updated 3/28/2013 10:27:36 AM ET 2013-03-28T14:27:36

THE LAST WORD WITH LAWRENCE O`DONNELL
March 26, 2013

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

Guests: Dustin Lance Black, Chad Griffin, Julian Epstein, Stuart Milk,
Krystal Ball, Ari Melber, Joy Reid


LAWRENCE O`DONNELL, HOST: Day one of marriage equality before the
United States Supreme Court and we have two LAST WORD exclusives: the
Academy award winning writer of "Milk" and the nephew of Harvey Milk both
join me tonight.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: The fight over gay marriage comes to the nation`s
capital.

UNIDENTIFIED MALE: A watershed moment at the United States Supreme
Court.

TAMRON HALL, MSNBC ANCHOR: Today`s historic hearing on same sex
marriage.

UNIDENTIFIED MALE: Prop 8 is having its day in court.

JOY REID, THEGRIO.COM: California`s same sex marriage ban.

CHRIS JANSING, MSNBC ANCHOR: Is there a constitutional right to same
sex marriage?

UNIDENTIFIED MALE: We believe that Proposition 8 is constitutional.

JANSING: That states cannot deny.

TED OLSON, ATTORNEY: No one really offered a defense.

UNIDENTIFIED MALE: And then there were two high profile lawyers.

DAVID BOIES, ATTORNEY: I like it a lot better when this guy is on my
side.

UNIDENTIFIED MALE: David Boies on your left, and Ted Olson on your
right.

OLSON: We are confident where the American people are going with
this.

UNIDENTIFIED MALE: Allies in the fight for same sex marriage.

OLSON: No one really offered a defense.

UNIDENTIFIED MALE: We`re not going to reargue the case out here on
the sidewalk.

OLSON: It`s just wrong, it is not consistent.

UNIDENTIFIED MALE: This is about human rights, civil rights.

UNIDENTIFIED FEMALE: Opposition to this is aging out.

UNIDENTIFIED MALE: This thing is not going backwards.

BILL O`REILLY, FOX NEWS: I want all Americans to be happy, I do.

BOIES: It`s now in the hands of the Supreme Court.

UNIDENTIFIED MALE: Now, it`s in the hands of the court.

UNIDENTIFIED MALE: Demonstrations, though, they began early in the
morning.

UNIDENTIFIED FEMALE: Proposition 8 is a discriminatory law.

UNIDENTIFIED FEMALE: There are no second class citizens.

UNIDENTIFIED FEMALE: It hurts the children we`re raising and it does
so for no good reason.

UNIDENTIFIED FEMALE: There are no second class marriages.

UNIDENTIFIED MALE: We know how this is going to end.

UNIDENTIFIED MALE: It`s not just a legal brief, this is about people.

UNIDENTIFIED MALE: This is going to end with our full acceptance.

UNIDENTIFIED FEMALE: Opposition to this is aging out.

UNIDENTIFIED MALE: And even the conservatives, even they know it.

(END VIDEOTAPE)

O`DONNELL: After the Supreme Court`s hearing this morning on
California`s ban on marriage equality, the first surprising news we heard
came from the two lawyers fighting for marriage equality.

(BEGIN VIDEO CLIP)

DAVID BOIES, CHALLENGING PROP 8 & DOMA: There was no attempt to
defend the ban on gay and lesbian marriage. All that was said in there was
that this important constitutional right ought to be decided at the state
level.

TED OLSON, ARGUED CHALLENGE TO PROP 8: No one really offered a
defense for the awful discrimination that takes place when gay and lesbian
citizens are not denied the right given to everyone else to have the family
relationship recognized and respected equally.

(END VIDEO CLIP)

O`DONNELL: Charles Cooper, the lawyer defending California`s
Proposition 8 before the court got this question from Justice Sonia
Sotomayor.

(BEGIN AUDIO CLIP)

JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: Outside of the marriage
context, can you think of any other rational basis, reason for a state
using sexual orientation as a factor in denying homosexuals benefits or
imposing burdens on them?

CHARLES COOPER, LAWYER: Your Honor, I cannot.

(END AUDIO CLIP)

O`DONNELL: Mr. Cooper found himself trying to defend the preposterous
idea that marriage is just for making babies.

(BEGIN AUDIO CLIP)

JUSTICE STEPHEN BREYER, U.S. SUPREME COURT: I mean, there are lots of
people who get married who can`t have children.

JUSTICE ELENA KAGAN, U.S. SUPREME COURT: If you`re over the age of
55, you don`t help us serve the government`s interest in regulating
procreation through marriage. So why is that different?

COOPER: Your honor, even with respect to couples over the age of 55,
it is very rare that both couples, both parties to the couple are infertile
and the traditional --

KAGAN: No, really, because if a couple -- I can just assure you, if
both the woman and the man are over the age of 55, there are not a lot of
children coming out of that marriage.

(END AUDIO CLIP)

O`DONNELL: And then Mr. Cooper found himself desperately trying to
lash himself to the wreckage of marital fidelity in America.

(BEGIN AUDIO CLIP)

COOPER: Your Honor, again, the marital norm which imposes upon that
couple the obligation of fidelity.

SOTOMAYOR: I`m sorry, where is that --

(END AUDIO CLIP)

O`DONNELL: There was a lawyer in front of the United States Supreme
Court trying to base his argument on what he calls the marital norm of
sexual exclusivity, and sadly, Newt Gingrich was not there to cheer him on.

The point was laughable, if the court had time to laugh, but they
ignored that nonsense to focus on the relevant issues.

Joining me for an exclusive interview are two of the founders of the
group that is backing the challenge to Proposition 8, Dustin Lance Black,
the Academy Award-winning screenwriter of "Milk", and Chad Griffin,
president of the Human Rights Campaign. And also joining us is Julian
Epstein, former chief Democratic counsel to the House Judiciary Committee.

Lance Black, I just have to ask you -- as a dramatist sitting in that
room full of drama today, what were you most struck by?

DUSTIN LANCE BLACK, SUPPORTING PROP 8 CHALLENGE: Oh, I mean, being in
that courtroom, it`s story telling at its most epic. I think what I
learned most in the process, four year process, is that the courts are such
a wonderful place for gay and lesbian people to tell our stories, because
unlike ballot initiatives, the opposition actually have to come to court
and testify under oath, and if caught lying, they`re called out for those
lies.

It is a great place for gay and lesbian people to tell our truth.
And, you know, that`s really how we made all of this progress quickly, is
telling our personal stories so that people get to know us, that they know
they know us.

So, you know, it was the ultimate and beautiful, liberating story-
telling.

O`DONNELL: Chad Griffin for those of us not in the courtroom, who
didn`t have that honor today, it was quite striking to see your lawyers
come out and tell us that there really was no defense offered that they
heard on the notion of forbidding gay people for marrying each other.

CHAD GRIFFIN, HUMAN RIGHTS CAMPAIGN: Lawrence, there never has been.
Since the day that we followed this case and that historic trial happened
nearly four years ago, we set out to prove those three things. And that`s
exactly what was before this court, that marriage is a fundamental
constitutional right that this court has found on 14 occasions, that there
is grave harm done to our plaintiffs and those like them and their families
in the state of California.

And third, and perhaps most important and something that`s counsel for
our opposition had a hard time with today, there is absolutely no harm done
by allowing same sex couples the right to marry. It doesn`t hurt anyone
down the street. It doesn`t hurt a neighbor or another straight couple,
and that`s exactly what we heard once again in court today, and they
continued to struggle, countering those three points.

O`DONNELL: Julian Epstein, what do you think was the legal linchpin
in the day?

JULIAN EPSTEIN, FORMER HOUSE JUDICIARY COMMITTEE COUNSEL: It is a
fascinating and complicated case, Lawrence. There are as many as seven
different outcomes here. If the court wants to arrive at a decision on the
merits, it could that there`s an equal protection guarantee for same-sex
marriage in 50 states, which I think is the only equal coherent protection
reading. It could find that there`s equal protection guaranteed for same-
sex marriage in eight states that have civil unions, which is the
opposition of the Obama administration, that could find that there is a
constitutional protection just in California, consistent with what the two
lower courts had held, or it could find in fact that there`s no
constitutional guarantee to same-sex marriage.

The problem is that there aren`t five votes for any of those
positions. So I think what it looks like right now is that the court is
actually moving to actually dismiss the case. Even if it dismisses the
case, it could do it on one of three different possibilities. It could find
that there`s no standing, it could find the case was improvidently granted,
and that`s a -- improvidentially granted, which is a complex way of saying
the court shouldn`t have taken the case in the first place, or it could
find that it doesn`t want to arrive at the decision for other reason on its
merits.

And I think the likelihood here is you`ll see Kennedy kind of kick the
can down the road, punt on this, if you will, and join with four liberals,
and throw the case out, find it was improvidently granted, which in the end
of the day will mean that it`s a victory for California, because
Proposition 8 will be vacated. But it still leaves the elephant in the
middle of the room as to whether or not there is an equal protection
guarantee for same-sex marriage, and that, of course, will also be part of
the case tomorrow in the DOMA arguments.

O`DONNELL: Well, yes, Lance, that is front and center in tomorrow`s
argument it seems like.

BLACK: Well, I`m telling you, I do not think this fight is done for
any of us until we have full federal equality. You know, if you look back
30-plus years to Harvey Milk, who was taken from us, he started talking
about before his assassination taking this fight federal. And that means
that, you know, in my case, I have a big brother that came out to me when
we were shooting "Milk." I love my big brother.

But when he came out to me, he didn`t sound hopeful like I did. I
came out in California, he came out in Virginia. And he didn`t have laws
protecting him. He didn`t see a future where he had freedom and have his
love -- his future marriage -- his family respected and protected, and
that`s a tragedy. And he passed away never knowing what it feels like to
be a full American.

That is why we are taking this federal. That`s why none of us are
going to be happy and satisfied until we have all 50 states, you know? And
I think hearing those arguments in front of the nation today and
understanding that all Americans deserve full equality, and full
recognition and protection of their relationships, I think this is moving
the narrative forward at a great pace. And that Americans understand that
this has to be a federal issue now.

EPSTEIN: I think that`s exactly right, Lawrence. You know, Justice
Hand used to have -- Learned Hand had a famous saying that law in the
justice system is really the dead hand of the past.


And what he meant by that was the laws and judicial system represented
the values and the mores of the earlier generation. And that`s the
existential question the court is faced at, because this was pointed out.
I think that marriage equality is going to be the law of the land because
more of what`s going to happen at the ballot box than perhaps inside the
Supreme Court.

And the question the court has to really reckon with now is, is there
a valid -- at some point, they`re going to have to deal with the equal
protection challenge, which as I said, Kennedy is trying to -- I think
trying to avoid right now. But when they deal with that, regardless of
what level of review, as we discussed on the show before, there are three
levels of review when you get into equal protection analysis, you still
have to make an argument, opponents of same-sex marriage, that there`s some
a rational reason for denying same-sex marriages.

And the most interesting thing in today`s court was when the
proponent, when Cooper tried to make the case as to why there is a
government interest in banning same-sex marriages, he really couldn`t
articulate one. And that`s the astonishing thing right now. The arguments
made on behalf of the opponents of same-sex marriage are really in many
ways quite laughable today, which is a dramatic change from where we were
2008.

O`DONNELL: Chad --

EPSTEIN: Sorry --

O`DONNELL: Chad, let me ask you. With your legal team in there
today, what do you think they saw as the things that give them the most
encouragement and the clearest signals about how to argue their case
tomorrow?

GRIFFIN: You know, look, I am not a pundit or legal scholar, so I
think I will leave that to Julian to articulate what those justices, what
one could read or perhaps not read. But I know from our perspective,
having Ted Olson and David Boies in that courtroom today, a Republican and
a Democrat, representing those four plaintiffs and their families who are
seated before those justices, we couldn`t have had a better team in there
articulating why Proposition 8 is unconstitutional, why it should be erased
from our books forever.

And I know that those who are working so hard to make the case for
DOMA, and to make the case that DOMA is unconstitutional, and how Edie
Windsor, the plaintiff in that case, was treated when her wife Thea passed
away and she received a $360,000 estate tax bill simply because they were a
same sex couple, that`s outrageous. That`s outrageous. That is
outrageous.

And we look forward to seeing those arguments tomorrow. I will again
be in the courtroom tomorrow, look forward to hearing that case made as
well.

O`DONNELL: Lance, are you going to be in the courtroom tomorrow?

BLACK: I won`t be there tomorrow. I`m certainly going to be paying
attention. The wonderful thing is the entire country is paying attention.
I think we`ve come to a time where the entire country, they`re saying why
are we treating anyone as a second class citizen, you know, why do we have
second class marriages in some states and no relationship recognition in
other states.

That time has to stop. That is un-American. And I`m so proud of this
country right now for recognizing that, paying attention, and saying to
their leaders, hey, it`s time -- it`s time to treat people fairly.

EPSTEIN: But I think tomorrow will be a better day for proponents of
same-sex marriage. In the case of Proposition 8, I think you have a case
where Justice Kennedy doesn`t want to apply equal protection to all 50
states. DOMA is a case where the government is denying benefits to those
who are legally married in nine states that have same-sex marriage right
now. What he is doing, and I think you will see DOMA invalidated, you will
see Kennedy join with four liberals to cross the Rubicon on this equal
protection case. And that I think is the most important thing that we can
see legally for same-sex marriage advocates.

O`DONNELL: Dustin Lance Black and Chad Griffin, thank you for being
our witnesses to history today. Julian Epstein, thank you for joining us
also.

BLACK: Thanks, Lawrence.

GRIFFIN: Thank you, Lawrence.

O`DONNELL: Coming up, in a LAST WORD, exclusive, nephew of gay rights
leader Harvey Milk joins me in his first national interview.

Gabby Giffords` husband Mark Kelly bought a gun, but now, the gun
store owner won`t let him have it because the gun store owner doesn`t like
Mark Kelly`s politics.

And in the "Rewrite," tonight, the lies of Senator Ted Cruz have
people comparing him to the disgraced senator, Joe McCarthy. A comparison
that doesn`t bother Ted Cruz a bit.

(COMMERCIAL BREAK)

O`DONNELL: Sixteen years ago when Defense of Marriage Act became law,
only one Republican in Congress voted against it, just one House member.
Every Republican senator voted for it, and all of the rest of the
Republicans in the House voted for it, while Congressman Steve Gunderson of
Wisconsin stood alone.

(BEGIN VIDEO CLIP)

STEVE GUNDERSON (R), FORMER WISCONSIN CONGRESSMAN: Frankly, I want to
ask you, why shouldn`t my partner of 13 years be entitled to the same
health insurance and survivor`s benefits that individuals around here, my
colleagues with second and third wives, are able to give to them?

(END VIDEO CLIP)

O`DONNELL: Republican Congressman Gunderson said that in a House
chamber where the speaker of the House was Newt Gingrich, who was then in
his second marriage, and was not so secretly having an affair with the
woman who would go on to be his third wife, Callista, who worked as a
staffer for Congressman Steve Gunderson.

Up next, a LAST WORD exclusive. Harvey Milk`s nephew, Stuart Milk,
will join us.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: This is the Marriage Bureau, but it`s taken over
by the gay activist alliance. Your mother and dad want to get married, are
they gay?

Oh, I`m sorry, we can`t help you. No, no, I can`t, I`m sorry. But
you come down and talk in person, I will be glad to talk to you. Give you
some free wedding cake. We may have a gay celebration at the chapel. We
have to think about it. Probably, oh, yes, we`ll be here quite awhile.

(END VIDEO CLIP)

O`DONNELL: We`ll be here for quite awhile. The 20 and 30 something
activists who took over New York City`s Marriage Bureau in June of 1971 to
fight for marriage equality would be in their 60s and 70s now. Those who
remained in New York state saw that battle won 40 years later in June of
2011, when Governor Andrew Cuomo signed marriage equality into law.

Martin Luther King, Jr. famously said the arc of the moral universe is
long but it bends toward justice. Some people like those activists stand
bravely at the head of that arc, while others like the Prop 8 defenders
outside the Supreme Court today cling to the injustices of the past.

(BEGIN VIDEO CLIP)

GARY BAUER, "AMERICAN VALUES" PRESIDENT: I`m a Republican. Let me
say to my party, if you bail out on this issue, I will leave the party and
I will take as many people with me as I possibly can!

You are all standing up against a powerful movement. You know that.
It`s got Hollywood on its side. It`s got the culture on its side. It`s
got the corporate elites and weak-kneed politicians get all squishy when
they see these folks. What do we have to stand up against that?

Well, all we`ve got is a couple thousand years of Western
civilization, the teachings of every major faith, common sense, and the God
of Abraham. That`s who we`ve got.

(END VIDEO CLIP)

O`DONNELL: But they do not have Bill O`Reilly.

(BEGIN VIDEO CLIP)

MEGYN KELLY, FOX NEWS: When you ask, for example, I had an interview
with Tony Perkins of Family Research Council, what is it about calling
marriage, calling a gay union marriage that offends you, how does it hurt
traditional or heterosexual marriage? And I didn`t hear anything
articulated that was particularly persuasive. What people go back to --

O`REILLY: I agree with you 100 percent. I agree with you 100
percent.

KELLY FEMALE: Wow, OK.

O`REILLY: The compelling argument is on the side of homosexuals.
That`s where the compelling argument is. We`re Americans. We just want to
be treated like everybody else.

That`s a compelling argument. And to deny that, you got to have a
very strong argument on the other side.

KELLY: And the argument on the other side --

O`REILLY: And the other side hasn`t done anything but thump the
Bible. I live in New York, I am fine with it. I want all Americans to be
happy, I do.

(END VIDEO CLIP)

O`DONNELL: In 1977, Harvey Milk became was the first openly gay
person elected to public office in the state of California, when he won a
seat on the San Francisco Board of Supervisors. He was in office less than
a year, helping to pass a landmark gay rights ordinance before he was
assassinated, while at work in his office, in city hall.

Joining me now for his first national television interview, the late
Harvey Milk`s nephew, Stuart Milk. He is the cofounder and president of
the Harvey Milk Foundation, which supports LBGT freedom movements on five
continents.

Thank you very much for joining me tonight, Stuart.

STUART MILK, HARVEY MILK FOUNDATION: Oh, it`s a pleasure to be here,
Lawrence, on such a historic night.

O`DONNELL: Well, you know, these are the nights when we think of
Harvey Milk, we think of the people that were in this battle decades ago
and we wish he was around so we could ask him how he feels. He`d be 83 I
think now. And he`d be watching Bill O`Reilly agree with him on something
like this.

What does it feel like for you this historic week in the Supreme
Court?

MILK: Well, it`s an amazing -- it`s an amazing journey we`ve been on.
And I really do see my uncle as actually being with us in many ways. You
know, a lot of people ask me if I`m saddened that my uncle didn`t get to
see a day like today, a day when so many people would be authentic and be
asking for the celebration of their -- of their marriages and celebration
of who they are and their authenticity.

And I always answer that my uncle did see that, which is why he was
able to give his life, why he knew that those bullets were coming but he
was willing to take them, and it`s really important to understand that just
as we heard the opponents to equality talking about not having an argument,
there`s really not a good argument against authenticity. People coming
out, people letting people know who they are and who we are is not the lies
and the myths and innuendoes that are spread against LBGT people, but we`re
their neighbors, we`re their cousins, we`re their children. That breaks
through everything.

And marriage equality sets the bar much, much higher. We have been
arguing and talking and fighting for nondiscrimination, and in some ways,
that`s the language of tolerance. Now we`ve got young people and people
like Chad Griffin and Dustin Lance Black, who you just had on who said, why
aren`t we going for the whole enchilada? Why aren`t we going for marriage?

Because marriage sets the bar in a positive light, it`s celebration.
It`s not tolerance. It`s celebration. It`s saying, we`re your neighbors,
we`re your friends, we`re your family, celebrate us.

And this setting the new bar at marriage has really leapfrogged the
LBGT rights movement, like we have never seen. It`s really a historic time
for all of us.

O`DONNELL: The Anti-Defamation League has put out a new video called
"Imagine a World Without Hate" in which they imagine we didn`t lose some of
our heroes at such young ages. Let`s look at that a second.

(VIDEO CLIP PLAYS)

O`DONNELL: Their headline for your uncle was "Harvey Milk expands
LBGT equality globally," which is exactly the fight you have been in, that
you`ve chosen. As we know, Lance Black`s brilliant movie about Harvey Milk
I think brought him to an entirely new generation who may not have had such
an awareness.

What is it like for you now post-movie when you talk about Harvey?

MILK: Oh, it`s been a great educational instrument because we find
people all across the world, in particular in cultures and societies where
we have tremendous diminishment of not just LBGT people, of women, other
ethnic and racial minorities, and they saw this man build collaborations,
and proudly talk about who he was, and stand up for and say you must come
out and say you must talk about who you are and you must let people know --
don`t hide, take off that mask.

That has really resonated, in particular, like I said, in countries
where they`re facing tremendous oppression. And so, he`s become a beacon
of light and a beacon of hope, and we have been able to build upon that
message throughout the world.

O`DONNELL: Stuart, before we go, I think we have a picture of you and
Harvey that I`d like to get on the screen if we can. There you are, you
and your uncle. Not sure what year. But I`m sure you`ve seen that before.

Stuart Milk, cofounder of the Harvey Milk Foundation -- thank you very
much for joining us tonight.

MILK: Thank you.

O`DONNELL: Coming up, the latest South Carolina poll is very good
news for the Colbert family. Stephen Colbert`s sister is now officially
the frontrunner in her congressional campaign.

(COMMERCIAL BREAK)

O`DONNELL: Art is usually ahead of the curve. Artists frequently get
there first, and then society follows. Yes, there is art in sitcoms, as
there was in this episode of "the Golden Girls" written a full 22 years ago
by Mark Cherry, Jamie Wooten and Susan Harris.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Oh, look, I can accept the fact that he`s gay.
But why does he have to slip a ring on this guy`s finger so the whole world
will know?

UNIDENTIFIED FEMALE: Why did you marry George?

UNIDENTIFIED FEMALE: We loved each other. We wanted to make a
lifetime commitment. Wanted everybody to know.

UNIDENTIFIED FEMALE: That`s what Doug and Clayton want, too.
Everyone wants someone to grow old with, and shouldn`t everyone have that
chance?

UNIDENTIFIED FEMALE: Sophia, I think I see what you`re getting at.

UNIDENTIFIED FEMALE: I don`t think you do. Blanch, would you marry
me?

(LAUGHTER)

UNIDENTIFIED FEMALE: Thank you, Sophia. I need to go talk to them.

UNIDENTIFIED FEMALE: Fine. But I`ll need an answer. I`m not going
to wait for you forever.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

O`DONNELL: In the spotlight tonight, gun control for gun control
advocates only. Two weeks ago, Gabby Giffords` husband Mark Kelly bought a
used military style rifle, which he said he planned to donate to the Tucson
Police Department. When the gun nuts questioned why a gun store would
cooperate with a gun control advocate, the owner of the store posted this
statement on Facebook: "Mr. Kelly is a U.S. citizen and Arizona resident
exercising his Second Amendment rights to legally purchase and own a
firearm. To suggest that we should refuse a lawful sale to any qualified
individual because we may disagree with the individual`s political or
personal views on a particular subject is wrong and is not a business
practice that my company or our employees would ever engage in."

Ever meaning, well, you know, not today anyway. But somewhere during
the city`s mandatory 20 day waiting period for used weapons, the gun store
owner changed his mind. Here is what he posted to Facebook yesterday:
"while I support and respect Mark Kelly`s Second Amendment rights, his
recent statements to the media made it clear that his intent in purchasing
the Sig-Sauer M-400 5.56mm rifle from us was for reasons other than for his
personal use. In light of this fact, I determined that it was in my
company`s best interest to terminate this transaction."

Joining me now, MSNBC`s Krystal Ball and Ari Melber. And so Krystal,
tonight we have in America at least one merchant of the tools of murder who
is unwilling to sell them to at least one American.

KRYSTAL BALL, MSNBC POLITICAL ANALYST: Standing up for gun control,
yeah. I like that when the politics of the issue went to a place that he
didn`t like, not only was he ready to discard the Second Amendment but also
the first and any others that would be convenient to get the gun nuts on
the blog back on his side. One of the things that has been interesting in
this debate is when you talk about the specifics of the issue, when you
talk about what we are actually advocating for, things like universal
background checks, the public is very much in support.

But they want to keep it in the broad terms of Second Amendment and
freedom rather than digging down into those specifics. So that`s sort of
the turf that this battle is being fought on.

O`DONNELL: Ari, polls continue to show that there is very, very
strong support for background checks, for the legislation that the Senate
Democrats are trying to push through there. But of course, we got the
threat today, official threat today in writing by Rand Paul, Ted Cruz that
they will object to the motion to proceed, which of course we knew anyway,
that you were going to need 60 votes to get to the motion to proceed. It
is unclear whether they`re going to do one of their grandstand filibuster
performances on this. But they`re going to definitely try to stand in the
way.

ARI MELBER, "THE NATION": Yeah, look, I think we`re watching Rand
Paul and Ted Cruz learn the rules of the Senate as they go along, begin
their Senate terms. So they have hit on this idea of trying to have more
dramatic filibusters. I think this is one where all they are doing is
drawing attention to the fact that Republicans have a standing threat on
these cloture motions, making the Democrats come up with 60. Harry Reid
said with regard to the assault weapons ban a week ago -- he said right
now, that amendment, using the most optimistic numbers, has less than 40
votes. That`s not 60.

The assault weapons ban being something that a lot of us care about.
And Reid took it as a given that there would be a 60 vote requirement. So
that`s something that`s wrong with the Senate, wrong with the ways
Republicans do obstruction. I think this is a louder version of it.

O`DONNELL: Krystal, when we see incidents like this where a gun store
owner is saying, I`m not going to sell it to Gabby Giffords` husband
because I do not like what he thinks, we are seeing the madness that is out
there on the other side of this issue. And here is a guy, by the way, who
didn`t sound crazy just a few days ago.

BALL: Right.

O`DONNELL: And now is completely gone around the bend.

BALL: Well, they`re bullies on that side. If you aren`t 100 percent
with them, then they go right into the slippery slope argument. And the
next thing you know, we are going to have tyranny and the government is
going to come and take all of the guns away. And this is the way that the
NRA has won on this issue and thinks that they will continue to win, rather
than talking about the specific choices that we could make, the limited
legislation that we`re talking about. They speak in these broad terms
about freedom and demonize anyone who isn`t 100 percent where they want
them to be.

O`DONNELL: Krystal Ball and Ari Melber, thank you both for joining me
tonight.

BALL: Thanks, Lawrence.

O`DONNELL: Coming up, Senator Ted Cruz is in the Rewrite tonight
because he seems to have absolutely no problem when you compare him to a
disgraced former senator who was censured by the Senate and then drank
himself to death. It`s OK with Ted Cruz if you say he might be like Joe
McCarthy.

And the latest poll in South Carolina shows the Colbert bump is really
working for Stephen Colbert`s sister.

(COMMERCIAL BREAK)

O`DONNELL: In tonight`s Rewrite, 21st century McCarthyism.
Dictionary.com defines McCarthyism as "the practice of making accusations
of disloyalty, especially of pro-Communist activity, in many instances
unsupported by proof or based on slight, doubtful or irrelevant evidence."

McCarthyism is, of course, named after the 1950s Republican Senator
Joe McCarthy, who made wild accusations about communists running our
government back when, you know, communists were not running our government.
Senator Ted Cruz has recently been compared to Joe McCarthy. The "New
Yorker" ran this invaluable piece by Jane Mayor, "Is Senator Ted Cruz Our
New McCarthy."

The "New Yorker" is way too classy to do the cheap trick of sticking a
picture of McCarthy next to a picture of Cruz, when asking the question "is
Senator Ted Cruz our new Joe McCarthy." But any fair minded judge would
have to admit that there is a bit of a resemblance there.

The McCarthy comparison has come up because Ted Cruz tried to slander
Chuck Hagel during his confirmation hearing and because Ted Cruz really is
the last person left in America and possibly the world who is still worried
about communists. And like Joe McCarthy, he is so worried about communists
that he lies about communists and is especially fond of lying about who is
a communist.

In 2010, at an event in Texas funded by the billionaires Charles and
David Koch, and reported to us by Jane Mayer, who was there, Ted Cruz
actually said that when he was at Harvard Law School, a few years after
Barack Obama, there were 12 professors there who, quote, "believed in the
communists overthrowing the United States government."

Like Joe McCarthy, Ted Cruz knew he was lying when he said that. He
knew there wasn`t a single professor at the Harvard Law School who was a
communist who believed in overthrowing the United States government. But
he also knew that he could safely lie about the people who tried to educate
him in the law to people who would never find themselves anywhere near the
grounds of the Harvard Law School, and so lie he did.

Despite being publicly challenged on this lie on this program and
elsewhere, Ted Cruz, not surprisingly, has not revealed the names of his
imagined 12 communist professors. And he has not revealed the name of even
one of them because -- and he never will -- because, of course, they did
not and do not exist. We`ve seen a lot of mud slinging in the Senate since
Joe McCarthy`s time. We have seen a lot of character assassination in the
Senate. But we have never seen anything quite so perfectly and childishly
McCarthy-esque as Ted Cruz.

And so one of his own state`s own newspapers decided to ask him about
Joe McCarthy. Todd Gillman of the "Dallas Morning News" interviewed
Senator Cruz recently and asked him, quote, "is McCarthy someone you
admire?"

Now, there`s only one conceivable answer to that question, and no more
than one word should ever be necessary to answer that question. And that
word is, of course, no. "Is McCarthy someone you admire" is not a trick
question. It couldn`t be simpler. And the answer couldn`t be simpler.

But for Ted Cruz, it is a question that he refused to answer. What
would Joe McCarthy do with a witness like Ted Cruz if Joe McCarthy asked
him, is so and so someone you admire, and Ted Cruz`s answer was, I am not
going to engage in the back and forth and the attacks?

That actually was, word for word, Ted Cruz`s answer to "is McCarthy
someone you admire." "I`m not going to engage in the back and forth and
the attacks." Ted Cruz could not bring himself to say no, I do not admire
Senator Joe McCarthy. Here is what the world knows about Senator Joe
McCarthy. He was a lying alcoholic who was censured by the Senate in 1954
and drank himself to death three years later at the age of 48. That`s the
guy Ted Cruz maybe admires or maybe doesn`t.

The Senate censure resolution against Joe McCarthy actually used the
word "condemned" instead of censure. Censure didn`t feel like a strong
enough word to them. That`s how bad a senator Joe McCarthy was. The vote
to condemn Joe McCarthy was a bipartisan vote, 67 to 22. Half of
McCarthy`s Republican colleagues voted to condemn him.

And Ted Cruz is not willing to say whether Joe McCarthy is someone he
admires. And he won`t say that because Ted Cruz wants to live in a world
where he can use Joe McCarthy`s tactics and get away with it. Joe
McCarthy`s lying provoked the most famous challenge to a senator in a
Senate hearing in the history of the Senate. And luckily for us, it
occurred at the dawn of the television age in a hearing in which McCarthy
was asked a question and like Ted Cruz, he could not answer it.

It is the question that effectively ended Joe McCarthy`s career: "have
you no sense of decency?"

(BEGIN VIDEO CLIP)

JOSEPH N. WELCH, COUNCIL, U.S. ARMY: Have you no sense of decency,
sir? At long last, have you left no sense of decency?

SEN. JOE MCCARTHY (R), WISCONSIN: Mr. Chairman, as a point of
personal preference, I would like to finish this.

WELCH: Senator, I think it hurts you, too, sir.

If there is a God in heaven, it will do neither you nor your cause. I
will not discuss it further. I will not ask Mr. Colt any more witnesses.
You, Mr. Chairman, may, if you will, call the next witness.

(APPLAUSE)

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

JIMMY FALLON, "LATE NIGHT WITH JIMMY FALLON": Your sister --

STEPHEN COLBERT, "THE COLBERT REPORT": -- she`s running for Congress.

FALLON: She`s running for Congress?

COLBERT: Yes. She`s going to be the Democratic nominee in the first
district of South Carolina.

I just hope that what I do for a living doesn`t sully her good
character.

She`s an incredible person.

She raised three kids by herself on a salary of like 14,000 dollars a
year.

FALLON: Really?

COLBERT: Yeah, and then went to college, made something of herself.
Now she`s going to be the Democratic nominee from South Carolina. Isn`t
that incredible?

FALLON: Very good.

(APPLAUSE)

(END VIDEO CLIP)

O`DONNELL: Tonight we have proof that what Stephen Colbert does for a
living is not sullying his sister`s good character. The first independent
poll for South Carolina`s special election to fill a vacant Congressional
seat shows that among likely voters, Democrat Elizabeth Colbert Busch polls
at 47 percent and Republican Mark Sanford polls at 45 percent.

This is in a district that voted for Mitt Romney by 18 points, John
McCain by 14. Here is Elizabeth Colbert Busch`s campaign message.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Elizabeth knows jobs. She`s worked her way up to
director of sales in a shipping company.

UNIDENTIFIED MALE: It is exports. It`s working with business and
creating thousands of jobs.

UNIDENTIFIED MALE: Elizabeth Colbert Busch, mother, grandmother, wife
an a Charleston business woman for 25 years.

ELIZABETH COLBERT BUSCH, CANDIDATE FOR U.S. CONGRESS: I`m Elizabeth
Colbert Busch and I approved this message because I am running for Congress
to create jobs in South Carolina. That`s what I know.

(END VIDEO CLIP)

O`DONNELL: Forty five percent of likely voters have a favorable
opinion of Elizabeth Colbert Busch, 31 percent have an unfavorable; 34
percent have a favorable opinion of Mark Sanford; 58 percent have an
unfavorable opinion of him. Former Governor Sanford`s truly horrible
favorable and unfavorable ratings will surely be a caution for any other
South Carolina politician who might ever be tempted to tell the truth about
marital troubles.

(BEGIN VIDEO CLIP)

MARK SANFORD, FORMER GOVERNOR OF SOUTH CAROLINA: I have been
unfaithful to my wife. I developed a relationship with a -- it started as
a dear, dear friend from Argentina.

(END VIDEO CLIP)

O`DONNELL: Joining me now, MSNBC`s Joy Reid. Joy, it turns out that
Elizabeth Colbert Busch has a small lead over Mark Sanford, but Mark
Sanford doesn`t have that Republican nomination yet. He has to win that in
a runoff against what`s his name, Bostick -- right, Curtis Bostick. He has
a good -- he`s got a big lead over Bostick right now.

JOY REID, MSNBC POLITICAL ANALYST: Yes, he has the name recognition,
for better or for worse, I guess you could say, Mark Sanford does. But
Bostick has an interesting story too, because Rick Santorum is actually
going to be campaigning with him tomorrow. So they`re trying to run to the
right of Sanford and sort of say that the true conservative sort of Tea
Party approved alternative is Bostick. I think it is likely Sanford will
still get it.

O`DONNELL: And I think we can expect Rick Santorum to hit the old
family values note down there against the former governor.

REID: Yes, no, absolutely. And it is interesting the way that the
two of them are running, right? So Elizabeth Colbert Busch is doing a
classic Democratic message, jobs, jobs, jobs. Mark Sanford is essentially,
if you look at his ads, running against Washington, running against
spending, sort of trying to craft a message that crowds out the issue of
family values. But there is a major, major wild card in this race. And
that is Jenny Sanford, Jenny Sanford who has the highest approval ratings
of anyone that you name tonight in all of these polls, in the public policy
poll. She is the being courted right by the Elizabeth Colbert Busch
campaign.

If she were to endorse Elizabeth Colbert Busch, that would be a game
changing move in this race, because what Mark Sanford is desperately trying
to avoid is any mention of family values, marriage, or the Appalachian
Trail.

O`DONNELL: Yes, Jenny Sanford favorable 55 percent, unfavorable 18
percent. But Elizabeth Colbert Busch, it seems, is silently rooting right
now for Mark Sanford to win that nomination, because she actually polls in
a tie at 43 to 43 with the other guy.

REID: Yes. And this is a district that is very, very conservative.
You showed the polling numbers for Barack Obama, for John McCain, versus
Mitt Romney, et cetera. So it is a very conservative district. And
Bostick fits I think ideologically probably more with the district. But
it`s tough for him to overcome, again, the name recognition that Mark
Sanford has.

Bostick would clearly run better against Elizabeth Colbert Busch, but
that poll also had a respondent rate that 54 percent women. Women are
going to be a huge factor in this race. And I think whether it`s Bostick
or whether it`s Mark Sanford, what Elizabeth Colbert Busch has going for
her is what she said in that ad. She`s a mom. She raised her children and
she`s a business woman. She`s doing jobs, jobs, jobs, and she`s running on
girl power. So I think she actually has a shot.

O`DONNELL: And she`s running in a district that is 55 percent female,
45 percent male. SO that sounds like it is the right mix for that.

REID: It`s the right mix for her and it`s a big, big problem for Mark
Sanford. Because again, Appalachian Trail.

O`DONNELL: Joy Reid gets tonight`s LAST WORD. And Joy, you`re
filling in at our noon hour all week, aren`t you?

REID: Yes, indeed. I am on at noon for "NOW" with Alex Wagner, and
of course Alex Wagner is at 8:00, so we`re all just sort of doing some
switching around in terms of schedules.

O`DONNELL: Thanks for joining us.

END

Copyright 2013 CQ-Roll Call, Inc. All materials herein are protected by
United States copyright law and may not be reproduced, distributed,
transmitted, displayed, published or broadcast without the prior written
permission of CQ-Roll Call. You may not alter or remove any trademark,
copyright or other notice from copies of the content.>


Watch The Last Word With Lawrence O'Donnell each weeknight at 10 p.m. ET