrew: “That a public health emergency due to a novel coronavirus is in effect,” so this is truly a targeted piece of legislation, “the Speaker, in consultation with the Minority Leader, may designate a period during which a member who is designated by another member as a proxy, may cast a vote for such other member.”
That passed, that’s exactly what happened. The implementing Resolution is also H.R. 967, which designates that period as being May 19th through July 21st, it’s extendible every 45 days. Nancy Pelosi went to Minority Leader Kevin McCarthy and said “hey, here’s what we’re gonna do, because, you know, coronavirus.” Only a handful of people are gonna show up from both parties, and you can email somebody who is here to cast votes on your behalf.
Andrew: It literally is, you can email ‘em! And that makes total sense! Because as we’ve said with churches and podcasts and other business, a business that you can conduct remotely, talking and voting on stuff.
Andrew: It’s super not hard!
Thomas: Just in case of shenanigans, potential shenanigans, what recourse do you have if someone casts your vote wrong? Maybe there’s a miscommunication, ah you voted the wrong way for me.
Andrew: You would have the exact same – its’ a really, really good question, it’s already covered by the House Rules because sometimes members of the House of Representatives push the wrong button.
Andrew: They already use the little button thingy and sometimes you push the wrong button and you just petition to the Chair and you say “oh hey I pushed the wrong button,” and they fix that. In every kind of crazy, whacky, far off “you hacked my House email,” then you would show up on the floor of the House and say “hey, that vote that Jamie Raskin cast for me, I wasn’t the one that actually emailed him,” or “I meant to email him and say vote aye and he voted nay, it’s all a mess, fix that because my vote was really aye.”
There’s not a problem. There’s an easily remediable solution. But nevertheless, the Republican members – a handful of Republican members of the House of Representatives have sued for injunctive relief in the U.S. District Court for the District of Columbia to enjoin Nancy Pelosi and the House of Representatives from using proxies to cast votes in the House.
I’m gonna tell you a couple of things here. First, I wanna say, by the way, these are what are known – H.R. 965 and 967 – are what are known as “simple Resolutions.” A simple Resolution is a Resolution that only affects one branch of Congress. In other words, when the House of Representatives wants to change its own rules, you don’t need to get approval from the Senate; you don’t need to get the President to sign it, that’s how this was able to pass. This is not how a bill becomes a law, it’s a simple Resolution, it’s in effect.
Then the question is, can Republicans use the court to undo that? The answer, I’m very confident to tell you, is no. I wanna tell you, it’s not necessarily no on the merits, but it’s certainly no in this lawsuit. Do you wanna take a guess as to why it’s a clear no in this lawsuit?
Thomas: Because they totally messed up the lawsuit or something and they’re incompetent? Or…
Andrew: Uh… Kind of!
Andrew: Because it is very clear that the Republican members of Congress in the minority party do not have standing to allege an injury that the courts can address.
Thomas: Is it because even if they could vote no matter how they wouldn’t have been able to change the outcome?
Andrew: It is! Remember episode 361 when we talked about Blumenthal v. Trump, which was the D.C. Circuit in one of the emoluments clause cases.
Thomas: Yeah, I was thinking about that.
Andrew: Yup. The emoluments clause case brought by minority Democrats in the House and Senate that said “hey, you deprived us of a vote on whether to approve of letting Donald Trump receive these benefits from foreign countries,” and the D.C. Circuit unanimously said – this is February 2020, it is controlling precedent in the D.C. Circuit which is the court that sits above the U.S. District Court for the District of Columbia, so this is a slam dunk, no brainer, uh hey the people who overrule our decisions told us two months ago exactly how to interpret this.
What they said was if you’re just a member of Congress, if you’re not singled out, you don’t have standing to allege an injury that you didn’t get to vote on a thing that would have lost anyway. Here’s what they said:
“The members were not singled out. Their alleged injury is shared by the 320 members of Congress that did not join the lawsuit, and their claim is based entirely on the loss of political power” and that is insufficient to bring a lawsuit under now binding, settled precedent in the D.C. Circuit thanks to the DOJ’s own briefing in the emoluments clause cases.
As you recall, I said when the Blumenthal case was filed, I said I thought this was the weakest of the three. There’s an argument to be made there for an expansive view of standing. In general, I favor an expansive view of standing, but I am chuckling at watching Republicans getting ready to go down in flames because of the rule that got put into place by their own litigation.
Andrew: Now you gave a deep sigh there, what was the deep sigh for?
Thomas: I just – it’s unbelievable to me that they want – why are they even doing this?
Thomas: They’re suing over a totally obvious reasonable thing to do in a pandemic. What am I missing?
Andrew: You’re not – it’s worse than that. Procedurally they’re going to lose, Blumenthal is controlling, that’s clear as Kushner. Let’s look at the actual lawsuit itself. Again, as usual, we’re gonna work backwards. The lawsuit has three counts, it is a declaratory judgment and injunctive relief. Count three is that the Speaker has violated (quote) “the structure of the U.S. Constitution,” (end of quote).
Andrew: That’s nonsense.
Thomas: The vibe of it? The vibe of the thing?
Andrew: If those words were in a lawsuit brought by a Democrat, they would-be front-page news on every Fox News site for a week making fun of them. But when Republicans allege it, I guess it’s fine. It actually is, Count three, violation of the structure of the U.S. Constitution.
“By authorizing proxy voting and counting members absent towards establishing a quorum, H.R. 965 contravenes the founder’s design, subverts the structure of the United States Constitution, and is invalid.”
Andrew: That’s not a thing.
Andrew: Subverting the structure of the Constitution is not a valid claim or cause of action. Okay, so that’s garbage. What about count two? Count two is “violation of the yeas and nay’s requirement of Article 1, Section 5.”
Thomas: You didn’t let me say, I really like saying “yea,” and “nay.” I like being there and saying it.
Andrew: They’re argument is maybe a little better than that? But not much. So Article 1, Section 5, Clause 3 states “each House shall keep a journal of its proceedings and from time to time publish the same, excepting such parts as may in their judgment require secrecy,” and then here’s the critical part: “and the yeas and nays of the members of either House on any question shall, at the desire of 1/5 of those present, be entered on the journal.”
The argument is that requires that the recorded vote be cast by members who are actually present in the chamber, that is physically there. Since you can now get 1/5 for a division by email and proxy, you’re not actually present so you’re violating that provision of the Constitution.
Leaving aside the definition of the word “present,” which we’re gonna get to in a second, this is also not a great argument. The reason it’s not a great argument is because Article 1, Section 5, Clause 3, is about the internal rules of the House. It’s about what the House shall do. It’s gotta keep a journal, it’s gotta make it public, and the journal will report those public if enough members of Congress want it to do so.
As you might imagine, the case law is crystal clear that the courts are to defer to the House when it comes to making your own rules. As long as you’re in compliance with the overall vibe of the thing [Laughs] as long as you’re actually keeping the record of votes, how you figure out when those votes are published – courts are like “that’s not an injury to the public or to the other members of the House.” Just figure that out, we don’t want a part of it, we will defer to you on that. Makes sense?
Then reading backwards, that takes us to count one. This is the best argument, but still not a good argument. It is violation of the quorum requirement of Article 1, Section 5 of the Constitution. So same section but the first clause says: “Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business.” The clause continues, “a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.”
The argument is, and here I guess I also need to go back and get the history point? This comes from page 21, it’s paragraph 71, that the Constitution uses unambiguous words like meeting, assemble, attendance, present, absent, recess, sitting, and seat, and those all mean physically being in the same room. I think that’s kind of crazy in the sense that I know all of us now have said “I’ve attended a meeting.” I’ve got a meeting when we finish this record, and it’s a meeting over Zoom in which people will be present even though none of us are in the same room.
Thomas: It means people will be Transformer-toy devotees and Andrew has a very important meeting with them.
Andrew: [Laughs] A client meeting, but close.
Thomas: Oh, okay.
Andrew: Again, this is one of these – this is almost self-parody. One of the arguments we emphasize all the time in terms of turning back originalism is look, give originalism a little bit more credit than just “the 2nd Amendment means you have a right to own a musket.” The 2nd Amendment protects the right to own certain kinds of firearms in certain kinds of conditions, but don’t make the bad argument that it only means firearms as then extant in 1791, because then the 1st Amendment would only apply to newspapers as then extant in 1791.
Thomas: Right. I do agree, but isn’t there – and sorry to derail your point.
Andrew: No no no!
Thomas: There is some argument to if you’re interested in founder’s intentions – which is a big if – there’s a big difference in how they would’ve thought of weapons given their relatively worthless firepower.
Andrew: No, that’s exactly right! That’s the distinction!
Andrew: That’s why, for example, you can have the 1st Amendment saying “Congress shall make no law restricting the freedom of the press” and when Congress passed laws about what you could say on public television they drew a distinction between okay, there’s a difference between something that is a newspaper that you have to actually go and affirmatively pick up and the public airwaves. Everyone can start their own newspaper so if you don’t like it – versus we’ve only got three TV channels and we’re gonna exercise control over those three channels.
Those arguments, whether persuasive or not, were parsed in exactly the way you’ve described, which is, hey, is a TV station more like a newspaper or more like something else? Again, I think some of this was wrong in the 1950s, but they court said yeah, that’s right, the founding fathers didn’t know what a TV was, the principals that they described for a newspaper would apply in things where the space is unlimited, but it wouldn’t apply in areas where the space is limited.
That’s why you have far greater protections for stuff – far fewer restrictions for stuff that’s said on the internet versus stuff that’s said on TV even today. It’s the basis of those 1950s era cases in talking about “is it limited or unlimited.” Your point is correct, you can certainly say let’s take a look at firearms and go “is this firearm more like the principal that the founding father were thinking about or more like something else?”
Andrew: That’s exactly what you would do. I love that question. That’s exactly what you would do with words like meeting, assemble, attendance, present, absent. You would ask what was that meant to say? It was meant to say people have got to get together. What we didn’t want to have happen was we didn’t wanna have the House of Representatives, the States surrounding Pennsylvania and then later the District of Columbia, we didn’t want Maryland, Pennsylvania and Virginia to be like “okay we’re convening,” quickly race there on their horses, be like “alright we’re here, time to get a whole bunch of business done before those yahoos from South Carolina, Florida, Maine, Rhode Island, before they get here on horse.”
The idea was we want people physically to be present so that everybody has an opportunity to participate. That’s what the quorum requirement was meant to protect. You would then – if you look at the case law, shockingly this notion of “can you be present for a quorum without being physically present” gets litigated. It hasn’t been litigated with respect to Congress, but gets litigated with respect to businesses and institutions and government agencies all the time.
You will not be surprised that generally speaking – if the case is from 1950 they probably held that to be a quorum you’ve gotta be there, that’s what the business world was like. You would have a phone call to let someone know you were coming, but the phone call was not how the business got done, the business got done in person.
Shockingly, if you have a case from 2010 or later, almost all of those cases go the other way. They’re like look, yeah, you can have a quorum over the phone. You can have a quorum on a video conference, yeah! What is this, 1950?
Andrew: If you think about your day to day experiences – like I said, I have client meetings almost every day. Those are not telephonic meetings? Who cares? I am a member of several different boards; we have a quorum present telephonically every single meeting. The idea that there is this underlying principle to protect is very, very hard to deal with.
You don’t have to take my word for it, a nonpartisan report from the Congressional Research Service, that I found hilariously because it is cited – it’s written by legislative attorney Todd Garvey. It’s only four pages long, we’ll link it in the show notes, you can read it.
The reason I found it is because it is cited in the House Republican brief. It is cited with italics added for the sentence “the text of the constitution clearly envisions the House and Senate meeting and voting in person,” and then they italicize “clearly” and they’re like “see, look, Congressional Research Service says that.” That’s why I looked it up to track down the sources. [Laughs]
Will it shock you to learn that after the paragraphs that says “the text of the constitution clearly envisions the House and Senate meeting and voting in person,” that the very next paragraph says: “But while these provisions may support a conclusion that the Framers envisioned a physical meeting of Congress (as it was of course the only possible method of meeting at the time), none would appear to clearly bar remote voting.”
Andrew: That’s right. For example, historically Congress has passed special rules via a simple Resolution, the exact same principle that was used here, allowing the House of Representatives to convene outside of Washington D.C. In other words, you could have one of those days where it’s beautiful outside, can we have class outside?
Thomas: Let’s take a field trip!
Andrew: Yeah! Look, all of that is Congress has broad powers to set its own rules to what constitutes being present. It gets worse than that for the House Republicans. Already their case is gonna get bounced on standing, but their argument is bad in that we’ve already litigated the question of whether the House can define what constitutes a quorum. The reason for that was for the first 100 years, “quorum” counted everybody who was present in the room and voting on the matters before it. But if you voted present, if you didn’t vote at all, you were not counted as part of the quorum.
Andrew: In other words, you could show up and obstruct business – you could physically be there and be like yeah, we’re not gonna participate in this so therefore there’s not a quorum and Speaker Thomas Reed said that’s ridiculous. His stated reason was that encourages obstructionism, it encourages people to show up but then not vote as a way of not letting us get stuff done. He rammed through a Resolution in 1890 that reinterpreted the House Rules that said all members present in the chamber count towards a quorum whether they vote or not.
First he did it just by fiat and then later the House amended their Rules. As you might imagine, as soon as a law was passed that passed by a majority of members present but not a majority of them voting? In other words, assume a quorum is 100, 50-40 with 10 nonvoting. As soon as a law passed under those conditions, folks sued to say that law was not valid because there wasn’t actually a quorum present.
By the way as a side bar, that’s how we get a resolution on this question. This particular lawsuit, there’s not chance that Kevin McCarthy has standing, but it doesn’t mean the courts are powerless to address the question. The way in which you address the question is when a law passes that was voted out of the House with proxy voting you bring a lawsuit that says that law isn’t good law. That law was ultra-virus, it wasn’t passed in accordance with the authority of the Constitution.
The reason Kevin McCarthy wants this lawsuit to prevail is because it’s a tougher argument. Once the law is already the law and people are abiding to it, it’s tougher to un-ring the bell.
Andrew: It’s a tougher posture, but too bad! Those are the standing rules. Minority members of the House didn’t challenge the quorum rules back then, they waited until a bill got passed and then that went all the way up to the Supreme Court, that was called U.S. v. Ballin, and when the Supreme Court said, within the Constitutional restraints, that there is a reasonable relation between the motor method of proceeding established by the rule and the result which is sought to be obtained, all matters of method are open to the determination of the House and beyond the challenge of any other body or tribunal.
What that means is we’re not saying nonjusticiable, we’re not saying that the House of Representatives enacted a rule that said “Nancy Pelosi gets to vote on behalf of all of the Democrats whether they authorize that or not because you know, they’re all Democrats so they probably will allow it.” That would certainly not survive a Constitutional challenge. That would not be consistent.
But if the majority of the House of Representatives gets together and says, so as to not become disease-ridden vectors for a pandemic, we’re gonna send emails like the rest of this country is doing? That strikes me as precisely the kind of situation that U.S. v. Ballin was meant to protect. I think even on the merits that this argument is bad, but this lawsuit is not gonna get there, this lawsuit’s gonna get bounced on standing.
Thomas: I just – once again [Sighs] I know it’s hard to put your mind inside the mind of a raccoon trying to learn our government-
Thomas: But what is the point of this? I don’t even understand it from a Republican standpoint, what is the point of it?
Andrew: Yeah, the point are those three things. To make it more – Think about when we had Christy Clark on the show. I think this actually probably gets at what they are hoping. If the rules require you to be present in person, the Democratic majority, it’s not razor thin in the House, but it’s not huge. It’s 30-odd votes. You might have a day in which 50 Democrats are absent and all the Republicans are there in which they would then constitute a quorum, they would be authorized to do business, and who knows what kind of mischief and shenanigans they could get up to.
Now there are procedural limits in place and you still have a Democratic Speaker and it would prevent legislation, but I wouldn’t put it past them. Christy Clark told us about how House Republicans in North Carolina in the State legislature were waiting for the day in which any two Democrats were out in order to do exactly that. I think it is shenanigans and I think it is obstructionism.
Thomas: Pointless shenanigans.
Thomas: Okay. Glad to know Republicans are doing their part.
Andrew: Yup. Look, if you believe government’s the problem, maybe you like this, I dunno.
Thomas: Alright well that said I think it’s time to thank our Hall of Famers, what do you think?
Andrew: Oh! I can’t wait!
Thomas: It is time to thank our Hall of Famers, our all-time greats here on Top Patron Tuesday, patreon.com/law!
[Patron Shout Outs]
T3BE – Answer
Andrew: Alright Thomas, this was about a fire that started in a defendant’s warehouse, spread to the plaintiff’s adjacent warehouse. You did, maybe seeking a little caution on a modest two-question losing streak, you picked one no answer and one yes answer.
Thomas: Yeah, but highlight the fact that that was more about how boldly I was eliminating C as an answer.
Thomas: Because C comes in there strutting its stuff and it’s like “oh, the premises under the doctrine of Rylands v. Fletcher.” Yes, I could have eliminated both no’s but I feel like it was more bold to be like “well that’s BS.”
Andrew: I love that. I will tell you, Rylands v. Flether is a strict liability doctrine leftover from 13th Century Saxony.
Andrew: The modern interpretation is that it is restricted to what we consider abnormally dangerous activities. If you have a volcano emporium and lava factory then yes, you’re responsible for any release of the lava whether you’re negligent or not.
Andrew: But since we don’t have that here. The old rule, again 13th Century Saxony the old rule was fire was an abnormally dangerous activity. In 1274 fire was an abnormally dangerous activity! Who knew what it caused and how it spread.
Thomas: Yeah, or how it even works.
Andrew: Now fires happen. You were 100% correct to eliminate C.
Thomas: It was a bold elimination.
Andrew: It was a bold and correct elimination. You also eliminated A. This is the question can the plaintiff recover when the fire spreads? You also eliminated A, no, because the statute provides only for criminal penalties. Again, good elimination. Then you were left choosing between B, there is no evidence that the defendant negligently caused the fire to start, or D, yes because the plaintiff was harmed as a result of the defendant’s violation of a statute that was meant to protect against this type of occurrence. You went with D and I’m pleased to tell ya, you’re back in the saddle again my friend!
Andrew: Yeah, this is a question about the doctrine of negligence per se. It means the following: When you break a law of which that statute was meant to protect against the kind of harm that happens, and the harm happens, you are negligent per se. You do not need to introduce any other evidence. The principle way in which negligence per se comes into effect is when you’re speeding and you run into somebody. The speed limit’s 25 in the neighborhood, you’re going 40, you run somebody over, there’s no discussion about what other evidence is there that you were failing to abide by the standard of care of a reasonable driver in the area?
Andrew: The evidence is you were breaking the law.
Andrew: So here the fact that the law says you have to have a sprinkler means that if you don’t have a sprinkler you are negligent per se when a fire starts and spreads to your neighbors’ warehouse. Plaintiff doesn’t have to do any work, doesn’t have to prove that you were negligent, you are negligent per se because you broke the law.
Again, there’s that restriction that the harm that you cause has to be the kind of harm that the violation was meant to protect to stop against corner cases, where there’s literally no connection, you are incidentally violating another law while something happens. I don’t know that I could even come up with that kind of hypothetical on the spot, but it’s not hard to imagine. You don’t just point at somebody and go “lawbreaker, therefore I win.” You point at them and go “they were breaking the law therefore they were negligent; they caused this harm and therefore I win.”
You got it exactly right, you were not thrown by crazy doctrines and you got it right for the right reasons, so congratulations!
Thomas: Alright, nailed it! I’m the winner this week, but who is our audience winner?
Andrew: Yeah, the second winner.
Andrew: Alright Thomas, this week’s winner is Colbin Erdahl on Twitter who writes:
“Answer is D. If it was C, you’d never get all those defendants holding a boom box up to the judge blaring Billy Joel” (presumably innocent man) “Thomas’ bar question analyses are getting better and better!!!” That’s 100% true and by the way? Complimenting Thomas, always a good way to make it on to the winner’s circle. “#NoLosingStreak.”
Congratulations Colbin, everyone give them a follow over @ColbinErdahl on Twitter, and congratulations for being this week’s winner!
Thomas: Alright, thanks so much for listening! We love you folks, stay safe out there and we will see you on Friday!