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Brian Lehrer: Brian Lehrer on WNYC. Now, our monthly Call Your Senator segment. My questions and yours for Senator Kirsten Gillibrand. New Yorkers, call your senator if you have a question or you can ask for help with a government benefit or a bureaucratic hurdle. We get calls for her like that sometimes or with any micro-lobbying you want to do in the short time you'll have on the air. 212-433-WNYC. People not in New York may also call, 212-433-9692. Call or text.

My questions today will be mostly on the new risk that much of the government will shut down tomorrow night because President-elect Trump and Elon Musk rejected a bipartisan spending deal, Senator Gillibrand's request to President Biden that he declare the Equal Rights Amendment ratified, her take on the threat level from any of the drones that people are seeing. I think she has a new letter to officials about that this week. Her take on some of the nominees.

As a member of the Armed Services Committee, her take on the new defense spending bill, which Congress did pass this week, even though many Democrats are unhappy that it includes a ban on covering gender-related health care for children of service members. Anyway, Senator Gillibrand, always good to have you do these Call Your Senator segments. We really appreciate it. Welcome back to WNYC.

Senator Kirsten Gillibrand: Thanks so much. I'm happy to be on the show.

Brian Lehrer: Again, listeners, your questions, requests for help with the bureaucracy and micro-lobbying, welcome here at 212-433-WNYC. Call or text. Let's start with the ERA, the Equal Rights Amendment. What are you asking President Biden to do and with what legal rationale?

Senator Gillibrand: We are asking President Biden to stand up for what he believes in, which is equality for all women. He has one thing he could do to push this forward, which is to call on the archivist to sign and publish it because, interestingly, all the things that Article V of the Constitution requires to create a constitutional amendment have already been met. Two-thirds of the House and Senate passed this constitutional amendment in the '70s, and then the states went about ratifying it over many years.

The last state to ratify it, the 38th state required, was in 2020 and it was Virginia. At the time, unfortunately, the president was President Trump. He directed his Office of Legal Counsel to issue a memo, telling the archivist that they could not publish the ERA because it took too long. Now, if you read that memo, they do not cite the law correctly. They are misleading in many respects. The advice that they give the archivist is legally wrong. The archivist declined to sign and publish.

In this administration, we have been urging for a new OLC memo, a new Office of Legal Counsel assessment. We've been urging for President Biden to simply tell the archivist that it is her duty to do so and she should sign and publish it. Lots of legal scholars have been also making their views heard. The ABA just issued a memorandum saying that everything needed for the ERA to be signed and published has been completed and that the law supports the archivist doing this to make it the 28th Amendment to the Constitution.

Brian Lehrer: The ABA, the American Bar Association. There's no deadline in the Constitution even though Congress has generally observed a deadline practice. There is, though, the issue of five conservative states, Kentucky, Tennessee, Nebraska, Idaho, and South Dakota, if I have that right, that have rescinded their original ratifications. You don't have three-quarters of the states anyway if you count those rescissions. How do you get around that?

Senator Gillibrand: The law does not permit rescissions. There has been several times states have tried to unwind ratifications and publishing of constitutional amendments. They tried to do it with the 14th Amendment. A bunch of states tried to rescind that in the 1800s. Same with the 19th Amendment. Tennessee tried to withdraw its ratification before the 19th Amendment giving women the right to vote. The archivist did not recognize that either.

Any time in history that states have tried to rescind their ratification, they've been denied. It's because Article V does not provide for rescinding ratifications. Article V was very purposeful. It said that it takes a while to amend to the Constitution, and that to do so, you need this kind of support. It doesn't give Congress the right to set deadlines. There's nothing that says they can set a deadline or rush the states in any way. Then it doesn't tell the states that they can take away their ratification if they change their mind later.

They wanted this constitutional process to be purposeful. The law states and all the precedent we have so far is that there's nothing in Article V that lets you to set a deadline. Then cases that have had deadlines, Supreme Court cases have said the deadline doesn't matter. There's precedent to support, ignoring the seven years that Congress first put on this, and for the archivist to go ahead and do her job.

Now, interestingly, the archivist is not someone who's supposed to analyze the law. They're not supposed to do their own legal research. They're not supposed to have an opinion one way or the other. They're literally just supposed to sign and publish, which is the act of telling the country that the 28th Amendment is part of the Constitution. Some legal scholars like Laurence Tribe believes it is already the 28th Amendment, that her act of signing and publishing is purely ministerial, and that she's supposed to be notifying the country and the states that they're supposed to uphold the law.

We're just asking the President to add his weight and his view that it has been ratified and duly ratified and passed by Congress as required by Article V and it, therefore, should be the 28th Amendment. If the archivist refuses to do this after President Biden tells her to do it, then he should direct his Department of Justice to issue an Office of Legal Counsel memo saying what the ABA opinion has now said that the status of the law is such, that everything needing to be done for the ERA has been done. If she then refuses, then she should be fired. He has got at least three plays in him if this is something that he believes in. I believe it is something he believes in.

Brian Lehrer: You've been asking President Biden to do this. Do you have a response?

Senator Gillibrand: I don't. I've been asking for a White House meeting for a long time so that I could go toe-to-toe with whoever in the White House doesn't like this idea. Whatever lawyer thinks it's a bad idea, I would like to be able to dispute that in front of the President. The President has all the facts before he makes a decision. I've been asking for that. I've been able to have some very short conversations with President Biden in photo lines when he was in New York City for commemoration of Stonewall.

I got in that photo line and I knew I had about 30 seconds, so I pitched the idea. He seemed to really like it. He said, "You want me to make a big deal about this?" I said, "Yes, I do," because I really felt the archivist would listen to the Commander-in-Chief, who is in charge of the Office of Legal Counsel. These memos, by the way, that the Office of Legal Counsel issues, they're just advisory. She doesn't work for the DOJ. She's not beholden to them. She's certainly not beholden to an OLC memo that the Trump administration wrote because, again, they're just advisory. She has a ministerial job. She's supposed to do it.

Brian Lehrer: Let me give you one piece of pushback from somebody who I think is pro-Equal Rights Amendment. I don't know if you know Emily Amick, former counsel to Senator Schumer, but she criticized what you're trying to do on her Instagram. I'm going to read from this post. It says, "It's classic sloppy politics from the same group of people who are at the helm for the overturning of Roe. Terrible legal strategy they have and will keep losing."

She says this is going to wind up at the Supreme Court, which we know who's on the Supreme Court, and they're going to knock it down. "Terrible political strategy. It will not help protect abortion rights and terrible messaging. Biden is blocking the ERA," if he doesn't sign it or doesn't make this order, "when, in fact, it's Republicans who are blocking," says Emily Amick. Quick response to her?

Senator Gillibrand: Sure, she's deeply misinformed. The weight of the legal community is in favor of this approach. Not only do we have an ABA, which is the American Bar Association, new opinion, it's number 51 or 61. What is it? It's a new opinion and it says, "This is the weight of the law." Second, we have 23 attorneys general from pretty much any purple or blue state you can think of, including people like Josh Shapiro, who have signed onto briefs that are making this very argument. On the law, she's certainly wrong.

Brian Lehrer: Governor of Pennsylvania. Josh Shapiro, governor of Pennsylvania.

Senator Gillibrand: Correct, when he was attorney general, yes. Including our own Tish James is on these briefs. The weight of the law is with us. The weight of legal scholars, Laurence Tribe is with us. I am a lawyer. I've practiced litigation in New York City for over a decade. I very much understand the law. I took the time to read all these legal decisions, to read all these opinions, to read literally the body of literature that talks about this very issue. I doubt she has. That's point one.

Point two. Yes, this will get litigated to the Supreme Court. Yes, we may lose in the Supreme Court, but I believe a president like President Biden who believes in equality and believes in women's rights should use every measure that is in his wheelhouse to use to make the Equal Rights Amendment part of the Constitution. The American women deserve equality. It is absurd and obscene in this day and age that we don't have equality. When we don't have equality, this Supreme Court issues an opinion like Dobbs and says something so outrageous.

It says that women of reproductive years do not have a right to privacy. Red states across this country have been using this discrimination by saying women cannot cross state lines to get access to healthcare services, women cannot receive medicine in the mail that they need for many reasons to not have that right to privacy, that women can't have conversations with their mothers on Facebook privately without being investigated or prosecuted. It is an outrage.

If men in America were told, "When you are of reproductive years, you do not have a right to privacy, to cross state lines, to receive medicine in the mail, and to have conversations on social media," there would be a revolution. I promise, if we had an Equal Rights Amendment and courts looked at, is it being applied equally where men have this right to privacy but women don't? I think the Dobbs decision would fail.

We know something else that your caller may not know. States have Equal Rights Amendments. States like Connecticut and states like New Mexico have used their state constitution Equal Rights Amendment to mandate that women's reproductive care cannot be abrogated. If men can receive all reproductive care but women cannot, it is fundamentally unequal. Those plaintiffs in those cases were women on Medicaid who needed access to abortion and they were given it.

There is great legal precedence that if you had an Equal Rights Amendment, one application would be guaranteeing us a right to privacy, guaranteeing us a right to travel across state lines to get access to reproductive care, guaranteeing our ability to have conversations confidentially on social media, guaranteeing us the right to get medicine in the mail. Maybe it applies to equal pay for equal work, many applications, because women are still discriminated against in society on many, many levels.

Since this is something President Biden believes in and he said so many times, "I will do everything in my power to protect equality, to protect women, to protect reproductive rights," this is something he could do today. He can publicly call on the archivist. He can issue a declaration or a proclamation himself just like the Emancipation Proclamation. He could direct his Office of Legal Counsel to issue a new opinion, rescind the one from the Trump era.

When President Obama was president, he rescinded the torture memos that President Bush's Office of Legal Counsel wrote because they were legally erroneous. If any lawyer read through Trump's era OLC memo, they could find a myriad of legal mistakes and legal errors and overreach. I believe this is legally based. This is politically based. Yes, if it goes to the Supreme Court and we lose, at least we fought to the very end.

I would dare this Supreme Court or the Republican Party ripping out the 28th Amendment from the Constitution that guarantees equality. Because regardless of what someone might believe about abortion or any application of equality, most Americans overwhelmingly believe American women deserve equality. We've polled it. We know it. As we go to these red states, back to Emily's concern, politically, when we have ERAs on the ballot and reproductive rights on the ballot in red states, we win.

We won in Kansas. We won in Kentucky. We won in Montana. We almost won in Florida. We got 56% of the vote. This is something the majority of America supports. This is very politically smart. It is legally appropriate. It is legally sound. I'm just asking President Biden to do something he believes in and use all the power in his arsenal to protect women, women's rights, and reproductive freedom.

Brian Lehrer: All right. Well, now, we'll see if President Biden hears your call and does it. Our monthly Call Your Senator segment with Senator Kirsten Gillibrand. Senator, we're going to let a caller take us in to this development of Trump and Musk killing the bipartisan three-month spending bill yesterday after it was agreed to by Speaker Mike Johnson and Democratic leaders. Margie in Pine Bush, New York, you're on WNYC. Hello, Margie.

Margie: Yes, hi. I just don't understand how Elon Musk can have so much power like he was not elected to anything and Trump isn't even president yet. I just don't understand why we're hearing Elon Musk on the news all the time. He is not an elected person and I just don't understand it.

Brian Lehrer: Margie, thank you. Senator?

Senator Gillibrand: A couple of things. I agree with the caller. She's exactly right. Elon Musk wasn't elected to anything. I'm sure he didn't even read the bills. I think he has no idea what was in there and why the investments in disaster relief, why the investment in our troops, why the investments matter. Second, the fact that President Trump is listening to Elon Musk decide what his White House believes in, who's president? Is it Trump or is it Musk? That's a huge problem.

Musk is inserting himself. Is he the speaker of the House? This is not his job. He doesn't know what he's doing and he's not even read the bill. There are so many questions and so many concerns. The problem we have is this Republican Party is so afraid of their shadow. They are so afraid of President Trump's wrath. They are so afraid of standing up for their constituents. They're just not doing their jobs. It is a conundrum.

I hope this is not a telltale sign of who's running things in a Trump administration, someone who's an oligarch, who's a billionaire, who has no concern for working people and what this disastrous railroading of this bill will mean. This could mean funding doesn't go to hospitals. It could mean funding don't go to schools, funding don't go to roads, funding doesn't go to public safety, funding doesn't go to our police officers, our firefighters. It could mean anything, anything that matters to our communities and our voters. It's a huge problem. It's just a very big concern that our Republican Party will not stand up for their constituents, number one, and number two, that President Trump is letting someone else control his administration, which is not good.

Brian Lehrer: Meanwhile, there is a spending bill that did get passed this week, the annual defense authorization bill, close to $900 billion for the military in the next 12 months. This bill includes a ban, as I mentioned in the intro, on covering gender-related health care for children of service members. We have a text on this. Listener writes, "Question for Senator Gillibrand. What was your rationale for assisting in passing the first federal anti-trans legislation in over a decade as part of the NDAA? As a trans-New Yorker," the person writes, "I feel betrayed." What would you say to that? I gather you voted yes on this defense authorization bill that included that provision.

Senator Gillibrand: I don't support the amendment. I think it's harmful and hurtful. It is something that, again, demonizes the smallest number of people who desperately need access to health care. We don't even know how many children this will affect, but we know it's a mean-spirited amendment. It's for talking points and it's for political purposes. The rest of the bill has a lot of very meaningful things to help the United States, to help our men and women who serve in the military, who keep us safe and secure.

I worked on a number of provisions within the bill to help all of these issues. For the personnel, it has a 4.5% pay increase for our service members, plus an additional 10% pay raise for our junior enlisted service members who are often in need of food stamps, in need of public assistance because they don't get paid enough. It allows for more resources to go into these families.

I sat with families on Staten Island who could not afford housing because it was so expensive, because they're in the New York City market. Their basic needs allowance did not cover what they needed to feed their families. They were using food stamps. They were going to soup kitchens. They were going to various assistance throughout the community. That's important.

The second thing that I worked a lot on is addressing some of the problems we still have with traumatic brain injury. One of the big successes is men and women who are training in the service are often shooting large weapons. They shoot it very close to their heads. It creates enormous trauma for their brains, similar to what happens with football players getting hit over and over and over again. A bunch of changes to address that was in there.

Brian Lehrer: Right, so let me jump in for time purposes if I can.

Senator Gillibrand: Go ahead.

Brian Lehrer: I guess the question is, despite all those things that you support in the bill and worked on in the bill, one might ask, why not stand on principle and force a national debate on that dehumanizing culture war provision about not allowing funding for children of service members who need gender-related care like Trump and Musk are forcing this debate now on the items that they don't support in the other spending bill? Do they just have more fight in them and more spine than the Democrats do?

Senator Gillibrand: Brian, I care deeply about the LGBTQ+ community. I have fought to make sure transgender service members can serve in the military. I led that with John McCain and Susan Collins. I am responsible for repealing Don't Ask, Don't Tell. That was my legislation that we moved and got that done. There's no question that I stand for LGBTQ community members and for children. The benefit of this bill is so important for our national security and for so many things that we've worked on on a bipartisan basis to get done.

This was not the hill to die on and it is a fight that will continue. For the caller who feels that they were somehow discriminated against in this bill, I can tell you, this is a fight that will continue. We will continue to help and make sure we protect as many people as we can. You cannot let the perfect be the enemy of the good. If you do that, you will lose so many good things that you have fought for millions of people who are serving in the military and for the entire nation to keep us safe. You can't die on every hill. Because if you do, you will be ineffective and you will not help the people you are asked to represent.

Brian Lehrer: Eric in Brooklyn, you're on WNYC with Senator Gillibrand. Hi, Eric.

Eric Weltman: Good morning. My name is Eric Weltman and I'm an organizer with Food & Water Watch. We are hoping that Governor Hochul will sign the Climate Change Superfund Act, a legislation forcing the fossil fuel industry to help pay for the destruction caused by climate change. It's the kind of legislation the Democrats should embrace, showing that they're willing to take on the greedy corporations that are driving up prices and reaping record profits while poisoning our health, our communities, and our environment. We're wondering, Senator Gillibrand, if you would co-sponsor comparable federal legislation that was introduced in the House of Representatives by our very own Representative Jerry Nadler and in the Senate by Senator Van Hollen.

Brian Lehrer: Senator?

Senator Gillibrand: I don't know about the state bill at all, whatever it says, but what I can say is I've been a champion and a leader on cleaning up brownfield sites. I stand for the principle the polluter pays and I've been extreme, extremely aggressive and you aren't getting resources for that.

Brian Lehrer: Let me just say for the listeners' benefit. The state bill, if Governor Hochul signs it, we did our Climate Story of the Week on it on Tuesday, would require major fossil fuel companies to pay a certain amount of money toward the damages in New York State that the climate pollution has caused over time. He's asking you to co-sponsor a federal bill that would do the same thing at the federal level.

Senator Gillibrand: I'd have to look at it. I'd have to study it and figure out what mechanism they're using, but I do stand for the principle that polluters should pay. I've been working very hard to make sure we get resources to clean up. The PFAS and the PFOA in our water systems stood up against Saint-Gobain and other manufacturers that resulted in tainting our water, particularly with the PCBs as well in the Hudson River. I've constantly stood up to make sure that we clean the river and that, again, the polluter is responsible. I will look at the legislation and see what I think about it. I will see if there's any federal similar legislation or any ideas similar and see whether I support it.

Brian Lehrer: All right, last topic, Senator, as we're almost out of time. The drones over New York and New Jersey. Here's Pentagon spokesman John Kirby on CNN on Monday.

John Kirby: After days and days now of forensics work, analysis, detection work, and looking at the tips that came in, and our assessment is that these drones represent lawful, legal, commercial, hobbyist drones, even law enforcement drones.

Brian Lehrer: John Kirby sounding pretty unequivocal there, Senator, about this being a lot of hype over non-issue. I think I saw you're not convinced, but you tell us.

Senator Gillibrand: Well, I'm definitely not convinced. I think their statement was too absolute and wasn't sufficiently nuanced to reflect the truth of the matter. For example, if New York received thousands of calls after there was some drone sightings about people seeing things in the air, many of those, maybe even 99% of them, are more likely to be known aircraft, helicopters, enthusiast drones, law enforcement drones, a hundred different things.

I can promise you, and this I know is a fact, that some of these drone incursions over military bases and over nuclear sites and over sensitive locations across the United States, including New York, including New Jersey, are not something that we should be dismissing. We should take them down and assess whose they are because they cannot say they have no concern until they do that.

I've had no reporting and no information that they've actually done that. We know that there are Chinese companies that own farms and fields across the United States where these drones could be launched. We know that adversaries could have vessels on the coast that could launch these aircraft. This is something that we are aware of and we know is possible, so why would you assume that everything's an enthusiast or a friendly? It's irresponsible, in fact.

I have legislation with Tom Cotton to require that the DoD has the authority to take drones down that are having incursions over military bases and other sensitive sites. Right now, they don't have the authority to take them down unless they show malign intent. The definition of malign intent does not include hovering. If a group of drones are hovering over Langley, for example, they could be stealing data and information, doing intel retrievals and spying. They could have a weapon, any kind of weapon that's just there waiting to be used.

If you can't take them down until they do something that's adversarial, that's a huge national security risk because they clearly could be getting digital information and spying. No one should be so certain that there's no problem here. The drone incursion over Langley lasted for two weeks. The drone technology there was something that radar could not detect. I believe that's going to have similar evidence in other places around the United States, other sensitive military sites.

I have not heard whether we have any information about the most recent drone incursions. We had them over Stewart Air Force Base. We had them over an arsenal in New Jersey. We had them over Wright-Patterson Air Force Base. We had them over several other bases over the last two weeks. Yes, maybe 99% of the sightings that people see may well be accounted for. It doesn't mean we know what these drone incursions are, specifically the ones that are oversensitive sites, because we have not been told in any hearing in any setting that we know who is flying these drones.

Brian Lehrer: One quick follow-up since you're talking about taking them down. What standards of safety would you want them to apply before they shoot down a drone that might come down in a populated area in Central New Jersey or wherever it is?

Senator Gillibrand: I would recommend and this certainly law enforcement and the FBI and Homeland Security and the DoD would be highly responsible for figuring this out, but there's ways to do it. You can capture a drone by using a net. You can capture a drone and you can hack a drone and change its flight path and have it land. There's many ways you can change the flight of a drone without shooting it down. Shooting it down over a population base where it could fall on people is very dangerous.

I don't think anyone is recommending that, but you could certainly do it over a military base. If you've got drones over your buildings or over your runways, they can take them down. They can use multiple ways to take them down. They just don't have the authority to do it right now. They also don't have the authority to track them. If they're coming and going, we would like to track them and take them down. I'm going to try to get the authority to do that. We had emergency legislation on the floor to do something about this.

Rand Paul objected because he's afraid of surveillance of US citizens. I appreciate that concern. We don't want surveillance of US citizens. I need to know that these are domestic drones in the first place. I don't know that they're not Chinese, Russian, or Iranian. I don't know that they're being operated by an American perhaps, who's being paid by the Russians, the Chinese, or the Iranians. I don't know that. Until I know that, there's still a significant national security concern.

Brian Lehrer: That's our Call Your Senator segment for this month. Senator Gillibrand, we always appreciate your accessibility for doing this and answering my questions and those from listeners. Happy holidays.

Senator Gillibrand: Happy holidays and thanks for all the callers. Appreciate it.

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