updated 11/13/2013 11:08:16 AM ET 2013-11-13T16:08:16

THE RACHEL MADDOW SHOW
November 12, 2013
Guest: Noam Scheiber, Nancy Northup


RACHEL MADDOW, MSNBC HOST: And thanks to you at home for joining us
this hour.

Sixty-seven thousand dollars -- $67,000 the latest data available from
the Census Bureau says that that is about the median net worth for a
typical American household. So, $67,000, that`s the middle. The fact that
it`s the median means that there`s an equal number of households that are
worth more than that and an equal number of households that are worth less
than that, the medium net worth for an American household.

The median net worth for an American member of the house, is that
number plus $1 million, almost exactly.

Those are the numbers if you round to the nearest thousand. These are
the exact numbers. Now, this is from the U.S. Census for the typical
household. You see, we just round it to the nearest thousand there. And
the bottom number there, that`s from the Center for Responsive Politics.
That`s the median net worth for this freshman class of members of Congress.

It`s weird, right? It`s almost uncanny, there`s almost exactly a $1
million increment in net worth between the wealth of Americans and the
wealth of American representatives in Congress. Congress is really rich
compared to the rest of the country. It has been that way for a long time.
And the disparity has been getting worse for a long time.

Between 1984 and 2009, the wealth of an average family actually
declined slightly. But the median net worth of a member of Congress, more
than doubled over that time. And Congress not only keeps getting richer
over time, they`re now getting richer faster. The median net worth of
incoming members of Congress, that $1,066,000, that net worth for the
freshman class is even richer than Congress already was when they got
there. They made Congress richer by getting there.

And you know what? Good for them, there`s nothing wrong with people
having lots of money, right? I mean, biblically, maybe, right? But in
terms of us making value judgments about what that says be whether people
are good representatives, that`s just a fact of Congress.

I do think, though, it is an underappreciated fact about our
democracy, that we essentially choose from among our millionaires who will
be our representatives in Washington. That`s essentially the pool that we
choose from.

And for some of the other truly epically rich members of Congress,
once you know how epically rich they are, it is hard to think about whether
or not that plays into the decisions they make in Congress.

So, take for example, the nomination of Jeh Johnson, to be the new
secretary of homeland security for our country. President Obama has
nominated him. He`s going to have his confirmation in the Senate tomorrow.

Jeh Johnson is a former federal prosecutor. He was general counsel
for the United States Air Force. For the past four years, he was the
general counsel of the Pentagon, of the whole Defense Department.

Well, today, Congressman Michael McCaul, Republican congressman from
Texas, went on a TV show called "Fox and Friends" and denounced Jeh
Johnson`s nomination ahead of that confirmation hearing. He didn`t just
say that he didn`t want Jeh Johnson essentially as chairman of homeland
security. He called him a name. He called him a political hack.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Here are some great people out there that are
apolitical, for example like our next guest, Ray Kelly. He didn`t go
there. He goes for Jeh Johnson, a lawyer.

REP. MICHAEL MCCAUL (R), TEXAS: I`m sorry, you called him what?

UNIDENTIFIED MALE: A lawyer.

MCCAUL: Yes. I mean, look, this guy is the president`s lawyer. He
is kind of the president`s lawyer, and I don`t want to put a political hack
in that position. I want someone who --

(END VIDEO CLIP)

MADDOW: Actually, he`s the Defense Department general counsel. He
didn`t call him a political hack. That`s Michael McCaul, Republican
congressman from Texas saying that if you are the general counsel of the
Air Force and the general counsel of the Pentagon, that`s the same thing as
you being the president`s lawyer, you`re a political hack, who`s obviously
unqualified for a national security job.

And, you know, maybe it does not matter in this case, maybe it does
not affect Congressman McCaul`s perspective that he appears to be the
richer person in all of Congress.

Once you know that about him, though, it`s hard not to keep that in
mind when you see him in action, when you see him in this case inveighing
against the guy and calling him a hack, and saying essentially that he
hasn`t earned what he`s got. Michael McCaul is the richest member of
Congress because he married a person who is going to inherit the Clear
Channel fortune. His wife`s father founded Clear Channel. Michael McCaul
married his wife and because of that and their shared assets, he is worth
an estimated half billion dollars, more than anybody else in Congress.

Does that affect his views about who has earned their way and who
hasn`t earned their way?

And there`s guys like Fred Upton. Fred Upton just had delivered to
his office back in Michigan, 91 bags of apples grown by a local farmer in
his congressional district in Michigan. The local farmer pleading with
Fred Upton, to please support immigration reform because he sees it as key
to the survivability of his farm.

I don`t know if Fred Upton is ever going to support immigration
reform. But if you are making a prediction about that, it may help you to
know about Fred Upton that he is the inheritor of the Whirlpool fortune.
Fred Upton`s grandfather founded Whirlpool, you know like washer dries and
stuff.

That`s kind of the biographical for lots and lots and lots of members
of Congress. Members of Congress you like, and members of Congress you
don`t like. It crops up all the time.

Jim Sensenbrenner, the congressman from Wisconsin, he turned up this
week in a really interesting story about whether there`s any hope of saving
the Voting Rights Act through action by Congress. It turns out Jim
Sensenbrenner may be the best hope that there is for any Republican
leadership on reinstating the bones of the Voting Rights Act, after the
Supreme Court tore it down this summer.

Also, Jim Sensenbrenner`s great grandfather invented Kotex. He`s the
heir of the sanitary fortune of America.

But that`s -- behind all these members of Congress, behind more of
them that you would think, that`s kind of the story of Congress --
Democratic and Republican, Senate and House, members of Congress you like,
members of Congress you don`t like, ones doing things you like, ones doing
things you don`t like, turns out they`re like -- they`re all heirs to some
fortune or married to some heir to some fortune.

Our Congress is very, very rich and getting richer all the time. Like
them or hate them, while the average American is not getting richer, the
average member of Congress really is getting richer, and that`s happening
faster and faster all the time right now. And whether or not it is
related, right now, the average American`s view of the average member of
Congress is the worst it has ever been in the history of asking people that
question.

The Gallup organization today released its polling data on the
American public`s view of how Congress is doing in terms of handling it`s
job, the number of Americans who say, yes, they like the way Congress is
doing its job right now is down to -- what`s that tiny little number down
there, oh, that`s a single -- yes, that`s nine. Nine percent, the lowest
number ever recorded in Gallup`s four decades of asking this question of
the American people.

Polling numbers for Congress have never been worse. They got really,
really bad during the government shutdown last month, not only have they
not recovered since then, they in fact have continued to drop, it has
never, ever, ever been this bad.

At the same time, though, at the same time that Gallup released that
data, they also just released data that might help our Richie Rich Congress
out of the mess they`re in with the American people hating them so much
because it turns out there is one thing that Congress could do, that the
president has in fact asked Congress to do, that Senate Democrats are
already working on that they say could be done by Thanksgiving if Congress
put their mind to it.

It would make Democrats happy, turns out it would make independents
happy, turns out it would make Republicans happy. It is just about the
most popular thing that congress could conceivably do and it`s totally
logistically in reach for them to do it right now, right away.

Look at this support. Nothing gets support like this. Among
Democrats, 91 percent. Among Republicans, it`s 58 percent. Among
independents, 76 percent. Overall more than three-quarters of Americans
are in favor of raising the minimum wage.

Raising the minimum wage is more popular than sunshine. It`s more
popular that extra cheese. It`s more popular than insert funny hyperbolic
statement here.

Among Democrats and independents and Republicans, when you ask regular
Americans if they like this idea, it is wildly popular. And actually
popularity is going up.

When New Jersey voters went to the polls last week, they re-elected
their Governor Chris Christie by a 22-point margin, but they also
overturned their governor`s veto of a rise in the state minimum wage.

They voted on it even after Christie vetoed it. New Jersey`s going to
go from a $7.25 federal minimum wage to a dollar more than that. Plus,
it`s going to be scheduled to go up with inflation. No thanks to Chris
Christie, the people of New Jersey decided that on their own.

So, Gallup numbers to raise the minimum wage, that raises the minimum
wage to $9 an hour, which is what President Obama proposed in the State of
the Union back in February. Democrats in the Senate say they are right now
moving on a $10 minimum wage, and they say they certainly plan a vote on it
by the end of the year. They may even be able to get it done by the end of
this month.

Congress has not voted to raise the minimum wage since 2007. But the
fact that they did it then, and they did it all the other times that they
raised it since it was first established in 1938 at 25 cents an hour, all
of those examples of having raised it in the past gives us a lot of
evidence, gives us tons of empirical evidence about what happens when we
race the minimum wage.

We know what happens when we do this. It turns out, when you raise
the minimum wage, people who are working for minimum wage get paid more
money, and that`s pretty much it. That`s basically the impact of raising
the minimum wage.

Earlier this year, there was a comprehensive meta analysis, a study of
studies on the minimum wage, the impact of raising the minimum wage. That
came out. And it graphs, what all those other studies have found to be the
impact of the minimum wage when we had raised it in all sorts of
jurisdictions across the country.

This is the graph they came up with in terms of when you look at all
of the studies of the impact of raising minimum wage, this is basically
where they come out. Do you want to know where that spike is there? Just
look that digit right before.

Zero, this is the pile of studies, this is the overall meta impact of
what studies say the impact is of raising the minimum wage. This is the
impact of employment prospects when you raise the minimum wage. Zero
effect on employment prospect.

The University of Chicago put out another big meta survey of economic
experts asking whether or not they agreed with the statement that racing
the minimum wage on balance was a good thing to do for people at the bottom
end of the economic spectrum, and economists, again, surveyed by the
University of Chicago say, yes, this would be a good idea. This would
work, this is a good idea.

This is not like trying to invent a time traveling teleportation probe
to put people on Jupiter or something. This is something that has been
done over and over again. It`s been incrementally over and over and over
again, in all sorts of different jurisdictions, federally and across the
country starting in the Great Depression.

We have done it to an effect that is empirically observable, studied
and known. We know what happens when you raise the minimum wage, people at
the bottom of the economic spectrum do better and economic inequality is
lessen. It is a wildly popular policy.

Even Republican voters like the idea of doing this. Democrats in
Congress love the idea of doing this. The president wants to do this.

But Republicans in Congress at least so far are standing against it.
Even just in the Senate, senators like Rand Paul and Marco Rubio and Lamar
Alexander, all just in the last few months have said, not just that the
minimum wage shouldn`t be raised, but maybe the minimum wage should not
exist at all. Maybe the minimum wage should be zero.

Republican voters not only want the minimum wage to exist, they want
to raise it. Just like all the other voters want to raise it. It is
really an overwhelmingly popular thing that Democrats support and
Republican politicians don`t, despite their own voters. And that is the
definition of political opportunity.

If your side supports something that is wildly popular, and the other
side is against it, that is a political opportunity. If you support
something that is so popular that even the voters from the other parties
are with you on it and they`re against their own politicians on it. That
is a political opportunity.

On paper, this is a simple thing. But it is also the greater wedge
issue that has ever been invented in the history of Democratic politics.

Democrats should be able to use this as an issue to cleave a majority
of Republican voters away from their own politicians. Why haven`t they`ve
been able to do that, and what would it take for them to do it.

Joining us now is Noam Scheiber. He`s senior editor for "The New
Republic." He`s the author of the cover story in the latest issue, which
is called "Hillary`s Nightmare: A Democratic Party that Realizes Its Soul
Lies with Elizabeth Warren Instead."

Mr. Scheiber, thanks very much being here.

NOAM SCHEIBER, THE NEW REPUBLIC: Thanks for having me.

MADDOW: You have been looking at the prospects of Elizabeth Warren`s
political future as a sort of lens in a way for looking economic populism
and issues about class and money within the Democratic Party, whether that
is the future of the Democratic Party`s politics.

What`s your conclusion broadly speaking?

SCHEIBER: Yes, no question. I mean, any way you slice the data, it`s
very hard to not see this trend toward populism in the party. If you look
at, you know, Gallup -- you mentioned a Gallup survey, they have done a
number of surveys tracking this over the years. Before the crisis,
Democrats suspicions of the size and influence of corporations, about half
of Democrats were kind of suspicious, now, it`s more like 80 percent.

If you look at their views on banks and what they think about the
banking sector, the number of Democrats who feel very negatively toward big
banks has more than quintupled since before the crisis. Their views on
regulation, this comes from actually a few surveys -- the support for
government regulation of business has increased by roughly 17 points since
before the crisis. I mean, you go down the list and it`s clear that the
orientation is increasingly populist direction.

MADDOW: And, you know, you look at Elizabeth Warren as maybe the
standard bearer or a symbol of this in Democratic politics. Obviously,
she`s a brand-new senator and nobody really knows where she`s going in the
party.

But I feel like it`s not Elizabeth Warren and Bernie Sanders are sort
of temples of this in the Republican Party. It`s Sherrod Brown, it`s Jeff
Merkley. It`s Ron Wyden. It`s a lot of senators and a lot of sort of, I
think, I guess it would consider them to be Democratic A-listers who line
up more on that side than the traditional sort of DLC centrist, pro-Wall
Street Democratic past.

Who championed the other side of it, though? Is it Hillary Clinton?
And if so, who else?

SCHEIBER: Well, you know, it remains to be seen. I mean, Hillary has
obviously has a strong record fighting for kind of, you know, populist
economic issues in certain respects. I mean, universal health care in the
`92 campaign is a very sort of populist position.

But, you know, there`s no question that the Clintons have been close
to a number of Wall Street alumni over the years, Robert Rubin being the
most famous example. But, you know, the sort of intellectual descendants
of Rubin continue to be close to the Clintons to this day.

You know, then you have the kind of people that you would expect,
people who`s on states, you know, the financial sector is very strong,
whether it`s Delaware, and the senator like Tom Carper, where the credit
card industry is very strong, or states like, you know, South Dakota where
a lot of banks are located.

You know, so it ends up being sort of the old story, the politics is
local, right? I think that`s where we see it.

But it`s interesting, this piece about Elizabeth Warren. I talk to
Connecticut senator, Chris Murphy, who was also elected in 2012 with
Elizabeth Warren. I asked him, how has this changed within the Democratic
caucus in the last two years. You know, just since 2008, say, and he told
me he thought that in 2008, before the crisis, the caucus was split roughly
evenly between Wall Street skeptics and Wall Street sympathizers, now he
thinks it`s more like 2/3, 1/3 -- 2/3 skeptics and 1/3 sort of sympathetic.

MADDOW: Noam, do you see on this issue of the minimum wage, we do see
Senate Democrats lead by Tom Harkin, but with a lot of support and with
support from the White House, pushing on this right now, it`s sort of going
to be the last thing that they push on between now and Thanksgiving, maybe,
they`re going to do this right away, is this sort of a test for both the
Democratic side of the aisle, but also to see whether or not this could
work as a wedge on the Republicans?

SCHEIBER: No, I think no question, I mean you`re absolutely right,
the polling suggests that rank and file Republicans are exactly where most
Democrats are. And I really is a couple of holdouts, one of which is the
restaurant industry, which is very powerful on the Republican side in
Congress, I think something like 50 percent, 60 percent of minimum wage
workers work in the restaurant industry. So, it`s understandable why
they`re so agitated about this.

And then you have some kind of economic libertarians, like a Rand
Paul, if you come at this sort of pure ideological perspective, I guess.
But the that is not a -- even close to a majority opinion in the Republican
Party, much less the entire country. So I think you`re right, it`s
absolutely a main stream issue and these other questions are very much
mainstream as well.

I mean, if you look at regulation of Wall Street, pollster Celinda
Lake does polling on support for regulations of the financial sector.
That`s gone from something like 70 percent immediately after the crisis, to
like 80 percent now. So, these are very kind of ecumenical issues.
They`re not by any means restricted to Democratic voters.

MADDOW: Noam Scheiber, senior editor for "The New Republic" and
author of their cover story, "Hillary`s Nightmare", which has tongues
wagging these days. Noam, thanks very much. Nice to have you here.

SCHEIBER: Thanks for having me.

MADDOW: I will say -- this issue about economic populism, it is one
of the things that sort of the Beltway and the punditocracy will always
pooh-pooh the issue, and always say, oh, Democrats shouldn`t go there,
they`ll scare the children.

Every time Democrats do go there, they tend to win, whether it`s a
ballot initiative on something like a minimum wage, whether it`s crusading
on something like regulating Wall Street, like Elizabeth Warren did and
then ousted an incumbent senator by eight points. I mean, when Democrats
work this stuff, it generally wins with them and the only thing you can
tell it`s coming is how loud the Beltway squawks that it`s going to fail
every time.

We`ll be right back.

(COMMERCIAL BREAK)

HAYES: It was the evening in the eastern U.S. and it was early
afternoon today in Hawaii when this happened.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Nineteen ayes, four noes and no excuse.

UNIDENTIFIED FEMALE: Senate Bill 1, House draft 1 passes final
reading. Madam clerk?

(CHEERS)

(END VIDEO CLIP)

MADDOW: That was Hawaii`s same-sex marriage bill being passed, 19
votes to 4 by the Hawaii state Senate. That bill will now go to the
Democratic governor of Hawaii and he will sign it tomorrow and then it will
be legal in Hawaii for same-sex couples to marry each other if they want
to.

For same-sex marriage opponents, some of whom you heard booing there
at the vote count, it was not their day in Hawaii. They did not prevail.
But for same-sex couples and also for Hawaii`s caterers and florists and
wedding photographers, well, there was much rejoicing. Aloha, here come
the brides.

Hawaii, tomorrow, will become the 15th American state, plus the
District of Columbia in which there is marriage equality. Illinois passed
its marriage equality law last week and the governor there is going to make
Illinois the 16th state to OK same-sex marriage. If you had to
characterize its direction right now, I think it would be fair to say that
same-sex marriage rights are advancing, and rapidly, and they are not just
legally advancing, they are advancing in broad terms.

The trends make it look like it`s even higher now, but as of this
summer, a clear majority of Americans favored marriage equality for the
whole country. Among moderates, it`s by 63 percent. Among independent
voters, it was 53 percent. Among women, it`s 56 percent. Among young
people of voting age, it`s 69 percent in favor.

That`s where the country is at right now on this issue, and it`s
getting more so all the time. Since the Supreme Court`s decision on the
Defense of Marriage Act this summer, more and more states have moved toward
equalizing their marriage laws. And when that happens inside a state, the
sky tends not to fall. And therefore, the arguments about how terrible
same-sex marriage would be for that state, tend to hold even less sway than
they might have held before once people could see what it was really like.

As public opinion goes, this is a public opinion train that has left
the station. But, among the national tier Republican politicians, among
even national tier Republican politicians whose future prospects are
supposedly staked on their crossover appeal and their electability, there
is not a single Republican among them right now who isn`t staunchly opposed
to letting gay people get married.

Even if it came to the rights and the feelings and the families of
their own children, every single one of them is against it right now, all
of them.

(BEGIN VIDEO CLIP)

GOV. CHRIS CHRISTIE (R), NEW JERSEY: If my kids came to me and said
they were gay, I would grab them and hug them and tell them I love them --
just like I would do with any of my children who came to me with news that
they wanted to me to give me that they thought were important enough to
open themselves up in that way.

But what I would also tell them is that dad believes that marriage is
between one man and one woman, and that`s my position.

(END VIDEO CLIP)

MADDOW: That`s his position, and it`s an interesting thing, as it
becomes more and more clear that the country has already made its decision
on equal rights for gay people, including on marriage. It becomes more and
more clear, that there`s a big divided here, right? It`s like on the
minimum wage. There`s no one among the real contenders for national office
who agrees where the country is going on this.

When the Boy Scouts decided to change their membership policy to stop
banning gay people from joining, anti-gay conservatives decided they were
going to form an alternative to the Boy Scouts, an alternative group that
would pledge to keep out the gays. They billed themselves as the Boy
Scouts for real men.

The Supreme Court stuck down the anti- gay marriage ban this summer,
lots of social conservatives said they were upset with the ruling, but it
took somebody as out there as the guy from the Jerry Falwell university law
school to say that that ruling was going to start a second American civil
war, it was going to start a revolution.

Well, this weekend, Republican Senator Marco Rubio is headlining a
dinner with those two guys I just described, with the guy who founded the
no gays allowed alternative to the Boy Scouts, a and the guy who wants a
new revolutionary war, or a new civil war maybe, in any case, he wants a
full blown American war because of the Supreme Court ruling on gay
marriage.

Senator Marco Rubio is appearing with them this weekend at an antigay
event in Florida. He`s the keynote speaker.

Senator Marco Rubio, like Governor Chris Christie, these guys are
supposed to be the Republican Party`s way out of the Democratic prism that
the Republican Party is in, where the party`s core policy ideas put
themselves at odds with not only most of the electorate, but with
specifically the fastest growing parts of the electorate.

But every single one of these guys, Marco Rubio included, Marco Rubio,
Chris Christie, Rand Paul, all the rest of them, all of them are in lock
step with the Mike Huckabees and Pat Robertsons on the gay rights issue.
So, it`s Rubio, it`s Christie, it`s Paul Ryan, it`s Scott Walker, it`s
every single other Republican national or pseudo national figure who wants
to be considered a possibility for 2016 for the Republican Party, because
they`re supposedly a young fresh face who can appeal to the kids.

Not a single one of them have broken rank on this issue. And, boy, do
the kids disagree with them on this issue.

Soon, there will be 16 states in the District of Columbia, where
marriage equality is the law of the land. Most Republican conventional
wisdom includes the idea now to having to broaden the party`s appeal beyond
its base of very, very conservative voters. Voters` views of same-sex
marriage rights are a matter of public record right now. But if national
Republican hopefuls don`t see the polling, don`t see which way this is
going, there will certainly be competing national candidates who do see,
and they will win while these guys lose.

Place your bets.

(COMMERCIAL BREAK)

MADDOW: The United States Supreme Court did something today that
might be unexpectedly far-reachings. It turns out it springs directly from
what one of my high school teachers had to do for me in 1990 to make me
stop cutting class. That story, which comes with comic books, is coming up
next.

(COMMERCIAL BREAK)

MADDOW: Last year, the international genius cartoonist, Garry
Trudeau, the guy who writes "Doonesbury," he launched a comic series on
Republican legislators and governors forcing women to have vaginal
ultrasounds that they did not want. "On behalf of Governor Rick Perry, may
I welcome you to your compulsory trance vaginal exam."

So, the woman is in the examination room and says she does not want
the vaginal exam. She gets told by the nurse, "Sorry, Miss, you`re first
trimester."

Next panel, "The male Republicans who run Texas require that all such
abortion seekers be examined with a ten-inch shaming wand." The woman
says, "Will it hurt?" The nurse says, "Well, it`s not comfortable, honey,
but Texas feels that you should have thought of that."

Then, the doctor about to perform the procedure says, "By the
authority invested in me by the GOP base, I thee rape."

And so, yes, a lot of papers decided not to run "Doonesbury" that
week.

"Look, though, would this be your first pregnancy termination?"
"Yes." "Then you`ll have to fill out this form. Please take a seat in the
shaming room. A middle aged male state legislator will be with you in a
moment."

And then in the next strip, the next day, we get to meet the guy who
was introduced in the previous day. I have to make a personal aside here.
When I was a senior in high school, I started to cut class a lot. I don`t
recommend doing this, but I did.

I started to cut class a lot and one of my teachers took an interest
in me and did me a huge favor by getting me hooked on classic "Doonesbury"
comic strips. She would start me on the new storyline in the first class
of the day and then she would send me the next installment in the storyline
by school internal mail. The next installment would not get to me until my
next class that day. And then the next installment would come in the next
class, and so on and so on all day long to all of my classes.

So I would have to go to all of my classes in order to find out what
happens next in the comic strip. It totally worked. It made me stop
cutting class when I was otherwise a totally apathetic high school senior.
And without "Doonesbury", I could not have done it.

So, anyway, here`s the end of one day strip. "A middle aged male
state legislator will be with you in a moment." And then, in the next
day`s strip, we get to meet him, there he is. "Young lady, I`m Sid
Patrick, one of the sponsors of the Texas sonogram bill. Would this be
your first visit to the center?" She says, "Oh, no, I have been using the
contraceptive services here for some time." "I see." Silence.

"Do your parents know you`re a slut? Surely, they suspect." "Nurse."

Gary Trudeau, international all-time comic genius and of course dozens
of papers across the country, not just in Texas, dozens of papers across
the country felt they had that shield their readers from "Doonesbury that
week, lest the readers be offended by his portrayal of reproductive rights
policy in Texas. And, frankly, that`s part of why the Internet will live
and physical papers will die.

But, of course, Texas is not the only state with a forced ultrasound
law on the books. Louisiana has one. Wisconsin has one. North Carolina.

It was last year that governor ultrasound, Bob McDonnell, earned his
governor ultrasound nickname when he signed into law a version of the
mandatory ultrasound bill for Virginia. Bob McDonnell had sponsored
legislation like that as a state representative. He signed it into law
when he became governor, even though he tried to distance himself from the
bill once it earned him lots of protests and national attention and, of
course, the nickname.

But then there`s the also the great state of Oklahoma, a state that
passed the mandatory ultrasound bill back in 2010. In addition to
requiring the ultrasound even if you do not require it, and your doctor
does not want you to have it, the Oklahoma law mandated that the doctor had
to show you the ultrasound screen and had to describe to you everything
that the screen could pick up, even if you didn`t want to hear that
description.

Most of these laws do not require women to watch, do not require them
to listen to the description in detail. Some of these laws at least allow
women to look away. But not in Oklahoma, the Oklahoma law, made you watch
against your will, made you listen. The Oklahoma law also mandated that
the ultrasound had to be an internal one. It had to be a transvaginal
probe by order of the state, for almost all abortions.

When Oklahoma passed their bill, it was quickly challenged in court.
The law has never been enforced in the state. Last year, the Oklahoma
Supreme Court struck the law down, saying it was unconstitutional.

Well, Oklahoma`s attorney general and other state officials appealed
that ruling to the United States Supreme Court and today, the Supreme Court
responded and said that Oklahoma law is staying dead. They refused to
overturn the state Supreme Court ruling that struck down the forced vaginal
ultrasound law in the first place. The court turned away the state`s
appeal without comment.

You know, remember, Oklahoma is not alone. "On behalf of Texas
Governor Rick Perry, may I welcome you to your compulsory transvaginal
exam."

Oklahoma is not alone in having a policy like this. And so, now,
here`s the question: did the U.S. Supreme Court make this decision on this
Oklahoma law because Oklahoma`s law is particularly bad in constitutional
terms? Because it was more out there than other states? Or should this
ruling today be taken as an indication that maybe all these states laws
like this, all of them, may be in more constitutional trouble than they
were before we all woke up today.

Joining us now is Nancy Northup. She`s president of Center for
Reproductive Rights.

Nancy, thanks very much for being with us tonight. It`s nice to have
you here.

NANCY NORTHUP, CENTER FOR REPRODUCTIVE RIGHTS: Thank you. It`s good
to be here.

MADDOW: So, tell me in your own words, from your perspective as the
organization involved in this case, what your perception is of the larger
importance of this ruling? Obviously, it has direct impact in Oklahoma.
Does it speak broader to the issue of these kinds of laws?

NORTHUP: Well, I think it does. The Oklahoma state court had a very
strong ruling in this case. That the Oklahoma forced sonogram law was
unconstitutional. And found it unconstitutional under Oklahoma`s
constitution, and the Oklahoma Supreme Court found it unconstitutional
under the federal constitution.

So, we are incredibly pleased that the Supreme Court is not going to
review this, it`s letting this strong decision stand. And we want to see
the same kind of decisions in other courts where these are going through.

MADDOW: Well, I know that a lot of these states that have rulings
like this on the books, they are either enjoined or de facto enjoined by
this issue being in the courts, or there being court rulings stopping them
from being implemented.

Do you expect to see similar rulings in, say, you now, North Carolina,
Louisiana or other states that have this direction?

NORTHUP: We certainly hope to see a similar ruling in North Carolina,
that`s a state in which on a preliminary basis, they have enjoined a forced
sonogram law like the one in Oklahoma. And that is still in the trial
court, but we are hoping if the facts and the Constitution is followed,
that we will have success in Oklahoma as well, and can put a stop to these
laws that are demeaning to women, do not trust women to make decisions that
are their own personal health decisions to make.

MADDOW: Nancy, in terms of the broader strategy here, we have seen in
the last few years and we have talked about it before on this show, we have
covered it extensively on the show. The way that Republican state
legislatures and governors have become more aggressive than at any time
since Roe versus Wade in terms of mounting new legal restrictions on access
to abortion, whether it`s the forced ultrasound bills or whether it`s bans
on when you are allowed to have an abortion, or hoops that you have to jump
through in terms of waiting periods, and laws that frankly make it
impossible for clinics to stay open.

Obviously, they think they`re going to be able to chip away at
abortion rights in a state by state way without ultimately getting to the
question of the constitutionality of abortion broadly. Is this leading to
a Roe versus Wade challenge, or are they trying to avoid one and they think
they can just get closer to it without hitting it.

NORTHUP: Unfortunately, I think it`s both ends. I think they are
both trying to see if they can chip away at Roe so much that basically the
tree trunk falls. And at the same time, they`re also happy to get up to
the Supreme Court and make a full run for having Roe overturned, and people
have to understand that the seriousness behind these laws.

But the real impact of them is what we need to be paying attention to.
You talked about Texas earlier, because the injunction that was won in the
district court. District court in Texas found that their law that makes a
trumped up regulation that you have to have admitting privileges, they
found it unconstitutional for good reason because a third of the clinics in
Texas cannot see patients right now because the fifth circuit court of
appeals lifted the injunction while we defend that win.

So, that is a real impact on women. And we`ve got to be sure if that
can happen in the second largest state, what is going to happen to access
across the country? You know, we`ve got to make sure that no matter what
your zip code is, that doesn`t depend on whether you can have your
constitutional rights afforded.

MADDOW: Nancy, if there was a direct challenge to Roe right now that
did make it to the U.S. Supreme Court, do you have confidence that the
court would uphold that precedent?

NORTHUP: Well, it`s hard to read what the Supreme Court is going to
do. Justice Kennedy was in the majority in the Planned Parenthood versus
Casey decision which reaffirmed Roe. I believe that the facts that we`re
seeing in states like Texas, if a case like that gets to the Supreme Court
that we`re going to I hope have Justice Kennedy see that the facts show
that women need access, that these kinds of laws are underhanded ways of
doing what the Supreme Court has said you can`t do. You can`t flatly ban
women from being able to get abortions and you shouldn`t be able to go
indirectly and in a sneaky ways to do what you can`t do directly.

And so, I am hopeful that the court will see that women need their
access to health care and that they need to stand by the strong decision
that they had in Roe.

MADDOW: Nancy Northup, president of the Center of Reproductive
Rights, thanks for helping us understand the impact of this decision
tonight. Appreciate having you here.

NORTHUP: Thank you.

MADDOW: All right. Even though the elections were a week ago,
there`s still no final results in one very crucial race, but we`ve got an
update and you will want to hear it tonight. Happening right now.

(COMMERCIAL BREAK)

MADDOW: Sometimes just the decision to vote can make a guy very,
very, very, very suddenly popular.

(BEGIN VIDEO CLIP)

REPORTER: Veteran Rob Smilke (ph) had hoped to spend his holiday
hiking in the woods with his dogs. But over the weekend, his phone started
to blow up.

UNIDENTIFIED MALE: People have been coming, Democratic Party calling,
Republicans calling, everybody calling, coming to the door, on my way up
here today, the cell phone is ringing off the hook.

(END VIDEO CLIP)

MADDOW: You wanted to go hiking. But then you went and voted and
now, everybody is calling. This is what is like right now in one part of
Virginia where the race is so close, and the rules about how to count the
vote are changing while the counting is happening.

And individual voters are being plucked out of their normal lives and
their normally planned hiking trips to come back to the elections office
and do work to try to make their vote count. There is a midnight deadline
on this tonight and the work is going on right now, and this is a weird and
developing story.

We`ve got the latest in just a moment.

(COMMERCIAL BREAK)

MADDOW: This is a Virginia voter today. Look at this. Kathy Jackson
is her name. Isn`t this an awesome picture?

She lives in Fairfax County, Virginia. Her picture got tweeted today
by a correspondent from WUSA. This is the caption "Kathy Jackson of Reston
is relieved after the Fairfax County Electoral Board gave a nod for her
vote."

Kathy Jackson had to vote with a provisional ballot in Virginia`s
elections this time. So, that meant it was not a sure thing that her vote
would be opened up and counted in this election. But Kathy Jackson showed
up to plead her case, to plead with the electoral board to please count her
vote. And thumbs up, she got the nod from the electoral board. Her vote
will be counted.

Ms. Jackson was one of dozens of people in Fairfax County who had to
make the trek back to the elections office over the last few days to argue
that their vote should be counted in this very, very close election. Each
of those people really, really matters right now, because Virginia`s
election isn`t over yet, a week after the polls close now.

I mean, we know that Ken Cuccinelli is not going to be the governor of
Virginia. We know that Bishop E.W. Jackson will not be the lieutenant
governor of Virginia. But will the Democrats sweep the statewide races?
We still do not know. We still have no idea who is going to be the
attorney general of the great commonwealth of Virginia.

In the race between Republican Mark Obenshain and Democrat Mark
Herring, Mr. Herring, the Democrat, now leads by 106 votes, out of more
than 2.2 million votes cast, which is really super incredibly crazy
unbelievably close.

In an ordinary election year, if you had to cast a provisional ballot,
if they wouldn`t let you cast a normal ballot for whatever reason and you
had to cast a provisional ballot, you might be annoyed. You might even be
outraged to learn your vote was never opened. Your ballot was never
opened. Your vote was never counted because they never even bothered going
through provisional votes because they wouldn`t make a difference. That
would happen in a typical year.

But in this race, in this year, oh, boy do they have to count every
single one, because just a fraction of the nearly 500 provisional ballots
that were cast in Fairfax County alone could easily swing this whole
election. By long standing practice, voters in Fairfax County, who got
forced into using a provisional ballot for whatever reason, they could ask
somebody from one of the parties to show up with the electoral board and
argue the case for their vote to be counted.

You could see here for instance, the signoff form used by Democrats
for the election last week. Quote, "I hereby appoint the Fairfax County
Democratic Committee to represent me at the meeting of the Fairfax County
Electoral Board to consider my provisional ballot and to advocate for
signing my ballot.

Now, the board would consider your ballot, whether you showed up or
not. Your presence was not required. But if you wanted to better your
chances, if you wanted to make the best possible case, that your ballot
should be counted, you could ask a party representative to make the case
for you. While you, went about the rest of your life. And lots of people
who cast provisional ballots signed up to do just that. That`s how it has
always been done in that part of the state.

But that changed on Friday. The election was Tuesday. They changed
that plan on Friday.

This is totally different from the way they have been running
elections in Fairfax County for years. But by order of the Republican-
dominated state board of elections, after the election itself, and in the
middle of counting the votes. Now, Fairfax County has been told they have
to change the y they counted provisional ballots.

Now, the state has ordered the county that representatives advocating
can speak up for voters` ballots if and only if the voters themselves
showed up in person.

(BEGIN VIDEO CLIP)

REPORTER: Veteran Rob Smilke (ph) had hoped to spend his holiday
hiking in the woods with his dogs. But over the weekend, his phone started
to blow up.

UNIDENTIFIED MALE: People have been coming, Democratic Party calling,
Republicans calling, everybody calling, coming to the door, on my way up
here today. The cell phone is ringing off the hook.

I think that every vote counts. This just sort of reinforces that
your vote really does count.

REPORTER: This voter came armed with documentation to prove he lived
and voted in Fairfax County. His driver`s license, conceal carry permit, a
tax form. If his ballot is accepted, it`s one for the Democrats.

UNIDENTIFIED MALE: I`m, you know, a veteran. I was looking forward
to doing Veterans Day things today, not coming done here. But voting is
the best thing about being a veteran, you know? So this was important to
me.

Voting, the best thing about being a veteran. Voting is a great thing
about being a citizen. And so, for the past few days, voters have been
streaming into the Fairfax County elections board, waiting for the chance
to defend their votes, because in this election as of Friday, you had to be
there personally if anybody was going to mount a case that your vote should
be counted.

That decision was made by the state elections board, they say, at the
direction of the office of Attorney General Ken Cuccinelli. Ken Cuccinelli
was the first attorney general in Virginia in 30 years to not step down
when he decided to run for another office.

Because he stayed on as the top`s state lawyer, even though the past
A.G.`s resigned. Virginia`s election rulings in this close race are now
being made on the advice of an office, his office, where the boss was one
of the guys on the ballot. Ken Cuccinelli`s office is making decision
about how to count the vote hour, to change the way volts are counted for
the first time in years, he`s making those decisions for his running mate,
whose election is too close to call.

Nobody -- I`ve got to tell you. Nobody in Virginia political
reporting is squawking abut this the way I am. And I will admit I seem to
mow more upset than any bed close to the story. I am not alleging anything
conspiratorial here, but if I were a Virginia voter, I might like to have
somebody who is not a candidate making the decisions. I think it matters
as a question. I think the facts about Ken Cuccinelli`s involvements are
the facts.

Today, as we were going to air, the Fairfax board of elections
finished deciding provisional ballots. Reports from the meeting show they
declared just over half the ballots to be valid. Based on the evidence for
why those votes should count, then they brought those ballots in. They
prepped the tabulating machines. They begin opening the sealed envelopes
containing ballots, so the counting could begin right away.

We`ve just got an unofficial report from the local NBC reporter on the
scene who says the Democrat in the race widened his margin by more than 50
votes with tonight`s voting. We`ll see when the official tallies come
over. This has been an amazing race. And it is not over.

Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".

Have a great night.

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

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