Democracy's Chief Executive

In a bonus episode, Peter and Dale explore with two constitutional scholars whether the Fourteenth Amendment, Section 3 Disqualification Clause bars Donald J. Trump from again serving as president. Gerard Magliocca, whose 2020 academic research helped to spark interest in the question, and Garrett Epps, author of Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America, discuss whether the Disqualification Clause covers presidents, whether Donald Trump’s documented actions amount to “insurrection,” and whether Congress needs to enact enabling legislation before the Disqualification Clause becomes operative. They survey the Supreme Court’s options in reviewing the Colorado Supreme Court decision barring Trump from a presidential primary ballot in that state–and the legal and political implications of the different possibilities.

This last regular episode of the season asks whether American democracy is well-served by the institution of the presidency in its current form. Is there an irreconcilable tension between the president as the nation’s foremost mobilizer of party politics and the president as a faithful, steady, law-bound manager of government? Are there aspects of our system for choosing presidents that expand the prospects for effective democracy, or does the system actually increase the risk of democratic failure? Do popular frustrations with our constitutional separation of powers help lay the groundwork for authoritarianism?

Peter and Dale explore these fundamental issues with Yale political scientist Stephen Skowronek, one of the nation’s foremost presidential scholars, and Bertrall Ross, the Justice Thurgood Marshall Distinguished Professor of Law and director of the Karsh Center for Law and Democracy at the University of Virginia.

The story of January 6, 2021 is, of course, a story of particular individuals who showed up to storm the Capitol or to incite them to do so. But the attack on the Capitol also seems to be part of two larger, overlapping stories.

One is a story about what has happened in recent decades in the evolution of one of our two major political parties. The other is a story about how political violence has been a tool to thwart inclusive democracy in the United States—a history of violence extending to before the Civil War.

Peter and Dale discuss these larger frames with three of the nation’s leading scholars, historians Peniel E. Joseph and Kate Masur, and sociologist and political scientist Theda Skocpol.

This special super-sized episode explores, first, the process of certifying a new president-elect on the sixth day of January as that process is supposed to unfold and, second, the implications of prosecuting a former president for allegedly conspiring to disrupt that process. In the first part, Peter gets a briefing on the Electoral Count Act and its reform from Protect Democracy counsel, Genevieve Nadeau. He and Dale then explore decision making around the Trump indictment with former U.S. Attorney General and current Belmont University law school dean Alberto Gonzalez and former career prosecutor and Justice Department official Mary McCord, now Executive Director of the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center.

What is it like to be the chief lawyer for a major party’s presidential candidate in a national campaign? NYU law professor Bob Bauer, general counsel to Obama for America, the president’s campaign organization, in 2008 and 2012, and Ben Ginsberg, national counsel to the 2000 and 2004 Bush-Cheney presidential campaigns, as well as Mitt Romney’s presidential campaigns in 2008 and 2012, explore with Peter and Dale the roles and challenges of presidential campaign lawyering. They also discuss their roles in co-chairing the Obama Presidential Commission on Election Administration, as well as their co-founding of the Election Official Legal Defense Network.

The U.S. has an unfortunate history of officials in power often trying to make it more difficult for voters to vote. Recent years have also witnessed a sharp escalation in intimidation and threats targeting the poll workers and administrative officials responsible for assuring a complete and accurate ballot count. Peter and Dale talk to two voting rights experts–former Justice Department official and current law professor Gilda R. Daniels and Brennan Center vice president for democracy Wendy R. Weiser about their greatest worries going into the 2024 elections–and where they see progress.

Americans overwhelmingly believe that big-money donors get to play too big a role and ordinary people too little in electoral politics. Is there hope for reform?

How did the Supreme Court undo Congress’s efforts? Peter and Dale explore the history of attempts at federal campaign finance reform and the role of the Federal Election Commission with former Senator Russ Feingold, co-author of the McCain-Feingold Campaign Finance Reform Act (and current president of the American Constitution Society) and FEC member and former chair Ellen L. Weintraub.

Many Americans report that they are frustrated by the two-party system and wish the U.S. were more of a multiparty democracy. Yet current election rules leave virtually no role for independent candidates or third parties in presidential elections other than “spoiler.” What are the features of U.S. elections that have helped ensure there will always be no more than two major parties in every era?

How might the rules be changed to facilitate the emergence of more parties, at least in legislative elections? Might the viability of more than two parties in legislative contests encourage more voter participation in presidential elections as well? Peter and Dale discuss the opportunities and challenges posed by third parties with political scientists Lee Drutman, Charlotte Hill, and Sandy Maisel.

There is no other major democracy that chooses presidential candidates the way Americans do–a system in which primary voters play such a large role and the formal role of party leadership is so limited. Political scientist and presidential campaign veteran Elaine Kamarck and election law scholar Rick Pildes explore with Peter and Dale the advantages and disadvantages of the major parties’ primary system, how it has evolved in unexpected directions since the 1970s, and why the system would now be difficult to change.

Actual presidential elections occur only every four years, but political polls operate every year, week-in and week-out, supposedly to give Americans a real-time sense of who is up and who is down in the political horse race. How do the political candidates themselves use polling as a strategic tool? Can Americans trust polls that are not based on random sampling? Why do polls taken at more or less the same time sometimes seem to point in opposite directions? Peter and Dale examine the evolution and current practice of opinion research with leading Republican pollster Whit Ayres and leading Democratic pollster Geoff Garin.

U.S. presidential elections turn on the mechanics of what is now called the “electoral college,” an institution that does not work at all as the Framers expected and which all too frequently threatens to undo the will of the voters. Peter and Dale talk with historian Alex Keyssar and leading election law scholar Ned Foley about electoral college mechanics, its evolution, how its creation and operation reflect our history of race and regionalism, the prospects for abolishing it, and the perhaps brighter prospects for reforms that will reduce the risk of election misfires.

How well does the American presidency serve the principles of American democracy? Is our democracy a beacon of hope, or a candle in the wind?  For Season 2 we go ‘Behind the Vote’, looking in detail at presidential elections, big money in politics, the electoral college, third parties and polling among other important topics.

Launching exactly one year ahead of election day 2024. Lawyers, politicians, pollsters and government officials join Professor Peter Shane of Ohio State and NYU and co-host, veteran Washington Post journalist and best selling writer Dale Russakoff.

No political office is more important than the U.S. presidency in terms of the resources it commands, the responsibilities it bears, and the symbolism it embodies. Over the last half century, Congress and the courts have engaged more significantly than ever in policing the legal and constitutional boundaries of presidential authority. While decisions about the scope of presidential power can result in profound impacts for the American public, the technical issues are often complex and not well understood, sometimes even by political journalists. This podcast offers the promise of publicizing and clarifying these hugely important questions.

Joining Peter for each session would be a co-host and one or two interviewees whose scholarly research or professional experience is focused on that episode’s topic. If successful in attracting a significant audience, future seasons would likely include episodes with the capacity to intermix timeless topics with conversations of a “ripped-from-the-headlines” feel.

Peter is a leading scholar in U.S. constitutional and administrative law, with a special focus on the American presidency and the separation of powers. The University of California Press in May 2022 published Peter’s newest book, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. He is currently a Distinguished Scholar in Residence at NYU Law, where he is teaching constitutional law. He holds the title also of Professor and Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at the Ohio State University’s Moritz College of Law, where he regularly taught courses in constitutional and administrative law, law and the presidency, and subjects at the intersection of law, democracy, and new media.