Interview Only w/ David French - America’s AI Liability Crisis & Constitutional Breaking Points - The Chuck ToddCast

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Speaker 1 (00:00):
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Speaker 3 (01:39):
Well.

Speaker 1 (01:39):
Joining me now is my friend David French of The
New York Times. He's also co host of the Dispatch
podcast Advisory Opinions with our friend Sarah Isker, who many
of my podcast listeners find her.

Speaker 2 (01:54):
She's a favorite a guest as well.

Speaker 1 (01:57):
She's yeah, my goodness, always so smart and entertaining.

Speaker 2 (02:01):
Yes, she's great.

Speaker 1 (02:02):
The last time we saw each other in person, we
were in Chicago, and it was a debate that you
and Chris Christy had and I moderated it and I
shared a little bit of our of what that was
like with my audience at the time, and it was
about sports gambling and really the impact on young men
in particular. We're not saying there aren't young women out

(02:23):
there that are susceptible to this, but it's there's clearly
more of a frontal lobe issue here.

Speaker 2 (02:29):
With young with young men.

Speaker 1 (02:32):
And you know, I want to begin where we ended
in that conversation because it feels like as these prediction
markets have actually lowered the threshold now from twenty one
to eighteen.

Speaker 2 (02:43):
Right with prediction markets, it's pretty clear.

Speaker 1 (02:47):
I mean, I used the example of rental of basically
insurance companies and the rental car companies decided we're just
not going to ensure drivers under the age of twenty five.
And magically there's no law that was passed that says, right,
you can't rent a car until you're twenty five. It's
insurance companies made this decision, and one could argue that

(03:09):
they're onto something with twenty five maybe being the proper
age to introduce vices where you have to have self control.

Speaker 2 (03:18):
Yeah.

Speaker 3 (03:19):
You know, it's interesting how the insurance companies financial incentives
are directly opposite aligned from the gambling financial incentives. So
insurance companies they implement the twenty five year old limit
because of documented actuarial risk. Then young guys just drive
more recklessly, and that's going to cost the insurance company money.

(03:40):
When it's young guys driving the gambling bus recklessly, that
is exactly what the companies love. I mean, yeah, we
want to poor marketing dollars towards the people least able
to control themselves.

Speaker 2 (03:54):
And you know, when.

Speaker 3 (03:56):
We were taught, we had a really it was a
really interesting debate because on the one hand, you know,
Governor Christy was defaulting towards less government regulation. I was
defaulting towards in general, I was defaulting towards much more.
But we did at the end degree on a couple
of things that I think are really important. And this

(04:18):
is sort of an example of how you can reach
seventy thirty kinds of solutions that don't address everything, but
they at least address something. And as I recall, it
was three prongs. One was raise the age to twenty five.
The other one was regulate prediction markets at least as
tightly as we regulate securities markets. And then number three

(04:40):
was some form of regulation on a certain kind of
bet called a prop bet. This is your live in
game betting where you're going to say this, the next
ball is the next pitch going to be a ball
or strike Chris, the next foul shot going to be
a hit or amiss, And those single individual can essentially
totally warp the warped the odds if they check exactly,

(05:02):
like they could tell their friends that the third batter
of the first inning, I'm going to walk them right.

Speaker 1 (05:08):
And by the way, we're not manufacturing something out of
thin air. That's what apparently what a manual class A
did as the closer for the Guardians, exactly not going
to throw up a strike on the first pitch, I
promise that. In fact, I'm so nervous about making sure
I don't throw I'm going.

Speaker 2 (05:22):
To bounce the ball so bad.

Speaker 3 (05:26):
And it's one of these things, Chuck, where I think
what you're actually watching is sort of the laboratories of
democracy that's working in real time, maybe in the sense that, Okay,
we had a bunch of states that liberalize sports gambling,
and a lot of Americans now don't like what they see,
and there is a building response to it that is

(05:50):
I think it's it's arising and it's bubbling up, similar
to the way sort of like the say, the phone
free schools movement bubble up, bubbled up. First is a
notion as an idea, then it's an experiment, then is
a policy. And I think that where at the notion
or idea stage of gambling regulation where we're saying, wait, whoa,

(06:10):
this is not good, This is especially not good for
young men. What can we do about it that's reasonable
and we can get consensus on generally?

Speaker 2 (06:20):
Do you think that is the best?

Speaker 1 (06:21):
You know, it's It's funny because one of the things
that I think we're terrible at as human beings is
trying to anticipate what could happen based on a law
that's passed. In fact it sometimes you need to see
the unintended consequences that then to properly regulate something that
perhaps you wouldn't have thought of if you tried to
regulate from the start. Yeah, you're you're you're an interesting

(06:45):
cat ideologically, right, because on one hand, you're I think
you've got a lot of libertarian in you at this. Yeah,
and at the same time you're also a bit of
an institutionalist.

Speaker 2 (06:57):
I think, yeah, fair.

Speaker 3 (06:59):
You Yeah, you know Chesterton's fence kind of conservative, yes, right,
where I think a lot of libertarians there, you know,
the purest hormal libertarian is.

Speaker 2 (07:08):
Hey, you know you do you right like?

Speaker 1 (07:11):
And that's it is that is it better to I mean,
because that's essentially what we're.

Speaker 2 (07:18):
Doing with AI.

Speaker 1 (07:19):
I'm on, you know, the downside of letting something happen first,
then figuring out what the unintended consequences are, and then
figuring out how to regulate is it Sometimes it's impossible
to quote put toothpaste back in the tube, and yet
there it is true that it is hard to anticipate
what the effects of a policy are going to be.

Speaker 3 (07:40):
Yeah, And I also think that a lot depends on
sort of how you came up in the world, sort
of from a legal political perspective. I came up in
the world as a lawyer where I'm doing a lot
of litigation, and litigation not all the time, but most
of the time it's backwards looking. This thing happened in
the past, and we're going to try to legal resolution

(08:01):
to it that involves compensation or punishment or whatever. And
then it's based in real world events, but it sets
a precedent that essentially regulates going forward. But unlike a
regulation that is anticipatory purely we think this is going
to be bad in this way or that way, so
we're going to sort of anticipatorily ban it. What the

(08:23):
common law typically does is, let's think, it lets things unfold.
It takes a sort of a much longer view. It
lets things unfold and then strikes at the elements where
people's rights are violated or people are harmed. And so
it's more of a backwards looking analysis. And I wrote
about this about AI recently because we're beginning to see

(08:45):
these common law concepts come into AI, where AI, whether
it likes it or not, is going to be quote
unquote regulated away by jury by jury verdicts, by judicial
decisions such as So, for example, there is the the
the Attorney General of Florida is undertaking a criminal investigation

(09:07):
of open AI because what they did is they looked
at chat logs around a mass shooting at Florida State
and they said, wait a minute, well, you.

Speaker 2 (09:16):
Know it's funny on that one.

Speaker 1 (09:17):
I let's dig into that because I, first of all,
he I I interpreted what the Attorney General of Florida
is doing is borrowing a page from what is happening
in the social against the social media companies in the
in the in the combined lawsuits that we're watching in
the southern Then in southern California, they've already had one

(09:38):
verdict where it's a fault it's a it's a faulty
product attack.

Speaker 2 (09:43):
Right.

Speaker 1 (09:43):
Isn't that how that basically that the potential lawsuit is
it's a defective product.

Speaker 2 (09:50):
Yeah, And that's how they're going to try to go
at it. Yes, right, Wade that they are. That is
accurate description of the way they're going at meta.

Speaker 3 (09:59):
And they're using product liability principles. And I've got some
beef with some of that, to be honest, because you know,
you are starting to intrude on protected speech for example.
But when it comes to open AI, it's a subtle difference.
So the subtle difference with open AI is unlike say,
your interactions with real live human beings on a social

(10:24):
media app, where a lot of the question is how
much should kids be able to interact with real life
human beings sort of how is that ordered? This interaction
with human beings actually sort of ordered, governed regulated. With
chat GBT, you're interacting with an entity that is designed
to be at least to some degree autonomous. That's its

(10:47):
design is to be to some degree. That's what part
of the whole point of AI is that does its
own thing. But how can that exist legally? Where you
cannot there's no such thing as machine liability. There always
has to be human liability in the chain. And so
here's the dilemma that I think that the that the

(11:10):
AI companies are facing and will continue to face, is
that they're ultimately going to be held liable for the
quote unquote autonomous actions of their AI. Well, if they're
going to be held liable for the autonomous actions of
the AI, how autonomous can they ultimately end up being?
Because do I want to delegate the possibility of criminal

(11:34):
sanction to a machine that I'm intentionally or you know,
software that I'm intentionally not Let's.

Speaker 1 (11:40):
Let's take let's take this specific Florida case. This involves
the school shooting at Florida State. Uh huh, and correct
me if I'm wrong. I've been followed. My wife went
to Florida State. So we followed this pretty closely. Yeah,
just you know, we we we keep up with it.
And I guess because he used chat cheap to essentially

(12:01):
help him find the best way to the best places
to do the shooting. The best places to escape and
all this stuff. Why should open AI be held accountable
for doing something he could have done. He could have
done another way if he chose to. There just happened
to be a more efficient way to do it. I mean,

(12:23):
you know, this is the case of technology is neither
good or bad. People are good or bad, and they
can use technology to do good or bad.

Speaker 3 (12:30):
Yeah, it's a really good question and the answer lies
in a statement that I think that the Attorney General
of Florida made that I thought was very interesting. He said,
if you had seen that text exchange between two people,
we would have already charged the other person.

Speaker 2 (12:48):
On the as like a co conspiratory, essentially hating in
a bedding. So and if.

Speaker 3 (12:53):
You look at some of the interesting prosecutions we've seen
over the last couple of years of parents of school shooters.

Speaker 1 (12:59):
Right there is we've gotten a few of those guilty
verdicts and sort of essentially neglect is that what it is.

Speaker 3 (13:05):
It's also a criminal neglect at some at the edges
and aiding in a betting theory.

Speaker 2 (13:14):
But what you found in these cases really is.

Speaker 3 (13:18):
What you would call criminal neglect, Like they completely ignored
warning signs and in fact, and most of these parent
criminal charges criminal trials, you do not see anything as
overt as what you see in the chat open AI
chat logs here. So, for example, in the open AI
in this case, you have finding questions about, you know,

(13:41):
media coverage of school shooters, questions about criminal penalties for
school shooters. You have questions about when is the student
center the busiest, and the thing that's most chilling is
about three minutes before the shooting. You have questions with
open AI about how to disengage the safety. Right, So
imagine if the humans on the other end where you say,

(14:01):
you know, hey, mom, how do I disengage the safety
on my weapon? And mom knows the kids at school
and like that mom is going to get hold that
mom is getting prosecuted, and that mom's going to jail. Right,
So so there's a parallel here that is very troubling.

(14:22):
Although it is also the case, Chuck, that you could
maybe just do normal Google searches for some of this
information as well, that it's not and.

Speaker 1 (14:29):
When you have held Google accountable for it, and that's
circums given him the right answers, right, like as a
Google search, I mean, I take your point and I've
been As you were talking, I was thinking, well, I
guess the AI companies could say, you know, could essentially
program the model to say, if somebody asks more than

(14:51):
one question about a school shooting, you need to at
least say, if you're what are you asking these questions for?
You know that you know or you know you shouldn't
be taking actions, don't do this or something like that?

Speaker 2 (15:07):
Is it? Do you think they have a responsibility for that?
Would Google?

Speaker 1 (15:11):
Now let me go further, and I'd like to know
when you think the First Amendment applies here, how many
Google searches on school shootings do you have to do
before you think Google should report it?

Speaker 2 (15:23):
Yeah, it's that's that's a really good question.

Speaker 3 (15:25):
And we actually have cases currently pending that are related
to some of what you said. So again we're talking
about AI and a mass shooting that happened in Canada,
a school shooting that happened in Canada, and there the
interaction with a school shooter on chat GPT was so
overt that open AI considered contacting Canadian authorities and chose

(15:49):
not to. And then there was the attack on the school,
and so now the lawsuits are pouring into open AI, because.

Speaker 1 (15:57):
This is something that's they're almost admitting liabilit the amount one.

Speaker 3 (16:01):
And so so basically I think it really does turn
on what is the nature of the technology. So, for example,
we would never say that if I want to know
how to disengage the soft of the safety on my weapon,
that if I go to a library and I look

(16:22):
up at a technical manual using the Dewey decimal system,
the library is no. And I feel like if you're
looking at a Google Search, that's a typical Google search
is very much more like I'm walking in I'm accessing
a pre existing database of information that is available on
a neutral basis. The whole premise of these chatbots and

(16:46):
these lms is something very different that you are communicating
with a with a an entity that is different from
although the Google Search and AI are now merging a
lot more, I mean that look, there is not much
to my frustration, but although there is.

Speaker 1 (17:02):
I just interview to Todd Ricketts who's got a an
app that he's promoting called free Spoke that is trying
to essentially be bring search back, essentially search without the
without you know, monetizing the user and all of that
business and et cetera.

Speaker 3 (17:20):
Yea, So how much of this is autonomous operation of
the actual software? And if you're talking about these chat
bots and there is you know, we've also seen, for example,
evidence of chatbots because they're trained to be so sick
offican you know, they're trained to be or sycophant, right

(17:40):
that they will kind of encourage you in an effort
to commit suicide even you know. And so we are
seeing something that is different in kind from a Google search.
And if I am an a, but what we're seeing
from the AI companies on the one hand saying this
is completely revolutionary technology that is going to revolutionize the world.

(18:03):
It's going to transform the way we do everything. It
has a it has ability to sort of learn on
its own in a way that we've never seen before,
learn it at geometric rate, new new new, and then
I come around and go, okay, we need liability rules
around this new new new, And then they turn around
and go, well, it's.

Speaker 2 (18:22):
Just basically a Google search, right, what is it? Guys?

Speaker 1 (18:30):
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Speaker 2 (20:15):
Do we hold the publisher accountable? Oh? Absolutely absolutely not.
You know, you know, but you.

Speaker 1 (20:21):
See where all right, it's like, I mean, I think, right,
you get to these places you're like, well, definitely not this.
If you read a book and you feel like that
book reinforces, or you read a poem and that reinforces
your decision to kill yourself, we're not holding the publisher accountable.

Speaker 2 (20:37):
You do a.

Speaker 1 (20:38):
Google search how to do it, and you find different
ways of how to kill yourself. Where I think we've
decided we're not holding the search engine responsible. If you're
asking a sentiment, if you're basically suddenly having a chatbot,
which sort of where you're having this conversation, is this
a good idea or not?

Speaker 2 (20:59):
Right, then you're right, I guess.

Speaker 1 (21:03):
So it's like, what is the line between Google search
and an actual relationship relationship with the search Because in
the real world, if a human being encourages another person
to commit suicide, depending on the extent to which they
do it, we've even seen criminal prosecutions in that context.

(21:24):
So in that circumstance when a part of the theory
is that if you're in an actual relationship with the
human being, there's a degree of coercion, control, persuasion, et
cetera that doesn't exist if you're reading a book or
if you are making a reference search in a library
or a Google search online.

Speaker 3 (21:46):
That there is this element that the relationship itself contains
an element of coercion slash persuasion. And the question is,
if you're talking to a chatbot, is it more like
the relationship or more like the Twoe decimal system. And
the whole emphasis of the chatbot is to be more
like the relationship. That's why it is so revolutionary, and

(22:11):
so that's why I don't think they're going to be
able to have it both ways. They're not going to
be able to sort of say, we are revolutionizing your
interaction with technology. How but the legal framework has to
treat us like a Google search. Do you think this
is only civil vulnerability, not criminal? Mostly civil? There are
circumstances in which I think criminal liability could attach. Now

(22:34):
you know if you had so, for example, if you
had internal safety protocols at flag.

Speaker 2 (22:40):
And section two thirty doesn't apply to this. You don't believe.

Speaker 3 (22:43):
I don't believe section two thirty applies to this that
if you had because what you're doing is you're actually
holding the company responsible for its own speech, not for
the speech of others that's being hosted on the platform.

Speaker 1 (22:57):
Right, yeah, that's right. You guys manufactured the ability for
this speech.

Speaker 2 (23:01):
This is you.

Speaker 3 (23:02):
When that chatbot is speaking, it is open Ai speaking,
And so I can imagine a criminal liability. Let's say
a conversation flags the safety protocols and open AI officials
watch the sort of plotting unfolding in real time and
then just deliberately.

Speaker 2 (23:22):
Choose as they see that this.

Speaker 3 (23:25):
Person is okay, chat I'm at a stoplight, I'm five
minutes away.

Speaker 2 (23:31):
What should I be doing?

Speaker 3 (23:32):
How should I what should my final prep be and
they're like, well, that's interesting. Let's see what Chat says
to him versus we got to do something. You know
that they're extreme circumstances where I could imagine criminal liability attaching,
but what you might end up seeing is civil liability,
and sometime in civil liability to at a large scale.

(23:53):
The question, though, is, given the economics of AI right
now and how much money is flowing into AI, how
affected would civil judgments be even in the millions of
dollars if we're dealing with companies with hundreds of billions
of revenue potentially trillions in market capitalization. So could civil

(24:14):
liability actually be a deterrent as opposed to just something
that compensates victims.

Speaker 1 (24:21):
I'm just trying to amount what I guess the solution
is these let's at the end of the day, these
large language model creators need to build in some of
these protections, build in alarm essentially alarm systems, right security
systems on stuff like this. What's the most effective way

(24:43):
to force this basically probably essentially pass a lot saying
you have to do this or or if you don't
do it, and I guess, or do you do it?
At carrot and stick. And it's like, if you pass
this law, we'll give you some indemnification, you know, some
liability shield up to a certain amount of money, like

(25:04):
you caret and stick this. What would you how would
you propose a solution? Yeah, so a couple things.

Speaker 3 (25:10):
One anything I'm saying right now, I say with extreme
humility because this is Look, we're.

Speaker 2 (25:15):
Both doing what we do.

Speaker 1 (25:17):
As I joked with that in a great conversation with
them guests and the other day, and they were just
I'm not I said, we backseat drive for a living
in Go ahead, right, back seat driving.

Speaker 3 (25:30):
And especially when we're talking about AI AI, it's such
an emerging technology that you know, you almost feel like,
well I have reached this definitive conclusion and then I.

Speaker 2 (25:38):
Know and it's like.

Speaker 3 (25:41):
Yeah, whatever, yeah, and so here here's what I would think.
Do the same one two step step one two process
that we saw in a lot of American law, which
is this common law. And when I say common law,
common law is the precedent based law that exists when
I do somebody over these ancient legal concepts like you know,

(26:04):
invasion of privacy or negligence, and so what's happened in
America is a process where court cases have yielded precedent,
and then legislators have come in and legislated the precedent.

Speaker 2 (26:19):
In other words, what I like about.

Speaker 3 (26:21):
That process is that when you have something that's worked
through a court system, it's been pressure tested in an
adversarial environment, and hopefully by the time the case is
all done, ratified or upheld in some way by the
highest court and the jurisdiction, and so you have an
actual legal wrong remedied successfully within the legal system, and

(26:42):
then the legislative process can come in and say, Okay,
this has established a very important principle. We don't want
to have people to just file a million lawsuits to
deal with it. We're going to pass a law that
codifies this legal precedent and applies it in a blanket basis.
That I think is a very nice way of pressure
testing and legal reform and then implementing it. You pressure

(27:06):
test it in the adversarial process, you implement it in
the legislative process. Now, the disadvantage there, Chuck, is very obvious.
It's there's a lag time. There's a lag time where
there are a lot of a lot of harm can happen,
and a lot of harm can happen in that lag time. Now,
over time, I think you end up with a better
set of regulations down the line. But how much cost

(27:28):
are you willing to bear in the interim, And that's
where all these prudential judgments come in. But then also
you have to realize there's costs if you start to
preemptively regulate in ways that are ham fisted or uninformed
and could have their own, their own cascading secondary effects.
So there's either way you go. There's trade offs you

(27:49):
have to you have to think through.

Speaker 1 (27:53):
Well, it's a we're we're a long way away, and
we're probably going to have more harm.

Speaker 2 (28:00):
Before before we get somewhere.

Speaker 1 (28:02):
I want to shift slightly to but I want to
stay in your your sort of legal lane. Talk about
the weaponization fund, and I don't know how any part
of this is legal constitutional, and forget let's let's assume
we're going to the money's never happening. But it's clear

(28:22):
that there's an attempt to say, well, but the but
the agreement that essentially provides blanket immunity for tax audits
up through twenty twenty five for the entire Trump family
and Trump organization.

Speaker 2 (28:37):
How is it that.

Speaker 1 (28:38):
That's a that is something that is in the hands
of the government to be able to do without Congress
ratify it.

Speaker 3 (28:48):
Yeah, there's nut chuck. There is nothing about this that
is legal. And there's just nothing about it that's legal.
The only quirk here is and the only complicator is
who has standing to walk into court to challenge it
to get it struck down, Like who is the injured
party that can go into court? The natural entity for

(29:10):
addressing this is Congress. Congress should jump all over this
because this is us.

Speaker 1 (29:15):
John Corny and tweeted the other day that maybe Congress
ought to essentially codify the decision to kill this fund.

Speaker 3 (29:22):
I totally think they should one hundred percent. I don't
know that they will, but they absolutely totally should. But
this is a really interesting case study and how you
just can't rely on the judiciary to do everything to
save this republic. The judiciary is an entity that.

Speaker 1 (29:41):
And Scott they basically got bamboozled on this one, as
the judges admitting and now wants to order them back.

Speaker 3 (29:48):
Well, and I think the judge's right to order them back.
I don't necessarily love all the retired judges making the
argument for it. But I think the actual decision to
reopen because there was a fraud on the court right.
And let me let me sort of explain that to people.
Our legal system rests on an adversary adversarial relationship. So

(30:10):
if I am the CEO of a company, for example,
and I sue the company that i'm the CEO of,
it would not a court would never in a million
years permit me to then hire the lawyers for the
company that I am suing and direct the lawyers for
the company to settle with me in the amount that

(30:31):
I want. There would be, you know, there would have
to be a separation where, you know, the corporation.

Speaker 2 (30:38):
Has a council that represents its.

Speaker 3 (30:40):
Interests and I, as the CEO, would have counsel that
represented my interests, and you'd have a real adversarial proceeding.

Speaker 2 (30:48):
Here, what you had was nothing of the sort.

Speaker 3 (30:51):
You had the president, the chief of the executive branch,
suing the executive branch for conduct that occurred while he
was running the executive branch to be defended by an
agency that he directs and runs.

Speaker 2 (31:07):
And so where was the other matter?

Speaker 1 (31:09):
Should it also matter that the person that's in charge
of that agency that he directs and runs was once
his own personal attorney.

Speaker 3 (31:17):
Oh, it's like the cherry on the top. I mean,
it's not the Sunday, but it is the cherry on
the top. And so there's no adversarial proceeding. And the
judge was obviously very very concerned about that, and I
think the Trump administration was staring a dismissal of the
case it was, or holding it in abeyance until another administration,

(31:39):
and they thought, what can we do to what can
we do to accomplish our goal? And so they negotiated
with themselves to reach this sweetheart deal. And honestly, I
would I truly think that Trump cares much more about
the release of liability than he cares for the slush
fund for other.

Speaker 1 (32:00):
Hundred thousand percent. Yeah, and that's why they better not
let that go. It's exactly one hundred. He has been
fighting over these audits for decade, or over a decade.

Speaker 2 (32:10):
I believe this goes back.

Speaker 1 (32:11):
I think his tax returns from at least twenty eleven,
twenty twelve.

Speaker 2 (32:15):
Right.

Speaker 1 (32:15):
Oh, they we're in the middle of an audit. It's
been it's been a constant. He's been in this fight
since before he ran for president at the first.

Speaker 2 (32:21):
Oh.

Speaker 3 (32:21):
Absolutely, And the potential liability, you know, again aliens one
hundreds of millions, so and another thing that's important for
people to realize. And you know, this is sort of
a deep cut in constitutional law. But the pardon power
only extends to federal crimes, so a president could only

(32:42):
theoretically parted himself for criminal liability. In other words, you know,
I'm going to preemptively pardon myself for any investigations regarding
to you know, regarding financial enrichment while in office or
something like that. That would apply only to crimes. The
pardon power does not extend to civil offenses. So even

(33:03):
if a president has pardoned his staff, pardoned himself, they
can all still be sued and maybe sued for a
giant amount of money if depending on the circumstances. And
so what is happening here is he's starting the process
of trying to use his power to relieve himself from
civil risk in addition to the power he already has

(33:26):
to relieve himself of criminal risk. And so what you're
looking at really is a full spectrum assault on the
rule of law. To try to take one man, the
President of the United States, and just remove him from
the operation of law every bit as thoroughly as King
George the Third was removed from the operation of law.

Speaker 2 (33:45):
You know. In seventeen seventy six.

Speaker 1 (33:49):
The President mewsed that there are other ways to compensate
people he believes were victimized by.

Speaker 2 (33:56):
Previous administrations in the Justice Department. Yeah, it's super easy.
Let's just file individual lawsuits and then the.

Speaker 1 (34:03):
Government, then the Justice Department quickly settles before anybody. What
can be done about that? How could Congress stop?

Speaker 2 (34:12):
Mean? Congress?

Speaker 1 (34:12):
I was reading this Congress basically in order. There was
a time where Congress always had to have a say
before a settlement payout happened. And then for efficiency purposes,
it was like, all right, you've got a essentially a
petty cash fund that we will allocate blankly, you know whatever.
It is a hundred million, two hundred million every every

(34:33):
fiscal year for you to settle lawsuits when you have
to settle them without having to come to Congress each time,
which in theory makes a lot of sense. But as always,
Donald Trump has been I've always said, the gift of
Donald Trump's two terms is that he's provided an MRI
for every loophole that exists that we've got to close.

(34:54):
He is providing the roadmap for reform for the legal community,
for the political community. Probably that should keep us busy
for a couple of decades.

Speaker 3 (35:03):
There's huge need for reform here because what Trump. There
is a prior to Trump, and there was a practice
that became known as sue and settle, where an allied
organization or friendly group would sue the administration. The administration
would then reach a settlement agreement on terms friendly to
the allied group without going through regulatory processes, without going

(35:27):
through congressional approval.

Speaker 2 (35:29):
And there was already criticism.

Speaker 3 (35:31):
And one of the things you got to everyone's got
to know about the Trump world is an enormous number
of their outrages are related to, adjacent to reminiscent of
previous scandals and previous administrations. And then the Trump administration
just kind of comes along and says, hold my beer,
you think that was bad, let me show you what

(35:52):
we can do next. So there was already a problematic
practice of these very sweetheart deals for ideological allies and settlement,
and so I think there's an obvious legislative remedy which
would inject the legislative branch into approving any settlement with
either a financial a direct financial payout above a certain

(36:13):
amount of money, or a settlement that has an economic
effect in other words, a regulatory effect above a certain
amount of money, and then that goes to Congress. I
think would be a extremely reasonable legislative reform.

Speaker 2 (36:27):
And yeah, it would require Congress to do some.

Speaker 3 (36:30):
Work, but you know what, Chuck, they should they they've
got the opportunity to cancel a few cable news hits
and do their real job.

Speaker 2 (36:37):
They at some point, you know, it's funny.

Speaker 1 (36:42):
I've proposed a class for incoming freshmen. Working with USC.
I've been teaching a class for them, a DC annex
class for visiting students that do a semester in d C.
And they've asked me to come up with a class
for incoming freshmen that may be housed in DC for

(37:05):
the first semester. And I said, how about just an
introduction to the Constitution like a citizens you know. And
it turns out, because it is amazing, we just don't
teach it very well. Number one, I kind of think
members of Congress, I'd love to you know. To me,
you shouldn't be able to take the oath until you've
read the Federalist papers improved. To me, you've read the
Federalist paper if you're going to be a member of Congress.

(37:26):
I'm not asking every American citizen, but I want every
gosh don member of Congress to read.

Speaker 2 (37:30):
Every Federalist paper.

Speaker 1 (37:32):
I think that's a minimum requirement that doesn't seem too onerous.

Speaker 2 (37:36):
I love that.

Speaker 3 (37:37):
I love that if you between the time of your
election and when you're scorn in, you have to be
able to certify you read the Federalist papers.

Speaker 1 (37:44):
Yeah, like some sort of certification you have to do. Look,
you got certification to be a real estate person. You
got to get pass the bar.

Speaker 2 (37:50):
You know.

Speaker 1 (37:51):
Look, you won Congress, great, but in order for you
to get your keys to your office and get your
voting guard, you just have to get certified in the Constitution.

Speaker 2 (38:00):
You know. And because it turns out a lot of
these guys and gals are.

Speaker 3 (38:03):
Not you know, here's here's a reform I don't know about.
If this is, this would have to be voluntary from
the political parties more so than imposed by legislation.

Speaker 2 (38:13):
Because of constitutional concerns.

Speaker 3 (38:15):
But as we're awaiting the next shoe to drop on
old Graham Platner, which.

Speaker 1 (38:22):
I feels like it's I mean, right, it's one of
those you're like, you can't You're better off betting that
there will be another shoe than not.

Speaker 3 (38:30):
I don't know of anything that's coming, but it is
like one of the most heavily rumored things happening right now.
And who knows if any there will be anything more
or not. I have no idea, but as we're watching
all this unfold, you know, here's here is one thing
that I think would be interesting is what are politics where?
What role do political parties or should they play? The

(38:52):
political party as the institution and candidate selection or eligibility.
And I think a very basic rule that a political
party could implement is to be on the ballot with
our d or r by you you have to pass
a comprehensive background check with the results to be published

(39:12):
in the public.

Speaker 2 (39:14):
And so in other words, you could probably do this
for federal law right for federal offices. At a minimum,
I would think.

Speaker 3 (39:21):
I, well, it would be hard because we were political
party is a private entity and so they can do
their own sort of membership rules and candidate eligibility, but
I would love to see. Look, you don't get to
be on the ballot through this private entity called the
Democratic Party the Republican Party unless you have either a
passed a background check or be at the very minimum,

(39:42):
endured a background check for which we publish the results.
And in that circumstance, what is this? It's basic due diligence.
Can you in the private sector get a job of
serious meaning, with serious meaningful responsibility without going through some
form of a background check anymore?

Speaker 2 (39:59):
Yeah? All right, you just triggered.

Speaker 1 (40:09):
Something that you've because I'm curious, would you represent me
in a case if I said to you, I think partisan,
state funded partisan primaries are a violation of equal protection.

Speaker 2 (40:25):
That's my theory.

Speaker 1 (40:26):
Why isn't Why isn't that the case? And here's my argument.
You're telling me that in order to participate in a
state funded not every state of state funded primaries, all
this stuff, But if you were going to if the
state is funding a partisan primary, how is it that
I have to join a private organization in order to

(40:48):
participate in this state funded event. How is that not
a violation of equal protection?

Speaker 2 (40:57):
That's a very good question.

Speaker 3 (40:59):
However, the reality is that so long as state funding
of private organizational opportunity, private organizational activities is undertaken on
a viewpoint neutral basis. In other words, we're going to
fund a primary system that any political party can join.
That's generally the way in which we deal with this

(41:21):
with the concept of state.

Speaker 1 (41:22):
How many states are funding party primaries? How many states
are funding libertarian party primaries?

Speaker 2 (41:28):
Yeah, that's a great question. That's a great question.

Speaker 3 (41:31):
Now the answer might be, well, we would, we would,
but we're going to ask that it would be undertaken
in the same day as the you know, one of
the major party primaries, for efficiency reasons or whatever. But
I think the general way in which we deal with
state funding of private activity, right is that we don't
if we put too many conditions on the state funding,

(41:54):
it stops being private activity. And so but at the
same time, there's a lot.

Speaker 2 (41:59):
Of elections private activity.

Speaker 3 (42:00):
Though the election election private club's nominee is private activity.

Speaker 2 (42:09):
So the Democratic Party is a private club.

Speaker 3 (42:12):
Look at it this way, and the state is choosing
essentially to subsidize the election process of this private club,
and the decision to subsidize that election process doesn't make
it a public club.

Speaker 2 (42:25):
It's still a private club.

Speaker 3 (42:28):
And so I would think the better argument is, let's
just not fund it. Don't fund it, right, That's the
simpler part.

Speaker 1 (42:35):
Let parties figure out either fund their own, you know,
do firehouse primaries, which literally were just that, you know,
you'd go to the firehouse to vote, and it would
be sometimes it would be you know, paid for by
the state. Part I mean, South Carolina famously in their
presidential primaries have actually only recently has the state giving
them some money. Basically, the state used to say, you

(42:56):
can use our system, but you have to pay for it, right,
And that's why the South Carolina presidential I think the
Republican presidential filing fee is an astronomical because the party
has to actually pay to implement implement the primary. But
so you think that's not a slam dunk the equal
protection argument, Hardison on.

Speaker 2 (43:19):
You know here, I look, I didn't get away raises
a single eyebrow.

Speaker 3 (43:23):
It raises a single you think you think, to paraphrase,
the rocket raises the people's eyebrow.

Speaker 1 (43:29):
But you don't you think it is a if the
state defended it, they would win.

Speaker 3 (43:34):
Yeah, yeah, now here would be an interesting thing if
a state pas.

Speaker 1 (43:38):
I mean, here's where I'm going to get into. I mean,
which is we could look, partisan primaries are killing us. Okay,
they're killing the political system. We know this, it's killing
the political system. Yes, you can say, well, the public
needs to do a better job participating in primaries. Yeah,
well who wants to be a member of these two
clubs right now?

Speaker 2 (43:57):
Yeah?

Speaker 1 (43:57):
Okay, Like, so I'm not to lecture the public on
I don't want to be associated with one of those
two clubs. God Batch, you I get it. That's why
the fastest growing party in America is no party. So
you know, I'm just looking frankly for a backdoor way
to get rid of partisan primaries.

Speaker 3 (44:17):
I would love to get rid of partisan primaries. And
you know what, here's a potential way. A state says
we'll fund a primary. We'll fund an open primary. Right
that is the only primary that we will fund. Maybe
you know, open primary with top two and the top
two go to runoff regardless of their party, et cetera.
And which which is a system I don't mind. Or

(44:40):
you could even have somebody say we're going to fund
an open primary that's ranked choice right, or you know,
and so you could fund a particular kind of primary,
and then if the parties want to do their own
little club thing, that'd have to come up with their
own dollars.

Speaker 1 (44:55):
And if they want to maybe put it put a denotion.
You know, it's up to the parties if they want
candidates to have their party label next to them.

Speaker 2 (45:02):
But that's on that's the party. That's between the parties
and the candidate. Yeah, but I'm I'm with you.

Speaker 3 (45:07):
You know, my our mutual friend Jonah Goldberg, he he
has written about like bring back the smoke filled room.

Speaker 2 (45:14):
Well, no, he's not wrong about that.

Speaker 1 (45:15):
I mean, now, in order to do that, we got
to bring money back out of the you know, it's
almost you got to ban outside money and let the
two political parties be be.

Speaker 2 (45:25):
The financial engines. Right.

Speaker 1 (45:26):
When the parties were responsible for money to candidates, they
had a hell of a lot more say over which
candidates got money.

Speaker 2 (45:34):
Right.

Speaker 3 (45:34):
Yeah, And people don't realize the way in which campaign
finance reform by d by disempowering political parties.

Speaker 1 (45:43):
Law of unintended consequences and epowering the super packs and
all that has really messed with the final was a
was well intentioned and absolutely catastrophic to catastrophic.

Speaker 2 (45:58):
And then this romanticism.

Speaker 1 (46:00):
I get the Citizens United is bad, but you don't
get the Citizen United situation without the initial McCain fine
gold passage.

Speaker 3 (46:08):
I think you Citizens United was completely rightly decided. But
I've heard that m Yeah, it's a rounding error in
importance in my mind compared to McCain fine gold parties.

Speaker 2 (46:20):
I agree with that. I want to I want to.
I want to close with two topics. One is about
the founders.

Speaker 1 (46:32):
You are not just a man of faith, but you
you made an early living essentially defending religious freedom for
whether it was on campuses in private organizations. And but
it goes back, and I want to to me you
you're more scholarly on this than anybody when it comes
to religious freedom and the founding of this country. There's

(46:56):
a lot of very religious people who say, no, no, no, no.
Our founders meant for us to be a religious nation,
meant for us to be a Christian nation, meant for
us to be And they say, you know, just look
at the background of all these founders. They were very
religious people. And I turn it and I say, well,
I actually have the reverse logic logic, which is, they
were incredibly religious people who decided not to allow for

(47:20):
the country to essentially choose a religion, And that to
me is proof that hey, you know, this is why
we're supposed to essentially be neutral on this, and that
the government is neutral on this. Where do you come
down on this? Yeah, that's you're understand what your forget
to come down? What's your understanding of what you think
the founders intent was. Here's here were very religious people

(47:44):
at the time who again chose not to insert it.
You know, it's it's in the First Amendment for a reason.
So let's let's take this into parts.

Speaker 2 (47:53):
Who were they?

Speaker 3 (47:53):
What did they want to do? So the who were
they part? You said very religious, and for some of
them that's true. I would say that most of them
would be very religion curious or very religiously informed. But
they were also not the kind of people you would
see right beside you in the pew and first Baptist
church every Sunday.

Speaker 2 (48:14):
They were.

Speaker 3 (48:15):
Many of them were more say High Church Anglican, some
were often functionally Deist, but they were very biblically and
religiously literate, and some of them were.

Speaker 1 (48:25):
More literate on the Bible then than collectively we are today.

Speaker 3 (48:29):
Then many pastors, but many of them were not particularly devout,
as we would categorize devout. So this was not a
religious revival. You know that when you're talking about the
American founding. It was a moment of extraordinary philosophical tumult,
a lot of religious argumentation, but this was absolutely not

(48:52):
the founding of a Christian nation, and intentionally so. And
one of the things you can do is you don't
you don't have to trust me on this. You can
go and read the key founders like Madison and Jefferson,
and I very much appreciate Madison in this very famous
memorial and remonstrance against religious assessments. This is a seventeen

(49:12):
eighty five document, so this is two years before the Constitution,
you know, the seventeen eighty seven constitution. It's a few
years before the Bill of Rights. But it really does
show what does Madison think this country is about?

Speaker 2 (49:28):
And what was that issue?

Speaker 3 (49:29):
Was going to be a money tax, money being used
to pay clergy, for example, and he calls this as
an establishment of religion.

Speaker 2 (49:38):
And this is this is the language. And I'm going
to read.

Speaker 3 (49:40):
It, because the proposed establishment is a departure from that
generous policy which offering an asylum to the persecuted and
oppressed of every nation and religion promised a luster to
our country and an accession to the number of its citizens.

(50:01):
So marinate with that for a minute and think about
its import on two huge debates in American life, immigration
and religion.

Speaker 2 (50:11):
And here that's wrapped up in the right in one sentence.

Speaker 3 (50:15):
And he says, and he says that this offering an
asylum to the persecute and oppressed of every nation and
religion promised a luster to the country. In other words,
it will increase our national greatness. And it says an
accession to the number of its citizens, it will increase
our numbers. And in that way, Madison is rebuking Christian

(50:37):
nationalism and sort of this hardcore immigration restrictionism at the
same moment at the same time. And I've become very
fond of that short passage because it's just perfect Twitter length.
There's not many like founding statements that are perfect Twitter length,
but you can just pop that up there, and the

(50:58):
reaction to it is really curious. Often a lot of
the more nationalists will just the kind of act as
if it never existed. It just of course it didn't exist.
And Jefferson has quotes that are even you know, more
explicit naming you know, Muslims and Hindus for example, as
people welcome in this country.

Speaker 2 (51:15):
And so, yeah, anybody ever single out atheists or no.

Speaker 3 (51:21):
That was that was a much more minority category back then,
much much more minority.

Speaker 2 (51:26):
But the.

Speaker 3 (51:28):
And so, you know, these are not hard questions to answer,
it's just that people don't like the answer when they
find it.

Speaker 1 (51:35):
Out right, I want to close with and I've I've
sort of challenged Sarah Esk around this too, and so,
and which is I think that it's pretty clear that
the Department of Justice should not be an executive branch
and or we have you know that it has to

(51:57):
be something more akin to the Federal Reserve in some form.
So maybe it does technically stay in the branch or something.
But look, you know, we were able to we were
able to pass a law about nepotism after the Kennedy
Kennedy right Attorney general. As I said earlier, Donald Trump
has given us provided us an MRI for all the
different loopholes we had no idea like a personal attorney

(52:19):
can end up attorney general. Now, look, I do think
we're going to see a Republican Senate summarily reject Todd Blanche.
I just I you know, I don't see there's there's
not forty five votes for him, let alone fifty. But
we'll see, right, we'll see if at one point is
this the President trying to shove both Bill Poulti and

(52:41):
Todd Blanche and say, you know, like with Matt get
when he did Matt Gates and Pete hagg Seth and said, Okay,
we'll sacrifice Gates as long as you give us hegg
Seth type of business. But it seems to me, no
matter what, that we have unfortunately politicized the rule of law.
And that isn't something that it's just going to somehow
go back. Everybody's going to say, oh, it's no longer

(53:04):
politicized now that Trump and Blanche are gone, right, just
like plenty of people on the right that think that
Biden and Garland were somehow weaponizing. But the point is,
the Department of Justice has lost credibility with a large
chunk of the country, and I think we're going to
have to figure out a way to it cannot be
this closely tied to a president.

Speaker 2 (53:26):
What do we do? I mean, I'd like.

Speaker 1 (53:27):
A federal reserve type of system, where it's different entities,
different term links. Maybe the Attorney General is always appointed
by the opposite party, you know, or something.

Speaker 2 (53:39):
You know.

Speaker 1 (53:40):
It seems to me we have to change this because
this will turn into a massive crisis if we just
don't believe the Justice Department anymore.

Speaker 2 (53:49):
So I'm going to be a little radical, Chuck.

Speaker 3 (53:51):
So I think that the actual issue here is that
the dependence and the sort of the the the ineffectiveness,
the corruption of the Department Justice is downstream from a
bigger issue, which is unitary executive theory. Now, unitary executive

(54:11):
theory is rooted in a problem that the anti federalists
identified with the seventeen eighty seven Constitution. And it's a
problem that see I now see what their argument was,
and I now see what the problem is, and it
is this George Clinton, who was the governor of New York,

(54:32):
was writing under the pen named Cato, and he was
an anti federalist, and he wrote a paper where he said,
the first sentence of Article two of the Constitution is
vague and inexplicit. And because it is vague and inexplicit,
those were his words. A corrupt, a partisan, a corrupt

(54:54):
president can pour his power and ambition into that ambiguity
is vague and explicit. Here's what the sentence is, that
the executive power shall be vested in a president of
the United States. Now that raises the next question, what
is the executive power? Okay, I think the best answer

(55:17):
to that question is that the founders and vision the
executive power is the is it is this and only this.
It is the power to execute laws passed by Congress.

Speaker 2 (55:29):
That's the executive power. But nobody says that explicitly, and it's.

Speaker 3 (55:34):
Not said explicitly, So then this becomes a question, Well,
wait a minute, the executive power because it is not
so limited to only executing the laws passed by Congress.

Speaker 2 (55:44):
It's its own thing.

Speaker 3 (55:46):
And what unitary executive says is that the executive power
is the power to control the executive branch. That core
to it is the power to control the executive branch.
That is, if the executive power means anything, that's what
it means. And I suggest that we should actually engage
once we get out of this miserable period of American life.

(56:08):
One of the things that we've seen is historically when
we get out of very dark periods, there's a period
of reform where we try to make sure enough.

Speaker 1 (56:16):
That's sort of how I try to be optimistic. I'm like, look,
it's going to be we probably have We're probably going
to need one more bad partisan president period before we
get to the enough is enough, the Samuel L. Jackson
snakes on a plane moment where we're just like, you
get them off the goddamn plant, exactly. Yeah, we're probably so,
I'm hoping.

Speaker 2 (56:36):
For mid thirties for this reform movement.

Speaker 3 (56:38):
I would love to And here is one of my ideas,
change that sentence in the Constitution to be something much
more limiting of the president and much more magnifying of
the power of Congress, to say that the power to
execute the laws shall reside in a president of the
United States. So then all of a sudden, if Congress says,

(56:59):
let's let me make it concrete. The difference if Congress
right now said the Attorney General shall answer also to
or prosecution decisions by political of political entities shall be
approved by and overseen by a House Committee or what
you name it. I mean, I'm just making stuff up,

(57:20):
or sure may regulated by bipartisan Congressional Board or something
like that. That would be struck down instantly, because if
that sentence means anything, it means the president controls the
executive branch, not Congress. Congress doesn't have the power to
control the executive branch. But if the power of the
president is to execute the laws passed by Congress, then

(57:45):
that flips the dynamic on its head, and it says
that Congress can, in fact regulate the executive branch, and
it's the president's obligation to comply.

Speaker 2 (57:54):
And ensure and guarantee the execution of that regulation. And
so what you do you as you see that that
sentence essentially puts Congress back in the driver's seat. And
one thing that I.

Speaker 3 (58:08):
Think a lot and not enough Americans appreciate is this
was not supposed to be actually coequal branches of government,
much less the executive supreme as it is now. Really,
you've made a list of one, two, three, By the way, yeah,
have you ever made the most important thing to exactly? No,
that's a great way of saying it, But you think

(58:30):
about it for half a second Congress right now, under
the Article one, you can't spend a dime, and let's
been appropriate by Congress, and Congress has the power to
fire the president and to fire the Supreme Court. I
don't know about you, Chuck, but I call the person
who has the power to fire me boss, right.

Speaker 2 (58:49):
Actually I used to say, who signs my expense report? Yeah? Exactly.

Speaker 3 (58:54):
So we need the boss to be the boss again.
And how do you make the boss be the boss. Well,
one of the ways you do it is you remove
from the underboss the president the capacity, the power, the
ability to claw to claw to the top.

Speaker 1 (59:20):
Short of that, though, I mean, would you change the
would you move the Department of Justice further away from
from the presidency in some form? Just when I say
further away, like the Federal Reserve? Like in theory, what
the you know? The well, an fbid doesn't count, but
federal reserve is probably the best example.

Speaker 3 (59:39):
Yeah, I would be open to interesting two interesting ideas
on that front. Although it would be very hard to
make it like the Federal Reserve without actual constitutional reform
because the Federal Reserve is sort of a legacy institution
that you know, dates back to God gosh, was it
second banking the United States?

Speaker 2 (59:56):
First banking United States and.

Speaker 3 (59:58):
Has a very very unique history that you cannot replicate
just by a legislative reform. If you're going to do
if you're going to pull the DOJ essentially out of
the executive branch to some degree, I think that would
probably require some constitutional reform, although I'd be super interested
in your smart legal listeners.

Speaker 2 (01:00:19):
Yeah, who you know had an alternative idea. You know,
it's interesting.

Speaker 1 (01:00:24):
You know, Japan has something interesting in their parliament where
they where the opposition just has a lot more potential
oversight authority and it's sort of accepted it. Just you know,
there's little things I'd like to see and in some
things you don't need a constitutional amendment. I mean, you know,
to me, the Oversight Committee in Congress, you know, I

(01:00:45):
could argue, shouldn't the Oversight Committee always be the opposite
party of whoever's got power like in some ways in
order to give it credibility? And if we always operated
that way, or you do it, or it's a that
or it's always equally bipartisan like the Ethics Committee, it
seems like there's certain things we could do that would
sort of at least attempt to restore the old you know,

(01:01:07):
essentially use Reagan as your north star trust but verify.

Speaker 3 (01:01:10):
Yeah, and you know other things that would be clearly constitutional,
such as funding only aspects of the DJs work and
defunding those aspects that you find corrupt until there's reform.

Speaker 2 (01:01:22):
So using that power of the purse.

Speaker 3 (01:01:23):
But the problem that we have right now, you know, Chuck,
I mean, gosh, you know this is better than anybody.
Congress is a font of like messaging legislation where you know,
a Congressman will file a bill and like this is
my stand and everybody knows it has no chance.

Speaker 1 (01:01:42):
I mean, Congress, you know, we talk about looking for
a president that can sort of rise above partisans. We
really need a Speaker of the House that cares more
about reforming the institution than than exact, you know, than
essentially executing whatever partisan promises the party made in order
to grab power.

Speaker 3 (01:02:01):
But can you imagine tip O freaking Neil ever agreeing
to be so subordinate to anybody as a.

Speaker 1 (01:02:11):
Trump think I feel that way about Jim Wright. I
don't think he felt like he would have done that,
And I don't you know, we never had Newt with
a Republican president. So we don't know, but I don't
I mean the new you and I both know. I
don't think would have just felt like he had to
always count cow to the to the president of his
own So we.

Speaker 2 (01:02:31):
Don't know, but i'd like to think you're right about Newt.
I think he would have.

Speaker 3 (01:02:35):
It would have required punishing him to get him to kowtow.

Speaker 2 (01:02:38):
I think he would write.

Speaker 3 (01:02:38):
He would have had to have suffered the consequences because
he wouldn't voluntary voluntarily as seed power.

Speaker 1 (01:02:45):
You know. And I think Pelosi, you know, she's probably
a little more pliant than Tip of her was, but
she was you know, she wasn't easily pushed around by
Obama or Biden. But still it does feel as if
at the end of the day, she still chose to
be a speaker for the Democratic Party, not a speaker

(01:03:07):
to say, hey, how do we for the House of Representatives?
And we really we really haven't had one of those,
probably arguably since Tip.

Speaker 2 (01:03:14):
Yeah, I would say Tip would be the last one.

Speaker 3 (01:03:17):
And the interesting thing about Tip is he was overseeing
a house which he always had a majority with the
d by his name, but not always a working majority
and not iologically right, Yeah, Reagan could command a majority
all the time.

Speaker 1 (01:03:33):
And in fact, it gets to actually burst one of
those myths that I always like to say. I said,
you know, Reagan and Tip weren't you know, it didn't
work together because they loved hanging out with each other
and telling bs stories. They both it was necessary the congression.
Conservative Congressional Democrats were part of Reagan's base, and the
Conservative Congressional Democrats kept Tip in the speakership, and so

(01:03:55):
Tip had to make sure to keep those guys happy.
Reagan had to work with, you know, because Tip was
keeping those guys happy. Right, It was sort of you
know it is it goes to the you know, Milton
Friedman example. It's an incentive system that forced them to
do good things together because they because that's what the
incentive system created, not because they wanted to.

Speaker 3 (01:04:17):
Well, you know, it's very interesting because in some ways
in the Reagan era and around sort of also at
the beginning of the Clinton era and other eras in
American history, we had a two party system that was
also simultaneously almost like a four party system because you
had a Democratic coalition that included Southern Democrats, who were
quite culturally conservative and sort of Midwestern populist Democrats. You

(01:04:40):
had north the Eastern Liberal Republicans and sort of the
Western libertarian Republicans. These were very different factions, and you
could play one off against the other. You could do
cross partisan coalitions. And then you know, now we do
not have coalition parties nearly to the extent that we
did before.

Speaker 1 (01:05:00):
We got rid of regionalism. Though in beer and in flavors, right,
we've nationalized everything. I mean, I sort of I missed
regionalism on that. We need more of it. Let me
get you out of here on this. The the the
mb you are. You are a huge NBA fan. Are
you as equally into college basketball?

Speaker 2 (01:05:19):
I was?

Speaker 3 (01:05:20):
I was, in fact, I used to be principally into
college basketball.

Speaker 2 (01:05:23):
I grew up in Kentucky, of course.

Speaker 3 (01:05:26):
But the NIL era, one and done's it's just it's
just too much for.

Speaker 1 (01:05:30):
But okay, but so I'm a I'm an nil optimist
in disrespect for college college basketball in particular. But I
see this now in football, which is the one and
done era sucked. Yeah, you know what's solving the one
and done era? And idea that these guys can make
a decent living for four years in college before. Like especially,

(01:05:52):
you know, take Ty Simpson who was drafted in the
first round, first round for the Rams, could have made
more money next year being the starter for the University
of Miami yep, than he is first round draft pick.
You know, it used to be these guys left early
because of the money. And yeah, I would argue, we're

(01:06:12):
seeing the quality of college basketball has improved.

Speaker 2 (01:06:16):
Dramatically in the last four years, and I credit and
I l no.

Speaker 3 (01:06:20):
Okay, so I'm going to I'm going to agree with you.
But with this, we still have one and done in
a different form the transfer portal. True, this is something
that's frustrating me. Like your team's overturned, like you turn over.

Speaker 1 (01:06:34):
You're a good libertarian, how would you handle this? Right,
You've got a legal I mean, freedom of movement is
something that labor law believes it well.

Speaker 2 (01:06:43):
At the same time, so our contracts.

Speaker 3 (01:06:47):
So in other words, you're going to get in an
IL deal, but you got to enter into a three
year contract.

Speaker 2 (01:06:52):
Well, I think that's fair.

Speaker 3 (01:06:54):
Yeah, And so what I would like to see is
I'm all in favor of than IL in the sense
that I like to see players compensated when they're the
drivers of the revenue, Absolutely compensate them.

Speaker 2 (01:07:06):
I also want to see.

Speaker 3 (01:07:07):
If you're going to compensate them, you're going to have
to professionalize the sport, and that means longer term contracts.
That means limits on player movement, which is part of
what every professional league does. And so if you have
it where it's both a combination of you get paid
and you're a free agent every single year, what you've

(01:07:28):
created is just permittent instability. And I think you're going
to see you know, you've seen legislation, you know, the
Cruise Bill, which is you're going to get one transfer
and then after that you'd have to sit out a year.

Speaker 2 (01:07:41):
I hate the idea that we would.

Speaker 3 (01:07:43):
Need federal legislation to implement what would be should be
a common sense.

Speaker 2 (01:07:47):
We're not going to get federal legislation.

Speaker 1 (01:07:49):
I think we're going to get collective bargaining before we
ever get federal legislation, and we might do that. Honestly,
maybe this is better to do let collective bargaining because
and then see what happens.

Speaker 3 (01:08:02):
Yeah, that might be where this ends up, because I
do think we're unsustainable with the new version of one
and done.

Speaker 2 (01:08:11):
All right, let me get you out of here. On
the court thing.

Speaker 1 (01:08:15):
Can we solve the regular season best NBA sucks versus
the playoff NBA's fantastic problem.

Speaker 2 (01:08:24):
Not at eighty two games. So that's what you would do,
is reduce You.

Speaker 3 (01:08:28):
Can make it better, like I do. Think the new
anti tanking rule is going to help. You can make
it better. But I think I don't hate the NBA
Cup like I hate.

Speaker 2 (01:08:39):
I liked it. I've enjoyed it. I'm and they've done.

Speaker 1 (01:08:43):
They've gotten me to watch the NBA earlier than I
normally have as a sports fan. I'm a football guy first,
and November and December I sort of, you know, gloss
over the NBA.

Speaker 2 (01:08:54):
It's early.

Speaker 1 (01:08:54):
You know, I'll tune in starting in January and February.
But NBA Cup has brought me. I mean, it is
exceeded in what you know Adamsilber wanted to have happened.

Speaker 2 (01:09:03):
So that's an improvement. What else would you do?

Speaker 3 (01:09:05):
Yeah, So, I think the younger NBA fan does not
appreciate that the intensity of the regular season is ramped
up considerably and with that injuries, which, by.

Speaker 1 (01:09:15):
The way, I read an old Rick Berry memoir that
was written in seventy two. He was complaining about the
eighty two game season then, and he was twenty.

Speaker 2 (01:09:24):
Seven years old.

Speaker 1 (01:09:24):
Okay, like, these guys have been complaining about it for
years and talking about the play and talking about how
much the extra games making the postseason really wore them
down and all of this stuff.

Speaker 2 (01:09:34):
So ironically, this isn't a new thing.

Speaker 1 (01:09:36):
Yes, you know, it really is something that they've NBA
players have been complaining about going back to the sixties
and seventies totally.

Speaker 3 (01:09:44):
But if you watch the if you if you could
find tape of an eighties or early nineties regular season game, yeah,
you would be shocked at how little effort there is
compared to a current regular season game.

Speaker 2 (01:09:56):
And it was three quarters.

Speaker 3 (01:09:58):
Of pickup basketball followed by a pretty intense fourth quarter.

Speaker 1 (01:10:02):
And only the Lakers Celtics matchups in the regular season
had intensity to them, right, those are the only two
ones that ever had intensity because they only met twice
a year in the regular season, and it always felt
like a oh magic at Bird Finals preview.

Speaker 2 (01:10:13):
Let's go up.

Speaker 3 (01:10:14):
Yeah, you know, it was like a gentleman's agreement between
the teams. We're going to play pickup hoops.

Speaker 2 (01:10:18):
It's going to.

Speaker 3 (01:10:19):
Be like an exhibition, and then we're going to we'll
bear down in the fourth quarter and then playoff.

Speaker 2 (01:10:23):
Basketball is fantastic.

Speaker 3 (01:10:25):
I just that I tell you that the current game
is so fast. There's a lot of interesting science now
that the way in which the game is played with
the euro step, the step back three, it places stress
on the joints in a way that the old form
of older forms of basketball didn't. So I think they
should really think about a shorter season.

Speaker 2 (01:10:48):
Well, look, it's either shorter season or larger rosters. You know.

Speaker 1 (01:10:51):
I look what NHL does you know? No player ever
plays more than eighteen minutes of a sixty minute game. True, okay,
I mean it's constant, you know. And I wonder if
you know, I've thought about this with the NFL. You
want to do twenty game season, fine, nobody can play
more than sixteen games. And then part of the strategy
is deciding when do you sit you know, you know,

(01:11:13):
you have to sit a starter four games?

Speaker 2 (01:11:16):
Which four games do you pick?

Speaker 1 (01:11:17):
Like, it actually adds some strategy to things. I love
that idea that you know, it's interesting, right, imagine you
have you know, Caleb Williams. You're a Chicago guy now, right,
so you're going to be watching these Bears a lot.
You have your twenty game season that they're going to implement.
But Caleb Williams can only play sixteen. You know, do
you gamble and assume you're going to be in the
playoffs and you just sort of lack it, you know?

(01:11:40):
Or do you know, do you decide you're going to
take the Tennessee Titans game that week and buy week
it and use the backup right?

Speaker 2 (01:11:46):
You know?

Speaker 3 (01:11:47):
Oh, Chuck, that idea is so brilliant. It is also
quite self interested because it's a full employment act for
podcasters because think think about the arguments, yes, four odd
quarterbacks running backs, the four game sample versus the sixteen game.

Speaker 2 (01:12:03):
Oh man, endless content and more jobs.

Speaker 1 (01:12:07):
You know, you increase the roster size, you know, to
go to you know, instead of expanding the league like
in the NBA, instead of instead of you know, adding
more teams, go to twenty five rosters and have the
up and down, have the flexibility and nobody can play
more than sixty games, you know, in a season, and
you just and you make that the standard across the

(01:12:28):
board and then it's strategy.

Speaker 2 (01:12:30):
A little bit intriguing. Intriguing, Yeah, favorite French. Always fun
to talk with you. That's great to chat check

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Interview Only w/ David French - America’s AI Liability Crisis & Constitutional Breaking Points

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