Episode 107: Torture

On today's episode: What does the United States do when it captures prisoners of war? What are the Geneva Conventions? How did 9/11 change our commitment to treating prisoners humanely, and what mark has it left on public opinion about torture? 

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NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Virginia Prescott: [00:00:23] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works. Earlier this week President Donald Trump proposed longtime CIA officer Gina Haspel as the new head of the CIA. Haspel's history at the agency has already drawn scrutiny. In 2002 she ran a secret prison in Thailand where the CIA detained and tortured two suspected al-Qaeda operatives. She was later involved with destroying videotapes of those interrogations.

[00:00:55] The CIA's interrogation strategy following the terrorist attacks of September 11th marked a break from our country's official position on handling prisoners of war. We spoke with Elizabeth Grimm Arsenault, a professor at Georgetown University and author of How the gloves came off, before Haspel's nomination to better understand U.S. policy on torture, a critical aspects of how the U.S. treats prisoners of war.

[00:01:21] I asked her about the roots of that policy dating back to the Revolutionary War.

Elizabeth Arsenault: [00:01:27] The early treatment of prisoners of war is quite a grim scenario. Prisoners were routinely starved they were treated with no regard for their their human life.

[00:01:39] And one of the things that sets the United States apart from its beginning was that right at the outset George Washington said to his troops he instructed his troops as they were crossing the frozen river to surprise the Hessians that he wanted them to treat the captured Hessians with humanity. So right from the beginning Washington tries to set out that the United States is different that that we were not going to copy the sort of horrible example of prisoner treatment that the British and quite frankly most other powers embraced at this time. I would make the argument that this idea about treating prisoners humanely. It's a uniquely American idea. It's a uniquely American norm.

Virginia Prescott: [00:02:19] Why do you think right from the beginning you know declaring that we're going to do it differently, why did that matter? Why so important?

Elizabeth Arsenault: [00:02:27] It shows that the United States right from its birth the United States was not willing to make what I think is even a debate we have today, the sort of tradeoff between security and its values. And I think right from the beginning Washington says ideas that are actually then reflected in what Barack Obama said that this is a false tradeoff. We don't have to make a decision between our values and our security that in fact living our values treating people humanely is a way of making us stronger is a way of both setting ourselves apart. But actually it allows us to do our operational missions better.

Virginia Prescott: [00:03:04] Did establishing those boundaries last up until let's say you know contemporary warfare World War II era?

Elizabeth Arsenault: [00:03:11] Even from the beginning even ideas that are aspirational are not necessarily perfectly complied with. So Washington sets this charge out to the troops and prisoner treatment still, I mean it varied quite widely.

[00:03:24] I would say the next big step that you see in advancement in prisoner treatment came during the Civil War. So in the middle of the Civil War in 1863 the North would issue what was called the Lieber code and it was literally a set of instructions that said here's how we should treat those that we capture here's that we treat those in our captivity and the idea behind the Lieber Code was that those that are captured during the war, these men aren't criminals. These men are entitled to protections deserving to them simply by nature of their humanity.

[00:03:58] I would say though that the actual impact of the Lieber Code had on the conflict was quite minimal. There were still horrible abuses at the hands of both the north and the south. But what the Lieber Code actually did was that it became the basis for subsequent manuals embraced by France embraced by Britain and embraced by Prussia and Russia for how they would then treat prisoners of war in their own conflicts.

Virginia Prescott: [00:04:25] When we say treatment are we talking about food, clothing, medical treatment?

Elizabeth Arsenault: [00:04:30] Exactly, Virginia, all of that so food, clothing, what types of work they're are allowed to do, the respect for religious expressions, prohibitions against torture,, prohibitions against inhumane treatment.

Virginia Prescott: [00:04:46] So today, U.S. policies towards prisoners of war are greatly influenced by the Geneva Conventions. So first of all what are the Geneva Conventions and what did they say?

Elizabeth Arsenault: [00:04:56] That's right so the Geneva Conventions are a series of instructions essentially so they're a set of four conventions that were issued in 1949. And the Geneva Conventions, they don't seek to eliminate war. That's not their purpose. But they they seek to minimize suffering.

[00:05:16] The one that we're the most concerned about for the sake of prisoner treatment is the third Geneva Convention. It essentially tells military forces what you can do in conflict to those that you capture in your captivity, and what you cannot do. It also lays out who is entitled to receive these protections. Again relating to just as you mentioned to things like food rations. How long they can work what they are allowed to do.

[00:05:40] In the Third Geneva Convention, there is a third article that is shared among all of the Geneva Conventions and it has ideas that are so important, it's almost considered to be a mini convention in all the conventions. And so this Common Article 3 as it's called sets out ideas that are so essential that that no derogation from them can be considered. And Common Article 3 says that no matter what, no matter who you are you cannot have outrages upon your dignity. You cannot have cruel inhumane degrading treatment.

Virginia Prescott: [00:06:16] How about in Vietnam, the United States was challenged there because they were fighting an insurgency in the form of the Viet Cong. This is not a uniformed army behaving like uniformed armies do.

Elizabeth Arsenault: [00:06:30] The Vietnam War presented a number of international legal questions. And Virginia you're right. First and foremost among them was how do we treat armed insurgents who are fighting under the communist banner. But they themselves are not actually members of the North Vietnamese Army. The United States was under no legal obligation to provide Geneva Convention protections.

[00:06:55] But early in the conflict as early as 1964 the United States actually made the policy decision that it would ascribe it would provide full Geneva Convention protections to the Viet Cong even though legally it was not entitled to. And it made this decision for a number of reasons. But first and foremost among them was that it wanted to demonstrate essentially the goodness of what the United States was attempting to do in the Vietnam conflict. The sort of goodness of the American experience the benefits of the sort of Western liberal order and I would say it's a very similar challenge a very similar legal problematic area that the United States faced with members of al-Qaeda and members of the Taliban at the beginning of the conflicts in 2001 and 2003

Virginia Prescott: [00:07:44] Well after Vietnam, the Department of Defense or DOD made compliance with the Geneva Conventions a central part of training for all branches of the military. So what did they change?

Elizabeth Arsenault: [00:07:54] After the Vietnam War, whereas treatment of prisoners of war had actually been fairly consistent with international law. It was that fourth Geneva Convention the one that relates to the treatment of noncombatants in which the United States had been less compliant and I'm sure your listeners will be familiar with the names of places like the My Lai massacre. The cases in which the United States engaged in strategic bombing engaged in the use of Agent Orange against noncombatants against civilians in Vietnam and it caused the DOD to say we need to improve our training we need to make it clear that compliance with international law is not just something that we should do. It's something that we must do as a part of being a member of the U.S. military.

[00:08:42] So the United States in 1977 instituted what was called the Law of War Program in the duty. And again as you say it made training on the Geneva Conventions training on compliance with international law mandatory both as it was pre deployment but also included in the curriculum of the various academies various training institutions and the DOD.

Virginia Prescott: [00:09:11] I'm going to speed forward to another defining moment this is the terrorist attacks of September 11th in the United States. The ways of waging war and a new era of foreign policy emerged and also changed our treatment of prisoners of war. How did that change?

Elizabeth Arsenault: [00:09:31] It's good to think back about where the United States was on September 10th 2001 to think back about this was a case in which on September 10 2001 norms of prisoner treatment were deeply embedded. Again they were they were contained in domestic law. They were contained in language of domestic institutions. But there was a great deal of questioning in the 1990s about the role and placement of international law in the U.S. context compelled by decisions with regards to the NATO intervention in Kosovo compelled by questions about the purpose and value of international law broadly but also I think it's important to remember on the eve of 9/11 that this was a case of an intelligence community that had been gutted throughout the 1990s cases in which there had been years of slow hiring or or no hiring in some cases. And this was an intelligence community that had never held terrorist detainees so with the attacks of 9/11 it compelled a set of questioning the United States about what was the type of intelligence that we needed to collect.

[00:10:40] What was the type of intelligence that we needed to collect to prevent against an attack in the future to keep Americans safe. And I think that U.S. policymakers immediately after the attacks of 9/11 believed that they faced a binary choice of whether or not to do anything that they could to collect intelligence or to not and then suffer another attack.

Virginia Prescott: [00:11:05] Yes you're underscoring the absolute fear and vulnerability of that moment.

Elizabeth Arsenault: [00:11:10] That's right and I think it is important to think back about that shattering sense of vulnerability. And I think you know almost 17 years later it's good to reflect about how much this challenge to the United States. The sense of hopelessness the sense that never again could the United States be the victims of an armed attack on our homeland. The United States believes that it was faced with this impossible choice. And so it opened the door to consider what was allowed under domestic law what was allowed under international law.

[00:11:45] And I would also say to get back to the point that you mentioned about the Viet Cong because al Qaeda was a nonstate actor because the United States believed that al Qaeda and the Taliban were not entitled to Geneva Convention protections. That seemed to in the words of my book title it seemed to allow to let the gloves off because these were not state actors. The Taliban again could reasonably considered to be a state actor but because it failed to adhere by the laws of war it was the decision that was made by the Bush administration in those early years was that it also was not allowed. It was also not guaranteed a Geneva Convention protections.

Virginia Prescott: [00:12:24] We know from photographs of Abu Ghraib and other stories we've learned since about extraordinary rendition that the CIA treatment of detainees did violate the Geneva Conventions and was initially kept secret. How did the American public react when it came to light these violations of a principle that as you said were sort of baked in the cake of how the nation conducted itself?

Elizabeth Arsenault: [00:12:48] So in the DOD you have essentially a toxic stew of conflicting guidance ambiguous guidance, guidance that was met only for high value detainees at Guantanamo. Migrating its way to Abu Ghraib for use on a population prisoners that it was never intended to. So Abu Ghraib was a case of the the DOD program. In the case of the CIA, you have around 100 people that were authorized for rendition detention and interrogation program. Of these around 100 people three of them received as we now know the waterboard.

[00:13:26] The reaction that I would say in the United States at that time, so when when this story broke in 60 minutes when Seymour Hersh published his famous piece, my sense is that the reaction was horror and I think it prompted a lot of investigation in the United States about who we were. I would argue that in a time of peace it's somewhat easy to follow the law. It's when you're truly tested at a time of war that it's hard it's hard to extend these protections to your enemies. But but that's the sign of who you are as a state. That's a sign of who you are as a country.

Virginia Prescott: [00:14:02] But how about now. You know many Americans cannot unsee videos that they may have seen of ISIS beheading American detainees journalists. So how do you think the conflict has changed Americans views on torture.

Elizabeth Arsenault: [00:14:21] One of my deep concerns is that public opinion on this question has shifted. There have been Pew surveys there have been Washington Post surveys that say that right now in fact a majority of Americans believe that torture could be can be used to compel confessions to compel extractions. And I think you're right one of the factors playing into this are the violence perpetrated by ISIS the very astute propaganda masters that they have been I think asks Americans the question of why should we continue to be led by the laws of war if our enemies are not abiding by the laws of war.

Elizabeth Arsenault: [00:15:00] I think there's been a robust research in the ways in which Americans exposure to pop culture has in many ways changed our expectations of what torture does compel in interrogations. So there's been a number of studies that look at the ways in which exposure to interrogation scenes in Homeland and 24 have given Americans this idea that torture is an easy and clearcut way to extract investigations. But in reality in intelligence gathering interrogations, it's confusing it's complex it's messy and ambiguous and the torture does not work. Torture compels people to talk but people will say anything when their fingernails are being pulled out when their family members are being threatened. As a source of reliable intelligence, it does not work. And in the U.S. context we need to talk loudly and longly about the ways in which complying with international laws that restrict that prevent that proscribe torture, we don't follow just because it's the right thing to do, we follow because it's who we are as Americans.


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Episode 106: Department of State & Department of Defense [REBROADCAST]

They are two of the most powerful positions in a president’s cabinet: the Secretary of State and the Secretary of Defense. One has been around since the American Revolution, the other is relatively new. So what exactly do these two departments and their heads do? And are diplomatic efforts and military strategy natural opposites? In this episode, the history and interaction between two of the most powerful US agencies.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Episode 105: Democratic Norms

On today's episode: What are the norms of democratic government, and where do they come from? Which norms are essential to U.S. democracy, and how are they changing today? We put these questions to the authors of How Democracies Die, Steven Levitsky and Daniel Ziblatt, and get some concerning answers. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


Virginia Prescott: [00:00:23] This is Civics 101, the podcast refresher course on how democracy works. I'm Virginia Prescott. Today, democratic norms. [News montage]

[00:00:30] How did they become norms, and what is their role in a healthy democracy?

[00:00:50] Steven Levitsky and Daniel Ziblatt are both Harvard professors and they spent two decades studying authoritarian regimes. They've identified the behavioral codes leaders observe and the invisible lines that should not be crossed to maintain a healthy democracy. They are coauthors of the book How Democracies Die. Hello Steven Levitsky

Steven Levitsky: [00:01:11] Hi. Thanks for having us.

Virginia Prescott: [00:01:12] Thanks so much for being here and Daniel Ziblatt welcome.

Daniel Ziblatt: [00:01:15] Yes thank you.

Virginia Prescott: [00:01:16] Well what are democratic norms to start?

Steven Levitsky: [00:01:19] What we mean by norms is simply an unwritten rule. So it's a rule that all the relevant players are aware of and adhere to and know that there is some cost to violating them. But it's something that's not written down. So it is not a formal rule or law. By democratic norms we mean norms that are central to the functioning of a democracy.

Virginia Prescott: [00:01:47] You identify two guiding norms. First is mutual tolerance. So what does that mean?

Steven Levitsky: [00:01:54] That is a really basic norm in which each party each major party accepts its rival as a legitimate rival. We may disagree with the other party and we should and usually do disagree. We may really dislike the other party. We may shed a lot of tears on election night when the other side wins but it's essential that each party accept both publicly and privately that the other party is equally patriotic loves the country as we do and has an equal and legitimate right to exist to compete for power and to govern. Which means that we do not treat our political rivals as enemies.

Virginia Prescott: [00:02:39] The opposition is just the opposition.

Steven Levitsky: [00:02:41] It's just the opposition. That may seem like a pretty obvious distinction but going back to the period of our founding the 1780s and 1790s one of the key problems, one of the reasons why the two parties really virtually went to war with one another politically is the notion of mutual toleration really didn't exist it didn't exist anywhere in the West. It was just being born, the idea that there could be a legitimate opposition party that was not engaging by definition is sedition or treason was very very new in the late 18th century and even our founding leaders as enlightened as liberal as they were had not fully come to grips with that norm. It was it evolved over the course of the late 18th and early 19th century.

Daniel Ziblatt: [00:03:25] And can I just add to that it sometimes seems hard to grasp why that would be such a difficult norm to embrace. But if you stop and think you know if the vision of the way that politics ought to operate is that people in politics should figure out what's for the public good, then people who are critics of them or people who disagree with them are acting in ways that are sabotaging the public good. And so they should be kept out of power. But if you don't begin with the idea that there is one single public good that you know we're just trying to discern and sort of identify what is the way that politics ought to operate and you recognize that actually there's competing visions and there's competing value systems.

[00:04:04] Then you have to treat the other side as maybe what I think is true is not actually true. Maybe what the other side thinks is true there may be some credibility to it and so this idea that out of the competition of these competing visions we actually get a better outcome than just having a single person or a single party try to decide what is good. So that's really the shift that took place is that there was a growing recognition that nobody has a monopoly on truth and both sides are offering different visions and it's actually in the competition for power that you get the best kind of outcome.

Virginia Prescott: [00:04:35] How about the second principal, forbearance. What what does that mean?

Steven Levitsky: [00:04:42] Forbearance is the act of not exercising a legal right that is open to us. It is an act of deliberate self-restraint or under utilization of power which we don't normally think about much in politics but it's absolutely crucial to making really not only democracy but any political system work.

[00:05:06] Just think for a minute about our Constitution and what the president can do. The president as you know can pardon anybody he or she wants at any time, the president as long as he or she has a majority in the Congress pack the Supreme Court. If you don't like the composition of the Supreme Court and you have a majority in Congress you pass a law expanding the size of the court to 11 or 13 and fill it with your allies. Perfectly legal. The president can if the president is not getting her agenda through Congress can circumvent the Congress through presidential proclamations executive orders a whole series of unilateral measures that are not explicitly prohibited by the Constitution. All of those things are completely legal. On Congress's side the right of advice and consent in the Senate that can be used to deny the president every single cabinet appointment every judicial appointment every Supreme Court seat. Congress as we know can refuse to fund the government it can effectively shut down the government and Congress can impeach the president on virtually any grounds that it decides.

[00:06:19] So the point is that if misused if presidents really push the letter of the law at the expense of the spirit of the law even our Constitution can be run into the ground can be thrown into dysfunction chaos deadlock and potentially even authoritarianism. There are either gaps or interpretations of rules in the in our own constitution that open it up to abuse and to really the chaos. So it requires that our politicians engage in restraint in forbearance that they deliberately adhere to the spirit of the law rather than the letter of the law.

Daniel Ziblatt: [00:06:59] You know I mean one of the things that's sometimes misunderstood when we talk about forbearance is you know we're not suggesting that in a democracy people shouldn't fight hard and have passionate debates. In fact it's very important to fight hard for your principles and your policy priorities. But the idea is that if both sides pushed the letter of the law because things are not so clear as Steve says there can be these kind of clashes that end up being very destructive and so powerful politicians people with incredible constitutional power have to pull back from the edge and not pushed to the limits.

Virginia Prescott: [00:07:32] Don't all politicians however push the limits, at least rhetorically?

Daniel Ziblatt: [00:07:35] Well no I think actually they don't. I mean that's what's kind of remarkable in some ways is that I mean there's certainly lots of instances of people pushing to the limits but it turns out I think that politicians can in certain instances step back from the brink and not accuse their opponents for example of being treasonous. I mean that's very rare in American politics in the 20th century for presidents. Let's just take the president to publicly state that their political rival is treasonous. I mean that's that's really never happened until actually recently in the United States I mean you know the last several years you know not to say that there's not people in the press writing books called treason and there's people you know in society academics journalists accusing each other of treason and so on. But with important positions of political power as one climbs the apex of political power once one reaches the presidency, it's actually very rare.

[00:08:30] And so you know the one instance we might think of the more distant past is Richard Nixon you know who who literally despised the media and in private it was recorded is actually intending to go after the media. And you know his entire kind of criminal effort in the early 70s was exactly you know you know terrible illegal behavior. But even he even Richard Nixon in public sort of knew that he shouldn't be engaging in this kind of rhetoric. And so in that sense it's actually quite rare in the American context for people with the high levels of power to behave this way.

Virginia Prescott: [00:09:04] Well politicians however in the case of a couple of years ago the Democratic controlled House shifted the Senate rules and deploying what became known in Washington as the nuclear option. Now that the other side is in charge, as predicted, they might be regretting it. Is that a democratic norm in some way being kind of shortsighted?

Steven Levitsky: [00:09:28] I think that when you get into this spiral of norm erosion in which one side engages in what we call constitutional hardball and then the other side feels compelled to respond, yes politicians and parties begin to think in very short sighted terms. They think about well we need to defend our position. Now we need to we need to respond to this. Now maybe they're getting a lot of pressure from their constituents. And I think we're right in the middle of that right now there's a debate among Democrats for example and among progressives looking ahead to the 2018 election if the Democrats win control of the Senate in 2018 which is a possibility will they respond by denying President Trump if if if this occurs the opportunity to fill another Supreme Court seat. Will they do exactly what the Republicans did to Barack Obama. In our view that's pretty shortsighted behavior that's going to sort of continue and even accelerate this spiraling normal regime which could have you know very very negative consequences. But when when norms begin to erode when we're in the middle of the spiral it's very very difficult for individual politicians to step back and say you know this is not in the long term good.

Daniel Ziblatt: [00:10:43] You know it's very hard to break out of this spiral because you know in any of your listeners are going to sit here listening and think think to themselves well but these principles matter that what people are fighting for so why shouldn't we push to the hilt. You know why should we restrain ourselves and there's really a compelling logic there. But the point is simply that there's a cost to abandoning these norms because it does lead to this spiraling politics that doesn't it doesn't land us in a good place in the long run.

Virginia Prescott: [00:11:18] You're talking about erosion of norms but the government has changed. You know there have been several different swings back and forth between the way that the United States government operates or depending on who's in power. So is there a difference between a sort of real shift and just erosion wearing away of the way that things used to be?

Steven Levitsky: [00:11:39] One can identify hundreds and hundreds of different norms in politics. Many of these norms are challenged and change all the time. Society changes societal expectations change. It's perfectly natural and correct and healthy for democracy that all kinds of norms get get questioned challenged changed.

[00:12:03] Donald Trump violated the norm that presidents always have a pet. I don't think that's consequential. In fact there are many many norms of decorum that Donald Trump violates every day that are not consequential. But the two that we focus on, mutual toleration and forbearance, we think are essential and you lose those and your democracy is at risk, it's imperiled.

Virginia Prescott: [00:12:26] You mentioned the president Trump calling his opponents treasonous questioning election results. This is one of the democratic norms that we saw. You know Al Gore stepped aside after Bush v. Gore for the good of the system respecting the judiciary and decisions made by courts all norms that the current president has let's say subverted. So how do we safeguard these political norms?

Steven Levitsky: [00:12:52] That's first and foremost what we have political opposition for. Why that is so important is that we when our government does wrong that we have as much space and freedom as possible to speak out and organize and mobilize and protest against it. And actually we've seen a pretty healthy response on the part of key sectors of American society over the last year. There are things that worry us. There are other things that give us cause for hope. And one of them has been the response of both civil society and the media which we think has been overall pretty effective in responding to some of the president's most serious nor violations.

Daniel Ziblatt: [00:13:34] I would just add to that that that almost a precondition even for what Steve just said is that we need to be aware of what our norms are and so that's I mean the benefit of a show like yours in fact and so one of the purposes of having discussions like this is at least even be aware of what the norms are to figure out what we should be fighting over. And then once we've done that then the kind of fights and the political mobilization that Steve's described can take place.

Virginia Prescott: [00:13:59] Democracy has endured in the United States when it's been knocked off kilter in let's say Venezuela, Hungary, recently the Philippines, Russia. Why has that endured? Why do you think that it's robust?

Daniel Ziblatt: [00:14:11] I mean people disagree and fight with each other but there's two big things or three I guess big conclusions that people focus on and that help explain the U.S. one the older a democracy is the more likely it is to endure. And that applies to countries all around the world and the U.S. is one of the oldest democracies you know imperfect throughout much of its history. But one of the oldest democracies in the world you know people begin to value democracy as a result of that citizens value democracy or institutions develop traditions and ways of doing things. And so that's that's very helpful.

[00:14:42] The second point is the wealthier a country is the more robust democracy is and there's many poor countries in the world that are democratic but not all. You know there's more wealthy countries that are democratic and so being a wealthy country having a large middle class having educated population. All of these things matter.

[00:14:59] And then the final thing that the political science literature focuses on is the role of civil society. I mean the more robust a civil society is the more democratic more likely a democracy is to survive for exactly the reasons Steve just laid out that when you have a well-organized opposition it can serve as a buffer and a constraint on people who want to abuse power.

Steven Levitsky: [00:15:19] Yeah and if I can jump in and sort of present the dark side. At the end of the day we are relatively optimistic about the fate of American democracy. I think odds are our democratic institutions will muddle through the Trump presidency. That said a lot of the cases that we studied. Turkey is a good example of this. Peru's another, Venezuela another. If you took a snapshot one year in you wouldn't find much damage done. It was only down the line, 3, 5, 7, 10 years later that you really see the damage.

Virginia Prescott: [00:15:53] So what is the important takeaway for our listeners and those who support a fair healthy democracy about democratic norms?

Daniel Ziblatt: [00:16:01] So yeah on the last page of our book we have this wonderful quote where E.B. White was asked by the federal government during the war, you know what is democracy. He doesn't describe the institutions. It turns out it's very much more of the kinds of things that he describes and he says it's the feeling of privacy in the voting booth, the feeling of communion in the libraries, the feeling of vitality everywhere. Democracy is a letter to the editor. It's a score at the beginning of the ninth inning.

[00:16:28] I mean so this is he's describing features of our of our political culture at the end of the day. And so there needs to be a revitalization of that. I mean I think that that at the end of the day is the thing that drives the health of our democracy.



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IRL2: The Flag and the Pledge

This is our second installment of Civics 101 IRL, where we dive into the historic moments related to our episode topics. Today, we look at Old Glory and the Pledge of Allegiance. Who created them? Why? And how have they changed over the years? Also, we look at four supreme court cases that altered what we can and can't do or say when it comes to the flag and the pledge. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.


Civics 101

IRL2: The Flag and the Pledge


Nick Capodice: [00:00:32] Aw it's that time again. Time for another Civics 101 I R L where we dive into the historic moments related to our regular episode topics. I'm Nick Capodice. And with me as always is Hannah McCarthy.


Hannah McCarthy: [00:00:48] Hey there folks.


Nick Capodice: [00:00:49] Virginia will be back for the next one. This is a supplement to our Episode 79 which is about the U.S. flag code. There was so much to talk about that we had to cut the flag in half.


Hannah McCarthy: [00:00:58] For my half. I'm and do history of the flag history of the Pledge of Allegiance.


Nick Capodice: [00:01:02] Yes. And I'm going to do Supreme Court cases that involve the flag and the pledge.


Hannah McCarthy: [00:01:06] Do you want to start with history?


Nick Capodice: [00:01:06] Yes please.


Hannah McCarthy: [00:01:20] So Nick do you know where the American flag comes from, who designed the American flag?


Nick Capodice: [00:01:27] I was always taught Betsy Ross sewed and designed the first American flag.


[00:01:33] That is the prevailing history. But as it turns out there is no written documentation that this is the case. The story actually comes from Betsy Ross's grandson. He goes to the Historical Society of Philadelphia and he says my grandmother designed the American flag what and all that he has is testimony from Ross family members. You know the thing is that Betsy Ross was a flag maker in Philadelphia through the late 1770s. So she was probably sewing American flags. But this idea that she came up with the design the 13 stars in a circle, there's no real evidence aside from the Rosses insisting that this was the case


Nick Capodice: [00:02:19] And they don't have that, they had no evidence to like back it up?


Hannah McCarthy: [00:02:22] No written documentation you know,.


Nick Capodice: [00:02:23] Is that true?


Hannah McCarthy: [00:02:24] That she didn't design the flag?


Nick Capodice: [00:02:26] Yeah.


Hannah McCarthy: [00:02:27] I am not going to say for sure because it's possible right? But all that you've got are affidavits from her family members. So if Betsy Ross didn't design the American flag


Nick Capodice: [00:02:38] Who did?


Hannah McCarthy: [00:02:39] That's a good question. Some historians not all believe that it was a man named Francis Hopkinson. And there's good reason to believe him but that idea that he designed the American flag is based entirely on the fact that he claimed to have designed the American flag. So once again you're running up against this. There's no written proof that this person designed it.


Hannah McCarthy: [00:02:59] The reason it's more likely to have been Francis Hopkinson is that he definitely helped to create the design of the seal for the University of Pennsylvania the seal of the state of New Jersey and the Great Seal of the United States


Nick Capodice: [00:03:14] So he's a seal man.


Hannah McCarthy: [00:03:15] He's a seal man


Nick Capodice: [00:03:16] Seal guy. He designed the U.S. SEAL and that's enough of kind of like will this guy's got some background in design and probably did this too.


Hannah McCarthy: [00:03:24] In patriotic design.


Hannah McCarthy: [00:03:25] He was a known patriot. So it seems a little more likely.


Nick Capodice: [00:03:29] And real quick you know when this was? Is this around like the...


Hannah McCarthy: [00:03:32] Oh yeah of course. This was in the late 1770ss so 1776 1777. We've got this flag that the Continental Congress is flying


Archival audio: [00:03:49] The alternate stripes indicated a dissention from the king's rule. But the Union Jack indicated a loyalty to the mother country.


Hannah McCarthy: [00:03:50] And now this flag very closely resembles our flag except for the fact that the canton which is that in inner upper left hand corner square


Nick Capodice: [00:04:00] That's called the Canton! The blue square.


Hannah McCarthy: [00:04:02] That's right.


Nick Capodice: [00:04:03] I learned something new today.


Hannah McCarthy: [00:04:04] We already had the 13 stripes and that was actually a very popular design that would be displayed on coats of arms across Europe so that there was precedent for that. The Canton that we had was actually just the British Union Jack. So we had that plus our 13 stripes representing our 13 colonies.


Nick Capodice: [00:04:24] So the many stripes was a trope


Hannah McCarthy: [00:04:27] Exactly.


Nick Capodice: [00:04:27] Yet the number 13 was because of our 13 colonies.


Hannah McCarthy: [00:04:30] It was because of our 13 colonies. We were not strictly flying that British flag we were flying or 13 British colonies flag and we were working toward independence from the British. Now although we cannot say definitively who designed our new flag that new flag on June 14th 1777 was the result of the Continental Congress passing an act that established this official flag of the new nation. So the phrasing of that resolution it is resolved that the flag of the United States be 13 stripes alternate red and white and the union be thirteen stars white in a blue field representing a new constellation. OK I like the constellation. Very nice. So initially we had this flag which had our 13 five pointed stars in a circle in the blue Canton


Hannah McCarthy: [00:05:21] Gotcha.


Hannah McCarthy: [00:05:22] And then as states joined the union we would add both stars and stripes.


Nick Capodice: [00:05:30] What?


Hannah McCarthy: [00:05:30] That's right.


Archival audio: [00:05:30] On January 13th 1794 Congress enacted the law. Giving with us the flag with 15 stars and 15 stripes.


Nick Capodice: [00:05:40] When did we stop?


Hannah McCarthy: [00:05:41] So we actually stopped just after Vermont and Kentucky were introduced we only got to 15 I think.


Hannah McCarthy: [00:05:46] And then they say they realized


Hannah McCarthy: [00:05:49] Thank god then they realized that it was going to be visual chaos on the American flag. If you know they knew that the nation was going to continue to grow they might not have known it was going to get to 50.


Hannah McCarthy: [00:05:58] But just imagine that 50 stars next to 50 tiny little stripes. So in 1818 in their great wisdom Congress passes a law stipulating that the original 13 stripes be restored and only new stars be added Of course


Nick Capodice: [00:06:14] So are there like a couple of 15 striped flags out there?


Hannah McCarthy: [00:06:17] There are. You can actually order one. They still make them. So somebody can say you know this is the flag that we had for this period of time in history.


Nick Capodice: [00:06:25] That's really cool.


Hannah McCarthy: [00:06:26] Yeah. So the flag we know today because the flag has changed so many times. It's actually the twenty seventh iteration of the U.S..


Nick Capodice: [00:06:34] OK so they didn't add a star every time we added a state they like a wait for a couple.


Hannah McCarthy: [00:06:38] Correct. OK. Because we were adding at such a rapid rate. So you have only these 27 different versions of the flag.


Archival audio: [00:06:45] Every star state every state star.


Nick Capodice: [00:06:49] Cool. That's the flag.


Hannah McCarthy: [00:06:50] That's the flag.


Nick Capodice: [00:06:51] Now the pledge is tied to the flag right.


Hannah McCarthy: [00:06:53] So the pledge is tied to the flag but it's also really closely tied to patriotism and the union. And I would say the Americanization of people in this country.


Nick Capodice: [00:07:07] Wow. Can I ask you did you say the pledge when you were in school.


Hannah McCarthy: [00:07:10] I said the pledge every single morning I believe through middle school


Nick Capodice: [00:07:16] Stopped for me in middle school too. I said it in elementary school. So what's up with the pledge.


Hannah McCarthy: [00:07:20] Yeah I'm actually going to start us before the Pledge of Allegiance because we had a flag salute before we ever had a pledge of allegiance. So the original flag salute is by Rear Admiral George Balch. He'd been at West Point he served in the civil war and then later on in his career he finds himself working for the New York City Board of Education and he starts noticing that there are suddenly a ton of immigrant children in classrooms across the city and they don't necessarily sound like native born Americans. They might not think like native born Americans. Because he's encountering these foreign born students, he wants to teach American principles and help them to develop this ritual that could foster an American identity. So what he does is he develops this pledge salute combo where children would salute the flag and speak the following. I give my heart and my hand to my country, one country one language, one flag.


Nick Capodice: [00:08:21] Wow, one language too?


Hannah McCarthy: [00:08:23] One language.


Nick Capodice: [00:08:23] So this was a straight up. This is a guy who wanted America to look and sound a certain way.


Hannah McCarthy: [00:08:30] Yes.


Nick Capodice: [00:08:30] What years are we talking about here.


Hannah McCarthy: [00:08:31] So this is in 1887.


Nick Capodice: [00:08:34] OK yes. So it actually is the height. This is like just near the height of both German and Russian Jewish immigration. The Italians are just starting to come in.


Hannah McCarthy: [00:08:45] Exactly.


Nick Capodice: [00:08:45] So this is when the face the sound of America is changing again in a big way


Hannah McCarthy: [00:08:49] In a big way.


Nick Capodice: [00:08:50] And he's like we've got to put a stop to that. We have to change that. It sounds like.


Hannah McCarthy: [00:08:54] I think there was perhaps a fear of the influence of immigrants if not the immigrants themselves; let them in but make sure they become us. I think it was kind of the idea. So not that long after this fact. We are going to come up on the pledge and this is in 1892 which I believe was the same year that Ellis Island was officially opened for business


Nick Capodice: [00:09:17] Certainly was.


Hannah McCarthy: [00:09:17] And you've got millions of people coming in through Ellis Island. It's a very visible immigration from elsewhere into the United States. Not only that but the country is only 30 years into post Civil War recovery. So this idea of national union is still kind of fragile because we almost broke up you know. So there are some who think that patriotism is kind of sinking in the country too many people who are foreign born are moving in are changing the ways that we think and we speak. And we also are totally certain that we can keep this country together if only because we came so close to losing it.


Nick Capodice: [00:09:58] Right.


Hannah McCarthy: [00:09:59] So there's this man named Daniel Sharp Ford he's the owner of a magazine called Youth's Companion and he was particularly concerned with what he saw as this you know sinking morale in this country the sinking patriotism and he wants to boost it. So one of his employees one of the people who writes for him is named Francis Bellamy. He's a minister and an author for Youth's Companion. And so he asks Bellamy to compose a pledge of allegiance to the flag in hopes that it's going to boost patriotism.


Hannah McCarthy: [00:10:34] And here's the original language of the pledge allegiance.


Hannah McCarthy: [00:10:38] I pledge allegiance to my flag and the republic for which it stands


Archival audio: [00:10:46] One nation, with liberty, and justice for all.


Nick Capodice: [00:10:48] Wow. There's a lot that's changed since then.


Hannah McCarthy: [00:10:50] There's quite a bit that's changed.


Nick Capodice: [00:10:52] I think my flag sounds a bit more inclusive. It's like sort of implying that all these new comers these new Americans you know who are coming here are part of us. That's my flag because I'm here


Hannah McCarthy: [00:11:04] Something that we probably take for granted is that there is an American flag an every classroom. A big part of the reason let's just say that they're in so many classrooms in the United States is that at the same time that Youth's Companion publishes this pledge of allegiance and these instructions for this pledge they start selling flags at cost to about 26000 schools across the country. So then the pledge became really popular and that salute became known as The Bellamy salute. I think they simplified it to just this arm straight outward. You know at a slight angle right level with the forehead which looks just like a Nazi salute. During World War II of course we are seeing photographs and film of Nazis with their arms straight out and we decide maybe this isn't what we should be doing. Hand on the .


Nick Capodice: [00:11:58] Hand of the heart.


Hannah McCarthy: [00:11:58] So that's when that transition happens then revisions start to happen to the pledge itself. So in 1923 my flag is changed to the flag of the United States. So that in 1954 we add the words under God.


Nick Capodice: [00:12:13] Fifty four?


Hannah McCarthy: [00:12:14] Nineteen fifty four. So I think a lot of people grow up thinking that this pledge is kind of as old as the country itself.


Nick Capodice: [00:12:20] I thought it had under God from the 1800's.


Hannah McCarthy: [00:12:23] It sounds like something that would have been concocted in the 1800s. You don't really think that in 1954 that they're going to add the words under God.


Nick Capodice: [00:12:33] Yeah. Like just before the 60s?


Hannah McCarthy: [00:12:36] Things were about to blow up in this country. The reason that happened was because we see communism as this huge threat to this country. Communists are considered godless. Eisenhower signs a congressional resolution to pass under God into the Pledge of Allegiance. But it wasn't just Eisenhower. It's also because of a three year campaign by the Knights of Columbus


Nick Capodice: [00:13:04] The Knights of Columbus.


Hannah McCarthy: [00:13:06] That is the initial history of the Pledge of Allegiance. That's how he got up to the language that we use today.


Nick Capodice: [00:13:12] OK. Wow. So Betsy Ross didn't make the flag


Hannah McCarthy: [00:13:15] we don't even really know who designed it, or rather we can't say for sure.


Nick Capodice: [00:13:22] You ready for this?


Hannah McCarthy: [00:13:23] I'm ready.


Nick Capodice: [00:13:24] Are you. Aren't you excited to hear about some court cases.


Hannah McCarthy: [00:13:26] I'm so excited.


Nick Capodice: [00:13:27] After all of this boring history...so here are two Supreme Court cases about saluting the flag and two about burning it. Number one Minersville v Gobitis, 1940.


Nick Capodice: [00:13:39] William and Lillian Gobitis, they're Jehovah's Witnesses. And this is really important for this story.


Hannah McCarthy: [00:13:44] OK


Nick Capodice: [00:13:45] So this is what I didn't know about the Jehovah's Witness faith. Jehovah's Witnesses view God's kingdom as a government.


Hannah McCarthy: [00:13:53] Oh


Nick Capodice: [00:13:54] Yes. And therefore they refrain from pledging allegiance to any other government.


Hannah McCarthy: [00:13:59] Oh!


Nick Capodice: [00:13:59] And like nationalist songs and dances and parties and anything that's like pro a country is anathema to them because in their faith the country of God is the only country to which they should swear allegiance.


Hannah McCarthy: [00:14:11] That's really interesting.


Nick Capodice: [00:14:13] Yeah. And we see Jehovah's Witnesses pop up again and again because of this


Hannah McCarthy: [00:14:17] Because they can't be patriotic.


Nick Capodice: [00:14:19] Right.


Hannah McCarthy: [00:14:20] It must make it hard to live anywhere.


Nick Capodice: [00:14:22] It's only fitting that these two kids the Gobitis family in Pennsylvania. They refused to say the Pledge of Allegiance and they were summarily expelled from school in 1940. Now it goes up to the U.S. Supreme Court. And it is an 8 to 1 vote for Minersville school district.


Hannah McCarthy: [00:14:38] OK


Nick Capodice: [00:14:39] So the kids were not in their constitutional rights to not say the pledge.


Hannah McCarthy: [00:14:44] On what grounds exactly?


Nick Capodice: [00:14:44] Well it was, it was almost unanimous.


Hannah McCarthy: [00:14:48] Yeah.


Nick Capodice: [00:14:49] The justice who wrote the opinion was named Justice Felix Frankfurter. He's a famed Justice who was on the bench a long time. He said that national unity is the basis of national security. So if we're going to succeed as a nation we have to say that some things are respected. And he went on to say that a pledge for the flag is secular it's not religious it's for your nation. So you shouldn't consider it like that you do of God. Harlan Stone said in his dissent of the case that quote "There are other ways to teach loyalty and patriotism which are the sources of national unity then by compelling the people to affirm that which he does not believe." So we have a Supreme Court who almost unanimously says, hey everybody should go and support the flag. .


Hannah McCarthy: [00:15:34] OK.


Nick Capodice: [00:15:35] Everybody should say the Pledge of Allegiance. What happens after me almost immediately after this decision comes out, a mob of 2500 people burned down the Jehovah's Witnesses Kingdom Hall in Kennebunkport Maine. All the Jehovah's Witnesses in an Illinois town are jailed to protect them from citizens who are rioting. Jehovah's Witnesses are lynched, publicly hanged. And one sheriff said quote They are traitors. The Supreme Court said so. Ain't you heard?


Hannah McCarthy: [00:16:07] Wow.


Nick Capodice: [00:16:07] Three Supreme Court Justices, Black Douglas and Murphy, they stated in another opinion that they'd made the wrong decision.


Hannah McCarthy: [00:16:17] Wow.


Nick Capodice: [00:16:17] So in the wake of Minersville v Gobitis, not only is there a huge surge against Jehovah's Witnesses in the U.S. but there is a surge of flag laws in the U.S. saying you have to say the pledge. West Virginia is one of them. They make it compulsory. They say that if you don't say the Pledge of Allegiance in the morning you are insubordinate. And that law is what brings us to our next case, West Virginia v. Barnett 1943. Maria and Gathie Barnett, Jehovah's witnesses refused to say the pledge, goes up to the Supreme Court but something is different. Something is different in the air of America this time. By 1943 Americans had seen a lot of footage and read a lot of stories of Jehovah's Witnesses being persecuted in Nazi Germany and sent to concentration camps for refusing to salute the Nazi flag. So that, the justices who said that they had made a mistake, all comes together to make a new decision which is a 6 to 3 decision to overrule Minersville v Gobitis. So West Virginia Barnett is a case that makes it within your constitutional rights to not say the Pledge of Allegiance.


Nick Capodice: [00:17:21] Justice Jackson wrote the decision and the famous quote from this one as he said "if there is any fixed star in our constitutional constellation it is that no official high or petty can prescribe what shall be orthodox in politics, nationalism religion, or other matters of opinion or force citizens to confess by word or act their faith therein.".


Hannah McCarthy: [00:17:42] I love that.


Nick Capodice: [00:17:44] And there's no big ones. For a while and then we go to New York City. In the 1960s.


Archival audio: [00:17:50] This is about the first case in the history of our country, where this statue was even used. When Patrolman Copeland made his arrest he did not know that he had made the first arrest in the history of the state of New York for the public burning of a flag.


Nick Capodice: [00:18:06] We're talking about street v. New York 1969.


Hannah McCarthy: [00:18:09] Street.


Nick Capodice: [00:18:10] Street is the guy's name. Do you know about this case.


Hannah McCarthy: [00:18:13] No.


Nick Capodice: [00:18:13] Oh it's such a cool case. Oh my God. I mean the coolest people get involved in Supreme court cases, the coolest stories. So cast your mind back to 1966. The case is 1969 but this happens in 1966.


Hannah McCarthy: [00:18:26] I happen to be rereading Just Kids so I'm there.


Nick Capodice: [00:18:29] Oh you're right there right there. So we're in the 60s and we're in our old friend the Warren Court from Tinker v Des Moines


Hannah McCarthy: [00:18:39] I remember Warren, oh year.


Nick Capodice: [00:18:39] So I wish I had a constitutional scholar to walk me through this and it's radio so we should have someone should say hey did somebody call my name, no but we don't have that but hey we do what we can.


Nick Capodice: [00:18:47] So in 1966 there a civil rights activist named James Meredith. James Meredith is part of a protest, he is walking from Memphis Tennessee to Jackson Mississippi and he's promoting voter registration after the, the Voting Rights Act of 1965. And he's talking about and he's exposing racism across the south and he's trying to encourage African-Americans to vote , you know? And he's shot.


Hannah McCarthy: [00:19:15] Is he killed?


Nick Capodice: [00:19:16] He is not killed. It's comes over the radio across the country, James Meredith has been shot by an unidentified sniper. That comes across the radio and a guy's apartment in Brooklyn. And there's a guy named Sidney street Sidney street is a decorated Bronze Star veteran. He himself is African-American.


Archival audio: [00:19:34] He went out on an American flag with got him to his apartment two way street corner. Put a piece of paper on the street holding the flag in one hand, folded put a match to it and set it on fire.


Nick Capodice: [00:19:50] Then it starts to burn so much he can't hold it in his hand he puts it on the piece of paper he never lets the flag touch the ground.


Hannah McCarthy: [00:19:57] That is.. Anyway go on. So interesting.


Nick Capodice: [00:20:01] and this is really important. A police officer later later testified that he heard Sidney Street say if they did that to Meredith we don't need an American flag. The reason this matters is that New York State had a law had a statute at the time that you couldn't desecrate the flag by words or deed. You couldn't say bad stuff about the flag and you couldn't desecrate it physically. Sidney street is charged with malicious mischief for unlawfully burning the American flag and for saying bad words about the American flag. So this is an absolute squeaker. So what's the decision. It's a 5 4 decision. It's kind of confusing to me.


Hannah McCarthy: [00:20:45] OK.


Nick Capodice: [00:20:45] It's called, it's reverse and remand. It's kind of like


Hannah McCarthy: [00:20:50] What does remand mean.


Nick Capodice: [00:20:51] Remand means you send it back to the lower case for a retrial. Like it's the state's business or it's your business that other courts business.


Hannah McCarthy: [00:21:00] Because it was a state's law.


Nick Capodice: [00:21:01] It was but it's kind of like you guys take care of this. So they the court decides by a 5 4 vote that the law about the words about speaking bad about the flag that is unconstitutional. But when it comes to burning the flag let's just we don't. They totally kick the can on this one. It's a famous can kicking. The court does not decide whether or not it was constitutional for him to burn the flag.


Hannah McCarthy: [00:21:29] Wow.


Nick Capodice: [00:21:29] Yeah. It's kicked down 1970s, kicked down in the 1980s, and then we get to 1984 the Republican National Convention in Dallas Texas.


Archival audio: [00:21:43] It is my great privilege. To proclaim the thirty third Republican National Convention in Session and call it to order.


Archival audio: [00:21:58] We represent people who are patriotic. Who believe in our American system and love our country.


Nick Capodice: [00:22:03] Number four. Texas v. Johnson. Reagan and George H.W. Bush have been nominated for the second term and everybody at the RNC is banging gavels and getting all excited outside this convention on the steps of City Hall.


Nick Capodice: [00:22:16] There's a guy named Gregory Lee Johnson who goes by the name Joey. Gregory Johnson. And he takes an American flag and he burns it.


Hannah McCarthy: [00:22:24] I've seen


Nick Capodice: [00:22:24] And he spits on it. Yeah. Texas has a law. Texas legislature may prohibit overt physical acts that it deems offensive slash harmful to society. Texas loses the case and it keeps getting,.and Texas keeps appealing it and it goes up to the top, so Texas's name being first they lost the previous case. What is most interesting to me about this case I kinda, I found like a personal hero when I was researching this case and it's the guy who's the advocate for Johnson the lawyer named William Kunstler


Archival audio: [00:22:57] By the way talking about flags in front of the Supreme Court when I came by today. The flags were up in the rain. And under 36 US Code the leading provision there is flags shall not be displayed in inclement weather.


Archival audio: [00:23:12] Are you gonna get back to.


Archival audio: [00:23:12] Section one applies to all weather flags.


Archival audio: [00:23:17] That's an all weather flag. That could be physical mistreatment under the Texas statute.


Archival audio: [00:23:22] Mister Kunstler. Are you going to get back to the case?


Archival audio: [00:23:24] I'm going back to the case, seems we had this three weeks ago.


Nick Capodice: [00:23:28] He is very funny. And as you hear when he's arguing the case everybody's laughing, Thurgood Marshall is like can we get back to the case. He defended the Chicago Seven. He defended the Black Panthers the Weather Underground.


Archival audio: [00:23:43] Real pariahs people that could be totally hated by most of the population of this country. Well what makes Kunstler pariah bound? Well I have found that it is the pariahs when the law changes


Nick Capodice: [00:23:56] And what bigger pariah than a flag burner? In his argument he cites Street. He cites Barnett and the court makes its decision and it's another 5 4 vote. Another squeaker and the court holds that Johnson's burning of the flag is protected speech under the First Amendment. Justice William Brennan, famed advocate of the First Amendment. He's the one who writes the decision and he has the sort of money quote which is. If there is a bedrock principle underlying the First Amendment it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. And then Kunstler on the steps after the decision is read says this.


Archival audio: [00:24:41] And it tests the First Amendment whether you can see a thing like that which for war veterans who complain about, which touches a lot of people who do have certain reverence for the flag. To have that burned, desecrated in their eyes and yet protected by the First Amendment. I think it's a hard nut to swallow but it's a kind of nut that the founding fathers wanted us to swallow because they said that it's the hard words not the soft words that need protection.


Nick Capodice: [00:25:08] That decision invalidates laws in 48 states right off the bat.


Hannah McCarthy: [00:25:14] Wow.


Nick Capodice: [00:25:14] Suddenly overnight, whoosh.


Hannah McCarthy: [00:25:17] Yeah


Nick Capodice: [00:25:18] But there's one last one last bit to this.


Hannah McCarthy: [00:25:22] OK.


Nick Capodice: [00:25:23] Hannah which is Congress since Texas v. Johnson and starting in the mid 90s really 1990s has on many occasions tried to pass a new amendment to our Constitution. So we've talked before about how an amendment gets ratified into the Constitution and has to pass a two thirds majority in the house and in the Senate and then two thirds of the states have to agree as well. The actual amendment has been written. It's just waiting to be ratified. The amendment says the Congress shall have power to prohibit the physical desecration of the flag of the United States. That's it.


Hannah McCarthy: [00:25:58] Even though it is opposed to a Supreme Court decision


Nick Capodice: [00:26:02] Yeah, Because of its amendment would change that because it be in our constitution


Hannah McCarthy: [00:26:07] That's very interesting.


Nick Capodice: [00:26:08] So from the years 1995 to 2005 this amendment passed in the House six times. And each time it lost in the Senate by a handful or two of votes. In 2006 it got to the Senate and it lost by one vote. But even though it lost by just one vote Senate all 50 states have pledged that they are for this flag desecration amendment. So if it gets to the Senate it's pretty much a guarantee.


Hannah McCarthy: [00:26:40] Is it currently for..


Nick Capodice: [00:26:43] Yeah, so the amendment right now. It was proposed in June of 2017 and it's kicked to the Senate Judiciary Committee. So it's in committee as they say, it's in committee.


Hannah McCarthy: [00:26:54] All right.


Nick Capodice: [00:26:54] Who knows where it's going to go from there.


Hannah McCarthy: [00:26:56] Seems pretty likely to happen maybe next this year. Right?


Nick Capodice: [00:27:00] Who knows.


Nick Capodice: [00:27:02] One for the ages I guess.


Nick Capodice: [00:27:05] Thank you Hannah.


Hannah McCarthy: [00:27:08] Thank you Nick.




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Episode 104: Voting Rights

The Constitution doesn't explicitly guarantee the right to vote, but voting is widely considered to be a fundamental way for citizens to participate in American democracy. Who gets to vote and why?

Victoria Bassetti is the author of Electoral Dysfunction: A Survival Manual for American Voters. She is also a fellow at the Brennan Center for Justice at NYU.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.

Civics 101

Episode 104: Voting Rights

[00:00:00] Who is the current speaker of the house? Don't even know. Will they rule in the president's favor or will they send it to the Supreme Court?


[00:00:07] You can't referred to a senator directly by their name. Congressional redistricting. Separation of powers. Executive orders. The national security council.


[00:00:14] Civics, civics, civics, 101!


Virginia Prescott: [00:00:19] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of American democracy. If you're new to our show welcome welcome and even more welcome. If you'd like to have your questions answered by the pros. Leave us a message at 202- 798-6865. That's 202-798-6865, and you just might hear your voice on the air. You can also e-mail us at Civics101@NHPR.org. Today, voting rights. In the last episode of our series on the Reconstruction Amendments, we learned that the Constitution does not explicitly guarantee the right to vote to American citizens. But many Americans consider casting a ballot as the fundamental way to participate in our democracy. So who can vote and how did it get that way?


Virginia Prescott: [00:01:12] Victoria Bassetti is author of Electoral Dysfunction: a Survival Manual for American Voters. She's former chief counsel on a Senate Judiciary Committee and now a fellow at the Brennan Center for Justice at New York University.


[00:01:25] Victoria, great to have you with us.


Victoria Bassetti: [00:01:27] Thanks. It's a pleasure to be here.


Virginia Prescott: [00:01:29] What is the right to vote?


Victoria Bassetti: [00:01:32] There is no easy answer to it. And part of the reason there's no easy answer to it is it's not actually in the Constitution. When the constitution was drafted in 1787 the founders did not put a right to vote in the Constitution. In fact it didn't appear in the Constitution until 1868 and since then it's been probably one of the most contested rights or privileges or acts in our democracy. There's just no easy answer. I think most of us probably just think that the right to vote means we're a citizen of the United States.


[00:02:03] Therefore I have the right to walk into my polling place and cast my ballot for whoever I think should be president or representative or governor or whatever the matter might be. That's what we think it is. The courts and our Constitution have a somewhat different answer to that question. So when the, when the Constitution was being drafted one of the reasons why establishing the right to vote as a bedrock federal system wasn't so top of mind is because at the time there was no direct vote for president of the United States or even direct vote for senators so the voters didn't vote for president. They voted for electors who voted for the president. And that actually stays to this day. Even today, you don't vote for president. You vote for electors who vote for president.


Virginia Prescott: [00:02:53] Well let's examine that a little. Who was able to vote at the time of the writing of the Constitution?


Victoria Bassetti: [00:03:00] It was completely scattershot at the time that the Constitution was written in 1787, it's important to remember that our republic, our our country, was well along in terms of founding. Many of the original colonies had already written their own individual state constitutions and so the states had each individually created a system or a framework whereby the vote was cast. In Massachusetts for example blacks could vote. In New Jersey, women could vote -- certain women with a certain amount of money could vote. In some states, Catholics were barred from voting or Jews were barred from voting. So it was a complete hodgepodge. In general across the board, you can say when the Constitution was written and during the course of the kind of founding of the republic the overall perspective is white men with money or property can vote but there beneath that top line, sort of headline of who can vote, there are all sorts of little individual situations where select other groups could vote.


Virginia Prescott: [00:04:09] Who can and cannot vote in the United States today?


Victoria Bassetti: [00:04:14] In general across the board any citizen of the United States over the age of 18 can vote. There are a few notable exceptions to it. For example in many states felons and people who are in prison cannot vote. But again the hodgepodge nature of the way the franchise is defined means that there are exceptions to this. For example in Maine people who are convicted of a felony are allowed to vote even while they're in prison. In contrast in Florida if you've got a felony conviction ever on your record you're pretty much barred for life from ever being able to vote again.


[00:04:53] There are few exceptions of course. The final kind of major if you're a qualifier for who can vote is a residency requirement. So I'm a resident of the state of New York. I'm only allowed to vote in New York. I can't just hop on a plane and you know fly to Indiana and vote there if I feel like it. So the general rule is anyone over the age of 18 who is a citizen and is a resident of the venue in which they wish to vote can vote. You also have to register. That's the other little caveat.


Virginia Prescott: [00:05:25] So states did, as you mentioned, some of them did allow free black men to vote at certain periods. Some did allow women to vote at periods. But can you give us a sort of broader stroke look at American history. How that changed. Who gained or lost the right to vote?


Victoria Bassetti: [00:05:41] Yeah you know the American history of the right to vote is not a steady progress towards the point where we have current universal suffrage. It it ebbed and flowed. There were moments of time in American history where suffrage and the right to vote was expanded and more people were brought into the fold. And then there were moments where of course it was, it was, we were pulled back on it. In general in the decades after the Constitution was ratified, so in the early 19th century, there was an expansion of the right to vote. The property requirements were dropped. Interesting side note, in... That was not something that came about easily. In Rhode Island, there was actual rebellion on the street with people grabbing guns and cannons and using it to fight for an expanded franchise. Martial law was declared in Rhode Island over whether or not the franchise would be expanded to working men, if you will. But even while there was that expansion going on there was also kind of some contraction going on. So where women had once had the right to vote it was taken away. So in that kind of period after ratification and before the Civil War, you can say generally that more white men were brought into the fold but anyone else, who was you know African-American or a woman, were were kind of slowly pulled out of the fold. And the story for Native Americans is even more complex.


[00:07:17] But in general Native Americans were denied systematically the right to vote before the Civil War. And then the Civil War marks a really major turning point in the history of voting in America. The phrase "the right to vote" enters the Constitution for the first time in 1868.


[00:07:39] It's never been there before. Everyone sort of thinks oh, the right to vote it must be in the Constitution. That phrase doesn't appear until then.


[00:07:46] Not too long after the 15th Amendment passes. And that's the first time in American history when we think of as the right to vote is actually contemplated and spoken of by the Congress and by our nation. And then the 15th Amendment says the right to vote shall not be abridged on account of race. And so all in one fell swoop, African-Americans were enfranchised. But not Native Americans. Not women. And although it said you've got the, African-Americans had the right to vote, you can't deny the right to vote on account of race, states sort of scratch their head and said well I can't deny it on account of race. But how about if I deny it on account of you're not literate? Or on account of you can't pay a poll tax? Or on account of you've previously been convicted of a felony? So it left the you know, it left the room open for a bunch of other clever ways to keep people from voting, and in the wake of the Civil War, there was this flowering, kind of a negative flowering, but a flowering of creative thinking on ways to deny African-Americans the right to vote.


Virginia Prescott: [00:08:55] And then of course in 1920, the 19th Amendment. Women able to vote.


Victoria Bassetti: [00:09:00] Yes in fact what's really interesting about the 19th Amendment is that even before the 19th Amendment, there were a bunch of states which had begun allowing women to vote in local elections. So Wyoming for example was, allowed women to vote. And there's this really wonderful story, I'm not entirely sure, it might be apocryphal, where when Wyoming was applying for statehood, the Congress sent Wyoming a note back that said, you know we'll, we'll let Wyoming become a state in the United States. But you have to get rid of that provision that allows women to vote. And Wyoming wrote back and said: we come in with our women or not at all. And so Wyoming kind of held the line and said no. Women've got, women are going to vote in Wyoming. So in a lot of states, women were allowed to vote for, say, the State Board of Education, or the governor, or you know, small kind of things. And what had happened by the time the 19th Amendment passed is there were a lot of states that had kind of experimented with allowing women to vote. The other important thing to remember: it happened after Prohibition had already passed. So to many people who were opposed to giving women the right to vote, they were opposed because they viewed women as a powerful force against drink.


Virginia Prescott: [00:10:18] This was they led the Temperance Movement, for the most part.


Victoria Bassetti: [00:10:21] Exactly. And this nation, having instituted Prohibition, the great political battle where women were the swing vote was over. And it was that that sort of neutral ground that allowed the, the amendment to pass.


Virginia Prescott: [00:10:45] Some states do have the right to vote written explicitly into their constitutions. Others do not. How does it change things when the people's right to vote is written down, and when it isn't?


Victoria Bassetti: [00:10:58] Yes it's it's extraordinary. So you know Missouri has a right to vote written in its constitution. New Hampshire has the right to vote written in its constitution. And each of them has the right to vote written in their constitution in a slightly different way. What it means is when the state, Missouri state or New Hampshire or Wisconsin as the case might be, adopts a new law requiring either, you know, voter ID or requiring proof of citizenship before you can register etc., rather than suing in federal court and attempting to kind of navigate the the the strange pathways of the right to vote under federal law, you can go straight to state court. Straight to the Missouri Supreme Court and the Missouri Supreme Court will say hey you know what? We've got our Constitution and our Constitution says you've got a right to vote. So under our Constitution this provision is unconstitutional. On the other hand if you were to go to federal court and try to make that argument the Federal Court would go like: oh, there's no right to vote under the federal law. So in order for us to kind of analyze this we need to look at the following, you know, 15 factors. Weigh all of these things. Not clear. OK. Provision goes through. So, it's a, you know it's a it's really extraordinary.


[00:12:14] There are a lot of states where you know you've got a strong right to vote and any efforts to burden that right to vote are going to get struck down by your state supreme court. If you don't live in one of those states, you've got to go to federal court and then who knows what's going to happen.


Virginia Prescott: [00:12:30] Why not change the system and organize it on a federal level? I mean would that be more fair or at least more uniform?


Victoria Bassetti: [00:12:40] You know it's interesting because obviously of many states or many other countries do have this sort of nationalized voting administration system. Canada does. Mexico does. But we have first of all a lot of affection in America for our local voting systems and for our states as a way of doing it. So there's a reluctance to kind of create giant new federal bureaucracies in America. Combined with the fact that we have affection for our local state customs and practices. So as appealing as it sounds to create a federal national voting system, it's not something that is instinctively something that most Americans would nod their heads at. It's very, it's also very complicated. You and I, most people tend to think of the big federal elections, right? We think of the presidential election or the congressional elections that happen every two years. But underneath it there's a huge number of local elections that happen all the time. It's kind of hard to imagine that the federal government would come in and oversee Cincinnati's school board election. It only makes sense for Cincinnati and the state of Ohio to administer those Ohio elections. So it makes sense to have the sort of hybrid federal state system.


Virginia Prescott: [00:14:05] What do you think Victoria are the greatest threats to the right to vote today?


Victoria Bassetti: [00:14:11] I think that the greatest threats stem from the fact that voting is a means to power for people and people in power tend to want to maintain it.


[00:14:25] Which means that power is brought to bear on voting. So when you combine that instinct to control voting with the increasing ability of politicians and political parties to understand the data and the details and the minutiae of voter groups; their increasing ability to kind of slice and dice districts, slice and dice voting blocs, you now have the ability to use voter identification or set different polling places or polling times when people are allowed to vote or voter registration requirements. And now you have state legislators who are able to select their voters, as a court in North Carolina said, with surgical precision.


Virginia Prescott: [00:15:21] Victoria Bassetti, thank you very much for speaking with us.


Victoria Bassetti: [00:15:24] Thank you.


Virginia Prescott: [00:15:28] Victoria Bassetti. She's author of Electoral Dysfunction: A Survival Manual for American Voters. She's now fellow at the Brennan Center for Justice at NYU.


Virginia Prescott: [00:15:39] That is a wrap for today. But we want to let you know that our episode on DACA is featured this week on NPR One. Here's one way to participate in civic life. You can listen to that and all of our shows in the NPR One app. Download the app and follow Civics 101 to make sure you hear all of our episodes. And tell us you love us by hitting the "interesting" button on your screen. This episode was produced by Justine Paradis. Music from Broke for Free. I'm Virginia Prescott. Civics 101 is a production of New Hampshire Public Radio.





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Episode 103: The Fifteenth Amendment

After the Civil War, Congress passed a bundle of Amendments which came to be known as the Reconstruction Amendments. Their purpose was to address the mass racial inequality that plagued the still forming nation. But did they work? And are they still relevant today? Helping us unpack the last Reconstruction Amendment - the Fifteenth - is Khalilah Brown-Dean, Associate Professor of Political Science at Quinnipiac University.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.


Civics 101

Ep 103: Fifteenth Amendment


Virginia Prescott: [00:00:23] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works. We're finishing up our series on the Reconstruction Amendments. These are landmark amendments made after the Civil War the 13th 14th and now the 15th. This one meant to ensure the vote to citizens regardless of color or race. Khalilah Brown-Dean is Associate Professor of Political Science at Quinnipiac University and she's here to help us learn more. So what does the 15th Amendment actually say?


Khalilah Brown-Dean: [00:01:01] So at its core the 15th Amendment says that the right to vote cannot be denied on the basis of race or condition of previous servitude. And so we like to say that the 15th Amendment gave everyone the right to vote but at its core it only applied to black males. And so the 15th is the first time we see the word mail inserted in the Constitution.


Virginia Prescott: [00:01:25] So can you quickly just review the 13th was to abolish slavery 14th to grant citizenship to the freed slaves. Correct.


Khalilah Brown-Dean: [00:01:33] It did. So the 13th Amendment abolished slavery except for crimes and other punishments and the 14th Amendment really gave that teeth to say it's not just enough to allow people to now be free. What are the privileges that come with that freedom and for all Americans the 14th Amendment gave us equal protection under law as well as the due process clause. So the natural extension then was to have the 15th amendment that extended the franchise to black men.


Virginia Prescott: [00:02:06] This amendment was passed by Congress 1869 ratified 1870. What was the reaction to the amendment. It must not have gone over well in southern states.


Khalilah Brown-Dean: [00:02:19] It was a very divided nation of course but even across the south there was this tension this idea that Congress this national entity was going to force states to recognize not just the citizenship but access to the ballot of black men became very contentious. And so in response we start seeing these state constitutional conventions across the south. The 15th Amendment says we have to allow black men to vote. What can we do at the state level to really undermine that. And so you see 13 states within the next year year and a half having these conventions. How do we uphold the Constitution in theory while still limiting who has access to the ballot.


Virginia Prescott: [00:03:08] So what are some of the tactics that those states in their constitutions used to disenfranchise black voters?


Khalilah Brown-Dean: [00:03:16] Well there are strategies that were mostly familiar with things like the literacy test; so being asked to read a particular passage. Things like a poll tax; so having to pay fifty dollars in order to pursue registration. But it also meant that states started doing things like changing their criminal disenfranchisement laws are what we now commonly called felon disenfranchisement. So it meant in a state like Alabama if you beat your wife you would lose the ability to vote but if you kill your wife you could keep access to voting. And why was that? It was because state legislators thought there was a racial difference in who was going to commit those crimes. So things like breaking a water pipe, stealing edible meat became a felony offense that meant that black men could never vote in those states.


Virginia Prescott: [00:04:11] So we have these states setting up a lot of barriers to allow black men to vote. How about courts. Were any of those provisions challenged in the courts.


Khalilah Brown-Dean: [00:04:23] One of the real beauties I would say of democracy in this country is this concept of federalism. This division between what states can do, what courts can do and what the federal government can compel. And so you had black plaintiffs suing for their rights arguing that states were undermining their ability to vote. So you have cases saying look this state did not allow me to register because I am black. And even when it made it to the courts the courts would often get back to the states. And that's because the Constitution allows states to set the time place and manner of elections so for a very long time courts were indifferent to these claims of black plaintiffs and said even if we have a disproportionate or disparate impact on blacks being rejected from voting you cannot say the system itself is discriminatory because in theory it applies to whites as well.


Virginia Prescott: [00:05:29] But the second part of the amendment the 15th Amendment says Congress shall have the power to enforce this article by appropriate legislation. Still the states have more power than the federal government in this way?


Khalilah Brown-Dean: [00:05:42] States had more power then when it comes to voting and they still have more power. And the reason for that is because there is no affirmative constitutional right to vote in the United States. We talk about a right to vote but there is no language that says there is an undeniable constitutional right to vote. It's why we can deny the ballot to 16-year olds. It's why there are over 5 million people in the United States who are permanently barred from voting because of a past conviction. So allowing states to set those terms limits the scope of what Congress can do. And it means that Congress and citizens of the U.S. are at the mercy of the states.


Virginia Prescott: [00:06:28] How much did that fight for the right to vote even to register to vote have to do with starting their civil rights movement.


Khalilah Brown-Dean: [00:06:37] I want us to think about what it meant for a group of people coming out of brutal chattel slavery to say to assert our citizenship we want to be a part of this country and the way we believe we do that is to vote and to participate in the democratic process. That understanding that there was a gap between the principle and the practice of democracy was something that rested deeply in the souls of blacks and others at the time as well because many of the strategies that were targeting African-Americans also limited a number of white voters particularly poor whites living in the rural South. And so understanding that disconnect seeing the fact that people were literally being killed and threatened and maimed for simply trying to vote sparked what we now know as the civil rights movement. When you have a group of children marching in Birmingham, Alabama to affirm the importance of American democracy and they are met with violence. It sparked this movement that started with African-Americans but really connected with the American conscience across the country.


Virginia Prescott: [00:07:57] And these are some of the mass movement that led to the Voting Rights Act of 1965. This has been called the nation's most successful civil rights legislation. What did it do?


Khalilah Brown-Dean: [00:08:08] So the Voting Rights Act of 1965 came as really a culmination of multiple efforts of people saying let's have a grassroots movement let's use the tactics of non-violence of citizens to dramatize what's going on here in the south. Let's pursue the courts to do this. Let's push Congress to do this. And so eventually President Lyndon Johnson signs the Voting Rights Act of 1965 into law which essentially accomplish three key things. One, it struck down those restrictive strategies that were used in the south. But the important point is that those tactics in the south like the poll tax, the grandfather clause, originated in the north to keep white ethnic immigrants from voting and so the South borrowed from that the Voting Rights Act of 1965 struck down those provisions. The second key thing that it did is that it looked at rates of voter registration and turnout prior to 1965. And so for jurisdictions that had very low levels it meant that now the federal government would have oversight over those jurisdictions meaning that they could not make any change to their voting laws and requirements without having federal review and approval. Third removed having citizens being at the mercy of their state to plead their case. So states still now control the time place and manner of elections but the Voting Rights Act of 1965 was meant to put teeth in the enforcement of what the 15th Amendment promised.


Virginia Prescott: [00:09:58] So what were the results of this legislation in 1965 this historic bill; where more African-Americans voting and getting into office?


Khalilah Brown-Dean: [00:10:09] The Voting Rights Act of 1965 single-handedly transformed America's political landscape. We saw record numbers of African-Americans registering to vote of actually voting in elections and not just presidential elections but at the local and state level as well. So it meant that now blacks had a base and a foundation to be able to pressure political response and demand political change. It encouraged other groups to see voting as a means to express themselves as well. So we've seen increases in Latino voting. The Latinx community holding elected office. For Native American communities where many of the languages are oral languages that now is not a barrier for people to be able to vote. It encouraged Asian Americans because it protected ballot access for them as well. And so certainly we've seen differing rates in terms of how much voter participation has increased for certain groups over others. But the real question is about policy response. What do people get in return for their loyalty and their political participation. The Voting Rights Act of 1965 couldn't address that piece but it certainly forced politicians and political parties to reconsider their approach.


Virginia Prescott: [00:11:38] How about now. Over the last decade there have been a number of cases and practices that strip key parts of the Voting Rights Act. One of these cases Shelby County vs. Holder. Now this is in 2013. Why is this considered such an important case?


Khalilah Brown-Dean: [00:11:55] So Shelby County v. Holder comes out of Shelby County Alabama which was the site of the Bloody Sunday march in Selma Alabama in 1965 that saw a young student named John Lewis being beaten to the ground by a state trooper and suffering permanent brain damage. It really was what forced LBJ to take seriously the cause for voting rights. And so to have that county in Alabama pushed this to the U.S. Supreme Court against then Attorney General Eric Holder. The decision in 2013 essentially gutted the Voting Rights Act of 1965. It said that yes some racial tension may still exist in the country. Yes race may be a deciding factor for why some areas decide to change their voting laws but how do you prove it and how do you know it. And it's not just about impact according to this case it's about showing intent. So it struck down the pre-clearance requirement. That meant that counties like Harris County in Texas could not change their laws without getting federal approval by striking down the formula by striking down the impact of that. It dramatically weakened the Voting Rights Act of 1965. And so the 2016 presidential election was our first national election since the Voting Rights Act was gutted and we saw the electoral consequences of not having those protections in place not just for black voters but for all voters.


Virginia Prescott: [00:13:39] What would you say is the state of the 15th amendment today.


Khalilah Brown-Dean: [00:13:44] I would say that the state of the 15th Amendment is compromised and it's compromised for this very basic reason that we don't have an affirmative right to vote. We build so much of our view of American democracy. We fight to demand democracy in other parts of the world because we say that the vote is so central and essential. But if we truly believe that if that is to be more than American folklore then we need to have that constitutional right to vote that reinforces the 15th Amendment that allows people to know that their race, where they live in this country, their age, their political affiliation, their zip code, does not determine their access to democracy and to democracy's promise. So that's something that Congress needs to address but it's also something that states are grappling with everyday. There are major court cases right now about whether the state of Ohio can kick people off the voting rolls because they haven't voted in two years. And it makes it clear that democracy doesn't require us to participate, it creates the opportunity and the choice for us to do so.


Virginia Prescott: [00:15:05] Khalilah Brown-Dean thank you so much for speaking with us.


Khalilah Brown-Dean: [00:15:09] Thank you.


Virginia Prescott: [00:15:10] Khalilah Brown-Dean, Associate Professor of Political Science at Quinnipiac University and co-author of 50 years of the Voting Rights Act: The state of race and politics.



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Episode 102: The Fourteenth Amendment

Today, we continue our series on the Reconstruction amendments, the series of Constitutional amendments passed in the aftermath of the Civil War. Congress outlawed slavery with the Thirteenth Amendment, but freed slaves still were not legally citizens, were subject to discriminatory laws, and were not allowed to go to court.

The Fourteenth Amendment was intended to change all that, with some of the strongest civil-rights language in the Constitution. If you've heard of due process or equal protection under the law, you've heard of the Fourteenth. We talk to Ted Shaw, professor and director of the Center for Civil Rights at the University of North Carolina School of Law at Chapel Hill, and the former President of the NAACP Legal Defense Fund. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


Virginia Prescott: [00:00:00] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how democracy works. We got this question from one of the co-hosts of an excellent podcast about the Civil War called Uncivil.

Jack Hitt: [00:00:36] Hey Civics 101. This is Jack hit from the podcast just down the road, Uncivil. On our show we ransack the history of the Civil War and challenge the stories you grew up on. We've been listening to your show and we've got a request: right after the Civil War there was that whole bundle of constitutional amendments that Congress passed. We all know that were meant to fix the situation but did they actually do anything at the time? What about now? Are they working at all today

Virginia Prescott: [00:01:05] Jack is right on time for part two of our continuing series on the Reconstruction Amendments those three amendments to the constitution passed in the wake of the civil war. So after the 13th Amendment formally outlawed slavery came the 14th intended to grant citizenship and equal rights to people of African descent and laying out sweeping protections for all Americans at the federal and state level. Theodore Shaw is a civil rights lawyer at the University of North Carolina law school and he is here to walk us through the 14th Amendment which he says begins with the Dred Scott case.

Ted Shaw: [00:01:41] So in 1857 the Supreme Court decided Dred Scott versus Sanford and this was a case in which a slave was brought out of Missouri where he lived and toiled by his master who took him up to the Northwest Territory what's now the Minneapolis St. Paul area. And he then filed suit after that on behalf of himself and two children he and his wife had, and said that he was no longer bound by slavery because he had been taken away from a slave state and therefore freedom had attached to him.

[00:02:24] That case went to the Supreme Court and in 1857 the chief justice of the Supreme Court Roger Taney wrote an opinion which said that in fact he was not freed by reason of being taken out of a slave state. But not only that the decision went further and said that he could not sue because he wasn't a citizen of the United States. So as a matter of procedure he couldn't bring that suit in a federal court but also not only slaves but even free black people could not be citizens of the United States. So that's one of the cases we think of as the anti canon, the worst of the Supreme Court cases and even a civil war and the adoption of the 13th Amendment did not overturn that case. That's why a principal reason why the Constitution's 14th amendment was necessary in the aftermath of the civil war.

Virginia Prescott: [00:03:25] Well let's just acknowledge we're not going to be able to cover all of the intents and implications of the 14th Amendment in one sitting with you today. But there are two important and I'd say familiar rights that come from the 14th Amendment. This is due process and equal protection under the law. So let's start with due process. What does that say.

Ted Shaw: [00:03:45] Well due process is the principle which says that individuals can't be deprived of property of life and of their basic rights, liberty, without due process of law. In other words they have to have a notice and an opportunity be heard an opportunity to go to court and protect those rights. And so that's one of our basic bedrock principles that you cannot deprive people of life liberty or property without due process of law.

Virginia Prescott: [00:04:26] And how about equal protection clause. What does this actually mean.

Ted Shaw: [00:04:30] Well the Equal Protection Clause went further than anything that had been adopted in the Constitution before to say that no individual not only black people but no individual no person should be deprived of the equal protection of the laws. The idea being that people should not be discriminated against on the basis of religion race color or even gender although at that time the 14th amendment wasn't seen to protect all of those things initially it protected against racial discrimination but also left open other forms of discrimination for protection.

Virginia Prescott: [00:05:14] Citizenship to all is another clause to all persons born or naturalized in the U.S. are subject to the jurisdiction thereof. Privileges and immunities [clause], this is about no state shall make and enforce any law which abridges the privileges and immunities of citizens of the United States. So let me just clarify federal law now applied even within the states when it came to due process and equal protection under the law. How did the Southern states respond to the provisions of the 14th Amendment especially the privileges and immunities clause meaning that they were all subject to this federal law

Ted Shaw: [00:05:54] There were still attempts to keep African-Americans in a condition that was as close to slavery as possible. And that battle continued all the way through the Reconstruction era until the end of the 19th century. And then of course the era of Jim Crow segregation until the 20th century and we didn't begin to really resolve these questions until the civil rights era the modern civil rights era of the 1950s and 60s.

[00:06:27] And so the shadow of slavery continued to exist with respect to the rights of African-Americans right on up through the end of the 19th century and you finally got Plessy vs. Ferguson in which separate but equal was sanctioned as constitutional. And that didn't turn around until the Supreme Court's 1954 decision. And Brown vs. Board of Education. So the struggle after the Civil War in many ways was a continuation of a struggle against slavery in another form not technically slavery but certainly inequality that was being foisted upon African-Americans and other people of color.

Virginia Prescott: [00:07:23] So what are the some of the examples or practices that were struck down under the Equal Protection Clause?

Ted Shaw: [00:07:30] The practices that were being challenged were practices such as segregation in public accommodations. The same thing that happened in the 1960s. The question of whether or not theaters and trolley cars and trains and steam boats could be segregated. There were in effect arguments being made that black people simply didn't have those rights in spite of the 14th Amendment. They didn't have to be treated exactly the same as white people did. They didn't have access to all of the places that white people lived and carried out their businesses and socialize et cetera. There were there was a question about whether or not the right to vote was a civil right or a political right.

[00:08:24] The 15th Amendment was supposed to resolve that. And yet the right to vote was denied to many individuals and so these struggles continued all the way through the second half of the 19th century. And you know some years ago I was I gave a lift from an airport the Detroit airport to Ann Arbor to two young man from Wales and we got into a discussion in which I asked him how he liked the United States and whether he was struck by anything and he said you know I said the thing that struck me more than anything else is how much race still matters. He said it's kind of like a civil war that you hold under your breath and I never forgot that.

[00:09:13] And I think that in some ways one way or another we've been holding a civil war under our breath ever since the end of the Civil War of the eighteen 60s. Some of it is not under our breath, some of it is right up front.

Virginia Prescott: [00:09:31] Let's bring us to the 20th century and 21st century. You served as president of the NAACP Legal Defense Fund. You've litigated civil rights cases on everything: Education voting rights police misconduct. How did the 14th Amendment figure into those kind of cases and in more contemporary cases after the Civil Rights Movement?

Ted Shaw: [00:09:51] The 14th Amendment was the central driving constitutional provision which we and others use to fight against racial discrimination to fight against discrimination on the basis of national origin or other markers of who and what we are as individuals. But for the Legal Defense Fund the 14th Amendment was the most important constitutional provision.

[00:10:26] And there's a an enforcement clause of the 14th Amendment Section 5 which was the basis for Congress passing legislation civil rights laws that prohibit discrimination. So if we were filings school desegregation cases for example we would we would say in our complaint that the school system the school board treated black students unequally in violation of the 14th Amendment's equal protection clause.

[00:11:02] So the 14th Amendment is the crown jewel in many ways of the Constitution when it comes to notions of fairness and justice and equality. And for those of us who worked as lawyers on behalf of people who were claiming their constitutional right to be treated fairly, the 14th Amendment is sacred and as it should be for all Americans.

Virginia Prescott: [00:11:30] Why is the 14th Amendment so often called upon pertaining to very sexual or intimate personal matters. There is the right to privacy in the context of a ban on contraceptives, interracial couples to marry, right to abortion, the right to engage in intimate sexual contact of same sex couples. Why Fourteenth Amendment cases?

Ted Shaw: [00:11:52] When we think about the right to privacy for the most part we're thinking about the First Amendment. We're not really thinking about the 14th Amendment but you know the 14th Amendment is being used when it comes to sexuality because people are saying people who are LGBT that they are being discriminated against treated unfairly by individuals or for that matter by the state. We're talking about the 14th Amendment because the 14th Amendment applies to governmental action not to individuals.

[00:12:29] Now that claim would have never been brought in the 19th century and for that matter through much of the 20th century. But we have as a society grown and come to different understandings although that's still a work in process and there are a lot of people who say that the 14th Amendment shouldn't recognize those kinds of rights but we are coming to a different and broader understanding of what the 14th Amendment means to people on the basis of who and what they are. And we're asking the question whether they should be treated differently.

[00:13:11] And frankly I have to tell you there are a lot of black folks who in the first instance when it came to extending antidiscrimination provisions to LGBT people said no wait a minute the 14th Amendment is about our issues, our rights, about racial discrimination and our history of that and felt like it should not be extended. Well you know I think we find people even in the African-American community who are conservative when it comes to the rights of LGBT people and same sex marriage. But there's also a recognition that the principles that are applied to how people should be treated on the basis of who and what they are go beyond simply the rights of African-Americans the right and beyond race.

[00:14:11] The 14th amendment although it was called into existence to address the discrimination that was visited upon black people who have been held in slavery, the 14th Amendment is broader than that. As important as all those issues are and continue to be and I fight for them my whole life has been. I also acknowledge and recognize that the 14th Amendment is larger than just those issues.

Virginia Prescott: [00:14:39] Let's get to Jack Hitt's question. Is it working now?

Ted Shaw: [00:14:45] The answer to the question of whether the 14th Amendment is working now is not an easy one. It's a complicated one because some people think that the 14th Amendment after it was enacted or for that matter of the 15th Amendment that all of a sudden everything is cured. You know people's rights are guaranteed and therefore they are protected. And that's never true.

[00:15:12] There are people who unfortunately and sadly and tragically who tried to to treat people in ways that they wouldn't want to be treated in ways that are fundamentally unfair because of who and what they are. That's still true today. You know the battles we're having about you know sexual orientation and identity in that way that's a 14th Amendment fight these days as well as the the issues that are being raised and the Black Lives Matter movement, women -- their rights to be treated fairly equal pay etc. and in many respects we all look to the 14th Amendment and each generation even those who are in grade school now they are going to have to decide whether or not the 14th amendment will be enforced to protect the rights of their generation their peers.

[00:16:18] I mean the law is there, the Constitution is there but you know it it has to be enforced in order for it to mean something. So is it working today? It's working is people make it work. The Constitution standing by itself doesn't protect anyone unless we guarantee that it does, we make it protect people, we go to court and we fight for our rights and the rights of others.

[00:16:49] Ted thank you so very much for your time.

[00:16:52] Thank you, it's an honor to be with you. And I say to all of the young people who are hearing this: This is your constitution.


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Episode 101: The Thirteenth Amendment

After the Civil War, Congress passed a bundle of Amendments which came to be known as the Reconstruction Amendments. Their purpose was to address the mass racial inequality that plagued the still forming nation. But did they work? And are they still relevant today? Helping us unpack the first of these Amendments - the Thirteenth - is Maria Ontiveros, a Law Professor at the University of San Francisco and Thirteenth Amendment scholar.  

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


Ep 101: Thirteenth Amendment


This transcript was generated by an automated transcription service and may contain errors.


Virginia Prescott: [00:00:23] I’m Virginia Prescott and this is Civics 101 a podcast refresher course on the basics of how our democracy works. On today's show and for the next two we're going to be digging into a series of questions asked by a fellow podcaster.


Jack Hitt: [00:00:37] This is Jack it from the podcast just down the road, Uncivil. On our show we ransacked the history of the Civil War and the stories that grew up on. We've been listening to your show so we've got a request. Right after the Civil War there was that whole bundle of constitutional amendments that Congress passed. We all know that were meant to fix the situation but did they actually do anything at the time. What about now? Are they working at all today? Thanks Civics 101. Keep up the good work.


Virginia Prescott: [00:01:07] The bundle that Jack is talking about are known as the Reconstruction Amendments: the 13th, 14th and 15th. And we begin our series today with Maria Ontiveros a law professor at the University of San Francisco and 13th Amendment scholar. And Maria welcome to civics 101.


Maria Ontiveros: [00:01:24] Thank you so much for having me. I'm looking forward to our discussion today.


Virginia Prescott: [00:01:27] Well tell us what the 13th amendment actually says


Maria Ontiveros: [00:01:30] The 13th Amendment was passed in 1865. It was the first of those three Reconstruction amendments that you mentioned. It says that neither slavery nor involuntary servitude except as punishment for a crime shall exist in the United States. And I think one of the significant things about it is that it was passed first and separately from the other two amendments. The 14th Amendment did not come into play until late 1868 and the 15th Amendment was not ratified until 1870. So it is something that has independent weight and that had to be dealt with on its own for a number of years before the rest of the Reconstruction amendments were passed.


Virginia Prescott: [00:02:17] This is not the same thing as President Lincoln's emancipation proclamation made a couple of years earlier Correct?


Maria Ontiveros: [00:02:24] Correct. The Emancipation Proclamation was passed in 1863. And all that did was to free the slaves in the ten states that were still in rebellion during the Civil War. Slaves in the Border States and in many other places throughout the United States were still in bondage. So it wasn't until 1865 that slavery and involuntary servitude was outlawed throughout the United States. Interestingly in 1787 there had been an abolition of slavery and prohibition of slavery through something called the Northwest Ordinance and that dealt with the territories that were going to become the states around Ohio and Pennsylvania and the rest of the states around the Great Lakes.


Virginia Prescott: [00:03:16] Now I'd love to look at that a little bit more but I'd also like to look at how the origins of the 13th Amendment. I mean we've done an episode on constitutional amendments a lot of work you have to get a lot of people on board. And states one by one. How did the 13th Amendment get passed through Congress and ultimately ratified?


Maria Ontiveros: [00:03:37] Well there were a lot of interests involved in having the 13th amendment ratified and it came at a time where the civil war had waned. You had reconstruction congresses in the freed states. You had many people who were interested in ending slavery from a moral perspective who were very concerned about the abuse of human rights and civil rights. You also on the other hand had a group of people who were concerned about the impact of slavery on the economic rights and economic welfare of working class white citizens. You can imagine that if people have to work for free then that's very difficult to compete with. So you had people arguing to abolish slavery both from a moral perspective and also for a way to protect the economic rights of freed workers because if they have to compete against people who can't quit and who have to work for free then it is very difficult for them to be able to exercise their rights and be treated decently within their jobs.


Virginia Prescott: [00:04:56] You mentioned the Reconstruction Congress. Can you tell us what it is in the south following the Civil War?


Maria Ontiveros: [00:05:03] There were congresses within each state that took power but it was not entirely clear how legitimate they were and so many of those Congresses would go ahead and pass laws or ratify amendments. But it was unclear whether or not they were duly elected and had the authority to do so.


Virginia Prescott: [00:05:28] Outside of the realm of this reconstruction Congress the economy of the Southern states was in tatters. The cost of the war had been huge and there was the loss of all that free labor. So what kind of concessions were made to southern states and passing this amendment.


Maria Ontiveros: [00:05:46] Well some of the concessions were really unclear about how enforceable they would be. Many of the states when they ratified had state wide declarations that said that the federal government still could not come in and legislate about what would happen with regard to the freed slaves. So passage was secured in those states with the idea that well we know that things are going to have to change but we should still be able to have control over them. And the other implied concession that was made was that even if slaves were freed. That doesn't mean that that group of people had to be treated equally. Some of the early versions of the 13th Amendment focused much more on equality and the idea that all people had to be treated equally. But Southern states even in the in the writing and the passage of the amendment before the ratification phase were not willing to vote for that type of an amendment. And that's why the 13th Amendment narrowed to focus on getting rid of slavery and involuntary servitude instead of really being a pledge of equality between these groups.


Virginia Prescott: [00:07:13] What then was the reaction by the Southern states suddenly four million freed people who have been formerly property?


Maria Ontiveros: [00:07:20] Their reaction was shock dismay and as you might imagine attempts to reconfigure a lot of the same advantages that the Southern states had before through a system of slavery without calling it slavery. So in the southern states not going to be any real socially equality between freed slaves and whites blacks were still very much restricted in terms of private interactions with whites in terms of where they could go and what they could do. What many states did was to pass codes that for instance created curfews prohibited loitering and restricted other rights that blacks had the impact of that was that when blacks violated these black codes or even allegedly violated these black codes they ended up in the criminal justice system then through a system known as debt bondage or debt peonage and through the use of chain gangs. You ended up with a lot of the freed slaves doing the same agricultural work and doing a lot of other manual labor that they had done before as slaves. They were now doing as part of the criminal justice system.


Virginia Prescott: [00:09:02] This is a charge that more than 150 years later is being made by I'm thinking of Ava DuVernay the Oscar nominated documentary 13. Michelle Alexander's book is called The New Jim Crow charging that mass incarceration of American African-American men really does violate the 13th amendment. What's behind that case?


Maria Ontiveros: [00:09:25] Exactly. The justice we talked about before and we will hopefully talk about in a few moments about how human trafficking and different labor cases are currently being brought as part of the involuntary servitude prong of the 13th amendment. There is currently a lot of investigation into the use of prisons and mass incarceration as a way to get a lot of free labor from African-Americans and other people of color especially men however. Also a lot of African-American and Latino and other women of color are also caught up in this mass incarceration process where they are in prison doing labor that profits. Other people especially the owners of private prisons which we have an extensive system of within the United States. And also when these people are released from prison it is very difficult for them to get new jobs because of their records and they often fall back into the prison system and this cycle of going in and out of prison is very much like the cycle of going in and out of debt bondage. That was very prevalent in the 1880s to 1920s in the United States.


Virginia Prescott: [00:11:03] That is an ongoing discussion. Mass incarceration continuing and effect to be a system of slavery. But there's another argument that surfaces in the present that people say you know slavery happened in the past. Why are we treating it or reviving it like a contemporary issue. What would your counterargument be to that?


Maria Ontiveros: [00:11:25] There's actually a good counterargument to that that comes from the U.S. Supreme Court in the 1960s as there was a growth of the civil rights movement. That was really focusing more on the civil rights aspect of slavery and the citizenship rights aspects of slavery as opposed to the labor rights aspects. There were a variety of cases that were brought that said that a lot of the prohibitions on private matters or a lot of the race discrimination in private matters had to be abolished because this was reminiscent of slavery and the 14th amendment at that time did not reach discrimination in private matters. It only prohibited discrimination that was undertaken by the government. So in 1960 you had cases brought including one called Jones versus Mayer. And in that case there was an African-American couple that was not allowed to rent or purchase real estate. And the Supreme Court in that case said that the prohibition on the ability to own property is quote unquote a badge an incident of slavery and that the 13th Amendment was meant not just to get rid of slavery and involuntary servitude but also meant to get at the Badges and incidence of slavery. And by that what they meant were the repercussions and the ripples of slavery that continue to exist today. And certainly something like refusing to rent to someone because they're African-American they said was part and parcel of that. More recently advocates have said things like racial profiling, police practice abuses are also badges and incidents of slavery because they are a way of replicating the system that was there before.


Virginia Prescott: [00:13:37] I want to pick up on that and Jack's question about whether these amendments which were supposed to fix things in the reconstruction era are working today. And this is your area of scholarship organized labor and immigration and the 13th Amendment. So what would be the takeaway of how the 13th Amendment is relevant to these contemporary issues?


Maria Ontiveros: [00:14:03] The important thing to take away from how that's related today is that we have almost 20 million undocumented people in the United States whose labor rights human rights civil rights and citizenship rights are being prescribed in the same way that slavery victims were in the 1850s and 60s and that we have a group of people who are seeing very similar treatment and lacking the same type of power that slaves did before. So the 13th Amendment is a way to think about the treatment of undocumented workers as a human rights issue a labor rights issue a civil rights issue not just a citizenship rights issue.


Virginia Prescott: [00:14:53] Maria Ontiveros thank you so much for speaking with us.


Maria Ontiveros: [00:14:57] Thanks for having me.


Virginia Prescott: [00:15:02] Maria Ontiveros is a professor of law at the University of San Francisco. She focuses on employment law and an emphasis on immigrant workers rights.


CIVICS-101 small.jpg

Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Episode 100: DACA

What exactly is DACA, or the Deferred Action for Childhood Arrivals? Is it the same as the Dream Act? What will happen if and when it expires?  How do DACA recipients effect the economy?  Today, an explainer and brief history of DACA. Our guest is Sarah Gonzalez, youth and families reporter for WNYC.  

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.


Civics 101

Episode 100: DACA


Virginia Prescott: [00:00:00] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works. On March 5th, an immigration program known as DACA, short for Deferred Action for Childhood Arrivals, will officially expire. President Trump announced his decision to end DACA in September of last year and called on Congress to vote on a bill to reinstate the program before it expires. Sara Gonzales is catching us up on the program and what its cancellation could mean for U.S. immigration. She covers youth and families For WNYC in New York, and Sara, a hearty welcome to Civics 101.


Sarah Gonzalez: [00:01:00] Thank you.


Virginia Prescott: [00:01:00] So first of all what is DACA and how does it work?


Sarah Gonzalez: [00:01:04] So DACA is an acronym. It stands for Deferred Action for Childhood Arrivals. So basically back in 2012 the Obama administration said that it would temporarily defer the deportation of certain undocumented young people who were brought to the United States by their parents when they were young children. So it applied to teens who arrived in the U.S. under the age of 16. They had to have lived in the U.S. for at least five years at the time when Obama made that announcement. They had to be in school or high school graduates or military veterans in good standing and they can't have a criminal record. So at the time you also couldn't be over the age of 30 if you qualify. But Obama later lifted that age cap. But the idea was basically that these young people were brought to the U.S. by their parents when they were really young, like three months old or four years old, or 7 or 13 years old. And Obama said you know we shouldn't punish these young people who didn't have a say in how they got here. So he said that these kids would no longer face deportation temporarily for two years at a time until Congress passed real immigration reform.


[00:02:11] So the most significant thing that DACA offered these young people who are known as Dreamers by the way is a work permit. DACA gave them a two year work permit that they could renew every two years, and they could get a driver's license or an ID and they could travel abroad so they could leave the country and be guaranteed admission back into the United States even if they're undocumented.


Virginia Prescott: [00:02:35] You said a couple of key things there that we'll dig into... executive action and "dreamers"... is DACA the same as the Dream Act?


Sarah Gonzalez: [00:02:44] So DACA kind of stems from the DREAM Act. So let's start back in 2001. In 2001, that was the first time that this thing called the DREAM Act was introduced. It was a bipartisan bill that was going to create a path to citizenship or a path to some form of legal status for kids that we're talking about these kids who were brought to the United States by their parents. So the DREAM Act is also an acronym and it stands for the Development Relief and Education for Alien Minors Act. And this has been reintroduced a couple of times but it has repeatedly failed. So let's fast forward to 2008. As a presidential candidate Obama promised that he was going to introduce comprehensive immigration reform in his first year in office. But then he didn't introduce this legislation. He focused instead on health care and the economy which you know at the time we were right at the height of the recession. So in 2010 Democrats lost control of Congress and Senate Democrats were five votes short of the 60 that they needed to pass the DREAM Act. And when that happened that's sort of when, people referred to that time as the end of comprehensive immigration reform that's when it felt like it was dead for a very long time. So then after that Obama decides you know he's going to introduce, he's going to use his power, his executive action power, to kind of keep his promise. I guess that he made on the campaign trail, to provide these young people with some kind of path to citizenship.


[00:04:18] And so that's when he introduces deferred action - DACA - at the time about 740,000 young people were going to be eligible as of today about 800,000 young people have benefited from this program. DACA is sort of the temporary fix to the DREAM Act which still has not passed.


Virginia Prescott: [00:04:38] All right. So you mentioned you have to be under 16 when you arrived in the U.S., clean criminal record must be in high school college or military. Do you know where, do we know where most people are coming from who are now eligible for DACA.


Sarah Gonzalez: [00:04:53] Yes. So as far as where they are and where they're coming from the biggest percentage of DACA recipients live in California. It's about 30 percent live in California. Texas is the next biggest or the next biggest group. About 15 percent live in Texas. And then after that it's Illinois and New York. Those are the the biggest states with DACA recipients in terms of where they're coming from. Most of them were born in Mexico or Central or South America. So about 650,000 of them come from that area. But then there's like 18,000 who were born in Asia and 5,000 who were born in Europe. So they come from all over the place, the Caribbean Africa.


[00:05:34] And in terms of what they do. You know DACA recipients are teachers, they're public school teachers, they're paramedics who, you know help save people's lives. Their lawyers, they're sort of everyone and they're everywhere they have work permits so they can work in any field. And this by the way is the big point of contention among Republicans, not necessarily Republican lawmakers, but Republican voters. Many don't want young people to be able to work lawfully in the United States. Groups that have that want tighter control on illegal and legal immigration, they want DACA because that will take away their work permits. That's their big thing. And you know usually when I interview some of these conservative groups and think tanks and voters, if you ask, "why? Why do you care so much that young people lose their work permits. The answer is sort of. They're undocumented and they shouldn't be allowed to work here. But the thinking is really that if they lose their work permits all of these people will voluntarily leave the United States.


Virginia Prescott: [00:06:38] Well let me let me ask you about that because the attorney general Jeff Sessions said in September that DACA recipients take jobs from people in the U.S. What kind of data did he have to back that up?


Sarah Gonzalez: [00:06:49] I guess it's easy to if you hear that immigrants, undocumented immigrants are able to work in the United States, the natural thing to think I think is that they must be taking American jobs, but economists say that there isn't really evidence to back up that that has happened that they're taking these American jobs en masse. I think you have to keep in mind that the young people who have DACA permit tend to be pretty well educated so they're kind of, a way to think about it is that they're kind of closer in line to people from other countries who come to the U.S. as high skilled workers on immigrant visas, that are called H1B visas, so those visas go to people from other countries because we don't have enough people with the skills that they have here at home.


Virginia Prescott: [00:07:35] What effects do economists think that DACA will have on the future of the American economy?


[00:07:41] As far as I can tell you know the DACA program is pretty popular among most Americans including economists. There is no evidence as far as I can tell that this has hurt the economy and in fact there is a real concern that if for some reason all of these young people were who were you know educated in the United States and have been benefiting to our economy that if they left we we've sort of be missing out.


[00:08:07] I think one of the misconceptions is that these young people that undocumented immigrants have been like taking, you know so many public resources. But the reality is is that you know they were getting free public education if they were in the public school system, but they couldn't apply for health insurance or social security or Medicaid or Medicare. You know people think that they're getting all of these things and the reality is is that they're not they're not allowed to. You need a social security number in order to reap Social Security benefits. And so what DACA did is it made these young people who or allowed these young people who were maybe like working under the table to pay taxes and pay for health insurance.


Virginia Prescott: [00:08:53] Sarah, you mentioned initially that this is about deferring deportation, and giving them a reprieve for two years. So do people have to go and sign up every two years and be on the record?


Sarah Gonzalez: [00:09:04] Yes. So every two years they have to renew. I mean it could be less than that but that's the average and the government just sort of checks in on them makes sure they're you know still law abiding people. And when Obama left office and Trump came into office there was this real concern that you know the federal government had all of these people, has all of these people's information they know where they live where they work where they go to school they know where their parents live and work or go to school. I mean they have all of their information. And originally when Obama introduced deferred action you know people were scared to come forward. They were going to have to raise their hand and tell the government hey I'm here undocumented. And one of the promises was that the federal government would not use their information to deport them. And so slowly people started signing up for it. And then when Trump gets in office there was this real fear that that immigration agents were going to start issuing letters of deportation to all of these people.


Virginia Prescott: [00:10:08] Is there a path to citizenship for DACA recipients.


Sarah Gonzalez: [00:10:12] No. No it is, so all it does is say you can live in the United States without fear of being deported unless you commit a crime in which case you absolutely will get deported. And you can work legally.


Virginia Prescott: [00:10:27] Does this program as it stands give people confidence about building a future here or does it just buy them some time?


Sarah Gonzalez: [00:10:36] It bought them time. That's that's the main thing that it did. It bought them time and it helped it enabled them to as Obama said you know come out of the shadows. They started at least I guess admitting that they were undocumented because they knew that they wouldn't be. They didn't have to be fearful of deportation. One of the things you know when I interview families who are in this situation and a lot of these families are have mixed status right like the dad will be undocumented. The mom will be a U.S. citizen or a legal permanent resident. One of the daughters will have DACA, deferred action. And then one of the sons was born and raised in the United States and is a U.S. citizen. You know these are like really hard conversations for families because the parents feel really guilty like they did this to their kids. They brought them into the United States. And I spoke to one dad recently and he said you know I feel like I cut off my daughter's wings. You know she's on her second masters and she's fearful that you know she might not be able to ever use it in the United States if this program goes away.


Virginia Prescott: [00:11:42] You talk a little bit about the Republican opposition to this program, have they proposed an alternative?


Sarah Gonzalez: [00:11:48] I think everyone, Republicans and Democrats seem to agree at this point that they do want a path to citizenship for young people. But the issue is what do they give up in exchange for this path to citizenship. So Republicans say you know, they're willing to give the dreamers the DACA recipients this path to status only if this is what Trump wants. Only if taxpayers pay for Trump's border wall. If Congress approves the border wall which Homeland Security says that would cost twenty one billion dollars. A study by MIT says that could cost closer to thirty eight billion dollars.


[00:12:27] So they're sort of using this border wall as a bargaining chip and they say in addition to that they want more money for enforcement efforts to remove undocumented people from the United States, create more immigration detention centers with more beds to house more undocumented people, and the dreamers, the DACA recipients, they're sort of like do not use us as a bargaining chip. You know they don't want to deport their parents and their aunts and uncles in exchange for them to get a path to citizenship. And so that was that was one of the problems they had with the original Dream Act. And so what they're asking Democratic lawmakers for right now is for what they call a clean Dream Act which is a path to citizenship that doesn't result in you know the deportation of their parents. And that doesn't result in a border wall.


Virginia Prescott: [00:13:19] Polls do show that DACA is popular among most Americans. Will dreamers be forced to leave if DACA ends?


Sarah Gonzalez: [00:13:29] Whether they'll be forced to leave is is I think kind of a complicated question.


[00:13:34] I mean I think dreamers believe that immigration agents aren't going to show up at their door and deport them. I think some of them are definitely fearful of that. The older ones I think understand the legal system a little bit more and I mean it takes a lot of resources. I think it's it takes like ten thousand dollars to deport one person. Something like that. So what's more likely to happen is that they would get a letter in the mail that says your deportation proceedings have now opened or you are now ordered to to leave the country. And so at that point they just kind of returned to the status they used to have, where they have to kind of live in the shadows and they they can't work anymore. So they lose their jobs and kids lose their teacher patients lose their nurse and things like that. So it's more that they would be kind of forced back into the underground than been physically removed.


[00:14:29] SARAH GONZALES She reports on Youth and Families for WNYC Radio in New York City. Sarah thank you so much for speaking with us.


[00:14:38] Of course. Thank you.




Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Episode 99: First Ladies

The First Lady carries a lot of responsibility, but the role is really more custom than law. How has the role changed over time, and who are the women who have defined it?

Susan Swain is co-CEO of C-SPAN. She was the host of their year-long series "First Ladies: Influence and Image" and editor of the accompanying book. She's also behind the @FirstLadies Twitter feed.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!


NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.


Civics 101

Episode 99: First Ladies


Virginia Prescott: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.


[00:00:04] Who is the current speaker of the House? Uh don't even know. Will they rule in the president's favor or will they send to the Supreme Court? You can't refer to a senator directly by their name. Congressional redistricting. Separation of Powers. Executive orders. The national security Council.


[00:00:23] Civics, civics, civics... 101!


Virginia Prescott: [00:00:23] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works. Today, First Ladies: the office comes with a great deal of responsibility, but is more custom than law. So what is expected of a First Lady, and how has the role changed over our history?


Virginia Prescott: [00:00:41] Joining us is Susan Swain. She's host of C-SPAN's year long series First Ladies: Influence and Image, editor of the accompanying book for the series, and the @FirstLadies Twitter feed. Susan, great to have you with us.


Susan Swain: [00:00:53] Thanks Virginia. Thank you for being interested in First Ladies. They're fascinating.


Virginia Prescott: [00:00:57] They are absolutely fascinating and so little history is devoted to them, as we're finding. So what is the role of the First Lady?


Susan Swain: [00:01:06] Well, it has changed over the course of time as the role of women in society has changed, as our media culture has grown. And also in the latter part of the 20th century and into the 21st, there's obviously been a great advantage to interested First Ladies and using the tools available to them to advance the family business: the husband's political career. We don't pay them obviously for the work that they do but they do have quite a bit of tools available. In Michelle Obama's case, she built the office up to a staff of 24 people with a budget of 1.25 million a year.


Virginia Prescott: [00:01:45] Can the spouse of a president say no to the job and keep her career?


Susan Swain: [00:01:49] Well, I think so. And in fact we're seeing that with our current First Lady. She is really a very private person and she is writing the rules to suit herself. And that's not uncommon with First Ladies who have had small children to really focus on their well-being because it's such an incredible fishbowl.


[00:02:11] But it was interesting when we did an interview with Michelle Obama, she said that she had been advised by Laura Bush to make the job her own, make the role her own. That each one that was in it had to be true to themselves. Otherwise the pressures and all the advice and guidance from so many political people around the president wanting the First Lady to do this and that would become overwhelming and you might even lose yourself in the process. All the way back to Grace Coolidge's day.


[00:02:39] I was struck by a quote that she had made about the job that she really couldn't be herself. She created a public Grace Coolidge and she said it was I, and yet not I. The dichotomy of the public person where the image is sort of shaped by the public scrutiny versus what she was like as a private person and I think all First Ladies have to adjust to this enormous fishbowl. Some of them have been wanting to be more private about it, not so much in recent times. When I look at Melania Trump, I think most of Bess Truman who really was an accidental First Lady herself even though she had been a political spouse for many years and she spent much of the time away from the White House back home in Independence, Missouri out of the limelight.


Virginia Prescott: [00:03:24] So the role of the First Lady is as you said, is a very public role but there's a private woman behind there or a person behind there. At first, the First Lady was a hostess, you know, managing social life in D.C. We think of Dolley Madison serving ice cream at the White House. Tell us a little bit more about that role in the early days. Were some of them able to be more than hostesses?


Susan Swain: [00:03:48] Well I look at them and of periods. Martha Washington, Abigail Adams Dolley Madison, were of the generation of revolutionary women and they by their nature were political because the country was going through an enormous founding period and they were very much part of that process as they could be in the women's sphere at that time. Dolley Madison understood not just the social aspects of it but the importance of diplomacy and getting an agenda passed. She used to bring women from Washington into the House chamber to listen to the debates to encourage them to be understanding of what was going on in the country and that was a role that she kept up until she died. In fact, she had honorary recognition from the House of Representatives later on in her life because of her interest in the policy side of what was happening in Washington. We then went into a period when the country was established where the domestic role became really much more important. And in fact the role of the president really subsumed after Jackson for a while, really up until the end of the century, except for of course during the War and Abraham Lincoln. But women were expected to stay in the domestic sphere.


[00:05:03] Congress was more ascendant in many of these presidencies than the White House was. And so, backstage really for the people in the White House with a couple of notable exceptions. Then at the beginning of the 20th century we have Theodore Roosevelt coming in. We have a big rise in competitive newspapers and a great deal of interest in what was happening and looking to fill copy and compete with one another. And they had a very photogenic family in the White House, lots of kids bustling around and there was enormous interest and it really has continued to build since then, with both interest in the White House and presidents and First Ladies using that to their best advantage politically.


Virginia Prescott: [00:05:43] So you have the dawn I guess of the celebrity First Lady at that time.


Susan Swain: [00:05:47] That's right. Actually Mrs. Roosevelt was not so much interested but she had a husband who more than made up for it. But Florence Harding interestingly enough we don't know much about Florence except her philandering husband. But Florence Harding was, came from the newspaper business and was very well aware of the power of celebrity and she was the first to invite Hollywood stars into the White House. And we know how much that has built up over time.


Virginia Prescott: [00:06:15] Who are the women who really defined the more modern image of the first lady?


Susan Swain: [00:06:21] Well, first comes to mind of course, Eleanor Roosevelt. She was enormously influential because of the amount of time she held the role but also because of her own policy agenda, sometimes in conflict with FDR. She worked very hard to advance the role of women and also of African-Americans in society and was, as we learned through history, very involved in pushing Roosevelt towards a better position towards Jewish refugees during World War II. She really deserves a lot of attention but she was followed by two First Ladies who really went into the traditional role after that who weren't so interested in politics and policy other than being a helpmate to their husband, the president.


[00:07:00] When you get into the modern age really you think of Jacqueline Kennedy. But in fact she was a reluctant first lady and spent a lot of time out of the White House. Her main interest was in her children, certainly preservation of her husband's legacy, and also the preservation of the White House. What we get to the next, the next White House and that's the Lady Bird Johnson. Lady Bird really began to make the change into the modern first lady. Enormously political, was a very big political adviser and helpmate to Lyndon Johnson. There's some wonderful audio clips in the White House tapes that Lyndon Johnson made of her coaching him before and after speeches. She could say things to him that no one else around him could. And she also kept a diary of her time in the White House and was enormously influential in conservation issues and in the Head Start issue getting preschool education for young children. So she really sort of began to define the modern age. We really began to think about every First Lady having an issue from that point forward. Roslyn Carter, mental health. Nancy Reagan, saying no to drugs. Hillary Clinton had a number of policy agendas, most notably of course health care issues. And from that point on every First Lady was really expected to have a signature issue that she advanced during her years in the White House.


Virginia Prescott: [00:08:20] It is however an unelected role. So, have any of these women helped shape national policy in a way that they were regarded as missteps or overreach by a First Lady?


Susan Swain: [00:08:32] Hillary Clinton comes immediately to mind because she overreached with health care and it was a political liability for the Clintons as a result, one that we still hear about today as a matter of fact when she was mounting her own presidential bid. And that's the funny thing about Americans is that we want a First Lady who is a support but the voting public doesn't seem to like the idea of buy one, you get two. So that's that ying and yang of the role of First Lady that we've always had in this society. We're not electing you. We want you to be supportive and add to the package but not to go too far in a policy direction that we didn't vote for.


Virginia Prescott: [00:09:23] I read in your book that Edith Wilson actually was filling in for the president.


Susan Swain: [00:09:28] Edith Wilson is perhaps the first lady that we look to that overreached perhaps with the best of intentions to keep the country which was in a very volatile state historically at that time, to keep the economy going, and foreign policy issues not get roiled by an incapacitated husband. But in fact President Wilson had had an enormous debilitating stroke and spent much of his time in bed and, with the collusion of their doctor, Edith Wilson essentially ran the White House. And when people look back in history to that we say how inappropriate. It could never happen today. But at that time there were, she managed to shield the president from visiting congressional delegations, would prop him up just enough to get by when they would check in on him and then basically was responsible for all access: signing papers, memoranda going back and forth, and trying to keep the White House in shape but they should have turned the White House over to the vice-president at that point. He was not capable of doing it. And Edith was part of a collusion that kept that from the public.


Virginia Prescott: [00:10:37] And as you said this could never happen now.


Susan Swain: [00:10:39] It could never happen now.


Virginia Prescott: [00:10:39] First Ladies live on such a public stage, now more than ever with our 24 hour news cycle. So how has that changed the role, this kind of constant scrutiny?


Susan Swain: [00:10:51] I think it makes it much more difficult. The universe of social media is so demanding and so critical and anonymously so. And the echo chamber is really so large that every single move that a first lady makes out in public -- what she's wearing, what her face looks like, turns into memes and edited videos. And of course the political shops will use that where they can to their advantage. Melanie Trump has her own Twitter feed. There was there was one for the First Lady during Michelle Obama's days. So certainly they have those tools available. But the large echo chamber of social media, when they get on a rant about a direction, it's really becomes challenging I think for a first lady. And I can see why Melania Trump has chosen to enter slowly into the process, especially with her own husband being a pretty polarizing figure. In today's social media age, we scrutinize every little bit of what these people do in the White House.


Virginia Prescott: [00:11:58] Well so at least initially when President Trump took office there was talk that Ivanka Trump, his daughter, might take on some of those First Lady-like responsibilities. Has that ever happened in the past?


Susan Swain: [00:12:10] Oh sure. There have been a number of surrogate First Ladies over the years. One that immediately comes to mind: Jefferson was a widower and his daughter filled in in the role when he was in the White House. We also had, Mrs. Tyler was incapacitated. She had two daughters that took over for her. Not a daughter, but there was a instance of Harriet Lane who was a niece as it were of President Buchanan and she fulfilled the role. So there have been surrogates over history, never quite to the extent of an official counselor to the president as we have in this instance. The Trumps are certainly setting some new standards along the way here. But we have had relatives over the course of history who have filled in when there was either no First Lady or the First Lady was unable or unwilling to do the role.


Virginia Prescott: [00:13:03] You mentioned earlier that the First Lady, their mark in office is often dictated by the view of the female sphere at the time. So what happens if and when we elect a woman as president? Do you think those expectations for the First Gentleman will change?


Susan Swain: [00:13:19] You know, other countries do it. And I always look to the example in modern times of the vice president's spouse. In the last two vice presidencies, we had working spouses who continued with their jobs. They had interests that they, they from time to time were very public about. But they managed to have a somewhat normal life while still working on things that they cared about but without being completely subsumed about it. As you will remember Jill Biden taught school. She was a college professor. And prior to that Liz Cheney had been a scholar at the American Enterprise Institute and she continued to do that during the vice presidency. That model to me seems more realistic and it's the way that first spouses in other countries really approach the job. They avoid conflicts of interest. They understand the public role but they aren't completely subsumed by it in their lives. And maybe there's a more practical future for us in this role of First Lady as we've come to expect it.


Virginia Prescott: [00:14:22] What do we learn about American history when we learn more about its First Ladies?


Susan Swain: [00:14:26] Well it's a window into the presidencies in the White House obviously which is how we got interested. We had done a couple of biographies series on the Presidents and they were always an ancillary part of the story and we felt like it was time to really understand their role. But it's also throughout history a great mark of the changing role of women in American society. Always they came from the more privileged class and so you're looking at that sector of American society but you really can see the role of women grow and change over time by looking at the women who occupied this role in American history.


Virginia Prescott: [00:15:03] Susan, you spent a year thinking and learning about these women. This is something that fascinates you. Would you want to be a First Lady yourself?


Susan Swain: [00:15:12] Never.


Virginia Prescott: [00:15:14] Why not?


Susan Swain: [00:15:14] Never. I really would. I'd misstep a lot, I'm sure! I really... I mean my job is slightly public and even that part of it I'm very much cautious about my privacy and concerned about not... I represent 285 people at my company and I'm always conscious of that. The... Imagine representing the entire United States or being a visible representation of a presidency, I just wouldn't like to have to look over my shoulder all the time like that and worry about every little bit. The advantages of course are a chance to do good about issues that matter to you. But it's a big tradeoff.


Virginia Prescott: [00:15:56] Susan Swain, thank you so much for speaking with us.


Susan Swain: [00:15:59] Thank you.


Virginia Prescott: [00:16:00] Susan Swain's been a 30 year veteran on air at C-SPAN. She's host of CNN's yearlong series First Ladies: Influence and Image. She's also editor of the book that accompanied the series and the @FirstLadies Twitter feed. We highly recommend you follow it.


Virginia Prescott: [00:16:21] This episode was produced by Justine Paradis with help from Erica Janik and Taylor Quimby. Music from Broke for Free. I'm Virginia Prescott. Civics 101 is a production of New Hampshire Public Radio.




Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Episode 98: Nuclear Weapons

On this episode: How does the United States use, or more precisely avoid using, its fearsome arsenal of nuclear weapons? How did we arrive at a world in which so many countries are armed to the teeth with nukes? What can we expect from North Korea as negotiations continue? We revisit the Cold War this week with Joe Cirincione, author of Bomb Scare: The History and Future of Nuclear Weapons, and president of Ploughshares Fund. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!



NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.


Civics 101

Episode X:


Virginia Prescott: [00:00:00] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works.


[00:00:29] Today we're talking about nuclear weapons. Tensions are high right now between the U.S. and North Korea which has been assembling a nuclear arsenal despite warnings from Washington. It is not the first time the U.S. has found itself in a nuclear standoff. After we dropped atomic bombs on the Japanese cities of Hiroshima and Nagasaki in World War II we never really took our finger off the button. We did however experiment with many different strategies and postures when it comes to nuclear strategy and exploring that history with us today is Joe Cirincione author of Bomb Scare The History and Future of Nuclear Weapons. Joe welcome.


Joe Cirincione: [00:01:08] Thank you Virginia. Pleasure to be with you.


Virginia Prescott: [00:01:09] So what makes nuclear weapons different from other kinds of weapons?


Joe Cirincione: [00:01:14] They are unique in their destructive power and their indiscriminate force. So these are the most powerful weapons humanity has ever invented. For example the bomb that destroyed Nagasaki was about 20000 tons of destructive force so that's about 40000 regular bombs. So you can see what the difference is instead of having hundreds of bombers going over a city and destroying it which we did in World War II. One bomber, one bomb, one city destroyed.


Virginia Prescott: [00:01:48] Does nuclear weapon include atomic bombs hydrogen bombs chemical weapons?


Joe Cirincione: [00:01:53] Yeah the nuclear bomb is not just a powerful explosion. It's a nuclear explosion. We're splitting the atom the basic unit of matter. And when you do that you don't just have a destructive force that can blow things up you also create enormous mega fires in a city for example and then there's the radiation effects that can cause genetic mutations that can last for generations, a completely distinct indiscriminate weapon which is why so many religious leaders talk about these as being immoral that the use of this then the possession of this Pope Francis says for example is immoral. Nobody should have these.


Virginia Prescott: [00:02:30] Well we definitely want to talk about today's nuclear strategy but I'd love to put it in context. Could you walk us through some of the main benchmarks or areas of U.S. nuclear policy. The U.S. did drop these two atomic bombs. Japan surrendered. Walk us through what followed up until, let's say the end of the Cold War.


Joe Cirincione: [00:02:50] When we use the bombs on Hiroshima and Nagasaki had been such a massive level of destruction the firebombings of Tokyo and Dresden and Hamburg that the atomic bombs were seen as basically just another weapon just a very large weapon. But after that as we became to understand what we had done as the radiation effects became more apparent. They were clearly put in a different category.


[00:03:11] And the first US impulse was to was to try to ban these weapons so we could stop right there. But when the Soviets got the bomb in 1949 efforts to restrict their spread basically stopped and we entered into an arms race in 1949 when the Soviets blew their first atomic bomb we had about 200 in the decade that followed. We built 20000 nuclear weapons and we used them for everything. Every military service felt they had to have their own atomic arsenal so we had the Air Force with missiles. We had the Navy with nuclear torpedoes in depth charges and rockets and we had the army with nuclear artillery pieces short range rockets landmines. We really did have even a nuclear bazooka called the Davy Crockett they could fire small atomic bomb about half a mile. Why anyone want to do that is beyond me and even the army figure that out we stopped making that in the 1960s.


[00:04:05] But by the 1960s not only did you have an arms race and other countries joined in. Britain had a bomb France had a bomb. China exploded a bomb in 64. But you had the prospect of 20 30 more countries all getting these weapons.


[00:04:19] This led Liberals and conservatives Democrats and Republicans to join together to try to stop the spread of these nuclear weapons. Kennedy started it. He couldn't finish. Johnson negotiated the Non-Proliferation Treaty and Richard Nixon signed it into into law hoping that this would mark a true end to the arms race which in some ways it did. Many of the countries who had these weapons stopped the programs and the two superpowers the United States and Soviet Union pledged to enter into arms control agreements that gradually started to put caps on the number of weapons in the world. And then what Ronald Reagan in the 1980s to actually start reducing it.


[00:04:58] And since then since that peak of the Cold War in the mid 80s where we had about 70000 nuclear weapons in the world most held by the United States and Russia we've come down to the present day where there are about 15000 in the world again. Ninety five percent of them held by the U.S. and Russia and nine nuclear states. That's still a lot of nuclear weapons and a lot of nuclear states but it's not the 20 or 30 that people feared during the beginning of the Cold War.


[00:05:29] We're at a tipping point now. The nuclear reductions have basically stopped the negotiations. The U.S. and Russia are not happening. Every single nuclear armed nation is now building new nuclear weapons. Some of them expanding their arsenals slightly like India and Pakistan and China with about 100 or 200 nuclear weapons and others like Russia the United States for placing the weapons that are wearing out.


Virginia Prescott: [00:05:57] Well let's talk about that a little bit. Recently a draft version of the Trump administration's position on nuclear weapons was leaked. It is due out sometime this month. So you mentioned that it proposes some new weapons. What else do you make of it? What do you see here that is different than it's been in the past?


Joe Cirincione: [00:06:15] Yeah this is called the Nuclear Posture Review it's sort of the outline of what the administration intends and what we know is that the strategy is to keep all the weapons we have so far to replace all of them with this one point seven trillion dollar spending spree on nuclear weapons but also to add some new nuclear weapons to add a new cruise missile a new submarine launched missile for example and that in some ways this posture review is a great leap backwards. It goes back to the ideas of the 1950s where these nuclear weapons should be more usable. They shouldn't be seen as distinct and unique and separated. The Nuclear Posture Review goes to great lengths to talk about the integration of conventional forces and nuclear forces to exercise these these forces together to start integrating nuclear weapons into the rest of the U.S. military strategy.


Joe Cirincione: [00:07:11] So for example it no longer says as we have previously that the fundamental purpose of nuclear weapons is to deter other countries from attacking us with nuclear weapons. Now it says that there are other purposes to nuclear weapons including responding to conventional attacks in the United States. Cyber attacks on the United States and other extreme circumstances. So it opens the door to making these weapons another tool in a combat commander's arsenal. Finally it does one other thing. It proposes shrinking the power of the weapons a small weapon that could still be the equivalent of for example 2000 regular bombs but it's small enough that you could start talking about taking out a section of a city rather than the whole city or aiming it at a discrete target.


[00:08:00] And in this way the authors of the posture review hope that nuclear weapons will be more usable. One way to think about this is that it's operationalizing President Trump's impulses.


Virginia Prescott: [00:08:11] Would it be more likely that those weapons because they're small are not as threatening might be more likely to be used?


Joe Cirincione: [00:08:21] That is exactly the fear many of us have and that is exactly the intent of the authors of this posture review. This is an ongoing debate among nuclear strategies that goes back generations. Now these are weapon of last resort only to be used to defend the country to prevent somebody else from attacking us. This mutual suicide pact. Or are they usable weapons and there are some. And these appear to have gotten the upper hand in this administration's strategy. They say look this is the most powerful weapon we have. Why should we leave it on the shelf as Donald Trump said during the campaign. Why do we have nuclear weapons if we can't use them with this posture review says is. Here you go Mr. President. Here are some usable nuclear weapons that we could use to go after for example a mobile target that we know kind of where it is but we don't know where exactly it is. We can go take out the whole area or deep underground bunker we can use the nuclear weapon to take it out of.


Virginia Prescott: [00:09:27] The nuclear arsenal of the United States has always been measured in comparison to others. You know Russia China North Korea. Where are we now and where are those respective countries in this idea of creating new or changing the technology of nuclear weapons?


Joe Cirincione: [00:09:44] The U.S. and Russia are not comparable except in their nuclear arsenals. These are still the two nuclear superpowers. Each has about 7000 nuclear weapons and their total arsenal. No other country has that amount nuclear weaponry. So if you can get the United States and Russia to negotiate again to start this process of reduction to reduce down to say a thousand weapons each then you open up the prospect of getting the other nuclear armed states into those discussions to at least kept their arsenals to stop modernizing to just hold for a bit. And if we can get people to stop the arms race right now before it gets out of control then you can look at the process of getting further reductions and then and move back to Ronald Reagan and John F. Kennedy's vision of abolishing the weapons of war before they abolish us.


Virginia Prescott: [00:10:37] It's interesting that we're coming into this sort of Cold War era pattern to North Korea currently backed by China at least economically and in some of their political ways Syria is being propped up by Russia. So again we have this idea of a sort of proxy locations for a much larger kind of conflict. Where does that leave us? Are we back in the cold war?


Joe Cirincione: [00:11:01] We are certainly back in the nuclear arms race. There is an arms race underway right now and it's a question of whether this continues and accelerates or whether we can stop it before it gets out of control. One of the other documents that the administration has released is called the National Security Strategy. And there they talk about how the terrorist threat that thing that has preoccupied us for the last 17 years is now a secondary consideration especially with the defeat of ISIS and the expulsion of ISIS from the areas they once occupied.


[00:11:32] Now they talk about great power competition. This phrase it sounds very world war one, great power competition. But this is what they talk about and they see us as having two adversarial nations Russia and China and it gets to your point about proxy wars then you start looking at things like Syria. And this is a proxy conflict you're contending with Russia for control or you see things in career. And this is really a proxy conflict because what it's really all about is China trying to enlarge and we and our efforts are try to contain it. And this brings us right back to Cold War concepts in both strategic vision and in nuclear policy.


Virginia Prescott: [00:12:12] So looking at that what kind of options does the U.S. have to deal with North Korea?


Joe Cirincione: [00:12:18] Realistically most of us think they're not going to do a bolt out of the blue. They're not going to strike first. This is a homicidal regime but it's not suicidal. They know what would happen next. Deterrence still works. So what you what you want to do is first deescalate the conflict reduce the risk that we might stumble into war by miscalculation or misunderstanding. We are kind of in that period now with the start of the Olympics in Korea. We're in something that people are calling an Olympic truce where things are calm down. North Korea is not testing we're not issuing provocative tweets or statements at the moment. There's exchanges going on between North and South Korea.


[00:12:58] OK. Can you turn that into step two. Can you take that truce and turn it into say a freeze where North Korea agrees to stop testing its weapons. Pauses right here stops producing new weapons in exchange for the U.S. and South Korea reducing the scale and size of the military exercises. That's a deal that's on the table. There's many several countries are urging us to try to explore if you can do that then you open up the prospect of a third step. Detailed negotiations with North Korea and the United States to try to roll back the North Korean program the way we rolled back Iran's program in exchange for economic and security incentives.


Virginia Prescott: [00:13:39] Even President Reagan great political will great popular leader at the top wanting to get rid of nuclear weapons. The world could not do it. I mean what can we realistically think, will we ever get to a world without nuclear weapons?


Joe Cirincione: [00:13:56] Yes I think we can because we've done this with other weapons of mass destruction less destructive but nonetheless terrible weapons. Biological weapons. Richard Nixon negotiated treaty to ban biological weapons chemical weapons. George H.W. Bush negotiated a treaty to ban chemical weapons. They got every place everywhere. Not quite. But none of the major powers have these weapons anymore. Can you do that with nuclear. Well guess what 122 countries just last year at the United Nations signed a treaty banning nuclear weapons. None of the nuclear armed states have joined that treaty at least not yet but that's how you start this process. Can you do this. I think you can. But even from wrong every step we take to reduce the numbers of weapons reduce the number of countries who have these weapons restrict their use makes us more safe.




Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Episode 97: Inspectors General

If you watch a lot of police procedurals, you’ll recognize this setup: beat cops get a visit from Internal Affairs and drama ensues.  As it turns out, government agencies also have their own internal watchdogs: investigators that make sure  federal policymakers are following the law. In this episode, we learn about the role and origin of inspectors general.  How do they launch investigations? To whom do they report? And is the position influenced by politics?  Our guest is Elizabeth Hempowicz, Director of Public Policy for the Project on Government Oversight. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!



NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.


Civics 101

Episode 97: Inspectors General


Virginia Prescott: [00:00:23] I'm Virginia Prescott and this is Civics 101. The podcast refresher course on the basics of American democracy. Today we're learning more about a fairly obscure government office that you asked us to look into.


Sam: : [00:00:35] Hi my name is from Sam from Hyattsville, Maryland. I read wondering what exactly is the function of the inspector general and how does it differ from the U.S. attorney general?


Virginia Prescott: [00:00:46] Elizabeth Hempowicz is with us. She is policy director for the Project on Government Oversight, also known as Pogo. OK Elizabeth, you think you can help us out with this?


Elizabeth Hempowicz: [00:00:55] Yes and I'm so excited to be here. Well let's do it.


Virginia Prescott: [00:00:58] What is an inspector general?


Elizabeth Hempowicz: [00:01:00] So inspectors general are an internal watchdog office that in theory is independent of the agency that it's overseeing and it reports both to the agency head and to Congress. They're kind of been charged with making sure that everything that the agency is doing is in line with the laws rules and regulations governing that agency.


Virginia Prescott: [00:01:21] So I know that there state there, you know, municipal, county inspectors general. We're going to focus on the federal government inspectors general. How many are there?


Elizabeth Hempowicz: [00:01:32] So right now I believe there are 72 total inspectors general offices. Now a lot of those are vacant. I don't have that exact number off the top of my head but when there's a vacancy it's usually filled by an acting inspector general. But there are problems with that. They're a little bit less independent. They haven't been congressionally confirmed. And so 72 is the short answer to that question. But it's a little bit more complicated.


Virginia Prescott: [00:01:58] Does each government department have an inspector general assigned to it, ideally?


Elizabeth Hempowicz: [00:02:03] For the most part there are some, so there's one inspector general for the Department of Defense and then there are smaller branch inspector general. So that's where I think that that number comes from, the 72 includes broader inspectors general looking overseeing a bigger agency and then some sub agencies have their own offices.


Virginia Prescott: [00:02:24] So to get to that listener question, when and why were they formed?


Elizabeth Hempowicz: [00:02:29] So the first inspector general goes back to military inspector general in George Washington's army, so the first inspector general was in 1778 and then for for a long time inspectors general were just military offices and they mostly focused on auditing and making sure that no money was being well spent, and spent on the things that it was meant to be spent on, and then IGs, inspectors general as we know them today, started really becoming more in on the civil side in 1978 when Congress passed the Inspectors General aAct. And that's kind of what we talk about in general conversation when we're talking about inspectors general, that includes the military inspectors general.


Virginia Prescott: [00:03:10] So how are they chosen?


Elizabeth Hempowicz: [00:03:12] So there are certain inspectors general that are chosen, these are like cabinet level agencies, those inspectors general are chosen and nominated by the President and confirmed by the Senate. There are some inspectors general that are chosen by by the agency heads and don't go through that Senate confirmation process.


Virginia Prescott: [00:03:29] OK so now that we're deep into our scholarship I think we can say IGs. How long do they serve?


Elizabeth Hempowicz: [00:03:36] So they don't serve in a set term. But they all serve at the pleasure of the president.


Virginia Prescott: [00:03:40] So you you said there you serve in a capacity as auditing, their kind of watchdogs over departments. Is this like, like internal affairs inside of a police department?


Elizabeth Hempowicz: [00:03:50] Yeah yeah I think that's a pretty good analogy.


Virginia Prescott: [00:03:52] Is there a central office of inspectors general that they all report to?


Elizabeth Hempowicz: [00:03:57] No. So there they do have this kind of dual reporting structure to the agency head and to Congress which makes sense if you think about it. What the inspectors general are supposed to be doing is making sure that the agency is running in the way that it should be and that includes you know their own own internal rules and regulations and then also that they're following the laws that Congress has passed to govern the agency. And so this dual reporting structure I think has come under criticism as you know kind of giving the IGs split loyalties. But the loyal, the you know the office of the inspector general really serves the Congress and serves the American people making sure that the tax dollars are being spent the way that they've been allocated to be spent and that there isn't all this rampant illegal activity going on in these agencies.


Virginia Prescott: [00:04:44] So they're probably spending a lot of time looking at spreadsheets, crunching numbers, watching how things are going.


Elizabeth Hempowicz: [00:04:49] Yes.


Virginia Prescott: [00:04:50] OK. Did they conduct routine investigations or do they have to be prompted, does someone have to say, you know I think there's something going on over at the Department of Agriculture you should look into.


Elizabeth Hempowicz: [00:04:59] Right, so there are a few different ways that I can can launch investigations. A large set of the investigations that they do are congressionally mandated. And that is through through legislation. So it will, you know there will be something typically at the end of end of a bill that's going through Congress that says the inspector general, prepare a report that will go to Congress on this subject. Those are less routine but also not like, you know, there's this big issue and so they're reacting to an issue. It's mostly involved in making sure that the law that's being passed that this is in, that the mandates in those laws are being carried out appropriately by the agency. Then there's investigations that are sparked by a congressional inquiry. And that's different than legislatively requested. And then there are investigations that they start because they got a whistleblower complaint or somebody internally from the agency came forward and said, you know I think there's something wrong in this program, I think this money is not being spent in the way that it was supposed to, or there's cutting corners. And then finally they have kind of their annual reports that they send up to that they send up to Congress and those are the most routine ones. You know it's like how many complaints did you receive. How is the agency doing on a whole, they have these different metrics that they, that they report up to Congress.


Virginia Prescott: [00:06:17] And by the way I don't suspect that the Department of Agriculture is especially corrupt, that's just my example today. How is an IG investigation different than a congressional committee investigation? You know, so the investigation into possible Russian meddling in the 2016 election for example, led by Special Counsel Robert Mueller.


Elizabeth Hempowicz: [00:06:36] Right. So I think the biggest difference is the scope of the investigation. So I really only have jurisdiction over their agency. They also don't, most of them don't have subpoena power which which means that they can only compel employers current employees of the agency to answer their questions and cooperate with an investigation. This has turned into a problem I think in more senior level investigations, where subjects of the investigations have reached the point where they can retire, or you know leave government service, and then they are kind of outside of the bounds of where an IG can touch them and can make them answer questions.


Virginia Prescott: [00:07:14] So Robert Mueller for example, he could convene a grand jury - that could not happen with an IG.


Elizabeth Hempowicz: [00:07:19] Right. And most congressional committees also have subpoena power and so the scope of the investigation and the tools that they have are different.


Virginia Prescott: [00:07:27] Are they, obviously it's not just one person conducting these kind of investigations, but are there offices actually inside of the agency that they're investigating?


Elizabeth Hempowicz: [00:07:37] Yeah for the most part which creates you know an interesting tension they're obviously there as the watchdogs, and they're, they're theoretically and ideally independent of the agency. But yes, mostly their offices are in the same building, on the same floors as the people that they're overseeing.


Virginia Prescott: [00:08:04] So they obviously put out reports about their investigations. They within the IG office are sure to say that you know, many people work for them, they issued more than 2200 reports in the most recent year, including more than 8,800 recommendations to reduce government waste, fraud, abuse and mismanagement. What actually happens to these reports? I mean is a fairly unknown office, maybe is there is there an investigation that you can think of that an IG did that actually resulted in legislation or policy changes?


Elizabeth Hempowicz: [00:08:37] You know, not off the top of my head but you raise, you asked an interesting question which is, you know what happens to these reports? They're full of these recommendations in which to, how to reduce waste, fraud, abuse, mismanagement in an agency but it really is then up to the agency to implement those recommendations. And up to Congress to kind of conduct the oversight over the agency and make sure that they either are implementing the recommendations or have a good reason why they aren't. I think that's one of the frustrations for, for inspectors general is that they don't have you know kind of this power to compel change. But what the you know they do have the power to put out you know compelling documents that say this is why this change is necessary. This is the money it'll save. You know I think there's, my favorite statistic is that for every one dollar spent in an IG office they on average find a savings of seventeen dollars, and that's taxpayer money. So that's that's good and exciting but that only really matters if the agency is implementing those changes.


Virginia Prescott: [00:09:41] So that's a potential savings of 17 dollars for every one dollar spent. Well the public did get a view of an IG investigation recently, messages between two people who turned out to be lovers. Both of them working on the FBI probe into Hillary Clinton's e-mails last year. Their exchanges showed them not to be supporters of Donald Trump let's say, these were uncovered during the investigation that IG Michael Horowitz is leading now at the Justice Department. Did Michael Horowitz authorize these messages being made public?


Elizabeth Hempowicz: [00:10:19] I wanted to go back to an early earlier question you had on like how these investigations are prompted and this is a good example of one that was prompted by members of Congress asking IG Horowitz to look into the handling of the e-mail investigation by the FBI. So the FBI is within the Department of Justice inspectors general's jurisdiction, and the investigation is into how the FBI handled the the Clinton email investigation. And so this kind of is a really good example of a congressionally requested investigation that falls squarely within the jurisdiction. And so your question was whether or not it was the IGs decision to release those those text messages. So I believe that the inspector general Horowitz has indicated to the press that it wasn't his decision to release those those text messages to the press. He did tell officers that the Department of Justice that he didn't see any reason why those shouldn't be shared with members of Congress. And of course you know members of Congress have their own ability to share things with the press. But I believe he's been pretty public with that it wasn't his idea in making those available to the public.


Virginia Prescott: [00:11:38] So this is a case of an IG investigation turned over to Congress, and then turned over to the press, which suggests that there is some politics in here. I mean, how, are there any steps, or any parts of the way that the IG office is set up, to keep it out of politics?


Elizabeth Hempowicz: [00:11:59] Oh absolutely. I think you know because the inspectors general are in theory supposed to be independent of the agencies, and independent of you know those that they're overseeing. They're also in that same way supposed to be independent of politics. They have mandates and clearly defined jurisdiction. I think it's impossible to separate politics from from their work but not because they're doing their work in a partisan way but because than the way their work is interpreted and funneled into the public. And I will say What is unusual about the about the investigation into the FBI's handling of their Clinton email investigation is that that investigation isn't complete. And so, getting information like this in the middle of the investigation is kind of more of a rare occurrence and I think inspectors general offices try to make sure that they that they aren't having you know all this information out before they make their conclusions and recommendations.


Virginia Prescott: [00:13:02] Can an IG be fired from a case?


Elizabeth Hempowicz: [00:13:05] I'm not sure if they can be fired from... IGs can be fired from their position, I told you they serve at the pleasure of the president. But they can be required to be recused off an investigation if it's something that they have a personal conflict of interest with.


Virginia Prescott: [00:13:20] So I've read that since President Trump was elected, there has been an increase, as much as a 40 percent increase, in calls for IG investigations. This is according to Walter Shaub, he's a former ethics official. It also seems to me that the Trump administration you know, in the, in the candidate Trump's proclamation that he is going to drain the swamp exposed government waste you know get root out corruption has the Trump administration called for IG investigations that you know of?


Elizabeth Hempowicz: [00:13:50] Not that I know of. But what's interesting about that is that is that, there are so many vacancies remain in the offices of the Inspector General, and we Pogo have been pretty vocal about how that is you know those are positions that are very key to that mission that the president has said that he's very committed to, rooting out fraud, waste, and abuse inside the federal government. And so we've been urging him to make those appointments and have them go through a Senate confirmation process so that these office have leadership that that one has stronger congressional oversight. You know, after a Senate confirmation hearing there's there's increased oversight over the individual and increased oversight over the office. If the president is truly that committed to that mission then then this should be something that is a high priority for him. I also think you know the increased investigations is a really good thing, it means that these offices are working in the way that they should.





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Episode 96: The Federal Election Commission

On today's episode: How does the government make sure elections are conducted fairly? Who's keeping track of all the money donated to candidates? Is the Federal Election Commission still relevant in the era of dark money and Super PACs? Joining us on the show is Bob Biersack, senior fellow at the Center for Responsive Politics. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!



NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.


Civics 101

Episode 96: The Federal Election Commission



Virginia Prescott: [00:00:00] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of American democracy.


[00:00:29] The concept of free and fair elections is a hallmark of democracy. And let's face it: elections and campaigns cost money. With billions of dollars pouring into politics, how do we know where that money comes from and where it goes? Today we're talking about the Federal Elections Commission, or FEC, the watchdog of federal election funding, with Bob Biersack. Bob used to work for the FEC. He's now senior fellow at the Center for Responsive Politics.


[00:00:54] Bob, welcome to Civics 101.


Bob Biersack: [00:00:57] Thanks very much, happy to be here.


Virginia Prescott: [00:00:58] So what's the primary role of the FEC? Big picture.


Bob Biersack: [00:01:02] It's really designed to provide information that gets reported by candidates and PACs and political parties about where their money comes from and how it gets spent. And also to monitors some of the basic elements in the law that restrict how much money can be given directly to candidates for federal office. We're only talking about Congress and presidential campaigns here every state has its own system but basically it's supposed to enforce the provisions that exist in the law for limitations and restrictions on how money is raised and spent and then also importantly to disclose that information to the public.


Virginia Prescott: [00:01:36] So not polling places or voting machines, just money.


Bob Biersack: [00:01:39] That's right we don't count votes we only count money.


Virginia Prescott: [00:01:42] So when was this established?


Bob Biersack: [00:01:44] It was in the mid 1970s the Watergate experience the scandal that happened in the Nixon administration caused Congress to try to separate the mechanics of monitoring campaign finance away from itself before that. Basically the reports were sent to an office in the Congress and the General Accounting Office looked over things a little bit but it was pretty much ignored by most everyone and there wasn't good certainly wasn't good independent compliance or disclosure. With Watergate Congress decided that they needed a little bit more robust system a little separation from the monitoring and enforcement process away from Congress itself. And so they created this independent agency to do that.


Virginia Prescott: [00:02:29] Was funding of elections regulated before that before?


Bob Biersack: [00:02:33] It was to some extent. Certainly there were reports that were supposed to be filed. There was a little bit of oversight. There were limitations on contributions that began with a law that was passed in 1971 that actually may have triggered some of the problems of Watergate because the president's re-election campaign tried very hard to get as much money into the system as it could before that law took effect at the beginning of 1972 that led to lots of cash being distributed and deposited or or stored in safes around the White House and other places. And it really started the ball rolling that became the Watergate scandal. There were some restrictions but but they were largely ignored.


Virginia Prescott: [00:03:14] Was that the Federal Election Campaign Act?


Bob Biersack: [00:03:17] It was. Yes that's right.


Virginia Prescott: [00:03:19] So that act was passed in 1971. How has it been amended or changed over the years?


Bob Biersack: [00:03:25] There were a series of amendments especially in the early years there were amendments in 1974 that actually created the FEC some more in 1976 and 79 to fine tune the system a little bit and to adapt to court cases and Supreme Court decisions that were made in that time period. To me it's kind of an evolutionary process that goes on today.


Virginia Prescott: [00:03:48] The agency is called the Federal Election Commission, so how many commissioners are on the FEC?


Bob Biersack: [00:03:53] It's very odd. And not by mistake. There are six members of the commission by design and the law says that not more than three can be members of the same political party. And that to do anything to start an investigation to allow it to instruct the staff to go out and and run an audit to do anything requires four votes. So you have to cross party lines in order to conduct the business of the institution.


Virginia Prescott: [00:04:22] So it's meant to be a nonpartisan agency.


Bob Biersack: [00:04:24] Well I mean the difference between bipartisan and nonpartisan I'm not sure. Typically in the early days the members of the commission were retired members of Congress. Congress really they wanted something independent but they didn't want something too independent. They wanted to be able to to make it clear to those people that political priorities were not irrelevant. They just didn't necessarily drive the process.


Virginia Prescott: [00:04:50] So let's look at how the FEC actually works and monitors for violations. Did they conduct audits for example?


Bob Biersack: [00:04:58] They can. One thing Congress limited is they can't audit anyone randomly. There has to be a reason to conduct an audit.


Virginia Prescott: [00:05:07] So a charge or suspicion from another candidate or party or watchdog group, that kind of thing?


Bob Biersack: [00:05:13] It can be more typically though there are reports that come into the Commission that show how much money was raised who gave that money how it was spent are examined by people inside the FEC to see if there are mathematical errors things that don't add up things that look like they might violate the law reporting of contributions that might exceed limits for example or something like that. If there is enough of that sort of problem then the commission can on its own say well there's reason for us to really look at the books of this campaign or this committee and so we're going to conduct an audit. But the other mechanism for compliance is that anyone can look at those reports and if they see something that they think violates the law they can file a complaint with the FEC that they would then look into anyone.


Virginia Prescott: [00:05:58] Because the FEC makes these records public?


Bob Biersack: [00:06:01] That's right. The whole concept from the beginning was was what they call voluntary compliance which is people are trying to do the right thing. They want to comply with the law but then also everybody is able to look over their shoulder. And so in the old days when when the reports came on paper there would be crowds of people in the Public Records Office at the FEC when those reports were due.


[00:06:23] So they could go through them page by page and look at specific contributions who was giving how much. And obviously among the people who look closely are news reporters and also opponents who keep track of things and aren't shy about making complaints if they think there's something problematic in what they see.


Virginia Prescott: [00:06:48] So the FEC as far as its powers go can it arrest people, can it prosecute people or does it sue individuals or companies for violations?


Bob Biersack: [00:06:57] It's actually fairly extraordinarily limited in its enforcement powers. People used to remind me when I was there that it's not really an enforcement agency. They can't do much of anything unilaterally when they think they found a violation on the face of the reports or some other way if they've done in on it. They go into this conciliation process which is basically negotiating with the other party we think you made this violation. Here's the evidence we have. We suggest you confess basically say you violated the law and pay a civil penalty typically a kind of a fine. If they can't agree if the other side's says no I don't think this was against the law or I didn't do it or whatever. Ultimately the only recourse that the FEC has is to sue that organization in federal court and then a judge actually can can independently enforce the law. But the commission can't do it on its own.


Virginia Prescott: [00:07:49] How about if a donor or a donation exceeds the contribution limit or violates one of the FEC prohibitions. Can it take the donation away from the candidate or party or PAC or received it?


Bob Biersack: [00:08:02] It can require the committee to refund the contribution or if it was part of a kind of a larger or even more more complicated conspiracy where sometimes people decide they don't like the contribution limits and so they pass money around to their friends or their employees and they instruct them to make to pay that money to specific candidate or committee. If that sort of thing happens you don't want to reward the original violator by giving the money back to them. And so the commission or as part of these conciliation agreements would say that you need to pay the money to the U.S. Treasury instead of taking it back yourself.


Virginia Prescott: [00:08:39] OK so what if the FEC discovers a violation when a candidate's already taken office? Is there anything they can do to penalize that individual?


Bob Biersack: [00:08:48] Well you can't certainly undo an election. So there are no real consequences in terms of taking them off of the ballot if they found out before the election or removing them from office afterwards. What you do though is is in the process of coming up with these conciliations charging them a civil penalty that all becomes public too. Not until it's finished but once once the case is complete everybody sees that violation. And what happened and what the consequences were. And so that has political implications for people. Campaigns are not really excited about being in trouble with the FEC because of the public relations problem.


Virginia Prescott: [00:09:26] Well you mentioned that there has to be a reason for the FEC to look into a campaign finances. But do candidates, parties, PACs do they regularly disclose or report the money that they raise to the FEC?


Bob Biersack: [00:09:39] They do. They have to. Large committees and party organizations file every month. So do presidential campaigns. Most of the time congressional campaigns file on a quarterly basis but then additional reports close to an election. So there is there is transparency and openness is really a fundamental part of this process. If it's going to work at all it's going to be because people can see what's happening.


Virginia Prescott: [00:10:02] And you said the FEC makes this information public. So if I wanted to know how much money Hillary Clinton raised for her 2016 campaign and from whom, I could get that information from the FEC?


Bob Biersack: [00:10:14] Absolutely. You can get it from a variety of sources. You can get it from the FEC. You can get it from a nonprofit organization that I work with now, the Center for Responsive Politics, through OpenSecrets.org. But yes that that information is publicly available as soon as it's filed. And now that most everybody except senatorial candidates file their reports electronically that means it's available literally as soon as it's filed. Within minutes after that the FEC gets a report.


Virginia Prescott: [00:10:43] I also read that the FEC administers the presidential public funding program. Now what's that?


Bob Biersack: [00:10:50] Yeah it's easy to forget because it's not really very relevant that much anymore. In the 1970s Congress decided that that in the context of presidential campaigns it was important to provide some public funding to the process so that maybe more candidates would run. There might be more competition more equal kind of competition. And so that system originally had three parts. Basically it provided a small grant to the two parties to conduct their their presidential nominating conventions. It provided matching funds for primary election candidates trying to get the nomination to the party. So long as you agreed to other kinds of restrictions like limiting how much you spent in each state when you were carrying on the primary campaign in the general election once the two parties nominated their candidates in late summer they would get specific grants. They were equal amounts of money.


[00:11:42] And that was all the money the candidates were supposed to use for the general election. As time went on and fundraising changed and the dynamics of campaigns changed, it first became desirable for candidates to not take those matching funds in the primary season because then they could spend as much as they wanted in those early states like New Hampshire and Iowa. So people began to drop out of the primary system. It was always voluntary. You didn't have to do it. Then later, even the nominees of the two parties began to recognize that they could raise a lot more money outside the system than they could get in those grants.


Virginia Prescott: [00:12:22] Now this is the thing like on your income tax form you check a box if you want to donate to the presidential public funding?


Bob Biersack: [00:12:30] Exactly right. Yes. So up to three dollars of the taxes that you already paid. It's not in addition to your taxes would go into this fund. And it could be used to make these payments.


Virginia Prescott: [00:12:40] Candidates recognized they can raise a lot more money without that and then they won't have any restrictions at all.


Bob Biersack: [00:12:48] That's right. The grants everyone thought were pretty big. The last ones that were used effectively I think in 2004 and even 2008 for for John McCain were 80 million dollars, and 80 million dollars between September 1st and the first Tuesday in November when the election happens sounds like a lot of money. Everybody thought it was.


[00:13:09] If you had told me when I was at the commission that Barack Obama was going to raise seven hundred million dollars in limited contributions from individual people I would have said you were nuts. But he did. And that pretty much changed the process forever. No one was going to take the chance of staying within the public funding system when someone could outspend them that much.


Virginia Prescott: [00:13:33] So in some ways since the Citizens United decision I think that's what you're referring to, you know the court case that opened up a shift in campaign finance limits and regulations, so the FEC in effect has less to do now.


Bob Biersack: [00:13:49] They certainly have less influence over the process so much of what happens in federal elections now happens in social welfare organizations these tax advantaged groups that have sprung up in or existed before who are now much more overtly involved in campaigns. The fact that corporations or anyone else any other kind of institution can spend money freely as long as it's independent of the candidates and parties has really fundamentally changed the process it's diminished the impact of those kinds of restrictions and limitations on contributions and things like that that still exist and they're still true directly for the candidates or the political parties. But they're much less important because of these outside groups. And to me it puts a much bigger onus on and impact on the simple disclosure itself. And that also becomes more problematic. Some of these groups are at least arguing that they're outside the bounds of disclosing their donors for example. So a lot of the activity that happens now even in presidential campaigns or congressional races is spending where the group that makes the expenditure might be disclosed but where the money actually came from is harder to know.




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Episode 94: Super PACs

On this episode: What is a super PAC, and for that matter, what's a PAC? What are the rules they have to follow? Does spending money in an election count as free speech? We address campaign finance and the murky world of dark money with Dante Scala, political science professor at the University of New Hampshire. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!



NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.


Civics 101

Episode 94:  Super PACs


Virginia Prescott: [00:00:23] I'm Virginia Prescott and this is Civics 101. The pod cast refresher course on the basics of American democracy. Political campaigns cost money. Lots of money. And the more you've got the more likely you are to be seen and heard by voters. A new player in campaign finance launched in 2010: the super PAC. These groups raise hundreds of millions to support candidates, while raising outrage from critics. So how do super PACs work and why are they so controversial? To find out we are asking Dante Scala. He's associate professor of political science and a fellow at the Carsey Center for Public Policy at the University of New Hampshire. Dante so great to have you in the studio.


Dante Scala: [00:01:03] Thank you very much. Thanks for coming in.


Virginia Prescott: [00:01:05] Before we get to a super PAC, what's a PAC?


Dante Scala: [00:01:08] So a PAC is a political action committee and that's a popular term for a committee that is organized and established in order to raise and spend money to elect candidates or perhaps to defeat candidates. They've been around for about seven decades. If you can go back to the first PAC which was established by a labor union to work for the re-election of Franklin Delano Roosevelt.


[00:01:41] And so the PAC is really a work around around federal law because the labor union wanted to be careful not to violate federal law which did not allow unions to contribute directly to federal candidates. So the union wanted to support FDR but couldn't do it directly. So what do they do. They create this committee or PAC and they essentially take the money which is donated by say individual union members as opposed to the corporate union treasury itself and those members would contribute money into a bank account that was separate from say the union treasury. So that was the beginning of the political action committee. And they've been in existence ever since.


Virginia Prescott: [00:02:29] You said that was a workaround. So what are the kind of rules for PACs? You know how much money can a PAC accept or use for a campaign? How much of a candidate's campaign can come from PACs?


Dante Scala: [00:02:39] So currently a political action committee can receive up to five thousand dollars from say an individual in a given calendar year. Now there is no aggregate limit on how much they can raise or how much they can spend. But there are those individual limits. Also there are limits on how much a PAC can donate like they can donate for example again. Five thousand dollars to a candidate committee for a given election. They can also give more money. Fifteen thousand dollars say to a national party committee they could even donate to another PAC if they wish to. But the key thing about a PAC which keeps them from being super is that limit on how much an individual can donate and then how much that PAC can can accept from an individual.


Virginia Prescott: [00:03:40] OK so we're supersizing this now, we've got this super PAC. What exactly is a super PAC?


Dante Scala: [00:03:47] So a super PAC is one not a technical term used by say the Federal Election Commission. It was basically a journalist's invention that captured the idea but in some ways it's a different sort of animal entirely from a PAC.


[00:04:03] The difference between a Super PAC and PAC is that a super PAC can accept unlimited sums of money from a corporation, from a union, from some type of association, or even an individual. So they can raise unlimited sums of money from those places and then they can also spend unlimited sums of money to advocate for or against a political candidate.


[00:04:33] And basically they can do all that as long as they follow two rules. Number one a super PAC cannot donate money directly to a candidate and then two, and this gets rather murky rather quickly, the super PACs spending cannot be quote unquote coordinated with the candidate that they're trying to benefit.


[00:04:59] So as long as super PACs follow those two rules they can raise and spend unlimited amounts of money.


[00:05:08] Now important to note super PACs often are depicted as being outside groups and outside the political party structure. But it's probably better to understand it as, there is a connection there. Super PACs tend to be quite partisan. Better to understand them as being part of the political party structure, not the formal structure, but the informal party network.


Virginia Prescott: [00:05:32] I'd love to work through an example of that. First, can anyone create a SuperPAC?


Dante Scala: [00:05:36] Yes as long as you're willing to do the requisite paperwork and file it and so forth with the federal government anyone can create a super PAC. A few years ago a high school junior and a couple of his pals decided on a lark to create a super PAC. They filled out the paperwork and lo and behold the FEC contacted them some weeks later about one point or another about their super PAC and then they forsook the whole thing. The comedian Stephen Colbert created his own super PAC. It was called Americans for a better tomorrow, tomorrow. And and he did that of course you know to highlight what he saw as the absurdity of the campaign finance structure in the United States. But again anyone can create it.


Virginia Prescott: [00:06:34] OK. I have a million dollars, right. I think the BLT should be established as America's official sandwich. And I start the All Americans for the Most American BLT. What can I do to further my sandwich agenda? I can't give money directly to a candidate's campaign, correct?


Dante Scala: [00:06:56] You cannot.


Virginia Prescott: [00:06:57] OK. But can I run ads or make phone calls or send out mailers for a candidate as the the BLT PAC?


Dante Scala: [00:07:08] Right. So you as an individual could only give you know several thousand dollars to say a pro BLT candidate you want to support and let's say you want to do more. You can go and create say a direct mail campaign and you can shower the voters of the first congressional district with pro BLT candidate mailers and you can run television ads on behalf of that candidate you can set up a phone bank on behalf of that candidate.


[00:07:41] You could put together a volunteer organization to go door to door on behalf of that candidate as long as there is that separability or lack of coordination between your organization your pro BLT Super PAC and that candidate you're supporting. There's all sorts of campaign type activities that you can do that for the voter receiving the mail piece or the the door piece is indistinguishable.


Virginia Prescott: [00:08:11] Right. They don't see anything. Does the FEC require me to say "paid for by Americans for a better BLT tomorrow" or something?


Dante Scala: [00:08:20] There has to be some disclosure. Of course like in a mailing piece you have to be examining it with a magnifying glass to figure out where the money is coming from.


Virginia Prescott: [00:08:32] Can I help facilitate travel or speaking engagements for a candidate?


Dante Scala: [00:08:36] Let's say your pro-BLT candidate is running for Congress. That candidate can attend one of your fundraisers. That candidate can speak at the fundraiser. The candidate can be a featured guest. So you know all the invitations that you're sending out to people who you want to donate to your super PAC can say pro BLT candidate Smith is going to appear at this event.


[00:09:03] All of that can happen on behalf of the super PAC as long as the candidate herself is raising a limited amount of money. OK. So the candidate has to follow the old rules of the game but that doesn't prohibit someone from your super PAC say soliciting a donor who's just met the pro-BLT candidate and that donor wants to do more than just write a check to the candidate. There's no reason a superPAC official couldn't go to that donor and say, Would you like to do more? You can contribute to our super PAC and spend an additional say hundred thousand dollars, that both the donor and the superPAC know will go on behalf of that candidate.


Virginia Prescott: [00:09:46] All right, does my super PAC have to disclose the source of its funding you know say like my friend Oscar Meyer says oh I'll donate a million more dollars. Do I have to disclose that to the public?


Dante Scala: [00:09:56] Yes. If an individual donates to a super PAC that say you know Mr. Meyer donates to the super PAC that does have to be disclosed in FEC Federal Election Commission documents and it becomes public and so forth.


Virginia Prescott: [00:10:13] But would Oscar Meyer as a corporation have to be disclosed if they gave a million dollars?


Dante Scala: [00:10:19] Here's where it gets a bit murkier. So yes and no. Chances are what the corporation will do and what what we've seen so far when Citizens United debuted from the Supreme Court back in 2010 there was all sorts of concern about, corporations themselves are going to wade into politics. That hasn't happened the way we might think. You know we don't see Target say advertising for congressional candidates and so forth because you know the reason for that is it tends to be bad for business. Target doesn't want to alienate one political tribe or another especially these days.


[00:10:56] But what an individual or even organization could do, in order to avoid transparency, is donate to what are so-called dark money groups and these are technically known as 501 c organizations. And they're often described as nonprofit groups you know groups that are in existence to contribute to the social welfare that sort of thing. And so they are under federal law. Don't have to disclose their donors as long as they remain say a social welfare group as opposed to an overtly political group.


[00:11:34] So they can spend some money on politics but not all of their money on politics. So as long as they stay within the boundaries, that individual, let's say Mr. Meyer wants to contribute but doesn't want to disclose. So the individual Mr. Meyer gives to the 501 c, the 501 c can turn around and donate that money to the BLT super PAC. And so that's another way that money can be funneled in a way that avoids transparency.


[00:12:03] And this is where you know you go back to the logic of the Supreme Court majority back in Citizens United. That idea was well as long as there is disclosure, some of the Justices thought, as long as there's disclosure what's the harm in allowing individuals to donate large amounts of money? Isn't that basically an exercise of free speech as long as there is disclosure? Now the difficulty now is we have individuals contributing large large large amounts of money without disclosure. And that's where people get very nervous because you have large amounts of money changing hands and no one can follow at least not very easily.


Virginia Prescott: [00:12:45] Let's just clarify though you mentioned the 2010 decision Citizens United. Is that the sort of dawn of the super PAC?


Dante Scala: [00:12:53] It's part of the dawn. It's usually the one that gets the most attention right in part because Democrats and Barack Obama himself when he was president focused on Citizens United.


[00:13:03] But it's only part of the equation. So the Citizens United case, Supreme Court says there are no limits on corporations making independent expenditures. It's unconstitutional. So corporations and unions can now spend directly in federal elections.


[00:13:20] There was a second federal court decision that took place below the Supreme Court level, at the appeals court level, that was also important. It was called the Speech Now dot org decision and that removed the cap on how much an individual donor could contribute to an independent expenditure group. And later that year the FEC the Federal Election Commission which again is the federal agency that oversees campaign finance regulations basically said well here's how we interpret the Speech Now ruling. If you're a political committee, if you're a corporation, if you're a union, you can make an unlimited contribution to a super PAC or as it's technically known an independent expenditure only committee.


[00:14:08] So to understand the super PAC it's those two cases together that paved the way for what we have now.


Virginia Prescott: [00:14:15] And how much money we're talking about Dante, like how much money spent on super PACs in just election 2016?


Dante Scala: [00:14:24] Yeah so in 2016 I mean we saw that outside groups not formally connected to a political party spent more than 1.4 billion dollars. And that's you know all the races you know presidential races as well as say congressional races and that is up from about 1 billion dollars in 2012. And again these are the super PACs plus the 501 c so-called dark money organizations all working together. So there's a lot of money spent by these groups.


Virginia Prescott: [00:14:58] So these watchdog groups like Open Secrets and you mentioned people feared that Citizens United opened the door for corporate money to go in and influence elections. What about the case for super PACs. What's behind the reason that we have them and that it is OK?


Dante Scala: [00:15:15] A big part of the defense of super PACs is a defense of free speech and that goes back to the simple definition that spending money is equal to free speech and that if you tell a donor that you can only spend a thousand dollars on behalf of pro BLT candidates that if you prevent them from spending more of their money that you're essentially restricting their free speech rights.


Virginia Prescott: [00:15:48] Has the super PAC changed our electoral system or the way we do elections?


[00:15:53] It has allowed big donors, the very wealthy, to have even more of an impact on races because what we find with super PAC funding is that a disproportionate amount comes from a very small number of people.


[00:16:13] A lot of super PACs are essentially, though, extensions of campaigns themselves. You know there are more ideological super PACs like Club for Growth for example on the conservative side. But a lot of super PACs really you know they haven't had necessarily the disruptive influence in terms of overturning the way that candidates do business.


[00:16:36] Now they've given candidates an even easier way though to raise lots and lots of money relatively quickly. One could argue that has had something of a level playing field effect, like say in the presidential primary for example New Hampshire Public Radio did some good reporting on say the candidacy of Carly Fiorina, who is a Republican running in a very crowded field. She wasn't very well funded compared to others. And in a previous generation Carly Fiorina had to go to lots and lots of individual donors and collect a few thousand dollars apiece, that takes a long time to raise significant money.


[00:17:17] Now with a super PAC that Fiorina had she was able to get a lot of money from a relatively few people which freed her up to pursue other campaign activities. So one effect of super PACs, intended or unintended, has made it easier for candidates to do business.


[00:17:37] Now some people would argue that this has weakened political parties and that perhaps what Super PACs have done have made candidates even less tied to political parties than they used to be and maybe we need more control for our democracy to work.




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This podcast is a production of New Hampshire Public Radio.

Episode 93: Welfare

Welfare is one of the nation's most contentious and least understood social programs. What began as support for single mothers and their children has throughout history been a target for stigmatization and budget cuts. Premilla Nadasen is author of Welfare in The United States and she joined us to better understand the history and potential future of the program.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!



NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.


Civics 101



Virginia Prescott: [00:00:00] I'm Virginia Prescott and this is Civics 101 the podcasts refresher on the basics of how our democracy works. Welfare is one of the nation's most contentious and least understood social programs. What began as support for single mothers and their children has throughout history been a target for stigmatization and budget cuts. Today we're going to get some background on welfare and here's some data on the program's relationship to poverty. Premilla Nadasen is Professor of History at Barnard College and author of welfare in the United States, and here to help. Premilla, welcome to Civics 101.


Premilla Nadasen: [00:00:33] Thank you very much.


Virginia Prescott: [00:00:34] We're starting with the basics although there's a lot to it. What is welfare?


Premilla Nadasen: [00:00:39] That's a really great question. I think at the core we have to think about welfare as a way for us to provide economic security to provide a safety net for the most vulnerable citizens in the United States.


Virginia Prescott: [00:00:53] When did it begin as we know it?


Premilla Nadasen: [00:00:56] Welfare actually has a very long history. For much of U.S. history the care for the poor for the unemployed for those who are unable to take care of themselves was a local concern so local districts often with the help of charities would take care of the poor would provide housing or food. In the 1920s we see the emergence of something called Mothers pensions programs. These were state level programs that provided assistance primarily to single mothers and their children. The welfare system as we understand it today began in the 1930s in the midst of the Great Depression when Franklin Delano Roosevelt was president. He passed a piece of legislation called the Social Security Act in 1935 and that created the Aid to Families with Dependent Children program.


Virginia Prescott: [00:01:48] So Social Security and welfare often get lumped together. Do they belong together?


Premilla Nadasen: [00:01:54] They're actually very different kinds of programs so Social Security as we speak about it today is really a program for the elderly. It's a program that people pay into although it is not fully funded through personal contributions. And once people retire they do receive a Social Security payment from the federal government. AFDC or Aid to Families with Dependent Children is a program that is what we called means tested and categorical. That is you have to fall below a certain poverty threshold in order to qualify for AFDC. And you have to be a single parent with children with a child or with children. AFDC no longer exists as we understand it is no longer called that, it's called TANF, Temporary Assistance to Needy Families.


Virginia Prescott: [00:02:43] What was the primary goal of welfare when it started?


Premilla Nadasen: [00:02:47] The primary goal of welfare was to provide financial support for poor single mothers who did not have a male head of household who was working and who could support them. It provided a monthly stipend initially just for the children. And a few years later in the 1940s it expanded to also provide a stipend for mothers. The vast majority of recipients in the very earliest years were white women white single mothers. Women of color were either excluded completely from AFDC or if they did receive it as was the case with some African-American women in the south they were kicked off of the welfare rolls during cotton picking season. And so welfare was actually rooted in the idea of women's roles as mothers that women did in fact work. They had a primary responsibility to take care of children. This was racialized because white women had historically been seen as mothers whereas women of color especially African-American women had historically worked welfare when it started actually offered a very meager stipend. So many women who were on the welfare rolls didn't get enough to support their family so they would often do side work as a way to supplement their income. Despite some of the weaknesses with the early welfare program I think it was a very very important program because it did provide something of a safety net especially for poor single mothers but it also was I think recognition of the social value of mothering.


Virginia Prescott: [00:04:26] That seems consistent with American values that very pro-family idea. You said it was racialized when and why did welfare become controversial?


Premilla Nadasen: [00:04:37] Welfare started to become controversial around 1960 or so the term welfare queen was coined in the 1970s and this was the stereotype of a black single mother who people believed was lazy who had multiple children by multiple fathers who was a drain on the public coffers. And this was a term that was popularized by Ronald Reagan in the 70s. And it really embodies the idea of the undeserving black single mother. That image though of the welfare queen is something that was rooted in an earlier period of the 1960s and beginning in the 1960s when we first begin to see public opposition to welfare. Prior to that welfare was not a controversial program but in the 1960s we begin to see states launching fraud investigations to examine and ferret out people who were cheating the welfare system. We begin to see more discussions about race in terms of welfare so welfare becomes tied to the politics of race. There's a particular concern about African-American and Puerto Rican women who are deemed undeserving of assistance.


Virginia Prescott: [00:05:54] Ronald Reagan among others that was one of those who pointed out fraud that there were women bilking the government of hundreds of thousands of dollars. So any truth to those kind of allegations and what kind of percentage of fraud happens in the welfare system compared to other government programs?


Premilla Nadasen: [00:06:10] There's always a degree of fraud. There's a degree of fraud in every single program public or private. And so I would never say there was no fraud but studies show that rates of fraud in the welfare system are minuscule. In fact the vast majority of people who are on welfare don't really want to be on welfare. If they had an option to be able to support their children in some other fashion or if they could get jobs in fact that's what they would choose to do. So there have been numerous investigations about welfare fraud and even in the 1960s there was very little evidence that there ever was fraud.


Virginia Prescott: [00:06:47] I want to pick up on that idea of states debating welfare and welfare payments. Now this is a federal program. States control the spending. What are some of the ways that they wanted to curb enrollment?


Premilla Nadasen: [00:07:00] Well once women of color started applying for and receiving welfare assistance there was a concerted effort on the part of state to try to limit the number of women who were on welfare. So we see in the 1960s that welfare is becoming more and more punitive it's moving away from the intended mission of supporting single mothers towards one of sanctioning them and getting off of welfare. And states used a number of different strategies to do this. They use something called a suitable home rule that they passed locally where the caseworker would go into a recipient's home and try to determine if in fact the recipient had improper standards of housekeeping perhaps the house was dirty or perhaps the children didn't look like they had been fed or for one reason or another. This would be grounds not to improve home life but actually to simply cut the recipient off of welfare assistance. Another rule that was used was the man in the House rule so caseworkers would show up sometimes in the middle of the night. And these were referred to as midnight raids and they would try to determine if there was any evidence of male presence in the household they would look for a pair of men's shoes under the bed or a razor in the bathroom and if they found this it was evidence for the case worker that the woman had a relationship with a man. And the assumption was that this man would be able to support the family. And then another way that states would try to remove families from the welfare rolls was through the implementation of work requirements. So we begin to see in the 1960s for the first time states requiring that recipients either take job training or actually be employed. And I think this is really significant because this suggests the ways in which states began to think about removing people and I think began to undercut this idea about the importance of motherhood and women staying home to raise children.


Virginia Prescott: [00:09:16] Let me just make sure I understand you said that aid to families with dependent children ended. That was the 1996 reform?


Premilla Nadasen: [00:09:24] That's right. So in 1996 Congress passed and President Bill Clinton signed a piece of legislation that was known as a Personal Responsibility and Work Opportunity Reconciliation Act and that transformed AFDC or what we call welfare today into block grants for states. It was renamed Temporary Assistance to Needy Families. And what this did is it took the block of money the states were getting for welfare and it allowed states to do a lot of what they wanted with it so states could really well their own welfare program. There were no longer federal mandates about how many recipients ought to be covered. About who was eligible. In fact federal mandates now actually limited welfare assistance. So along with this change states said that recipients could no longer remain on welfare for more than 5 years or so there was a lifetime limit of five years on welfare receipt. They now required that states put recipients to work. So recipients now have to work 30 hours a week. The legislation also attempted to promote marriage. So I think it's interesting to think about the shift because it suggests that the government now laid the ultimate responsibility for poverty with the families themselves. Poverty as at its core as was understood in the 1996 legislation was an individual problem and that if in fact people married if in fact they had job training the assumption was that they would be fine.


Virginia Prescott: [00:11:05] How many families receive that Temporary Assistance for Needy Families or TANF today?


Premilla Nadasen: [00:11:12] Today there are about 4 million recipients on TANF, about one point five million families and that number has declined dramatically since welfare reform there were about thirteen point five million families who were receiving welfare assistance in 1996. So there are far fewer families who are on welfare assistance today.


Virginia Prescott: [00:11:39] Are there far fewer families who are living in poverty today as well?


Premilla Nadasen: [00:11:43] No. In fact today only about 10 percent of families who are poor are receiving welfare assistance. There are about 41 million Americans who are living in poverty today it's about 13 percent of the population and 18 percent of children today are poor. And I think an even more alarming figure is the number of families who are living in what's called extreme poverty in the United States today. And this is a figure that suggests that families who are living on less than two dollars per person per day which means that they essentially have no income. The number of individuals in extreme poverty has doubled since 1996. Today in the United States we have one point five million people living in extreme poverty.


Virginia Prescott: [00:12:38] The House and Senate passed a joint budget resolution this fall with significant cuts to welfare programs and there were arguments on the floor for rolling back or even eliminating social safety net programs. So what Premilla do you think is the future of welfare?


Premilla Nadasen: [00:12:54] If we look at the current tax bill in the current budget it does not look very promising. I think there are some misconceptions however about the cost of welfare as it relates to the federal budget. More broadly today TANF is about point five percent of the total federal budget. And we can compare that to Social Security the program for the elderly which is 24 percent of the federal budget. So TANF the program we have for poor single parents and their children is actually a very very small amount of what our federal government spends. I do think that in this moment when we see more and more families who are living in poverty who are unable to care for themselves when there are fewer options for child care when it's very very difficult to try to support a family on minimum wage. In fact the minimum wage right now the federal minimum wage is seven dollars and 25 cents. If you work 40 hours a week 52 weeks of a year you will earn fifteen thousand dollars a year. The poverty threshold for three people in this country is twenty thousand dollars. So even if you work full time at a minimum wage job job you are not earning enough to support your family. So I think we have to think about ways in which we can provide some kind of supports to the poor and I think we're moving in the wrong direction.


Virginia Prescott: [00:14:25] Premilla, thank you very much for joining us.


Premilla Nadasen: [00:14:27] Thank you Virginia.


Virginia Prescott: [00:14:28] Premilla Nadasen is a professor of history at Barnard College and author of Welfare in the United States.




Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Episode 92: Lightning Round

Today, we celebrate our one-year anniversary with the first annual Civics 101 lightning round, in which we answer all the little questions you sent us that we never got around to answering in a full episode. Joining us to test his civics knowledge against your queries is Dave Alcox, social studies teacher at Milford High School and friend of the podcast. 

Plus, stick around after the show for an exclusive taste of the secret, long-form Civics 101 theme song. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!



NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.


Civics 101



Virginia Prescott: [00:00:23] I'm Virginia Prescott and this is Civics 101.


Virginia Prescott: [00:00:25] The podcast refresher course on the basics of how our democracy works. While I cannot believe I'm saying this but Civics 101 is celebrating its one year anniversary. We published our first episode exactly one year ago today with the new president. Then in the White House promising to shake things up there is a lot of confusion about what could and couldn't be shaken. We decided to do something really simple: answer your questions. Now if there's anything we've learned one year later it's that trying to answer one question about how government was designed to work raises like six other questions. And in that spirit today's show is a special celebratory one. We get so many questions from listeners that we can't possibly dedicate full episodes to every single one so we present the first annual Civics 101 lightning round. We do have a true believer in all things civic here to tear through some questions. Dave Alcox teaches civics and social studies here in New Hampshire. He's a former New Hampshire teacher of the Year and won the American Civic Education Teacher Awards. That's the national award. Maybe you remember him from Episode 31. How a Bill Becomes a Law.


Virginia Prescott: [00:01:33] All right Dave ready to go.


Dave Alcox: [00:01:34] Yep.


Virginia Prescott: [00:01:36] So we're celebrating Civics 101's first birthday What do presidents generally do for their birthdays?


Dave Alcox: [00:01:41] Well honestly it depends on who the president is that could be anything from having celebrities and musicians flocking to the White House. But in the old days you know it was pretty modest Dolly Madison served vanilla and peach ice cream on James Madison's birthday party. First first lady to introduce ice cream to the White House. So it just depends. You know President Obama's had dignitaries and you know Beyonce and people you know come to the White House. I think part of it depends on the first lady what kind of party does she want to throw. You know for the president.


Virginia Prescott: [00:02:13] I think maybe we should move on because this is a lightning round after all. So if a president serves two terms in office can that person run again as a vice president?


[00:02:24] It could be considered a potential constitutional crisis. On one hand you could say yes and on one hand you could say no. I think and many scholars feel that if this was ever a challenge it would really be up to the Supreme Court to decide it. This is one of those gray areas in fact Hillary had thought a little bit about having Bill Clinton run as vice president. Ronald Reagan had thought about having Gerald Ford run as his running mate. And when asked you know there was political turmoil like well you don't want to. You don't want your presidency or the or the primaries to be marred by all the constitutional questions here. So he ends up picking George H.W. Bush who does serve those eight years and then later on becomes president for the next four years which was OK.


Virginia Prescott: [00:03:07] You said it could be a constitutional crisis. What is the constitutional crisis.


Dave Alcox: [00:03:11] Well a constitutional crisis. It could be a number of things. One is one constitutional crisis is when the Constitution doesn't say what the rule is. For example one of the inherent powers of the president is to protect the union. So when people looked at the perpetual union that Lincoln formed in 1860 when the South wanted to leave and he said no it's you know it's like the roach motel you get in and you can never leave you know a lot of people thought in 1860 that the union was sort of like an enhanced Articles of Confederation and that you know it was like a gymnasium membership you could come in when you wanted to leave you could leave and Lincoln's like no it's become perpetual. And obviously the North wins the war so sometimes might makes right and you could sit there and say well that's what we have as a perpetual union. Sometimes the constitutional meaning gets into question which is another area for example like with impeachment what high crimes and misdemeanors. Well what's the meaning of that, that can come into question. So sometimes like a constitutional crisis can be like when there's no clear meaning of that and other times when one of the if there is is the breakdown of one of the branches you know when Andy Jackson says I don't believe in Cherokee Nation versus West versus Georgia or Wister versus Georgia and he said to John Marshall you know have your army stop my army when he wanted to move the Indians and the Cherokee wouldn't you know the Trail of Tears becoming one of our.


Virginia Prescott: [00:04:28] Most horrific.


Dave Alcox: [00:04:29] Arguably one of our biggest failures of our country. That's the executive branch breaking down not following you know what we would say is judicial review. When the court looked at these cases.


Virginia Prescott: [00:04:40] Are we in a constitutional crisis now?


Dave Alcox: [00:04:42] Well I think the constitutional crisis that we see now can be something along the lines of President Trump in the end the ban on, the travel ban. The courts have ruled that what he did was constitutional. Well that acting as president he had the power to do that whether the ban itself was constitutional is another story that the court would have to determine. But in terms of what the presidential power was the court say that he did have the power to do that. So in my eyes that's where you'll see a constitutional crisis. You could also see a constitutional crisis with the whole Russian investigation. You know if if there are certain pardons does the president have the power to pardon people to be you know could that be considered obstruction of justice. So there could be a constitutional crisis. You know in those in those areas.


Virginia Prescott: [00:05:25] All right we have to move on. What are think tanks?


Dave Alcox: [00:05:28] Think tanks are actually groups that are basically non-profit groups. There's about at last count almost 2000 think tank groups Cato Institute, Brookings, Heritage Foundation. There's you know there's politically leaning left and right groups and basically all they do is study study study. They research topics they offer opinions. They give some insight. You know if you were to do this for foreign policy if you want to do this for domestic policy so think tanks I wouldn't compare them to a lobbyist group or a special interest group that might have a slant. They're just there. There are a group of people like you could be in a think tank and you know offer your opinion after doing research on a particular topic.


Virginia Prescott: [00:06:12] Next question what does diplomatic immunity diplomatic mean?


Virginia Prescott: [00:06:17] Diplomatic Immunity basically is what countries will grant immunity to diplomats from other countries to protect them for example.


Virginia Prescott: [00:06:25] I mean from what.


Dave Alcox: [00:06:26] Any types of laws that they would be.


Virginia Prescott: [00:06:29] Arrested. Prosecuted.


Dave Alcox: [00:06:29] Exactly. You don't want Massachusetts grabbing the ambassador from Denmark. So ideally we want to handle that at the federal level and we want to give diplomatic immunity and let let the federal governments deal with any types of crimes or anything. You know diplomats may do.


Virginia Prescott: [00:06:47] All right the historic question. Did President Taft really get stuck in a bathtub.


Dave Alcox: [00:06:53] Well as many people probably know he was our largest president. He's also the only president to go on to become chief justice of the Supreme Court. But reality is probably not. But he was buried in a piano case. You know you're talking about somebody who kind of topped about 400 pounds you know. But a brilliant man. And on the other side of this mountain on the other side of the coin is you have James Madison at five three, hundred and five pounds soaking wet. You know presidents come in all shapes and sizes.


Virginia Prescott: [00:07:21] Next, what is martial law?


Dave Alcox: [00:07:24] Well martial law is when some area of the country is put under military law. Civil rights are suspended. You know if you look at somebody like James Madison or say every word in the Constitution is a struggle between liberty and order. How do we do liberty versus order. Generally when the security of the nation is at risk individual liberty does take a hit. Martial law is generally put in to try to protect if there's extreme circumstances.


Virginia Prescott: [00:07:49] Like what would be a case when that happened in the U.S.?


Dave Alcox: [00:07:51] Well San Francisco earthquake of 1906 is one you can also look at when Little Rock happened when Eisenhower sent the hundred and first airborne... to protect the Central High students you had Orval Faubus going "oh my god what is going on with our country we're under martial law." And it's like Eisenhower was like Look Orval if you had only protected these people's rights I wouldn't have to. But you know he was a segregationist who was running for re-election so he couldn't afford to integrate at that time and so sometimes the president as as the chief law enforcer has to step up and put the smack down.


Virginia Prescott: [00:08:29] Can a sitting president be challenged in the primary?


Dave Alcox: [00:08:32] Absolutely.


Virginia Prescott: [00:08:33] Has it happened?


Dave Alcox: [00:08:35] It has. You've seen George Buchanan challenge George H.W. Bush in 92. You also see Ted Kennedy in it in 1980 with Jimmy Carter. You might see it happen in 2020. It wouldn't shock me if the Republican Party wanted to forward a candidate for 2020.


Virginia Prescott: [00:08:52] Next how many times can Congress try to pass the same bill.


Dave Alcox: [00:08:56] Well if you listen to Civics 101 podcast on how about how a bill becomes a law. You know if you want to go through the process you can go over and over and over again. You know part of that is sometimes times change. You know a new president in office might have a new platform and so there's nothing wrong with throwing you know a bill back in the hopper and having it pulled out and have him go through committee in general. You know the floor and up to the president and it can just happen over and over again until something happens.


Virginia Prescott: [00:09:28] Next is someone born overseas to American parents an American citizen.


Dave Alcox: [00:09:33] The quick answer is yes and there's two ways on citizenship. It's jus solis and jus sanguinus. Jus olis is of the soil if you're born on the soil or born anywhere in U.S. territories because it's of the soil. Then you are automatically a U.S. citizen. We have birthright citizenship that way. Jus sanguinus is of the blood. So long as a parent is one of the more the parents are American. Then you also through jus sanguinus get that bloodline as well.


Virginia Prescott: [00:10:08] OK. Would getting rid of the Electoral College be a good idea.


Dave Alcox: [00:10:14] How long do you have? It depends on who you ask and it depends on what the you know what the situation is I mean I'll give you the pros and cons. People who like it say it makes the one national election that we have for president 50 separate elections and it makes the president to be have to go to all 50 states because every vote including New Hampshire's four electoral votes are important. You out of the 538 electoral votes. You need 270 to become president. So it makes every state count. The people who don't like it say you know back in 1787 we had three million people now we have 315 million people. California has I think 54 electoral votes. So if you win 51 to 49 percent in California you get all 54 electoral votes. It's not a percentage. You look at like Maine who has a split model says you know by district you get those electoral votes and winner gets the two Senate votes. Why can't we do that nationwide, some people say, well you know if you look at the 2012 election Mitt Romney actually wins over Barack Obama if you go by district and that's part of gerrymandering and how we split up districts and so on like that. So it depends on which side of the fence it's historical it's traditional it's something that we've had you know embedded as just a check in our Constitution. I don't want to start any brawls out there and I don't want people to you know send hate mail into NHPR.


Virginia Prescott: [00:11:32] Too late.


Dave Alcox: [00:11:33] So I'll let you the voter, those those are the two sides you have.


Virginia Prescott: [00:11:37] All right. Next. how much leeway do presidents have to redecorate the Oval Office. Are there items that must stay.


Dave Alcox: [00:11:44] Obviously the presidential desk is the big one. You want to have the resolute desk there. But you know the White House themselves they do get a budget. You know they do get a budget to redecorate the entire White House. I think what the Oval Office. There's a genuine respect for history there.


Virginia Prescott: [00:12:02] Is there a website where we can go in order to see the voting records of my senators and representatives.


Dave Alcox: [00:12:09] Absolutely. In fact in article one of which is the legislative part of the Constitution they have to have a public record. There's a lot of websites like congress.gov handy web sites like ballotpedia.org to basically follow. You could plug in your Senators and Representatives they'll tell you who's voting when and what their votes are about. I think the media now has allowed so much more transparency for the individual to kind of keep you know a watchdog if you will. There's a ton of watchdog groups out there but it allows the individual to actually be a watchdog themselves.


Virginia Prescott: [00:12:43] All right so imagine; you know we have the Avengers, right the team of superheroes.


Dave Alcox: [00:12:46] Yes.


Virginia Prescott: [00:12:47] So imagine 'the founders'. Who would be on your elite superhero founders squad.


Dave Alcox: [00:12:51] Well it's funny because I'm a huge comic book fan and so are my students. We've talked about this before actually and the original Avengers were Hulk, Thor and Iron Man and then Captain America actually comes on Avengers issue number 4. Those end up being the big four and then there's people that come and go and all that Captain America's belief, truth justice the American way and that patriotism should be important. That has to be James Madison. And what's funny is Steve Rogers starts out as a really frail person anyway and Madison was 103 pounds soaking wet, he spoke very softly because he was constantly sick. He finished Princeton in two years instead of four because he was studying 18 hours a day. But he also writes in Federalist 10 you know let's let's elect officials whose true wisdom will best discern any partial or temporary considerations. And what he meant by that was you know people who do the right thing. And so Captain America has to be in my eyes James Madison. Thor is the strong one with the hammer and almost godlike that could easily be Thomas Jefferson or George Washington. Jefferson's a Virginia farmer and he was pretty jacked a lot of people don't know. But Jefferson was probably going to be Thor. Franklin and Hamilton on the other hand could be Tony Stark. You know Tony Stark is Iron Man is a playboy intelligent inventor. Franklin is this but so is Alexander Hamilton. You know both of them had that Playboy tendency. The Hulk was kind of a big brutish kind of guy. Jeez it's hard to say. I think I would probably put in even though I didn't go to the convention, I'd probably put it like Samuel Adams or Patrick Henry because both of them could just pick a fight. Thomas Paine as well could just pick a fight but that would be my All-Star Squadron and if I had to put together you know those four people you have really in the classroom and actually the black widow. You have to put Abigail Adams as the Black Widow because she absolutely kept the farm together. She was amazing. So shoutout to Abby, Abby Adams.


Virginia Prescott: [00:14:49] OK speaking of shoutouts, I believe you have something to celebrate.


Dave Alcox: [00:14:52] Well Milford High School We the People competed two weeks ago in the New Hampshire state competition and they won. They beat teams from Hollis Brookline and John Stark. So it is it is just a shout out to them. So all you folks that are you know Milford High We the People and even if you're We the People alumni please keep up your civic values and traditions and let's keep New Hampshire Granite and keep it strong.


Virginia Prescott: [00:15:17] Big whoop to Milford High School. OK. Quickly. What civic concept do you wish every American understood.


Dave Alcox: [00:15:23] Well a lot of my students we've talked about this a number of times. And right off the bat we had a number of kids say civic discourse. That if they can actually have people communicate better, play nice in the sandbox, people aren't doing that anymore. You see that with divisiveness and you know there's no bipartisanship anymore. There's no there's no Ronald Reagans and Tip O'Neills duking it out and then later having a beverage and you know a barbecue. So they believe that this has kind of transcended to the American population too and that we really believe that communication without a doubt is important. It's OK to have ideas. You know John Locke, Montascue, Hobbes, they had tons of ideas. It's how you take those ideas and apply them well.


Virginia Prescott: [00:16:07] Dave Wilcox you are my new lightning round superhero. Thank you so much.


Dave Alcox: [00:16:11] My pleasure thank you so much for having this forum. Because I think everybody wins.


[00:16:17] Dave Alcox teaches social studies at Milford High School in New Hampshire. Well as part of a Civics 101's first birthday celebration. We've got a big revelation for you here. Kind of a director's cut. I'm gonna call it our civics 101 theme is composed by Taylor Quimby. He's senior producer. He's a musician. He's a dad, he's a fantastic colleague and he wrote an extended version of the Civics 101 theme.


Taylor Quimby: [00:16:43] Well you know it wasn't... this could have just straight up the theme but I think after after we played it the first time for the team it quickly we realized that it was maybe a little too.. a little too fun like we were going for fun. It was a little too fun.


Virginia Prescott: [00:16:57] Civic you mean civics can't be fun.


Taylor Quimby: [00:16:59] Civics can be fun but this is this was. It's over the top.


Virginia Prescott: [00:17:25] Yep. I don't think we could listen to that every single time.


Taylor Quimby: [00:17:28] No no. I remember it so I, I was working on my little home studio for like a half day and I finished just the barbershop quartet like Civics 101 beginning and I thought that's pretty good. And then I was like but what if I just keep playing and then I just kept going and going and going and by the time I was finished I was like there is there is no way people will go for this theme. You know we've actually done each of the episodes I mentioned there.. What does the chief of staff do. Gerrymandering. How does an amendment get made.


Virginia Prescott: [00:18:03] Press corps, what does the press corps.


Taylor Quimby: [00:18:04] Yeah we've done all those


Virginia Prescott: [00:18:05] Yeah but I like that you rhymed them. You know what is the gerrymander. I know I need an answer.


Taylor Quimby: [00:18:10] Well as an amateur songwriter rhyming is in the toolkit. By the way my inspiration for the part that nobody has heard up until now was the Where in the World is Carmen Sandiego theme song.


Taylor Quimby: [00:18:23] Where in the world is Carmen Sandiego. You remember?


Virginia Prescott: [00:18:26] I think you kind of hit it there Taylor.


Taylor Quimby: [00:18:28] Yeah but I will always forever in my head have this stuck in my head. Diggita diggita diggita dum dum.


Virginia Prescott: [00:18:35] And if you're a superfan you can download it and listen to it every time you play Civics 101.


Taylor Quimby: [00:18:39] Indeed.


Virginia Prescott: [00:18:39] and that wraps up the first annual Civics 101 Lightning Round. Thank you so much to everybody who sent in your excellent questions all year long. Seriously we could not do this without your enthusiasm and your support and we are thrilled to hear that so many school systems across the country are using Civics 101 to teach civics especially in places where it is no longer on the curriculum. Please do keep your questions coming. You can write us at Civics 101 podcast dot org. Today's show was produced by Ben Henry executive producer is Taylor Quimby music from broke for free. I'm Virginia Prescott. Proud to say that civics 101 is a production of New Hampshire Public Radio.




Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Episode 91: The Two-Party System

There are lots of political parties in the United States - so how come we pretty much only hear about two? What is the 'two-party system' and why does it hold sway? Is it an intentional part of governmental design, or is this simply how history shook out? In this episode, we'll explore those questions, hear from an original member of a third party, and dig into something called Duverger's Law - which explains why two parties tend to dominate in American politics.  Our guest is Civics 101 Senior Producer Taylor Quimby. This episode also features Hans Noel, political scientist at Georgetown University, and Lenny Brody, a member of the steering comittee at The Justice Party.  

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!



Civics 101

Episode 91: The Two-Party System


This transcript was generated using an automated transcription service, and may contain typographical errors.


Virginia Prescott:  [00:00:22] I’m Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of American democracy. Today we're hoping to answer a number of questions about the structure of American government.


Sherry:  [00:00:35] Hi my name is Sherry and I live in Dayton Ohio.


Ronin: Hi this is Ronin from Brooklyn, New York.


Sherry: [00:00:40] How and why did we end up with a two party system?


Ronin: Was that by design or did it just happen over time


Virginia Prescott: [00:00:48] Civics 101’s Senior Producer Taylor Quimby has been looking into this and he's here to walk us through. Hey Taylor.


Taylor Quimby: Hi.


Virginia Prescott: So is the two party system spelled out in the Constitution.


Taylor Quimby: [00:00:58] It isn't. And I think right off the bat it's worth saying that this two party system that we have in the U.S. is not by design. It is incidental. There are two party systems in some other countries as well. Of course not with Democrats and Republicans as those two parties but places where two parties hold sway. These systems are born of our institutions rather than built into it. And in fact George Washington himself was against political factions as he called them. But you did regardless see the formation of political parties almost right after the founding of the country. So I guess when people say the two party system they're not specifically talking about a system in which Republicans and Democrats dominate political representation or a system in which only two parties are allowed to hold political power. They're really talking about a system in which for a whole bunch of reasons there are only two major parties that dominate at any given time. I think that's really important.


Virginia Prescott: [00:01:52] So in a system like this, whatever they're called, this bifurcated system, the parties can change? I mean it's not always the same two parties?


Taylor Quimby: [00:02:00] Exactly. They can and they have. And the first two major parties in the U.S. were the Federalists, led by John Adams and Alexander Hamilton early on, and the Democratic Republicans, also called the Jeffersonians, who as you might suspect were led by Thomas Jefferson, and those two parties held sway for about 30 years with the Democratic Republicans winning almost all of those elections. Then things got disrupted and the Whigs, which you might have heard of, and the Democratic Party, became the two major parties for about 25 years in the early to mid 1800's.  And then around the Civil War the Republican Party replaced the weak party. Basically they were very similar very similar platforms except the Whigs didn't want to fight slavery and Republicans were vocal abolitionists. And from that point on you had the two dominant parties that we have now the Democrats on the one hand and Republicans on the other.


Virginia Prescott:  I’m just trying to wrap my brain around the fact that they were the Democratic Republicans very closely aligned at one time.


Taylor Quimby: So it's very confusing with all the different party names... the Democratic Republicans are different than the Democrats and the Republicans. And I think that sometimes is the, a piece of the confusion when we're talking about parties in general.


Virginia Prescott: [00:03:13] But there's nothing legislatively right, you know there's nothing constitutionally that stops a third party from running or from forming?


Taylor Quimby: [00:03:18] No, not technically. There are dozens of active third parties in the U.S. You've heard of the Libertarian Party, the Green Party. There's also many that you have probably never heard of, the legal marijuana now party, the Peace and Freedom Party, the Modern Whig Party is actually a thing. So people are taking the old Whig Party into the present sort of. But you will find that even those prominent third parties that I mentioned, they have no representation in Congress.


Virginia Prescott: [00:03:42] Well this is a big criticism of American politics, that we are in this two party system and it sort of forces ideas into one or two camps so why do we not have legitimate third party.


Taylor Quimby:  [00:03:53] Well that gets to something, and this sounds kind of like a physics class in this moment, called Duverger’s Law, which you know might sound a little stodgy but it's very interesting.


Virginia Prescott: Sounds very French.


Taylor Quimby: Indeed. It's named after him man in Maurice Duverger. He was a French sociologist who wrote about these sort of party systems in the 50s and 60s, and then later folks came up with this law based off of his work. Now I'm going to simplify this a bit but there are two main pieces to Duverger’s Law and the first one is mechanical. Basically the law says that certain types of voting systems tend to favor the formation of two dominant parties. Those systems are plurality rule, where whoever has the most votes wins it all.


Virginia Prescott: [00:04:34] That's theoretically the American system.


Taylor Quimby: [00:04:36] Yep, and single member district voting where a single member is elected per district. And again, basically we're saying the two systems that we use in the US. So I spoke to a guy named Hans Noel, a political scientist at Georgetown University and he explained it to me this way.


Hans Noel: [00:04:55]  Whichever party can come in first with just 30 percent. They're going to, they're going to of course succeed, are going to send people to a legislature and so forth. And the second, they're the best bet to be the other party. Occasionally they'll come in first some other district. But if you're coming in third or fourth then you're never going to be in a position to come in first and you're not going to get seats at all.


Taylor Quimby: [00:05:10] I would sort of summarize the mechanical aspect this way: which is that because we have a winner take all system, let's say in the presidential election is the easiest example, say say it broke down quite a bit differently than it does in politics today. And you had the Republicans getting 40 percent, the Democrats getting about 40 percent, a little less than, a third party getting 20 percent. Even if they were getting 20 percent of the vote in the entirety of the U.S., election after election after election after election they would never have won the office once. So you could have a big swath of people that really do believe in this third party, and yet still the deck is stacked. So that's the mechanical side of things. Now Duverger’s Law also has a psychological element, which is to say that people who notice that the deck is stacked against third parties, they're going to look at that and say well if that's the way it is then that's the way it is. So it's kind of a self-fulfilling prophecy.


Hans Noel: [00:06:09] As a voter right you might really really like the third or fourth or fifth most likely to succeed party. But you know that's not going to happen. Meanwhile you probably care a little bit about the first and second place parties and so you should choose which one of those you want to push over the over the line. Meanwhile if you're a politician and you want to get elected, you shouldn't join a third or fourth party, you should be one of the main ones because again that's the most likely way of getting into the Congress or winning the presidency or whatever else is up for grabs.


Taylor Quimby: [00:06:36] I actually think that last point is really really important, which is that if you want to be a career politician, as in you want it for a career not just because of ideals, you're not going to run in a third party right because the climb is that much higher.


Virginia Prescott: [00:06:53]  And a lot of people think, “Why should I vote for a third party candidate? I'm just throwing away my vote?”


Taylor Quimby: [00:06:54] Exactly. So you might find you might find that there are Republicans who actually really like the Libertarian platform or Democrats who really love the Green party, but choose to be Democrats or Republicans because they think their chances of success are better.


Virginia Prescott: [00:07:06] So if Duverger’s Law finds that a system like ours favors two major political parties at any given time, then why have there been these big shifts you know from Whigs to Republicans for example, over the years?


Taylor Quimby: [00:07:19] Well I think it's worth noting that Duverger’s Law doesn't say that outside parties can't gain enough popularity to displace one of those two dominant parties. It just says that you won't have a political system in which three or more parties share power in Congress in a somewhat equitable way. So you won't have a House of Representatives that's one third Republican one third Democrat and one third say Green Party.


Hans Noel:  The way to succeed isn't to be a viable third party. It's to become one of the two viable two parties, displacing one of the existing ones. What's more likely to happen today isn't that you'd see a switch in the parties but that you'd see a big change in what the parties stand for.


Taylor Quimby: [00:07:56] And I think this point actually gets us to a piece of the puzzle that Duverger’s Law doesn't really address ,which is the sheer inertia of our current political parties as organizations. The longer they hold power the harder it is for a new party to topple them. Which is why we've had Republicans and Democrats as those two dominant parties for a very long time now. You know there are literally more states than there used to be when we were holding elections in 1700 and thereabouts. It takes a lot of money and organization to simply get on the ballot. Never mind building enough support to win a candidacy. And the Democrats and Republicans they've just been doing a very long time.


Virginia Prescott:[00:08:34] Well let's talk about getting on the ballot. You just spoke to a man named Lenny Brody. He is on the steering committee of what is called the Justice Party. Now what did your conversations with him tell you about our two party system and how it works?


Taylor Quimby: [00:08:45] Right. So the Justice Party was sort of built around a guy named Rocky Anderson. He's a liberal two term former mayor from Salt Lake City. He was a Democrat but was becoming very unhappy with where the party was in 2011. He's very much against the influence of money in politics and elections, which people lobby that same criticism against Democrats and Republicans. So he calls up a meeting in November of 2011 with some various political organizers. You know people that have been supporting him for a long time he says he wants to run for President under the banner of a new party. Lenny was there and he said only about 10 or 15 people showed up at that initial meeting.


Lenny Brody: [00:09:25] It turned out that the grouping was not very experienced in traditional politics. A lot of people who had been active in the movement and people were not aware of what it took. And we started discussing how we should go about starting the party what we would need. You know public relations people legal people and discovered we needed a fair amount of help.


Taylor Quimby: [00:09:50] Now now keep in mind that Lenny and all the other people that showed up here, you know, they're not paid employees yet. They've got no funding, they're an entirely volunteer-run organization and all of a sudden they're looking at the logistics of this and it's like trying to start a corporation from the ground up.


Lenny Brody: [00:10:08] Every state had different requirements. And it really was a matter of going to the secretary of state in your state and finding out what the requirements were. There are states like Colorado and Louisiana where you can skip the signature gathering and just pay some money and get on the ballot. And then there's states like California where you need tens of thousands of signatures to get on the ballot. And so it really was you know a process of investigation.


Taylor Quimby: [00:10:37] Yeah. So you can see how between the time, the money, the effort, and sort of needing to get public support, what an uphill climb this is.


Virginia Prescott: [00:10:46] So a lot of hoops to jump through. What ended up happening to Rocky?


Taylor Quimby: [00:10:50] Rocky lost in 2012. Although he did wind up in a debate against Jill Stein, Gary Johnston, and Virgil Goode of the Constitution Party. So I think they did do a good job getting some brand building there. But in 2016 the Justice Party actually chose not to put a presidential candidate forward and instead they endorsed Bernie Sanders.


Virginia Prescott:  Who was technically an independent as a senator.


Taylor Quimby:  But he ran as a Democrat which I think actually again speaks so much to what Hans is talking about, which is that basically they put their hat behind a Democrat because they saw that this Democrat had the power potentially to change the Democratic Party rather than to put forth a third party candidate that they saw maybe had less chance of making as much of an impact as we saw Bernie Sanders making in the last election.


Virginia Prescott: [00:11:44] So how about funding for third parties? You've got Democrats and Republican candidates can technically get some federal assistance in running their campaigns. Is there public money available to third party?


Taylor Quimby: [00:11:54] There is. But I think that you will find that in this case the policies definitely don't help the third parties. So after the bags of campaign cash days in the 1970s Congress passed a law that basically set up a fund so that primary contenders and presidential candidates who meet a certain threshold of popularity are eligible for public funds for their campaigns. In order for third parties to qualify they have to get 5 percent of the vote in a general election before they can get funding. So often this is the sort of thing we're talking about several campaigns before you could potentially reach this point. And that's a staggering amount of support before money is becoming available. Five percent of the vote is something like 15 million Americans and even our biggest third parties at the moment, the Greens and the libertarians, have not been able to hit that mark thus far.


Virginia Prescott: [00:12:44] So have any third parties betting about the hit that mark an end?


Taylor Quimby: [00:12:48] You know recent history well the last third party candidate to win more than five percent of the vote was Ross Perot. He secured a little over 8 percent in 1996. His third party was called the Reform Party. And in 2000 because of that 8 percent they did qualify for the public funding but they didn't do well in the election. Regardless I think they had less than 1 percent in 2000. They sort of also struggled I think from the fact that Ross Perot was the figurehead of that 1996 election. And in the years afterwards they suffered from sort of an identity crisis as a party. You had Pat Buchanan becoming the nominee in 2000. Later Ralph Nader was their candidate in 2004 and surprisingly Donald Trump almost ran under the Reform Party in 2000. He set up an exploratory committee.


Virginia Prescott: Wow.


Taylor Quimby: So I guess it goes to show you that, you know, we're looking at a party that didn't quite know what it was but they know that they didn't like the Democratic Republican two-party system. On the whole a lot of people will just tell you that public election funding, whether you're talking about third parties or in general, is broken. Third parties are too small to qualify. But even the major Democratic and Republican candidates tend to reject that funding because there are spending caps that go with it, and they can raise way more money if they choose to reject the money.


Virginia Prescott: [00:14:08] We did we learn that her episode about the FEC. Let's look at examples around the world - what other countries have two party system?


Taylor Quimby: [00:14:16] Well there are a few that have systems like ours. Jamaica has a two party system. They have the Jamaica Labour Party and the People's National Party. There aren't a ton that maybe are quite like the US. What I've found is that there's many countries that have a system in which third parties do have a little more representation and some seats in the legislature. But ultimately you'll find that still two parties dominate. Now the UK, the British Parliament is an example where I think a lot of people in the US look and say, well look they have a lot of third parties that are running, third party elections seem more vibrant. It just seems like a better opportunity if you've got an outside party. But they've got 650 members of parliament. The Conservative Party has the majority of 315. The Labor Party has 259 all of the third parties together add up to about 74 seats and the Scottish National Party got the most at 35. So I think if you look at it ultimately you see it's still a very majoritarian system in which two parties dominate.


Virginia Prescott: What are some other alternatives then?


Taylor Quimby: Well the real alternative is what's called a multi-party system which is a system in which yes it is somewhat equitable between lots of different third parties.  Or I guess it wouldn't be called third parties. I mean they're just they're just third, fourth, fifth...


Virginia Prescott: So they share power?


Taylor Quimby: [00:15:41]  Yes they come together and they form a coalition government. A true example of this would be the Israeli legislature called the Knesset. So voters in Israel when they go to the polls they don't see any actual candidates on that ballot. What they'll see are just the names of the parties they're not voting for specific people they're just voting for a party.


Virginia Prescott: [00:15:52] Oh so it's not personality at all.


Taylor Quimby: [00:15:54] No, no, no. So in our case if we had the same system it would just say Republican Party, Democratic Party, Green Party, Libertarian, and you would check off the box next to the party that you wanted to vote for.


Virginia Prescott: Just one?


Taylor Quimby: Just one. And if you look at the makeup of the Knesset you'll find that there are something like 18 or more parties and not one of them really has many many more members than any other. And so it is a very true multi-party system.


Virginia Prescott: [00:16:19] So the ones with the most members however, did they elect the prime minister or the president?


Taylor Quimby: [00:16:24] Well you still end up seeing what you would call the majority and minority government, which is to say that all of the separate parties that share a common set of goals band together to become the majority government, and the ones that are opposed to that set of goals band together to become the minority government. And so in some ways you end up seeing something quite similar after the fact.


Virginia Prescott: [00:16:49] You spoke with a number of people that we didn't hear from today and I'm wondering if there was any feeling about whether one system is better than the other for truly representative governments?


Taylor Quimby: [00:17:00] Well I think if you talk to Lenny, he would say that a multi-party system is going to be more democratic, and he's looking at the current two party system in the U.S. and he sees that there are some real problems with the way things work out. You know it's frustrating to head to the polls see two candidates and maybe feel like neither of them reflect your political views. Feels like a big compromise.

Virginia Prescott: Or as often people say it's the lesser of two evils. You know if they don't like either and they're like, “oh I like this one more or less.”


Taylor Quimby: [00:17:29] Right. Right right. But it's exactly. But people aren't happy with the choice they're making it sort of under duress. I think that Hans Noel would say differently. I think he would say that both the multiparty system and the two party system they both have compromises. They're just a different set of compromises and they maybe take place at different times in the process.


Hans Noel: In a two party system the governing coalition who are all the different players who get to be in government is determined before the election, in the crafting of the candidates and the nature of the parties. And then you as a voter get to choose between one of two possible coalitions. In a multi-party system the governing coalition is going to be chosen later, at the parliamentary stage. And you as a voter get to say how much one piece of that coalition how much weight that one piece gets in the final system. But you have no control over who they might negotiate with. You might have some idea but you won't have any control. And when they formally put that coalition together it might not be one that you like but I think the real key here is that the end of the day politics leads us to have to make one decision. You have only one leader you can only have one policy.


Virginia Prescott: [00:18:41] So how then do people change the system?


Taylor Quimby: [00:18:44] Well I think that if there were people that wanted to change the way we have a two party system the only way to do that is to change how we vote which is... I don't know. Seems like a pretty tough challenge as well.


Virginia Prescott: [00:18:58] You mean rather than putting a third party candidate forward change the way that we vote?


Taylor Quimby: [00:19:03] Yeah I mean putting a third party candidate forward if you have somebody that's really dynamic and you have a platform that's really dynamic and you have a moment in time where I think people are very sick of the democratic and republican institutions. There is an opportunity to shake things up. But as Hans pointed out you're more likely to shift the Democrats or Republicans because they look at that election and say, “Oh my goodness we need to we need to change our platform,” or we need to change our leadership. You actually saw…


Virginia Prescott: The Tea Party strategy or the Bernie strategy?


Taylor Quimby: If you look at Bernie you know after the primaries he actually got a seat at the table as to who is literally running the Democratic National Convention and by extension influencing one of the most public events in which the Democratic Party is putting forth its platform and sort of messaging its brand to the general public. So I mean I do think there is opportunity for change. But I think it's pretty unlikely that you're going to see the names Democrats and Republicans go anywhere.



Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.

Episode 90: The Surgeon General

On today's episode: Who is the Surgeon General and what powers do they have? When a public health crisis strikes, what can the Surgeon General do? What influence did Surgeons General have on issues like smoking and HIV/AIDS? We sit down with Fitzhugh Mullan, professor of Health Policy and Management at George Washington University. 

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!



Civics 101

Episode 90: The Surgeon General


Virginia Prescott: [00:00:23] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works. You've probably heard the name surgeon general, maybe seen it on the scary warning labels on cigarette packs or liquor bottles. But who exactly is the person behind the stickers and what kind of power do they have? Well we're finding out today with Fitzhugh Mullan. He's author of Plagues and Politics: the Story of the United States Public Health Service.


[00:00:50] Thank you so much for joining us.


Fitzhugh Mullan: [00:00:51] My pleasure.


Virginia Prescott: [00:00:52] So first of all who is the surgeon general and what do they do?


Fitzhugh Mullan: [00:00:56] Surgeon General is the head of the U.S. Public Health Service. That is the uniform wearing part of Health and Human Services. Part of the federal agency that protects our health as Americans. There are about 6000 commissioned officers who are commissioned in the U.S. Public Health Service. And the surgeon general is the senior officer appointed by the president to head up that corps and play really a more important role as a spokesperson about health for the country.


Virginia Prescott: [00:01:28] So the surgeon general is actually a general.


Fitzhugh Mullan: [00:01:33] Surgeon general in fact has always been a physician who is distinguished in their role as a public health leader and expert and carries the rank of general officer equivalent to a general in the army or an admiral in the Navy.


Virginia Prescott: [00:01:50] Let's get a sense of what kind of powers the surgeon general has. Do they influence policy or legislation?


Fitzhugh Mullan: [00:01:56] The surgeon general in today's arrangement actually comes to office with very little power, high visibility, and high levels of respect at least if you asked the population about the person. The reason they have not a great deal of power is that they have neither a large budget nor a large role in the bureaucracy of managing the government or public health as an individual.


[00:02:23] The individuals in the public health services 6000 commissioned officers all of them are health professionals and play important roles in agencies like the NIH and the CDC and the FDA. But the surgeon general him or herself is typically in charge of them but he doesn't run their programs day to day.


[00:02:45] However the surgeon general by dint of being a leading health professional or leading public health advocate by dint of being appointed by the President and confirmed by the Senate by dint of wearing this historic uniform that is highly noticeable and has had many people wear it with great respect of the country really has a pulpit a bully pulpit as it were for talking about the nation's health and what we as a country and we as individuals can do to lead healthier lives and create a healthier society.


Virginia Prescott: [00:03:20] So do they have the ear of the president?


Fitzhugh Mullan: [00:03:24] They do depending upon the particular arrangement. The most famous earlier surgeon general was a man named Thomas Parran and this was in the 1930s. He was the public health commissioner in the state of New York when the governor was a man named Franklin Roosevelt. And when Franklin Roosevelt became president Dr. Parran came to Washington as his surgeon general.


[00:03:49] In that case he was close to and many of the things he was able to do were facilitated by the president. In other cases and generally today the surgeon general is not a close confidant of the president but certainly is within the presidential scheme of appointments an important appointment because presidents want people who are highly credible highly respected both within the profession and with the public as a whole.


Virginia Prescott: [00:04:18] I can't hear Parran's name without acknowledging that he was in charge of the Public Health Service during the Tuskegee experiments. Now this was a decades long study of syphilis conducted unknowingly on African-American men in Alabama under Parran's watch, right?


Fitzhugh Mullan: [00:04:34] The Tuskegee syphilis experiment took place before during and after Parran's tenure. But yes that was certainly a problem situation for the public health service and for the country for medical ethics. And the surgeon general in charge certainly bears some responsibility. I don't want to dismiss that at all. On the other hand Parran did many things were very important.


Virginia Prescott: [00:05:00] Let's talk about another famous surgeon general. One who may be one of the reasons that we know about the surgeon general we see the labels on cigarette packages and advertisements for cigarettes that say Surgeon General's warning which started with Luther Terry. Now what did he do?


Fitzhugh Mullan: [00:05:16] Luther Terry was surgeon general in the 1960s. He was a chest surgeon himself a physician himself. And he was actually in office at the time that the research all came together to prove beyond doubt that tobacco was associated smoking in particular tobacco in general with a number of diseases most importantly lung cancer.


[00:05:40] It was not his research and it was not even particularly research done at that moment. There had been earlier reports implicating the same connection. But Dr. Terry assembled a group of notable scientists and public health experts who reviewed all the data and declared definitively that there was no doubt tobacco was causative in lung cancer and a variety of other diseases. And for that he's given great credit. It is from that point on that the anti-smoking campaign has been a particular resident factor on the surgeon general's desk when he or she comes to office and every surgeon general since that time has remained quite vocal and quite active in the tobacco control efforts of us as a country.


Virginia Prescott: [00:06:30] Let's talk about another public health crisis that the surgeon general engaged with, the HIV/AIDS crisis. Tell us about C. Everett Koop.


Fitzhugh Mullan: [00:06:40] So C. Everett Koop was a pediatric surgeon of great note. He was an early pioneer in the field of pediatric surgery. He was appointed by President Reagan in 1980 as surgeon general with no public health background to speak of the public health establishment in general was arrayed against him. Feeling this was a person who did not have qualifications and experience. And he withstood a nine month confirmation period that he described as the worst in his life. While his name and reputation was hit around batted around Washington eventually he was confirmed.


[00:07:18] And he sat quietly for a few years in the middle of what was then the developing AIDS crisis in 1985. He was asked by the president to write a report on AIDS. And he took that charge very seriously ran hard with it and produced the first surgeon general's report on AIDS which was a document noted for its comprehensiveness, its explicitness and its humanism in terms of embracing everybody who had AIDS removing or laboring to remove the stigma that was associated then and afterward with HIV and AIDS.


[00:07:59] Koop set a high standard as a physician as a healer and asked the country to come with him effectively. He was saluted for it. He became enormously well respected and liked. He traveled the country thereafter really campaigning on protection against AIDS. Supporting early research to learn more about what the virus was and became. Some said the second most well-known face in Washington after President Reagan himself.


Virginia Prescott: [00:08:32] It did help in being so recognizable that he had a very distinctive Abraham Lincoln like beard didn't he?


Fitzhugh Mullan: [00:08:41] Yeah he had an Ahab like quality, Lincoln like quality.


[00:08:46] He was a religious man although he didn't practice that as a surgeon general but he definitely had a sort of biblical sense about him which didn't hurt in his political campaigning.


Virginia Prescott: [00:09:07] How did the public health service get its start?


Fitzhugh Mullan: [00:09:10] In the developing republic called the United States in the mid 19th century, there was in fact a Marine Hospital Service. This was by act of Congress a service that took care of sailors in port cities who arrived and were sick. And as was the habit in the days were essentially dumped in the port cities. At that point most medical care was custodial it was home care and if you didn't happen to live in the city nobody was going to care for you and you were a problem for the city. So port cities arranged through the federal government to set up a service that would provide care for sailors, Marine employees in coastal cities.


[00:09:55] In the 1970s it was decided this needed much more organization and it was established as the Marine Hospital Service of the U.S. government and the first commanding officer who was a civil war soldier had been a civil war medical officer put his physicians in uniform gave them merit appointments as opposed to patronage appointments and moved them around from city to city so they didn't become stuck in one place but had loyalty to the service.


[00:10:26] It worked very well, in 1888 that was written into law as a Marine Hospital Service eventually the public health service of the U.S. government and as public health and the United States grew that service began to take on more and more activities. Early research that today is the NIH, Disease Control that today is the Centers for Disease Control, the quality and safety of drugs today's Food and Drug Administration, the Indian Health Service, the health services and resources administration. These are all key agencies of HHS Health and Human Services at the national federal level the public health service was at the center of that growth and development that historic growth in development over the 19th and 20th centuries.


Virginia Prescott: [00:11:14] Now the public health service is very busy though not always in the spotlight. So what are some of the main threats that the public health service is fighting right now?


Fitzhugh Mullan: [00:11:25] Well there's one important reality of public health work. The better you do the work the less you will be known for it. In other words people in public health are in the business of preventing things from happening. So that the the most successful work in public health results in non events you don't have an epidemic, you don't have bad water. You don't have dirty air. You don't have people dying or suffering.


[00:11:54] So it's a part of professional life and certainly the health professions that is undramatic when it's successful.


[00:12:03] So the issues we have before us today there is clearly a whole set of problems around access to care and equity and access. Last century the 20th century Americans entered that century dying at roughly 45 years of age. We left the century with Americans living about 75 years we put almost 30 years on the lifespan of the American population. On the other hand that was not equal. Some populations live longer some shorter, between ethnic groups between rural and urban between insured and uninsured, so hugely unequal as even amidst our success.


[00:12:42] So developing a fairer health system where everybody gets equal benefit or at least good benefit from it. Very important challenge we're struggling with that as a country. And then plenty of challenges from antibiotic resistance to the opportunities of new technologies of artificial intelligence in medicine and health. That isn't going to make great differences in the future but we must keep in mind equity isn't just about leaping ahead to have the best moonshots in healthcare. We need a good solid platform that all Americans can benefit from.


Virginia Prescott: [00:13:17] You're talking about systemic problems and there are challenges in infrastructure, take the drinking water in Flint Michigan. But you know a lot of public health is about policy about infrastructure but it's also about behavior like smoking like addiction like unprotected sex. What role does a surgeon general have in those kind of behavioral challenges?


Fitzhugh Mullan: [00:13:41] The surgeon general has an extraordinary opportunity. It is a pulpit where you get to climb the steps into the pulpit, frequently the surgeon general's reports, there are conferences convened by the surgeon general and there are multiple platforms on which he or she can speak and write for an individual job it probably has about as much potential leverage over health and health thinking as any job you can imagine. Certainly than any other in the United States and surgeons general have been good about using that and it becomes a challenge for anyone coming to that office to be very strategic.


[00:14:19] This goes beyond the policy obviously you need the support of the administration and particularly the president in terms of the directions you want to go. But once you know that you're within those bounds your abilities and particularly with the range of media that we have available to us today the way to enter the consciousness of the American person in terms of their health are manifold and that is the old surgeon general in both traditional ways like articles and speeches as well as social media, podcast, what have you, which surgeons general are using these days increasingly.



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Episode 89: Post-Presidency

On this week's show: The President of the United States is considered one of the most powerful people in the world. So what happens after the Commander-in-Chief becomes a civilian again? How does a former president shape his legacy after he leaves office? To find out, we asked Mark Updegrove, historian and author of Second Acts: Presidential Lives and Legacies After the White House.

Have a civics question you want answered? Let us know in the form below and we'll try to answer it!



Civics 101

Episode 89: Post-Presidency

This transcript was generated using an automated transcription service, and may contain typographical errors.  


CPB: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.


OPEN: [00:00:04] Who is the current speaker of the house? I don't even know. Will they rule in the President's favor or will they send it to the Supreme Court? You can't refer to a senator directly by their name. Congressional redistricting. Separation of powers. Executive orders. The National Security Council. Civics -- Civics -- Civics 101.


Virginia Prescott: [00:00:19] I'm Virginia Prescott and this is Civics 101. The podcast refresher course on the basics of American democracy. Today's question comes from listener Rick. What roles have presidents historically played when they leave the White House? What does the post-presidency look like for most presidents. Well, to find out we're talking with Mark Updegrove. He's historian and author of Second Acts: Presidential Lives and Legacies After the White House.


[00:00:47] Mark welcome.


Mark Updegrove: [00:00:48] Thanks Virginia.


Virginia Prescott: [00:00:49] Glad to have you with us. Is there a typical post-presidency?


Mark Updegrove: [00:00:54] No one's post presidency is as different as the individual who wages it. And just as there are different agendas that presidents take up once they assume the position of president there are very different agendas when they leave office and the scopes of their post presidencies vary. And I think in many ways the post presidency of a president is as revealing as anything in his lifetime; of his character; of the way he wants his legacy to be reflected. So it's --- it varies from individual to individual.


Virginia Prescott: [00:01:28] Well let's go back to our country's first president George Washington who lived only two years after leaving office. What did he do with the time he had left?


Mark Updegrove: [00:01:37] Well he sets the standard for his predecessors. One thing he does is leave the office of the presidency. If there's anybody who could have made the presidency a monarchy it was George Washington. He set the standard for the presidency. And in only serving two terms and leaving office he set the standard for his successors as well. There was sort of this tacit understanding that you leave office after two terms and Washington emulated in so doing Cincinnatus the Roman general who warded off barbarians who had stormed Ancient Rome, and instead of leading the life of a hero and a political leader subsequent to that went back to his farm and laid down his sword and picked up his plow. And, figuratively, Washington did the same thing leaving the office going back to Mount Vernon and not getting in the way of his successor John Adams.


Virginia Prescott: [00:02:37] So a pretty quiet post presidency.


Mark Updegrove: [00:02:40] A relatively quiet bucolic post presidency for George Washington.


Virginia Prescott: [00:02:44] Today it's difficult to imagine running for president if you are not independently wealthy. How about back in the day? What did former commanders in chief do for money after leaving office?


Mark Updegrove: [00:02:57] Very often they struggled. And Harry Truman was extraordinarily different than presidents today. He left office in 1953 went back to his home relatively modest as it was in Independence Missouri actually it wasn't his home at all but rather that of his in-laws where he and Bess had lived before he became senator from Missouri in 1935 and led the life more or less that he had he had left before going to Washington to embark on his political career but struggled for money. There were no emoluments or there was no pension there was no there were no privileges for former presidents. At that time and if not for the sale of family farm land, Truman would likely have been broke. So there was an act put together, a law that allowed for a relatively modest pension for former presidents along with various privileges including office space and franking privileges and other emoluments.


Virginia Prescott: [00:03:55] How much is that presidential pension?


Mark Updegrove: [00:03:57] It was a couple of hundred thousand dollars I believe it was comparable to the salaries of CEOs at that time. Now CEO salaries have increased disproportionately since then but it was it was enough so that a former president wouldn't be embarrassed in his post presidency at least financially have any former presidents become much wealthier after leaving the office. Well now they can for sure because they can go on the lecture circuit and command you know handsome six figure salaries for being behind a lectern for less than an hour. But also you have presidential memoirs which command a whopping seven even eight figure fees as well. So it's extremely lucrative to be a former president today.


Virginia Prescott: [00:04:45] Have any presidents declined those kind of offers thinking that they may not be ethical.


Mark Updegrove: [00:04:51] Ethical not so much but not in keeping with the dignity of the office. Yes, I think that Richard Nixon for instance who was very keen on rehabilitating his image after being the first president to resign from office in 1974 refused honoraria when he went on the lecture circuit and actually judged folks like his successor Gerald Ford who did. There's a mixed view of how former presidents should behave. However it's become far more accepted for a former president to cash in on the presidency. Now relative to earlier years.


Virginia Prescott: [00:05:29] How about Secret Service? Now presidents are protected by Secret Service for themselves and the rest of their family. Is it for the rest of their life?


Mark Updegrove: [00:05:37] That has changed now. And Secret Service was not provided for former presidents until after the assassination of John F. Kennedy and Lyndon Johnson who was president at that time had to talk Bess Truman into accepting the fact that there would be Secret Service agents outside of the gates of the Truman home in Independence Missouri. She didn't want the intrusion. She didn't want people trampling on her lawn. So things have changed security wise as well.


Virginia Prescott: [00:06:08] Have other presidents refused protection after leaving office?


Mark Updegrove: [00:06:11] Richard Nixon did. Funnily enough he wanted to save taxpayer money. I think Nixon was very intent on changing his image and could say truthfully that he was saving significant taxpayer dollars by relinquishing his Secret Service detail. He did that 10 or so years after leaving the White House in the mid 1980s was Nixon eligible for a pension having resigned from the presidency. He was he got all of the benefits that any former president would have gotten. I don't know if that would have been different had he not been pardoned by by Gerald Ford. But in some ways the rehabilitation of Richard Nixon is a remarkable story because he was a guy who became the first president as I mentioned earlier to resign the office which he did in nineteen 74 Among the revelations that came up in the Watergate scandal. He went into a period of exile in his home at San Clemente and in Southern California and then four years afterward was very intent on pursuing the area that had most interested him as president. That was foreign policy and he sort of appointed himself a freelance secretary of state traveled the world re-establishes his relationships with leaders and he became a very valuable adviser to Ronald Reagan to George H.W. Bush and improbably to Bill Clinton who took great comfort in talking to Richard Nixon in his first year or so in office before Richard Nixon died in the spring of 1994.


Virginia Prescott: [00:07:56] So Nixon was trying to redeem himself after his presidency. What are some of the other motivations of former presidents, what they want to do in the world as far as you can tell?


Mark Updegrove: [00:08:06] Well some of it is legacy rehabilitation or at least enhancement. I think many presidents continue to pursue the agendas that they took up in office. But I think some of it is the knowledge that they can use their post presidency to do good in the world. I think Jimmy Carter is a great example of that Jimmy Carter left office after being defeated at the hands of Ronald Reagan for re-election and he entered into what he described as an altogether unwanted life and he had no idea what he was going to do next. And then he decided there was this great revelation that he had late one night about a year after he left office and he decided to make his presidential library into a center where conflict resolution could be addressed something he had done very successfully at Camp David and brokering a peace agreement between the Egyptians and Israelis an agreement that stands today and then that that idea grew into well what if we pursued peace and human rights and democracy around the world and eventually that idea germinated into the Carter Center which is a very successful nonprofit organization that the Carters continue to steward today and they pursue philanthropic interests that again I think will enhance Carter's legacy in the eyes of history but also it's in keeping with Carter's Christian ethic to do good in the world and he has used his platform as a former presidency to do just that.


Virginia Prescott: [00:09:40] You mentioned the Carter Center which is different than a presidential library. But when did libraries devoted to records and papers start for presidents?


Mark Updegrove: [00:09:48] It started in the Franklin Roosevelt administration and the idea was relatively modest remarkably before we established Presidential Library and by the way there are presidential libraries for every president from Herbert Hoover forward Herbert Hoover was living at the time of Franklin Roosevelt's administration. So it allowed for a presidential library for Herbert Hoover as well. But there was no repository for the records of presidents after they left office so those records sadly were scattered to the winds some some were put in attics of family members some were sold to souvenir hunters. I mean the equivalent of eBay at the time and these presidential libraries give us a place to put the presidential records where they were processed and available to historians like me to go in and examine for themselves what happened during the course of a particular administration a presidential library something a building dedicated to the memory of a presidency or the record of a presidency.


Virginia Prescott: [00:10:54] I'm wondering about what gets revealed there. What kind of legacy a president tends to shape for themselves?


Mark Updegrove: [00:11:01] After leaving office for the public the foundations in place at these presidential libraries have varying degrees of influence. I was the director of the LBJ Presidential Library for eight years and we'll go back to be the president and CEO of the LBJ Foundation. But I can tell you that I was given great leeway as director to do whatever I wanted relating to the president's legacy. I was given a great deal of autonomy. Some foundations are are far more heavy handed in terms of how the legacy of their president is depicted.


Virginia Prescott: [00:11:38] Well the office is considered the most powerful one in the world. Do presidents have a difficult time transitioning from that office to being a regular civilian?


Mark Updegrove: [00:11:51] Oh I think so. And I think it depends on the circumstances under which you leave office. It was I think extraordinarily difficult for Jimmy Carter and George H.W. Bush. I've spoken to both of them about their transitions after leaving the White House. But but they didn't get reelected to a second term. So as I mentioned Carter said he was this was an unwonted life. You didn't expect to be back as a private citizen just four years after taking office George H.W. Bush felt the same way he really believed that he would defeat Bill Clinton and Ross Perot and the election of 1992. George W. Bush told me that when his father left office there was not so much a depression but a deflation. His father really didn't know what he would do with the rest of his life and felt like he had left the office without finishing his agenda. But his post presidency changed dramatically when his sons Jeb and George W. entered of their own volition. The political ring first as governors of their dates and then of course with George W. Bush improbably assuming the office of president just eight years after his father had left.


Virginia Prescott: [00:13:02] So I wonder if it's easier to be a partisan after you leave office, that you have to -- what do we say in politics, you run from the fringe, you govern from the center. How about after leaving politics? Do we expect our former presidents to tell a more nonpartisan line?


Mark Updegrove: [00:13:21] I think we do. You know obviously when they go to their parties conventions every four years as most do we expect them to toe the party line to a large extent and to support the standard bearer of the party. But I think to a large extent we expect our presidents to be above partisan politics after they leave office. They can serve us better by not getting into bitter partisan disputes.


Virginia Prescott: [00:13:46] How about you who have studied them, looking back over the presidents whose lives after the presidency you looked at. Who do you think did it well?


Mark Updegrove: [00:13:54] There are a number of successful former presidents. I think John Quincy Adams who was the first really successful former president. He became the second one term president his father had been the first second president John Adams and John Quincy like his father went back to Quincy Massachusetts and expected a life in political exile. But he was elected to Congress by constituents in his in his part of Massachusetts and went back to Washington until he died in 1849 and became a a very important voice for the abolition movement in Congress. So he was the first really productive former president. There have been many since Theodore Roosevelt. In some ways changes the paradigm by leaving office then coming back and running for the presidency again as a Bullmoose candidate challenging his successor William Howard Taft. And the Democratic candidate Woodrow Wilson for the office in the modern post presidency I think it would be hard to beat Jimmy Carter. Jimmy Carter really changes the unofficial office if you will of former president by pursuing a very activist and very successful post presidency.


Virginia Prescott: [00:15:07] Mark Updegrove, thank you so much for speaking with us.


Mark Updegrove: [00:15:10] Virginia thanks for having me.


Mark Updegrove: [00:15:11] Mark Updegrove. He's historian and author of Second Acts: Presidential Lives and Legacies After the White House. That's it for Civics 101 today. This episode was produced by Hannah McCarthy with help from Taylor Quimby. And if you're looking for some post-podcast, sign up for our Extra Credit newsletter. It is a fun and information-rich look at the topics that we cover and includes a quiz so you can test your civics knowledge. You can sign up at Civics 101 podcast dot org. I'm Virginia Prescott and this is Civics 101 a production of New Hampshire Public Radio.



Made possible in part by the Corporation for Public Broadcasting.

Subcribe to Civics 101 on Apple Podcasts, Stitcher, or wherever you get your favorite audio.

This podcast is a production of New Hampshire Public Radio.