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tv   Lawmakers Examine Elections Clause Congressional Authority  CSPAN  July 12, 2021 8:09pm-9:38pm EDT

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arrangements for president obama to visit columbia. >> carol leonnig on this episode. listen wherever you get your podcasts. >> next, legal experts testify before the house committee on the elections clause and the role congress plays in regulating federal elections. witnesses answer questions on the founders views of elections, the history of elections law, and the history of federal and state jurisdiction of constructing laws around voting. this is about an hour and a half. >> our hearing today will examine the broad authority for congress to regulate elections under the clause of the united states constitution, known as
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the elections clause. it reads as follows. "the time, manner of elections, shall be prescribed in each state by the legislature thereof; but, congress may alter such regulations except as to the places of choosing senators. the state making regulations for the time and manner of congressional elections, but to provide congress power to alter such regulations at any time. the framers called for the inclusion of the elections clause and the broad power that it confers to congress. supporters called it necessary for self preservation of the federal government in face of potential state obstructions of congressional elections. in defense of the elections clause, alexander hamilton wrote
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in federalist 59 that "its propriety rests upon the evidence of this plain proposition, that every government ought to contain in itself the means of its own preservation." the framers had other concerns as well, defending the inclusion of the elections clause in the constitution and oversight over congressional elections that would authorize. they were worried about the potential for state lawmakers to abuse their powers and pass election regulations that would lead to unequal representation such as partisan gerrymandering. they warned of other forms of voter suppression in federal elections that would go unchecked unless congress was empowered with the remedy of the elections clause to act. the framers' warnings ring true today. since the supreme court 2013 shelby county versus older -- versus holder decision, state legislatures around the country
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have passed away for voter suppression efforts including voter id laws and increasingly limited opportunities to access the ballot. this pattern has further escalated since the 2020 general election. partisan gerrymandering by incumbent political parties, both parties, remains an ongoing obstacle to equal voting rights across various states. in our hearing today, we will hear more about what the framers intended when they drafted and included the elections clause in our constitution. likewise, the supreme court has been consistent in construing the elections clause as providing "paramount" powers to congress to enact federal election regulation that preempts state regulations and has interpreted these laws as expensive. in 1932, the supreme court said these comprehensive laws embrace authority to provide a complete code of congressional elections which is not limited to just times and places but to the numerous requirements as to the
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procedure and safeguard which experience shows are necessary in order to enforce the fundamental right involved. in another case, arizona versus intertribal council of arizona, 2013, justice scalia, a renowned conservative justice, wrote to the court that the national voter registration act requirement that voters prove their citizenship preempted the arizona citizenship requirement, relying on the understanding that the elective -- the elections clause the power of , congress can preempt state regulations governing the time, places and manner for the congressional election and that time, places, and manner are comprehensive words. the ndra is only one example. congress has long exercised its election clause powers to enact legislation covering various parts of federal election regulation. in the apportionment act of
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1842, which eliminated the general ticket system in favor of the congressional districts, the federal election campaign act of 1971, and the uniform and overseas citizens absentee voting act of 1986, as well as the help america vote act in reliance on the election clause 2002. is a source of congressional authority has been supported on a bipartisan basis. since the house began acquiring identifying constitutional authority to proposed legislation in recent years, members have cited the election clause for their legislation more than 230 times, which includes scores of measures introduced by republican members , many of which would have required them to take certain steps -- states to take certain steps how they conduct their election and limit certain activities. in the last congress, ranking member davis introduced legislation to deny federal election grants to states that
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permit third-party individuals or groups to return voters completed ballots to election officials. he cited the elections clause of the constitution. this authority can be used to empower states and citizens to make voting easier, safer, and more secure while ensuring that suppressive tactics and plans may not be used to limit or deny access to the ballot box. congress has endeavored to enact new democracy reforms, including hr-1, the for the people act. hr-1 will help remedy ongoing voter suppression efforts across states as the framers intended. hr-1 typifies an appropriate exercise of congressional authority.
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this hearing provides a rare opportunity to explore the contours of the elections clause. it provides congress to confer -- to enact transformational democracy legislation. i understand mr. davis is on assignment today and may be joining us later but i think mr. style will be offering his opening statement. mr. style, you are now recognized. >> thank you, madame chairwoman. today's hearing is titled "the election clause, constitutional interpretation and congressional exercise." this is a hearing that our committee should have had before we had hearings on the elections administration, before the drafting and introduction and passage of hr one, and before the drafting and introduction of hr-4 last congress. article one, section four of the
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constitution clearly states the primary role in establishing the "times, places and manners of holding elections for senators and representatives." under the constitution, congress has a purely secondary role in this space. this is evident from the way it is written. the states are listed first and congress is listed second. congress is clearly outside these constitutional bounds. these bills prevent any states establishing the time, place and manner in which elections are held by establishing a national election system by bureaucrats in washington, d.c. the supreme court ruled this month that states have the power to protect the integrity of their elections through thoughtful, considered legislation, making it easy to vote and hard to cheat. in the case against arizona, the court upheld the state power to ban the use of third-party ballot harvesting. justice alito's opinion stated "an entirely legitimate state
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interest is a prevention of fraud. fraud can affect the owl -- the outcome of a close election. the rights of citizens that carry appropriate weight. fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of announced outcomes." public confidence in our elections is something i, as ranking member on the subcommittee on elections, m focused on. ranking member of the committee is leading the way we have seen this as an issue in north carolina. the results of that congressional race was tossed because of fraud resulting from ballot harvesting. california has had issues as well. despite the well-documented fraud cases, the fraud issues of ballot harvesting, hr-1 legalizes this practice nationwide and according to democrats, prohibition of ballot
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harvesting is a state of discrimination. fortunately, the supreme court ruled this is not the case. the court ruled the intent and totality of the state voting situation matters. justice alito noted that merely implementing voting structures intended to bolster voter confidence such as rules to increase ballot integrity does not equal discrimination, which is what my democratic colleagues continue to claim. not only does the recent supreme court ruling invalidate my democratic colleagues claim but the record has demonstrated this as well. my democratic colleagues have claimed that voter id is used to suppress votes. however, the data clearly disputes this. contrary to democratic claim, voter id requirements of lowering voter turnout, states with voter id laws saw a record turnout in the 2020 election. i thought i would take this opportunity during a remote hearing to take everyone on the committee to rural america. while i have not found a
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kinko's, the vice president may be interested to learn that i can confirm folks in rural wisconsin and rural communities across the united states have running water, have electricity , and i found this new invention that i don't think was there when vice president biden first ran for senate, but it's available now in rural america and it's called a camera phone. it's amazing, it has a camera and a phone and it can actually take a photo of an id and can be submitted electronically. shocking, i know. it may not have come to san francisco. vice president kamala harris may not the as familiar. but i encourage everyone to check out the new camera phones that can be used to provide enhanced integrity in our elections for people voting by mail remotely in rural america. additionally, the data used by democratic witnesses is flawed. during a hearing earlier this year, democratic witness stated that minority participation in the 2016 election was less than
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the 2012 election, and claimed this was due to voter suppression. however, she admitted her analysis relied on self-reporting voter information from online surveys to reach her conclusion, not a scientific one. it essentially reverse engineered her desired results and during the committee hearing, i pointed out that her study did not control for the difference in candidacy between barack obama and the historically terrible candidacy of hillary clinton. my democratic colleagues invited many college professors to participate in these hearings on hr-1 or voter suppression, they invited no election officials who actually have administered elections. republicans have invited multiple election administrators including our witness today, the kentucky secretary of state, i am appreciate of you joining us. together, these individuals have decades of experience in election administration and each one of them have or will testify
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on how bad hr-1 is for states. he repeatedly stressed that mandates for hr-1 will not work in their jurisdiction. they would be incredibly costly and could even make elections less secure. in contrast, the only two election officials the majority invited had never actually administered elections prior to testifying. after a thorough review of the committee's record in the recent supreme court decision, i hope democrats will abandon their efforts to circumvent the constitution and nationalize our elections. it is clear our election system works best when those closest to the people are setting the rules for administering the election, not unelected bureaucrats in washington, just as our founding fathers wrote in article four, article one, section four of the constitution. madame chairwoman, i yelled back. >> the gentleman yields back and all other members are invited to submit opening statements for the record. we have a very distinguished panel to hear from today. i would like to welcome each of them and thank them for
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participating. first we have professor jack rakoff, who is the co-professor of history and american studies and professor of political science and law emeritus at stanford university. he is a constitutional historian and principal areas of research including the origins of the american revolution and the constitution, the political practice and theory of james madison and the historical knowledge of constitutional litigation. he is the author of six books including "original meaning," which won the pulitzer prize in history. he is a member of the american academy of arts and sciences and the american philosophical society, and a past president of the society for the history of the early american republic. he obtained his phd in history
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from harvard university and his bachelors in history from harvard college. we also have the vice dean tolson at the usc gould school of law and is a nationally recognized expert election law. her scholarship and teaching focused on the areas of election law, constitutional law, legal history, political parties, the election clause, the voting rights act of 1965 and the 14th and 15th amendments. she received her jd from the university of chicago law school. she clerked for the united states court of appeals for the seventh circuit and for ruben castillo for the united states district court in illinois. in 2019, her article, "the elections clause and under enforcement of federal law"
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appeared in the yale law form where she examined the broad powers conferred on the of the elections clause in the underutilization of such powers by congress and the constitutionality of hr-1. her forthcoming book, "in congress we trust, voting rights from founding to the jim crow area," will be published by cambridge university press. daniel is the dean of the university of wisconsin law school. he is a leading authority and his scholarship addresses issues of voting rights, free speech and democratic conclusion. he has published over 50 law review articles on a broad scope of topics. he is the author of election law and a nutshell, the second edition and co-author of election law. previously, the dean served as a professor of constitutional law
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at ohio state college of law and the dean received his jd from yale law school. he clerk for the honorable stephen reinhardt. he is a former civil rights attorney and has worked on various free-speech, racial justice, and voting rights cases. and last but certainly not least, the secretary of state, michael adams. secretary adams is kentucky's 86 th secretary of state, sworn into his term on january 6, 2020. he established a private practice election law in 2007. he served as general counsel to the republican government -- republican governors association and later expanded his practice representing national political committees, national political figures in statewide campaign efforts. in 2016, he was appointed to the kentucky board of elections. previously, he worked on senator mitch mcconnell's 2002
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reelection, was deputy general counsel for governor bernie fletcher, and was appointed counsel to the u.s. deputy attorney general in the bush administration. hickory adams received his jd -- secretary adams received his jd from harvard law school and work for the chief u.s. district judge. welcome to all of you. we will hear your verbal testimony for about five minutes. there is a clock on the screen that will help you keep track of time. when your time is up, we please ask that you summarize. your entire statements will be made as part of the record. let me turn first to professor rakove. mr. rakove: thank you very much. i want to thank chairwoman lofgren, ranking member davis. other members of the committee.
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my special pleasure for me to appear before they former student, representative scanlon. the original intentions of the framers of the constitution drafting the times, places manner clause. , and there are four main conclusions i wish to present. the reconstruction of the drafting clause shows we should read it expansively. not only does it give congress broad authority to do test to detect imperfections in the states but it also empowers congress to use its legislative powers creatively. to draw upon experience to design an operable manner of elections. a response to the problem of asking what should happen should one or more states default on their obligation to provide for the election of members of congress? two houses of the state legislature failed to agree on an election law.
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a state willfully tried to sabotage the national government. the history of the articles of confederation, where states had often fallen short of fulfilling their federal duties, the framers of the constitution had legitimate reasons to worry about allowing federal elections to become over dependent on voluntary compliance of the state legislations. second, this additional authority which james madison gave on august 9, 1787, one part -- the one day the clause was actively debated. two south carolina delegates argued that there was no need to have congressional review or alteration of state regulation of federal elections. madison gave the reputation of this motion. madison argued they would be subject to all the abuses of this discretionary power. state legislatures, which had their own favored measures,
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could shape regulations to favor the candidates they wished to succeed. if there were inequalities in the state legislatures, these or at least potential sources, therefore, justifying congressional oversight and revision. the south carolina motion was rejected without a roll call. in the third place, the identified new problems. they were designing a system of national political representation. here are madison's list of problems. whether they vote by ballot should assemble in this place or that place should be divided by districts or be in one place. should be for all representatives daca these and many other facts would take down the legislature. this is important for members of this committee to know there is no precedent in american history
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for the kind of representative system the framers designed. representative seats were divided by county when they were legally organized. this would've never worked in the extensive and expanded american republic. the state legislature would have to create and would likely have to with every census. it makes clear that it bases everything on the method of voting to this congress 11 if they are working or not working and clauses on language at any time. when americans argued about representation, there was one
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thought that gutted their thinking. -- guided. legislative assemblies should be a miniature portrait to be larger society. it should be equal representation so that people will have interest and it. there consensus was highly identifiable with ours. their times, this was a remarkably them a credit vision of what a legislature should look like. their idea is not different from the one vote one person principal. it implies that the true goal of democratic politics is equitable solutions not distortion or solution. it should make congress think boldly which is part of the process of forming a more perfect union. thank you so much. >> thank you very much,
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professor paired i would like to call on the dean for her testimony. >> thank you very much. i appreciate the opportunity to appear and speak on the scope of congressional power of section four which is a vast source of power that has been underutilized. under the clause, they can set regulations for elections but congress can regulate federal elections. they can displace the state regulatory regime. that jeopardized health and vitality of elections in some way. congress can make or alter state law. they can commandeer state law, and state officials to influence a lot. in certain circumstances, they can regulate standards. this might empower congress
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about the time and place of elections. they all stand on from constitutional footing. bills on hr one have already been validated by the supreme court in prior congressional practices. what a rights legislation is substantially broader as well as the 14th and 15th amendment. despite the elections clause untapped potential, as not been the source of much federal legislation contributes to the perception that hr one is unprecedented and unconstitutional. it is not. a court reaffirm this in 2013. whether the constitution changes are not problematic. congress can commandeer them as
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the statutes of registration acts. court found these provisions to be constitutional finding that parts of hr one was respectable and constitutionally sound. the supreme court in a 2013 decision, validating hr once use of these four federal actions. --for. there will be objections to provisions of hr one that talk to voters regular -- registration. it read franchises those with risk convictions for the purpose of elections. these are unfounded. there are limited circumstances in which congress can breach
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voter qualifications. for example, the absentee voters act enacted the elections because, causing -- crating federal about for military personnel and credit standards for which personnel were allowed to vote. the disenfranchisement of a category of military voters in -- overlooked and insufficiently protected by the law. the authority creates complications that are indisputable. hr one would prohibit states from exercising their fundamental rights to vote in federal elections.
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as it stands, millions of people, a category that is disproportionately minority given the race and's guidance of these laws, are disenfranchised for hundreds of million -- hundreds of thousands of misdemeanors and for -- felonies. it will protect the elections in which this defense and to protect the exercise of rights conferred or the constitution of the u.s. hr one distant -- distant fries -- distant -- disenfranchises. most these provisions do not approach the outer limit of congress's power. this empowers that body to make or alter state law, commandeer state law and state offices and especially when coupled with congress's power under the 14th and 15th amendment. thank you so much for the
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opportunity to discuss my research. >> we will turn to the other dean. i am probably mispronouncing your name. correct me for your five minutes. >> thank you, madam chairwoman. thank you right -- ranking member davis. i am from the great state of wisconsin and the other honorable members of the community. i am the dean at the university of wisconsin law school. i have written on congress's power under the elections clause before. in a word, one that the u.s. stream court has used repeatedly for allowing 142 years, congress's power over congressional elections under this law -- clause is paramount. under the unambiguous text of the election clause in a long line of supreme court precedent,
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congress has plenty of authority over the time, lace, and manner of conducting congressional elections. most recent use of this principle was justice scalia's opinion for seven justices in arizona versus intertribal council of arizona in 2013. he referred to the broad and comprehensive scope of congress is election clause power. and the remainder of my testimony i will provide background on what this means and in particular, how it has been construed to the supreme court. the elections clause, the text of which met him chairwoman read earlier allows states to describe rules the conduct of congressional elections. only in so far that congress declines to preempt state legislative choices. i was justice scalia explain in arizona versus i cta, this grant
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of congressional power to congress was insurance against the possibility that states the try to undermine the union by either failing to have procedures for congressional elections or having some are inadequate. the state legislatures otherwise could at any moment annihilated, the federal government by neglecting to provide for a choice of a person to it minister affairs. congress has exercised its broad powers to regulate elections repeatedly through the 1842 portion. post-civil war enforcement acts. and more recently the help america act. going with all the preston that supports these and other laws which they describe their power,
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i will hit a few highlights. the first big case was in 1879. a case involving the reconstruction enforcement act in that case, they said that congress may exercise this power as it sees fit. in that one exercise, the action of congress as it extends and conflicts with the regulation of the state, necessarily supersedes them. in smiley versus home in 1932, the court said that congress could provide a complete code for congressional elections if it wishes. and include supervision of voters, prevention of fraud carcasses, counting of votes and canvassers and making and publishing of an election with terms. there was a time when the court said that the elections laws did not reach primary election. that was reversed in the u.s.
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case in 1941 or the court clarified that the elections clause allows congress to hit general election. any -- like any power, it is not unlimited. this does not include the power to dictate election outcomes to favor or disfavor class of candidates or evade important competition. thank you. but, congress does as the court clarified arizona has very broad power and as justice scalia explained, the power is broader than other parts of the constitution. congress in the elections clause area is not in a place where
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they had pre-existing authority before the constitution. there is a question of if their power ends and the qualifications clause power begins which i will address my response. the bottom line is that supreme court precedent confirms that the elections clause means what it says. congress has the broad power to make rules governing the time, lace, and manner of conducting congressional elections. >> at last, we have the secretary of state michael adams. thank you for joining me. >> good afternoon. it is an honor to be with you today. i understand the topic of discussion is the elections clause of our constitution. congress spends time considering the text and outcome -- constitution is a good day.
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my purpose is to address policy concerns with congress increasing their role in elections for congress. first, some background. i took office last year and elections i have supervised all took place amidst the pandemic. i asked legislature for and received emergency powers. the government us to implement temporary changes to our election system to ensure public safety, but her access and election security. we expanded absentee voting. we established early voting for the first time in kentucky history and before our primary collection -- election, kentucky was singled out for a campaign of harassment and hate. our phones were clogged with and we cars from d.c., california and new york, cursing at us and threatening violence.
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this was brought to us by celebrity's on twitter and certain members of congress. the dust settled, we conducted the most successful election in america at that point. safe, orderly, and with high turnout. the extended voting reforms and security measures wait implement proved so successful and popular. our legislator ate most of them permanent. kentucky is a national leader this year in national reform but we are not alone. bipartisan legislation, standing voter opportunities has extended to other states. wire will be able to pass a bipartisan reform measure and most of met -- successful renovation of our system since
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1981 echo it had wide port -- widespread support. why did louisiana and vermont follow suit? you did not stop us. you allowed marcy to work. there are two lessons here. one is that kentucky knows what is best for kentucky. i would urge you to let kentucky be kentucky. in respect for the laboratories of democracy to lead to innovations vermont past male in votes that reflects their political culture. in kentucky, even with expanded absentee voting in a pandemic, most voters including most democrats voted in person. that reflects our political culture. the second lesson is that election policies should be made not by a caucus or tank but by election administrators who work in a bipartisan fashion.
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it also shows voters on both sides that the rules are not being read to favor one party over another. i understand the concerns you have with state legislators acting in a partisan fashion i would encourage you to do the same thing yourselves. do not be victims of a fall stared if. i don't agree with the election bill offered by some republican state legislatures. the reality is that it's far better than what we are hearing in this felt way echo chamber. the sire to choose red states, especially southern ones were voter suppression is so strong that media outlets covering kentucky's achievement of rewriting their own stories to change that narrative. cnn reported the government signing into law bipartisan election bills expanding your access on june 30th, cnn
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reported 17 states have enacted 28 laws making it harder to about. on april 8, the washington post reported democratic governor signs a bill to expand voting. on june 21, washington post wooded kentucky on the list of states that were undermine democracy. the cognitive dissonance is so strong that these outlets don't accept fats from her own will ordering and contradicts this narrative. our politics have grown increasingly harsh and dangerous eared the more our big decisions are federalized that results at the state and local levels. i urge you to respect the diversity of our country. thank you so much. >> we now come to the time went members of the committee may ask questions about five minutes and i will turn first to the
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congressman who is a constitutional law professor. you are recognized. >> thank you so much for having this important hearing and thank you also much for your testimony. we have been at the forefront of expanding and defending the franchise. i know new jersey gave him and the right to vote at the beginning of the republic. the states have often been at the forefront of this in phrasing people with like grandfather clauses in other ways to disenfranchise. what do you make of the claim we just heard from the secretary that we need to trump the states and let kentucky be kentucky and let new york new york? let every state be itself. is that consistent with how we have respected voting rights in our legal last century? >> thank you so much for that question.
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there are two important principles here. we have to recognize both of them. states are of course laboratories for democracy. states can experiment. that includes experimenting with election reforms. a number of states have proved quite successful in making it more convenient to the. on the other hand, there is a competing principle which is in the end, congress has to have the authority to regulate congressional elections. that includes regulating to protect the fundamental right to vote as it has sometimes has it to the first example of this is the enforcement acts which the
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deed has written about in her scholarship and has addressed in her testimony. in the reconstruction. -- in the reconstruction period to exercise its authority on the elections clause as well as a 14 and 15th amendments. in order to protect the voting rights of newly freed african-americans. after the appalling distant front -- disenfranchisement of african americans that took place after reconstruction and most of the 20th century, was it necessary for congress to act in art under its election clause authority to protect the right to vote. yes, we do what states to be laboratories of democracy but at the same time, congress has to have the ability to protect the right to vote, particularly in federal elections as the clause allows. >> i want to go to the other point raised by the secretary
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about election administrators. what do you make of the claim that we should really allocate this decision to election administrators they are better judges of what american needs for voting rather than the representatives of congress and the house and senate? i was struck by that, especially the good witness said kentucky beat kentucky. there is no one more powerful than his u.s. senator and all of congress eared i don't think he has to worry about it being represented in congress. other than that, i noticed an attack on election administrators going on. we saw that in 2020 when donald trump literally was calling at most -- election administrators to revise their vote totals. he called the secretary of state in georgia and said find me
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11,000 votes. after that appalling attempt at election fraud was exposed to the whole world, rather than everybody apologizing for, figuring out how to protect, there is an effort to displace him and run against him so they can have a subservient secretary of state in georgia. it is absolutely amazing to watch that. what about the idea of the increasingly partisan officials were targeted should be deferred to terms of the voting rights of the people. >> thank you so much for that question. i appreciate the point, because the states are not laboratories. they produce some of the most disenfranchised measures in our history.
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for look at the mississippi constitution of 1890, the state substantially disenfranchised all of the african-americans within the states eared a laboratories point -- point is well taken but i'm looking at hr one as a list of practices. it is a list of things that will further a national conception of democracy. i cannot be a state level conception. we have to have some sense of who we are we will pull ourselves out of a democracy. -- hold ourselves as a democracy. >> i don't have much to add to this discussion other than adding [indiscernible]
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i've been the best way to think about this is from a kind of was i original perspective. you gotta recognized the fundamental conflicts and tensions would've been seen at two levels of the legislature. >> the idea that you would anything like a secretary of state responsible for elections, it would've been an anomaly in that time. they were worried about the idea of motivations working more bureaucratically. >> we will now turn to the gentleman. >> thank you madame chair. i appreciate being a part of this hearing today. before i get into my question, we need to separate the argument
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or discuss the constitutionality of congresses ability to set the times, place and and or. there are multiple issues that are being included in this good the first is the qualification of electors. that is very specific within the constitution and our founders and courts have upheld that the constitution establishes clearly the qualification of electors. this is the argument i'm hearing a lot of court cases. the federal congress as the ability through the constitution to establish who electors can be in the states don't have the village to assert that. that was set in the constitution and upheld several times. the second aspect of the argument is at times, places, and manner. founders said it should be taken literally.
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british system was very broad. our founders through their debates on the constitution and were very specific of the time places and manner. as it was brought up earlier, hamilton laid down the argument that every government ought to contain in itself a means for its own preservation. the reason for this was during the ratification of the constitution, antifederalists and those opposed to this division believed that factions or parties could manipulate election while slick and stay in office indefinitely. hamilton however, a quote that comes out of the federalist papers clarified that. after he said every government ought to have and contained within itself the means of its own preservation. he argued that the provision was a reasonable compromise that dave congress the secondary
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powers that would be exercised. " whatever extraordinary serpent senses might render that necessary to safety." he is saying that the states have the primary power that congress only has a secondary or default power. his argument was in case of states setting times, places, and manners in which they will not fill the seats for congress. they could manipulate or hold congress hostage. that was the secondary argument they were making. that is what congress has a secondary power. yes, they have a primary on qualification of electors. this is getting convoluted in the argument. i think we need to separate that. republicans argument here is not worth the qualification of electors.
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the states provide the primary responsibility of times, places, and manners as you know, according to article one, through all this, the time laces and manners i have left out, states have partner spots possibility for setting that. even still, many of my colleagues are pushing this article one which is a national takeover of elections which would circumvent themy questione -- how would this one size fits all approach tax election officials across the country, especially kentucky? the provisions that would substantially change elections in kentucky. >> thank you, congressman. let me give you a riveting example. back in december as i was
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drafting my election report measure for kentucky, the biggest change of our system, the modernization of our system, we made absentee voting easier, we expanded early voting and so forth. i had a meeting with a high level official in our state and to my surprise, he told me don't expand mail-in voting. he said my community doesn't want that. that struck me. you think mail-in voting, which by the way, i am not here to support or oppose. if utah once it, -- if utah wants it, that is great. we are just different, that's our tradition and that's how people feel they have a voice. we have to let each state do it their own way.
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>> i see my time has expired. i have other questions for the record. in response to your answer, we know in person voting is the most secure and that's why many people prefer to do that, much more secure than mail-in voting and traditionally, that's where we've seen the largest amount of fraud. >> the gentleman from north carolina, mr. butterfield is recognized. >> thank you very much, madam chair for convening this important hearing today and thank you to the witnesses for your testimony. it's good to see all of my colleagues. i look forward to our return to washington. as a law student many years ago , as a lawyer as a trial judge , and supreme court justice over the years, i have had many occasions to read and reread and study court opinions and law review articles all about the elections clause.
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i come to the same conclusion every time i read it and read about it. the elections clause seems to me to be unambiguous. i want to begin today by asking each one of our witnesses the very same question. should congress choose to pass a regulation affecting federal elections? do you agree or disagree that such regulation will preempt those passed by a state? let me go to each one of the witnesses. i can go in the same order you testified. >> i'm just a working historian. the basic answer is yes. i see no harm in it.
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>> is it unambiguous in your world? >> yes. >> all right, next witness. >> it will preempt state laws and create new laws in some places. for those states who already have independent commissions, it would preempt those laws because it requires federal elections. in some cases, if there are state laws that conflict, than -- then absolutely. >> representative butterfield, i agree it is unambiguous that under the elections clause, congress has broad plenary power over the time, place and manner of conducting congressional elections and you don't have to take my word for it. that's what joseph scalia wrote in the arizona case.
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>> secretary adams, before you respond, you noted in your testimony that you were testifying today primarily about politics. in other words, whether congress should pass election legislation. for the sake of clarity, when it comes to the narrow legal of whether congress can pass legislation and that's what my first question is about, would you agree the elections clause -- clause gives us broad and expansive authority to regulate congressional elections, putting aside policy concerns? >> it's kind of a subjective question with a subjective answer. there were certain things congress can do. there are guardrails in our constitutional system. we are a system of dual sovereignty, the states and congress. we see in supreme court decisions congress cannot
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require states to do medicaid. >> what about mail-in voting? do we have that authority? >> if i could finish my answer, their limited in how much they can tell states to do. they could require them to do certain things in exchange for certain funds. if you're asking whether i think you have significant of already, i think you can do. >> does it include mail-in voting? >> i cannot tell you i have researched this issue. >> you mentioned a moment ago african in kentucky want to vote in purpose -- in person. how did you arrive at that conclusion? >> a couple things. i was told that by a high-ranking official of the state assembly. >> poll after poll across the country, it is contrary to that position.
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in already groups and all groups want the ability -- minority groups and all groups want the ability to vote absentee as well as early voting. my time is running out. 20 seconds. don't have enough time for my final question so i will yield back. >> mr. stiles is recognized for five minutes. >> my tour through rural wisconsin continues. i have found more people who have access to camera phones. it is great to see the dean from the university of wisconsin law school. i would like to direct my first question to the secretary of state michael adams. methods of voting have been subject that have been subjects of -- have been subjects of our hearings.
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with voting by mail guarantee a increase of voter turnout by your analysis? >> in kentucky, i don't think it would. in kentucky, our culture is people want to vote in person. i certainly worked hard to make voting as easy as possible, but i don't think it would make much of a difference. i think people want to vote in person. i just quadruple the number of days people get to vote in person. >> it seems like political cultures are different in different states. help people prefer to vote. in kentucky, you may want to cast your ballot and a one manner, which may be different from utah or wisconsin. can you expand on your understanding in how different political cultures exist in the united states? >> if i could make one overall
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point today, i am not here to criticize the components of hr one. my argument is i don't want to see a democratic or republican national bill change the election rules. california and colorado would be upset that -- would be upset if the republicans did that when they held power. i don't question that at all. that is super for them. i don't think in kentucky we can take to that as equally. i think the best way to expand the franchise in kentucky is what we saw last year even though we made absentee voting to all people, they did not want to vote absentee. they still came to vote in person. the easiest way and most cost efficient way was to expand the number of days people could vote in person. >> knowing our states have different political cultures and
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significant diversity, our geographic footprint, -- to encourage everyone to vote, make it easy to vote? is the best level of government to deal with that the state or national government? >> i think you look at the record. look at what we accomplished in kentucky with what the national government has. i am proud of what our state has achieved. we can only do that because you will allowed us to have breathing space for democrats and republicans to come together around the table and pass almost unanimous votes. something that was idolized by republicans. >> you are the secretary of state and you are also an elections attorney. can you walk through your interpretation of the elections clause? >> i will be first to admit i have never researched that issue in scholarly fashion. i have never had it pop up in
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case i have had so i don't have a lot to add in terms of the history or text of that. i think it speaks for itself. >> i appreciate your testimony here today. from rural america, i yield back. >> thank you so much. is this coming through ok? >> she is in rural pennsylvania, so yes. you are coming through. >> thank you. i have been anxious to have this discussion about article one section four. i am pleased to see my former professor who as he said, we knew each other way back in the day. longer than i care to admit. it is great to have him on this hearing because he is the preeminent national authority on
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the original meaning of the constitution. the original meaning. i would like to direct first question to him about the clause we are talking about here. article one, section four. the second half of that clause is what gives congress the power to do something different. can you talk about the lasting clause and what the second part of it giving congress the power means with respect to the authority given to states in the first part? >> the clause did not originate in the larger body of the convention. it came out of the work of committee detail. admit between july 26 and august 1787. the committee took the general resolution.
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it turned them into the working text of the constitution. the yield -- the idea of stating more specifically about the conduct of elections, it was only discussed on the single day of august 9. it was discussed primarily because two south carolina delegates fed the clause was superfluous, we should trust the states to do what they did. it is worth noting south carolina was a contributor because it had a long tradition of the colonial state legislature dominating the politics of the state. once they made this proposal, four or five other delegates spoke. they spoke robustly in opposition to it. the important point i want to stress and i think it does involve thinking historically about change over time as much as legally about decisions and
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enactments. to realize that this was a deeply experimental process. there was no example of designing the time -- the kind of national political system the framers were creating. i talk a little bit about the british practice. there is no idea of having expanding record americans were found to have. there was a lot of uncertainty in the begetting about, were we going to represent the states as aggregate constituencies? pennsylvania voted for the entire state delegation. would you do it by district? would voters any individual districts vote for a representative in each district in the state? these are all the possibilities.
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the important thing to stress is there is -- there was a strong perspective dimension. experimental dimension to the clause. the idea you would learn more about how the national political system would work on the basis of experience. that experience would also include the question of whether or not issues of discrimination as we think about them now but for which there was an 18th-century way to think about this. in some ways, that is a very modern notion. thinking about the second half, the latter part of the clause in these terms would be helpful. it is not just about protecting the state. are there but all models -- are there better models? >> coming from pennsylvania where over the past decade we have had a number of different
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voter id laws, gerrymandering, etc., with a republican legislature where the house majority leader was recorded saying many of these provisions were implemented in order for his party to retain power, that seems to me the very type of conduct these framers were rightly skeptical of. as we are hearing of states having certain cultures of voting, we also know certain communities have cultures of voting. say for example the black community that has a tradition of voting on monday -- on sunday after church. we have seen state legislators try to undermine that tradition of voting. i was interested in what you wrote about madison and the skepticism of the types of activities they were undertaking including closing polling places and restricting certain voters.
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i don't know we can get an answer to that. i can see my time has expired. >> i recognize the gentlelady from new mexico. you need to unmute. >> thank you to our witnesses for the important discussion on the constitutionality of federal voting laws. you discussed how the founders so eloquently described the need to protect the ability of voters to elect a representative assembly that in john adams words was a miniature, an exact portrait of the people at large of the country. you discuss how that representation might not be what it is today but today, it is supposed to be every citizen
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with maybe native american, black, latino, whatever. that they need to be able to elect representatives that reflect them and our concern is that is not happening. at the restrictions -- that the restrictions in terms that are being enacted are targeted so that certain communities cannot succeed in getting that beautiful portrait of themselves in contrast -- in congress. can you explain how the elections clause applies to these present-day concerns? aren't they -- the concern is similar, correct? >> in some ways, i would assume -- my two colleagues who have written so much. but you can say equally well the states have served as laboratories of discrimination.
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that is the history of the jim crow era of restrictions. the black electorate once it was created in the time of reconstruction, the question all of us are considering today the question we are -- sitting today is whether we are seeing not on the full-scale of the bible but what happened in the 1890's or 1800 but whether the clause being elected at the state level will have that kind of discriminatory effect. congress went to great lengths in its enactment of the voting rights act to deduce the data the court seems anxious to deny. it was something both the federalist and anti-federalist debate appeared if you want to see the other side of the question, the federal farmer trying to imagine what an ideal
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congress should look like. his idea was it would be luck -- it would be good if we had the middle class quality. it is easy for people of wealth to get together and decide what they are going to do. if they are going to intimidate these candidates, it is important it 18th-century -- any member of congress should know this. it was not the dominant motive in 18th-century politics. the main term of service down to about 1890 was three years, meaning the vast majority of members served one term or two. the whole gerrymandering process , that the united states, voters don't choose represent his peer representatives choose their voters. that idea would be hard to grasp in the late 18th century. it was thought most representatives would be amateurs.
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they would come and go. they would rotate office. the matter how much of what we are debating today was actively in search of a by madison. including the distrust of state legislators. the whole animus behind the federalist movement was to believe state legislators could not be relied upon to do their federal duty. the exception of partisan concerns. the idea -- [indiscernible] >> thank you, professor. i wanted to get to one question. it strikes me that unlike role wisconsin where we have heard earlier today that everyone has good access to basic infrastructure, i represent a real district. many of the rural areas i represent do not have such infrastructure.
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in high poverty of my district especially in tribal areas, access to fancy phones is hard. in response to state laws hindering native american access , important provisions for native american voting. it also includes provisions to ensure states receive help so we have -- [indiscernible] what is your response to those who suggest these and other provisions in hr one are unconstitutional? >> part of it is a text to meaning what it says. this has come out in the course of this hearing. the text is all the states are mentioned first, it is not because states are the primary focus of the elections clause. if you look at the history as recounted by professor rycroft
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brilliantly, it considers the fact there was a consideration on the table of a general veto in all state law by the -- the fact that the general veto was rejected and be accepted the limited veto in the context of the elections clause illustrates the distrust the national government has with respect to state legislatures over this issue. elections clause provides broad authority for hr one. let me make one other point. there is talk about political culture. making voting harder is not a political culture. gerrymandering is not a political culture. what states -- when states are abusing that authority -- [indiscernible] >> thank you. my time has expired. i see mr. davis has joined us. you are recognized for five minutes. >> thank you, madam chair.
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it is great to see the witnesses. i've been keeping tabs on the testimony. we are keeping an eye on mr. stiles. a coup d'etat on the ranking side. it is great to see everyone again. i want to start my questions. i want to say thank you for coming here today. it was great to see you a few weeks ago in washington. as the chief elections official for the state of kentucky, do you believe the federal government should mandate how states and jurisdictions administer elections? >> i certainly don't have a problem with the voting rights act in basic provisions. -- voting rights act and basic provisions. but i don't want is a micromanagement of our election systems because things are simply different my second
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argument is with respect to congress, i think we do a better job at the state level of finding space across the aisle to work with each other and get things done. it is a less toxic atmosphere than what you have in washington. >> we look at the last two election cycles. [indiscernible] the democrats have not been able to produce a single voter whose votes was that she was vote was suppressed -- whose vote was suppressed. [indiscernible] >> what was the last part of your question? >> stacey abrams testified before this committee that it does not really matter. can you explain how that makes sense when we have had record
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turnout, have not been able -- the committee has not been able to put forward a single vote that was suppressed and they are leading the voice of voter suppression. ms. abrams says voter turnout does not matter. i think it does. do you? >> sure. i think it does it i'm proud in our election last year we had the highest turnout we have ever had. over 2 million voters voted. i took some hits from my side of the aisle to make voting easier. we made voting easier. we expanded early voting. we found seven out of 10 voters even in pandemic preferred to vote in person. i don't have a problem with absentee voting but we should permit the states to respect the wishes of their constituencies and come up with a model that
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works best for them. >> did any of these changes you made like voter id impact odor turnout? >> interestingly, the first law i got past was a voter id to vote law. there were concerns of the sky falling. we did not find that disenfranchised anybody. we had record turnout. our voter id law was humanely drafted. we bent over backwards to sit down with interest groups on both sides to make sure we did not have anything in there that would prevent people from voting. we still managed to ensure people got to vote. >> you offered vote by mail in
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2020. can you tell us briefly how did you work with election officials to get these reforms and many of my colleagues on this committee made them impossible to implement. how did your vote by mail process impact vote by mail? >> it is important election administrators be at the table come at the center of the table in devising election rules. things should not be written by a caucus or a think tank. they should be done with election administrators at the table. we have to engage in customer service business and that is helping people vote. in our state, we found democratic clerks relying on male based voting is the primary method. they found their constituents preferred voting in person. we allow for that. it is in our state constitution. that said, we found the way most
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democrats wanted to vote, most republicans wanted to vote was in person. the question was how do we achieve that? we expanded early voting for the first time in our history. >> thank you to all the witnesses. i ran out of time talking to you so i did not have a chance to ask questions of the others. i appreciate the opportunity. >> i now recognize myself for a few questions. it has been alleged that congress exercises its jurisdiction in the elections clause, it would constitute constitutional problems of anti-commandeering, specifically i am interested in the redistricting provisions. and whether the court has addressed this issue per se.
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for example, -- can you address that? >> thank you for that question. in that decision, which committee members will recall rejected a constitutional challenge to partisan gerrymandering, the courts reaffirmed congress' broad power to regulate congressional elections specifically including redistricting. the court reference favorably the apportionment active 1842, which was the first exercise of congress' power of drawing congressional districts. it went on to explain congress specifically does have the power to make laws regarding congressional districting. there was not much question about congress' power to
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regulate congressional reapportionment before the decision but if there ever was, it definitively resolves that. there is no doubt congress under the elections clause has the ultimate power over the rules regarding the congressional redistricting. >> let me ask you, what where the framers concerns about state lawmakers drawing district lines? >> i think the best answer about reconstructing the [indiscernible] it is a function of the fact -- american federalism under the confederation allowed congress to recommend to the states what needed to be done for national purposes. congress would pass resolutions,
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recommendations. based on the voluntary compliance of the states. decisions made by the continental congress. it was the criticism of vices that -- recurrent tendencies to break down. for the national government to work, it had to be competent to enact josh [indiscernible] you are trying -- [indiscernible]
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the time, place and manner clause and the ability of congress by law to override. in effect, section four in its own way, a version of medicine's -- of madison's loss. you may see distortions being committed at the state level. or you may come up with better ideas. which would happen in 1842. >> madison as you noted in your testimony warned at the constitutional convention that states might try to manipulate election laws for partisan gain. do you see any parallels between
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that worry at that time? >> just randomly? obviously i do. as you know, i do read the newspapers fairly regularly. there is a whole slew of a just legend out there whose consequences we are waiting to see. i spent almost every day thinking about it. if you ran this by madison, they would not be surprised. it was consistent with his analysis with what is wrong with state politics. it fits into the rubric very neatly. >> i thank you very much. my time has expired. the time of all members has expired. i would like to note as we close that i have very rarely had
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concerned about local election officials. our concern has been with partisan legislative bodies that are enacting legislation that governs those actions. before we conclude with unanimous consent, we will add the following items to the record. 59, 60 and 61. constitutional authority statement for hr 6682. the constitution authority statement for hr 7905. articles discussing the breadth and scope of the elections clause. hearing no rejection, those materials will be made part of the election. members may have additional questions for each of our witnesses.
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we will submit them to you in writing. the record will be open to receive the answers to those questions. i want to thank this panel for outstanding testimony today. very enlightening. very smart. a real contribution to our understanding of the constitution and we thank you and without objection, the committee on house administration will stand adjourned. >> sue spencer washington journal. every, we are taking your calls live on the air on the news of the day and discussing policy issues that impact you. coming up tuesday morning, the brookings institution analyzes the u.s. withdrawal from afghanistan i made a recent taliban against. then, bloomberg reporter steven dennis talks about planning on
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infrastructure and climate i just legend. also, a look at medicare and prescription drug pricing with the associate director of the shaker center at the university of southern california. be sure to join the discussion with your phone calls, facebook comments, text messages and tweets. >> the secret service was founded in the aftermath of the assassination of abraham lincoln but it was not until the death of john f. kennedy the presidential protection service began to get closer attention from the american people. carol lenny began reporting on the wash -- on the secret service and 2012. she writes she started her coverage on the scandal in which agents brought prostitutes to their hotel rooms while making arrangements for president obama
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to visit columbia. we talk about her in-depth look in her new book subtitled the rise and fall of the secret service. >> this episode of book notes plus. listen on or wherever you get your podcasts. ♪ >> earlier today, senate


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