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- [00:00]
Michael Knowles
A showdown at the Supreme Court, major cases involving religious liberty, involving adoption, involving health care, and another challenge to Obamacare. And believe it or not, the co host of this very podcast is the plaintiff in a major Supreme Court case that's coming down the pike. This is Verdict with Ted Cruz. Welcome back to Verdict with Ted Cruz. I'm Michael Knowles. I'm going to have a spoiler right here. I am not the plaintiff in this case coming down the pike at the Supreme Court. It will not be me. It will be our intrepid host, Senator Cruz. Senator, that's a lot coming up.
- [00:41]
Ted Cruz
It is. We're at the end of a court term, so it's always busy as we get decisions coming down and they usually save the biggest ones for last.
- [00:51]
Michael Knowles
So Senator, you are an expert in this field not just because you went to law school, not just because you are a Supreme Court litigator and you've argued before the court before. Also because you've written a book on the subject of the court called One Vote Away. I've been very busy hawking my book Speechless. But your book, One Vote Away, very crucial right now. Cuz we have had some pretty serious cases just in the past couple of weeks.
- [01:17]
Ted Cruz
Well, that's right. And there's some interesting potential divides that we're seeing among the more conservative justices. You know, the press has been very fond of saying there's a six vote conservative majority on the court and that may be the case. It may not. Time will tell. There's no doubt the three Supreme Court justices that President Trump put on the court will be a very significant legacy of his and it may prove his most long lasting legacy. But experience teaches us that a justice's tenure, that their jurisprudence is assessed and measured in decades, not in individual years. So it's really early with Kavanaugh and Gorsuch and Barrett. It's really early to assess what kind of justices they're gonna be. You mentioned my book One Vote Away. As you know, the final chapter of the book traces the history of Supreme Court nominations, starting with Eisenhower and going up to the present. And you know, I raise real concerns in particular about Kavanaugh and to some extent about Gorsuch. And those concerns go back to John Roberts and what we've seen. So the two big decisions that have come down in the last few days, one concerned Obamacare and the other concerned the city of Philadelphia which had excluded Catholic Social Services from doing foster care adoptions because the Catholic Social Services wouldn't put into foster care a child in a same sex household they required in order to be a foster parent that you be a mother and father and not be a same sex couple. And so the city of Philadelphia threw the Catholic Social Services out of that business, even though they'd been doing it for about 200 years. And the Supreme Court unanimously struck that down, struck Philadelphia's exclusion of Catholic Social Services down. And on Obamacare, The Supreme Court, 7 to 2, declined to strike down Obamacare. And both of those decisions were interesting, among other things, for the divides that they showed among the more conservative justices.
- [03:35]
Michael Knowles
So, Senator, I want to get into the 7:2 decision because that is obviously contentious, but what do you mean when you say that a 90 decision shows the differences among the conservative justices? It would seem to me that everybody's in agreement.
- [03:51]
Ted Cruz
Well, it would, but often the court will agree on the result but disagree significantly on how you get there. So. All right, let's start with the Philadelphia case. As I said, the city of Philadelphia decided that Catholic Social Services was no longer eligible to participate because it wouldn't put a foster child in a same sex home. Now, mind you, there were other foster agencies that would put a child in a same sex home, and they deemed the Catholic Social Services, you can't participate anymore. And Catholic Social Services filed a lawsuit arguing that their exclusion was unconstitutional. That went all the way to the Supreme Court. And nine zero, the Supreme Court agreed it was unconstitutional to exclude Catholic Social Services. So what was the disagreement? Well, the disagreement was that Chief Justice Roberts wrote the majority opinion. It's a very, very narrow opinion, and it concerns a decision of the Supreme Court decades ago called Employment Division versus Smith. And that was actually a decision from Justice Scalia that lessened the protections for religious liberty. And it's been widely criticized as an opinion. Employment Division versus Smith held that if a law is neutral and generally applicable, in other words, if it applies to everyone, that that law is not subject to strict scrutiny. Now, what does that mean? Strict scrutiny is when the courts will examine rigorously whether a law is constitutional and they will demand that it be justified by what's called a compelling state interest that is narrowly tailored. So it's hard for a law to survive strict scrutiny. Okay. And in the Smith decision, the Court said if it's a neutral and generally applicable law, it doesn't have to survive strict scrutiny, which means it will usually be upheld. What happened in Employment Division versus Smith was you had someone who was a member of the Native American religion who consumed peyote in a religious ritual, and that individual failed a drug test and was denied benefits because he failed a drug test. And what the court concluded in Smith is since the drug test requirements were neutral, they weren't targeting religion, they weren't persecuting religion, nobody was allowed to consume peyote, that it was acceptable to exclude them from benefits. Now, what's interesting, scholars have disagreed whether Smith is right or wrong. As a matter of constitutional interpretation. There are vigorous debates among law professors and judges about what the history of the First Amendment holds, what the background is.
- [06:39]
Michael Knowles
Can I just, on this point, being basically entirely ignorant of this question of the law, what's the right answer? Should the guy have been able to have the peyote and not have to deal with the consequences or not?
- [06:51]
Ted Cruz
On the constitutional question, I would say it's hotly disputed. There are strongly held views on both sides as a policy matter, for a long time, at least, it was not disputed, which is what happened after the Supreme Court decided Smith. The United States Congress came and passed a law that was called the Religious Freedom Restoration Act. Now, what was the restoration? It was literally bringing back the religious freedom that Smith had taken away. So Congress was unhappy with Smith. The Religious Freedom Restoration act was introduced by a House member by the name of Charles Schumer. You may have heard of him in the Senate. The Religious Freedom Restoration act passed the Senate by a vote of 97 to 3. So it was overwhelmingly bipartisan, was signed into law by then President Bill Clinton, a Democrat. So it used to be in the 90s that protecting religious freedom was an overwhelmingly bipartisan proposition. And regardless of whether Smith was right or wrong as a matter of constitutional law or historical record, as a policy matter, just about everyone agreed that we want laws that subject religious faith to significant burdens to be held to a higher standard that you should not be able to trample on religious liberty absent meeting a very vigorous test. So fast forward to the Philadelphia case. The disagreement between the more conservative justices was whether to overrule Smith. The original decision that said neutral and generally applicable laws that happen to incidentally burden religious faith are not subject to strict scrutiny. And what Chief Justice Roberts did is in his opinion, he said, we don't have to answer that question because this law is not neutral and generally applicable. This law, instead, is. There is in the contract that the city signs with the social services agency a provision for exemptions. And so because there are exemptions, the city could have exempted the Catholic social services. And every justice agreed it was unconstitutional for them not to do so because.
- [09:12]
Michael Knowles
Philadelphia, in this case, was targeting the Catholic charity exactly for being Catholic.
- [09:17]
Ted Cruz
Right. So Justice Alito writes a dissent that is hot. I mean, Justice Alito is ticked off, and Justice Alito is joined by Justice Thomas and Justice Gorsuch. They both argue vigorously that the court's majority by refusing to overrule Smith, by refusing to even address the constitutional question, essentially, they're playing games. They're avoiding the big question. And what Justice Alito argues is, listen, it's very easy for the city of Philadelphia to go back now on remand and change their law and go right back after the Catholic Church. All they have to do is eliminate the exemption language from their contracts, and suddenly it will be neutral and generally applicable. And we'll be right back in this lawsuit. And Justice Alito's dissent is vigorous. Now, one of the things that's interesting is you also have Justice Barrett joined by Justice Kavanaugh and Justice Breyer, who essentially defend Chief Justice Roberts.
- [10:24]
Michael Knowles
And so for those who don't keep track of the horse races, you've got Barrett, we were told, is to the right of Attila the Hun, though that would not seem to be the case. Kavanaugh obviously went through that brutal confirmation process under Trump. And Breyer is a liberal. He's a liberal on the court.
- [10:40]
Ted Cruz
He is. And Barrett and Kavanaugh say they have serious doubts about whether Smith is right. So if you're counting noses, you've got the three justices, Alito, Gorsuch, and Thomas saying they would overrule Smith. So they're unequivocal. And you've got Barrett and Kavanaugh saying they have serious doubts about Smith. They don't quite say they'd overrule it, but they hint pretty heavily. But they say, in this case, we don't have to. And then you have Breyer, who joins them in the. In this case, we don't have to. Although he doesn't join them in saying we should overrule Smith. It's an interesting dynamic that might play out. And you're gonna see in a second when we talk about Obamacare, it's actually similar to what played out in the Obamacare case, where you've got Alito as the most vigorous conservative, pulling the court one direction and usually Clarence Thomas with him, the two of them together. And at least in these two cases, Gorsuch lines up with them. You have Roberts, who has been moving steadily to the left. And at least in these cases, you have Kavanaugh and Barrett siding more with Roberts than with Alito and Thomas. And so that dynamic at the end of the day the result in the Philadelphia case is unquestionably right, that you shouldn't be excluding the Catholic Social Services. This is why it's 9 0. Every justice, even the most liberal justices, agreed with that result. But this potential divide among the more conservative justices could be powerful foreshadowing for what may play out next year when there are several big cases coming down, including a major abortion case, including a major Second Amendment case. If there is really a divide, if we see Kavanaugh siding with Roberts Moore, and even potentially Barrett siding with Roberts Moore, then suddenly on an abortion case, it's not clear where there are five votes on the court. And so it puts real uncertainty to where the court's majority is going to go next year and in the years to come.
- [12:51]
Michael Knowles
I just have to know before we get to the Obamacare case, I just have to get this off my chest. Senator, are we ever going to have a reliably conservative court? Because I know Republicans have put their blood, sweat and tears into electing people to the presidency, into getting through the judges on the nomination, and yet to invoke the title of your book, we always seem to be one vote away on really crucial cases.
- [13:21]
Ted Cruz
Well, and you're right, and there's a reason for that. I mentioned the last chapter of my book where I go through the history of Supreme Court nominations, and there is a pattern. If you look at the justices who have been principled constitutionalists, people like Scalia, people like Thomas, people like my former boss, William Rehnquist, people like Alito, they all have a pattern. They have all had significant records in government, typically in the executive branch. They have all defended the Constitution, defended conservative positions, and they've been excoriated. They faced withering criticism and abuse, and they haven't wavered. And that's the pattern that has produced Justices who have the spinal fortitude to withstand the pressure on the court. On the other hand, when you have justices that don't have a paper record, that have been very careful, very guarded, have avoided saying anything, almost without fail, they turn out to be disasters. So I focus on a couple of key decisions. George Herbert Walker Bush, when he was president, he had in one room David Souter, he had in another room a judge named Edith Jones. Edith Jones was the strongest conservative of her generation. She was on the 5th Circuit. She was rock ribbed. Souter was someone who had never expressed an opinion on any contested constitutional issue his whole life. He had no paper trail.
- [14:50]
Michael Knowles
Right.
- [14:51]
Ted Cruz
Bush 41 picked Souter instead of Jones. That was a catastrophic mistake. Fast forward to Bush 43. Bush 43 had in one room John Roberts, and in another room, my old boss on the Court of Appeals, Mike Ludig. Mike Ludig was, at that time, the same thing. Edith Jones had been unquestionably the strongest conservative appellate judge in the country. Rock ribbed. He'd been Scalia's very first law clerk, has been an incredible friend and mentor to me. Bush 43, like his father, went with the easier choice. Roberts had been very careful about what he said. He didn't have that many controversial positions. It was an easier confirmation that proved a major decision. Had they not made those decisions, Obamacare would have been struck down. Had they not made those decisions, we would have seen some major, major victories. And had I been in the White House, I would have picked Edith Jones and not David Souter. I would have picked Mike Ludig and not John Roberts. And then when it came to President Trump's nominations, look, Brett Kavanaugh is a good man and a decent man, and I think he was treated horrifically during the confirmation process. But Brett Kavanaugh has been, in many ways, almost a clone of John Roberts. He followed a very similar career path, was on the D.C. circuit, was very cautious. And I have very real concerns that Brett Kavanaugh is going to continue to follow John Roberts path, and I'm quite concerned about the path John Roberts has taken. Gorsuch likewise did not have the kind of rock rib record that a Scalia or a Thomas or an Alito or a Rehnquist had. Gorsuch had a stronger record than Kavanaugh, but it wasn't nearly as developed. And as I outline in my book, there's a decision Gorsuch issued in a case called Bostock, where he rewrote the federal civil rights law to include to write into them protections for sexual orientation and gender identity. And listen, as a policy matter, a lot of Americans agree that civil rights law should protect gender orientation and sexual orientation and gender identity. But Gorsuch didn't wait for Congress to change the law. He just rewrote the law from the Supreme Court. I think that was a really deeply questionable decision. And so how the Trump justices perform, it's going to take years to find out. But I think that for all three of those judicial vacancies, President Trump talked to me about them. I told him I didn't want the seat for all three of the vacancies. I urged him to appoint Mike Lee. That's who I would have put on. Mike Lee, the senator from Utah, my closest Friend in the senate. I have 100% confidence that Mike Lee, like Scalia, like Thomas, like Alito, like Rehnquist, would have been absolutely rock ribbed.
- [17:56]
Michael Knowles
He has a record.
- [17:57]
Ted Cruz
He has a record and he's been pounded.
- [18:01]
Michael Knowles
Yeah, I agree. That would have been tremendous. Would have been great if you were on the court, but you were not interested. Fair enough. I won't prod you anymore on that, but I will pick your brain on this other case because then after the Obamacare case, I want to hear about the more active role you'll be playing in the court when you bring a case there. Coming up on an important issue. But just very briefly, for those who didn't follow the Obamacare decision, this was the third time that we tried to get rid of Obamacare at the Supreme Court and it didn't work.
- [18:30]
Ted Cruz
That's right. And so Obamacare, when it was passed, the first challenge to Obamacare was decided in 2011, and the Supreme Court, to the astonishment of most observers, upheld it. And this was John Roberts first big apostasy. It's when he started down the road to the dark side. John Roberts, the chief, wrote the. I wish I were saying that tongue in cheek. I mean it quite literally.
- [18:59]
Michael Knowles
Right, right.
- [19:00]
Ted Cruz
It's interesting. The first Obamacare decision, the challenges to Obamacare were that it exceeded Congress's authority under the Commerce Clause. Now, what is the Commerce Clause? Commerce Clause is a provision of the Constitution that gives Congress the power to regulate commerce between the states. And the argument against Obamacare is the individual mandate which ordered you, Michael Knowles, must purchase health insurance. The argument was forcing you to buy a product. That had never happened in the history of the United States government. And it was not commerce between the states. It was you where you are. It was not interstate commerce. And the Commerce Clause is the most common justification for much of federal regulatory authority. First Obamacare decision, Agreed. The individual mandate, the requirement that you buy health insurance, exceeded Congress's power under the Commerce clause. So that was a great victory. The next thing that opinion said is it exceeded Congress's power under the spending clause. And so you read the first 80% of the Obamacare decision and you're like, wow, this is fantastic. This is fantastic. This is great. And then at the very end, John Roberts does a sleight of hand where he says, well, so this would be unconstitutional, except the individual mandate is not a penalty, it is a tax. And when he called it a tax, there's a whole different line of jurisprudence that says on the taxing power, Congress has broad authority to Design taxes. Now, the thing about it is Obamacare repeatedly refers to it as a penalty and not a tax. And politicians, including Barack Obama and a ton of Democrats, have said, this is not a tax. This is not a tax. This is not a tax. This is not a tax. And John Roberts for the Supreme Court said, this is a tax. Never mind what they said. We're calling it a tax. That was the magic trick that upheld Obamacare the first time. The second time Obamacare was challenged, I won't get into the details of it, but essentially John Roberts did another magic trick trick where he said, the federal government is a state. So the statute said that you could have the subsidies for Obamacare on exchanges set up by the states. A bunch of states decided not to set up exchanges. The federal government jumped in and formed exchanges, and the Supreme Court said, voila, the federal government is now a state. Who knew? So that was number two. This was number three. What happened in number three? You remember in 2017, Congress passed the Trump tax cuts. I was very active leading the fight to make that happen. And one of the fights that I led in the Senate was the fight to eliminate the individual mandate, to repeal the individual mandate. So the law would fine you if you didn't buy health insurance. You'd get fined by the irs, and they got millions and millions of dollars of fines they imposed on people for not buying health insurance as part of the. The Trump tax cut. We zeroed that out. We lowered the fine to zero, which effectively eliminated it. So what happened in this Obamacare case is the state of Texas filed a lawsuit and they said, well, if it's been lowered to zero, it's no longer a tax. And if it's no longer a tax, then the basis for concluding it's constitutional has disappeared. And if the individual mandate is not constitutional, then the rest of Obamacare should be struck down as well. So that was their argument. It went all the way to the Supreme Court. Long and short of it is the Supreme Court rejected that argument by a vote of 7 to 2. So rejected it overwhelmingly. They did so on a really strange ground. They did so on the ground of standing. They concluded that Texas and a bunch of other states that were suing did not have standing to sue. And the individual plaintiffs, there were also some individual people who were part of the lawsuits. They said they didn't have standing. Now, what does standing mean? Standing is a requirement of the Constitution. Under Article 3 of the Constitution. Courts don't just issue opinions on any question that comes up. It has to be what the Constitution says is an actual case or controversy. In other words, it's gotta be a fight. You can't just go to a court and say, hey, I'd like you to answer this abstract question of law.
- [23:20]
Michael Knowles
Yeah, my pals and I were debating in our dorm room last night, so could you please give us a conclusion?
- [23:26]
Ted Cruz
And by the way, there are legal systems that allow that, that actually have their legal systems. For example, the legislatures can ask the court, give us a legal decision on this question of law. Our system doesn't do that. And it's more limited because it requires a real dispute, a fight. And so standing says, put simply, you gotta have skin in the game. You have to be hurt by this law in order for you to challenge it. You can't just challenge a law you don't like. It's got to have actually injured you. Justice Breyer wrote the majority opinion, and they concluded the states weren't hurt by it, the people weren't hurt by it. And it is a very narrow reading. I think it's a far too narrow reading.
- [24:11]
Michael Knowles
You mean because, Senator, they're saying, if there's no penalty, if you zero it out, then you're not being injured by it? Is that the argument?
- [24:20]
Ted Cruz
That is. And so you're intuiting where Breyer went, but Texas's argument and the state's argument and the individual plaintiff's argument is, yeah, but we're hurt by Obamacare. The Obamacare regs have driven health insurance premiums up massively. So we're paying thousands more. Texas, the state of Texas alone said they were paying $80 million more in health insurance costs for their employees because of the Obamacare requirements. And so they're like $80 million a year. That's a real injury. And the majority parsed things so narrowly that they said, well, yeah, but the individual mandate's not hurting you because it's zero. And I think it was angels dancing on the head of a pin. So Justice Alito dissents along with Gorsuch, and Alito's pissed. Both of these dissents are interesting because they're. Look, you read Supreme Court dissents that are. Sometimes I read the law a little bit differently. I would come out to this decision slightly differently. Alito's worked up, and he, I think, rightly takes the majority to task that they are dodging the question entirely. That this standing argument, you know, to the millions of Americans whose health insurance premiums have skyrocketed under Obamacare, guess what Supreme Court just said, you haven't been hurt.
- [25:47]
Michael Knowles
You're right.
- [25:48]
Ted Cruz
When you're writing the check, it doesn't hurt you at all. That extra money is not an injury. It's not damaged. I think that's a pretty loopy conclusion, but that's what seven justices did. Now, what's interesting about this, Michael, you remember particularly Amy Coney Barrett, the central argument the Democrats and the press said when she was nominated is this crazy lady is going to repeal Obamacare. And they said, this is the vote to repeal Obamacare. She is going to take your health insurance away. Well, Justice Barrett was with. Justice Breyer was with the majority with the 7:2 that concluded there was no standing. I think that's a disappointing ruling. And there are times where there's so much political demagoguery from the political processes that it scares justices into avoiding the hard questions. And I think there's a very real argument that they did that in both of these cases, and that's why Alito is really worked up, is that he feels that the justices in the majority in both the Philadelphia case and the Obamacare case are dodging the hard questions because they're scared of the politics. That is not an encouraging sign for next year on the big, big ticket cases of abortion and Second Amendment.
- [27:09]
Michael Knowles
You know, I saw some commentators making this point about Amy Coney Barrett, and they said, you see, we proved the Democrats wrong because Amy Coney Barrett was supposed to vote to repeal Obamacare, but then she didn't. Ha ha. We proved you wrong. And I thought, yep, if we keep proving the Democrats wrong, we're not gonna have a country left to conserve. This is not a good way to do it. But this raises questions. Forget about these cases for a second. This raises questions about the cases coming up. And specifically a case that you are bringing to the Supreme Court.
- [27:39]
Ted Cruz
Well, that's right. So I am a plaintiff in a case that is going to the Supreme Court and going to the Supreme Court on the merits. And it is a less consequential case than these cases we've been discussing, but it's still a significant case. And it is challenging a provision of McCain Feingold, which is the big campaign finance legislation. And the Supreme Court has heard challenges to different aspects of McCain Feingold before. What I'm challenging is one particular provision that prohibits a candidate running for office who has made a loan of your own personal funds to your campaign from paying yourself back after the election with funds raised after the election to the extent they exceed $250,000. So it caps how much you can repay yourself at $250,000. I believe that provision is unconstitutional. And so I filed a lawsuit challenging the Federal Election Commission and arguing that it's unconstitutional. And I won. So there was under McCain Feingold, there's a special provision to consider challenges to that law. And they convened what's called a three judge district court. It consisted of a court of appeals judge and two district judges. And they operate as a district court. We won unanimously. The three judge district court unanimously ruled in my favor and concluded this provision was unconstitutional. The decision was authored by Judge Naomi Rao, who's a judge on the D.C. circuit. One of the three judges on the panel was an Obama judge, a district judge who joined the opinion in full. Under McCain Feingold, the federal Election Commission can appeal that case directly to the US Supreme Court. So you skip the court of appeals. And it's not discretionary whether they take it. So ordinarily the Supreme Court's jurisdiction is discretionary. It can choose do I want to hear an appeal or not. Yeah, under McCain Feingold, they wrote that it's an automatic appeal. And so the Federal Election Commission did appeal it. And so next year, the court will decide whether my claim is valid. And at the end of the day, I think it is an important free speech issue. And let me explain why. So whenever you have campaign finance laws that are passed by Congress, you gotta remember these are incumbent politicians who are passing laws and their principal objective is to prevent anyone from beating an incumbent politician.
- [30:15]
Michael Knowles
Right.
- [30:16]
Ted Cruz
They don't want to lose, and so they want to put in laws so you can't beat incumbent politicians. What this loan repayment provision does is makes it hard for challengers. If you have someone running for office, you decide you want to run and challenge some your member of Congress or your senator. And let's suppose you've saved some money. You've got a house and you take, say a mortgage on your house and you put $500,000 into the campaign, and that's the money that you use to win or not. Well, what this is saying is, well, you know what, if you put $500,000 into your campaign from the mortgage in your house, you can only pay back 250. The other 250, you're out of luck. You've given your money to the people of America as a mandatory gift. Why did Congress do this in McCain Feingold? Because they don't want you to put mortgage your house and put $500,000 to run against them. They want to make it really hard to beat an incumbent. And so what this rule does is it benefits two people, it benefits incumbents, and it benefits the super rich. If you're a gazillionaire, you know, if you've got hundreds of millions of dollars, and by the way, a number of my colleagues have hundreds of millions of dollars, if you have hundreds of millions of dollars, then you can write a several million dollar check and you don't really care if you get paid back because you're so rich that it's not, it doesn't have that big an impact to you. This really benefits incumbents and the super rich. The law that I'm challenging, and I think our chances are very good that the Supreme Court's gonna agree with us that you can't prevent people from investing their own money in political speech and trying to convince the American people of the policies they support. And you should be able to pay yourself back your own money that you invested in.
- [32:10]
Michael Knowles
Right? I think the way the left will spin it, of course, is that this is about politicians being able to pay themselves back. And it's just a way, you know, boohoo hoo for the politicians. But think about all the politicians who passed the law who are trying to keep challengers out of their races. As usual, we're running very late, but before we go, I have to ask you this question. It's a little bit out of left field, but broadly on the same topic. This question is from Matthew Senator Cruz. If you could unilaterally add or remove or remove one constitutional amendment, what would it be?
- [32:45]
Ted Cruz
That is an interesting question. I don't know. Let me look. If I could add something, I would probably say, all right, it's very close between a balanced budget amendment and a term limits amendment. And both of those I have supported. I'm the author of a term limits amendment. I think that's a really important fundamental structural reform. I think a budget amendment, which most of the states have, would be a really big deal too. So those are probably the top two that I would add. Look, you could make an argument for removing the 16th Amendment, which allows for an income tax. So the Constitution, as initially written, did not allow for an income tax. And when we added the 16th amendment, it was initially meant to be, it was told, this will just be 1 or 2%. It'll be really small, it'll just be for the super rich. So every time you get your paycheck, all that money taken out, remember that's just 1 or 2%. And it's only if you're a billionaire, so you don't get any money taken Out. Right.
- [33:48]
Michael Knowles
Oh, good. I must have been under a different understanding of things. That's great.
- [33:53]
Ted Cruz
I think it would be a far better tax system. I am a big advocate of the fair tax. And having a consumption tax, I think that's much better than an income tax. The simplest way of putting it, what you tax decreases, what you subsidize increases. Right now, we tax productivity and we subsidize sloth. That is less than ideal. By the way, as an interim policy proposal, I support a flat tax. I think a flat tax is still an income tax. It doesn't go as far as the fair tax, which I ultimately support, but I think a flat tax is much more achievable. So, all right, you want me to repeal one. That's what I'd repeal.
- [34:32]
Michael Knowles
Okay. I was actually thinking, although I suppose in your job this wouldn't make sense, that you might repeal the 17th amendment. The direct election of senators, which. Look, obviously, direct election of senators has worked out very well for you. It's given us at least a handful of good senators, but it removes the state's say in our federal government. And many conservatives have suggested that that amendment, another progressive amendment, might also be one impediment to a more conservative country.
- [35:00]
Ted Cruz
So, as usual, Michael, you make a very good argument on this. And as the hypo was framed, to me, the 17th Amendment would be a very good candidate for consideration. I've said before, if I could push a magic button and make the 17th amendment go away, I would. Precisely because you're right. As the Constitution was initially designed, senators were appointed by the state legislatures. And so the Senate operated as a check on the federal government's power. Because, look, if it were the state legislature appointing me, I'm not gonna go to Washington and then vote to take away all their power and suck it all into Washington. You know, you tend to be responsive to the people who put you in the job, at least theoretically, in a democratically accountable situation. So when we moved to the direct elections of senators, we removed one of the major constraints on the growth of federal power and spending and debt. So with a magic wand, I would be quite open on doing that. That being said, you know, what I've said for the last decade is, listen, I'm not. I don't intend to lead a fight to repeal the 17th Amendment because it ain't gonna happen.
- [36:11]
Michael Knowles
Yeah, Yeah.
- [36:12]
Ted Cruz
I think it is very hard to ask anyone to give up the franchise once people have the right to direct election of senators. I don't know how to convince them. You shouldn't be able to vote to elect your senators anymore. So I think we've crossed that Rubicon. And so what I fight for now is, all right, just like we should have been responsive under the original system, the state legislatures that appoint us now, we should be responsive to the people who elect us. And so that's what I urge to my colleagues is we're elected by the people of our state and we need to keep the promises we made to.
- [36:45]
Michael Knowles
Them and we need to move on to the next battles. And we will see what comes next very shortly. But not any longer on this episode because we have to go. I'm Michael Knowles. This is Verdict with Ted Cruz.
- [37:05]
Ted Cruz
This episode of Verdict with Ted Cruz is being brought to you by Jobs, Freedom and Security Pack, a political action committee dedicated to supporting conservative causes, organizations and candidates across the country. In 2022, Jobs, Freedom and Security PAC plans to donate to conservative candidates running for Congress and help the Republican Party across the nation.