Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. Now it's time to call your senator. Our monthly call in with New York Senator Kirsten Gillibrand. Depending on time, we'll try to touch today on issues including the governor's race. Senator Gillibrand was at the Hochul victory event last night, the January 6th hearings, Supreme Court decisions on abortion and carrying guns in public in New York and more.

Also, Gillibrand's successful advocacy for a burn pits bill. We'll explain that issue if you're not familiar with it. That bill actually passed the gridlocked Senate, and she has introduced a framework to regulate cryptocurrency. There's news this morning that one of the biggest crypto hedge funds, Three Arrows Capital, has entered into a liquidation process, meaning selling all its assets, after defaulting yesterday on a $670 million loan. Buddy, can you spare a Bitcoin? Senator Gillibrand, thanks for coming on as always. Welcome back to WNYC.

Senator Kirsten Gillibrand: Thanks, Brian. It's great to be on your show.

Brian Lehrer: Listeners in New York, call your Senator with a question on those issues or anything else that's relevant to her work. People elsewhere can call too, 212-433-WNYC, 212-433-9692 or tweet @brianlehrer. Can we start with crypto? You know that market surged and that market crashed, we all know that. Who knows what the market will do in the future? That's the nature of risk in the private sector. What's the government's role in that according to your proposed framework?

Senator Kirsten Gillibrand: The recent collapse and this liquidation you've just mentioned are two of the many reasons why we need common sense regulation of the industry. Our bill is bipartisan, it creates basic safety and soundness, it creates consumer protections, and it creates transparency and accountability. It gives the regulators guidance on what their responsibilities are.

We asked the SEC to regulate all cryptocurrencies that will be defined as a security. Based on the legal standard that exists today, it's called the Howey Test. We created more definitions under the Howey Test, so it's very clear when something is a security. For example, if a cryptocurrency is being offered to raise money for a company, that would be a security. Then we gave CFTC the regulatory authority to regulate any digital asset that would be deemed a commodity. An example of a digital asset that's seen as a commodity is Bitcoin.

The reason why Bitcoin is seen as a commodity unlike, perhaps, other cryptocurrencies is because it's fully decentralized. It no longer is being offered for money, people just own it, it's self-regulating, and it's a entirely decentralized platform. The newer ones, there's over 15,000 cryptocurrencies, a lot of them are still being offered in the way you'd be offering the security. It gives a lot of responsibility to both the SEC and the CFTC to take pieces of this market.

It also gives the IRS regulation over all of it, and so you will have to pay your taxes when you make money in the same way that you make money when you buy stocks and hold them, like a capital gains. It also creates a framework for environmental disclosure. We want these different digital assets to disclose what type of energy they use, how they get it, who they pay for it, what's the process by which the energy's created, so that consumers can be the ones to decide what companies they want to support and why.

This regulatory framework is a great start. It creates a baseline for people to begin to debate, talk about, hammer through. We will have ultimately four committees of jurisdiction in the Senate. This will go through the AG committee. The AG committee's almost ready with their version of what they want the CFTC to do. That's going to be largely aligned with our bill, which we're very excited about. The banking committee at some point too will start having hearings to decide what the SEC will do.

The finance committee run by Senator Wyden, their committee wrote most of the tax provisions in our bill. When they take it up, that will be good. The last committee is the Intel committee, which is for the cybersecurity piece. What we wrote in that bill was a requirement for basically the most knowledgeable cyber specialist from NIST and treasury as well as CFTC and SEC to form a working group to create baseline cyber standards.

We need this bill. Once these committees start doing their work, they will see that this bill lands in a place where the regulatory framework is largely complete and it allows for full transparency and accountability and the strongest consumer protections that are needed. It's based on what each digital asset purports to do. It's not based on a label, it's based on a purpose, and it would be a grave mistake to just say all cryptocurrencies because they're called cryptocurrencies are going to be treated the same way.

You have community organizers in Oakland, California who are using these digital assets, they're using tokens on the Blockchain to do democracy organizing. They're not a broker dealer, they're not offering these tokens to raise money, they're offering these digital assets as a way to be part of a membership organization, as a way to help people organize their community for social services, for voting, for other community goals.

If you're too greedy in this space and try to have a one-size-fits-all approach, you're going to fail, and you're going to not only stop innovation and all these multiple uses, the arts community is using it because these NFTs, non-fungible tokens, they're using these as pieces of art that can exist on the Blockchain and be bought and sold just as any piece of art that you hang on your wall.

I think Cynthia Lummis and I did a very thorough job of listening to all the different stakeholders from communities to consumers to businesses to understand what are you trying to do, what is your vision and then make sure that the current regulatory framework we have in America can be used most effectively.

Brian Lehrer: If you are proposing all these regulations and regulatory frameworks, it sounds like the premise must be that you think a lot of people don't know what they're getting into when they're buying cryptocurrency. Yes?

Senator Kirsten Gillibrand: Yes, that is absolutely my greatest concern. If you have over 15,000 cryptocurrencies, I can promise you some of them are fraudulent. We want to be able to separate the wheat from the chaff. We want to make sure that the industries that are solid, that know exactly what they're doing, that are asking the regulators for oversight and regulation, that they have the tools they need to actually create strong businesses.

We don't want regulatory arbitrage. We don't want to say, "Oh, well, we're not going to regulate here in New York because we don't like it." That's a terrible mistake. We want to make sure that we create a federal landscape so that these types of industries just don't go abroad because America hasn't taken the time to do the work. Let me also put it in context. We never bothered to regulate the internet. We never actually did the work to regulate Web 2.0, never did it. Now we are dealing with all the social harms that are caused by it. We now have no way to tell these platforms what they can and can't do.

They use an umbrella of free speech to undermine all consumer protections and that's just not true. We need to then, if we can-- Some people talk about Blockchain and cryptocurrency industry as Web 3.

This goal is to regulate Web 3 appropriately. Hopefully, we can go back and look at what is often called Web 2.0 to do the work of creating a data protection agency, which we can also talk about, because that data protection agency could be the first legislation that defines what is a privacy harm and make sure that companies aren't using your data against you, creating algorithms that create young girls massive insecurity that pushes them to more content so they become bulimic or anorexic, or the shooter who goes down a rabbit hole and only finds other people who are putting out racist anti-Semitic content and creating murderous ideations.

We need to do the work. I think if you can start with this Web 3 infrastructure baseline bill, you can then eventually get your way back to the real challenge of the Web 2.0, which is privacy harm.

Brian Lehrer: All really interesting. There are a number of issues in addition that I want to get to and that some of our callers want to get to and I'm going to let Rob in Manhattan raise the next one. Rob, you're on WNYC with Senator Kirsten Gillibrand. Hello.

Rob: Hey, good morning, Brian. Good morning, Senator. Want to ask you, Senator, [unintelligible 00:09:45] do you think impeachments are possible at the level of like Amy Coney Barrett being in a court and Thomas? Just all this stuff is so unbelievable lately. Is there any way to get rid of them?

Senator Kirsten Gillibrand: To have an impeachment, you'd need two-thirds of the Senate to convict after an impeachment trial. That ultimately is a very high barrier to actually impeaching a sitting justice. However, I think the statements they used the last three in their hearings for confirmation were intentionally fraudulent. I think they intended to mislead senators like Mansion and Collins and Murkowski into voting yes. We have now heard from those senators that they felt misled by the statements that they used.

What I think is appropriate is we should have hearings and we should establish a baseline factual record of the words they used, how they used them, and how they misled the people who were listening to that testimony. I think we should have the detail made public in what were said in these private meetings, which we've seen some of already, so that we can actually assess were these statements to the committees and to senators fraudulent, and just have a record of it because this cannot happen again. We cannot a allow another Supreme Court justice to be confirmed who's lying to the senators. I think it's that serious that I hope the house will have time to do the actual work of investigating word said and impact. We can create a record that this in fact was fraudulent.

I don't think we have the votes to impeach any justice. I think that would take so much time without a positive result that it's better to focus on the work we need to do to help people right now who are still recovering from COVID. I do think the investigation itself should be done to make a clear record for the future.

Brian Lehrer: Do you think those Supreme Court nominees were lying to the Senate or were they just evading the question? If they answered, "Yes, Roe versus Wade is precedent, that doesn't necessarily say that they think it was correctly decided or that they wouldn't overturn it.

Senator Kirsten Gillibrand: They said more than that. They said words like precedent deserves due deference, precedent has great weight. If it's been affirmed over time, it has even more weight. The importance of precedent, I think Kavanaugh had how long line about what the importance of precedent is, that it guides the future and it guides laws being written. They said words beyond just its precedent. They said that precedent was important and that people should not overturn precedent because of its importance. They said far more than just it's precedent.

I think they were trying to evade the question, but the words they used were intentionally misleading to say, "I'm not going to do anything if it's precedent." That's what they intended or that was the impact of their words. We can pull up the language, you might have it, that Kavanaugh said in his meeting with Senator Collins, that her staff member took down. The words he used was, "I'm not an activist judge, essentially, and I'm not going to put my words instead of precedent."

Amy Coney Barrett said the same thing. She's like, "I don't wake up one day and say, I'm going to overturn something on guns or I'm going to overturn something on reproductive rights." She basically laid out that fact pattern and it's exactly what she did. Regardless of what those words technically say, the impression they created, which is the essence of fraud, the impressions they created was to say, I'm not overturning precedent. That would be absurd. Overturning precedent that's been reaffirmed is even more absurd. That's the impression they created. That's why I want all the words they used to be documented very clearly for the American people to see and common sense will tell them they lied.

Brian Lehrer: [unintelligible 00:14:03] in Queens, you're on WNYC with Senator Kirsten Gillibrand. Hello, [unintelligible 00:14:08].

Speaker 4: Good morning, Brian. Thanks for taking my call. Good morning, Senator. How are you? I'm calling to ask about the status of the electoral count act, the reform of the electoral account act. I think the window is maybe closing on that. I was wondering if it was going to come up for a debate and/or a vote in this session before the next election? I think that the hearings have shown that this might be the most important thing that could be done. I'm just wondering if you're waiting for the commission's final report or more hearings, more evidence, justice department actions, what- [crosstalk]

Brian Lehrer: Now, that's the law that Vice President Pence at the time said he would be violating if he tried to overturn the election. That law is in place. What reform are you looking for, [unintelligible 00:15:01]?

Speaker 4: Senator Schumer has mentioned it. He's the one who's brought it up. I think the most easiest fix that's been proposed is to just purely codify that the vice president has just a role of formality, that there is no ability to actually change the election.

Brian Lehrer: To put it more explicitly into law. I'm going to move on for time, but Senator, what about that concern?

Senator Kirsten Gillibrand: I share his concern, and Susan Collins has been leading a bipartisan group to write legislation to actually clarify that the loophole that Trump tried to take the voting count on January 6th is only a ministerial issue. She's trying to actually write the language that will raise the threshold for triggering a challenge to a state slate from one member in each chamber to 20% of the members in each body. That would be a majority vote for sustaining an objection.

Collin says the bill is drafted and agreed to, and there's some other issues that are more complicated that they're trying to get done. I suspect we will see this legislation in the next few weeks when we get out of this current state work period so that we can actually have some texts to look at, but she's been very seriously working on trying to get this done. I'm hopeful that she will. It's the only bipartisan piece of our voting rights bill outside of Senator Murkowski, who agreed with us on Senator Mansions voting rights bill. We need Susan's work to be completed, and hopefully she can bring the 10 votes we need from the Republicans.

Brian Lehrer: Listener via Twitter asks, "Could you ask Senator Gillibrand to explain why Democrats failed to codify Roe versus Wade when they knew the GOP was hell bent on overturning it?" I guess that refers to some recent reporting. I think there was an article in The Times today, I think it was The Times looking back on many times when Democrats downplayed the threat to Roe. They even cited President Obama as he was coming into office saying getting Congress to codify Roe into law beyond the Supreme Court was not as high as priority, things like that. Do you think there were failures along the way when Democrats had more control of Congress?

Senator Kirsten Gillibrand: The only time we had all three chambers outside of this moment right now was the first two years of President Obama's administration. I don't know what our votes were then, whether we had a majority I don't think we had 60 votes. Then the question as well, if you don't have 60 votes, then you don't have them now, how do you codify Roe? That would mean you would abridge or amend or eliminate the filibuster, which I fully support.

Today, unfortunately, we only have 48 votes that would amend or bridge or eliminate the filibuster. We don't have enough Democrats to actually do the work. That's why, and I know a lot of our activists are disappointed when we talk about we need to work harder to elect more Democrats, it's the truth. It's disappointing to hear it, but we would've needed to abridge the filibuster under Obama in his first two years or now, and we only have 48 votes now. I don't know how many we had them, but I bet it was not enough.

It's just a question of electing people who actually share the value of making reproductive rights and basic freedoms for women, basic life, liberty, pursuit of happiness available to women. It has to be part of who they are. I ran my presidential campaign on this as many of my issues to make sure that these issues are front and center among Democrats and among lawmakers. I was not successful, but I tried. [laughs] The truth is you have to elect people who make a commitment to this and you have to know that they mean it, because if they don't, we can't move forward. That's where we are today, we don't have enough votes.

Brian Lehrer: I want to get your reaction to some breaking news from the Supreme Court this morning that I think you'll actually be happy about. I mentioned in the intro your success in getting something bipartisan through the Senate, and that is your bill on the effects of burn pits. There's a Supreme Court decision this morning on a case that hasn't gotten as much publicity as some of these other blockbusters, but in brief, for our listeners, Le Roy Torres was a Texas state troop before being called up in the reserves to serve in Iraq in 2007.

He came home with damaged lungs because of exposure to the burn pits there and asked for accommodation from his employer under a federal law USERRA that guarantees returning veterans, their former jobs. The state said, no, he sued, and the Supreme Court today ruled in his favor in a five to four decision. That was Justice's-- Well, three liberal justices plus Kavanaugh and the Chief Roberts. That's good news for veterans and another victory for being aware of the impact of burn pits on people who've served.

Senator Kirsten Gillibrand: It's a huge victory. I know Le Roy, he is an incredible leader. He not only served his country so bravely, but he's been a first responder his whole career. What we can celebrate today is that the Supreme Court decided he has a right to sue for his benefits that were denied. When he came back from Iraq, his lungs and his ability to breathe were scarred. He could not breathe because of all the toxins that were emitted from these burn pits, which the US government and our military burned openly all across the globe in these war zones because they didn't have the infrastructure to have incinerator and to dispose off garbage properly.

They lit these huge piles, sometimes acres wide of garbage, everything from computers to building materials, to human waste, to medical waste, on fire with jet fuel. We know from 9/11 that when all these things get lit on fire by jet fuel, it creates the horrible toxins that resulted in the many deaths of our first responders, which is what we'd fought so hard for in the 9/11 health bill over the last 20 years. We fought for these veterans in the same way. We got the same group of 9/11 advocates to help, not only John Field, but John Stewart.

Numbers of our veterans participated because they know how important this is. A number of our first responders from the last battle of 9/11, they all came to Washington, they repeatedly pushed their Congress members, and Le Roy's wife, Rosie Torres started an organization 13 years ago called Burn Pits 360. All of her work and all of Le Roy's work came to fruition when we pass the bill in the Senate. This is going to be the law of the land and so now we owe healthcare to all of these brave service members.

What the Supreme Court decision does is really amplify that so that Le Roy himself can get compensation from the state where he was a state trooper and was denied his job because of his terrible health effects from serving in Iraq.

Brian Lehrer: That's a great victory following a great tragedy that these things even exist and that they haven't been more prevented in the past during military conflict so congratulations on that bill. I'm glad we had you of all people this morning to comment on that Supreme Court ruling as it came out. Before you go, I didn't see you on TV, but I heard them say you were there at Governor Hochul's primary night victory event in Tribeca last night. Is that right?

Senator Kirsten Gillibrand: Yes, I was there with bells on. I was super happy for both Kathy and Antonio and our whole slate of candidates who won their primaries. I think Governor Hochul is going to make a huge difference. I think she's an extraordinary governor for this time. She can really bring common sense to getting things done. We need to help people and she knows how to do that. I'm very happy to celebrate that. I'm very proud of her as our governor.

Brian Lehrer: I'm curious how much you identify with or have any advice for Hochul given certain similarities in your political paths? You were both Democrats in the House of Representatives from upstate districts, where you embraced gun rights and won the endorsement of the NRA at one time. You both moved away from that position as your electoral path took you statewide. You took political criticism for that at the time, she is undergoing that now. I'm curious how similar in that respect you see Hochul to be and how can she answer the charge that I'm sure we'll hear from Republican candidate Lee Zeldin that she changes her positions for the sake of power?

Senator Kirsten Gillibrand: I think that would be an absurd statement for Zeldin to say. You have different responsibilities when you're just representing a small rural upstate New York district that doesn't have the level of gun violence we have in the rest of the state. You can be parochial. You can really focus on the needs of the few that you're representing that they want to continue to be able to hunt and have the rights of law abiding citizens. When you are representing a whole state that is suffering from gun death and gun violence, like what we see every day in New York State, you need to listen to the people who are suffering and who have lost their children.

I met with a mom who lost her four-year-old boy on a park bench. I met with a mom and a dad who lost their 17-year-old teenage girl just because she was at a party with her friends about to graduate. We've seen it and you have to care and you have to do whatever it takes to make sure people are safe no matter what advocates like the NRA think. Kathy knows that, she knows that she has to bring people together. We just passed in the bipartisan bill the bill that I wrote when I became a Senator on stopping gun trafficking, which was one of the biggest problems in our state, that almost 90% of the weapons coming in from out of state are used in crimes and then most of them are illegal.

I just met with the head of the ATF and said, "How can we make sure you can actually now take this law and implement it to get these illegal guns off our streets?" We have a whole plan on how to do that, but Kathy is somebody who will bring people together. She understands everyone's perspective in the state having worked now in the local government, in the federal government, in the state government, representing both cities now and rural areas. She can find that common ground and create results, which is what I do in the Senate.

I've passed four laws in the last few months because I've been working on a bipartisan basis for the last 12 years. Finally, because Senator Schumer is the majority leader, these bipartisan bills have seen the light of day and I got votes on them and they've all passed. We've passed the trafficking bill, we've passed the getting rid of sexual assault in the workplace, and so people can now sue in the light of day and go to court. We finally got done my military sexual assault provisions in this year's NDAA, which will be signed into law, and we just did the burn pits. That's what you need to be, you need to be able to find that common ground, get things done, and that's what Kathy's learned. She knows, and so that's why I have full faith in her, she'll be an extraordinary governor for our state.

Brian Lehrer: Senator Gillibrand, we always appreciate it. Thanks for coming on today.

Senator Kirsten Gillibrand: Good. Thank you so much and God bless.

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