30 Issues: Do We Need A Whole New Constitution?

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning everyone, and thanks again for all your donations during our membership drive, which ended yesterday. We are in our 30 Issues in 30 Days election series. Today's day 25 for issue 25, and today is also the last day of the democracy in peril portion of 30 issues. We've devoted the whole last two weeks or 10 of the 30 segments to democracy in peril since so many of you requested a deep dive on that when we took your calls on top issues for the midterms in the summer.

Next week, by the way, we will conclude 30 issues with your money week in the series. Issues 26 through 30 will be on issues of the economy; Is there a democratic and Republican way to fight inflation? How both parties claim to be the party of the working class, also housing as your money week issue and healthcare as your money week issue. That's how we'll finish up 30 issues next week. Back to the present. Today we conclude our 10-part democracy in peril series with a kind of ultimate question. Does the United States need a new constitution?

There's a right-wing movement led by Steve Bannon and others to force a constitutional convention, but there are also people on the left who think the one we have isn't up to these times. Let's start with an example of that. This is Elie Mystal, justice correspondent for The Nation Progressive publication on this program earlier this year for his book, Allow Me to Retort: A Black Guy’s Guide to the Constitution. After reminding us that the US Constitution was written originally to enshrine slavery and when only white males could vote, and with very unequal representation in Congress, which reminded him of another country and how it reformed its constitution.

Elie Mystal: Let's look at South Africa. When Nelson Mandela was freed and elected president and they tried to overcome their apartheid past, what did they do? Did they just stick some amendments on their Afrikaans apartheid constitution? They're like, okay, now we're good. Here's a new pay job where everything is-- no. South Africa took the racist constitution, burned it, threw in the trash, and started again. They had a whole new constitutional convention with citizens brought from all walks of South African life.

Brian Lehrer: There is Elie Mystal on the show in March, and last December, CUNY Law professor Julia Hernandez was here in conjunction with an exhibition at the Queens Museum called Proposal for a 28th Amendment? Is it Possible to Amend an Unequal System? Proposal for an amendment, the question, is it possible to amend an unequal system at all? It's posed as a question. She also cited the very tainted origins of our constitution, same ones as Mystal talked about, and also cited South Africa, but with even more specifics of what their new constitution includes.

Julia Hernandez: Many scholars and commentators look to South Africa's constitution. It was developed in the context of years of social political struggle. It guarantees specific socioeconomic rights that the United States Constitution does not guarantee, such as the right to housing, the right to healthcare, to reproductive decisions. It specifically bans torture, cruel and inhumane treatment, detention without trial. It specifies that the constitutional court has in comparison to the United States Supreme Court, an expanded number of justices, limited terms.

Brian Lehrer: There you go. CUNY Law Professor Julia Hernandez on this show last December on ways a new US constitution might learn from South Africa's new constitution to be more just. Remember that whole exhibit at the Queens Museum was posed as a question, is it possible to amend an unequal system? The implication, of course, is maybe not. Those are some voices on the left, publicly entertaining the idea of a new United States constitution.

The real action on this issue is on the political right. Steve Bannon and others are promoting the idea of what's called a convention of the states. The current constitution allows for this if enough states get on board, enough state legislatures and the structure would seem to favor right-wing amendments. Here is former Republican Senator Rick Santorum on Steve Bannon's show, War Room, just last month.

Rick Santorum: Now is a good time because the country is divided, but the state legislatures of this country are not really. 31 of the 50 states right now are controlled by Republicans. Remember, this is a process to propose amendments to the Constitution outside of Washington's control. Washington has nothing to do with it, this is the state legislatures. 31 are controlled by Republicans. Minnesota has one house, we're going to flip Minnesota this year, that'll be 32. We'll flip Virginia next year, that'll be 33.

If we can flip one more state this year, we'll have the 34 states necessary that if all Republicans vote for this convention of states resolution, we will actually have a convention of states in a very short period. This isn't a long R-off thing. This is something that can happen and happen very, very quickly.

Brian Lehrer: Former Republican senator from Pennsylvania, Rick Santorum on Steve Bannon's show last month. We're going to play a few more clips of that because proponents of this idea won a convention of the states to lock the federal government out of various areas of policy. That's a core tenant that they're aiming for. A leader of the movement, Mark Meckler, who is also a founder of the Tea Party movement, said on Bannon show that they would try to ban the federal government from having anything to do with healthcare or energy, or the environment. Senator Santorum gave another example.

Rick: To limit the jurisdiction of the federal government, we could put specific curbs on the federal government should not participate in primary and secondary education as an example.

Brian Lehrer: Why is Santorum so confident that a constitutional convention would favor right-of-center and not left-of-center rules? Listen to why.

Rick: 34 of the 50 state, each state, because it's a sovereign entity at a convention of states, gets one vote, which means the 34 of the 50 delegations will be controlled by Republicans because the 34 Republican state legislatures are going to have to pass this thing.

Brian Lehrer: Boom. No proportional representation, one vote per state. Wyoming with barely half a million people would get the same one vote as California with its 40 million. Let's talk about this with a former colleague of Rick Santorum's, former Democratic Senator, Russ Feingold. He represented Wisconsin in the Senate from 1993 to 2011. We also mentioned him yesterday, some of you may remember, in connection with the famous McCain–Feingold campaign finance law, which the Supreme Court largely disabled in its Citizens United ruling in 2010.

That was yesterday's democracy conversation. Russ Feingold is co-author of a new book now called The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It. Senator Feingold, thanks for coming on, and welcome back to WNYC.

Russ Feingold: It's great to be on Brian. Good morning. Thank you for taking up this topic, we think it's very important.

Brian Lehrer: Can we start with a structure here before we get to the politics or the specific policies that a new constitution might contain? This is about Article 5 of the current Constitution and the ways that it can be amended, right?

Russ Feingold: That's right. The book that Peter Prindiville and I have written is called The Constitution in Jeopardy, and it's focused on two different jeopardies that you've already alluded to. One is that the far right led by people like Rick Santorum, are coming up with a phony notion that conventions can be controlled by one vote per state, which is not in the Constitution and is merely something they're asserting so they can get a conservative domination of this country, minority conservative rule of our country, and frankly gut our constitution. The other jeopardy that we write about in the book, you've talked about, it's so hard to amend the US Constitution.

It has many founding failures including the type of things that Elie Mystal was talking about. It is the hardest constitution in the world to amend because of the two-thirds requirement for both houses and the difficulty of having a fair convention. I think what would have to happen in order to have serious modifications to the Constitution, like getting rid of the electoral college or establishing a right to vote, is we believe you'd probably have to have an amendment to change Article 5, to change that provision that provides for amendments so that it was not too easy, but certainly not as almost extremely difficult as it is now.

Brian Lehrer: You would start by trying to change Article 5 of the Constitution, which says how to amend the Constitution. Let me key on something else that you just said there because I didn't realize this was an issue. Santorum seemed to present it as this is what the Constitution says, it's a lock that each state would only get one vote at a constitutional convention with the obvious limitations there for real proportional representation for that being a democratic process, if Wyoming gets the same one vote as California with all its people et cetera. You're saying it's not clear, would that wind up in court if they tried to go that way?

Russ Feingold: It's more than not clear. It's a completely wrong assertion that has no basis in the language of the Constitution. The constitution simply says that two-thirds of the states can apply for a convention or proposing amendments. It doesn't say anything about the states getting to have one vote per state. In fact, it's Congress that would call the convention. In our book, Peter Prindiville and I do not begin with the idea of amending Article 5.

We begin with trying to stop this effort by the right to completely distort and reimagine Article 5 into something that was never intended to be. Our constitution begins with the words, we the people, not we the states, and the idea that they claim that somehow they can just have state legislatures choose these delegates and that each state gets one vote is completely unjustified. The problem is if things go a certain way in the election in a few days, the House and the Senate might just go ahead and say we think there's enough petitions here.

We're going to call this and they may purport to make the rules exactly the way Senator Santorum says. Will a court intervene on this as you asked? It seems very problematic because there really is no authority in the Constitution for the Supreme Court to intervene. This is a Steve Bannon fantasy, create a constitutional crisis with regard to a constitutional convention. This is exactly what they're trying to do. The first thing is to stop that before you can even be realistic about trying to amend the Constitution to fix Article 5 which needs to be done.

Brian Lehrer: What you're imagining is if the Republicans take control of both the House and the Senate after the election ends next week that they could by a simple majority vote in each house if there was a convention of the states set the rules, the Republican Congress could set the rules so that it would be one state, one vote. Is that what you're saying?

Russ Feingold: They would try to and by the way, again, this is not a convention of the states. That is just a term that they made up that has absolutely no foundation in the Constitution, but we don't have to wonder whether they might try to do this. Texas Congressman, Jody Arrington has already filed a resolution a couple of months ago that says look there are enough states that have applied for this already which isn't true if you are counting appropriately.

Let's just call the convention. We're long overdue. Keep in mind, this is a body where 130 people don't even vote to say that Biden won the election. They could take control and in January, they could try to do this in the House, as you say by majority vote in the Senate, they might have to work around that filibuster rule but I have a feeling they'd be happy to undo the filibuster for this. What might be called a clear and present danger, Santorum is saying we're going to do it soon. Peter Prindiville and I are trying to get the warning out to people that this could be coming.

Brian Lehrer: It's pretty interesting when you bring up the filibuster. People may not realize that the filibuster requires a 60-vote majority in the Senate to do most things but you can undo the filibuster with just 51 votes. You can end the 60-vote rule forever with a vote of just 51 senators or 50 senators plus the vice president to break the tie just like that. That's what Democrats--

Russ Feingold: Or they could just do it for this issue. They could just say, we're just going to do it for this constitutional convention.

Brian Lehrer: Which has been another debate that the Democrats have been having among themselves. Should we just suspend the filibuster for a few really important things like voting rights. They don't have Senator Manchin or Senator Sinema from their own party on board to do that so they don't have the 51 votes to do it right now. The politics of that, we're going off on a tangent here a little bit from having a new constitution but the politics of that are if the Republicans take 51 seat control of the Senate after next week.

They might see it in their interest now that they would have the majority to end the filibuster and then the role of the parties would flip, then it would be you Democrats who would be saying, "Hey, wait, to keep the Senate the cooling saucer that it was supposed to be, we should have a 60-vote filibuster." Do you think that's what would happen? Do you support the filibuster now? Would you support it if Republicans take control?

Russ Feingold: I think that the filibuster should be modified for certain key issues that would improve our democracy, such as fixing the right to vote and protecting a woman's right to choose. Whether or not it should be completely eliminated I think is a separate question, but I think at a minimum should not be allowed to harm our democracy, nor should it be eliminated to gut our constitution.

I certainly would say that if this came up the way we just described, that those in opposition to what they're trying to do with this convention should go ahead and say, "Wait a minute, you should have to get 60 votes for this." I have a feeling they would go ahead and do it anyway. That's a problem here as you've described, they're running rough shot over the law.

They're running rough shot over the understanding of the founders of this country and they are hoping to return our country to what was essentially the factless articles of confederation, gutting the power of the federal government to be able to protect us from things like COVID, from climate change problems, and to be able to have a very weakened country is what they want to do.

Brian Lehrer: Listeners if you're just joining us, we're in our 30 issues Democracy Series, issue 25 in our democracy, as part of our democracy in peril, set of 10 within the 30 issues. Forget about all that math. What we're talking about today is does the United States need a whole new constitution with former Democratic Senator Russ Feingold of Wisconsin, co-author of a new book called The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It.

Senator Feingold is also president these days of the American Constitution Society. We can take phone calls for him at 212-433-WYNC, 212-433-9692. Listeners, do you want to a whole new constitution for the United States? Do you want to start over to make the basic charter of this country more for the people however you define that based on whatever your politics or values are.

We heard there are proponents from the left as well as Steve Bannon and Rick Santorum and Company, 212-433-WNYC, 212-433-9692 or tweet @BrianLehrer. I think Elon Musk will still let your tweet go through to us. Tweet @BrianLehrer or call 212-433-9692 on the topic or with anything you always wanted to ask Senator Russ Feingold but never had him over for dinner. 212-433-9692. You heard all those clips, Senator Feingold that we played at the beginning from the left and the right. Do you see a desire and some energy on both the left and the right to go for a Constitution 2.0?

Russ Feingold: The people on the right will claim that they're not really going for a Constitution 2.0. They'll say they're just trying to return the Constitution to what it should be, which of course is not the case at all. What they're trying to do is return it to something that would be very weak like the Articles of Confederation and really got the power of the federal government to do what it needs to do to make this really a country, a United States.

They are pretty active. We saw a clip of what an anti Liz Cheney rally during the campaign in Wyoming where almost every person in the audience had a call for a constitutional convention [unintelligible 00:18:23]. I would say the activism on the left on this is much less. I rarely hear people talking about having an entirely new constitution. There are people that think there ought to be a constitutional convention under Article 5 that would make significant changes.

Our argument of course is that is something that probably would make sense at the right time. We don't oppose the idea of a convention but you have to change the way it's set up. Otherwise what you're going to have is this one state, one vote system and you'll get nothing like what the advocates on the left want. In fact, you'll get the opposite. It would be foolish to play into their hands at this time. We need to change the way we amend the Constitution in this country.

Brian Lehrer: You heard the things, the movement on the right is aiming for no more federal involvement in the environment. No more federal involvement in healthcare. No more federal involvement in education as articles of the Constitution. If they get their way. I guess no involvement in healthcare would end Medicare for example. That would never get through 38 state legislatures. I think that's the number that we need to approve. Correct me if I'm wrong.

Russ Feingold: That is not the question. Whether or not 38 states would vote to get rid of Medicare. That's not how it would look. What they would do is pass an amendment enabling Congress and saying that Congress is not allowed to move in certain general areas. They're going to use subtle language and they'll apply it and they'll have it interpreted in a way that will make it impossible to have Medicare and to privatize Medicare. That's how they'll go about it. People will be voting on this general language about restricting the federal government, and then they'll manipulate the language.

Brian Lehrer: You heard the example from the CUNY Law Professor Hernandez there about what South Africa was able to get into its post-apartheid Constitution that progressives in this country would like, a right to housing, a right to healthcare, a right to reproductive choice. Things that are bedrock progressive principles in this country, but that we don't have. Why not aim for the moon and go along with the idea of a convention of the states or whatever they want to call it?

Maybe those principles would be popular enough to win the day if they open things up. You Democrats always say public opinion is on your side on most progressive ideas. Abortion rights, universal background checks on guns, strong Medicare and Obamacare, government involvement in affordable housing, the public opinion polls seem to support that. Maybe it's too safe a strategy to take Santorum's analysis of who would win what as the bottom line. What do you think?

Russ Feingold: Well, that's clearly not what would happen. It's not going to be the people, the people that are responding to those polls were going to control the convention under Santorum's system. What it will be is gerrymandered legislatures appointing delegates from the state legislature who are far-right wingers, and they will control the convention.

The things that you're saying, it would be nice, we could shoot the moon and try to get it.

You won't get any of them because of the people under their system that the Congress may authorize would vote completely the opposite on those issues. Frankly, it's just silly to think that somehow you'd be able to get people to vote for the kind of things that progressives believe in in the context of a completely gerrymandered delegation. It just won't happen. It'll be the opposite.

Brian Lehrer: Let's take a call. Allan, Miami, you're on WNYC with former Senator Russ Feingold, president of the American Constitution Society. Hi, Al.

Allan: Hi. How you doing? Thanks so much for having me.

Brian Lehrer: Sure. What you got?

Allan: I just wanted to ask this senator, he made a reference that they should amend the Constitution to make it not so easy. He said that all other Constitutions around the world are somewhat easier than the US to amend. Now, my question is, wasn't that part of why a lot of people think that the US Constitution is that much better? Think about it.

If you make the Constitution a drop easier even to amend, then the next generation, in 10 years from now, the next group of senators will make the Constitution even a drop easier and it will be a slippery slope downhill.

Once you get that initial guard, there were a lot of amendments in the past Constitution. When the entire country was behind something, they amended the Constitution. If you make it a drop easier, who says that the next generation won't even take it a step further and it will just be the end of that restriction?

Brian Lehrer: Finish that thought, Al. If that were to happen, what is it that you're afraid would result if it was too easy to amend the Constitution?

Allan: We could have a long probably five-hour political discussion about all my different things that I believe, but there are a lot of protections. There are a lot of protections in the United States. I have a Jewish background. Some of my wife's family came from a Jewish family in Lithuania. They were all very happy when Germany walked in. A lot of people thought that Germany would protect them. They were very polished.

In World War I, they thought that they had a very nice Constitution. They thought that they were much more safe with them. Who says that? United States protected a lot of countries, they protect a lot of people. They didn't start necessarily with-- There was slavery, but remember, slavery was all over the world. People refer to the United States as being the culprit over here. Slavery was everywhere.

Brian Lehrer: Al, I'm going to leave it there. I get what you're going for. It could be too much of a populous temptation to amend the Constitution in ways that Nazi Germany gradually changed its laws. Senator Feingold, you want to address his concern and take it back to what you started with, which is that you do want to amend Article 5 of the Constitution to make it easier to amend our Constitution?

Russ Feingold: Yes. The caller has got a good point. Of course, that's why we carefully say that we want to make it easier, but not too easy because of the concern he has. Look, Thomas Jefferson thought we should have a new government or Constitution or even a revolution every 20 years. Their intention was not to lock this in forever. George Washington said, "I'll vote for this Constitution because it can be changed." He said, "I don't think we are more inspired, have more wisdom, or possess more virtue than those who will come after us."

The problem is, the way they set it up, and I think it was a mistake, was to make it so hard that we've only had really 17 amendments other than the Bill of Rights, which was immediate, in the entire history of the country. We've never solved the problem of how the electoral college has really altered the course of history in a negative way in this country. We have no provision to guarantee a right to vote to people.

The Supreme Court has gone to town on that. Obviously, the founders didn't know much about climate change and environmental protection. There's nothing in our Constitution that does that. It still would require probably 3/4 of the states, as you pointed out, Brian. I don't think there's a real risk that it will become easy. It's just that it's become, at this point, almost impossible under the congressional route to pass anything. Things need to be fixed, as Ellie Mystal was talking about.

There are founding failures of our Constitution that have perpetuated racism throughout our history. Some of that needs to be fixed. To have a Constitution that can't be changed at all really creates a country that can't stay up in time with the 21st century and the society we live in. I don't believe in getting rid of this Constitution, but I do believe we have to be able to make changes to it in a somewhat reasonable manner with substantial public support.

Brian Lehrer: Here's a question for you from a listener via Twitter on what we described as the agenda of the right in changing the Constitution to take the federal government structurally out of, to bar it constitutionally from having anything to do with healthcare or energy or the environment or education. Listener writes, "Careful what you wish for, red states. They are the net beneficiaries of federal government's large S. New York State for one would be better off if we didn't have to support them with our federal tax dollars."

Balanced budget amendment is another thing that Rick Santorum mentioned as one of the things they would go for. What do you think? Would the red states' people ultimately resist that change? The math that this listener suggest is correct, isn't it? It tends to be the blue states, which are the wealthier states, which actually wind up subsidizing the red states, which are the poorer states.

Russ Feingold: Well, there's a lot of truth to that. They have actually have had mock conventions preparing for this at great length. One of the three or four top things that they want to do is eliminate the income tax. They eliminate the federal income tax and make it unconstitutional. Yes, a lot of those states, the Alabamas and Mississippi and others will lose a lot of federal revenue that is critical to their society because they don't raise much money at the state level.

This would create a great difficulty for them. It's something that would be nice if people were aware of, but remember, Brian, it's not the people of the states who might be affected who are going to make this decision. They want to engineer this. It really is just the state legislatures. The way ratification works is if these amendments come out of a convention, the Congress gets to decide whether or not they should be ratified by conventions in the states or by state legislatures. I guarantee you a conservative Congress will say, "No, we're going to go back to the state legislatures.

In other words, the very same people who have put this right-wing document together. The people of the state may think it's terrible, but their state legislature may do the opposite. This is exactly what's happened in my state of Wisconsin where we have a progressive governor, an attorney general, a lieutenant governor, and yet because of gerrymandering, our legislature is as far right as you can get. Actually, they have passed resolutions to call for this convention.

Brian Lehrer: Lori in Manhattan, you're on WNYC. Hi, Lori.

Lori: Good morning. Thank you Senator Feingold for being with Brian this morning. My question is, if this dystopian vision of these radical Republicans were to come to pass, would, what I consider anyway, rational states, New York, California, Connecticut, and sometimes New Jersey, would they be able to succeed and form their own union? Would we be rolling backward in the direction of Europe, and what it was like 18th century, 19th century, but feeling we have no choice because we're not going to allow ourselves to be subjected to what these people would look to create.

Brian Lehrer: Interesting. Senator, I'm sure I don't have to tell you. We usually hear about succession as a radical idea from Texas and maybe a few other conservative states. There's also a blue session movement out there, it's tiny. Lori is articulating some of the ideas. If the country, the federal government goes so far right, maybe the Blue State should form their own federation.

Russ Feingold: This is exactly the strategy of the right here. In fact, in Texas, as you suggest there's an active conversation about whether there should be secession. They asked Senator Ted Cruz the other day about it and he said, I'm not there yet. In other words, they are saying, unless they get something like this horrible rewrite of the Constitution to gut the power of the federal government, they will potentially consider secession.

Now, do they really mean that? I don't know and what they really want is for people on the left to start thinking, "Well, if they do this to us, then we will succeed ourselves." Their goal is to disrupt this union. Their goal is to make it so that our democracy is not what it is and our union is not what it is. They don't want to be a part of [crosstalk]

Brian Lehrer: I think Lori's point is to what you were just describing about Texas. Go, just go, take your guns and your pregnancy slaves and go. We'll have our own country.

Russ Feingold: For one, don't want to ever see that happen. I believe and love this country, and I want all 50 states to stay together. I think it would be a mistake for progressives to start talking in that direction. I completely understand the feeling. The goal here should be to prevent them from being able to destroy this constitution. [crosstalk]

Brian Lehrer: What's the best way to do that? Obviously, from what you've already said, they would need to win a majority in Congress in the current election in order to even have a possibility of having a constitutional convention. They may well win control of both houses of Congress, so how else do you propose to stop this?

Russ Feingold: This is why this election in a few days is so important. Keep in mind the thing that really drives this is state legislatures. Congress doesn't have the right to say, "No, we don't want to do this." If the applications are validly made, they're required to call a convention. The point is that when people vote, they should be thinking about whether a legislator they vote for is going to vote for a constitutional convention, especially one of these phony convention of the state's one. Your vote for state legislator is extremely important with regard to this issue.

People should be very focused on that as well as obviously the Congressional and Senate races that are going to be so important. That would be my advice and go up to your legislator, Democrat or Republican say, "Do you know about this threat of the right to rewrite the constitution? Do you know that they're going to try to push this through your legislature? I would advise that.

Brian Lehrer: We have about five minutes left. While you're here, let me get your quick take on a few other things. One, as I mentioned to the listeners who don't know this history, you are the Feingold in McCain-Feingold, the campaign finance reform law that was gutted by the Supreme Court in the Citizens United case in 2010. Can you give us a little first-person history lesson real brief? What did you and Senator John McCain try to do in your bipartisan bill 20 years ago? What have the effects on our democracy of having it largely stripped away been?

Russ Feingold: There was something called soft money that had developed actually under the Clinton administration especially but the Republicans are using it too, where they were funneling unlimited contributions to the political parties in a way that certainly was not intended by the federal election law. John McCain and I took 8 years and were able to close that loophole. For a few years there before the Citizens United decision, we didn't have all this money sloshing around.

Corporations were not allowed to participate as they are now in funding elections. We had a great victory there and it was working and the Supreme Court in one of its worst decisions voted five to four to say, by the way, we're going to strike down a 1907 law that prevented corporations from controlling our democracy, from contributing to campaigns or giving money for ads for candidates.

That hurt our law, didn't actually strike down our law, but as you suggested, it very much damaged what we tried to do. I was certainly hoping the Supreme Court would not have been stolen by the right as it was at the time of the deaths of Justice Scalia and Justice Ginsburg not playing by the rules. We lost the opportunity to do what should be done, which is the court should overturn that citizens United decision and allow the type of thing that John McCain and I were doing to work again because it was working very well.

Brian Lehrer: Democrats use what we now call dark money as much as Republicans according to recent reporting in the New York Times and elsewhere. Who do you think is trying to hide their identity so much when they give to help your party's candidates or the other parties? What do these donors have to hide?

Russ Feingold: Some of them have extreme agendas, particularly on the right. People are pushing this convention of the states, the Mercers and the Koch brothers and others. They don't particularly want people to know what they're up to. Even though we can draw the line sometime. The Supreme Court even said in Citizens United, as bad as it decision as it was, that they assume that Congress would require disclosure of contributions and who's doing it. Of course, the Republicans completely changed their mind and said, "No, actually, we're not going to do that."

Even though when John and I were arguing for our bill they said, "All you need is disclosure. All you need is let the sun shine in. Let the information in." It has created the worst of all worlds, unlimited contributions and no real requirement of disclosure in many cases. The people in our democracy don't know who's paying for all this. They just see made-up names, the good government society or something on an ad, and they have no idea who's trying to control the democracy with their money.

Brian Lehrer: Now, you're a senator from Wisconsin. Wisconsin has become very conservative in some respects. They have a core election denier in Senator Ron Johnson. Biden won there but by less than a point, used to be more democratic. What happened in Wisconsin the last 20 years according to you? This is not a southern confederate state where the white people were mostly always going to be right wing. Did the Democrats squander their Wisconsin majority support through bad economic policy or something?

Russ Feingold: Obviously not. This was a trend that occurred all across the country with the elections in 2010 and 2016, and even in 1994. If you really know Wisconsin history as I happened to, we were not always a progressive state. You might remember Joe McCarthy. It's not like it was a happy place all the time in terms of politics. In fact, we had very conservative Republicans in office until the [unintelligible 00:37:14] tradition was brought up by [unintelligible 00:37:17] in the late 19th century. We've tended to lurch back and forth. It's evenly divided and the elections tend to be very close. At this point, yes, it's not really that the state is conservative.

In fact, I would say it's a majority Democrat at this point. We have a Democrat Governor, Democrat Attorney General. It's that the legislature is grossly gerrymandered so that even if they only get 44% of the vote, they still control the legislature. That's what's happened in our state. It has to do with manipulation. It is not the will of the majority of the people of the state in many cases.

Brian Lehrer: Former Wisconsin Senator, Russ Feingold. Now president of the American Constitution Center and author of the new book, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It. Senator, thanks so much for giving us some time today.

Russ Feingold: It was great being on, Brian. Thank you very much.

 

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