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And the Winner Is...Aired November 19, 2000 - 9:00 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANNOUNCER: Election Day, plus 12.
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JUDY WOODRUFF, CNN ANCHOR: The polls have closed in two states...
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ANNOUNCER: We've prognosticated, retabulated...
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UNIDENTIFIED JUDGE: The large counties having a manual recount...
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ANNOUNCER: ... adjudicated and litigated, and still no president elect. Tonight, a special look at where we might end up in the election that never ends: "And the Winner Is..."
Now from Washington, here is CNN's Jeff Greenfield
JEFF GREENFIELD, HOST: The outcome in Florida was never in doubt, the margin obvious to every observer at the state capital, however partisan. Yes, Florida State's 30-7 win over the University of Florida was a clear mandate for the Seminoles.
The political picture is a good deal murkier, which is why tomorrow, at 2:00 p.m. Eastern time, the Florida state Supreme Court will hear what may be the single most significant argument the state has ever heard. What they decide to do or not to do may decide who the next president will be.
In the next hour, we will look ahead to tomorrow's argument. We'll hear from our correspondents on what moves the two campaigns may have in mind. We will ask two federal lawmakers how the next president, whoever that is, could hope to get anything done. And we will explore where this remarkable post-election campaign might be heading.
If you think it's bizarre now, you may ain't seen nothin' yet.
But we begin in the ground in Tallahassee, Florida, with a preview of tomorrow's Supreme Court argument and CNN's Mike Boettcher.
UNIDENTIFIED MALE: Ladies and gentlemen, the Florida Supreme Court. Please be seated.
MIKE BOETTCHER, CNN CORRESPONDENT (voice-over): Seven judges, five men, two women, the supreme authorities of Florida law and maybe the final word in a presidential election. When lawyers for Vice President Gore and Governor Bush step before the justices, they will have an hour apiece to make their arguments for their clients, for their candidates.
Their legal briefs are already in the public record, almost two weeks of a very open debate is the record of their positions.
JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: No evidence of vote fraud either in the original vote or in the recount has been presented.
WARREN CHRISTOPHER, OBSERVER FOR GORE CAMPAIGN: The hand counting of voting here in Florida is proceeding under Florida law, as the secretary of state, herself, has acknowledged.
UNIDENTIFIED MALE: She made a very convincing case that she considered all the relevant equitable and legal factors that were vested in her discretion by the Florida Legislature, and indeed that she's following exactly the policy that was mandated by the Florida Legislature.
CHRISTOPHER: The secretary has discretion to delay the certification of the elections. She has authority to suspend the time to agree to a longer period of time.
BOETTCHER: The arguments will be as formal as the setting, steeped in the law and interrupted by direct questions from the judges.
CRAIG WATERS, FLA. SUPREME COURT SPOKESMAN: It's very common for attorneys, when they start making their arguments, to begin with the facts. Well, the justices by this point know the facts very well and you will often see the justices actually interrupt and say, let's cut to the issue, telling me what you think about this particular issue here.
BOETTCHER: When the chamber empties, the justices will hold their own debate in private, and their decision will likely come sooner rather than later.
WATERS: When a case is expedited, it, of course, gets the first priority of the court, and so they will set aside any unnecessary business to make sure that this is done as quickly as possible.
BOETTCHER (on camera): A senior member of the Gore legal team said he believes this high-stakes legal dispute could end here in the Florida Supreme Court. In a case where finality has been elusive, the word of seven justices could decide the presidency.
Mike Boettcher, CNN, Tallahassee.
GREENFIELD: And joining me now with some unique insights into the court argument we're likely to hear, Gerald Kogan, who was for 12 years a justice of the Florida Supreme Court until his retirement in 1998. He joins us from Miami.
With me throughout the evening, one of the best political watchers in the business, Stu Rothenberg, proprietor of the "Rothenberg Political Report."
Justice Kogan, how free, in your opinion, is the Florida Supreme Court tomorrow? That is, how wide-ranging is the possibility of what they might do?
JUSTICE GERALD KOGAN, FORMER FLORIDA SUPREME COURT: Well actually, I think that this issue is really a narrow one. And the issue that they're called on to decide is simple. And that is whether or not the secretary of state, Katherine Harris, exceeded her duties as granted to her by the state of Florida. Either she did or she didn't.
Now if she didn't, then they would stop all counting of the ballots, tell her that she can now go ahead and pronounce the final vote based upon what took place or as it was yesterday at 12:00 noon.
Now on the other hand, they can see she exceeded her authority under the Constitution, or she did what we call "abused" her authority, and, therefore, she is going to have to accept the ballots that are coming from three Florida counties, even though they come after the deadline, she said, and that she must accept those as part of the final count in Florida.
GREENFIELD: My question, though, is could they do something in between; that is, could they say, all right, Ms. Harris, wait for the hand counts and then come back to us later and we'll render a decision on the merits, or do you expect a fundamental decision one way or the other when this court decides in the next couple of days?
KOGAN: I think they're going to come down with a fundamental decision. They're well aware of the fact that this thing has to come to an end, and they want to get to it and cut to the chase as soon as they possibly can, and come out with an opinion in this case.
GREENFIELD: Now, just to be clear on this for those viewers who did not have the disadvantage of having gone to law school or being a lawyer, there is no testimony in this, right? It's strictly oral arguments by the different lawyers?
KOGAN: That's right. The Supreme Court does not do fact finding, that's up to the trial court. This is strictly an argument on the law and the facts as they have been developed in the lower court. GREENFIELD: Does it make any difference, or would it make any difference that a lower court judge in another matter said to Ms. Harris, go ahead and certify without the hand count; will that be any part of the decision-making process of these justices?
KOGAN: Well, I think that the court is going to come to its own conclusion regarding that. It doesn't necessarily bind the court nor does it mean the court is going to take that into consideration in coming up with this final opinion.
GREENFIELD: Now, Justice Kogan, I'm going to ask perhaps for a question that exceeds the red zone of candor, but you were on that court for 12 years, to what extent when those justices go behind closed doors, or even in their own minds, do you think they are taking into account the fact that they might be deciding a really key political question, namely who the next president is?
KOGAN: I'm sure they're all aware of that fact. You know...
GREENFIELD: No, but what I mean is -- I'm sorry -- what I mean is does -- do you think that they are -- that judges in general on a matter like this can put their political preferences aside and really focus on the law, when they know they might be picking the next president?
KOGAN: I don't want to speak for judges all around the country, but I know that I can speak for this group, because I've worked with most of them for many years and I know how they do things, and regardless of what their political philosophy is, these people want to come up with an opinion and a decision in this case that's going to be fair to everybody. They're not going to let politics bother them and...
GREENFIELD: We're down to our last -- I'm sorry -- we're down to our last 30 seconds and I just want to get this out, if they tell Katherine Harris, count those hand-counted ballots, and she doesn't, they might be able to hold her in contempt, but can't the governor and the canvassing board certify anyway?
KOGAN: I'm sure that in their opinion they're going to take care of this and make sure that whatever their opinion is, that it's carried out. We have yet to have in Florida, in modern times, a public official who has defied an order of the court, and I don't think either Katherine Harris, or the governor, or the canvassing board, or the state legislature, will go ahead and do something contrary to the order of the court.
GREENFIELD: All right, Justice Kogan, thank you so much for being with us on this Sunday night.
When we come back: Have the Bush and Gore campaigns gone to the mattresses?
GREENFIELD: We know what's at stake for Al Gore and George W. Bush. But where might the campaigns be going from here?
From Austin, Texas, with the Bush campaign, CNN's Jeanne Meserve. And following the Gore campaign from here in Washington, CNN's Chris Black.
Jeanne, the language certainly got hot this weekend. And I was talking to Boyden Gray on the air last night. And he said: You know, we're willing to take this all the way.
Just what does that mean? How far are they willing to go to get this presidency?
JEANNE MESERVE, CNN CORRESPONDENT: I don't think we really know, Jeff. They aren't revealing a lot of their options at this point. They're waiting to see exactly what the Supreme Court rules. If they work like most legal teams work, they probably have an array of options on the table. And they'll settle on one after they know the specifics of how the Supreme Court has sliced and diced its decisions.
There is also the public-relations elements of all this: how the Bush campaign feels the public is going. And there's the matter of the candidate and what he has a stomach for. And I can't tell you whether George W. Bush has looked in the mirror and had a conversation with himself about exactly how far he wants to push this. Just seconds ago, I did get off the phone with a Bush aide who describes the governor as fired up and upbeat, as always.
When I said, "Is he ready to throw in the towel?" he laughed and said, "Absolutely not." He's unflappable at this point -- Jeff.
GREENFIELD: Now, Jeanne -- Jeanne, when we hear Tom DeLay say the Democrats are stealing the election, when we hear Bush people challenging not just the mechanics of the hand count, but its honesty, that sounds to me like they're preparing to take this all the way, perhaps, to a congressional challenge to the electors if Florida winds up in Gore's camp.
MESERVE: Well, I think what they're doing, Jeff, is making the case, so they can keep that option open. So if they do to eventually go in that direction, they will have laid the groundwork. The arguments will have been set. I don't -- I'm not willing to go further with you to say that: Yes, they have decided they're going to take it that far.
GREENFIELD: Chris Black, there's a sense, I've been hearing, that among the Gore -- or among some Democrats -- if the hand count goes against them, they haven't made up the vote at that point, that there are Democrats who will be telling Gore: That's enough. Don't contest anymore.
What's your sense? What have you been hearing?
CHRIS BLACK, CNN CORRESPONDENT: Well, the Gore campaign -- the legal and the political strategy for the Gore campaign is really seamless. Everything is riding on this Florida Supreme Court this week. They need the court to uphold Florida state law and say the recounts have to considered. The recounts have to go forward.
If the recounts go forward, they are confident, Jeff, that they will find the votes. And, also, the court needs to uphold the standard of voter intent. They have already found hundreds and hundreds of ballots in Broward and Palm Beach counties. These ballots have been set aside, because they've been challenged, that have indentations next to Al Gore's name. So they are still confident. They have -- they believe that the votes are there, and if the courts hold them up, they will win.
Their really is no plan b for the Gore campaign. If it...
GREENFIELD: OK. That's what I was -- I'm sorry, that's my question, which is: Under Florida law, they do have the right to contest the election, even after certification. As far as you've been hearing, that's not in their playbook? Or not yet?
BLACK: Well, I -- it depends upon what you mean by that. I think they will play out the string in the state of Florida. So long as they are allowed to do the recount and present those -- the recounted results to the secretary of state, and have them considered, they will sort of play that out. Will they go further? It's unclear, but it's unlikely.
GREENFIELD: Jeanne, what has the reaction been from the Bush camp to this weekend of really escalating rhetoric -- I mean, using words like "stealing the election"? Was this a conscious, clear, deliberate strategy to throw the hand count into disrepute?
MESERVE: Yes, I think, Jeff, that it probably was. I mean, there was a sense last week that the Bush people were a little slow off the mark in responding to the stuff that was coming out of the Gore camp. I mean, certainly, Wednesday night, when the vice president came out and made his nationally televised remarks, they were flat-footed here. They were amazed that this had happened.
And I think there's a realization that they had to be a little bit more aggressive in presenting their case. And that meant getting more information out there, getting more people out there, and being a little bit stronger in the language they're using. And I wouldn't say it's a little bit stronger. It's a lot stronger, as you have mentioned.
GREENFIELD: Stu Rothenberg has a question for somebody.
ROTHENBERG: Jeanne -- yes, I've got a question for you. Publicly, the Bush campaign has been reticent to raise the question of politics of the Supreme Court members. They haven't gone full-out there and said that this might be a political decision. Privately, are they talking about this at all. Are they worried about the partisan make-up of the court?
MESERVE: Well, I think, even publicly, they have raised it a little bit. They voice the hope on talk shows today -- some of the surrogates for the campaign -- that they hoped this wouldn't be a political decision. But they pointed out the fact that these were Democrats on the court. I haven't heard them go any further than that.
GREENFIELD: All right. Jeanne, Chris, thank you. I hope you guys are on overtime.
We're going to take a break. And when we come back: What happens to the government once this fight ends? We will talk with Republican Senator Kay Bailey Hutchison and Democratic Representative Nita Lowey.
GREENFIELD: Twelve days ago, more than 100 million Americans went to the polls and, in a clear, firm voice said: jump ball. With that kind of deadlock, when the new president, whoever that may be, actually tries to begin governing, he may think about demanding a recount.
JAMES THURBER, AMERICAN UNIVERSITY: This is the closest election we've had since the founding of the Republic, if you take House, Senate and presidency.
GREENFIELD (voice-over): And, says American University professor James Thurber, that could spell big trouble for the next chief executive.
THURBER: There's no perceived mandate. There's still accusations of elections being stolen, in some cases. There's an opposition party that feels that in two years or four years they'll get power back.
So there's -- it sets up a confrontation and it's very difficult.
GREENFIELD: Moreover, this deadlocked Congress after nearly 20 years of growing incivility in Washington.
UNIDENTIFIED MALE: You know how to win votes the old-fashioned way, you steal them.
GREENFIELD: A bitter 1985 battle over a congressional seat in Indiana.
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REP. LEON PANETTA (D), CALIFORNIA: They were counted. As a matter of fact...
UNIDENTIFIED MALE: They were not counted. Some were not counted.
PANETTA: Guess what...
(END VIDEO CLIP) GREENFIELD: All-out political war over the nominations of Robert Bork and Clarence Thomas.
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SEN. JOSEPH BIDEN (D), DELAWARE: Senator...
SEN. ORRIN HATCH (R), UTAH: No, wait. Let me just finish.
BIDEN: I'm going to let you finish and then I'm going to cut you off real quick!
(END VIDEO CLIP)
GREENFIELD: To Lee Hamilton, a Democrat, who served in the House for 34 years before his retirement two years ago, both the closeness of the election and the political climate impose a clear obligation and clear limits on the new president.
LEE HAMILTON, FORMER U.S. REPRESENTATIVE: I don't think there's any demand from the American people for big-time change here. Indeed, the whole election showed these two men moving to the center with their proposals: not moving to the left or the right. And so they were picking that up. They understand it. They're both very good politicians. Either one of them is going to recognize this.
He's going to have to bring into his administration people from the other party.
AL GORE, VICE PRESIDENT OF THE UNITED STATES: If I turn out to be successful, I'll be ready to travel to Governor Bush's home.
GREENFIELD: And, says Hamilton, the victor will need the help of the vanquished.
GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: And I join him in pledging that regardless of who wins after this weekend's final count, we will work together to unite our great country.
HAMILTON: The risks of resentment and recrimination coming out of this election are very strong, and what the leader has to do is to try to overcome that. Not only must the winner be graceful in victory. The loser must be gracious in defeat,
The worst result here is for the loser to go before the cameras and say: "I was robbed. They stole the election."
GREENFIELD: And even if the loser is ultimately accommodating, his supporters might not feel the same way.
California Democrat Maxine Waters, for instance, makes her feelings about a potential Bush presidency unmistakably clear.
REP. MAXINE WATERS (D), CALIFORNIA: No, I -- if he wins, I will never be able to say he did it fairly and squarely.
GREENFIELD: And should a potential Gore administration have Republicans in its Cabinet?
WATERS: No way. I do not expect Gore to put a lot of Republicans in his Cabinet, and I know Bush wouldn't put a lot of Democrats in his Cabinet. I mean, it just doesn't work that way.
GREENFIELD: And what would she say to an Al Gore attempting to govern from the center.
WATERS: We are not going to let you off the hook, that there are issues that you must deal with. It's the right thing to do, and we expect you to do it.
GREENFIELD: Longtime conservative leader Paul Weyrich takes a more pragmatic views.
PAUL WEYRICH: There is no point to denying reality. I mean, he can't come in as if he won a landslide victory and that this is Ronald Reagan in 1980 and that, you know, he's going to come in with a huge agenda and be able to pound the Congress into submission. It's not going to happen.
GREENFIELD: In fact, he says maybe George W. Bush might be well- advised to think about whether he even wants to win.
WEYRICH: But for my concern for the deteriorating military and for the federal judiciary, if I were advising Bush, I'd tell him to walk away from this, because whoever gets this, absent a major national crisis where he has a chance, in effect, to remake his presidency, he's probably going to not walk away alive after four years.
GREENFIELD: And we're going to get a quick first reaction from our guests, and then return for a real conversation. We're joined from Dallas, Texas by Republican Senator Kay Bailey Hutchison, and from our New York bureau, Democratic Representative Nita Lowey.
Senator Hutchison, would you advise your governor it's going to be so bad that he might do better to just say, no, maybe I'll wait a few years? (UNINTELLIGIBLE) that bad?
SEN. KAY BAILEY HUTCHISON (R), TEXAS: Jeff, no. It's not going to be that bad, but it's going to be tough. And I think with the margins that we have in Congress and with the margin of the election of the president, I think clearly there's going to have to be a reaching out to the Democrats, both in Congress, and I would think probably in the top echelons of government.
GREENFIELD: So, that means Democrats in the Cabinet, do you think, if Bush wins?
HUTCHISON: I would imagine that there will be a Democrat in the Cabinet, and you know, possibly in other places where there is someone who brings something very important to the table. GREENFIELD: Ms. Lowey, you heard your colleague, Maxine Waters. You know she minces no words. She said if George Bush wins, she will never be able to say he won fairly and squarely. Doesn't sound like an encouraging word about the post-election scrum accommodation. What's your reaction to that?
REP. NITA LOWEY (D), NEW YORK: Well, I would hope that Democrats and Republicans could get together after this election, if, in fact, they are convinced that the votes were counted fairly, and really work on the mandate that the American people have put before us: education, health care, common-sense gun safety legislation, reduction of estate taxes and getting rid of the marital tax penalty.
We can do it and we should do it. In fact, we should do it now during this lame-duck session.
GREENFIELD: Well, I don't mean to parse words here, but you said, if the votes were counted fairly. Now, if a lot of Democrats or a lot of Republicans, for that matter, think that the winner won because the votes weren't counted fairly, what happens then?
LOWEY: Well, that's why this process is so very important, in my judgment. There's really no hurry. The president doesn't get inaugurated until January 20th. Vice President Gore has made it very clear: just recount the ballots -- if necessary, count the whole state -- and the person who gets the most votes will win.
Let's remember that Al Gore has won the popular vote and if the election hinges on Florida, I think it's fair that both Democrats and Republicans should fell comfortable that every vote is counted.
We're going to take a break in a minute, but, Senator Hutchison, I wanted to ask you, are you a little uncomfortable with some of the rhetoric that you have been hearing, stolen the election, a Gore coup d'etat? You generally don't talk that way. Would you counsel people on all sides, including your own, and maybe tamp it down a bit?
HUTCHISON: I don't think we need to have that kind of rhetoric. I think there have been mistakes made in this election. I think everyone would say that, but I don't think we have to use words that we may regret later because, in the end, I think both sides are going to fully preserve their rights. And I think they should, and I think we should expect that.
But, in the end, there will be a winner declared and regardless of what you think of the process, we're going to have a president and we're going to have to work with that president, whoever it is.
GREENFIELD: We're going to find out how and if we can do that when we get back. And Stu Rothenberg will be part of the conversation.
Please stay with us.
(COMMERCIAL BREAK) GREENFIELD: And we're back with Senator Kay Bailey Hutchison, Republican from Texas, and Representative Nita Lowey, Democrat from New York. We're also joined by Stu Rothenberg, who knows a disturbingly impressive amount about American politics and government.
Stu, how does anybody claim a mandate with a 50/50 tie?
ROTHENBERG: Well, Jeff, I think it's a question of what the candidates talked about during the campaign. And I'm talking about the presidential candidates, but also candidates for Congress. And if you listen to the candidates, who listened to the voters, they told me that they were -- wanted to deal with issues like health care, education, preserving and protecting Social Security.
The problem is, they have a mandate to address these issues, but I don't see a particular mandate for a particular solution to each of these. So when Representative Lowey says that we have to work on a mandate, the question is: Exactly what is the shape of that?
GREENFIELD: OK, Representative Lowey, that's a good challenge. I mean, it certainly is true: Yes, we'll work on it, but work on it by privatizing part of Social Security or not, by George Bush's proposal or Al Gore's? It's pretty clear to me that the public did not issue a resounding demand for either of the their programs.
LOWEY: Jeff, that may be true. But there's concrete action that could be taken. For example, as you well know, the work on the appropriations process should have been completed by October 1. The Republican chair worked with the Democrats, worked with the White House to put together a proposal that they agreed on. In fact, at 1:00 in the morning, they toasted their success. And then a very combative Tom DeLay said: No way. This compromise will not stand.
And so here it is, approaching Thanksgiving, and we haven't completed the work from last year. Well, that kind of combative, argumentative, Republican leadership just won't work. The Republicans and Democratic members of the committee got together. Everyone didn't agree on everything.
But there are some outstanding proposals for education, for health care, the National Institutes of Health. And if we could work that way, we may not agree on everything, but we can put together solutions for modernizing our schools, for Social Security. I have confidence in the reasonable people on both sides of the aisle.
GREENFIELD: Senator Hutchison, this brings up an interesting point, because you guys are coming back into session next month, right?
GREENFIELD: Does the atmosphere of this post-election -- I'm not sure what to call it -- combat -- let's be gentle -- is that going to have an impact on what you folks are going to try to do next month?
HUTCHISON: I think it will be minimal what we will do next month. I think we will pass these appropriations bill. But I don't think we're going to pass the -- some of the other major things we were looking at. But I do think, Jeff, that there is a way for us to do some things on a bipartisan basis in Congress.
For instance, a bipartisan Congress passed the elimination of the inheritance tax. The bipartisan Congress eliminated the marriage penalty tax, though President Clinton didn't sign it. I think, with a new president, you will have the bipartisan cooperation on these tax issues that we've already shown. And secondly, I think you can draw a core of the things that members of Congress and senators who were running promised -- and the two presidential promised.
And I think you will be able to get a core from that for Social Security reform, for prescription drug issue option, and for some kind of tax relief and for more spending in education.
ROTHENBERG: Senator, I have a question for you -- as well as, I hope Representative Lowey will respond to it -- I had a conversation recently with Senator John Breaux, Democrat from Louisiana, and he said to me he thinks it's very important as to which first issue the new Congress addresses, an issue where they can have a significant success.
He suggested to me: maybe an issue like education, one where both parties can come together, where there's not built-up rancor. Is there an issue that you think the new Congress could start with, to get you all off on the right foot?
HUTCHISON: I think, probably, the Medicare or Social Security. Now, I know Social Security is big. But John Breaux and Bill Frist have worked on Medicare and the prescription drug option, I think very well. There's a plan that is pretty well, I think, put together that would be a bipartisan plan. I think Social Security, we would be very close on that, again, with Democrats and Republicans.
If I were coming in next year, and I were president, I would have a bipartisan committee in Congress -- a kind of an ad-hoc committee -- that would have representation of the different factions in both parties. You have your more liberal and your more conservative factions in both parties. Have all the representation there so that everyone has a piece of what would come out. And let them put together a plan that they could present to their respective caucuses, that the president could work with them to do, and I think we could have some successes.
ROTHENBERG: Representative Lowey, would you respond to that? Do you think that Social Security and Medicare is a good first step, a good issue in which you two, the two parties could get together?
LOWEY: Well, I certainly agree that we should get the moderates on both sides of the aisle together to talk about where we should begin. I would suggest that we begin with the bipartisan patient bill of rights that has already passed the House and has overwhelming bipartisan support, that has really just been sitting there, because the Republican leadership doesn't want to let it pass.
Secondly, there is strong bipartisan support for the modernization of our schools. Nancy Johnson and Charles Rangel have a bill. I have been working on this issue for a very long time. It's a national problem -- over $300 billion. We have an obligation not to just talk about education, but to become partners with the states and do something about it. And when it comes to Social Security and Medicare, I do believe that we could sit down and work something out. It just might take a little longer than the other two issues that already have bipartisan support.
GREENFIELD: Now, I think I ought to remind us all that we still haven't got a president yet. And in that context, before we move beyond it, you know, both parties have members in Congress that are alerting you folks to the facts that the ultimate arbiter or electoral votes is the United States Congress.
Now, Senator Hutchison, a prominent Bush campaign fellow said on the air last night -- Boyden Gray -- they are prepared on January -- early January -- if they think that Gore is the Florida victor by foul means, they are prepared to challenge the electoral vote when it is counted from Florida. Are you -- where are you on that? Do you think that's a possible stand for you and your fellow Republicans.
HUTCHISON: Jeff, when I read the Constitution, I think it's very clear that the selection of electors is a totally state prerogative. And unless there is some kind of fraud or federal rights' issue, I think this is going to be decided in Florida. And I think the Florida legislature has a better chance of dealing with this than Congress does.
GREENFIELD: So, in other words, if it comes out to be Gore from Florida, you would not join in a challenge to those electors.
HUTCHISON: I think the Florida legislature would be the last step. And I think the Florida legislature is going to look at the Florida election to determine if the selection of the electors is pursuant to Florida law. And I think the last resort is going to be within the state of Florida. And I think the legislature would act first, before there would ever be a constitutional question that would come either through the federal courts or to Congress to turn back something that the Florida legislature had approved.
GREENFIELD: Ms. Lowey, you will note that Senator Hutchison used the phrase "Florida legislature," if that suggests that's that a Republican body. If they were to, say, overturn the state Supreme Court direction or ignore what the state Supreme Court had to say -- which the Constitution says they could do -- they are the ultimate authority -- would you be content with that: a decision by the Florida legislature that Bush is the victor?
LOWEY: I think it would be very unfortunate if this case ended up in the Florida legislature. Right now, the -- both sides are proceeding before the Supreme Court. And it would seem to me that the Supreme Court of Florida is the ultimate decision-maker. And I would hope that both sides would respect that. I do agree with Kay that the talk about brining it to the Congress and using that authority is just not constructive in the current setting.
And so I would support, it seems to me, most of the current wisdom that the Florida Supreme Court is the ultimate arbiter.
GREENFIELD: OK. I think we note both bipartisan language and perhaps a small divide here on who the ultimate Florida authority is. We will wait and see.
My thanks to Senator Hutchison and Representative Lowey. You are very good to come in on a Sunday night, and I appreciate it.
When we come back: a roundtable that will examine the increasingly plausible possibility that this fight could leave the gravitational pull of the Earth.
GREENFIELD: Well, one winner we can name, the most overused cliche of the month. I have not heard so much talk about uncharted waters since they canceled "Gilligan's Island." But, friends, if you think it has been weird so far, just wait.
To talk about what could lie ahead, I'm joined by Alexis Simendinger of "The National Journal," and by Ramesh Ponnuru of "The National Review. And Stu Rothenberg is here as well in what -- in a shameless lunge toward popular culture, I will call the things we never expected to see after a presidential election.
Now, I want to begin by showing you something that is not real, and for those of you who take this literally, here is a newspaper headline of what might be following in the days ahead, if we can put that up on the screen, and you will see it says "Nation Plunges Into Chaos," it reports "thousands dead, Al Gore fleeing into liberated territory, Bill Clinton declared president for life." Don't go to your phones, friends, this is a story from "The Onion," a Madison, Wisconsin-based satirical newspaper, which may have a bettter clue as to what's going to happen -- I hope not -- than the rest of us.
But let's just start talking about this, and just a minute ago, we heard Senator Hutchison talk about how the Florida legislature should be the ultimate authority. Now, what is she talking about?
ALEXIS SIMENDINGER, "THE NATIONAL JOURNAL": Well, she's trying to figure out a way to make this end in Florida, and of course, she wants to give a sovereign state its due, and in her political party, that would be the right thing to say, that it ends in Florida, Florida has its say, and then everyone deals with the results.
GREENFIELD: But I take it part of this is that in the Constitution it says if by a certain date -- actually, it's a federal law -- by a certain date, the state can't figure out who's its electors are, the state legislature can decide pretty much it wants. Is that your understanding, or do you think that could happen?
RAMESH PONNURU, "THE NATIONAL REVIEW": Well, I mean, I think that we've all learned not to rule anything out over the last couple weeks. I mean, it's not just that she wants to end it in Florida, but she also wants to end it in a legislature that's Republican. And, you know, the Supreme Court has mostly Democratic appointees, so it would make sense that Lowey would be talking the Supreme Court making the final determination.
GREENFIELD: So, Stu, this raises yet another possibility that I think -- oh, I don't know -- two weeks ago, none of us in our most fevered imaginations would have thought of, right?
ROTHENBERG: Right. We had been talking that the -- may be the end of the state Supreme Court, would be the final decision, somehow it might get to the federal courts, now we're talking it to the state legislature, or possibly the Congress. Jeff, your mention of "Gilligan's Island," though, reminded me that I think we do need a song or a jingle about what's happening now. That might the American public's attention.
GREENFIELD: Well, it's a thought, Stu, but I don't think we have time to compose it here.
But what I'm getting at here is...
GREENFIELD: Well, that's possible.
What I'm getting at, though, is here again, just this very first possibility, the state Supreme Court says to Ms. Harris -- and we don't know that they're going to do this -- go count those hand- counted votes, and the hand-counted votes give Gore a victory, and maybe she doesn't want to be in contempt of court, so she even says, OK, this is the final number, whereupon the Florida legislature says, no it's not.
SIMENDINGER: And the rationale might be, I would say, that the Bush campaign has already laid the groundwork for, don't mess around with those military absentee ballots, you've got to count them all, you have to count them whether they had a postmark or not. You can imagine since they have made such a fuss about that this weekend that they weren't just trying to get public support in their camp, they were also trying to lay the groundwork for the mischief that may be, in their mind, accomplished if they're thrown out.
ROTHENBERG: But, Jeff, that's a recipe for the Democrats going absolutely bananas, arguing that it's a political coup d'etat by the Florida Republicans, the Florida legislature. I mean, that more than almost anything else other than Tom DeLay taking over the process would cause the Democrats to go ballistic.
GREENFIELD: Well, here's the point, though, this, Ramesh, is your magazine, "The National Review," a magazine -- I think it's fair to describe -- of conservative persuasion, and here is their headline -- I don't know if you can read it -- it says "Thou Shalt Not Steal." That is language that we have heard more and more from the Republican side of it, Tom DeLay said the Democrats tried to steal, Bill Bennett -- I mean, to some extent, isn't that laying down a predicate for saying whoever -- whatever the court says, these hand-counted votes are fatally flawed, let the legislature figure out what to do?
PONNURU: Well, you'll notice it's just a cautionary notice, it's not accusing anybody of anything, just saying stealing is a bad thing. I mean, it's -- I mean, the sentiment -- it's not just Republicans. I mean, I think it's also fair to say you've heard the word occassionally -- less often -- from Democrats. But the sentiment of Republicans, even if they're not saying it publicly, is what Gore is trying to do is steal the election.
GREENFIELD: OK, and that would open up a lot of possibilities.
Now, I want to turn to another possibility down this road, and that is the so-called "faithless elector." If Bush gets the Florida votes, that's 271 electors; if two of them abstain, vote for John McCain, vote for whomever they want, it deprives him of a majority and it has to go into the House. I mean, we would say in the past this was not possible, but two out of 271?
ROTHENBERG: Right. Normally, these Electoral College majorities are not quite this narrow this margin. It's possible. You know, we hear rumors about people doing research, Bob Beckel doing research on this to see whether he can find some people who he might -- electors who he might pull away from Bush. I think it's extremely unlikely, however. These tend to be partisans, loyal party-types.
But, Jeff, you're right, the fact that, you know, with one or two, it could change the whole outcome, forces you to think about it, doesn't it?
SIMENDINGER: Then the pressure, I think -- I think it's actually not entirely unlikely if you consider the fact that it has happened a dozen times in the past, that there might be an equation in which these electors are thinking that they're representing the sentiments of the popular vote, for instance, or if, in fact, they think something was stolen. But then the pressure really comes on the candidate who presumably has been the victor to lay the pressure on those members of their party who may feel strongly that this is the way to go and say, stop, desist, do not do this.
GREENFIELD: All right, we're going to take a break, and we're going to explore some more of the, I guess I'd have to call it "we're going to Disney World" aspect of where we're going in December and January.
We'll be back in a minute.
GREENFIELD: And we're back with our panel to look at what might happen in the coming days, weeks, months, years -- I don't know.
Here is a scenario that's interesting, I think -- happened last in 1876. Let's say the Florida legislature sends a slate of Republican electors to the Congress, let's say the attorney general, a Democrat, who thinks was an (UNINTELLIGIBLE) of the Supreme Court's power, sends a slate of Democratic electors to the Congress of the United States.
As I say, it's been 125 years, it would be, I guess, a majority vote in both houses, and if Slade Gorton loses to Maria Cantwell, the Senate is 50-50 with Al Gore sitting in the chair that first day of the new session, and I asked a Senate historian whether Al Gore could vote to break a tie and he says it's completely unclear. What happens?
ROTHENBERG: If he doesn't know, how are we going to know?
GREENFIELD: No, no, I'm not asking you for what happens, but I'm asking you -- I'm asking you to think about -- at this point, I think all the jokes, and the ha-has, and the "Saturday Night Live"s, now you're talking not about blood in the streets, or that "Onion" headline, but some real trouble, aren't you?
ROTHENBERG: Well, that's why, Jeff, that it's imperative that this gets decided, the process takes care of it sooner rather than later, because you're right, once we go past the Florida Supreme Court, there are a number of possibilities, all involving conflicts between the executive branch and the legislative branch, within the legislative branch, the states, the federal government. There are endless possibilities that are all disastrous.
GREENFIELD: And one Republican mentioned -- I thought it was a very valid point -- that, you know, if Al Gore winds up as the president, the transition for him is relatively easy, he walks, you know, across the West Wing and he's in the White House, but for an outsider, a Texas governor, even with all of the first Bush administration's people lining up for jobs -- I mean, if he doesn't know he's president until December 18, or January 6, this doesn't bode well for a new administration, does it?
PONNURU: No. I mean, he's got -- you have to have time to actually undertake the transition. And at one point is he going to be recognized as the president-elect? Is he going to get money and office space in Washington to start doing some of that stuff? That stuff is being talked about in Austin.
GREENFIELD: Go ahead.
SIMENDINGER: Normally, a president-elect has 73 days about. In this case, we've seen Governor Bush actually try to do some work ahead of time, and of course, he's had a staff of people thinking about this for some time now. But remember also, President Clinton waited until Christmas to name a cabinet, he fooled around in Little Rock with an economic conference, and then his transition was one of the messiest we've ever seen. So the idea is, the longer this goes on, of course, the messier and more unkept the whole thing looks for either Gore.
And I don't think you can put together a government in an afternoon, despite what William Daley says about Vice President Gore's ability to do that. And I don't think it's going to be easy for Governor Bush either.
GREENFIELD: Speaking of messes, one more thing we didn't expect to happen, let's say nobody has 270 electoral votes, either the Republicans decertify the Florida electors, two defect -- you write the scenario, I already have -- and the election gets thrown into the House -- and if people don't understand Electoral College, this one, I think, is a complete mystery -- you vote by state, meaning 26 state delegations to vote for you, we think George Bush could probably pull it off. The Senate votes by member, and if it's a 50-50 tie, we don't know if Al Gore can break that tie; if he can, it could mean you'll have President Bush and Vice President Lieberman -- I don't think that will happen.
But I guess what I'm getting at is: At the end of all this, surely we will have a president sometime in January. Do you think this will be one of those big issues that fades from public memory and political memory? Or will it be one of those issues that just festers and makes it just even uglier than it's been in the...
ROTHENBERG: Oh, I don't think there's any doubt in my own mind. I think it's going to fester, primarily because members of Congress, regardless of who wins, will ultimately see the president as illegitimate. Or enough of them will see it as illegitimate.
And, Jeff, just think, if George W. Bush is seated, is sworn in, the Democrats look around they see a narrow Republican majority in the House, the Senate, a president elected with a minority of the popular vote, under a cloud, you know that the 2000 race will begin immediately. In fact, the 2000 race has already began.
ROTHENBERG: 2002 race has already began. I talked to a Democratic consultant who talked to a Democratic candidate who wants to run in 2002. This is all lined up as a political battle.
GREENFIELD: We're coming down to our last minute. But I can't forbear -- since I do not live in Washington, but rather the heartland of American, Manhattan -- what is this doing to the normal transition, where people try to figure out whose anatomy to kiss, who has the power, who is going to be the most important hostess or power behind the throne? This must be driving Washington nuts.
PONNURU: Everything is up in the air right now. And you have people who are -- just don't know who to kiss up to.
GREENFIELD: I mean, this -- it's got to be...
SIMENDINGER: Do you buy a house? Do you start looking? Do you deal with a realtor? Do you not? Do you move your kids out of school? You know, if you're a lobbyist, have you gotten enough Republicans and Democrats in your shop? Do you know what issues you're going to work on? This is not a town that loves indecisive, sort of muddy waters, not knowing where they're going.
GREENFIELD: I feel your pain. My thanks to "National Review's" Ramesh Ponnuru -- I knew I was going to do that -- "National Journal's" Alexis Simendinger, and special thanks to Stu Rothenberg, who graciously gave up his Sunday afternoon habit of combing the Federal Register looking for typos.
And finally, this note: With emotions this high among the political class, I have been trying to figure out something, anything to say that could not be interpreted as a politically biased statement. I think I've got a candidate. This campaign ended in a tie: the popular vote, the electoral vote, the margin in Florida, in New Mexico, in Iowa, in Oregon, in Wisconsin. It's a tie.
If there were a way to do this, I think America should do what we used to do when we played stickball. We called it a "do-over." I know it's impossible. It's unconstitutional. But at least it would keep half the country from crying: We was robbed.
That is our program for tonight. Tomorrow, 2:00 Eastern Time: live coverage of the Florida Supreme Court arguments, and then rolling coverage: "INSIDE POLITICS," the "WORLD TONIGHT," "LARRY KING LIVE." And I'll be back here 10:00 Eastern time with yet another special.
My thanks to all of you. From all of us at CNN, thanks for watching. We will have a president some time -- I think.
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