US vs: Healthcare

The United States spends more than any other country on healthcare. And, unfortunately, that's just about the only place we come in first.

Today we learn about the creation and maintenance of our unique public/private system with Sue Tolleson-Rinehart, Professor Emeritus at UNC, and Amélie Quesnel-Vallée, Canada Research Chair in Policies and Health Inequalities at McGill University. They break down how our system measures up to other wealthy nations; in cost to its citizens, efficacy, taxation, reproductive rights, and so much more.


Transcript

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And you know what that music means, don't you Hannah??

Hannah McCarthy: I can take a guess.

Nick Capodice: Why, sure you can.

Hannah McCarthy: You can. Well, I'm pretty sure this is Guile's theme from Street Fighter two. Which would mean this is another round of us verses where we see how the red, white and blue measures up against the rest of the world.

Nick Capodice: You're absolutely correct. And today we will see how Guile and Balrog [00:00:30] fare against Cammy, Abigail, Ed, and so many more. We're doing US versus healthcare.

Hannah McCarthy: All right, so how did we measure up?

Sue Tolleson-Rinehart: Oh, well, I'm sorry to say that if you looked at the 13 wealthiest nations in the world, most of which are the US, Canada, Europe, and then Japan and Australia and New Zealand, we always rank last [00:01:00] both in health status and in quality.

Amélie Quesnel-Vallée: I'm sorry to say, but there is actually this organization, the Commonwealth Fund, that does an annual report measuring the performance of health systems. Several health systems. And the title for 2024 was a portrait of the failing U.S. health system.

Sue Tolleson-Rinehart: Alas, despite our wealth and our power and our American creativity and ingenuity, somehow we [00:01:30] wind up having overall the poorest quality of care and the poorest individual health status, where we're sicker than our peers in the wealthier nations, and we achieve that last status at a higher price. I'm Sue Tollefson Reinhardt. I am professor emerita of pediatrics in the University of North Carolina School of Medicine.

Amélie Quesnel-Vallée: Hi, my name is Amélie Quesnel-Vallée and [00:02:00] I am chair and professor in the Department of Equity, Ethics and Policy at McGill University.

Nick Capodice: So before we get into why we fare so poorly versus other countries, Professor Quesnel-Vallée will cover that later. I have to mention something that filled me with abject joy. So when we reached out to Doctor Tollis and Reinhart for this episode, she had an automatic reply for her email that said she had finally retired after 41 years of teaching.

Hannah McCarthy: 41 years. Wow.

Nick Capodice: And the automatic reply ended with [00:02:30] a trivia question.

Hannah McCarthy: Really? What was the question?

Nick Capodice: Do you know the difference between a Japanese and a Western chisel?

Hannah McCarthy: I have no idea. What's the difference.

Sue Tolleson-Rinehart: A western chisel is forged from a single piece of steel, and a Japanese chisel is laminated.

Hannah McCarthy: Fascinating.

Nick Capodice: Also, Hannah in a western chisel. The blade and the tang are one piece of steel, not two.

Hannah McCarthy: Is the tang the full width of the blade, or are we just going to let that one lie?

Orlando Bloom: The blade is folded steel. The tang [00:03:00] is nearly the full width of the blade.

Hannah McCarthy: Getting back on track, Nick Sue said that our health care system ranks pretty low as compares to other nations, but it costs a lot. Can we go over how much a lot is?

Nick Capodice: Trillions of dollars. And this is one place we definitely come in first. The US spends more than any other country on health care.

Hannah McCarthy: Why is it so much here?

Amélie Quesnel-Vallée: The US does not have a universal [00:03:30] health care system. It has several systems. And the more we know that, the more systems you have. And so here I'm referring to different insurers. I think the last time I looked, the US had something like 1500 insurers. And within that, however many plans that are being negotiated between the insurer and the care providers, um, HMOs and various organizations that are providing care. So that level [00:04:00] of complexity of the system means that there are a lot of resources that are being spent dedicated to managing that.

Nick Capodice: This is part of the reason why, if you look at a very common everyday hospitalization, like, say, delivering a baby, it's about $14,000 in the United States versus about 3000 in Canada. And we're not yet talking about who pays that money. That is just what it costs. And a lot of that cost comes from the myriad [00:04:30] American systems and people who work within it.

Amélie Quesnel-Vallée: You have thousands of health plans, each with their own cost sharing requirements and coverage limitations. So not only, you know, people must navigate that, but physicians and other healthcare professionals must navigate that in order to figure out how to get reimbursed and how much to get reimbursed. You know, physicians won't be doing that on their their own time. They subcontract to another organization. And when [00:05:00] you have something like that, where there's a whole like industry, that's that's actually sprung up to help physicians. Bill, then you have to start thinking, okay, this is getting really complex when it can actually be. It has to be a budget line, you know, for physicians.

Hannah McCarthy: Can we talk about how we got here, how our health care system turned into this, a system that ranks so poorly and is also the most expensive?

Nick Capodice: Well, Sue took me all [00:05:30] the way back. Back to when health care wasn't really a thing before.

Sue Tolleson-Rinehart: 80 years ago or so, health care couldn't do very much, so I wouldn't demand health care as a right. When health care wasn't very meaningful. Health care was pretty self-limiting. There was a very narrow window of things that a physician could do for you, and then either you would get better or you wouldn't, and that would be about that.

Nick Capodice: However, [00:06:00] there was a big shift around World War One with some new surgical techniques like lung surgery, the first ever hip replacement, and with the invention of a drug I'm going to come back to later in the episode insulin, people started to think, wow, healthcare is something, and it's something that I should be entitled to.

Sue Tolleson-Rinehart: And then World War two. And World War two, we made astonishing improvements [00:06:30] in what health care could accomplish, both in terms of the development of penicillin and then other antibiotics to control infectious disease. And unfortunately, war produces great leaps forward in medical technology. It's really it's really sad. But in terms of surgery, emergency care, long term wound management, breakthroughs and treatments of [00:07:00] infectious disease, world War two did some really dramatic things after World War Two. The allies, who had fought so hard to win the war, tried to come back to normal life and started saying to themselves, you know, I fought for a better life. And it seems to me that that better life also means having access to these new developments in health care. All right.

Hannah McCarthy: So the war is over. Soldiers are coming home, having received top of the line care [00:07:30] while they were serving. And they're asking for that same level of care for both themselves and their families.

Nick Capodice: Yeah, and we're not just talking American soldiers. This was happening to everybody who was involved in the war.

Sue Tolleson-Rinehart: So now this is where the United States and many of the European nations split Most of the European nations right after World War two opted for organized national health care systems. We did not because [00:08:00] we thought we were one of the two world superpowers, and the other one was the Soviet Union. And we were afraid of socialism and communism. And so we opted for our own unique American solution, which was to create a hybrid public private system.

Hannah McCarthy: Public private system. I understand that private means private insurance, like what we have, but [00:08:30] what is the public piece of the equation?

Nick Capodice: So this was decades before Medicaid and Medicare. And don't worry, I'm going to explain those soon. So initially the public part was care for veterans, for orphans and for widows. And it was also giving tax incentives to employers to have them offer private health insurance to employees. But again, these were very early days. Health care was so small at this point.

Sue Tolleson-Rinehart: So what I always liked to tell my medical students, [00:09:00] I would say, imagine a kayak. How hard is it to turn the kayak? Not hard. One shift of the paddle and the kayak turns. That was the state of health care in the Western world at the end of World War II. It was a kayak. So I can create a national health care system because it's small, it's going to be easy to manipulate, easy to change. The difficulty is today we're talking [00:09:30] about a right to health care and whether people should have access to health care. And the health care system is no longer a kayak. It's an aircraft carrier. How easy is it to turn an aircraft carrier? It's not easy. One of my former physician students, who was in the Navy, told me that it takes a mile of open water to turn an aircraft carrier.

Hannah McCarthy: Basically, [00:10:00] we picked a system and now we're stuck with it.

Nick Capodice: Yeah. And once we picked that system, the procedures we started to require under that system grew. They grew at an exponential rate. Chemotherapy. Kidney transplants. Radiation. Things that most people can't remotely afford but need to survive are on that carrier.

Sue Tolleson-Rinehart: Because now what we have is some more than $3 trillion system that is still a [00:10:30] public private hybrid. But it's it's enormous. Some parts of it are purely for profit. Other parts are not for profit. It's hideously complicated.

Hannah McCarthy: How much is paid for by the government versus private insurance companies.

Nick Capodice: It's about a 50/50 split, and this is in large part due to Medicaid and Medicare, which were created in 1965, in the Lyndon Johnson administration.

Archival: The new bill expands the 30 year old Social Security program [00:11:00] to provide hospital care, nursing home care, home nursing service, and outpatient treatment for those over 65.

Hannah McCarthy: All right, Medicare and Medicaid. We got to go over the difference between the two.

Nick Capodice: Absolutely.

Sue Tolleson-Rinehart: Medicare provides care for people who are 65 and over, and that's a truly national program. States have some opportunity to try to tweak or make innovations working with the federal government, but it's essentially a fully federalized [00:11:30] program. It's not a national health system would look like in the United States, except that it's mostly for people who are 65 and older. Medicaid, on the other hand, is a national State partnership, the states pay 30 to 50% of the cost of the Medicaid program, and the Medicaid program is devoted to people who are low income, with a particular emphasis on [00:12:00] pregnant and lactating mothers and children.

Nick Capodice: And there's a whole nest of complexities to both Medicaid and Medicare that I will not get into at all, because it would be just too much. But real quick, there are four subsets to Medicare parts A, B, C, and D. People are eligible for different coverage, and the premiums for those can come out of your Social Security check. And eligibility for Medicaid is dependent on your income and marital status. And it's a different amount with [00:12:30] different coverage in every state.

Hannah McCarthy: There's a lot of layers there, Nick.

Nick Capodice: Yeah, a whole lot.

Hannah McCarthy: But I do feel like I have a pretty decent grasp on the US part of the episode, the US part. Let's get into the verses. What is health care like in the rest of the world?

Nick Capodice: All right, I'm gonna explain that with the tried and true medical hypothetical, you break your leg, what happens? But first we got to take a quick break. But before that break, Hannah and I crammed all the stuff we've learned over [00:13:00] the last six years or so, making the show into a book. It is a great resource. Around election time or any time for that matter. It's called A User's Guide to Democracy How America works. It's fun. It's loaded with cartoons from the wonderful New Yorker cartoonist Tom Toro. Check it out. We got a link right there in the show notes.

Hannah McCarthy: We're back. We're talking about health care in the United States compared to health care in the rest of the world. And Nick, you were [00:13:30] going to talk about broken legs.

Nick Capodice: I was it is a classic hypothetical. So let's start with here in the US, I break my leg, I go to the emergency room. What happens again here is Sue Tolleson Rinehart.

Sue Tolleson-Rinehart: That's a wonderful question. First of all, a federal law known as Emtala would require that the emergency room treat the person, but it does not require that the emergency room treats the person for free. [00:14:00] So what then happens is I go to the emergency room to have my broken leg treated, and then I start. If I'm uninsured, I start receiving bills. The difficulty is if you don't have health insurance, you might be on the hook for some tremendously high payments. Actually, if you have insurance, you might be on the hook for some pretty high payments when you have to meet your coinsurance and deductibles.

Hannah McCarthy: So if I don't have insurance and I'm not [00:14:30] on Medicaid or Medicare, what is my bill going to look like?

Nick Capodice: Well, for a broken leg, you're looking at around $2,500 for the treatment at the hospital up to another grand for the x ray, some other cost for a cast or for crutches, but that is for a simple fracture. If it's a more complicated break and it requires surgery, that's going to be anywhere from another 17,000 to $35,000.

Hannah McCarthy: So in other words, if you don't have insurance, if you're not on Medicaid [00:15:00] or Medicare, illness or injury can be unbelievably expensive, devastatingly expensive.

Nick Capodice: And Sue added another layer, which is what would happen if you were not a citizen of the United States. Now, the first scenario is, you know, you're visiting. You're a tourist. Most insurance plans in other countries offer a medical travel insurance, specifically if you're going to visit the US, because if you don't have that, you're on the hook to pay all medical expenses, [00:15:30] whatever the hospital charges. All right, second scenario, you live here. You're not a citizen. You're undocumented. You go to a hospital to have a baby. Say, what's that bill going to look like?

Sue Tolleson-Rinehart: So undocumented immigrants are in, um, they're in a perilous position. Um, and they're probably going to have to pay out of pocket for any kind of care they can get unless they can enter, say, a federally qualified [00:16:00] health clinic, a so-called fqhc, the federally qualified health clinics. Don't ask what your immigration status is. They just take you and deliver care. Now they have a sliding scale of payment, so if you can't afford to pay something, you probably will pay something. And if you can't, you don't. Then Amtala will allow you to deliver the baby in the emergency room and be covered. That doesn't mean you're not going to get a bill. However, [00:16:30] if if I were an undocumented immigrant and I were pregnant and somebody could tell me. There's a federally qualified health center right over here. Go get yourself enrolled. I might have a shot at prenatal care and labor and delivery in that clinic.

Nick Capodice: So to go back to the broken leg scenario. In contrast, Professor Carnevale lives in Quebec. So I [00:17:00] asked her the same question. I break my leg in Quebec, I go to an ER. What does it cost? Um.

Amélie Quesnel-Vallée: Um. Zero. You walk into an emergency room in a province where you are insured. You have your insurance card. I'm looking. I have mine here. Um, you go ahead and you just show this little thing, and here you go. You are, um. You're provided care.

Nick Capodice: And [00:17:30] this isn't an insurance card like you or I have. Hannah. This is her Quebec insurance card.

Amélie Quesnel-Vallée: So whenever we talk about the Canadian health system, it's an averaging or a generalization statement, because really we are a federation a little bit like the US and indeed the the delivery of care of health care in the financing of health care is, is primarily managed by the the provinces and the territories. Each province and territory roughly establishes [00:18:00] its own health care organization, and they all have in common. They offer universal free at the point of care access to physicians and and hospital services.

Hannah McCarthy: How much does it cost to enroll in province or territory insurance?

Amélie Quesnel-Vallée: The cost? I'm sorry. That's you. You pay your taxes. Um. Even then, like, even if you did like, it's not tied to my taxes. The cost is becoming a [00:18:30] permanent resident or becoming or being a citizen.

Hannah McCarthy: All right. Nationalized health care. I know that when debates about this come up in the United States, the concern is often higher taxes. So, Nick, do Canadians pay more in taxes?

Nick Capodice: Well, it absolutely depends on which province or territory you're in. If you're in Canada and if we're comparing it to the US, it depends on what state or municipality you live in. But I do have a specific example here. And quick [00:19:00] number alert. So many numbers are going to come your way. I got to find some fun number music here. Let's fire.

Speaker7: This up.

Nick Capodice: All right. Hannah, you're a single person who makes $60,000 a year. If you live in British Columbia, you will pay about $9,000 in federal taxes and about $3,500 in provincial taxes to your province. Now, by contrast, if you're just across the border, say, living in Montana, you will pay $5,200 [00:19:30] in US federal taxes and 2100 in US state tax. But don't forget you're also going to pay Social Security and Medicare in America and the Canadian pension plan in British Columbia. Grand total. All in all, in British Columbia, you're going to take home $46,858. And in Montana, you're going to take home $48,056. That's a difference of about $1,200 a year. But I'm not done. I'm not done. [00:20:00] Don't forget, coming out of that Montana paycheck is whatever you pay to your employer to get health care coverage, sometimes hundreds of dollars a month, and you're still paying your medical bills throughout the year, so that 1200 bucks is pretty likely to get eaten up by our medical system.

Hannah McCarthy: All right, got it. Understood. Now, before we move on from the numbers, I do have one more money question. How much are doctors paid in Canada? What do they make there [00:20:30] compared to here? All right, hold.

Nick Capodice: On a second. I'm just going to start this back up. All right. Massive caveat. There is an enormous variety of salaries for doctors, depending on the kind of practice they run, whether they're in a hospital, what they do. There is such a disparity. That said, the average salary of a general practice doctor in the US is around 181,000 USD a year. Canadian general practice was 187 CAD. [00:21:00] Quick currency exchange makes that about $135,000 American, which means Canadian doctors earn on average about 25% less. But do not forget those Canadian doctors do not have to pay health insurance premiums for their or their families health care. Whoa. Okay. Can I put the kibosh on the old money? Money? Music, Hannah? You can. Did you ever see Busby Berkeley's Gold Diggers of 1933, [00:21:30] where Ginger Rogers sings we're in the Money and Pig Latin.

Hannah McCarthy: Sure didn't.!

Hannah McCarthy: All right, so that's the Canada lens. Our brothers to the north. Any other countries that we should highlight when it comes to comparing their care to our care?

Nick Capodice: Absolutely. Amelia referred to [00:22:00] a list from something called the Commonwealth Fund. That is an organization that does an annual report on health care internationally. They pick ten countries to contrast.

Hannah McCarthy: Is this the one that you mentioned earlier where the US was way down there?

Nick Capodice: Yeah, 10th out of ten.

Amélie Quesnel-Vallée: Well, maybe, um, you know, the high performers that the Commonwealth Fund has given a shout out to are the UK, Australia and the Netherlands. What's been pointed out about the Netherlands is they actually [00:22:30] have a high system performance relative to their spending. And this is also true of Australia and of the UK. So I think here we're not just looking at how they're doing, but also how much it's costing. And this is something that's hurting the US. You know, it's a very, very expensive system. So on any measure of cost efficiency it's going to look worse.

Nick Capodice: And Amelia mentioned one extra prize for our friends across the pond in the UK.

Amélie Quesnel-Vallée: Even though they've had challenges, they have [00:23:00] managed, you know, since 1948, the National Health Service has provided free public health care, including hospitals, physicians and even mental health care. So I think that one is something that's a shout out to the UK. Many, many high income countries, actually all countries. I think lots of people are struggling with accessing healthcare and mental health care, and what they've done is that they have set up an institute that's called the National Institute for Clinical Excellence, and they evaluate ruthlessly [00:23:30] their cost efficiency. And what they did with regards to mental healthcare is they went in and they looked at what worked, and they honed in on cognitive behavioral therapy. And they said, that works. That works. It's relatively cheaper than prescription drugs. It also provides more long term benefits and is more sustainable. And so they went all in on CBT on cognitive behavioral therapy. And they said we're going to make it available.

Nick Capodice: So [00:24:00] there's one other area of contrast I had to bring up. And that is reproductive rights. As of this moment in the US, October 2024, a person's right to obtain an abortion is dependent upon the state in which they live. So I asked Amelie, in those lists of other wealthy nations with their various health care systems, are there any that treat abortion access in a similar way? No.

Amélie Quesnel-Vallée: The other ten countries [00:24:30] I've named, you know, the Netherlands, the UK and Australia, Germany, Sweden, New Zealand, France, Canada and the US. To my knowledge, there are no countries in that group that would ban abortion access to abortion. It's a nonstarter issue in the sense that it's an acquired right and it's not up for discussion. So the I can speak about Canada perhaps more. There was actually a poll released in [00:25:00] recent months, um, about, you know, the same kind of thing, political discussions and, and what would what would constitute a so-called third rail issue. So third rail issue. What what would be a third rail issue, something that would be a nonstarter if a campaign were run on this topic. And, um, among the topics that were proposed was Reproductive rights, and specifically in our case, we are very blunt about [00:25:30] it. Access to abortion. Um, and that actually was, uh, in the poll very clearly stated as a don't go there.

Hannah McCarthy: So, Nick, you pretty much started this episode out by telling us how poorly the United States fares compared to other countries when it comes to access to health care and the cost of our health care system. And, you know, Sue said, it's an aircraft carrier that's hard to turn right. But [00:26:00] we have had changes. We've had massive changes every now and then over the years. I mean, Medicaid and Medicare were established in the 1960s. The Affordable Care Act was passed in 2010, which changed the face of healthcare for a lot of Americans.

Nick Capodice: Yeah, it did some real quick notes on that. The Affordable Care Act let young people stay on their parents insurance until they were 26. It forbade insurance companies from denying coverage to somebody because of preexisting conditions. [00:26:30] It expanded Medicaid access in many states. And finally, it lets people buy their own health insurance through a public marketplace.

Hannah McCarthy: So if we do want to turn the carrier, even shift it one side or the other, how is that sort of thing done?

Nick Capodice: Interestingly, Sue told me a story about something that happened very recently that demonstrated how these changes can happen, and it was the change [00:27:00] in the price of insulin.

Archival: Relief is coming to millions who rely on the life saving drug insulin. Drug maker Eli Lilly is cutting the price of insulin by 70%, capping patient costs for its insulin products at $35 a month.

Sue Tolleson-Rinehart: Insulin is 100 years old. Insulin is not a new drug. Nobody who's selling insulin now had to pay any of the upfront development costs [00:27:30] of insulin. So when particular drug companies were purchasing the right to sell insulin and charging, oh, $400 a month, $800 a month, they were just simply profiting. They were it was just all, all profit. Right? So the way President Biden was able to lower the cost of insulin to $35 was to get Congress to agree to allow Medicare [00:28:00] to negotiate the price. Medicare is hugely powerful in terms of the amount of insulin it finances. Right. And so if Medicare says we're going to pay this much and no more, then a company who's selling insulin, who had been making, oh, 3 or 4000% profit on it is not. Back to making only 350% profit on it. [00:28:30] Right. Because insulin costs them about a dollar.

Hannah McCarthy: But how did they do it? How did they get that through Congress?

Nick Capodice: Yeah, it seemed tough. It seemed nigh impossible because back in 2003, when Congress was trying to pass a Medicare modernization Act, the only way they could get that through was to include a stipulation that prevented Medicare from negotiating prices, ever.

Sue Tolleson-Rinehart: That situation arose because for profit pharmaceutical companies [00:29:00] said, if you allow Medicare to negotiate prices, we're going to put our entire lobbying apparatus into stopping the bill. So Congress said, okay, okay. But in the Inflation Reduction Act, we clawed back the ability of Medicare to begin negotiating drug prices, and they started with ten. And that list will continue to grow each year. So insulin [00:29:30] was an obvious target because it's an old, old, old drug. It's not a drug that required $1 billion of new research and development. It's and it's also a drug that people really need. And then what happens in our public private hybrid system is that if Medicare negotiates a $35 price, what is Blue Cross Blue Shield or Humana or Aetna going [00:30:00] to say, are they going to say, oh, well, fine, we'll go on paying $800. No, they're going to say now you have to give me them the Medicare negotiated price too.

Nick Capodice: And needless to say, when this happened, drug companies filed a lot of lawsuits challenging it, claiming it was unconstitutional. They lost those challenges. But I have to add that last month, September 2024, the fifth US Circuit Court of Appeals in New Orleans revived one of those challenges. [00:30:30] And that brings me to my last point. So Sue talked about health and health care for over 40 years. And if you look at her UNC syllabus for introduction to the US health system, you're going to read this quote. The course takes a strong perspective that the health system is shaped by and dependent on the political system, end quote. And I wanted to know what she meant by that.

Sue Tolleson-Rinehart: What my students always heard was, um, [00:31:00] the only thing that matters is the economics of health care. So I wanted to get them to think of something different. I wanted them to say we're the largest economy on the planet. We could simply afford to do anything we wanted to do. The choices we make are political choices about how we're going to spend that money. So I don't mean to say that it's all Partizan politics or it's all. But what I do mean to say is that politics [00:31:30] is the authoritative allocation of values. If we decide that one of those values is that health care is a right, then the choices we make about how to deliver that right are essentially political choices.

Hannah McCarthy: You know, this is an interesting way to put it, Nick, essentially, that our health care system is the way that it is because politicians made the choice to ensure that it would be the way that it is.

Nick Capodice: Yeah. [00:32:00] And if you are someone who believes that health care is a right, then you have a right to hold the people who made those choices accountable.

Nick Capodice: Well, that is us versus healthcare. And before I say a bunch of names, if you want to know how the US measures up against the rest of the world in one topic or another, let [00:32:30] us know. Drop us a line. It's Civics 101 at nhpr.org. We will check it out for you. This episode is made by me Nick Capodice Nick Capodice. This episode was made by me Nick Capodice with you, Hannah McCarthy. Thank you. And with help from our producer, Marina Henke. Our staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Music. In this episode from Epidemic Sound, Jesse Gallagher, HoliznaCCO, Blue Dot sessions, Azura and 50 cc's of Chris Zabriskie stat! [00:33:00] Civics 101 is a production of NHPR New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Why does corruption matter?

Corruption in politics is a trope that's been around ever since we had politics. And it can feel inevitable. Regardless of anticorruption legislation and executive orders, it seems like it will never go away.

David Sirota, editor in chief of The Lever and host of the podcast Master Plan, argues the opposite.  

Today on Civics 101 we learn about what corruption is, how it influences (or doesn't influence) policy, and what needs to be done to eradicate it from our political system.


Transcript

Hannah McCarthy: Hi, I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice

Hannah McCarthy: And today we are just going to jump straight in because we have a lot to get to. So this is our guest.

David Sirota: I'm David Sirota. I'm the editor in chief and founder of The Lever, an investigative news site. I am also the host and creator of Master Plan, and I was a writer who helped co-create the movie Don't Look Up. And I was the speechwriter for Bernie Sanders [00:00:30] in his 2020 presidential campaign.

Hannah McCarthy: All right, plenty of bona fides there. But the main reason I spoke to David for this podcast is his new podcast, Master Plan.

David Sirota: Well, the podcast starts out with a story about the first time I discovered how systemic corruption was. I mean, I think we all know that corruption. We know what it looks like. We know it's real. We know it's pervasive.

Hannah McCarthy: Today, Nick, We are [00:01:00] talking corruption now. David says we know what it looks like. So before we go any further, do you know what it looks like? Nick, what is corruption?

Nick Capodice: Oh, uh, what is corruption like in terms of what it looks like? I don't think it's like obscenity. Justice Potter Stewart in the 60s saying he couldn't define obscenity, but he knows [00:01:30] it when he sees it. But corruption. Corruption has to have a definition.

Hannah McCarthy: Well, it's a word used by humans, so it does have a definition. But this is not an essay for government class. So I am leaving the Oxford English Dictionary out of it.

Nick Capodice: All right. But what about corruption as a legal term?

Hannah McCarthy: Sure, Corruption is a legal term. It can apply to bribery, extortion, fraud, even nepotism. But, Nick, I don't think that's going to help us much today. What [00:02:00] a lot of what we might call corrupt is perfectly legal.

Nick Capodice: Yep, but corruption is bad. Like it is bad, isn't it?

Hannah McCarthy: Well, you and I are definitely not going to solve the conundrum of ethics versus law. So instead, let's try it this way. Can you think of a situation where you're corrupt or that's corruption would be a compliment?

Nick Capodice: Oh, absolutely.

Hannah McCarthy: Really?

Nick Capodice: Yeah. Like [00:02:30] in a den of super villains in a movie. You know, it's a little played for laughs, but it also serves as a useful social commentary, like, oh, darling, that's so corrupt, so deliciously corrupt.

Hannah McCarthy: Okay, so corruption is giving villain.

Nick Capodice: Yeah, it's not giving hero. Hannah.

Hannah McCarthy: I think I know why.

Nick Capodice: All right.

Hannah McCarthy: I think that we can pretty reasonably say that corruption involves abusing trust for some kind of gain, be that gain financial, influential, social, structural, [00:03:00] you name it. And when corruption occurs, it damages that trust. And for the purposes of this episode, we are talking about political corruption.

Nick Capodice: All right. In that case, it's not just trust that's at stake. It's also stuff like health and safety and the economy and civil rights. And you know, I could go on, but I'm going to stop there for now.

Hannah McCarthy: You are describing things that lawmakers and leaders are supposed to help out with. Like when people run for office, they [00:03:30] always say, you know, I'm going to make us healthier or safer or wealthier or more free. Yeah. So we vote for the people we believe we trust will do what they promise.

Nick Capodice: So basically, democracy is just one big trust fall exercise.

Hannah McCarthy: We put our arms out, we fall back. And if the people we voted for don't catch us because they're too busy taking care of themselves. We probably won't trust them anymore. So let's get back to David. [00:04:00] And the first time he felt like the system let him fall.

David Sirota: When I got out of college in the late 1990s, I was filled like lots of young people typically are. After college, I was filled with really idealistic dreams about how Washington works. I mean, I wasn't completely naive, but I had dreams about how things worked, how public pressure can force Congress and the government to do things [00:04:30] that the public wants.

Nick Capodice: All right. Public pressure. Does it work? I've looked into this. I know you've looked into this, and I think the answer is it can work. It doesn't always. The way that pressure is applied really makes a difference. But it can be really tricky to know what worked and why.

Hannah McCarthy: So David tells a story about public pressure succeeding.

David Sirota: It all honed in on this trip that we took a set of trips, actually, that Bernie [00:05:00] Sanders was running from Vermont to Canada to help seniors buy lower priced prescription drugs.

Archival: Congressman Sanders wants U.S. pharmacists and wholesalers to be able to buy drugs in Canada and other countries. It's an idea he hopes will bring relief to Vermonters paying about 80% more than our neighbors to the North Pole.

Archival: You ladies want to get on.

David Sirota: Okay. And we ran this campaign to both help seniors in Vermont access lower priced prescription drugs in Canada, [00:05:30] but also to help raise the public's understanding of the issue of price inequity and how medicines developed at government expense. Us government expense are being sold all over the world at lower prices, and they are being sold at much higher prices in the United States and causing lots of financial problems for people.

Archival: Ruth Mary Jeffreys calculates he sends $1,000 more a year for her breast cancer medication in the US than in Canada. [00:06:00] It's sort of like a gift to the drug company.

Hannah McCarthy: Prescription drugs can be incredibly expensive in the United States. They can be a lot cheaper elsewhere. So Senator Bernie Sanders took elderly and breast cancer patients over the border to get them affordable drugs in Canada. And of course, it wasn't just about getting those individuals cheaper medicine. It was about making a very public scene.

David Sirota: And so we did these bus trips, and they really did raise public awareness [00:06:30] of how unfair and rigged this part of the healthcare economy has become. And the public pressure ultimately ended up shaming Congress into passing legislation to allow American wholesalers and pharmacists to import medicines from other countries at the lower world market prices, which under the existing law before that they were not allowed to do.

Nick Capodice: Wow. So [00:07:00] public pressure worked.

David Sirota: It got a lot of both Democratic and Republican support. It was a bipartisan initiative. It passed, and it felt to me, to the young me that the system had worked. And it sort of it proved my dreams that I had watched on West Wing. The public gets angry. The Congress has to react, something good comes of it, and a bill passes, and that helps people.

Nick Capodice: Uh oh. Hannah.

Hannah McCarthy: Why uh oh Nick.

Nick Capodice: Well, [00:07:30] West Wing dreams are just that. Hannah. They are dreams. You know what might be a safer kind of dream? VEEP dreams. Because VEEP dreams are way more likely to come true.

VEEP: What else do we need to talk about?

VEEP: Federal lands.

VEEP: They need to be protected.

VEEP: We need more drilling.

VEEP: For drilling purposes.

David Sirota: What happened was after the bill was signed into law, after it passed and was enacted [00:08:00] and was on the books very quietly, the Clinton administration ended up essentially killing the importation program, using its executive authority to do that after the bill had been passed, essentially killing all the work that we had done. And that happened as the pharmaceutical industry was dumping millions and millions of dollars into American politics, to both parties, to candidates of both parties. And so, essentially, this victory [00:08:30] to help seniors afford and access lower priced prescription drugs, that victory was essentially killed by, in my view, a corrupt system corruption that the pharmaceutical industry has disproportionate financial and political power and use that disproportionate financial and political power to keep the American market closed and to keep everyone in this country paying far higher prices for medicine than other [00:09:00] people in other countries.

Hannah McCarthy: Now, are you going to hear a bunch of lawmakers say, yes, the pharmaceutical industry has disproportionate power and influence on Congress, and they use it to get what they want. And what they want is money. And I let them influence me. And then I write laws that help them. Probably not. Is it happening anyway? That is David's take.

Nick Capodice: But how did this happen? It wasn't a bill signed into law. I don't understand how it goes from being [00:09:30] a law to being null and void.

Hannah McCarthy: Here's the landscape as this bill was getting closer to becoming law. The drug industry funneled millions of dollars into an ad campaign to stop that from happening. There, telling the American public that this will be bad for senior citizens. And they're also lobbying Congress per usual, saying that this will hurt the drug industry. And then, of course, at this point, legislators have told their constituents that they have this great way to get them [00:10:00] cheaper drugs. Political pressure was building and the bill was revised.

David Sirota: What ended up happening was the pharmaceutical industry got its key allies in Congress to insert a very small provision into the legislation, a couple of lines as the bill was passing, which said that when this bill passes and is signed into law, the executive branch has to certify that the program is [00:10:30] safe and certify that the program will work. So it gave the white House one last way to kill the program before it came into effect.

Nick Capodice: I think I understand. Congress gets the bill to the president's desk and the president even signs it. They did what they said they were going to do. But the new law has a loophole, and the executive branch uses it. They use that loophole. Yeah.

Hannah McCarthy: The Secretary [00:11:00] of Health and Human Services said that they couldn't certify this program was safe and would work. The new law dies.

David Sirota: And actually, one Republican governor who supported the measure, the Republican governor, then of Minnesota, Tim Pawlenty, said, if the drugs from Canada are so unsafe, show me the dead Canadians. Where are all these dead Canadians who are dying by, you know, ingesting counterfeit drugs? It was a lot of nonsense. But the point is, is that at the heart of it was [00:11:30] corruption. And I think that the part of the problem with corruption is not only does the public not get good policy, but the public becomes more cynical. It's a it's a shredding of the social contract. Right. Because the average voter who paid attention to this said, hey, you told me you were going to lower the price of medicine. And I saw it all over TV and your press release and you celebrating the passage of this bill. And now the price of medicine isn't any lower. Not nothing actually happened. [00:12:00] It sort of reinforces that politics is all spectacle and show, but where the real power is wielded, corruption makes sure that power is wielded not for the everyday person, but for the people with the most amount of money.

Nick Capodice: So David said the pharmaceutical industry was dumping money into politics, parties and candidates. How does that get them what they want though? I actually mean this question, Hannah. I think it's really easy just to say money influences politics. But [00:12:30] my question is, how.

Hannah McCarthy: Is it really easy to say.

Nick Capodice: That money influences politics? Yes. Yes, I, I think so.

Hannah McCarthy: Not for social scientists. Let's say there's a bill that will help out big industry. Does a lawmaker vote for that bill because they got donations from big industry? Or did they get donations from big industry because they were likely to vote on it already?

Nick Capodice: You know, I really would love [00:13:00] to just go one day in American politics without a chicken or egg scenario.

Hannah McCarthy: And even if we could find the answer to that question, there are so many ways for a corporation, an entity, a person to donate, and so many ways to conceal that you have donated so many ways that linking donations to votes is nigh impossible.

Nick Capodice: Not every day you get to use the word nigh eh McCarthy.

Hannah McCarthy: One study showed that lawmakers are more likely to give [00:13:30] a meeting to a donor than a mere constituent, but that doesn't mean that we can say for sure why they are doing that.

Nick Capodice: It seems so obvious.

Hannah McCarthy: It seems, but seems is not science. Another study found that when a top donor dies, a candidate starts winning by fewer points. They start focusing on fewer issues. Even their ideology shifts. They become a little [00:14:00] more middle ground than they were before. Political action committees that support this candidate start making fewer ads.

Nick Capodice: So it seems like that top donor was beefing up campaigns, which helped secure more votes. And it seems like that candidate was probably supporting that donor's interests, because suddenly they're changing their agenda when that candidate dies.

Hannah McCarthy: Yeah. So does money get you influence? Does money affect [00:14:30] legislation? The data suggests it. And you know, David, an investigative journalist, does too.

David Sirota: When there was at least a pretense that corruption is bad, that corruption is not something we should embrace, is not something that should be part of the system in the way it works. So obviously, there was a deterrent to the most flagrant forms of corruption, public shaming, prosecution and [00:15:00] the like. I think the danger is now the corruption is so out in the open and flagrant that there is no deterrent at all.

Hannah McCarthy: Here's my deal, Nick. I cannot I must not, will not believe that we the people are useless against the forces of money and influence and profit forces that may well be banding together in corrupt efforts to undermine our [00:15:30] livelihoods. And I will not let you stew in that notion Either.

David Sirota: It's not a force of nature. It's not, you know, inevitable the way things are now, the policies that enrich the rich and hurt everyone else, that the system that creates that was created by a series of very deliberate, very well thought out, very well planned decisions by human beings, specific people with a specific agenda, that this [00:16:00] is not the way it has to be.

Nick Capodice: It's not a force of nature.

Hannah McCarthy: As in this is not simply the way it is, you know. Oh, well, what can you do? This is something human beings did, and this is something human beings can undo. And David told me that historically, when money seems to get a little too powerful in the world of law, someone does try to fix it.

David Sirota: There tends to be these cycles [00:16:30] of lots and lots and lots of corruption and then reform that addresses some of it and brings the system back into balance. And then there's new corruption, new ways of of corruption. And then the pendulum swings back.

Nick Capodice: Wait, give me an example of this pendulum swing. What does that look like?

David Sirota: People who are listening to this can probably remember, for instance, John McCain. We have an episode in the later part of the series about John McCain's 2000 [00:17:00] presidential campaign and how he ran that campaign against the corruption in Washington.

Speaker8: We are going to take the government out of the hands of the big money and the special interests, and we're going to give it back to the people of this country who deserve it. They've been having a great time and it's been a lot.

David Sirota: He didn't win the campaign in 2000, but that campaign ended up creating the momentum to pass the McCain-Feingold [00:17:30] campaign finance law.

Nick Capodice: What did that do?

Hannah McCarthy: Mccain-feingold, aka the Bipartisan Campaign Reform Act, stopped political parties from raising or spending unlimited funds. It also stopped corporations from funding certain campaign ads. Uh, yeah.

Nick Capodice: Come on. You know what I'm going to say here, Hannah?

David Sirota: Of course, that campaign finance law was then attacked by the Supreme Court. But the point is, is that that raised the public's awareness [00:18:00] of how big a problem this is.

Hannah McCarthy: In 2006, in Federal Election Commission v Wisconsin Right to Life Incorporated, the Supreme Court found that actually, certain campaign ads are exempt from this law. And then, of course, in 2010, we had Citizens United v Federal Election Commission, which people say led to super PACs, which can accept unlimited contributions and make campaign ads. We do have an episode on that. So if you want to know more about it, I [00:18:30] suggest you give it a listen. But I want to stick to David's point, which is the fact that high profile politicians said, hey, there's a ton of money pouring into politics here, and we're not regulating it, and we're letting corporations throw their weight around with candidates, and that could lead to corruption. And so they made that behavior illegal.

David Sirota: I think that the system doesn't have to be inherently nearly as corrupt as it is. [00:19:00] There's always going to be corruption at the margins, but it won't be cleaned up. It won't be a better system if we simply accept that this is no longer corruption. This is just the way things work. I don't accept that the kind of corruption we've just been discussing is the way everything has to work. There are ways to reduce corruption in a real way, but that requires a real campaign and a real focus.

Nick Capodice: All right, so we're back to this. Corruption is not a force of nature [00:19:30] idea. But Hannah. I do have to say, lately especially, it feels like a fact of life, that money has a massive influence on lawmakers and probably on laws and policy. If that is corruption and there really is a swinging pendulum here, does David see reform on the horizon?

David Sirota: What I fear is, is that there's no more of a cycle anymore, that the master plan and the master planners, who have essentially worked over decades to [00:20:00] legalize this form of corruption, both in the legislative sphere and in court rulings, deregulating the campaign finance and ethics rules system, that that they have permanently ended the cycle of pushing back. As we enter, as we are in amid an incredibly obviously corrupt era.

Nick Capodice: Well, that's a sunny outlook, isn't it?

Hannah McCarthy: I'll help us find the light, Nick. But, uh, first I got to share the story of how it got so dark in here. That's [00:20:30] after the break.

Nick Capodice: But before that break, listeners, you should know that there is a lot on the cutting room floor of every episode we make, and Hannah and I take all those clippings from the cutting room floor, sweep them up, and we put them into our biweekly newsletter. Extra credit. You can check it out. It's fun, it's free, and it's all on our website, civics101podcast.org.

Nick Capodice: We're [00:21:00] back. We are talking corruption today. And before the break, Hannah, you promised us a scary story.

Hannah McCarthy: I did. Here's David Sirota again.

David Sirota: So in 1971. Richard Nixon had just installed the now famous recording devices in the white House.

Archival: We are going to use any means to get it done. I want it done. [00:21:30]

David Sirota: 1971 was this moment in history in which the reformers, Ralph Nader types, were winning tons of legislative victories. It was a time of really incredible progress in America. I mean, the country had declared war on poverty. The Voting Rights Act had passed, the Civil Rights Act had passed the Medicare, had passed Medicaid. Richard Nixon signed the legislation creating the EPA and the like. I mean, this was an incredible moment. [00:22:00] And Nixon had just installed his recording device in the white House. And one of the problems that had not been solved, one of the last big problems that had not really been addressed was this thrum of corruption underneath the political system.

David Sirota: And Nixon ended up recording this exchange that he had with his Treasury secretary, [00:22:30] in which his Treasury secretary said to Nixon, and they were they were strategizing together that they could shake down. That was the that was the term used. They could shake down the dairy producers. And we're talking about the big giant dairy companies. They could shake down the dairy companies for more campaign cash to Nixon's reelection campaign, in exchange for Nixon issuing a policy that would [00:23:00] create a price support floor for the price of milk, to keep the price of milk at or above a certain minimum amount.

Nick Capodice: Hang on. Shake down the dairy industry.

Hannah McCarthy: Yes, Milk shake down milk shake. We are not the first to notice the pun potential there.

Nick Capodice: Milk them for all they're worth. But how is this a shakedown. Exactly. You know, you help me get reelected, I'll help your industry out. That's quid pro quo. As old as time in [00:23:30] American politics, isn't it?

Hannah McCarthy: Well, Nixon may not have invented campaign corruption, but he sure did define it in a new way.

David Sirota: It was very, very clear. They're going to give us money. We're going to do this policy. And what ended up happening was that this kind of came out. It leaked out at the time, not necessarily the tapes. The tapes did not leak out until Watergate a few years later. But the fact that so much money flooded into Nixon's campaign from [00:24:00] the dairy producers. And then Nixon essentially reversed a decision from his agriculture department to then do these price supports, which enriched the dairy processors, the dairy companies. It became this example of the kind of corruption that had become systemic in Washington and helped prompt To Congress to pass the Federal Election Campaign Act. It's still on the books. It was a landmark moment.

Hannah McCarthy: Basically, [00:24:30] even before Watergate went down, Congress was taking note of how campaign contributions could directly influence regulation. It was, like David said, very clear that Nixon had received a ton of money from the dairy industry and then turned around and helped the dairy industry. So the 1971 Federal Election Campaign Act regulated money in federal elections, contribution limits spending disclosures [00:25:00] prohibiting candidates from offering rewards in exchange for donations.

David Sirota: I think what it exemplified was this cycle that we've been talking about where bad stuff happens. Congress feels forced to react, and Congress did react. Now, Nixon almost immediately after signing the Federal Election Campaign Act. Signing it, I don't know. He didn't exactly love that he was signing it. He didn't do a big signing statement, but he felt sort of publicly pressured, publicly forced to sign it. [00:25:30] Nixon and his cronies decided to try to immediately circumvent it. And what's fascinating is, is that we uncovered a lot of previously never reported on documents in which they outlined their strategy of how to effectively undermine that anti-corruption law. Immediately upon its passage, I should mention, when the bill was moving through Congress after this dairy corruption scandal, Nixon was publicly saying he supports campaign finance [00:26:00] reform. He supports anti-corruption legislation. Meanwhile, we uncovered memos inside the white House in which they were plotting a strategy of getting corporate donors to threaten members of Congress with financial punishment if they ended up voting for that anti-corruption law.

Nick Capodice: Wow. That is. Well, I guess that is Richard Nixon.

David Sirota: So I realized that people listening to this will say, well, it's not a surprise that Richard Nixon, [00:26:30] of all people, was corrupt. And I think that's right. It's not a surprise, but I think we have to understand that the Watergate scandal and the Nixon administration, it really wasn't just a scandal about the break in and a desire to win an election. It was really the first and biggest campaign finance and corruption scandal of the modern era.

Hannah McCarthy: And Nick, why is it important that Congress is monitoring this stuff [00:27:00] that they're playing watchdog in their own world, because the public is often busy thinking about other things. For example, who's thinking about the dairy industry in 1971?

David Sirota: Is Nixon going to end the Vietnam War. The public may be keyed into. Is Nixon going to sign the bill creating the Environmental Protection Agency? The public may not be as keyed into Agriculture Department policy on dairy prices and dairy price [00:27:30] supports. So the smaller, more granular, more detailed, more esoteric the issue becomes. In some ways, the more likely a politician is to think, well, that's the kind of issue that I can go do the bidding of big money, because the public's never going to notice. The average voter is never going to know what I did. The average voter is never going to know that I slipped this or that line into a bill. I mean.

Nick Capodice: Members of Congress barely have the time or [00:28:00] opportunity to read every detail of a bill. So why would the public.

Hannah McCarthy: Exactly. And then there's the fact that you can always sneak language into a bill that gets you or someone else what you or they want. We hear about things like poison pills, language in a bill that basically kills it from the inside out, and riders language attached to a bill that might have nothing to do with the bill. There are plenty of quiet routes to a legislative goal, routes [00:28:30] that voters might never notice or know about.

David Sirota: The more in the details you get, the easier it is for corruption to flourish. And what happened soon after that dairy scandal? Watergate happened. And what came out of Watergate was an effort to tighten and strengthen those campaign finance rules and those anti-corruption rules.

Hannah McCarthy: We talked about the 1971 Federal Election Campaign Act [00:29:00] after the Watergate scandal. Congress amended that act to limit contributions from individuals, parties and political action committees. That 1974 amendment also established the Federal Election Commission. But politicians were immediately opposed to these reforms.

David Sirota: And what ended up happening was that even in the shadow of that scandal that everyone paid attention to, everyone knew about, the president resigned on the bills [00:29:30] to strengthen the anti-corruption and campaign finance laws. After Watergate, the famous bills to crack down. Even those bills had provisions slipped into them to help create ways, new ways for corporations and interests, with lots of money to continue and actually expand their power to influence members of Congress.

Hannah McCarthy: Then, in 1976, [00:30:00] a Supreme Court case, Buckley v Vallejo, struck down some of the campaign Act's spending limits throughout the 80s and 90s spending limit bills were repeatedly killed and blocked in Congress. There were even proposed constitutional amendments to reform campaign finance. That, of course, went nowhere. Or we would know about it. Remember that McCain-Feingold act in 2002? I do. Senators John McCain and Russell Feingold [00:30:30] started proposing versions of that in 1997, so it wasn't exactly an easy sell. And as we learned earlier, the Supreme Court pulled out a lot of its teeth. Not long after its passage. David's podcast, masterplan tracks how all of this happens, the decades of work that went into preserving this thing we call corruption.

David Sirota: I think this is why what we track in our series is so important. Some might say, well, okay, there was a secret [00:31:00] plan to legalize corruption. The question then is why would anyone want to legalize corruption? And the answer is if you're a powerful industry or a billionaire, you probably know that you can't preserve and pass new policies that continue to enrich you in a one person, one vote. Functioning democracy. Corruption is the way you can use your money to wield the disproportionate [00:31:30] power you need to wield to get the government to produce policies that the public won't like. So at its core, what we're talking about here is deregulating the campaign finance system. Making bribery effectively legal is a way to short circuit or as, as we say, corrupt the way democracy is supposed to work so that it is not working for the people who elected [00:32:00] their government.

Hannah McCarthy: I want to add that there are many, many lobbying groups claiming to be working for public interests and the preservation of democracy. And if you have an issue that you're passionate about, I warmly recommend that you look into groups that promise to represent that issue and also do your research to find out if they're really representing you. But either way, if money is allowed to speak [00:32:30] louder than or even against the voter, David sees this as a systematic problem.

David Sirota: When we say legalizing corruption, I want to be clear about what I mean. What I mean is the changing of laws via Congress and legislation and via the court system, the changing of laws to allow money to dictate political outcomes and public policy outcomes. [00:33:00] That that I think people are so used to that. And look, money is always going to have some disproportionate power, but it certainly doesn't have to have the amount of disproportionate power it has now the determinative power.

Nick Capodice: Okay, this is potentially concerning for listeners, but I also find it very helpful because we started this whole thing off by trying to understand what corruption is. But maybe it's more important to understand what corruption does. What corruption [00:33:30] does is create a barrier between the voter and the elected official. It is a wall that stops the democratic process.

Hannah McCarthy: And to that point, Nick, David didn't pull any punches when he talked about what he thinks this means for America.

David Sirota: In a system where corruption is this pervasive, where money is so determinative of political outcomes and government policy. We are moving towards a place where democracy is like a game we play every couple [00:34:00] of years, almost meaningless sporting event to to allow us to feel the sensation of democratic control. But in reality, the people who are in control are the people who have the most money.

Nick Capodice: Knife to the heart hannah

Hannah McCarthy: Nick. This is Civics 101. Do you remember how I started this episode? I said I would not let you stew in the notion that we, the people, are powerless against this force. Because. What [00:34:30] is this? Not a force of.

Nick Capodice: Nature.

Hannah McCarthy: Right? It is a force of humans. Fallible, distractible swayable humans. You can make Congress do things. Here's an option, for example, that maybe some people will not love.

David Sirota: Public financing of elections would go a long way to fixing a lot of this. It wouldn't completely fix it, but it would go a long way to doing that public financing.

Nick Capodice: Wait, is this like that thing on my tax form where I can [00:35:00] volunteer to give money to the presidential election campaign fund.

Hannah McCarthy: This is that thing kind of which, by the way, Nick, I really wish someone had explained to me when I first started doing my taxes because for the longest time I was like, why is the IRS getting into politics? And also why are they asking me to give more money on top of what I am already paying in taxes? Well, it isn't, and they aren't.

Nick Capodice: All right, so what is it then?

Hannah McCarthy: The Presidential [00:35:30] Election campaign fund was established by Congress in 1966. The thinking was, if candidates can access public funding, they won't be dependent on or beholden to the giant coffers of industry.

Nick Capodice: Wait, so public funding of elections. The thing David was just talking about, we already have that.

Hannah McCarthy: Well, for a long time, basically since this fund was established, taxpayers have opted into it less and less. Even though, to be [00:36:00] clear, opting into it doesn't mean paying more money. It's actually pretty much the only way. Americans can directly choose where their tax dollars go. And it's not just taxpayers who are ignoring it. Candidates are too. If you choose to use the fund, you also agree to a spending limit. You can spend 50 grand of your own money plus the election fund grant. And that is it. The grant for the 2024 general election is $123.5 [00:36:30] million.

Nick Capodice: So when you think about the fact that the Biden campaign spent over $1 billion in 2020, if that is ostensibly what it takes to win an election, why would you use the public fund?

Hannah McCarthy: John McCain, surprise, surprise, was the last nominee to use it. That was in 2008, but you can use it for your primary campaign this year. Jill Stein and Mike pence chose to use some of it. For a while now, people have been trying to figure out what to do with this pot of [00:37:00] money. In 2014, Congress started giving some of it to the National Institutes for health for Pediatric Research instead.

Nick Capodice: Okay. Interesting, because I don't think that box on my taxes has said presidential election campaign fund, pediatric research. I'm not opposed to supporting health research for kids, by the way. It's just not what the box says.

Hannah McCarthy: Yeah, you know what else that box doesn't say? Slash election security grants, slash Secret Service operations.

Nick Capodice: Wow. No, the box definitely [00:37:30] does not say that.

Hannah McCarthy: In an August 2024 appropriations bill, Congress took $55 million out of the public presidential election campaign fund for state election security grants and $320 million out of that fund for the Secret Service.

Nick Capodice: So the money that people think is going to the public funding for presidential campaigns has actually gone off to election security and the Secret Service.

Hannah McCarthy: And as of right now, [00:38:00] the most recent report from the FEC. The presidential election campaign fund is down to just over 17 million.

Nick Capodice: Okay. So the one source of federal public funding for campaigns probably couldn't be used even if someone wanted to.

Hannah McCarthy: Not to great effect anyway. Basically, candidates would have to wait until that fund builds back up to eventually get the money they need. But Nick, like I said, [00:38:30] people have been arguing for some kind of change to this fund for a while now. Some kind of reform, some shift that makes public funding viable for candidates. And in David's opinion, public money for candidates is preferable to private money for candidates.

David Sirota: I know the argument against that. Oh, you know, like we're just going to use government money to subsidize politicians. Well, you know what? You get what you pay for, right? I mean, [00:39:00] we're getting the best government money can buy right now. Private money can buy, which isn't so good for the for the public. So the public, I think, in my view, should be willing to pony up a little bit of money to get a better government, which means creating a system by which, if you want to run for office, you don't have to go begging billionaires and corporations for money, where if you get lots of little donations, there's a public pot of money that boosts those donations, gives you more resources [00:39:30] to just run a campaign, regardless of, by the way, whether you're a Republican, Democrat, whatever ideology, that's the kind of thing we can do. We know how to do it. It's been done in certain places.

Nick Capodice: It's been done.

Hannah McCarthy: I mean, New York City matches campaign donations at a really high rate, for example, which some listeners might have heard about recently in the wake of Mayor Eric Adams indictment, it appears that Adams abused the city's public funds program.

Nick Capodice: So to be clear, it's not like these programs will mean corruption goes away. [00:40:00]

Hannah McCarthy: No, but it does make corruption a real and prosecutable thing. Okay. One other thought from David when it comes to money and politics.

David Sirota: I think you could pass. Congress could be shamed into passing the Disclose Act, which is a bill that came after Citizens United, which would essentially force dark money, which dominates our elections now. Dark money being anonymous spending that could force that out into the open so we at least know who's spending [00:40:30] money in elections.

Speaker9: What we can still do, and what we should do is require these anonymous groups to disclose who is funding their ads. That's exactly what the Disclose Act does.

David Sirota: If you ask yourself, why do the spenders of dark money want to stay anonymous? It's because they don't want to become the issue in the elections. They don't want to. They don't want you to know that the advertisement on your television is coming from them because they know you probably won't like them, and your interests are not aligned with theirs. [00:41:00]

Hannah McCarthy: So the question to David's mind becomes this if what we have been talking about sounds like corruption, if it sounds like something that erodes trust in our lawmakers and our system, if it sounds like it creates a barrier between we the people and our needs being represented by our lawmakers. If Americans think money influences [00:41:30] law and policy, regardless of what the people actually need, what do we do about that?

David Sirota: I think at its core, the first thing we have to do is say, okay, wait a minute. This is a problem. I think there have been examples in the recent past in which we are moving towards normalizing this corruption in a way that does not give me hope. That's the warning.

Hannah McCarthy: Nick. We started this episode hearing an anecdote from David's [00:42:00] West Wing dream years, a Bernie Sanders anecdote, and we're going to end it on another one.

David Sirota: There was a moment on the Bernie Sanders campaign that was heartbreaking for me.

Hannah McCarthy: By campaign David Means Sanders 2020 presidential campaign.

David Sirota: It was January, so it was right before Iowa. One of his surrogates, a supporter of his named Zephyr Teachout, who's a law professor who's been talking about corruption forever. She published an op ed [00:42:30] in which she said Joe Biden over his career has a corruption problem. And she pointed out that Joe Biden had taken lots of money from the credit card industry and had passed a bankruptcy bill that was that helped the credit card industry. And she went through sort of a whole litany of things that Joe Biden had done for corporate interests that gave him lots of money. All stuff that's verifiable, not conspiracy theory, just right out in the open. And she said he has a corruption [00:43:00] problem. And this behavior of pay to play of where a politician with power gets money and then does the bidding of an industry that this is a systemic problem. And she published that op ed and there was a firestorm of controversy around it.

Nick Capodice: A firestorm, because people were like, oh, wow, Biden is part of the corruption problem.

Hannah McCarthy: More like a firestorm, because people were like, hey, keep that to yourself.

David Sirota: How dare she do this? And is this Bernie Sanders campaign going [00:43:30] negative? Et cetera, et cetera. And under that pressure, Bernie Sanders came out and didn't say, hey, this was a good point. I do think there's a systemic corruption problem in Washington. Bernie Sanders came out and felt compelled to apologize, to apologize to Joe Biden.

Archival: But it is absolutely not my view that Joe is is corrupt in any way, and I'm sorry that that Op-Ed appeared to be so.

Nick Capodice: Hannah Bernie Sanders talks about money in politics a [00:44:00] lot. Like a lot, a lot. It's it's kind of his whole thing. Right? Namely, saying that he is opposed to how it influences the government and how he wants to ban avenues to corruption. But we should also say Sanders has definitely taken money from corporate lobbyists in his career. But if one of the most outspoken opponents of quote unquote dark money apologizes when someone calls it out, what does that mean?

Hannah McCarthy: Well, [00:44:30] that's David's point.

David Sirota: If even Bernie Sanders is in a political system that tries to to shame people for even calling out corruption, if even Bernie Sanders feels so pressured that he has to succumb to that Bernie Sanders, who's spoken out about this, it tells you how much the system doesn't even want the problem to be acknowledged. And to me, we can get those better policies we just talked about. Those can be done [00:45:00] if we say we are not going to apologize when somebody calls out corruption, we are not going to accept that the corruption that we see all around us is just normal and acceptable and okay and good. No, we are not going to do that. That's why the last time there was a real effort, a successful effort to put anti-corruption legislation on the books, it came as a result of John McCain running an entire presidential campaign saying, I am [00:45:30] going to talk about the systemic corruption that is destroying our country, and I'm going to talk about it whether people like it or not. And that was the only way that anti-corruption policy, a better policy, was put on the books. And that's the only way it's going to happen in the future.

Nick Capodice: One last question for you, Hanna. What can people actually take away from this episode to hear that the only way things are going to change is if someone really powerful [00:46:00] uses their platform to force that change. What role do we play in that? David has painted a picture of a pretty entrenched system that seems like it sustains itself, and it's hard to see where the change can come in.

David Sirota: I think people have gotten so used to this. We're really at the precipice of not really understanding what corruption is, what's the difference between corruption and just business as usual. And I think what I hope the series does is [00:46:30] give people a sense that, wait a minute, it didn't have to be this way. My hope is that people walk away from this series and say, wow, you know, I see that like, there was this whole plan to make money. The only thing that matters in American politics. And I also see that it didn't have to be this way. And if it doesn't have to be this way, if those decisions were made in the past to create what we are living in now, other decisions can be made now to make sure it no longer is this way.

Nick Capodice: So public [00:47:00] pressure.

Hannah McCarthy: I'm not going to assume that people listening to this episode are opposed to the apparent force of tons of money in politics. If you like the system as it is, you're in luck. It is not easy to change. But if you don't like it, keep saying you don't like it. Say it to your representatives. Say it with your vote. Say it to your local and state governments. Say it over and over again. If you don't like what you [00:47:30] see, give it a name and say that name repeatedly. This episode was produced by me hannah McCarthy with Nick Capodice Christina Phillips is our senior producer. Rebecca LaVoie is our executive producer. Music [00:48:00] in this episode by Katherine Lee Bates, Ryan James Carr, Matt Large, El Flaco Collective, Waykapper Brendon Moeller, Ikhana, John Runefelt, spring gang, Lennon Hutton, Baegel and Mike Franklyn. If you like what we do here, please follow or subscribe wherever you get your podcasts. It's free and you'll make sure to never miss an episode. While you're at it, consider leaving us a review. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

How can the president stop a strike?

Whenever there's a big strike in the news, someone inevitably invokes the phrase "Taft-Hartely Act" when talking about whether or not the president should intervene. But what is Taft-Hartley? How did it come about? And what can it actually do?

Nick chats with Erik Loomis, a professor at the University of Rhode Island and expert on all things labor-related. 

Listen to the podcast:


Transcript

Nick Capodice: Hello, everyone. You're listening to Civics 101. I'm Nick Capodice. Hannah is out this week, so today is a rare solo performance. Now, today is one of those episodes that's tied to something that happened last week. And it got pretty big, and there was a threat that things could have gotten a lot bigger.

 

Archive: We're out here picketing for better wages and automation protection, and we're willing to stay out here as long as it takes to get what we want.

 

Archive: I'll shut them down throughout the world to prove that we can beat them.

 

Nick Capodice: And big strikes like these, they usually get resolved one way or another, and then people forget about it until the next time it comes up. But as far as I can tell, it's probably going to keep coming up. So this is a good thing to have in your civic's pocket. Today we are talking about the Taft-Hartley act. So on October 4th, 2024, there was a continued massive strike of the International Longshoremen's Association. This is a union with about 50,000 members. These are the people who load and unload container ships, which is a crucial part of how we get all our stuff, almost all our stuff. 90% of the world's goods are transported by sea. So if the goods don't get off the container ship, they don't get to our stores. They don't get delivered onto our stoop. The union had two big demands, a wage increase and a commitment that the shipping companies wouldn't automate many of their jobs. These were the two big sticking points. And on the night of Thursday, October 4th, before things got too bonkers, the union and the companies that represent the shipping lines came to an agreement and the strike has paused. Things are being negotiated and work can commence whenever there's a big strike like this and neither side seems willing to budge. There is inevitably a headline asking, Will president So-and-so invoke the Taft-Hartley act?

 

Archive: And there is the Taft-Hartley bill that says, if you're an essential worker to the to the commerce of the country, you you have to be on the job. And I think my own opinion. I'd like to see what Mike.

 

Nick Capodice: So today we're going to explain what it is, what it does, where it came from, and what steps happen whenever it is invoked, which is not too often. I spoke with Eric Loomis. He's the professor of history at the University of Rhode Island and author of A History of America in Ten Strikes. So, without further ado, let's push this thing off the dock. So before we get into the Taft-Hartley act, for anyone out there who might not be familiar, what happens when workers go on a strike?

 

Erik Loomis: Well, most of the time when a worker, when workers go on strike, they picket. They vote on it. First of all, they their union attempts to negotiate a contract with their employer. For whatever reason, they don't come to an agreement, whether that is because the employer doesn't want to agree or sometimes they actually do agree. But then the the workers themselves reject the deal. So you do see that. And when that happens, the workers leave the facility and they withhold their labor. Right. Which is at least, you know, by some measure, the strongest power that workers have, right? Their their collective ability to choose not to work based on the conditions of which they're making that choice. And then usually what happens is there is a period of time in which they are picketing, you know, handing out information to people passing by, engaging in a PR campaign, Usually behind the scenes, there are continued attempts to work out a deal because in the end, usually workers do want a paycheck because they're not getting paid during this. Um, and then eventually, as a general rule, they come to some kind of agreement. Then the workers vote on that, whether to end the strike or not. And then if they choose to, they go back to work.

 

Nick Capodice: So when this strike was going on, President Biden refused to invoke the Taft-Hartley act. And the strike was resolved without it. But for anyone out there, the next time this happens, what is Taft-Hartley?

 

Erik Loomis: Okay, so the Taft-Hartley act was passed in 1947, and it is an extremely anti-union bill. In the 1930s, workers went on strike by the millions around the country. They created the modern labor movement, basically the giant unions of that period the United Auto Workers, the United Steelworkers, you know, those kind of big industrial unions. And they have enormous successes. The administration of Franklin Delano Roosevelt passes the National Labor Relations Act and the Fair Labor Standards Act. Both laws transform and really revolutionize work in America, effectively creating the kind of dignified work that that exists. And workers themselves had pushed for those kinds of laws. They had engaged in massive strikes throughout the Great Depression, and then they're continuing to do so after this. Right. And so in the late 1930s and the early 1940s, there were many large strikes in America in World War two. The labor movement and the government and employers all came to an agreement to handle labor disputes in a different way. And one of the things that unions agreed to was to not strike. And so you don't really have, as a general rule, large strikes during World War two because everyone's trying to beat the Nazis. Right. But then at the end of the war, you have this enormous strike wave that begins. And most of these strikes were not for radical purposes. They were basically because workers wanted to get paid, right. They had not really received like major wage increases in a very, very long time because you had the Great Depression, then you have the war.

 

Erik Loomis: And so over 4 million workers go on strike in late 1945 and in 1946. And what this does is empowers the business community, who's already just furious that unions exist and they don't want unions at all to basically create the harshest anti-union bill they can get passed through Congress in order to stop most of the things that the union movement used in the 30s and early 40s to become successful in this country. So it forces union leaders to sign anti-communist pledges that they are not members of the Communist Party, which was an issue back then. It ends what are called secondary strikes. And so like if, let's say in my university, we have professors, we have a union, and let's say the groundskeepers go on strike. A secondary strike would be the professor saying, in solidarity with the groundskeepers, we're not going to strike. Right. They make that illegal. They allow states to create so-called right to work laws to incentivize workers to not join unions. And there's a bunch of other stuff, too. But for our purposes, the biggest thing they do is they create for specifically large strikes, a path of federal intervention so that if the president decides and the words and the law is if a strike quotes imperils public health and safety, then the president can intervene and force the workers back on the job for a limited period of time while the administration tries to work out a deal.

 

Nick Capodice: So this was a massive blow to the unions when this passed, right?

 

Erik Loomis: Absolutely huge. Huge blow. You know, a lot of the ways in which organized labor had succeeded in the 30s were through things like secondary strikes, were through things like, you know, winning the so-called closed shop so that everybody in a workplace, if the workers voted to have a union, everybody would have to be a union member, right? Um, by engaging in, you know, radical actions. Yes. And even the communist stuff, I mean, a lot of them, whatever you want to think in 2024 about communism, you know, a lot of those leaders, a lot of those union leaders, and especially the most successful ones, and a lot of those organizers, they were so good at organizing workers, in part because they were committed to the cause of communism. And so it really it really does is it takes away takes out of the labor movement, many of the most successful organizing unions, and really kind of undermines the spirit of organizing. And they loathe this federal intervention, because if if you don't have the right to strike, if you don't have the right to withhold your labor, then what rights do you actually have? So, you know, the labor movement referred to it as the Taft-Hartley slave labor bill. That was the term they tried to use in order to do it, because they were like, well, we have to work if you were the government or making us work. Are we free people?

 

Nick Capodice: Wow. Real quick, could you just define what a closed shop is?

 

Erik Loomis: Yeah. So a closed shop is that, you know, if, if and they don't of course they don't exist in the United States, but that if let's say, you know, we have a union in a workplace, right? At 80% of the people vote yes on the union, the other 20% still have to be union members. Okay, right. That's been somewhat worked around by creating what are called fair share dues, in which you don't have to be a union member, but because see, what what the law does as well is, is it says, okay, if we have a union and you don't want to be a member, well, fine. You don't have to be. But the union still has to represent you, right? The union still negotiates your wages. The union still is supposed to, you know, negotiate fair conditions for you. And if you are a nonunion member, but you get in trouble on the job, even though you are not paying into the union or you're not a member. Then they still have to represent you in, say, a grievance hearing so that you can keep your job. So it basically creates free riders or a more accurate term as leeches on the union states then can also pass a Right to Work act, which means that in many states have done this, which means that workers don't even have to pay those fair share fees so they can literally be free riders. And this is continuing to move forward. So with the Supreme Court case of the Janus case of a few years ago, which really was an attack on public sector unions, Justice Alito specifically notes, one of the appeals of this is to ensure that public sector workers, government workers throughout the country. So even in a pro-worker state like Rhode Island that has very strong labor law, that if my fellow faculty members choose not to be a member of this union. They don't have to pay anything. They still get all the benefits and they pay nothing.

 

Nick Capodice: We're going to get back to Taft-Hartley. And a few more details on last week's longshoremen strike. But first, we got to take a quick break. And if you want to check out our archive of hundreds of episodes on hundreds of topics, you can do that at our website, civics101podcast.org. Thanks.

 

Nick Capodice: What is the exact word wording in the act about what kind of a worker can have this federal intervention?

 

Erik Loomis: It's vague, yeah. So the official language is that if a strike imperils national health and safety, who determines that? Right. That's that's up to the president. So there's not a standard here. It's not a size of a strike or there's no legal standard here. It's intentionally vague. Basically, a president can invoke it whenever they want to.

 

Nick Capodice: And it has to be invoked by the president. The president must be the one to make this happen.

 

Erik Loomis: Yeah. That's right. Yeah.

 

Nick Capodice: Has it happened before?

 

Erik Loomis: Absolutely. Yeah. It's happened 37 times.

 

Nick Capodice: 37!

 

Erik Loomis: 37. But but not but most of those were in the late 40s and 50s. So it doesn't happen very often anymore. You know, the last time it was invoked in any major way. And I think last time it was invoked at all was in 2002, in a really fascinating case, because George W Bush invokes it against the employers, which is a weird sort of thing because because Bush is very pro employer. But what was that? It was also a longshoreman strike. Really? It was on the West Coast. But what had happened is that the employers engaged in what's called a lockout. And a lockout is basically an employer strike, right? A lockout is the employer saying we are shutting the doors to you until you accept our offer on this contract? And so in this case, so this goes on for several days before Bush gets involved. It's, you know, something I think about 11 days. It had gone on. What ends up happening is that the rest of the business community is basically saying to Bush, you need to intervene here. This is the the ridiculousness of these shipping companies and the people who work on the port companies is causing us and causing our national economy a serious, serious hit. And so you need to invoke Taft-Hartley to force the employers to negotiate fairly. Because because we're getting, you know, we're taking the hit for their aggressive behavior. And Bush agrees. And Bush actually does this. So it's a really weird moment. But that's the I think that's the last time it's been invoked, period.

 

Archive: I have determined that the current situation imperils our national health and safety. I have appointed a board of inquiry to investigate the issues at stake. Today, the board submitted an official report stating each party's position. I'm now directing Attorney General Ashcroft to seek an injunction under the Taft-Hartley act, ending the lockout and requiring work at the ports to resume at a normal pace.

 

Nick Capodice: Just to get back to the name when you know, it's called Taft-Hartley. I imagined it had something to do with William Howard Taft, but his administration was so much before that. Can you tell me anything about who Taft and Hartley were?

 

Erik Loomis: Sure. So Robert Taft is the son of William Howard Taft, and he is a powerful senator from Ohio who is also an extreme right winger, which is somewhat ironic because William Howard Taft, although certainly a Pro-corporate Republican, was really no extremist. But Robert was a real right winger, somebody who was, although I don't think they were really personal friends, was kind of, you know, on the same boat as somebody like Joseph McCarthy, really freaking out about communism, really wanting to bust the labor movement. And so Taft, who has massive presidential ambitions, right. The Republican Party is kind of split between more moderate types and people who want to repeal the New Deal and return us to the 1920s. Right. And so there's this kind of like Republican civil war going on. And Robert Taft is very much on the right wing of that. And so he takes the lead to attack these unions as part, partially because he truly believes it, but partially as a somewhat cynical strategy to raise his power within the Republican Party and hopefully get the presidential nomination in 1948, which doesn't happen. It should be said Fred Hartley is a congressman from new Jersey, and basically he's just a business hack. I mean, he's he introduces the the bill on the House side. There's not that much to know about him. Like a lot of members of Congress, he isn't really that exciting. But he was a very, very pro-corporate congressman. And but and I think that the the important thing is that not only does this bill pass, it passes over a presidential veto.

 

Archive: Oh, the Congress handed me the Taft Labor Act after two vetoes. They passed it over my veto. It was harsh, punishing law and was an attempt to take all the rights away from labor that they'd been enjoying. They brought it on themselves, though, by going to excess when they had all these rights, and it was a trouble for the whole country as far as that's concerned. The country was of the opinion that labor had gone too far and were against them. And that's the reason that Congress could pass the Taft-Hartley act over my veto.

 

Erik Loomis: Right. President Truman, who was not that strong on unions and in fact invoked Taft-Hartley in the aftermath ten times himself thought that this law was too extreme. So he would assign a more moderate legislation to, you know, cut out some of the the things that unions were doing that maybe he was uncomfortable with. But this was such an extreme piece of legislation. He vetoes it. But and this, I think, is really critical for understanding the labor movement in this country, even at the very height of union power, when unions have, you know, at almost the most members they'll ever have, it's a little later that they peak in the 50s. With this, a pretty aggressive leadership and a lot of strikes. This bill in the Senate, they override Truman's veto by 6825 measure so that even at the height of worker power in this country, the vast majority of senators in this country had no particular respect for the union movement, and, moreover, did not actually fear that the labor movement could do anything about it. And in fact, the labor movement goes big time after Robert Taft in his next reelection. I think that's in 1950. And Taft wins in a landslide. So it's another big defeat for the labor movement.

 

Nick Capodice: Can you just tell me a little bit about the heads of labor unions when it comes to campaigning for a president? That's always fascinated me. Like every election, it's sort of like, how will the union go or who will the union endorse? Has that always been like a connection when it comes to an election?

 

Erik Loomis: Not always. I mean, the American Federation of Labor is founded in 1886 as a federation of unions. That it's not. So I think it's important for people to remember that the AFL-CIO, which today is the federation that runs the labor movement, it is not a union. It is a federation of unions who choose to be part of this broader organization. You kind of think of it as like a, um, kind of an analogy would be like an employer interest group, like the it's like the Chamber of Commerce or something. Sure. So, you know, it's not the AFL-CIO is not a union itself. It's a it's constituent organization. And for a very, very long time, um, the head of the AFL, a guy named Samuel Gompers, tried to be very nonpartisan. He didn't believe in electoral politics. And a lot of the constituent unions were either pretty nonpartisan or, well, or even voted for Republicans. That begins to change in the 1930s. So part of the reason, when the union movement splits in the mid 30s and a more radical and more organizing oriented federation begins, this is the CIO, the Congress of Industrial Organizations, headed by a guy named John L Lewis, who was the head of the mine workers. Now, Lewis himself is a lifetime Republican and ends up hating FDR for other reasons. But during World War Two, the union movement, at least the CIO, um, realizes that its path to success is working closely with the Democratic Party.

 

Erik Loomis: And so one of its key figures, a guy named Sidney Hillman, who came out of the textile workers and was a Jewish immigrant from, you know, what is today Russia or Eastern Europe, anyway, he becomes like the CIO liaison or representative within the federal government in war planning. And as part of this, you know, what happens during World War two is that the government again basically says, okay, so in return for you, union is not striking. What we're going to do is basically force any company who's getting union contracts to accept the union and not fight it, which actually unionizes a lot of places that had been very harshly anti-union, such as Ford is a great example of this. Right? Because they're not going to get defense contracts, which is the entire economy without those unions. And so this basically gives the union movement, the CIO, at least, the ability to grow rapidly. And they sign up hundreds of thousands of people and then millions of people. And it kind of connects the union movement to the Democratic Party. So that really is where you really begin to see the assumption that unions are going to sort of vote for Democrats. And as the postwar politics develop, whereas the Democratic Party is kind of split between being pro or anti union, because remember, the Democratic Party is still also the party of the white South.

 

Erik Loomis: And those white Southerners at that time were also quite anti-union. For the most part. The Republican Party is almost universally anti-union. So unions continue to really tie themselves, you know, increasingly closely to Democrats and to a certain extent that continues today, although obviously, you know, in some of the news about unions not endorsing Harris and and moving to sort of a noncommittal stance and basically opening the door for their members to vote for Trump, you know, that maybe has has slipped. One of the things that Taft-Hartley also does is try has wording in there about limiting union contributions to political campaigns and things like that. So it had been a concern going back all the way to that time. But, you know, one of the things that unions did for a long, long time is that they were the one voice in American life that gave working class people a story, an information campaign. Right. That was different than the kind of right wing media that a lot of them are consuming. Donald Trump's secretary of labor was Eugene Scalia, the son of Antonin Scalia, who was extremely anti-union, whereas the Biden administration has gone out of its way to promote unions in a way that we haven't really seen since FDR. So that's a long answer to a complicated story.

 

Nick Capodice: I think my last question is, as somebody who studies labor, as somebody who teaches labor, you were following along this strike, I imagine, like, what did you notice? Was there anything that, you know, that stuck out to you as something that was like a little different about this strike or sort of more newsworthy about this strike?

 

Erik Loomis: Well, I mean, I think a few things. I mean, one is that, you know, what is the issue of automation, which is a huge thing about American work generally. I mean, you know, a lot of the stories about these longshoremen was, you know, oh, they get paid so much money and they want even more money. Well, that's true, but it's also very dangerous work. But a big piece of this story is actually about automation. Longshoremen unions and employers have had a kind of a dance for about a half a century now over automation. Right. There's far fewer workers working on these ships than there used to be. And so they kind of come to temporary agreements and things like this and negotiate around it. One of the things that drove this strike was that the workers had discovered that the port of Mobile in Alabama had engaged in unagreed upon new forms of automation that could potentially cost workers, even even more jobs. And so there's a lot of anger around the automation issue. And I think a lot of us are concerned about what is the future of labor in this country if so many jobs can be automated. So I think that's one thing. I think another thing was some reporting on it, I thought was rather poor, including from our largest news organizations, some of the New York Times reporters today and Maggie Haberman among them. Um, she said, oh, you know, this is the most important issue for both presidential candidates to address right now.

 

Erik Loomis: And it's not actually in truth, because, you know, there's all this talk about inflation, but the companies, American corporations had expected this for some time. We would not actually see any results on the shelves or on the prices for probably at least six weeks after the election. Right. But because of the ways in which a lot of our reporters try to sort of gin up stories without necessarily understanding them, they're making it a bigger deal than it is. And the reality is, is that very few strikes go on for six weeks in this country, right? If a strike has gone on for six weeks, something has really failed. And it's usually very, very bad for the workers, right? Most strikes are short and they should be short. So I was not surprised that the companies came back with a better wage offer. And the Uh, longshoremen said, okay, you know, we're going to suspend the strike for now. We reserve the right to continue it later, but we're going to sit down and talk now. This is how these things go. It would help if, you know, are the times and the post and some of these other big media organizations would report on this with some nuance. But I honestly, they don't know very much about it. And so they end up moving to these talking points. So to me, that was as you could tell, I was a little annoyed.

 

Nick Capodice: Well, one thing that's interesting to me is that before the pandemic, I wasn't familiar with the notion of a supply chain. I wasn't familiar with, like any of that stuff. And these are folks who were working during the entire pandemic to get stuff off the boats, to get stuff moving around. Like, to me, it seems sensible to reinvestigate how much they were paid and whether or not automation was going to change how they did things in their industry.

 

Erik Loomis: Oh, absolutely. I mean, these were the ultimate of essential workers. And we focus on, you know, hospital workers and things like this, and for good reason, of course. But these are the workers you don't see. Right? These are the workers who actually get stuff to the shelves. Right. Write them. The truckers, the train workers, these transportation workers that you don't really see are the entire reason that you had toilet paper to hoard to begin with. Without them, you don't have anything. And it's also dangerous labor. I mean, just think back a few months ago to that ship in Baltimore that went out of control and and hit the, you know, destroyed that bridge and killed these these bridge workers, right.

 

Archive: A major incident in the U.S. state of Maryland where a cargo ship collided with the Francis Scott Key Bridge in Baltimore on Tuesday, causing its collapse. A search and rescue efforts are underway, with six members of a road construction crew still unaccounted for. You know.

 

Erik Loomis: That is a a ship loaded by these longshoremen. And of course, they didn't have anything to do with the wreck. But this is the kind of dangerous, gigantic workplace with these gargantuan containers that they're dealing with on a daily basis. They deal with so much cargo that it might sound like, you know, their wages are really high, but it's contributing effectively nothing to the price on the shelves because there's so much cargo on these ships that the small number of workers making a lot of money. All that's doing is undermining the profit of these shipping companies by a tiny, tiny bit. And these shipping companies are pulling in billions of dollars. And so if we're thinking about supply chains, we have to think about the workers through the supply chain. And honestly, that includes workers we never think about, which are like the people making your clothes in Bangladesh, right. Who actually are being treated horribly and are engaging, you know, or being forced to engage in what is sometimes something pretty close to slave labor and things like this. So it would be useful for us as consumers to think about the stuff that we get from the point of production to the point of consumption and these, these longshore workers. What they have is an enormous amount of leverage, because if these small number of workers say, we're going to step away, then you're not getting any of your stuff. And so they deserve to get paid a lot of money.

 

Nick Capodice: Thank you so much, Eric.

 

Erik Loomis: You bet.

 

Nick Capodice: Well, that is the Taft-Hartley act. This episode was made by me Nick Capodice with our executive producer, Rebecca Lavoie. Hannah McCarthy is my co-host, and Cristina Phillips is our senior producer. Music. In this episode by Epidemic Sound and Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio. All right.

 


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Civics 101 Live: How YOU can help preserve our democracy (really)

Hannah McCarthy, Nick Capodice, and Christina Phillips. Photo by Allegra Boverman for NHPR.

Why don't people "civically engage?" Because they're too busy! Politicians are busy! Or maybe...they don't care?

In this special episode of Civics 101 recorded in front of a live audience, we hear from experts who break down what it means to participate in our democracy, how to break down barriers to participation, and how to be who you already are and make a VERY big difference. 

This episode was recorded at NHPR's Civics 101 Summit at Southern New Hampshire University. Learn more about that event right here

Listen to the podcast:


Watch the show as it happened:

Video courtesy NH PBS

Transcript

Rebecca Lavoie: This episode of Civics 101 was recorded in front of a live audience. For more information on the event, check out our show notes.

 

Nick Capodice: And we are going to begin. And to begin, I have to invite onto the stage the person without whom Civics 101 would not exist. Hannah McCarthy came to New Hampshire Public Radio after a career as a reporter for New York magazine. Oh, there she is. You came out before the introduction was done. Hannah worked at death, Sex and Money at WNYC. We have co-hosted the show since 2018. She is the best colleague I've had in my entire life. Everything I can do, she can do better. Backwards and heels. Which to my chagrin, Ginger Rogers never actually said no. Yeah. So, ladies and gentlemen, it's true. I didn't know it either until I started writing this thing. Hannah McCarthy, the creator of today's episode. And should we get going?

 

Hannah McCarthy: I think so, but there's someone else we need out here.

 

Nick Capodice: There certainly is. The most, you know, the most important part for today? Our senior producer, Christina Phillips. Ladies and gentlemen. Oh, yes. Yes yes yes, yes.

 

Hannah McCarthy: Shall we begin? You good? Christina. Yeah. Hello, everyone. I am Hannah McCarthy. As Nick mentioned.

 

Nick Capodice: I'm Nick Capodice. And before we go a step further, I want everyone to know that what you're going to see and hear today is not a pre-produced display of incredibly realistic holograms. We are, in fact, flesh and blood corpos standing on the stage. And what is going to happen is happening the moment it happens and not a moment before.

 

Hannah McCarthy: I'm Hannah McCarthy.

 

Nick Capodice: I'm Nick Capodice.

 

Hannah McCarthy: And this is Civics 101. You are listening to it. And for the first time ever seeing it. Thank you for being here, I welcome you. You know, Nick, they say that you should do this thing when you're, like, conceiving of a podcast. You're supposed to sort of envision the person that you're making the podcast for. So, like, what do they look like? Yeah. You know, what do they eat for dinner? What do they do for fun? What kind of music do they listen to? What kind of clothes do they wear? Can you picture someone?

 

Nick Capodice: Yeah, yeah, I always do. When I write episodes I like, the person I'm picturing is usually wearing, like, a floral print shirt with, like, a gray cardigan and a headband. And maybe her parents were deeply involved in politics, and she's fond of listening to show tunes. That's my, like, fantasy audience member yeah, when I'm talking.

 

Hannah McCarthy: To someone, I feel like I can see them right now. Yeah, like I can see it, you know? I can. I can really see.

 

Nick Capodice: The imagination is a powerful thing.

 

Hannah McCarthy: Yeah. So this is actually relevant to today's show because this episode is all about you, the listener, the audience member. It's about you as you are right now, a human being in today's America, a person who has the capacity for something that could very well alter the course of history, both yours and your community.

 

Nick Capodice: Hey, have you heard of the phrase overpromise and under-deliver?

 

Hannah McCarthy: Um, no, I never have. I'm a millennial, and I studied theater in southern Vermont, so I was really taught to dream.

 

Nick Capodice: Yeah I was not taught to dream. Yeah. All right, so what are we doing here today, though? Like, what are you getting at?

 

Hannah McCarthy: What I'm getting at is civics.

 

Nick Capodice: All right.

 

Hannah McCarthy: Shocker I know. I like to keep people on their toes.

 

Nick Capodice: I'm going to hear you out. But this is interesting because this is something we never actually do on the show. We have never defined civics. It's the name of our show. But, like, what does it mean?

 

Raj Vinnakota: Civics, at its core, is about educating people so that we can learn how to govern ourselves.

 

Hannah McCarthy: That was Raj Vinnakota. He's the president of the Woodrow Wilson National Fellowship Foundation. Also, importantly, Raj spends his days looking at how civic education works in America, and it's his job to figure out how to make it better.

 

Raj Vinnakota: This is about making sure that we, as a citizenry, can engage in the most important act in our society self-government. Some people call it democracy, other people call it a republic. Other people call it a constitutional democracy at its core. It's about doing the work of deciding, of coming to consensus and engaging in our communities for the benefit of all.

 

Nick Capodice: Raj said self-government? Yeah. Do we? Self-governance. We know we are governed by the government. That is not self-governance.

 

Hannah McCarthy: Is it, Nick? That is a really good question.

 

Nick Capodice: Well, you wrote it, Hannah.

 

Hannah McCarthy: I did. Um, so 11 score. And 17 years ago, a bunch of guys got together and wrote the union's second constitution.

 

Nick Capodice: What do you mean by the second constitution?

 

Hannah McCarthy: The first one did not work out very well. The Articles of Confederation. Have we all heard of that? The Articles of Confederation. Nick, why didn't the articles work out?

 

Nick Capodice: I actually knew this one. Lots of reasons. Many of you know them here in the room. Anybody in the great state of New Hampshire may be interested in this one. Number one, the Articles of Confederation made taxes voluntary, and.

 

Hannah McCarthy: Naturally, everyone volunteered to pay their taxes.

 

Nick Capodice: Hilarious. They didn't at all. So without taxes, the federal government couldn't fund itself or pay back the enormous debt to the European countries who helped us out during the Revolutionary War. Also, there was no uniform currency under the Articles of Confederation, so the federal government had its own money and the states had their own money. So trade was really hard. Can you just picture that?

 

Hannah McCarthy: Yeah.

 

Nick Capodice: Oh, I've seen the notes. They're beautiful. Oh, yeah. Like Rhode Island's can't go back to that. Go back to that.

 

Hannah McCarthy: Um, and, you know, it wasn't just really hard within this country, right? It was really hard trading with other countries when we have all of these forms of currency, which makes it hard to establish yourself as a country on planet Earth.

 

Nick Capodice: Yeah. And states, individual states had their own individual foreign policy. What a mess. If you think the Constitution is hard to amend right now, and it's very hard and very hard to do, try amending it with the articles rules. It needed unanimous state consent to amend the articles. And when it came to laws like if you had a federal law, nine out of 13 states had to agree to it for it to be a law to be passed. Good luck with that.

 

Hannah McCarthy: So basically what we're describing is an original form of government with a super weak central Government that left most of the power up to the states. Why did we do that?

 

Nick Capodice: Why did we have a super weak central government? We had been burned pretty badly before. Yeah.

 

Hannah McCarthy: Go on.

 

Nick Capodice: If you all remember where we came from, we were 13 British colonies and we were fed up. So we fought a war. And that war was so we didn't have to have a king. And we're going to make sure that it never happens again.

 

Hannah McCarthy: You know what that sounds like, Nick? What's it sound.

 

Nick Capodice: Like? Mccarthy.

 

Hannah McCarthy: It sounds like we wanted to govern ourselves.

 

Nick Capodice: All right. Okay. Self-governance. All right. Okay, I'll give you that one. Except we found out when you leave everything pretty much up to the states, they just act like their own little countries. And that kind of diminishes the whole idea of the union, the united part of the United States of America.

 

Hannah McCarthy: Still, the framers then staged a coup when they realized their mistake. They rewrote the Constitution kind of in secret self-governance, though that was still paramount representation. They debated that for a long, long, long, long time. The big thing about our government would still be the will of the people. So yes, the federal government would be more powerful under this new constitution, but states would still get to pick who got that power and it would not be a king.

 

Nick Capodice: So that's what you mean when you're talking about self-government under the current constitution?

 

Hannah McCarthy: That is what I mean. And the absolutely crucial piece of that puzzle, of course, is all of you. You are tasked with deciding that is Raj, the man who we heard from earlier. That is Raj's point. So what is civics? Civics is in part, understanding what it means to live in a precious and quite precarious state of self-governance. How do you do that? Raj breaks it down into three steps.

 

Raj Vinnakota: Okay, so what does that require us to do or said differently? What is an effective citizen? Well, back in 2019, I helped to lead a project that actually focused on this issue, and we came to a consensus definition of what it means to be an effective and engaged citizen. And there are three categories to this. The first is that effective citizens are civically well-informed. What does that mean? It means that you understand how your government functions, the historical underpinnings for why we got to where we are. You get your information from multiple and diverse sources, and you have the skills to be able to discern, differentiate among fact, opinion, misinformation and disinformation.

 

Nick Capodice: That is no short order. We have talked about this on our show. A lot of times it's difficult to combat mis and disinformation. It takes a lot of work. So what are the other two categories?

 

Raj Vinnakota: The second category is that you are productively engaged for the common good. The obvious part of this category is, of course, you vote. In addition to that, however, you also engage in your community. You volunteer, you mentor, you run for office, and then finally, you have the skills to be able to engage in thoughtful civil discourse, even with people with whom you don't agree.

 

Hannah McCarthy: So what Raj means is you show up.

 

Nick Capodice: Yeah, but I do want to come back to the civil discourse thing. Oh. We're gonna. Okay. Because what does that even mean? Right? That is one of the most commonly used phrases, and it's grown more and more every year that I live in this world. It's used more and more. What is civil discourse? But I have to start with saying this. These things that Raj is mentioning, they are not easy.

 

Hannah McCarthy: It's interesting that you say that because I feel like I remember someone saying that, you know, we Americans, we don't do things because they're easy.

 

JFK Archive: But because they are hard.

 

Nick Capodice: Well, that was the moon, Hannah.

 

Hannah McCarthy: And other things.

 

JFK Archive: And do the other things.

 

Nick Capodice: Fair enough.

 

Hannah McCarthy: You know what, Nick? Though? You are right. Former President John F Kennedy was mostly talking about the moon, and so civic engagement should be a breeze in comparison to the moon. Okay, so there's one last step, right? Raj has a third step.

 

Raj Vinnakota: The third and final category is that you're committed to democracy in America. And this commitment is based upon notions of trust. You trust your government. You trust your institutions. You trust your neighbor. Even if he or she did not necessarily vote the same way that you did. And then you have a commitment and a hope about the direction of the country. So as you can see, this is a much broader definition of what an effective citizen is. It's not simply about understanding the Constitution. It's not simply about voting. But it's much more than that. It is literally working and governing ourselves and having the knowledge, skills and capacity to do so.

 

Nick Capodice: Do you want to get back to what he said about trust? And I'm serious here. Anybody in this room who has been neglected by another person or another institution knows how difficult that trust is.

 

Hannah McCarthy: Yeah. So I actually I agree with that. I think the trust element is a little bit closer to the moon in terms of how achievable, but we have flags that say that we can get there. American flags on the moon I'm talking about American flags on the moon. It's like a metaphor. Oh, yeah, I got you. Okay, so that's what civics is. Civics is about you. All of you accepting and fulfilling the quite weighty responsibility that we specifically fought for. We are in charge of ourselves. We're in charge of educating ourselves, knowing where we are, what happened here, who is in charge of us and why, and what they're able to do. Voting, community service, running for office, behaving and conversing in a civil way, which I really want to talk about.

 

Nick Capodice: So like like 30s, I just need you to stop for one bit.

 

Hannah McCarthy: We're in the middle of a show. So this is part of it.

 

Nick Capodice: You know, go with it. This was this was written down weeks in advance. This is the point of the show when I go from being sort of the lovable, uninformed prompter to being the foil, the.

 

Hannah McCarthy: Role you were born to play. Yeah.

 

Nick Capodice: So here's where I'm going with this, because I already said civics is hard. But we didn't talk about why civics is hard. Why do people fail to volunteer for community service? Why do people fail and they do so frequently to behave in a civil way? I know there's a lot of reasons, but I'm going to hazard the big one. The biggest of all is they don't have time for that.

 

Hannah McCarthy: That's fair. But we're journalists, right? Like we can't make assumptions. So we should ask people. Actually, we did ask people. Christina. Hello.

 

Christina Phillips: Hi.

 

Hannah McCarthy: Okay. So, Christina, before the show, we asked the audience to fill out a little survey. Thank you all for doing so. And my understanding is that you have the answers to that survey.

 

Christina Phillips: Yes. I am holding these answers from our audience in our hands. All right. Do you want to hear the question that we had? Yes. Audience. Yes, please. So what do you think makes civic participation a challenge for you or people you know, if you happen to be one of those people that's so civically engaged that you don't even have any challenges.

 

Christina Phillips: All right.

 

Nick Capodice: So what did people say in this one?

 

Christina Phillips: All right, so we've got shyness, um, too much judgment around one's opinions from others, fear of being judged. People are so overextended and stressed with their everyday lives that sometimes they either forget or are unable to fully participate in civic life. I hear that apathy and a lack of awareness of how our systems work. And then we've got time, or lack thereof, time. Commitment. Time and time.

 

Hannah McCarthy: Yeah, that's. That's fair enough. Thank you. Christina. Okay. So audience we see you. We get it. And we are not the only ones who see you and get it.

 

Nick Capodice: Time is precious.

 

Mustafa Santiago: And I get it.

 

Hannah McCarthy: This is Mustafa Santiago. Ali Mustafa is someone who has devoted his entire life to civil service, both in the government and out.

 

Mustafa Santiago: I've been working on social justice issues since I was 16. I was lucky I came out of a family, you know, that was very focused on civil rights and workers rights.

 

Nick Capodice: Mustafa, you interviewed him. You talked. He worked at the EPA, right?

 

Hannah McCarthy: Yeah. The EPA, the Environmental Protection Agency.

 

Nick Capodice: So we do this thing sometimes with initialisms and acronyms. We're not sure if the audience knows what we're talking about. So we try to make it feel natural. So if I say like AARP, you know, the American Association of Retired People, like we do that all the time. It felt natural, right?

 

Hannah McCarthy: So Mustafa was at the EPA for 24 years before he left.

 

Mustafa Santiago: I worry about it every day, and I have to take some responsibility for myself. I resigned. I was the highest ranking federal official who resigned when President Trump came in. I knew I had a responsibility based upon the oath that I took. And when I raised my right hand to do everything I could for my country, and I did not feel that I would be able to do that.

 

Nick Capodice: And just a reminder for anyone who may have forgotten. While running for office in 2016, former President Donald Trump promised to mostly dismantle the EPA to help the federal budget.

 

Hannah McCarthy: He did, and I shared this information about Mustafa to make something very clear. This is an individual who is deeply, deeply devoted to serving his country enough to pivot if he is concerned that he will not be able to. And we cannot all be like Mustafa.

 

Mustafa Santiago: And I understand. Trust me. You know, folks trying to put food on the table, trying to keep the lights on. Save a couple of dollars. You know, that's priority.

 

Hannah McCarthy: It's just like my friend Ollie has said to me, um, no, Hannah, I did not read that Supreme Court opinion that you sent me. I have a job.

 

Nick Capodice: That's a really decent one. Always, always got the decent points. You and I and Mustafa, we have the time to really care about this because it is our job. But other people can't devote their whole lives to it.

 

Hannah McCarthy: I'm going to argue that they can.

 

Hannah McCarthy: Really.

 

Nick Capodice: Gantlet thrown.

 

Hannah McCarthy: In a way. Okay, so let's take voting.

 

Nick Capodice: Take my voting, please.

 

Hannah McCarthy: That's not all the jokes should make it in. I think maybe.

 

Hannah McCarthy: We can edit that one out in post. We acknowledge that.

 

Nick Capodice: My Henny Youngman references should just get.

 

Mustafa Santiago: Them right out. Well, for me the act of voting is incredibly important, but not enough. You need to be an educated voter.

 

Nick Capodice: All right. Can we quickly talk about why we're supposed to be educated voters? Because honestly, people say that all the time, but I'd like you to break it down.

 

Hannah McCarthy: So think about what happens when someone is elected. Think about what they get when we put them in office.

 

Mustafa Santiago: You know, these folks actually have a huge amount of power over our lives, right? They have power that impacts both economics and housing and transportation and the environment and climate and so on and so on and so on. So we've got to carve out a little bit of time and read and then be able to make the best decisions possible.

 

Nick Capodice: Can I ask the audience a quick question?

 

Christina Phillips: Yeah.

 

Nick Capodice: All right. Show of hands. Honestly here. Have any of you in this room ever been in the voting booth on Election Day with your phone, googling a candidate because you didn't do the research first? Oh. Thank heavens. Yeah. Wait, you.

 

Hannah McCarthy: Well.

 

Christina Phillips: I just want to say, as the voice of the audience, a lot of people raise their hands for what it's worth for everyone at home. Yeah.

 

Hannah McCarthy: You know, we're all humans. Human. Let me say this, Nick. Okay. I am not just trying to convince you that we should be as engaged as we should be. I am not just trying to convince all of you. I am also trying to convince me. Okay, so here's how I think about it. And here's how I think you should think about it. Nick, what do you do before you make a big purchase? Like you're going to buy a car,right?

 

Nick Capodice: I see where you're going. I do research beforehand.

 

Hannah McCarthy: Like you probably do a lot of research. You probably do it before you show up at the car dealership.

 

Nick Capodice: Full disclosure I have never been to a car dealership in my entire life. I learned to drive when I was 39. I don't think I'll ever own a new car, but that's just me. But if I did, if I were the kind of responsible human who could buy a new car, I would, you know, do my research before I went to the dealership.

 

Hannah McCarthy: Why is that?

 

Nick Capodice: Because a car is a major investment. I'm going to use it most days of my life. I'm going to drive my kids around in it. I'm going to have it for years, I hope. I want to make sure that it won't break down and cost a boatload of money.

 

Hannah McCarthy: Okay, so you do your research to try to make sure that you're investing wisely. You want a car that is safe, reliable, trustworthy. A car that will do what you need it to do, or at least what its ads promise to do. A car with a good track record. A car that won't become a burden on your nation or your wallet.

 

Christina Phillips: You know.

 

Hannah McCarthy: Yeah, yeah. And you have a lot of options. You have a lot of choices. At least you hope that you make the right choice. So you do your research, and if you're really smart about it, you also ask around.

 

Mustafa Santiago: You know, there are a lot of people who are asking for our vote. So we need to be at the opportunities where they are to ask them the questions about where do you stand on this and what is your track record look like on these types of things, and then make the best decision for you and your family. But let's not just give anyone our vote without doing our own due diligence, because there are huge ramifications.

 

Hannah McCarthy: I think, especially in New Hampshire, people understand that. People understand talking to people, getting to know people before they cast their vote. There are huge ramifications in choosing something that will affect your daily life, the well-being of your family, your ability to smoothly move through things without constant nasty surprises. And I'm not talking about cars anymore, Nick.

 

Nick Capodice: I think that's been abundantly clear for several minutes.

 

Hannah McCarthy: The point that I'm trying to make is that most of us, honestly, we do research constantly, not just about cars. We research the food that we're going to buy and eat. We research, you know, our own health. Hello, WebMD. We research education and housing and employment, all of which could at some point be supported or undermined by the people for whom we vote. So people can tell me that they don't have time to get to know their candidates. But that's not what they're really saying.

 

Nick Capodice: What are they really saying?

 

Hannah McCarthy: What they are really saying is they don't care.

 

Nick Capodice: No. You're telling me that everyone in this room who raised their hand, including us, these good people don't care.

 

Hannah McCarthy: I don't think that this live audience of a Civics 101 show is representative of the American populace.

 

Nick Capodice: But that's fair. And that's probably true. But I think a lot of people, and I dare say most people do care a lot about who is in charge, who is making decisions and what those decisions are.

 

Hannah McCarthy: I totally agree with you.

 

Nick Capodice: You do? I thought that was going to be a much tougher argument.

 

Hannah McCarthy: Okay. So I do think people care about who's in charge, but it's not the same thing as caring about your car or your job. I mean, when there are so many decisions that we make that really do matter. We can feel the positive or negative impact of those decisions that we make. Think about like how your choice in the voting booth stacks up against that. Why would we put the same care into that? Why? You know when your choice is one of millions, when the system is often actively set up to dilute some choosers and overpower other choosers, when that choice that we make disappears into this opaque and mysterious world of secret meetings and billion-dollar deals and uniform haircuts, why would you care?

 

Nick Capodice: You have basically just convinced me, Hannah, that being an educated voter does not matter at all.

 

Hannah McCarthy: I am going somewhere with this and I'm going to try to get there after a quick break.

 

Nick Capodice: We're back. We are on a little journey of Hannah's making today. She is trying to take us to a new plane of civic life in America. And Hannah, before the break, you basically were like, why would anyone feel like they matter in American democracy? And honestly, that made me very sad.

 

Hannah McCarthy: I'm going to bring you down even lower before I lift you back up.

 

Kim Whele: I think that we're on life support as a democracy. This is.

 

Hannah McCarthy: Kim Whele. She is a constitutional law professor and author of several books, including What You Need to Know About Voting and Why. And Nick, This Is Why You Should Care.

 

Kim Whele: Constitution is just a piece of paper with job descriptions. If it's not enforced, the piece of paper doesn't mean anything.

 

Hannah McCarthy: And what is the way? Sometimes the only way that most of us here in this room can help to enforce the Constitution of the United States.

 

Kim Whele: The only thing left is the ballot box and that's it. So that's part of why, I mean, it's an imperfect system, but it's all we have.

 

Nick Capodice: Yeah, but, Hannah, that imperfect system is, I think, to your point, that is the reason why so many people become disengaged.

 

JFK Archive: But why, some say the moon.

 

Nick Capodice: Some politicians might as well be on the moon.

 

Kim Whele: We all have job descriptions when we have a job. And if you show up late eight days in a row, you might get fired. Even if you do great work when you show up, or if you start taking money out of the cash register. And why are you fired? Because the company wants to stay in business and they can't. If no one's manning the desk or if money's going out of the car, the government is the same way.

 

Hannah McCarthy: I know that it might not feel like it, and I understand why, but we everyone in this room, we are the employers. Okay. And if you, the boss, want this system to exist, you want operations to continue, but you feel like the employees are kind of tanking it and you're just going to, like, lie back and wait for the operation to fail. You need to remember who is in charge.

 

Kim Whele: Around 50% of eligible voters vote. You imagine if that were 60% or 70% or 80%. I mean, everyone has said if we grab one person, get them voting, politicians are going to have a harder time ignoring individual Americans in favor of dark money and corporate money and politics. So it's going to make your vote matter more if there's a tsunami of civic participation.

 

Nick Capodice: Is that statistic true - like only 50% of Americans vote?

 

Hannah McCarthy: I mean, it varies in 2020. Two thirds of eligible voters showed up, but that was huge. That was the highest rate since 1900.

 

Nick Capodice: So for over a century, only about half of us showed up.

 

Hannah McCarthy: I mean, usually somewhere between half and like 60%. The 1940s has had a decent-ish turnout. Low 60% range. All right.

 

Nick Capodice: So World War two. Beginning of the Cold War.

 

Hannah McCarthy: Yep. And then the 1960s was also about the same as the 1940s because it's.

 

Nick Capodice: The 1960s, you know, the civil rights era.

 

Hannah McCarthy: And then it was super high. Between 1840 and 1900, like over 80% a lot of the time.

 

Hannah McCarthy: Yeah.

 

Nick Capodice: Antebellum, Civil War, 14th amendment, the Gilded Age. These are major moments in history. These are major inflection points. Are we in one of those right now, do you think?

 

Hannah McCarthy: Um, I don't know. I'll let the people decide. But yeah, Nick, people show up when they're concerned and they convince their friends to show up. People who are concerned about the same things as you. And it does make a difference if enough people who care show up because they prove that they're caring actually matters. And Nick, we do not yet know what people are going to call this era of American history. But we do know that when it really matters, people show up. And when they do, they prove that we still have a system where we matter.

 

Kim Whele: It's not every country where even in a democracy that seems like a democracy, where you really do have a government that is accountable to the people, that is not all in bed with, you know, power brokers and money gangsters. I mean, that is it's a real privilege. I mean, you could be maybe you're a religious person that you believe in a higher power. I feel like I'm blessed, and it's a gift to have been born and have my children born in this country. And it's honoring that gift. It's honoring that privilege that not everyone on the planet has to make sure that we have those freedoms. You have to participate in your democracy, even if you're not going to see the impact tomorrow collectively over many, many races and many, many millions of people. It's the only way. There's no alternative.

 

Nick Capodice: So getting back to the whole caring thing, Hannah, as in, like, why would I care about the system if the system doesn't care about me? The answer is basically, you have to make the system care about you by showing that you care by, like, bending it towards your justice and.

 

Hannah McCarthy: No buts about it. That's hard.

 

Christina Phillips: That takes.

 

Cheryl Cook-Kallio: Effort. Democracy is not a spectator sport. It takes constant vigilance. And that's hard for people. And so often what I say to people is you can't do everything, but you could do something.

 

Nick Capodice: I know that voice. I know she's been on several episodes of Civics 101 over the years.

 

Hannah McCarthy: True friend of the pod. This is Cheryl Cook-Kallio, an all star of civic participation in America.

 

Cheryl Cook-Kallio: I taught for 40 years in a community in which I grew up. I have held elected office. I was a city council member and was termed out after eight years. And I currently sit on the Alameda County Board of Ed. As the president, I have been politically active since I was 17 years old.

 

Nick Capodice: I'm a huge fan of hers, but I do not think we can all be Cheryls.

 

Hannah McCarthy: No, I don't think so.

 

Hannah McCarthy: But how do we show up for ourselves in civic life? Right? If you're feeling down and out, what do you do? You have to locate your community and work with them to get what you want and what you need. Here's the trick, though, Nick. How do you find your community? I hazard that it's all about how you speak to other people.

 

Cheryl Cook-Kallio: I think civil discourse for me, and the way I explain it to my students, is that you can have your opinion based on fact and based on evidence. You just can't make up your opinion. So you can argue. For example, one side or another of a Supreme Court case, as long as you can point to evidence and say it's there, but an argument to create a situation where your argument is, well, that's just the way I feel. And that's my opinion, it's not civil discourse.

 

Nick Capodice: So for Cheryl, civil discourse is about facts.

 

Hannah McCarthy: Isn't that interesting?

 

Nick Capodice: Yeah.

 

Hannah McCarthy: And facts. Facts can be a whole lot more complicated and way less exciting than feelings. But that is the point.

 

Cheryl Cook-Kallio: There's nuances involved, and it's the same thing on a city council. It's the same thing on a school board is that if you patiently listen to everyone, chances are you're going to find a commonality. And once you find that commonality, you can figure out how to move toward that consensus.

 

Nick Capodice: So she said, consensus. Where did we where have I heard that word before today?

 

Raj Vinnakota: At it's core, it's about doing the work of deciding, of coming to consensus and engaging in our communities. For the best of all.

 

Nick Capodice: It's the funniest thing. I could swear. Like I could hear Raj like ghostly speaking to me.

 

Hannah McCarthy: It was like clear as a bell.

 

Hannah McCarthy: I could hear it too, he said.

 

Nick Capodice: That is like consensus is a big part of what civics is you know.

 

Hannah McCarthy: Mhm. Let's see if people actually think that's possible. Christina. Yes.

 

Christina Phillips: Hello. Voice of the audience here. So we asked our audience think of someone in your life that you disagree with politically. Is there a political issue, local or national that you think you could agree on and what is it?

 

Nick Capodice: I am very excited to hear this because I actually think it's possible.

 

Christina Phillips: Yeah. Okay. So here we go. Yes. Inflation, imperialism, the working class being abandoned. Money and politics. Term limits for Congress. We have an episode on that.

 

Nick Capodice: Never gonna happen, is it?

 

Christina Phillips: No. I mean, I think you should listen. I think you should listen. All right. Um, character and dignity matters. We agree. All of us should leave a positive legacy to be remembered. Make the world a better place than how we found it. Love that. Um. And helping others with disabilities. These are some things that people have decided they could find consensus, even with someone that they really don't agree with.

 

Nick Capodice: That's like a good lead up and like that's a helpful. Like, that's a helpful thing that so many people thought that consensus could be found. But what do you do once you actually establish consensus? What's the next step? Okay.

 

Hannah McCarthy: So this next step, this is dependent on real civil discourse like facts, actual facts, respect, patience a capacity and ability to compromise. So keep that in mind. If you find yourself rolling your eyes at the following scenario.

 

Cheryl Cook-Kallio: When you sit down at dinner with your parents at night, they want you to be safe. They want you to get a good education. They want you to have choices whether you go to college or trade school or community college. They want you to have choices. If they were honest, they would tell you they want you to have many grandchildren and a little closer. And they're no different than my family and what I want for my children.

 

Hannah McCarthy: So you find the consensus everyone cares about their family. There are certain commonalities. Once you find the consensus, you have to think about the divide.

 

Cheryl Cook-Kallio: You are dependent on coal manufacturing. Your parents, probably their livelihood, is somewhat either directly or indirectly tied to coal production. In our community, we're trying to stop trains from going through Alameda County that are carrying coal because the environmental impact, we could not be more opposite on those two issues.

 

Hannah McCarthy: Okay, so coal that's a big one is a big divide. So there's the divide right. Take the divide. Take the consensus and put them together.

 

Cheryl Cook-Kallio: And if we could tap into that and figure out how to make sure that people can work jobs that will take care of their families. That's the issue when you're trying to shut down coal is what are you going to substitute that job with so that the people that have those jobs can actually still maintain a working class, you know, middle class environment, right?

 

Nick Capodice: I think I get Cheryl's point. The question is, what are you really fighting for when an issue matters to you? And sometimes, like maybe even a lot of the time, the answer is safety and security for me and my family and my friends, my community. So if you want to shut down coal to protect the environment. But what about, you know, the people who live there, you need to protect the people who will lose their jobs. Easier said than done.

 

Hannah McCarthy: And in fact, and I know usually not done at all. It's just not done. But we make a choice, and someone else has to deal with the fallout of that choice. But I do think maybe that's the point of consensus. It is not about getting something done, because we can get things done depending on whether or not Congress votes. But it's about getting something done correctly, about getting something done right without hurting the thing that you agree on with other people. You might vote for someone who says they'll fix a problem, but you got to follow up on that. Like you have to stay on them.

 

Cheryl Cook-Kallio: It's not just about doing it when you vote. It's all about showing up, and it's all about showing up throughout the duration between elections. To say to somebody who's running for office, I'm important.

 

Nick Capodice: So Cheryl's saying, like, you gotta hound em, you gotta hound your official.

 

Hannah McCarthy: They do work for you. Remember that little boss thing I was talking about? So Cheryl tells this story. She's at her state house with a bunch of teachers. These are government teachers visiting their legislators.

 

Cheryl Cook-Kallio: We ended up seeing 8 or 9 legislators that day, which, having been in a in a coalition among city council members. And I'll tell you, to get to that many legislators in a day is huge to get them to see you. So we're sitting at lunch and I turned around and I said, how many of you have ever contacted an elected official?

 

Nick Capodice: Oh, wait. Quick show of hands here. How many of you here have contacted an official? Woo! Give yourselves a round of applause.

 

Christina Phillips: For the audience at home. That's way more people than I would have ever.

 

Hannah McCarthy: I think that's the majority.

 

Nick Capodice: I think there was about 94% of people. But to be fair, we do have the third largest legislative body in the world.

 

Hannah McCarthy: Yes.

 

Christina Phillips: And I think our in-person audience is probably civically engaged, fully engaged. But I'm impressed.

 

Nick Capodice: So hats off to all of you. Because, you know, for me, cold calling isn't really my favorite thing to do to just call up. I once called the white House line and I was on hold for like an hour, and I was like, what am I even going to say? What if he picks up?

 

Hannah McCarthy: I'm hi, what? Do you like anyone?

 

Hannah McCarthy: So, okay, this is really interesting because so many of you raised your hands. When our guest, Cheryl asked her group this question here was the answer that she got.

 

Cheryl Cook-Kallio: The only two people in that group that raised their hand was a former student of mine that became a teacher and my colleague, she and I co-coached a competition civics team. That's it. And I looked at them and I said, why not? And one said, well, they're busy. I said, what do you think they're busy doing? They're supposed to be busy serving you. Their job is to listen to what you have to say. So whether you do this by sending an email or calling an office or seeing them in a town hall meeting, their job is to listen to you. And somebody said, well, you know, it's easy for you. You've been an elected official. And I sat there for a second. I mean, stunned, pretty stunned. These were mid-level government teachers. These were people that had been teaching for 15, 20 years. And I said, I looked at them. I said, how do you think I got to be an elected official?

 

Nick Capodice: Wait. So Cheryl said she became a government employee by talking to the government.

 

Hannah McCarthy: And she picked up the phone, made a call to tell her lawmaker what she wanted. And then Cheryl realized that she could make way more of a difference on the inside.

 

Cheryl Cook-Kallio: So it was because I picked up that phone first that I ended up in the situation I'm in now. It's not the other way around. And they were pretty stunned. So one of the teachers when I'm talking about this with this group of teachers, they said, well, I don't want to bother them.

 

Hannah McCarthy: So Cheryl says, do you think that a lobbyist ever thinks that to themselves?

 

Cheryl Cook-Kallio: A lobbyist wants them to vote for prescription drugs or not vote for prescription drug prices? Do you think they ever worried about whether they were spending too much time in that Congress member's office? Never, never is the answer to that.

 

Nick Capodice: That is a really good point, but I am feeling a little like chicken or egg in all this.

 

Hannah McCarthy: Yeah. Yeah.

 

Nick Capodice: So do lawmakers cater to special interest groups because they're more important than us? Or do special interest groups make themselves more important than us? Because they're the ones who actually show up at their house and we don't.

 

Hannah McCarthy: Well, we can't really know the answer to that question unless we put in as many hours as lobbyists do.

 

Nick Capodice: We're going to take a quick break. Hannah, you've been making something very interesting, maybe even compelling. You've been making some tremendous points.

 

Hannah McCarthy: Thank you.

 

Nick Capodice: You're welcome. But for the sake of argument, and you always tell me the devil doesn't need an advocate. But for the sake of argument, let's say you and all these wonderful civic people that we have heard from have not been convinced at all.

 

Hannah McCarthy: That would hurt, actually.

 

Nick Capodice: But like I need there's like a Supreme Court decision like, I need something to hang my hat on, right? I need something to hold on to in the cold, icy waters. Right.

 

Hannah McCarthy: All right. All right.

 

Hannah McCarthy: You want something to hold on to?

 

Nick Capodice: I want something to hold on to.

 

Hannah McCarthy: Maybe I can give these people just a little bit more to hold on to, because that is fair. Okay. That's fair. Like everything I've been saying. Sort of blue sky stars in the eyes. I understand that because.

 

Mustafa Santiago: Now let's be honest. Inside the federal government, it is a bureaucracy, right?

 

Hannah McCarthy: Mustafa Santiago Ali again. So I concede the government, elected officials, the law. It can all feel really out of reach. So for something to hold on to, how about somewhere to start?

 

Mustafa Santiago: Can you make change? Oh, most definitely.

 

Hannah McCarthy: Civics does not start in marble halls. The power and the capacity of the people to and for self-governance starts with the people. Community starts with the people. Consensus starts with the people. Coalitions start with the people. You want to be empowered in this democracy based, constitutionally federated republic. It's a mouthful. It takes a lot of work. Okay. But I do want to leave you, the people with something to hold on to. And you know what? More work is the last thing we need.

 

Nick Capodice: Yeah. So is this the part where Jim comes out with the t shirt cannon with, like, the.

 

Hannah McCarthy: No. This is the point where I say if you want to be an effective citizen, if that matters to you, if you want to see your needs and your values reflected in your world, just do your thing.

 

Nick Capodice: Do your thing.

 

Mustafa Santiago: I always just ask the question, what's your blessing? What's your gift? And then just take that and just be authentic with what you're doing.

 

Nick Capodice: Your blessing. Is that like your talent? Yeah.

 

Hannah McCarthy: Exactly. Like a talent. Okay. For example. Right. Mustafa told me this story. Someone who really likes writing and really likes drawing and feels like they're pretty good at it, and they also really care about the environment and educating people about the environment.

 

Mustafa Santiago: The other day I met this guy who was like 77. He was like, yo, check out this graphic novel that I did. And I was just like, this is so great because some folks won't listen. People are not going to read a scientific report, probably, but they'll check this out and then that can inspire folks.

 

Nick Capodice: But that one actually really speaks to me.

 

Hannah McCarthy: Finally.

 

Nick Capodice: Because I have read books, I have listened to music, I've seen theater, I've seen pieces of art that help me understand the world or care about the world, or care about problems in the world.

 

Hannah McCarthy: Yeah, like you can make something that brings people in that helps them understand something. Or you can take your skill, the thing that makes you unique and special. And you can actually, Christina, can we do question number three?

 

Christina Phillips: I'm way ahead of you. Okay. So question number three. And this is something by the way I think about all the time just randomly and just in my bed thinking about it, you find yourself on a deserted island with a bunch of people. You know, you have to build a life from scratch. What's your role?

 

Nick Capodice: That's why you asked this question.

 

Hannah McCarthy: Yeah, yeah.

 

Christina Phillips: All right. So I'm going to give you a couple of roles that people have identified okay. Food gathering and prep the cook.

 

Hannah McCarthy: Okay. So as we're getting into this, what I'm trying to share with you is there are ways in. Right? There are ways toward civic engagement. So a cook, you can start a community garden that truly brings people together. And it also offers a food source for your community, for people in need. You can volunteer at your local soup kitchen, take your skills and bring it to people. One that I'm particularly interested in. School lunches are not always the most delicious thing in the world. Find out what your local public school is feeding your kids. Go to school board meetings and say, hey, I care about nutrition. I care about what we're eating in schools. And here's what I suggest we do. Things happen in schools when people show up to school board meetings. Trust me.

 

Christina Phillips: All right. You want another one? Yeah. All right. I'll be an engineer, making sure we have clean water and a hygienic society.

 

Nick Capodice: That's fantastic. I actually care about this one. I have a dear friend who works for an organization called Engineers Without Borders. It's been around since 2000. It's like Doctors Without Borders, but it's engineers. It's people who build infrastructure in communities that need it. And it doesn't have to be in another country. It can be here, it can be in New Hampshire. It can be wherever you live. Creating infrastructure is crucial in some places. Really need it.

 

Christina Phillips: All right. We got another one, which is a nurse.

 

Nick Capodice: Okay, I have this one. I'll take this one. So I'm working on an episode right now called us versus healthcare. It's how America measures up against the rest of the world when it comes to how we provide health care for people. And I don't want to. I'm giving away this episode. But in a ranking of the top ten developed nations in the world. You know, America came in 10th place out of ten when it comes to the cost of health care and the quality we get and how long we live. Anyways, she was telling me the guest I was interviewing was telling me that if somebody is living in a state or is living in the United States and they're not documented and they break their leg, or they cut off a finger and they go to the hospital, they must be treated because of emtala, which I'm sure some of you are familiar with the law that says an emergency room has to treat you if you're hurt. Doesn't matter if you have money or not. However, that person will get a bill. Okay? Unbeknownst to me, there are massive organizations called Fqhcs Federally Qualified Health Centers that provides medical care on a sliding scale. And it does not matter who you are or how much money you have. This guest said to me, tell people you know to volunteer at work for and let other people know about these federally qualified health centers because it will change the rest of your life if you go to one versus an emergency room and.

 

Hannah McCarthy: Other people's lives.

 

Nick Capodice: And other people's lives. Absolutely.

 

Christina Phillips: And I'll say it also for those of you who, like me, are not a nurse but have experience with emergency medical services, first aid, first responders, consider, you know, a search and rescue, consider storm effort, storm recovery. Where do they need people to help people find a place to stay? Or, you know, to check in on people who might not have air conditioning or heat, those kinds of things. So those are a little bit more low lift. But I have another one which is bringing a group together to gather resources. Now, that sounds like a fundraiser to me.

 

Hannah McCarthy: Yeah, yeah, we know all about that at public radio.

 

Christina Phillips: And also, I mean, like, it doesn't have to be fundraiser, but, you know, you could be somebody who in your local community, there's so much federal funds and state funds that can get distributed to local communities. And they need people who apply for that. Like, you don't get it unless you apply for it. If you're somebody who's really good at getting a group together to gather resources, you might be really good at helping to get the information to write a grant. You might be good at organizing people to go after money that your community might need. So consider that. And then we've got another one. I would be a deputy or second in command, a leader, but also a supporting role.

 

Nick Capodice: Like a Will Riker.

 

Hannah McCarthy: That's delightful. Yeah, yeah.

 

Christina Phillips: I mean, I had to thought about this one, which is, um, poll workers, maybe not this election, but next election. There are people who have been working the polls for years, and there are people who have so much experience. They always need people who they can give that experience to.

 

Nick Capodice: Is there anybody in here who has worked in the polls?

 

Hannah McCarthy: Oh, yeah.

 

Christina Phillips: How many of you would like a deputy or a second in command? You can train up to take over for you? A little bit of help.

 

Hannah McCarthy: That would be nice.

 

Christina Phillips: Yeah, yeah. So those are just a couple of ideas for the deserted island. Yeah.

 

Mustafa Santiago: There's all these different types of things that you can do or I've, you know, been so blessed to work with so many younger people who have now created their own organizations and are just adding their own flavor to it. And I'm just like, yes, you know, I'm standing on the sidelines Cheering. I'm like, give us more, give us more, give us more. So the sky is the limit. So whether you want to work for business and industry, which there are some really great ones that are out there if you want to work in the nonprofit world, you know, I've been blessed. I've created my own business, I've led nonprofit agencies, I work for the Hip Hop Caucus. So I had a chance to work with all these amazing artists and entertainers. It's up to you. And there are so many folks who are now saying, you know what, I'm not going to wait for change to happen. I'm going to be a part of change, and I'm going to help to move that moral arc that Doctor King once talked about toward justice.

 

Hannah McCarthy: So many of us live two lives. We have a job, we go to work, we do things for a set amount of hours. We get paid, and then when we're done, we go home to be by ourselves or with our families, our partners, our friends. Civics is this third thing. Um, it actually comes from the Latin civis, which has several translations. But my favorite is person in the town. It is where we get the word city, where we get the word citizen. Person in the town. So civics is not just the first Tuesday in November. It is not every two years when you step into a voting booth or, you know, for years. For many Americans, you are always, always a person in the town. And civics is at its heart simply reminding yourself of that.

 

Hannah McCarthy: I thank you so much everyone. That was our show.

 

Nick Capodice: Thank you everybody.

 

Hannah McCarthy: Thank you. Uh, this this episode of Civics 101 was recorded live at Southern New Hampshire University. Thank you. Southern New Hampshire University.

 

Hannah McCarthy: It was made by me. Hannah McCarthy. By You Nick Capodice by you, Christina Phillips by our executive producer, Rebecca Lavoie, who could not be with us today by all of you. Our audience without whom we could not make this happen. Music. In this episode by Epidemic Sound and Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What is "Originalism?"

What does it mean if a SCOTUS justice is a self-proclaimed "originalist?" When was the word first used in that context? And what are we missing about the framers when we look only upon the recent interpretation of their words in the court?

Today our guide is Mackenzie Joy Brennan;  lawyer, media commentator, and author of the upcoming book The Original ‘Original Intent,’ Recovering the Lost Constitution of the Founders.

Click here for more of Mackenzie's research on originalism, including Terry Brennan's essay in the Harvard Journal of Law and Public Policy.

Click here for our episode on the Second Amendment.


Transcript

Nick Capodice: Hannah you know that poem, that Robert Frost poem. Two roads diverged in a yellow wood. What is it called? The road not taken.

Hannah McCarthy: It sure is, Nick.

Nick Capodice: What's that poem about?

Hannah McCarthy: You want me to tell our audience what I firmly believe that poem is about? I believe that poem is about the importance of self-mythology.

Nick Capodice: Hannah I love Robert Frost. And I love that poem, even though it's read at too many commencement speeches. But I don't think [00:00:30] that's what that poem is about at all. If only. If only we could summon the ghost of Robert Frost to come here and say; actually, the poem was about this. Actually, the poem was about my pet.

Robert Frost: Two roads diverged in a yellow wood. And sorry, I could not travel both and be one traveler long...

Hannah McCarthy: But aside from the fact that I'm now expecting a lot of people to write emails telling me I'm wrong and I am not wrong, I'm not wrong about this. Uh, What? [00:01:00] Why are we talking about this?

Nick Capodice: Well, we're talking about it because outside of hearing it from the horse's mouth, from the summoned spirit of Robert Frost, outside of the writings of Robert Frost saying why he wrote what he wrote, we have no true way of knowing what somebody meant when they wrote something.

Archival: You say to America. It ain't in the Constitution. Don't come to me to ask me to decide these things. It's not the responsibility. And the founders never intended it. Whether [00:01:30] they knew anything about abortion or any other issue like gay marriage at the time or not. Exactly.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: Today we are talking about the judicial philosophy of originalism, specifically in the Supreme Court, what it means, where it came from, and how it has been used in many recent court decisions.

Hannah McCarthy: Okay. All right. Whew. This is a higher stakes version of the what? What did Robert Frost really mean? [00:02:00] It's a way higher stakes. Um, so the way we got to start, Nick, is defining originalism. What is it?

Mackenzie Joy Brennan: It is professed, loudly professed express reliance on the founders society beliefs.

Nick Capodice: This is Mackenzie Joy Brennan.

Mackenzie Joy Brennan: Hi, I'm Mackenzie Joy Brennan. I am a lawyer who is licensed to practice in New York and Arizona. And right now I'm working on a book on the Constitution called The Original Original Intent Uncovering the Lost Constitution of the founders, [00:02:30] which was started by my late dad.

Hannah McCarthy: Her dad?

Nick Capodice: Her dad, Terry Brennan. In 1992, he wrote a fascinating article in the Harvard Journal of Law and Public Policy about originalism.

Hannah McCarthy: Oh, you know, I just think that that is a pretty special thing that Mackenzie is carrying on the work of her dad. I think that's very cool. So quick question about the word. Is originalism the same thing As to other concepts in terms of constitutional [00:03:00] interpretation, constructionism and textualism.

Nick Capodice: Yeah. Not exactly. There is some overlap. We're not going to get into those two too deeply today. But to your point, originalism was not always called originalism.

Mackenzie Joy Brennan: Originalism has not been used even since the 90s. It originally was original intent, original meaning, or original understanding, depending on the credulity of the listener. So it's like originalism does not [00:03:30] exist outside its adaptation by recent conservatives.

Hannah McCarthy: So if a Supreme Court justice identifies as an originalist, that justice's claim is that they are not looking to themselves or society or even necessarily precedent to make their decisions. They are looking at what the framers slash founders thought when they wrote the Constitution.

Nick Capodice: Exactly.

Mackenzie Joy Brennan: And obviously there you get into some [00:04:00] problems with which founders are we looking at? Because most of the record that we have is record of debate. And honestly, that's great. If we were to actually rely on it, there'd be plenty to work with. Um, except for the fact that, again, they did not tell us to do that. They they wrote things down and signed the document for a reason. And so to look for extrinsic evidence is, is a little out of pocket to begin with. The beliefs that originalists tend to espouse [00:04:30] and use originalism to support actually have very little proof in the historical record from then or since. And conveniently, they tend to find things that there are the exact analog to pretty socially regressive policy, um, empowering the court.

Hannah McCarthy: I do understand what Mackenzie means when she says that our record of the framers is a record of debate. The Federalist Papers, the Anti-Federalist papers, Madison's Notes from the Constitutional Convention. [00:05:00] These all involve people arguing about the meaning of documents.

Nick Capodice: Yeah, and this can lead people to say, instead of trying to get into all those people's heads, let's just look at the words. And that is textualism rely only on what the words say.

Mackenzie Joy Brennan: But the problem there is that it is ambiguous oftentimes for a reason, because it was meant to grow with the country itself. Um, and they even talk about, you know, lamentably, we don't know all [00:05:30] the natural rights that will be discovered in future generations. And the ones we have discovered, it's been a laborious and sometimes pendulous process. So there has to be something outside the textual, and that's where you get into what canons do we use for that? And do we rely heavily and without instruction from the founders on 1700 society? And do we rely then on what they expressly said or what? Society [00:06:00] was doing, neither of which they instructed any future societies to? Do, by the way. The whole idea of looking to their society came about with Robert Bork in the 1980s.

Hannah McCarthy: Robert Bork.

Nick Capodice: Robert Bork.

Nick Capodice: Truly a fun name to say. Robert Bork.

Hannah McCarthy: It is fun to say. Bork Bork Bork. Funnily though, like pork is not fun, but Bork is.

Nick Capodice: The B is a comedy syllable Bs and Ks. Yep.

Hannah McCarthy: Fascinating. And Mackenzie said the 80s. Like the 1980s, [00:06:30] not the 1880s. Breakfast club. Take on me. Teen Wolf. 80s. Yeah.

Nick Capodice: I mean, technically, Robert Bork's first proposal on the theory was in the 70s, but it started to enter the national lexicon in the Alf era.

Archival: (Alf)

Mackenzie Joy Brennan: So, Robert Bork, um, he really has been lost to, I think, this generation, which is [00:07:00] good and bad. But he marked he was the first one to use the the concept of original intent. And that was in the 1980s that judicial interpretive theory came about. So when you think of like the whole idea of the semantics of original intent, it really invokes that, like, this has been around forever and it's sacred and this is always what's been done. And I think that's almost intentional. So Robert Bork introduced this idea to support very regressive policies. [00:07:30] He did not like single mothers. He didn't like working mothers. Um, he thought they were rotting society. So he was a real treat. And his first prominence on the national scale was during the Nixon administration Saturday Night Massacre.

Archival: The country tonight is in the midst of what may be the most serious constitutional crisis in its history. The president has fired the special Watergate prosecutor, Archibald Cox.

Hannah McCarthy: Okay, [00:08:00] so we have to explain the Saturday Night Massacre. Nick.

Nick Capodice: Yep. So Richard Nixon was being investigated for his involvement in the Watergate break in. And on October 20th, 1973, Richard Nixon called the head of the Department of Justice, Attorney General Elliot Richardson, and asked him to fire the special investigator in his case, Archibald Cox. Richardson said, absolutely not. He refused the president's orders and he resigned. So then Richard Nixon went to the deputy [00:08:30] attorney general. William Ruckelshaus asked him to do the same thing, and then Ruckelshaus resigned. So finally we get down to the third pick, the solicitor General Robert Bork.

Hannah McCarthy: I think I know the answer to what Robert Bork said.

Nick Capodice: Yeah Bork said, you got it, Richard. And he fired Archibald Cox.

Archival: A grave and profound crisis in which the president has set himself against his own attorney general and the Department of Justice. Nothing like this has ever happened before. [00:09:00]

Mackenzie Joy Brennan: Obviously did not save Nixon in the long run from the investigation, but so he obviously was a pretty political character, and he was very open about his political beliefs after that, about disliking single mothers, um, not supporting the Civil Rights Act of 1964 and not supporting the Supreme Court cases that enshrined the right to birth control access. Reagan nominated him to the Supreme Court in 1987, and he actually lost in [00:09:30] the Senate, which is surprising for a political nominee.

Hannah McCarthy: I have heard of Supreme Court nominees being withdrawn like Harriet Miers in 2005.

Archival: Well, I'm I must say that. I'm disappointed that Harriet Miers found it necessary to withdraw her nomination. But this process, the nomination process has gotten, in my view, unnecessarily surly, contentious and downright nasty.

Hannah McCarthy: Or a nomination being unsuccessful due to political hardball like in the Merrick Garland [00:10:00] nomination in 2016.

Archival: One of my proudest moments is when I looked at Barack Obama in the eye and I said, Mr. President, you will not fill this Supreme Court vacancy.

Hannah McCarthy: But I cannot remember a time a Supreme Court nominee was flat out rejected.

Nick Capodice: Yeah, because this is the most recent one. It hasn't happened since then. And Bork's Supreme Court nomination hearing was watched all over the country. Senator Ted Kennedy gave impassioned speeches.

Archival: Robert Bork's America is a land in which women would be forced [00:10:30] into back alley abortions.

Nick Capodice: Then Senator Joe Biden gave speeches.

Archival: Where I come from they call that making things up out of whole cloth. It's bizarre. It's ridiculous. Look at the record.

Nick Capodice: An advocacy group made an anti Bork commercial with Gregory Peck.

Hannah McCarthy: What?

Nick Capodice: Yeah.

Archival: Robert Bork wants to be a Supreme Court justice, but the record shows that he has a strange idea of what justice is. He defended poll taxes and literacy tests

Nick Capodice: All those efforts [00:11:00] were not in vain. The Senate ultimately rejected Bork's nomination.

Mackenzie Joy Brennan: I think it really marked this new era of politicization. In addition to introducing originalism, people got very, very upset about it. On the right side of the aisle, they turned his name into a verb. They said that like martyrdom was being borked. And if you're borked, you're somebody who's been denied the opportunity that you deserved. When in reality, you know, Senate approvals [00:11:30] are job interviews. So he basically just lost a job. He wasn't entitled to it. But that was really a turning point. And I think that's when originalism got its formal recognition on the Supreme Court, because conservative appointees after him picked up that torch and brought it to the highest court in the land.

Antonin Scalia: If you you give to those many provisions of the Constitution that that are necessarily broad, such as due process of law, cruel and unusual punishments, equal [00:12:00] protection of the laws if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no longer they are no limitation on the current society at all.

Mackenzie Joy Brennan: Scalia picked up that torch and the Bork grudge, and he was the first one to bring it to the Supreme Court, because obviously Bork didn't make it onto the court. Scalia, um, lived and died by [00:12:30] the originalist theory, really enjoyed it, brought it to a lot of different social issues, and thus introduced some pretty radical new precedent under the banner of originalism. And on the current court, you have Alito and Thomas, who are part of that originalist cohort in the the court when Scalia came. And I think Gorsuch also calls himself an originalist. A lot of the conservatives on the bench right now call themselves originalists. But the first one to bring [00:13:00] it to the Supreme Court was Scalia.

Hannah McCarthy: All right. So this is how originalism came about. Now, can we have some examples? Are there any particular rulings that demonstrate the idea of originalism?

Nick Capodice: Yeah, Mackenzie has a few. And we're going to get to it right after the break.

Hannah McCarthy: But before that break, if you like our show, consider leaving us a review. You can do it on most platforms where you listen, and it really helps listeners know who we are and what we do.

Hannah McCarthy: We're [00:13:30] back. We're talking about the judicial theory of originalism, using the assumed intent of the people who wrote our Constitution to interpret it. And, Nick, you said that you have some examples of originalism in action.

Nick Capodice: I sure do, Hannah. And to be clear, our guest, Mackenzie Joy Brennan, is, as was her father, very critical of the modern interpretation of originalism. [00:14:00] She is not, though, and we're going to get to this in a bit. She is not against the idea of considering what the framers intended. They made our system of government. So her examples are when justices very selectively pick what original intent to use.

Mackenzie Joy Brennan: D.c. versus Heller was the first case where the Supreme Court recognized and they have the power to interpret the Constitution. So they read in Heller into the Second Amendment an individual right [00:14:30] to bear arms.

Nick Capodice: Now, I know you know Heller. Hannah, we've got a link to our Second Amendment episode in the show notes down there for anybody who wants to know more. But do you know Heller, the man?

Hannah McCarthy: Honestly, I don't know too much. He was a police officer, right?

Mackenzie Joy Brennan: He was he described, almost a romantic attraction to his gun and that he had to visit it across state lines. He talked about he had to keep it at at somebody's house in Virginia, and he would go from D.C. to visit it. Um, and [00:15:00] that this was because obviously to to get cert, you have to show an injury. And so this was the nature of his injury is that he had to basically have somebody else with separate custody of his precious gun.

Hannah McCarthy: Wow.

Nick Capodice: Yeah.

Nick Capodice: So the ten second summary of this case, D.C. v Heller, 2008, is that the Supreme Court had to decide if a law in D.C. that restricted handguns was a violation of the Second Amendment. Frankly, whether or not [00:15:30] the Second Amendment was about gun ownership.

Mackenzie Joy Brennan: It's a weirdly constructed amendment. It's unclear what the subject of the sentence is, and for generations, nobody read it to mean that it gives every single citizen outside of a well-regulated militia to own firearms. Full stop. But in Heller basing it on on zero precedent. And so Scalia both says this [00:16:00] is the originalist view. This is what society recognizes. And he also says, well, the dissent criticizes me for not citing enough evidence. But nobody's talked about this before. So obviously there's no evidence. So the only evidence that he's able to conjure up and he says that this, you know, invokes originalist theory is a quote from the Pennsylvania state convention, because when the framing was going on, they had these state conventions for everybody to brainstorm what they would bring to the original constitutional [00:16:30] convention. So in the state convention, the minority dissent in Pennsylvania mentioned something that referred to an individual right to bear arms.

Antonin Scalia: We make no attempt to provide and no excuse for not providing extensive historical justification for those regulations of the right that we describe as permissible.

Mackenzie Joy Brennan: You know, if we're going to go full original intent and what their society looked like, we're talking about muskets that took like two minutes to reload one [00:17:00] round. So it's a little bit of a stretch if you ask me, and a lot of constitutional scholars to read that as you can have a handgun under your bed just because you want one. And so that certainly is not the well-regulated militia bearing arms in the form of muskets that was contemplated. But there is one quote from one state's minority dissent that suggested that an individual right existed. And we're going to apply that to modern firearms.

Nick Capodice: And [00:17:30] there's a second, far more recent example Mackenzie gave me of an originalist choosing what original ideas to use to justify their decision. And it is the decision that came out this year in Trump v US the presidential immunity case.

Mackenzie Joy Brennan: I think that if people know one thing about the circumstances under which our Constitution was drafted, our country was formed. It was the idea that we did not want a monarch that was pretty much [00:18:00] value. One. So to have a majority conservative, originalist, professed originalist court say that presidential immunity is incredibly broad, sweeping to the point that a president could really murder an opponent. And if they're able to argue that it's well enough related to official duties, they can get away with it. That's a monarch.

Sonya Sotomayor: If the president decides that his rival is [00:18:30] a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts that for which he can get immunity.

Archival: It would depend on the hypothetical, but we can see that could well be an official. It could.

Mackenzie Joy Brennan: And why they call themselves originalists, because I think the clout that it implies, um, it implies that essentially you're the conduit. It's like when people say they're the conduit to a higher power. They're like, [00:19:00] trust us, we know. But it doesn't mean that they're always doing that. It's just kind of the cloak that they wear.

Nick Capodice: And to stay in that line. In 1985, Justice William Brennan excoriated this new philosophy in a speech he gave at Georgetown. He said originalism was, quote, arrogance cloaked as humility.

Hannah McCarthy: Earlier, Nick, you said that McKenzie joins Justice Brennan in criticizing the current banner of originalism, [00:19:30] but she also thinks that it's not a bad thing to consider the intent of the framers when we make decisions about what the Constitution means.

Nick Capodice: Yeah. Mckenzie said that there is a misconception that the framers were all socially conservative, that if they had wanted people to have the right or the freedom to do X, y, z, they would have put it in the Constitution. But that is not the case.

Mackenzie Joy Brennan: If you are a history nerd like me, you remember all the Federalist [00:20:00] Anti-Federalist debates that happened during the founding, and that was essentially one group of people that for the purposes of of this argument, they were concerned that once you start writing down rights and something isn't on that list, future generations. I mean, it's very prescient because future generations will look at that list and say, well, the right to travel isn't on there, so they must not have meant to protect it because they took all this time and trouble, and they wrote down what [00:20:30] our rights are and what they wanted to protect. This isn't on there. It means it's not protected. And then there is the other group of people that, you know, thought that we should list as many things as possible because they were afraid that the government without textual defense would infringe upon those things.

Hannah McCarthy: And I do know, because I've read the language of the speech that James Madison gave. Right. So this is this is knowing words that came out of an individual's mouth that when [00:21:00] the Bill of rights was being debated and proposed, one of the concerns he found most reasonable was that people might be worried that anything not written into the Bill of rights would fall to the responsibility of the government, and if it's at the whims of the government, it's not enshrined, right. It's not something that's that's actually protected forever. The same way that the Bill of rights, you know, ostensibly protects something, quote unquote, forever.

Nick Capodice: Yeah. And to try to get them all in there, his first draft of the Bill of rights had over 200 [00:21:30] amendments. But to solve this problem and to appease people on either side of the debate, he created the Ninth Amendment.

Speaker3: So the Ninth amendment reads the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. So basically saying, if we missed anything, that doesn't mean that it's not protected. And that kind of pairs nicely with this concept of natural rights, which was recognized by all of these enlightenment philosopher type founders [00:22:00] who wrote the Constitution. Almost every I mean, if not everybody that we would recognize as being founders has mentioned them either in the debates or in their own writing. So there's like documented references. And if you're unfamiliar with the term natural rights, it's pretty coextensive with things like inalienable rights. Um, in modern terms, civil rights, human rights, the way that they put it, because they are enlightenment philosophers is the government didn't grant these rights, so they can't take them away. [00:22:30] So it almost doesn't have to be mentioned that they're protected because government doesn't give you the right to breathe or sleep or have privacy in your own home or travel. So why would we write down that it's protected if government doesn't even bestow those things to begin with?

Nick Capodice: And while natural rights aren't necessarily in the Constitution, they sure are in the Declaration of Independence.

Hannah McCarthy: We're talking about life, liberty, the pursuit [00:23:00] of happiness, not property.

Nick Capodice: And a bunch of other rights. In other documents written by these same men who wrote the Constitution.

Mackenzie Joy Brennan: If you want to look at some of the evidence from back then, they have things like the right to privacy, protections of brute creatures, protections of the mentally incompetent. I'm not paraphrasing, so please excuse the regressive language, but the right to conscientious objection, right to resist, um, freedom of information and inquiry, [00:23:30] prohibition of monopolies. All these things were written in terms of of conceptualizing natural rights, but they weren't enumerated because there are things that come from for them, a higher power. And please take all of this with a grain of salt that they were certainly not unimpeachable in terms of their morals. Um, there's a great Thomas Jefferson quote, which is always super funny, because Thomas Jefferson himself was very morally questionable. Sunlight is the best disinfectant [00:24:00] sort of idea. We should always talk about that. He's certainly far from a perfect person, but he has a great quote from the founding era that something like forcing a society to live under the laws of its predecessors is like forcing a man in his adulthood to wear a coat that fit him in his youth. And I think that speaks to the whole idea of originalism being unintended, and also to what the Constitution was supposed to do.

Hannah McCarthy: What does Mackenzie mean when she says [00:24:30] it's not what the Constitution was supposed to do?

Nick Capodice: Her argument, as best as I understand it, is that the Constitution was forged in debate and the Ninth Amendment, the myriad writings of the framers, the amendment process itself, including article five's never yet used method of having conventions in three fourths of the states to amend its words. These are all evidence that the people who wrote it knew things would change, [00:25:00] that they weren't predicting whether a police officer unlocking a cell phone would be a constitutional violation of privacy, and that originalists may be doing a disservice to the sometimes quite socially progressive beliefs of the framers.

Mackenzie Joy Brennan: And I think it's also brought a lot of criticism for the Constitution itself, because folks on the progressive side, if they don't know this history, are like, who the heck are these guys in the founding who own slaves, who didn't respect their wives, [00:25:30] who were all straight, white, property owning men, and they're not really seeing the nuance and the progressive options in the actual founding in our our government structure, because it's been co-opted by the originalist banner. Does that make sense?


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What Does the President DO?

Today we discuss what a president is, what a president does, and what a president "should be."  To quote Professor Amar, it can be hard to find someone to fill those shoes because they were designed for Washington's feet.

Our guests are Akhil Amar, Sterling Professor of Law and Political Science at Yale University, and Andy Lipka, president of EverScholar.

Akhil and Andy co-host Amarica's Constitution, a podcast that explores the constitutional issues of our day. It is a perfect companion show to Civics 101, and one we endorse wholeheartedly. 

Here is where you can listen to our episode on the Executive Branch, here is a link to our episode on the Presidential Veto, and here is where you can learn about the President and the Price of Gas.


Transcript

What does the President DO?

Archival: The new president's duties outlined by the Founding fathers had to be translated into everyday detail. Could Washington make the Constitution work? History waited on this one man. Franklin Delano Roosevelt and Harry S Truman. Eisenhower. John Fitzgerald. Kennedy. Lyndon. Baines Johnson, Richard. Nixon, Gerald. Ford, Jimmy. Carter, Ronald. Reagan, George. Herbert Walker. Bush, William. Jefferson. Clinton, George. Walker.Bush, Barack. Hussein. Obama, Donald John. Trump, Joseph. Robinette Biden, Jr. Do solemnly [00:00:30] swear.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are going to actually answer a question we've come at from different angles over the years, but never truly head on. What does the president of the United States do?

Hannah McCarthy: It's funny. I mean, we kind of have danced around it, haven't we?

Nick Capodice: We have. A veritable jitterbug.

Hannah McCarthy: And I know we're gonna put links in the show notes for anyone who wants a primer [00:01:00] on things like the executive branch or presidential vetoes, or the president and the price of gas. And so I'm excited to talk about what the president does, but honestly, I'm a little trepidatious.

Nick Capodice: Why are you trepidatious? I mean, I'm trepidatious. Why are you trepidatious?

Hannah McCarthy: I mean, every president so far has done so much, so many different things. The job has evolved, hasn't it, over the last 250 years?

Nick Capodice: Yeah, it certainly [00:01:30] has. I'm trepid about wading into the waters of this president was good. This president was bad. Sort of a waffling around grand comparison. I don't want to do that. But to your point, Hannah, I hope we can get as close as possible to a 250 year constant. Just a simple answer to that question. What do they do? And to answer it, I spoke to someone who knows the Constitution very well, and I got to share his sound check.

Akhil Amar: Anna leaf subsides [00:02:00] to leaf So Eden sank to grief. And dawn goes down to day. Nothing gold can stay

Hannah McCarthy: Is that Robert Frost?

Nick Capodice: It is. I mean, I wasn't interviewing Robert Frost. I was talking about Robert Frost with Akhil Amar.

Akhil Amar: Hi, I'm Akhil Amar. I teach constitutional law at Yale.

Nick Capodice: Akhil Reed Amar is one of the most cited constitutional scholars in the United States. He frequently testifies before Congress. The Supreme Court has cited him in over 50 cases, and [00:02:30] he is the author of the words that made us America's constitutional conversation. There's a lot more accolades, but I've got just one more hand. I think you're gonna like it.

Hannah McCarthy: Alright. Lay it on me.

Nick Capodice: He was an informal consultant to the writers of the West Wing..

Archival: Promise that I ask everyone who works here to make. Never doubt that a small group of thoughtful and committed citizens can change the world.

Hannah McCarthy: All right, that's delightful.

Nick Capodice: Now, Akhil happens to co-host his own podcast, Amarica's Constitution. [00:03:00] And he hosts it with this gentleman.

Andy Lipka: Hi, I'm Andy Lipka. I am the co-host of America's Constitution, and I'm also the president of a nonprofit organization called EverScholar.

Nick Capodice: In their show, which I wholeheartedly recommend to all our listeners. Andy asks Akhil, his long time friend, questions about the Constitution.

Andy Lipka: I'm trying to help us move back about 60 years or so, in terms [00:03:30] of the way we think about the citizen's role in the presidential election.

Nick Capodice: So to start, I asked Akhil what the Constitution says presidents do, and here's what he said.

Akhil Amar: It's a great question, because the Constitution itself actually specifies all the things that Congress is supposed to do. In article one, and it actually specifies the things that courts are supposed to do in article three. And article two [00:04:00] does not contain an exhaustive list.

Hannah McCarthy: We've talked about this before. Article one is huge compared to the other articles.

Nick Capodice: It is massive. And by contrast article two which lays out the executive branch, is sparse. Article two begins, quote, the executive power of the United States is vested in a president, end quote. And it does indeed list some powers and responsibilities of the job, but not [00:04:30] all of them. And when it comes to presidents, they do a lot.

Akhil Amar: Presidents. Oh my gosh, they do so many things. They're so different, one from the other. Each requires a different kind of competence, and almost no one is good at all of them. You're the lawmaker in chief because of the veto power.

Archival: You will force me to take this pen, veto the legislation, and will come right back here and start all over again.

Akhil Amar: You are the head in a [00:05:00] sense, of the criminal justice system. Because the pardon power. So you're the prosecutor and partner in chief

Archival: A Full, free and absolute pardon unto Richard Nixon for all offenses against the United States.

Akhil Amar: You oversee the armed forces because you're the commander in chief of the Army and Navy.

Speaker9: On my orders.The United States Military has begun strikes.

Akhil Amar: You also oversee the National Intelligence Service. You're you're in effect, the spymaster in chief. [00:05:30] It doesn't say so explicitly, but a whole bunch of foreign affairs fall to you. It says explicitly, it being the Constitution that you receive. Ambassadors. Okay, you might think that's just a formal thing, but in order to receive an ambassador, you need to know which countries we recognize and which ones we don't. Oh, so that's a recognition power. Are we going to recognize Taiwan or the People's Republic of China or both. You have to be the [00:06:00] manager in chief because there are all sorts of federal properties, and you're in charge of supervising that. You're the appointer in chief. You pick cabinet officers and you're the Firer in chief. They serve at the pleasure of the president.

Archival: President Trump has fired another member of his cabinet. Va Secretary David Shulkin is now out.

Akhil Amar: We have a functional two party system in America, very strong two party system. And you're going to be the head of one of those two parties. So now you [00:06:30] have to unify us all as president. You're the unifier in chief, but you're also the head of a party. Wow. Those are two different things to be both Margaret Thatcher and Queen Elizabeth. And I haven't even begun to itemize all the other things. Probably most of all, you are in power in office 24 seven 365. You're the only Branch. One person nationally selected 24 [00:07:00] seven 365. And stuff happens in the world.

Nick Capodice: Did you get all that?

Hannah McCarthy: Yeah, I was actually, um, writing them down as he was saying them. Lawmaker and chief prosecutor in chief. Pardoner in chief. Commander in chief. Spymaster in chief. Appointer in chief. Firer in chief. Recognizer in chief. Unifier in chief and head of your party. And finally, you are on the job. 24 seven 365.

Nick Capodice: Tremendous. [00:07:30] And there is one more thing. And it is crucial

Akhil Amar: To keep the ship of state afloat. To make sure that you're not the last president, that there's going to be an election and an election after that. Oh, and you're going to have to make sure when that election takes place, even if you lose, you peacefully transfer power to the next fellow.

Archival: Now, it is no secret that the president elect and I have some pretty significant differences. But remember, eight years ago, President [00:08:00] Bush and I had some pretty significant differences.

Andy Lipka: So, Akhil, you know, one of the things that you and I do together is, you know, you lay out the the academic facts and the, you know, sort of the received knowledge of the Constitution and that sort of thing. And then I asked the questions that occur. So as I was listening to you, I'm thinking, well, it sounds like from what you're saying, the Constitution goes out of its way to enumerate the powers of Congress. Like you said, it doesn't do so with the with [00:08:30] the president. So does that mean that the president basically has what's left or, you know, if not, how do we determine, you know, because that would sound like a boundless allocation of of power.

Akhil Amar: Many scholars, justices sometimes define executive power as proper governmental power. That's neither legislative nor judicial. So they kind of define it as a residual category, a catchall. It has to [00:09:00] be proper. So president can't typically do things that aren't even given to anyone in the federal government that are reserved for the states.

Hannah McCarthy: So the states restrict the powers of the president, and they're also checked by the other branches.

Nick Capodice: And the Bill of rights checks the president, too. So the First Amendment says that Congress shall make no law abridging freedom of speech, but the president shouldn't abridge it either. Neither should the courts.

Akhil Amar: Beyond that, we have 200 [00:09:30] years of tradition enumerating or not enumerating, but giving us a sense of what presidents have done and not done. The most dramatic illustration of that is the two term presidency. You look at the original Constitution. Presidents are infinitely reelected, but Washington chooses to step down after two terms because he's virtuous, because he doesn't. He's not power hungry. That's followed by Thomas Jefferson, who [00:10:00] chooses to step down after two terms, and then after Jefferson, Madison and Monroe and Jackson. And now we have a bit of a tradition going, or more than a bit of a tradition. And when it's broken by Franklin Roosevelt, maybe for you know, reasons, because we're on the edge of a there is a world war going on and we're on the edge of it. The Constitution is eventually amended to codify the Washington precedent, so to speak, the two [00:10:30] term precedent. You have a sense of actually who the good presidents are, and it is an argument for someone to say, I'm doing just what Washington did.

Hannah McCarthy: Okay. I thought it was going to come back to Washington because it often does. So how much should we look to the first person who held the job as a guide? You know a person with some admirable qualities, some deeply undesirable qualities. In fact, one glaringly undesirable [00:11:00] quality in that he was an enslaver. How does George Washington inform what we should be looking for when we step into the voting booth every four years?

Nick Capodice: Well, according to Akhil, Washington defines the presidency. A great, great deal, warts and all. And we're going to get to that and our best understanding of the framers' intent in creating the job of the president right after this break. But real quick, before that break, if you want to understand [00:11:30] the workings of every branch, every executive department, each chamber of Congress, and a bunch of landmark Supreme Court rulings, Hannah and I put them all into a book. It's called A User's Guide to Democracy How America Works. It is loaded with information as well as cartoons drawn by The New Yorker cartoonist Tom Toro. Just get it wherever you get your books and leave it on the table.

Hannah McCarthy: We're back. And today on Civics 101, we are discussing the big one, the role [00:12:00] of the president of the United States of America. And Nick, we were about to cross the Delaware and talk about George Washington and what we know about the framers intent in creating the role of the presidency.

Nick Capodice: Absolutely. And here again, is Professor Akhil Amar.

Akhil Amar: Here is what we do know. They kept article two very short, in part because they couldn't specify all the things that a president was going to do. We know that they designed it for [00:12:30] George Washington. He was the unanimously selected presiding officer at Philadelphia. In effect, the Constitution was drafted by him, and for him, people voted for it, knowing that if Virginia ratified, he'd be the first president. And he was, and he was unanimously selected. Every single elector voted for him the first time around and it was unanimously reelected. Every single elector voted for him the second time around. [00:13:00] So we know that the that article two and indeed the Constitution were designed for George Washington.

Hannah McCarthy: So if article two lays out the job, albeit briefly, we can think of this as the framers writing the job description after they'd picked the candidate.

Nick Capodice: Precisely.

Akhil Amar: So one thing now that we know is let's look to Washington's example in some ways, because the framers would have wanted us to look to Washington's example. [00:13:30] They designed the document for him. And then we have to ask what was special about Washington. And I could tell you some things. We also know from the text of the Constitution that the very first thing a president is supposed to do is to swear a very personal oath of office to, quote, preserve, protect and defend the Constitution of United States. That's the first job description.

Hannah McCarthy: You talked about this in your oath episode.

Nick Capodice: I did. And since nobody has really suffered any legal consequences [00:14:00] for violating their oath, I kind of looked at the oath as not that important. And maybe that was a mistake because I had not thought about it this way. There is not a lot in article two, but they made a big deal about the oath. They put it in word for word.

Akhil Amar: I do solemnly swear that I will faithfully execute the office of president, the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States. But it's a very personal oath. I me, mine, I to the best of [00:14:30] my ability. We go from we the people do to I, Donald J. Trump, Joe Biden, Kamala Harris, whatever do solemnly swear I do. And so we know it's a very personal office. It's a constitutional office. We know it was designed by and for George Washington. And that gives us a little bit of a sense of who we're supposed to look to. First and foremost, and trying to think about what a president should do and shouldn't do. If you're a Christian, [00:15:00] you ask yourself, what would Jesus do? If you're a constitutionalist, it's perfectly sensible to say, what did Washington do?

Hannah McCarthy: So what did Washington do?

Nick Capodice: Andy Lipka, co-host of America's Constitution, asked the same question.

Andy Lipka: So, Akhil, you know, you're about to tell us, I think, some of Washington's extraordinary qualities that caused the founders to, first of all, believe that he was the right choice to have this universal agreement, that he was [00:15:30] the right choice to be the first president to design the presidency for him. If Washington indeed is extraordinary and you design the office for an extraordinary individual, is there a problem? If you get an individual, that's not extraordinary. In other words, someone may may not have the great qualities of Washington. And indeed, if every if it was so easy to find someone that had those qualities, they wouldn't need to design it for him. So. So is this a problem? [00:16:00] Is it a flaw? And if it is a flaw, you know, how have we dealt with it over the years? And how might we, you know, have to face it in the future? If someone has a flaw that previous presidents didn't have in the past.

Akhil Amar: So there are two parts of that question. One, Why Washington? And then, you know, how do we think about finding another Washington? And if we can't, is that a real problem? So why Washington? One because America at the time was [00:16:30] militarily vulnerable, and you need someone who can defend the national security. And Washington can. He actually was the leading general in a long war which won American independence against the most powerful military the world had ever seen. You need someone strong who can defend There because otherwise there is no constitution. There is no America. But two you need someone strong who also is not power hungry, who [00:17:00] is willing to walk away from power, who has the virtue to walk away. And Washington has already shown that before the Philadelphia Convention, he had all power. He had the only effective army on the continent. And he walked away. He he resigned. So people thought we can trust him. Third and related, he is a unifier in chief, and that is part of the job of the president [00:17:30] to be not just commander in chief, but unifier in chief. He spends time in all parts of the country. He's the only real figure who spent a lot of time in all parts of the country. And it's a big country, and they have different points of view. This is a world before the emergence of political parties. But he's respected by everyone, by even by people who vote against the Constitution. And now you ask me. Well, Akhil, that sounds like a pretty extraordinary guy. There are not that many Washington's in any generation, [00:18:00] you know, much less in every generation. Is that a problem for our Constitution? If we can't find someone who can fill these shoes? Because the shoes were designed for Washington's feet, and it is a problem, it is the Achilles heel of our Constitution. And our Constitution could ultimately fail if we pick someone who doesn't have Washington's virtue in certain regards, especially this willingness to walk away from power. [00:18:30]

Hannah McCarthy: Nick, have you ever seen the statue of George Washington that's at the National Museum of American History?

Nick Capodice: I don't think I have. What's it like?

Hannah McCarthy: It's striking, to say the least. Washington is shirtless in a toga and sandals, sitting on a throne. One hand holds a sword and the other points heavenward. He's extremely [00:19:00] muscular and bringing this up because I feel like we might be echoing the sentiment of the guy who carved that statue. Washington looks like a Greek god, and he wasn't Nick. I mean, he lost battles. He lashed and on occasion hanged deserters. And he enslaved over a hundred people. 300. If you include those kept in bondage by his wife, Martha. And you should. How do we use a man who engaged in that [00:19:30] practice as a model for the leader of the free world?

Nick Capodice: Yeah, it's a difficult contradiction, and it's one that I put to Akhil. How do we adulate someone who committed an unforgivable crime?

Akhil Amar: I admire Washington, especially because the very last thing he ever did was free, all, provide for the freeing of all the slaves that he owned in his own right. I would I would have loved it if he had been able to say this [00:20:00] earlier while in the presidency. But the very last thing he did was to free his slaves. I tell that story in my book, The Words That Made Us. It's actually the last chapter. It's called chapter called 'Adieu.' It's how they all leave the, shuffle off this mortal coil. I say they the great founders. They're six of them by acclamation. The first four presidents Washington, Adams, Jefferson, Madison, Hamilton and Franklin. In that last chapter, I tell how each of them dies. And I think Washington dies very [00:20:30] well because he frees his slaves and Jefferson doesn't. So in my book, Jefferson is is not at the same level, and Madison doesn't free his slaves, so shame on them. They follow Washington's example in that they step down after two terms. Good for them, but they don't, in their personal lives, follow his example by freeing their own slaves. Shame on them. Washington doesn't solve all the problems [00:21:00] of his era. No human being does. But I think, especially at the end, that's a very, very important aspect of Washington's legacy. I'll say it one other way. Washington is not only our first president, he is our first ex president, and he set some important precedents as ex president. He doesn't try to muck things up for the people as ex president who have the crushing responsibilities. He doesn't do that. He's well behaved [00:21:30] as ex president. And the best thing he does as ex president is free the slaves. But let's take Jimmy Carter and Jimmy Carter. Probably history won't reckon as one of our greatest presidents. And here's why he doesn't get reelected. But I think history will consider him a very good ex-president. He's done many admirable things as ex-president. Not for profit organizations. Habitat for humanity. Other things. He. He hasn't actually riled people up and roiled the waters [00:22:00] as ex-president. That's part of Washington's example too.

Nick Capodice: Hannah do you remember when we did our first series ever on the midterm elections?

Hannah McCarthy: I do.

Nick Capodice: So for everyone out there, the last episode of that series was on voting, and we had to have a team meeting to discuss whether or not we could say to our audience, go vote.

Hannah McCarthy: Yeah, we had to figure out if telling people that they should vote could be construed as a political call to action [00:22:30] or a partisan statement of some kind, and we decided that, yes, it was absolutely okay to tell people they should vote.

Nick Capodice: Yeah, and we did. And we stand by that. Now, Americans, unlike in other democracies do not have mandatory voting. It's not required. But Akhil says civic participation in any form is a necessity if we want to keep this country going.

Akhil Amar: Republics in the past [00:23:00] have fallen, ours could fall, and I don't want to fail on my watch. Civics and citizenship and cities, they're all actually connected in Latin. And it's the obligation. Not just the right, but the duty, the responsibility of citizens to keep the Republic alive. And how do we do that? I think most of all, by taking very seriously not just our voting in general, but especially for the presidency above everything [00:23:30] else, because the presidency is the Achilles heel, the the vulnerable point in the system. When you're thinking about the voting for president, it's not about necessarily who's going to be better for your taxes. I don't like paying, you know, high taxes any more than the next person or who's going to bring lower prices or promises that I like on on this agenda item or that one lower grocery prices. Um, uh, it's ultimately about [00:24:00] who's going to serve the Republic best of all going forward, who's going to, most important of all, make sure that this isn't the last presidential election.

Andy Lipka: And, Akhil, I think that, you know, we talk about originalism, but the Constitution originally was meant to be discussed and understood. Probably a lot of people in this audience have read the Constitution because it's short. But what they may not have read is a short letter from George Washington that accompanied the Constitution, [00:24:30] where he is endorsing it and telling people, you know, this is, you know, I support it, you should ratify it. And this this letter, which was published right alongside the Constitution, virtually everywhere that the Constitution was published was considered to be one of the main reasons that the Constitution in fact was ratified, but you may not have read it. You should read it. It's a paragraph, you know, but you should read it.

Hannah McCarthy: Have you read it?

Nick Capodice: I had not until I [00:25:00] spoke to Akhil and Andy. But I have now. Have you read it?

Hannah McCarthy: I have, I like that it's a sort of. "All right States. You're not going to like every little part of this. But we gave it a lot of thought. And we think that if you read it, you'll see why we did what we did here." Did any part of it stand out to you?

Nick Capodice: Yeah, the whole thing did, honestly. And that is exactly what it sounds like, Hannah. And I'm not going to read all of it here. I'm just going to share my favorite paragraph. "In all our deliberations on this subject. We kept steadily [00:25:30] in our view, which appears to us the greatest interest of every true American, the consolidation of our union in which is involved our prosperity, felicity, safety, perhaps our national existence."

Hannah McCarthy: I'm George Washington, and I approve this messag

Nick Capodice: That's what the president does and what the framers thought about it, this episode was made by me Nick Capodice with you Hannah McCarthy. If you want to listen to more Akhil and Andy, check out their podcast Amarica's Constitution, we have a link in the shownotes. Our staff includes Senior Producer Christina Phillips and Executive Producer Rebecca Lavoie. Music in this episode from Epidemic Sound, as well as Florian Decros, HoliznaCCO, Jahzzar, Eric Ryan Kilkenny, KieLoKaz, Blue Dot Sessions, Yung Kartz, and the civics 101 composer in chief, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Why is the voting age 18?

For most of our nation's history, the voting age was 21. So how'd we get it down to 18? In one sense, it was the fastest ratified amendment in history. In another, it took three decades. Our guide to the hard-won fight for youth enfranchisement is Jennifer Frost, author of "Let Us Vote!" Youth Voting Rights and the 26th Amendment.


Transcript

Hannah McCarthy: [00:00:02] Nick. Now, there are times when even we so-called adults wonder when we will finally be all grown up. But in the United States, that age is pretty much 18.

Nick Capodice: [00:00:21] Yeah, that's the age you're allowed to finally say I'm a legal adult. I can make my own choices. Unless that choice is to, you know, [00:00:30] drink alcohol legally or rent a car. You can buy one, though, right? Which seems a little funny.

Hannah McCarthy: [00:00:36] It does. Social constructs are a little funny, Nick, and adulthood is one of those. And so is pretty much everything else here in the US. We set an age at which you acquire the rights and responsibilities of what we call adulthood. This is known as the age of majority. Now that age varies somewhat from state to state and from Responsibility [00:01:00] to liability, especially when it comes to juvenile versus adult courts of law. A little less so when it comes to marriage, finances, tattoos and cigarettes. But you know what doesn't vary, Nick? The age at which you can vote.

Nick Capodice: [00:01:21] Well, that is because it is the law of the land. It is a constitutional amendment.

Hannah McCarthy: [00:01:26] It sure is, Nick. It is the 26th amendment, [00:01:30] to be precise. And that is what we are talking about here today. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:34] I'm Nick Capodice.

Hannah McCarthy: [00:01:35] And the 26th amendment is a special one. You want to know why it had the fastest ratification in history, took a little over three months in 1971, but actually getting to that point took a little less than three decades. This is a story about federalism taking something that used to be left up to the states and making it a national law. It's a story of grassroots [00:02:00] organizing, coalition building, and that horatian aphorism canonized by English poetry teachers. In that one movie, every substitute teacher had on VHS in the 90s. Carpe diem.

Dead Poets Society: [00:02:11] Seize the day. Gather ye rosebuds while ye may.

Nick Capodice: [00:02:17] Three decades.

Hannah McCarthy: [00:02:19] Oh, yeah.

Hannah McCarthy: [00:02:19] Three decades that included the civil rights movement, one very unpopular war, and a Supreme Court decision. So, without further ado, let's [00:02:30] do.

Nick Capodice: [00:02:34] All right. My first question is about what the voting age was before the 26th amendment was ratified, because the Constitution didn't say anything about voting age originally. And you've said it was something that was left up to the states. So was there an age that all the states agreed upon initially?

Jennifer Frost: [00:02:52] Well, this goes way back in English history, right? So the age of majority. So the age at which [00:03:00] you would have achieved adulthood becomes 21. So it's not you know, if we look at the medieval period or other periods, the age is shifting. But certainly, you know, by the time the American colonies are founded, the age of majority is considered 21.

Hannah McCarthy: [00:03:19] This is Jennifer Frost. She's an associate professor of history at the University of Auckland and the author of Let Us Vote. Youth Voting Rights and the 26th amendment.

Jennifer Frost: [00:03:29] Now, the [00:03:30] important thing is the US Constitution does not lay out criteria for voters. You know, the original Constitution left the qualifications for voters up to the state legislatures. So it's really at the state level that we get 21 being the age of majority and the age at which you would be able to vote for men.

Hannah McCarthy: [00:03:53] Now, the federal government does determine the age for certain things. For example, the age at which you must register [00:04:00] for selective service, also known as the draft.

Nick Capodice: [00:04:03] This is the thing I feel most people know about the history of the voting age. There's that famous slogan old enough to fight, old enough to vote, and I believe that is a conversation that started after President Franklin Delano Roosevelt lowered the draft age from 21 to 18, in World War two. Is that right?

Hannah McCarthy: [00:04:21] Yeah. And actually, the draft age was expanded twice during World War two. The Selective Training and Service Act, passed by Congress and signed [00:04:30] into law in 1940. This is prior to the US entering World War Two, required men ages 21 to 35 to register with their local draft board.

Speaker6: [00:04:41] The lottery will determine the order number of 750,000 who have reached their 21st birthday since the last draft. Another step toward the deferment of older Selectees.

Hannah McCarthy: [00:04:59] In 1941, [00:05:00] the act was amended to require men aged 18 to 64 to register, but only men aged 20 to 45 were on the hook for naval or land forces, aka the draft aka induction aka face and fighting in a war.

Nick Capodice: [00:05:19] Hold up. If you were only drafted up to the age of 45. What's going on with 46 through 64?

Hannah McCarthy: [00:05:26] This was referred to as a kid. You, not the old man's [00:05:30] registration. Oh, my. We weren't going to send men over the age of 45 to war, but we wanted to get a sense of our manpower. Literally, we were trying to figure out our industrial capacity here at home.

Nick Capodice: [00:05:43] Wow. All right. And what about the register at 18? But you don't get drafted till you're 20 thing.

Hannah McCarthy: [00:05:50] Yeah, that didn't last long. In 1942, Roosevelt gave a radio address that laid out the war effort and explained who was needed where. Specifically, [00:06:00] he said that he thought that older men should be contributing to efforts on the home front, and younger men should be conscripted into active duty. And he called on Congress to specifically amend the Selective Service Act to draft men starting at the age of 18, which they did in 1942.

Franklin Delano Roosevelt: [00:06:18] Therefore, I believe that it will be necessary to lower the present minimum age limit for selective Service from 20 years down to 18. We have [00:06:30] learned how inevitable that is and how important to the speeding up of victory. I can very thoroughly understand the feelings of all parents whose sons have entered our armed forces. I have an appreciation of that feeling and so has my wife. I want every father and every mother who had a son in the service to [00:07:00] know again, from what I've seen with my own eyes, that the men in the Army, Navy and Marine Corps are receiving today the best possible training, equipment and medical care.

Nick Capodice: [00:07:19] So Roosevelt isn't saying, sorry parents who newly have to worry about their 18 and 19 year olds being sent overseas. He's addressing the parents whose kids are already serving. [00:07:30] But he also seems to be saying indirectly, don't worry about the younger ones. I promise you, we will train them really well.

Hannah McCarthy: [00:07:39] Right. It's almost like he can't apologize because this is something that's going to happen either way. But he wants to find a way to temper the fears of Americans who are like fighting at 18. Seriously. And that same year. Nick 1942. That was the year that this idea of old [00:08:00] enough to fight, old enough to vote worked its way into the American consciousness. There was a West Virginian congressman named Jennings Randolph. He is sometimes called the father of the 26th amendment.

Jennifer Frost: [00:08:12] And he's one of several congressional leaders. But he becomes the prominent voice and what I love about him, he completely believed in democracy, you know, small d democracy. And he believed in getting people out to vote and to utilize [00:08:30] their right to vote. And the story goes that he used to carry a piece of paper in his pocket. And when someone said, oh, why should I vote? One vote doesn't matter. And he would pull this piece of paper out of his pocket, and he would read a bunch of major decisions and bills that passed into law that passed by one vote. And he said, you think your vote doesn't matter. You know it matters.

Hannah McCarthy: [00:08:53] And he dedicated his career to lowering the voting age, starting by introducing constitutional amendment legislation in [00:09:00] 1942.

Nick Capodice: [00:09:01] Wait, but it didn't happen until 1971?

Hannah McCarthy: [00:09:04] Nope. But what did start to happen? Because there were plenty of politicians who agreed with Randolph, is that states started to lower their voting ages.

Nick Capodice: [00:09:15] Which they couldn't do for voting in the federal election, because that's a national thing.

Hannah McCarthy: [00:09:21] But they could do it for state and local elections. And Georgia did in 1943, lower the voting age to 18. Kentucky did the same in 1955. [00:09:30] All right.

Nick Capodice: [00:09:31] Well, that's a pretty slow trickle, Hannah. Is there something that finally did it? Like what ramped it up? What happened between 1942 and 1971 that made the 26th amendment finally seem possible?

Hannah McCarthy: [00:09:45] The 1960s happened, Nick, and we're going to get to that time of the season right after this break. Ba ba da da da.

Nick Capodice: [00:09:54] Tell it to me, Hannah, but not too slowly. Okay? We're going to be right back. But in the meantime, here's a little reminder [00:10:00] that we Civics 101 are the result of people coming together because they believe in something. Public radio is funded by you, the public. It belongs to you, the public, and Civics 101 is included in that. If you have the heart, mind and financial ability to support our show, please consider doing so at civics101podcast.org.

Hannah McCarthy: [00:10:41] We're [00:10:30] back and we're going back. Back to the era that set the stage for 18 year olds to win the vote The 1960s Narodnik. What happened in the 1960s?

Nick Capodice: [00:10:53] Oh, boy. Hannah. Well, what didn't happen in the 1960s? We have a whole lot. We have the Vietnam War. There's a big one. [00:11:00]

Archival: [00:11:00] At this time. We have a total of 160,000 men in our military units.

Nick Capodice: [00:11:06] We have Kennedy getting assassinated.

Archival: [00:11:09] President Kennedy died at 1 p.m. Central Standard Time.

Nick Capodice: [00:11:14] And then we have the civil rights movement. Greatest of all, let.

Archival: [00:11:17] Us not forget that we are involved in a serious social revolution. And part.

Nick Capodice: [00:11:23] And parcel of the civil rights movement is a huge student movement, this huge counterculture movement.

Archival: [00:11:29] Our nation's [00:11:30] leadership, while striving for peace, has adopted a course that makes real peace unlikely.

Hannah McCarthy: [00:11:37] And the two most important things to keep in mind for the voting age are the civil rights movement and the Vietnam War. So let's dig into this a little bit and start with the Civil Rights movement, which, it should be said, included a ton of student activists and young adults who were not of voting age.

Jennifer Frost: [00:11:59] And most [00:12:00] scholars and people who lived through that time would say the civil rights movement was an inspiration and an impetus to a lot of different groups thinking we should organize, be it students, be it women, be it Chicanos, be it Indigenous Americans, you know. So there is this kaleidoscope of movements that's emerging over the 1960s that, in a way, the civil rights movement being the prompt, but also the groundwork was laid for [00:12:30] lowering the voting age to 18 by the civil rights and voting rights movement. So, you know, we get the Civil Rights Act in 1964, which, you know, ends segregation in the South and does other things. But the next year in 65, we get the Voting Rights Act, which essentially enforces the 15th amendment, which says you can't deny the right to vote on the basis of race, color or previous condition of servitude.

Nick Capodice: [00:13:01] So [00:13:00] the 15th amendment, as well as several other amendments like the 14th and the 19th amendment, they have a clause that says that Congress can take action to make sure the amendment is enforced. Right. And the Voting Rights Act of 1965, it does the same thing. The federal government is saying, hey, states, you can't do those things you're doing, and we're going to enforce that by passing a law.

Hannah McCarthy: [00:13:24] And we do have an entire episode on the Voting Rights Act of 1965. But real quick, it required [00:13:30] certain voting jurisdictions that had a history of racially discriminatory voting laws to get approval from the United States District Attorney or a US district court before implementing or changing any voting laws. It also allowed the use of federal examiners to monitor elections and help people register to vote in certain regions of the country, and it also prohibited the use of literacy tests.

Nick Capodice: [00:13:57] But Hannah, none of these say anything about voting [00:14:00] age, and I feel like I have to point out here that not being able to vote until you're 21 means that you will eventually be able to vote, which is not the same as not being able to vote because of your race or your gender.

Hannah McCarthy: [00:14:14] Yes, absolutely. And I think the reason that age felt so urgent is the one thing that we haven't really talked about in detail yet, the Vietnam War, that made age a really important consideration.

Archival: [00:14:28] Next one after this one, Bruce [00:14:30] Black, the next 121 a California college dropout, he threatened to go over the hill rather than go to Vietnam. In a year, he is promoted to sergeant.

Hannah McCarthy: [00:14:42] In The US had been involved in the Vietnam War for over a decade by the mid 60s, and in 1965, President Lyndon B Johnson announced that he was deploying another 50,000 troops. By 1966, we had [00:15:00] over 380,000 young men deployed to Vietnam. At the same time, news coverage of the war made Americans increasingly mistrustful of the US government's decisions. Student run coalitions at campuses across the country burned draft cards.

Jennifer Frost: [00:15:16] The 60s bring a number of state level campaigns. So 1966 Michigan has a referendum that is on lowering the voting age to 18 that young people really [00:15:30] fight for. They lobby, they organize, they mobilize, they do all sorts of advertising. They bring in the big wigs, and they bring in Robert Kennedy, Robert Kennedy, not junior, his dad to make the case, the United Auto Workers is on board in Michigan. I mean, it is a really robust campaign.

Nick Capodice: [00:15:51] So do they win?

Hannah McCarthy: [00:15:53] No, the referendum did not pass.

Jennifer Frost: [00:15:56] And it's really taken as quite a defeat. And [00:16:00] it's interesting. It was you know, basically the arguments about young people aren't mature enough. You know young people haven't had enough life experience. But there was also this concern. Do we want to give the right to vote to these young people, right. Who are in the streets mobilizing? Et cetera. So it's a real kind of backlash against the activism of the 60s, and you would assume everybody would kind of cry and go home and give up. That's not what happens after November 66th, [00:16:30] when the Michigan referendum goes down to defeat.

Nick Capodice: [00:16:34] All right. So we've got a failed referendum in Michigan, a ton of protesters and a very Unpopular war. So what happens next?

Jennifer Frost: [00:16:43] Martin Luther King is assassinated. Robert Kennedy is assassinated. We have a turning point in the Vietnam War, where the North Vietnamese and the Viet Cong launched their Tet Offensive, and a number of other things happened, including the president, [00:17:00] Lyndon Baines Johnson stepping down and not running again. So we're hearing echoes of that obviously today. So it was a very tumultuous year. There were anti-Vietnam protests, the Democratic National Convention in Chicago, which it's also in Chicago this year, was very conflictual.

Nick Capodice: [00:17:19] The 1968 DNC, otherwise known as maybe the wildest one that has ever been both inside and outside the convention.

Archival: [00:17:27] Members of the Youth International Party, Yippies, [00:17:30] they called themselves, converged on Chicago. They said they were there to protest the war, poverty, racism and other social ills. Some of them were also determined.

Hannah McCarthy: [00:17:40] And those protests, yes, they were about opposition to the Vietnam War. But the other major issue on the table, both for protesters and for the parties, was the voting age, which, as we know, was not lowered in 1968.

Archival: [00:17:57] This evening's activities climaxed a week of [00:18:00] protest activity by the children of Aquarius, and today was no different.

[00:18:04] Listen to us, Mr. Nixon. We've me the hope of a new tomorrow.

Jennifer Frost: [00:18:16] And some, I think, in Hawaii and Nebraska. There were state referenda to lower the voting age to 18. Those go down to defeat in 1968. So it's a time where some people are saying we're [00:18:30] doomed. You know, we're never going to make change. But there were other people who said, wait a second, you know, we were again protesting outside the Democratic National Convention, and we were inside. Some youth advocates were inside. And in fact, both political parties, the Republicans and the Democrats in 1968, in their platform, called for lowering the voting age to 18. So it's it's, you know, it's both this kind of moment of defeat, but this moment of, you know, we got to do something. And [00:19:00] so I say 68 is a turning point when they say we need a national movement. All the things happening in the States is great, but we need something to coalesce it all together. And we get the Youth Franchise Coalition being organized in late 68. It launches in early 69.

Hannah McCarthy: [00:19:18] And the young people in these movements had support from some of the people closest to them, their teachers.

Jennifer Frost: [00:19:23] So the National Education Association, you know, teachers believe in what they're doing in the classroom, [00:19:30] right? They believe that they are educating the future. They know they're educating the future, and they know that their students are interested in politics and care about politics, and so it makes sense they want to support that.

Hannah McCarthy: [00:19:46] And if you've listened to our episode on Strikes and Unions, you will know that in lieu of direct political power, there's another pathway to influencing the government. And the youth followed it.

Jennifer Frost: [00:19:55] A lot of young people were going right into the labor force like they are today, [00:20:00] and they were saying, wait, we've got union members who are 18, 19 and 20, you know, in the 40s, in the 50s, in the 60s, and they don't have a right to vote. You know, so the the labor unions, both, you know, the, the education ones, like the American Federation of Teachers, but the CIO at the time and then it becomes the AFL CIO. Absolutely. Were behind this finally.

Hannah McCarthy: [00:20:23] When it came to successful lobbying and organizing in the 1960s, the NAACP and other civil rights organizations pretty [00:20:30] much wrote the playbook. It worked for the Voting Rights Act of 1965, and they could leverage those same tactics for the youth vote.

Jennifer Frost: [00:20:38] And then the coalition had a strategy document about how we're going to go about it. And that's where I think they also built on this long history of effort is their strategy was dual, right. So we're going to work at the state level to try to get referenda and or amendments passed at the state level to enfranchise young people. [00:21:00] But we're also work at the federal level. And I think it was that two pronged, what we would call bottom up organizing and top down organizing.

Nick Capodice: [00:21:08] So we're talking about different groups with different perspectives, maybe even different reasons for what they're doing, but they're all working towards the same goal.

Jennifer Frost: [00:21:17] And it meant you could come into the movement in a variety of ways, a movement that's really narrow, that says there's only one way to be part of this movement, right? Obviously, you're limiting who's going to be part [00:21:30] of your movement by being flexible and open. You know, you could come into the movement saying, hey, I really think young people should have the right to vote because, you know, they're educated and they're ready to participate. And I could argue, you know, I'm going to focus on the fact that young people are being drafted to fight in Vietnam, right? So doesn't matter. We don't have to agree on our primary argument for why this should happen, but we agree on the goal.

Nick Capodice: [00:21:57] Okay. So on the national level, was [00:22:00] the strategy to get an amendment or was it to pass a federal law? Because I feel like one of those ideas is a heck of a lot easier than the other.

Hannah McCarthy: [00:22:08] Ain't that the truth? Yeah, it did get a little messy, Nick. Messy enough, in fact, for the highest court in the land to weigh in.

Archival: [00:22:17] Oyez, oyez, oyez.

Hannah McCarthy: [00:22:27] But before we ask for the Supreme Court's [00:22:30] opinion, I want to talk about what's going on in Congress. It was 1969, and the clock was counting down on a couple of provisions of the Voting Rights Act of 1965. Do you remember the preclearance requirement? Do you remember what that was?

Nick Capodice: [00:22:44] No.

Hannah McCarthy: [00:22:45] Okay. So that is the part of the act that said that states and districts with a history of racial discrimination against voters had to get approval from the federal government before they could change their voting laws. And that provision was set to expire [00:23:00] in 1970. Okay.

Nick Capodice: [00:23:03] Is this the thing that came up in a relatively recent Supreme Court case about voting rights? Yeah.

Hannah McCarthy: [00:23:08] You're thinking of Shelby County v holder. That was in 2013 and it invalidated that preclearance formula. So today, no states or localities need to get federal approval to change election laws.

Nick Capodice: [00:23:21] But back to 1970, Congress had to talk about it, right? Like whether they were going to keep it or not. And that meant they [00:23:30] could talk about voting rights again.

Hannah McCarthy: [00:23:32] Bingo.

Jennifer Frost: [00:23:33] At the same time, the Senate holds hearings on an amendment to lower the voting age to 18, and this is the first time that the majority of people testifying, and they have people from the civil rights movement, from the labor movement, from the NEA, you know, et cetera. And all sorts of politicians testifying. They agree it should happen. The question that the hearings don't agree on is, how [00:24:00] do we do it through the Voting Rights Act of 1970? Do we do it through a constitutional amendment? Do we do it through the states? Right.

Hannah McCarthy: [00:24:07] Ultimately, Congress decided to put the language about lowering the federal voting age in an amendment to the Voting Rights Act, because an amendment to a law is way easier to pass than a constitutional amendment.

Jennifer Frost: [00:24:21] Now, this was controversial because many people worried that if you add a voting age of 18, 19, 20, you know, [00:24:30] to this Voting Rights Act of 1970, Will it doom the Voting Rights Act that we absolutely need? So there was a bit of concern is this, you know, is this going to be a poison pill for the Voting Rights Act of 1970? But when the lobbyists for the NAACP and other civil rights organizations said, let's go for it, and it ends up passing and it passes overwhelmingly.

Hannah McCarthy: [00:24:57] By the way, the Voting Rights Act of 1970, it [00:25:00] had three new provisions. And this is important because states are going to feel a certain way about this amended act. The first created new rules for voter registration and absentee voting. The second prohibited states from making their own residency requirements, and the third, known as title three, lowered the voting age of all Americans to 18 in all elections.

Nick Capodice: [00:25:21] So 1970. That's Richard Nixon. To be honest, I am a little surprised that Nixon went along with it. He was the main target [00:25:30] of anti-war protests taken up by many of these potential new voters.

Jennifer Frost: [00:25:34] He doesn't like that that is in there, that title three he doesn't like it, but he knows how important the Voting Rights Act was and is for protecting African Americans right to vote. So he signs it. He signs it reluctantly. And then he says, let's have a Supreme Court case. Let's have some litigation to see if this is constitutional, to lower the voting age to 18 through legislation [00:26:00] rather than through an amendment.

Nick Capodice: [00:26:02] All right. So Nixon was kind of like states, I leave this in your hands.

Hannah McCarthy: [00:26:07] Yeah. At the time, this amended version of the Voting Rights Act was passed, there were still only two states, Georgia and Kentucky, that had laws on the books allowing 18 to 20 year olds to vote in state and local elections. This was not a widely supported issue once you got to the state legislative level. And as we know, states are within their rights to say that a federal law is unconstitutional [00:26:30] and they can refuse to comply, at least until their argument is denied by federal courts. And most states did exactly that. They refused to comply.

Nick Capodice: [00:26:42] And then they sued, just like Nixon was hoping.

Hannah McCarthy: [00:26:45] And then they sued. Arizona, Idaho, Oregon and Texas sued the federal government in 1970, saying that the Voting Rights Act Amendments of 1970 infringed on the rights of states. The Supreme Court agreed to hear the case known as Oregon v Mitchell. Mitchell [00:27:00] being John Mitchell, the Attorney General of the US at the time.

Archival: [00:27:03] We are seeking a decree that title three of the Voting Rights Act of 1970 is unconstitutional and enjoining the defendant from enforcing this title with respect to the plaintiff state.

Nick Capodice: [00:27:17] Were they just suing about the voting age? No.

Hannah McCarthy: [00:27:20] They also sued over literacy tests, state residency requirements, federal oversight of state election laws, all of these cases got lumped into [00:27:30] one because they all dealt with the Voting Rights Act.

Nick Capodice: [00:27:36] Got it. And what did the Supreme Court decide?

Hannah McCarthy: [00:27:39] This is the messy part. So first, the Supreme Court decided 5 to 4 that Congress did have the right to enact amendments that abolished literacy tests and state residency requirements for presidential and vice presidential elections. But they also decided that states could still impose residency requirements for state and local [00:28:00] elections. Now, when it came to the voting age.

Jennifer Frost: [00:28:03] It is a very unique decision because the court splits four said Congress has no role in determining voter qualifications like age, and the other four said Congress does have a role to do this, and it comes down to what we call they call a majority of one. That kind of splits the difference, which is Hugo Black. And what he says is Congress. He agrees with the conservatives that Congress [00:28:30] has no role for state voter qualifications, but he agrees with the more liberal side that that actually Congress does have a role for federal elections. So the decision comes down that says when you're 18, 19 and 20 year olds, you can't vote on state level elections, but you can vote on federal ones. Well, of course it was great in one way. People are going, oh my gosh, fantastic. You know, 18 year olds can vote for president and senator.

Nick Capodice: [00:28:58] So Justice Black establishes [00:29:00] that the federal government has a say in who gets to vote in federal elections, but not state elections. So, Hannah, just administratively, this is a little complicated.

Jennifer Frost: [00:29:15] It was going to be a nightmare for states and localities to administer, was going to cost a fortune. So what ends up happening out of the Supreme Court decision is all these state secretaries of state, they end up saying this is unmanageable. [00:29:30] We need consistency.

Nick Capodice: [00:29:33] So the secretaries of state signed on because they needed to be able to run their elections. And the law as it stood was making that really difficult.

Hannah McCarthy: [00:29:41] And that was the final piece that made the 26th amendment possible. Because remember when Nixon first signed the Voting Rights Act of 1970 into law, fewer than half of the states said that they would do it. But after the Supreme Court said, well, you have to do it when it comes to 18, 19 and 20 year olds voting on the national [00:30:00] ballot, the various secretaries of state were like, hang on, we are the ones actually running these elections. And they were going to their state legislatures and saying, we are not equipped to handle this right now.

Nick Capodice: [00:30:13] As in, it is administrative chaos to have one foot and one voting age for state and local elections and one foot in the other for federal elections.

Hannah McCarthy: [00:30:22] But there is a way out of this A way that ultimately the states would have to participate in. [00:30:30]

Jennifer Frost: [00:30:30] What the scholars argue is that constitutional amendments. They say there's four things that you need. You do need popular support. You do need legislative support. You do need judicial support, and you need support from the federal governments and the state governments. So some of the people who said it should let the states decide this. Well, actually the states do have a role because the states have to ratify an amendment. So, you know, when you when you have all [00:31:00] these different building blocks, it makes an amendment quite a robust process.

Nick Capodice: [00:31:07] Now hang on. To ratify an amendment you have to have an amendment to ratify. And I know we talked about that congressman who proposed such an amendment, but that was way back in 1942.

Hannah McCarthy: [00:31:18] Jennings Randolph.

Nick Capodice: [00:31:19] Yeah. Jennings Randolph. Was he still around?

Jennifer Frost: [00:31:24] He's there at the beginning and he's there at the end. His [00:31:30] career and his consistent advocacy over time. Proposing the 26th amendment again and again in Congress. He's there for the whole story.

Hannah McCarthy: [00:31:41] So he was still in office, but he was not the one to bring it back up. That was a senator from Indiana who had learned that it would cost states millions of dollars to register millions of young people to vote in completely separate systems. Never mind the fact that they would have to change their constitutions to comply with the age provision, and [00:32:00] probably couldn't do it in time. So several congresspeople proposed the 26th amendment in the very same, unchanged language that Jennings Randolph proposed in 1942.

Nick Capodice: [00:32:11] Wow.

Jennifer Frost: [00:32:12] It's the most quickly ratified amendment in US history, partly because of this administrative chaos that's going to happen, which has led some people to argue, oh, it was just an administrative maneuver. Right. It was just it was just [00:32:30] about making sure that voting processes were going to be easy to administer. And so, yeah, in the short run, there's no doubt that that administrative chaos was part of the argument. In fact, the House Judiciary Committee made that their main argument for we got to pass a constitutional amendment. But you don't even get that possibility without all the effort that came before. You know, so by just looking at that, you foreshorten the whole complex, [00:33:00] important history that got us to that point.

Hannah McCarthy: [00:33:03] Speaking of that whole complex, important history, Nick, I'm glad you brought up Jennings Randolph. He's the late West Virginia senator who was instrumental in the fight to lower the voting age, who gave young people a principal to levy against those who would deny them the vote. We're old enough to fight for you. Die for you. We're old enough to vote for you. When the 26th amendment was ratified [00:33:30] in 1971, Randolph got a call from the white House. Senator, would you like to select the first 18 year old who will register to vote?

Nick Capodice: [00:33:40] You're kidding. You're kidding.

Ella Marie Thompson Haddix: [00:33:42] And I just remember it was snowing.

Hannah McCarthy: [00:33:44] This is an excerpt from an interview done by West Virginia Public Broadcasting in 2021. It was with the woman who was that then 18 year old. Her name is Ella Marie Thompson Haddix. She's a retired schoolteacher. See, Randolph happened [00:34:00] to be in West Virginia when he got the call. So he asked the nearest college to please find an 18 year old ready and willing to register. And then he drove over there and picked her up.

Ella Marie Thompson Haddix: [00:34:13] And the roads were slick because Senator Randolph and I had to cross the street, and we held on to each other, crossing the street to the courthouse because we were afraid we'd fall down.

Hannah McCarthy: [00:34:24] Ella murray's older brother, Sergeant Robert Thompson, had been drafted to fight in the Vietnam War [00:34:30] in 1965. Two years later, he died fighting for his country. But without the right to vote in it. So it was particularly poignant for his sister to register, let alone to be the first 18 year old in the country to do it. She did have one misgiving, though. She was going to register. Republican Senator Jennings Randolph was a lifelong Democrat.

Ella Marie Thompson Haddix: [00:34:57] But he was very gracious about it. I told [00:35:00] him, you know, if he wanted to look for somebody else, that would be okay. And he said, no, absolutely not. It didn't matter whether it was Democrat or Republican. It was that, you know, he'd finally managed to get this 26th amendment through Congress. He it was his privilege to take an 18 year old to register.

Nick Capodice: [00:35:22] You know, if you want yet another reason to register to vote, there you have it. The guy who wrote the amendment doesn't [00:35:30] care how you do it. [00:35:32] Just do it.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Middle Class, Totally Relatable & Elite! (The Campaign Jargon Trivia Episode)

Why do very different political candidates say the same things over and over? Things like "middle class," "coastal elites" and "middle America?" What do those things even mean? That's what this episode is all about. 

Also...some civics and history trivia that's VERY much on-topic. Sort of.


Transcript

Middle Class, Totally Relatable & Elite! (The Election Jargon Trivia Edition)

Christina Phillips: Are we ready?

Nick Capodice: Yeah, but what are we doing here?

Christina Phillips: So I've gathered you all here on this Friday afternoon at the end of the DNC, because it is time to talk about election jargon, election catchphrases. I'm Christina Phillips.

Rebecca Lavoie: I'm Rebecca Lavoie

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Christina Phillips: This is Civics 101. And it is the election jargon edition of Civics 101 trivia. So [00:00:30] as I said, the DNC just ended. Rnc was earlier this summer. We're in the final couple of months of the election, which means that on the national and local level, you cannot escape politicians talking to you about you and at you. So today I have prepared a game of trivia about all the stuff the candidates say on the campaign trail. It's going to be a blend of critique, analysis and pettiness, and hopefully it will be fun. So [00:01:00] way back at the beginning of this year, we asked our audience to send us some of the most overused verbiage they hear politicians say on the campaign trail. And each round of this trivia is based on some of the most common themes we heard from listeners. I will read a couple of listener emails. They're vague, broad, and they shift depending on who is saying them. So I tried to pick things that both Republicans and Democrats say all the time, but we're kind of going to look at how it depends on who's interpretation it is or [00:01:30] who they're trying to appeal to. Does that sound good?

Rebecca Lavoie: Context matters, is what you're saying.

Christina Phillips: Context? Yes, perhaps. All right.

Christina Phillips: Before we start, I'm going to spoil a little bit so I can get your reactions. We're going to be talking about phrases like middle class, middle America elites. If you had to explain to somebody Why so many politicians, [00:02:00] despite the fact that they are trying to distinguish themselves from their rivals, use the same phrases over and over again. Why do you think that is? Why do they do this?

Hannah McCarthy: I've been thinking about this a lot lately, because I often think about, in our own world how to do things slightly differently, right? Like the different kinds of messaging we could use. I have this feeling that the answer is, why would we do something different if this is the way we've always done it before.

Rebecca Lavoie: Or if it works.

Hannah McCarthy: Or if it works? Yeah, yeah, yeah. Like [00:02:30] we find that these terms test. Well, we're not going to mess with that. Because what if when we mess with that it screws everything up?

Nick Capodice: I think it's about repetition and getting little things lodged in people's minds. When I hear these phrases over and over again, like middle class or the liberal media, you know, stuff like that, if you hear it enough, you associate one side or the other or one candidate or the other with something, because repetition is the greatest way to get something stuck in your head. I was also wondering last night why? Why candidates always. Oh my [00:03:00] God, like the last ten years, they're like, it just won't work. And we're not doing it again. Like we're not going back. Somebody do it. Well, 40 years ago. Yeah, that's what we do.

Rebecca Lavoie: They did.

Nick Capodice: You know who did it? Who did it?

Archive: Read my lips. No new taxes.

Rebecca Lavoie: Yeah, I guess I guess it's been going on forever. Forever? Yeah, yeah, yeah.

Nick Capodice: I mean, Roosevelt probably did it. Yeah.

Christina Phillips: Are [00:03:30] you ready to start?

Nick Capodice: Yes. Yes, absolutely.

Christina Phillips: Okay, so our first category is called mid because I'm trying to be cool with, you know I'm feeling the the age of my demographic which is millennials. So okay so we're talking about two distinct phrases that suggest they're speaking to two different populations, but they actually overlap quite a bit. When you think about where and how candidates, [00:04:00] especially presidential candidates, campaign in our current election system, aka the Electoral College, the phrases I am talking about are middle class and Middle America. Okay. When you hear middle class as a phrase that politicians use over and over again, like, what do you think of?

Hannah McCarthy: Nonexistent. Sorry.

Rebecca Lavoie: Yeah.

Christina Phillips: I love it, I love it. Yeah.

Rebecca Lavoie: Rebecca, I think of everybody who is not rich. They call everybody middle class who's not rich like everybody.

Christina Phillips: Mhm.

Nick Capodice: My [00:04:30] sister and I were talking about this last night. She was like were we middle class or were we poor. We were trying to decide and we couldn't figure it out. So I feel like it's an income number. Right. It's like somewhere between.

Rebecca Lavoie: But there is like some data I think that shows that a lot of people think that they're middle class when they're not. Right. Like, everybody believes that they're middle class. Even people who are below the poverty line believe they're middle class. Even people who are upper middle class sometimes believe that they're middle class, like middle class is a category that, like almost everybody puts themselves into, right?

Christina Phillips: Yes, that is correct. And I think that was more true [00:05:00] pre 2008. There have been studies that have shown that many, many people more than actually qualifies as what we would call middle income, identify as middle income. It is true that it seems like this is where people would like to put themselves and often categorize themselves. I actually tried to find some data on what counts as, quote, middle class. The income brackets was the closest I could get, and this is from the Pew Research Center. So the Pew Research Center defines this middle income [00:05:30] household as those with an income that is two thirds to double that of the median household income after incomes have been adjusted for household size, which is a very weird it's a weird definition. Basically, it's saying that there is a range of income that counts as middle income, and then the other two categories are lower income and An upper income. So the middle income household range in 2018, which was the most recent data I could find, was 48,000 [00:06:00] to $145,000 per household per year. And approximately over the last couple of decades, that is the biggest group. So there will be, you know, at least 50% sometimes all the way up to 65, 70% of people fall into that range. The important distinction is that that range is getting smaller. So that lower income group, which is below that 48,000, and that [00:06:30] upper income group, those two groups are getting bigger. And the amount of wealth in that upper income group is much higher. So that's really the big change. But we are talking about technically the biggest demographic of incomes in America. What about middle America stands out to you?

Nick Capodice: Well, middle America. You know, I actually have no idea. I grew up in I was born in the Midwest. I grew up in New England, but I was born in the Midwest. [00:07:00] It's like, is the Midwest, middle America? Non-coastal non-coastal.

Hannah McCarthy: Yeah, that that's what I think. But it also seems a little silly, a little funny to think that, like, the middle of the country is middle America, but is that literally what we mean?

Rebecca Lavoie: Doesn't it also mean like a regular folks? I mean, there's a non-elite non-coastal. What it evokes for me, like manufacturing jobs, farming, Rust belt, religious values, like slightly more like salt of the earth. [00:07:30] Like there's a there's a like an evocation of imagery that you see, the B-roll that I see when I hear the word middle America, like in a commercial. It's all that stuff.

Archive: It's morning again in America today. More men and women will go to work than ever before in our country's history, with interest rates at about half the record highs of 1980. Nearly 2000 families today will buy new homes, more than at any time in the past four years.

Christina Phillips: Yeah, I think what's interesting is, [00:08:00] like both the vice presidential candidates are trying to capture that in a very like, I think, interesting way. Like J.D. Vance grew up in the Ohio, Kentucky region. He wrote a book, you know, the Hillbilly Elegy, about, you know, this group of white Americans that was seen as ignored, you know, by liberals.

Archive: I grew up in Middletown, Ohio. A small town where people spoke their minds, built with their hands [00:08:30] and loved their God, their family, their community and their country with their whole hearts. But it was also a place that had been cast aside and forgotten by America's ruling class in Washington. When I was in the fourth grade, a career politician by the name of Joe Biden supported NAFTA, a bad trade deal that sent countless good jobs to Mexico.

Christina Phillips: Tim Walz is, if you listen to any of the speeches like he's the football coach. He's from Nebraska, governor [00:09:00] of Minnesota. And Tim Walz is very much defining himself as homegrown, relatable guy.

Archive: Now, I grew up in Butte, Nebraska, a town of 400 people. I had 24 kids in my high school class, and none of them went to Yale. But I'll tell you what. Growing up in a small town like that, you learn how to take care of [00:09:30] each other. That that family down the road, they may not think like you do. They may not pray like you do. They may not love like you do. But they're your neighbors and you look out for them and they look out for you.

Christina Phillips: I think in terms of this election, what stands out to me is that like three of the most important states in the election right now are Wisconsin, Michigan and Pennsylvania. [00:10:00] And I feel like a lot of this middle America conversation comes up around these states that are very, very important for the Electoral College, that kind of thing. Now, I have some questions, and I tried to find a definition of like, what is the most quintessential [00:10:30] middle class middle America? Like what politicians seem to think is the most relatable demographic group. And I found a study called Middletown, USA. Are you familiar with this?

Rebecca Lavoie: No. Okay. I love it. Okay.

Christina Phillips: So this this is a study that was carried out by this cultural anthropologist power couple, Robert and Helen Lynd, in the 20th century, and it examined the people, behavior, and economic conditions of a real city in the United States that they chose because it was, quote, as [00:11:00] representative as possible of contemporary American life. Now contemporary American life being the 1920s 30s 40s. When this study was really active, they called the city Middletown in the study. It is an actual city, and we're going to talk about that. They released their first results in 1925. Follow up results were in 1929. There were also results in the 1930s. And the takeaway was nothing really changes because there wasn't a huge difference in demographics, income level [00:11:30] behavior of people in this city in Middletown, USA.

Rebecca Lavoie: Despite the Great depression.

Christina Phillips: Yes.

Hannah McCarthy: Wow, wait, really?

Hannah McCarthy: There wasn't a shift in in income.

Christina Phillips: There wasn't a significant shift in lifestyle interests and not really an income, employment or what kind of employment you had.

Rebecca Lavoie: That rings true to me, actually. Perception. Not reality. Right? Yes.

Christina Phillips: Yeah, yeah. So the idea that like, nothing really changes. Okay. So there is a huge caveat to this study, which is when they were trying to decide [00:12:00] which city to choose, the lens intentionally picked a city that was nearly racially homogenous, that is mostly white, and they focused only on the change of that white population over time. So all of the results of this study are based on the white population. And in my notes, I literally wrote, well, maybe this isn't the average town then, but, you know, I digress.

Hannah McCarthy: Well, you said that they were trying to pick the city most representative of contemporary American life, and they picked one. That's a far cry [00:12:30] from representative of contemporary American life.

Christina Phillips: Yeah, yeah. And even in the 1920s, like, there's no excuse for it.

Nick Capodice: Well, this study came out like shortly after we banned pretty much all immigration to the United States like, this was a time when we were practicing eugenics in the United States before Hitler did it a little bit later. Like, this is this is a this is a bad dark period in American history.

Christina Phillips: So this first question is, what is the city? [00:13:00] What I'm going to do is I'm going to read some facts about this city. And when you have a guess, shout it out. Okay. Okay. All right. Number one, this is not a state capital. The name of the state the city is in starts with I.

Rebecca Lavoie: Chicago.

Christina Phillips: No. Uh.

Christina Phillips: Um, the capital of this state that the city is in has the name of the state in it.

Rebecca Lavoie: And it was.

Nick Capodice: Stated in Indiana.

Rebecca Lavoie: Yeah. Yes. Is it South Bend?

Christina Phillips: No.

Rebecca Lavoie: Ah. [00:13:30]

Christina Phillips: The city gained the nickname Little Chicago during the prohibition era because it was a hideout for organized crime bosses.

Nick Capodice: Oh, I know this.

Nick Capodice: I was born so close to there. Is it Gary, Indiana? No, not Louisiana, Paris, France, New York or Rome. Okay. I'm still thinking.

Christina Phillips: The city was the location of an encounter with a UFO in a Steven Spielberg movie.

Nick Capodice: It’s got to be Close Encounters…

Nick Capodice: Is it Muncie?

Christina Phillips: It's Muncie.

Christina Phillips: And Muncie. A Muncie gal. Can you beat.

Nick Capodice: That? Have you ever seen. Have you guys ever seen, uh, The Hudsucker Proxy, the Coen brothers film?

Rebecca Lavoie: No.

Christina Phillips: But I do know a lot of films and television shows that are trying to approximate this, like, middle America. Vibe chose Muncie in part because it was like the Middletown study made Muncie. It put it on the map, kind of as like if you're looking for like the corn fed American town, right? Muncie [00:14:30] is it. So the two other facts I have is Bob Ross filmed the Joy of painting in the local PBS studio there, and the city Pawnee in the show. Parks and Recreation was inspired by this city. Wow. So we're talking about Muncie Indiana.

Nick Capodice: Go Eagles. So Eagles is their team.

Christina Phillips: Okay so Nick that's one for you. Okay. So this next set of questions are going to be about the results of the Middletown study from 1925. This is going to be Price is Right style. So I'll get a guess from each of you. The closest without going over wins. Oh. All right. All right. [00:15:00] This study organized people into two classes working class and business class. Working class built things and did manual labor. The business class was defined as people who worked with people, business owners, lawyers, physicians, clergymen, teachers. It also there was a definition that they had to get additional education or training, which I don't love that because like, I'm pretty sure that people who do manual labor also need to get additional training, but they've defined it that way. So the first question is, what percentage of the population in [00:15:30] Middletown of this study were considered working class?

Hannah McCarthy: I'm going to say 38%.

Christina Phillips: Okay. Nick, do you have a guess?

Nick Capodice: All right. Working class I'm going to say 67.

Rebecca Lavoie: Mhm. I was going to be much closer to that too. I'm going to say go one less. I'm going to make it tight. You ready. 74.

Christina Phillips: Whoa. It's 70.

Christina Phillips: You just went over 70%.

Hannah McCarthy: I mean I should because what does it take to run a city? People who make the city, right? Yeah, [00:16:00] yeah yeah, yeah.

Christina Phillips: So that one is one point for Nick. Okay. The next question, what percentage of the working class. So 70% of the community surveyed was not part of a union.

Nick Capodice: So this is the 1920s. Yeah. So it's after I'm just I'm just thinking out loud. It's after the Triangle Shirtwaist fire. Unions are starting to get big. What percentage is not in a union or isn't a union is.

Christina Phillips: Not in a union.

Nick Capodice: I'm going to say 20%. [00:16:30]

Christina Phillips: All right, Rebecca, do you have a guess?

Rebecca Lavoie: I'm going to say 45%.

Speaker9: Okay. Hannah.

Hannah McCarthy: Okay. Uh, Nick, you said 20%. I said 20. We're not in a union. We're not in a union. 50%.

Christina Phillips: 100%.

Nick Capodice: Oh, none of them were in a union.

Christina Phillips: Unions have been driven entirely out of Muncie at the time of the study, which I think is funny, that they're like, this is representative of America, right? And I think you had the highest number, right?

Hannah McCarthy: 50. Yeah.

Christina Phillips: So you get that one.

Nick Capodice: Well done. Yeah.

Hannah McCarthy: For [00:17:00] your one point.

Christina Phillips: What percentage of the population studied lived in a nuclear family. So this is defined as two parents and some children.

Rebecca Lavoie: I'm going to say 85%. Okay.

Hannah McCarthy: I'm going to say 80%.

Christina Phillips: Okay. Wow. Nick.

Nick Capodice: Also, who's not a nuclear family? I'm thinking like grandparents. You know who you know, the kids have moved out or, you know, single men and women. Uh, but Muncie, you said 85.

Rebecca Lavoie: I said 85. You said.

Nick Capodice: 80. [00:17:30] I'm going for broke. I'm going 90%.

Christina Phillips: It's 86. So Rebecca was basically right. Rebecca there. Yeah. Okay, so a couple of other facts about Muncie at this time. The elite class, which was a subgroup of the business class that held government positions, it was entirely Republican.

Rebecca Lavoie: Did airlines like, just steal this terminology for their seating, like straight from the study?

Nick Capodice: Oh my goodness.

Rebecca Lavoie: It's incredible.

Hannah McCarthy: I was thinking the same thing.

Rebecca Lavoie: It's like their point system just came right from this.

Christina Phillips: Yeah, yeah. [00:18:00]

Christina Phillips: So that is Middletown, USA, aka Muncie, Indiana. Wow. Nick, you have two points. Hannah. You have one point. Rebecca. You have one point. Okay, off we go. This [00:18:30] next set of questions is called the Goodfella, and it is about how candidates have attempted to appeal to voters by making themselves seem more relatable. And in doing so, I think they're pretty revealing, intentionally or not, about what they actually think is relatable. Um, to quote the character Henry Hill in Goodfellas, who ran with the Lucchese crime family right after I got here, I ordered some spaghetti with [00:19:00] marinara sauce, and I got egg noodles and ketchup. I'm an average nobody. Okay, so this is actually based on an email from a listener named Haley. So here's what Haley says. I am so tired of candidates referring to the price of gas and eggs specifically.

Nick Capodice: What's interesting, I started carrying in my pocket a little laminated sheet of the price of crude oil around the world, and then the price of gas mirrored over that. And it's exactly the same thing. So, you know, why aren't we getting mad at the president of, you know, Uganda anywhere in the world? Yeah.

Christina Phillips: I [00:19:30] think it's interesting that presidents love to talk about the price of gas as a campaign like stump thing. When your episode is demonstrated, they do not control the price of gas.

Nick Capodice: But they have nothing whatsoever to do with the price of gas.

Christina Phillips: But they know that we think they do.

Archive: More Americans are working, more have health insurance, incomes are rising, poverty is falling, and gas is $2 a gallon.

Archive: I didn't even I. [00:20:00]Thank you for reminding me. Thanks, Obama.

Christina Phillips: Okay, so what I'm going to do is I'm going to read you excerpts from some speeches from people who were eventually elected president. So these are all former presidents and the first person to guess who the president is wins. Okay. So here is the first speech excerpt where I grew up, the town motto was the sky's the limit. And we believed it. There was a restless energy, a basic conviction that with hard work, [00:20:30] anybody could succeed. And everybody deserved a chance. There were dry wells and sandstorms to keep you humble, lifelong friends to take your side, and churches to remind us that every soul is equal in value and equal in need.

Hannah McCarthy: George H.W. Bush.

Christina Phillips: It's not. This president attended Yale and Harvard.

Rebecca Lavoie: George W Bush. Yes it is.

Hannah McCarthy: Oh come on. Technically, they're talking about the same place.

Christina Phillips: Yeah, this [00:21:00] is true. This is true. Yeah. So this is him accepting his presidential nomination at the RNC in 2000. And yeah, as we've said, he's he's the son of a former president. I mean, come on. And also, he attended Phillips Andover in Massachusetts. He went to Yale. He went to Harvard. He started his own oil business in Texas. I don't know, those wells.

Hannah McCarthy: Didn't run dry that. Much.

Christina Phillips: Okay. So that is George Bush trying to appeal to the Americans. All right. The next one. I used to milk cows by hand. I used to plow with a [00:21:30] four horse team instead of a tractor. I used to sow wheat with a drill that had only 12 hoes on it, and I used to cut wheat with a binder that cut eight feet wide. So this is a Democratic president who was born in the 19th century. This president also served as vice president. And this president was one of the architects of NATO.

Nick Capodice: Truman.

Christina Phillips: Yes.

Christina Phillips: Truman was one of the least wealthy presidents in history. So, you know, relating to people in [00:22:00] that way, I think he probably could do it better than a lot of other presidents. But one thing I thought was interesting was that Congress increased the presidential salary while he was in office from 75,000 to 100,000, and also gave the president $50,000 in tax free money. And these inflation calculators that we always see are never accurate, but it's about a salary of $1.2 million today. Do you know the current salary of our president right now?

Rebecca Lavoie: Isn't it 250 thousand or [00:22:30] 75?

Christina Phillips: $400,000 oh.

Rebecca Lavoie: Oh wow. Wow.

Rebecca Lavoie: Big inflation.

Christina Phillips: He is one of those presidents that gained a lot from being a president. Like he walked away from it in a really good position. So here's the next speech. If you can stretch your imaginations back this far. My own college days happen to fall during the Great Depression. I had to work my way through college. As a matter of fact, I had one of the best jobs I've ever had while I was doing [00:23:00] that washing dishes in the girls dormitory. But seriously, those were days when announcements telling people not to leave home looking for work because there was none were made on the radio. Well, when I got my diploma, unemployment was around 25%. Yet here we are, just a half century later, and we Americans are enjoying a standard of living Undreamt of when I was your age.

Nick Capodice: Who would make.

Nick Capodice: A little funny joke about the, you know, washing dishes in a place surrounded by ladies. I'm gonna guess Jimmy Carter. It's not Jimmy. [00:23:30]

Rebecca Lavoie: No. Darn it! It was too. He was too young. Too young? Yeah. Yeah. Because he was actually born after Kennedy. Okay.

Christina Phillips: So here's a hint. Worked as a sports broadcaster. This president also served as the president of the Screen Actors Guild.

Rebecca Lavoie: Ronald Reagan. Reagan. Yeah.

Christina Phillips: Rebecca. You snuck it in there. This was from remarks to students and faculty at Purdue in Indiana in 1987. It was also something he told the story about at a student Q&A in Kansas in 1983. A student Q&A at a high school in Illinois in 1984, and at a fundraiser in Eureka [00:24:00] College in 1986. So, like Kate accused Lizzie of being an out for repeater on the iconic Disney Channel show Lizzie McGuire. I accuse Ronald Reagan of being a speech repeater, which is actually something a lot of candidates do all the time.

Christina Phillips: Yeah. Well, I think it's funny.

Nick Capodice: Like, there's a lot of great videos of Reagan telling America Russia jokes on YouTube, which he had a really good joke delivery.

Rebecca Lavoie: Yeah. He was an.

Nick Capodice: Actor. Nobody tells. Yeah, but nobody tells jokes anymore. And he would just tell funny political jokes. I just missed that.

Archive: The story was an American and a Russian arguing about their two countries. And the Americans [00:24:30] said, look, in my country, I can walk into the Oval Office. I can pound the president's desk and say, Mr. President, I don't like the way you're running our country. And the Russian said, I can do that. The American said, you can. He says, yes, I can go into the Kremlin, to the general secretary's office, pound his desk and say, Mr. General Secretary, I don't like the way President Reagan's running his country.

Christina Phillips: So the score right now is Rebecca has three, Nick has three, and Hannah [00:25:00] has one. Yep.

Rebecca Lavoie: All right. Next two days everybody. Yeah.

Christina Phillips: This category is called again America great make. Which is just make America Great Again in alphabetical order.

Christina Phillips: I will be here all night.

Christina Phillips: This is not for points. But which president? Before Trump made that slogan famous? [00:25:30]

Nick Capodice: This is the Gipper. Ronald Reagan, right?

Christina Phillips: Yes, yes. This was in his Republican nomination acceptance speech in 1980. It was also used by Bill Clinton in speeches in 1992, and of course, Donald Trump in the 2016 and 2020 and now 2024 presidential election.

Archive: We will make America proud again. We will make America safe again. And we will make [00:26:00] America great again. Thank you. Ohio.

Archive: Thank you. Thank you.

Christina Phillips: A lot of listeners asked us to talk about this. So I've got a category that's basically about what does Trump think is the greatest time in America when he says Make America great again. When is he talking about? We actually have an answer from an interview he gave in 2022 to the New York Times. Does anyone have a guess.

Hannah McCarthy: When he thought the greatest [00:26:30] era in America was, yeah, like just after World War two?

Nick Capodice: Yeah. The 50s.

Christina Phillips: Yeah. So he said that it was after World War II was one that was the first period and.

Rebecca Lavoie: Then the 80s, not.

Christina Phillips: The 80s. He said the turn of the 20th century, which Trump said was when, quote, the machine of entrepreneurship was built.

Hannah McCarthy: The entrance into the 20th century.

Christina Phillips: Yeah, yeah.

Hannah McCarthy: Like the Gilded Age.

Hannah McCarthy: The Gilded Age. So, like the height of poverty in cities, you mean? Yeah. You know, it was really bad [00:27:00] for a lot of people.

Nick Capodice: Black lung. Yeah, that was a tough time. Children falling into mills.

Hannah McCarthy: I should say. Height of poverty and height of wealth. Right. Yes, exactly. It was. This was like the same era that Jacob Riis published all of his photographs of what was actually happening while people were throwing balls and like.

Rebecca Lavoie: An age of great disparity.

Hannah McCarthy: Yes, yes. Great disparity.

Nick Capodice: Children throwing stick balls in how the other half lives and rich people throwing balls on Park Avenue.

Rebecca Lavoie: Yeah, it was like the pre-setting for Annie, right? Like, that's how I like to think.

Hannah McCarthy: Yeah, yeah.

Nick Capodice: That's good. Yeah.

Christina Phillips: Okay, so I have [00:27:30] a question for each of you about this turn of the century. So this era that President Trump thinks was one of the greatest. So, Hanna, first question for you in 1900, this titan of the oil industry and the namesake of an oyster dish with breadcrumbs and spinach controlled more than 90% of the nation's oil refineries. Who is it?

Hannah McCarthy: This is not my wheelhouse.

Christina Phillips: Oyster dish with breadcrumbs.

Hannah McCarthy: Yeah, I don't eat shellfish. Oh, God.

Rebecca Lavoie: Okay.

Hannah McCarthy: I might be an East coaster, but. Okay. Yeah, [00:28:00] I know, sorry, guys.

Rebecca Lavoie: Oh, my God.

Nick Capodice: It's a it's a person who's mentioned in one of the greatest songs ever written, sung by Taco Bell and Fred Astaire. Puttin on the Ritz. Also in Young Frankenstein.

Hannah McCarthy: Rockefeller. Yeah. Yes. It's Rockefeller. Oh, okay.

Christina Phillips: Let me give you that.

Hannah McCarthy: Okay. Thank you.

Christina Phillips: Um, Nick, next question for you. This board game allows you to, quote, gossip with other passengers, receive telegrams and collect all five pieces of your personal property to advance from the second class to the first class section of the ship. But watch out, you might get put back in third class or worse [00:28:30] yet, never make it to your lifeboat in time.

Nick Capodice: Oh my gosh. So there is a board game called Titanic. There is. Oh my gosh, when was it made?

Christina Phillips: It was made in 1998 by an uncredited designer. It says it uses the similar system to escape from Colditz. I don't know if you know what that means.

Nick Capodice: I do know escape from Colditz.

Christina Phillips: So you must collect necessary items to make it to a lifeboat before the Titanic sinks. There's also a game that was created in 2022 called deckchairs on the Titanic, where you compete [00:29:00] to earn tips from happy customers whilst the ship sinks. Which, ooh, dark.

Hannah McCarthy: Yeah, yeah.

Nick Capodice: That's a game I would play.

Rebecca Lavoie: Have you seen a Kamala Harris tip that she gave a child for speaking in public? The tip is, if you have a fear of public speaking, think of yourself as being somebody on the Titanic who knows that it's sinking and you are the only person who has that information, and you must convey it because you have the knowledge. So when you're talking to people, even if you're afraid, remember there's something that you know that they don't that you have to tell them. [00:29:30]

Archive: Are you going to worry about how you look.

Archive: And how you sound? No, no, because the thing that's most important is that everyone knows what you know, because.

Archive: They need to know what you know. You see what I'm saying?

Rebecca Lavoie: So I like that a lot. Decent tip. I mean.

Hannah McCarthy: Ideally, you're not like, screaming it. No, I was going to.

Christina Phillips: Say I don't think that I would be a good public speaker if I saw that iceberg.

Nick Capodice: Congratulations on your commencement. Oh, Jesus.

Nick Capodice: I took the road less traveled [00:30:00] by.

Hannah McCarthy: Made all the difference.

Rebecca Lavoie: It was inside myself all along.

Christina Phillips: Okay, Rebecca. This question is for you. At the 1893 World's Fair in Chicago, which showcased marvelous inventions such as the zipper, the Ferris wheel, and Cracker Jacks, it was also the location of a three story mortar hotel for a serial killer [00:30:30] who confessed to killing 27 people. What's the name of the serial killer?

Rebecca Lavoie: Oh, it was the basis of the book devil in the White City.

Nick Capodice: Ah, the last name Rebecca of the serial killer is shared by someone called the greatest fictional detective in the world.

Christina Phillips: Mhm.

Rebecca Lavoie: Oh, is it Holmes? I don't know.

Christina Phillips: H.H. Holmes.

Christina Phillips: And by the way, he's from New Hampshire originally. Great. Wonderful. Find out in the devil in the White City. You will not hear about him for like the first like five chapters. Just get ready. You're going to read a lot about the elevator.

Hannah McCarthy: Teased. It's been teased that girls are disappearing and young men are disappearing. [00:31:00] And so I know something's about to happen.

Christina Phillips: That book is really about the World's Fair and about architecture, which is why I love it. Okay, so the score is four. Rebecca. Four. Nick two. Hannah. All right. By the way, a 2016 New York Times study asked Americans what they thought the greatest era of America was, and they chose before 9/11. That was the era that was chosen.

Rebecca Lavoie: All of that time.

Christina Phillips: Before 9/11. And now we're going to take a quick break. And when we come back, we will talk about elites. [00:31:30] We're back.

Christina Phillips: This is Civics 101. We are doing civics trivia, all about the words that politicians say during a campaign cycle. Right now we're going to move on to something we hear all the [00:32:00] time, and we have an email from a listener about this. And that is the term elites. Elites, the umbrella term. Okay. So here is an email from Josie. Hi Civics 101 team, I saw your most recent emails that you're looking for campaign trail tropes. So I asked my family for suggestions and this is what we came up with. Coastal elites, blah blah blah economy from the bottom up and the middle out. The American people. Extremism. Grassroots. Woke parent [00:32:30] rights. Thanks so much for making Civics 101. All the episodes are really interesting, and it's useful to be able to listen to old episodes about court cases or important documents that I need to know for my AP government class. Josie 15 years Arlington, mass. Thank you so.

Hannah McCarthy: Much. Thank you Josie. Thank you.

Christina Phillips: Yes, I if it's okay with you, Josie would like to take Coastal Elites and broaden it out to just elites, if that's all right, because I think coastal elites are part of that. But elites as a term is interesting because it's been used by [00:33:00] different politicians from different parties over time. We've got, of course, the coastal elites. We've also got the Washington elites, the corporate elites, and then just generally accusations of elitism. The key here is that elite is used as a criticism, which is interesting from a language perspective, because if you think of describing like an athlete or a product as elite, it's a good thing. The elite five blade shaving tool. But when somebody is called elite, it's a bad thing.

Hannah McCarthy: To my understanding. So I grew up just south of Boston. [00:33:30] I went to high school in Boston. I went to college in Vermont in a school that's just like kids sitting around talking about philosophy and dancing.

Rebecca Lavoie: It's elite.

Hannah McCarthy: Right? It's elite. And then. And then I got a second degree in New York City and like. And yet at the same time, like, my car broke down two days ago, and like, I don't have enough money to fix it, right?

Hannah McCarthy: So it's been broken down since I've known you.

Hannah McCarthy: I've been driving a rickety old Honda Civic. Is being an elite an ideological [00:34:00] thing? Is it presumed that given these experiences in life, I feel certain ways about the world? Yes. Because it's like my bank account is not elite.

Rebecca Lavoie: What I hear when I hear this word, and I remember it sort of coming into fashion, Is. I mean, in my lifetime, when I remember coming to fashion, it sort of presumes people who think they're smarter than you. Christina, I'm pointing at you like you're the avatar for, like, the audience for whom this is intended. Right. Like, I am the politician. And the elites believe that they know what's best for [00:34:30] you. But you are not like that. You are regular. Like you are just a person who may or may not go to college. And that's okay. You are just a person who may or may not have read this or done that or you know. And it's like, and that's okay, because we're just regular folk. We're not the elite. But that's what evokes for me.

Nick Capodice: For me, it's interesting, just in the last 20 years or so of hearing the term sort of bandied about, it's that it's usually people who are exceptionally wealthy.

Rebecca Lavoie: And who went to Ivy League schools.

Nick Capodice: Who went to Ivy [00:35:00] League schools because their father did and because their father did. You know, and these accusations of elitism are always sort of anti-intellectual. It's felt to me, as opposed to don't pay attention to the fact that I am literally one of the richest Americans in the country. It always kind of smacked funny to me.

Christina Phillips: Yeah, it's interesting, like as you each have reacted to it, it's sort of like building on this like thesis of elite that I found from a book that was written that was sort of building on this definition of elite that I found that is seen as maybe a seminal definition from [00:35:30] a book called The Power Elite by an American sociologist called C.wright Mills. He wrote this book in 1965, and he wrote it specifically to critique a certain group of people who held a lot of power and wealth. So, Hannah, to your point, like, am I considered part of the elite? To some people, yes. I lived on the coast. I got multiple degrees. And then also the way that politicians talk about elites, even if they are one to the American people to kind of say, like, you shouldn't trust these people because they're not like you. But [00:36:00] then also the people who are using this phrase elite are often part of one elite category, and they're speaking about other people in this elite category. They're using a term that sort of describes themselves.

Rebecca Lavoie: It cuts both ways, right? Because Elizabeth Warren uses it about corporate America. She's a Harvard professor, right? She can be called an elite by the people who look at the intellectual class as elites. And she's using the term to describe, you know, the business minds who think that they know what's best for you [00:36:30] and need to be like anti-monopolist or whatever. So it's very interesting.

Christina Phillips: Yeah. So I'm going to read a quote from Mills when he defines this group. He said the most impersonal problems of the largest and most important institutions are fuzed with the sentiments and worries of small, closed, intimate groups. In such circles, adolescent boys and girls are exposed to the table conversations of decision makers and thus have bred into them the informal skills and pretensions of [00:37:00] decision makers. Without conscious effort, they absorb the aspiration to be, if not the conviction that they are the ones who decide. And he said that there are certain categories that the elites are. They run big corporations. They run the machinery of the state and claim its prerogatives. They direct the military establishment and most importantly, they do not see themselves as elites. Wow. So [00:37:30] I have a very dumb trivia about things that have been called elite and things that politicians have done that have been considered elite. Okay. So I'm going to go around you each will get a question. So Hannah, you first you have to identify this elite object or behavior. Okay. Okay. This peppery tasting green has its origins in the Mediterranean. When I googled the recipe using [00:38:00] this ingredient, the first result was from the New York Times cooking website with over a thousand reviews. It's blanc salad with parmesan arugula. Yes, this is arugula. Now, do you remember which politician was called elite for eating arugula?

Hannah McCarthy: I remember that quote unquote insult, but I don't I don't remember...

Nick Capodice: Were they called arugula munching, Chardonnay sipping? Is it like Al Gore?

Christina Phillips: It's actually a politician who, like, talked about arugula in a speech and [00:38:30] everybody jumped on it. Former President Obama, he once said on the campaign trail, anyone gone into Whole Foods lately and seen what they charge for arugula and the culture lost it. It was called arugula gate.

Rebecca Lavoie: To be fair, a lot of people don't go to Whole Foods to check out the price of anything because, yeah.

Nick Capodice: There goes our Whole Foods sponsor.

Christina Phillips: Yeah. Sorry. He was trying to appeal to this idea of expensive food prices that maybe the president can or cannot control, and he just failed.

Rebecca Lavoie: Perhaps Whole Foods is not the best example. [00:39:00]

Nick Capodice: Okay. He was the president. Couldn't he have lowered the price of arugula?

Speaker9: Just kidding. Getting it.

Hannah McCarthy: Also, the president's not going shopping. That's the other thing that's hilarious about that.

Rebecca Lavoie: They don't carry money.

Christina Phillips: So Nick, this question is for you. Identify the elite object or behavior. This thing was first used on a ten pack of Wrigley's chewing gum in 1974. [00:39:30] It can be used by an employee to speed up transactions, or by people like me, who want to avoid those same employees because they are afraid of being judged in the grocery store line.

Nick Capodice: I think it's the barcode that you scan the UPC code?

Christina Phillips: Yes the grocery store scanner.

Nick Capodice: Did you know that in Norway the boats have UPC codes on the side?

Christina Phillips: That's really smart.

Nick Capodice: So that when you go out you can skandinavian.

Christina Phillips: Oh no, oh no, I fell for your joke.

Hannah McCarthy: Poor Christina. Wow. That's a really good idea. [00:40:00]

Christina Phillips: Okay, so do we know which president was accused of not knowing what a grocery store scanner was or how to use one, and that that was elitist?

Nick Capodice: I have a guess on this. I remember because I was in debate club in eighth grade, and we were fighting about whether or not a president should know how to scan something in. I think it might have been George H.W. Bush. Yeah, it is.

Christina Phillips: So to be fair, he was not actually grocery shopping when this happened. He was at a grocery store [00:40:30] convention in Florida, and he just seemed really impressed by the scanner. And so one New York Times headline was Bush Encounters the Supermarket comma amazed.

Christina Phillips: All right.

Christina Phillips: Rebecca, this is for you. Most often used by mechanics, soccer player Lionel Messi also had one in his apartment building so he could step right out of his car and straight into his living room.

Rebecca Lavoie: Is this a car lift? [00:41:00] Like a jack? Yeah, it's.

Christina Phillips: A car elevator.

Hannah McCarthy: Wow. Yeah.

Christina Phillips: So which presidential candidate was accused of being elitist because he wanted to install one in his house?

Rebecca Lavoie: Mitt Romney?

Christina Phillips: Yes. Good job.

Rebecca Lavoie: Thank you. Thank you very much. I am a student. I am a student of Mitt Romney and Mitt Romney's entire thing, because I worked in the newsroom at NPR during that campaign. I remember all the stories that we get to publish on our website about the wealth, because Mitt Romney also has a huge compound [00:41:30] on Lake Winnipesaukee here in New Hampshire. There's a lot there's a lot of there there.

Christina Phillips: The one that I found, for example, was his beach house in La Jolla in San Diego. He wanted to install a car elevator. So one good headline from this was, what is a car elevator? And why does Mitt need one. From the Atlantic.

Christina Phillips: So there we go. Okay. Um, Rebecca, you have five points. Nick, you have five points. Hannah. You have three points. Okay. I think maybe Hannah. This this will be your category, but I might be wrong.

Hannah McCarthy: We'll see.

Christina Phillips: Okay, [00:42:00] so this last and final category, also about elites, is called the Undead Elites. In 2004, the Republican PAC club for growth took out an attack ad against Democrat Howard Dean, who was the former Governor of Vermont and a candidate in the 2004 presidential primary. And the ad accuses Dean of doing a bunch of things that are elitist, like it stands out in history as like one of the most interesting attack ads, I think. And so I'm going to go around and I'm going to ask [00:42:30] you each if this so-called elitism describes Howard Dean or the most famous and important millennial coastal vampire, Edward Cullen, famously played by Robert Pattinson in the greatest saga.

Hannah McCarthy: Yes.

Nick Capodice: Nice knowing you guys.

Christina Phillips: So that's this coastal vampire played by Robert Pattinson. The greatest saga of our generation, the Twilight Saga. When I tested this trivia with my boyfriend, he was like, you have to say who Edward Cullen is because people might not know. And I was like, I just made you watch all of the Twilight movies. [00:43:00] And he was like, but people might not know. So there you go. That's what we're talking about. Hannah? Yes. Is this an elitist trait of Howard Dean or of Edward Cullen, coastal vampire? Reading the New York Times.

Hannah McCarthy: I'm gonna say Edward Cullen.

Rebecca Lavoie: No, it's Howard Dean, right? He got accused of reading the New York Times.

Christina Phillips: He got accused of reading the New York Times.

Hannah McCarthy: He got accused of reading.

Christina Phillips: In this ad. This ad basically [00:43:30] says, like, Howard Dean You, blah blah, blah, blah, blah, blah, blah, blah, blah, elitist.

Christina Phillips: Ad, to my knowledge, and my deep reading and watching of all the Twilight things. I've never seen him read. He never references the New York Times.

Hannah McCarthy: Okay, okay.

Christina Phillips: Fair enough. Nick, is this an elitist trait of Howard Dean according to this attack ad, or is it a trait of cold and sparkly? Edward Cullen vegetarian.

Nick Capodice: Vegetarian. Now, is doctor Dean a vegetarian? Well, the vampire is not vegetarian if they drink blood. So I'm going to go with doctor Dane. No.

Nick Capodice: How [00:44:00] could a carnivorous undead creature who drinks the blood from living.

Rebecca Lavoie: To prevent himself from drinking the blood of living victims.

Christina Phillips: He only drinks animal blood Nick.

Nick Capodice: Oh, I didn't know that. He's like the Bunnicula of real people.

Christina Phillips: He calls himself a vegetarian. He says we're vegetarians.

Nick Capodice: Okay.

Christina Phillips: Because they only drink animal blood.

Christina Phillips: Well, none for you.

Nick Capodice: Just what you see on the side of the tin, I guess.

Christina Phillips: All right. Rebecca. Elitist Howard Dean or erudite Edward Cullen? Body [00:44:30] piercings.

Rebecca Lavoie: I was really hoping you were going to say something else. Um, Howard Dean.

Speaker9: It is Howard Dean.

Rebecca Lavoie: Earring right?

Christina Phillips: Um, okay, so here's the thing. I had to do a cursed Google image search for Howard Dean piercing, because I was trying to figure out none of his photos show a piercing of any kind. I was, like, zooming in on his ears to see if there were piercings in his lobes, but I could not find a single image where he had an ear piercing. But in this ad they claim that he has a body piercing. [00:45:00]

Rebecca Lavoie: Mhm.

Christina Phillips: So if you've seen it I tell you I'm just like zoom, zoom zoom in on pictures. I'm like I can't see a piercing. So I'm assuming he has one or they just are accusing him of having body piercings.

Rebecca Lavoie: Yeah. Maybe that's what that scream was about. Yeah.

Nick Capodice: We're going to Oregon and Michigan.

Christina Phillips: Uh, Hannah?

Hannah McCarthy: Yes.

Christina Phillips: Redemption.

Hannah McCarthy: I hope so.

Christina Phillips: Is this an elitist trait of Howard Dean or of Edward Cullen? Vegetarian vampire latte drinking?

Hannah McCarthy: I'm gonna say Howard Dean.

Christina Phillips: It is Howard Dean. [00:45:30]

Hannah McCarthy: Yeah, that one's too easy. I don't think vampires can consume food. It makes them sick, right?

Christina Phillips: Yeah, I mean, they they say it just tastes like dirt or ash or something.

Nick Capodice: Somebody especially like lactose, right?

Speaker9: Especially lactose.

Hannah McCarthy: Especially that.

Speaker9: Nick.

Christina Phillips: Howard Dean or Edward Cullen piano playing.

Nick Capodice: Oh, boy. Uh, well, I don't think I can't really see Howard Dean tickling the ivories, you know, because he would have made a song out of it if he had. If he had, I'm going to say Edward Cullen, the vampire. [00:46:00]

Christina Phillips: You are.

Christina Phillips: Correct. Nice job.

Nick Capodice: Well, they call me a Twilight expert, and that's why.

Christina Phillips: Okay. Rebecca.

Speaker9: Volvo driver Edward.

Christina Phillips: Cullen. Okay. This is actually a trick question. It's both. But I'm going to give you the point.

Rebecca Lavoie: Oh, Edward Cullen is famously a Volvo driver. And he's like, has that R type Volvo. And he's like super into it. And it made me think that like the author maybe had like just gotten a Volvo and she was super into it because like there's a lot of description of that car in those books - a lot.

Hannah McCarthy: There is a lot of car talk.

Rebecca Lavoie: Yes.

Rebecca Lavoie: Yeah. [00:46:30]

Christina Phillips: Big Volvo was really in on the Twilight Saga.

Hannah McCarthy: That was the only time I was like, this is so boring.

Christina Phillips: Yeah, I do when I - when I showed Ben all the Twilight movies, he was like, is that a Volvo? When he, like, does his, like famous turn to, like rescue her from the men because he read his.

Rebecca Lavoie: Volvo R type station wagon?

Christina Phillips: It's like it's a real sporty car, guys.

Rebecca Lavoie: So specific, so specific.

Christina Phillips: Okay, so here's the [00:47:00] full quote of this ad. Howard Dean should take his tax hiking, government expanding, latte drinking, sushi eating, Volvo driving, New York Times reading, body piercing, Hollywood loving left wing beep show back to Vermont, where it belongs. The beep is not a swear, but it's a pejorative word that I don't want to say.

Rebecca Lavoie: Oh, okay.

Christina Phillips: So we've reached the end of our trivia. Final score, Hannah. [00:47:30] Four points. Yeah, Nick. Six points. Rebecca seven points.

Nick Capodice: Oh, well done.

Rebecca Lavoie: Rebecca. I don't think I've ever won one of these. This is so exciting.

Nick Capodice: You did very well.

Nick Capodice: This is fantastic. What was your favorite part of you being so smart today?

Rebecca Lavoie: Edward Cullen driving a Volvo.

Rebecca Lavoie: I was like, oh, I was, I was I had my fingers crossed.

Speaker9: Yeah. Yeah.

Rebecca Lavoie: I was like, please, oh please oh please.

Hannah McCarthy: Oh. If you had said multiple degrees, that would have been a good one too. That's right.

Hannah McCarthy: Oh [00:48:00] yeah.

Christina Phillips: That's actually. Yeah, that is a good one.

Christina Phillips: Multiple high school degrees.

Christina Phillips: I can't believe. I can't believe they never go beyond high school in those movies.

Nick Capodice: Oh, can I tell a funny Howard Dean story? Please do. We started. Hannah and I started as co-hosts. Like, what, six years ago or something like that. And one of your first interviews, you were like, well, I'm doing one in presidential campaigns. It was Howard Dean's campaign. His campaign manager. And you were like, should I ask him about The Scream? And I was like, yeah. And then you asked the guy and he was like, do you think I'm not ready to talk about the scream?

Hannah McCarthy: Yeah. Yeah.

Nick Capodice: I'm talking about the scream [00:48:30] until I'm dead. I used to watch You're the Man Now dog videos of, like, heavy metal mash ups of that of The scream. Yeah. Yeah. I miss those days.

Rebecca Lavoie: Yeah. I like the goat mash up. You know the Taylor Swift goat one?

Hannah McCarthy: Oh, yeah. Oh, yeah. Yeah.

Nick Capodice: Trouble when you walked in?

Christina Phillips: Yeah.

Rebecca Lavoie: I will say, I cannot believe that the most gratifying thing for me to learn today is that we have not one, not two, but three Twilight experts working on this team. [00:49:00]

Speaker9: Sorry, Nick. That's all right. I mean, at least you can start anytime. Nick.

Rebecca Lavoie: That makes us elites, right?

Speaker9: I mean, we are elites. We are elites.

Christina Phillips: Unfortunately.

Rebecca Lavoie: Thanks so much, Christina.

Speaker9: All right. Thank you. Christina.

Christina Phillips: This episode was produced by me, Christina Phillips, and edited by our executive producer, Rebecca LaVoy. Music in this episode from Epidemic Sound [00:49:30] and Chris Zabriskie Civics 101 is a production of NPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

So Long, Chevron

The Chevron Doctrine, or Chevron Deference, was an established judicial principle. When the law was ambiguous, the courts would let the agency experts interpret it. After a Supreme Court case called Loper Bright v Raimondo, that is no longer the case. So what does that mean? What exactly has gone away? What happens next?

Our guides to the wonkiest of  the wonk are Robin Kundis Craig and Mustafa Santiago Ali.


Transcript

Hannah McCarthy: [00:00:02] Hi, Nick.

Nick Capodice: [00:00:03] Hello, Hannah.

Hannah McCarthy: [00:00:05] This is Civics 101. But today, Nick, we're going to dip a toe into 202.

Nick Capodice: [00:00:13] Oh, boy. All right.

Hannah McCarthy: [00:00:18] Today we are talking about something that is wonky. And by that, I mean it's actually about being wonky. As in preoccupied with [00:00:30] arcane details, especially arcane policy details.

Nick Capodice: [00:00:35] All right. Hannah. Oh.

Hannah McCarthy: [00:00:39] I think we are all going to come out of this one semi understanding something that a lot of us don't understand at all. And Nick, isn't that the point of this show?

Nick Capodice: [00:00:48] Yeah. Hannah. Fine.

Hannah McCarthy: [00:00:50] All right. Let's get to it.

Robin Kundis Craig: [00:00:56] Uh, hi. My name is Robin Kundis Craig. Greg. I am [00:01:00] the Robert H. Schroeder Distinguished Professor at the University of Kansas School of Law. I teach environmental law subjects and write about administrative law and climate change.

Hannah McCarthy: [00:01:16] I called Robin up to talk about something called the Chevron Doctrine. And the reason I wanted to talk about it is because the Supreme Court recently overturned it in a case called Loper Bright Enterprises [00:01:30] v Raimondo.

Nick Capodice: [00:01:32] You mentioned this one before on the episode on the Supreme Court docket. This is the case that's about fisheries.

Hannah McCarthy: [00:01:38] Yes, fisheries and federal regulation. But for the purposes of this episode, here is what I want you to keep in mind two basic principles. One, I.

Robin Kundis Craig: [00:01:50] Mean, there's no question that the courts have the basic authority to interpret statutes. Congress has statutes that's, you know, laid out in article three. It's recognized in the [00:02:00] Federal Administrative Procedure Act.

Hannah McCarthy: [00:02:02] Courts can interpret laws. That's pretty straightforward. All right. And two, the.

Robin Kundis Craig: [00:02:07] Issue that people worry about is the court's expertise. Because in some of these statutes, you're getting into some pretty technical issues.

Hannah McCarthy: [00:02:19] Judges are not experts of all agency minutiae. Now, this one is, I think, a little bit trickier, but on its face should seem [00:02:30] kind of clear. So the Chevron doctrine.

Robin Kundis Craig: [00:02:33] Okay, so the Chevron doctrine came in in a fairly early Clean Air Act case, Chevron versus NRDC.

Hannah McCarthy: [00:02:42] Okay, Nick, I think it is fairly common for the details of a Supreme Court case to feel a little obtuse. You get just below the surface and you find yourself in a sea of legal arcana. But with Chevron, the surface itself is, well, [00:03:00] listen for yourself.

Robin Kundis Craig: [00:03:01] And what was going on in that case was that the EPA had decided that the term stationary source, which is a defined term in the Clean Air Act, but it's defined ambiguously, particularly because it refers to both a facility and a emission source, like a smokestack. So the question was, what if you have a big facility [00:03:30] like a factory that has multiple smokestacks, do you count that as one stationary source, or do you count it as ten stationary sources? And so it was a matter of interpreting the statute to figure out what Congress would have wanted or whether it had left discretion to the EPA.

Nick Capodice: [00:03:51] When Robin says so, the question was, Does she mean? Like the question like this is the question before the Supreme [00:04:00] Court how to define smokestacks? Because when I think about the questions the court is answering, they tend to be a little more straightforward. Like, does the segregation of public education based solely on race violate the Equal Protection Clause of the 14th Amendment? That kind of thing? I can wrap my mind around that.

Hannah McCarthy: [00:04:19] Yeah, I think the trick with Chevron is not letting your eyes glaze over at the details of this case, because it is so inside baseball, which Nick [00:04:30] is actually the point. Congress passed a law that said that states needed a permit for something. The EPA, the Environmental Protection Agency, said, actually, we have a rule based on that law that says you don't. And so the Supreme Court had to decide whether the EPA was allowed to do that.

Nick Capodice: [00:04:52] So, in short, and correct me if I'm wrong here, they had to decide whether a federal agency was allowed to interpret [00:05:00] a federal law.

Hannah McCarthy: [00:05:02] So yeah, Congress says something and the EPA says this something means this. And then Scotus says, okay, EPA, you are allowed to do that. Congress was vague, and the EPA is within its rights to interpret the law that way.

Nick Capodice: [00:05:21] And that is the Chevron doctrine.

Robin Kundis Craig: [00:05:24] What the Supreme Court said in Chevron is that if Congress [00:05:30] has not spoken to an issue, or if it's actually ambiguous, when you try to apply the statute in place, which was the case in Chevron, again, a stationary source could be either the factory or the smokestack. Um, then what we're going to do is defer to the agency that's in charge of fulfilling that statute or in charge of implementing that statute.

Nick Capodice: [00:05:57] Defer to the agency [00:06:00] when Congress hasn't been specific about something.

Hannah McCarthy: [00:06:02] Yes. And we also call the Chevron doctrine the Chevron deference and that deference part that is coming from the judiciary. They are the ones deferring, like when an agency rule is challenged in a court, a court cannot swap out its own interpretation of a federal law for the agency's interpretation if that agency's interpretation seems reasonable. Now, this is law. [00:06:30] So it's a little more complicated than that. But that is the gist.

Robin Kundis Craig: [00:06:34] So the EPA, effectively, when Congress was being ambiguous, got to interpret the Clean Air Act to do what it thought made the most sense or was most logical or whatever.

Nick Capodice: [00:06:46] And we're talking about this because Chevron isn't actually a doctrine anymore, right?

Hannah McCarthy: [00:06:53] That's why.

Archival: [00:06:55] Carl. That's right. This is a sweeping decision by the Supreme Court to overturn what's called the Chevron [00:07:00] precedent here. The reason it's significant is because it has enormous implications for the administrative state in the United States of America and all federal agencies and their ability to interpret the law. What the Chevron precedent.

Robin Kundis Craig: [00:07:12] The problem that developed and that was addressed in Loper Bright is that meant that courts were basically ceding interpretive authority to agencies. And that's what finally led to the Loper bright decision. Now, there were a lot of connections in [00:07:30] between. I won't go into those details unless you want me to.

Hannah McCarthy: [00:07:33] So I think we can skirt around the conniptions for the most part. But here's another gist. Congress makes a law. Something shifts in the world, and that law was made before that shift. Like, I don't know, let's just say the climate changes or we have a global pandemic or something like that. What do you do?

Robin Kundis Craig: [00:07:55] So you get those kinds of issues where a problem Congress [00:08:00] was not thinking about could not have been thinking about because it didn't exist at the time, suddenly lands in the agency's lap and they have to decide, does the statute extend this far or not?

Nick Capodice: [00:08:12] Can I make this kind of silly for a sec?

Hannah McCarthy: [00:08:14] Hannah, please.

Nick Capodice: [00:08:16] All right. Okay. Congress passes a law that says horses must be protected. And then years later, we discover unicorns. And [00:08:30] it's like, oh, nuts. Is a unicorn a horse? Do unicorns fall under the Horse Protection Act? At what point is a horse not a horse anymore?

Hannah McCarthy: [00:08:43] Okay. Incredible. And Robin says the debate about such a question goes a little bit like this, except she used proteins as an example.

Robin Kundis Craig: [00:08:55] The Food and Drug Administration has to decide whether a compound [00:09:00] that has helpful properties is a biologic or a drug.

Hannah McCarthy: [00:09:08] The Horse Protection Agency has to decide whether a unicorn is a horse or something else. And that hinges on horse leanness.

Robin Kundis Craig: [00:09:18] That turns on whether it's a protein or not. Well, I mean, what does Congress know from proteins? Um, uh, so, you know, if you've got a string of amino acids, when does [00:09:30] it switch from being a string of amino acids to being a protein?

Nick Capodice: [00:09:34] When does it switch from horse to magic? Congress doesn't know.

Robin Kundis Craig: [00:09:41] The FDA has to make those kinds of calls. And, um, that actually is defining a term, but it requires some deeper understanding of medicine, of biochemistry, of what Congress [00:10:00] is trying to accomplish, of why we have a distinction between biologics and drugs in the first place.

Hannah McCarthy: [00:10:06] Leave it to the people who know animals versus mythology, Middle Ages, Renaissance writing, and the Bible. Okay. They are the ones equipped to decide when something is a horse and when it just looks like one, but is magic. There's a reason we make the distinction.

Robin Kundis Craig: [00:10:21] And so what people are worried about is when courts are faced with these issues that require some [00:10:30] real expertise there, in a litigation context, the way the American legal system works is each side puts on its own experts, and you have battles of the experts, which can make it sound like it's a fair choice for the court, which experts it wants to go with, and that's not always true. Another thing is that a one wing of the court has really gotten into, quote unquote, plain meaning interpretations [00:11:00] of statutory words, and not every statutory word should be interpreted by its plain meaning, because it is dealing with a technical subject, and it needs a more specialized definition.

Nick Capodice: [00:11:19] No rightly idea what that means, Hannah.

Hannah McCarthy: [00:11:22] All right. The example that Robin gave me was tomatoes. There was once a case about import taxes on vegetables. [00:11:30] Now, Nick, a tomato is a fruit.

Nick Capodice: [00:11:33] Oh. This one? Yeah. By definition, yes. A tomato is a fruit.

Hannah McCarthy: [00:11:38] But.

Nick Capodice: [00:11:39] But most people think and treat a tomato like a vegetable.

Robin Kundis Craig: [00:11:44] And so in that case, the court actually took what's called a purposive approach, looking at what Congress was trying to accomplish, looking at the purpose of the statute. And it said, look, most people in Congress, most people in the United States consider tomatoes [00:12:00] to be vegetables. Therefore they're subject to the import tax. Okay.

Nick Capodice: [00:12:04] So that's a plain meaning interpretation. Like, sure, you can dance around it and say that Congress didn't intend to include tomatoes in the vegetable tax, but come on. Of course they did.

Hannah McCarthy: [00:12:16] Yeah, but proteins are different. I mean, unicorns.

Robin Kundis Craig: [00:12:26] If you look up a simple definition of what a protein is, it'll say a string of [00:12:30] amino acids. Well, yeah. But then a biochemist will tell you, but it's got a fold and it's got to get complex and it's got to be doing something. And and that's the distinction the FDA made in that situation.

Nick Capodice: [00:12:43] A unicorn appears to be a horse with a horn, but actually in a unicorn, expert will tell you that their horn has to have healing properties. When it throws itself off a cliff to escape you, it has to land on that horn and survive, and [00:13:00] that they won't throw themselves off a cliff to escape a virgin.

Hannah McCarthy: [00:13:03] We're not talking about fruit here. We're talking about the distinction between a horse and all of our wildest dreams coming true. One is higher stakes than the other. But what the Supreme Court did in the Loper Bright case is, say, you know what the.

Robin Kundis Craig: [00:13:19] Logic of the Loper Bright decision is? We're not going to engage in Chevron deference because it's not in the APA, the Administrative Procedure Act.

Hannah McCarthy: [00:13:28] The APA says [00:13:30] that when an agency interprets a law and makes a rule, for example, yes, horses must be protected, but a unicorn is not a horse. You do not have to protect unicorns.

Nick Capodice: [00:13:43] Although, I mean, to be fair, you should.

Hannah McCarthy: [00:13:45] Yeah. No, you definitely should. But anyway, that rule can be reviewed by a court. And then that court shall decide, quote all relevant questions of law, interpret constitutional and statutory provisions, and determine [00:14:00] the meaning or applicability of the terms of an agency action.

Nick Capodice: [00:14:04] So a court could say, I don't know, looks kind of like a horse to me.

Hannah McCarthy: [00:14:10] But for the past 40 years, we had the Chevron deference, which required courts to defer to the agency interpretation when a law was ambiguous or left an administrative gap like the protect all Horses law does not say protect all equines. It says protect all horses. And [00:14:30] if the agency interprets that to mean not unicorns, Chevron would have meant, yep, the agency knows best.

Nick Capodice: [00:14:39] But Chevron is over. Now it.

Hannah McCarthy: [00:14:41] Is dunzo. And we're going to talk about what that might mean and what it might not very soon. But first, Nick and I are going to take a little break so that we can think about unicorns. Absolutely.

Nick Capodice: [00:14:52] And before we do that, just a quick reminder that Civics 101 is listener supported. And everything from our unicorn research, our in-depth [00:15:00] unicorn research to our microphones is possible because of you. If you want to join the beautiful community of Civics 101 supporters, you will be our unicorn and we will protect you. You can do that at our website civics101podcast.org.

Hannah McCarthy: [00:15:17] All. Right. We're back.

Hannah McCarthy: [00:15:27] We're talking about the end of the Chevron Doctrine [00:15:30] or deference, a 40 year judicial principle that told courts that they had to leave some things up to the experts. And before the break, I promised that we would try to understand what that means. Now that Chevron is over. We'll hear from Robin again in just a moment. But I want to introduce you to our second guest.

Mustafa Santiago Ali: [00:15:49] Well, I'm glad Robin went over it. I mean, I can go deep on the law, but most folks fall asleep. Um, so this.

Hannah McCarthy: [00:15:55] Is doctor Mustafa Santiago Ali. He's the executive vice president of the National [00:16:00] Wildlife Federation. He has also spent a lot of his life empowering civic voices in many, many communities. And we are going to have a whole other episode about that. But for the purposes of this episode, we talked to Mustafa in part because of his 24 years at the EPA. When I asked him about Chevron, he told me to consider the political climate when it was first established.

Mustafa Santiago Ali: [00:16:26] Yeah. So, you know, you got to understand the moment, right? That was the Reagan [00:16:30] administration. Uh, they were very focused on federal Agencies having the power to make decisions, but at that time they were wanting federal agencies to make decisions around deregulation, and that's why they were so supportive of the Chevron case.

Archival: [00:16:53] Anyone who's ever wrestled with a tax form, or had to make sense out of a complicated bureaucratic regulation knows how costly [00:17:00] and time consuming government overregulation can be. And that brings me back to regulation.

Nick Capodice: [00:17:06] Okay, so when the Chevron deference was established, the hope of the executive branch was that it would lead to deregulation, not more regulation.

Mustafa Santiago Ali: [00:17:16] They did not know that over the years, we would have a country that became more diverse, diverse in ideas, diverse in a number of other ways, and they would no longer have that power to be able to support [00:17:30] business and industry in the way that they saw fit, and that people would be demanding that our federal agencies continue to do a better job in protecting their lives. And that's why going all the way back and understanding those dynamics around the Chevron versus NRDC case is so important.

Hannah McCarthy: [00:17:48] Essentially, Mustafa sees Chevron as having been something that allowed federal agencies to do what they are ostensibly supposed to do protect people and make the country [00:18:00] a safer, healthier place.

Mustafa Santiago Ali: [00:18:02] Well, you know, I'm not old enough to have been there back then, but, you know, I did have the opportunity to have mentors who were there and who appreciated the fact that the expertise that individuals had garnered over years, not just in school, which is important, but also in real life experiences on the ground, being able to understand the laws that folks in Congress were making.

Nick Capodice: [00:18:29] So Mustafa [00:18:30] is saying that the agency experts have spent their whole career in and out of school, understanding the stuff that Congress passes laws about.

Hannah McCarthy: [00:18:38] Right. And Mustafa says that even Congress knows that it doesn't always, or even often really know what it is passing laws about.

Mustafa Santiago Ali: [00:18:48] And even they also said we don't have the expertise to know all the ins and outs, but we will rely on these federal agencies who do have the experience and expertise [00:19:00] to make sure that the regulations that we put in place are going to be the ones that are going to be beneficial to people. So over the years, people really appreciated being able to. One honor the oath that they took and to do the best job that they could, to make sure that the American public had the things that they needed to have safer and healthier lives.

Nick Capodice: [00:19:22] I do just want to jump in quickly here. Hannah, in all seriousness, in all of my years of us working on this show, often talking to people [00:19:30] who are either in federal agencies or used to be in federal agencies. This is definitely the case that they took an oath to well and faithfully discharge their duties. And they take it super seriously because, you know, civil servants were not handpicked as a presidential favor to somebody to just sit in a chair. They are qualified. They want to do their jobs as best as possible because they know who they're doing them for.

Hannah McCarthy: [00:19:56] I totally agree, I am always honestly quite moved [00:20:00] by the amount of good faith, effort and civil servants. Okay, so these civil servants lost a little bit of the judiciary's faith in them, right? Chevron is over.

Mustafa Santiago Ali: [00:20:12] Well, Justice Elena Kagan, she criticized the decision, arguing that it turns judges into de facto policymakers. And what she was really saying in that moment is that, you know, we may have experience in the law, but we do not have the experience of [00:20:30] a scientist, of a toxicologist. Of a biologist. Of a number of these folks who have spent their years in perfecting their craft and then understanding how they could utilize that. So she said, you know, it was never the intention for us to be able to take this power away from the agencies that have to do this work. So that's what she was speaking about in that moment, in her dissent.

Hannah McCarthy: [00:20:56] We actually have to talk about this dissent, Nick. It is not [00:21:00] often that a justice's dissent gets as much news coverage as this one did. Outlets described it as devastating, scathing, even blistering.

Nick Capodice: [00:21:11] Really like for this inside baseball case?

Hannah McCarthy: [00:21:15] Yes, really. Justice Kagan said, quote, as if it did not have enough on its plate. The majority turns itself into the country's administrative czar. She said, quote, a rule of judicial humility gives way to [00:21:30] a rule of judicial hubris. She quotes the Chevron opinion from 1984 which said, quote, judges are not experts in the field and are not part of either political branch of the government. And then she goes on to say, quote, those were the days when we knew what we are not.

Nick Capodice: [00:21:48] Justice Kagan is not pulling any punches there.

Hannah McCarthy: [00:21:52] One of her big points, Nick, was precedent matters in the world of law. It's called stare decisis, [00:22:00] relying on and respecting the rulings and opinions of past judges. Justice Kagan ends her dissent by saying, quote, my own defenses of stare decisis, my own dissents to this court's reversals of settled law by now fill a small volume. Once again, with respect, I dissent.

Nick Capodice: [00:22:23] So she used her dissent in part to say, I keep dissenting, and it's often for the same reason. [00:22:30] And oh, look, I have to do it again. Is it a stretch to say that she sounds tired?

Hannah McCarthy: [00:22:39] I mean, she does. She sounds fully exasperated. And I do think it's important to note, for those out there who don't read Scotus opinions regularly, they often end in something like, respectfully, I dissent. But in the past few sessions we have gotten sign offs. Like with sorrow, we dissent [00:23:00] or with fear for our democracy, I dissent. The justices really don't give interviews. They don't write op eds. This is the closest that we get to that. So that is what Kagan thinks. Here's what Mustafa thinks.

Mustafa Santiago Ali: [00:23:19] Well, I'm an optimist, right? But I'm also an optimist that deals with the reality of the situations that we find ourselves in. And we have made progress over the last 40 years [00:23:30] in relationship to environmental protection because we were able to regulate entities. You know, there was a time in our country when rivers were catching on fire, when in many cities you couldn't look up and see the sky because there was so much air pollution, smog that was there. Now, you said that there are some folks who appreciate the decision. That's true. There are some folks on the business and industry side, usually those who are in the fossil fuel world, but there are many others who have real [00:24:00] concerns with this. Why do they have those concerns? They have concerns because they like to have a stable playing field, if I can say it that way. They like consistency. And this breaks 40 years of consistency, which means it makes it much more difficult for them to plan and to actually have the utilization of their capital resources. So that's one side of the equation.

Nick Capodice: [00:24:25] A stable playing field. And that's an interesting way to put it, because it's [00:24:30] not like Mustafa is saying, you know, regulation is over or regulation is just going to be left up to the courts entirely. He's saying we had a way of doing things that worked well and this throws that off.

Hannah McCarthy: [00:24:44] Yeah, I think I actually asked both Robin and Mustafa, you know, basically like, is the sky falling from the perspective of these federal agencies? And as is so often the case, the sky is almost never falling because the country is a multi-layered and complicated [00:25:00] entity. But Mustafa did add this.

Mustafa Santiago Ali: [00:25:04] The other side of it is that this creates a chaos. There are going to be additional judicial actions that are going to happen. This also, most folks in business and industry and I work with a number of them over the years when I was at EPA. They also understand that this will slow processes down. And one of the things that they have always shared is that we want to have fairness in the decisions that are happening, but we also wanted [00:25:30] to expedite more quickly. So this also presents another set of challenges for those in business and industry. You have to remember, what came out 40 years ago didn't just set precedent for law in relationship to EPA. There were a number of other federal agencies that were also a part of the sets of actions that came out afterwards, that we are literally weakening the protections that the FDA and a number of other places.

Hannah McCarthy: [00:25:56] So we've talked quite a bit about the environment here, because that [00:26:00] is Mustafa's and Robin's area of expertise. But Chevron was cited in over 18,000 cases over the course of its life. There are a lot of federal agencies who have had their rules reviewed and accepted by the judiciary because of Chevron. Mustafa's worry is that the Loper bright decision Will just, generally speaking, make the whole system less efficient.

Mustafa Santiago Ali: [00:26:29] You've also [00:26:30] made it much more difficult for us to have timely sets of responses, because no longer does the agency make final judgments on things. It ends up the courts are the ones who do that. So it just creates this administrative burden. It creates additional cost, and it will probably frustrate many of the folks who are hoping that our federal agencies can be as efficient and effective as possible.

Hannah McCarthy: [00:27:06] And [00:27:00] to those who hear this episode and are thinking, all right, so the courts are in charge of what kinds of rules agencies get to make. Robin told me about this other form of deference that does still exist.

Robin Kundis Craig: [00:27:23] There always have been and always will be a lot of agency decisions that would not have raised [00:27:30] Chevron as an issue to begin with. Then what the court went at great lengths to say was that, hey, we're still going to allow what's known as Skidmore deference. And Skidmore deference means basically whatever the agency's interpreting, it's not formal enough that we're going to give it Chevron deference. But if the agency convinces us they're right, we'll go with the agency. So as [00:28:00] long as the court sticks with that and says, yeah, we will agree to to listen to the agency and, and be persuaded when they're being persuasive. Um, there is still a fair amount of deference room left for the agency.

Nick Capodice: [00:28:15] All right. Hold on a minute. There's basically, like a lesser chevron.

Hannah McCarthy: [00:28:18] There is kind of for now.

Robin Kundis Craig: [00:28:22] Now, why I'm phrasing that the way I'm phrasing it is, is the court made up Skidmore deference just like it made up Chevron [00:28:30] deference?

Hannah McCarthy: [00:28:30] Robin explained that, you know, the Supreme Court said there is the Administrative Procedure Act and Chevron is not in it.

Robin Kundis Craig: [00:28:38] Well, guess what, Skidmore deference isn't in the Administrative Procedure Act, either.

Nick Capodice: [00:28:43] Got it. It isn't impossible to imagine this other deference also going the way of the dodo.

Hannah McCarthy: [00:28:50] Robin did tell me that it would be very strange to not give an agency the chance to explain and defend their thinking, especially when they're being sued [00:29:00] and a judge does not have to use Chevron to say that an agency is allowed to do their thing.

Robin Kundis Craig: [00:29:06] For the lower courts, for the federal district courts, and particularly the federal courts of appeal, which decide way more cases than ever reach the Supreme Court. I think most judges, particularly in highly technical cases, are going to be interested in what the government's position actually is. There's still a general respect for [00:29:30] the federal government. One hopes continues that will lend them to at least listen, at least take seriously whatever it is that the federal agency is saying. If, as I suspect will happen, the majority of lower court judges, district court and court of appeals judges stick to business as usual. Basically, they're just not going to be saying Chevron.

Nick Capodice: [00:29:58] Is it possible, Hannah, [00:30:00] that getting rid of Chevron doesn't change much?

Hannah McCarthy: [00:30:04] It is possible, but it isn't likely. There are states around the country that don't like certain rules, and their chances of successfully challenging those rules just went up. That means more lawsuits against federal agencies. One other thing, Nick. The Administrative Procedure Act, the thing that Scotus based its loper bright decision on. It says that people [00:30:30] have six years to sue an agency over a new rule.

Nick Capodice: [00:30:34] Like the agency makes a rule and a state or a company or what have you has six years to challenge it. And if they don't challenge it in six years, they just can't do it, period. Yeah.

Hannah McCarthy: [00:30:46] Well, on July 1st, 2024, the Supreme Court issued a ruling that says that that six year statute of limitations begins when the plaintiff is quote unquote, injured, not when the agency [00:31:00] makes the rule.

Nick Capodice: [00:31:01] Now, what does that mean?

Hannah McCarthy: [00:31:02] That means that if I open a business selling cupcakes tomorrow, and a federal agency issued a rule about cupcake size in 1954, I am allowed to sue that agency over that rule because it limits how big my cupcakes can be, and I do not like that.

Nick Capodice: [00:31:19] Even though that rule is 70 years old, right?

Hannah McCarthy: [00:31:22] And I have six years to do it. In other words, there's really no such thing as a finalized [00:31:30] rule anymore.

Nick Capodice: [00:31:32] So way more lawsuits then.

Hannah McCarthy: [00:31:40] All of this brings me to a point here in this strange inside baseball of an episode, we've been talking a lot about what this means in terms of process and rules and regulations, but Mustafa brought it all back around to the human beings in those agencies. There was a time [00:32:00] when the courts prioritized what those people had to say, because it was assumed that they knew best. The end of Chevron is probably going to change that.

Mustafa Santiago Ali: [00:32:12] Well, I think the concern is that people feel undervalued. And, you know, almost on every job you want to help people to to know that they're honored and valued and keep morale high. Right. Um, and when you have these types of actions, it sends a message that [00:32:30] you're not as valuable and you're not as needed. And the level of expertise and intelligence that you bring, you know, that is not a priority in the process.

Nick Capodice: [00:32:41] Okay, Hannah, one last question for you about all this. Go for it. We are talking about agencies making rules. Those rules are based on laws. And Chevron said that when the law was unclear or ambiguous or what have you, the agency knows best. [00:33:00] So now that it's over, can Congress just make laws more specific, kind of do a little bit more heavy lifting? Is that the possible answer to this?

Mustafa Santiago Ali: [00:33:11] Again, I'm an optimist. So my answer is yes. But there are also some challenges, right? We now are going to have to have folks on Capitol Hill who are creating much narrower laws. And the problem is that, one, it's hard for people to get anything done on Capitol Hill. Right now, we're asking [00:33:30] folks in a very tough time to be able to create the new sets of actions that are going to be necessary to keep people protected, and that's just going to take work. So we just have to be very mindful of that.

Hannah McCarthy: [00:33:43] So narrower laws. Sure. A horse. And by that we do not mean a unicorn. And for now, and I do mean for now Congress has one other option.

Robin Kundis Craig: [00:33:57] You know, I think one of the important [00:34:00] things for people to understand is that the overruling of Chevron is not yet a constitutional decision. I expect it to be a constitutional decision about the next time where that distinction matters. But it's not yet a constitutional decision, which means technically, Congress still has something to say. So because the court [00:34:30] rested on the Administrative Procedure Act, Congress could go back and rewrite the Administrative Procedure Act to write Chevron back in. It could also put deference into various statutes when it really wants the agency expertise to be listened to. Now, like I said about the time Congress actually decides to do that is about the time I think the court will reach for article three of the [00:35:00] Constitution and make this constitutional ruling, which then Congress can't overrule. But for the moment, Congress could, if it wanted to really start tailing deference in various statutes? Because the Administrative Procedure Act is a default. If a specific statute says do something else, that specific statute governs.

Hannah McCarthy: [00:35:24] But of course, as many of us know, relying on Congress to take action is not always [00:35:30] the best course of action. So instead, I will leave you with this one last thought. It's from Mustafa, who pointed out that, you know, not just because of Chevron, but because of a lot of what's been going on at the Supreme Court. We're all paying a lot more attention.

Mustafa Santiago Ali: [00:35:49] We have a public that is now becoming more aware of how incredibly important it is to understand who our judges are, what they stand [00:36:00] for. And if we should be supporting them. Um, especially if they're elected judges or the individuals who will, you know, place those judges in those respective positions. So that gives me hope. Now, I know that we still have lots of education to do so folks can make the best decisions for themselves, but I'm seeing people starting to pay so much more attention. People stop me in [00:36:30] the airport. We'll have some questions about a number of issues, and this is one of those that, you know, five years ago, folks wouldn't have said, hey, but what do we do about the courts? So I think, you know, it's a beautiful evolutionary moment. I just wish that it also didn't come with the pain of many folks having to deal with these sets of actions that are going on.

Hannah McCarthy: [00:37:05] That [00:37:00] does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca LaVoy is our executive producer. We might have gone a bit above and beyond the basics on this one, but if you are looking for a little more 101in your life, Nick and I have a book. It's called A User's Guide to Democracy, and it's your pocket companion to living in this twisty, twirly nation of ours. You can find it wherever books are sold. [00:37:30] Music in this episode by Jay Vartan. Adeline. Park. Floors. Deuces. Staff and Karlin. Sugoi! Real heroes. Paper twins. Paisley. Pink. Dejana. Beigel and Jon Bjork. As always, you can get more Civics 101 at our website civics101podcast.org. Civics 101 is a production of NPR New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Go play a game.

Nick and Hannah both love board games. There I said it. So what are they doing in a Civics 101 episode? 

Well, from Student Council and Model UN to CIA intelligence acquisition scenarios, there is a fine line between games and simulation. We learn more about things when we pretend to do them. 

Today we talk to three designers about their civic-centric games; Tory Brown of Fort Circle Games discusses Votes for Women, Cole Wehrle of Wehrlegig Games breaks down John Company, and Non Breaking Space explains Cross Bronx Expressway, an upcoming game from GMT.


Transcript

Non Breaking Space: First of all, thank you. All over there at the table. This is a game that is obviously near and dear to my heart, and I like to just sort of be able to see other people, one learn it, see them, react to it and take in. I'm not sure if you have any background or any information about the Bronx prior to this, but I think that you hopefully will walk away with at least the interest and curiosity about like, oh, okay,

Nick Capodice: This is NB. NB stands for Non-breaking space. Who is explaining [00:00:30] their new board game, Cross Bronx Expressway? If you've heard of.

Non Breaking Space: The Cross Bronx Expressway, I apologize because you more than likely spent about an hour in traffic.

Nick Capodice: I'd heard, or rather I'd seen on discord that NB was demoing this game at the MIT Game Lab in Cambridge. It was at an event I desperately wanted to go to called Games Against Oppression, and the MIT Game Lab generously let me come in and see [00:01:00] it in action.

Non Breaking Space: The first way that everybody can lose the game is if the city goes bankrupt. And the way this.

Nick Capodice: And if you're curious what a game about city planning. Robert Moses eminent domain in the South Bronx from 1940 to 2000. Looks like. Just you wait and be, by the way, is anonymous. And to give full disclosure, this is an episode about board games and civics and game designers and a whole bunch of stuff. But I got to say, NBI is a friend of mine. Hanna's too. We've [00:01:30] played games with them in person on the internet. We talk about games all the time. So who are we and what are we doing here today? People who have listened to our show for a long time know a little bit about us personally. The things we're obsessed with.

Nick Capodice: The dolls we had as a child. Our favorite musicals. that Hannah played the cello and I [00:02:00] the harmonica. But if you met a friend of mine on the street and you were like, hey, what's that Nick guy all about? Eventually, after the Shakespeare and the Michael Caine impressions and the books about con artists, eventually board games would come up. But we're not like a memoir show. You're probably asking, what are board games doing in a civics 101 episode? Well, stick with me. Call me a Pollyanna. Call me a big hearted galoot with stars in his eyes. But [00:02:30] after months of madness, utter madness in the world of civics and politics, sometimes I feel that maybe, just maybe, board games could save us all. Or maybe that's too much. You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy

Nick Capodice: And today we are talking about civics in board games. Where are you at, by the way? Where are [00:03:00] you recording this?

Hannah McCarthy: Um, right now I am sitting in my childhood bedroom at my parents house in Braintree, Massachusetts.

Nick Capodice: Usually we record these things in studios, but today we decided to sort of do it wherever we were. I'm in my kitchen, which is why maybe it's a little bouncy. It's going to be a miracle if no leaf blower comes in like in this neighborhood.

Hannah McCarthy: It'll be a miracle if the cat doesn't knock at the door. She does this funny thing where she just kind of, like, slams into it. She's like.

Nick Capodice: All right, just to kick it off, Hannah, [00:03:30] everybody's thinking it. I'm just saying it. We both love board games. So first you tell me, why do you like games so much? Like, what do they do for you?

Hannah McCarthy: I think it's so it's a number of things. I think if I have to be really deeply honest with myself, um, I'm someone who's a little bit hyperactive And playing a board game feels like something is [00:04:00] matching my energy. The degree to which not all board games, but the degree to which it asks me to use parts of my brain that I don't always light up for a long time. Nick, I don't know if you remember when you and I would play board games. I might have been a little bit of a sore loser.

Nick Capodice: You were such a sore loser. Yeah, it would, like, end the night.

Hannah McCarthy: And I had never interrogated that part of myself. And over years and years and years of playing board games, I learned how to lose, [00:04:30] which I think is vital to civil discourse. Like, you have to know how to lose, and you also have to know how to handle sudden shifts in the conversation with grace and dynamism. And I think board games taught me that.

Nick Capodice: I have a bunch of reasons. As you know, I think everybody in the world should play games. And I'm going to tell everybody my deepest private reason at the end of the episode. But for a Civics 101 lens, [00:05:00] I'm going to give the morality play reason.

Hannah McCarthy: A morality play reason.

Nick Capodice: Morality play reason. You know what? Morality plays are, right?

Hannah McCarthy: Uh, yeah. I was a theater kid, Nick. Morality plays where, like, I think 15th century or something. And, um, it's the, like, devil and the angel on the shoulder. And these are these plays that, like, personify the virtues and the vices. And you've you've got someone who, like, follows this arc of, like, you know, being [00:05:30] dragged down by the vices and giving over to the vices. But then there's it's usually a redemption story as well. Like eventually, like, even if someone commits avarice, in the end they will choose like charity, right?

Nick Capodice: Yeah. Like the sins themselves would come up to you like avarice or wrath or lust would be like, you should do this. And then the angels are like, no, but I bring all this up, Hannah, because there's a book I once read called Morality Play by Barry Unsworth. And here's a 30 second summary of this book. And I think about [00:06:00] this every day. So there's a troupe of actors and they're touring medieval England and they're doing morality plays, and they visit a town where a murder just happened. Now, a person had already been found guilty of a murder. This person was arrested. And the theater troupe, to make a little extra money, can't really get the butts on the seats. They decide to do a staged production of the murder. So when they're rehearsing, though, because they were playing the characters involved in the murder, [00:06:30] they realize something. And what they realized was that it wasn't possible.

Hannah McCarthy: Wait, like what wasn't possible?

Nick Capodice: Any of it! The person that the town arrested couldn't have done it. None of it added up. They were wearing the wrong clothes for the season. They couldn't have held the knife in the hand. They said they did. The police arrested the wrong person. And here's the point. When you inhabit someone else, when you pretend to be doing something, [00:07:00] you have a far different understanding of it than if you just like, read a book about it.

Hannah McCarthy: So it sounds like you're saying that when you're playing a game, because we are talking about games here. And, you know, maybe for our show, playing a game that explores some sort of civic process, um, it maybe unlocks a new understanding of that process because you're actually participating in something. This is my big civics thing, Nick. It's like you don't get lead laws unless the president's dog dies from eating [00:07:30] lead. Like you have to experience something to feel empathy and to understand it.

Nick Capodice: Absolutely Hannah. Students do simulation all the time. Student council, model UN, driving simulators. The CIA does this too. The Army does this

Archival: What's called a warfighter exercise. It is the first part of the brigade's annual training period and it involves.

Hannah McCarthy: Yeah. So I've heard of war games. Right. And I've been like, what are they actually doing? Like, Nick, do you know [00:08:00] what kinds of games the CIA uses to train agents?

Nick Capodice: Yeah, they use a bunch of, uh, one is called kingpin the hunt for El Chapo, the creator of this game, Volko Ruhnke. He is a CIA intelligence educator who said, quote, it is to train analysts who might work with law enforcement and other partners around the world to find a well armed, well defended, well protected bad guy. End quote. Now this guy Volko Ruhnke, he [00:08:30] makes lots of games that non CIA agent people love. You know, I have run games on my shelves and I didn't know he was with the CIA. And likewise the Army has a massive colossal board game. It's one they run every two years. It's called warfighter exercise. I don't think they refer to it as a game though. But what they do is they test out combat operatives in different world arenas.

Hannah McCarthy: But you're not really a war games person, right? [00:09:00] Like you don't you don't really play a lot of war games.

Nick Capodice: Yeah I would not really play war fighter exercise. I don't have interest in playing at war. Hannah. Even when I play civilization, I'm like, let's just be nice to everyone and develop our sciences.

Hannah McCarthy: I always went the religious victory route, which probably I don't know if that's because I was raised Catholic or what, but I wouldn't say that was let's be nice to everybody.

Nick Capodice: So today I'm going to share three games with our listeners. [00:09:30] Hannah. Now, these are not reviews of these games. There's too many other places that do that. I'm just going to give a brief explanation of what they are and what they teach us about politics. Three games that explore three different civics topics, because there are games like that out there nowadays.

Tory Brown: It is not just risk and monopoly anymore. Thank goodness.

Nick Capodice: This is Tory Brown. She is the designer of the board game Votes for Women.

Tory Brown: So Votes for Women is a [00:10:00] board game I designed about the American woman suffrage movement and the ratification of the 19th amendment. It is primarily when you play it. You look at a map, you draw cards, you're trying to build power in states, and you are playing back and forth. Suffrage versus opposition to recreate the time period from 1848 to 1920, when our American woman suffrage movement was successful in ratifying the 19th amendment.

Hannah McCarthy: Okay, so some people play like the actual [00:10:30] suffrage movement, people who are fighting for a woman's right to vote, and then others play the opposition to that.

Nick Capodice: Yeah. Would you be willing to play as opposition?

Hannah McCarthy: Um, know thine enemy, right?

Nick Capodice: And the reason Tory wanted a player at the table to play opposition is because opposition was real and is real.

Tory Brown: Opposition was a real nuanced effort to stop social [00:11:00] progress. And we know that those forces sort of never really went away. And I think to learn about our history and help us think about our present so that we can get engaged in a better future for us all. People have been extraordinarily resistant. Some some people have been extraordinarily resistant to playing opposition, which I think really took me by surprise. Board gaming, and specifically war gaming folks play as Nazis. Folks play as the Confederacy. They play all sorts [00:11:30] of unsavory or distasteful sides. But folks who have no problem playing as the as a Confederate really been resistant to the idea of playing as opposition. And when we talk about it, when they post, when I'm able to sort of have a conversation, people say it just feels really personal, that they know their mom, their wife, that women in their lives, it feels that it drains some of the fun out of the activity to play [00:12:00] in opposition.

Nick Capodice: Just as an interesting side note to anyone out there who says this is all dusty history and it's in the past and we're over it. Women have the vote. Facebook banned ads for the Kickstarter of this game because it dealt with a quote unquote sensitive social issue.

Hannah McCarthy: Because it dealt with like, racism or what I don't understand.

Nick Capodice: I don't actually understand either. I think just advocating to get women the right to vote was enough to be like, oh, not right now. We're in sort of a tough [00:12:30] political time. Mhm.

Hannah McCarthy: Okay. Have you played Votes for Women?

Nick Capodice: I have not, not in person because in spite of banned ads it is sold out and it's in a reprint right now. So I've just played it online and can I just say real quick it is gorgeous, Hannah. The art on the cards and on the board. It comes from a massive archive of primary sources like leaflets, newspapers, cartoons, photographs, etc. not.

Tory Brown: Every historical board gamer is gifted [00:13:00] with such great primary sourcing, but a big reason I think the game is so beautiful is the graphic designer that I worked with Bridget and Delicado, and it meant a lot to me as a woman to be able to work with another woman on this project. And she created this, this overall visual style, a motif that sort of harkens to the scrapbooks of the era.

Hannah McCarthy: All right. So what are you doing in this game? Like, what's what's the game play? What's the mechanic?

Nick Capodice: You are moving around the country trying to [00:13:30] foster or quash support for women's suffrage. So you play cards to campaign in states, to organize, to lobby, to trigger events. It is six turns in total, and it takes about an hour or so.

Hannah McCarthy: To your whole morality play idea here. Nick, what does Tory want? Players to leave the game understanding in a different way? What what sort of change does Tori hope happens?

Tory Brown: The idea for the game is that [00:14:00] movements are magic and that it took 70 years. Untold number of people, and a lot of hard work to ensure that women across America were full citizens of this country. There's still a lot of work on, you know, on voting rights and on who gets to be full counted Americans.

Nick Capodice: This game truly makes you feel the difficulty in getting an amendment ratified. It makes [00:14:30] you understand different coalitions.

Hannah McCarthy: I do wonder because, you know, we made two episodes on the 19th amendment. I, I fell down the rabbit hole on this world of suffragists in America. And many of the women in this movement, especially the most powerful women in this movement, were racist. They used horrible language. Um, there were some leaders who claimed that white women should get the vote before black men, and they criticized the 15th amendment. Does Tori address [00:15:00] that in this game?

Nick Capodice: She does.

Tory Brown: It is ultimately like the crux of the game. You cannot ignore the issue of race. It is a part of American history at every turn, right? It's not like some college professors at Berkeley in 1992 just decided to, like, invent woke language right? In the newspaper. They're talking about white supremacy in 1910. This is the language of our history, and this is language that we need to deal with and understand has not just been invented as some kind of divisive topic. [00:15:30] This is like the thread of our American history.

Nick Capodice: Votes for Women 60 minutes. Not difficult to learn. Super fun. You learn a whole lot, not just about history, but like Tori said, the power of movements. All right, break time. Get some pretzels and fill the tumbler. Two more games and maybe an excess of inside baseball when we get back.

Hannah McCarthy: Where did that term come from, Nick? Inside baseball.

Nick Capodice: So it comes from the 1890s. [00:16:00] And the inside in this expression means like inside the park. At this time, people thought baseball was like hitting dingers, like hitting home runs. But if you play an inside baseball, you're not focusing on that. You're focusing on getting people on base through walks and bunts and clever plays and all that. It's not as fun, maybe for the crowd to watch, but you're really working the system instead of just like slamming dingers over the fence. Well, if you are a fan of inside or outside baseball, and by baseball I mean civics, [00:16:30] and you want the 101 from 200 episodes in book form, check out the one that Hannah and I wrote. It's called A User's Guide to Democracy How America Works, and you can get it wherever.

Hannah McCarthy: We're back.

Hannah McCarthy: We're talking about board games and civics. All right, Nick, you said there were three games, right? So give me number two.

Nick Capodice: All right. Game number two is one that [00:17:00] we have played Hannah. We're going to talk about the company.

Hannah McCarthy: Mhm. I know what you're talking about here.

Nick Capodice: Tax laws nepotism. It's John company picky spouses fancy houses play John company.

Hannah McCarthy: If you continue along these lines I will have to take a little break and, uh, work on my Elaine Stritch. So let's just let's get moving here.

Nick Capodice: And John company, you fail a roll if you roll a five, and then you can sing rolling a five. [00:17:30] The game is John Company.

Cole Wehrle: John Company is a business game, but it is unlike other business games because in John Company there is only one business. It's a game about a state sponsored monopoly.

Nick Capodice: This is Cole Wehrle of Wehrlegig Games and Leder Games. He is the designer of John Company. The state sponsored monopoly, by the way, is the British East India Company, nicknamed John Company, which accounted for half of the world's trade in [00:18:00] the late 1700s.

Hannah McCarthy: And I think it's very important to mention here that the actions of John Company probably accounted for. I don't know the percentage, but a whole lot of, uh, nefarious and evil and bad actions.

Nick Capodice: Yeah, it did, Hannah. And I swear I'm gonna get to that.

Cole Wehrle: And in this game, the work of that one business is divided among several players. So in this game, you are running a business together and apart, and you will sometimes find yourself having to work with your rivals within the company. And sometimes [00:18:30] you will find yourself having to work against them. And the result is it produces a business that behaves very idiosyncratically, and this is the perfect timbre to use to describe the rise and fall of the British East India Company, which is a state sponsored charter, and the game tracks its history from 1710 till its collapse in 1857.

Nick Capodice: As of this moment, I have not yet played a game that accurately depicts the machinations of US government, what it is like to bargain and trade and pass a budget and enact legislation. If [00:19:00] that game does exist and I just don't know about it, please email me. But John Company is, in my experience, the closest thing to that. So who are you? You are the heads of families who are trying to get rich and powerful, and you get rich and powerful. By running a budget, you are collectively spending money to hire armies to elect each other to positions of power within the company. You build trade offices in India. You install your kid as the governor of Bombay. [00:19:30] You bribe the Prime Minister to pass laws that lower the taxes on your shipyards. There are a thousand other things you do, but what's it all for? All the looting and the hoarding and the nepotism. What's it all for? It's for a nice rich house in the country with lots of windows. And you can live in it when you retire.

Hannah McCarthy: And I suppose you could also look at the American political system in that way.

Cole Wehrle: There are connections between the United States and the East India [00:20:00] Company, the Boston Tea Party. The tea dumped was East India Company tea. The United States flag looks a lot like the same flag that was used by the British East India Company.

Nick Capodice: I have written about this in a few newsletters, but real quick I encourage everyone out there right now just look up a picture of the East India Company's flag from 1707. Just do it and I guarantee you will let out a gasp or like at least a mm.

Hannah McCarthy: Mm because it's pretty much the American [00:20:30] flag.

Nick Capodice: It's pretty much the American flag. Yeah.

Cole Wehrle: And it's important to note that in the late 18th century, the East India Company, while despised in certain circles, was admired. In others. It was a modern corporation with a very low overhead and tremendous profitability. It was run by kind of, quote unquote, enlightened principles. And some of those principles involved profit. And so, you see, when you start looking in the framework of the East India Company, overlaps in terms there are presidencies in India, they're managed by presidents. It's [00:21:00] an executive system. So there are these little bits of overlap where it seems like if if you know the same framers of the Constitution when they're at the convention, if they would have been reading the British newspapers, they would have been reading about the East India Company and the regulatory regime. And certainly I feel like some of those ideas have found their seat in our own system of governance.

Hannah McCarthy: You know what I kind of love about this? Because I am a cynical person, but I think cynicism is healthy and important for understanding. [00:21:30] And, um, you know, we think of our framers as these intellectuals who were diving deeply into the histories of Athens and Rome and the writings of all of these philosophers and interest in the enlightenment. And, you know, they're thinking, how are we going to run this great monarch free experiment? And then at the same time, they're also looking at this uNBelievably successful and wealthy and nefarious British [00:22:00] corporation and saying, you know, maybe, maybe, uh, they got some things right. Yeah.

Nick Capodice: Like a little bit of. Yes. And they're, you know, England was a monarchy. I mean, we don't want to do it like that, but I mean, look at these guys. They elect officers for terms of varying length. They vote on stuff democratically. As a company. They're rich as can be. I mean, that's kind of an interesting model, isn't it? I was going to say Rich Roosevelt, but they know Roosevelt back then.

Hannah McCarthy: All right. But we still haven't gotten to [00:22:30] the fact that the British East India Company did really bad stuff. And, you know, when I was playing John Company, I'm in this moment trying to figure out how to make as much money as possible in Punjab. And, you know, while I'm doing it, it's like, can I prevent a truly justifiable revolution from happening? Uh, and I just had this feeling of like, I should not be playing at this. I shouldn't I shouldn't be gamifying this.

Nick Capodice: I [00:23:00] absolutely agree, and that discomfort is deliberate. You should wonder that every second.

Cole Wehrle: So the rulebook of John Company is bookended by two short essays. One of them is an introduction to the game, which ends with a note that the game is going to deal with subjects of imperialism and empire, and not that's not going to be suitable for all groups and all interests. So before you turn the page, you know, I want people to be [00:23:30] aware that there's a monster at the end of the book. Um, and it's going to be up to a player's judgment if they want to go out hunting for that monster, because the East India Company, for most people who know anything about it, know it to be quite a venal and evil institution. Um, this is a company that was responsible for more than one famine, the deaths of millions of people, depending on how those numbers are tabulated. Um, the emergence of the of the British Empire [00:24:00] in the 19th century. It's got a bad rap sheet, and yet it was populated by humans like you and me, by people who were often well-intentioned. And when I was a teacher, I often found students had a tendency to sort the past into categories of good and evil, to pass a lot of judgment, and to have difficulty imagining themselves and the kinds of positions of their historic counterparts. And of course, as [00:24:30] is said often, you know, the past is another country. It's a totally strange place, but games are a way of bridging that divide. They are, you know, engines of sympathy, as one critic had said. And there are ways of transporting players. And I wanted to present players with the kind of banal reality of those big imperial frameworks. I want them to see how everyday people, when working in concert, can throw a bunch of small and even good decisions [00:25:00] and aggregate produce something quite awful.

Nick Capodice: Like Tory said earlier, Hannah, there are games where you play as Nazis, there are games where you play as the Confederacy. But in my experience, those games don't make you wrestle with the notion of why you're doing what you're doing. You're just trying to, you know, like win this war or win this battle. Put those tanks over there and those troops over there and bang, I win in John company, though on one side you're staring at this massive map of India, and then on the other side, you're looking at these [00:25:30] quaint English countryside estates you are forced to reckon with the reason why you're doing what you're doing. And the game sort of like even mocks any attempt you make to distance yourself from the ramifications of your actions. Like, are you really going to say, well, it wasn't me who colonized anything, I'm just the director of shipping. I just deal with fishing boats. I didn't try to create an empire.

Hannah McCarthy: It makes me think of that fairly well-known expression of Hannah Arendt's used to describe Nazi Germany. [00:26:00] You know, she called it the banality of evil. Um, essentially, there's true evil in the world, and it is also facilitated by administration and bureaucracy, and evil is parceled out among so many people, so many tiny little actions, responsibility and a sense of what you're actually engaging in becomes diluted and compartmentalized.

Nick Capodice: I don't think you could have put [00:26:30] that a better way, Hannah. There is so much more I want to say about John Company, about window taxes and empire and playing with that line between historical reality and fiction. But I'm just going to end with this. Before I played John Company, I knew next to nothing about the British East India Company, and since playing it, I have bought two books. I've listened to 20 podcast episodes about it. I'm obsessed now. Is it fun? [00:27:00] I don't know. Hannah, do you think it's fun?

Hannah McCarthy: No I don't. I play a lot of games that I love, that I don't consider fun, but I love them deeply.

Nick Capodice: You know people say things that get like, put on their Wikipedia page and they last forever. And I don't know if Cole Worley wants this to be on his tombstone, but he has said publicly he is, quote, not interested in whether or not a game is fun, end quote. So John [00:27:30] Company may be a game for you might not be a game for you. But however you feel, I promise you this, even if you don't have a good time playing it, which I really hope you do, you will come away knowing something and feeling something completely new. All right.

Hannah McCarthy: All right. Two games down, one to go. Um, is this last one [00:28:00] the one that I'm really jealous that you got to play and I didn't? Yeah. All right, tell me about Cross Bronx Expressway.

Nick Capodice: So far, we've got a game that teaches us about the suffrage movement. And we've got a game that teaches us about the intermingling of politics and corporation and empire in the late 18th century. But our third and final game is it is about the stuff, Hannah, that you and I talk about on every single Civics 101 episode. It is about how [00:28:30] the government, its people, i.e. Americans and businesses all pull and tug on each other to answer this question what are we doing? What do we do as a government? Who do we help? Who do we hurt? How do we do it? Who gets the money? So to learn about it, I called up Non-breaking space and I called and be up. When we in America and civics in general was just like having a week. You know, we've. [00:29:00]

Hannah McCarthy: Been having a lot of those lately.

Non Breaking Space: I'm good man, I'm good. I'm just sort of like dealing with the day to day of 2024, you know, it's just, you know, like this can be on the podcast. Man, I told you, you got me right now. This is what you got, right? Like, um, it's a hard time in the world right now. And just the day to day, I think if you're not reflecting on the harshness that you see around you on a day to day, then you probably should be.

Nick Capodice: But anyways, here's what the game is about.

Non Breaking Space: So [00:29:30] at a high level, Cross-bronx Expressway presents the history of the South Bronx from 1940 to 2000, and I could probably stop the description at that, at which point you say, either you know what that is or you have no idea what that is, and say, cool. Like if you know what that is, though, it's a pretty like I think of it as a template for urban development in the late 20th century and [00:30:00] its impacts on, um, sort of the in this microcosm of that impact on a global scale in terms of how we've sort of done, um, as human beings. And so looking at that period, the game sort of allows you to understand some of the decisions that were made and the impacts of those decisions from a socio economic perspective.

Nick Capodice: Hannah you know how we always say that local politics is more important than federal politics, like it [00:30:30] impacts our life. More specifically, I do.

Hannah McCarthy: And we also say that because the role that you can play in state and local politics, I think is more significant, right? I mean, like when it comes down to it, politics is people, even though we sometimes pretend it's not. And, uh, if you can talk to people, you can do more. So that's why we say it. But it is, you know, hard to pay all that much attention to such things when, you know, as we are less than 100 days [00:31:00] before a presidential election, you know, it can be a little bit hard to pay attention to. I don't know what your comptroller is doing.

Nick Capodice: Well, this game is a distillation of hyper local politics.

Non Breaking Space: And so what's the South Bronx represents? You know, New York City is five boroughs Manhattan, Queens, Brooklyn, Staten Island and the Bronx. I said that in the wrong order. And my Bronx people know that. I do know the right order, but I just wanted the Bronx to be last. Um, but, [00:31:30] um, the the history of the South Bronx is really interesting in the structure of that broader city, because they're sort of migratory patterns that have happened in New York that revolve around the space of residential spaces in the city. You can go back and look at the whole history of immigration in New York, and there's this cycle of different immigrant populations moving to different locations in New York and sort of relocating their communities as the city itself sort of evolved. [00:32:00]

Hannah McCarthy: All right. So what happens in this game?

Nick Capodice: Whenever I teach a game to people, and I think I learned this from the brilliant lads of the board game review website. Shut up and sit down. When you teach a game, you should start with these eight words. Who are we and what are we doing? In cross Bronx, a game for three players and it's got to be three players. Exactly. You each play as one of three factions.

Non Breaking Space: So there's three factions. The first [00:32:30] faction is the public faction, which represents sort of the government entities, both at multiple levels, at the borough level, at the city level, at the state level, and going all the way up to the federal level. There are implications that all of those for what's happening in the Bronx. And so the public player is sort of representative of that. And then you have the private, which is really about private businesses that are in the area and not necessarily always like big corporate entities that we think of today. But they're like even like small, um, business [00:33:00] entities from people that live just outside of the Bronx. And I do want to make that delineation of that. The private is considered those people that own businesses in the Bronx that live outside of the Bronx, um, or our investment. Investing in. So there's also the bankers and all those things that are putting money into this area but do not reside within it. And then the community is the last faction is really all of those people that are within. And it includes the businesses like the small business owners, the people [00:33:30] that own their own buildings, things like that are included in this community faction, um, that is representative of all of the different diversity that happens of people in the South Bronx.

Hannah McCarthy: All right. So one player is the government, one player is businesses outside of the neighborhood, and one player is the actual community in the South Bronx.

Nick Capodice: Exactly. And I'm not going to explain all the rules today, but basically what you're doing is you're building infrastructure and organizations [00:34:00] to help people out and or to help you out. So you've got people in the neighborhoods which are these unpainted wooden cubes.

Non Breaking Space: And then there are these little pink cubes, and the little pink cubes are called vulnerabilities, and they represent the vulnerabilities that exist within the communities. The map is split into the seven districts of the South Bronx, and in each of those districts, you can have a number of an amount of infrastructure that can then house the population. So you're putting [00:34:30] the wooden cubes, the natural wooden cubes onto these tiles that represent the infrastructure that's in those districts. And so when there are then little small pink cubes inside of those districts, it means that within that community there are some vulnerabilities that are being dealt with. And this is just like common things that, you know, like, do you have the resources to get your kid to school every day? Are you living hand to mouth to just be able to buy, to pay the rent or even things like, [00:35:00] um, do you have transportation to get to work every day? You know, those types of things are the vulnerabilities where if you don't have them, they can trip the that part of the community up into patterns that just downward spiral.

Nick Capodice: However you can house vulnerabilities in your infrastructure. Your faction can mitigate vulnerabilities. And you know it might not be in your organization's best interest to do so. You're taking care of lots [00:35:30] of other stuff. You're trying to make money. You're trying to make sure New York City doesn't go broke and you don't go broke. But if you don't take care of them, things can go pretty badly pretty quickly.

Non Breaking Space: If these vulnerabilities grow in each of the districts to large, where there are unhoused or vulnerabilities that are not housed in infrastructure, there comes the census phase at the end of the decade, and during the census phase, there is a quota. And the quota basically represents the city having to sort of deal and contend [00:36:00] with how things are as a whole and quotas being a big method that was utilized, and how these vulnerabilities then end up in the corrections facilities of Rikers Island on the map.

Nick Capodice: And events happen based on the decades you choose to play things like redlining, suburbanization, blackouts, presidents and presidential hopefuls visiting the Bronx.

Archival: Concern, the Republican nominee traveled to the South Bronx. Is there more. [00:36:30]Jobs coming through the Bronx for us? I am going to try as hard as I can. All I can tell you is that I'm going to try to bring that about, and not with the kind of a promise that Carter made.

Hannah McCarthy: Did NB give you essentially, you know, a thesis statement for this game?

Nick Capodice: He did, and he gave it to me in one word, modernity.

Non Breaking Space: You get to this point in New York's history where the wave of modernity [00:37:00] is just too big to fail. And that's sort of like, I think that's one of those concepts that's hard to think of, like, what does that mean? The wave of modernity is too big to fail. And this is like at the juncture of the rise of interstate highways. And the New York State Thruway is coming through. Cars are becoming bigger and bigger and more important, but also the transportation of things through automotive vehicles is becoming more important. So the highways are getting bigger and all of that. And New York City represents this hub [00:37:30] of activity for the East Coast and indeed for the for the globe.

Archival: We need this marvelous superhighway to end traffic jams like this, to take trucks out of our cities and put an end to this.

Non Breaking Space: And so all of this traffic has to converge in New York in some way.

Archival: Here. Thruway Authority Chairman B.D. Ptolemy discusses the 535 mile superhighway system with Robert Moses, guiding genius of our cities, parkway system and city construction [00:38:00] coordinator.New York City is the focal point in this system.

Nick Capodice: Now, this history of the Bronx and the game starts before World War two. Lots of projects had started before that, but when the war hits, the budget is frozen. So you have a neighborhood that is full of stalled infrastructure.

Non Breaking Space: So nobody can spend any money. So they're not doing any of these projects until after the war. And then there's all of these people right front and center, ready to sort of go and say, hey, we've got the plans ready, let's get this going. Let's get this thing [00:38:30] in action. We're already 4 or 5 years behind because of this war. Let's go. And so that happens, which is the, again, the inevitability of this wave of modernity comes and the pattern of utilizing the movement of immigrants to different locations to sort of build up their sort of or even more specifically, to sort of climb their way up the social status ladder, basically is in the way and it's in the way, in the same [00:39:00] way that the physical location of the South Bronx is in the way of where all of these highways are going to converge and come together to be able to draw this traffic through the city. And that is what the game of the South Bronx Expressway is about. One [00:39:30] of the reasons that I made this game is because of the love that I really have for the Bronx as a whole, as it's really about like community and hard working community, like people just like getting up to go to work and do their job and want to come back home and feel like home. And that's what people have been forever. Just striving to do is just be able to have that life, to do their work and come back and feel home.

Nick Capodice: Non-breaking space. Cross Bronx Expressway. [00:40:00] Now, by the way, NB did a ton of archival research for this game. He even wrote a history book to go along with it like it goes in the box of the game. I promise you again, you're going to learn something new.

Hannah McCarthy: All right, so I know we've covered the three games here, Nick, but if we may, I would like to go back to something that we talked about at the beginning of the episode. You know, there are so many games out there. Um, they go by a lot of terms. There are Euro games, worker placement, deck [00:40:30] builders, dungeon crawlers, and a seemingly infinite number of war games. Right? Move in tanks on hexes. And there just seem to be far, far fewer games that explore, for example, civics concepts. Which honestly, that's a little bit odd to me because politics politicking is a game, right? It might be one of the most gamey things we human beings do. [00:41:00] Um, Voting. Negotiating. Achieving policy. Campaigning. Right. Why? So many, like, very war specific games and so few about politics.

Cole Wehrle: A great question. Why so much war in games? Uh, why why so much war? I mean, games are always a reflection of the culture that produces them. And so and in that way, one of the things that [00:41:30] you see in the mid 20th century, with the rise of historical game publishers such as Avalon Hill, is a desire to make games which had often been a pedagogical, a child enterprise, a toy to make them seem more adult. And the way they did that is they made them into what was thought of as scientific war games. These were historical studies, and there was nothing more serious than the Battle of Gettysburg. And so they were a way for games to generate credibility. And then, of course, that itself became an ascetic. [00:42:00] And there they were. It was reflecting back the, you know, a war movie from Hollywood. When you look at a lot of those Avalon Hill covers, what they are are redraws and scans and remixes, collages of movie posters. They're all kind of militaristic esthetic as ricocheting around our little, our little cultural box.

Nick Capodice: You could also ask, why are there so many games about colonizing or settling somewhere and acquiring resources?

Tory Brown: These games that, like the whole point is to colonize foreign lands and extract their wealth. Maybe [00:42:30] we don't want to wait. We could make these these conversations. We could make these agreements among ourselves. And, you know, capitalism responds to these kinds of forces and agreements among communities where we'll see fewer of those games and hopefully more games that give you a little something more, whether that's history, whether that's decision space, whether that's the opportunity to be creative in a different kind of way, whether, right, like there's all of these different directions we can head [00:43:00] when we allow ourselves to move forward in a way that recognizes each other's shared humanity. That allows for different preferences to flourish, but creates a sort of bottom line on what is acceptable, what is desirable, and what is important to have on our table and on our shelves.

Nick Capodice: And to revisit something we talked about earlier. Why is fun the most important thing?

Non Breaking Space: I mean, let's let's back up for a second. [00:43:30] Like, I definitely enjoy games for fun. I think we've played some games where it's just like, yeah, let's just have some game for some fun. And there's a sense within the hobby at large that that's what games are, that games are fun, right? Um, they're escapist. They're ways that you can sort of say, let me take a break from my day to day and just do something that's, you know, Fun. This, that notion really being [00:44:00] institutionalized within the hobby, like this is a notion within the hobby. I think at a high level, if you ask over 50%, and I think much more than 50% of the hobby, if you did a survey, it would be like, yeah, games are supposed to be fun. If it's not fun, it's not a game. Um, it's something else and not really what people are up for. And I think that notion itself is detrimental [00:44:30] to what games can be. And so it is also framed what types of games get made and how they get made. And so when you ask this question in terms of like war games and why so much of gaming is from this perspective, it's really a question of, well, how can you simulate the fun? And just think, it.

Non Breaking Space: Just take that for a second and think about like, well, how can we simulate the fun? Let's take [00:45:00] a topic and how can we simulate the fun and fun in a war? Context ultimately boils down to some degree of propaganda. Like you can't escape that, and that is honestly a dis justice injustice to our broader humanity. Like it's a misrepresentation for our personal benefit over [00:45:30] the collective benefit of addressing things more seriously is where I'm going to end up getting in trouble. Because like, I love playing games for fun. Like I was saying before, like that, like that's me. You know, I have a, like, dark and deep history with games, um, going back and in my later days I've sort of come around to this notion of like, yes, I can do that, but that's not the games that I want to [00:46:00] make.

Hannah McCarthy: Very last thing here. You promised that you would share your secret reason why you love games so much. So give it up.

Nick Capodice: All right. I feel that games are a different language, and you can say things to people in that language that you don't in any other way. I used to have this music teacher who said that when I played the [00:46:30] trumpet, that's a different language, and I'm speaking in that language and conveying things that my heart wants to, that I can't any other way. And games are that for me. So for a shared hour or 5 or 12, you are able to express joy, defeat, love, excitement, trickery, astonishment, everything and it is like a play. I subscribe to the notion that acting is just living under imaginary circumstances and a game is that too? It's an excuse to [00:47:00] do that. And like in a play, you will discover things about your friends and yourself every minute. So go play a game.

So many thanks I have to give. If you like what the three designers I spoke with are putting down. Check out their other stuff. NB is working on a game called The Council about a city council. Can you believe it? Cole [00:47:30] is about to publish something he made with Jo Kelly called Molly House. It is a game of queer joy and betrayal in 18th century London, and Fort Circle is working on one about the Supreme Court called the First Monday in October. Krys, you think I'm gonna forget you? Krys Bigosinski and Kate Sykes. Those are the two people responsible for letting me know about the interaction among the CIA and the Army and the military and board games. Thanks, guys. Also, I have to thank The Acceptables who make me love [00:48:00] games and myself more and more each day, and especially MJ, who never uses real swords. This episode was made by me Nick Capodice with Hannah McCarthy. Big surprise. Our staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Music. In this episode by Jesse Gallagher, Meyden, Scott Holmes, Blue Dot sessions, A bunch by Epidemic Sound and who loves you and who do you love? Chris Zabriskie.

Nick Capodice: Hey, before I go, can I just say this when I say play [00:48:30] a game? I don't just mean these intricate, wonderful, complex things. Play poker, play cribbage, play scrabble, play hearts, kid. They work well. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What is a whistleblower?

Choosing to blow the whistle on the U.S. government is a big deal. It's a huge risk and, despite legal protections, can result in major negative repercussions. So why do people do it? What happens to them when they do? What protections do they have, and do those protections work?

Our guides to the process are Kathleen McClella, Deputy Director at WHISPeR, Danielle Brian, Executive Director and President of the Project on Government Oversight and Chris Appy, Professor of History at the University of Massachusetts Amherst.


Transcript

Archival: These latest leaks in Edward Snowden's campaign seem to be time for maximum embarrassment for the U.S. And the president.

Archival: I don't think he's a hero.

Archival: Obviously, the government was over surveilling more than they were being honest with the public. But this is not a simple whistleblower gets caught up. This is man decides to betray his country, leave with secrets.

Archival: We could not have carried off the Bin Laden raid if it was on the front page of the papers tonight. [00:00:30]

Archival: In a shocking move, President Obama is allowing Chelsea Manning, the Army private convicted of stealing and leaking hundreds of thousands of documents and videos to be a free woman in May.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about a rare breed of individuals and the dangerous and often controversial path they [00:01:00] tread. We're talking about whistleblowers.

Hannah McCarthy: We're talking about people who spill secrets, right? Right.

Nick Capodice: And the people who spill the secrets versus the secrets they spill. That's actually going to be an important distinction here, but we're going to get to that in a little bit. First, let's start with the basics.

Hannah McCarthy: Please Nick, what is a whistleblower?

Kathleen McClellan: So a whistleblower is someone who reveals information in the public interest that exposes waste, [00:01:30] fraud, abuse or gross mismanagement or a violation of law, rule or regulation.

Nick Capodice: This is Kathleen McClellan. She's the deputy director of the Whistleblower and Source Protection Program at Exposed Facts. The program is nicknamed WHISPeR.

Hannah McCarthy: That is a little bit of an acronym stretch, but I'm here for it.

Nick Capodice: WHISPeR provides pro bono legal services to whistleblowers and media sources, with a focus on human rights and civil liberties. Kathleen herself has [00:02:00] represented whistleblowers from the NSA, the CIA, and the FBI. So, to be clear, she is coming to us from a particular side of this issue.

Hannah McCarthy: And Kathleen mentioned that whistleblowing is about information that is in the public's interest. It's about telling the American people that the government is doing something so wrong that they have to know about it, like you're only going to blow the lid off that popsicle stand if there is something pretty bad going on in there.

Nick Capodice: Which leads [00:02:30] me to the next big thing about whistleblowing. Revealing big information is extremely high stakes.

Kathleen McClellan: I just came to truly admire these people, because I don't think that I would ever have the courage to be a whistleblower. Unfortunately, I think I would be a bystander. I'm way too establishment. And so to see these people who so dedicatedly believe in the mission of their agency and in the reason that they're in federal service, that they will risk their own career [00:03:00] for the benefit of the public. I mean, that's really admirable.

Hannah McCarthy: All right, Nick, I see news stories all the time that cite anonymous government sources. And, you know, we hear phrases like speaking on the condition of anonymity and according to people familiar with a story. Are all of those people whistleblowers?

Nick Capodice: Yeah, that's a good distinction. And no, they're not. Kathleen says there is a difference between what the government calls a quote unquote leak and [00:03:30] whistleblowing.

Kathleen McClellan: Leaks happen every day. The biggest leaker is the US government. Let's keep in mind that every day you read about anonymous government sources telling the press something and plenty of times about national security. And plenty of times that information includes classified information. But those were what you would call authorized leaks.

Hannah McCarthy: Authorized leaks, as in, these are the secrets that the government is choosing to spill.

Nick Capodice: Yeah. Information that is otherwise [00:04:00] classified and protected might be purposefully, if anonymously, leaked to the press.

Hannah McCarthy: So why? What's the game here?

Nick Capodice: Ultimately, it's about control giving the public some, but not all of the information seeming transparent without revealing all your cards.

Hannah McCarthy: So an authorized leak is maybe something that might make the government or someone in the government [00:04:30] look good, or look better or something.

Nick Capodice: Yeah, these leaks can also be used to float an idea and see how the public responds to it before you carve it in policy stone, or to spin news coverage, or to just mess with the political opponent or to curry favor with the press. So that is an authorized leak. But if you want to know when a whistle has been blown, pay attention to how the government responds.

Kathleen McClellan: The government loves to pathologize whistleblowers and come up with reasons why [00:05:00] they might have done something. They were disgruntled. They were angry. They were going through a divorce. They come up with all kinds of reasons why people might be whistleblowing. Unfortunately, the reasons never seem to include the government misconduct being exposed, which in our experience we found is the reason people are whistleblowing is because they've seen something that is so bad that they feel that the public needs to know about it.

Hannah McCarthy: Got it. Okay with whistle blowing? It sounds like the government is more likely to focus [00:05:30] on the person who did it, as opposed to the actual information which came out, which makes sense if you want to distract from that information itself. Speaking of, if someone is this worried about something this big within the government, is there any way to take care of it on the inside instead of going to the public?

Nick Capodice: Yeah, I mean, it's a little more involved than going to HR for something this big. You're probably going to go to the inspector general. [00:06:00] But Kathleen says that doesn't always work.

Kathleen McClellan: It's a structural problem. So you can have an aggressive inspector general investigator trying to do the right thing. However, ultimately the authority for that inspector general is with the agency head, even though they have a mission statutorily to act independently. And even though they're trying to do that, at the end of the day, the executive branch has authority and the agency head has authority. And so if you locate the oversight, it's like the fox [00:06:30] guarding the hen house. If you locate the oversight mechanism within the same agency that you're trying to do the oversight, when the whistle blowing gets big enough, when the challenge gets controversial enough, it will fail. Inevitably, structurally, no matter how well intentioned the actual individuals working within the Inspector General's offices are.

Nick Capodice: Basically, inspectors general should be able to freely report information to their boss and to Congress, but that doesn't always happen.

Hannah McCarthy: So whistleblowing might not [00:07:00] work at all. And even if it does, the government might write off that. Whistleblower as a disgruntled problem person. Is there any system in place that actually helps a whistleblower?

Nick Capodice: Several in fact, Hannah. One such system comes from the Whistleblower Protection Act.

Kathleen McClellan: So the federal Whistleblower Protection Act came out of a long history of people within the government trying to raise concerns and being retaliated [00:07:30] against. And it was first passed in 1989 and has been amended several times since, when whistleblowers, federal government whistleblowers, were simply not given the protection intent that the act.

Nick Capodice: The law says that certain federal employees can blow the whistle on violations of the law mismanagement, waste of funds, abuse of authority and when behavior poses a significant danger to public health or safety.

Hannah McCarthy: Okay. And you said certain employees [00:08:00] who is allowed to do this.

Nick Capodice: It applies to most executive branch employees or former executive branch employees. It also excludes a significant chunk of people.

Hannah McCarthy: Like.

Nick Capodice: Political appointees, uniformed military service members, employees of the intelligence community, including the FBI and employees of the US Postal Service, interestingly.

Archival: When you control the mail, you control information.

Hannah McCarthy: So [00:08:30] if you're sharing information that is protected under the act and you're one of the protected employees, can you tell just anybody?

Nick Capodice: Yeah, well, not anyone. Not exactly. They can talk about it internally to people inside their agency, a supervisor or somebody higher up. You know, they can also tell the offices of the special counsel or federal inspectors general. Those are really the safest places to go under the Whistleblower Protection [00:09:00] Act. But you can, with exceptions, you can go to Congress, coworkers, managers, independent government watchdog organizations, and finally, the media.

Hannah McCarthy: What are the exceptions?

Nick Capodice: The exceptions are vast, and they mostly have the same name. Sensitive material.

Hannah McCarthy: Sensitive material.

Nick Capodice: Sensitive material. Now, sometimes that means classified. Often it does not. The [00:09:30] various agencies define lots of information as sensitive but not classified. So at the end of the day, whistleblowing is about knowing whether the information you're sharing is allowed to be shared, and whether the person you're sharing the information with is allowed to receive it.

Hannah McCarthy: And it is the Whistleblower Protection Act, right? What are these individuals protected from?

Kathleen McClellan: Essentially, what you cannot do is retaliate [00:10:00] against a whistleblower. So you cannot take a personnel action, meaning you cannot fire them, suspend them, give them a reprimand, a written reprimand, any sort of personnel action that you would do. You cannot do under the Whistleblower Protection Act. And there are some other things as well.

Nick Capodice: For example, moving them to another department, reducing their pay or responsibilities, ordering a psychiatric evaluation or making a significant change to their duties, responsibilities or working conditions.

Kathleen McClellan: But it's important [00:10:30] to note that that applies to most federal whistleblowers. There are different laws that apply to corporate whistleblowers, and most national security and intelligence agencies are exempted from the federal Whistleblower Protection Act.

Nick Capodice: The intelligence community has its own whistleblower protections, but because they're usually the ones dealing with the really big secrets, it is a whole other complicated system. Interestingly, Congress says it's allowed to receive classified information, but [00:11:00] the executive branch does not always agree with that.

Hannah McCarthy: So generally speaking, is the classified stuff kind of tricky to get out there?

Nick Capodice: Yeah, it is.

Kathleen McClellan: Unfortunately, as a client of ours like to say, the government often classifies their crimes and the government is so motivated to keep things secret because why would you want to reveal that, you know, a drone strike that you want to say killed militants, actually killed civilians? You wouldn't want to reveal that information. The motivation to keep [00:11:30] it secret is just too great. And so structurally, without a protection for whistleblowers to come forward and bring out more truthful information, without accountability for overclassifying information, for classifying information in order to cover up misconduct, without accountability for those things, there's no way to kind of strike the correct balance.

Nick Capodice: There's also the Intelligence Community Whistleblower Protection.

Hannah McCarthy: Act, and that's the law that's supposed to protect whistleblowers in the intelligence community right from retaliation. [00:12:00] Like, I don't know, for example, getting their security clearance taken away.

Nick Capodice: Yeah, but Kathleen doesn't think the law is very effective, even with that provision against retaliation. Now, I want to introduce another guest here. Uh, Danielle. Brian, She is the executive director of the Project on Government Oversight. So there are protections in place for whistleblowers in some cases.

Danielle Brian: There's a real tension between the need, especially around national security, to reveal [00:12:30] misconduct and wrongdoing, but at the same time protect national security. And one of the things that we think is a really important reform is the government has as a tool the Espionage Act to go after. And it's certainly deters people from revealing wrongdoing because they know that the government has, under both Democratic and Republican administrations, aggressively applied the Espionage Act.

Nick Capodice: Now, we have talked about the Espionage Act before, [00:13:00] but real quick, this is the law that made it a crime to unlawfully detain or disclose information that could harm the United States or benefit its enemies. It was designed with spies and foreign agents in mind, but it has since been used against whistleblowers.

Kathleen McClellan: The first time it was used against a whistleblower for revealing allegedly classified information was in the Daniel Ellsberg case, the Pentagon Papers case.

Hannah McCarthy: Oh, [00:13:30] Nick, we gotta talk about the Pentagon Papers. I'm surprised it's taking you this long.

Nick Capodice: Yeah. You knew it was coming. Hannah, we will talk about the Pentagon Papers right after this break.

Hannah McCarthy: But before that break, Civics 101 is listener supported public radio. If you like what we do, then we're asking you to help support us. You can do that at our website, civics101podcast.org. And thanks.

Hannah McCarthy: We're back. We're [00:14:00] talking about whistleblowers and their protections, sometimes lack thereof. And Nick, before the break, you promised me one very loud whistle.

Nick Capodice: Maybe the loudest whistle of all, Hannah, this would [00:14:30] not be an episode about whistleblowers if we didn't talk about Daniel Ellsberg and the Pentagon Papers.

Chris Appy: Daniel Ellsberg is probably the nation's most famous whistleblower. In 1971, he became a household name when he released to the press and the public a 7000 page top secret history of the Vietnam War that exposed decades of government lies about that war.

Nick Capodice: That's Chris Appy. [00:15:00] He's a history professor at UMass Amherst and director of the Ellsberg initiative for Peace and Democracy.

Chris Appy: And what makes his life so interesting, in part, is that he, like many whistleblowers, had been an insider in the government and in the military and had once been a strong advocate of the Vietnam War. But his political and moral conversion, especially in the late 1960s, was quite dramatic. I don't know of [00:15:30] another top government official who so fundamentally changed his mind about a policy that he had helped put in place, and who took so many personal risks to try to expose what he had come to see as not just a mistaken war, but actually a criminal war.

Nick Capodice: Now, the story of the Pentagon Papers and the subsequent Supreme Court case dealing with them is big, fast, fascinating, and deserves its own episode, which I hope we [00:16:00] get to. But for today, we are focused on how Ellsberg leaked the papers and what his work meant for whistleblowers who came after.

Hannah McCarthy: How did Ellsberg fundamentally change his mind?

Chris Appy: Ellsberg had been deeply involved in nuclear policy as an insider, first at the Rand Corporation, a think tank largely funded then by the Air Force and primarily working on nuclear strategy. And as with the Vietnam War, early in his career, [00:16:30] he had been a proponent of many of these policies and over time came to view our nuclear policies and nuclear weapons as general as a fundamental existential threat to humanity that must be faced and overcome.

Nick Capodice: In 1967, Secretary of Defense Robert McNamara commissioned a study about the US's involvement in Vietnam. Ellsberg was part of the research team, and he was disturbed by the conclusion of the study, [00:17:00] which showed that for years the US government escalated an increasingly unwinnable war and concealed the facts from Congress and the American people. Ellsberg reached a breaking point.

Chris Appy: Ellsberg remembers this is in August of 1969, going to the men's room and sobbing uncontrollably with a sense of great guilt that this war was eating [00:17:30] up our young, both by sending people to fight and die in Vietnam, and by relying on young activists to try to bring it to an end. It was at that point he asked himself, well, what might I do if I were willing to sacrifice my career and even perhaps serve time in prison? So he then began to think, well, I've got access to these top secret documents. What if I were to try to get them into the public record? Might that make some difference [00:18:00] in shortening the war?

Nick Capodice: And this happened before the passage of the Whistleblower Protection Act. Daniel Ellsberg expected to be imprisoned for releasing the Pentagon Papers. All he knew is he had to blow the whistle.

Archival: I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy, and I am prepared to answer to all the consequences of [00:18:30] these decisions.

Nick Capodice: So Ellsberg hands the goods off to the press. The government tries to stop the press from publishing, and ultimately the Supreme Court says, no First Amendment. You can't stop them. The American people get the truth. But Ellsberg, he is facing 12 felony counts, including violation of the Espionage Act. And [00:19:00] this is the first time that the Espionage Act was used against a whistleblower for revealing classified information.

Chris Appy: And what makes it particularly difficult when you are indicted under the Espionage Act is that judges don't allow you to explain your motivations. All the prosecution has to demonstrate is that you did, in fact, retain these papers and transfer them to others. They don't need to know about your motives, which were to expose wrongdoing [00:19:30] and even illegal activities, and to make the case that it should never be a crime to expose a crime.

Hannah McCarthy: Wait a minute. Did Ellsberg get convicted?

Nick Capodice: No, he did not. Then President Richard Nixon wanted to dig up dirt on Ellsberg. So he sent in his plumbers.

Hannah McCarthy: His plumbers?

Nick Capodice: His plumbers, the people tasked with plugging the leaks coming out of the Nixon administration. The plumbers were not super [00:20:00] law abiding.

Chris Appy: So-called plumbers broke into Ellsberg's psychiatrist office. And that fact, and others like illegal wiretapping of Ellsberg, was revealed in April of 1973 while the trial was still going on. So the judge in that case really had very little recourse other than to dismiss the trial. And so we don't know how the jury would have decided the case. But in any event, it did mean that although Ellsberg's career was effectively sabotaged, [00:20:30] he did not serve any time in prison.

Nick Capodice: Now, Ellsberg died in 2023, but he devoted his life to advocating for modern day whistleblowers like Edward Snowden, like Chelsea manning. Now, Snowden and Manning were in the news quite a bit a while ago. If you don't know about it, look it up. But here's what Ellsberg had to say about them.

Archival: Well, I identify more with Chelsea manning and with Edward [00:21:00] Snowden than with any other people on Earth. Uh, there we all come from very different backgrounds, different ages, different personalities, but we all faced the same question, which is who will put this information out if I don't? And each of us came to the conclusion that this information that the public had to know, um, would have to be put out by us, by ourselves because no one else was going to do [00:21:30] it. I've been urging.

Nick Capodice: People the famous Whistleblowers Club is a pretty small one, comprising people who took immense risks and faced immense consequences. And Daniel Ellsberg is credited with blazing the trail.

Danielle Brian: I think historically it's been a fact that without Dan Ellsberg, the Vietnam War may well have gone on for many more years. But that changed the course of history.

Nick Capodice: Before we wrap up, because it might not be totally responsible to end [00:22:00] on a whistleblower hero's journey, I want to share a piece of advice that Danielle shared with me.

Danielle Brian: My first advice to anyone who is considering being a whistleblower is to really think twice, because rarely does a person who takes that brave step land on their feet with their job intact, with their family intact. So I just want to be honest with them that this is tremendously risky.

Nick Capodice: Even [00:22:30] with protections in place, even if you do it exactly right, even if you follow the letter of the law, whistleblowing is not a particularly safe thing to do. And Danielle sees a future where the spilling of government secrets could become all but impossible.

Danielle Brian: And I will say that one of the things that I'm most worried about as I look at the next year or so, is that former President Trump has [00:23:00] talked about, if he were reelected on day one, he would create a change in the system of government employment. It's what is called schedule F, which sounds kind of just administrative, but what it does is it strips those whistleblower protections that we already have in place because it will remove their status of all the policy making government employees as professional, merit based, protected class of employees and move them [00:23:30] to essentially political appointees, which have certainly no whistleblower protections.

Hannah McCarthy: Nick, one last thing. Um, regardless of what the future does hold, I feel like I've got something pretty telling, given the tension between what the government wants us to know and what the rare whistleblower tries to make public. And I don't always do this, but for fun, just trying to figure out another [00:24:00] word for whistleblower. I, uh, consulted Merriam-Webster.

Nick Capodice: Are we in a commencement speech for eighth grade? You checked the dictionary?

Hannah McCarthy: I swear, this is not a phoning in my high school essay moment. I was just curious.

Nick Capodice: May I? All right, go for it.

Hannah McCarthy: Uh, synonyms include. Rat. Snitch. Spy. Tattler. Squealer. Fink. Narc. Stoolie. [00:24:30] I mean, like, even the gentler ones. Informant, for example, are still pretty negative. Which I think really gestures to the overall point that people don't trust secret spillers.

Nick Capodice: You know, Hannah, I think it will always be true that telling a big Ole secret will make you a pariah in someone's eyes. You just need to figure out if this spill [00:25:00] is worth the mess.

Hannah McCarthy: That does it for this episode. It was produced by Catherine Hurley, [00:25:30] our summer intern who will one day rule us all. Actually, Catherine, why don't you take over?

Catherine Hurley: This episode was produced by me, Catherine Hurley, with Hannah McCarthy and Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music. In this episode by Blue Dot Sessions, Dusty Decks, the Grateful seven, Amber glow, Taj jokes, major tweaks, T Marie and OTE. If you have questions about American [00:26:00] democracy, you can ask them at our website, civics101podcast.org. While you're there, you can listen to every other episode we've ever made. There are a lot of them. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

How Are Cities Chosen For The Olympics?

The Olympics are a global event. They take years of planning, negotiation and convincing -- not to mention billions of dollars -- to stage. This is how the games are used by the United States and others around the world. This is what it takes to host, what the games do for  a nation and what it means when you refuse to attend. Welcome to the Olympics. 

Our guests for this episode are Jules Boykoff, professor of government and politics at Pacific University and author of several books on the politics of the Olympics, and Nancy Qian, Professor of Managerial Economics & Decision Sciences at Northwestern University.

Listen:

Transcript:

Note: This transcript was AI-generated and may contain errors

Nick Capodice: Can I do the John Williams Olympic theme of mouth trumpet?

Hannah McCarthy: Of course.

Nick Capodice: I think the Olympics theme is one of the unsung heroes of the John Williams repertoire. It's one of my favorites. It's up there with Raiders of the Lost Ark. My TV, when I was a kid, couldn't get any channels like local or cable or anything. All we could do is watch the VCR. So my grandmother every four years would mail about 20 tapes of the Olympics to me and my sister, and we'd watch them religiously.

Hannah McCarthy: What was your favorite year?

Nick Capodice: 1988, Seoul. Reebok. Reebok, Reebok. And you thought everything was happening in Seoul? We know all the commercials. Great Run winners give their best all the way to the finish line.

Hannah McCarthy: Did you love it for the commercials or for the athletes?

Nick Capodice: For both? Because we didn't have TVs, so the commercials were just as joyous.

Archival Seoul 1988 Olympics Commercial: And you thought everything was happening in Seoul?

Hannah McCarthy: Every two years, people who represent the absolute best in their field, the best in the world descend on one of the globe's cities and show us exactly what they can do.

Archival: Usain Bolt!

Archival: A perfect score, 10.0 for Nadia Comaneci, a perfect score. Cannot be, no one can run that fast. He's done it!

Hannah McCarthy: Billions of people tune in to watch the celebration of athleticism, of commitment and excellence. And that's what the Olympics are all about, right? The athletes.

Jules Boykoff: The Olympics are political. They have been political for a very long time, and they go back to being political all the way to the beginning.

Hannah McCarthy: This is Jules Boykoff. The guy who shattered my understanding of the Olympic Games. He's also professor of politics and government at Pacific University in Oregon and author of four books on the politics of the Olympic Games.

Jules Boykoff: In fact, if anybody tells you that the Olympics are not political, there is a very good chance that they are making their living off of the Olympic Games.

Hannah McCarthy: And that, my friends, is what we are digging into today. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And this is Civics 101. Today we are exploring the global games and how they are used by the United States and others around the world. We'll talk about what it takes to host the games, what the games do for a nation and what it means when you refuse to attend. Welcome to the Olympics.

Nick Capodice: Now, I always thought the Olympics were a pretty wholesome affair. So can we get into this whole Olympics being shattered for you thing?

Hannah McCarthy: All right. Let's just say I have a lot more to think about when I binge watch floor routines.

Jules Boykoff: 1936, there was the Berlin Olympics where Hitler made the games extremely political, and he used the games as a trampoline for his invasion into Europe after those games

Archival: the German team as hosts come last and then Germany's Führer declares the 11th

Jules Boykoff: Olympiad officially open.

fall forward from there to the Cold War era, where basically the Olympics became a proxy battlefield between the United States and the Soviet Union.

Hannah McCarthy: United States Olympic Committee voted to boycott the Summer Olympic Games in Moscow.

Jules Boykoff: Shimmy forward from there. 2014. The Olympics happened in Sochi, Russia. Incredibly political. I mean, the host there in Russia had just passed an anti LGBTQ law that was very much clashing with principles in the Olympic Charter.

Archival: President Vladimir Putin wants to make it clear that gay visitors are welcome, but he's also keen to stress the country's ban on promoting homosexuality among minors.

Jules Boykoff: And so that was political, and it raised the political hackles of numerous athletes from the United States, for example, and diplomats from around the world. Then you go forward a little bit further. 2018 the Pyeongchang Winter Olympics in South Korea, where the International Olympic Committee played an active role, bringing together the governments of North Korea and South Korea to form a united team for those games.

Archival: Setting foot in South Korea tonight, these North Korean Olympians are making history.

Jules Boykoff: Obviously, every one of those examples show that the Olympics are political.

Hannah McCarthy: By the way, the modern Olympic Games were started in the 1890s by a French aristocrat as a nod to the ancient Greek sporting event. So we've been at this for well over 100 years. And if you're listening to this thinking, excuse me, Hitler used the games to pave the way to his European invasion? I promise you we will come back to that. But the point is, if you embark, as I did on a happy go lucky investigation of the world's greatest celebration of athleticism, you will find that there is a lot simmering just under the five ring surface. And to get there, we have to start here.

Jules Boykoff: If you want to understand the Olympics, looking at the International Olympic Committee as a great place to start, the International Olympic Committee oversees the Olympic Games. This is a nonprofit organization based in Lausanne, Switzerland. It might be a nonprofit, but it's incredibly profitable. It brings in billions and billions of dollars. It makes the rules for who gets to participate in the Olympics, which sports are in the Olympics, which games will be featured, where who will host the Olympics? They make those decisions.

Hannah McCarthy: The International Olympic Committee, otherwise known as the IOC, gets that tax exempt nonprofit status. And because it's a non-disclosure Switzerland, I can't give you a breakdown of what it spends its money on, but it's worth noting that Olympic athletes receive very little financial support from the IOC. It's also worth noting that committee membership comprises a fair number of royals and corporate executives, and then you have the two hundred and six countries who participate in the Olympics. Each has a National Olympic Committee. Ours is called the United States Olympic and Paralympic Committee.

Nick Capodice: Team USA.

Hannah McCarthy: Team USA. Oh, and just as an aside, we are one of the very few nations in the world that does not have a Ministry of Sports and does not federally fund our Olympic Committee, in part because we are one of the only countries in the world that debates the connection between politics and sports in other countries. That connection is explicitly acknowledged. There are, for example, left and right wing soccer clubs worldwide.

Nick Capodice: I mean, our president throws the first pitch of the baseball season. We sing the national anthem at sporting events.

Hannah McCarthy: We're about due, by the way, for quick dive into why we call elections races.

Nick Capodice: Oh, absolutely, it is a sports metaphor.

Hannah McCarthy: It is one hundred percent the sports metaphor. In Great Britain they called it a "standing." Anyway, the IOC would agree with all those politicians and franchise owners in the U.S. who assert that politics has no place in sports. It's literally on the books. You can find it in their charter, and we're going to get to that later. The Olympic Charter, by the way, that's the rules governing all Olympic operations. So here's how the Olympics have traditionally gone from a glint in a city's eye to the big event.

Jules Boykoff: For many decades, cities would vie against each other for the right to host the Olympic Games. And often you'd see multiple cities going for one Olympics and they would make bids. They put together candidature files that said what they were going to do should they get the right to host the Olympics. And what would happen was after they would make their pitches. The International Olympic Committee members, the whole body around a hundred or so members currently would vote on which City gets to host the Olympic Games, and in years where it was competitive, it could be a really tight vote.

Nick Capodice: You said the way they traditionally happen, so I'm going to guess that something changed.

Jules Boykoff: This changed massively in 2017, when again, numerous cities were going for the 2024 Olympics, but one after the other dropped out. Here in the United States, we saw in Boston a vigorous and rigorous activist community teamed up with local politicos to raise big questions about the idea of hosting the Olympics.

Archival: If you're like me, the idea of a Boston

Archival: Olympics at first is kind of exciting. So why the only 40 percent of Massachusetts voters support Boston 2024.

Jules Boykoff: Ultimately, decision makers elected officials in Boston handed back the bid that they had been handed by the United States Olympic and Paralympic Committee.

Hannah McCarthy: I remember this in part because I grew up near Boston, and to be honest, I got a little thrill by the idea of the Olympics coming to town. But the public polling was bad enough to convince the city to withdraw its bid. So Boston backed out and nearly everyone else had already dropped out at this point.

Jules Boykoff: Only Los Angeles and Paris were still standing. And so at that time in 2017, they allocated the 2024 Olympics to Paris and the 2028 Olympics to Los Angeles.

Nick Capodice: To how is it that the Olympics were just handed to Paris and L.A? Did residents of those two cities say they really wanted it?

Jules Boykoff: Neither city had had a ballot measure where everyday residents of those cities were given an opportunity to weigh in to say whether they wanted to host the Olympics or not.

Hannah McCarthy: It turns out that around a dozen Olympic bids were revoked between 2013 and 2018. The reason voting ballot measures at demands for a vote or someone winning office on an Anti-Olympic platform.

Jules Boykoff: And so what the general trend is, whenever you see an outburst of democracy that tends to not benefit the International Olympic Committee, then all my days studying the Olympic Games. I have never once seen a grassroots democratic bid come from the ground up in society, where everyday working people in the city say, Hey, we really want to host the Olympics. Never have I seen that. Instead, it's always well-connected political and economic elites who figure they can use the Olympics to trampoline their careers or to make some money. I mean, there really is a lot of money sloshing through the system.

Nick Capodice: But how does that work, exactly? If the Olympics are indeed largely unpopular with citizens, why would someone hoping to help their career even put in a bid?

Hannah McCarthy: Well, it's still the Olympics. It's still a prestigious major event that draws the attention of nearly the entire world. I mean, if you're the mayor who brought the summer games to your city, you are someone who got something enormous done. And by the way, you're networking with the other elite folks in your city and people who work at the International and National Olympic Committees, you're meeting important people. You're also probably not going to be the person in charge anymore. By the time the Olympics come to town, so you are unlikely to be blamed for the downsides of hosting the Olympics.

Nick Capodice: All right. And this is the part I need some help on. Jules is saying essentially that when you ask the voters if they want the Olympics, they tend to say, Heck, no. So why? What is so unappealing about hosting the Olympics in your hometown?

Jules Boykoff: This goes all the way back to a really interesting case that a lot of people don't think about in the 1970s, when Denver was handed the 1976 Winter Olympics.

Archival: The Denver Olympic story starts in a land of Olympian proportions.

Jules Boykoff: Your listeners might be saying Denver 1976 Olympics. I don't remember those. That's because they never happened, because people across the political spectrum, from fiscal conservatives to more a left of center environmentalists got on the ballot, a measure that said we will give no public money to host these Olympic Games and guess what? They won. Conservatives, liberals and everyone in between turned out and voted down. Hosting the Olympics in Denver with public money. And so those games never happened in Denver, the International Olympic Committee was forced to move them to Innsbruck, Austria.

Nick Capodice: Ok, I get that it's a money thing that's relatively easy to understand. We're going to spend massive amounts of public money is rarely a popular proposition with voters.

Hannah McCarthy: That's only part of it. But yeah, hosting the Olympics means investing a huge amount of money into infrastructure. After all, you need somewhere to host the competitions so we can start there. Jules broke it down for me like this. There are four major issues that citizens worry about when it comes to hosting the Olympics.

Jules Boykoff: Every single Olympics for which there is reliable data going all the way back to nineteen sixty has had cost overruns. In other words, I call this Etch-A-Sketch economics where in the bid phase of the Olympics, the people putting forth the bid say that it will only cost, say in the case of Tokyo, seven point three billion dollars. Then they get approved by the International Olympic Committee. They take that Etch A Sketch, they shake it up and they put a brand new number on it that is inevitably higher. In the case of Tokyo is around four times higher. I mean, estimates are in the neighborhood of $30 billion were spent on the Tokyo Olympics. So from 7.3 Billion to $30 billion.

Nick Capodice: 30 billion.

Hannah McCarthy: Yeah. It's -

Nick Capodice: 30 billion. 30.

Hannah McCarthy: Yeah.

Nick Capodice: With a B.

Hannah McCarthy: Yes. It's an immense amount of money. But I got to be clear here, the IOC does provide a chunk of that budget, but host cities are still responsible for the cost of venue construction, security, transport, medical services, customs and immigration and a bunch of other operational stuff.

Nick Capodice: Oh, I remember 2016 watching the Brazil opening ceremony, and there's this moment when it was just supermodel Gisele Bundchen walking the length of the stadium. And the announcer is like, yeah, they had some last minute budget cuts.

Jules Boykoff: A second trend the social scientists have identified is the militarization of public space

Hannah McCarthy: In recent years. In particular, the Olympics have become an explicit terrorist target, not to mention the standard security risk that comes with a massive infusion of people, teams and spectators.

Jules Boykoff: Essentially, local security forces use the Olympics like their own private cash machine, getting all the special weapons that they would never be able to get during normal political times. And they don't just return those after the Olympics. In fact, they keep them and they become part of everyday policing.

Hannah McCarthy: And then there's this factor that I think often flies under the radar when a city wins an Olympic bid. The Olympic Village, the competition venues, those are going to have to go somewhere in that city, and that means moving people around.

Jules Boykoff: There's also the displacement and eviction of everyday working people in the city. So when China hosted the Olympics back in 2008, one point five million people were displaced from their homes in order to make way for Olympic venues in Rio de Janeiro. For the twenty sixteen Olympics, there were seventy seven thousand people who were displaced to make way for the Olympics, even when the numbers aren't really high. The human cost is still very real. I visited Tokyo in July 2019, where I interviewed two women who are displaced by the 2020 Olympics. But not only were they displaced by the Twenty Twenty Olympics, they had actually previously been displaced by the nineteen sixty four Olympics, the same women. And so that social public housing complex of working people and working families was decimated. A community was decimated in Tokyo.

Hannah McCarthy: On top of all this, cities will often make promises about how the Olympics will benefit a city long term, widespread improvements to housing and other infrastructure. And if you look at Atlanta, for example, that City really did see a boon from the 1996 Olympics. Certain areas improved and stayed that way, but long neglected low income communities tended not to see that same benefit. In fact, it was only those communities closest to the action of the games that got a makeover back in ninety six. Finally, the last major concern for cities, especially for activists equipped to push back against the Olympics.

Jules Boykoff: The last trend that social scientists have pointed to more and more is the tendency to engage in greenwashing. In other words, promising big ecological gains in society by hosting the Olympics, but not really having much follow through. And again, Tokyo is really instructive in that sense. Originally, when they were to get the Olympics, they were telling the International Olympic Committee that these would be the quote recovery games that would help the affected areas around Fukushima that had been slammed by the triple whammy earthquake, tsunami and nuclear meltdown to recover more quickly.

Hannah McCarthy: The thing is, Jules interviewed people in Japan, elected officials, scholars, people on the street, and they said that hosting the Olympics actually slowed down the green recovery process. A lot of the equipment and materials needed to deal with that crisis in Fukushima were sent to Tokyo, where the Olympics were being held instead of staying where they were pretty desperately needed.

Jules Boykoff: So because of those four trends, there are just simply fewer and fewer cities that are game to host the Olympic Games anymore.

Nick Capodice: Wow. So at this stage, Hannah, I'm starting to cast about looking for the upside. We've heard the Olympics are expensive. They militarize public space. They displace communities and they fail to deliver on environmental improvements. So what does a successful Olympic season look like? Do we even have them?

Jules Boykoff: So I've done a lot of research around the nineteen eighty four Olympics in Los Angeles. This is one that Olympic boosters often point to as one of the more successful Olympics, if you will.

Archival: Welcome to the opening ceremonies of the Games at the 23rd Olympiad at Los Angeles.

Jules Boykoff: First of all, we didn't lose a ton of money. They ended up with a small surplus. And if you talk to people in Los Angeles, some of them really do have a positive feeling about that.

Hannah McCarthy: Some people, though, Jules means like the mayor of L.A., Eric Garcetti and fellow Olympic supporters media tycoon Casey Wasserman. So yeah, there are people who will say that there's a major upside, but there's always the other side of the coin.

Jules Boykoff: I also interviewed lots of Latin X and African-American residents of Los Angeles who felt very different about those games. What they said when they thought about the nineteen eighty four Olympics was they remembered the words of the helicopter blades above their neighborhoods. They remember the machinery, the military. Her eyes, machinery that was brought in to keep activists at bay during the Olympics, who are trying to raise big questions about the spending around the 1984 Games and other elements. And so there's a real racialized remembrance of the Los Angeles Olympics, and we can't just brush the feelings and experiences of those folks under the table. We need to think about that as well.

Hannah McCarthy: By the way, those same marginalized communities are looking at the 2028 L.A. Olympics with the memory of how they did not benefit and were in fact negatively impacted back in nineteen eighty four, which is why you see groups like no Olympics L.A. taking a stand against their city's games.

Archival: And you know, our main mission is to stop the Olympic Games, not just from happening here in L.A, but just to educate people on why that's the thing that needs to happen.

Hannah McCarthy: But I want to pivot here, Nick, because the way a city's residents feel about hosting the Olympics, that is just one piece of the political puzzle. What are the other motivating factors for hosting the Olympic Games? How are these games used as a political tool and what do the athletes remember them? Think about this? That's all coming up after the break. Before we dive back into the international intrigue that is the Olympic Games, I am here to tell you that there is a great deal of stuff that did not make it into this episode and it is good stuff. The Olympics have layers upon layers of complicated dynamics, and that makes sense because this is a global event. But the point is the stuff that didn't make it in. You want to hear it? Trust me. For example, what does it mean for one TV network to have exclusive broadcast rights for the Olympic Games? It means a lot, people and I want to tell you and I will and our next extra credit newsletter, we send it out every other week, and it's packed with the other stuff we are learning and the clips from the cutting room floor. You can subscribe right this very moment at our website civics101podcast.org. All right. Let the games begin.

Nick Capodice: All right. Hannah, before the break, we heard about how the Olympics end up in a city and the impact of hosting for good or for ill. But it seems to me that the power of the Olympics extends beyond political hobnobbing and justifying major spending. So what else motivates cities to host them? What does it for them?

Nancy Qian: For over a year now, I've actually been working on a research project about the motivation that governments have for holding the Olympics.

Hannah McCarthy: This is Nancy Qian. She's a professor of economics and decision sciences at Northwestern. I spoke with her after reading an article she wrote called Good and Bad Olympic Nationalism. And she told me that over the course of her research, she's found that democracies tend to bid on the Olympic Games when they're doing well, economically speaking. But autocracies, a.k.a. governments where power is concentrated in one person's hand, are the opposite.

Nancy Qian: Autocracies are more likely to bid for the Olympics bid and win, I should say so. These are meaningful bids when things aren't going well economically.

Nick Capodice: Wow. So it's like, Hey, citizens pay no mind to the fact that things aren't going so well right now. We're going to try to host this flashy, distracting, prestigious event, which, by the way, is exactly what a bread and circus is. It's basically anything that superficially pleases people.

Nancy Qian: Obviously, most bids are not successful, right? So the vast majority of bids are just signals that the country is interested. And maybe it gives the country some news headlines like, you know, we're going for it. This is something interesting to do. And maybe it distracts the country from other types of news. But most bids are not serious bids, right? They don't have a chance.

Hannah McCarthy: This is an important factor. We can talk about the politics of hosting the Olympic Games and we will do more of that in just a moment. But that distinction is reserved for those nations who actually make the cut.

Nancy Qian: I think so often we just focus all of our attention on the big power players, right? Like the economic political superpowers who are also the one getting the most medals. And also most often they host the Olympics more often than the other countries, right? So there's good reason for focus. But there's so many countries, most countries, there's over one hundred countries that go to the Olympics. Most of them will never host the Olympics. Most countries don't win medals actually like any medals. And then for these countries, the Olympics are an entirely different experience,

Hannah McCarthy: And it's in that entirely different experience that you can find the difficult to measure positive vibes principle. What good can the Olympics do, especially when you are not the one hosting the games?

Nancy Qian: Researchers have shown using data from soccer games that, for example, for African countries competing together is really good for national unity, so it is still about patriotism and national unity. But it doesn't seem to have that negative element of international competition with other countries, which makes sense because they're not really contenders, right?

Nick Capodice: I would imagine that there's this sense of being sort of the David to the Goliath of the world's best sports teams, and that's something to bond over with other nations who are in the same boat as you. And also, you do get to play with the major contenders, and that's got to feel good.

Nancy Qian: All countries that go to international sporting games can get a big boost of patriotism and nationalism and bonding. But the political effect of that binding differs depending on where on the political spectrum of power you are, right? So if you're a weak state, that's fractionalized coming out of years of civil war, you know, competing in the Olympics. This is a moment of building solidarity for your country, which is good, right? By and large.

Nick Capodice: Oh yeah Hannah, this makes me think of South Sudan joining the 2016 Olympics, it was a huge deal because here you had this newly independent nation asserting its place on the world stage.

Archival: And a person that never heard about South Sudan or never see South Sudanese, to see that we are a new country. And also we need...

Hannah McCarthy: I do want to touch on this contendere question this idea that some nations are simply not contenders? Developing nations might not be meaningful contenders because their economic and political environment is not conducive to training and supporting their athletes. And there have been calls for the IOC to create a separate Olympic Games for developing nations or to build central training grounds for athletes who don't have access to them at home. Still, as it is now, these non contenders do stand to get something out of participation in the Olympic Games.

Nancy Qian: So really, it's it's more about a shared experience of being at the Games together, something that you've been doing, something you've been training for years that can actually build solidarity between people from different countries as well as different groups within countries, right?

Hannah McCarthy: For example, take the infamous divide of the Cold War. It was enough for the U.S. to boycott the Olympics in the Soviet Union and then for the Soviet Union to turn around and do the same to us. When the Cold War came to an end, Soviet and American athletes were face to face for the first time in a long time.

Archival: They're not one of the better serving teams in the world, and they can put a little pressure on the Soviets. They can make some points...

Nancy Qian: All of a sudden, you know, athletes who weren't allowed to talk to each other before, like the floodgates were open, and it turned out that all they had were like, these really positive feelings about the other athlete. So this sort of gives you the sense that a lot of the politics surrounding it is manufactured by the government and the media. My sense is that it's easier for the smaller countries because there's there's less incentives for governments and media to create tension, create political tension or magnify existing tensions.

Nick Capodice: Ok, Hannah, speaking of magnifying tensions, I have to ask about what is going on as we speak, which is a diplomatic boycott of the 2022 Winter Olympics in Beijing, China.

Archival: A diplomatic boycott now of the Beijing Olympics over China's crackdown on democracy and human rights abuses.

Nick Capodice: The United States announced it first and then Canada, Australia and the UK followed suit. And from what I understand, China was not happy about it.

Archival: Yeah, David, they are calling this one pure political provocation, and they are now threatening countermeasures, though they are not specifying what those are....

Nick Capodice: So my first question is this does a boycott mean that we're not going to go to the Olympics at all?

Hannah McCarthy: Great question. It did. Once upon a time, I mentioned the U.S. boycott of the Soviet Olympic Games during the Cold War. That was a boycott in which even athletes were not permitted to attend the games, and we're not doing that this time.

Nancy Qian: I actually talked to some former Olympians about it. I just happened to have an opportunity and they were like, This is nothing like the Cold War, right? Because the Cold War, they didn't let the athletes go, and that was terrible for the athletes. That was a huge cost for the athlete. That was a price that was paid to make a huge political gesture.

Hannah McCarthy: In 1980, the Olympic Games were taking place in Moscow. The Soviet Union had recently invaded Afghanistan, and President Jimmy Carter set a deadline for Soviet troops to withdraw when they didn't make that deadline. Carter said, OK, we're boycotting the Olympics

Jimmy Carter: Human rights and who believe in peace. Let our voices be heard in an absolutely clear way and not add the imprimatur of approval to the Soviet Union and its government.

Hannah McCarthy: And not only that, any American athlete who attempted to attend the games under, say, a neutral banner would have their passport revoked.

Nick Capodice: And what does it move like that say to the rest of America?

Hannah McCarthy: Well, a lot of Americans pitied those athletes who couldn't compete. They were Olympians without the Olympics. Still, Carter was saying, we will in no way appear to support an anti-democratic regime. This was an acknowledgment of the political power gesture of going to the Olympics, of sitting with other leaders and diplomats and shaking hands and smiling while your country's athletes display their elite skill, which, by the way, brings me to a boycott that did not happen,

Nancy Qian: Such as the one in Berlin where people in hindsight thinks maybe someone should have banned it. But we all went. Everybody went the entire Western world who ended up at war with each other later all went and participated and celebrated.

Archival: And meanwhile, a packed

Speaker3: Stadium and flag draped cheering streets greet Chancellor Hitler on his way to perform the opening ceremony.

Hannah McCarthy: This is the 1936 Berlin Olympics, also known as Hitler's Olympics, and it started the first meaningful Olympic boycott movement in the United States. A lot of Americans were opposed to attending. Here's Jules Boykoff again.

Jules Boykoff: The boycott movement was widely supported in the United States, certainly by Jewish groups who could see the writing on the Wall already with what Hitler was doing after his rise in 1933. But it was really gaining steam even among certain athlete groups in the United States as well.

Hannah McCarthy: The quote boycott movement was widely publicly discussed leading up to the 1936 Berlin Olympics. What message will it send if we send our athletes to Berlin? Will that legitimize this burgeoning Nazi regime?

Jules Boykoff: So what happened was the American Olympic honchos decided to send over a guy named Avery Brundage on a Fact-Finding mission to Berlin to figure out what was actually going on there. Well, Brundage, it should be said, was very pro-Nazi, very pro Germany. He was wined and dined by the Germans. He had his own translators, which were, of course, Nazi approved translators. And guess what? He comes back to the United States and says there's nothing to see there. Everything is going to be fine. And of course, don't even need to worry about this anyways, because the Olympics are neutral, they are not political. And so we have nothing to fear here.

Hannah McCarthy: Of course, that wasn't true. And closer to the games, it became apparent that there was in fact vehement anti-Jewish sentiment in Germany leading up to the Berlin games.

Jules Boykoff: And in fact, the president of the International Olympic Committee at the time account, named Henry Bilat, later was alarmed by the anti-Jewish signage that he saw in the countryside as he traveled to those Winter Olympics in Garmisch-Partenkirchen. And he requested directly to Hitler that he get those signs down because they were going to do no good for the Olympic Games or really humanity more generally.

Hannah McCarthy: Mind you, Hitler was not really into sports. He was not convinced that he should go along with the IOC. Ultimately, Joseph Goebbels, his propaganda minister, convinced him to end. Germany then got to use the Olympic Games in a number of ways, for example, and this one blew my mind. It was the Germans who invented the modern Olympic torch relay.

Archival: Berlin's great day dawns with the arrival of the Olympic flame at the end of its 2000 mile journey from Greece.

Jules Boykoff: At that time, it was basically a scouting mission to figure out who are you are going to invade next for Germany and if you see where the torch went. Those were countries that were soon conquered, many of them.

Nick Capodice: Seriously? Why did I not know that little piece of information?

Hannah McCarthy: Yeah, I hadn't either. Apparently, Hitler also saw this relay is a great way to tie the Olympic Games to their Greek roots, which was important to him because he saw a link between ancient Greece and the Aryan race. And then, of course, there's the fact that the Olympics meant major media coverage for Nazi Germany.

Jules Boykoff: The New York Times wrote glowingly of Hitler as one of the great leaders of our time after those Olympic Games. And so, you know, people who are following those Olympics were high on the five ring supply, if you will, at the time. And it really helped Hitler and gave him more space to maneuver politically moving forward.

Nick Capodice: All right. So if we want to look at exactly how politically powerful the Olympics are, this seems like the perfect example. The major power players of the world, including the United States, attend these games hobnob with Nazis, and it really helps that regime on the global scale.

Jules Boykoff: There's a lot of people wondering, are we essentially doing the same when we allow Russia to host the Olympics in twenty fourteen or China in twenty twenty two? And hey, there's plenty of people that are concerned about that. The Olympics are being held in the United States, which has eight hundred military bases around the world, it must be said, whereas China only has three who's the United States spends a huge amount of money on its military compared to these other countries. And so I think in fairness, that needs to be brought into the frame as well. When we're talking about these Olympic Games and the processes of democracy and how it can help forces in society that are anti-democratic gain a foothold through hosting the Olympic Games.

Hannah McCarthy: All right, so now we're going to move away from the politicians, the nation states the potential invasions, the diplomacy to the athletes, the actual Olympians at the heart of these games. How did their politics fit or not within the Olympics? That's coming up after the break.

Nick Capodice: But first, just a quick reminder that Civics 101 is a listener-supported show. Go to our website civics101podcast.org, click the donate button with whatever amount is good for you and you'll get a gold medal in our eyes.

Hannah McCarthy: Welcome back to Civics 101. We're talking the politics of the Olympics, including the politics of the people at the very heart of these games, the athletes, we know these games are a way to connect with other great athletes that for the competitors, the political divides of their nation are insignificant in the face of their mutual respect for others who train as hard as they do, who are a part of their very small club. But Olympians themselves figure it out a while ago that they too can use these games as a platform just as their home countries do.

Jules Boykoff: That epic moment of political dissent where John Carlos and Tommie Smith stood on the medal stand in Mexico City and thrust their black gloved fists into the Mexico City sky, while the person who plays second to gentleman from Australia named Peter Norman, a white guy from Australia, stood in solidarity wearing a button that said, OK, Air Olympic project for human rights.

Archival: There were some boos in the stadium last night. ABC Sports Editor Howard Cosell spoke to Tommie Smith after he accepted his gold medal.

Tommie Smith: The right glove that I wore on my right hand signifies the power within Black America, the left glove. My teammate, John Carlos, who on his left hand made an arc, my right hand to his left hand also signify black unity.

Nick Capodice: Yes, I know this moment very well. Carlos and Smith gave the black power salute. Smith later said that for him, it was the human rights salute. And it turned out that despite not giving the same salute, Peter Norman from Australia was in full support of their demonstration,

Hannah McCarthy: And this is still considered one of the most overtly political moments of modern Olympic history. And it really damaged Carlos and Smith's careers.

Jules Boykoff: And so, of course, the International Olympic Committee was in freakout mode after that happened, and they put loads of pressure on the United States Olympic Committee to give Carlos and Smith the boot from the Olympic Village, which is exactly what happened.

Hannah McCarthy: This highlights, by the way, the dissonance between the way that nations use the games and the expectations that the games themselves will be nonpolitical, that sports are inherently neutral, an insistence that the IOC eventually put on the books. So you had the Carlos and Smith moment in 1968, and then in 1972, Wayne Vincent Matthews and Wayne Collette stood on the medal stand and sort of disinterestedly spun their medals around on their fingers.

Jules Boykoff: The point is, after those two outbursts by U.S. African-American athletes in comradeship with other athletes, the IOC decided to put this rule on the books.

Hannah McCarthy: This is Rule 50 of the Olympic Charter. It bans any form of political demonstration during the games.

Jules Boykoff: And athletes are more and more aware of it, especially today, because I think it's fair to say we're living in what could be called the athlete empowerment era, where more athletes are standing up and socially conscious, politically motivated ways. And so the International Olympic Committee is certainly aware of that and is continuing to stand by this rule, even as it has made minor minor modifications along the way, which is what we saw in Tokyo, for example, when it allowed a little bit more space for athletes to express themselves. And what I mean by that is they adjusted the rule whereby athletes could speak out on issues or take a political stand before their competition began. And that's why you saw with some of the women's soccer games at the Tokyo Olympics, all the athletes taking a knee before the game. Now, you still couldn't do it during the game and you still couldn't do it on the medal stand.

Hannah McCarthy: Jules made this point near the end of our conversation, and for me, this really gets to the heart of, you know, how do we use the Olympics? What are they? Are they a celebration of athleticism, a deep commitment and sacrifice? Yes, absolutely. Do I drive an inimitable sense of awe when watching the world's greatest athletes do their thing? I do. Many of us do. And the Olympics are a platform participating nations find a way to use this platform. And some of the athletes at the heart of these games do the same thing or try to even if they're not really allowed,

Jules Boykoff: Even that didn't stop an amazing and I think epic act of political dissent from happening in Tokyo when the U.S. athlete Raven Saunders put her arms in a shape of an X on the medal stand to represent oppressed people across the world.

Raven Saunders: We kind of decided that the X was going to be like a sign of our sign of, you know, and what it stood for for us. And leading up to that podium standoff I was like, ehhh, all right I was like, all right, it's time.

Jules Boykoff: And it was a powerful, powerful moment. And fortunately, the International Olympic Committee did not crack down on Raven Saunders, in part because her mother was very ill at that time and they decided not to lash out with a penalty. It would have been even uncouth for them. And but the point is, you really can't put athlete activism into the bottle despite these kind of rules against it. It is not going to stop some athletes from taking a stand.

Nick Capodice: The IOC's position here sounds not totally dissimilar to what's happening in the U.S. right now with the intersection between sports and politics. You've got the people in power, which are politicians, sports league elites, franchise owners predominantly insisting that political demonstration or affiliation has no place on the field or the court. And then, on the other hand, you have athletes using their platform to take a stand. And specifically, in the U.S., these are athletes of color, and they're drawing attention to racial injustice.

Hannah McCarthy: Right? It's a raging debate. On the one hand, athletes are vilified for taking a knee during the national anthem at an NFL game. On the other hand, the NFL insists that the national anthem be played. On the one hand, the IOC demands athletes keep politics off the medal stand. On the other, the Olympics are a series of political decisions from beginning to end. And just a reminder, by the way, that other nations around the world make no buts about the connection between politics and sports.

Jules Boykoff: Let's not forget, despite everything I've been talking about with you here, Hannah. The Olympics are tremendously popular in the public sphere. So long as they are not happening in your city, then big questions tend to get raised, but otherwise they still are popular. Billions of people will tune in to watch them, which means that's a stage of billions of people that could see your political message if you're an athlete willing to share it on that big stage.

Hannah McCarthy: This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer. Music in this episode by Ketsa, Metre, Xylo Zico, Mello-C and the inimitable John Williams. You can check out all of our episodes and more at Civics101podcast.org and make sure to never miss an update on how our democracy and government works. Follow our podcast on iTunes, Spotify or wherever you get your podcasts. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Kamala Harris will be the nominee. What now?

You have questions about the future of the democratic ticket, and Civics 101's favorite explainer, Dan Cassino, has the answers. What happens to Biden's fundraising money? What will the delegates at the DNC do? Will there be any legal challenges? And finally, what does it mean for a party when they nominate a candidate different than the one that won the primary?

Dan Cassino is a professor of political science at Fairleigh Dickinson University. 


Archival: Just a stunning announcement from President Joe Biden that he intends to step down as a candidate in the 2024 election.

Archival: After the president announced that he was going to step aside in this race. Was who exactly was going to step in, Rachel? The president, in a tweet just announcing that he is offering his full support and endorsement for Kamala Harris to be the nominee of the party.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we [00:00:30] are talking about, well, this last weekend, what are the systems and processes and the historical precedents for when a presidential candidate steps down a scant few months before the election.

Hannah McCarthy: And just for a super quick catch up in case anyone threw their phone into the ocean on Sunday. Uh, Nick. What happened?

Dan Cassino: So yesterday afternoon, uh, President Biden announced that he would not be running for reelection. He would not seek reelection.

Nick Capodice: This is Dan Cassino, professor of political science [00:01:00] at Fairleigh Dickinson University and guest on our show. Maybe 19 times over, I called Dan Monday, July 22nd. And because the world of politics moves so fast these days, we are recording these words on Tuesday, July 23rd.

Dan Cassino: And shortly afterwards he endorsed Vice President Kamala Harris for the Democratic nomination for president. We then saw a tidal wave of endorsements for Kamala Harris, and it looks like today, a day later, looks like it's [00:01:30] almost sewn up. In addition to all the elected officials who have, you know, either endorsed her or at least not endorsed anyone else. We've also seen that none of the other people who are thought to be the major challengers for the Democratic nomination have thrown their hat in the ring. In fact, several of them have actually endorsed Kamala Harris. So if they were going to have some sort of open contest, it's not clear who that contest would be between because nobody seems to want to run. Add on top of that is that Kamala Harris seems to have had the best fundraising day in the history of the Democratic Party over the last [00:02:00] 24 hours, which are kind of just getting over now.

Archival: Jeff, what did we learn in this first full day of the Harris campaign?

Archival: Well, we learned that she can raise a lot of money in a very short amount of time.

Nick Capodice: Quick update to that. At the end of that first 24 hours, the total was $81 million raised for Kamala Harris's campaign, which is the most money ever raised by a presidential campaign in 24 hours, not to mention another $90 million [00:02:30] in donations to Actblue, which is a website for donations to members of the Democratic Party. Up and down the ballot. Okay.

Hannah McCarthy: And is this in addition to the millions of dollars that the Biden-Harris campaign had already raised, the the money that's in the quote unquote, war chest?

Nick Capodice: Yeah. And I'm going to get more into the war chest a little bit later. Uh, but prior to Sunday's announcement, the Biden-Harris campaign had already raised $96 million.

Hannah McCarthy: That is, it's just remarkable [00:03:00] that they had raised $96 million. And then in one day they raised like, I know we're talking about millions of dollars, so it's whatever another 81, like almost as much. They practically doubled. It's just that's really interesting. Okay. So I want to know the history of this, Nick and the systems of delegates and the convention and the nomination. But first, what does this mean? Like what does this tell us about the parties? If a candidate is chosen after the primary,

Dan Cassino: This sort of [00:03:30]thing is very much what we call the party deciding. So this is actually one of the big debates in political science is do parties still really matter at all? And, you know, we've got all these primary elections. So if it's just primary elections, it doesn't matter what the party wants. The party can't dictate things to the to the electorate. And we've seen some cases, the electorate dictating things to the party.

Hannah McCarthy: I imagine you're going to come back to it a few times. Primaries are relatively new. They started in the late 1960s to prevent backroom [00:04:00] deals and allow the people, not the party, ostensibly, to choose a candidate. Did Dan have an example of a time that the party and the people split?

Nick Capodice: He sure did.

Dan Cassino: So our best example of this is in 2016, when the Republican electorate very much wanted Donald Trump. The leaders in the Republican Party did not want Donald Trump. But it didn't matter. The party wasn't able to coalesce. Now, on the flip side of that, we have what happened with Joe Biden in 2020. Joe Biden was [00:04:30] basically nobody's first choice in the 2020 Democratic nomination race, but he was pretty much everyone's second or third choice, thought to be a pretty safe choice. And what happened was over basically one weekend around the South Carolina primary, the entire Democratic Party got behind him and said, this is our guy, pressured some other candidates to drop out and endorse him, and he became the guy almost overnight. So the party, at least the Democratic Party, has still shown some capacity to unite and to push their candidate forward. And that's basically what we saw over the last 24 hours. [00:05:00]

Hannah McCarthy: Okay, so now I just have to know, uh, has this happened before? Has a party's candidate ever switched so close to the election?

Nick Capodice: Not like this exactly. We are in rather uncharted waters here, but there are two examples in modern history.

Dan Cassino: So we all talk about 1960 with Richard Nixon or even 68. 68 is actually a similar election to this, in that the sitting president, Lyndon Johnson, who was like a term and a half into because he took over after [00:05:30] Kennedy was shot, decided not to run for reelection. Now, Johnson decided not to run for reelection very early on. It was, in fact, after the New Hampshire primary, where he didn't lose. He actually won the New Hampshire primary, but only won it by 10 or 15 points. And he said, oh my God, if I'm only winning New Hampshire by 10 or 15 points as an incumbent president, I'm out.

Archival: I shall not seek and I will not accept the nomination of my party for another term as your president.

Nick Capodice: Now the 1968 Democratic National Convention [00:06:00] was bonkers.

Archival: That's Wisconsin is not recognized for that purpose. I did not listen to Wisconsin.

Archival: Is the call of the role of the state or balloting on candidates?

Nick Capodice: We've talked about it in several episodes, but the important thing for today is that Lyndon Johnson dropped out of the race in March of 1968. Now, if we're going to contrast this to President Biden, this is four months earlier than he did [00:06:30] the same. However, we do have an example that's just a little bit closer to what happened this week.

Dan Cassino: The closest we have to this is in 1972. So this is Richard Nixon running for reelection, and he's running against George McGovern. And George McGovern, uh, he's well behind in all the polling, right? Nobody thinks he has much of a chance of winning. And so he decides he's going to at the convention, he's got to pick his VP candidate so he doesn't vet any of these VP candidates beforehand. He just going, well, these are [00:07:00] all senators or governors. They're all people he trusts, all people that are well known. He's not worried about them. So it goes in the last minute. He picks Thomas Eagleton, right. Eagleton center. Okay, this guy is going to be fine. We're not worried about him. And they ask Eagleton. Oh, is there anything we need to know? Any reason we shouldn't be picking you? He says no, no, no, it's all fine. There's nothing you need to worry about. And of course, we find out over the course of the next two weeks is not only had Eagleton suffer from depression, which in 1972 was considered to be somewhat disqualifying, but he'd also had electroshock [00:07:30] treatment to treat his depression.

Hannah McCarthy: The fact that someone had suffered from depression and was treated for it was enough to make a candidate unelectable. Yeah, it.

Nick Capodice: Was like this was before the movie One Flew Over the Cuckoo's Nest was made. But the book by Ken Kesey and the very successful Broadway play based on it painted a very dark picture of electroshock therapy

Dan Cassino: And worse it just kind of dribbled out over the course of weeks. Now, how did it dribble out? Well, the [00:08:00] there's a strong suspicion that the Nixon campaign actually was doing some of their dirty tricks. The Nixon campaign had a different term for it that we will not say on the air.

Archival: Rat fink, rat fink. Yay yay.

Dan Cassino: Nixon campaign dirty tricks that they might have been leaking this out. And so Eagleton first is denying it, then saying, well, it's not that bad ahead depression. But nothing else happened. And then said, well, I didn't get electroshock, but then admitted they did. And then after two weeks, two weeks after the convention, he was forced to drop out. So even after he'd been formally nominated, he was forced [00:08:30] to drop out and was replaced by the new Guy McGovern pick, Sergeant Shriver, who is up there with the name that sounds most like a G.I. Joe character in American political history. And the DNC just said, okay, cool. Sergeant Shriver's our guy. We're going for it.

Hannah McCarthy: And McGovern lost in a landslide, didn't he?

Nick Capodice: Oh he did did, uh, one of the biggest landslides in US history. McGovern won one state and one state only. Not even his home state, the grand state of Massachusetts.

Hannah McCarthy: Oh, that's my home state.

Dan Cassino: So that's similar in that it's [00:09:00] a last minute pick and it's actually worse than the snare we have right now for the Democrats in that the convention had already happened. And the difference there is the convention was much earlier. So this year the Democrats have gotten themselves into a spot of trouble because they pushed their convention back. Now, if they had good reason to push their convention back, the reason they pushed the convention back, the convention this year is going to be what it's going to be August 19th through 22nd. The reason they pushed it back is because of the Olympics. You know how like if you're [00:09:30] watching a show on Fox, it always gets pushed back because the World Series, it's the same thing. Like nobody's going to pay attention to the DNC as long as the Olympics are on, because I've got, I don't know, judo or the four by 100 to watch. So they said, we're going to do it after that. And again, for political perspective, this makes some sense because there's generally a convention bounce right after convention you do a little better. And so if I'm going to get a bounce, I'd rather have a bounce closer to the election day rather than after the election day. So Democrats push their convention all [00:10:00] the way back. So they weren't going to officially nominate someone until August 21st. The problem with that is that a bunch of states have deadlines for who's going to be on the ballot in the beginning of August.

Hannah McCarthy: Okay, the Democratic National Convention is in Chicago. And as Dan said, it starts on August 19th. Can we just do a little refresher on conventions and delegates and how it all works?

Dan Cassino: All right, so let's talk a little about delegates of the convention. So this is a lot like the Electoral College. [00:10:30] And remember the Electoral College we vote for president. You are not really voting for the president. You are voting for a list of people that you've never heard of, many of whom are local used car dealers, and they are people who are pledged to vote for the candidate. You say. So if you go into the election booth and you vote, you know, it was 1980 and darn it, you're voting for Ronald Reagan. You're not actually voting for Ronald Reagan. Depending on which state you're in, you're voting for a list of delegates of people who pledge that electoral college they will vote for Ronald Reagan. All right. At the convention, Republican [00:11:00] National Convention, we are doing approximately the same thing. It'll say Joe Biden or Donald Trump on the ballot in the primary, but you're not actually voting for Donald Trump or Joe Biden. You're actually voting for a list of names of people who pledge that they will vote for that candidate at the convention on the first ballot. So hasn't happened in a long time, But in theory, if nobody gets a majority on that first ballot, then you have a second ballot. You vote again. And in most states after the first [00:11:30] ballot, those delegates can vote for whoever the heck they want again. Hasn't happened a long time. Political observers are desperate for it to happen just once in their lifetimes. They just really want to see this, and right now they're actually a little upset.

Hannah McCarthy: When was the last time that we had a contested convention?

Nick Capodice: Not for a long time. Like we sort of had 1 in 1984, but not really. Walter Mondale was a few dozen delegates short before the convention, but by the first vote he had the clear majority. [00:12:00] But the longest and most brutal convention was the DNC in 1924, where John Davis was finally, after days picked as a nominee.

Hannah McCarthy: How many ballots did it take? 103 whoo-hoo-hoo-hoo.

Nick Capodice: Yeah, and he lost. He lost to Coolidge real bad.

Hannah McCarthy: So how many delegates are going to be at the upcoming DNC in August?

Nick Capodice: 4600.

Hannah McCarthy: And some of them are super delegates, right. Can we just break that down real quick?

Nick Capodice: Absolutely.

Dan Cassino: So of those 4600 [00:12:30] delegates, about 3900 delegates are pledged and 700 are we call unpledged or super delegates. So 3900 delegates are people who have picked in primaries or by some other nominating process, and they're pledged to vote for one candidate or the other. 700 of them are not pledged to vote for anybody. They're mostly elected officials who kind of get an automatic seat. Right. So Bill Clinton is a super delegate, right? Because he doesn't have to run for any particular state. He's Bill Clinton. We're just going to let him do it. The Republicans have this, too, but in smaller numbers, right. Republican, the RNC are going to have about 2300 delegates, and only about 100 of them are [00:13:00] superdelegates. So on the first ballot, 3900 delegates after 2016, those superdelegates don't get to vote in the first round.

Hannah McCarthy: Why don't the superdelegates get to vote in the first round?

Nick Capodice: Because it can really throw a wrench into the works. For example, in 2016, the Democratic Party had put their support behind Hillary Clinton like, hey, we're doing this. And they were terrified of what would happen if the superdelegates who hadn't pledged their support to her picked Bernie Sanders. So the Democratic Party changed the rules to prevent [00:13:30] that.

Hannah McCarthy: But this year, all of those pledged delegates vowed to cast their vote for Joe Biden.

Nick Capodice: They did.

Dan Cassino: Now, do those delegates actually have to vote for Joe Biden because they've already been pledged for Joe Biden? But Joe Biden is not running now. So what is supposed to happen in the when this happens? The Electoral College, almost every time we get at least one person who says, I'm going to vote for somebody else, we don't normally get that in the parties. The reason you don't get that is because, well, how do you pick the people who are going to be your delegates? And the answer is you pick the most [00:14:00] loyal party members, you have the people who are going to follow orders. So you're not going to pick someone who's going to be faithless. You pick the most loyal guy you've got. The people are most excited about the candidate, and so they generally do what they're supposed to do. Also, it's exciting to say, I'm going to cast our votes for this guy, the next president of United States, not say, I'm going to cast my vote for this other guy over here who's not going to win. Nobody wants that. You don't get any. Cheers. That guy doesn't have any balloons at all. Why would you do that?

Nick Capodice: And last night, Monday, the 22nd, Kamala Harris [00:14:30] announced she had secured more than enough delegates to win the nomination on first vote at the convention.

Hannah McCarthy: Uh, can I can I just read to you something from the New York Times that, like, describes how Kamala Harris secured those delegates? Yeah, because it's, like, really interesting. Miss Harris's most immediate task had been to secure the support of enough Democratic delegates to lock down the nomination. A Google form asking delegates to endorse her had circulated among those key Democrats who include party [00:15:00] officials, lawmakers, local activists and volunteers.

Nick Capodice: This is like, are you going to nominate me? Yes. No, maybe is what it sounds like. Well, that Google form worked. She is the presumptive nominee. And all those political scientists who want to see a knock down, drag out, contested convention are probably going to have to wait.

Hannah McCarthy: This brings me to a talking point I have heard in the past 48 hours, what are the various state rules when it comes to who the delegates vote for, or who gets [00:15:30] put on the ballot? Will there be any legal challenges?

Nick Capodice: There might be some legal challenges have been threatened, and I'm going to get into all that right after the break.

Hannah McCarthy: But before that break, Civics 101 is listener supported and we don't even have a Google form. Make a gift at our website civics101podcast.org and we will keep making episodes with a 48 hour turnaround.

Nick Capodice: Sometimes

Hannah McCarthy: Which is fast because we have a small team.

Nick Capodice: I know it is fast sometimes. Not all the time.

Hannah McCarthy: We're [00:16:00] back. We're talking about President Joe Biden stepping out of the race and endorsing Kamala Harris as the potential Democratic nominee for the 2024 election. And, Nick, you were going to talk about how this shakes out on a state by state level.

Nick Capodice: I was indeed speaker of the House Mike Johnson said on Monday that he foresees legal difficulties to the candidate change in.

Archival: Accordance to some of these states [00:16:30] rules. For a handful of people to go in a back room and switch it out because they don't like the candidate any longer. That's not how this is supposed to work. So I think they would run into some legal impediments in at least a few of these jurisdictions.

Dan Cassino: There's only five states and maybe six depending. I read the law where those delegates look like they're still going to have to vote for Joe Biden.

Nick Capodice: Again. This is Dan Cassino, professor of political science at Fairleigh Dickinson University.

Dan Cassino: Right. Where the law in the state says the delegates have to vote for the person who won the primary. There's 14 [00:17:00] states that say they have to do it, but nine of those 14 states, there's a little waiver says if the person dies or drops out, you don't have to vote for them. It's only in five states, and maybe six that the state law says you still have to vote for the person basically, no matter what. Uh, that's Virginia, Tennessee, Oregon, New Mexico, Indiana, right? You have to vote for that person on least the first ballot. So unless they change the law, which is still possible in some of these states, I suppose, uh, those delegates would still have to vote for Joe Biden, even though Kamala Harris [00:17:30] is the presumptive nominee. The one maybe is Florida because Florida says they have to vote. I'm going to quote here, uh, in a way that reasonably reflects the results of the primary. Does that mean that they have to vote for Biden even though he's dropping out? The answer is, I don't know, and neither do you. Do we know if he's ever found out? Uh, Connecticut actually also says they have to vote for Joe Biden unless Joe Biden sends a note home.

Hannah McCarthy: Sends a note home? Like mom says, I can go on this field trip kind of thing. Yeah.

Nick Capodice: And [00:18:00] part of the reason that Dan says this litigation likely won't go anywhere is because while Kamala Harris has pledged delegates, she is not yet the nominee.

Dan Cassino: Someone becomes the nominee of the party after the convention, right? We do the roll call and then the person on the floor gavels in and says, we are officially announcing that this person is the winner. Up until then, the Democrats and Republicans don't have a nominee. So there are people. This is mostly the Heritage Foundation. The Heritage Foundation is a right wing think tank, and the Heritage Foundation has already said [00:18:30] we're going to file lawsuits. We think there's 31 states where there could be some sort of, you know, some sort of thing where we could challenge it. And maybe the judge will throw Kamala Harris off the ballot or say, Joe Biden has to be on the ballot. And then they narrow it down and say, well, okay, really realistically, there's like three that are swing states that we're going to spend. They promise to spend millions of dollars challenging any change. Now note they announce they're going to do this well before the shift. So they were basically assuming that any shift from [00:19:00] Joe Biden was going to happen after the convention. So if it's after the convention, yeah, changing the changing it is tough because remember, these states have these deadlines in the middle of August. So if you have a deadline in August and you're changing your thing after that, that could run afoul of state laws. However, the DNC didn't happen yet. They didn't officially nominate anybody yet. And so Joe Biden was not the official nominee. And so there's really not much of a place, uh, to have anyone challenge saying, well, Kamala Harris can't be on there because in theory, [00:19:30] the DNC can nominate whoever they want. It's according to their own rules.

Hannah McCarthy: What about on the ballot, though? Is this late enough in the process that some states could argue that there is not enough time to put a new candidate on the paper or on the screen?

Nick Capodice: That is a very good question, Hannah, and it is one that was answered quite recently by the Supreme Court.

Archival: The Colorado Supreme Court held that President Donald J. Trump is constitutionally disqualified from serving as president under section three of the 14th Amendment. [00:20:00] The Colorado Supreme Court's decision is wrong...

Dan Cassino: You might have remembered this decision from Colorado, where we had a judge in Colorado say former President Trump can't appear on the ballot in Colorado because he is an insurrectionist. Well, the US Supreme Court took that up and said, you can't just have a difference in state rules that say that a major party candidates on the ballot in some states and not on the ballot in others, that would be awful. That would be a derogation of democracy. So there's not really there's not really a legal leg to stand on here. Uh, however, this is politically there's a play [00:20:30] here, which is to basically claim that Kamala Harris is an illegitimate candidate. Uh, you've already seen former President Trump saying this on his social medias, saying that, you know, she's illegitimate. They shouldn't be allowed to switch her out. And so to make the case, we're suing to keep her off the ballot. Illegitimate also for the Heritage Foundation. This is nice for fundraising, right? We are doing our best to do this. So it's a political move. It's a fundraising move. I don't think anyone takes this seriously as a legal move.

Hannah McCarthy: All right. I want to go back to the quote unquote war chest for a second. This is another thing [00:21:00] that has come up. The Republican chairman of the Federal Elections Commission, Sean Cooksey, has stated that Harris does not have access to the money raised for the Biden-Harris campaign. So how does this work?

Nick Capodice: Yeah, I asked Dan, uh, you know, for folks out there who don't know how campaign contributions work, can you just break it down for them? And here's what he said.

Dan Cassino: Oh, uh, you know who else doesn't know? The FEC doesn't know exactly how this is supposed to work. Um, nobody knows how this is supposed to work. Imagine. [00:21:30] This is not imagine that Joe Biden drops out and instead he endorses, I don't know, uh, Hunter Biden. He says, no, Hunter Biden's going to take over for me. All right. Seems unlikely, but let's roll with it. Right at that point, he wants to turn over his campaign chest to Hunter Biden. Can he do that? And the answer is we don't know because you can't just give $100 million to another candidate. There are strict limits on how much one campaign can give another campaign. This is why we have leadership PACs, right? Because you can't give that much near the campaign. Are you allowed [00:22:00] to do it? We don't know. I guess he could try and transfer the money to the DNC, and the DNC could try and transfer it over. It'd be tricky. And I wouldn't to worry too much about the FEC, because the FEC is basically toothless Because you have to have Democrats and Republicans agree for the FTC to do anything, and Democrats and Republicans agree about as much as cats and dogs do. So this is not going to be a big issue. The fact that Harris was already on the ticket, right. This is the Biden Harris reelection fund, and Harris is now taking over. So it's the Harris whoever reelection [00:22:30] fund. Now, there is some other weirdness, though. So if this is the same campaign because basically saying this is just a continuation, the Biden campaign, that's why I get to keep the money. So let's suppose I am someone who already maxed out my contributions to the Biden campaign. Can I now give more money? Because now it's the Harris campaign. And the answer is probably not, because if I could, that would mean it's actually a different campaign. And they're saying it's the same campaign. So you'd probably have to tell those donors who already gave the $1,200 per cycle, okay, never mind. Just go give [00:23:00] to a superPAC now.

Nick Capodice: I also was curious about what would happen if, after the convention, say, Joe Biden didn't just step out of the race, but resigned entirely? So I asked Dan, would this in effect make Kamala Harris the president.

Dan Cassino: Not in effect? Whoa, whoa, whoa, we worked this out in the 19th century, my man. Like, no, he is he she would absolutely be the president. I don't want to have any of this stuff about Whigs fighting over whether the vice president who takes over is actually [00:23:30] president, or just assumes the powers of the president. We worked all this out. Thank you. We don't have to have this fight. Um, I think that is probably spectacularly unlikely. Um, this is actually an attack we're getting we're seeing, uh, from the Republican Party saying that, well, if Joe Biden is not fit to run for office, he's not fit to be in office. So therefore he should resign. And, you know, it's certainly up to the president if he resigns. And, of course, we do have a way to deal with this, because we have in the past had Woodrow Wilson. We've [00:24:00] had people who were disabled and should not have been in office and weren't going to resign. And we have a technique to deal with this. And technique is the 25th amendment. The vice president of the cabinet can say, this president is disabled, and they send it to Congress for ratification. And while they're waiting, you know, the vice president assumes the office of the presidency is a Democratic cabinet. And Kamala Harris can say that Joe Biden is not fit to be president. No.

Hannah McCarthy: Last thing, Nick, our show is [00:24:30] about democracy. It's about how our democracy works. Primaries are democratic. Does Dan think that this situation where a candidate will be on the ballot, who is different than the one that the people voted for in the primaries is, for lack of a better word, fair?

Nick Capodice: Yes and no.

Dan Cassino: I think it's absolutely the case that party leaders and party donors, for that matter, [00:25:00] picking a candidate after the primary is over is very much less small d Democratic than having an open, fair, competitive primary. However, we didn't really have an open, fair, competitive primary, right? It's not like Joe Biden was running against six other Democrats. And this hard fought race with all these debates and such, and Joe Biden wound up winning. If almost every state you went, if you were a Democrat, you vote in the primary, you got to vote for Joe Biden or maybe nobody.

Hannah McCarthy: Yeah, in New Hampshire, Joe Biden wasn't even on the ballot in [00:25:30] the primary due to the DNC not recognizing New Hampshire's demand that their primary be held before South Carolina's.

Nick Capodice: Yeah. And even then, he won with 70% of the vote as a write in.

Dan Cassino: on the Republican side, you had more of a democratic process. And we can imagine if the, you know, Donald Trump won the primaries. It was hard fought, right? Nikki Haley was staying in there till the end. And if the Republican National Committee then said, you know what, forget it. We're getting rid of Donald Trump. We're going to put Nikki Haley in there. There'd be a lot of Trump voters who would say, hey, that's not right. [00:26:00] You know, we voted for this person. We had a choice. This is not Democratic. And I think they'd have a stronger point. The fact that you didn't really have a democratic, small d democratic process on the Democratic side convention this year says, yeah, it's not very democratic, but neither was the primary in this case.

Hannah McCarthy: One of the most interesting things to me working on this show is, you know, we get to hear how things change in the US over the years, how the parties change with the populace. The parties stand for one thing, then they stand for another. Then [00:26:30] there are these periods where the parties are criticized for being too similar, and then there are other periods, like right now, when they're criticized for being too polarized.

Nick Capodice: Yeah. And what Dan told me was so important about this moment, it's not like what one party or another stands for. It's about the power that political parties, all political parties, have right now.

Dan Cassino: So we always talk about the American political parties in decline. And it's absolutely true that American political parties don't have nearly the power that they used to. What this shows [00:27:00] is that at least on at least on the Democratic side, the party can still enforce its will. The party can still say, we're doing it. This is happening. And as much as we talk about Democrats being disarray, this is Democrats in full array. Right. And in last 4 to 5 years, honestly, Democrats have shown a greater capacity to get in line than the Republican Party under Donald Trump has. So this is the party saying we still matter and elite cues still matter. And honestly, this does make it easier for voters. Right. So [00:27:30] what happened with Kamala Harris, especially with Joe Biden endorsing Kamala Harris, is what we call a Schelling point.

Hannah McCarthy: A Schelling point. What is a Schelling point?

Nick Capodice: A Schelling point. It's named after Thomas Schelling. He was a political economist. He wrote about how when you have a bunch of people trying to coordinate on something like trying to pick something and And communication is, as it so often is, an utter mess. If in this situation you have a focal point, spoken or unspoken, everybody will gravitate [00:28:00] and agree with that point immediately. His famous example is he asked a group of students to name a point in New York City, any point at all for a large group to meet, and the vast majority, said Grand Central Station without even thinking about it. And then everybody else in the group immediately agreed.

Dan Cassino: If one person says we're doing this, especially early on, then crowds start to form up around that, everyone goes, oh, okay, that's what we're doing. We go there, we go there, we go there, and everyone clusters around that. One solution. If you didn't have that endorsement [00:28:30] in the beginning, it's possible you wouldn't have had an obvious Schelling point. You would have had other people making endorsements and going all over the place. So even if the parties don't have we call hard power, they're not spending all the money. They're not in the back rooms picking who the candidates are outside of new Jersey. We know they still do in new Jersey, but even if they're not doing that, they still have the soft power to dictate the terms. And that's what we're seeing here, is that the Democrats seem by saying, hey, we picked Kamala Harris. The voters went, oh, oh, that's what we're doing. Oh, okay. Cool. Right. Maybe you would have heard Pete Buttigieg, right. I [00:29:00] can't spell his name, but maybe you can. And maybe you would prefer that. But he's not one of the options presented to you. So you go. Okay, well, I guess we're going with Kamala Harris then. So the party still matter. But they have had to adapt.

Nick Capodice: Well, that is the best analysis we could come up with for what happened this weekend. And I guess that's the way it is. The way it was, [00:29:30] the way it shall be.This episode was made by me Nick Capodice with Hannah McCarthy. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer. Huge shout out to Dan. Big shout out to Dan. He helps us out a lot. But man, this was a tight pickle. And the guy broke it down and nobody.Breaks.It down.Like. Dan Cassino. Nobody breaks it down better. Music in this episode. By Epidemic Sound. Asura, and that man who makes a war rage in my chest Chris [00:30:00] Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Why was the documents case against Donald Trump dismissed?

You may have been surprised (or maybe not) when judge Aileen Cannon abruptly dismissed the classified documents case against former President Donald Trump. We dig into how and why that happened. 


Transcript

[00:00:00] Hannah McCarthy: Christina. Hello.

 

[00:00:02] Christina Phillips: Hello, Hannah.

 

[00:00:05] Hannah McCarthy: Uh, so we are here today to share a quick update with our listeners. This is about a major case involving former President Donald Trump, which, at least for now, is not a case at all because it was dismissed by Judge Aileen Cannon.

 

[00:00:20] News Footage: Breaking news on the classified documents case. Let's get right to Ken Dilanian. Ken? Jose, in a remarkable development, Judge Aileen Cannon in Florida has dismissed dismissed the indictment against Donald Trump in this classified documents case and his co-defendants on the grounds...

 

[00:00:37] Hannah McCarthy: And I'm going to get into that dismissal in just a moment. But first, this is Civics 101. I'm Hannah McCarthy.

 

[00:00:42] Christina Phillips: I'm Christina Phillips.

 

[00:00:42] Hannah McCarthy: Okay. So, Christina, can you please remind our listeners what was at stake here? What is this case that we're talking about that basically doesn't exist right now?

 

[00:00:53] Christina Phillips: So essentially, really quickly, what Trump has been charged with is holding on to willfully documents he shouldn't have that had sensitive national security information in them. Um, 31 counts of willful retention of national defense information, as well as conspiracy to obstruct justice, corrupt concealing of documents, scheming to conceal documents, and making false statements all when the federal government tried to get those documents back. And this case was brought by the special counsel, Jack Smith, on behalf of the Justice Department.

 

[00:01:26] Hannah McCarthy: Okay, that was actually great. I feel like that was a really good breakdown. Thank you. And, you know, I did refer to it as something that was at stake, right. Because I'm talking about the case being dismissed. Uh, it may well be at stake again soon. I will get to that. But just two days after the former president survived an assassination attempt at a campaign rally in Pennsylvania, the judge presiding over this case issued a 93 page ruling that rests on the following statement. "The superseding indictment is DISMISSED" - that's in all caps - "because Special Counsel Smith's appointment violates the Appointments Clause of the United States Constitution."

 

[00:02:08] Hannah McCarthy: And Christina, you know me. I see Constitutional clause and my little civics heart just has to at least try to make an episode about it. Um, so, Christina, do you know what happened here with the dismissal?

 

[00:02:23] Christina Phillips: Uh, no. Absolutely not, I have to say. And when we were talking about this in our morning meeting yesterday, I had a moment like I had seen this and hadn't had time to read about it, and I was trying to read about it as we were talking about it as a team. And I was like, wait, what? What? Hold on. What about his appointment? Jack Smith's appointment? I don't remember this part. There's been so many motions over the pretrial for this case, you know, motions to dismiss on behalf of Trump's legal team. And there had been so many different reasons why they said the case should be dismissed or delayed, that Jack Smith not being properly appointed was not even a reason that really registered to me. So I was like, hang on, that - that's the thing we're talking about right now?

 

[00:03:09] Hannah McCarthy: Yeah. And okay, so the other thing is that the the defense team here that did raise this idea of, uh, basically challenging the constitutionality of Jack Smith's appointment. They didn't even really push that particular defense until they were encouraged to do so by some conservative groups.

 

[00:03:30] Hannah McCarthy: So the dismissal is really interesting. Christina. It has been described at various times as stunning by members of the press. Um, because it is one of many things, one of many things that Trump's defense attorneys kind of threw at the wall, and that was not necessarily expected to stick, at least by, you know, many members of the press, by a lot of legal scholars, by the prosecutorial team. So the defense team, they challenged, essentially, Jack Smith's appointment as illegal. Now, Christina, can you just clarify, like, who Jack Smith is? I know we're saying that he did the investigation, but, like, who is he?

 

[00:04:09] Christina Phillips: Okay, I do have to say just I feel a little bit better about me being like, hang on, what was this? If you're saying that a lot of other people did not really think that this particular reason raised by Trump's defense attorneys was going to stick. Um, but so to the question of who Jack Smith is, what is the special counsel -  so when the Justice Department is concerned that they will have a conflict of interest if they investigate something, or if the Justice Department decides that it's in the public's best interest to have someone outside of the government conduct an investigation, they hire a special counsel to do it for them.

 

[00:04:46] Hannah McCarthy: So a special counsel is like a third party and it's a lawyer.

 

[00:04:50] Christina Phillips: Yeah, right.

 

[00:04:50] Christina Phillips: So when federal agents found classified documents in President Joe Biden's garage, for example, Attorney General Merrick Garland decided to appoint a special counsel, someone who doesn't actually already work for the Justice Department, to investigate whether Biden mishandled those documents.

 

[00:05:09] Hannah McCarthy: And I do know that in that case, that special counsel, his name is Robert Hur, decided that Biden had not committed the kind of wrongdoing that warranted criminal charges.

 

[00:05:21] Christina Phillips: Which is not, by the way, what Trump's special counsel investigation found.

 

[00:05:24] Hannah McCarthy: Right. And the biggest difference there is that, I mean, like super broadly, Biden cooperated, Biden handed things over. And Trump, as you kind of outlined, did not. So, you know, there was sort of resistance on Trump's end. Biden didn't really resist it.

 

[00:05:40] Christina Phillips: And Trump is actually accused of, uh, doing the opposite, trying to withhold this information, knowingly keeping things from the federal government.

 

[00:05:48] Hannah McCarthy: Right, right. Um, but again, right now that is irrelevant because Judge Cannon, the US district court judge in Florida who is in charge of the Trump documents case, says Jack Smith never actually had the authority to investigate. So this is not a ruling about the merits of the case at all. It's a ruling about whether or not the investigation alone was basically done in the proper way. Right. So why like what is the reasoning here? Judge Cannon concluded that there is no legal basis for the Attorney General appointing Jack Smith.

 

[00:06:26] Christina Phillips: Yeah. So I guess my big question here is if that is true, how was he appointed? What is her argument? To say that there was no legal basis for his appointment? Um, and the bigger question, I guess, is how are any special counsels appointed?

 

[00:06:46] Hannah McCarthy: Okay, so I'll answer the last question first. So the Justice Department says essentially that their ability to do this comes from the United States Code and from their own regulations. And, Christina, we still have not done an episode on United States Code. But essentially the code is the law. It's the stuff that Congress passes. It is the big book full of general and permanent US laws.

 

[00:07:11] Christina Phillips: So there's our episode on on the US code. It's the Big Book of Rules. So there are actual laws on the books. This is what you're saying, is that there are actual laws that allow the AG to appoint a special counsel.

 

[00:07:25] Hannah McCarthy: Well, um, Judge Cannon says that these laws do not actually allow the AG to do this. So what the statutes say, right. The statutes in the code say in brief, is this the attorney general has broad supervisory powers. The attorney general can delegate those powers to subordinates, and the Attorney General can authorize a special assistant to conduct any kind of legal proceeding.

 

[00:07:56] Christina Phillips: All right, so, uh, you just said special assistant, right? Not special counsel.

 

[00:08:03] Hannah McCarthy: I did say that. And you know that that lack of specificity, while the Justice Department and several courts have interpreted it one way, Judge Cannon is, you know, seeming to interpret it another. And Judge Cannon says that these statutes do not give the attorney general - and this is from Judge Cannon's actual opinion - quote, "broad inferior officer appointing power or the ability to appoint the kind of officer with the kind of prosecutorial power that was wielded by Jack Smith." Cannon says that we have an appointments clause for a reason.

 

[00:08:40] News Footage: She says the bottom line is this the appointments clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The government's position...

 

[00:08:55] Hannah McCarthy: So, Christina, do you know the appointments clause?

 

[00:08:59] Christina Phillips: Uh, is that the one that says that the president can appoint people with the consent of the Senate?

 

[00:09:04] Hannah McCarthy: That is the one. Judge Cannon says that Jack Smith's appointment violated that constitutional clause. Basically, if the government had wanted to appoint Jack Smith the special counsel, they would have had to do it in the same way that other U.S. attorneys are appointed, and that way is the president nominates them and the Senate confirms or Congress would have to pass a specific law. So this gets to the specificity question, right. Specifically, a law consistent with the Appointments Clause that creates exactly that kind of appointment authority.

 

[00:09:46] Christina Phillips: Has this ever happened before? Like, has a judge ever issued a ruling specifically about special counsels and whether they're allowed to be appointed?

 

[00:09:56] Hannah McCarthy: So this is actually a really important question because the answer is yes on several levels. So the Supreme Court is largely believed to have upheld the appointment of a special prosecutor to deal with the Watergate scandal. Um, and that is often what is referenced when questions about a special prosecutor or a special counsel come up before a court. So Judge Cannon called that particular ruling, which I'm going to talk about a little bit more in just a second here, unpersuasive. Cannon also rejected the precedent set by appeals courts that upheld the appointments of a special prosecutor in the Iran-Contra affair, and the special counsel who investigated Russian interference in the 2016 election.

 

[00:10:45] Christina Phillips: So Judge Cannon says all of this precedent is bad precedent.

 

[00:10:49] Hannah McCarthy: When it comes to the Supreme Court case, which, by the way, is US v Nixon, cannon says that actually it is not precedent really at all. And the big sticking point here, Christina, is dicta.

 

[00:11:05] Christina Phillips: I'm sorry. What-a?

 

[00:11:07] Hannah McCarthy: Um, dicta, or the singular dictum, means something that a judge writes in an opinion or a statement that is quite literally beside the point of the case, something that they say in passing. So the example that we care about here is in an opinion back in 1974, in US v Nixon, referencing the statutes that allow the A.G. to appoint a subordinate officer with prosecutorial powers. Both the Justice Department and appeals courts have taken that reference to mean, indeed, that special prosecutors or counsels can legally be appointed and do have prosecutorial power.

 

[00:11:57] SCOTUS Archival Sound : Prosecution for the government was commenced by a special prosecutor who had been appointed by the Attorney General pursuant to federal regulations. The special prosecutor had been given broad authority. By a By regulation of the Attorney General, the Special prosecutor was given unique authority and tenure concerning specific investigations and prosecutions. His authority is to represent the United States as a sovereign, and it includes express authority to contest any privilege asserted by the executive branch.

 

[00:12:43] Hannah McCarthy: But, you know, Cannon says no, no, no, that is dictum. That is beside the point of this Watergate case. It is not the law.

 

[00:12:52] Christina Phillips: Now, I don't know if this actually matters, but, uh, what are people saying about Cannon's ruling?

 

[00:13:00] Hannah McCarthy: People are saying a lot. Um, some people are really surprised, as you are. Some say that they absolutely did see this coming, given how canon has, in their eyes, favored Donald Trump in rulings already. Uh, Donald Trump is unsurprisingly thrilled and considers this the first step in a fight against a department that he says he sees as having been weaponized against him. Uh, Republican Trump supporters have made it clear that they are thrilled, notably Congressman Matt Gaetz, who posted, quote, future Supreme Court Justice Cannon with a picture of the judge on X. One critic replied to this post with, are you admitting quid pro quo?

 

[00:13:44] Christina Phillips: Meaning are you revealing that Judge Cannon did this in order to one day get appointed to the SCOTUS bench?

 

[00:13:50] Hannah McCarthy: That is the implication here. On the other side, Democrats slammed Cannon. They said this decision was politically motivated. Legal scholars are debating about this. They are pointing out that, in his opinion on the recent presidential immunity case, Clarence Thomas actually suggested that Jack Smith was illegally appointed. So, you know, kind of put down a playbook that could be picked up. And some are calling Cannon's decision a Clarence Thomas concurring opinion.

 

[00:14:24] Christina Phillips: Okay, I just have to say, there are so many layers to this, and this is already a very, very complicated case or really pretrial to a case. It's - this is so complex.

 

[00:14:37] Hannah McCarthy: I know, it's so interesting because the dismissal itself is, on its face, kind of simple, right? And the reasoning seems really straightforward. But there are so many layers here and there's so much pushback, you know, and people are pointing out so many elements to it. There's a lot going on. And then, you know, that doesn't even take into account what a lot of people consider a major layer, the several instances, actually, of Judge Cannon, you know, issuing certain decisions, making certain rulings, having to do with this case in particular that have been overturned, overruled by other courts. So there has been quite a bit of, you know, doubt thrown Judge Cannon's way, a lot of questions as to whether or not Cannon is the right judge for this, etc.. But Christina, you know, at the end of the day, there are three big things that you need to take away from what has happened here.

 

[00:15:34] Christina Phillips: Okay. Yes. Please hit me. Give me the three things I can take away from what seems to be a very, very complicated situation.

 

[00:15:44] Hannah McCarthy: Okay, at number one: this is unequivocally a major victory for Trump. Everyone, including Trump's lawyers, considered this particular case to be of the biggest concern for the former president. Having it dismissed is a boon. Two: the Justice Department has already authorized an appeal, and this case could someday end up at the Supreme Court. Three: If Donald Trump wins the election, he will be restored to power over the Justice Department and the department has said it will continue to pursue cases against Trump until Inauguration Day. But after that, the chances of prosecuting the president could very well and probably will if he is elected, go out the window.

 

[00:16:34] Christina Phillips: I do feel like every new development these days, pretty much every day, sparks a whole new list of Civics 101 stuff we need to come back to in November and beyond.

 

[00:16:47] Hannah McCarthy: And so we will. Christina. So we will. All right, let's go to our jobs.

 

[00:16:54] Christina Phillips: I'll see you out there.

 

[00:17:05] Hannah McCarthy: This episode was produced by me, Hannah McCarthy, with help from Rebecca Lavoie, our executive producer, and Christina Phillips, our senior producer. Nick Capodice is my co-host. He is currently out sick. Nick feel better. Catherine Hurley is our intern and she's crushing it. Music in this episode comes from Epidemic Sound, and you can find all of the rest of everything we have ever done at our website, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

 


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Where History and Love Collide: Doris Kearns Goodwin on the 1960s and Today

Doris Kearns Goodwin is one of the country’s most beloved presidential historians and authors, having written books about the Roosevelts, the Kennedys, and Lincoln, among many others. 

Her latest book is An Unfinished Love Story: A Personal History of the 1960s. The book is part memoir, part in-depth journey through the Kennedy and Johnson administrations, and part love letter to her husband Dick Goodwin, a presidential speechwriter and policy advisor who played a vital role in shaping the very history Goodwin recounts.

Today on the podcast, we’ll hear a conversation between our executive producer Rebecca Lavoie and Doris Kearns Goodwin recorded at the Music Hall in Portsmouth, New Hampshire. 

One note - this event took place just a few days after a New York jury found former president Donald Trump guilty on 34 charges related to an illegal hush money payment scheme to influence the outcome of the 2016 election.


Transcript

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice. Doris Kearns Goodwin is one of the country's most beloved presidential historians and authors, having written books about the Roosevelts, the Kennedys, and Lincoln, among many others. Her latest book is An Unfinished Love Story A Personal History of the 1960s. This book is part memoir, part in-depth journey through the Kennedy and Johnson administrations, and part love letter to her husband, Dick Goodwin, a presidential speechwriter and policy adviser who played a vital role in shaping the very history Goodwin recounts today on the podcast. We're going to hear a conversation between our executive producer, Rebecca Lavoie and Doris Kearns Goodwin. Recorded at the Music Hall in Portsmouth, New Hampshire, Rebecca hosted writers on a New England Stage to talk with Goodwin about her book and her role as an historian, exploring these different eras of American history and history that is much, much more recent. One note this event took place just a few days after a New York jury found former President Donald Trump guilty on 34 charges related to an illegal hush money payment scheme to influence the outcome of the 2016 election. Glad we got that out of the way. All right, without further ado, let's listen in to Rebecca's conversation with Doris Kearns Goodwin.

Rebecca Lavoie: Wow, what a week to be a presidential historian, right?

Doris Kearns Goodwin: What a week to be a citizen of the United States.

Rebecca Lavoie: So let's talk about your book, An Unfinished Love Story A Personal History of the 60s. How did this book come about? How what was the idea? What was the germ of it?

Doris Kearns Goodwin: It really began on a summer morning, not long after my husband, Richard Goodwin, had turned 80 years old. And he comes running down the stairs, shaving cream still on his face, and says, I've got an idea. Something's going to happen. And I said, what's going on? You look so happy. He said, well, I finally decided it's now or never, and I knew what that meant. He was finally going to open these 300 boxes. We had slept around for our entire married life. They were in attics and basements and storage and I had peeked in them. I knew they represented a real time capsule of the 1960s, because he was sort of everywhere you wanted somebody to be. We were talking about the fact that he's sort of like a Zelig figure. He's with the Kennedys and he's with the Johnsons, he's with Martin Luther King, he's with Senator Eugene McCarthy in New Hampshire, he's with Bobby Kennedy and with him when he died. And he kept everything letters and diaries and journals and newspaper clippings. But he wanted to not look at them for all those years because the decade had ended so sadly, with the death of Robert Kennedy, who had become one of his closest friends, and Martin Luther King, and the riots in the streets and the campus violence.

Doris Kearns Goodwin: But finally he realized as he came down the stairs, he said, well, I guess if I have any wisdom to dispense, I better start dispensing. Now. I don't know who else talks like that, but my husband. So we made a pact that we would go through the boxes every weekend, but we would do it chronologically. And that meant that by starting at the beginning of the 60s, we would pretend we didn't know what was going to happen. We didn't know the sorrows that would happen later, because that's the way you live life. Yeah. Barbara Tuchman, who was such a mentor and historian for me, said, even if you're writing about a war as a narrative historian, you cannot let the readers know how that war ended, even if it's a World War Two, so your readers can just follow you every longer step along the way, just as the people of the time knew that. So it meant that we relived the glory of the early days of the 60s, and it was just an adventure to be the greatest adventure, really we shared together in the last years of his life.

Rebecca Lavoie: This is such an intensely personal book. You know, you did the research with the love of your life. It was researched in your home. You write about your home, you write about your garden. You write about your favorite restaurants. How did you think about bringing the reader inside of your personal spaces?

Doris Kearns Goodwin: Well, it's interesting, you know, when you write about presidents, which I've done most of my life before writing about my husband Dick, you want to make the reader feel like they know the details of their family lives, of where they lived, who their friends were, what the houses looked like. I'd often go visit the homes of the presidents and stay in them for days at a time, just sort of absorbing what it might have been like in 1850, 1860, 1900, 1930. So now the guy and he used to call my presidents, my guys, just because I felt so comfortable with them. I took me so long to write about them that I really did feel like I knew them. It took me longer to write about Lincoln and the Civil War than the war to be fought. It took me twice as long to write about World War Two as Franklin and Eleanor. So I would say, my guys, I know you, but now this is my guy sitting across the room from me and he could answer me. I used to talk to my guys and they never answered me. I would talk to Lincoln, talk to Eleanor and Franklin, but now he could answer me. He could argue with me. So I realized that I wanted to give the reader what I hoped to give the people who lived before me a sense of place, a sense of context, and a sense of what it looked like when we was talking there together, what the room looked like, just as I tried to do with the people who were long dead before I wrote about them.

Rebecca Lavoie: Historian Arthur Schlesinger gave Dick the moniker the supreme generalist, and, you know, the way that you described him earlier. To be fair, I described him as Forrest Gump. I will admit it, because he did do so many things and was so many places. I mean, if he had just done one of these things, he would have been considered extraordinary. The 21 case extraordinary right, being the speechwriter for Kennedy. Extraordinary. When you were going through all of these boxes, what was revealed to you that surprised you?

Doris Kearns Goodwin: One thing was that when I read the letters to George and to his parents, I saw him as a really happy person. When he was young. He wrote a letter when he was in the army, and he'd gone out with some Swiss girls to a beautiful restaurant in France, and the wine decanter was upside down and the food was delicious. And he said, I'll never forget this night as long as I live, I'm happy. The man I met was not that way. He had a melancholy streak, possibly because his first wife had died and he had to bring up his little kid, who then became my son, John Kennedy dying, Robert Kennedy dying. All of what had happened to him in life had left him with enormous vitality, but not that sense of just cheerfulness every day. So I saw I saw where that had come from in a certain sense that it was something different than I knew. I think the other surprise was when we were going through the, the, the same letters to George from Harvard Law School. He was so arrogant in a certain way. He was first in his class. He was the president of the Harvard Law Review, and he's writing to George saying, you know, I can get any law job I want. They just travel you around the country like a college athlete, and I can choose which law firm, or I can have a stipend, or I can go work for a Supreme Court justice, as he did for Frankfurter. The burden of choice is the problem. And right after I read that letter, I found a picture of the law review. And in this picture were 60 white guys. And then there were two women.

Doris Kearns Goodwin: One was Ruth Bader Ginsburg, and the other one was another woman named Nancy Boxley. And I said, I brought the picture into my I said, this is maddening. She couldn't even get an interview for a job. And you're talking about your burden of choice, you know? And then he just sort of smiled up at me. He said, you know, it's not my fault, right. And but then the interesting thing was that the other woman, I decided, why don't I find out who she is? And she was still alive. Her name was Nancy Boxley. And I went out to California and I interviewed her. She was in her 80s at the time, still looking incredibly well, and she was a real character. And so she told me that she actually did get a job that first summer with Simpson Thatcher. After that, she'd been made the law review. And because the difference was that Ruth had a child, not only was she Jewish, one mark against her at the time and a woman, but she had a child and Nancy did not, even though she too was Jewish. But then what happened? Once she got married, she was no longer. And when she got pregnant in the law firm, they came to her and they say, we're not embarrassed by your state. You know, what is your state? Your stomach is sticking out. But our clients might be. So she lost her job, but then eventually she finally got back into the law and she went to her 30th Harvard reunion. And her professor that she went in to see was a young woman wearing boots, wearing a short dress, and very pregnant. So progress had been made.

Rebecca Lavoie: So you just described young Dick a couple of different ways. You described his happiness, but you also described his arrogance and his opportunity. How would you describe yourself as a young person?

Doris Kearns Goodwin: I think I was lucky to have been given a gift of having an optimistic temperament. I think back on it because a lot of sad things happened. My mother died when I was 15, my father died when I was in my 20s, and somehow I just came through feeling like I'd been lucky to have been loved for so long by both of those people. My father is the one that taught me to love baseball by teaching me when I was six years old, how to keep score. So when he went to work during the day, I could record for him the history of that afternoon's Brooklyn Dodger game. And so when he came home for two hours, he would listen to me as I went on in excruciating detail. But it was it was the way I learned to love history.

Archive: Throws to Hodges Brooklyn wins and the Badgers go wild as they mob pitcher Podres, who hurls Brooklyn to its first world championship.

Doris Kearns Goodwin: Because I was my father, my beloved father was listening to me tell him history, even if it was only five hours old. So that was my father. I had a teacher in high school, like so many people, that made a huge difference. Miss Austen, when she taught us about the presidents and Lincoln in particular, whom she loved. When he died, she actually cried. And I thought she must have known him. She cried. And then I went to graduate school thinking I would be a high school teacher, just like Miss Austin. And then it turned out that I when I was at graduate school at Harvard, I ended up being a white House fellow, working for President Johnson in the end, although that was lucky too. We had a big dance in the white House when we were selected. Johnson did dance with me. It wasn't peculiar. There were only three women out of the 16 white House fellows. But as he twirled me around, he whispered that he wanted me to be assigned directly to him in the white House. But it wasn't to be so simple, because in the months leading up to that, I'd been active in the anti-Vietnam War movement, and a friend of mine and I had written an article against Lyndon Johnson, which turned out not to be published until two days after the dance in the white House. And the title of the article was How to Remove Lyndon Johnson in 1968.

Rebecca Lavoie: And he never forgot you when, after they sent you away from the white House, he kept the fellowship. But he remembered you.

Doris Kearns Goodwin: He did indeed.

Rebecca Lavoie: And he brought you back. It was like a movie.

Doris Kearns Goodwin: Maybe that's where your optimistic temperament comes. These things crazily work out. I think you're right. I mean, he did bring me back into the white House, and then I went to help him on his memoirs in the last years of his life. And that experience, which was an extraordinary experience of listening to him talk hour after hour. He loved to talk and I was a good listener. And at any rate, finally, that's where I got the foundation to become a presidential historian, writing my first book about those conversations with Lyndon Johnson, So sad at the end of his life, and then so willing to talk about it all that I'll always be grateful to him. So I guess that's what I was like as a young girl. It was very lucky to have those experiences.

Rebecca Lavoie: Yeah.

Rebecca Lavoie: So how did Dick come to work for JFK?

Doris Kearns Goodwin: So what happened is he had been, as I said, the clerk for Justice Frankfurter. And afterward he then went to work in a House Commerce committee. He didn't want to start a law firm, yet he kept waiting and waiting to go into the practice of law. And while he was at the House Commerce Committee, he's the one who discovered that the quiz shows were corrupt. Some of you may remember the $64,000 question or 21.

Archive: What if we would ask you questions that you know?

Archive: Well, I think I'd really rather try to beat him. Honestly.

Archive: Just an idea.

Doris Kearns Goodwin: And he's the one who discovered that the questions had been given ahead of time to the contestants.

Rebecca Lavoie: Marty. Right.

Doris Kearns Goodwin: Exactly. Which was? That's what this Herb Stempel guy knew the answer to the question, but they decided he wasn't popular enough. They made him lose to Charles Van Doren, this Brahmin guy. So he started telling everybody. And then Dick subpoenaed him and other people. Anyway, while he was doing that, he got a call from Ted Sorensen, the chief speechwriter for JFK, and Ted asked him if he'd work his hand at writing a speech for Senator Kennedy. He was still Senator Kennedy, but he was thinking of running for president in 1960. This would have been in 1958 or 59. And so Dick wrote a speech. He was asked to write another one and another one, and he was finally chosen to be the second speechwriter. He had no idea that it was actually a contest that 30 other people had been asked to write speeches to, and somehow he was chosen. So he became this young man, still in his 20s, on the plane with JFK, the Caroline plane. It was a prop plane that was very intimate. There were chairs that could become beds for Ted and Dick. There were some other people who had chairs that became beds, and JFK had his own section in the back of the cabin. They had a desk, they had typewriters, they had communications. And it really was for that entire campaign. That was the flying vessel that carried them together across the country.

Nick Capodice: We'll be right back with more of Doris Kearns Goodwin from writers on a New England Stage. This is Civics 101 from New Hampshire Public Radio.

Nick Capodice: This is Civics 101. I'm Nick Capodice, and today we're listening to a conversation between our executive producer, Rebecca Lavoie, and historian and author Doris Kearns Goodwin. This was recorded at the Music Hall in Portsmouth, New Hampshire, for writers on a New England Stage there, discussing Goodwin's book An Unfinished Love Story A Personal History of the 1960s.

Rebecca Lavoie: So one thing that you say in your book a few times is that there was this occasional recurring conflict in your marriage with Dick that arose because he was a Kennedy loyalist and you were an LBJ person, but you never quite say how that conflict. Like, would it manifest itself? Are we talking about like, arguments over dinner? What was this conflict like?

Doris Kearns Goodwin: It was really was a sort of irritating conflict.

Rebecca Lavoie: Hmmm.

Doris Kearns Goodwin: Because Dick was so loyal to the Kennedys, he was loyal to Jack Kennedy. That was his youthful hero in many ways. He had become very close to Jackie Kennedy, worked with her on a number of projects during the white House years, and was greatly friendly with her afterwards. And Bobby did become probably his closest friend in public life. And he had loved Lyndon Johnson had worked for Lyndon Johnson. His best work had been with Lyndon Johnson, but he had broken the two of them had broken apart because of the war in Vietnam, and Dick was still filled with resentments about what the war had done. He thought to the Great Society. So I would argue with him constantly, you know, that all the great programs of the Great Society Medicare, Medicaid, aid to education, civil rights, voting rights, they were ones that were passed by LBJ. None of them got through under JFK, I would say. And then he would say, but JFK is the one that inspired the nation before they got to the Hill. And then we'd argue about the war in Vietnam would have ended earlier if it had been JFK. And it was not fun. The arguments, in a funny way, because because we both had such loyalties to our people, it wasn't just a sort of an academic argument. Sometimes they'd be at dinner, sometimes they'd be when people would come over. And he was. If it had just been a sort of fun argument, it would have been fine.

Doris Kearns Goodwin: But he was still filled with resentments, and that's what made me sad. I didn't want him to be filled with grievances. It never helps you. And so one of the wonderful things that happened in the opening of the boxes was when we finally got to 64 and 65, when when he was with LBJ and he remembered all the great things they did together. He began to remember it emotionally and it softened the grievances. It took them away, really. I remember one night after we were going through the boxes that had to do with the Great Society and voting rights, and he came upstairs and he said, oh my God, I'm feeling affection for the old guy. Again, this is terrible. But I honestly think in the years before he died that never, never do grievances help. I remember one of the things that was so extraordinary about Abraham Lincoln, he would he would, he would say that if you allowed grievances or resentments to fester, they'll poison a part of you that that it just envy and jealousy and anger. Those emotions are terrible. And and those emotions really, I think, had taken a part of him away. And they were all softened before he died. So the box is really had a huge role in, in making those last years a happier one's for him.

Rebecca Lavoie: You mentioned Jackie Kennedy. Dick worked closely with the first Lady when she was the first lady, Jacqueline Kennedy, and a number of projects, and then they had the relationship afterward. Is there something that he viewed as their crowning achievement together?

Doris Kearns Goodwin: I think the one that they both remembered was was something that was called a dinner in Camelot. It was Dick's idea. He wrote in a memo to Jackie. How about having a dinner for the Nobel Prize winners to make people realize that science and and and whatever you win a Nobel Prize for is something that a kid should, should strive for. And they ended up bringing Pulitzer Prize winners to. And it was a really glittering night, and all the people were so happy to meet each other from one field to another. And John Kennedy said at that dinner, when he when he said, there's more talent assembled here in the white House than any time since Thomas Jefferson dined alone. That was the way he was able to speak. But because Dick had come up with the idea, he was able to escort Jackie to that dinner. And there's a picture that was on his wall forever. Did he love it? Of him looking so proud in his tuxedo, escorting Jackie looking beautiful to that dinner?

Rebecca Lavoie: Yeah, one of the interesting stories for me about that dinner was that there was one woman Nobel Prize winner. There was a Pearl Buck.

Speaker4: Oh, yes.

Rebecca Lavoie: Yes. And that she had to wear the name tag that said Mrs.. And her husband's name.

Doris Kearns Goodwin: Was that crazy, the only woman who had won the Nobel Prize and she was called Mrs. Richard something or other. I know, because that was the way you did it in those days. The women were all Mrs.. Blank, blank. Well, that.

Rebecca Lavoie: That brings me to something I wanted to ask you about, because there's so much, like, big historical stuff in this book. But then there's also these, like little details, this minutia, these stories that I find myself telling other people, one of my favorite ones. And I'm hoping that you can share it, is the story behind the Eternal Flame at JFK's grave site, which I have always imagined was this very planned, very, um, let's say formal, very built thing. And that turns out not to be the case. Can you talk about that?

Doris Kearns Goodwin: Yeah. I mean, what happened is that Jackie wanted the East Room to look like it had when Lincoln was there. So they had to go to the Library of Congress in the middle of the night and find a magazine that described how it was for Lincoln. And then a team put all the the crape on the, on the ceilings, as it had been for Lincoln. They got a catafalque like Lincoln that was part of Dic's responsibility. But then somehow he was responsible for getting this eternal flame. Jackie wrote and said she wanted an eternal flame at the grave site, as if she wanted to have a light for a little kid who didn't ever want to be without a light. So first they heard that the only people that knew about an eternal flame she'd seen one in Paris. So he called the generals in Paris, and he said, you've got to get one over here. They said, we can't get it over there that quickly. We can't. And then he said to them, you mean you can blow up the world and you can't get an eternal flame here? So that didn't work and somehow that wasn't going to work. So finally, they didn't know what to do. They had to make it up. So they went to an electrical supply store. That was a close. They found one that was open. It was on a Sunday, and they found these luau lamps that you would put on at parties sometimes, and they hooked up propane gas tanks to it underneath the ground right before the grave. They are doing this hours before the funeral occurs. And the question is, will it light? Will it really light? What will happen if she turns it on and it doesn't light, or will it blow the whole place up? And so that was really just just as you say, it was a jiggered thing. Somehow when she turned it on, it lit. Nothing bad happened. And they eventually made it a little more stable than that. That. But the answer, the answer was it had to be eternal, which meant it couldn't go out. And somehow this thing continued to work.

Rebecca Lavoie: Yeah, I love the conversation that the Army folks had, like, what does eternal mean? And Dick was like, it means forever. Like.

Doris Kearns Goodwin: Oh yeah, you're right. At first they said, well, what if it just works for ten hours? Would that be okay? No. Eternal means something different, right?

Rebecca Lavoie: So John F Kennedy is assassinated. LBJ is sworn in. How did Dick feel about going to work for LBJ?

Doris Kearns Goodwin: Well, he was having conversations with the Kennedys, actually, with Bobby and Ethel and and Eunice and Shriver because there were some hints that maybe he might be asked to go over there. And everybody was saying, I don't know, you know, this is us, and that's him. There was a real fault line between the Kennedys and the Johnsons, and you can read in his diary that he's talking to them about it. And Bobby finally says to him, well, you know, anything you do that will make him look better will make Jack look less. I mean, Bobby felt that way. He couldn't. It was so hard for him to see John Kennedys no longer there and to see LBJ as the president. Bobby finally said in the diary entry. But if he can make it can help the country, then you should probably do it. But nevertheless, the only way he. Finally, we finally found out what really triggered him. Being asked by LBJ to go to the white House was a tape conversation with Bill Moyers, and we listened to the tape, and now we knew this was the origin of how he got there. In the tape, Johnson is talking to Bill Moyers. I need a speechwriter. I need a really good speechwriter. I need someone who can put sex into my speeches. Whatever he meant by that. Who could put rhythm into my speeches, who can write great Churchillian phrases? And Moyer says, well, the only one I know, because he'd known Dick from the work on the Peace Corps is Dick Goodwin. But he's not one of us. It was that same thing. He's on that other side. But finally Johnson said, well, let's see. Let's him try. He was a poverty message to write. Dick wrote it and did well. Then he brought him over and he became eventually his chief speechwriter. And as I say, that was probably the most rewarding part of his public life.

Rebecca Lavoie: Can you talk about his role in creating the phrase and then actually shaping the Great Society?

Doris Kearns Goodwin: This is one of my favorite stories. So what happens is about a month after Dick gets to the white House, Johnson calls Bill Moyers and says, I want you and Dick to come and talk to me about a Johnson program. The civil rights bill was getting through the tax cut, which was JFK's was getting through, and he wanted to have a Johnson program. That was his own program. So Dick said, are we meeting him in the Oval Office? He said, no. And the white House pool, we've got to go over there. They go over there. Johnson's stark naked, is swimming in the pool, up and down, up and down, side stroking. Dick said he looked like a whale going up and down, and they're standing there on the side in their suits and their ties. And Johnson says, come on in, boys. So they have no choice but to strip on. They didn't have bathing suits strip on the spot. So now you sort of have three naked guys swimming in the pool up and down. Finally, Johnson pulls over to the side and he starts talking to them about what he wants to do. And amazingly, he knew all the things he wanted. He wanted Medicare. He wanted aid to education. He wanted civil rights. He wanted voting rights.

Doris Kearns Goodwin: He wanted immigration reform. It was extraordinary. So they decided they'd make a speech where he would lay out his program, which still had no name. The speech would be at the University of Michigan, which meant a certain chutzpah, since that's where the birth of the Peace Corps was. So he was competing in a certain sense with John Kennedy. And that speech gives you a deadline to come up with the programs and to have an idea of what you're going to say and to come up with a name. So they all had a debate about what to call this new Johnson program. Some people wanted to call it a better deal instead of a new deal. Some wanted a glorious society. But Dick tried out several names, and he tried out a great society, meaning a society that was affluent but would share its resources with the people, with people who were poor, with people who were being prejudiced against, with people who needed to have part of the government's largesse. And it worked. And then they tried another one, and the press caught on. And suddenly, instead of becoming, in small letters, a great society, it became the Great Society. And that was LBJ's program. All started with these three naked guys in the pool.

Rebecca Lavoie: What was it like going through this with Dick, you know, realizing that he was the one who had, you know, coined that phrase and then helped shape the policy. You know, we're 20, 24 now, but looking back at a time where you can coin a phrase, the Great Society and then a president can actually follow through on policies that actually create a better society. What was it like reliving that?

Doris Kearns Goodwin: Oh, it just made you, in a sense, sad because it was a time when when you really did feel maybe somewhat naively, but it was pretty profound that a change was being made for the better in the country. I actually was in the white House, not in the white House. I was in Washington, actually, just as an intern in Congress that summer of 1965, when everything passed, and each time a new bill would pass, we'd all go out and have a glass of wine or beer to celebrate. We knew that we were part of something bigger than ourselves. I'd been at the March on Washington in 63. I'd also been an intern in Washington that summer, and I remember that's one of the first places that Dick and I knew. There were a whole series of places where we knew we had been together, but we never had met until much later, he used to say. Which made me so happy. I was looking for you my whole life, and it took forever for us to get together. But there was a good reason why we didn't meet at the March on Washington, because there were 250,000 other people there with us. But anyway, I was carrying a sign Catholics and Jews and Protestants unite for civil rights. And I remember feeling that I was really part of something larger than myself. I felt it then, at that March, I felt at that summer in the 89th Congress. And Dick certainly felt it. I think that's why later that the war became such a heartbreak, because it was so thrilling to be a young man and be a part of the most progressive legislation that had happened since the New Deal. So it was a pretty thrilling thing to relive it and just remember what it was like at that time.

Rebecca Lavoie: So the Civil Rights Act, the Voting Rights Act, LBJ was able to get the Fair Housing Act passed a week after Martin Luther King's assassination, which is amazing to think about. What drove LBJ to connect and listen to the civil rights community and get this stuff done.

Doris Kearns Goodwin: Yeah, this is something I talked to LBJ in the last years of his life. There was something he had even before he came to the presidency, that made him want to do something about civil rights. In the middle of the 1950s, when he was a majority leader of the Senate, he'd had a nearly fatal heart attack. And he was so depressed afterwards they couldn't even get him to move around in the bed. Finally, he just came out alive one morning and he said, okay, get me shaved, I'm back. And people said, well, what happened? He said, well, I was lying here thinking, what if I died now? What would I be remembered for? I've gotten power, I've gotten money, but have I done anything that makes a difference that will be remembered after I die?

Doris Kearns Goodwin: And then he went back to the Congress and he got the first civil rights bill in 1957, a very moderate bill through the Senate and then Civil Rights Summit. When you get that first thing through, it's a fulfillment. You feel good about it. And that first night when he became president, he made the decision that he would make the passage of the Civil Rights Act, John Kennedy's act, um, first priority. And his fellow friends said, you can't do that. It'll never get through the Senate filibuster. You'll be a failed president when you go for the election. 11 months from now. A president has only a certain amount of currency to expend. They cannot you can't expend it on this. And then he famously said, then what the hell is the presidency for? So it was in him. It was in him. But then the big moment that came for, for Dick and for LBJ was when the Selma incident took place. I'd been listening on television to Bloody Sunday, as it was called, when the peaceful marchers were coming across the bridge and they were met by the Alabama State troopers, who went after them with whips and clubs and horses, then went into the crowd and over the fallen bodies. And it was all captured on television. And Johnson understood that night, and I could see it when I was watching it, too. I just couldn't believe this was my country.

Doris Kearns Goodwin: And he understood that something was fired. The conscience of the country was fired. So he decided that the very next day he would make a speech to a joint session of Congress calling for a federal Voting Rights Act. A very bold thing to do. And that was the speech that Dick worked on that I think he was proudest of for the rest of his life.

Rebecca Lavoie: Can you talk about that speech?

Doris Kearns Goodwin: And it only took Dick nine hours to write it. Somehow it would take you weeks to write a joint session of Congress speech, but he only had from Monday morning until Monday night at 6:00 to write that speech. And they asked him, what can we do to help you with the pressure? He said, nobody can come in here, I need serenity. I will hand the pages out little by little to Johnson. He can edit them. They'll come back in, but otherwise my secretary will give them. And I have to be by myself. And somehow sitting there by himself. I couldn't have done this. I think if I had to. He knew he had to come up with a good first line. He always liked a first line that was good, and he came up with a beautiful one. I speak tonight for the dignity of man and the destiny of democracy. How incredible is something like that? Right. And, um. And then I don't know how he was.

Doris Kearns Goodwin: There was something about Dick. I mean, other people can write poetry. Other people can write politics. He wrote public poetry, essentially. I think that's what he was able to do to compress emotions of the country into sentences. The next part said, at times, history and fate meet at a certain place in a certain time, in man's unending search for freedom. So it was in Lexington and Concord. So it was at Appomattox. So it was in Selma, Alabama. This is not a Negro problem, not a white problem, not a northern problem, not a southern problem, not a constitutional problem. The command of the Constitution is plain. It is not a moral problem. It is simply wrong to deny your fellow Americans the right to vote. And I mean incredible. It's just so clear. Right? And and then he then he said, but even if we get the right to vote for the just blessings to be to, to be given to, to the Negro Americans, we have to overcome a century of bigotry and prejudice. But if we work together. And then he paused for a second, and he said, we shall overcome.

Rebecca Lavoie: So this is a thing that you write about, about how much of the progress and the things that happened and the Kennedy and the Johnson administration especially. It was achieved by compromise, and it was achieved in large part by people who, whether they were on the right side or the wrong side or the left or the right, got things done because they loved America. Does it feel like escapism to look back at a time where people are working together to forward things because they love America?

Doris Kearns Goodwin: You know, people sometimes say it's naive to look back at that time and feel that way, but I think it's really important for history to be able to remind us that there was a time, for example, when the Civil Rights Act was facing the filibuster in the Senate and the Democratic Party was split into, Johnson knew it would never pass unless the Republicans could go with him. And that meant he needed Everett Dirksen, the minority leader. So he told all of his lieutenants, you just do anything Dirksen wants. You drink with Dirksen, you eat with Dirksen, you sleep with Dirksen. We're going to get Dirksen to come with us on this bill. And then in the tapes, you hear all the deals that he's going to make with Dirksen. If he'll help bring Republicans to join the Democrats in breaking the filibuster. You know, you want a dam, you want a public works project. Those days, you things didn't have to be transparent. It was much better. You know, you want schools, you want me to come to Peoria. But finally he says to him, Everett, if you come with me on this bill and you bring Republicans, 200 years from now, school children will know only two names Abraham Lincoln and Everett Dirksen.

Doris Kearns Goodwin: How could Dirksen resist? He brings 22 Republicans to join the 44 northern Democrats. They break the filibuster. The bill comes to the floor, changes the face of the country as a result. But people did understand that you needed to make deals, you needed to compromise. And and we have to get back to that. There's no question that we need to get people in Washington who see it the same way. Now, I know it's more complicated. It used to be that they stayed in the Congress on the weekends. They didn't run home to raise these ridiculous funds. They have to have now to stay in office. Their children knew one another as a result of that. They knew each other as people, and that helped them to make the kind of deals they needed to compromise. So somehow we've got to change. Now they're there from Tuesdays to Fridays. They go home. They hardly know each other. They don't even speak to each other in the corridors. They talk about each other with such hateful terms. Somehow we just got to let those people go and get a whole new crop in. Of young people, maybe.

Nick Capodice: More of Doris Kearns Goodwin from writers on a New England stage after a quick break.

Rebecca Lavoie: So I don't think a lot of people know that. Dick Goodwin wrote Al Gore's concession speech after the vote count stopped during the 2000 election. How did he feel about being asked to write that speech?

Doris Kearns Goodwin: Well, what happened is that al Gore had called him up, and when the vote was going on, first in Florida and then going on and on and on and said, would you write and help me write or craft for me, with me a concession speech or a victory speech? Well, Dick knew the victory speech wouldn't really matter. So he worked on the concession speech. And I remember saying to him, you've got to send it down to him. He'd finished it before the decision was made by the Supreme Court. And Dick said, he'll never want to see this until the Supreme Court has decided against him. He's going to want to think it's going to go for him until it does. So he finally sent it down. Al Gore worked on it, and it really was something so important, today's world, because it was the peaceful transition of power. What he started out saying was that right? Um. He talked about the very thing we're talking about today, the rule of law. He mentioned that above. He and al Gore says in the speech that the Supreme Court had made a decision. It was the law of the land. He didn't agree with it, but it was the law of the land. And this was a country ruled by the rule of law. And then he talked about the fact and invention. Eventually he said, so I'm going to give my blessings to the to our president elect, and I wish him all the best.

Doris Kearns Goodwin: Every other president except for 2020, except for 1860 and 2020. In 1860, Lincoln said when he took office that he thought it was one of the central points of the war. That was about that was that had just started, was that if you could allow the southern states to secede simply because they lost an election, then democracy would be an absurdity. And that's what we saw in 2020, the first time that any president did not accept a peaceful transition of power. It was hard for Gore to do that. Many people thought he shouldn't have that. He should have still fought it, but he felt it was important for the country to do so. Every other president, Hillary Clinton, when she lost, she said how hard it was to lose. But on the other hand, she not only respected the rule of law and the peaceful transition of power, Americans cherished it. And so I think Dick felt proud to be part of that moment when that rule of law was brought to the highest level of power by a person who felt he should have won that election, but was willing to let it go to the next president because of that rule of law had been passed.

Rebecca Lavoie: I know you think about leadership a lot. You and Dick both worked for charismatic leaders, one of whom is, I think, revered tremendously, in no small part because he was cut down in his prime. Really charismatic. Really revered. I'm wondering if the events of the past few years have shifted the way that you think we should be looking at very charismatic leaders.

Doris Kearns Goodwin: That's a really good question, because one of the things Dick said in in one of the pieces that he wrote in the last, last months of his life, really had to do with the fact that it was no longer for him. A search for heroes, that what he was looking for were people who would stand up as citizens for their arguments and their rights and come together as, as collective energy. And that's one of the speeches he worked on for Bobby Kennedy, who was who delivered it in Cape Town on his grave. Actually, the words of that speech, part of it in which he had gone to Cape Town, and the kids who were there at University of Cape Town in South Africa were fighting against the oppressive apartheid regime, and they felt like they were not making any difference. The regime was at such a terribly powerful moment of his power. So he said to them that, you know, you may not think you can make a difference, but if individuals make a difference and they come together, large things can happen. And the speech talked about. Every time a man steps up for an ideal, he sends forth a tiny ripple of hope. And then those ripples come together and they can form a current that will break down the mightiest walls of oppression. And that's what Dick came to believe, that when he looked back at history. And I believe this as well, when Lincoln was called a liberator, he said, don't call me a liberator because of the Emancipation Proclamation.

Doris Kearns Goodwin: It was the anti-slavery movement and the Union soldiers that did it all. At the turn of the 20th century, when things were in such turmoil with the Industrial Revolution, and Teddy Roosevelt warned that we were at such a state of turmoil with the new factories and the slums, and in agricultural era was giving way to this new era. We didn't know how to deal with it. The growing gap between the rich and the poor. There were anarchists bombings. There was a nationwide strike, things seemed to be coming apart, and people in cities felt different from people in countries. And he warned that if you started seeing each other as the other rather than as common American citizens because you were in different regions or sections, then democracy would be in peril. But how was that solved? It wasn't just Teddy Roosevelt. It was a progressive movement that grew in the cities. Settlement houses, a social gospel and religion to soften the industrial revolution. To get workers rights to do minimum wage and maximum hours. Same thing happened with the civil rights movement and Lyndon Johnson with the women's movement, the gay rights movement. So at the end, what Dick was writing is that we don't have to just depend on heroes. We have to depend on us to take up the responsibilities of citizenship. And he ended it by saying, we've been through really hard times before. America is not as fragile as we think. Hmm.

Rebecca Lavoie: Can you choose one event in the 1960s that you considered to be the most consequential to the 1970s and beyond?

Doris Kearns Goodwin: I think I'd have to say that not one event, but I think the passage of the Civil Rights Act ending segregation in the South. Think of the fact that, you know, in 1964, blacks still couldn't before the Civil Rights Act go into a movie theater or go into a department store or go into a white only motel or hotel. I mean, to think that we'd gone that long without that being taken away, that stain on our life, and similarly, that blacks couldn't register to vote in the South, that if they tried to register, they were asked to make all sorts of of things that nobody could do. What's the 13th amendment? What's the 17th amendment? What's the 18th amendment? How many seeds are there in a watermelon? How many seeds in a bar of soap? And then they'd be denied registration. And in Selma, Alabama, when they were 3/5 of the of the city was black, only 2% were registered. That's a that's a stain on our country in the sense that, as Lyndon Johnson said, voting rights is the most important right on which all the others depend. And democracy depends on ability to for people to vote their leaders in or throw them out. And they were not allowed to do that. And I think those two acts together, being able to do something to to make America closer to the ideals we have, are the events that I would choose.

Rebecca Lavoie: You know, you wrote about another consequential event that Johnson deceiving the American people about Vietnam was a key moment that seeded distrust of the federal government. But the bottom line was it was a thing that he did that, you know, earned that mistrust. I'm wondering if you think there is a right amount that we should be trusting the federal government.

Doris Kearns Goodwin: Yeah, one of the I mean, in fact, I was we went through the boxes again and I saw the anguish that it felt not only about the war in Vietnam, but about the fact that because Johnson wasn't straightforward about the war, he was so hopeful that he could keep the Great Society alive. And so he didn't bring up the reserves in the beginning, he didn't have a war tax. He never told people the full extent of the war. When you were a commander in chief, and you're sending men and women into combat, you have to be straight to the people about why they're going and what it means and how the war is going. And when that credibility gap emerged, when the gap between what he was saying that the war is going well and then the Tet Offensive happened, showing it wasn't going well. That gap, I think, has produced the beginning of that loss of trust in government, which means a lost in trust in us in a way. And then it was exacerbated by Watergate. It's certainly been exacerbated in these decades to come. And that's one of the things that is so important right now is how to restore somehow that trust. It means we're going to have to believe that we can change things. We need to make a lot of changes. There may be changes in the Electoral College. There may be changes in campaign finance, there may be changes in gerrymandering. But these problems we created, these problems. We made these things happen. We can we can change them. I think if there's one thing I'm sort of rambling on right now, but it's something that's important to me. There's one thing if I could do, there's so many things that need to be done to to heal this beleaguered nation, but I would love to see, because of Teddy Roosevelt's warning that democracy is in peril if people see each other as the other, rather than common American citizens.

Doris Kearns Goodwin: That's where we're at today. The anger of people who who feel like the other is hateful and they call them names. It's not like we're feeling like they're people that are our neighbors. Perhaps if we lived near them, what if we allowed every college, every high school student to go into some sort of national service program so the kid from the city goes to the country. The kid from the the kid from the east goes to the west. And they have a common mission. I mean, the Army instills that sense of mission in young people. My youngest son, Joey, who graduated from. He would hate it if I'm still calling him Joey Joseph, my youngest son. Um, no, he wouldn't really hate it. He went into the Army right after nine over 11. He had graduated from Harvard that June, and he was a combat leader in Iraq, and he was in Afghanistan. He earned a Bronze Star, came home. But he said that he would never feel any prouder than bringing a team of people in his combat unit, a platoon who were from all parts of the country, different classes, different religions, different races together in a common mission. And if these kids were in a national program and they did some sort of mission together for a two years or something like that. Maybe then they would know that the other is not the other, that there's somebody you're dealing with on a daily basis. And I'd love to see that happen.

Rebecca Lavoie: What do you think the job of a presidential historian will look like in 60 years?

Speaker4: Oh, wow.

Doris Kearns Goodwin: You know, I've been dreaming, actually, of imagining a presidential historian writing about this week and this verdict, actually. And what I'm hoping that presidential historian says is that never again was a president convicted of a felon as never before. I mean, I just keep wishing if I could close my eyes and see that they say that this didn't become a recurring thing, that never before had there been a convicted felon who was a presidential candidate or a former president, and that never again, 60 years from now, had it happened. I think what's going to be interesting for presidential historians, on a lighter note, 60 years from now is that they'll have much more stuff about us. They'll see us walking and talking. They'll look at videos of the presidents. They'll know what their voice was like. They'll know how they turned around and how they seen. When we were working on the movie on Lincoln, which was based in part with Steven Spielberg on Team of Rivals. The only way we knew that Lincoln had a high pitched voice was because somebody wrote about it. So when when Daniel Day-Lewis spoke with a high pitched voice, people said, that can't be. It must be a baritone voice.

Archive: I can't end this war until we cure ourselves of slavery. This amendment is that cure. We need to get the hell out of here and get them. But how? I am the president of the United States, clothed in immense power.

Doris Kearns Goodwin: But in fact, the high pitched voice was better for a crowd of 10,000 people would be at those debates then, and it would go over the crowd so people could hear in the back, where Stephen Douglas had a very baritone voice that was great for the front. And we, of course, never saw him walking or talking. We only knew that he walked like a laborer who came home at the end of a hard day because someone said he did. So we're going to know 360 degrees of our people much more, but we won't have the kind of letters and journals and diaries that allows you an intimate knowledge of what they felt like, what they were emotionally feeling like. Maybe we'll have emails if people save them, but there's so much more staccato. We'll have tweets that will help us. Not very much, I think. So I'm very glad to be in historian that had that kind of primary source for the people that I've written about in the past, and but it's been a great profession. I sometimes think it's an odd thing to have spent 50 years of my life writing about dead presidents, waking up with them in the morning, thinking about them when I go to bed at night, I wouldn't change it for anything. The only fear I have is that in the afterlife, there'll be a panel of all the presidents that I've ever studied, and everyone will tell me everything I missed about them. And of course, the first person to speak out will be Lyndon Johnson. How come those books on the Roosevelts and the Kennedys were twice as long as the book you wrote about me?

Rebecca Lavoie: I got a question for you from Twitter. Boston writer Megan Johnson asked. I like to think Doris Kearns Goodwin runs her own female fight club. Do you?

Doris Kearns Goodwin: If she will teach me how to Do it, tell her I'd be glad to do it. I will write her back.

Rebecca Lavoie: A bunch of people want to know what it is that you enjoy reading. I'm assuming you don't read your own books in your free time.

Doris Kearns Goodwin: No. In fact, when I at night I for many, many years would read mysteries. I don't know why. For some reason, reading about people and not knowing how the thing was going to end would keep me up too long at night. It wasn't always a good thing, but I've loved reading mysteries. But lately when I started to write this book, my publisher came to me and he said, you're going to be changing time zones. You're going to have to go back from the 60s to earlier times. You're going to be talking with Dick when it was present time. So read novels that do that. So I, I started reading novels as a result of that. Prince of Tides and beloved all sorts of novels where the narrator was telling a story, but it skipped back and forth in time. So now I'm on to reading novels. But either way, it's not reading history at night, or it's not reading. Certainly not reading my books at night. There was a woman who told me that she was. Especially my books that are fat. When she was reading Bully Pulpit in hardback, she fell asleep and it broke her nose. So I'm reading paperbacks at night.

Rebecca Lavoie: Near the end of the book, you talk about this idea. Johnson, after signing the 1964 Civil Rights Act, said that we'd be entering this great testing time. You know, essentially after big progressive change, there's big pushback. I think six decades later, it's fair to say we're in a big testing time. How does this one compare with the testing times that have come before it in the United States?

Doris Kearns Goodwin: Yeah, I mean, I think that's one of the reasons why I think history really can give us perspective, because the important thing to remember about what it was like to be in the Civil War generation as the Civil War was beginning, or to be at that turn of the 20th century, or to be in the depression or the early days of World War two, is that the people living then, they didn't know how it was going to end. They had all the anxieties we had. So we look back on those periods, which were really dire, I think more more troubling than this one. This is the most troubling time in my lifetime, I think. But there were more troubling times before and in the early days of World War two, just I think about 1940 and what it was like for the people living there in that in the space of almost a week or several weeks, Hitler was able to conquer all of Western Europe. Tens of thousands of people dying, cities left and burned. Only Britain standing alone against Germany. France had fallen and America wanted to help so badly. And we were so far behind. We were only 18th in military power. We became 17th when Holland surrendered, and there was little chance that we could do anything to help England if if Russia had not been attacked by Germany, if they'd gone right after England, as they almost did and conquered Britain, then they would have come after us, and we would have been unprepared for that war.

Doris Kearns Goodwin: As it was, Britain held out for that year and a half before Pearl Harbor. And then what happened is the assembly line started to get going. By 1943, we were able to produce a plane every four minutes, a tank every seven minutes, and a ship was launched every single day. And so there we come to D-Day and we've got 170,000 troops there. The Churchill and Roosevelt have finally come to an agreement that this is the time where we can do this, and they've got every weapon they need for the finally for the soldiers. They've got the landing craft, they've got the aircraft. And yet everything will depend on those individual soldiers. That means the leaders can't do it anymore. It's going to be whether the soldiers, what's going to happen when they come off those landing craft. And they have to climb up those cliffs and the bullets will be raining down on them. The bravery and the resistance and the and the resilience of those soldiers. And the night before D-Day. Hardly anyone could sleep. Eleanor Roosevelt was unable to sleep.

Doris Kearns Goodwin: Churchill said he couldn't sleep. He woke up Clementine. And he said, do you realize tomorrow morning this would be tonight? Tomorrow morning, June 6th, 20,000 of our troops may be dead. Eisenhower walked amidst the troops, and he knew that maybe one out of 2 or 3 might not make it through there. Only FDR could sleep, in part because of his polio. He knew that when there were situations that you couldn't control, that you just had to let it go. So he was asleep when the call came from General Marshall at 2 a.m., telling him, the troops have landed, they are moving forward. And he immediately called his cabinet together. Get everybody here, get all the white House staff here. And then that morning, the news came out to the American people that the troops have landed and they're moving forward. Church bells rang, synagogues opened, everybody went to pray. And Roosevelt gave a speech that night, which would be tomorrow night 80 years ago, to the people in the form of a prayer. Let us pray for our soldiers. And that was the moment of the beginning of the end of that war that finally destroyed fascism and allowed democracy to prevail. We've got to believe we did it then, and we can somehow do it again.

Rebecca Lavoie: Reading this book, listening to you riffle through Dick Goodwin's boxes, you know, going through all this material with the love of your life, it sounded like a pretty great date. Um, is this what you'd recommend that we do with the person we love? Just go through their stuff.

Doris Kearns Goodwin: You know? You know I actually would. I think what happens you often hear about people whose parents or grandparents have died, and they're left to go through the scrapbooks or go through the pictures themselves after it's over. I think if we can start talking to our parents or grandparents now and and be able to get their stories and go through the scrapbooks with them and just be able for for me, for Dick, I was so worried after he died of whether I could continue working on this project, because I was afraid it would just make me sad to to have to remember him dying in that last year of his life. But instead I realized, this is what I've done my whole life is, as I said, trying to bring these people back to life. And it doesn't have to mean bringing people back to life who will be on Mount Rushmore or will be on currency, or will be in movies. It's bringing your parents or your grandparents back to life, and you can do that through the stories that they tell you, that you then tell your children. That's how that's how people live on. So I would say, if you've got a chance to share those stories with anybody, if you're younger and with your parents or your grandparents, share them now, because then you'll want to tell those stories to your children, your friends and your colleagues so that the people you love can live on food.

Rebecca Lavoie: Thank you so much, Doris Kearns Goodwin. Thank you for joining me.

Doris Kearns Goodwin: Thank you.

Nick Capodice: That is it for Civics 101 this week. If you loved this conversation and you want to hear more of it, you can get a longer version of this interview with Doris Kearns Goodwin. Just check out NPR's Writers on New England Stage podcast feed. The Music Hall's executive director is Tina Sawtell. NHPR's event producer is Zoe Kay. The music hall's production manager is Janna Morris. Live sound and recording by Ian Martin. Literary producer is Brittany Wasson. This edition of writers on a New England Stage was hosted by Rebecca Lavoie. Music. In the episode by Blue Dot Sessions I'm Nick Capodice and this is Civics 101 from NHPR. New Hampshire Public Radio.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Moyle v U.S.: Why did SCOTUS punt an abortion case?

The Emergency Medical Treatment and Labor Act, or EMTALA, says certain hospitals have to provide stabilizing care to patients. Until the Dobbs decision in 2022, that care included abortion if necessary. After Dobbs, though, states with strict abortion laws make it difficult if not impossible to abide by EMTALA. Idaho is one such state, the United States sued, and that case made its way to the Supreme Court. In June of 2024, however, the Court said it made a mistake. It never should have taken the case. So what happened? Hannah is inside the courtroom, Nick's waiting outside.

Listen to our episodes on federalism, Roe v Wade and precedent for some extra context on what we talk about here. Finally, listen to Hannah's episode on what it was like to spend a day in the Supreme Court. 


Transcript

Hannah McCarthy: A note to listeners. In this episode, we're discussing legal issues with contextual references to sexual assault and other content that might not be appropriate for all. Just a heads up. All right, here we go.

Nick Capodice: Sounds like Chameleon. It is Chameleon. I love this song. Herbie Hancock made this famous on his album Headhunter. You know, Nick, maybe. Have you ever considered just reporting instead of just talking about fun little trivia facts.

Hannah McCarthy: On April [00:00:30] 24th, 2024, when Civics 101 was in Washington, D.C., Nick and I went to the Supreme Court. I had acquired a press pass to go inside and hear the arguments.

Archival: We will hear argument this morning in case 23 726, Moyle versus United States and the consolidated case. Mr. Turner.

Hannah McCarthy: And Nick stayed outside.

Archival: What do we want? When do we want it? Now. What do we want.

Hannah McCarthy: And this [00:01:00] case? And actually, it's two consolidated cases, Idaho and Moyle et al v United States. I'm going to refer to it as Moyle. The court was looking at a strict abortion restriction in Idaho, and trying to figure out whether or not it conflicted with a federal law. And on June 27th, 2024, the court announced its opinion, and we will get into that in detail later.

Nick Capodice: By the by, the opinion was known. A day before it was released. The court had accidentally posted it [00:01:30] to its own website. Sort of a self-inflicted leak. And there are a lot of pieces to this case. It is tied to the recent Dobbs decision that overturned Roe v Wade. It's tied to questions about federal power versus state power, and it's tied to something called Impala, the Emergency Medical Treatment and Labor Act.

Hannah McCarthy: All right, let's do it. You're listening to Civics 101. By the way, I am Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And today we are talking about abortion. EMTALA [00:02:00] and Moyle v US.

Nick Capodice: I'd like to start with like a really 101 facts of the case here. You know who is Moyle? What is EMTALA? What are we talking about here?

Hannah McCarthy: Sure, I'll do EMTALA first. Again. It stands for the Emergency Medical Treatment and Labor Act. It was passed by Congress and signed into law by Ronald Reagan in 1986. Now people refer to it as the patient Antidumping law. Basically, in the mid 80s there were reports [00:02:30] of hospital emergency departments refusing to treat people who were uninsured, weren't U.S. citizens, or who didn't have the money to cover hospital costs. The law and I'm going broad here, says that if a hospital participates in Medicare, as in if they get the federal health insurance plan, if they receive federal funds and nearly all hospitals do. That hospital has to provide emergency care to someone, regardless of their ability to pay [00:03:00] the bill. Are you with me so far?

Nick Capodice: I think so. It's like if you show up to an emergency room and you're bleeding from a head wound, say they can't turn you away, right?

Hannah McCarthy: They cannot turn you away. They have to first take a look at you, give you a medical screening, and secondly, if that medical screening tells a doctor that you're experiencing an emergency medical condition, they have to provide stabilizing care. If that hospital does not have the staff or the facilities for that care, they have to transfer you somewhere that does. [00:03:30]

Nick Capodice: Now, what counts as an emergency medical condition?

Hannah McCarthy: This is an important question. So EMTALA says acute symptoms of sufficient severity, including pain wherein if that person did not get immediate treatment, their health or the health of their unborn child would be in serious jeopardy. Uh, or their bodily functions or their organs would be impaired or experience dysfunction.

Nick Capodice: All right. So EMTALA is specifically [00:04:00] about health. It doesn't say you must give this person the necessary care if and only if they are going to die if you don't.

Hannah McCarthy: Yeah, and I know where you're going with this because as we have mentioned, we are talking about abortion here. Idaho's abortion law is specific to saving the life of the mother. The state also allows for abortions in the case of rape and incest. They passed the law in 2020, and then it went into effect in 2022 after the Dobbs v Jackson [00:04:30] decision overturned Roe v Wade and the constitutional right to abortion. The criminal penalties for anyone who performs or attempts to perform an abortion are up to five years in prison, and for doctors, their first offense will mean a license suspension and their second means they lose their license.

Nick Capodice: So there's a federal law that mandates stabilizing care. Which, and correct me if I'm wrong here, could very well be abortion to protect someone's health. Correct. And then there's [00:05:00] a state law that bans most abortions. But in the case of medical emergencies, it allows them to protect someone's life.

Hannah McCarthy: Yeah. Long and short of it.

Nick Capodice: So this is a federalism issue, Hannah.

Hannah McCarthy: It sure is. Nick. And what do we know about federalism? You remember the three helpful principles. We've got a whole episode on this one, folks.

Nick Capodice: Okay, I know that federal law trumps state law. That is the Supremacy Clause in the Constitution. If a state law is in conflict [00:05:30] with a federal law, federal wins. But then I think that states are allowed to push back on that.

Hannah McCarthy: They are totally allowed to push back. And those are principles two and three. The US recognizes that state governments are important, that they have a degree of autonomy, and that there are plenty of places where the federal government does not or cannot regulate what states do. So when a state, for example, thinks a federal law is unconstitutional and does not want to follow it, [00:06:00] that is allowed. But and this is an important but unless the court system agrees with that state that a federal law is unconstitutional, that state cannot stop the federal government from trying to enforce that federal law. Nor can they stop the government from prosecuting people who violate it.

Nick Capodice: And I know that the federal government does not always choose to enforce federal law. But with the Moyle case, the federal government did.

Hannah McCarthy: The federal [00:06:30] government did.

Archival: Almost immediately, the Department of Justice filed a lawsuit because that exception, the life of the mother, wasn't enough and it went against EMTALA. Emergency care is emergency care, and a patient should not be denied care because, well, they aren't dying yet. A federal judge immediately put an injunction in place so that wouldn't be the case.

Hannah McCarthy: And then Mike Moyle, the Republican speaker of the House in Idaho, petitioned the Supreme Court to take up the case.

Archival: That injunction was suspended [00:07:00] by a three judge panel of the Ninth Circuit Court of Appeals said Idaho could enforce all of its abortion law while the lawsuit worked its way through the courts, which is what it is doing now, because in January, the Supreme Court agreed to hear arguments in the United States versus Idaho and Moyle.

Nick Capodice: So that's how we got Moyle v US.

Hannah McCarthy: That is how we got it.

Nick Capodice: So at that moment, Hannah, when you and I were at the Supreme Court, that ban was still in place.

Hannah McCarthy: It was. [00:07:30]

Nick Capodice: All right. So let's move on to that day when you and I were there in person.

Hannah McCarthy: Oh, yeah. And if anyone wants to hear about what it was like to spend a day in the Supreme Court, there's a link to that episode in the show. Notes. Um, but, Nick, first, what was it like outside?

Nick Capodice: It was very, very noisy.

Nick Capodice: A lot of people are protesting. There are about 5 or 6 people who seem to be, uh, in the pro-life camp and maybe like 1 to 200 [00:08:00] in the what we now refer to as the pro-choice camp. There are two competing podiums, one on the left and one on the right with speakers, and they're shouting at the same time.

Archival: Typical pro-choice person. Eight out of ten people names. No they're not.

Archival: Eight. Eight out of ten. No, no, not in healthcare. That's not true. We want women to win.

Archival: No you don't. We want to live in a free democracy. Abortion kills. Kills. Planned Parenthood's founder. [00:08:30] Do you support Margaret Sanger? Margaret Sanger was a racist.

Nick Capodice: And real quick, before anybody calls me out, I did make a linguistic error while taping in the field there.

Hannah McCarthy: Um, you mean you said pro-choice and pro-life?

Nick Capodice: Yeah, I did. Look, I understand if people get frustrated when words we are supposed to use change, sometimes seemingly overnight, the sheer amount of expressions I've been told aren't the appropriate ones over the last six years is staggering, [00:09:00] but I always come around to understanding that words do matter and the reasoning is right. Words evolve and so do we. Many news agencies no longer say pro-life and pro-choice because they're recognized as politically charged, advocacy based terms like slogans each side uses to describe themselves. So instead we in the news world say what these sides truly are. Abortion rights supporters and abortion rights [00:09:30] opponents.

Hannah McCarthy: So there were people on both sides of the barricades. Did you talk to anyone who was there?

Nick Capodice: I did, I'm going to share three short interviews with you today. First, I spoke to Jessica.

Jessica Baskerville: My name is Jessica Baskerville. Spelled b a s k e r v I l l e. And I work with the National Women's Law Center. I am a media associate. I'm not even sure I'm going to spit out my gum. No, I don't, I don't, you know, chomp into your microphone.

Nick Capodice: I like a good microphone. Chomp. [00:10:00] We like a lot of good scene tape. Okay.

Jessica Baskerville: I don't know, gum is part of the scene but is now. All right. So what are we going to be talking about?

Nick Capodice: I wanted to ask you from sort of. So our show is about systems and civics, right? It's schoolhouse Rock for adults.

Jessica Baskerville: I love it.

Nick Capodice: From a civics constitutional perspective. What do you guys think is going on in there today?

Jessica Baskerville: Learning a lot about like the 14th amendment and how it has been at one point stretched to protect reproductive freedom, but it is now being used to restrict reproductive freedom based on how [00:10:30] justices have interpreted it over the years. And now it's it's being interpreted differently. Differently. Um, and at that, there is the expense of so many things reproductive freedom, just general bodily autonomy, um, racial protections, interracial marriage. There's so many things because of how this amendment has been interpreted by different courts. Um, yeah. I think that there are so many things and interference of how the government well, not even [00:11:00] the government, how the judicial branch is choosing to, um, police people's bodies and decide what health care is.

Hannah McCarthy: So what Jessica is talking about here, at least to my ear, um, is that the Supreme Court in Roe v Wade said that the 14th Amendment's implied right to privacy protected abortion as a constitutional right, and that in Planned Parenthood v Casey, the court said that [00:11:30] the right to abortion stems from the 14th Amendment's right to liberty. And then in Dobbs v Jackson Womens Health Organization, uh, the court said, actually, the Constitution doesn't mention abortion. And the reasoning in Roe and Casey was bad. So perhaps unsurprisingly, the 14th amendment didn't show up in oral arguments or in the court's opinions or dissents.

Nick Capodice: And that's because Dobbs pretty much just took it out of the abortion conversation.

Hannah McCarthy: I'm assuming here. But yeah, I mean, given Dobbs, that argument would not have been much [00:12:00] help in Moyle.

Nick Capodice: Do you want to do an interview?

Felipe Avila: I'm happy to.

Nick Capodice: All right, tell me, who are you and what are you doing here today?

Felipe Avila: My name is Felipe Avila. I'm director of communications with the National Association of Pro-Life nurses, and we are here to stand up for all of the health care providers throughout the country who believe that their conscience protection should be protected. We. We are deeply concerned that the Biden administration is weaponizing and EMTALA to essentially force providers to perform abortions. But essentially what [00:12:30] this case is about is a 1980s era law called EMTALA that essentially was introduced by the government to make sure that patients that are low income or who do not have insurance, that they are able to receive emergency medical care. But what the Biden administration is now looking to do is expand EMTALA to force health care providers to turn the emergency room into an abortion facility, and we are deeply opposed to that.

Nick Capodice: Uh, do you think if you could have a conversation with [00:13:00] anybody on the other side of the of the other side of the barriers there? Uh, do you think there's any common ground that you two could come together with?

Felipe Avila: I think the biggest common ground is that we both care about patients, and we both care about our patients that we serve and that we represent. And I would say where we differ is that they believe incorrectly that we are risking women's health. But I would say the opposite. We are deeply concerned that EMTALA is forcing professional health care professionals to perform abortions [00:13:30] that are not medically indicated.

Nick Capodice: And what's that pin you have there?

Felipe Avila: So this is the caduceus, and this is just the universal symbol for health care. And we believe that abortion is not health care. And we are here to say that.

Hannah McCarthy: Okay. Got it. Um, so this is really interesting. Felipe has got some serious concerns here that I think I can address his point about conscience, conscientious objection by a medical [00:14:00] practitioner that does have federal protection, at least when it comes to facilities or doctors that receive federal funds. And the federal funds. Thing is, in part, what makes EMTALA enforceable.

Nick Capodice: Because they participate in Medicare.

Hannah McCarthy: Yeah. And the lawyer for the United States, actually, in these oral arguments, argued that conscience objections are permitted under EMTALA.

Nick Capodice: So, like, what if an entire hospital's medical staff claimed conscientious objection to abortion?

Hannah McCarthy: According to the Solicitor General of the United States, their conscientious [00:14:30] objection would be honored by Health and Human Services. Okay. One other thing. Nick Philippe's view that the Biden administration is expanding EMTALA to include abortions. I just want to address that. The Biden administration did send out a memorandum after Dobbs came down, and it affirmed that a pregnant patient with an emergency medical condition as defined by EMTALA, who requires an abortion to be stabilized, must be offered that abortion regardless [00:15:00] of state laws prohibiting abortion.

Nick Capodice: So basically, the Biden administration wasn't expanding. It was reminding. It was reminding hospitals that EMTALA a federal law supersedes state laws.

Hannah McCarthy: Yeah, it's really clear about that. So to Philippe's concern that EMTALA forces physicians to provide abortions when they are not medically indicated. It's actually quite the opposite. Metalla mandates an abortion when it is determined to be medically necessary treatment to stabilize [00:15:30] a patient, because it mandates the necessary treatment for stabilizing a patient full stop.

Nick Capodice: All right, I got it. My last interview was with a practicing physician who had flown from Idaho to say what she had seen on the ground in her state in the wake of the recent abortion bans, which were in effect when I spoke to her.

Caitlin Gustafson: Caitlin Gustafson I'm a family physician in McCall, Idaho. Yeah, the case today is about life saving emergency abortion care. It's really about our ability [00:16:00] right now in Idaho and states like ours to provide the care when folks walk in with pregnancy complications, which are not, unfortunately, not all that uncommon, um, that they can receive the care that they need that preserves their health right there at home with their doctor, their health care community and their state. That's what's at stake. I grew up with in Tulsa. All doctors practicing grew up within toilets. A 40 year old law that really says that we need to [00:16:30] provide stabilizing medical care to anyone that comes to an emergency room, whether they're pregnant or not. Pregnant applies to any person. It was originally put in place so that hospitals didn't what we call dumping not take care of patients who didn't have insurance or they didn't want to take care of. And it really ensured that everyone receives the same level of safe health care. What we're seeing in Idaho right now, and states like ours isn't an exception is being made [00:17:00] that if that stabilizing, health saving, life saving care is an abortion, we can't provide that. And we're in the untenable situation of shipping by life, flight by whatever means necessary to get a patient out of state to get the care that they need.

Nick Capodice: What can you foresee being the ripple effects if this doesn't go the way that you hope it does today?

Caitlin Gustafson: Yeah, we're living the ripple effect in Idaho, in Idaho right now. Um, we're living it because we had this life [00:17:30] saving protection in place, and we were able to provide this care up until January, when the Supreme Court decided to hear this case, um, and for the time being, sided with the state of Idaho, saying that our state abortion law, one of the strictest in the country, could override that federal protection that we all know and that we've all learned and grew up in and provided care in for years and years during our career. So we're we're an example of it, because right now, if you have one of these [00:18:00] emergencies, you're leaving the state. Um, and to to the detriment of our patients health. Um, and it's causing distress across the medical system, the health care system as well. Because this isn't just about abortion care. Um, it's about access to emergency care. And in this case, uh, we're going to see if this doesn't come to an end either at the Supreme Court or the people, um, [00:18:30] coming together to say it's unacceptable. Um, we're going to continue to see health care complications. A worsening maternal health care crisis. Um, and a much deepening physician shortage in Idaho and other states like ours.

Nick Capodice: We're going to take a quick break, after which we're going to hear about what went on inside the court, as well as how the court decided.

Hannah McCarthy: But before that break, we can only make this show because [00:19:00] of listener support. Make a donation in any amount at our website civics101podcast.org.

Nick Capodice: We're back. You're listening to Civics 101. We're talking about Moyle v US. And, Hannah, before the break, you said you were going to take us inside.

Hannah McCarthy: All right, here we go. Okc um, this is the point where I would play tape of me walking into the Supreme Court and [00:19:30] going through the metal detectors and trying to play it cool in the press room, like I wasn't experiencing the most exquisitely joyous day of my entire career as a journalist and marveling at the still kicking facilitation of free press in a shared national obligation to provide people with information about what is going on in government institutions. But I don't have that tape.

Nick Capodice: You don't have that tape because you weren't allowed to have that tape, Hannah, because the Supreme Court does not allow recording of any kind except their own. But you did have a pen and paper, right?

Hannah McCarthy: I sure did. I will post pictures [00:20:00] of my scribbles on the episode page for this one. So again, go and listen to my mile a minute walking down the D.C. sidewalk with Nick rant if you want the details of the experience. But today I got to talk about the argument.

Archival: States and the consolidated case, Mr. Turner.

Archival: Thank you, Mr. Chief Justice, and may it please the court.

Nick Capodice: All right. But tell me you weren't over the moon to be in that room when this was happening.

Hannah McCarthy: I was orbiting the moon, Nick. The [00:20:30] court sketch from this day. I watched it sketched in real time. The sketch artist was sitting to my left eye like I watched it happen. Um. All right. So Joshua Turner is the advocate for Idaho.

Archival: First section 1395. The Medicare Act's opening provision forbids the federal government from controlling the practice of medicine. That's the role of state regulation. Second subdivision F Enamtila codifies [00:21:00] a statutory presumption against preemption of state medical regulations, and third, EMTALAs stabilization provision is limited to available treatments, which depends on the scope of the hospital staff's medical license. Illegal treatments are not available treatments.

Hannah McCarthy: Okay, so going into this case, I want you to keep in mind that as is so often the case, there are people who are disagreeing about what the law actually means. Turner [00:21:30] is not arguing that Impala is inherently unconstitutional, but he is arguing that the way the government is trying to enforce it is wrong. And his big sticking point here is this state law limits medical practice. The federal government cannot force a state to violate that law. That's not how preemption works.

Nick Capodice: Preemption. Meaning federal law trumping state law.

Hannah McCarthy: Yeah. Turner says that [00:22:00] EMTALA requires states to provide available stabilizing treatment. So if abortion by law is mostly not available, EMTALA does not require doctors to offer or provide it.

Nick Capodice: Contrary to what the federal government is saying, which is where he's getting the federal government is wrong thing.

Hannah McCarthy: Yeah. So the liberal justices on the court took issue with this because Metalurh does talk about preemption. It says, quote, the [00:22:30] provisions of this section do not preempt any state or local law requirement except to the extent that the requirement directly conflicts with a requirement of this section. Here's Justice Sonia Sotomayor.

Archival: You can't preempt unless there's a direct conflict. If objective medical care requires you to treat women who are who present the potential of serious medical complications, and [00:23:00] the abortion is the only thing that can prevent that. You have to do it. Idaho law says the doctor has to determine not that there's merely a serious medical condition, but that the person will die. Yeah, that's a huge difference, counsel.

Nick Capodice: Okay, so Sotomayor here is seeing a conflict. She's like, when it comes to an abortion, federal law says protect their health. Idaho law says nope, you can only protect their life.

Hannah McCarthy: Yeah. And [00:23:30] Justices Sotomayor, Elena Kagan and Ketanji Brown Jackson asked a lot of questions along the lines of, all right, wait, so you're telling me that if this was happening to a pregnant woman or this or this, and she's not facing immediate death, but she could lose organs or seriously damage her health or ability to get pregnant in the future. And abortion is the only medical answer. Ohio wouldn't provide it.

Archival: Sepsis [00:24:00] an uncontrolled hemorrhage. There is likely to be a very serious medical condition, like a hysterectomy. Based on the. Let me go to another one. This particular patient they tried had to deliver her baby. The baby died. She had a hysterectomy, and she can no longer have children.

Hannah McCarthy: Sotomayor is rapid firing these scenarios, and Turner answers.

Archival: And Idaho law does not require that doctors [00:24:30] wait until a patient is on the verge of death. There is no emergency requirement. There is no medical certainty requirement.

Nick Capodice: Hannah, I thought death was the thing. Isn't that the thing? A doctor in Idaho can't perform an abortion to prevent death.

Hannah McCarthy: The law says, and I quote, only when it is necessary to prevent the death of the pregnant woman. Turner says that it's about good faith, medical judgment. It varies case by case. Justice Amy Coney Barrett has a problem [00:25:00] with this.

Archival: I'm kind of shocked, actually, because I thought your own expert had said below that these kinds of cases were covered, and you're now saying they're not.

Archival: No, I'm not saying that. That's just my point, Your Honor.

Archival: Is that, well, you're hedging. I mean, Justice Sotomayor is asking you, would this be covered or not? And it was my understanding that the legislature's witnesses said that these would be covered.

Nick Capodice: Wait. Explain this. Who said what would be covered?

Hannah McCarthy: Yeah. Okay, so Barrett is referencing legal briefs. So before oral arguments actually happen at the Supreme Court, both sides submit [00:25:30] lots and lots of information to the justices to try to make their case. Petitioners from Idaho sent the court some briefs that said, you know, just to be clear, when it comes to certain cases, the cases that the Biden administration raised, even if death isn't imminent, abortion is a permissible treatment.

Nick Capodice: All right, so Barrett is asking Turner why he's not just saying, don't worry, Justice Sotomayor, with these hypotheticals, you're raising a doctor would be [00:26:00] allowed to provide an abortion. Yeah, that's.

Hannah McCarthy: What he's being asked, essentially. And Justice Brett Kavanaugh kind of says the same thing. You know, he's like the United States says that you, Idaho, would deny women abortions in these cases. But you, Idaho, have said that no, in these cases, we wouldn't.

Archival: Just want to focus on the actual dispute as it exists now, today, between the government's view of EMTALA and Idaho law, because Idaho law has changed since [00:26:30] the time of the district court's injunction, both with the Idaho Supreme Court and with a clarifying change by the Idaho Legislature, you say in your reply brief. And so to the the moil reply brief says that for each of the conditions identified by the Solicitor General, where under their view of EMTALA, an abortion must be available. You say in the reply brief that Idaho law in fact [00:27:00] allows an abortion in each of those circumstances, and you go through them on pages eight and nine of the reply, brief each of the conditions.

Nick Capodice: It sounds a little bit like Barrett and Kavanaugh are saying, you know, based on the information you gave us, you don't have a problem here.

Hannah McCarthy: Yeah. They're asking, you know, whether there is a dispute at all. But then the liberal justices are like, there's another issue here, Idaho. You're telling us federal law does not preempt state law? [00:27:30] And we just don't get that. Here's Kagan.

Archival: Your theory of EMTALA is that EMTALA preempts none of it, that a state tomorrow could say, even if death is around the corner, a state tomorrow could say even if there's an ectopic pregnancy, that's still that's a that's a choice of the state. And EMTALA has nothing to say about it.

Archival: And that understanding is a humble one with respect to the federalism role of states. That's the primary care providers [00:28:00] for their citizens, not the federal.

Archival: It may be too humble for women's health. You know.

Nick Capodice: There's that word federalism.

Hannah McCarthy: That's what it's all about. Nick Idaho is saying we are allowed to set certain standards. That is how federalism works. And the liberal justices are saying, hang on. Federal law. Preempting state law is also how federalism works. And then Barrett and Kavanaugh, two conservative justices, are saying, what problem are we actually practically having here? [00:28:30] So, okay, the United States is the other side of this case. The advocate for the United States is Elizabeth Prelogar.

Archival: Today, doctors in Idaho and the women in Idaho are in an impossible position. If a woman comes to an emergency room facing a grave threat to her health, but she isn't yet facing death, doctors either have to delay treatment and allow [00:29:00] her condition to material to materially deteriorate, or they're airlifting her out of the state so she can get the emergency care that she needs. One hospital system in Idaho says that right now, it's having to transfer pregnant women and medical crisis out of the state about once every other week.

Hannah McCarthy: So right out of the gate, Justices Clarence Thomas and Samuel Alito asked Prelogar about the spending clause.

Nick Capodice: What now?

Hannah McCarthy: EMTALA is Spending spending clause legislation. It requires [00:29:30] hospitals that receive federal funds to abide by the care standards it establishes. The spending clause, by the way, is in the Constitution. So here's Thomas.

Archival: Uh, general, uh, are you aware of any other, uh, spending clause legislation, uh, that, uh, preempts criminal law.

Hannah McCarthy: So Prelogar answers no, none that come to mind. But there are a bunch of other cases where courts, including this one, have upheld [00:30:00] preemption when it comes to spending clause legislation. So that extends to this case. But Thomas is asking in part because the US sued Idaho. It did not sue the hospitals.

Archival: In this case, you are bringing an action against the state and the states not regulated. Uh, are there other examples of these types of suits?

Archival: Sure. I mean, there are numerous examples where the United States [00:30:30] has sought to protect its sovereign interests in situations where a state has done what Idaho has done here and interposed a law that conflicts. So I'd point to Arizona versus United States.

Hannah McCarthy: As Prelogar says, the U.S. sued Idaho because Idaho is preventing its hospitals from complying with Impala. And Thomas asks, essentially, well, can't the hospitals just tell the state that Impala preempts state law? And Prelogar says, sure, they could, but I'm.

Archival: Not aware of any principle or precedent [00:31:00] in this court's case law to suggest that that's the only way for the government to protect its sovereignty.

Archival: That is the normal way, though.

Archival: I think that that's often the fact pattern of particular cases.

Hannah McCarthy: Now, Alito is not convinced.

Archival: How can you impose restrictions on what Idaho can criminalize, simply because hospitals in Idaho have chosen to participate in Medicare? I don't understand how this squares with the whole theory of the spending clause.

Archival: Well, I think that it squares with this court's long line of precedents cited at page 46. Well, I've [00:31:30] looked at that.

Archival: I've looked at those cases. I haven't found any square discussion of this particular issue, but I'm interested in the theory. Can you just explain how it works in theory?

Archival: Sure. So spending clause legislation is federal law. It's passed by both houses of Congress. It's signed by the president. It qualifies as law within the meaning of the Supremacy Clause.

Archival: Absolutely, absolutely.

Archival: And so I think the Supremacy Clause dictates the relevant principle here, that what the law where. [00:32:00]

Archival: I'll let you finish. Yes. Go ahead.

Archival: In a situation where Congress has enacted law, it has full force and effect under the Supremacy Clause. And what a state can do is interpose its own law as a direct obstacle to being able to fulfill the federal funding conditions.

Nick Capodice: Hannah. Did Elizabeth Prelogar just Civics 101 Justice Samuel Alito.

Hannah McCarthy: I mean, honestly, um, it did kind of feel like that, but I'm also, uh, predisposed to hear such things. And he did ask her how it worked. [00:32:30] Uh, but anyway, after Prelogar explained her theory, Alito responded with, basically, all right, I just don't understand it. And by the way, Nick, there have been other cases where states have argued that a federal spending law is unconstitutionally coercive.

Nick Capodice: Because Congress can say, you can have all this pretty money, but you have to follow our rules. And states are like, we need that pretty money, and your rules go [00:33:00] too far.

Hannah McCarthy: Yeah. And Prelogar basically said that in this case, federal supremacy rules supreme. But it did seem like Alito and Thomas were not so sure about this, which is a potentially really big deal. Or it would have been if this case really went anywhere at this level. Um, but before I get to that one last really big.

Nick Capodice: Deal.

Archival: We've now heard, let's see, uh, an hour and a half of argument on [00:33:30] this case. And one potentially very important phrase in EMTALA has hardly been mentioned. Maybe it hasn't even been mentioned at all. And that is my reference to the woman's, quote unquote, unborn child. Uh, isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase unborn child? [00:34:00]

Nick Capodice: Well, I'm glad this came up because that's really the argument for abortion opponents. This is all about saving the life of an unborn child. Yeah.

Hannah McCarthy: And Alito is saying, essentially, how can EMTALA include abortions as necessary care if the law says you have to care for the health of the "unborn child.

Archival: If Congress had wanted to displace protections for pregnant women who are in danger of losing their own lives or their health, then it could have redefined the statute so that the fetus [00:34:30] itself is an individual with an emergency medical condition. But that's not how Congress structured this. Instead, it put the protection in to expand protection for the pregnant woman. The duties still run to her.

Hannah McCarthy: Now, Congress added, quote unquote, unborn child to the act in 1989. So just a little reminder. EMTALA was passed in 1986 to prevent patients in emergencies from being turned away from hospitals. Congress added the 1989 provision to clarify that an unborn child [00:35:00] also counted in terms of stabilization. At that time, abortion was a constitutional right, so there wasn't a question of whether one would be provided to stabilize a mother. The question was whether a woman would be turned away if her unborn child needed help. Congress clarified. You know, no, the mother gets the care if she's in trouble or if her pregnancy is in trouble.

Archival: The statute makes clear that's the pregnant woman. And of course, Congress wanted to be able to protect her in situations [00:35:30] where she's suffering some kind of emergency in her own health isn't at risk, but the fetus might die. That includes common things like a prolapse of the umbilical cord into the cervix where the fetus is engraved distress. But the woman is not at all affected. Hospitals otherwise wouldn't have an obligation to treat her, and Congress wanted to fix that, but to suggest that in doing so, Congress suggested that the woman herself isn't an individual, that she doesn't deserve stabilization. I think that that is an erroneous reading of this.

Archival: Nobody's suggesting that the woman is not an individual, and she doesn't, [00:36:00] uh, she doesn't deserve stabilization. Well, that.

Archival: The premise of the question would be that the state of Idaho can declare that she cannot get to the stabilizing treatment, even if she's about to die. That is their theory of this case and this statute. And it's wrong.

Hannah McCarthy: Can I just tell you, Nick, that watching this, it felt like it was happening a million miles a minute. And it felt to me, [00:36:30] tense. But listening to this again, I'm like, you know, I don't know. They seem pretty calm.

Hannah McCarthy: These are the Uber professionals here. But also I do believe in the power of body language and being an animal in a room with other animals. And I am just saying, sitting in the Supreme Court, this felt high stakes and contentious and well, again, it might have been. But you know, this case did not go where [00:37:00] it might have gone right.

Nick Capodice: June 27th, after making the mistake of accidentally publishing it a day early, the court issues its opinion.

Hannah McCarthy: It's a 6-3 decision. They say the writ of certiorari, which is what a court grants when a petitioner asks them to hear a case, was improvidently granted and that the stays they ordered on the abortion ban in Idaho would be vacated.

Nick Capodice: So what exactly does [00:37:30] that mean?

Hannah McCarthy: It means, first, that the court believes it should not have accepted this case for review in the first place, and that the stay, the order of the court to continue the Idaho ban is removed, and that lower courts can now go forth and work on this case.

Nick Capodice: So basically, this is not a ruling on abortion. It's not.

Hannah McCarthy: But at least for now, unless and until the lower courts do more, the abortion [00:38:00] ban is lifted in Idaho. Okay. So, Nick, there are four opinions, two concurring with the majority, one dissenting and one partially concurring. Partially dissenting.

Hannah McCarthy: Now, the concurring opinions agree that the case should not have been taken up, but for totally different reasons, and the dissent and partial dissent agree that the court should have issued some kind of ruling, but also for totally different reasons. So [00:38:30] Justice Elena Kagan wrote that the court never should have stepped in in the first place. That EMTALA absolutely applies to abortions, even in situations where the life of the mother is not immediately at risk, she said, quote, what falls in the gap between them are cases in which continuing a pregnancy does not put a woman's life in danger, but still places her at risk of grave health consequences, including loss of fertility, unquote. And then later, quote, that is why [00:39:00] hospitals in Idaho have had to airlift medically fragile women to other states to receive abortions needed to prevent serious harms to their health. Justice Barrett's concurring opinion said, well, we shouldn't have taken up this case because both parties changed their tune before they could come before the court. Quote, the United States has clarified that Impalas reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the district [00:39:30] court entered the preliminary injunction, and based on the parties arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up, unquote.

Nick Capodice: All right. So what about the dissent and the partial dissent? Partial concur. Yeah.

Hannah McCarthy: Okay. So Justice Alito wrote a dissent. Justice Gorsuch and Thomas joined him, and Justice Jackson wrote the partial dissent. Partial concurrence. Both Jackson and Alito felt that this [00:40:00] was an opportunity to make a decision with way more impact, and took issue with the court passing on that opportunity. Alito said that the ruling was, quote, puzzling and that, quote, the court decides it does not want to tackle this case, after all, and thus returns the appeal to the Ninth Circuit, which will have to decide the issue that this court now ducks, unquote. And Jackson said that the ruling was not a victory for pregnant women in Idaho, that it was, in fact, [00:40:30] a delay, that the court quote, had a chance to bring clarity and certainty to this tragic situation. And we have squandered it, unquote. Justice Jackson implied that this issue is going to keep coming before the court, and she asked if they would ever make a clear decision or, quote, maybe we will keep punting on this issue altogether, allowing chaos to reign wherever lower courts enable states to flagrantly undercut federal law, facilitating the suffering of people [00:41:00] in need of urgent medical treatment, unquote.

Nick Capodice: I'm thinking about that word that Justice Jackson used. She used the word punt. And you and I, we've seen this a lot in our episodes about various Supreme Court rulings. There are different reasons for kicking the ball away. So sometimes a punt is a punt back to a lower court, and the justices know how that lower court is going to rule. They get what they want, but the blame is not on them. And sometimes a punt is just a stall for time, [00:41:30] right? Like we're going to get back to this when we have more information kind of thing. But this punt, Hannah, this punt, which deals with two very important issues abortion access and the ability of a state law to preempt a federal law. It seems that at least Jackson and Alito are looking at this as kind of a dereliction of duty.

Hannah McCarthy: Their issues, though, that, you know, if history and Justice Jackson have anything to teach us, the Supreme Court may very well have [00:42:00] the opportunity to address again someday.

Nick Capodice: Well, if they do, do you want to go?

Hannah McCarthy: Do I want to go? Yeah. Nick, I think I want to go. Obviously, I want to go. Whatever the public opinion of that joint, it is still the Supreme Court for now. I mean, yeah, come on. Do I want to go? That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer [00:42:30] and Rebecca LaVoy is our executive producer. Music in this episode by Hanu Dixit, Konrad Oldmoney, Ikimashoo Aoi, Hyperfun, HoliznaCo, Brendon Moeller, Up the Wall, Marten Moses, El Flaco Collective, Cushy, Real Heroes, Gerhard Feng, Howard Harper Barnes, The New Fools, HATAMITSUNAMI, Society and Chris Zabriskie. If you liked this episode, or if you didn't, or if you have questions about American democracy or just questions for [00:43:00] us, you can tell us about it. You can ask us all of that at our website, civics101podcast.org. And if you don't want to miss another episode of Civics 101, make sure to follow us on Apple Podcasts or wherever you get your podcasts. Civics 101 is a production of NHPR New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

The CPB and the Politics of Public Media

What is the Corporation for Public Broadcasting, or the CPB? How does it all work? And why is it SO political?

In this episode, senior producer Christina Phillips explains it all. She first spoke with the CPB's Anne Brachman, and then did a deep dive to learn more. 

In the episode, Christina mentions 2024 legislation called the Defund NPR Act. You can read that bill right here. Since we taped the episode, there's a new effort afoot to defund the CPB. More on that here


Transcript

Christina Phillips: Go for it.

Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy, I'm.

Nick Capodice: I'm Nick Capodice

Rebecca Lavoie: I am Rebecca Lavoie.

Christina Phillips: And I'm Christina Phillips.

Hannah McCarthy: And we're doing something a little different today instead of Hannah Mansplains senior producer Christina Phillips is going to explain stuff to us today.

Rebecca Lavoie: A Philaplain.

Nick Capodice: A what Splain,

Rebecca Lavoie: Philaplain, Christina Phillips. She's gonna Philsplain Splain.

Christina Phillips: I don't know how I feel about that. Doesn't work. Mhm.

Hannah McCarthy: We'll keep working. We'll work it out.

Nick Capodice: Yeah. It sounds like something like a waterway. Like a spill. Get it by the Phil Splain.

Hannah McCarthy: Uh, Christina, why did you gather all of us here today?

Christina Phillips: Um, well, as you remember, we were recently in Washington, DC, and while we were there, I decided to go talk to some people who are, I would say, our closest connection to the federal government. And I say our meaning, this podcast, the radio station we work at, which is to say that I went to the offices of the Corporation for Public Broadcasting. Yes, they distribute government funding to public media organizations like ours. And there are several reasons I did this interview. One, the Corporation for Public Broadcasting was created by the federal government, which naturally makes it a civics topic. Two its history and function are embedded in this very democratic idea of a free press that, to quote the Supreme Court in 1971, serves the governed, not the governors. And three, because the idea of the government using taxpayer dollars to fund public media is a political issue.

Hannah McCarthy: It is. Yeah, it's super political. I mean, there are plenty of politicians and voters alike who do not necessarily think that the government should give taxpayer dollars to public media organizations, especially if those organizations are not covering certain issues the way that perhaps they feel those issues should be covered.

Christina Phillips: Usually with an episode that I work on, I'll interview people, I'll write a script for you to record. And this time I wanted to break the format, because I feel like it's worth talking through this as a group because unlike other topics, we're going to be talking about ourselves. And I think that it would be weird to do a traditional episode where we explain a subject that is essentially about our work without acknowledging that.

Nick Capodice: To that end, can we start with just sort of a big old disclaimer? Christina. Okay, everybody. Hi, I'm Nick. Uh Civics 101 is a show made at a public media organization, NPR, New Hampshire Public Radio. And to be clear, NHPR gets money from the federal government through the Corporation for Public Broadcasting.

Rebecca Lavoie: A small amount of money.

Hannah McCarthy: So basically, like what Nick is saying is that some tax dollars go to helping our station run, and we receive those dollars in the form of a grant.

Nick Capodice: And to be very clear, when Civics 101 first started way back in 2017, we got an additional grant on top of, like NHPR's station grant from the CPB to fund the creation of this, this show. And then we got another grant, I think a year later or two years later to continue funding the show. But that was a while back.

Rebecca Lavoie: And we're no longer running on CPB money with this show as of today. So we're no longer a grant-funded show from the CPB, to be clear. Except for the grant that our station gets - the tiny portion of our budget.

Hannah McCarthy: And we're here to talk about the government's role in public media, specifically in relation to the Corporation for Public Broadcasting. Right. I think it would be disingenuous to imply that we do not have some professional stake in government policies having to do with public media, like, do all of us here love and value public media and want to keep our jobs and want our work to be trusted and useful for our listeners? Yes we do. Like so that is our perspective.

Christina Phillips: Yeah. And and also the perspective of the person I talked to for this episode from the Corporation for Public Broadcasting.

Anne Brachman: Maybe one day with technology.

Christina Phillips: This is Anne Brachman. She's the senior vice president of external affairs at the CPB. And basically her job is to spend every day on the Hill talking to legislators about how public media works and why it matters.

Anne Brachman: We try to get to the Hill every single day to talk to members or their staff, and we really bring in a couple pieces of paper. One is the amount of money from CPB to all the stations in their state or district. And then we have what we call a state story. So here's all the things that CPB support enables services wise or content creation in the state. So they can really see the value of the appropriation locally serving their constituents. Okay.

Christina Phillips: So I'm wondering, um, does this sound like any other kind of job that you're familiar with?

Nick Capodice: Yeah. So my question was, is she registered as a lobbyist or is that is it not lobbying? What she's doing?

Christina Phillips: Yeah. Do you want to just define what a lobbyist is? And then I can tell you why she's not.

Nick Capodice: Oh, fascinating. Of course. So a lobbyist is somebody who spends a certain amount of time, and I think also a certain amount of money talking to people in Washington, DC, talking to politicians to not necessarily convince them to do what they want, but just to provide them with as much information as possible to benefit their industry that they represent. One thing that kind of shocked me from another episode that I did is that lobbyists don't change your mind. They just provide information. They help you write a bill. They help you get something through legislation that usually never happens. So a lot of members of Congress really depend on lobbyists. And lobbyists will tell you that they are right to lobby is enshrined in the Constitution in the First Amendment. Yeah. So lobbyists are fascinating, but I'm desperate to know why she's not a lobbyist even though that's what she's doing.

Christina Phillips: Yeah. So the difference here is that so her salary and the salary of her colleague who go to the Hill that comes out of CPB funding and that funding comes from the government, they are not paid by any sort of outside interest. They, like our station, couldn't donate a bunch of money to the CPB to help the CPB advocate on our behalf or on behalf of public media.

Anne Brachman: Sometimes we'll go up and we'll host briefings with congressional caucuses. There's a Congressional Public Broadcasting Caucus, the Congressional Rural Caucus, the Congressional Fire Fighting Caucus, public safety caucuses, because public media touches all these different aspects of our nation. And so it's a lot of educating. We are allowed to do technical advice. So sometimes a committee, when they're writing or drafting legislation, they will reach out to CPB and say, how would this impact public broadcasting or CPB. And in that regard, we do have a statutory recognized role to engage with and provide feedback.

Christina Phillips: And I do feel like we've been saying this phrase, public media, public broadcasting a lot. And that definition didn't really come from nowhere. And so we're going to talk about all the things a station would have to do to get the CPB funding later. But is there any sort of definition, like how would you guys define the difference between public media and, say, commercial media?

Rebecca Lavoie: Well, for one, public media is, generally speaking, a not-for-profit organization that isn't funded by commercial interests, nor does it exist to make a profit at the end of the year on its balance sheet. So that's a big, important component of it. And public media has to abide by certain federal communications guidelines in order to retain its status as, quote, public media. So those are those are some of the fundamentals. Yeah.

Christina Phillips: I think the the key thing here is that public media is not serving any sort of investors or stakeholders. I think there are three words that I see kind of all over government regulation that I want you to keep in mind when we talk about public media. And those are noncommercial, informational and educational. And that you see a lot, especially in regulations from the FCC, which is the Federal Communications Commission, which is the agency that regulates radio, television, wire, satellite and now cable communications. And despite the fact that the FCC was created in the 1930s, Congress didn't actually establish the CPB until 1967, which I think is kind of interesting. And I want to talk a little bit about the history of how we got from there to here. And so I think the first thing that stood out to me is that the FCC decided back in the 1940s to reserve certain frequencies on radio broadcast for this public programming. So specifically, you're listening to an FM radio, you know, you can usually find a public radio station in like the lower end.

Rebecca Lavoie: Or down at the top.

Christina Phillips: Yeah. Yeah, exactly.

Hannah McCarthy: Most people who are listening to this are going to hear ads.

Christina Phillips: Yeah.

Rebecca Lavoie: Right. Yeah.

Hannah McCarthy: So we I think we have to talk about why Civics 101 and tons of other public media podcasts do run commercial ads. We have to talk about it.

Rebecca Lavoie: Not all public radio podcasts run ads. To be clear, it's a choice that we've made here at New Hampshire Public Radio as part of our business model. What you hear on public radio stations, when you hear companies mentioned, those are not advertisements. It's called corporate underwriting. And essentially the difference between those messages and advertisements is that they are not allowed to have, quote, calls to action, and they're not allowed to have value statements in them, such as so and so. Law firm is the very best law firm at doing wills and estates or whatever. They're not allowed to have those kinds of value statements, and they're not allowed to say things like, go to our website in order to get a sale on blank. So those that would be a call to action. Those ads are not allowed to do that. Well, you hear instead is so and so. Law firm is proud to support this public radio station and its journalism since 1985. Uh, for more information go to so and so law firm.com.

Nick Capodice: That is if you want - you know you don't have to.

Rebecca Lavoie: It's not a value statement and it's not a call to action. So that is what is allowed. And it's basically um, it's being sold to the company as you are supporting our work and your brand is associated with our work. So it's sort of being sold like an ad, but it does not present like an ad. That's an FCC rule on demand. Audio made by public radio stations is not bound by the same FCC rules as our broadcast. So we are allowed to monetize our on-demand or podcast audio with ads. We're allowed to and it does not fall within those guidelines. So here at NPR and at some other stations, we have made the decision that in order to be able to do what we do, we are operating in a commercial podcast space, that we should participate in an economy that allows us to make a little bit of money just to fund some of what we do through commercial advertisements. So that's why you hear ads on our podcast.

Christina Phillips: Okay, so that's commercials not okay on public radio or television broadcast unless they're following those rules you just laid out, Rebecca. And one other thing I'll mention is that on broadcast and on-demand, we do not endorse political candidates or run any political advertising of any kind. Now, back to the history the FCC has codified into law the difference between public broadcasting and commercial media, and it has set aside space on the radio dial for public broadcasting, specifically that noncommercial, educational informational programming. And then a little thing called television came along.

Archive: The Tonight Show Starring Johnny Carson.

Christina Phillips: By the 1950s, more than half of Americans have TVs in their home. We've got I Love Lucy, Bonanza, The Tonight Show. We've got commercials.

Archive: Salads tastes so much better with Best Foods, real mayonnaise because of best foods, superb ingredients.

Christina Phillips: And we've got the chair of the FCC, Newton Minow, calling the television landscape a vast wasteland.

Archive: Keep your eyes blue to that set until the station signs off. I can assure you that what you will observe is a vast wasteland. You will see a procession of game shows, formula comedies about totally unbelievable families, blood and thunder, mayhem, violence, sadism, murder.

Christina Phillips: Then in 1952, the FCC sets aside certain television channels for noncommercial educational television. And one thing that Anne talked a lot about was the idea was to have television channels that children could watch, that families could watch, like there's something that you can kind of set on and not worry about it.

Anne Brachman: And Chairman Minow at the time was instrumental in really pushing and advocating for educational television. In 1962, Congress recognized educational television. But we're still five years before the Public Broadcasting Act came along. But they said, yeah, there should be this thing for expanding educational television. So they set aside about $32 million in matching funds to really help construct these new stations across America. They more than doubled the number of educational stations from about 80 to about 190.

Christina Phillips: And this is when we start seeing the kind of programming that defines public media. Today. We've got the documentaries, the national educational shows, including the first American broadcasting of Mister Rogers Neighborhood, the kind of programs that you think of when you think of PBS nowadays.

Rebecca Lavoie: These are a lot of local programming, a ton of local like puppet programming and like local hosts doing like interactive stuff with kids and stuff like that. Right?

Christina Phillips: Yeah, yeah. And I'm actually this is just a random trivia question. Do any of, you know, the longest continually running television show in America? It is not public media, is it?

Rebecca Lavoie: General Hospital?

Nick Capodice: Is it a soap opera or is it like.

Christina Phillips: It's not a soap opera? It's not.

Nick Capodice: But it's not public media.

Christina Phillips: No, it's not public media.

Hannah McCarthy: Is it that weird show?

Christina Phillips: Probably not.

Hannah McCarthy: Okay. Never mind. Okay.

Nick Capodice: A news show, like 60 minutes.

Christina Phillips: It's Meet the Press. It's not C-Span, it's. It's Meet the Press on NBC.

Archive: Welcome to Sunday. It's Meet the Press. From NBC News in Washington, the longest-running show in television history. This is Meet the Press with Kristen Welker.

Christina Phillips: That was started in 1947, and CBS Evening News was a close second in 1948. But that has like over 16,000 episodes, whereas Meet the Press only has 3600. So eventually we get to 1967. This is when the federal government passed the Public Broadcasting Act, which establishes this government appropriation for public broadcasting.

Anne Brachman: So specifically, the Public Broadcasting Act authorized the creation of the Corporation for Public Broadcasting. And we are a private, nonprofit, nonpartisan corporation. And our purpose really is to facilitate the development of a public telecommunications system, providing universal access to programs of high quality diversity, creativity, excellence, innovation, um, but also with a really strict adherence to objectivity and balance.

Christina Phillips: And shortly after the CPB was created, it established NPR and PBS, National Public Radio and the Public Broadcasting Service. These are independent nonprofit media organizations that are not in any way owned or operated by the government. Um, they have their own newsrooms. They make their own national programming that then can be purchased and distributed by local public media stations. And NPR and PBS are not the only nationally focused public media organizations that do this. But I do think of this as kind of like the consolidation and rebranding of some of those big existing national public media institutions that were already in place before the CPB was created.

Rebecca Lavoie: But they don't exclusively get their funding from the CPB anymore, right? No. They also raise money through philanthropy, other grants. Yes.

Christina Phillips: NPR, for example, they say that they get less than 1% of their operational funding from CPB. It's a little bit more complicated. We'll talk about that. So I asked Anne how much money the CPB gets and how that money is spent, how it's distributed among stations. And this is what she said.

Anne Brachman: Currently in fiscal year 2024, our appropriation is $525 million. CPB is capped at 5% for our administrative costs, which is our building rent or salaries. Um, just basic, you know, operational expenses. Uh, Congress says we have to spend at least 6% on system support, and in that we pay for all the music, royalties, copyright, licensing fees, research on behalf of the system. Most of our funding, more than 70% of our funds go right out the door to all the stations across the country 1500 locally owned and operated, and so stations can decide how best to use them to support their community. Um, that could be local content creation, educational outreach, local journalism and news, or to buy national content as well. Congress does provide CPB with a separate appropriation $60 million each year to provide for the satellites, the fiber and the ground to distribute all this content. Our stations also most people don't know are part of our nation's public alert and warning system. Um, and so when a alert, you know, we think about it, we get it on our cell phones today. But how did that alert get to your cell phone? And it's through public media's, um, satellites in the sky and the transmitters on the ground as well, sending that to your local service provider. We've also been major investors in early childhood education programs, both for the broadcast, but all the streaming and the games and where kids are these days and those shows, I would say they're not inexpensive to make.

Christina Phillips: I think this is something that's really important. There was a lot of debate about the government's role in this media that it was now funding. There's a difference between government run media and public media, which we alluded to earlier. There's there's this idea that like, if you're funding this media, like will you have ownership of it? Um, so I'm wondering, can can someone give me a definition of government-run media?

Hannah McCarthy: So government-run media, I think pretty broadly, you could say is considered any media that is owned and operated by or extraordinarily influenced and controlled by the federal government. I think that the sort of insidious, scary embedded element of that is government run media is almost de facto propaganda. Government-run media is basically a government arm, right. And the government's going to represent itself within its best interests. Right?

Nick Capodice: So when we did our episode on Is America the freest, you know, the freest country in the world? We talked about the freedom of the press. I learned about some countries that do have state-controlled or government-controlled media. And what's interesting is it's always the radio. The radio is the form of media that the government always tries to control, because it's free and because it's cheap and it's most accessible. Like you can be working and listening to a radio. You can't be working maybe in watching a TV at the same time.

Anne Brachman: CPB has no role in content or editorial decision making. And Congress was very clear, and it was a big, intense debate during the making of the Public Broadcasting Act. You know, someone asked during the 67 debate, how can the federal government provide a source of funds to pay part of the cost of educational broadcasting and not control the final product? And their answer to that was CPB. Congress said that one of the fundamental reasons for establishing the corporation is to remove the programming activity from governmental supervision. So CPB was set up to be that heat shield, that firewall. We do have the objectivity and balance requirements within the act, but at the same time, we are told we cannot get involved in any editorial decision-making or control of stations or content. So there's tension between those two requirements.

Christina Phillips: Now, just because CPB does not get involved in any editorial decision-making, that doesn't mean it has no oversight on what kind of programming IT funds at all. The CPB is required to maintain this objectivity and balance requirement that Anne referenced, which basically means that it sets strategic goals for public media and lays out the kind of projects it will fund, and keeps an eye on how public media organizations that get funding are living up to those goals. And those goals are set and overseen by CPB management and a board of nine people appointed by the president, approved by Congress. That's required to have no more than five people from the same political party. They're made up of people who work in public media or have some sort of media background. And Anne gave me a summary of some of those strategic goals right now.

Anne Brachman: They came up working with CPB management with the Three D's Digital Diversity and Dialog, and the Three D's Guide. CPB's investments in all of our grant-making and digital is the innovation, making sure we're reaching Americans on every platform and how they want to consume content and, um, just being more cutting edge, diversity, age, geographic viewpoint, gender, ability, disability, race, ethnicity and then dialog. How are we engaging with our community?

Christina Phillips: Thoughts?

Nick Capodice: Can I relate to you all? You know, the process from which our show got started? Absolutely. I would love that. Yeah. So I was one of three people who went to Washington, D.C. to talk about Civics 101. And this was in order to like, secure further funding to make sure the show could exist. The people from the CPB that I met with and two others met with, they did say, you know, this is the kind of thing that would get support. You know, this is the kind of program, but you have to defend it. You have to like, say what you're going to do as a show, and then we will decide whether or not that meets all our criteria. But initially you can say there's no, you know, editorial process. But we were advised like, this is what's going to fly and this is what's not. But once that was done to a much broader point, since I've started working on the show, I have not once for a second had anybody communicate with me to be like, hey, you're still doing X, y, Z, or like, you know, are you following up with blah blah blah? Like, it's our show, we make it and nobody tells us anything, right?

Hannah McCarthy: Yeah. And I like I want to talk about this a little bit if I may like. So this idea of okay, so the CPB is being described as like this firewall between the government and the public radio station. And I think also like there is a firewall between the CPB and the radio station itself. Right. So the like the driving force of that is the understanding that the proliferation of information to the American people is a very powerful thing, and that if the government is allowed to control that, that is not the free flow of information, truth and the press. Right. And so what I think is kind of remarkable about the creation of the CPB is that it's one of these instances of American history in which it's like there's something very ideological about it, writing down a law that, yes, we're going to support the free press because the free flow of information that is not influenced by the government, by anyone in charge is really, really important. Because, Nick, you know, you're describing this experience of not being influenced, not being told what to say and what not to say.

Hannah McCarthy: The whole democratic project. Right? Like what keeps happening in America is that the government tells us we have something. And so we say we have this, this is ours, right? You told us we have it. And like I defy you to show me a journalist who does not firmly believe in that. Right. Like there's nobody on staff here. There's no like. And I know Rebecca, our executive producer, stands behind this very much like the protection that the media yields over the ability to find the truth and report the truth without anyone telling them they can't. That's right, is so vital to us that the stink that we would make, right? Yeah. Like, yeah. Like the you would hear about it because we're reporters. Like it would be in the news and you do on occasion come across a story where reporters like, I didn't like this and I'm going to put it in the news, you know, like I'm going to make sure the American people know if anyone tries to influence me.

Christina Phillips: This is a conversation that's literally happening around us right now. We have an NPR media reporter who shared, like recently, David Folkenflik, about an experience he had with an executive at The Washington Post who was trying to pressure him to not do a story that would make him look bad. And David Folkenflik is like, okay, no, this happened to me. This is an experience I had, um, where this person was compromising the ethics of journalism, and I'm not okay with it.

Archive: So you're saying that in a conversation that wasn't off the record, he made a quid pro quo offer to you. Drop your story that I don't like, and I will give you a story, an exclusive interview that I do like. Is that it?

Archive: To misquote The Godfather, he gave me an offer I had to refuse. Okay.

Archive: And you did refuse this. You went ahead with the...

Nick Capodice: Can you even imagine if any journalist that we know and work with, like, got an email from the Corporation for Public Broadcasting was like, hey, can you make sure to cover this story? Like, it would be like Watergate? Like nobody would shut up about it.

Christina Phillips: Well, actually, I do have an example of a time when the CPB did try to weaken that firewall or sort of stepped over that firewall. Is anyone familiar with this? It was in the early 2000.

Rebecca Lavoie: Rang a bell. Keep going.

Christina Phillips: Okay, so Kenneth Tomlinson was the chairman of the CPB board in the early 2000. He was appointed in 2003 by George W Bush. And he was pretty outspoken about the fact that he found certain programming on NPR and PBS, uh, to be too liberal. And so without permission, he used over $10,000 in CPB funds to commission a conservative consultant to write reports about Partizan bias on public media programs, including a show called now with Bill Moyers on PBS and The Diane Rehm Show, which was a public radio program. And one thing that this consultant was doing was tracking things like how often the president was criticized on the show, for example. And then the other thing he did is that he pushed for Counter-programming to Bill Moyers on PBS in the form of a talk show with conservative columnists from The Wall Street Journal. So two big problems here. He used CPB funds without permission to hire a consultant with a political agenda to study programs to determine whether or not they had political agendas. And then he tried to have an editorial role in PBS by telling them what kind of programs they should have, down to the specific hosts he wanted in the seats. And he did end up resigning from the board after he was investigated by CPB's inspector general. So that is one example of how the idea of nonpartisanship and a strict firewall isn't always impervious to political influence, and then how that played out. And after a quick break, we're going to talk about what stations like ours must do to get funding from the federal government and how that money is used. We'll also talk about the difference between us and NPR, because yes, we are different.

Hannah McCarthy: All right, we're back. This is Civics 101 from New Hampshire Public Radio. I am Hannah McCarthy. I'm here in the studio today with Nick Capodice, Rebecca Lavoie, Christina Phillips, of course, and Catherine Hurley, who is joining us for the summer. And we are delighted to have. And Christina, you are walking us right now through how public media works, and you're going to tell us what a place like us, like NPR needs to do to receive government money.

Christina Phillips: Yeah. And first, I want to answer one of the biggest questions any of us gets at any time. Um, when we say we work at NPR, which is are we NPR? Do you work for NPR? Do you know Terry Gross?

Rebecca Lavoie: Terry Gross doesn't work for NPR?

Nick Capodice: No, no, WHYY.

Christina Phillips: Another member station, is anyone does anyone want to take a crack at the like what is NHPR compared to NPR? How are we connected?

Rebecca Lavoie: Yeah, I answer this question all the time. Okay. Uh, so NPR is essentially a big vendor of ours. I mean, that's the best way to describe it. They're not like a parent company. We are an independent nonprofit. We buy programming from NPR to license and play on our airwaves. So basically we are buying programming from NPR, All Things Considered, uh, Morning Edition, you know, other programs, and we sort of have a co-branding agreement with them, a licensing co-branding agreement, but we pay them for that. Like we pay them a big pile of change for that. So they're basically like a giant vendor for us. It's sort of how it works. And we have a like a loose relationship with them. And, you know, station leadership, our station leader is not at this point in this position, but station heads like ours are actually on the board of NPR. So they actually have a little bit of control of like how NPR operates and so forth. But yeah, now we're actually independent but associated with buy content. Yeah.

Christina Phillips: And I will say that the big thing there is that we have our own newsroom, we've got our own journalists, we make our own stuff, and we can also purchase programming from other affiliate stations like ours. They're called member stations.

Rebecca Lavoie: And other networks. We purchase programming from APM, PRX, which is another independent nonprofit. There's other organizations like that from which you can buy programming. Wdiy distributes Fresh Air. There's other distributors, other networks that actually sell stuff to stations like ours as well.

Rebecca Lavoie: Music swell. Next topic.

Christina Phillips: I want to talk through some of the things that you need to do in order to qualify for CPB funding. So you could be a public media organization and still not qualify for CPB funding. There's like an additional layer of things you need to do in order to like get that money. And so there are half a dozen big ones. We already set a couple, which you have to be a nonprofit or affiliated with a university school or even a local government. And then another thing that we alluded to is that we cannot run political advertisements or endorse political candidates. So unlike, you know, The New York Times being like, we have endorsed whoever for president, none of that. And we will never run like a political ad, right?

Nick Capodice: It's so weird when I listen to other radio stations, you just driving around and all of a sudden it's like a presidential candidate being like, vote for me, Donald Trump. Like what? This doesn't happen on the radio. Yeah sure does.

Christina Phillips: It says a lot about your listening habits that you're like, wait a minute.

Anne Brachman: You also have to have a certain number of employees. You have to have for certain stations, a community advisory board in your community.

Christina Phillips: It has to report its finances transparently to the public, in our case, our nonprofit 990. Like there's other forms that we share basically saying like, here's where all our money is going. You can look at those all the time. I love looking at nonprofit 990. So like one of my favorite things, um, it has to be overseen by a board of directors that are invested in the community that the programming is serving and don't own or profit from their board service. So NPR's board has a mix of people who are living in New Hampshire. The board is beholden to the public that this station is serving. And then the other thing that I thought was interesting is that in order to get CPB funding, you have to have money in the bank already.

Panel: Hmm mhm hmm hmm hmm hmm.

Anne Brachman: For a public television station, for example, you have to have at least $800,000 in private, non, um, federal support, which means viewers like you, it means local foundations, local businesses, maybe state support, because CPB is determined over the years that you need at least $800,000 to offer a really strong public broadcasting service for public television, um, public radio. We also have certain minimums you have to have financially. So the most is $300,000 if you're a larger station, if you're a rural station minority station, it's $100,000.

Christina Phillips: The CPB is not just going to go out and be like, I think there should be a public radio station here. We're just going to dump a bunch of money and hire people. Like, there has to be somebody in a place with some capital saying, we want to start a station or we're already a station. We're doing all these things you need us to do.

Nick Capodice: That makes sense. You know, you don't want to back a bad pony. That's right, that's right. Yeah, yeah.

Christina Phillips: As I had mentioned earlier, NPR has reported that it only gets about 1% of its budget from the CPB. But that's also acknowledging that NPR, a lot of its budget comes from money that stations like ours spend to purchase NPR programming. So NPR would not get a lot of its money if there weren't stations like us who get funding from the government to buy NPR. programming is sort of the circle. And it's also worth pointing out that there are a lot of incentives and tax breaks on the federal, state and local level for public broadcasting, public media. I say that because the idea of public media only existing because of this government funding through the CPB, it's not a complete picture. And the idea of the government creating a space for public broadcasting has existed for a really long time, way before the government was like, okay, we're allocating this money to these stations, right?

Rebecca Lavoie: Can I just clarify something? So what you just basically said is NPR claims don't get less than 1% of its funding from the CPB. However, a station like ours that gives hundreds of thousands of dollars to NPR every year, no small portion of that is from the grant we get from the CPB. So we're essentially giving the money we got from the CPB back to NPR. So they actually get a lot of CPB funding just from other stations.

Christina Phillips: Yes. And this I think, is relevant when we talk about some of the legislation that has been proposed to defund CPB or defund NPR.

Rebecca Lavoie: Got it.

Nick Capodice: Let me just ask. A station like ours. NHPR. What percentage of our budget is money that comes from the CPB?

Christina Phillips: Do you guys have a guess?

Hannah McCarthy: I've looked it up.

Christina Phillips: Okay, so it's 6.3% for the fiscal year of 2023.

Hannah McCarthy: Yeah, it's like surprisingly low.

Christina Phillips: Yeah. And if you wanted to by the way, go to Nhpr.org. Or you can just Google NHPR 990. You can look at our 990 and it will break down how much money we got from federal grants.

Rebecca Lavoie: So it's it's more than half a million dollars. And I know that that's about what we pay NPR for our programming?

Christina Phillips: Yeah. Yeah. I mean I could look it up and do a it's a pretty close match. Like it's it's a lot.

Christina Phillips: Hello Christina from the future breaking in here. So listen I went back and looked this up. And in the last fiscal year that's July 2022 through June 2023, we actually spent more money buying content from NPR than we got from the CPB. I'm rounding here for simplicity's sake, but we got $580,000 from the CPB. That's money from taxpayers, the federal government through the CPB, and we spent around $739,000 on NPR programming. Overall, we spent about $900,000 on what's called affiliate program acquisition fees. That includes the NPR programming and then also programming we purchased from other public media organizations. But yeah, most of the money we spent acquiring national programming went directly to NPR, and it was more money than we got from the CPB. And that programming includes national and international news that you hear in the morning, in the evening, throughout the day, from shows like Morning Edition, All Things Considered and Weekend Edition.

Christina Phillips: The other thing is, I'll say is I asked Anne. The average public television station gets 18% of its funding from the CPB. The average public radio station gets about 8%, but rural stations, including tribal stations, might get 80, 90, 100% of their budget from the CPB. In the last thing is that a public media organization does not have to be affiliated with NPR or PBS in order to get funding from the CPB.

Anne Brachman: You know, people think that to get CPB money, you have to be a PBS member. You have to be a PBS NPR member. And that's not the case. There's nothing in the Public Broadcasting Act that says CPB can only give dollars to those stations who belong. We have about a handful of public television stations. I call them hyperlocal, meaning they're not PBS members, but they do independent programming, local programming. And on the NPR side, about a third of our stations are not, you know, NPR member stations, but they're doing music and content, you know, music programming and jazz and classical and local talk. Some tribal stations are keeping their local native languages alive. We have one tribal station that's 100%, and it's also a soul soul service station, meaning there's no other broadcaster within a 50 mile radius of that station. And so rural stations, typically, um, are about 19% of a rural station's budget and more than half of all of our rural grantees, which is about 135 stations, rely on CPB for at least 25% of their revenue. And we have 50 rural stations, many on Native American reservations, who rely on CPB funding for at least 50% of their revenue. And rural stations have more challenges as well. I mean, they have more infrastructure to maintain and operate over a larger geographic area with fewer viewers or listeners there to help financially support the station. And if it weren't for CPB and the federal investment, those Americans would not have access to news or informational educational content or even cultural programming.

Christina Phillips: So now we need to get to the thing. The political thing. Are you ready for the political thing? Yeah. Okay.

Archive: From 480 million to 0, that's the Trump administration's budget proposal for the Corporation for Public Broadcasting, the organization behind the GOP.

Archive: Sponsor of the bill says a government trillions of dollars in debt should not pay for non-essential services. Indiana Congressman Jim Banks, among a growing list of conservative lawmakers to push to defund NPR with a new bill that would outright block federal funding for the news organization, accusing Congress of spending taxpayer money on, quote, low-grade propaganda.

Christina Phillips: So there was a piece of legislation that was introduced during this legislative calendar from Representative Jim Banks. He's a Republican from Indiana called the defund NPR act. And.

Rebecca Lavoie: Okay.

Christina Phillips: And so this is, I think, interesting because it gets back to that idea of like NPR only getting quote unquote, 1% or less from the CPB, but then actually getting a lot of money from stations like ours that use the money that we earn and get in grants to buy their programming. The demand in that bill, which is has been introduced, is that no federal funds may directly or indirectly be made available to use or support an organization named in subsection B. In subsection B, it was NPR, um, including the payment of dues or the purchase of programming from such an organization by a public broadcast station using federal funds received by such station. So that's a little bit confusing. Essentially, what they're saying is that NPR cannot get funding from the federal government, and anyone that gets money from the federal government is not allowed to use federal funds to buy NPR programming.

Rebecca Lavoie: Wow.

Nick Capodice: Yeah. You know what's interesting, I've heard in my whole life, ever since I was a kid, this call to defund NPR and PBS, too, at times, what I think is kind of funny is that everybody who is in the camp of let's defund it always says the same thing, which is, well, we can't because they're just going to say, you're going after Cookie Monster and Big Bird and wow, we can't do that. You know that some people look at the acquisition and creation of Sesame Street as like, a nefarious way to make sure that you never lose funding from the government.

Archive: Bernie Madoff, Ken Lay, Dennis Kozlowski, criminals, gluttons of greed, and the evil genius who towered over them. One man has the guts to speak his name. Big bird. Big bird, big bird. It's me, big bird. Big yellow, a menace to our economy. Mitt Romney knows it's not Wall Street you have to worry about. It's Sesame Street. I'm going to stop the subsidy to PBS. Mitt Romney taking on our enemies no matter where they nest.

Christina Phillips: And I will say, I did go and look through the funding history of the CPB, like over years. And there are certainly years where you see the funding appropriation, like, not go up for a while or maybe go down a little bit and it is apportioned. Is that the word like appropriated appropriated um two years in advance. So CPB funding for, you know, 2026 I guess would be decided in the 2024 year. The CPB has never been defunded, but there have been fluctuations that you can kind of trace across eras of Congress, most typically when there is a Republican-led Congress. That just seems to be how it is.

Rebecca Lavoie: So one thing that I've always heard is that one of the reasons why these bills ultimately fail is that even conservative lawmakers ultimately, who come from very rural districts, know that their constituency would be very upset if public media were to go away, because in some places that's the media, like public media is the TV because there's no broadband, there's no other stuff. That's the media. So that that's something that I have heard every time this conversation happens.

Christina Phillips: Yeah, I don't have a straight answer on that. But one thing I will say I think is interesting and maybe it's just my gut instinct, um, is that public media is sort of super entrenched already. Uh, for example, the CPB works with FEMA and has received funding from FEMA to help implement emergency broadcast infrastructure across the United States, which, if you've seen the news lately, about 911 systems going down for several hours in Massachusetts or patchy emergency service communications all over the country in the past few years, this is an essential service, and the CPB is essential in helping to build and maintain that kind of infrastructure. Now, that bill that Jim Banks proposed wouldn't necessarily impact that kind of funding, but it's still a good reminder that federal funding for public broadcasting goes far beyond funding individual media organizations like NPR and all of those individual public stations. The 1500 plus out there, with the exception of just a few, don't get most or even half or even a quarter of their money from the federal government.

Hannah McCarthy: Okay. But very, very importantly, right. If we go back to the reason that NPR exists, if we think about the original idea behind the Corporation for Public Broadcasting, behind National Public Radio, the idea is to bring in that firewalled like closest thing to the truth that you can national news to all of these communities around the country. Right. And so if you say you can no longer acquire and not only can you no longer acquire, but like the institution does not exist, that has the most money, has bureaus all around the world, is able to pay for reporters absolutely everywhere and gather national and international news in a way that a local radio station is not capable of doing. What that would mean is that these communities no longer have access to this noncommercial, national and international news. You know, I know that there are a lot of people out there who want something different, right? And who are in total support of that. I'm just saying that that's what it means, right? Like that you lose that access.

Rebecca Lavoie: Hmm.

Nick Capodice: Quick question, Christina, how much money does the CPB get every year? Like how much of my taxes are going towards the CPB?

Anne Brachman: Funding for CPB each year is less than a cup of black, a large cup of black coffee at McDonald's per person per year. And I think a lot of Americans, they will say, oh my gosh, we're paying so much money for our nation's public media service. I'm like, actually, if you go to McDonald's, you get a better bargain with all the services you're getting from CPB.

Nick Capodice: I have final thoughts, but I've talked too much lately, so I'll let someone else talk.

Christina Phillips: So I don't have any final...you can.

Rebecca Lavoie: You can sum it up.

Nick Capodice: Yeah, yeah. Let me just say to anybody out there we, you know, the five of us in this room work at a public radio station. So trust me when I say this in terms of, like, what is objective? Christina, before you worked with us, what show did you work on?

Christina Phillips: The Exchange.

Nick Capodice: What's the Exchange?

Christina Phillips: It was a live call-in news talk program.

Nick Capodice: Okay. And you worked on that show for a while, and you helped book guests on that show? Um, let me just give you a hypothetical. Let's say you had a guest on in the morning who was going to talk about climate change and how, like, a glacier is melting and people are going to what, someone's going to come up to you and say, who should the other guest be on the show?

Christina Phillips: Yeah. If we were, it would be, you know, well, what other perspectives do we need to bring in? And if it's not going to be the expert in the room, we have open phones.

Nick Capodice: Yeah. So we at public radio stations, more than anyone self-police to try to find objectivity, to make sure that we're giving it a fair shake. I think sometimes to a fault.

Rebecca Lavoie: That's right. And I will say working with the two of you, sometimes you worry too much about the perception of bias when you're just telling the truth.

Nick Capodice: Yeah.

Rebecca Lavoie: And this is a kind of editorial conversation we have all the time. And I'm like, guys, just let your truth flag fly.

Nick Capodice: Oh, did you have to use a flag?

Hannah McCarthy: And I also I just want to say really quick because like this conversation about like objectivity versus subjectivity. And I will just I am speaking only for myself. Hannah McCarthy, the individual, not for Civics 101 and like not for this station. Objectivity does not exist like no human being is capable of it. Like that would be so interesting if we were like, I would love to do a story about. I'll just say for me, what I am doing on a daily basis is genuinely trying to find the closest thing to the truth, which, by the way, is a lot harder than it seems because we talked to a lot of people who have different perspectives, who are scholars, who are politicians, etc., who are like either intentionally or not, representing their own bias, their own subjectivity. And so sometimes we try to triangulate or sometimes we just like, read everything we possibly can. Often the closest thing we can get to the truth is like finding the law and like saying like, okay, so like the law says this, and if that person says this and it conflicts with the law, then we like we know which one is true because one thing is like written down, right? Um, by Congress. But my point is just like it's it's less that we believe that we are like, like wholly capable of presenting objectivity. I don't think it's possible, but every single day of our lives is committed fully to trying not to listen to the parts of ourselves that are subjective, and trying to seek out the closest thing to the truth and give that to people. Because, like, my subjectivity doesn't help you. Like my personal perspective does not help you at all. The truth will help you do what you will with the truth. Apply your subjectivity to the to the truth. I will just try to find it and give it to you.

Rebecca Lavoie: I think it's important to understand too, that you don't always like the truth, right?

Hannah McCarthy: No you don't.

Rebecca Lavoie: And I would say we love getting part of our funding from an organization that, you know, doesn't interfere, but we also would do what we would do without it. Let's be real.

Christina Phillips: Yeah. And to Hannah's point about trying every day to get as close to the truth as we possibly can, um, I'll just say there's absolutely an argument that the federal government should not give money to public media organizations. You listener may feel that way. You may have felt that way before you listened to this episode. And whether you come down on the side of yes, the federal government should pay for public media or no, it shouldn't. If this episode helped you feel more informed in that opinion. If you learn something, then I've kind of done my job right.

Hannah McCarthy: That is it, right?

Rebecca Lavoie: That's it, that's it.

Christina Phillips: Hey, it's me again. Just me and this good 'ol microphone alone by myself. Here are our credits.

Christina Phillips: This episode was produced by me, Christina Phillips, and edited by our executive producer Rebecca Lavoie, with help from our host Nick Capodice and Hannah McCarthy and our summer intern, Catherine Hurley. Catherine, we are so happy to have you here. And, uh, by the way, since we recorded this episode, originally, there has been more legislation introduced to defund the Corporation for Public Broadcasting. You can find links to more information about all of this legislation in our show. Notes. Music in this episode from Epidemic Sound and Chris Zabriskie Civics 101 is a production of NHPR, New Hampshire Public radio. I'm out.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What does the Supreme Court's immunity decision mean?

On this special bonus episode of Civics 101, we talk about the Supreme Court’s decision on July 1st in the case of Trump v United States. The court ruled along ideological lines; it was a 6-3 decision that granted former president Donald Trump - and any president - some degree of immunity.  But it's a long opinion, and a  complicated one. 

To explain all of it, we reached out to Dr. Claire Wofford, an Associate Professor of Political Science at College of Charleston.


Nick Capodice: [00:00:03] You're listening to Civics 101. I'm Nick Capodice. And we are doing a super quick turnaround bonus episode on the Supreme Court's decision today, July 1st, in the case of Trump v United States, the court ruled along, as we so often say, ideological lines, it was a 6 to 3 decision that granted former President Donald Trump and any president some degree of immunity. And we'll get to that level of immunity a little bit later. [00:00:30] The opinion is long. It was written by Chief Justice John Roberts, with concurring opinions by Justice Clarence Thomas and Justice Amy Coney Barrett, and dissenting opinions by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson. I'm really quickly just going to read the most relevant paragraph from Chief Justice Roberts opinion here. Quote, under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute [00:01:00] immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority, and he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts. To explain all of this today, I am speaking with Doctor Claire Wofford. She's an associate professor of political science at the College of Charleston. Doctor Wofford, thank you so [00:01:30] much for being on Civics 101. Welcome.

Claire Wofford: [00:01:32] Thank you. Happy to be here.

Nick Capodice: [00:01:34] It's great because we don't usually do it this way. We usually record things in advance. So we're on a strange, fast journey together, you and I.

Claire Wofford: [00:01:42] Well, I look forward to making as much sense of it as we can.

Nick Capodice: [00:01:46] So first off, can you give us, like, a quick, fast recap of how we got here? Like what is the case or the cases about which the court was weighing presidential immunity?

Claire Wofford: [00:01:57] Right. So President Trump has had multiple cases [00:02:00] proceeding in various courts. This case centered around the prosecution of Donald Trump by Special Counsel Jack Smith for actions that he took related to the 2020 election, and he was alleged to have committed four violations of federal law in his attempt to, in some be some people's view, overturn the 2020 election. And Trump had argued that he could not be prosecuted for any of those alleged crimes because, [00:02:30] as a former president, he was immune from prosecution, which basically means he was sort of outside the legal system when it comes to those alleged acts. And the government had countered, of course, that a president is not above the law and that he was subject to prosecution. And so what the Supreme Court was deciding today was whether or not the prosecution of Donald Trump for what he did in and around the 2020 election and January 6th could go forward. [00:03:00]

Nick Capodice: [00:03:00] And more about that word immunity, like in a legal term. What does it mean? Like, is somebody just protected from their consequences in the judicial system, or are they like outside the law? Are they above the law?

Claire Wofford: [00:03:11] I think Justice Jackson actually had a good word for it in her dissent. In today's opinion. She talked about it as an exemption. So you're not completely outside the legal system writ large. You're not above the law in all manner and in all days and times. But you are in, in a in a certain instance, [00:03:30] you are exempt from that criminal statute. So everyone else would be subject to prosecution under that particular, uh, criminal law. You therefore are not.

Nick Capodice: [00:03:41] So on to the actual decision. Onto the opinion. What does it say? Like does it say that presidents have total immunity or not?

Claire Wofford: [00:03:53] Here's a classic lawyer answer. Sort of. And it depends. So it's it basically [00:04:00] breaks down immunity into three, two to three different levels. And what the court first says, which they actually didn't have to say, but they were, as we've talked about, writing a rule for the ages, so I'm sure they felt compelled to answer this question. But they first say that when it comes to what they call core presidential actions, these are things that the Constitution explicitly gives to the president and nobody else. Right? Those are called core executive [00:04:30] functions. A president in that case does enjoy absolute immunity. And in the opinion they mentioned specifically, which I think is interesting, the pardon power and the removal power. So if the president's exercising the pardon power or exercising his appointment or removal power in a way that potentially would violate criminal law, as of today, those can no longer violate criminal law, and he will be exemption for any prosecution for what falls [00:05:00] within his core executive duties. That, of course, leaves the question about, well, what about things that aren't considered part of his core duties? He has a lot of powers that aren't explicitly listed in the Constitution, and he shares a lot of powers with Congress. And that's where the court got into the nuances. And it's in those non-core powers that the court said today. The president has, and they literally use this word some immunity in very great, [00:05:30] precise legal language. President Trump has some immunity over these non-core powers. And when you're in that realm, the extent of that immunity to make it even more complicated depends on whether or not what he did in an exercise of his non-core power was official or unofficial. You sticking with me?

Nick Capodice: [00:05:53] I'm with you. So who determines whether something is official or unofficial?

Claire Wofford: [00:05:58] That's an excellent question. [00:06:00] The main takeaway from this case is that it's going to be remanded back to Judge Chutkan, at the district court level, and she will make a determination whether or not what he did was official or unofficial. And what the court declared today is that if what he is alleged to have done is an official act, he has, at a minimum, presumptive immunity, meaning he's probably immune. But the government can rebut [00:06:30] that presumption by making a certain, uh, legal showing. I'm trying to not get in the weeds, but that's going to be the key distinction whether or not what he did was considered official or non official.

Nick Capodice: [00:06:42] I don't know if you've even had time to read the whole thing. It's massive 110 pages.

Claire Wofford: [00:06:47] Yeah, I've made it through most of it. Maybe not every footnote, but most of it.

Nick Capodice: [00:06:52] So what was the legal reasoning of the court like? What was their justification and granting this immunity?

Claire Wofford: [00:06:59] So [00:07:00] the court was is very concerned. The court majority is very concerned with the ability of the executive to act in their words, vigorously. And they seem really worried that were they not to give the president at least a significant amount of immunity, that the president would not be able to take the actions he or she needs to take because he or she would constantly be worried about the threat of prosecution. And so they go through [00:07:30] a lot of discussion about the way the framers set up the government and the the framers hope that the president would be not a total, uh, dictator, but certainly a very powerful actor. And so they spent a lot of time working through how the needs of the presidency outweighed, um, any potential, um, risks that he would consider himself above the law and pursue criminal activity, which, of course, is what the dissent [00:08:00] says they set up here. So I was a little bit surprised that there was not much more of a discussion of legal precedent. This didn't really seem to turn on legal precedent. It seemed to turn on broader concerns that the majority had. And I'm especially the opinion was written by Justice Justice Roberts. But I'm hearing echoes of Kavanaugh, um, from the oral argument, because if the oral argument, Justice Kavanaugh was really hammering home this idea that presidents are going to be too afraid to take any action because they're going to be subject to prosecution. [00:08:30] And that was a real linchpin of today's opinion. They want the president to feel free to take the actions he or she thinks is necessary, and not worry about being prosecuted by a political enemy.

Nick Capodice: [00:08:43] Can you speak to sort of like the narrowness versus the broadness of this opinion, like we've talked on our show in the past about, you know, opinions like Bush v Gore, which were decided so strangely and quickly that they were like, never look at this again. Nobody ever look at [00:09:00] this again. Um, reading this opinion, does this feel like something that will last through the ages, or is this another like super narrow Donald Trump 2024 opinion?

Claire Wofford: [00:09:11] No, this is a sweeping opinion. This is an opinion that law students are going to read for the next 20, 30, 40, 50 years. The court did what it said it was going to do. It set out to make a fundamental statement about the balance of power between the president and the legal system, and they use really [00:09:30] sweeping language here. They are clearly not. And in fact, there's a paragraph in the opinion where they say, look, we really can't be concerned with what happened in this particular case. We have to think more broadly about our constitutional structure, the proper functioning of the executive, the stability of the American republic. And so they see themselves as really writing probably one of the most important decisions about executive power and separation of powers that we certainly [00:10:00] seen in a long, long time. This one's going to last, for better or worse. For better or worse.

Nick Capodice: [00:10:30] I [00:10:30] do want to talk a little more about the dissent. There was a line I read this morning. Justice Sotomayor wrote, quote, it makes a mockery of the principle foundational to our Constitution and system of government, that no man is above the law. So what was the reasoning of the justices who wrote the dissent?

Claire Wofford: [00:10:49] So the dissent is a how can I put this extremely passionate repudiation of the majority's reasoning? [00:11:00] And there's a dissent by Justice Sotomayor. And then there's another dissent by Justice Jackson. They joined each other. And basically what Sotomayor says is she says it much more, um, intelligently than this. But her basic sense is, are you kidding me? Court majority what you have now done. And this is another line she has that I love. She says you've created a law free zone around the president. And she argues that in its in its [00:11:30] concern about the president being able to operate effectively without fear of prosecution, what they've done is placed the president and the president alone, in a unique position, such that as long as he is able to argue that what he has done is an official act, he is immune from criminal prosecution, and that is what leads her to conclude he is above the law. In her separate dissent, Justice Jackson, [00:12:00] of course, agrees with all that and makes the argument that the um, in a more theoretical way, what the court has done has changed the nature of legal accountability. And rather than having the president as every other citizen, is subject to what she calls individual accountability, that the court has now invented this what she calls presidential accountability model, in which prosecutors will have to one run through what she calls a gantlet before [00:12:30] they're able to prosecute the president. So, in both Justice's view, what the court majority has done is pluck out the presidency and give him a level of legal protection that no other individual in the American government or the American population enjoys.

Nick Capodice: [00:12:48] There was one part of the opinion that stuck out to me, and it had to do with evidence. Yes. Justice Roberts said that if it was something was deemed an official act, he wrote testimony [00:13:00] or private records of the president or his advisers probing such conduct may not be admitted as evidence at trial. So what does that mean for the case going forward?

Claire Wofford: [00:13:10] So big picture the case going forward. It is possible that Trump will still be prosecuted when is a separate question, but it is now a very narrow path forward on that prosecution. It's going to take me a while to circle back to answer your question, because the district court, as I said before, is now going to need to make this determination [00:13:30] whether or not the actions that Trump took were official or unofficial. Now, both sides agreed at oral argument that Trump can be prosecuted for private acts, right, for things he did that were private. And Trump's attorney at oral argument admitted that when Trump reached out to whomever who everyone thinks is Rudy Giuliani and called him up and came up with this idea about fake electors, that that was private, that was private acts and subject to prosecution. So the trial can go forward on that. [00:14:00] What the court did, in the opinion today is imply, however, that if some of the evidence you need to prove the the motive or intent behind the private activities, touches on official acts or official duties can't be included as evidence proving the nature of that private act. So the court not only narrowed what acts the president can be prosecuted for. It narrowed what evidence [00:14:30] can be used at trial to prove that private i.e. potentially criminal, activity. The court says in this opinion that it's only giving him some immunity and that it's limited immunity. But then when you really get into the nuances of how this immunity is going to operate, there's language in the opinion that really is not 100% in Trump's favor. But it's it's it's in the 90s to [00:15:00] be sure.

Nick Capodice: [00:15:01] So very broadly you said this is going to be read by people in law school for centuries to come. What does this mean for the future? Like not just Trump and not just Biden, but all the presidents yet to be? How has their power and how has the job changed in light of this opinion?

Claire Wofford: [00:15:21] So it's a really interesting question and -- and we actually don't know potentially the president now has [00:15:30] a much broader sphere in which he or she can act than they did before, because, of course, under the court's ruling, so much of what a president might do is now at least arguably subject to immunity. The real impact of the decision on the ground, I think, is going to depend on who the president is. If this case is, as the government's argued [00:16:00] at trial, they called it, a once in history prosecution. If we never see another president take the kind of actions that Donald Trump took, then even though this case will be read by law students, it's not going to operate as a real constraint on a president, because you won't have a president continually trying to break the law. If, however, as the as the dissent fears, and as many people fear for those who are afraid that President Trump is not the last of this kind, and we are [00:16:30] going to have a pattern of presidents trying to seize more and more authority and transform our country from a democratic Republican to some kind of authoritarian regime. Then those future Trumps, as it were, are going to have a lot more leeway than they did yesterday to behave in potentially unlawful ways. And at that point, it would be up to the court again, were, for example, a president to order the assassination of his political rival. It would be [00:17:00] up to the Supreme Court again to make the decision whether or not they wanted to walk back the very broad protection they've given the president today.

Nick Capodice: [00:17:11] I saw a tweet today by House Representative Alexandria Ocasio-Cortez, and she wrote today's ruling represents an assault on American democracy. It is up to Congress to defend our nation from this authoritarian capture. I intend on filing articles of impeachment upon our return. [00:17:30] How would that work? Or would that even.

Claire Wofford: [00:17:34] I mean, the justices are subject to impeachment. Uh, that's under the Constitution. They are subject to impeachment. Her passion and intensity aside, I don't see much of a future for that.

Nick Capodice: [00:17:45] So you teach political science, and your students are very lucky, by the way, if I may say so.

Claire Wofford: [00:17:51] I don't know if they would agree with that, but thank you.

Nick Capodice: [00:17:54] What do you foresee the conversation going to be like in your classroom come September about this? [00:18:00]

Claire Wofford: [00:18:00] You know, honestly, Nick, so much is going to depend on the election. Um, and who gets elected because of course, that's another great unknown. Right? I've been thinking about, well, what will happen now and could there be a potential trial, etc., etc. you know, it looks fairly likely that Donald Trump is going to be reelected president, in which case I think we see a dismissal of these charges. Um, there's the potentiality for them being brought after he's out of office. My hope is that this will not cause [00:18:30] them to shut down and give up on American politics. I do think that what the court did today is not going to help the public's view of it as a legitimate, legally grounded institution. And that's part of why I'm disappointed in what the court did today. I thought they could have drawn a more legally sound, legally nuanced line in this instance, and the way not only the content of the opinion, but, [00:19:00] of course, the lineup of the justices I don't think is going to help their standing in the public. And so I don't want my students to become even more discouraged than they are about the nature of American politics, because at the very least, we have to have them be involved. And so my hope is that whatever passion they feel about what's happened here with Donald Trump and what's happened here with the Supreme Court, that that doesn't cause them to turn away from politics, but causes them [00:19:30] to turn toward politics. Because if our country needs to get on a better course, it's going to be that generation that does it.

Nick Capodice: [00:19:43] Doctor Wofford, an absolute pleasure.

Claire Wofford: [00:19:46] Oh, good.

Nick Capodice: [00:19:47] Thank you so much for talking with us. So [00:20:00] if you found this episode helpful in your understanding of this landmark for the ages Supreme Court decision, please let us know. We here at Civics 101 are here to help you better understand what's happening at the court, and we'd always be happy to produce more of these bonus episodes if you like them. This episode is produced by me Nick Capodice and edited by our executive producer [00:20:30] Rebecca LaVoie. Music is from Epidemic Sound. Our team also includes my co-host Hannah McCarthy, senior producer Christina Phillips, and our summer intern, Catherine Hurley. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What is the Smithsonian?

The Smithsonian is a heck of a lot more than its 21 museums. Today on Civics 101 Richard Kurin tells us all about about an institution that interacts with all three branches of government,  has a budget of over a billion dollars, and is dedicated to "the increase and diffusion of knowledge" among all.  

So how did it start? How does it run? What does the Chief Justice have to do with all this? And, finally, why do we collect items in the first place?


Transcript

Hannah McCarthy: There was this point a few months before we were headed to Washington, D.C., and we were talking about which museums to visit, etc., etc. when I realized something, and I am ashamed to admit that it took me as long as it did. I had no idea what the quote unquote Smithsonian was.

Nick Capodice: Well, not no idea. Hannah.

Hannah McCarthy: Yeah. Okay. Not. [00:00:30] No idea. Like it is museums. They are museums. I, uh, like a museum spread across a bunch of different places. And then, of course, I got to thinking about the sheer number of times that I have seen that Smithsonian logo on things. You know, the one I'm talking about.

Nick Capodice: Yeah, like that blue circle with the yellow thing inside. It's everywhere in D.C..

Hannah McCarthy: Not just D.C. all over the country. And that yellow thing, Nick, is [00:01:00] the sun, which has a lot to do with the whole point of the Smithsonian. Um, but it is everywhere. I was recently checking out the USS Constitution in the Charlestown Navy Yard, and I was walking into the museum, and there it was. And while we are on the subject of my home state, I have seen it in Cambridge, Massachusetts, on an observatory. I have seen it in Springfield, I've seen it in Plymouth, I've seen it in Lowell.

Nick Capodice: And for those of you not afflicted with the myopia [00:01:30] that is being from Massachusetts.

Hannah McCarthy: Yeah, uh, it's true. I cannot be the one to make an episode about the Kennedy family. I have found in my own family's archives a Christmas card that has the Pope on one side and JFK on the other.

Nick Capodice: Camelot aside, I'm pretty sure if you wanted to find a Smithsonian something in whatever state you're listening to this episode, you sure can.

Hannah McCarthy: You sure can. The Smithsonian is in every state in the nation via [00:02:00] its quote unquote, affiliates. Uh, many of those states several times over. It is also in Puerto Rico and Panama. And we are not just talking about museums. It is also a research institution, an educational institution. And, Nick, it is the biggest one.

Nick Capodice: The biggest one...what?

Hannah McCarthy: The biggest museum, research and education complex in the world.

Nick Capodice: Now, I feel this [00:02:30] is a good time to remind our listeners that we are Civics 101. And in trying to address something that is the biggest in the world, we really are going to have to stick to the 101.

Hannah McCarthy: Are you reminding our listeners or are you reminding someone else?

Nick Capodice: I think that question says more about you than it does about me. Hannah.

Hannah McCarthy: All right. One on one it is so to take us through it, let's meet Richard.

Richard Kurin: Uh, so I'm Richard Kurin, I'm the distinguished scholar and ambassador at large at the Smithsonian. [00:03:00]

Nick Capodice: We should just go ahead and get this out there right now. We really like Richard.

Hannah McCarthy: Yeah, we really do. I walked out of that interview and I was like, oh, no, Nick, did I just get dazzled? And then I was like, never mind, I don't care.

Nick Capodice: Which is important to note, because nothing that big can be without issues.

Hannah McCarthy: Nothing that big. That is also about the preservation of natural and cultural history and science and the storytelling thereof. I mean, yeah, you better bet that the Smithsonian has 170 plus years [00:03:30] of controversy, and I will talk about that a bit, and I encourage you to follow your own rabbit holes. But as promised, I am sticking to the 101 with a person who very much believes in this institution.

Richard Kurin: Well, I've worked at the Smithsonian. I started working at the Smithsonian in 1976 for the bicentennial of the United States. Now we're heading to the two 50th. So I've had almost 50 years at the Smithsonian. I've been the undersecretary of the Smithsonian. I've run several of the museums. I've run various programs, [00:04:00] and now I do a lot of special projects and a lot of my own research. I have a bunch of books to write, so that's what I do.

Nick Capodice: Richard is also an author many times over, including a book about the Hope diamond, which was particularly delightful to us that afternoon, as the night before Hannah had fallen down the tunnels of Hope Diamond lore after watching Titanic.

Hannah McCarthy: That was the same night that I learned the best floating position for conserving body heat. When waiting for rescue in the water. You can just email me if you want to talk about [00:04:30] that. But yeah, Richard has studied and written about many objects that tell the history of the United States and the world, and objects are certainly in the Smithsonian's wheelhouse.

Nick Capodice: And real quick, the Smithsonian is what you know. I know it's like museums and research education, but what is it like? Which museums, which research institutions, etc.?

Hannah McCarthy: Okay. The museums, there are 21 of them, including the [00:05:00] national museums of natural History, Asian art, air and space, African American history and culture, many more, and the National Zoo.

Richard Kurin: A lot of people don't realize like, wait, this Smithsonian has a zoo. We operate the National Zoo. Well, how did that happen? Well, the zoo happened because we had this taxidermist in the 1870s and 1880s who had to figure out how to stuff buffalo skins, and [00:05:30] he never seen a buffalo. He was a guy from the East. He never seen a live buffalo. He goes out west, finds that the buffalo are being disseminated. There's very few buffalo. It goes out again, later ends up bringing Buffalo back to the National Mall of the United States. And that starts the division of living animals or the National Zoo. And people want more animals. And over the years we start getting involved. He was at the beginning, but others following him in the conservation [00:06:00] of species. So the irony that you start off with a taxidermist, you know, figuring out how to stuff dead skin and the institution, you know, well, over 100 years later and more still going interested in the conservation of species around the planet. And that's one of the things the Smithsonian does.

Nick Capodice: You know what I find poetic about this story? A lot of people ask, why do we have zoos in the first place? Right? And a big part of the answer is, well, people mess things up.

Hannah McCarthy: And not [00:06:30] just zoos. Why do we have institutions to preserve things? Well, because we destroy things. I mean, even with the buffalo, we weren't just killing the buffalo. We were doing it in part to starve indigenous people in America. Also, a note on the taxidermist who helped to establish the National Zoo. He went on to be the director of the Bronx Zoo, where he unapologetically exhibited a human, a Congolese man. And you can learn more about that story [00:07:00] in our episode on why we have a National Zoo. All right, so there are 21 museums. There's the zoo, several environmental research centers, and astrophysical observatory archives, research programs, cultural institutions, educational initiatives. The Smithsonian is just so many things.

Nick Capodice: Well, so many things. Takes a lot of money and a lot of people. Mccarthy so let's get that part out of the way.

Richard Kurin: Okay, great. Well, you think that's a simple [00:07:30] question. There's been lawsuits about that. So this actually a statute that founds the Smithsonian. Now where is the Smithsonian kind of in the federal government? Well, there's there's something called the Board of Regents that was formed. And the Board of Regents, to some minds, violates the Constitution of the United States. So who's on the Board of Regents of the Smithsonian, which is our governing body, the fiduciary body where where the authority is is [00:08:00] established? Well, the ex-officio members are the vice president of the United States, the Chief Justice of the United States, three senators, three representatives and nine citizens. So you have nine citizens and eight from the government and the government. People represent all three branches, which probably violates the Constitution.

Nick Capodice: All right. So Richard told us twice that the way the Smithsonian is run probably [00:08:30] violates the Constitution.

Hannah McCarthy: Which is not something that people volunteer all too often when it comes to their own organizations.

Richard Kurin: Well, just think about it. I mean, you have all three branches of government represented. So just on the face, it seems like there's an issue, right? I'm not a legal scholar on that.

Nick Capodice: A separation of powers issue.

Hannah McCarthy: which is not, by the way, gone unnoticed over the years.

Richard Kurin: The Smithsonian doesn't, you know, it's like its own thing. It's technically called a public trust establishment. [00:09:00] And there's been all sorts of things. You know, there was a point back in the early 1900s, Taft, who had been president, then became head of the Supreme Court, right. Chief justice. He was the chancellor of the Smithsonian. And they asked Taft, like, what's the what the heck is the Smithsonian? And he thought it was a public foundation. That was his kind of interpretation. Now we go back and forth. [00:09:30] If you look at laws where, for example, oftentimes with federal laws, they'll say this applies to the Smithsonian, and other times they'll say, this law does not apply to the Smithsonian because of its particular characteristic. And there's been a lot of court cases over the nature of the Smithsonian and what kind of agency it is and what kind of power it has.

Nick Capodice: I did, by the way, ask about the current Board of Regents. It is chief Judge. Justice [00:10:00] John Roberts and our Vice President, Kamala Harris, both by the Smithsonian charter. Also three senators, three reps.

Richard Kurin: And then you have nine citizen members. And the citizen members have gravitated between Nobel Prize winners, college presidents and billionaires. The last head of the citizen, the executive committee is was a Steve Case who just left that post. You know, one of the founders of America [00:10:30] Online before him, David Rubenstein. Carlyle Group. David just bought the Baltimore Orioles. You know, David's contributed hundreds of millions of dollars to everything from the Washington Monument, Lincoln Memorial to Mount Vernon, Monticello, the Smithsonian Library of Congress, and on and on and on.

Hannah McCarthy: In case you didn't catch that, three citizen members. Yeah, but not exactly ordinary citizens. The board works together to oversee the Smithsonian's priorities, plans, budget, [00:11:00] fundraising, legal and ethical obligations, and establishes policies, among other things.

Richard Kurin: A very mixed group, totally nonpartisan. I've been, you know, over the years, over decades, you know, part of the, you know, deliberations and discussions. And yet people are just care about the institution. They recognize that what they hold in trust is this really precious icon that's accomplished so much. It doesn't mean there's not frustration and it doesn't [00:11:30] mean you don't have. We've had our controversies over the years from, you know, the exhibit of the Enola Gay dropped the atom bomb on Hiroshima, big issue over that exhibit to, oh, about ten years ago, we had one over a homoerotic art in America hide, seek people on different sides of the issues. We've had contention over, uh, displays and exhibits on evolution, on various forms of artistry. You [00:12:00] know, I mean, look, we Americans like to argue that is part of Civics 101 arguing and disagreeing. And and the Smithsonian is not immune from that.

Hannah McCarthy: We will come back to arguing and issues when it comes to the Smithsonian. But in terms of what our listeners might ask when it comes to the Smithsonian's legal status, uh, this is what Richard had to say.

Richard Kurin: Your your listeners might have a question of what its legal status is. My answer to that is, but don't mess around with [00:12:30] it. It works.

Hannah McCarthy: And of course, Richard has some skin in the game here. But you know, you can make up your own mind. But if you're still wondering, I will post some links to the court cases that have attempted to address the Smithsonian over time. Basically, the answer is it has a unique legal status. It was established by Congress. The Chief Justice is a part of the Board of Regents, but it's not run by the judiciary. Uh, various presidents have issued executive [00:13:00] orders about it. Congress has passed hundreds of resolutions about it. It's funded in large part by the federal government. But it is no one thing. And if you are confused, then you are on the right track. Okay, money.

Richard Kurin: We get about a billion, $1.1 billion from the US Congress as an appropriation. And that's really largely to take care of the collections, the buildings, the the physical plant. It's a lot of the the workforce, [00:13:30] particularly administrative workforce at the Smithsonian. So we have about 4500 federal employees paid out of that money. And that pays the utilities, it pays for guarding the place, security and everything else. Um, but then we have our own trust funds. Remember that guy James Smithson, who gave us that $508,000 when he wrote his will in 1826?

Nick Capodice: They don't.

Hannah McCarthy: Don't worry, he's coming.

Richard Kurin: That amounts to a few billion dollars today. [00:14:00] And so that still pays out an endowment. And that's something that, again, the Regents and the secretary then decide how we're going to spend that. In addition, the Smithsonian raises about $300 million a year in philanthropy. That's more than any museum by far in the planet. And we get money from some of the wealthiest people in the planet. Jeff Bezos gave the Smithsonian $200 million, uh, for education and to help with our Air and Space Museum. But [00:14:30] I remember when we were building the African American Museum, and there were kids in new Jersey that, you know, did fundraising and handed over a check to the Smithsonian of, you know, very small amount of money, but very significant. We raised over $300 million a year. And then we, um, we get grants. As I said, the biggest unit of the Smithsonian is the Astrophysical Observatory. Uh, NASA has traditionally given the Smithsonian over $100 million a year to run. Spaceships [00:15:00] and telescopes and projects for NASA. But we get money from the Department of Education. We get money from Department of State. Uh, you know, we have all sorts of partnerships that help do that.

Nick Capodice: All right. So that was a lot of numbers.

Hannah McCarthy: Wasn't it, though?

Nick Capodice: Can I just get a like how much money in total did the federal government appropriate for the Smithsonian in 2024?

Hannah McCarthy: That would be 1.09 billion a year after year. The appropriation [00:15:30] shifts, but it typically amounts to like 60 something percent of the Smithsonian's annual funds. The rest come from those many other sources that Richard mentioned.

Nick Capodice: One very important source, Hannah, is that guy, James Smithson.

Hannah McCarthy: Oh, yeah, this one is very interesting. And we're going to get to that guy, James Smithson, right after the break.

Nick Capodice: But before that break, just a quick reminder. Civics 101 is a listener supported show and you are the listener. [00:16:00] We are so grateful for your support. If you're able to contribute, you can do that at our website, civics101podcast.org or just click the link in the show notes. And thank you so much.

Hannah McCarthy: We're back. We're talking about the history and operations of the Smithsonian here on Civics 101. And just before the break, we were about to get to the whole reason why the Smithsonian exists to begin with. [00:16:30] It goes back to an Englishman who never visited the United States.

Richard Kurin: The Smithsonian, you know, was founded by a guy named James Smithson. So he was a Brit born in the late 1700s, went to Oxford, never visited the United States, never came here. He was the illegitimate child of an aristocrat. He didn't really like the aristocratic system. He kind of believed in [00:17:00] democracy, invested in the French Revolution a little, didn't turn out so well. And but he believed in knowledge above all. Went to Oxford. Was an amateur scientist, explorer, mineralogist, chemist in his own right, and he had great faith in the United States. He made a lot of money in steam engines and canals. Development. Early industrial revolution. And he was writing his will in 1826, in London. And like, he didn't have any, he didn't have any [00:17:30] family, he didn't have any kids. And so he leaves his money to the United States of America to found in Washington, an institution dedicated to the increase in diffusion of knowledge among all. And it had to bear his name Smithsonian.

Hannah McCarthy: Quick caveat Smithson actually left most of his estate to his nephew with the provision that should the nephew die without heirs. And I do appreciate this interstitial legitimate or illegitimate read between the lines like [00:18:00] me, James Smithson, the money would be given to the US to found the Smithsonian Institution in Washington, DC. It is a short will.

Nick Capodice: Can you even imagine being at that? Will reading am I say now this is highly irregular.

Hannah McCarthy: Why the man is never even been to America. Uh, sorry for the accents everyone. And actually, Nick, people really were flummoxed. There were news articles about it in Europe and in the US. It was not rare for a man [00:18:30] of science to leave a bunch of money to the pursuit of knowledge, but leaving it to the pursuit of knowledge in the very country that successfully cast Britain aside. Bold move. But then he was enamored of a country where public science might actually be a thing.

Nick Capodice: And his nephew did, in fact, die without heirs.

Hannah McCarthy: In fact, he did.

Richard Kurin: So Smithson left his money. At that time it was $508,000. That was a lot of money. When it came to the United States, it was equivalent to about 1/50 [00:19:00] of the US budget. That would be $100 billion today.

Nick Capodice: That number is just astonishing.

Hannah McCarthy: You know, I love this stuff. This is one of my many sticking points.

Nick Capodice: How much money is that in today's dollars? That question drives you nuts, Hannah.

Hannah McCarthy: Because it is all about context. Half a million bucks in the mid 19th century. Well, you know, gee, I don't know. Between paying off the War of 1812, dealing with the 1837 financial crash, gearing up for war with Mexico and being, you know, a still relatively [00:19:30] new country, uh, what is that worth? Often has a lot to do with what you've got. So for us, at the time, Smithson's cash was a windfall, a windfall that went super mismanaged for a while.

Richard Kurin: People in Congress fought over it. Nothing's changed. People wanted it for their own, their own pet projects. And Congress ended up debating about nine years before it finally came to the United States, I think in 1835. [00:20:00] And there was legislation in 1846 to establish the Smithsonian, and it was an institution dedicated, just as James Smithson said, to the increase and diffusion of knowledge. That's what we do.

Nick Capodice: 1846 is this like Jcpp we talk in James K Polk?

Hannah McCarthy: Yeah, that's right. Polk uh, he signed the rather wordy act that established the Board of Regents, which we talked about. And the same act said that there should be a building, quote of plain and durable materials and structure without unnecessary ornament, unquote, with enough room [00:20:30] for a big collection of natural history objects, a chemistry lab, a library, an art gallery and lecture rooms. And not everyone was thrilled with what they decided to do with the money.

Richard Kurin: Some people wanted a library. There was a library men, as opposed to the museum men. And then the first secretary of the Smithsonian, a guy named Joseph Henry. He was really a scientist. He didn't want the Smithsonian Castle. He didn't want museums. He wanted pure research.

Nick Capodice: And just a minute here, Hannah, because there is a [00:21:00] castle. If you've been to DC and you've walked the National Mall, it's halfway between the Lincoln Memorial and the Capitol building. And I'm not so sure I'd call a castle, quote unquote, without unnecessary ornament.

Hannah McCarthy: And notably, Nick, it does not look like the rest of the buildings in DC, actually. Does it remind you of anything?

Nick Capodice: Well, um, okay, if most of the buildings in DC are meant to evoke ancient Rome or Greece, then [00:21:30] I would say the Smithsonian Castle evokes like medieval England.

Hannah McCarthy: That is exactly it. It is a kind of Gothic Revival building supposed to remind you of the academic tradition. We were imitating the English one, just like our government buildings are supposed to remind you of the governments of ancient Rome and Greece. Fun fact by the way, Nick, the Gothic style is named after the Goths. And what did the Goths famously do? Nick. [00:22:00]

Nick Capodice: Oh, uh, they sacked Rome. Okay, well, that is a little funny. A Gothic castle in America's Rome.

Hannah McCarthy: Yeah, and the Smithsonian was supposed to kind of stand apart from the government.

Richard Kurin: The Smithsonian has always been a kind of scientific and scholarly endeavor, because that's what we have to base it on rather than, let's say, ideology or politics or everything else. And it has a kind of arm's length relationship with the government. It gets government money. It is an arm [00:22:30] of the federal government, but a lot of people aren't federal employees. And we have the freedom, academic and scholarly freedom to to pursue our interests and pursue the truths.

Hannah McCarthy: So we'll talk more about what the Smithsonian does. But the actual building, the castle it goes up, opens to the public in 1855, and they stock it with all sorts of things. Uh, also, James Smithson himself became a part of those all sorts of things. His crypt [00:23:00] is in the castle. That is a whole other story. Anyway, the first exhibits included a German steam machine, a library stocked with scientific books, engravings, maps, music, a huge collection of taxidermy and minerals, a meteorite, uh, and importantly, over 150 portraits of the, quote unquote, North American Indian.

Nick Capodice: Wait, really?

Hannah McCarthy: Yeah, really. They were done by an artist named John Mix Stanley. And you probably don't [00:23:30] know about these paintings. You might not even know about Stanley, because most of them were lost in a fire ten years later at the Smithsonian. Now, these images were considered accurate depictions of tribal life, and also very much fed by and into the American political propaganda that tribes were vanishing with westward expansion. It was this kind of natural and necessary destiny of assimilation or disappearance in the service of white American colonialism, which, of course, is a [00:24:00] myth that belies the forced exodus and genocide that was actually going on.

Nick Capodice: I feel like this is actually a pretty useful example of the distinction between a representative object and the story that an institution or museum actually tells about that object. And boy oh boy, does the Smithsonian have objects.

Richard Kurin: In 1876, you had the 100th anniversary of the United States. The Philadelphia Exposition was like a world's [00:24:30] fair. Countries had pavilions. All the states send stuff. All these artifacts were on display, including the Star Spangled Banner, including presidential memorabilia, all sorts of inventions, steam engines, the whole the whole shebang. And this guy Baird, who was then the assistant secretary of the Smithsonian, he loved collecting. He really liked he wanted the cases, he wanted the museums. And so he made a deal. And after the Philadelphia Exposition was over in 1876, [00:25:00] he filled up something like 60 boxcars, railroad boxcars of stuff, and sent them to Washington.

Nick Capodice: Okay. So pretty quickly, the Smithsonian becomes the place where American stuff ends up.

Richard Kurin: And then the Smithsonian became the repository for US collections. So all the patent models, for example, came to the Smithsonian. A lot of the collections of the State Department and other government departments, the US Navy [00:25:30] did expeditions around the world. Those collections came to the Smithsonian. So, you know, we ended up with George Washington's sword and Benjamin Franklin's staff and printing press and stamps and coins. And, you know, you remember, remember the Maine, remember the Maine. Yeah. Well, that ended up at the Smithsonian, some of it anyway. So so we became kind of a repository of that [00:26:00] national memory. And I think that later gave way to that notion of the Smithsonian as the nation's attic. You know, where all this stuff goes. Well, it doesn't just go there. It becomes the object of study, of reflection, of exhibition and so on. And it continues to do that to this day. But, you know, we've become a repository of the world's art world's culture.

Hannah McCarthy: So when it comes to what the Smithsonian does, remember that man, James Smithson, [00:26:30] who gave the money that established the Smithsonian? He didn't tell America what to do with that money, aside from establishing an institution for the increase and diffusion of knowledge among men.

Richard Kurin: It wasn't a set thing. It's not like Smithson said, okay, I'm leaving my money and they're going to build a fancy museum with my name on it, and they're going to have pretty cases and a lot of cabinets of curiosities. It was an idea, the pursuit of knowledge, and that's what we've done.

Nick Capodice: The [00:27:00] thing that did strike me repeatedly when we were talking to Richard was that everything they collected was supposed to be studied, not just put on display and looked at. It was supposed to be used essentially to get somewhere scientifically or culturally, like the bird thing.

Hannah McCarthy: Oh, yeah. The bird thing. Yeah.

Richard Kurin: One [00:27:30] of the great collections we have is all these birds, millions of birds at the Smithsonian. We have a unit at the Smithsonian called Forensic Ornithology. What the heck is forensic ornithology? So basically, whenever there's a bird strike in the United States, the FAA takes the remains of the bird strike, scrapes it off the windows of the plane or out of the, you know, the jet engines sends it to the Smithsonian, and there's a unit, the Smithsonian, [00:28:00] that has to identify it to figure out what birds caused the bird strike. So we did the work on who was it, Sully and the miracle on the Hudson. Yeah, that flight that came to the Smithsonian, it was the Smithsonian scientist that then used our collections as a basis for identifying, oh, let's blame it on the Canadians. It's Canadian geese that did this. And then you can divide. Then you could devise, um, interventions so that those birds don't strike planes. You know, I don't know what it is. We play rock music [00:28:30] at LaGuardia or something, but but the whole idea is understanding the world around us and how these collections can come into play in ways that you would never expect when they were first made. But given scientific advances can be very important.

Hannah McCarthy: Or the mosquito thing.

Richard Kurin: Well, all sorts of collections at the Smithsonian, including the National Mosquito Collection, the Smithsonian ended up collecting mosquitoes because, um, the nation with the building of the Panama [00:29:00] Canal and the notion of spread of disease by mosquitoes, that became very important. And the Smithsonian, in acquiring other collections, national health collections, got the National mosquito collection, 25,000 mosquitoes from, you know, over 100 years old. Well, you could think of that as some curiosity, but then you start thinking about diseases that are spread by mosquitoes. You think about viral vectors of disease, think about Aids, think about Ebola, bird flu, you know, all [00:29:30] these kind of things. Covid. So you start thinking about, gee, we have these collections and we could think of them as a bunch of mosquitoes on pins, or we have thousands and thousands of bats. And you could just think of it as so much stuff. But on the other hand, they could be the source of new scientific knowledge. All right.

Hannah McCarthy: So collecting remains in the pursuit of scientific knowledge. The pursuit of scientific knowledge has not always been fully scientific or ethical, and in fact has repeatedly [00:30:00] been destructive to people and detrimental to truth. And the Smithsonian, again, as that 170 year old plus institution dedicated to science and knowledge, is, perhaps unsurprisingly, a major inheritor of that legacy.

Nick Capodice: So you've already mentioned that the Smithsonian has dealt with controversies, and I'm assuming this is the part where we try a one on one as possible treatment.

Hannah McCarthy: Yeah. Okay. So in addition to the birds and the mosquitoes and the many, many animals, the Smithsonian also has the [00:30:30] human remains of 30,000 people from around the world. They were collected mostly in the 19th and 20th century, with the express purpose of proving white superiority. And a huge portion of the collection comprises people of color and specifically North American tribal peoples.

Nick Capodice: The Washington Post did a huge investigation on that collection in 2023. By the way. We're going to link to that in the show notes.

Hannah McCarthy: And many people who worked at the Smithsonian claimed that they were unaware of [00:31:00] the extent of the collection until reporters told them, including Lonnie Bunch, the secretary of the Smithsonian, who issued an apology as that Washington Post article was being reported. Now, the museum does now have a task force recommending the repatriation of remains, with a process for contacting living descendants or communities of origin and ensuring the Smithsonian is meaningfully holding itself accountable for this violation. And I'll post a link to their web page about the collection in the show notes. [00:31:30] We should also note that it is not just the Smithsonian. Universities across the US, including Dartmouth College and UC Berkeley, have similar collections that were developed with the same white supremacist pseudoscience. But for the Smithsonian in particular. Again, the largest museum on the planet, cataloging and telling the story of America when so much of our past has been in and at the hands of often [00:32:00] racist, often white people. It's a constant reevaluation, a constant conversation about how the story has been told in the past and who gets to tell the story now. Richard mentioned some of the most recent pressure points earlier, and I will link to some of those issues in the show notes as well. But again, this is Civics 101.

Nick Capodice: The best laid plans. Hannah.

Hannah McCarthy: All right. I'm gonna wrap this up because I did tell you at the [00:32:30] beginning of this episode, when I first introduced Richard, that we were talking to someone who really is committed to the Smithsonian, its mission, the way it functions. And I just want to come back to that, like, what is this Smithsonian for?

Richard Kurin: I think what drives it is that sense of mission and purpose. You know that there's good things to be done. There's important things to be done. You know, we're not going to feed the hungry. We're not going to cure the sick. [00:33:00] But we can provide a lot in terms of knowledge and understanding, maybe even in some cases, wisdom to the country and the world. And so that that keeps you going. And then you deal with the frustration of the paperwork of, you need this form, the appropriation isn't done. You can't spend money out of this fund. You need that agreement. And so it's really having to put that together in some kind of cogent way. And I've always, um, [00:33:30] relied on a lot of people in the institution who kind of get the mission. It's not just paperwork. It's not just filling this out, it's not just checking off the boxes, but a real sense of mission.

Nick Capodice: One thing that really did stick with me talking to Richard is that this mission, which comes back to James Smithson's marching orders, the increase and diffusion of knowledge. It is interpreted extremely broadly.

Richard Kurin: I know when I was got involved after [00:34:00] the Haiti earthquake in 2010, we sent 80 people to Haiti. We took over UN building. We helped Haitians save their culture at a time they needed the most. When things had collapsed. Artwork was in the ruins, archives, libraries, everything and and it meant so much to them because it was the culture that would give them strength to survive. We made amazing things happen even before Congress acted, before we even had money in the bank. Somehow we made things [00:34:30] happen. People pulled together. Same thing after the hurricanes in Puerto Rico back in 2017. Remember awful flooding. There was no power in Puerto Rico. The biggest museum in Puerto Rico became a region of refuge for all the archives, artwork, artifacts of Puerto Rico over 500 years of history in a building with no air conditioning flooded on the ground floor with water in the building and mold. And somehow, as the last few days of the fiscal [00:35:00] year, last few days of the fiscal year in Washington, talk about how things work. You cannot buy a cup of coffee in Washington because we're trying to close the books. And somehow in those last few days, the Smithsonian ended up doing cash transfers of over $100,000 down to Puerto Rico, to that museum to be able to buy fuel for generators, to power up the air conditioning system, to stop the mold and save over 500 [00:35:30] years of Puerto Rican culture. That happened because of the women. Tina Jones in contracting at the Smithsonian who made it happen, who said, I'll take, you know, responsibility. We're going to get that contract through. We're going to process that money. We're going to help where it's needed most. So you have people like that around the institution that just step up.

Hannah McCarthy: You know, I said earlier [00:36:00] that the reason we have institutions to preserve things is because often we humans destroy things. But I have to admit, Nick, that that really is only part of the picture, because yes, we do destroy things, but there are a lot of us who understand that destroying the evidence of culture, of nature, of history is perhaps cosmically wrong. And if you want to debate right and [00:36:30] wrong and what's good and what's not, I'll go ahead and launch my philosophy podcast. But maintenance and distribution of what is and what has been is foundational to human progress, to our survival. And like, yes, the history of the Smithsonian itself contains erasure and regression in the name of progress. It does have a lot to answer for and a lot to fix. [00:37:00] And also, it seems to me at least, that there are people there who believe in preserving and sharing the actual truth so that we at least have the option of learning the real story.

Richard Kurin: So yeah, it takes an act of Congress to make a national museum, and it takes a good bit of consensus. And and then it doesn't mean that, you know, the debate or arguments stop. You know, how do we represent this culture? How do how do we [00:37:30] represent this aspect of our lives? How do we do that? And, you know, somebody's going to say, I don't like naked people in museums, you know, well, don't go there, but you can go see the guns in the other museum, you know? So, uh, you know, I often jokingly have talked to members of Congress and say, you know, not everybody has to like everything. Not everything has. But but but to subscribe to the the tremendous variety and the depth of life and experience in the United States. It's a big picture, [00:38:00] and it usually transcends any one person's particular interests or or likes or dislikes.

Hannah McCarthy: That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoi is our executive producer. Music. In this episode by David Celeste [00:38:30] Beigel Roy, Edwin Williams, LM styles, Andreas Dahlback, Ryan James, Car Ott, Sven Lindvall, flyin Don, Don Don and rhymed clang soundtracks. If you have questions for Civics 101, we've either got answers or we will do our best to find them for you. You can ask us at our website, civics101podcast.org, where you can find every single episode we have ever made and if you are so inclined, make a contribution to the show. Civics 101 [00:39:00] is a production of NPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

The Second Amendment

On June 14 2024, the Supreme Court ruled that bump stocks are no longer illegal, reversing an order from Donald Trump and the ATF that was passed in the wake of the Las Vegas shootings. The words "Second Amendment" do not appear in the opinion, concurring opinion, or dissent. And yet, within minutes of the ruling, every news agency was calling it a Second Amendment case. So what is the Second Amendment?

It's short. 27 words. Words which have been interpreted and reinterpreted by historians, activists, judges, and philosophers. What did it mean when it was written? What does it mean right now? And what happened in between?

Today's episode features Saul Cornell, professor of history at Fordham University and author of A Well Regulated Militia, Alexandra Filindra, professor of political science at University of Illinois Chicago and author of Race, Rights, and Rifles, and Jake Charles, lecturing fellow and executive director of the Center for Firearms Law at Duke Law. 


Transcript

Nick Capodice: Hello, everyone. Nick here. We got an episode on the Second Amendment today. I am recording these words on Friday, June 14th, 2024. On this day, just a few hours ago, the Supreme Court handed down their decision in Garland v Cargill.

Archival: Good morning. I'm Whit Johnson in New York. We're coming on the air because the Supreme Court has just issued its ruling and a Second Amendment gun control case challenging the country's ban on bump stocks. Those are the attachments. [00:00:30]

Nick Capodice: Let me give you a little back story to that case. In October 2017, Las Vegas, Nevada, A man fired more than 1000 bullets into a festival crowd. He killed 60 people, he injured about 400 more. And he did this in about ten minutes. Now, machine guns are not legal in the United States. You can't own one. And this has been the case since 1934, when Congress passed legislation banning machine guns [00:01:00] in response to the 1930s. Right, Tommy? Guns, prohibition, organized crime. You've seen the movie. Congress saw that certain guns were killing people. And in response, they passed a law banning them. No machine guns, no grenades, etc.. So back to 2017. This mass murder was possible due to a device called a bump stock. A bump stock is like 100 bucks. Essentially what they do is they replace [00:01:30] the butt of a rifle, and they use the recoil of a shot to fire another shot over and over very quickly until the magazine is empty. So in the wake of this horrific tragedy, the ATF, the Bureau of Alcohol, Tobacco and Firearms, they reclassified guns with bump stocks as machine guns and therefore illegal to own. This action was done through an executive order by then-President Donald Trump, I have his exact tweet quote. “As I promised today, the Department of Justice will issue the rule banning bump stocks with a mandated comment period. We will ban all devices that turn legal weapons into illegal machine guns.” End quote, end tweet. So bump stocks were made illegal to own, and a lot of people who own them, destroyed them or willingly turned them in.

Nick Capodice: One of those people [00:02:30] was Michael Cargill. Cargill then filed a lawsuit challenging the ATF regulation. This lawsuit moved up the chain, moved through the courts. It was granted cert, it was argued this February in the Supreme Court. And today, the court ruled in A63 decision along ideological lines, that a gun with a bump stock is not a machine gun. Overturning the Trump era ban. Justice Clarence Thomas wrote the opinion where he said, quote, this case asks [00:03:00] whether a bump stock an accessory for a semiautomatic rifle that allows the shooter to rapidly reengage the trigger and therefore achieve a high rate of fire, converts the rifle into a machine gun. We hold that it does not, and therefore affirm. So today we are playing our episode on the Second Amendment. This is one of the amendments we hear the most about, but not usually the full thing. We hear pull quotes, right? Like right to bear arms or shall not be infringed. But here's the thing [00:03:30] in the opinion authored by Justice Thomas, the words Second Amendment are not mentioned once. Neither are right to bear arms or well-regulated militia, any of it. They don't even appear in Justice Sonia Sotomayor's dissent, though I will say this line did quote, when I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. The only time those words came up were in one [00:04:00] single exchange during the Supreme Court argument in February. And here's the tape.

Archival: Okay. Last question. You haven't made a Second Amendment or constitutional avoidance argument, in your view, are bump stocks covered by the Second Amendment protected by the Second Amendment? But we.

Archival: Didn't argue that because courts are generally loath to decide constitutional questions when there's an easy statutory offering.

Archival: You didn't throw it in as constitutional avoidance, and I imagine that was a considered choice. I'm curious what what was behind that.

Archival: There's nothing that prevents [00:04:30] this court from invoking the constitutional avoidance cannon on the Second Amendment issue, because there is a question, at least, whether this falls within the dangerous and unusual weapons carve out in Heller. We don't have a position on that question because we didn't brief it.

Nick Capodice: So, yeah, it was an off ramp, a constitutional off ramp. The advocate for Cargill saw that off ramp, and he took it and it worked for him. But even though the words Second Amendment don't appear in the decision right this second on Twitter, the most [00:05:00] popular tag is shall not be infringed. So back to Justice Sotomayor and her duck. Just because the court doesn't say something, that doesn't mean it's not on everyone's minds. So here's the episode.

Charleton Heston: The right to keep and bear arms is the one right that allows rights to exist at all. Now, either you believe that you don't, and you must decide, because there's no such thing as a free [00:05:30] nation where police and military are allowed to force of arms, but individual citizens are not.

Saul Cornell: I often say, if we go back to what the founders thought about guns, it would be the worst nightmare for gun rights people and gun control people because you'd get rid of stand your ground. Your duty would be to retreat. The government would inspect your firearm in your home. It would penalize you if you picked the gun you want instead of the gun the government wanted for you. On the other hand, be more like living in Switzerland or Tel [00:06:00] Aviv because we would all be part of a well-regulated militia and we would have to drop everything at a minute's notice and report to muster.

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And at the top you heard actor and former president of the NRA, Charlton Heston. There's going to be more of him later. And right after that, you heard Saul Cornell. He's a professor of history at Fordham University, and he wrote the book A Well-regulated Militia. Saul teaches popular constitutionalism in the early [00:06:30] Republic. And we talked to Saul because today we're talking about the Second Amendment, what it meant when it was ratified, what it means as of this moment, and what happened in between. We're also going to talk about the amendment and the Supreme Court, the NRA, and the truly unique relationship between our country and gun ownership.

Hannah McCarthy: All right. That's a lot. Yeah, that's a bit of a labyrinth. So can we just start with the words [00:07:00] what does the Second Amendment say?

Saul Cornell: So the Second Amendment, which is probably the most frequently invoked and poorly understood part of the first ten amendments, reads A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Hannah McCarthy: Okay. Saul said, frequently invoked and poorly understood. I mean, we have trouble whenever we try to understand the intent of the framers [00:07:30] in their historical context, and regardless of their intent, that kind of doesn't matter, because what matters is the people who interpret the Constitution, whose job it is to do so. The Supreme Court.

Nick Capodice: Yes, absolutely. When the Supreme Court says what something means, it means that as far as the law is concerned. But back to the intent. The NRA website says, quote, the founding fathers felt that citizens should be able to protect themselves against the government and any other threat to their well-being or personal freedom. [00:08:00] But, you know, you don't hear a lot of discourse about what the framers meant when they wrote the Seventh Amendment.

Hannah McCarthy: Yeah. I mean, you don't see, like, ranting YouTube videos about people talking about why a civil case involving $20 or more should be heard in front of a jury. But back to the Second amendment. Why is it so tough to interpret?

Saul Cornell: Modern Americans are quick to say, oh, how did they write such a bad amendment? I mean, how did they manage to screw it up so horribly? But in fact, if you're conversant with the way people talked and wrote about [00:08:30] the law in the 18th century, it makes a lot of sense. It uses a very common Latinate construction called the ablative absolute, and the best way to render it in modern English would be to say, because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Hannah McCarthy: An ablative absolute.

Nick Capodice: Yeah, I don't want to go too deep into this, but I encourage everyone to look up an article called, quote, our Latinate Constitution. It's [00:09:00] all about how the framers emulated the style of Greek and Latin authors and philosophers. An ablative absolute is an adverbial modifier of the predicate that's not grammatically dependent on any word in the sentence, which I cannot wrap my head around. Hannah. But an example from a Latin textbook is having received the letter Caesar sends a messenger. Since a well-regulated militia is necessary, the right shall not be infringed.

Hannah McCarthy: Okay, so while we're doing [00:09:30] historical context, two terms I want to understand are militia and bear arms.

Nick Capodice: Absolutely. And I'd like to start with what a right to bear arms meant back then.

Saul Cornell: Most of the first state constitutions did not have a provision on the right to bear arms, which is shocking given our obsession about it today. And perhaps most interesting of all, when they did include such provision, they often included a balancing provision which protected the right [00:10:00] not to bear arms.

Hannah McCarthy: Why would you need that right not to bear arms? What does that mean?

Saul Cornell: Bearing arms in the 18th century was an obligation, and we're not used to thinking of rights as carrying obligations in modern American law. We generally think that if you have a right, it imposes an obligation on either the government or other people to respect that right.

Nick Capodice: In 1792, you were obliged, as a white male between the ages of 18 and 45 to buy, keep and maintain [00:10:30] your own military weapon, ammunition, backpack, all that stuff. You had to submit it for inspection, and you had to always be ready to report to serve your country if needed.

Hannah McCarthy: Okay, but why would someone need to have a right to not bear arms.

Nick Capodice: Because of their religion? These were religious pacifistes and were sort of touching on First Amendment territory here. But Saul gave me the example of the Quakers.

Saul Cornell: Quakers. By the time [00:11:00] that the Second Amendment was adopted, had won the ability in Pennsylvania not to bear arms. Because the Pennsylvania Constitution is one of those states with a provision that says you cannot be forced to bear arms. But that wasn't good enough for them. They felt that any support for militia, uh, activity or warlike behavior violated their peace testimony. I mean, they literally took the idea of turning the other cheek as you just turn the other cheek. You do not, uh, [00:11:30] you don't engage in warlike activity. You don't engage in any kind of violence, verbal or physical. Um, and these Quakers, uh, refused to even pay taxes to support the militia.

Nick Capodice: And if we're looking at it through the modern day lens of bearing arms as just having a weapon, the Quakers certainly did that. They were hunting with guns. They even manufactured guns. But at that time that wasn't bearing arms. If you were playing a drum in an army, [00:12:00] if you were carrying a stretcher that is bearing arms, it's supporting war.

Saul Cornell: It just shows you how different their world is and how most of the people who talk about the Second Amendment today are just essentially functionally illiterate in 18th century constitutional English. And what they do is they project backwards our obsessions and our understanding. And of course, in modern America, you know, having a Glock in your bedside table so you can kill people is how most people think of what it means to bear [00:12:30] arms.

Hannah McCarthy: All right, let's move on to a well regulated militia. How does a militia differ from, like, the US Army?

Nick Capodice: Okay, first, a quick clarifier. When we're talking about militia in this episode, we are not talking about what law enforcement today called the American militia movement. That's modern day paramilitary organizations. We're not talking about those. But this is interesting. The Continental Army, which fought the American Revolution, was disbanded almost [00:13:00] immediately after the war, and then state militias took their place and became our only ground army.

Hannah McCarthy: Nick, earlier you said that any white male between the ages of 18 and 45 could be called up to serve in a militia, so what's up with the white part?

Alexandra Filindra: So basically this is the definition of who is a citizen in Republican terms, who gets to be a citizen in these two dimensions of citizenship.

Nick Capodice: This is Alexandra Falindra. [00:13:30] She's a professor of political science at the University of Illinois at Chicago. She's also the author of the upcoming book Race Rights and Rifles. And Alexandra talked to me about republicanism. This is not related to the modern day Republican Party. Republicanism is the political ideology in early America that was the basis for our revolution and our foundational documents. And that ideology continues in the history that America is writing for itself [00:14:00] today.

Alexandra Filindra: Americans had to explain to themselves and to the world why it was that there were this race and gender based restrictions, right, to who gets to be a citizen. So you need a theory, because republicanism basically says that in order to be a good citizen, you have to be willing to die for the country. You have to be willing to use violence and bear arms for the purpose of the Republic. [00:14:30] So in the American context, the myth that was created was that white colonists proved themselves to be virtuous and therefore deserving of Republican citizenship because they fought to death at the revolution.

Nick Capodice: The Boston Tea Party, Shays Rebellion, the Revolution itself, the Confederacy in the US Civil War. These are violent anti-government uprisings, and [00:15:00] they have been spoken of with words like Patriot freedom fighters. Uh, one book was written that said the South had a, quote, honorable defeat.

Alexandra Filindra: And we see that over and over in American history when African Americans use violence and armed violence, it is described in the language of criminality. Whereas the guys who went to the insurrection on January [00:15:30] 6th, it was described in the language of liberty, freedom, don't tread on me, these high moral and political principles and these don't apply to African Americans in in this white male supremacist world. And this is how guns became symbolic and very potently symbolic of white good citizenship. [00:16:00]

Hannah McCarthy: Okay. So Alexandra is saying that it is uncommon to see instances of black Americans displaying arms. I'm thinking of the Black Panthers, for example. Right. Or using violence, and then hear it described as an act of patriotism. Right.

Nick Capodice: And to support her point, you can just read modern day responses or the lack thereof, from the NRA and NRA supported politicians regarding instances where police have killed legally armed [00:16:30] black Americans.

Hannah McCarthy: Okay, so getting back to the militia, that's not how we do things anymore. Nick. So what changed the system?

Nick Capodice: Well, frankly, the system changed due to its effectiveness or should I say ineffectiveness.

Alexandra Filindra: In reality, the militia was useless as a military organization. They were horrible because the states didn't have the money or the interest to train them, and because they were citizen soldiers, they [00:17:00] could vote out any politician who insisted on rigorous training. They like the trappings of military service because this is service in quotes. They like the uniforms and they like the weapons, and they run around doing drills with fancy weapons of the time and fancy uniforms, you know? But when it came to real training, they didn't want to do it.

Nick Capodice: There were enormous problems with militia members [00:17:30] deserting in the War of 1812. But. The biggest demonstration of the failings in the system was the Civil War.

Alexandra Filindra: In the Civil War. The militia showed how badly trained they were. They were constantly brawling and they weren't working with each other from different states because they didn't have any contact. They had no organizational training, and they were dropped.

Nick Capodice: And a group of officers from the New York State Militia who saw how terribly the militia had performed in the Civil War, devoted themselves [00:18:00] to the task of training them, specifically training them how to shoot better. Records from the Union estimated that its troops fired about 1000 rifle shots for each Confederate soldier hit.

Hannah McCarthy: So they weren't just ineffective, they were also, I would assume, costing a lot of money.

Nick Capodice: Yeah. So this new group of officers sent emissaries to other countries that had militias, Germany, the UK, Canada to see how they train their soldiers to shoot better. And [00:18:30] in 1871, this group was chartered in New York State as an association for the purpose of teaching marksmanship.

Hannah McCarthy: Is this going where I think it's going? An association that would teach people nationally how to properly use their rifles.

Nick Capodice: You got it. This is the birth of the NRA.

Alexandra Filindra: In the early 1900s when a very, very famous National Guardsman [00:19:00] was President Teddy Roosevelt. They were able to get out of Teddy Roosevelt a new law which provided a subsidy and a monopoly to the NRA for the purpose of training civilians in marksmanship. The federal government committed the provision of surplus weapons and ammunition for free or at cost, exclusively to the NRA and its members for the purpose of military [00:19:30] preparedness to morally and in terms of technical skills, create soldiers out of civilians. For the purposes of the draft, the NRA didn't become powerful. It was powerful because the NRA was basically the same thing as the National Guards.

Hannah McCarthy: What does she mean? That the NRA was the same thing as the National Guard?

Nick Capodice: Well, in 1903, the state militias were all renamed the National Guard, and they were exclusively [00:20:00] trained by the NRA. The heads of the National Guard were the heads of the NRA. Alexandra told me a story about a congressional hearings in the 1930s, where a guy testified in front of the House as the president of the NRA, and then two days later, the same guy testified in the Senate as the adjutant general of the National Guard.

Hannah McCarthy: Is that not kind of a conflict of interest?

Nick Capodice: I mean, it is, but honestly, nobody really cared much at the time because everyone was all in on this program of training [00:20:30] civilians to protect the government.

Hannah McCarthy: Did the program work?

Alexandra Filindra: No. Because the idea was, okay, we will get them young. We'll teach them how to use a gun. And then there will be so excited and morally, uh, uplifted by this that they'll want to be in the army. This didn't happen. This was hugely wasted money. And even though report after report showed that this was wasted money, the program exists today. It stopped being [00:21:00] a monopoly of the NRA in 1968. But for an entire century, basically, the NRA had a monopoly over this program that basically gave free guns and ammunition to citizens just for being members of the NRA and members of gun clubs.

Hannah McCarthy: What happened in 1968 that ended the NRA's monopoly?

Nick Capodice: A lot a lot happened in the 1960s. And [00:21:30] here's where we start to talk about how the Second Amendment legally affects us. And that's coming up right after the break here on Civics 101.

Hannah McCarthy: But first, a reminder that our show is public media and you are the public. Support it with a donation in any amount at our website, civics101podcast.org, or click the link in the show notes to make a donation right now.

Nick Capodice: All right, we're back. We're talking about the Second Amendment.

Hannah McCarthy: Now, Nick, we've [00:22:00] gotten into the history of the amendment, but now I'd really like to hear about the laws. You mentioned 1968. Is that the year of the first federal gun legislation?

Nick Capodice: Well I'd Love to go a little bit earlier than that. Here is Saul Cornell, professor of history at Fordham University and former director of the Second Amendment Research Center.

Saul Cornell: You can go back to the 14th century and the Statute of Northampton. Hundreds of years before guns even exist. And you have a law [00:22:30] in Britain saying you cannot go armed. In this case, it wouldn't be firearms before the king's ministers or in fairs or markets, because there is this notion that carrying arms in heavily populous areas is just not a good idea. Although in most parts of the world, the idea that modern American gun regulation would depend on a statute passed in the 14th century where there were no guns, makes most people in the rest of the English speaking world both laugh [00:23:00] and kind of shake their head like, what is going on with you people? Um, and what is this theory of originalism, where you actually care more about what was going on in 1328 than the massacres you see now with almost, uh, appalling frequency

Hannah McCarthy: Is Saul Implying that much of the world would be baffled by our devotion to adhering to these laws written so long ago.

Nick Capodice: I think he is. But we do focus on the intent of our framers specifically when it comes to the Second Amendment. So I'm going to get into it. During [00:23:30] the American Revolution, authorities would forcibly disarm you. If you didn't swear a loyalty oath to protect your government. You could hunt. You could keep a gun in your house. Though. In Boston in 1786, you couldn't keep a loaded gun there. And if it was a military issued gun, it had to be registered and regularly checked by your militia. But you were forbidden from having what we now call open carry guns just out and about when traveling or being in public places. And later on, these rules also extended to [00:24:00] places where, due to Hollywood, we tend not to think of as heavily restricted gun wise. Here's Alexander Filindra again.

Alexandra Filindra: Even then, you know you're carrying your arms. But if you went to the okay corral, the town required you in Arizona and Tombstone, Arizona, required you to leave your guns at the entry of the town before entering the town. So, no, no guns were allowed into the [00:24:30] town. Very, very regulated guns wise West.

Saul Cornell: the idea we have always carried guns everywhere all the time, is just another gun rights fantasy masquerading as history.

Hannah McCarthy: That's carrying guns in public, though. What about carrying a gun in secret?

Nick Capodice: Oh, legislators passed way more laws preventing that more than open carry.

Alexandra Filindra: Traditionally, in the 19th century, people were far more concerned about concealed carry than public carry. It's only the criminals who have guns that [00:25:00] can be hidden, because you know they're going to attack you when you don't expect it.

Nick Capodice: All of this legislation being it permitting open carry in certain circumstances or banning it in others, never comes to the federal level. As far as the Supreme Court is involved until the 1930s. Us v Miller 1939 Jack Miller violated the National Firearms Act of 1934 and carried a sawed off shotgun [00:25:30] across state lines, and.

Hannah McCarthy: And that was illegal at the time.

Nick Capodice: It was. In 1934. We were just coming off an enormous amount of armed violence in the era of prohibition and gang activity the Saint Valentine's Day massacre, the National Firearms Act, the NFA put an exorbitant tax on weapons used during that era. So I'm talking about the Thompson or the Tommy gun. Sawed off shotguns, silencers on pistols, explosives like grenades and bombs. [00:26:00] Now, the act initially included handguns as well. And interestingly, the NRA supported the National Firearms Act. They helped shape its wording. They agreed there's no place for Tommy guns and grenades in America, but they disagreed with the handgun restriction, so that was stripped out. But back to Jack Miller. Miller was caught with a sawed off shotgun, and he argued the NFA violated his Second Amendment rights.

Hannah McCarthy: So the Second Amendment finally got its day in court.

Nick Capodice: Yeah, [00:26:30] kinda. And it comes and goes pretty fast.

Hannah McCarthy: What was the decision?

Nick Capodice: It was unanimous. Miller lost all of the Supreme Court justices agreed the NFA is not unconstitutional because the Second Amendment has nothing to do with gun ownership outside the context of a well-regulated militia. Justice McReynolds wrote the opinion where he said, unless having a sawed off shotgun [00:27:00] has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Hannah McCarthy: Okc that opinion seems to have very little to do with what I consider sort of prevailing interpretations of the Second Amendment. How long until we see a case where it's discussed with more detail and debate?

Nick Capodice: About 70 years. And before we talk about the more recent Supreme Court interpretation of the Second Amendment. [00:27:30] A lot of stuff happens in the US.

Alexandra Filindra: After several attempted assassinations against presidents, and after the successful assassination of Kennedy, and after the successful assassination of Bob Kennedy and the successful assassination of Martin Luther King, Malcolm X, you name it. But another problem was that Klan members and the Minutemen and other extremist organizations in the 60s became members of the NRA and [00:28:00] and got access to federal guns and ammunition to fight against the civil rights movement and also against the federal government. And that kind of became a problem. And the NRA was investigated.

Hannah McCarthy: What was the result of the investigation?

Nick Capodice: I don't know, because it's not public. Alexandra only had a summary of the investigation, and she's been trying to get her hands on the full report for a long time. She hasn't been able to. But shortly thereafter, Lyndon Johnson ended the NRA's monopoly on training the National [00:28:30] Guard, and he signed the 1968 Gun Control Act.

Archival: Today, we began to disarm the criminal and the careless and the insane and all of our people who are deeply concerned in this country about law and order, should hail this day.

Nick Capodice: Now that act banned mail order sales of shotguns and rifles, and it prohibited felons and drug users and people found mentally incompetent [00:29:00] from purchasing any guns. And this is where the NRA made a big pivot.

Jake Charles: So in the mid 1970s there was what's called the revolt at Cincinnati, um, with the National Rifle Association.

Nick Capodice: This is Jake Charles. He's the executive director at the center for Firearms Law at Duke University School of Law.

Jake Charles: And what that refers to is a moment in time where hardliners in the NRA, who thought the NRA was being kind of too [00:29:30] cozy with those who were in favor of regulations, uh, what at the time were kind of some, some fairly mild regulations the hardliners thought the NRA was not taking, um, uh, enough of a stance for the Second Amendment. And so, uh, they took over the organization. And the organization after that point became the organization that we know it today, which is an organization that is opposed to most forms of gun regulation.

Nick Capodice: The revolt of Cincinnati was in 1977, and I don't [00:30:00] think I can overstate its importance. So again, in the late 1960s, the NRA was not politically powerful. It was fairly flexible about gun regulation. But at their convention in 1977, the hardliners who opposed any gun legislation whatsoever outnumbered those who were open to regulation. New leaders indeed took over, and there was an adoption of a do not give one inch mentality towards firearm legislation. [00:30:30] And very quickly the NRA's focus shifted. It was no longer just about hunting or marksmanship, but something else entirely. It was about opposition to gun legislation, and it was about mobilizing voters.

Archival: And this is where the NRA organizes its million plus members. This is headquarters in Washington. Bush computerized, heavily staffed, well-funded and geared for action. Friend and [00:31:00] foe agree the NRA's power to scare congressmen lies in its ability to mobilize its members in any congressional district, at the touch of a computer button.

Jake Charles: To what we see then is the NRA in 1980 is endorsing Ronald Reagan to the first time the NRA endorsed a presidential candidate. Um, Ronald Reagan returned the favor once he was in office, and he became a very pro gun president. Um, and so the 80s, we see the, uh, Congress [00:31:30] enacts the Firearm Owners Protection Act, which provides a lot of, um, rolls back some of the federal regulations. There have been on guns and protects gun rights a lot. Keep fast forwarding. The gun rights movement becomes, uh, kind of more powerful. The NRA becomes more powerful. We start to see these, uh, challenges to what had been the prevailing interpretation of the Second Amendment for at least 100 years, which was that it was tied to the militia.

Nick Capodice: And this is when we started to hear things like this.

Charleton Heston: So it's not unreasonable that with one lost [00:32:00] generation, we could lose the Second Amendment forever because we didn't teach them what the battle's all about. We didn't strike that spark in their hearts that lights the fire for freedom.

Nick Capodice: That, again, was Charlton Heston, five term president of the NRA and an NRA produced short film called A Torch with No Flame.

Hannah McCarthy: Are you saying that until the 1980s, the Second Amendment was not really talked about [00:32:30] as pertaining to an individual's right to own a gun?

Nick Capodice: That is what I'm saying. It was not. I watched an episode of 60 minutes from 1977 on the inner workings and beliefs of the NRA and the Second Amendment wasn't mentioned even once, and I was quite shocked to learn about this. Hannah. And I was so shocked that I asked Jake that exact question. Was this interpretation new?

Jake Charles: Yes, I think that's I think that's a fair way to put it [00:33:00] at the NRA's kind of energizing moment in the 70s, and with Reagan's presidency in the 80s was first or not first, but at least alongside advocates, we saw, uh, legal scholars publishing and we saw, um, gun rights activists publishing in law reviews and in legal journals. Arguments for the Second Amendment had been misinterpreted, um, for the past hundred years by the federal courts. And that actually does protect an individual, right? Um, they claim to discover a lost history that hadn't been there before and that everyone had overlooked [00:33:30] when they were interpreting the Second Amendment, and that it actually protects an individual right unconnected to any service in a militia. So it's certainly, um, has not been the prevailing view throughout American history. There's really strenuous debate about how much of it is recovering, what had been an old view that was lost and how much of. It is creating a new view that responds to current concerns.

Hannah McCarthy: So basically the NRA is not just lobbying members of Congress. They're contributing a new philosophy to the academic and legal discourse. [00:34:00]

Nick Capodice: They are. But as Jake said, there is to this day debate about whether this philosophy is completely new or it existed hundreds of years ago and were just bringing it up again. And to add to this thought, former Chief Justice of the Supreme Court Warren Burger, in an interview with PBS in 1991, said that the gun lobby's modern day interpretation of the Second Amendment was, quote, one of the greatest pieces of fraud. I repeat the word fraud on the American public by [00:34:30] special interest groups that I have ever seen in my lifetime, end quote. And all this brings us to the next Supreme Court decision invoking the Second Amendment, District of Columbia v Heller.

Archival: We will hear argument today in case 072 90 District of Columbia versus Heller. Mr. Dellinger, good morning, Mr. Chief Justice, and may it please the court. The Second amendment Was a direct response [00:35:00] to concern over article one, section eight of the Constitution, which gave the new...

Nick Capodice: And by 2008, there had been a few federal laws regarding guns and lots of state and municipal restrictions. The big ones that I should mention here are the Brady Handgun Violence Prevention Act, often called just the Brady Bill from 1993. That requires instant background checks to be performed when anybody buys a gun. Now, there are loopholes to this. By the way, a study in 2017 found [00:35:30] that 22% of gun purchases happen without a background check. And when we're looking at state and municipal gun laws, the relevant one in this case is one from 1975. It's a law that forbid residents of Washington, D.C. from keeping handguns in their homes. Dick Anthony Heller was one of six parties in this case. He was a police officer who used a gun at work, but he said he wasn't allowed to have one in his home. The case was argued in March of 2008, and [00:36:00] the court issued its opinion three months later.

Archival: Our opinion is very lengthy, examining in detail the text and history of the Second Amendment.

Hannah McCarthy: How did they rule for Heller?

Nick Capodice: For the view that the Second Amendment protects your right to own a gun in your home.

Jake Charles: And in Heller, the Supreme Court endorses that view by a vote of 5 to 4. So it's the five more conservative justices on the side of the Second Amendment protects its individual right, and the four more liberal justices who look at [00:36:30] the same history, the same sources that the majority looks, looks at and says, actually, it's tied to a militia. It's not an individual right, unconnected to what that prefatory clause says it's connected to. Right. And what the court said in Heller, at least the five justices in the majority, what they said was the militia was the reason for the codification of the Second Amendment. This is the reason they drafted it and put it in the Constitution. But their reasons for putting it in there don't restrict what the scope of the right was. And so what they said, the scope [00:37:00] of the right is, is this second clause, the right of the people to keep and bear arms? And what Justice Scalia said, writing for the majority, was that self-defense is at that core of the right of the people to keep and bear arms. It might not have been the reason that they put it in there, the reason they, um, ratified the Second Amendment. But that was the core of the right that they were protecting.

Nick Capodice: And now, because the Supreme Court is the interpreter of the words in our Constitution, the Second Amendment is about our right to own a gun, [00:37:30] regardless of our involvement with the militia.

Hannah McCarthy: All right. The Heller decision allows handgun ownership federally. But as we see with so many Supreme Court decisions, you know, it often takes some time for that decision to apply to all the states. And this matters a lot, because state laws are the ones that actually affect our lives. Right.

Nick Capodice: And the Heller decision took two years to apply to all the states, which it did in another 5 to 4 ruling, almost the same justices except in the minority. You got Justice Sotomayor [00:38:00] instead of the now retired Justice Souter. And this is a case called McDonald v City of Chicago. Chicago being another city where handgun ownership was restricted. And this opinion was written by Justice Alito.

Saul Cornell: And in the McDonnell decision, which was the case that applied Heller to the states and to localities, incorporated the Second Amendment, to use a phrase, uh, familiar to those of you who study the Constitution out there. Um, so Justice Alito says, well, clearly, [00:38:30] you know, they decided to rewrite these provisions and take away the focus on the militia. So therefore it's an individual right, which fair enough. But he stops reading right in the middle of the sentence, because the very next line in all these state constitutions is an the legislature shall have the right to regulate arms in public.

Nick Capodice: For example, in his opinion, justice Alito references the Texas Constitution of 1869, which does say, quote, every person shall have the right to keep and bear arms in the lawful defense of himself for the [00:39:00] state. But there is no mention of the second half of the sentence which says, quote, under such regulations as the legislature may prescribe.

Saul Cornell: So literally you have the originalists being textualist to the point in the text where it contradicts what they want to do. What tends to happen in American constitutional law all too often is we invoke history. But the history that we use to construct our law is a kind of bizarre combination of mythology, ignorance [00:39:30] and, um, anachronism, which is a fairly potent cocktail if you're mixing one up. You know, one part ignorance, one part anachronism, um, and one part myth. I mean, it's a heady brew, but it's, um, it's not really what historians understand the past to be. I mean, the the basic principle we start with as historians is if you're not a little confused by how differently they approach [00:40:00] something, you're probably not understanding what they meant.

Hannah McCarthy: Now, this is an episode about the Second Amendment and its history and its interpretation in the courts and the public discourse, but it is also about America's relationship to guns. Now, when the Constitution was written, our framers were wary of parties, right? They were wary of factions, even though they happened [00:40:30] almost immediately. And over the years, gun regulation has indeed become a partisan topic.

Nick Capodice: It has a very partisan topic, and it's grown more partisan over the last 30 years. A quick example in 1992, the NRA donated to the campaigns of candidates for the House and a 6040 split 60% to Republicans, 40% to Democrats. But in 2016, Republican candidates received 98.4% of such [00:41:00] donations.

Hannah McCarthy: Nick, what's next? If we are so deeply divided on this, what can we expect in the next 50 years?

Nick Capodice: Well, since Jake Charles teaches a class at Duke just on the Second Amendment, I asked him what his students say. Do any of them change their mind.

Jake Charles: So I think most of my students come into. Uh, to class thinking that, um, gun regulations are totally fine and that the Heller decision [00:41:30] is bogus. Um, I think by the end of class, they're both conflicted about both of those, um, from the kind of that side of the aisle in that, uh, you know, there is an ambiguous history there, right? There are things you can point to in the founding era, um, these concerns about tyranny, these protections, um, for, uh, you know, individual to defend themselves. And so there's lots of there's maybe more evidence than they have thought there would be when they just look at the Second Amendment, they're more conflicted [00:42:00] about these regulations over particular people possessing firearms. They you know, most of them, I think, get to that point in the class and they say, well, if we're going to have this right, it's got to be available to everybody. It doesn't make sense to limit it to these classes. That's just, uh, you know, it's just racist or classist. Um, on the other side, I think, um, what a lot of my students who are against regulation are strong Second Amendment supporters come away a little more conflicted about. Is that the fact we're not talking about are you for the Second Amendment or are you for gun regulation? [00:42:30] It's always throughout American history been been both. There has been a strong gun culture. There has been a strong regulation culture. Um, and so it's not just this monolith of, of are you for gun regulation, it's this particular proposal. Are you for this particular proposal? And a lot of them say, well, yeah, not everyone should have guns.

Hannah McCarthy: So [00:43:00] from a constitutional Second Amendment viewpoint, Nick, are things going to change? Did your guests talk about how we can consider gun rights in the light of America being the mass shooting capital of the world?

Nick Capodice: Yeah, they did. Alexandra Filindra said she didn't think anything would change anytime soon, as gun control is such a volatile topic that nobody, specifically, no Republican running for Congress, would dare talk [00:43:30] about restricting access to guns because they'd be primaried out.

Nick Capodice: Now, [00:44:00] Jake said there are certain regulations that his students on both sides of the debate agree upon, specifically red flag laws. Those are laws that allow the police, family members or coworkers to petition the state court to disarm someone they believe is a danger to themselves or others. And finally, [00:44:30] Saul said, we're not going to get anywhere if we don't talk about it.

Saul Cornell: Um, so any reasonable approach to the problem of gun violence in America, because it is a uniquely American problem, at least in the industrial democracies of the world, has to both recognize that gun ownership, private gun ownership is a deeply rooted tradition and value in American life, but so is gun regulation. So the logical and reasonable [00:45:00] argument we should be having is, are there any things we could be doing that would reduce the toll and horror of gun violence that doesn't impose an unreasonable cost on those people who want to have guns? And is it possible to formulate policies that make it more difficult for people? We don't want to have guns to have them. That, again, only minimally burden those who want [00:45:30] to have guns. That would be a calm, thoughtful, productive discussion, which we never have had as a country in my lifetime and which would be nice to have.

Nick Capodice: This [00:46:00] episode was written and produced by me Nick Capodice with Hannah McCarthy. Christina Phillips is her senior producer and Rebecca LaVoy, our executive producer. Music. In this episode by Frances Wells, Peter Sandberg, Otto Hacker, Apollo. Site of wonders Damma beats. Peerless Golden age radio. Major tweaks Fabian tell pictures of a floating world. I love using [00:46:30] that song. Cooper Canal blue Dot sessions, those tried and true war horses and the man, the myth, the legend Chris Zabriskie. Civics 101 is a production of NPR, New Hampshire Public Radio.


 
 

Made possible in part by the Corporation for Public Broadcasting.

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.