Will SCOTUS Remake The Web? And Dems' Tough 2024 Senate Map
ALISSA: Hi. This is Alissa (ph) and Ephram (ph) from St. Paul, Minn. I've been wanting to record a timestamp forever, but it finally took the birth of my baby boy on New Year's Day to get me around to it. This podcast was recorded at...
SCOTT DETROW, HOST:
It is 12:15 Eastern. And congratulations on the multitasking of doing anything else when caring for a newborn.
ALISSA: Things may have changed by the time you hear it, but we'll still be at home, cuddling and enjoying this newborn phase. OK, here's the show.
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SUSAN DAVIS, BYLINE: All that sweet newborn phase.
DETROW: Hey there. It's the NPR POLITICS PODCAST. I'm Scott Detrow. I cover the White House.
DAVIS: I'm Susan Davis. I cover politics.
NINA TOTENBERG, BYLINE: I'm Nina Totenberg. I cover the Supreme Court.
DETROW: Nina, glad to have you on the podcast.
TOTENBERG: Thank you. I love being here.
DETROW: We love having you. And I think most listeners can guess the topic when you're here. We're going to be talking about the Supreme Court today because a really interesting case just heard arguments on a ruling that could completely change the internet as we know it, though, Nina, as you reported from how the judges behaved, that might not be the case. We will get into all of the details. Let's start with what is being argued here and how broad the stakes could be.
TOTENBERG: Well, the issue basically is, does the internet have immunity from most civil lawsuits? Congress basically granted that immunity to the industry in 1996 when the internet was in its infancy because Congress wanted this new animal to prosper and grow. But these days, a lot of folks hate the Internet, on the right, on the left and in between. And the question in this case involves one of the few exceptions to the immunity that Congress wrote into the law. And the new one is 2016, the exception. And it happened after a bunch of terrorist attacks. And the exception says you can sue an internet provider for aiding and abetting a terrorist action. So these cases before the court were brought by the American families of people killed in several terrorist attacks in Paris, Istanbul, etc.
DAVIS: Nina, the analogy I've heard that has helped me understand this is whether these platforms should be viewed as a bookstore, where bookstore owners are not liable for the content in the books that they sell, or like a newspaper that is liable for the content that it puts in its pages.
TOTENBERG: Well, that's exactly the analogy that the internet providers make. It's not quite the one the other guys make. The other guys say, you have to have some responsibility for what you do. And in the argument, Justice Thomas, for instance, asked whether the algorithms are the same across the board for cooking videos or racing videos or ISIS videos. And the answer was yes. And Justice Sotomayor asked, how do I draw a line between an algorithm and active collusion? And Justice Barrett asked, what about a retweet of a link to an ISIS video? Would Twitter be liable? And Justice Kagan said maybe internet platforms should get a pass. Maybe not. But isn't that for Congress to decide? And then gesturing to her colleagues, she said this.
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ELENA KAGAN: You know, these are not, like, the nine greatest experts on the internet.
DETROW: And I'm just going to put a pin in that right now because, Sue, I want to come back to that particular point with you in a few minutes. But - so, Nina, that was the first day of arguments. Was it the same feeling? Was it the same vibe on day two?
TOTENBERG: No, actually, not. On the second day, the court was focusing more on a case in which the lower court has said one of these aiding and abetting cases against Twitter should go to trial. And there seemed to be some sympathy for that. Both liberal and conservative justices asked about what Justice Sotomayor called a certain willful blindness by the internet companies about the consequences of what they do. So I don't think this is a slam dunk for the industry.
DETROW: Sue, I have a question for you. And I also have some thoughts.
DAVIS: Lay it on me, Scott.
DETROW: You have seen - you know, for a good chunk of the Roberts court, you have seen a situation where the court says, you know what? The best solution to this is for Congress to pass a new law. And Congress more often than not does not feel inclined or able to pass a new law - right? - where there are so many topics that that applies to. But going off of what Justice Kagan said, I feel like, you know, even though I think a lot of experts did kind of end up feeling like the justices asked nuanced questions and seemed to understand the basics of the Internet, there have been so many flashpoint moments where Congress basically makes it clear, we don't really understand the internet. And people laugh, but also, it is the central driver of our modern economy, and that's infuriating.
DETROW: And the fact that a 1996 law still dictates so much of the internet - I'm not building GeoCities websites. I'm not using a dial-up modem. I didn't have to tell somebody to get off the phone to connect to the internet to tape this podcast with you. How are we in a situation where that still sets the parameters for this?
DAVIS: You know, there is a macro problem here that is bigger than just this issue of Section 230 - is that we now live in a world where technology accelerates and happens at a pace that Congress simply can't keep up with. It is not designed to be as nimble and fast-moving as the tech industry. And you do have inherently, you know, a group of people that are not experts in this field. If anything, lawmakers across the spectrum will be very forthcoming about how little they understand about how the internet works and the implications of this.
Then you enter the political problem of how divisive these issues have become between the two parties. As Nina noted, you know, conservatives are mad at the internet because they feel like these platforms in many ways have been weaponized against them and their political causes. And liberals in many ways feel like these industries need to be regulated. They need to be broken up. They need to have much more aggressive laws against them. And there is fundamentally very little common ground on an issue that you would need broad bipartisan buy-in to effect something that also overlaps with a lot of issues that overlap with the issue of free speech and the First Amendment in the eyes of many lawmakers.
TOTENBERG: Oddly enough, the leader on all of this is not the United States but the European Union, which has - enacting a system of reporting by the companies and, at the same time allowing a regulatory regime to punish them for not intervening when they clearly should have intervened in some way. And that is - you know, you couldn't do that in this country. We have a First Amendment...
TOTENBERG: ...That wouldn't allow that kind of regulation. But the Europeans treat this industry like we treat electric companies and the phone companies that have certain regulatory goals they have to meet. And if it becomes economically unfeasible to have a different system in the United States, it is possible the EU will essentially dictate what's on the internet.
DAVIS: 'Cause it's easier for the companies to have one set of standards than to...
TOTENBERG: Right. Right.
DAVIS: ...Deal with two different - that makes sense.
DETROW: Nina, going back to the two days of hearings and the different themes that emerged, is this one of those cases where you have a sense - even if you don't have a sense of what the exact ruling would be, you have a sense this is going to be pretty narrow or this could be pretty broad? Or could you see it at this point going either direction?
TOTENBERG: I'm really not sure, although in the last analysis, the path of least resistance is to do less, not more. But this was not an ideological fight among the justices. They all were looking for something. Maybe they were looking for different things, but that wasn't entirely discernible. I think they all reflect the views of the American public and of us talking about this, which is there's a serious problem here. And nobody seems able to do anything about it. Should we step in and put some sort of a limit on - some responsibility for the companies? I'm just not sure they can find a line.
DETROW: Is this a wait-till-June ruling or not sure?
TOTENBERG: Oh, this is definitely a wait-till-June ruling.
DETROW: OK, so we'll talk about it in June.
TOTENBERG: You ain't going to get this before late June (laughter).
DETROW: Great - sounds great. We'll continue the conversation in noon - in June. Nina, thank you so much for coming on the show.
TOTENBERG: If it were noon, we'd get it - we'd - they would be thrilled (laughter).
DETROW: All right, Sue, stick around. We are going to take a break and come back, and you and I are going to talk about next year's Senate races.
We are back. And, Domenico Montanaro, you are here now as well. How's it going?
DOMENICO MONTANARO, BYLINE: Hey, Scott. Good.
DETROW: So let's talk elections. We are going to do a quick update on the Senate map next year. A third of the Senate is up for reelection next year in addition to the presidency and the House and everything else going on. Democrats are going to face a tough map. We talked about that before. Right now they've got a little more breathing room than they did last year - 51-49. But it is a tough map if you are Democrats. The seats they're trying to hold on to are states that are competitive or increasingly Republican-leaning. We're talking about West Virginia, Montana, Ohio, Michigan among them. And, Sue, the last time we discussed this, the big question was, will the Democratic incumbents stick around? Or will they read the room, say, you know what; I think it's time for me to go; later, and leave the party scrambling to defend empty seats? What does the picture look like right now?
DAVIS: You know, Democrats right now must be breathing a bit of a sigh of relief because already Sherrod Brown of Ohio has announced that he is planning to run for reelection. And this week Jon Tester from Montana announced that he would also seek reelection. And Tester was probably at the very top of the retirement watch list. You know, he's older. He maybe is a guy that's known for not necessarily loving Washington. He's been an active farmer his whole time in D.C. He gives the vibe of a guy that might just want to go home. But he announced he would seek another term. And, you know, you can't be too predictive with this stuff, but I think it is a relatively safe statement to say that there are probably few if no other Democrats in the state of Montana right now who could win a statewide race more easily than Jon Tester. And it's not even going to be an easy race for Jon Tester. But he's popular. He's well-known in the state. He has won reelection in the past.
And also, I think what might have been a factor in his decision-making is he is also a former chairman of the Democratic Senatorial Campaign Committee. He's run the - you know, the election efforts for Senate Democrats, and he knows exactly how hard of a year 2024 is going to be for the party and how important his own decision-making was - so a big win for Democrats this week in that he decided to give it another go.
MONTANARO: Yeah. I mean, the map is just horrendous for Democrats. They're defending all of the seats that are in the toss-up or lead column, which is eight states - Arizona, Ohio and West Virginia, then Montana, Michigan, Nevada, Pennsylvania, Wisconsin. I mean, it really reads like a who's-who of presidential election swing states. So you can see that not just the incumbency issue, which is probably even more important than the presidential - how Joe Biden winds up doing in the presidential is also going to have a huge impact. And Democrats have almost no targets. I mean, the stretch of a target is Florida with Rick Scott up for reelection.
DAVIS: Yeah, and then the dynamic you're going to see in Montana - and this is similar in West Virginia, where, you know, probably the other Democrat we're waiting to see what they do is Joe Manchin of West Virginia - is these are states that whoever is the Republican nominee are almost certainly going to win in 2024. So for Democrats to hold these seats, they're going to have to outperform the Republican top of the ticket.
DAVIS: And that's really hard to do unless you have your own brand, your own strength as a candidate that's separate from national trends, which is hard to do in hyper-polarized climates. Tester has a brand that's a bit different than the party, as does Joe Manchin. If Manchin decides not to run, I'm not sure any reasonable person thinks that West Virginia is a state Democrats could hold on to in '24. And frankly, they might still lose it even if Joe Manchin does decide to run.
DETROW: Any updates from Manchin or just kind of cryptic Joe Manchin-ese (ph) Senate subway statements?
DAVIS: You know, I think Manchin loves being the center of the conversation.
DAVIS: He doesn't have to make up his mind really fast in the same kind of way that I think other states do in more competitive races. He's got time. The filing deadline is a far way away. The big thing I think is worth watching in West Virginia is whether the Republican governor, Jim Justice, decides to run for the Senate. That could play a decision-making role for Manchin. He'd probably be the toughest Republican to beat. You know, sometimes these guys make calculations over who they think they'd be running against. But I don't think Manchin feels like he needs to show his cards anytime soon.
MONTANARO: Last month, he said all options are on the table when asked if he was going to run as a Democrat or Republican or if he'd run for president. So he's really not given any clues about what he's going to do. I think he's got his finger very much in the wind to see what his chances are with the people that voted for him in the first place.
DETROW: Well, on that point, Sue, usually the broader themes of who runs for reelection or not gives us a sense of how worried or confident the parties are about the next election. Of course, you could go through an entire election cycle thinking the election is going to break one way and be wildly wrong, as we remember it last year.
DAVIS: As happens very frequently these days.
DETROW: Do we have enough of a pattern yet to get a clear sense of how Republicans and Democrats are thinking at the moment, at least, how 2024 is going to go for them?
DAVIS: You know, I think the baseline 2024 is that, once again, it's Republicans' election year to lose. But that being said, Republicans have proven to be a party that's very good at losing in election years that they should be able to win. I mean, there's a lot of recriminations within the Senate Republican Conference about past elections. There's a feeling that they should have been able to do better in '16 and '18 and '20 and in 2022, and it goes to the candidate quality aspect of this. There's a lot of races on the table in '24 that Republicans start with the advantage, but it's too early to say who those candidates are. And having learned the lessons of the last couple election cycles, I think so much is going to matter about the future of the party and whether they - you know, they put up more sort of general election palatable candidates or if they put more hard-right Trumpian kind of candidates in states like Michigan or Pennsylvania that just don't have broader electoral appeal.
MONTANARO: Those Trumpy-type candidates are the ones who gave Republicans problems this past election in the midterms. It's why Trump's brand has sort of - some of the shine has come off with the base a bit because, you know, when you put up those kinds of candidates in some of those swing states that you mentioned and are going to be targeted with hundreds of millions of dollars from outside PACs and for presidential candidates, you know, these have to be candidates who can win in the suburbs and who can win swing voters.
DETROW: But, I mean, just a perfect example of this - Arizona. You have Kyrsten Sinema now running as an independent. I don't believe she said whether she's running for reelection or not. But there's a scenario where she's running as an independent. You have a strong Democratic nominee as well. And then you have a situation where even though Kari Lake has not given up her losing effort to run for governor - which she lost, but she will not concede that - she is now making signs that she might run for Senate. And I have to imagine that Mitch McConnell somewhere is...
DAVIS: Not thrilled.
DETROW: ...Screaming into the void about that sort of development. Is there anything he and other establishment Republicans can do about it at this point, though?
MONTANARO: They've tried.
DAVIS: You know, I don't - they've tried. I don't know about the future, but I can tell you in the past it hasn't worked. You know, in some ways, the more the establishment tries to get into primary races, the more it can backfire. I think the most recent example that highlights that is the Georgia Senate race in which Herschel Walker ended up the nominee. And this is a candidate that McConnell and his allies tried early in the process to not have him be the nominee, and they failed in that effort. And so he has probably a better political sense of the kind of candidates that can win competitive races, but he also is very at a weakened political power point within the party to get to be the kingmaker in those races, and that is a very unfavorable place to be for any party.
DETROW: Has he considered endorsing the candidates that he does not want to be the nominee - like, just stand there, hold their arm up like, Mitch McConnell here?
DAVIS: This is - yeah, this is the one for me. You know, he might. You know, it could be - who knows what's to come in '24?
MONTANARO: That's like - it's like Biden said. You know, I really like Mitch McConnell, and I'll say I like him or don't like him depending on which way it'll help him.
DETROW: All right. We're going to take one more quick break and come back with Can't Let It Go.
We are back. It is time to end the show like we do every week - with Can't Let It Go, the part of the show where we talk about the things from the week we cannot stop thinking about, politics or otherwise. Domenico, I have a very important update on last week's Can't Let It Go where we talked about the balloon. I did end up asking multiple questions about the balloon club's fate. At the briefing, we put a little exchange at the end of the episode as an Easter egg. The search was called off that day, so we'll never know if fighter jets shot down a $12 balloon that an Illinois club member sent into the sky.
MONTANARO: We'll get them another one from Party City.
DETROW: You know what? And I was going to talk about something else, but I think I'm just going to say that the balloon situation continues to be my Can't Let It Go for this week.
DETROW: I don't know if the producers will come and yell. It still - it was insane. It was insane.
MONTANARO: It was.
DETROW: And it will never not be insane. That's all I got, guys.
MONTANARO: You're still just - so it's just the balloon. You're just still obsessed with the balloon.
DETROW: It's - we were - I went on a - we went and visited family, and I was flying in an airplane looking at the sky. And I was like, oh, this plane's cruising at 40,000 feet. That was the exact height of three of the balloons last week. So truly, I don't know when it's going to get out of my system, hopefully before the next time I do a Can't Let It Go.
DAVIS: The cost differential between the cost of a weather balloon going up and the cost of shooting one down is pretty funny into itself.
DETROW: Especially since one of the balloons they shot and missed the first missile and they had to shoot two missiles at it. OK. I'm never going to talk about - the balloon can go in the vault with "Ted Lasso"...
DAVIS: It's a "South Park" episode.
DETROW: ...As repeated things that I keep bringing up week after week.
MONTANARO: Yeah. We'll bring it back up when the IG report comes out with what that cost.
DETROW: Can't wait. Can't wait. We'll do special coverage. Domenico, what about you?
MONTANARO: I can't let go of Antoine Davis, who's a college basketball player for Detroit Mercy. And I don't know if you guys know his story, but he's a mid-major player. He leads the country in scoring this year in men's college basketball Division I at about 28 points per game. But what's more interesting is that he's now within 100 points of the all-time NCAA Division I men's scoring title that has stood for 53 years.
DETROW: Records are falling left and right these days.
MONTANARO: Yeah. I mean, we'll see if he gets it. He's only got two games left, and he needs to get 98 points in that time. I mean, if they make a little bit more of a deep run into the conference tournament, even just one more game, he might be able to get it. But, you know, it's really interesting. Pistol Pete Maravich was who owns the record, played for LSU for three years, averaged more than 40 points a game. It's just ridiculous what he was able to do in the pre-three-point era, remember, and this guy, Antoine Davis, a man after my own heart, 85% of his shots are three-pointers. He is the all-time leader in three-pointers, which he just set recently. He hit 11 three-pointers in the game that he set the record for NCAA men's basketball. And, you know, he's a lot of fun to watch. They're even retiring his number this week, number zero, with Detroit Mercy. And we'll see if he winds up - I'll keep an eye on it and see if he winds up getting the record.
DAVIS: So you said he needs 98 points.
MONTANARO: Yeah, he needs 98 points. And he's got at least two games to go.
DAVIS: Is that, like - what - give me some sense of how hard that is as someone who doesn't follow basketball as closely. Like, is that attainable or...
MONTANARO: I mean, it's almost 50 points on average per game. It was 49 - he has to score an average of 49 points in both games. He's scored over 40 points in a bunch of different games this year. It's tough. I mean, he shoots a lot, and people know he's going to shoot, and they stick to him really closely. He can hit some crazy shots. But getting that level, I think they're probably going to need one more game to get in a little deeper into the conference tournament where - you know, I think if you're giving him 33 points a game, I think he could do that. I think 49 is asking a lot, but we'll see if he goes off.
DETROW: The tournament's a tough time to just feed him the ball to get the record, though, I imagine. You know, if it was, like, a whatever game at the end of the season, just let him take every shot.
MONTANARO: And their team doesn't have a great record. They're below 500. So, you know, they're not expected to make a deep run in the conference tournament. So, you know, maybe if he plays really outstandingly, he'll get another chance.
DETROW: All right. We will bring an update. Sue, what about you?
DAVIS: The thing I can't let go this week is Pedro Pascal, Internet Daddy. Do you know who Pedro Pascal is?
MONTANARO: From "The Last Of Us."
DAVIS: Yes. So I just started watching "The Last Of Us" this week. It is a post-apocalyptic show about a pandemic, and I don't know why I started watching that, but it's a pretty good show. But Pedro Pascal is the lead actor in it. Scott, you probably know him from "The Mandalorian." I know that was a show that you were into, even though you couldn't see his face in the show.
DETROW: And "Game Of Thrones" - big fan, though I've not gotten to this show yet for obvious reasons that you just mentioned.
MONTANARO: He was in "Game Of Thrones"?
DAVIS: (Laughter) I can get why you might not want to watch the show, but I have fallen down the internet rabbit hole of Pedro Pascal Internet Daddy in that he has - enjoying this, like, weird side moment of fame in which he has sort of embraced this identity. And I didn't really understand, I have to admit, what Internet Daddy meant. So I have gone down the rabbit hole this week and it's actually quite nice in that, yes, it is partly because he's a heartthrob because he is.
MONTANARO: There you go.
DAVIS: But also he has become sort of emblematic of a good guy, that he is, like - the characters he plays and his sort of energy is he seems like the kind of person you would actually want with you at the end of the world. And he's - like, the culture was, like, hungry for a new hero, a new good guy. And now he is the Internet Daddy, and I'm here for it.
DETROW: Is he the character wearing the leather jacket that I feel like everyone has opinions on, too?
DAVIS: He's got, like - he's also, like, daddy style, like jeans and flannel shirts. Like, I feel like you guys as daddies should be, like, embracing this.
MONTANARO: Listen, listen...
DETROW: Domenico, you had a similar leather jacket on this week, and I thought it looked good.
MONTANARO: (Laughter) Hey, listen, I was going to say good guy dads who aren't terrible looking having a moment, I mean, I'm here for that.
DETROW: We can support that.
DAVIS: You know what I mean? I thought you could get behind that.
DETROW: That's a wrap for this week. Our executive producer is Muthoni Muturi. Our editor is Eric McDaniel. Producers are Elena Moore and Casey Morell. Research and fact-checking by our intern Devin Speak. Thank you to Krishnadev Calamur, Lexie Schapitl and our wonderful, amazing, cannot be replaced, favorite person to talk about baseball and other nonsense with in the office and also thoughtful, engaging, just great all around all-star on social media and audience engagement Brandon Carter. I could keep going, but I'll stop. He is sadly moving on to The Washington Post. And we will miss him.
DAVIS: Thank you, Brandon. You've been amazing. We're going to miss you.
DETROW: That is it for this week, though. I'm Scott Detrow. I cover the White House.
DAVIS: I'm Susan Davis. I cover politics.
MONTANARO: And I'm Domenico Montanaro, senior political editor and correspondent.
DETROW: Thank you for listening to the NPR POLITICS PODCAST.
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