How can Congress check the president?

Checks and balances are at the absolute core of our governmental workings. 

The framers designed a system that was directly opposed to one person or one group of people having all the power, and we see that through the myriad ways Congress can check the president. So what are those checks? How have they waned over the last few decades? And finally, why would Congress opt to use (or not use) them?

Joining us today is Eric Schickler, professor of Political Science at UC Berkeley and author of Investigating the President: Congressional Checks on Presidential Power.

Referenced in this episode:

Our Starter Kit series.

Our episode on impeachment from 2019.

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Transcript

C101_Congress check presideent.mp3

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And just as a quick aside, we had a team meeting this week at Civics 101, and we asked, what do we do, you know.

Hannah McCarthy: I do know I was there. Our listeners were not. So you might want to elaborate.

Nick Capodice: So our show explains the basics of how our democracy works. That's our tagline. But sometimes things don't work the way they have before.

Archival: That executive order he signed [00:00:30] that ended the practice purported to end the practice enshrined in the constitution of birthright citizenship.

Archival: For more presidents proposal to halt all federal grant and loan disbursement, a move federal judges are blocking, was illegal and an assault on the Constitution.

Archival: A South Bay man said that he got an email from the Department of Homeland Security saying he had to leave the United States, even though he's an American citizen.

Hannah McCarthy: And to that point, in recent interviews in [00:01:00] particular, we have had guests say things like, well, you know, here is how this or that worked for the last 200 years or so, and here's how it's working in 2025.

Nick Capodice: Exactly. And that's going to kind of be a theme for this entire episode, because today we are talking about a classic old school 101 topic checks and balances. One check in particular, how Congress checks the power of the president or doesn't. And [00:01:30] it's worth laying out right at the top what our guest today, a scholar who has written multiple books on Congress and congressional power, specifically thinks about Congress's powers.

Eric Schickler: I believe the framers set up this system of government that has many flaws, and is not the system I would have designed. If it were me, I would have designed a very different system.

Nick Capodice: This is Eric Schickler, a professor of political science at the University of California, Berkeley. He studies political parties, polarization [00:02:00] and the US Congress.

Eric Schickler: But they set up this system of checks and balances and separation of powers and federalism. Over 200 years ago, you know, while it had many weaknesses, one of the virtues of it was that these separated institutions had the power and the incentive to defend their power, their own power. In this system, preventing any one branch, any one set of actors from getting too much power.

Hannah McCarthy: We do, by [00:02:30] the way, have an entire series on core civics concepts like checks and balances and the powers of each branch. It is called starter Kit. We'll put a link to that in the show notes, but we should do a little 101 on this episode first. Nick, what are the specific mechanisms Congress uses to check the president?

Nick Capodice: All right. There are four. I'm going to talk about today and I'm going to do them one by one. So number one, the first way Congress checks the chief the power of the purse.

Eric Schickler: Probably [00:03:00] first and foremost is the power of spending. That no money can be spent without Congress approving it. And, uh. And so that gives them the power of the purse. You also can't lay taxes without Congress approving them.

Nick Capodice: Number two, political appointments.

Eric Schickler: Control over the staffing of the executive branch. So executive branch officials have to be confirmed by the US Senate, which gives them the Senate a lever to influence the executive branch. [00:03:30]

Nick Capodice: Number three is investigations.

Eric Schickler: Congress has the power to supervise the executive grants, to investigate the executive branch and and sort of look around and see if there are problems with what it's doing. Are they ignoring what Congress wants? Well, you hold an investigation, you expose that and then you can take action.

Nick Capodice: And number four is that action one we've talked about many times on the show. Do you want to say it, Hannah?

Hannah McCarthy: Uh, you mean impeachment?

Nick Capodice: Sure do.

Eric Schickler: And then, of course, the final kind of club is impeachment. [00:04:00] The power of the House by a simple majority to impeach the president. And then the Senate would hold a trial and by two thirds vote has the power to convict the president, which then removes the president from office.

Hannah McCarthy: We'll also put a link to our impeachment episode in the show notes. Please give it a listen if you haven't already. Quick history aside, three presidents have been impeached in the United States so far Andrew Johnson, Bill Clinton and Donald Trump. But [00:04:30] as of the recording of this episode, none have been removed from office following their trial in the Senate.

Nick Capodice: Thank you. Hannah. And going back to how we started this episode, we're going to talk about how one check in particular used to work and how it works now. And in just this instance, when I say now, I do not mean 2025. I'm talking about the last few decades after a marked increase in something we hear about so often, it almost has lost all meaning. And [00:05:00] that is polarization.

Archival: And our poll shows voters are both energized and polarized right now, with voters in both parties seeing the other side as an existential threat to the country.

Archival: How will the next president unite a nation that has become so incredibly polarized? Joining me now to talk about it, 1 in.

Archival: 6 Americans have actually stopped talking to a family member or a close friend because of politics since the 2016 election.

Hannah McCarthy: And, you know, these days, we do hear a lot that people think [00:05:30] America is more polarized today than it was at any other time in modern history. We did have a civil war. But, Nick, how is polarization tied to Congress checking the president?

Nick Capodice: Basically, if you put party above all else, party above the institution, in this instance, Congress, the checks that institution wields get weaker.

Eric Schickler: Paul Pearson and I just finished a book, Partisan Nation, and the core argument [00:06:00] of that book is that our constitutional system of separation of powers was premised on this idea from James Madison, that people who are in a given office, say, a member of Congress or a president or a Supreme Court justice are going to look out for the power of their office. You know, the famous phrase is the ambition of the of the man needs to be tied to the power of their office, ambition to counter [00:06:30] ambition. And that was kind of what underwrote our constitutional system for about 200 years.

Nick Capodice: However, things started to shift in the 1970s, and then there was a big shift in the 1990s, and polarization has continued to rise. We are now at a point where some politicians care more about protecting the party than they do about protecting, in essence, the purpose of their job, their [00:07:00] powers. What the Constitution says they can and can't do.

Eric Schickler: When members of an institution, in particular members of Congress, care only about their party and their ideology and don't care about the power of their branch. Then that undercuts that system. That gives them an incentive to just side with the president of their own party and ignore the power of their institution. Right. The [00:07:30] development of nationalized polarization, where the two parties are essentially these two armies fighting it out, where the stakes are seen as existential, has diminished the extent to which officeholders in other positions, members of Congress and also Supreme Court justices, show primary allegiance to their office and instead leads them to behave like members of a team. A Partisan team. And that just entirely [00:08:00] undercuts the this madisonian system, and is what gives rise to the danger of a president who's essentially unchecked by anyone.

Hannah McCarthy: Does Eric have any recent examples of Congress not acting like this?

Nick Capodice: Yeah he did. He had one specific example. I was barely alive when this happened. You certainly were not. Hannah, do you know about the Iran-Contra affair?

Archival: A few months ago, I told the American people I did not trade arms for hostages. [00:08:30] My heart and my best intentions still tell me that's true. But the facts and the evidence tell me it is not.

Hannah McCarthy: I do definitely not enough. I believe it was during the Reagan administration. People were selling arms illegally.

Nick Capodice: Yeah, and it was a many year, many twists and turns. Scandal. Higher ups in the Reagan administration sold weapons to Iran. Iran was under a weapons embargo at the time, and the contra part is that they used money from this sale to support [00:09:00] the Contras, which was a rebel group in Nicaragua.

Hannah McCarthy: All right. Congress passed the arms embargo, and Reagan's office went around it and sold stuff anyway.

Nick Capodice: Yeah. So if you're a ride or die Reagan fan who happens to also be in Congress, what are you going to do?

Hannah McCarthy: Well, I know he had them. So what did they do?

Eric Schickler: While many Republicans stuck with Ronald Reagan, there were key Senate Republicans who were really [00:09:30] concerned about what happened about about laws passed by Congress being circumvented. And they worked on the Iran-Contra Committee to uncover what happened. And, you know, several of them signed a report by the Democratic majority that was highly critical of the Reagan administration. So you can, in a sense, think of that as an almost last hurrah for how Congress used to work.

Nick Capodice: But then, Hanna, along comes 1994 Shawshank Redemption, [00:10:00] Beanie Babies and the Republican Party takes control of the Senate and the House, where they'd been out of power for 40 years.

Archival: Conventional wisdom holds the party of a sitting president loses seats in the midterm elections. But this was a political earthquake with the fault line running right through Capitol Hill. When the dust had settled and the debris.

Eric Schickler: And you get the rise of Newt Gingrich and Gingrich's entire theory in in rising to power was the way to win control of the House [00:10:30] is to destroy the House's credibility, to argue that the Democratic House was fundamentally corrupt, unethical, and hostile to the American people.

Archival: It tells you something about how out of touch they are with the American people that every item in our contract is supported by 60% or more of the American people. Some of the items are supported as much as 80% of the American people and outside Washington. This [00:11:00] is a contract with Americans for America.

Eric Schickler: And so he made that the centerpiece of their campaign and brought in a generation of Republicans who came there basically campaigning on the idea that the system is fundamentally corrupt. And the House is a kind of enemy. Starting in the mid 1990s, you get a new kind of member of Congress who doesn't see themselves as there for a career and therefore doesn't [00:11:30] have the kind of stake in Congress's power that previous generations had.

Nick Capodice: All right. So we got the then and the now. We have laid out how things work for most of us, history, and how they've started to shift in the last couple of decades. And now I'm going to get to the now. Now, what does it look like when Congress uses or doesn't use their powers that check the president in 2025 at a time of an extreme us versus them mentality? But first we got to take a quick break.

Hannah McCarthy: And [00:12:00] before that break, just a reminder. You can check out any of our hundreds of episodes as well as some snazzy Civics 101 swag at our website civics101podcast.org. We're back. We're talking about the relationship between Congress and the president. And, Nick, you just set us up for the then versus now breakdown of the ways that Congress checks the president.

Nick Capodice: Absolutely. And I'm going to focus on one of those. And [00:12:30] it's the one with the name that I've always loved. It sounds like something you'd hear at the Ren Faire. The power of the purse. Here again is Eric Schickler, professor of political science at UC Berkeley.

Eric Schickler: So traditionally, you know had. The understanding essentially has been that, you know, Congress writes appropriations bills. Those bills say this amount of money is going to be spent on this program. And the president is obligated, with very narrow [00:13:00] exceptions, to spend that money.

Nick Capodice: An appropriations bill simply is a bill that appropriates money.

Hannah McCarthy: As in the bill that says where the money is going to go.

Nick Capodice: Yeah, the government can't pay for a ham sandwich or a water treatment plant or an interstate high speed rail program, unless it is through an appropriations bill. And the Constitution is pretty blunt about this. Like hands on its hips in the doorway with a stern expression. Article one, section nine. It says, quote, no money shall [00:13:30] be drawn from the Treasury, but in Consequence of Appropriations made by law.

Hannah McCarthy: Congress is also in charge of bringing money in the tried and true way in this nation, of course, is taxes.

Nick Capodice: It is indeed so a little bit more of our very to the point Constitution here. Quote. All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills.

Hannah McCarthy: And can you just get to why the House specifically?

Nick Capodice: Because [00:14:00] it is the People's Chamber. The number of people in your state determines how many reps you have in the house, and they have short two year terms. They are on the hook to listen to their constituents. James Madison wrote about this in Federalist 58. He even dropped the expression in there. He said, quote, this power over the purse may in fact be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people. End [00:14:30] quote.

Hannah McCarthy: So Congress says this is how we're spending money. What if, hypothetically, a president in turn said, no, not going to do it?

Archival: President Trump signing an executive order to cut funding to public broadcasting. We're taking a look at funding that includes NPR, PBS, what they receive, the salaries, executive talent, their pay. Joining us now to discuss is Rachel.

Nick Capodice: Look, I'm not even going to dance around the word hypothetically today, Hannah. A very recent example of something [00:15:00] directly tied to this just happened. May 1st, law Day. By the way, President Trump signed an executive order directing the Corporation for Public Broadcasting, to, quote, cease federal funding for NPR and PBS. End quote. And that funding was the result of a congressional appropriation.

Archival: Federal funding notably accounts for about 15% of PBS and 1% of NPR's budget, with the rest largely coming from outside donations.

Nick Capodice: Now, the amount of money the CPB [00:15:30] gets isn't terribly relevant here, because we're talking about who has the power to spend and not spend, not how much, but I'm going to put it in anyways. It is $535 million, 0.001% of the federal budget.

Hannah McCarthy: We made an episode on the Corporation for Public Broadcasting a while ago, by the way, and we dropped it in the feed last week for people who maybe missed it or wanted a little reminder. So check that out if you want. So Congress approved that funding for the CPB. They put that in their budget. [00:16:00] And that was two years ago, right?

Nick Capodice: Yeah. Their funding happens in two year cycles. This is by design to protect public media from being affected by political pressures.

Eric Schickler: If the president in the past were to refuse to do that. Well, a couple of consequences would follow. One is, you know, the potential for legal action from those who are supposed to receive the money. But another is, and probably the more powerful one just came from Congress itself. Well, if the president [00:16:30] wants appropriations for other things that the president cares about, we're not going to give you those appropriations unless you spend abide by our preferences, by the laws we passed jointly with you. And so that was a tremendous lever, because, you know, it's been clear, essentially, that the president cannot spend money that has not been appropriated. And so that, in a sense gives Congress a veto. And so, you know, if the president is, you know, arbitrarily [00:17:00] refusing to spend money that Congress has approved, well, Congress has a pretty powerful lever. It could, for example, threaten not to fund the white House and the executive branch itself.

Nick Capodice: Like many of our episodes, this one is about how things change. And I think it's important to note here that a fundamental shift in the way the executive branch views its power versus Congress did not begin with President Donald Trump, but with another president, Richard Milhous [00:17:30] Nixon.

Eric Schickler: So what Nixon did is something called impoundments, where he simply refused to spend billions of dollars that Congress had appropriated, targeting programs that the Democrats were in the majority in Congress really liked. Especially, you know, uh, programs in health and Human Services. And so Nixon disapproved of those programs, and he and simply withheld billions of dollars in spending. [00:18:00]

Hannah McCarthy: Now, how did Nixon justify withholding funds? The Constitution could not be clearer on this.

Nick Capodice: Well, Nixon argued it had been done in the past. It was a tried and true presidential tradition, and he cited other presidents who had done this. But the problem here is in all of those instances, that was money that everyone agreed should not be spent in these situations. It was more like Congress appropriates money to fight a war. Okay. War [00:18:30] ends. So the president says, let's spend that money somewhere else because after all that war is over. Both parties in Congress say that makes a lot of sense.

Eric Schickler: The president not spending that money is not really violating the will of Congress. Whereas here, Nixon was taking money that Congress had self-consciously approved for particular purposes and refusing to spend it. So that's set up a big showdown. There were court challenges. Um, it seemed [00:19:00] pretty clear the courts were going to rule against Nixon.

Nick Capodice: And in the meantime, Congress passed a new law called the Impoundment Control Act. This law said that a president can withhold funds if and only if a majority in both the House and the Senate agree. Impoundment, by the way, is when a president seeks to delay or cancel funding that is already approved by Congress. So this act was Congress pushing back more tightly, gripping its hold on the power of the purse? [00:19:30]

Eric Schickler: This law passed the House with an overwhelming majority, passed the Senate unanimously. Honestly? Uh, well, yes, a different world. We lived in a very different world back then, a Republican president. And yet this bipartisan bill passes overwhelmingly.

Hannah McCarthy: But, Nick, the act, the law that Eric is talking about, it isn't having its intended effect today.

Archival: President Trump promises more job cuts. Elon Musk leading the DOJ's efforts to downsize the [00:20:00] government. And The Washington Post reports Trump is preparing to dissolve the leadership of the U.S. Postal Service and absorb the independent mail agency into his administration.

Hannah McCarthy: Billions and billions of dollars. About $430 billion dollars appropriated by Congress have been blocked, stalled or frozen by Donald Trump with the help of Elon Musk and Doge. And agencies and organizations are going to court over this. They're filing suit saying this [00:20:30] money was appropriated to us and we are not getting this money, and that is unconstitutional. Constitutional. And we're going to see how these lawsuits play out. But in the meantime, does Congress have the power to do anything here? I mean, assuming they want to. It is their power that's being overridden.

Nick Capodice: Well, there's a difference between what they can do and what they will do. They recently passed a government funding bill, and that bill could have had language in it that stopped this impoundment entirely. [00:21:00]

Eric Schickler: Congress could have very easily included explicit provisions saying, you know, all of these appropriated monies must be spent, right? Period. It spelled that out. And it could have also said to the president, we're not going to, you know, say there's some program the president really cares about. We're not going to appropriate money for that until we see that you're carrying out the other appropriations we have are free, right? That's entirely in Congress's power. They could [00:21:30] say the zero out key programs that the president cares about and say, you know, we're happy to fund these. We're not going to do it unless you show you're going to follow the law. Nothing to stop Congress from doing that in principle.

Hannah McCarthy: But they didn't.

Nick Capodice: They didn't.

Hannah McCarthy: So what stopped them?

Eric Schickler: What stops them is a lack of political will, in particular, that there are zero Republicans in Congress right now who would support that kind of action? Zero. [00:22:00] Even the ones who are critical about particular cuts. Susan Collins, chair of Senate Appropriations, says she's concerned about what's going on. Was chair of appropriations. She could exert real influence and say, we're not going to support a funding bill unless it includes these real restrictions with teeth that forced the president to follow the law. She has done nothing like that. And, you know, and that that's because she's being [00:22:30] a good team player, a good player for her party.

Nick Capodice: Congress has a whole arsenal of tools to act on this, but so too does the president. It's a two way street because the more we age and grow as a nation, the more acts we create. And with acts come exceptions to almost every rule. Now here's how it could go. Congress could say you can't spend or withhold money, Mr. President. And the president could respond by saying, well, I can, because I'm declaring an emergency and I can spend as I please. And Congress [00:23:00] could respond saying, well, we're removing emergency powers and the president could come back and say, nope, I'm going to veto that. And then two thirds of both chambers could override the veto. These Hannah, these are the checks in place, not theoretically actually in place, enacted by Congress itself. But none of those checks are going to happen. If there isn't, as Eric said, the political will to do so.

Hannah McCarthy: Okay. But [00:23:30] why? I mean, I understand that Congress can check the president that they are choosing not to, and that the reason is they don't have the political will to do so. But why? Why do they lack the political will?

Nick Capodice: Well, it might be because Congress itself is being checked by quite possibly the most powerful check you can have in a [00:24:00] democracy. Us. The people.

Eric Schickler: So I think the public.

Eric Schickler: Tends not to be very focused on these balance of power questions and interbranch relation questions and and worrying about it in terms of, you know, defending Congress's power per se. I think that's especially the case when Congress itself is not giving a clear articulation of that interest. Right. And, uh, you know, maybe if you [00:24:30] had members of both parties saying Trump is is violating the Constitution is taking action. That's against the intentions of the framers, which I think is right. That might get the public's attention. But in the absence of that, and I don't think there's that much public pressure on the institutional question. Um, I think there may well be public pressure if, for example, these cuts damage programs that the public really counts on, right. And so they'll [00:25:00] be concerned, you know, for example, if there the cuts to the Social Security Administration continue to lead the long wait times for, for uh, customer service. I mean, that will that kind of thing generates pressure. But but unfortunately, I don't think that the public is is concerned for Congress's role per se. And I don't think Congress itself has done a good job of trying to make that salient to voters.

Nick Capodice: So the purpose [00:25:30] of this episode, now that we're at the end of it, is to just create a better understanding of what one check could and should look like, that the president is not the be all, end all of exerting the people's will. And Congress is our most direct line to governmental power and action. And maybe one thing that could aid in that understanding is what we try to do here each and every week, Anna, to help people understand their right to make change, to understand [00:26:00] how the government was built to function and why it was built that way. So as I feel I'm going to say a lot at the end of these episodes in the months to come, if you don't like something, complain loudly. It's your check, so use it.

Nick Capodice: Well, that is it for today on Congress. Check. And the president I was gonna say, like, check, please. That [00:26:30] felt a bit foolish. This episode is made by me. Nick Capodice with you, Hannah McCarthy and Christina Phillips. Our senior producer. Marina Henke is our producer. And Rebecca LaVoi, our executive producer. And boy howdy, do we check that executive pretty much every day. Thank you. Rebecca. Music. In this episode from Epidemic Sound, Telecinco, kilo, Kaz, Scott Grattan, Chris Zabriskie. You, beauty and wait for it. Moby. Yeah. Write that Moby. Moby is offering hundreds [00:27:00] of free music tracks to nonprofits for creative projects. This isn't like a paid advertisement here for Moby. I, I, I had play in my Discman in the early aughts until it pretty much broke in half. So thank you, Moby. Good on you. Sat next to you a bar on Avenue B in 2003. Do you remember that? Anyways, Civics 101 is a production of New Hampshire Public Radio.

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What happens when we don't trust democracy?

Generations of Americans were not taught how to live in a democracy. That, ultimately, is what civic education is about. So what happens when we lose that knowledge? Where are we today and why should we care? Where do we go from here?

In partnership with iCivics we're bringing you conversations with the people who are paying attention and doing something about it. Civics can have a future in this democracy -- in fact, civics is how this democracy will have a future.

Transcript

Note: this transcript is AI-generated and may contain errors

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What is the Rule of Law?

What is the rule of law? It's certainly not the same as the rule of men. 

This episode was recorded live at the John J. Moakley Courthouse in Boston. It features the voices of Justice Patricia Alverez and Justice Gustavo A. Gelpí.

To learn more about Law Day and ways you can celebrate the rule of law, click here.

Transcript

Note: this transcript is AI-generated and may contain errors

Nick Capodice: Good evening, ladies and gentlemen. I'm Nick Capodice. I'm Hannah McCarthy, and we are here today for a very special edition of Civics 101 live. For those out there who are listening, who are not in the room, we are at the Stephen G. Breyer Community Learning Center at the Moakley Courthouse in merry old Boston. Hold on. Before we start, I've always wanted to say this. Um, this episode of civics 101 was recorded in front of a live studio audience.

Hannah McCarthy: Uh, Nick, was that everything that you have always dreamed of?

Nick Capodice: It absolutely was. Did you ever watch lost the show? Lost?

Hannah McCarthy: I did, I believe that I stopped watching around the fourth season.

Nick Capodice: Did you all did many of you watch lost when it came out? Thank you heavens. Yeah. Of course. Right. That's the correct answer to that. And you know, in the show where the guy goes. Previously on lost.

Archive: Previously on lost.

Hannah McCarthy: Yes.

Nick Capodice: Okay. The guy who did that voice was a chairman at ABC who quit, who forcibly kind of resigned just before the show came out. And then they brought him in secretly to say previously on lost. So he's like, he's like kind of doing a secret perpetually in the lost canon.

Hannah McCarthy: Was that like a Last Jabs thing? Sort of like. All right, well, I'm taking this with me.

Nick Capodice: I'm gonna be on the show forever.

Nick Capodice: So, Hannah, we are not here today, though, to talk about hatches and polar bears.

Hannah McCarthy: We are not the. We have mentioned John Locke quite a bit on the show, so. But let's get to it. Nick, what are we doing here today?

Nick Capodice: So today on civics 101, we are talking about one of the most frequently used and infrequently defined expressions in the world of civics, the rule of law.

Archive: You know, Trey, what we know is that this administration is anti the rule of law.

Archive: Activist judges, liberal judges with a political bent. It's a threat to the rule of law.

Archive: The president himself has led a full frontal assault on the Constitution, the rule of law.

Archive: Donald Trump believes that following the rule of law and this is crucial, is for suckers.

Nick Capodice: And it's no coincidence this episode is coming out just before May 1st. For anyone out there, May 1st is Law Day. It's not a federal holiday or anything, but since 1958, we have recognized Law Day as an occasion to reflect upon and celebrate law. And also, Hannah, I don't know if. Did you know that May 1st is International Workers Day, aka may day, and there's a whole story there about May Day and Law Day. We are not going to get into it.

Hannah McCarthy: We also don't have time to get into the ancient Spring Festival or Maypoles or anything like that. But Nick, did you know why pilots say May day in the case of an emergency?

Nick Capodice: I thought we said we were going to stop all the factoids because it's just.

Hannah McCarthy: This is a really this is a really good one. All right. It comes from the French May day for help me.

Nick Capodice: I did not I actually did not. Did any of you know that? Of course, the whole room nodded and said, of course. So more fool me 80% of the room. But we have been goofing around just to get started. But seriously, for one second, I would love everyone here in this room just to think to yourself for one little bit. What to you is the rule of law?

Justice Alverez: I think that the way to explain the rule of law is by talking about what the rule of law is not, so the rule of law, it is not a law, and it's not a set of rules enacted by a country. It is not the rule of men.

Justice Gelpi: Well, the rule of law in very, very basic terms means that all persons are treated equally under the law.

Justice Alverez: My name is Patricia Alvarez. I'm a senior justice in the Fourth Appellate District of Texas, and I am very happy to be here.

Justice Gelpi: My name is Judge Gustavo, a Gelpi. I'm. I am a United States Circuit judge for the Court of Appeals for the First Circuit, which sits in Boston. And the jurisdictions within the First Circuit are Massachusetts, New Hampshire, Rhode Island, Maine and Puerto Rico, where it's much warmer during the winter. And it's a story for another day as to why Puerto Rico is part of this first circuit, but I'm proud that it is.

Nick Capodice: We have two uniquely qualified guests to lead us through this one today, and I'm going to leave the next step up to you, Hannah. Judge Alvarez started with what the rule of law is not. And Judge Gelpi started with what the rule of law is. Which of those would you want to go through first?

Hannah McCarthy: So you know what they say about drawing a face so it can be incredibly difficult to get the nose correct. Drawing a human nose is a really difficult task. So the advice that a lot of new artists are given is don't draw the nose at all. Draw the rest of the face and the nose sort of emerges. You draw everything else. You draw what the nose is not. So let's start with what the rule of law is not. And maybe the rule of law will emerge.

Nick Capodice: I'm glad you opted to go. With what? It's not because the term rule of law. It's kind of difficult because the word rule is kind of complicated. It means a lot of different things. Rule can mean like, you know, I am ruled by a lord or a liege or a king or something. Rule can be a rule like, you've got to do this. You've got to do your homework before you can play video games. Or rule can be a guideline, right? You know, rule of X, rule of thumb, the rule of thirds in photography and writing, the rule of three, which is that things are better in threes. I just did it there.

Nick Capodice: But the rule of law. As Judge Alvarez said, it is not a rule like you've got to do this. It is certainly not a guideline. It is a system. All of us, we all of us in this country, are ruled by the law, and we are not ruled by men.

Justice Alverez: The rule of men is what a group of leaders want the law to be for their benefit only, not for the benefit of everyone else, but for their benefit. It could be not a group of men. It could be a political party. It could be, you know, a group of people. It could be a society, or it could be one person. The rule of men is so important to understand because it only satisfies the desire, the the rights of the very few or of one person. And the rule law is totally different than that.

Nick Capodice: I actually have a very good quote by Thomas Paine about this, and I wrote it down. Would you mind reading a slightly expedited version of it?

Hannah McCarthy: But where, say, some is the King of America? I'll tell you, friend, he reigns above and doth not make havoc of mankind like the royal brute of Great Britain. In America the law is king. For as in absolute government, the king is law. So in free countries the law ought to be king, and there ought to be no other.

Nick Capodice: Thank you. That was well done.

Hannah McCarthy: So thinking about this Thomas Paine quote, Nick, freedom is inextricably linked with rule of law. And as it so happens, that's how I see it too. So now I would love to focus on what Judge Gelpi said the rule of law is we talked about what it's not what it is that all people are treated equally under the law. And I'd also like to come back to that later, because I do think that deserves a little more interrogation.

Nick Capodice: Yeah. The notion that all people are treated equally under the law does deserve interrogating.

Hannah McCarthy: But he did say, in addition, that everyone has the same obligation under the rule of law. What is that obligation?

Justice Gelpi: Well, for example, no one can be discriminated in employment on the basis of race, ethnic origin, sex. That's how the law protects everybody equally. Now, the obligation is that an employer, for example, has an obligation not to discriminate. So individuals have the rule of law that applies to them. The law guarantees that they will not be discriminated against, but if they aren't, they will go to court. Same thing. An employer has to follow the law and guarantee that he is not discriminating against any individual.

Nick Capodice: All right. This is our agreement. If we are under the rule of law, it is a two way street and its best form. It is not unlike a healthy relationship. We are protected by the law, and in that protection is the recognition that we are accountable as well. Everyone else is protected from us, and if you don't have that basic agreement, you're going to have a bad time.

Justice Gelpi: You go to the days of the Old West. Who's right? Who's wrong? You draw your gun and you shoot. Uh, that's not the way we resolve things in this country. You go to the courts, the courts resolve the controversies civilly. And that's the important thing about our rule of law in our country.

Hannah McCarthy: Okay. I am very glad that we're getting to the courts here. Um, because they do seem to me to be the necessary facilitator of the rule of law. Uh, and because I'm fairly sure that I am currently in a room with more judges than I've ever been in a room with before, to my knowledge.

Nick Capodice: Right, right. To your point, Hannah. Absolutely necessary. But in order for courts to play a role in order to facilitate the rule of law, they have to maintain five immutable ironclad characteristics. Laws do as well. Now, I found this quintet, this little group of five immutable characteristics from the Rule of Law Education Center, not in the United States, from our neighbor and friend, our democratic ally. This is the country that gave us the secret ballot. This is the country that champions democracy. Sausage at the polls. This is the country that enforces mandatory ranked choice voting.

Hannah McCarthy: I have a feeling you have Waltzing Matilda queued up right now.

Nick Capodice: I think I might. Let me see. Our gentle neighbor to the far, far, far south, southwest or east, depending on which you go. Uh, Australia. Thank you. Australia. The five rules for the rule of law to exist, laws must be one. Fair laws have to apply to everyone, regardless of of status. Two. They have to be rational. Laws cannot be arbitrary. You can't have a law against something or someone because you don't like them. Number three. Laws must be predictable. The punishments for breaking the law must be clear. Nobody should be thrown in jail for something they had no idea would result in that. Number four. Laws must be consistent. Similar circumstances for similar people are dealt with in the same way. And finally, laws must be impartial. The judicial branch which makes decisions on laws must be independent.

Hannah McCarthy: It's a helpful list.

Nick Capodice: List. Thank you, I like it.

Hannah McCarthy: I do want to get into that last one though. An impartial and independent judiciary. We've talked about this many times on this show. You know, judges are humans. They're not empty vessels through which the Constitution flows.

Nick Capodice: No, they are not. They are humans. Justice wears a blindfold, but behind that blindfold is a thinking considering human head.

Hannah McCarthy: So how do we define an independent judiciary?

Nick Capodice: Here is Justice Alvarez.

Justice Alverez: So what is an independent judge? Well, the independent judge is that judge that acts within his or her authority, number one. And number two is a judge that can rule, that can give an opinion if it's at the appellate level, give an opinion without the fear of being harassed, without the fear of being placed in jail. Okay. So that's what it means to be independent. To be independent also means that the executive and the legislators set forth our salaries and set forth, you know, our benefits and so forth. Despite that, we as judges can act, can rule without fear of the legislators or the executive taking away our salaries. So that's what it means to be independent, not to do whatever you want to do, but not to fear.

Hannah McCarthy: I appreciate so deeply a judge actually explaining that, you know, I think that's the first time that we've asked a judge directly what that really means. That was incredibly helpful. And as we're working through these principles, these five principles that you laid out, Nick, these rules for the rule of law, there's the ideal, right? There's the thing, there's the shining ideal, and then there's the practice. We can strive for a perfect democratic republic under a flawless rule of law. But I don't think we are that.

Nick Capodice: We sure are not.

Hannah McCarthy: And I do not want to make this episode moot. But, you know, if I asked, a room full of random people. Are all people in America treated exactly equally under the law? I don't know if everyone would say yes. Absolutely.

Nick Capodice: Do you want to try?

Hannah McCarthy: I'm a little nervous, but yes, I do. Let me ask this room. Does everyone here in this room believe that all people in this country are treated equally under the law?

Speaker11: No, no, no.

Nick Capodice: That's pretty much what I expected. Yeah, we're going to get into that. But first we've got to take a quick break.

Hannah McCarthy: We're back.

Hannah McCarthy: You're listening to civics 101 live from the Stephen J. Breyer Community Learning Center at the Moakley courthouse in good Ole Boston.

Nick Capodice: Here's to good old Boston.

Nick Capodice: The home of the bean.

Speaker4: And the cod.

Nick Capodice: Where the Lowells speak only to Cabots and the Cabots speak only to God.

Hannah McCarthy: On a little ditty that I have known since a young child. I grew up in Braintree, Massachusetts, so I've known that for a while.

Nick Capodice: That's right. You and John Adams coming up in Braintree?

Hannah McCarthy: Not at the same time, but. Yeah.

Nick Capodice: Right. We are in this courthouse today with a John Adams quote chiseled on the side of it, by the way, because we're talking about the rule of law.

Hannah McCarthy: So let's get back to the law, applying equally to everyone. Because Nick, as we gestured to earlier and as we polled the room, it does not seem to. Right.

Nick Capodice: So for this, I would like to begin with sort of a broad 30,000 foot look at this and then sort of hone in on obvious inequalities in our justice system. If that's okay.

Hannah McCarthy: That's okay.

Nick Capodice: So let's take something like stealing, right? Stealing. Writ large. It's against the law. But stealing a car is not the same as stealing a pack of gum. And that's one of the reasons we have different categories of things, like violations and misdemeanors and felonies and felonies in different classes and degrees.

Hannah McCarthy: Do you remember that commercial from the 90s about piracy? Internet piracy?

Speaker4: You wouldn't download a car?

Hannah McCarthy: Yes. That commercial pained me every time I saw it. I could neither confirm nor deny that Napster played a part of my childhood, but it hurt to watch that.

Nick Capodice: I have to tell you, I didn't know. I don't know if I would or not, but when I was 13, I might have downloaded a car if I could have. But let's say it's two people who stole the same thing, or three people who stole the same thing. Let us go with the good old literary chestnut. A loaf of bread.

Hannah McCarthy: And we're not going to get into the broken window panes. And the attempted theft of the silver candlesticks.

Nick Capodice: We're not gonna. Javert. But seriously, one person steals a loaf of bread to feed a hungry family. Another steals it as a prank, and a third steals it. Not because they needed it, but just because nobody was looking and they felt like it. Should all three people get the same punishment?

Hannah McCarthy: Fortunately, that's not for me to decide. Right. That is the job of judges and juries. Lawyers play a role in that, you know, to explore the context of a crime. Um, judges, maybe with a recommendation of the jury, determine the sentence. I know that is rare, but it happens.

Nick Capodice: And sometimes that last step, determining the sentence is much more complicated than I had imagined. And again, here is US Court of Appeals Circuit Judge Gustavo Gelpi.

Justice Gelpi: And I would say sometimes sentencing is the most difficult aspect of the rule of law, because sometimes we have what are known as mandatory minimums. For example, in drug cases involving large quantities of drugs or when you have firearms involved. You have to apply that mandatory minimum. But sometimes it is tough from the judges perspective, because you will see an individual who otherwise should not be serving that much time. But for the rule of law, you have to apply it equally to everybody.

Hannah McCarthy: Okay. So the difficulty that judge help is describing here is feeling that perhaps a sentence is unfair. Maybe. Right. Um, but there's a law at the state or federal level saying that certain offenses have to be punished in a certain way. So this is an instance of the rule of law being upheld, even if perhaps to that individual judge, it might not feel fair.

Nick Capodice: To take it a step further. If a defendant has a really good reason. They broke the law, and this law has a mandatory minimum sentence. But this person had really special circumstances and the judge gives them a lighter sentence. That may be fair, but it is not upholding the rule of law. Now it is time for us to get into things that are not fair, not the rule of law, and that are definitely happening in the United States of America. The law should, but does not apply equally to everyone.

Hannah McCarthy: I'm glad that we're talking about this, because to me, it gets at the very many steps that have to occur for the law to be applied. Inequitably. Right. Where and how you grew up, how you're perceived by others, how you're perceived by law enforcement, even the laws that guide your city or state. Has your legislature crafted them in a way that might put you in scrutinize way more than somebody else? And we know, based on the stats, that race and money play a huge part in this. We know that an innocent black person is seven times more likely to be wrongfully convicted of murder than an innocent white person, that black Americans are incarcerated at five times that of the rate of white Americans. There's so much data on this. So, Nick, this makes me wonder what role a democracy could or should play in ensuring its citizens are set up to succeed under the rule of law. And then, you know, the money element. Wealthy people, they can pay fines. They can pay their bail. They can hire the best lawyers.

Nick Capodice: You said the best lawyers. You said the the most powerful law firms, right? And it's fitting that you said those words. Listeners to our show know we have talked in many episodes about unequal treatment of historically marginalized communities, past and present. But we are in a unique time frame right now. When we talk about fractures in the rule of law.

Speaker13: Since his inauguration, President Trump has taken 145 executive actions. And many of them, as we've reported here on the Daily Report, have involved immigration, the shrinking of government, but some have also targeted law firms. The president has attacked those in the legal community who, in his opinion, engaged in, quote, frivolous, unreasonable and vexatious litigation against the United States.

Nick Capodice: As we are taping this, President Trump has used executive orders to target six law firms, large wealthy law firms, preventing them from entering federal buildings, ending current federal contracts with them, or removing them as potential firms for future government work. A partner in one firm, Paul Weiss. Now that is the name of the firm. It's not one person. It stands for. Um, Paul, Weiss, Rifkind, Wharton and Garrison. This firm did pro bono work in a suit against people who participated in the January 6th insurrection. And there was an executive order, uh, Executive Order 14237 titled Addressing Risks from Paul Weiss. This executive order stripped them of their ability to continue to operate. That executive order was lifted after Paul Weiss agreed to do $40 million of pro bono work that supported the agenda of the Trump administration. There are several lawyers and judges in this room tonight. There are other legal professionals in this room tonight as well. And I do not know if they are willing or able to comment on it. So I can and I will say, if we go back to our list of five things that make the rule of law work. Ask yourself, is this fair? Is it rational? Is it predictable? Is it consistent? And is it impartial? And I'm going to leave that to you to decide.

Hannah McCarthy: All right. Nick, so we have talked about ideal versus reality. Did the judges you spoke with have anything to say about cracks, so to speak, in the rule of law? You know, Payne talked about freedom and rule of law going hand in hand. What happens if and when rule of law falters?

Justice Alverez: And it's called the democratic erosion. And that's a title that a lot of the great legal thinkers have labeled this this phenomenon. So erosion occurs when the captain of one soccer team buys one of the referees. The rules of soccer can be changed now because the referees, you know, they won't pay attention to the rules and they'll do whatever. And one team benefits from those rules and the other team does not. It's occurred in Venezuela. It's occurred in Turkey, by the way. It's just occurred in 2010, in Hungary and shortly thereafter in Poland.

Nick Capodice: Judge Alvarez wrote a paper on this, and I have a link in the show notes to anybody who wants to read it, it's tremendously written. She explains how the breakdown in the rule of law is inextricably tied to the breakdown of democracy. And she started with the example of Nazi Germany.

Justice Alverez: Well, you have Hitler coming into power in a very democratic, you know, oriented way. It was voted in. And as he became powerful, as did the Nazi Party, they started stripping the government and they started stripping not only the government, but also the judiciary and the press. And all of a sudden, you had the government of a few government of men, the rule of men versus the rule of law versus a democracy. And it was what Hitler and his people wanted. And that's what everyone, uh, was submissive to.

Nick Capodice: And then she moved on. She said things can happen differently, like in Peru or Argentina when it happened suddenly, overnight, like in a coup d'état.

Justice Alverez: And it happens really fast and everyone is just shocked. But, you know, democracy is just finito. Terminado totally in one day and with guns and with the military if you want to.

Nick Capodice: And finally, there is one more way.

Justice Alverez: There's another way. And that's the Hungarian way. And the Hungarian way is, uh, Viktor Orban, who is very charming and, uh, and his party, the Fidesz party, and they come into power, they're voted in and, uh, they just swept everything, you know, they're the majority party in Parliament. They're the majority, everything. So what do they do? Well, we got all this power. Let's do something about it. They began very slowly dismantling all the checks and balances. And they started, by the way, with the Constitution.

Nick Capodice: Viktor Orban and his party made drastic changes to Hungary's constitution. They also appointed loyalists to key judicial positions, and he lowered the retirement age of judges, forcing hundreds of them into early retirement in one night.

Justice Alverez: And they started enacting all these laws that benefited only a few, not everyone. The other problem was that they violated laws. And guess what? They were not held accountable. Why? Because the judiciary wasn't there. They Initiated the judiciary. They totally destroyed it. And so now they're doing what they want to do. So what do you have there? You have very charming people coming into power, destroying the rules or enacting new rules that give them more power. The rulers start ruling with the rule of the few men and displacing the rule of law by setting aside the judiciary. So that's what happens with the democratic erosion.

Hannah McCarthy: All right, so, Nick, as you know, something that is very important to me right now, in particular, is the emphasis that we live in a democracy wherein people do have the power, and it is the role of the media, I think to help people understand things and to not exaggerate things and to not scare them, right? That is part of our job. That's part of our responsibility. And so many guests who I've spoken to recently have said to me, you know, the important thing about this nation is that all of us, we the people, we are still here. This is still a democracy. We still have power. And that is the most important thing.

Nick Capodice: Yeah. And I have one more guest to add to your list, Hannah. We talk a lot about the pillars of democracy on this show, and the rule of law stands amongst them. Having now made this episode, if you asked me what is the rule of law, I might say it is the thing that stops erosion. It stops anarchy. It stops tyranny, and it keeps our democratic republic. Now, I don't believe Judge Alvarez or Judge Help or any of the people in this room, for that matter, want to see that pillar crack or want to see democracy A road. And fortunately for some good news. Judge Alvarez had some advice for the people. Democracy is still in their hands, but only if they are politically active.

Justice Alverez: But I don't say go, you know, become a Democrat always, or a Republican, you know. It doesn't matter you what you believe in. You become active politically, always watching that. There's no erosion of democracy, that there is no rule of men in our country, and that only the rule of law exists and that people don't. They don't take the rule of law lightly. Honor it, live it. I think that we can prevent things like what happened to Hungary and what happened to Venezuela and Argentina and and Germany. Everyone is accountable. No one is above the law. And I think That our children need to know that.

Nick Capodice: Well, that is our episode on the rule of law. I've got some massive thanks here. First, a huge thank you to Allison Gaertner for helping to organize all of this. She works at the Stephen Breyer Community Learning Center on Courts and the Constitution at the Moakley courthouse. After the taping of the episode, we had a wonderful talk with three judges, and since the microphones are off, everybody could be really candid. And it was phenomenal. So thank you, Judge Ireland, Judge Ponsor and Judge Ephraim. If you want to find out more about Law Day, May 1st I encourage you to check it out. Go to law. Org you can see the stuff that the American Bar Association has put together. And thanks to them too. Thank you American Bar Association. I'm looking at you, Frank Valadez. You're a star. This episode was made by me. Nick Capodice with Hannah McCarthy. Our staff includes Christina Phillips as a senior producer, Marina Henke as a producer. And Rebecca Lavoie is everything to all things. We Say executive producer, but she is technically the director of on demand audio. But she's so much more than that. Music in this episode from Hanu Dixit. Epidemic sound and the inimitable Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

Nick Capodice: Great time. Great time. But the break is a lie.

Hannah McCarthy: It is a lie.

Nick Capodice: Did anybody get that joke? The break is a lie. Yeah, I got it. Hannah and I had a little bet about who would get that joke in the room. Uh, it's a portal joke. Are you ready to go?

Hannah McCarthy: I'm ready.

Nick Capodice: Here we go.

---

Who decides what politicians should say?

Today we explore the nebulous world of political consultants. 

These are the people who run political campaigns. They use a mixture of science and gut-feeling to determine what a candidate should say and do, and in one particular instance, what they should NOT say and do. 

How do they do it? How effective are they? What actually moves the needle in a campaign? Talking to us today are two campaign experts; David Karpf from the School of Media and Public Affairs at George Washington University, and Rasheida Smith, political consultant at Dunton Consulting. 

Transcript

Note: this transcript is AI-generated and may contain errors

Consultants final d1.mp3

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we're talking about something that's a little weird.

Archival: Democrats have kind of organically settled on a new attack line against Donald Trump and J.D. Vance. Basically, these guys are just plain weird.

Archival: Well, it's true. These guys are just weird. And, you know, they're running for He-Man women Hater's club or something.

Archival: It's not just a weird style that he brings. It's that this leads to weird policies. [00:00:30]

Nick Capodice: Do you know what I'm talking about here, McCarthy?

Hannah McCarthy: I think I do. This was the quote unquote GOP is weird talking point slash strategy. I guess that the Harris Wallace campaign started to use in the 2024 election.

Nick Capodice: It was. And while I will be talking about how that word was used in the campaign a little bit later, that is not what this episode is about. But when it started happening, I thought, wow, this is a bit odd. It's kind of [00:01:00] a unique attack. And then like that, it's gone. And it got me thinking. Hannah, who decided that did the so-called weird thing come out unprompted from Governor Tim Walz's mouth? Does that even happen in politics anymore? And who decided to stop saying it? And come to think of it. Who decides anything in political campaigns? Who decides? We're gonna have two town halls, 92nd opens, but the moderators can't fact check. [00:01:30] And the candidate should wear a blue tie until at least one story about hearing their parents talk about money at the kitchen table.

Archival: At kitchen tables across our country, there is a concern about our economic future.

Archival: Somewhere in America. A mother sits at her kitchen table, his kitchen table.

Archival: I learned a lot of basic lessons.

Hannah McCarthy: Yet, like, who is the first person to say that a candidate had to slow down right at the end of their sentence to make everyone applaud?

Nick Capodice: Yeah.

Hannah McCarthy: I [00:02:00] gotta say, Nick, I'm the biggest softy in the world for this trope in movies and television. You know, the person who knows the score and tells the candidate exactly what to do or say, like West Wing.

Archival: I think we'd lose.

Archival: Not in new Jersey.

Archival: It's never been shown that racial profiling works, and I'm against it.

Archival: That answer is pretty simple, isn't it?

Hannah McCarthy: Wag the dog.

Speaker12: Lord willing and Jesus tarries. Eight days from now, I'm going to be taking you folks into the second term. Wait till you hear the speech tonight.

Nick Capodice: Veep.

Hannah McCarthy: Yep. But, I mean, I guess in Veep, it's [00:02:30] always an utter disaster.

Archival: I will work on putting forward a new, streamlined family's first bill before Congress in the near future.

Archival: She sounds like an underwater Bob Dylan.

Nick Capodice: It is always an utter disaster, Hannah. And, as we often say, lauded as extremely accurate.

Hannah McCarthy: That is true.

Nick Capodice: So today we are talking about the nebulous world of political campaign consultants. Who are they? What do they do when they run campaigns? And how do they know what [00:03:00] will help a candidate actually get elected?

Hannah McCarthy: All right, Nick, can we start with the who before the how? Who gets to run a campaign?

David Karpf: The people who run campaigns are mostly the people who helped to win a previous campaign.

Nick Capodice: This is David Karpf. He's a professor of strategic political communication at George Washington University.

David Karpf: Because of what we call superstitious learning, essentially. Once a team wins an election, you assume that they know what they're talking about, and that leads to a whole career. And you mentioned James Carville. [00:03:30]

Hannah McCarthy: Did you mention James Carville?

Nick Capodice: I didn't today in this episode so far, but I did when I spoke to David. James Carville is quite possibly the most famous political consultant. Am I allowed to do? James Carville.

Hannah McCarthy: Hannah, I'm going to leave that up to you, man.

Nick Capodice: The Democrats have got to come down from the persimmon tree. It's pretty much like that.

Speaker16: Those are the things that that that if I'm a Democrat, I'm much more care about that than than some word in a dictionary.

David Karpf: James Carville is the classic example of this, right? He helps Bill Clinton [00:04:00] win in 1992. It is not entirely clear whether Carville's advice was material to that, win or not. It's possible that Clinton would have won without James Carville. But having been the guy who advised Clinton, he then is able to set up shop and spend decades opining on what it takes to win because he won one. So he must know something. So it's kind of you're a staffer on a campaign that wins. That means you get hailed as a genius, and that means you get to be a staffer on other things. And [00:04:30] all the time you're bringing on people who will test out messages, test out new techniques to try to find anything that seems to make the line go up.

Hannah McCarthy: Carville advised Bill Clinton. Bill Clinton won. And while we might not be able to say whether Carville's advice had any material effect there, I do know that campaign advisers do a lot. Right?

Nick Capodice: Right. In terms of carville's material effect. We can't know because we don't live in multiple timelines. We're not salvadorians. [00:05:00] That cat is going to have to be both alive and dead at the same time. But yes, as you said, Hannah, they do a ton. And I wanted to talk to somebody about all of the massive complexities involved in running a campaign.

Rasheida Smith: I always say that, um, you know, campaigns are like orchestras, right?

Nick Capodice: This is Rashida Smith.

Rasheida Smith: My name is Rashida Smith, and I'm the owner of Dutton Consulting LLC, which is a data and field [00:05:30] firm. And we are political consultants. As a consultant, you have your very specific section. You know, I say the field is like the percussions and media. You know, TV may be the horns or the brass and digital, the winds, the flutes. Right. And mail could be like the strings. So all of this is about understanding your particular role, your expertise, and how you meld into the greater organization. Um, to bring your part [00:06:00] forward.

Nick Capodice: We are going to hear from Rasheeda a little bit later on strategies and processes she and her team use in campaigns. But before moving on, I wanted to share one tidbit from her. When you're trying to get someone elected, everything. No matter how long your campaign has been going on, everything revolves around the last 30 days.

Rasheida Smith: 30 days out and everything's happening right. You're probably in the middle of preparing for GOtv, but now, in this day and age, vote by mail is live. So [00:06:30] people are voting every day. In some places you're getting ready for early vote. So people are voting one way, and now you're going to open up a second way for people to start voting before Election Day. You're also looking to close your arguments, your final persuasion arguments, And make sure that either you're doing a compare and contrast, or you're bringing your positive message home, or you're making sure that you are reconfirming the votes that you already have [00:07:00] and what that looks like. And so right now, you're really focused on how do you end. You know, we have the saying, we say we open to close and we close to open campaigns are the only corporation that is built to close. And so 30 days out you're thinking about how you close.

Nick Capodice: Abc Hanna. Always be closing.

Speaker18: Always be closing. Always be closing.

Nick Capodice: And yes, I am quoting Glengarry Glen Ross here. And that's relevant [00:07:30] today because campaign consultants are salespeople. Sort of. It's about branding and messaging. They are selling America a candidate. But the problem is you don't really have a chance to try out something new like Crystal Pepsi or the Arch Deluxe because the stakes are so high.

David Karpf: A critical thing to keep in mind here is messaging in electoral campaigns is like the worst place in the world to develop new communication techniques. [00:08:00] And the reason for that is the outcome you care most about is winning on Election Day. That happens once every two years or four years. If we're doing presidential, it's once every four years, and every four years you have a different media environment, different candidates, different everything else. So once every four years you get the actual outcome you care about. That makes testing kind of guesswork.

Nick Capodice: So one of David's favorite examples of how political campaigns are different than ad campaigns is to compare them to [00:08:30] selling gym memberships.

David Karpf: Selling gym memberships is an amazing place in the abstract to develop new communication techniques, because every week you can try out a new message or try out new targeting.

Nick Capodice: Now you have bought a gym membership or two in your time, right?

Hannah McCarthy: Hannah I have.

Nick Capodice: So what made you pick that gym in particular out of all the ones in town?

Hannah McCarthy: Uh, it was close to my apartment. They had a massive discount. It was, like, really inexpensive for the first year, [00:09:00] and it was big.

Nick Capodice: All right, so the people who run that gym can say, all right, so, you know, we doubled our size, we added a bunch of ellipticals or whatever. Let's see how that affected membership in January. Oh look, we got this huge boost in late May. That must have been in response to our six months free trial that we promoted on the radio station, the gym. People have a ton of data that they can measure and directly tie to stuff like their ad campaigns or their promotions. Not so in the world of [00:09:30] political campaigns.

David Karpf: Electoral campaigns, the only things that they can measure, they can measure engagement online. They can measure signups to your list. They can measure fundraising. Um, they can do some experiments where like they'll a B test exposure to a message and then see how people respond to that. But it's still mostly like like focus groups. You know, you were putting people in a room, exposing them to a communication and then seeing what they think. Or you're watching in the wild to see on social media [00:10:00] how people are reacting to something. And all of that is really coarse, because what that's telling is how are people reacting to a message when they're exposed to it? It's not actually telling you about the behavior you care about, which is will they vote for a candidate who they weren't otherwise going to vote for on Election Day?

Hannah McCarthy: Did David say whether or not there was anything similar out there, like something to hang our hat on, something that people sell that at least rhymes with the world of political campaigns.

Nick Capodice: He did offer one example that's a little bit closer. A famed advertising [00:10:30] rivalry.

Speaker19: You got the right one, baby.

Speaker20: Coca cola.

David Karpf: Right. Because part of what's going on here in American presidential elections Is we only have the two parties and people have a lifelong association with those two parties. And once every four years they vote for a president. So it's kind of like a Coke versus Pepsi situation where they have deep familiarity, familiarity with the brand, but they only get to buy one soda every four [00:11:00] years. Right. Like Pepsi can try out some really fascinating ads there, but convincing the Coke drinkers that this once every four years I'm going to go with the product that I don't haven't always gone with is just incredibly hard.

Nick Capodice: So we got Jim's, we got Cola, and I got one more. Hannah, can I do one more?

Hannah McCarthy: Oh, please.

David Karpf: Uh, Quidditch in Harry Potter.

Archival: It's wicked fast and damn near impossible to see. You catch this, the game is over, and we win.

David Karpf: Now let me [00:11:30] grant. I didn't read the books. I only watched the movies. I was going to read the books with my kids once. They were old enough. And now I'm less of a J.K. Rowling fan, so I'm going to go there. But my understanding of credits from the movies is that there are all of these people playing this game, and then there's two dudes running around trying to catch the snitch. And actually, whoever catches the snitch wins. Right. Like the entire rest of the normal game has no material impact on who wins. It's just those two dudes flying around trying to catch that outside other thing. Right. [00:12:00] Like the stakes of presidential elections are so high that we spend billions of dollars on communications trying to shape the outcome. And they are close enough that this stuff probably does matter at the margins, but also the vast majority of what you're doing is not going to affect the outcome at all.

Nick Capodice: Real quick, before I get Avada Kedavra the heck out of here, there are two times in the Harry Potter universe with the team that got the snitch didn't win the game. But that is not the point here.

Hannah McCarthy: You know, I didn't realize [00:12:30] until now that Avada Kedavra is like basically Abracadabra.

Nick Capodice: It really is Harry Potter. Jay. Gatsby. Both victims of the green light.

Hannah McCarthy: But, Nick, is there anything like. Is there anything that we know moves the needle to get people to vote one way or another? Did David say whether anything actually affects campaigns?

David Karpf: The depressing finding from most of political science research on this over the decades is [00:13:00] that the impact of campaigns on election outcomes is so small that it's almost impossible to measure. Now, that doesn't mean that campaigns don't matter at all, because campaigns do. Like, what a campaign is usually doing is reminding and bringing home the voters who would have voted for you anyway. So like if one side ran a campaign and the other side just didn't, we would probably expect that to have impacts. We've never had a case of it, so we can't really measure it. But the the depressing thing is it's not like the candidate with the most money always wins, or the candidate [00:13:30] with the best comms always wins. They're kind of responding to external factors that are beyond their control.

Nick Capodice: So David used a barely offensive swear word here that I'm not going to put on the radio, but I'll summarize for everyone due to external factors. Incumbents, the people who are running to keep the office they already hold. They have been getting their backsides kicked and the last few elections internationally.

David Karpf: But it seems like a big part of what's going on is we know that elections tend [00:14:00] to be just broadly retrospective, that people tend to vote based on. How do we think of the state of the country and the world right now? And if it's going great, then you tend to vote in favor of the incumbent party. It's not going so well. If you're not happy with it, you vote against the incumbent. That tends to be the broad trend in elections and every stable democracy post-Covid. The electorate, when they had a chance was like, yeah, life sucks right now and we're going to blame the people in power. That's been happening everywhere. Like a better come strategy doesn't change [00:14:30] that. Like it's a bad. It turns out in the past few years have been bad years to be incumbents. You do everything you can with a calm strategy to try to minimize that or turn it around, but there's no magic words that are actually going to fix it.

Nick Capodice: All right, so that is one side of the coin. After a quick break, we're going to get to the other side and all the things campaign consultants do to get those votes, as well as a quick dive into the world of weird in [00:15:00] 2024.

Hannah McCarthy: But before that break, if you want the literary version of what Nick and I do, we wrote a book breaking down every gear and winch in the governmental machine. It's fun. It's got cartoons. It's called A User's Guide to Democracy How America works. Check it out.

Nick Capodice: And there is no billboard of T.J. Eckleburg.

Hannah McCarthy: We're back. We're talking about the nebulous world of political consulting. [00:15:30] And, Nick, you were about to say what kinds of things consultants do before the break.

Nick Capodice: I was so I am bringing back Rashida Smith. Rashida runs Dutton Consulting LLC. Her specific focus is on something called field operations consulting. That is basically ensuring that campaigns have enough direct contact with voters. But Rashida has worked in just about every level of campaign consulting. She started by telling us how consultants determine [00:16:00] messaging.

Hannah McCarthy: So this is deciding what a candidate should say, what they should focus on when they're going around talking to voters.

Nick Capodice: Precisely.

Rasheida Smith: A lot of this is based on science, and there's some parts of it that's just really sheer gut, right. And so understanding the local landscape and then you do polling. And so you're testing your messages and you're seeing what messages work with what constituencies, right. Or subsets [00:16:30] of voters. And so you may have some messages that say, you know, jobs are most important versus immigration. You may have someone that says quality of life and parks are more important than taxes. Maybe taxes aren't the issue for a local space. It just really depends on what's happening locally. And when you find that subject that really moves the needle, when you find that talking point or that message point, that's when you drive it home.

Hannah McCarthy: And [00:17:00] how do they do that? How do they see if the needle is moved?

Rasheida Smith: We take polls, you know, we poll likely voters and then we ask them questions. A battery of questions on issues so we can have one subject, for instance housing and have seven different message batteries. And so we'll test the messaging different ways and see would this make you more likely to vote for an individual who had this stance less likely or didn't matter. And so we weigh [00:17:30] that. Not only do we weigh it across all the voters and say everyone who participated in this poll said X, but then we look at what we call crosstabs, which is subsets of those voters. Now we're grouping them. We're grouping them by age. We're grouping them by gender, we're grouping them by geography, we're grouping them by socioeconomic status. And so that is how we understand that women who make up 54% of the electorate in a particular race feel [00:18:00] this way about this housing issue or child care. And so this is the issue that we should hone in on, because this is what moves the majority of the voters that we're going after.

Nick Capodice: And once they've chosen a message and they have polled to ensure it's the right message, they go to town with it. And it's got to be snappy.

Rasheida Smith: Years ago, you could have something that might have been two minutes and it would have kept someone's attention span. And then today we're doing seven second videos, right? But [00:18:30] at the same time, there has to be that overall message that we know that works. So how many different ways can you say, um, the rent is too high?

Archival: Once again, why? You said it. The rent is too damn high.

Rasheida Smith: How many different ways can you say lock her up? How many different ways can you say all of the campaign slogans, you know, gas, guns and groceries, right. That have won campaigns now for a couple of years? How many ways can you say this and [00:19:00] how many ways can you depict this so that your message is being heard and you're being remembered or associated with the message that works? And it's really about repetition. How many times are you in front of that voter with that message? How many times do they get a chance to see you? You know, they say, you know, you need something like 25 times in front of a voter before something sinks in.

Hannah McCarthy: Wow. I mean, repetition actually works. I should have guessed that.

Nick Capodice: Yep, repetition actually [00:19:30] works. You should have guessed that.

Hannah McCarthy: I want to step back a second and ask if consultants have anything to do with the very first step of a campaign. Not just what a candidate says, but who they are, how they present themselves. You haven't seen She's all that, have you?

Nick Capodice: I haven't, Hannah, but I will, I promise.

Hannah McCarthy: No, you really, really do not have to, Nick. It's a terrible movie, Lainey.

Archival: No offense, but when was the last time you tweezed. What?

Hannah McCarthy: Um. It is one of the many [00:20:00] movies where the protagonist takes off their glasses, lets their hair down, and suddenly they went from being someone you barely noticed to the most attractive human being on the planet.

Nick Capodice: That is an old chestnut. I gotta say, though, as fun as it is to imagine a consultant putting Walter Mondale in a leather jacket and giving him a snazzy haircut, Rashida says that is not how it actually works.

Rasheida Smith: Well, you have to know that a candidate has already been shaped by their life experiences and who they are and what they stand for. And [00:20:30] so, as much as other political consultants are seen as the puppet masters, right, in many ways the candidate has already done that. And what you are doing is amplifying who that candidate is and what they stand for. Now, there are pieces that you do help mold and shape a candidate based on experience and based on the science part of campaigning and what needs to happen. But if that stuff isn't innately in that candidate, [00:21:00] it usually doesn't work.

Hannah McCarthy: Can we go back to something that David said? Um, the fact that we're a two party system and it is really hard to get people to switch from Coke to Pepsi, but that's what consultants are hired to do, right? So how do they know if they're succeeding before the day of the election? How do they test for it?

Nick Capodice: So they have a bunch of metrics, one of which is called modeling.

Rasheida Smith: Where you assign a support score to either issues or the candidate. And [00:21:30] so you'll have a score from 0 to 100. So the people who are let's say 80 to 100 are definitely with you, definitely leaning your way. And I don't care what party you're in, the people who are below 50 are probably not coming your way, probably not coming out. And so maybe you want them to think the election day is the day after. And so that's that's slither. That's right in the middle. Those [00:22:00] are the folks who your persuasions and those are the folks who you're really looking to touch and get in front of and see if you can get them on your side.

Hannah McCarthy: Last thing, Nick, I would just love to know what, if anything, we know about the weird thing.

Archival: There's the childish nicknames, the crazy conspiracy theories, this weird obsession with crowd sizes.

Nick Capodice: So I have to start with a massive [00:22:30] caveat here. Hannah. We did not speak to anyone involved in the Harris campaign, so this is pure conjecture, albeit conjecture, from people who work in this field or study this field so as to why it stopped so suddenly, Rashida said. That sort of abrupt cessation of a message comes from testing.

Rasheida Smith: That's it. It's testing. Right? And especially when you have larger campaigns, you're testing more often. You're testing weekly. Like if you're playing [00:23:00] on a national level, you're testing all the time, right. Or tracking polls.

Nick Capodice: But David Karp, the professor at George Washington University, who we heard from earlier, he went a little further.

David Karpf: So I have a hunch. Um, again, I wasn't in the campaign. I don't know exactly who was talking, who was being listened to and what data they had. But the thing that was very clear about the you're being weird line that Kamala Harris had used before, then Tim Walz picked up, used extraordinarily well, [00:23:30] and suddenly everyone on blue Sky was cackling over. It is. Well, it depends on which numbers you're going to look at, because amongst the party base that clearly resonates and is very powerful. Um, I particularly liked it not just because the party base liked it, but also because of the I believe that the action is in the reaction. And you could see Donald Trump, JD Vance, Ben Shapiro, like the entire conservative media and political apparatus, was visibly uncomfortable with getting called weird. [00:24:00] And in general, in politics, if you've got a line that is making the other side get flustered and make mistakes, keep on saying that line. So I really liked what I was seeing there.

Hannah McCarthy: The action is the reaction.

Nick Capodice: Yeah, and I think that's an interesting way to think about it.

David Karpf: It's a line from Saul Alinsky's Rules for radicals, which I still teach in my class. But yeah, it's a classic Alinsky ism is the action is in the reaction. The thing that I wasn't seeing and didn't have insight into was there was this slice of the of the potential electorate [00:24:30] who were probably suburban. I don't like I don't know exactly where they are, but they are Republicans who voted for Nikki Haley in the primary, felt deeply uncomfortable with Donald Trump and at least on paper, seemed gettable. And my guess is that the weird line that works really well for the blue sky crowd and produces reactions from conservative elites. It's very possible that in focus groups, that target segment was like, no, don't know. And [00:25:00] that then becomes sort of an internal fight amongst the advisers of should we be targeting our comms at animating our base and getting the other side to make mistakes, or should we be targeting our comms at getting people who wouldn't always vote for us, but it's a tiny segment who might to feel real comfortable voting for us.

Hannah McCarthy: Nick, can you explain what Kalms is? Is it communications?

Nick Capodice: Yeah. David said comms. A lot of times, comms is everything [00:25:30] you do to communicate in a campaign. So it's your messages on social media. It's your ads, it's all of your candidate speeches, etc..

Hannah McCarthy: All right. So which does David think is a better strategy to get your base really excited and riled up and go negative on the other side, or to be gentler, to try to convince people on the other side to come over to yours. Grass is greener. [00:26:00]

David Karpf: Um, there isn't a right answer there. And one of the things that I always tell my students is that the curse of social sciences in general is that you can't run history twice. You have different advisors saying we should focus our messaging at different constituencies. All of them are kind of guessing because while there's data we can measure, the thing that we really care about is election outcomes. And that will only happen once in November. The fight here is less party versus party left versus right than it is. Uh, [00:26:30] a broader story of the world is very simple versus the world is very complicated. Right? Like the authoritarian message from Donald Trump is and like we call it authoritarianism, we can also call it populism. But the basic message is the reason the world isn't the way you want it to be, is that the world is being run by crooks and idiots. Put me in charge. I will fire them and arrest them and then everything will be better. And the message that the Democratic Party has, or the message of progressive technocracy is the [00:27:00] world is very complicated. Uh, elect us, and we will have well-meaning people try their best to make things better at the margins. And when they make mistakes, they'll keep on trying to make things incrementally better. The worse the objective world gets, the less appealing that latter.

Nick Capodice: I'm Nick Capodice and I am coming to you today to tell you that I made this episode. With Hannah McCarthy and Marina Henke. I am proud of the work I do here at Civics 101 with Christina Phillips our Senior Producer and Rebecca Lavoie our Executive Producer. Somewhere out there a family is sitting at their kitchen table, and they're wondering, who did the music in this episode? I am here to tell them that their names are on the way. they need to know that the music in this episode was by Scott Holmes, Jesse Gallagher, Epidemic Sound, HoliznaCCO, Blue Dot Sessions and Chris Zabriskie who makes the best. Podcast. Music. Ever. Civics 101 is a production of NHPR NHPR

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April Fools: Politicians, the press, and more

Pranks are a staple of April Fools' Day - even when it comes to politics and the press. 

On this special edition of Civics 101, Senior Producer Christina Phillips tests our April Fools knowledge with some surprising trivia, and a whole lot more!

Transcript

Note: this transcript is AI-generated and may contain errors

Civics 101 April Fools

Music: We've only just begun. Doo dee doo dee doo. Doo doo doo doo doo.

Christina Phillips: This is civics 101. April Fools trivia special. I am Christina Phillips, a senior producer, and I am here today with. Do you want to introduce yourselves? We'll start with Hannah.

Hannah McCarthy: Yes. I am Hannah McCarthy, co-host of Civics 101.

Nick Capodice: I'm Nick Capodice, also co-host of Civics 101.

Rebecca Lavoie: I'm Rebecca Lavoie and I work with this team at Nhpr.

Christina Phillips: Okay, so this is the day April Fools, where people come together and play pranks on each other. And by that I mean there are the people who are good at a poker face and they thrive on this day. And then there are the rest of us, like me, who feel constantly on edge. Which one are you on edge?

Nick Capodice: I love this day. I have a great many, uh, pranks that I've played in the years. Not as many as Nhpr, because it's kind of like I get nervous, I'm going to get in trouble. But I used to. At my old workplace, I would do an April Fool's prank every single year. A big one.

Hannah McCarthy: Wow.

Christina Phillips: Give us your best. Your most successful.

Nick Capodice: Oh, God. Well, the thing is, they're all contextual. Christina. It was always about, like, fake tour content for this museum I worked at. And I always say there's this massive discovery, this huge mystery was solved, and I would photoshop very strange photos of people who currently worked at the museum onto old photographs and make them think I had discovered it. Another classic is the cheddar cheese in the shower. Never gets old. Just carve a piece of cheddar cheese like a bar of soap and carve into it. It's a joy.

Rebecca Lavoie: Nice.

Nick Capodice: Oh, the other one. My other favorite one is the, um, saying that the photocopier is voice control. Now, you write like a thing on the photocopier, and it's like they copy and say the number of copies you want completely voice controlled, and you hold the next and be like, copy seven.

Nick Capodice: Copy.

Christina Phillips: I've never heard that. I love that.

Hannah McCarthy: You are quite the pranker.

Nick Capodice: I'm a little bit of a merry prankster.

Hannah McCarthy: As someone who chronically forgets what day it is, I don't do April Fools. I have a lot of disdain for it, which is not earned.

Rebecca Lavoie: Back in the day, public radio itself used to do pranks. There was a famous NPR story about an inland whale, a nursery.

Archive: Hundreds of acres of wide pools as far as the eye can see, spread over the landscape. It is here that the nation's first farm raised whales are being grown and harvested.

Hannah McCarthy: That's so funny.

Nick Capodice: Fantastic.

Christina Phillips: Yeah, well, I'm so glad you mentioned that, Rebecca, because we have a whole section dedicated to media hoaxes. Perhaps you will do really well in that section. Today I have gathered you here and compiled some political April Fools jokes. They are from politicians, they are from government agencies and some from the media. Is everybody ready? Yes. For our first set of questions.

Nick Capodice: Absolutely ready.

Christina Phillips: Okay, so this is called come visit the Walmart Supercenter Statue of Liberty. Corporations doing business with the federal government is a grand tradition in the United States. But there's something different about a company claiming they've bought an iconic historic monument to help with the national debt. I'm going to read you this question. You get two points if you're right. One point if you're wrong, but you make a good argument for your choice.

Rebecca Lavoie: Okay.

Christina Phillips: So here's your question. In 1996, this company took out a full page ad in major newspapers that said the following in an effort to help the national debt. Blank is pleased to announce that we have agreed to purchase the Liberty Bell, one of our country's most historic treasures. We will start with Hannah. What is your guess for the company that pretended to buy the Liberty Bell Mutual Liberty? So give us your argument.

Hannah McCarthy: Because liberty is in the name.

Christina Phillips: Okay, so the mutual Liberty Bell, if you will.

Hannah McCarthy: And it's a mutual helping, right? They get something. The country gets something. Help them out of debt. They're all about helping people.

Christina Phillips: All right, I like it. I'm not going to tell you guys the answer until I've heard everyone. So, Nick, go ahead and give me your guess.

Nick Capodice: I guess, uh, Taco Bell.

Christina Phillips: Oh, okay.

Hannah McCarthy: Oh. That's good.

Rebecca Lavoie: That's a good guess.

Christina Phillips: And give us your argument for Taco Bell.

Nick Capodice: The bell ringing is, like their copyright. The dong.

Hannah McCarthy: Yeah.

Nick Capodice: And they're also they're always kind of jokesters at Taco Bell. They have like a pretty, a pretty fire like, Twitter account and stuff like that. So I think that's the sort of thing they would do in the 90s. That's around the time of the gordita and the chalupa. Like there was like there was like their shining moment.

Christina Phillips: Okay. So, so the, uh, Liberty Taco Bell or the Taco Liberty Bell, if you will.

Hannah McCarthy: There's a bell in their logo.

Speaker8: That's right. It's the Taco Bell.

Hannah McCarthy: But don't count that toward Nick's argument I gave it. That's me.

Christina Phillips: Got it.

Nick Capodice: It's also because the bells ringing for dinner. It's like the dinner bell. It's just that the whole thing.

Rebecca Lavoie: We got it. We think you're right. Go ahead.

Christina Phillips: Okay. Rebecca, what is your guess?

Rebecca Lavoie: I guessed Velveeta because Velveeta is the iconic topping for the streetside Philly cheesesteak. And I. And this is like what you put on a Philly cheesesteak. Everyone says a properly made Philly cheesesteak is made with Velveeta. And it is sort of an iconic cheese like condiment in in Philadelphia.

Nick Capodice: I would say, Rebecca, you didn't just make a strong case, you made a strong case.

Hannah McCarthy: Oh, oh.

Christina Phillips: Rebecca, I do have to fact check you. In fact, the Philly cheesesteak is cheese whiz.

Rebecca Lavoie: Oh, sorry.

Christina Phillips: But I really liked your argument. So you got a point. Yes. Hannah, I really liked your argument. So you got a point. Hey, Nick, you got two points because you were correct.

Hannah McCarthy: And you knew it instantly.

Christina Phillips: Also, that's additional free marketing for them. On top of the estimated $25 million in free publicity they got for this stunt, but they spent about $300,000 to run the ad, and they estimated it earned about $25 million in free publicity. One other thing I just wanted to point out. So in 1996, the entire budget for the National Park Service was around 1.1 billion. And that's money that's divided among over 400 parks and monuments. And the national debt in 1996 was over $5 trillion. So, you know, really digging into that national debt by buying the Liberty Bell. And there were a lot of people who were very upset about it, understandably imagining a company buying a monument. They did change their logo that day for that ad. So it had the little crack in the bell. So continuing with this theme, the rest of this round is questions about corporate food partnerships with the US military. So I have questions for each of you, starting with Rebecca.

Rebecca Lavoie: Oh, no.

Christina Phillips: During World War Two, Hormel Foods shipped 133 million cans of what meat product to U.S. troops overseas. Ingredients include chopped pork shoulder meat with ham meat added.

Rebecca Lavoie: It's spam.

Christina Phillips: It is spam.

Rebecca Lavoie: I don't want to hear any more of the ingredients of spam. Okay.

Christina Phillips: Oh, they're not so bad.

Nick Capodice: A lot of them have mechanically separated chicken. I always thought about the pork mechanically separated.

Christina Phillips: Well, the meat does not. There's no chicken meat. There's pork shoulder meat, ham meat, salt, sugar, sodium nitrate, water and flavoring.

Rebecca Lavoie: Flavoring.

Christina Phillips: At least in the 40s.

Nick Capodice: It's a fun little side note, but do you guys know why? Spam. We say spam email or like I'm getting spammed on my phone text messages. It's all from the Monty Python sketch where the waiter is going.

Nick Capodice: Spam, spam, spam, spam and baked beans and more. Spam.

Archive: Egg, sausage and bacon. Egg and spam. Egg, bacon and spam. Egg, bacon, sausage and spam.

Nick Capodice: So it's like they're like something that you get all the time, even though you don't want it.

Christina Phillips: It's extremely popular in Hawaii, which was not a state at the time. It was still a territory, but it continues to be a staple of Hawaiian culinary history and cuisine. Hannah. Also during World War two, this food company created something known as Field Ration D, which was described as being 600 calories, virtually indestructible and deliberately bad tasting so it wouldn't have a high value as currency to trade for non-food items like cigarettes, because it was supposed to be used in emergencies for nutrition. Name the company.

Hannah McCarthy: Name the company.

Nick Capodice: Yeah. Who makes really bad food?

Hannah McCarthy: 600 calories. It's a single item.

Christina Phillips: Do you want a hint?

Hannah McCarthy: I do, I didn't know that was allowed. Yeah.

Christina Phillips: So the headquarters of this company are in Pennsylvania.

Hannah McCarthy: Oh, Hershey.

Christina Phillips: Yes.

Rebecca Lavoie: You would know that if you watched The Foods That Built America on the History Channel. By the way.

Christina Phillips: Yeah. So they they really wanted it to not be traded for anything else. And so they made it taste really, really bad. And it was also so dense that soldiers would sometimes chip their teeth trying to eat it, and they would shave like use their knives, which I just imagine the, the hygiene of that doesn't matter. World War two, they would have to shave it down. And then they created when they were really like heavy military presence in the Pacific. They created an alternative that I think is called like Tropical Ration D, which was like extra unmelted so that it wouldn't melt in the hot weather. All right. So you got a point for that. Hanna.

Hannah McCarthy: Yay.

Christina Phillips: Nick, this last question is for you, but I've got a little bit of an open. It's, uh, kind of bleak. So after the bombing of Pearl Harbor and the United States subsequent entry into World War Two, Germany lost access to the ingredients that make Coca Cola, even though the company was still operating in Germany through the war. So in order to make up for the fact that they couldn't actually make Coca Cola, what beverage did Germany start producing that was flavored with apple pulp, whey byproduct from cheese and beet sugar? It still exists today in a different form.

Nick Capodice: Oh, I need the brand name or the kind of drink.

Christina Phillips: So it's a Coca Cola soda.

Nick Capodice: Okay. And it's made with apple pulp.

Christina Phillips: It was made with apple pulp, whey byproduct from cheese and beet sugar.

Nick Capodice: You know, when you go to a restaurant and you're like, what do you have? And they're like, we have Pepsi products. I'm like, I don't know what that means. Oh, man.

Christina Phillips: Think of commercials like old school commercials for a certain kind of drink.

Nick Capodice: It's like I'm trying to decide if it's going to be like sprite or 7Up or like Fanta. I'm going to say 7Up.

Christina Phillips: It's Fanta.

Rebecca Lavoie: I think the fact that he even thought Fanta gets him a point.

Christina Phillips: Okay. All right. Fair enough.

Nick Capodice: That's very fantastic of you. Thank you.

Christina Phillips: So it's actually a shortening of the word fantastic Germans, correct me. Which it is. Um, the German word for fantastic, in case you didn't know. And the color originally was murky brown and slightly cheese flavored, and it became a global smash anyway, so they still make Fanta. But it started as a drink for the Germans during World War two. Alrighty. The scores are as follows. Nick, you have three points. Hannah. You have two points. Rebecca you have two points. Ready? Um.

Rebecca Lavoie: Yeah.

Christina Phillips: Next category is media pranks. As we've already heard, NPR, the BBC and other publications tend to have fun with April Fool's Day by releasing faux stories that are supposed to be obvious enough to be pranks, but believable enough to make you stop and think. Sometimes they succeed, and sometimes they don't. For example, the BBC once ran a story in 1957 about a family in Switzerland that was harvesting spaghetti from spaghetti trees, and they said that the reason it was so populous was because the spaghetti weevil had been eradicated, and it became really popular. A lot of people called in asking if they could get spaghetti trees, because spaghetti was still considered a delicacy in Britain at that time.

Rebecca Lavoie: There's an incredible video for that story, by the way. I recommend looking it up after picking.

Archive: The spaghetti is laid out to dry in the warm alpine sun. Many people are often puzzled by the fact that spaghetti is produced at such uniform length, but this is the result of many years of patient endeavor by plant breeders who've succeeded in producing the perfect spaghetti.

Rebecca Lavoie: You can see trees covered with spaghetti, and these women are up in the trees, like taking the spaghetti gently down from the tree.

Christina Phillips: Is it cooked or is it raw?

Rebecca Lavoie: Cooked?

Christina Phillips: Nick.

Nick Capodice: Hello.

Christina Phillips: One NPR, April Fool's story announced the creation of a surgical procedure that would allow people to more deeply enjoy a new kind of media technology. I'm not telling you the year because I would probably give it away. Was it a a Bluetooth chip installed behind the ear that allowed you to have your own portable Bluetooth that could connect to devices around you? B finger extensions to give your fingers more reach on a computer keyboard. See 3D eye surgery to allow you to enjoy 3D movies without the glasses or D under the skin. Battery magnets that use your own energy to charge your electronic devices.

Nick Capodice: All right, this is really tricky. You said it's NPR.

Christina Phillips: None of these are real, for what it's worth. But one of them was a real fake story.

Nick Capodice: I know people do get magnets put under their skin. A lot of times it's a thing. It's like a whole movement of people who get technology implanted in there.

Christina Phillips: But does it charge your phone with your own metabolism?

Nick Capodice: It doesn't charge your phone, but there probably is somebody out there with a phone charging magnet.

Rebecca Lavoie: Is that transhumanism that you're referring to? I believe that's what it's called.

Nick Capodice: It's gently tied to the transhumanists. Yeah. Oh, man. If it was like the, like the finger extensions. So you can type easier sounds. So NPR I'm going to go with the Bluetooth chip in your ear.

Christina Phillips: No, unfortunately it was 3D eye surgery to allow you to enjoy 3D movies without the glasses, but thank you for believing the three other ones I made up.

Rebecca Lavoie: Nicely done.

Christina Phillips: Yes. Okay. Hannah?

Hannah McCarthy: Yes.

Christina Phillips: In 2008, the IRS sent tax rebate checks to the American people for anywhere from 600 to $1200 to help stimulate the economy. That was real. However, according to an April Fool's marketplace story, the IRS was worried that people wouldn't actually spend that money, so they decided to do what? Instead, the IRS decided to do what? Instead, send people visa gift cards that expired in two months to make sure they spent them. Send people all of their rebate in $1 bills to help encourage people to spend them in small dollar amounts that would spread the stimulus more widely. Send people their rebate checks worth of national park visitor passes so they could trade like currency to get to the parks they wanted. Or d send people toasters, air conditioners and snow blowers that equaled the amount of their checks based on their regions and what the IRS thought they might want.

Hannah McCarthy: These are all good.

Christina Phillips: Well thank you.

Hannah McCarthy: So the visa gift card is not as funny as the dollar bills. And then of course, like the appliances is very funny. I'm gonna go with a just because of how much people get weird about gift cards.

Christina Phillips: Unfortunately, no, it was not the visa gift cards. So the story said that the IRS was going to send people toasters, air conditioners and snow blowers and they would decide based on where they lived and what they thought they might like. And they had, like fake interviews with people who were like, I mean, I didn't really need a toaster. I kind of wanted a snow blower.

Rebecca Lavoie: Hmm.

Christina Phillips: Rebecca.

Rebecca Lavoie: Yes.

Christina Phillips: In 2016, National Geographic announced on April Fools that they would no longer publish photographs of what a naked animals. B domesticated animals. C cars, trains, planes, or any modern transportation equipment or d anything indoors.

Rebecca Lavoie: Okay, so when I was a kid, National Geographic was sort of like known for publishing pictures of naked people. Like, that was a whole thing. Yeah. And like, you know, let's just say kids were stealing their parents National Geographic sometimes. So for that reason, I'm going to pick a naked animals.

Christina Phillips: You are correct. This is the hardest one for me to come up with alternatives because it was just really good. So this is a quote from them. The media group says it will no longer degrade animals by showing photos of them without clothes. And so they actually published a series of photos with animals that have like clothes on to to demonstrate how they would do this.

Rebecca Lavoie: A zebra in a bikini.

Christina Phillips: We'll be right back after a quick break. Our next set of questions are about the zip code. Because NPR once aired a story on All Things Considered that announced that the US Postal Service was starting a program called Portable ZIP Codes, which allowed people to keep their current ZIP code even if they moved into a new one.

Archive: I'm pleased to announce this afternoon a new feature of our Go Postal campaign. Starting next month, the National Portable ZIP Codes Program will commence with it. American citizens can keep their present ZIP codes wherever they choose to live across the country or across town.

Archive: Crandall said that while the plan would at first.

Christina Phillips: So the next couple of questions are about zip codes. But first, does anyone know what Z stands for?

Hannah McCarthy: O zone?

Christina Phillips: So zone is correct. It's zone improvement plan. That's what ZIP stands for. And of course, it's also helpful because ZIP zippy, you know, makes the mail zipper essentially. So here are a couple of facts about zip codes before we start. The first number of the standard five number code determines a large region. So mail sorting systems look at that first from east to west east coast. New England starts at zero. And then as you move south and west to California, Washington and Oregon, those all start with nine and Alaska and Hawaii and some states have just one set of first couple of numbers, like Utah is only 84, and then the three after the remaining numbers further break down by county or region. And then in 1983 they introduced the ZIP plus four, which is four extra numbers that further divide mail locally. So I have a question for each of you. Hanna. There are three individuals who have their own zip codes.

Rebecca Lavoie: Hey, Christina, I know the president and the first lady are the first two, but I have no idea who else has their own zip code.

Christina Phillips: The third is an animal mascot created in 1944, and is part of the longest running public service campaign in US history to date.

Hannah McCarthy: Smokey the bear.

Christina Phillips: It is Smokey the Bear.

Rebecca Lavoie: It's actually just Smokey Bear.

Hannah McCarthy: Guys, I'm glad you.

Nick Capodice: Did it, Rebecca. Because if I did it, it would have been a disaster.

Hannah McCarthy: Did I still get the point? Oh, I'm giving you the point.

Nick Capodice: It's just the most butt, actually, I've ever heard from everybody. Like, it's actually Smokey Bear. Smokey the bear was my father.

Archive: Don't let forest fires be your fault. Make sure your fire is dead out. Remember, only you can prevent forest fires.

Christina Phillips: So his zip code is 20252. Santa Claus. Many people think he should have his own zip code. Or would. He doesn't. But he does have his own Canadian postal code, which is H0 zero zero. Nick, this question is for you.

Nick Capodice: Hello. Okay.

Christina Phillips: Before Smokey Bear, the US Forest Service partnered with Disney, who agreed to let them use animated creatures from, what, 1942 movie for just a year as mascots for forest fire prevention?

Nick Capodice: Huh? Well, you know, maybe Bambi.

Christina Phillips: Bambi is correct.

Nick Capodice: Oh, hooray! Never seen Bambi. Really?

Rebecca Lavoie: Yeah. Don't. It's so sad. It's.

Christina Phillips: Yeah, it's absolutely devastating. But also, Disney only let them do it for a year. And then they were like, we're taking Bambi and all of his friends back. And so they were like, we must create a new mascot. So they came up with Smokey Bear. And there's various origin stories as to Smokey Bear, whether it was named after a bear or named after a man. You know, there's a whole Wikipedia page on it. Rebecca, the next question is for you. Several corporate headquarters also have their own individual ZIP codes, including the headquarters for Walmart and General Electric, and for two weeks a year, Blackrock city, Nevada gets its own ZIP code in order to accommodate which festival, which began as a summer solstice festival in the 1980s and in 2023 was the site of major flooding.

Rebecca Lavoie: Well, I believe what you're talking about is the biggest gathering annually of like, jerks in the United States. And that would be Burning Man.

Christina Phillips: Hot take from Rebecca. You are correct.

Rebecca Lavoie: People say it's just all jerks now, right? That's why I was here. It's like tech bro kind of situation, right?

Hannah McCarthy: Yeah, I used to be that.

Nick Capodice: It used to be like a really kind of holistic, beautiful artist thing. And now it's like Fyre Festival. Yeah. So we all felt good when the flesh eating crabs crawled out of the ground.

Christina Phillips: That was 20, 23. That was, I think, one of those. Yeah, it did make it obvious which celebrities who were not smart enough to stream on their phones, getting rescued by helicopters, and then everyone else is just stuck in the mud. Burning man, you are correct. Okay. We've reached the end of this round. Currently, the scores stand at Nick. Four points, Hannah three points. Rebecca four points. The next category is called Bogus policy. So elected and appointed officials love to introduce fake policies or bills on April Fools. For example, in 1985, Congressman Thomas Downey put forth a proposal to lower the minimum age you could be elected to Congress to 15 to get, quote, new blood in Congress. For what it's worth, the median age in the House in 1985 was 49, and the median age in the Senate was 53.7. Do you want to guess the median ages in 2023?

Rebecca Lavoie: The median, not the average. Right. Median for the Senate I'm going to say 60.

Christina Phillips: Higher.

Rebecca Lavoie: What?

Hannah McCarthy: 65.

Christina Phillips: 65 is right. You're right on that.

Nick Capodice: But the house is maybe lower. So I guess the house is 46.

Christina Phillips: It hasn't gone down. It's gone up.

Nick Capodice: Oh, it's gone up.

Christina Phillips: Yes.

Hannah McCarthy: Nick, they don't leave 55 up.

Rebecca Lavoie: Oh my gosh.

Christina Phillips: This is a little bit higher than 55.

Rebecca Lavoie: 57.

Christina Phillips: Yeah 57.8. So technically 58. Almost 58. I also am fairly certain that a lot of the people who were in the house in 1985 are still in the House today, so they probably remember that bill. I want to use another joke policy as our jumping off point for this round, which is about font, also known as typeface. Okay. In 2015, Texas Land Commissioner George P Bush, son of Jeb Bush, announced that there was an agency wide ban on which font.

Rebecca Lavoie: My guess is Comic Sans.

Christina Phillips: Okay, what's your guess, Nick?

Nick Capodice: My guess is Comic Sans.

Rebecca Lavoie: Okay.

Christina Phillips: Hannah, what's your guess?

Hannah McCarthy: Okay, I have a reason. Can I tell my reason? Yes. We're talking about a political family and like a, what do you call it, a dynasty, right? Family like, known to be God fearing Christians. Right. Appealing to other God fearing Christians, I think so I picked Helvetica.

Rebecca Lavoie: Oh.

Christina Phillips: Okay. So the answer is Comic Sans. Hannah, do we give Hannah a point for effort? Heck yeah. Okay.

Nick Capodice: Really fast Comic Sans story. It was my first week at NPR. I wrote a funny Thing for the newsletter. Extra credit for our show. And I made a joke about how I hated Comic Sans. And I got a scathing email from a listener saying that I was being ableist because Comic Sans. She said it was quite useful for people who have dyslexia, and she was like, so you should never make fun of Comic Sans and you should be ashamed of yourself. And I was like, heartbroken for a month. And then I found out a month later that that's actually been disproven.

Rebecca Lavoie: Yes.

Christina Phillips: Dear listener, I'm actually I'm actually.

Christina Phillips: You're wrong.

Christina Phillips: You're totally right that there have been studies that have shown that Comic Sans is actually harder to read. And so sometimes in school, it'll be used to increase retention because you have to work harder to understand the words. But there are still plenty of people who say that it is easier to read.

Rebecca Lavoie: I thought it was just ugly and that's why we don't like it.

Christina Phillips: I mean, that's why I don't like it. These questions are all going to be about fonts.

Nick Capodice: I love fonts, I'm ready.

Christina Phillips: All right. In 2023, the State Department announced it was moving away from using Times New Roman as its default font on websites, on publications, etc., and would instead use this sans serif font with a name that derives from a word for instrument of measurement.

Rebecca Lavoie: I know this isn't right, but I'm gonna say it anyway, because it's the only sans font I could think of right now. And that's Ariel.

Christina Phillips: No, it's Calibri for Calibri. Yes.

Rebecca Lavoie: Yeah.

Christina Phillips: Caliber. Caliber.

Nick Capodice: So this is also an access issue. So serif fonts are more difficult for people with various learning disabilities to read than sans serif. So they're like, we can't have Times New Roman as our default anymore. So that's why schools suddenly are like, no more Times New Roman. And for your term paper, it's got to be Calibri.

Christina Phillips: Do you want to explain what a serif is?

Nick Capodice: So interestingly, they're called serifs, I believe. And I could be wrong because serifs and cherubim were often used to the angels, and illuminations were used to decorate words in old medieval manuscripts. So I don't know if that's true or not, but I've heard that before. But so serifs are the sort of chunky lines at the ends of all the lines of a letter. So the R has two serifs on its bottom feet, so sans serif eliminates those entirely. And it's a little bit easier to read.

Rebecca Lavoie: The eye is just a stick.

Nick Capodice: Yeah.

Nick Capodice: An eye is.

Nick Capodice: Stick instead of uh, an eye, which I love. The serif tie.

Christina Phillips: Nick. This question is for you.

Nick Capodice: Hello.

Christina Phillips: So the US Web Design system, which is part of the US Digital Service, which is a thing I learned about. They create standards for designing and maintaining government websites, recommends several typefaces for digital publications, including this font, which shares its name with the first name of one of our famous Western Expansionists.

Nick Capodice: Oh my God. And by a famous westward expansionist.

Christina Phillips: The first name of a westward expansionist, a famous westward expansionist.

Hannah McCarthy: The.

Nick Capodice: First name. So who's the guy who said, let me give me a second. The guy who said, Go West, young man, was that guy.

Christina Phillips: I think you're a little niche here. I don't know who this is.

Nick Capodice: Go west, young man. It's probably not even him. Um.

Rebecca Lavoie: Can I give you a clue?

Hannah McCarthy: Yes.

Rebecca Lavoie: This is a pair of westward Expansionists that we talked a lot about in grade school.

Nick Capodice: Good. Thank you. Rebecca.

Hannah McCarthy: I would not.

Nick Capodice: Meriwether.

Hannah McCarthy: Meriwether.

Nick Capodice: Thank you for the clue. Did you know that Lewis and Clark. They had to because they had such horrible constipation from being on the trail. They, like, didn't know how to eat the food. They were eating bad rations that they had to take this mercury pill for as a laxative, which they called thunder clappers. Give me a couple more thunder clappers. Good. Yeah. And you can track their trail because of mercury in the ground.

Rebecca Lavoie: Wow.

Nick Capodice: How much do you not believe the second part? All of it.

Hannah McCarthy: I don't believe that. Their excrement. First of all, I don't believe that we know exactly where they poop. And I don't believe that it then leached into the soil. Also, it would be about this big, right?

Nick Capodice: Yeah. Not from a thunderclap or. Well, we're gonna look it up after this listeners out there. You decide if the thunder clappers are real.

Rebecca Lavoie: I'm just gonna say the historical significance of Thunder clappers is the high mercury content has been used by archeologists to help verify locations.

Christina Phillips: Oh.

Rebecca Lavoie: And thunder clapping.

Nick Capodice: I'm not in anybody's graces any better after being right.

Nick Capodice: About the thunder clap. I'm in more trouble.

Hannah McCarthy: Okay. 97% of the time when I ask you to please fact check that you're like, oh, it's not true. You gotta give me that.

Rebecca Lavoie: But actually.

Christina Phillips: Hannah, this question is for you.

Hannah McCarthy: Yeah.

Christina Phillips: Times New Roman was created. For which newspaper? In 1931.

Hannah McCarthy: I mean, I guess the New York Times.

Christina Phillips: No.

Hannah McCarthy: Okay.

Christina Phillips: Times New Roman was used by the New York Times, for sure.

Rebecca Lavoie: But who was it created for?

Christina Phillips: It was created for the Times of Britain. Oh.

Hannah McCarthy: Okay.

Christina Phillips: But the New York Times used it until 2007, when they switched to a little font called Georgia.

Hannah McCarthy: Mhm.

Rebecca Lavoie: The fat one.

Hannah McCarthy: Yeah.

Christina Phillips: Okay. So at the end of this round, Nick, you have six. Hannah you've got four. Rebecca you've got five.

Rebecca Lavoie: Yay! Not last.

Christina Phillips: This last and final round is called what's in a name?

Nick Capodice: Oh, what's in a name?

Christina Phillips: In 2015, representative Mike Honda, a Democrat from California, introduced a fake bill for April Fools. He did not actually introduce it into Congress, but he wrote a press release about it. And that bill was against verbose legislation names. It was called the Accountability and Congressional Responsibility on Naming Your Motions Act, aka the Acronyms Act. Here's a quote from his press release which again was fake. The last straw was the pension and Social Security measuring equivalence. Permanent linking of everyone's actual savings environment. Please pass me Act, which only corrected a typo on page 346 of the tax code. So the reason I said so many times that this was fake was because so many news sources referenced this as if it were a real bill that was introduced. The Hill, the Atlantic, Votesmart.org, The New Republic. They all refer to it as though it's a real piece of legislation, and use it as a jumping off point to talk about ridiculous acronym legislation. I just want to say this is like when a teacher gives out a quiz that it says at the top, read every question before you begin this quiz. And at the bottom it says, just write your name and turn it in. The bottom of the HuffPost article that covered this piece of legislation says, this is an April Fools joke.

Christina Phillips: This is not real. It's literally right there. So anyway, I thought that this would be a good excuse To create trivia questions about times. Legislators really did try their hardest to create an acronym out of the title of their legislation. So I'm going to give you actual pieces of legislation that were introduced. I will tell you how many letters there are in the acronym, and then I will start reading the title of the bill. When you think you have a guess, say stop. If you get it right, you get a point, and then you get to answer a couple of follow up questions about the legislation. Oh, also, I feel like I should say just because it's an acronym doesn't mean they follow the rules of acronyms. So sometimes the actual title is like 12 letters long, but the acronym is only seven. So first question. This piece of legislation was proposed by Senator Michael Bennett, a Democrat from Colorado. The acronym is one word and it is six letters long. Zeroing out money for zombie. Yes. Zeroing out money for buying influence after elections act. Oh, zombie. So, Nick, follow up question. What was this act for?

Nick Capodice: Zero. Money for buying influence after elections. Was it a bill to, like, overturn Citizens United?

Christina Phillips: No. Not quite.

Rebecca Lavoie: Is it a bill to keep people from donating to campaigns of other people who are running for office after they are running for office?

Christina Phillips: I think that's close. It required candidates to disperse unused funds after the election.

Rebecca Lavoie: Oh, they had to disperse them. Okay.

Christina Phillips: Yeah. So basically you had to give up your money and it set a way to do it. So, Nick, you get the first go at this. What year was this introduced?

Nick Capodice: Oh, the zombie act. I'm going to say the old zombie act. I'm going to say 2016.

Christina Phillips: No, it's 2021 now. The next piece of legislation, the following legislation, was introduced by Mike Quigley, a Democrat from Illinois. The acronym is one word and it is seven letters long. Communications over various feeds electronically.

Nick Capodice: Coffee.

Hannah McCarthy: Oh. That's so funny.

Nick Capodice: That's hilarious.

Christina Phillips: So the whole title is communications over various Feeds electronically for Engagement Act or the Coffee Act. I cannot look at this tweet from President Trump that inspired this without laughing. It's like Donald Trump was president at the time, tweeted something at 12:06 a.m. on a Wednesday that said, despite the constant negative press, coffee and tweet.

Rebecca Lavoie: And.

Christina Phillips: It was like the next six hours overnight, people just lost it. And then six hours later, to his credit, he had a really good follow up. Who can figure out the true meaning of coffee and enjoy. And it's still up there. So, Nick, what was this act for? What did it purport to do?

Nick Capodice: Can you read the bill one last time? The name. And then I'll get it.

Christina Phillips: Communications over various feeds electronically for Engagement act.

Nick Capodice: This is monitoring the usage of politicians on social media.

Christina Phillips: Ah. I'm going to go ahead and say close enough. Rebecca, do you have a guess?

Rebecca Lavoie: It codified that the president's tweets are actually, like archivable material.

Christina Phillips: Yeah, that's exactly it. So you are going to get the point for that. Yeah.

Nick Capodice: Well done.

Christina Phillips: So it basically some of the language in here is that the bill amends provisions governing presidential records to revise the definition of presidential records to include any personal and official social media account. Nick, what year was this bill introduced? Do you have a guess?

Nick Capodice: Uh. 2020.

Christina Phillips: No. Someone else have a guess?

Rebecca Lavoie: 2018?

Christina Phillips: No, it was 2017.

Rebecca Lavoie: Ah.

Christina Phillips: This was like three months into his new administration when this happened, did it pass?

Nick Capodice: I'm going to say no because it's an acronym.

Christina Phillips: Yeah. You're correct. It did not. It did not pass. But it's worth pointing out that in 2014. So before this bill was introduced, there was an amendment to the Presidential Records Act that specified that electronic content was considered presidential records and must be preserved. So a lot of legal experts already assumed that included social media. But President Trump did come under fire for deleting tweets during his presidency. Nick, I believe you got two points for that one. Are you ready?

Rebecca Lavoie: Yes.

Christina Phillips: This piece of legislation was introduced by Democrat Gary Ackerman from New York. The acronym is one word. It is eight letters long, but the word is not spelled correctly.

Rebecca Lavoie: Oh.

Christina Phillips: The health insurance protects America. Can't HIPAA can't repeal it. Act.

Hannah McCarthy: Hypocrite.

Christina Phillips: Yes.

Nick Capodice: Oh well done.

Christina Phillips: Yes. So yeah it is spelled HIPAA like HIPAA. And then can't repeal it crit. Okay. So Hannah you got a point for that. I'm going to ask you what you think it was for.

Hannah McCarthy: Can you say it again.

Christina Phillips: The health insurance protects America can't repeal it. Act.

Hannah McCarthy: So I think it was to stop the repealing of the Affordable Care Act, stop going after Obamacare, like something like that.

Christina Phillips: Yeah. So I'm going to give you points because that is the intention of the act. It was kind of like a dare. So Democrat Gary Ackerman from New York introduced a series of bills that would repeal some of the most popular parts of the Affordable Care Act, including the one that said that companies couldn't deny coverage based on preexisting conditions, and another that said that insurance companies couldn't just end your coverage. And here's what he said, quote, these are great safeguards to improve coverage for all Americans. Republicans wouldn't dare vote to do away with them, despite their campaign pledge to do so. But I'm calling them out on it and dare the GOP to vote for these bills. So basically saying that, like you keep claiming you want to repeal the Affordable Care Act, well, if you really want to do that, do it. Do it on these specific provisions that everybody really likes.

Rebecca Lavoie: What about the death panels, though? Do they do they put those in the list.

Christina Phillips: Death panels. What's that?

Rebecca Lavoie: You don't remember when the Affordable Care Act was being sold to the people? That was the opposition to it was that it would create so-called death panels, where a panel of people would get to decide if you lived or died. That was the Sarah Palin talking point around the ACA.

Archive: President Obama stood before a joint session of Congress and said, there is no such thing as a death panel. Is he a liar?

Archive: He's not lying in that. Those two words will not be found in any of those thousands of pages of different variations of the health care bill. No death panel isn't there.

Christina Phillips: Okay, so, Hannah, you get first guess. What year do you think that this was introduced?

Hannah McCarthy: 2017?

Nick Capodice: Nope. 2012?

Christina Phillips: Nope.

Christina Phillips: Um, so it was 2010. Did it pass? Hannah? No, no. That is all of the trivia that I have for you today.

Nick Capodice: Oh.

Hannah McCarthy: Wow.

Christina Phillips: So I'm going to reveal our final scores. Um, Nick, you received ten points. Hannah, you have seven points.

Hannah McCarthy: Huzzah!

Christina Phillips: And, Rebecca, you have six points.

Rebecca Lavoie: See, I don't always win.

Christina Phillips: Your winning streak is over.

Rebecca Lavoie: That's right, that's right.

Christina Phillips: Congratulations, Nick.

Nick Capodice: Well. Thank you. It's. I haven't won one in a good long while. It feels.

Hannah McCarthy: Pretty.

Nick Capodice: True. Yeah. Oh, yeah. There was no categories about, like, Twilight this time.

Rebecca Lavoie: That was our favorite category of all time.

Christina Phillips: I'm glad.

Hannah McCarthy: I'm glad this was so fun. It was so fun, Christina.

Nick Capodice: It was so fun.

Christina Phillips: Yes. Thank you so much. Thank you everybody.

Rebecca Lavoie: Thanks for having us.

Christina Phillips: This episode was produced by me, Christina Phillips, with a lot of wonderful help from our hosts, Hannah McCarthy and Nick Capodice and our executive producer, Rebecca Lavoie, who also edited this episode. Our team includes producer Marina Henke. Music from this episode is from Epidemic Sound and the Taco Bell. Civics 101 is a production of New Hampshire Public Radio.

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The Kids Are Alright: A Civics Ed Update

Two years ago today, we attended Civic Learning Week and produced an episode on the state of civics education in the US. We heard some good things and some frustrating things. Today we're getting an update on civics education with Emma Humphries from iCivics, hearing some student audio submissions from our friends at the Youth Media Challenge, and getting advice on how students can make change with Cheryl Cook-Kallio.

Click here to livestream the National Forum for Civics Learning Week.

Click here to listen to our episodes on civics education in the US.

Click here to read the full State of Young People report published by America's Promise Alliance.

And finally, click here to check out the work students are producing (and submit your own!) for KQED's Youth Media Challenge.

Transcript

Note: this transcript is AI-generated and may contain errors

kids are alright for trans.mp3

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: I'm going to start today with a little bit of a throwback. Hannah, do you remember this?

Danielle Allen: The good news is we've actually reversed that dynamic. Now we're up to $0.50 per kid on civic education. All right, so, hey, we're moving in the right direction now. But look, look, now we can say we hit bottom right because we've turned we've turned it. We turned the corner. We've gone up from $0.05 to $0.50. So that's better than a poke in the eye.

Hannah McCarthy: Yeah, I do remember [00:00:30] this. That's Danielle Allen from our episode on the State of civics Education. Danielle is currently the director of the Allen Lab for Democracy Renovation at Harvard, by the way, also the director of the Democratic Knowledge Project. But in this case, she was telling us a piece of good news that funding for civics has increased tenfold.

Nick Capodice: So we interviewed Danielle at Civics Learning Week two years ago. And I do mean two years ago. This is an anniversary of sorts, because this is [00:01:00] Civic Learning Week right now. Hannah and I are going to the Hoover Institution at Stanford on Thursday. We're going to interview attendees. Any listeners out there can go themselves if they wish or they can live stream it. I've got a link down there in the show notes, but I bring all this up because today is an update on the state of civics education in the United States. And without falling into hyperbole here, I want to say that civics ed is in trouble.

Emma Humphries: Because [00:01:30] what we know when it comes to civic learning is we don't have nearly enough of it.

Nick Capodice: This is Emma Humphries. Emma is the chief education officer at Icivics. They organize Civics Learning Week every year, and if you don't know Icivics, you should. They are an organization that we've worked with and collaborated with ever since our show began.

Emma Humphries: There's a lot of support for it widespread, ideologically diverse support for more and better civic education. But we're still in a situation where students are not getting nearly enough, [00:02:00] especially when you compare social studies or civics instruction to instruction in Stem or Ela.

Nick Capodice: So, Hannah, I'm using this anniversary of Civics Learning Week as an excuse to do two things today. First, to tell our audience why civics education is both extremely important and in a rough spot right now. And secondly, I'm going to share what students themselves see as the most important issues in the country.

Hannah McCarthy: All right, Nick. So Emma said that there [00:02:30] is, you know, support for civics education, that people want it. How do we know that?

Nick Capodice: Right. So I've got anecdotal evidence and polling data on this. I'll get the anecdotal out of the way. First. In our seven years of making this show, I have not met a single person Republican, Democrat, diehard, libertarian, independent, whatever who heard about our show and said Civics 101. Well, that seems a bit unnecessary.

Nick Capodice: I think. Our kids study enough civics already. Never [00:03:00] happened. And I will add, if that person was born in the 1970s or earlier, they then say, you know, I remember being taught civics exhaustively when I went to school. What the heck happened?

Hannah McCarthy: My mother has said that to me.

Nick Capodice: She has. And I heard her say it. And then more often than not, they bring up schoolhouse Rock.

Bill: I know I'll be a law someday. At least I hope.

Nick Capodice: Anecdotal evidence. Nothing like it.

Bill: Oh yeah!

Hannah McCarthy: Yeah, but let's have the data.

Emma Humphries: Yeah. So we've we've done the polling. Are some of our partners have [00:03:30] done the polling. So when it comes to the general public, it is more than bipartisan. Just striking overwhelming majority of Americans believe that civic education is one of the best things we can do to strengthen our constitutional democracy and enhance our our national cohesion, and to sort of push back against all the social divisiveness we're seeing. So recent reporting from the America's Promise Alliance. They recently released their State of Young People 2024 report, [00:04:00] which showed that 9 in 10 young people. So 91% believe that everyone should have access to civic education. However, just 4 in 10, 43% of young people feel even somewhat prepared. So we are failing them. They are asking for more and better and more engaging civic education, and they're not getting it. And as a result, they do not feel prepared to take up their important role as participants in our constitutional democracy.

Nick Capodice: So, Hannah, if I take a second and I try [00:04:30] to remember what I learned in grade school, the first things that leap out are things like Pemdas, you know.

Hannah McCarthy: Oh yeah, the mathematical order of operations that really saved me in math class.

Nick Capodice: Yeah. Or like the mitochondria.Is the.Powerhouse of the cell or foil.

Hannah McCarthy: Keeping algebra fresh.

Nick Capodice: But if I'm thinking what school taught me, as in what resulted in me sitting in a chair right now in front of a microphone, being one of the happiest people I've met. It was, in essence, [00:05:00] civics. And I don't necessarily mean social studies class or knowing about the Teapot Dome scandal, or even how a bill becomes a law, which is super important. But in this instance, I mean, being a good citizen, a good classmate.

Hannah McCarthy: This is what we talked about in our live show about civics writ large, that it's not necessarily just about learning how the government works, it's about how you speak to other people in your class, how you relate to your teacher, [00:05:30] how you deal with conflict or advocate for what you want in a larger community.

Nick Capodice: Right. And learning to agree or disagree with someone to use evidence to back up an argument. You know, we do that in essays and other topics, but that is a really important piece of being a person and that is civics.

Emma Humphries: It's really interesting that, you know, for some time now you've seen increasing calls for more and better civic education. It's getting a lot of attention that hasn't fully translated into changes in state [00:06:00] legislation. There have been some wins. The we are going in the right direction. More states are providing more instructional time, more course requirements around civics. But still, all these years later, the vast majority of states only require one semester of civics or government, and they typically teach that in 12th grade. Another way to put it is we spend 13 years from kindergarten through 12th grade preparing students for careers, teaching them how to read, teaching them math and science. And then [00:06:30] we spend one semester, their senior year preparing them for the very thing that public schools were founded to prepare them for in the first place.

Nick Capodice: I have to jump in here and say that we are going to do a full episode on this sometime, but Emma's point is a valid and supported one. Madison. Jefferson. Washington. Myriad others. They believe the point in education of school was to prepare students to be good citizens.

Emma Humphries: If we saw literacy rates or math [00:07:00] rates the way we see civic rates, parents would be up in arms. If you found out that your kid was only getting ten minutes of math instruction a week, you would you would pull them out of the school. Yet that's exactly what's happening with civic education across this country, particularly at the elementary level. So that's what Civic Learning Week is about. It's about calling attention to this need for greater civic education and hopefully activating people to pay a little bit more attention and start demanding from their state legislatures that their students get [00:07:30] these learning opportunities.

Nick Capodice: And again, we are not talking about knowing the birth and death dates of presidents or what a discharge petition is.

Emma Humphries: I'm not so concerned that students can't rattle off the names of all nine Supreme Court justices, and even takes me a second to do it. I have to kind of picture them all in their official portrait and go through one by one in order to remember them all. It's not even that important to me that most people can't name the five freedoms of the First Amendment. I wish they could. But what matters is that if you were [00:08:00] to give them those five freedoms, they would say, yeah, yeah, those are important. I value those, that's what matters. It's the disposition towards democratic governance, towards the common good. I think that's what matters most. And so we need to stop focusing so much on, you know, just rote memorization. Although I am 100% here for for promoting civic knowledge and start thinking, how can we engage young people and all Americans to care, to care about [00:08:30] American democracy and to care that they live in a democracy because they want to live in a democracy?

Hannah McCarthy: You know what, Nick? This is for me bringing up that interview with Danielle Allen again. She told us that when people born before World War Two were polled about whether it was essential to live in a democracy. 70% of them said, yes, it is. But when people in their 40s or younger were polled, only 30% of them said it was essential.

Nick Capodice: Right. That statistic has [00:09:00] not left my back pocket in two years. And Emma continued on that vein. So to get back to the recent polling that America's Promise Alliance did, by the way, I've got a link to that full report in the show notes. Fair warning. There's going to be a lot of links to things in the show notes today. So if you're, like in a civic mood, just, you know, get a big cup of coffee and open them all up.

Emma Humphries: But here's the data point that stood out the most to me, which is that only 23% of young people trust the adults in their own [00:09:30] community. Put another way, 77% of young people do not trust the adults in their own community. That shocked me. It's the declining trust in institutions and the declining trust ultimately in democracy, in this belief that a democratic government, whether it is a republic or a free and open 100% pure democracy, which I know we do not have, but that declining trust in democracy is real. [00:10:00] It's getting worse. And to me that's the biggest fallout. Young people can't understand the value of living in a democratic country if they don't understand the alternative. So what they see is dysfunction and they come. They see, okay, dysfunction, democracy. Maybe they're not putting the alliteration together. But if all you know about American democracy or democracy in general is what you see on 24 hour cable news or [00:10:30] the very, uh, one sided news sources that a lot of us tend to run to, then you might think that a different form of government could be better. You might think it would be better to have just one person calling all the shots. It would certainly feel more efficient than our slow moving democracy. So I think if you were to ask this question of young people in the 80s and 90s, you would have had way higher percentages. So it's not that I'm shocked that there's declining trust. I [00:11:00] was just shocked at how bad it is.

Hannah McCarthy: So just to recap everything Emma has said, students do not trust our institutions. They have lost trust and faith in democracy and they do not feel prepared. But they want to.

Nick Capodice: Exactly.

Hannah McCarthy: Nick, it's a little bleak.

Nick Capodice: It is. Hannah. But I'm gonna bring you back from the void after the break, I promise.

Hannah McCarthy: Did Emma have any words of optimism [00:11:30] to share?

Nick Capodice: Of course she did.

Emma Humphries: What gives me hope is that young people care so much. Whenever anyone says, oh, kids these days, I'm like, they're amazing. Have you talked to any? Because if you think they're all terrible, then you should go spend some time in schools and you should try talking to them so they care a whole lot. They just care about different things. And we thus far haven't cared enough to give them the knowledge, skills and dispositions they need to feel that they can effectively [00:12:00] pursue change or advocacy, or just otherwise be engaged politically. That gives me hope. Another thing that gives me hope is our nation's civics teachers. These folks are patriots. They they love America. They love our form of government. They love our history and our founding documents. And they are so thirsty to share that with with students. And we just need to band together to support them and to come together as Americans and [00:12:30] say, we believe this is important. We know we are polarized. We know the parties are pushing us to the edges.

Nick Capodice: Too bad We are gonna hear exactly what some of the things kids these days care about and what they can do about it right after a quick break.

Hannah McCarthy: But before that break, if you're up for it, you can support our work and our only occasionally dampened optimism at our website, civics101podcast.org. We're [00:13:00] back. You're listening to Civics 101. It is Civic Learning Week, and we are talking about the state of civics education in the United States. And, Nick, you were gonna call this episode The Kids Are All Right at one point. Are you still going to call it that?

Nick Capodice: It's still in the air, Hannah. Only our listeners will know what we ended up calling it. I don't know if a reference to a song by The Who is spot on, but that is a sentiment I come back to year after year working here at Civics 101. We have done [00:13:30] student contests, we've had kids propose legislation, we had a high school freshman create an Arrested Development style radio mockumentary about the Constitutional convention. So yeah, the kids are all right. Gosh darn it. They care a lot. And that is something we as a nation want.

Cheryl Cook-Kallio: First of all, the founders believed that the purpose of public education was to create participatory citizens.

Hannah McCarthy: Oh, Cheryl.

Nick Capodice: Always a delight to have her on the show. This [00:14:00] is Cheryl Cook-Kallio. She is currently the president of the Alameda County Board of Education. She's a constitutional scholar and a former teacher and so many other things.

Cheryl Cook-Kallio: And if you start right there, everything we do is to teach a young person how to be part of a community, whether that's their neighborhood, whether it's their city, whether it's their county. We want them to be connected to what happens to them. So in that sense, the reason this is important is it takes what they've learned in school and it forces [00:14:30] them to apply it to the world around them, which is what they're going to be doing as adults. So where some parents would look at this and say, well, this is an add on, no, no, this is the result of public education. It should be the result of all education is that you become a participatory citizen.

Hannah McCarthy: When Cheryl says participatory citizen, she doesn't just mean like running for office, right?

Nick Capodice: Right. I mean, like, it could be, you know, I mean, I hope somebody's listening to this episode will be the president [00:15:00] in 30 years, but most of us won't be president or senator. But maybe, maybe we will be on something like the PTA, the Parent Teachers Association. Or maybe you'll just be a parent who recognizes your kid is sprinting across the street in an unsafe place because there's no crosswalk.

Cheryl Cook-Kallio: So what do you do then? Who do you go to? You don't go to your congressman. You go to your local electeds, your your city council. You're having issues with your school because [00:15:30] the lights go off or the pipes don't work or the bathrooms are not clean. Where do you go? You go to your school district and you talk about it there. And so if you teach kids how to take care of problems at the very local level, then what you're teaching them is how to be adults in the real world and take care of their community.

Nick Capodice: And to that point, to show everyone out there how students do want to take care of their community. I wanted to share the work done by Rachel Roberson and her whole team at KQED.

Hannah McCarthy: Kqed, [00:16:00] by the way, is a member station, just like NPR. Our station is this one's out of San Francisco, and they run a program called the Youth Media Challenge, which is a massive collection of audio, video, and images made by students.

Nick Capodice: And any middle or high schooler in the country can submit one on a host of topics. There's a link in the show notes to their site. You can learn how to create your own project, or you can just look and listen to the other ones. And for today, I am sharing just [00:16:30] a few short clips of a few of these submissions, just to let you get a feel of what's on students minds. So first, this is Matthew from Edgemont Junior Senior High School in Scarsdale, New York.

Matthew: Did you know that in 2023 there have been more than 632 school shootings in the USA alone? That has almost two shootings a day. Crime rate has been on the rise, and with 10% of all violent crime being firearm related, it seems obvious that we must do something about guns. Untrustworthy [00:17:00] people have access to guns, which leads to violent crime and tragic loss of life. We should pass laws to ensure everyone who is in the possession of a firearm has taken a proper gun safety course to prevent accidental deaths, children obtaining access to guns and enforce background checks that restrict gun access to unstable individuals.

Nick Capodice: Matthew's piece was about gun violence in schools, and to that Cheryl said, yes, the law is important, but it's not the only thing.

Cheryl Cook-Kallio: The first thing [00:17:30] the knee jerk reaction is to go. We have should have a law, but a law is a paper barrier. It's not enforced. You can have a law on the books, but the police don't show up and enforce it. It doesn't do anything. Does that make you feel safe to wave this piece of paper in front of somebody's face and say, you're not supposed to have the gun while they're pointing it at you? No, it doesn't, but that is the the backup that, that that you need to do things within your school to make sure that you're safe.

Hannah McCarthy: So what should Matthew or any other [00:18:00] student who cares about this do? If a law isn't protection enough, what is?

Cheryl Cook-Kallio: So when you look at something to your point about what do you do with the kid that has this on their mind constantly, and these kids, this generation of kids that had this on their mind since they were in kindergarten, they have practiced hiding in corners and getting into closets and putting, you know, screens over the windows and putting interior locks on their doors. Teachers have lived in fear about what in the world are they going to do? [00:18:30] The You try to start as small as possible, depending on the age. And so if you're doing middle school kids, for example, you know, where do you feel the most safe? How do you how do you take care of yourself? What would you do in this circumstance? And then perhaps the school ASB would come up with some kind of plan in order to address safety concerns, because the kids will see it in a way that adults don't. Adults think, you know one way kids. Kids are seeing it totally differently. And so having kids have voice in that is extremely important, [00:19:00] if for no other reason that they feel like they're part of the solution. But the more important reason is that their voice is different because of their age and because of their experience. And so I think that that when you look at that, the larger you know, how do you help the kids feel like they have some efficacy. You break it down into parts.

Hannah McCarthy: I really appreciate that because we sometimes look at students Being active civic participants and say, you know, hey, this is great. They're going [00:19:30] to really change the world for the better when they're in charge. But this is different. This is the idea that a student has a unique view and they can help find a solution right now.

Nick Capodice: Yeah, they want to help fix the problem. And to echo that, here is hyphen from Lowell High School in San Francisco, whose submission gave advice to people on what they could do.

Hai Fen: It's important to understand the impact you can have on someone's life, and what you can do to help them if they are struggling. You can advocate by [00:20:00] supporting someone who needs help volunteering for a mental health organization, and by correcting those who use stigmatizing language. Be an advocate today and start raising awareness for mental health. Please go check in on your loved ones from time to time just to see how they're doing. You never know what someone can be going through, so make it your job to care.

Cheryl Cook-Kallio: You could do the same thing with mental health, right? The kids are worried about their own mental health, they're not really sure about what a crisis is and what a crisis [00:20:30] isn't. What they know is that we're in there when they're in distress. They need to have a plan. And, you know, since the pandemic that has, um, become more of an issue, uh, with kids. So, for example, in, in their internal school, it could be just being part of a plan. If it is something one step beyond that, it's going to the school district saying, we need more support in this area, that this is really a crisis, that, you know, that we need the mental health services. [00:21:00] Uh, on a a little bit broader level, for example, Alameda County, where I'm on the I'm a school board. We have a county wide plan that allows us to build Medi-Cal, which is our version of Medicaid for mental health services for students in school. So we've been able to provide help for, um, for the district's kids. Don't know that. And so part of going through the process of checking on what the mental health services are would be them saying, oh [00:21:30] wait, we have these services, so how do we access them? Right? Because part of the problem may already be solved and they may just not know how to access it.

Nick Capodice: And the last one, Raphael and Elijah from South Pasadena High School in California.

Raphael and Elijah: Between all the horrors, though, I saw people who needed help help getting back on their feet, help finding a job and functioning in society, help defeating their demons, I realized these aren't nameless people. They're human beings. Our brothers and sisters, our [00:22:00] mothers and fathers. I became convinced we could not, no matter what, abandon these people. The United States needs to adopt a harm reduction policy to address the opioid epidemic effectively. Evidence from Switzerland demonstrates the potential success of such an approach. After implementing harm reduction strategies like supervised injection sites and medication assisted treatment. Overdose deaths dropped by 50% and new heroin users declined by 80%, according to the Stanford Social Innovation Review. In the United [00:22:30] States, the need for similar measures is urgent.

Nick Capodice: I didn't have time to include the entire piece here, but in Indiana, they talked about actually working in a safe house in Alaska, caring for people suffering from opiate addiction.

Hannah McCarthy: Yeah, I've listened to the whole thing. It's actually incredibly striking listening to a personal story, but it's also a statement, right? It's it's saying this is a problem. And also here are some potential solutions that have been tried in other countries.

Nick Capodice: Yeah, it's a solid, powerful piece. [00:23:00] And maybe Raphael and Elijah aren't old enough to vote, but they definitely could ask an elected representative to visit their class.

Cheryl Cook-Kallio: There is not a politician alive who doesn't want that picture. With a classroom full of kids with a smile on their face, right? They're all like that. And and not only because that's a great photo op for whatever they're doing. I mean, they're not really supposed to use that for political purposes and that sort of thing, but it also is a way [00:23:30] for them to build community in an area that they can't touch otherwise. And I've said this to adults, I've said the same speech to adults. They go to the website, they do info at whatever dot whatever for a Congress member. They type up their little letter and hit the button, and it goes directly into a hole somewhere. That is not the way that you read as an elected official.

Hannah McCarthy: Yeah. You know, I feel like we haven't really been over this on the show in detail. How do you reach an elected official?

Nick Capodice: Excellent question. Hannah. Sheryl's advice is you [00:24:00] call them, you don't email them first. You call them. You are polite. When you call them, you say, quote. The purpose of my call is to ask you about, in this case, the opioid epidemic. Who on your staff deals with these issues and would you transfer me to their office?

Cheryl Cook-Kallio: Sometimes they pick up the phone. Hallelujah. Most times they don't. And you leave a very detailed message. You know, here is my email address. And just for convenience, I'm going to send you a follow up [00:24:30] email. Okay. There's two touches there. Right. You're still not going to get an answer most of the time right. So what do you do. You wait five days. You make another phone call, ask to be put to their voicemail, and then send another email. I know you're really busy. I know you get 200 emails a day, but I'm really anxious to talk to somebody in your office that can answer my questions, you know? And I'm putting this here, so it's at the top of your email. By the time you touch some 4 or 5 times, somebody's going to get back to you, you know? [00:25:00] And so when people call and say, well, they never answered me, chances are you didn't hit the right person. And these people get hundreds of calls a day. So you need to be persistent in a way that you're not used to being persistent.

Nick Capodice: And it may sound time consuming. It may sound difficult. I know some people who never call anybody on the phone ever, let alone five times.

Cheryl Cook-Kallio: It'd be great if we all could reach our federally elected officials [00:25:30] and have a mass amount of things done at one time, but you're also dealing with your congressman and your area, who also has to deal with the congressman in another area who may believe totally differently than you do. Like on the opposite end of the spectrum. And you're trying to figure out where the sweet spot is. So, you know, compromise is hard. I mean, people get upset. You know, I don't you know, they didn't do everything I wanted them to do. Well, that's what politics [00:26:00] is. It's the art of compromise, right? So I think that to get kids excited and to recognize that small victories are important. So you may have wanted to, um, solve the unhoused situation in your city, but instead you provided an opportunity for people to have a place to take a shower, get a hot meal, you know, maybe have some warm socks, or at least have access to those things. That's a big deal for those individuals. And, [00:26:30] you know, and it also affects individuals of whom you're unaware. So it's not a small thing to do that for a group of people.

Hannah McCarthy: Start locally. Focus on your own community. Make a plan. Be persistent.

Nick Capodice: I think that is the Magic quartet, Anna. And if enough students do it, it might be all of us, not just the kids who are all right. That's [00:27:00] it for today's show. Huge shout out to Rachel and the rest of the folks at KQED for their work on the Youth Media challenge. You really should go check their stuff out. Youth media@kqed.org. And also big thanks to Icivics, who we will see at the National Forum at the Hoover Institution in about 24 hours. Sheryl's going to be there. Emma's going to be there, I think 25%. I think 25% [00:27:30] of the guests we've had on the show are going to be there. This episode was made by Hannah McCarthy and me. Nick Capodice. Our executive producer is Rebecca LaVoy, and our senior producer is Christina Phillips. Music. In this episode from Epidemic Sound Helliniko and my own personal and my own personally elected member of my musical and my own personal elected member of my musical Congress, Chris Zabriskie, who he who actually emailed me back after one time. [00:28:00] I emailed him one time and he wrote me right back. What a guy. Chris, you have my vote. Civics 101 is a production of NPR, New Hampshire Public Radio.

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NY Times v Sullivan

When it comes to the protection of a free and fair press, there is one landmark Supreme Court case that sits at the top, and it is New York Times Company v Sullivan (1964). 

This case redefined libel in the United States and is cited in almost every defamation suit since, but its origin is in the Civil Rights Movement, when newspapers were sued to the brink of collapse for covering protests in the south. 

Taking us through libel, defamation, and "actual malice" are Ang Reidell, Director of Outreach and Curriculum at the Annenberg Public Policy Center, and Samantha Barbas, professor at the Iowa College of Law and author of Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. 

Click here to watch a fantastic documentary from Annenberg on the case.

Quick note to teachers! Our guests are collaborating today! The first fifty teachers who join the Civics Renewal Network will receive a free copy of Samantha Barbas's book, click here to sign up and get yours today!

Transcript

Note: this transcript is AI-generated and may contain errors

times v sullivan d1_mixdown.mp3

Nick Capodice: Hannah. You saw this in? What was it? Fourth grade.

Hannah McCarthy: Third or fourth? Yeah.

Nick Capodice: I know you were eight, but can you describe what you saw?

Hannah McCarthy: Yeah. This is footage from a civil rights protest in Birmingham, Alabama, in, I think, the early 60s. Students were marching to protest segregation in their city. They were marching peacefully. A thousand kids walking from a church, holding hands, singing. The police told them [00:00:30] to disperse. The kids did not. And the police sprayed the children with fire hoses. They set dogs on them.

Nick Capodice: And what had seeing that so young do to you?

Hannah McCarthy: Uh, it made me sick. I think I was just sitting there slackjawed. I was watching something where there was no political middle. This is, you know, right and wrong, right in front of your eyes. [00:01:00] It was unjustifiable. Violence. It was. It was just pure ugliness.

Nick Capodice: That's the thing that strikes me when I watch footage from civil rights protests. It's it's that it's consistent. Right? It is almost always a black person being hurt, dragged, hit with a fist or a baton, and almost always it is a white hand doing the hurting. When you see an evil like this, when it is filmed and broadcast into your home in 1963, you're forced [00:01:30] to ask, whose side am I on? And that is what this episode is about.

Archival: But, you know, the Sullivan Standard has been a target for conservatives for quite some time, and there's a lot of momentum behind it now.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today's episode is about one of the most important Supreme Court cases in US history. It is a case directly tied to the work you and I do as journalists, and [00:02:00] it is the strongest protection of that work we are talking about. New York Times v Sullivan, 1964.

Hannah McCarthy: So we've talked about this case in other episodes, but when I think of times v Sullivan, I always think about words like defamation, freedom of the press, libel. I don't immediately connect it to the civil rights movement.

Nick Capodice: Yeah. Me neither. And we are going to explain all those terms. But to your point, I usually think of the ramifications of this case, not [00:02:30] what this case was about.

Hannah McCarthy: What was it about? When did it start?

Samantha Barbas: The short story is that a police commissioner named L.B. Sullivan sued the New York Times and some civil rights leaders in 1960.

Ang Reidell: There's all this stuff going on in the background related to the civil rights movement. Right. But the main thing that the case was focusing on was this piece in The New York Times. Now. The piece ran in other newspapers [00:03:00] too, but it was an ad called Heed Their Rising Voices.

Samantha Barbas: My name is Samantha Barbas, and I'm a professor of law at the University of Iowa College of Law.

Ang Reidell: I'm Angela Vidal. I'm the director of outreach and curriculum at the Leonore Annenberg Institute for civics, and I facilitate the Civics Renewal Network. Feel free to cut part of that title.

Nick Capodice: I refuse to cut part of that title, Ange. So, Hannah, we often share [00:03:30] extra resources tied to our episodes, but I'm gonna beseech our listeners to check two out if they have any interest in this case whatsoever. The first is Samantha Barbusse's book, Actual Malice, and the other is a tremendous 30 minute documentary that Android team at Annenberg put out. There are links to both of those in the show. Notes.

Hannah McCarthy: And getting back to the civil rights protests, this was an ad in the New York Times.

Nick Capodice: Yeah, it was it was from May 1960.

Hannah McCarthy: When I think about press coverage of the civil rights movement, that [00:04:00] made a big impact. An ad in the paper isn't necessarily what springs to mind.

Nick Capodice: Yeah, you're correct there there was a ton of coverage in the South. There were press from many papers and broadcasting entities. They had journalists in the South covering these protests, and this coverage was changing people's minds.

Ang Reidell: People were seeing the hoses on the students. They were seeing dogs being sicked on people. Once people could see those images, [00:04:30] these really disturbing images, they knew something had to change. There was a whole network in the South who wanted to keep this system of segregation. If the press was coming in and showing what was happening, they thought that put them in a bad light. And so they wanted to push back using whatever methods they could. They were already using violence, but then legal methods against the press as well.

Nick Capodice: Southern politicians who opposed desegregation, [00:05:00] they seized upon this as a strategy. They saw that if the press continued to cover this brutalization of peaceful protesters, the only solution was to remove the press and you remove them by suing them into oblivion.

Hannah McCarthy: Was there more than one paper sued?

Nick Capodice: Yes. Many more. Sullivan sued the New York Times for $500,000, but that was just the tip of the iceberg.

Samantha Barbas: So The New York Times was sued for about $12 [00:05:30] million over that. Advertisement. So there were at least 6 or 7 lawsuits brought just over that publication. But then the southern officials sued the Saturday Evening Post, The Washington Post, Chicago Tribune, all of these other media outlets so that by the time the Sullivan case got to the Supreme Court in 1963, there were about $300 million dollars worth of potential judgments in the works here. So this was, [00:06:00] in fact, a concerted conspiracy that could have crushed the press.

Hannah McCarthy: What were the grounds for the lawsuit? I mean, the press have a right to be the press report, the news. It is a protection in the First Amendment.

Nick Capodice: It is. But now we are getting into our first legal definition, and that is libel. Libel is something that is written and published that defames someone. It hurts their reputation. And libel is not protected [00:06:30] under the First Amendment.

Hannah McCarthy: Is libel only libel because it's not true? What's the distinction?

Nick Capodice: Well, if we go back a good stretch, Hannah, whether something was true or not was utterly irrelevant.

Hannah McCarthy: I know what that song means.

Nick Capodice: You sure do. We are going back to 1733 to the trial of a guy named John Peter Zenger.

Hannah McCarthy: What did John Peter Zenger do.

Nick Capodice: Zenger wrote a newspaper called the New York Weekly Journal, and at this time us not [00:07:00] yet being an independent nation, England appointed governors to the colonies, and Zenger wrote articles criticizing New York's new British governor, William Cosby, so Cosby wanted a chunk of the salary from the former governor at the court ruled against him, and in an act of retribution, he fired the chief justice of the New York Supreme Court, Lewis Morris.

Speaker6: New York abstains courteously, and Cosby.

Nick Capodice: Said that Zenger's articles damaged his reputation, [00:07:30] and Zenger was put in jail.

Hannah McCarthy: But Zenger's articles were not lies.

Nick Capodice: No they weren't. They were critical, but they didn't have any falsehoods. But at that time, under British law, anything that damaged a reputation was considered libel.

Hannah McCarthy: And what happened to Zenger? Did he go to jail?

Nick Capodice: He was gonna. At the trial, the jury was basically told, if you agree that Zenger wrote these articles, then he is guilty and he did write them. So this seemed like an open and shut [00:08:00] case. But in their findings, the jury said, yeah, he definitely wrote the articles, but we refuse to find him guilty.

Hannah McCarthy: Okay, this is jury nullification, right? Where, you know, the jury is given a set of parameters basically telling them how to make their decision. And they say we actually don't agree to those parameters. We don't agree to the rules.

Nick Capodice: Precisely. And Zenger goes free and a precedent is set if something is defamatory but can be proven to be true, it is not libel. [00:08:30] And that brings us back to 1962. The ad in the New York Times heed their rising voices.

Ang Reidell: Basically, the group supporting Martin Luther King was trying to raise funds for his legal defense. And so there was this huge effort to get people to sign on to the ad. Ads. So there were people like, um, Marlon Brando, you know, Eleanor Roosevelt, lots of people who were already in [00:09:00] the civil rights movement, Harry Belafonte, you know, entertainers, things like that.

Nick Capodice: Wow. Yeah. Nat King Cole, Sidney Poitier, Langston Hughes.

Samantha Barbas: So this advertisement listed a number of things that the southern officials had been doing to civil rights protesters, how they'd been brutalized and how they were kicked out of facilities and so forth. Uh, it turned out that this ad contained a few errors of fact. The ad said [00:09:30] that student protesters sang My Country Tis of Thee on the Capitol steps in Montgomery, when they really sang the national anthem. It said that the police had ringed a college campus when they actually lined up outside the campus. So these really minor errors of.

Ang Reidell: Fact, that's what L.B. Sullivan was suing for, and he sued The New York Times. He wasn't mentioned in the ad at all.

Hannah McCarthy: Hang on. So Sullivan wasn't even in [00:10:00] the ad, and he sued for defamation of character?

Nick Capodice: He wasn't. And he did.

Ang Reidell: I know, it's just like, how can that be? But his his legal point was that since the police in Montgomery were being named and he was the police commissioner, all that was reflecting on him and so he could sue for libel because there were small inaccuracies in that full page ad.

Nick Capodice: Now, Sullivan won [00:10:30] his case in Alabama handily, as did dozens of other people suing media outlets for covering the civil rights movement. And part of the reason he won it so easily and quickly is that the trial was in Alabama. Alabama. Judge. Alabama. Jury.

Samantha Barbas: It was obviously very biased against the New York Times and the civil rights leaders. The judge in the trial was a notorious segregationist. Um, he was [00:11:00] very, like, abusive to the civil rights leaders. Lawyers during the trial didn't allow black jurors to sit in the jury. And there were serious allegations of racial discrimination. You know, in addition to the bias against The New York Times.

Nick Capodice: So in this instance, the burden of proof was on the media outlet. They have to say that every single thing they report is true, and they have to prove it in [00:11:30] court.

Samantha Barbas: And that's very hard to do to prove the truth of something in court. And then also the law was that even if the publisher made an innocent mistake, they got something wrong just because, you know, they were careless in some minor way, they could still be liable. It's strict liability. So it's was really easy for people suing the press or other people to win defamation cases.

Nick Capodice: And again, Sullivan suing the New York Times was a drop in the bucket. These cases were happening over [00:12:00] and over, and newspapers were faced with a choice. Pull all your reporters out of the South or fold. No matter how big or well-financed they were, they could not take an endless stream of litigation.

Hannah McCarthy: So what happened?

Nick Capodice: I'm going to get to the arguments, the decision, as well as some modern day stuff going on with times v Sullivan. But we got to take a quick break.

Hannah McCarthy: But before that break, just our constant reminder that Civics 101 is made by a public radio station and you are the public. [00:12:30] Consider making a gift to support our work at our website civics101podcast.org. We're back! You're listening to Civics 101 and we are talking about the landmark Supreme Court decision New York Times v Sullivan. When we left off, the times had just lost their Alabama trial.

Nick Capodice: They did, and the New York Times appealed their case to the very top, it was argued [00:13:00] in the Supreme Court in January 1964. Here is Samantha Barbas again.

Samantha Barbas: Essentially, the lawyers for Sullivan are saying libel law has always been outside the First Amendment. That is to say, the Supreme Court had always said that libel law didn't implicate any constitutional free speech issues. And the times lawyer is saying, actually, libel law really does raise big free speech questions and that it is time for the Supreme Court to now [00:13:30] analyze libel law under the framework of the First Amendment and lists a number of reasons why it's imperative that the court take that step.

Archival: Our first proposition is that this action was judged in Alabama by an unconstitutional rule of law, the rule of law offensive to the First Amendment, an offensive on its face to the First Amendment.

Samantha Barbas: The lawyer for The New York Times was [00:14:00] a Columbia Law School professor named Herbert Wechsler, and he was quite a scholar, and he made this historical analysis. He went back to 1798, when a Sedition Act was passed in the US, and essentially that criminalized criticizing the government.

Archival: And we are actually making here in relation to this rule of law, the same argument that James Madison made [00:14:30] and that Thomas Jefferson made with respect to the validity of the Sedition Act of 1798.

Samantha Barbas: And at the time, it was generally agreed that that was totally unconstitutional, that the ability to criticize Government is the heart of the First Amendment.

Nick Capodice: And speaking to the First Amendment. Hannah, it is worth mentioning here, as we do in every episode that touches it, Supreme court cases dealing with the First Amendment were very rare. They were quite late in our history. There [00:15:00] was one famous press case called near v Minnesota, which dealt with prior restraint. Basically, the government cannot preemptively censor a newspaper for printing something they can be punished after, but they cannot be stopped from doing it.ht. So there was not a whole lot of precedent here for the court to go on. And that is why the times lawyer had to go all the way back to the Sedition Act, which was denounced by James Madison and Thomas Jefferson.

Samantha Barbas: And so Wexler, he's almost making like an originalist argument. So he says that [00:15:30] what the Alabama courts are doing is essentially punishing people for criticizing government. Right. The times is being punished because it published criticism of Sullivan. That's no different than being punished for sedition. And that goes absolutely against what the First Amendment stands for.

Hannah McCarthy: All right. Let's hear about the ruling.

Nick Capodice: Who won? The winner in this one, Hannah, is the old Gray Lady. The New York Times again. Here's Andy Riedel.

Ang Reidell: It [00:16:00] was a unanimous decision, saying that in order for there to be libel, there had to be actual malice. And that's the phrase that all the law students learn. That was a change to what had been. They were saying inadvertent mistakes can happen, and it can only be libelous if there is actual malice behind their reporting.

Samantha Barbas: Actual malice means [00:16:30] essentially knowledge of the falsity of a statement or publishing a statement with reckless disregard of the truth. So in order to show actual malice, the plaintiff has to show that the defendant either knew that the statement was untrue.

Ang Reidell: Or if they should have known or been suspicious that it wasn't true. So those are the two things. And it and it really does switch kind of the burden of proof from one side [00:17:00] to the other. The powerful people who are saying that's libel now have to prove that the press was using actual malice.

Hannah McCarthy: Was there a fallout after this ruling came down? We so often hear about a landmark ruling, let's say Brown v board or Loving v Virginia, where the Supreme Court says something and the states take, you know, a few decades to comply. But that couldn't have happened here, right? Because if someone sued you for libel and it was proven [00:17:30] that there was no actual malice, that lawsuit just wouldn't have a chance. Right.

Nick Capodice: And because it applied immediately, the media knew it was now safe to report in the South. And look, I know you got to be careful playing a game of what if when you're looking at history. But what if the court had ruled the other way? What would that have done to the civil rights movement? How would it affect, you know, journalism writ large?

Hannah McCarthy: Part of the reason we're talking about [00:18:00] this case right now is because times v Sullivan is in the headlines.

Nick Capodice: Sure is.

Archival: If we see the Wynn case, make it to the Supreme Court, and the Supreme Court decides to get rid of the New York Times versus Sullivan decision, a precedent that's been in place for 60 years. Consider it game over.

Nick Capodice: Most recently, Las Vegas casino tycoon Steve Wynn has petitioned the Supreme Court to rule on his defamation case. He sued an AP reporter in 2018 [00:18:30] who wrote about several sexual assault charges against him in the 1970s. Now Steve Wynn lost, but he is looking for an appeal. He has petitioned the Supreme Court and his petition is explicit. It says his case is asking, quote, whether this court should overturn Sullivan's actual malice standard. End quote.

Hannah McCarthy: Do we have any idea whether or not the Supreme Court has indicated any interest in taking this case?

Nick Capodice: Yes and no. The Steve Wynn case [00:19:00] seems like it won't be heard. And I say that because I read an article this morning saying that Justice Kavanaugh has been citing Sullivan as precedent on other rulings, which kind of implies this isn't a typical conservative liberal justices debate. However, two Supreme Court justices, Clarence Thomas and Neil Gorsuch, they have been vocal about a desire to revisit the decision.

Archival: And there's a lot of momentum behind it. Now. In a separate opinion, Justice Clarence Thomas, joined by Justice Neil Gorsuch, said it was [00:19:30] time to revisit the standard. So, you know, the idea is out there. And with six Supreme Court conservatives, you don't know that the rules are going to remain the way they are in 2023.

Nick Capodice: Justice Thomas wrote, quote, the court usurped control over libel law and imposed its own elevated standard. And New York Times Company v Sullivan, end quote. And also that quote, the court did not base this actual malice rule in the original meaning of the First Amendment. End quote. So it's percolating. [00:20:00] Cases are coming up. Petitions to overturn times v Sullivan have increased in the last 20 years. So is that 1964 ruling safe? We do not know.

Hannah McCarthy: All right. So, you know, I often don't like looking into the future, making predictions, etc.. But I am curious, in this case, did Ange or Samantha offer any insight into what would happen if Sullivan was overturned? They did.

Ang Reidell: Well, [00:20:30] I think, um, anytime freedom of the press is threatened, um, then there are serious fallouts because it's the press that, um, you know, are looking into the stories that of what our government is doing and informing us of that. That is what is happening in our world, in our country, in our communities.

Samantha Barbas: So I think it would become much more difficult for the press [00:21:00] to write about not only public officials, but really anybody in the news. There would be a real chilling effect. Journalists would have to really think twice before, uh, reporting on public affairs. And, you know, I think back to what things were like in the South in 1960 when it was so easy to weaponize libel suits. And I think there are many people today who would love to use libel [00:21:30] law to crush their opponents. And if Sullivan weren't in place, that would really be a possibility.

Ang Reidell: You know, it's right there in the First Amendment. So that has a huge impact on our lives by, you know what, what we can learn, how we can learn it. You know, we have the right to to that information about what our government is doing. And if the free press is not there, then there is there is a problem.

Nick Capodice: Ok, that's Times v Sullivan. Huge thanks to the folks Annenberg Classroom for helping us out, you really should see that documentary it's fascinating. This episode was made by me Nick Capodice with you Hannah McCarthy, thank you always, our staff includes producer Marina Hencke, Senior Producer Christina Phillips, and Executive Producer Rebecca Lavoie. Music in this ep from Blue Dot Sessions, Epidemic Sound, Scanglobe, Scott Gratton, Bio Unit, and the composer I wouldn't defame for a million dollars, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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What are Executive Orders?

Every president (with the exception of William Henry Harrison)  has issued executive orders. Most recently, Donald Trump issued several on his first day in office. Some have been published in the Federal Register, others are facing legal challenges.

So what IS an executive order? How do they differ from other executive actions, like proclamations or memoranda? Who writes them? Who reviews them? All that and more with our guest Andy Rudalevige,  professor of Government at Bowdoin and author of By Executive Order: Bureaucratic Management and the Limits of Presidential Power.

Click here for our episode on the Federal Register.

Here is a link to every single proclamation issued by a president.

Transcript

Note: this transcript is AI-generated and may contain errors

Nick Capodice: I want to do like a law and order intro to this with like the dun dun and all that.

Law and Order Voice: The episode you're about to hear.

Nick Capodice: But really folks, the episode you're about to hear contains information on executive orders. The guest for this episode was interviewed before President Trump's inauguration in January, and every single day since the inauguration has brought new executive actions and new lawsuits against those actions. For example, on January 28th, a two page memorandum [00:00:30] from the Office of Management and Budget ordered a freeze on all federal assistance programs, including all grants and loans. Among other things, this memo resulted in Medicaid portals being down in all 50 states. Now, a district judge in Washington, D.C. blocked the freeze later that afternoon. So it is temporarily halted until a hearing on Monday. The day before this episode comes out. So what this preamble here is trying to say is that [00:01:00] regardless of whether a branch of government complies with the rule of law or not, we at Civics 101 talk about the law and about the supreme law of the land, the Constitution. Yes, we make a lot of airbud jokes, but in the end, we refuse to say that laws and rules don't matter. Not because we wouldn't have a show and we wouldn't, but because we wouldn't have a democratic republic. Okay, here's executive orders.

Archival: Because you can [00:01:30] do an executive order, right? Well, you could do I want to I want to not use too many executive orders, folks. Because, you know, executive orders sort of came about more recently. Nobody ever heard of an executive order.

Archival: This first executive order that we are signing.

Archival: Today, I'm announcing two actions to respond to the demand of the American people for honesty in government.

Archival: Truman signs the proclamation putting the Atlantic Charter into effect.

Archival: Earlier today, I issued an executive order to strengthen our nation's commitment [00:02:00] to research on pluripotent stem cells, which.

Archival: We can authorize by executive action without a new act of Congress. Okay.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about executive orders, what they say, what they do and what they can't say or do.

Hannah McCarthy: And we did just do an episode on President Donald Trump's orders from his first week back in office. You can listen to that before this episode, if you [00:02:30] like.

Nick Capodice: Or after, because then you'll know what they are.

Hannah McCarthy: Good point. All right. So let's get into it. What are executive orders?

Andy Rudalevige: So an executive order is simply an order by the president to the executive branch.

Nick Capodice: This is Andy Rudalevige. He's a professor of government at Bowdoin College, and he's the author of By Executive Order Bureaucratic Management and the Limits of Presidential Power.

Andy Rudalevige: It is a formal directive. Uh, it's different than other directives in that it is [00:03:00] required by law to be published in the Federal Register, but in general, it's one of a group of presidential tools to tell people within the executive branch what he wants them to do.

Nick Capodice: So first off, the executive orders don't require Congress. So they're a way that a president can push through laws that Congress might not be able to pass themselves. Relative to this is that the 118th Congress had the least productive session in modern history [00:03:30] from 2023 to 2025, passing fewer than 150 bills. Now, executive orders, on the other hand, have the force of law without the need for legislation, though there are a lot of restrictions which we're going to get into. But first, to get some stuff clear from the get go, executive orders are just one kind of executive action, right?

Hannah McCarthy: What are the other ones?

Nick Capodice: Well, for today's purposes, I want to talk about memoranda and also proclamations. We'll break down each of those in order. [00:04:00] And this is important because and it's not anybody's fault. These get mixed up all the time.

Andy Rudalevige: But executive action covers the whole gamut, including, by the way, appointments, pardons, anything really that Congress doesn't need to be involved in. But I think often too, though, if you read a news article, there's a lot of confusion about what is an executive order versus something else. A lot of things and even presidents will do this. They'll say, I issued an executive order to do a there is no executive order. It was maybe [00:04:30] a memorandum, or maybe it wasn't even that. Uh, and if you were to Google, uh, DACA, Deferred Action for Childhood Arrivals, right. A very famous executive action by President Obama. Uh, it was not an executive order, but if you Google it, that's what's going to come up. This executive order by President Obama, you know, millions of hits on that phrase. And that's just wrong, understandably wrong. Uh, but mistaken.

Archival: President Obama is in Nevada today after making his new immigration policy official. He signed two executive orders as he flew west [00:05:00] on Friday. Julianna Goldman is in our Washington bureau.

Andy Rudalevige: Interestingly, sometimes presidents take advantage of the confusion. Obama was being accused back in, say, 2014 of being, you know, a dictatorial. He was issuing way too many executive orders, and he actually put out a chart and said, no, I've issued very few executive orders. And it turned out that a lot of what his executive actions had been were either memoranda or, you know, as in the case of DACA, it was actually a departmental directive. [00:05:30]

Hannah McCarthy: All right. Caveat taken. Can we start with proclamation?

Nick Capodice: All right.

Nick Capodice: Proclamations. Quick note here. Proclamations and executive orders are published in something called the Federal Register. The Federal Register is a daily publication. It's printed in D.C.. We did an episode on it a very long time ago. Link in the show notes. So the Federal Register isn't just a thing that people who live in D.C. look at every morning to see, hey, what's going on in the government when an order is [00:06:00] published in it? This is an indication to an agency that this is the new law. This is the new official way things go. So the freeze on federal funds that I mentioned at the top of the episode, that was not published in the Federal Register, and some critics of the freeze have pointed out that the team of lawyers who work at the Federal Register would have addressed that it was an illegal impoundment. All that said, the Federal Register is fun to read. It's fascinating, and you can read it for yourself [00:06:30] for free at Federal Register. Gov. The more you know. Anyways. Proclamations.

Andy Rudalevige: A proclamation is literally to proclaim to the wider public what the president is going to do and sort of the state of the world often. Um, whereas the executive order, as I say, is to the executive branch, that doesn't mean that it doesn't have a wider impact than on the behavior of Of bureaucrats, but that is the, you know, specific audience for a given order. [00:07:00]

Hannah McCarthy: Our proclamations, usually just for lack of a better term, window dressing. You know, naming holidays and monuments and stuff like that.

Nick Capodice: Yeah, a lot of them are. Hannah, there have been over 9000 presidential proclamations. Also, I have a link to an archive of every single one of those in the show. Notes for you lovers of ephemera out there. And yes, most of them are, you know, President Carter declaring National Family Week or President Reagan proclaiming National [00:07:30] Dairy Goat Awareness Week.

Hannah McCarthy: Well that happened.

Nick Capodice: It certainly did. Oh, how that did happen, Hannah. Proclamation 5834. By the way, can I read you a paragraph from it?

Hannah McCarthy: I would love it.

Nick Capodice: Today, among the contributions of dairy goat farming to our nation's economy is an impressive array of dairy products. The interest of both domestic and foreign consumers in U.S. domestic goat cheeses or chevre continues to increase, as does awareness of all dairy goat products. [00:08:00] These trends deserve every encouragement.

Hannah McCarthy: I love that Reagan is giving everyone a little French lesson there, right? Just in case you didn't know, goat cheese is also called chevre.

Nick Capodice: You did that funny.

Nick Capodice: That said, I have to pivot here and say that not all proclamations are ceremonial in nature. There are a lot that have serious, immediate impact. President Donald Trump has issued five already in this new administration. There is one ordering flags [00:08:30] to be flown at full mast on Inauguration Day, for example. But in a more consequential vein, declaring a national emergency at the southern border and granting pardons to the January 6th insurrectionists. Those were both proclamations, and I'm sure we'll be hearing about them both for some time.

Hannah McCarthy: All right, moving on. What are memoranda? How is a memorandum different from an from an executive order.

Andy Rudalevige: An executive order is telling, using the president's authority to tell agencies to do something. [00:09:00] Whereas technically a memorandum is the president telling the agencies to use their own authority to do something.

Hannah McCarthy: So memoranda are the president saying, I maybe don't have the power to do this thing, but you do. So you take care of it for me.

Nick Capodice: Yeah. Memoranda do not have to be published in the Federal Register, by the way. So often the president just wants an end result. Right. But the intricacies of how all the other departments work, they're complicated [00:09:30] and nuanced, and the president can't dictate how it's going to happen. Exactly. But they're asking just to get something done.

Hannah McCarthy: Do you have an example?

Nick Capodice: I do. Trump has issued 15 memoranda so far. One of them is the memorandum on promoting beautiful Federal Civic Architecture. And in this memorandum, he is directing myriad other agencies to submit proposals to him to ensure that federal buildings, quote, should be visually identifiable as civic buildings [00:10:00] and respect regional, traditional and classical architectural heritage. End quote. Or we have the recent memorandum on return to in-person work. This is telling other agencies to terminate all remote work.

Hannah McCarthy: Just want to run all these back before we get into executive orders. Specifically, proclamations tell the American people and the world in general. I, the president, am going to do X, Y, and Z. And then the proclamations are published in the Federal Register, and memoranda are [00:10:30] I, the president, am telling other agencies to do XYZ, and these are not published in the Federal Register?

Nick Capodice: Absolutely correct.

Hannah McCarthy: All right. So let's get to the big one executive orders. When did they start? Have presidents been issuing them from the beginning?

Nick Capodice: Uh, yes and no. I'm going to tell you tell you a little bit about some of the earliest ones, along with who writes them and how they happen or don't happen right after a quick break.

Hannah McCarthy: But before that break, [00:11:00] if there is a special someone in your life you think could use a primer on every gear in the governmental machine, tell them to check out our book, A User's Guide to Democracy How America Works. It's the civics class we wish that we had had in eighth grade. It sure is.

Nick Capodice: We're back. We are talking about executive orders here on Civics 101. When a president delivers policy all on their own.

Hannah McCarthy: Nick, [00:11:30] for how long have presidents issued executive orders? Do they go back far enough to justify the horse and carriage sound effect?

Law and Order Voice: Yep.

Andy Rudalevige: There are no executive orders in the definitional sense going way back to George Washington. Um, but, you know, we don't have executive order number one from 1789.

Nick Capodice: Again, Andy Rudalevige, professor of government at Bowdoin College.

Andy Rudalevige: Sometimes these are written, you know, on scrap paper. Um, there's some fun research into, uh, how sometimes [00:12:00] they're written in the margins of memos or maps.

Hannah McCarthy: Maps.

Nick Capodice: Maps.

Hannah McCarthy: What was the first one?

Nick Capodice: Well, like Andy said, they weren't numbered officially for a while. So technically, Abraham Lincoln issued Executive Order number one, establishing a provisional court in Louisiana. But every single president before him, except for William Henry Harrison, issued them. They just didn't have a number. George Washington's first one was pretty funny. In 1789, [00:12:30] he wrote a letter to the heads of every department asking them for, quote, a full, precise, and distinct general idea of the affairs of the United States.

Hannah McCarthy: It sounds a bit like our show, doesn't it?

Nick Capodice: Sure does.

Andy Rudalevige: So they were, you know, not nearly as formal as they are today. And that was part of the problem at the time. We time. We get to the 1930s and the government's expanding. Franklin Roosevelt's issuing lots of these orders. You know, people needed to keep track of them. They needed to know who had been told what. And at some point, [00:13:00] the courts get involved and and sort of lambaste the FDR administration for, you know, not knowing what the law is and what the president has actually said about the law and how to implement it.

Hannah McCarthy: I want to know a little bit about how executive orders come to be. Like a president can't just order anything at all. They have to have authority to do it, right?

Nick Capodice: They certainly do.

Andy Rudalevige: So an executive order has to be something that the president is authorized to do, either by the Constitution or by a statute. [00:13:30] And so, you know, presidents are often, you know, sort of sending their lawyers out into the law books to find them, some authority that they can use to to do things. You know, finding new meaning in old laws has become quite a pastime for recent administrations, Illustrations, in part because there are so few new laws being passed.

Speaker16: And the problem with Washington, they don't make deals. It's all gridlock. And then you have a president that signs executive orders because he can't get anything done. [00:14:00] I'll get everybody together. We'll make great deals.

Andy Rudalevige: So congressional gridlock is sort of a great opportunity for presidents to try to act in ways that they, they feel won't be reversed because Congress finds it so hard to act.

Nick Capodice: The first line of an executive order usually lays that authority out. They often start with, by the authority vested in me as president by the Constitution and the laws of the United States of America, and by blah, blah, blah in the US code, I am ordering such [00:14:30] and such.

Andy Rudalevige: And then you'll have sections, perhaps setting out some definitions. So there could be a section setting up a new advisory committee and saying who's going to be on it and what kind of report they should issue. And or it may lay out. Here are some priorities for things we want the department to look at, um, and to come up again with actions that would achieve the goal of this executive order.

Nick Capodice: And since the authority is not an option, it's a requisite. There are a lot [00:15:00] of steps taken before the order is signed.

Andy Rudalevige: They do have to go through a process of both the central clearance process with regards to the Office of Management and Budget approving the order.

Hannah McCarthy: Real quick, we just have to say what is the Office of Management and Budget?

Nick Capodice: The Office of Management and Budget is a crucial piece in the puzzle of executive orders. They're the largest office working for the president. They help create a president's budget. They make sure executive actions are in line with Congress and the law. They [00:15:30] are the ones checking every single thing that comes out of the Oval Office.

Andy Rudalevige: Also has to be signed off for what's called form and legality by the Justice Department and the Office of Legal Counsel within the Justice Department usually does that. Um, so they'll look at it and make sure that the order is actually fine in terms of how it's been composed, but also legal that the president does have the authority to act in the way that he wants to act through this order. And sometimes [00:16:00] successive justice departments will have different ideas about what is allowed or not. Daca, as we mentioned before, is a pretty good example where the Obama Justice Department said, yes, you can do this. And the Trump Justice Department said, no, you can't. And Biden said, sure, you can go back with it.

Archival: Today, President Biden unveiled a new executive action that shields approximately 500,000 immigrants from deportation. It's aimed at Americans whose spouses or children are non-citizens.

Andy Rudalevige: And then often there's a deadline [00:16:30] for action. And, you know, some kind of reference, perhaps, to older executive orders that might be being superseded or even revoked as part of this one. So they can be anything from a paragraph long to 20 pages long.

Hannah McCarthy: So Nick.

Nick Capodice: Hanna.

Hannah McCarthy: Trump signed a lot of executive orders on his first day in office. And I've read them. Some of them are long and complicated. Some of them are short and to the point. [00:17:00] Uh, some of them cite countless legal codes and pieces of legislation and other executive actions over the last 250 years. I think it's safe to say that Donald Trump did not sit down and all by himself, type all of these out.

Law and Order Voice: No.

Nick Capodice: No one person can write an executive order in our modern era.

Hannah McCarthy: So who does write them?

Andy Rudalevige: I think the, um, executive orders themselves. We think of them as totally unilateral. [00:17:30] The president just sits down at the desk, pulls out the Sharpie, and we have a piece of policy. Um, normally there is a kind of a long review process of executive orders. And, you know, they can come from really anywhere, you know, in the executive branch or for that matter, outside the executive branch. And I'm sure, you know, if you're issuing a lot of orders on day one, you know, they're coming from, you know, transition staff or think tanks or people who've sort of written them out beforehand because you don't yet have [00:18:00] full access, you know, to the agencies in the federal government.

Nick Capodice: But to your question, Hannah, who wrote these recent orders, we don't have a name. The only name on these executive orders is that of Donald Trump. We do not know which think tanks or what teams of lawyers have been drafting them in the days leading up to the inauguration. I do have to point out here, though, prior to the election, the Heritage Foundation, which is a conservative think tank, they [00:18:30] published a massive document called project 2025, the subject of a three hour episode in the future, I'm sure. This was a blueprint for how to dramatically reshape American government to suit a suit a conservative agenda.

Hannah McCarthy: Which Donald Trump at certain times has denied knowing about at all.

Archival: I have nothing to do with project 2025 that's out there. I haven't read it. I don't want to read it purposely. I'm not going to read it. This was a group of people that got together. They [00:19:00] came up with some ideas, I guess. Some good, some bad.

Nick Capodice: However, a recent in-depth analysis by time magazine found that nearly two thirds of the executive actions Trump has issued so far mirror or partially mirror proposals from the 900 page document, ranging from sweeping deregulation measures to aggressive immigration reform. End quote.

Hannah McCarthy: Okay, so right now I'm thinking about the executive order to end birthright citizenship. [00:19:30] Um, a judge has already issued a pause on that order, has declared it unconstitutional. There are a bunch of lawsuits out against it. You know what happens when there are legal challenges to an to an executive order. Do we have any other examples of that?

Nick Capodice: We certainly do. We do not know what is going to happen with that particular executive order. But Andy had an example that bore a lot of resemblance to what we're seeing now.

Andy Rudalevige: The sort of exception that proves the rule is President Trump's [00:20:00] first travel ban order, the so-called Muslim ban from early 2017. You know, it's issued, um, you know, barely a week after the administration's come into office. It had not been reviewed at all, even by the Department of Homeland Security, which would have to implement it. And it was a disaster, right? It was, you know, there were people literally in the air and, you know, uh, immigration staff on the ground waiting to receive them. And they don't know what they're supposed to do.

Archival: American Civil Liberties Union says it will help people with valid visas [00:20:30] or refugee status who have found themselves detained in transit or at U.S. airports.

Andy Rudalevige: You know, if somebody comes in with a green card, are they allowed in? If they're from one of the countries that was banned in the order? That wasn't clear. Nobody had thought of that because, again, they hadn't asked the people who actually knew how to do it. So, you know, by the time that order gets around to the Supreme Court, it's actually been revised twice. It's been revised, uh, you know, by bureaucratic input. And the third version, which is actually a proclamation, not an executive [00:21:00] order, uh, has been shifted enough that the Supreme Court says, yes, this is legal. And they move ahead with that version.

Archival: The US Supreme Court has handed victory to President Trump by partially allowing his temporary ban on travelers from six mainly Muslim majority countries to come into effect.

Hannah McCarthy: Are executive orders generally popular? Nick like, do people like them?

Nick Capodice: I don't want to get into my whole hypocrisy. Doesn't matter to anyone diatribe [00:21:30] here, but I will say that people tend to dislike them when they or their party isn't in power, and when their party is in power, they're the best thing ever.

Andy Rudalevige: Donald Trump, Interestingly, you know, 2016 said that executive orders were a terrible way to govern. It was lazy. It was bad leadership. You should do everything through Congress. Uh, President Obama was using executive orders like they were butter, I think was the phrase.

Archival: Then all of a sudden, Obama, because he couldn't get anybody to agree with him, he starts signing them [00:22:00] like they're butter. So I want to do away with executive orders for the most part.

Andy Rudalevige: Well, it turns out everybody likes butter. Uh, you know, when President Trump came in, he, of course, issued lots of orders and after 100 days in office, issued a press release saying that he was the most effective president, uh, at least since Franklin Roosevelt. Why? Because he had issued more executive orders than anybody except Franklin Roosevelt in his first hundred days.

Nick Capodice: I want to go back to the butter metaphor one last time. Butter is easy. Butter [00:22:30] smooth. But if you're a person who works in a different.

Nick Capodice: Branch.

Nick Capodice: Or office, like Congress or the courts, even if you are lockstep in line with the president's agenda. That butter could be dangerous to your own power.

Andy Rudalevige: I mean, a lot of this will come down to the Congress having the sort of institutional pride in some ways to take action when the president is stepping on their turf and war powers, immigration, [00:23:00] uh, tariffs. Right. The economy, international trade. That's specifically a congressional power under the Constitution. It's one of those areas where power has been delegated over time to the president. Doesn't mean it couldn't be taken back. Uh, and we'll see, I guess, whether Congress, even a Republican Congress is interested in, you know, taking back some of the authority that it's kind of gifted to the president over time. [00:23:30]

Speaker20: That's executive orders for today. This episode was made by me Nick Capodice with you Hannah McCarthy, thank you. Christina Phillips is our senior producer, Marina Henke our producer, and Rebecca Lavoie our Executive Producer. Music in this episode from epidemic sound, HoliznaCCO, Hanu Dixit, Broke for Free, Blue Dot Sessions, Cycle Hiccups, and the man whose music is more like a gentle brown rice oil than butter, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio. [00:24:30]

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Trump's Executive Orders

During his campaign, now-President Trump promised a lot of action (much of it to happen on day one). So what did he actually do once he regained the office? A LOT. This is the first week of Trump's executive orders.

For some context, check out our episodes on:

Wong Kim Ark and Birthright Citizenship

Dred Scott

The Fourteenth Amendment

An earlier version of this episode incorrectly identified several Presidential memoranda and proclamations as executive orders.

Transcript

Note: this transcript is AI-generated and may contain errors

Hannah McCarthy: [00:00:01] Here we are. Nick.

Nick Capodice: [00:00:03] Here we are.

Hannah McCarthy: [00:00:04] You know what's pretty rare? When someone tells you they're going to do a whole bunch of major stuff, and then they actually do it.

Nick Capodice: [00:00:13] Yeah. Like how you told everyone you were going to be a big Broadway star.

Hannah McCarthy: [00:00:16] Mccarthy I'm still young ish. Nick and I practice every day. But we're not talking about me. We're talking about the leader of the free world.

Nick Capodice: [00:00:24] Ah, yes. The president. And generally, that is a role wherein it's pretty difficult to [00:00:30] get a lot done. Especially the stuff you promise people in order to get elected.

Hannah McCarthy: [00:00:35] Yeah. Especially that a while ago I made an episode about what then president elect Trump was promising to do on day one of his presidency. It was a long list. A tall order, some of which was impossible to achieve all on one's own as the president. So what did Trump actually do once he got back in that [00:01:00] office. Well, uh, he did a whole lot. Are you ready?

Nick Capodice: [00:01:07] I'm ready.

Hannah McCarthy: [00:01:09] So after being sworn in and giving his inaugural address, President Donald Trump sat down in the Oval Office and signed no fewer than 26 executive orders. As of this recording, he has signed several more. So the grand total as of the morning of Friday, January 24th, is 33.

Nick Capodice: [00:01:27] Wow.

Hannah McCarthy: [00:01:28] Yeah, it's a lot. And we're [00:01:30] going to do a full explanation of executive orders next week, including the differences between orders and proclamations or presidential memoranda. And fair warning, because there are so many items to cover in this episode, we will not be doing an analysis of many of them, even those orders that people might be really interested in or concerned about. But before we Begin. Can you just give us a quick primer [00:02:00] on what an executive order is?

Nick Capodice: [00:02:04] Absolutely, Hannah. Executive orders are, simply put, orders to the executive branch. So the executive branch is the largest group of employees in the world. That's over 4 million people. If you count the military and the president is in charge of the executive branch and they sign an order. This order is published in the Federal Register. That, by the way, is a journal of the government's rules and public notices [00:02:30] also. And I know we're going to touch on this, Hannah. A president must have the authorization to order the executive branch to do something. This authorization has to come from the Constitution itself or a statute, a law passed by Congress.

Hannah McCarthy: [00:02:46] So you're saying that the president can't just order whatever?

Nick Capodice: [00:02:49] Well, they can order whatever, you know. They can say whatever they want in an order. But for that order to be carried out, Hannah, it It needs that authorization. And by the way, orders can [00:03:00] be stopped or suspended by the courts and rendered ineffective by existing or future laws. And like we said in our episode on the executive branch a long, long time ago, executive orders are really easy for a president to do. They just happen. On the flip side, they're also the weakest way to take an action, as they are extremely easy for a following administration to undo.

Hannah McCarthy: [00:03:26] They are indeed, and I'm glad you brought that up, Nick, because this ties into [00:03:30] our very first order for today. Now I'm going to go through these promises made and kept and not kept, and I'm going to do it fast because there is a whole lot to get through. And I want you to keep a couple of things in mind as I do this. While President Trump signs them while they are his orders, he has many advisers who likely lent a hand in crafting them. Also, pay attention to the actual names of these orders. The Trump administration is sending a [00:04:00] message in addition to creating policy. A lot of these orders and the words they employ pay not so subtle service to political ideologies. All right, you ready?

Nick Capodice: [00:04:13] I am ready as I'll ever be, Hannah.

Hannah McCarthy: [00:04:15] Okay. First, Trump vowed to undo former President Biden's border policies on day one, an undo he did among a whole lot of other undos.

President Donald Trump: [00:04:25] My recent election is a mandate to completely and totally reverse [00:04:30] a horrible betrayal, and all of these many betrayals that have taken place and to give the people back their faith, their wealth, their democracy, and indeed their freedom.

Hannah McCarthy: [00:04:46] Trump called this order initial rescissions of harmful executive orders and actions. He revoked Biden orders that addressed asylum, refugees and immigration enforcement. He also revoked. And Nick, I think you should [00:05:00] take a deep breath here.

Nick Capodice: [00:05:01] All right. Hold on.

Hannah McCarthy: [00:05:04] Yeah. All right. He also revoked Biden's orders on racial sexual orientation and disability equity and inclusion, counting noncitizens in the census for the purposes of apportionment. Combating Covid 19 and supporting people and things affected by it. Preventing discrimination on gender identity and sexual orientation. Establishing ethics commitments for members of the executive branch. Protecting public health and addressing the climate crisis. [00:05:30] Protecting the federal workforce. Enabling all qualified Americans to serve in the armed forces. Eliminating private prisons. Strengthening Medicaid and the ACA. The Affordable Care Act. Improving access to voting. Clean energy and cars. The Infrastructure and Jobs Act. Affordable health care. Criminal justice. Public safety. Promoting the arts and humanities, and museum and library services. Protecting land from oil and gas. Leasing [00:06:00] safe artificial intelligence. Safety on the West Bank. Taking Cuba off the terrorist nation. List. Orders of succession for executive branch departments and. Helping people who served in AmeriCorps get jobs.

Nick Capodice: [00:06:16] Woo!

Nick Capodice: [00:06:18] Real quick, I must jump in here and say that rescinding executive orders with executive orders is very common when a new president takes office.

Hannah McCarthy: [00:06:28] Yes, that must be said. [00:06:30] And we just got to make a note of that and move on, because the president has been really busy in his first week. Are you ready for promise number two?

Nick Capodice: [00:06:38] Yep. Born ready.

Hannah McCarthy: [00:06:39] Hannah, let's go with that birthright. Trump promised to end birthright citizenship, the provision laid out in the 14th amendment that says people born in the United States are citizens of the United States. On day one, Trump issued an executive order doing just that, meaning what? He [00:07:00] focused on the part of the 14th amendment that says, quote, subject to the jurisdiction thereof. Meaning subject to United States jurisdiction. Trump's executive order says that if your mother is not lawfully in the US or is here legally but temporarily, and your father is not a citizen or lawful permanent resident, then you, regardless of being born in United States territory, are not a citizen. Trump called this one protecting the meaning and value of American citizenship. [00:07:30]

Nick Capodice: [00:07:30] Wow. Um, this could change a lot. I know you said you wanted to do this fast, Hannah, but this.

Hannah McCarthy: [00:07:39] No, no, I know, I know. We are going to follow this. We will not leave you hanging, listener. As of the recording of this episode, a federal judge had temporarily blocked this order and called it, quote, blatantly unconstitutional. This case might very well end up before the Supreme Court, and either way, we shall return. But for now, we shall move on.

Nick Capodice: [00:08:01] Uh, [00:08:00] by the way, listen to our Wong Kim Ark episode, please. And Dred Scott and 14th amendment, please.

Hannah McCarthy: [00:08:09] Yes. Do that. I will put the links in the show notes. While we are on the subject of lawful presence in the US. Are you ready for more?

Nick Capodice: [00:08:16] I don't know, Hannah. Are you?

Hannah McCarthy: [00:08:18] Trump promised he would close the southern border and declare a state of emergency there.

President Donald Trump: [00:08:23] First, I will declare a national emergency at our southern border.

Hannah McCarthy: [00:08:33] So, [00:08:30] is the border closed now? A full closure would mean a shutdown of ports of entry. And that is not what we are talking about here. But Trump did suspend the US refugee admissions program. It will be reassessed every 90 days. In another order called simply Securing Our Borders, Trump directs the government to build a wall, provide adequate personnel to deter and prevent the entry of, [00:09:00] quote unquote, illegal aliens, detain undocumented people suspected of breaking laws until they can be deported, and prosecute those who violate immigration law. That bit is also clarified in another order called Protecting the American People against invasion. And the goal, according to Trump, is to obtain, quote, complete operational control, unquote, of the borders.

Nick Capodice: [00:09:25] What does that mean, complete operational control?

Hannah McCarthy: [00:09:28] Yeah. Great question. I [00:09:30] had the same one, and I found the answer kind of in a proclamation, which is different from an executive order. You can learn all about that in our episode on executive orders about declaring a national emergency at the southern border of the United States.

Nick Capodice: [00:09:44] All right, so he did that too.

Hannah McCarthy: [00:09:47] That and another order called clarifying the military's role in protecting the territorial integrity of the United States. That one orders military personnel to be sent to the border to, quote, unquote, seal it.

Nick Capodice: [00:09:59] To seal [00:10:00] it.

Hannah McCarthy: [00:10:00] Right. Okay. Trump also signed an order directing the government to designate cartels as terrorist organizations, to expedite their removal from the US and to prevent them from exerting control over the US.

Nick Capodice: [00:10:13] Wait, this is like drug cartels.

Hannah McCarthy: [00:10:15] So this is interesting. A cartel is very basically an organization that limits business competition and creates artificial shortages to increase prices. So yeah, some cartels are involved in drugs [00:10:30] and human trafficking, but cartels are also involved in things like agriculture and tourism. They often have a hand in a lot of industry.

Nick Capodice: [00:10:39] And all these groups weren't already considered terrorists.

Hannah McCarthy: [00:10:42] Now people have actually wanted to classify Cartels as terrorist groups for a long time, but they have repeatedly decided not to.

Nick Capodice: [00:10:51] Because.

Hannah McCarthy: [00:10:52] Because in part, Mexico is our largest goods trading partner.

Nick Capodice: [00:10:57] Is it really?

Hannah McCarthy: [00:10:58] It really is. And there are a [00:11:00] ton of American businesses that have operations in Mexico.

Nick Capodice: [00:11:05] Okay, I am starting to see where this is going. Hannah.

Hannah McCarthy: [00:11:08] Right. So American businesses, Nick. They are not allowed to do business with terrorists.

Nick Capodice: [00:11:14] No, they are not.

Hannah McCarthy: [00:11:15] And technically, this comes from a federal law that makes it a federal crime to knowingly provide money, support or resources to a terrorist organization. All right. So you declare these cartels to be terrorists, then you're looking at a sticky wicket of very [00:11:30] likely having to disentangle the US from terrorist groups and potentially losing some business.

Nick Capodice: [00:11:37] Got it. So we never did it because it seemed like it would mess with trade and the economy and all that.

Hannah McCarthy: [00:11:43] But we've done it now or Trump has. Okay. Are you ready for more?

Nick Capodice: [00:11:47] I think I just need a quick break first. Hannah, like, just a moment. I appreciate all this and the way you're tearing through it, but sometimes I just need to rest my head.

Hannah McCarthy: [00:11:56] Okay. Fair enough. You can rest your noggin, and then [00:12:00] we're going to be right back to it.

Speaker3: [00:12:01] Yes, ma'am.

Hannah McCarthy: [00:12:02] Now, speaking of ma'am.

Nick Capodice: [00:12:04] No, no. Not yet. Don't do another one. By the way, everyone, if you want the context for a lot of what we're talking about today, you can find it at our website, civics101podcast.org. Now, let us all just rest our noggins for a sec. We're [00:12:30] back. You're listening to Civics 101, and today we are talking about Trump's executive actions on day one and then some. And [00:13:00] Hannah, just before the break, you mentioned the word ma'am. What about ma'am?

Hannah McCarthy: [00:13:05] Yeah. A quick recommendation for everyone to read Jessi Klein's essay on the word ma'am. But what I'm really getting at is gendered terms and ideas. And, uh, let's just hop right into the executive order titled Defending Women from Gender Ideology, Extremism and Restoring Biological Truth to the Federal Government.

President Donald Trump: [00:13:29] As of today, it [00:13:30] will henceforth be the official policy of the United States government that there are only two genders, male and female.

Hannah McCarthy: [00:13:49] So Trump implies that trans women endanger cis women, aka women assigned female at birth who identify as female, though there is no documented proof of that. However, [00:14:00] there is documented proof that trans people are assaulted at four times the rate of cis people, and scientific evidence that gender and assigned sex are not always in alignment. Plus, it should be noted that trans people have existed throughout history across cultures. Anyway, Trump says, quote, Self-assessed gender identity permits, quote, the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society [00:14:30] to regard this false claim as true, unquote.

Nick Capodice: [00:14:34] So Trump calling this a false claim, is essentially him saying that being trans is a lie.

Hannah McCarthy: [00:14:41] Essentially. So the order says that the United States will only recognize two sexes, male and female. It defines male and female as sexes established at conception. It orders the Department of Homeland Security to reflect that on government issued IDs like passports. [00:15:00] It tells the government to eliminate what Trump calls gender ideology from statements, policies, regulations, forms, communications and other messages. This order also affects prisons, discrimination and what Trump calls intimate spaces.

Nick Capodice: [00:15:16] All right. And I'm going to assume that if it affects discrimination, then we are talking about laws that include gender identity and transgender status.

Hannah McCarthy: [00:15:26] Yeah. Lawsuits are pretty sure to come. And though this order does [00:15:30] not explicitly end gender affirming care for kids, as Trump promised he would do before he was elected, it certainly could. I know this is a lot. And again, trust me, we will keep making episodes as things develop. I know this is all really important, but we have so much more. Okay, so I'm going to move on. Speaking of discrimination, let's talk ending radical and wasteful government Dei programs and referencing.

Nick Capodice: [00:15:59] Dei [00:16:00] meaning diversity, equity and inclusion.

Hannah McCarthy: [00:16:02] Correct. This order calls Dei initiatives in the federal government, quote, illegal and immoral discrimination programs and commands an end to them. There's another order that extends this beyond the government, including to airlines, law enforcement agencies and higher education institutions that receive federal funds. This is definitely a topic that we will revisit in future episodes, but for now, I just got to keep rolling.

Nick Capodice: [00:16:28] Roll on McCarthy.

Hannah McCarthy: [00:16:29] Now you [00:16:30] remember how Trump promised to restore the travel ban that he put in place last time he was in office?

Nick Capodice: [00:16:35] Yes, this is the order banning people from majority Muslim and Arab nations from entering the United States.

Hannah McCarthy: [00:16:41] Yeah. So the order called, quote, protecting the United States from foreign terrorists and other national security and public safety threats, establishes an intensive threat screening process for people who either have or apply for visas, especially if they are from regions or nations with identified security risks or [00:17:00] countries with quote unquote, deficient vetting processes, or if they, quote, unquote, bear hostile attitudes.

Nick Capodice: [00:17:07] But this isn't explicitly a travel ban.

Hannah McCarthy: [00:17:10] No, it's not put in that way. It does not look exactly the same. But civil rights groups are already saying that this could essentially amount to that and also potentially result in the deportation of foreign students who participated in things like pro-Palestinian rallies. Okay. Drill, baby. Drill. [00:17:30]

President Donald Trump: [00:17:30] We will drill, baby drill.

Hannah McCarthy: [00:17:40] So I'm gonna go ahead and lump a bunch of orders together on this one, all of which are designed to encourage natural resource extraction, and because that practice is known to contribute to environmental pollution. I'm also going to bring in Trump's claim that he would end the Green New Deal on day one.

Nick Capodice: [00:17:58] Which is, by the way, something [00:18:00] that never actually passed.

Hannah McCarthy: [00:18:01] Yeah, we don't have a Green New Deal policy.

President Donald Trump: [00:18:04] With my actions today, we will end the Green New Deal and we will revoke the electric vehicle mandate, saving our auto industry and keeping my sacred pledge to Audrey.

Hannah McCarthy: [00:18:16] Trump declared a national energy emergency. He said that energy is too expensive and there is not enough of it. Despite the fact that the US is currently the largest oil producer on the planet. So the nation's leaders can use this emergency status [00:18:30] to prioritize even more resource extraction A memorandum suspended new leases for wind farms in the Outer Continental Shelf, while an order called Unleashing American Energy calls for, quote, energy exploration and production on federal lands and waters, including on the outer continental shelf.

Nick Capodice: [00:18:48] Maybe we need an episode about the Outer continental shelf.

Hannah McCarthy: [00:18:50] In that same order ends Biden era electric vehicle goals and orders emission standards to be eliminated. Quote, where appropriate. And [00:19:00] it mandates the American people's freedom to choose their own quote, including but not limited to light bulbs, dishwashers, washing machines, gas stoves, water heaters, toilets and shower heads.

Nick Capodice: [00:19:11] Now, wait. Now, what does that mean?

Hannah McCarthy: [00:19:14] It means the end of regulatory standards that make household stuff more efficient.

Nick Capodice: [00:19:20] All right.

Hannah McCarthy: [00:19:21] Unleashing, by the way, is the word of the week at the white House, because there's another order called unleashing Alaska's extraordinary Resource potential.

Nick Capodice: [00:19:30] That's [00:19:30] a wasted opportunity to quote there will be blood, if you ask me. Hannah.

Hannah McCarthy: [00:19:34] This one is all about extracting Alaska's natural resources and making sure leases can be obtained in the state's National Wildlife Refuge. While we're on the subject of Alaska, Trump renamed Mount Denali, reverting it back to Mount McKinley. While we're on the subject of renaming, Trump renamed the Gulf of Mexico to the Gulf of America. The renaming order is called Restoring Names that Honor American Greatness. And while we're on the subject of states, [00:20:00] he ordered a water rerouting plan in California.

Nick Capodice: [00:20:04] Is this the one he tried in his first administration?

Hannah McCarthy: [00:20:06] It is exactly that. So Governor Gavin Newsom sued when Trump tried to implement his water plan, saying that it would drive certain fish populations to extinction. Biden issued different water rules when he came in. Trump called this order putting people over fish.

Nick Capodice: [00:20:22] Wow, you were not kidding with these names.

Hannah McCarthy: [00:20:24] I was not. All right, Nick, can I hit you with some quickies?

Nick Capodice: [00:20:28] Oh, yes. Please.

Hannah McCarthy: [00:20:31] Now, [00:20:30] Trump promised to, quote, return to a foreign policy that puts America's interests first.

Nick Capodice: [00:20:36] Did he do that?

Hannah McCarthy: [00:20:37] Yes. He ordered the secretary of state to put America's interests first.

Nick Capodice: [00:20:41] Ah. That's it.

Hannah McCarthy: [00:20:42] Yeah, actually, it's a really short order. He did also issue a similar one for trade. That particular one is a memorandum.

Nick Capodice: [00:20:51] All right. Is this the tariffs?

Hannah McCarthy: [00:20:52] This is the tariffs. Among other things. But this order just kicked off the. Let's explore tariffs. Era of government.

Nick Capodice: [00:20:59] All right. So he didn't just [00:21:00] issue a whole bunch of tariffs right off the bat.

Hannah McCarthy: [00:21:02] He's asking agencies to figure out if and how to do it. Trump promised to withdraw the U.S. from the Paris Agreement. That's the international treaty on climate change. He also revoked the United States international climate finance plan, and he withdrew us from the World Health Organization.

Nick Capodice: [00:21:19] Well, he did that before, didn't he?

Hannah McCarthy: [00:21:20] He did. So this time around, he undid that undoing. All right. A few executive actions deal with what Trump calls past misconduct [00:21:30] of the government. He revoked the security clearances of 50 people who once signed a letter about Hunter Biden's laptop, though at a different turn, he ordered immediate top secret clearance for others. He ordered an end to the federal combating of what he says they call misinformation and disinformation. He just calls that free speech. He ordered a review of past investigations and prosecutions by the federal government, with the goal of correcting them if he thinks they were political in nature. He [00:22:00] reinstated schedule F. You might remember that from the end of his first term. It makes it easier to fire federal workers, and the order clarifies that it will be about those who Trump believes do not faithfully implement his policies. He also instituted a performance plan to review top level officials. There's also a hiring freeze for federal civilians, a regulatory freeze until Trump's own appointees are in charge and paused foreign aid. Pending review.

Nick Capodice: [00:22:29] So, [00:22:30] Hannah, are all of these executive orders?

Hannah McCarthy: [00:22:33] Well, not all of them, as you've heard me say. Some of them are proclamations. Some of them are memoranda, which, again, we learn way more about in your episode on executive orders. Nick. But his actions include reinforcement of the death penalty for federal capital crimes. Biden had walked that back quite a bit. Broad clemency, commuted sentences and pardons for more than a thousand people accused or convicted of crimes during the January [00:23:00] 6th insurrection at the Capitol. The restoration of TikTok despite a federal law banning it, as well as the promise to make it safe. The mandate to make civic buildings beautiful, and the command that heads of executive departments make life less expensive in America.

Nick Capodice: [00:23:19] Hannah.

Hannah McCarthy: [00:23:20] Yeah.

Nick Capodice: [00:23:22] All right. I was just making sure you're still there, because suddenly the list stopped.

Hannah McCarthy: [00:23:27] Oh. I'm done.

Nick Capodice: [00:23:28] You're done.

Hannah McCarthy: [00:23:29] I mean, by the time [00:23:30] people listen to this, there will almost certainly be more executive orders. But yeah, for now, I'm done.

Nick Capodice: [00:23:35] All right, I have to say, that was a marathon.

Hannah McCarthy: [00:23:38] I mean, I just had to read about it. Imagine making it all happen.

Nick Capodice: [00:23:42] Yeah. That and the lawsuits.

Hannah McCarthy: [00:23:44] Yeah. There are already so many promised lawsuits.

Nick Capodice: [00:23:47] Just before we go, Hannah, can I ask real quick? What didn't he do? You know what promises are as of yet? Unfulfilled?

Hannah McCarthy: [00:23:56] Well, a lot of these executive actions might just be paving the road for [00:24:00] other stuff that Trump promised. Like revoking federal funds from schools that teach critical race theory, which grade schools, by the way, do not teach. Or schools that have vaccine and mask mandates. Trump has not yet shut down the Department of Education, though he promised to do so. He didn't yet eliminate the taxes that he promised to get rid of. The mass deportations did not happen on day one, though there have been reports of many Ice raids and raids and arrests in the last week. And he did not end the wars in Ukraine or Gaza [00:24:30] immediately after taking office.

Nick Capodice: [00:24:37] I gotta say, this is truly remarkable. I mean, the degree to which, at least on paper, literally, Donald Trump really did fulfill many of the promises he made on the campaign trail. Sending out so many orders so early in his term means we might not have to wait long to learn exactly how feasible or legal [00:25:00] these plans are, right?

Hannah McCarthy: [00:25:02] So many organizations and states are launching lawsuits. So now the question is, do the courts think X, Y, or Z is legal? And then, of course, will Congress support these orders in law and budgeting or will it render them ineffective? What flies. What doesn't? But Donald Trump is the president and these are his orders. How they happen, if at all. Is going to be up to the rest of the government. [00:25:30]

Nick Capodice: [00:25:30] I think it's going to be a busy four years. Hannah.

Hannah McCarthy: [00:25:33] Buckle up pal. That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Epidemic Sound. And I just have to say it again, we will come back to so many, if not all of these executive orders in the future. But for now, if you want more Civics 101, you can find the rest of our episodes at our website [00:26:00] civics101podcast.org. Civics 101 is a production of New Hampshire Public Radio.

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Holiday Trivia: What's been on the White House Christmas menu?

In our latest edition of Holiday Trivia, a rundown of some of the quirky food, drinks, and celebratory ephemera at the White House during the most wonderful time of the year. 

Have an opinion on the pronunciation of "praline?" Send us an email!

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Transcript

This transcript is AI-generated and may contain errors

Hannah McCarthy: This is Hannah McCarthy. You're listening to Civics 101.

Nick Capodice: This is Nick Capodice.

Rebecca Lavoie: And this is Rebecca Lavoie.

Christina Phillips: And this is Christina Phillips. And folks, it is barely noon and the sun already looks ready to set. There is a run on peppermint extract, probably because so many normal foods now have peppermint in them at the grocery store, and everyone seems to have stopped responding to emails, including us. Which means it's time for our annual holiday themed episode on Civics 101. So this year we are talking about food, specifically holiday food at the white House, because there is an absolute treasure trove of historical documents about how presidents past celebrated the winter holidays. Now, most of our presidents were Christian or followed Christian traditions, so this trivia is a bit Christianity centric. But as usual, the president is only our starting place, so we will be branching off from there. Now I have divided this trivia into four courses. We have drinks, appetizers, the main course and dessert.

Nick Capodice: Yes.

Christina Phillips: And before we begin, I just have one question. A little icebreaker for you. What is your opinion of fruit in chocolate? I'm thinking the chocolate orange. The cordial cherries. Rebecca, I'm getting a thumbs down.

Nick Capodice: I'm a massive fan of the chocolate orange. I think that's one of the greatest creations of humankind.

Hannah McCarthy: The chocolate orange. Especially when you leave it on your parents dashboard. And then it gets all like melty.

Rebecca Lavoie: It's so specific.

Nick Capodice: And don't you have to crack it?

Hannah McCarthy: You smack it. Yeah, well, that's if you don't leave it on your parent's dashboard. So if you before you let it melt, you can you can smash it and it'll break into slices.

Nick Capodice: So good. That was such decadence when I was a child. Like you'd get that once a year.

Christina Phillips: Oh. I'm sorry. The way you looked at me. As though I would know Hannah what you meant. You're like, you know, the way you leave it on the desk.

Hannah McCarthy: I think people universalize childhood experiences that happen more than once to them, they're like, oh, this is what kids do.

Christina Phillips: But I only asked because I hate them, and I think they're disgusting.

Rebecca Lavoie: Same. Every time I bite into like, a Russell Stover. Like one of those, like, waxy, hard things and it's like fruit flavored inside. I just like I can't.

Christina Phillips: It's like a betrayal.

Rebecca Lavoie: It's like, this is not what I consented to. When I bit into chocolate, I wanted chocolate or chocolate adjacent flavors. A chocolate covered cherry I can do only because I know it's coming.

Christina Phillips: Yeah.

Hannah McCarthy: What about, like, chocolate covered pomegranate seeds?

Rebecca Lavoie: Nope.

Nick Capodice: What? No. Where are those?

Rebecca Lavoie: It's basically just a fancy Raisinette.

Hannah McCarthy: That is composed of granite seeds.

Christina Phillips: Speaking of cherry chocolate, actually, that's a great transition to our first course drinks, we're going to talk about the favorite holiday drinks of presidents past. This will be a free for all round, meaning the first person to shout out the answer gets the point. Have any of you ever heard of something called the Cherry Bounce?

Hannah McCarthy: No, no. Is it a beverage?

Christina Phillips: It is a beverage.

Christina Phillips: Beverage. This is a favorite of George and Martha Washington. And we know that because there is a recipe from Martha's surviving papers at Mount Vernon. So here is your question. The Washington's cherry bounce was made of three main ingredients cherries, sugar, and this liquor, which is made by distilling wine.

Rebecca Lavoie: Distilling, distilling wine.

Nick Capodice: Brandy. Yes.

Rebecca Lavoie: Oh nicely done.

Nick Capodice: I like boiling it in Ireland before the snakes left.

Hannah McCarthy: Port is just fortified wine, right? Nicely done. Yeah. Well done.

Nick Capodice: I only know it because of the lion in winter.

Hannah McCarthy: Distilled wine.

Nick Capodice: Yeah.

Rebecca Lavoie: It is. It's liquor made of wine.

Nick Capodice: They used to call it Brandywine.

Christina Phillips: Oh, yeah. Yeah. And actually, whiskey was more popular as a spirit back then. But the Washingtons really loved brandy. And the recipe specifically called for ten quarts of an old French brandy, and then the juice of 20 pounds of ripe morello sour cherries and white sugar to your taste, as well as cinnamon, cloves, nutmeg and ground fermented cherry pits.

Rebecca Lavoie: That sounds great. Wow.

Christina Phillips: Yeah. How many people that's for?

Rebecca Lavoie: One!

Christina Phillips: I'm not sure.

Hannah McCarthy: I do think it's kind of cute that they call it bounce. Bounce feels like a more modern word that you would apply to food. Like to name a beverage. The bounce. What is it, the 60s. You know, like that's. Yeah. 1960s.

Nick Capodice: Everybody doing the cherry bounce.

Christina Phillips: I wish I had looked up the etymology of the word. I didn't look it up. Okay. So here is your next question. Cherry pits, along with the pits and seeds of other common fruits, are known to contain a compound called Amygdalin, which can turn into what? Poisonous substance in the body.

Nick Capodice: Arsenic?

Hannah McCarthy: No.

Hannah McCarthy: Cyanide.

Christina Phillips: Yes.

Rebecca Lavoie: Nice.

Christina Phillips: I was gonna say, Nick. You can guess again if you're.

Nick Capodice: No. I knew the second I said it. It's also like peach pits. When I used to eat them as a kid, I.

Hannah McCarthy: That's what I was thinking, too. The peach pits can be really dangerous because of cyanide.

Christina Phillips: The key here is that a lot of people think that they've been poisoned because they've eaten the stone of many stone fruits. Like if you eat a cherry pit and you crunch on it, it will release amygdalin, which is the compound that when it gets into your body, your body breaks it down and turns it into cyanide. But if you swallow a cherry pit whole, it just goes through.

Rebecca Lavoie: It just goes through you.

Christina Phillips: Yeah. And if you ferment the cherries or you cook them, that removes - that inactivates the amygdalin.

Nick Capodice: No cyanide in that cherry bounce.

Rebecca Lavoie: Amazing.

Christina Phillips: Yeah. Also, this is one of the more common calls that they get at the poison control center is for people who think that they or their children are going to be poisoned by cyanide because they just, like, swallow swallowed the pit of something whole.

Hannah McCarthy: Second only to is a watermelon gonna grow in my belly.

Christina Phillips: Yeah, exactly.

Christina Phillips: Now we are moving on to a cozier but still somewhat risky drink. So here's your next question. Several sources mentioned that this president, former secretary of State, and founding father from Virginia, loved a cocktail known as a yard of flannel.

Rebecca Lavoie: Thomas Jefferson.

Christina Phillips: No.

Nick Capodice: That's what I was gonna say.

Hannah McCarthy: No. Andrew Jackson.

Christina Phillips: Mhm.

Nick Capodice: 11 presidents were secretary of state.

Christina Phillips: Founding father, former secretary of state and from Virginia.

Hannah McCarthy: They were all from Virginia.

Rebecca Lavoie: I know right? Yeah.

Christina Phillips: Madison.

Hannah McCarthy: Ah.

Christina Phillips: Okay, so now I need you to all. I gave you all a piece of paper and a pen for this one. I'm going to give you 10s to write down three ingredients you think might be in a yard of flannel. Don't start yet. You'll get a point for each correct guess, even if multiple people guess the same thing and your timer starts now. Stop. Rebecca, I want to start with you.

Rebecca Lavoie: Mine is so dumb.

Christina Phillips: Give me your ingredients.

Rebecca Lavoie: Whiskey, rum and cider.

Hannah McCarthy: Mhm.

Christina Phillips: All right. You got rum? No, none of the other ones. So rum? Yes. You get a point. All right. Nick.

Nick Capodice: I wrote creme de menthe, creme de cacao, gin and vodka.

Christina Phillips: I'm sorry to say you got zero.

Hannah McCarthy: I wrote whiskey, apples and cloves.

Christina Phillips: Oh, that was so close. But you also got zero. Yeah.

Hannah McCarthy: So in a way, it wasn't close at all.

Christina Phillips: So you had, like, the spices. You were getting there.

Rebecca Lavoie: I just covered my bases with old timey liquors. I was just like, I'm not going to guess any.

Nick Capodice: Rum and shrub.

Christina Phillips: Nick went for four things that never should be combined together.

Nick Capodice: I would have creme de menthe with gin.

Hannah McCarthy: Oh, dude. Creme de mel.

Christina Phillips: All right, so here are the ingredients of a yard of flannel, which is not the same thing as a flannel shirt, which is also another cocktail that's more common nowadays. This is specifically the yard of flannel ale, eggs, sugar, nutmeg, ginger and rum or brandy.

Hannah McCarthy: Ooh.

Christina Phillips: So this is sort of like an old, gross version of an eggnog.

Hannah McCarthy: Honestly, I think without the ale, I would like it. But maybe the ale lends it some effervescence.

Rebecca Lavoie: Maybe the ale makes it so you don't get poisoned.

Hannah McCarthy: Maybe that. Yeah.

Christina Phillips: Speaking of eggs. Cooking eggs to at least 160°F before consuming them destroys this bacteria, which causes an estimated 26,000 hospitalizations and 420 deaths in the US a year.

Rebecca Lavoie: Salmonella?

Christina Phillips: Yes, it is salmonella. Okay, we're gonna give it to Rebecca.

Hannah McCarthy: The thing that I think I have three times a week.

Rebecca Lavoie: This is what happens when you have a paranoid Italian mother. You know, all the poisons, all the ways that your food could kill you. You're gonna get trichinosis.

Christina Phillips: And on that note, we have reached the end of our drinks course. Hopefully still alive.

Hannah McCarthy: It's so good.

Nick Capodice: Okay.

Hannah McCarthy: All right.

Christina Phillips: And the score is Hannah has one, Nick has one, and Rebecca has two.

Rebecca Lavoie: Despite knowing none of the presidents.

Christina Phillips: We are moving on to our second course, which is appetizers. So our next question will be a first to guess style question. I'm going to read facts about this food and the first person who correctly guesses it gets the point. Clue number one the Sherwin-Williams paint company color known as this Food white is described in the following way. Float into any room painted with this creamy white. It's soft green beige undertone makes this hue both stylish and calming.

Hannah McCarthy: Sorbet.

Christina Phillips: No.

Nick Capodice: I have one. Yeah. Potato.

Christina Phillips: No.

Christina Phillips: The largest of this food ever found was described by NPR as the size of a man's shoe. It was found in Denmark.

Rebecca Lavoie: Truffle?

Hannah McCarthy: Nope.

Christina Phillips: It was found in Denmark in 2014. Next clue. It is not recommended that you consume more than a dozen of this food in one day.

Rebecca Lavoie: Oysters?

Christina Phillips: Yes. Yeah.

Hannah McCarthy: Yes. Wait.

Nick Capodice: Who doesn't recommend a dozen oysters in a day?

Christina Phillips: I feel like a lot of, like health websites recommend it, like collect.

Rebecca Lavoie: All the filters. I mean, I can eat 12 dozen of them.

Nick Capodice: I had I had five dozen in one day.

Christina Phillips: One day.

Rebecca Lavoie: Yeah.

Christina Phillips: Well, you and Thomas Jefferson, who was rumored to have eaten more than 50 in 1 night while traveling to Amsterdam.

Rebecca Lavoie: No problem. For me.

Christina Phillips: The other facts I have are that humans are considered to be one of the greatest predators of this food.

Rebecca Lavoie: Which makes sense because we are the only ones who can get to get into it. You ever tried to open an oyster?

Christina Phillips: And even so, it's a relatively common food to be allergic to. I am allergic to oysters, and I also find them disgusting. So I'm like so baffled by this delicacy, which actually is not. It's sort of seen as a delicacy now. It was extremely, extremely common in the 18th and 19th century because they were everywhere, especially on the East coast. Our next questions are going to be about oysters.

Nick Capodice: Hurrah!

Rebecca Lavoie: Yeah!

Christina Phillips: Woo hoo! Who doesn't like oysters here? I knew you wouldn't.

Rebecca Lavoie: Nick, I know what we're doing for our next after-work activity.

Nick Capodice: Yep.

Hannah McCarthy: Gulp. A chewy salt water. Who wouldn't want that sometimes? Sorry. I know the rest of the people on earth love them.

Nick Capodice: No, no, you're in the majority, I think.

Hannah McCarthy: Mm.

Christina Phillips: Rebecca, this question is for you. Hmm. This river on the East Coast, once home to the largest supplier of oysters in the world, shares its name with a fictional university and a long running crime television series. Name the River.

Rebecca Lavoie: Hudson! Where the bad guys go to school.

Christina Phillips: Yes, the Hudson River. Also, the Hudson University of Law and Order and Law and Order SVU. Right.

Rebecca Lavoie: And other television shows. For instance, the governor of Montana in Yellowstone had a degree from Hudson on her wall. Wow. Interesting. It's a whole television trope.

Christina Phillips: Yeah, it's become like an Easter egg in other TV shows.

Nick Capodice: Yeah, I know that Henry Hudson, when he landed in New York, he reached and he lifted an oyster the size of a dinner plate.

Christina Phillips: Wow. Oh my goodness.

Nick Capodice: It's like a thing that happened.

Christina Phillips: Question number eight. This is for Hannah. For the low, low price of $425, you can purchase an oyster shucking knife described as, quote, unapologetically handsome, with a, quote, old world looking blade and bi color, bone and horn handle from this website, created and curated by an A-list actress who named her daughter after a fruit featured in the 1961 Harry and David Fruit of the Month Club.

Hannah McCarthy: That would be Goop.

Christina Phillips: Yes.

Nick Capodice: Yeah. What's the daughter? Fruit.

Hannah McCarthy: Apple.

Nick Capodice: Oh, I didn't know Gwyneth Paltrow.

Hannah McCarthy: Famously, everyone was like, how dare you? And now everyone's like, that's the simplest name we've heard in three decades.

Christina Phillips: It has actual letters of the alphabet in it. So, Nick, this question is for you. This bay, the largest estuary in the contiguous United States, was the location of a series of conflicts between pirates and river workers starting in 1865 and continuing for almost a century, known as the Oyster Wars.

Nick Capodice: Give me a second. Pirates. Did you say pirates and river workers? Yeah, and it's a bay. Yeah. I'm gonna ask one question, cause I'm having a tough time here. Does it have the word bay in it?

Christina Phillips: Yes it does. Do you want.

Hannah McCarthy: Me to give you one more hint?

Nick Capodice: I'm gonna do one. I'm gonna do. I'm gonna throw one out. I'm gonna say Chesapeake Bay. It is the Chesapeake Bay.

Hannah McCarthy: Yeah.

Nick Capodice: Only Bay I know.

Christina Phillips: Yeah. So what's funny about this is that once the New York harbor started to be polluted and the Hudson River was no longer a great place to get oysters, all those people started trickling down to the Chesapeake Bay and Maryland. And then later, Virginia tried to outlaw anyone fishing for oysters or harvesting oysters, whatever it's called, off of Chesapeake Bay. And then it led to a bunch of pirate conflicts that lasted almost a century. So. Wow.

Rebecca Lavoie: Incredible. Yeah.

Nick Capodice: Well, you said oysters are tremendous river cleaners, and they used a ton of oysters to clean the Hudson. Yep. And what happened is the water got so clean that all the worms which had been dead from the pollution, ate all the piers and all the wooden piers just collapsed into the Hudson because the water was clean again.

Hannah McCarthy: Yeah, you always regret cleaning things up. All those sharks. You know, everyone's like, why did we make the water habitable again?

Christina Phillips: We're done with oysters.

Rebecca Lavoie: All right.

Christina Phillips: We're moving on to eggs.

Rebecca Lavoie: Ooh.

Christina Phillips: Because I would be remiss if I didn't talk about the absolutely strange and chaotic activity that is the white House Easter egg roll. Have any of you ever been.

Hannah McCarthy: Not to the white House? Have you? No. Oh, you said it like, don't we?

Christina Phillips: I wish. I can't.

Nick Capodice: Go every year, but I try.

Rebecca Lavoie: Every time I see it on TV. And it's like all these hundreds of kids. And I was like, whose kids are those? And they're just like, going to hang out with the president.

Christina Phillips: I know the answer to that. It's a lottery. You have to apply to a lottery to get in with your kids.

Hannah McCarthy: Well, that's way cooler than just like the child of a diplomat.

Christina Phillips: Yeah, it's a lottery system. So, families, I was reading on Reddit, there's like, all these strategies, and people have applied many, many years to get into this lottery system.

Nick Capodice: You're going to tell us, but is it where you like, you roll an egg or do you just lie on the ground and roll around yourself?

Christina Phillips: So egg roll is literally you have a spoon and you roll an egg across.

Rebecca Lavoie: Like a race.

Christina Phillips: Yeah, it's a race.

Hannah McCarthy: Oh, yes. Actually I've seen I've seen...

Nick Capodice: It's like a boy with a stick, but instead it's.

Hannah McCarthy: Yeah, yeah. An egg. Yeah.

Christina Phillips: Yeah.

Nick Capodice: So stick in the hoop. The little urchin boy running around.

Christina Phillips: I had to like, type into Google. I was like, why do we roll eggs? Does anyone want to take a guess at the Christian centric origin of this tradition?

Nick Capodice: Easter. Easter rebirth?

Christina Phillips: Sort of. Okay.

Nick Capodice: So resurrection, what is the egg.

Hannah McCarthy: But the roll? You're talking about the actual rolling away the stone. Are you serious?

Christina Phillips: Oh my God, I wish I had your camera on your face, because the way you looked at me, like I know what it is.

Rebecca Lavoie: That's wild.

Nick Capodice: Three days.

Christina Phillips: Yeah. So the simplest explanation is that the egg symbolizes the stone rolling away from the entrance to the tomb where Jesus was buried during the resurrection.

Nick Capodice: Little did we know. A little boy with a spoon that got our Lord and Savior out of the cave.

Rebecca Lavoie: That is some serious pagan washing going on with that tradition.

Hannah McCarthy: That's wild. Wow.

Christina Phillips: So I'm going to ask you each a couple of questions about the Easter egg roll. And Nick, this question is for you.

Nick Capodice: All right. Here we.

Christina Phillips: Go. So the white House egg roll involves using a wooden spoon traditionally to push a hard boiled egg across the grass. However, one recent president chose plastic spoons instead. I'm talking like the plastic spoons that you get in a set when you eat at a picnic. Like the small ones. Not like a nice plastic ladle that you'd use on nonstick cookware.

Nick Capodice: Put in your kids lunch?

Christina Phillips: Yes, yes. So was it George W Bush, Barack Obama, Donald Trump or Joe Biden.

Nick Capodice: Plastic spoon.

Christina Phillips: Mhm.

Nick Capodice: I'm gonna say Donald Trump.

Christina Phillips: No, it was George Bush.

Hannah McCarthy: Oh, man. Yeah. I feel like that was the last time you could get away with using plastic in public was George Bush. That's over now. Let's all pretend we never did it.

Christina Phillips: It was George W Bush.

Nick Capodice: Did he just forget the wooden spoon? Oh, geez.

Christina Phillips: Well it happened several years in a row because I went back and I looked at some of the photos from the white House Easter egg rolls and like, at least three of his were like these small spoons, these plastic spoons that kids were trying to roll with. And then the other presidents had, like these nice wooden spoons, you know, some of them were slotted, some of them were just like a regular old, like, long wooden cooking spoon. So, yeah. Plastic spoons. If you went during George W Bush's presidency. Rebecca. Yeah. The next egg related question is for you. Okay. This is multiple choice. Oh, first lady Grace Coolidge brought Rebecca her pet. What, to the annual Easter egg roll in 1927. 27. Was it Rebecca the parrot? Rebecca the pig or Rebecca the raccoon?

Rebecca Lavoie: It was a raccoon,

Christina Phillips: Yes.

Rebecca Lavoie: Yeah I know. Yeah. The Coolidges had a lot of animals. They were super into animals. They had a farm. They made cheese.

Hannah McCarthy: Like a cow. Wouldn't it have been funny if it was a mongoose? Because they eat eggs?

Christina Phillips: Yeah, well, actually, one of Rebecca, the raccoon's favorite foods was an egg. So I'm imagining it was, like, the most exciting time. But the story of how Rebecca became a pet of the Coolidges is that there was for years, this guy known as the Poultry King from Rhode Island, who supplied the turkey at Thanksgiving to the presidents. And then he died. And I think there was sort of a power vacuum of like, who gives the president turkeys? And so other people would send other things to be like, well, maybe now the tuition will be, you know, quail or chicken. And so one year Coolidge received a raccoon and he was like, I don't want to eat this. And then First Lady Grace Coolidge was like, well, now she will be my pet.

Nick Capodice: Oh, wow. That's a nice little tale.

Christina Phillips: Hannah. Yes. This question is for you. Okay. There is something called the American Egg Board. Are you familiar with this?

Hannah McCarthy: I am now.

Christina Phillips: It is a commodity checkoff program, so it's like, sort of like a lobby. But it's promotes one type of product. It's not supposed to be.

Hannah McCarthy: Promoting the Cotton Board or like. Yeah, wear cotton. I always thought that was so interesting.

Christina Phillips: Yeah.

Nick Capodice: The touch, the feel of cotton.

Rebecca Lavoie: It's beef. It's what's for dinner.

Hannah McCarthy: Yeah, well.

Christina Phillips: The American Egg board had the incredible edible egg.

Archive: All you do is heat and eat eggs. Don't run out. The incredible edible egg.

Christina Phillips: And they were also in charge of overseeing the donation of over 30,000 hard boiled, dyed eggs to the white House egg roll every year. So they got into a little bit of controversy when, in the early 20 tens, the American Egg Board launched a secret two year investigative and marketing campaign against a company making a vegan version of what condiment that traditionally contains egg yolk mayonnaise.

Hannah McCarthy: Yes.

Nick Capodice: Wow.

Hannah McCarthy: So we've launched an investigation. How dare they? Yeah, or like, they can't call it mayonnaise. Maybe.

Christina Phillips: Well, yeah. So they they investigated. And then they also sent out a marketing campaigns about how great mayonnaise is with eggs. And they also were like, you can't call it mayo because it's not mayo. And this was a company called Beyond Eggs and it was just mayo. That's the name of the mayonnaise.

Hannah McCarthy: Milk. Big milk is like you can't call, you know any nut milk. Milk. Mhm. You spell it with a Y.

Nick Capodice: Really?

Hannah McCarthy: Really.

Nick Capodice: Oat milk is oat milk.

Hannah McCarthy: THere's a whole thing opposed to any company making nondairy milk being allowed to call it milk with an I.

Christina Phillips: Well, apparently the Department of Agriculture, which is supposed to oversee this board and how they're spending money. They launched an investigation against them, and they found out that there were email exchanges putting hits out on the guy who invented just mayo. Wow. And they were like, oh, no, no, we were just kidding. It was just a joke, a funny joke.

Hannah McCarthy: Wow. Yeah.

Christina Phillips: We have reached the end of the appetizer course, and our scores are as follows. Hannah, you have five. Nick, you have two. Yeah. And Rebecca, you have five. Wow.

Hannah McCarthy: Yikes.

Nick Capodice: Is it going to be possible for me to make up this deficit?

Christina Phillips: Yes, I believe so. But before that, and before we get to our main course, we are going to take a quick break.

Christina Phillips: All right, we're back. This is Civics 101 we are doing holiday meal trivia at the white House and we have reached our third course, which is our main course. So I had this idea to talk about different ridiculous meat courses served during the holidays, and then quickly found that there is nothing like wild and exciting about meat courses during the holidays. It's usually like ham or turkey. So I decided I would go with something else that's a staple of dinner at the white House. And this is the humble potato. So we are going to trace the potato through three presidencies. And I will ask each of you questions individually, starting with you, Rebecca. All right. In a celebration for Saint Patrick's Day, a dinner hosted by this president and his first lady, one of the things on the menu was new potatoes with sour cream and chives. Invited guests included Faye Dunaway, who had recently starred in The Movie Network and would next year go on to star in Mommie Dearest with actress Joan Crawford. Who is that? President?

Rebecca Lavoie: Um. Mommie dearest. I know, I know, it came out like in the 70s. Late 70s, I think. Um, I am going to say Jimmy Carter.

Christina Phillips: It is Jimmy Carter. Yes. Yeah.

Nick Capodice: Well done.

Christina Phillips: And my other clues were this president is the longest lived president in U.S. history, and also the first to be born in a hospital. Huh? Go, you. Jimmy Carter. So this meal was called America's Irish Experience. And it also included creamed oysters and a pastry shell, sliced sirloin of beef and Irish soda bread. My next question. This is for anyone. What are new potatoes?

Hannah McCarthy: I used to know my father would be so ashamed.

Nick Capodice: Oh, did you harvest them earlier? And is that why they're.

Christina Phillips: That's exactly right. They are new potatoes because they have a thinner skin, smaller size, and are moister and have a sweeter flavor. So you got that one, Nick?

Nick Capodice: Nicely done. Well, that was generous of both of you to let me have it.

Hannah McCarthy: You know, you had it.

Christina Phillips: All right, Hannah, next question is for you.

Hannah McCarthy: Okay.

Christina Phillips: Jimmy Carter's home state is Georgia, which is where this fast food restaurant known for, among other things, their waffle fries, was founded.

Hannah McCarthy: Uh, well, I know a place that serves waffle fries. That would be chick fil A.

Christina Phillips: It is chick fil A.

Nick Capodice: Okay. All right.

Christina Phillips: Yes. So chick fil A didn't actually introduce the waffle fries until 1985. Which brings us to Reagan. The next president in our little history of potatoes and three presidencies. Now, on Christmas Day in 1981, Reagan wrote a note in his diary that said the following. Earlier, a letter arrived from Brezhnev. It seems we're intervening in Poland, and he's upset about it. I suggested that in our reply, we remind him that we are only suggesting the Polish people be allowed to have a voice in the kind of government they want. Now, of course, Brezhnev was the leader of the Soviet Union during this time, and the US had released a number of pro-democratic opposition messages in support of the Polish people. Reagan and Brezhnev never met in person, but they exchanged a bunch of letters that are all kind of interesting and funny. Nick, this question is for you.

Nick Capodice: Sure.

Christina Phillips: Reagan, who also made an effort to cultivate relationships with the Polish American community, proclaimed October National Polish American Heritage Month. Another person Reagan exchanged letters with for a number of years was this Polish and Italian American pianist, singer and actor who, at the height of his fame, was said to be the highest paid entertainer in the world.

Nick Capodice: Wow. This is fascinating. Polish singer and pianist.

Rebecca Lavoie: I think you said Polish, Italian.

Christina Phillips: Polish and Italian.

Nick Capodice: Polish and Italian. American. So this person was born in the United States, but he's of Polish and Italian heritage.

Christina Phillips: Mhm.

Christina Phillips: He was played by Matt Damon in a movie on HBO a while ago.

Nick Capodice: Wow. Do you guys know who this is?

Rebecca Lavoie: And I have a I have a feeling I do.

Nick Capodice: Is there one more clue?

Christina Phillips: One more clue?

Hannah McCarthy: I think I know who it is.

Christina Phillips: Uh, I don't know if this helps, but my other clue is that he gave the Reagans a chocolate piano one time.

Nick Capodice: Oh, yeah. Liberace?

Hannah McCarthy: Yes, yes. Nicely done.

Nick Capodice: Good job, you guys, for knowing that before.

Rebecca Lavoie: Nicely done.

Hannah McCarthy: My. Like most of my young life, I thought Liberace was a composer from, like, the 18th century.

Christina Phillips: I wonder if he did that on purpose.

Hannah McCarthy: Well, now I know. Though we.

Nick Capodice: Though he hoved his mother.

Hannah McCarthy: He really did. Yeah.

Christina Phillips: So we're still in the Reagan era. All right. This question is for anyone. Reagan was invited to the American Polish Festival in Doylestown, Pennsylvania, in 1984, and a statue of him and Nancy. Doing what? Stands in Doylestown today.

Rebecca Lavoie: The mashed potato. The dance.

Christina Phillips: No, no. Oh, I wish it was. Wouldn't that have been great?

Hannah McCarthy: Mashing potatoes together?

Christina Phillips: Nope.

Christina Phillips: Eating potatoes.

Hannah McCarthy: Oh, just eating. Eating potatoes.

Nick Capodice: That's it. It's just eating a potato.

Christina Phillips: Eating a potato pancake.

Hannah McCarthy: Okay, so specifically eating a potato pancake.

Christina Phillips: But what's funny is that the sculptor did not want to put the potato pancake in the statue because he thought it would block Raegan's face. So it's just them sitting at a table, and Reagan is holding up his fingers as though he's about to eat a potato pancake. But there's no potato pancake there.

Hannah McCarthy: There's no potato pancake there. It's the absence of the pancake that calls you to put it in there with your mind. Right? The potato pancake.

Nick Capodice: That he did.

Rebecca Lavoie: Theater of the mind.

Nick Capodice: It's the notes they don't sing. Ceci n'est pas une pomme de terre. Pancake.

Christina Phillips: We're moving on to Bush, H.W. Bush, to be specific. This is our third president in this presidential potato history. President George H.W. Bush apparently loved potatoes and couldn't get the quality potatoes he wanted at the white House, to the point where the first lady, Barbara Bush, apparently complained to the governor of Idaho at the time, Cecil Andrus, and he coordinated with the white House chefs to send a bunch of Russet Burbank potatoes for the president to enjoy. Idaho, of course, is the largest producer of potatoes in the United States. For this question, I'm going to go around and ask each of you to name one of the four other states that round out the top five in potato production. Rebecca, you waved your hands, so you first.

Hannah McCarthy: Maine. No. Oh.

Christina Phillips: Nick.

Nick Capodice: California. No. Oh, it's so big.

Hannah McCarthy: Uh. Uh. Ohio.

Christina Phillips: No.

Rebecca Lavoie: New Jersey.

Christina Phillips: Nope.

Nick Capodice: Washington state.

Christina Phillips: Yes.

Hannah McCarthy: Oh, nice. Yeah, I can, like, see it on a bag of potatoes.

Rebecca Lavoie: That's Idaho.

Hannah McCarthy: No no no no no. It's not Idaho. It's not Idaho. Vermont?

Christina Phillips: No. Wisconsin. Colorado and North Dakota. Oh, Vermont was so far off.

Hannah McCarthy: I'm sorry. Rebecca thought it was me, and I was like, maybe it's close to me.

Nick Capodice: Grew five potatoes last year and the Green Mountain State.

Christina Phillips: Okay. And finally, what potato related gaffe did Bush's vice president Dan Quayle make in 1992?

Rebecca Lavoie: Spelled it with a e.

Nick Capodice: Misspelled it.

Christina Phillips: I think it's Rebecca. What?

Rebecca Lavoie: I was specific, I said, spelled it with an e.

Nick Capodice: I said misspelled.

Rebecca Lavoie: Okay.

Nick Capodice: I didn't know the answer. Technically, he added the e.

Rebecca Lavoie: That's right. Yes.

Christina Phillips: So he was at a spelling bee, and he told a student that the student had spelled potato wrong and corrected him by saying it was spelled p o t a t o e.

Hannah McCarthy: Oh, dear.

Nick Capodice: He drew it on a chalkboard. He went up and he said, no, you're missing a letter. And he drew.

Hannah McCarthy: Oh, that's even worse.

Nick Capodice: Oh, that's really bad. Isn't it? Our state vegetable in New Hampshire. I'm potato. The white potato.

Christina Phillips: Our state food is boiled dinner.

Christina Phillips: Yeah.

Rebecca Lavoie: Wow. Don't get me started on that.

Christina Phillips: Hannah, you have six points. Nick, you have six points. Nice. You have caught up, Rebecca. You have seven points.

Rebecca Lavoie: This is unprecedented.

Speaker6: No.

Christina Phillips: Heading into a very close final round, we have reached our fourth and final course, which is dessert. This is my favorite part of the meal. And also my favorite part of every trivia I write for Civics 101. This or that?

Hannah McCarthy: Are we ready? Yeah. Yeah.

Christina Phillips: Nick looks thrilled.

Nick Capodice: I love this and that.

Christina Phillips: This or that.

Hannah McCarthy: Say it.

Nick Capodice: Isn't a thing, is it? I don't even know what it is.

Rebecca Lavoie: This or that. You can get with this, or you can get with that.

Hannah McCarthy: Exactly.

Christina Phillips: Over the years, many first families have had desserts named in their honor. They may be recipes that the first family became known for enjoying. Or maybe they had a recipe for or it reflected the political attitude of the time. So a dessert that evokes a presidency. I have examples of both, but given that it is the holiday season, I would be remiss if I didn't sneak in one of my favorite seasonal joys, which is the absurdity of perfume marketing. And I know that fragrance is a year round business, and it's a very complicated and historically important one, but for some reason, the marketing around perfumes in the holiday season always reminds me of how weird our preferences for what we want to smell like are, and how we try to sell those smells, especially when you can actually sniff it. So I'm going to read you a list of ingredients, you need to decide if the things I list for this or that describe the ingredients of a presidential dessert, or the fragrance notes of a perfume.

Rebecca Lavoie: Okay.

Christina Phillips: And I will go around the room.

Hannah McCarthy: Okay.

Christina Phillips: Hannah, this one is for you. Vanilla. Pineapple. Apricot rice.

Hannah McCarthy: I'm gonna have to go with that as a dessert. Yes. Nice.

Christina Phillips: It is a dessert.

Nick Capodice: Some sort of rice pudding.

Rebecca Lavoie: It's the Condoleezza Rice pudding.

Hannah McCarthy: Ooh.

Christina Phillips: It's actually. The name is a little lamer than that. It's Jefferson's apricots and rice.

Hannah McCarthy: Plus pineapple in parentheses. Pineapple, apricots and rice.

Rebecca Lavoie: You can say a lot about Jefferson, but you can't say that he's good at naming desserts.

Christina Phillips: Actually. So what's funny is it wasn't named by him. It was actually created long after his death. But it was named by a guy who was sort of famous for putting certain foods on the map by naming them after people. So this was created by Chef Charles Ranhofer, who once worked at New York City's famed Delmonico's restaurant, which is like a huge legacy in the United States. It's been around since 1837.

Nick Capodice: First restaurant in New York City.

Christina Phillips: And Ranhofer is credited with putting the dessert baked Alaska on the map. Yep, I've always wondered.

Hannah McCarthy: I thought that was going to be one of the questions.

Christina Phillips: Yeah, well, actually, so I do have a bunch of facts about Baked Alaska if you want them. Yeah. So it was originally called the Alaska. Florida people thought that was because it was like hot and cold. Do you guys know what a baked Alaska is?

Rebecca Lavoie: It's like a basically a fried ice cream situation. Like ice cream inside a thing.

Hannah McCarthy: They light it on fire.

Christina Phillips: Yeah, yeah. So it's ice cream. It's like an ice cream cake. And then it's frozen super solid, and then it's covered in meringue, which is egg whites, and then it's blowtorch to give it.

Hannah McCarthy: A burnt so you don't light it on fire. I mean, you.

Rebecca Lavoie: Cherries Jubilee, Jubilee, Bananas Foster.

Hannah McCarthy: That's what I'm thinking. Yeah, but I want some tableside flames. Yeah. Me too. I never had that in my youth.

Christina Phillips: Tableside. Like mini blowtorch work?

Hannah McCarthy: No.

Nick Capodice: I want something to just light the sky.

Christina Phillips: So the recipe can be traced back to a thing called the Norwegian omelet, which was created at the 1867 Paris World's Fair as a way to show off the discovery of low thermal conductivity of eggs. Part of the key of the baked Alaska is you can heat up the eggs, and they still retain their shape. And the guy who discovered that Benjamin Thompson actually lived in Bavaria, but the chef who created the dessert thought Bavaria was in Norway instead of Germany. So that's why it's called the Norwegian omelet. And by the way, Thompson, who was born in the Massachusetts colony and eventually married a woman whose family owned most of what is now Concord, New Hampshire. He was a loyalist during the Revolutionary War. And so he went to Europe, and he was living and working in Bavaria, where he helped cultivate potato farming there.

Hannah McCarthy: Nice.

Wow. Full circle. Nick.

Christina Phillips: This one is for you. Is it an ingredient to a dessert or a fragrance? Molasses. Ginger. Cinnamon. Sugar. Beef drippings.

Nick Capodice: Mhm. Now, I would eat the heck out of this. And I'm trying to think of who would want beef drippings in a scent besides me.

Hannah McCarthy: I didn't say.

Christina Phillips: It was perfumes. It could be colognes.

Hannah McCarthy: It could be a Cologne.

Nick Capodice: Right. Mhm. Just because the beef drippings and all those delicious things and like a big dessert with some beef in it, I'm just going to say it's a recipe.

Christina Phillips: It is a recipe. Yes.

Nick Capodice: Kevin what is it. I want to eat it.

Christina Phillips: This is Dolley Madison's gingerbread.

Nick Capodice: She would use some beef drippings in a gingerbread.

Christina Phillips: Rebecca. Mm. Cinnamon. Tonka bean. Vanilla praline.

Rebecca Lavoie: Praline.

Christina Phillips: Praline.

Rebecca Lavoie: Praline. Is that how you say it?

Christina Phillips: Yeah, that's how it's said.

Nick Capodice: I wondered how that was going to get.

Hannah McCarthy: I thought it was praline praline. I also said raccoon. Everyone in this room says raccoon.

Rebecca Lavoie: I say raccoon.

Nick Capodice: I believe in New Orleans, they say praline.

Rebecca Lavoie: I think it's like pecan praline. I don't know, but I say praline praline.

Christina Phillips: Huh? Cinnamon.

Rebecca Lavoie: Huh?

Christina Phillips: Tonka bean and vanilla.

Rebecca Lavoie: Well, I'm gonna just throw this out there. A praline is like a made up thing that, like, you make. So I don't think that that's a perfume smell. So I'm going with dessert.

Christina Phillips: It's a perfume. Oh.

Hannah McCarthy: The tonka bean was a dead giveaway. Tonka bean? Tonka is only in perfume. I think.

Christina Phillips: You also. So the praline is like a baked food, so it almost makes more sense that it would be described as a perfume note.

Rebecca Lavoie: I don't I don't agree.

Hannah McCarthy: Yeah. Sort of a caramelly.

Rebecca Lavoie: Textural note for ice cream is what it is.

Christina Phillips: Exactly, exactly. No, I disagree with you.

Nick Capodice: If we do a call out to ask listeners if it's pronounced praline or praline, I'm gonna bet you guys five bucks. Linda. Monk, are you listening? Tell me how we messed up properly, please.

Christina Phillips: So this is a perfume called Angel's Share by Kilian. And here are the scent notes. Opening with cognac oil upon a bed of oak. Absolute, cinnamon essence and Tonka bean. Absolute. The scents long lasting notes of sandalwood, praline and vanilla. Make for a delicious finish, a rare concoction only angels should experience.

Nick Capodice: Okay, well, the Angel's Share is a booze making term. It's for the whiskey that evaporates from the barrel. And then. So the angels drink it.

Christina Phillips: Hannah? Yes. Pistachio. Cardamom. Peanut. Saffron.

Hannah McCarthy: I was with you until you said peanuts. Mm. Peanut?

Christina Phillips: Yeah.

Rebecca Lavoie: Perfume known as Jif.

Hannah McCarthy: Yeah. I'm gonna say that's a food.

Christina Phillips: It's a perfume.

Hannah McCarthy: Oh a perfume.

Nick Capodice: Who wants to smell like a peanut?

Hannah McCarthy: All right.

Christina Phillips: Luscious Perfume by French Avenue opens with a vibrant and captivating fusion of bergamot, pistachio and cardamom. The creamy, subtly sweet aroma of peanut adds an enticing gourmand element. Nick. Mm. Salt. Caramel.

Nick Capodice: All right.

Christina Phillips: Popcorn. Vanilla.

Nick Capodice: This is hard. I am. I just. No one would want to smell like popcorn. I'm gonna say a food because I don't want anyone smelling like popcorn.

Christina Phillips: Okay, so if you had to describe what food this would be. Salt, caramel, popcorn and vanilla.

Nick Capodice: Like a like an old fashioned caramel corn kind of dish. Like you'd get for Christmas.

Rebecca Lavoie: Is it a popcorn ball.

Christina Phillips: Or it's House of Ode's what about pop! Unveils a crunchy salted popcorn that is then enveloped in delicious caramel. This is the magic of an encounter rendered sublime by a woody signature, which bestows an unprecedented persistence upon the fragrance.

Rebecca Lavoie: God darn it!

Hannah McCarthy: An unprecedented persistence.

Rebecca Lavoie: Nevertheless.

Nick Capodice: Yeah. Don't want it there. And it just keeps showing up.

Hannah McCarthy: Wow.

Christina Phillips: All right. Rebecca? Yeah. Pineapple. Pistachio. Marshmallow. Vanilla.

Rebecca Lavoie: I'll tell you what that sounds like. It sounds like ambrosia salad. So I'm going to say it's a dessert.

Christina Phillips: Well.

Hannah McCarthy: Did you make it?

Hannah McCarthy: I haven't had this since my grandmother was with us.

Christina Phillips: With us? I have brought us all ambrosia. Ambrosia salad, aka Watergate salad.

Rebecca Lavoie: I love it. Wait, this.

Hannah McCarthy: Is what the Watergate.

Rebecca Lavoie: Well, Watergate salad is the green version of this.

Christina Phillips: Yes.

Rebecca Lavoie: The Watergate salad has the has the pistachio pudding in it. You are from.

Hannah McCarthy: Normal, so that makes sense.

Rebecca Lavoie: And ambrosia salad does not have the green, but it is one of my favorite holiday foods. People will say it's so gross, but I love it.

Hannah McCarthy: No, I love it too. It's so nostalgic for me. Christina, thank you.

Christina Phillips: So here's the thing. So first, yes, this is ambrosia salad, but it's pistachio pudding. Marshmallows, pineapple. I got the wrong pineapple. It's like shredded pineapple. So okay. It has the texture of hair. So. I'm sorry.

Rebecca Lavoie: It's still real good. All I taste is a very marshmallow forward.

Hannah McCarthy: Yeah. Oh my God. Wow, that. Whoa! Oh, wow.

Christina Phillips: So while you enjoy, do you want to hear the history of the Watergate salad, please?

Hannah McCarthy: Yeah. Okay.

Christina Phillips: It was not prepared at the Watergate Hotel, as some people think. But it can be traced back to a woman named Christine Hatcher in the Hagerstown, Maryland. The Morning Herald in September 1974. It was getting really popular. People were calling it the Watergate salad. And some people theorize that it was a way to keep the memory of Watergate alive, since it was such a popular dessert during that time period. So it was named the Watergate salad as like a hey, don't forget about Watergate. Eat this pistachio.

Nick Capodice: Wow.

Christina Phillips: Marshmallow pudding.

Rebecca Lavoie: Is it a salad or a dessert? That's the question. Some people put mayonnaise on that. Nasty. Why? Because they do. Because people are gross. That's no offense, gross people who hear me say that.

Christina Phillips: I wonder if it would be better with just mayo.

Christina Phillips: All right, so the final score is Hannah, you have seven. Nick you have seven. Rebecca you have eight. Yes.

Hannah McCarthy: Very well done.

Rebecca Lavoie: It's like I'm like a golden retriever, I'm very food motivated.

Hannah McCarthy: What's it like at the top. Rebecca.

Christina Phillips: That brings us to the end of our holiday food at the white House. Trivia. Thank you all for being here.

Rebecca Lavoie: Especially me.

Christina Phillips: And some parting advice. Make sure to ferment your cherry pits. Cook your eggs. Don't eat more than a dozen oysters in one sitting. And of course, don't break into the Democratic National Committee headquarters to plant listening devices unless you want a pudding named after your actions.

Hannah McCarthy: Well done. Christina. That was so fun.

Nick Capodice: The perfume I wear. They don't. They don't say. You can always have maximum confidence in the original odor protection of Speed Stick deodorant.

Christina Phillips: This episode of Civics 101 was produced by me. Christina Phillips, Nick Capodice and Hannah McCarthy are our hosts. Rebecca Lavoie is our executive producer and the one who edited this episode. Music in this episode from Epidemic Sound and Civics 101 is a production of New Hampshire Public Radio, NPR. Richard Nixon ate cottage cheese with ketchup. There we go. That's my tongue twister. Um, okay.

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Made possible in part by the Corporation for Public Broadcasting.

How do tariffs work?

President-elect Donald Trump has said, "the most beautiful word in the dictionary is tariff, and it’s my favorite word." So what are they? Why might the United States raise or lower a tariff on goods from another country? How has America used tariffs throughout our history? And how might Donald Trump's proposed tariffs affect the cost of goods in the US?

Taking us through tariffs is Dr. Shannon O'Neil, senior vice president and director of studies at the Council on Foreign Relations.

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Transcript

Archival: Trump says, quote, on January 20th, as one of my many first executive orders, I will sign all necessary documents to charge Mexico and Canada a 25% tariff on all products.

Archival: When you put a tariff on, it is not that the other country gets taxed per se, it's that the cost gets pushed on to the consumer. Here in the United States. That's how it works, Christine.

Archival: We're seeing the markets already reacting. But talk to us in terms of what goods, what industries, what kind of impact it's going to [00:00:30] have on Americans.

Archival: Just about everything you touch.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today, at the behest of several listeners, including a good many social studies teachers, we are talking about tariffs. And yes, before we begin, tariffs are about money.

Hannah McCarthy: You kind of hate talking about money, don't you, Nick?

Nick Capodice: I do Hannah. I hate it, and every time I admit on this show that economics always make [00:01:00] my eyes glaze over a little bit. I get this well-intentioned email saying, well, Nick, you really should pay attention to finances. And that's absolutely true. And I should have flossed a lot more when I was a kid. That said, I now love learning about tariffs. My eyes have cleared up and I hope by the end of this some of you all are in the same boat.

Hannah McCarthy: All right, let's do it. Start at the top. What are tariffs.

Shannon O'Neil: So tariffs are basically taxes.

Nick Capodice: This is Doctor Shannon O'Neil vice president [00:01:30] at the Council of Foreign Relations and author of The Globalization Myth.

Shannon O'Neil: They're just like the taxes that you pay when you go to the grocery store or when you get your bill at a restaurant, the tax that's put on the bottom, the difference is a tariff is a tax on things that are coming from outside the country. So think of it as a sales tax, but it's for things that are imported into the United States.

Nick Capodice: I want to add here that there are also export tariffs, but those are not what we're generally referring to specifically in this news cycle. Today [00:02:00] we are talking about import tariffs.

Hannah McCarthy: Okay. And when it comes to these import tariffs do you think that you could give me a hypothetical. Like what does it actually look like.

Nick Capodice: Absolutely. Sure.

Shannon O'Neil: So for example there are terrorists that are put on what economists would call finished goods. So that is when a car comes in from Mexico or comes in from Japan, it could have a tariff on it. It could be 2%. It could be 20%.

Hannah McCarthy: Okay. I'm following here. Let's say it's a car that comes to [00:02:30] America from Japan, like a Mazda miata or something.

Nick Capodice: All right, so the Miata, the Mazda miata is created in Japan. It is sold to someone in the US, an importer, for $20,000. So if there is a 20% tariff on cars from Japan, that means instead it costs $24,000. That extra $4,000 goes right to the US government.

Hannah McCarthy: And who pays that money? Who has to actually give that 4000 to the [00:03:00] government as.

Nick Capodice: An excellent question. It's one I wondered as well. The importer. Does the company or person who buys the car from Japan to sell somewhere down the chain? That is, who pays the $4,000? It is collected by a customs official at one of our 300 plus ports. People in other countries do not pay the tariff.

Archival: We're going to have 10 to 20% tariffs on foreign countries that have been ripping us off for years. We're going to charge them [00:03:30] 10 to 20% to come in and take advantage of our country, because that's what they've been doing for nothing.

Nick Capodice: Now, president elect Donald Trump has said on numerous occasions that he will impose tariffs and make other countries pay more. But again, it is the importer, the person in the US, not in the other country, that pays the tariff. And furthermore, tariffs don't just affect someone selling stuff made in other countries. It affects a ton of stuff [00:04:00] made right here in America.

Shannon O'Neil: You also see tariffs on things that go into the making of things here in the United States. So that could be, for instance, in your local bakery, they're making chocolate chip cookies. Well, you know what. We don't grow cocoa beans here in the United States. So those cocoa beans are coming in from another country and you could have a tariff on them. We also don't grow vanilla beans. So if you have vanilla in your cookies or cinnamon in your cinnamon rolls, those two are likely coming from abroad and are going to your local bakery that mixes them [00:04:30] in and makes your favorite treat.

Hannah McCarthy: Do we currently have any tariffs on vanilla beans?

Nick Capodice: Well, Hannah, to know that we're gonna have to check the old handy dandy harmonized tariff schedule. This is the document that lists the tariff rates for every single thing that is imported into the United States. Now, to be clear, the BTS doesn't set those rates. This is just the database to get an idea of how much it will cost to import any given item. This is a thrilling 4000 page document [00:05:00] that anybody can look up, and vanilla sits right there on the page, nestled between ground pimento peppers and cinnamon. So it says there are no current tariffs on vanilla bean or crushed. And determining tariff rates is an art. It's a science. The US Customs and Border Protection website, they give the example of a wool suit. It says that somebody classifying how much it will cost to import needs to know. Quote does it have darts? [00:05:30] Did the wool come from Israel or another country that qualifies for duty free treatment for certain of its products? Where was the suit assembled? Does it have any synthetic fibers in the lining? And seriously, Hannah, anything you can imagine and it's tariffs are in that document. Handmade lace bagpipes primate meat.

Hannah McCarthy: Primate meat?

Nick Capodice: Primate meat! Primate meat has a 6.4% tariff, by the way, half as much as handmade lace. Interestingly

Hannah McCarthy: Tell me that someone [00:06:00] has made a board game about this.

Nick Capodice: How about I tell you that future tariffs might impact board game costs?

Hannah McCarthy: All right, another worry for another day. Uh, Nick, why do we have tariffs in the first place? Why would we have a high tariff on handmade lace and none on vanilla beans?

Shannon O'Neil: So there are various reasons why one would put tariffs in. One is because you want to make those things here in the United States.

Nick Capodice: You know, I picked the handmade lace [00:06:30] thing because I thought it was pretty funny. But it works. As an example, part of the reason we have that tariff is the US wants people to buy handmade lace made here in the good old US of A, and naturally that sentiment extends to things that are a little more important in our everyday life.

Shannon O'Neil: We decide, you know, we want to make semiconductor chips because we want to have that technology here and we want to have a capacity here in case other people stop selling to us. That will [00:07:00] have the chips to have laptops and iPhones and, you know, Department of Defense fighter jets and things like that. That's one reason to have them.

Nick Capodice: And to that point, Congress in 2018 set some pretty high tariffs on things like electric cars, solar cells and semiconductors made in China, specifically.

Hannah McCarthy: Because we are developing the ability to make electric vehicles here in the United States. So putting a high tariff on electric vehicles from a country that makes them for [00:07:30] a much lower cost and sells them at a much lower cost, can support the American electric car industry.

Nick Capodice: Absolutely right. And here's reason number two for tariffs. Tariffs used to be the way that we did things in the United States from the 1800s until the end of World War two. We espoused a protectionist philosophy.

Hannah McCarthy: Protectionist, I'm assuming, because we were still a fairly infant nation. We were trying [00:08:00] to get our feet under us. And when it comes to high tariffs, I'm assuming that supported our industry, right. It stopped us from relying on other countries for goods, which helped us to grow.

Nick Capodice: Exactly.

Shannon O'Neil: So tariffs were one of the things that the US government long ago used to raise money. We were a different economy then. We were a very agricultural based economy. So we sold lots of cotton and other agricultural products to more developed, more sophisticated economies in Europe. At [00:08:30] the time, we imported it from the UK. At the time, Britain, or we imported it from countries across Europe. So we wanted to protect our industries. So we put lots of tariffs on there where it would be 50 or 100% more expensive to import British made cloth in order to create a cloth industry here in the United States. That's one example. We did it too, with basic machinery. You think about all kinds of, you know, wrenches and hammers and things like that, that to they at the time were better at making iron than we were that putting [00:09:00] together, you know, various chemicals and the like. And so we protected those industries to encourage companies or inventors and the like to come here and, and set up those industries here so those industries can prosper. The challenge is if you put lots of tariffs on particular economies, is that then lots of other economies put tariffs on you. And so it's very hard for those goods that you make here, whether it's cloth or it's hammers or things like that back in the day, or [00:09:30] whether it's semiconductor chips today or iPhones or other sophisticated products that the United States is really good at making. It's hard for us to sell to the other people because they put tariffs on our goods and make them much more expensive when we try to sell it to consumers around the world.

Hannah McCarthy: Now, you said we had this protectionist philosophy Until World War two. How did the war change? The way we approached tariffs?

Nick Capodice: Well, after World War Two and continuing on [00:10:00] through the Cold War, there was a very clear us versus them mentality. And economists shifted to a free trade model. Capitalist countries could sell stuff to each other without being hindered by tariffs. America had a pretty well-established industry at this point, so now it was time for everyone to get rich selling stuff to each other.

Hannah McCarthy: And Nick, we're talking about tariffs right now because president elect Donald Trump has said that he [00:10:30] will bring them back in a big way.

Archival: I'm a big believer in tariffs. I think tariffs are the most beautiful word. I think they're beautiful. It's going to make us rich.

Hannah McCarthy: Do people see this as a step toward encouraging American industry the same way we did in the 1800s?

Nick Capodice: I mean, it could be seen that way. But Shannon says that we like the global We? We just don't work that way anymore.

Shannon O'Neil: The problem or the challenge with that is when you try to make it all here at home. You can make those goods more expensive. And what [00:11:00] has happened over these last 30 or 40 years with globalization and supply chains, global supply chains that we talk all about, especially since the pandemic. You know, the benefit of those is that products become much cheaper because an individual factory can make, you know, a particular product, a pair of socks, not just for, you know, people in Iowa, but for the people all over the world. They can potentially make socks for 8 billion people. And so they get to what economists call an economy of scale, [00:11:30] where they're churning out so many socks that each of those socks costs much less individually than if you're just at home darning your own socks in your living room. The benefit for us is you and I go to Walmart or Target or your local store that you like, and we can buy a pair of socks for a couple of dollars. You couldn't do that 40 years ago because of those the difference in the way the economies work. But we also don't make a lot of socks here in the United States anymore. And that is why one might put tariffs on. If you wanted to make socks again in the United States, [00:12:00] you probably would have to put pretty high tariffs on you. And I would start paying $20 maybe for a pair of socks, not $2 for a pair of socks. Um, but they would be made here in the United States.

Nick Capodice: Real quick, there's another reason we sometimes impose tariffs, and that's to discourage the use of something like tobacco or certain kinds of alcohol.

Hannah McCarthy: What do you mean by certain kinds of alcohol?

Nick Capodice: Oh, there's like, oh, there's a whole megillah. I can't get into it [00:12:30] about how the EU put a tariff on American whiskey because of a tariff the US had on airplane manufacturing. Whiskey makers in the US were hit hard because Europeans bought less of it due to the tariff. And then we have that. The Trump administration put a massive tariff on wine from Europe, except for Italy for some reason. And the Biden administration reversed the wine tariff. But it's on the horizon to return in 2025. Okay.

Hannah McCarthy: Hearing that, Nick, it makes me feel like tariffs are more [00:13:00] an element in the global conversation, right? It's about maybe rewarding another nation or sort of slapping the hand of another nation, more so than it is about encouraging industry in your own nation.

Nick Capodice: Wonderfully put.

Hannah McCarthy: So our tariffs that are they just a tool in the diplomatic utility belt.

Nick Capodice: Well, I will get into that utility belt as well as a deep dive on Trump's proposed tariffs. [00:13:30] But first we got to take a quick break.

Hannah McCarthy: But before that break Nick and I wrote a book about all of the many things we have learned about America over the years. I don't think we have tariffs in there, do we?

Nick Capodice: I don't think we did, but we didn't know at the time everything else is in there.

Hannah McCarthy: Though we did put a lot in there. It is called A User's Guide to Democracy How America Works.

Hannah McCarthy: We're back.

Hannah McCarthy: We're talking about [00:14:00] tariffs here on Civics 101. And Nick, you know we're not a couple of seers here.

Speaker10: Soothsayers, augurs cassandras.

Hannah McCarthy: That one is debatable. Anyway, my point is that we cannot predict the future. But I do think we should talk about president elect Donald Trump's proposed tariffs. What are they?

Nick Capodice: So some of Trump's tariff promises have vacillated over the last few months. But here is what he claimed this November. He has proposed a blanket [00:14:30] 25% tariff on all goods coming from Mexico and Canada, and a 60 to 100% increase on tariffs on all goods coming from China. Also a 10 to 20% tariff on everything else from everyone else.

Hannah McCarthy: And is it the president who sets a tariff? Is that an executive power?

Nick Capodice: Well, the Constitution says no. The Constitution grants Congress the power to set tariffs. Article one, section eight. However, in 1934, [00:15:00] Congress signed the Reciprocal Trade Agreement Act, which gave the executive branch the power to set tariffs with congressional approval. And Franklin Delano Roosevelt was the first to do that, and since then there have been about a half a dozen other acts signed into law ceding tariff powers to the president, given certain situations.

Hannah McCarthy: How do economists generally view tariffs? What are their feelings about these proposed sweeping tariff changes that might [00:15:30] happen with the incoming administration?

Nick Capodice: All right. Here again is Doctor Shannon O'Neil, VP at the Council on Foreign Relations.

Shannon O'Neil: So the research shows, and even the tariffs that we've seen over the last eight years has shown that these are costly for us consumers. Um, and there's different kinds of tariffs. The tariffs in the past have often been targeted tariffs, meaning they choose particular products or particular sectors. So it's not saying everything that comes in from China has [00:16:00] a 60% tariff. It's saying, you know, things that come in from China that are in the electronics space. So electronics that come in from China, they're going to have a 20% tariff. Uh, toys that come in from China, they're going to have a 20% tariff, clothing that comes from China, that's going to have a 25% tariff. So it's choosing particular products. And what the research has found over the last eight years, since those tariffs went into place, is that it raised prices in those sectors for US consumers. So [00:16:30] the prices of those goods that have tariffs, they went up.

Hannah McCarthy: Does Shannon have any idea of how much prices might go up with Trump's proposed tariff increases?

Nick Capodice: Well, she didn't give me an exact number, but the Peterson Institute for International Economics released a study in August 2024 that estimated these increases would result in a cost of $2,400 per family per year. And it hits hardest for those with less money. They write that all households, [00:17:00] quote, lose net income from such high tariffs, but the losses are greatest for those at the bottom of the income distribution. The median household would expect to see its after tax income fall by about 4.1%. The top 1% would experience net gains in income because their losses from tariffs are more than offset by Trump's proposed tax cuts, end quote.

Hannah McCarthy: What about the effect tariffs have on who we buy from? I imagine that if there's a super high tariff [00:17:30] on one country, we're going to get stuff from another country.

Nick Capodice: Yeah we will. And Shannon said that this is something that her research has made abundantly clear.

Shannon O'Neil: We put a tariff on clothing coming in from China, we don't bring as many clothes in from China as we did in the past, we bring in clothes from other countries. Now we bring it in from Thailand. We bring it in from Malaysia, we bring it in from Mexico or Central American nations. So you see a shift in trade with those tariffs into the United States. And you also see, in some cases, a rise [00:18:00] in US prices of those goods, because that tariff gets passed along to individual consumers. It costs more on the shelf when you buy it at the store or on Amazon.

Hannah McCarthy: Can we come back to the diplomacy thing? It sounds like tariffs are part of this diplomatic toolkit, so to speak. Does stopping free trade with other countries have an effect on how we interact with them, deal with them in other matters?

Nick Capodice: It absolutely does.

Speaker9: So in the past.

Shannon O'Neil: Often we turn to countries that we like, countries that are our [00:18:30] allies or our partners, and we say, hey, let's do a free trade agreement, let's bring our economies closer to each other, and we'll buy and sell more from each other. And one thing we'll do Diplomatically but also economically is we will reduce tariffs. In fact, we might get rid of all tariffs between our two countries because, you know, we trust each other. We think that you're a strong economy on your side would be good for us because we're allies. We're partners around the world. And we want prosperous allies out there. One, because they could come support us if we get into a fix [00:19:00] and there's a war or there's a conflict, we want them to be able to contribute.

Nick Capodice: Like I say, the Toby Ziegler was completely right when he gave his speech on the West Wing about free trade.

Toby Ziegler: Clothes are cheaper, steel is cheaper, cars are cheaper, phone service is cheaper. You fill me building a rhythm here. That's because I'm a speechwriter. I know how to make a point, Toby. The lowest prices. It raises income. You see what I did with lowers and raises there? Yes. It's called the science of listener attention. We did repetition. We did floating opposites. And now you end with the one that's not like the others. Ready? Free trade stops wars. [00:19:30] And that's it. Free trade stops wars.

Nick Capodice: By the way, if you look up the science of listener attention, you're going to see it was completely fabricated for this episode. But to Toby's point, when you trade with another country, it does grease the wheels for other diplomacy. If you and another country are both prospering from each other, you're probably going to have an easier time negotiating other stuff. But diplomacy is not the only reason we trade. [00:20:00] We trade because we want stuff and we don't have everything.

Shannon O'Neil: We don't make coca. You want chocolate chips right in for for your pancakes, for your cookies, for whatever it is that you like. There's lots of other things that are produced around the world that we want to have as consumers here in the United States. And importantly, we want to be able to sell the things that we make here that support U.S. jobs in countries around the world. And, you know, 95% of the world's population lives outside of the United [00:20:30] States. Wouldn't it be great if they were buying products that were made in the United States? They're much more likely to buy products if there are no tariffs when it goes into that country. So signing a free trade agreement where we say, hey, in the United States, you can bring your your products in with zero. But if we go to your country, you have zero tariffs on your products, then we get to export our products to Mexico or South Korea or Peru or Singapore or other places where we have free trade agreements. We [00:21:00] get to export to those countries without paying any tariffs on our goods. And so their consumers don't have to pay more to buy American products.

Nick Capodice: And Hannah, I don't want to end this episode with you thinking tariffs are capital B bad. Shannon says they have their purpose and they can be justified.

Shannon O'Neil: There are places for tariffs. It's not that they should never be used and there are a couple reasons to use them. One is if other countries are being unfair [00:21:30] in the way they make things and they're favoring their own companies, it's not fair for our companies to try to participate or try to compete against others that have a bigger advantage. So let's say in China you're neo, you're making electric vehicle cars, and the Chinese government promises to buy lots and lots of cars for all of the taxi stands all over Shanghai from a particular company. Well, that company has a leg up because they know they have all these orders. Or let's say the government gives them free electricity or free land. [00:22:00] Well, US companies, GM, Ford, they don't get free electricity and land. So that's not fair in terms of the price of the car. So there's a reason perhaps to put a tariff on.

Nick Capodice: And another reason we might have tariffs is because frankly, it can be a national security issue.

Hannah McCarthy: How is it related to national security?

Nick Capodice: Well, think of war, right? The war machine. 50 years ago, it was tanks and bombs. We used to fight and protect ourselves. And that is a lot of steel. That's a lot of aluminum. We [00:22:30] need to be able to produce our own steel and aluminum, in case we end up in a conflict with our biggest steel and aluminum suppliers. But war is not just tanks and bombs anymore. It's drones, semiconductor chips, satellites. War will be fought in the skies. And I'm not talking about airplanes. And it is so scary to me, Hannah, that I'm going to leave the Tim Curry space joke until the credits.

Hannah McCarthy: All right. So tariffs [00:23:00] have a place. They are a kind of insurance for if and when we enter a conflict. And there are some times they can help level the playing field. If another country is producing goods with what we perceive to be an unfair advantage.

Nick Capodice: Yeah. The problem though, and this isn't just Shannon's belief, by the way. 16 Nobel Prize winning economists signed a letter this June expressing concern about Trump's proposed tariffs. The problem is that they're not [00:23:30] targeted. They're just a percentage on a country, not on a specific item.

Shannon O'Neil: Broad based tariffs. When you put these on broadly, the challenge is it makes U.S. products more expensive. And that has two things it means we're not going to sell to we're not going to sell our products, our goods to other countries because it'll just be too expensive. Other goods made in other places will be cheaper. And so a consumer will buy, you know, a toy or a computer or [00:24:00] a shirt from others because it'll just be cheaper, better made perhaps, or similarly made, but cheaper. So that's one reason. But the other thing is actually in the United States, if you're buying something that's made just in the United States, in this global world, it's going to be more expensive here for the United States as well. So if you're going to buy socks, you could buy socks for $2, or you could buy socks for $20. You might buy fewer pairs of socks if they're going to cost you $20 than if they cost you $2. So [00:24:30] that means for the people who make socks, who make the cotton or the wool that goes into the socks, they're going to sell fewer pairs. That means the store that you go to, you're going to visit fewer times to go and buy the socks. That means the clerks that work there maybe don't need as many clerks. Maybe you don't need as many stores. It means other parts of the economy begin to slow down and you start losing jobs. You start losing consumption. And that is a big driver of US prosperity. So there's a cost, not just in access [00:25:00] to the rest of the world and consumers that are in countries on the other side of the world. There's also a cost to the US economy because Americans stop buying as many things. That means there's fewer jobs to make the things that Americans might buy. And we see our economy slow overall.

Tim Curry as Premier Cherdenko in Red Alert 3: I'm escaping to the one place that hasn't been corrupted by capitalism.....SPACE

Nick Capodice: Well there you go isn't that just a bit of tariffic. this episode was made by me Nick Capodice with you Hannah McCarthy thank you. Christina Phillips is our Senior Producer and Rebecca Lavoie our Executive Producer. Music in this episode from Epidemic Sound, Blue Dot Sessions, ProletR, HoliznaCCO, Bisou, and heaven help us if there's ever a tariff on the beats by Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

What is authoritarianism?

Authoritarianism and autocracies take many forms. So how do you know it when you see it? Our guide to the erosion of choice, rights, truth and power is Anne Applebaum, author of several books including, most recently, Autocracy, Inc..

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Transcript

Archival: [00:00:07] Indisputable is that the government is using military courts to try civilian protesters, that opposition figures are behind bars, that the president says he wants to change the Constitution in order to, quote, restore the peace. How is that not creeping authoritarianism?

Archival: [00:00:22] Chairman Mao may loom large here as a symbol of strength, but he's also a reminder of the chaos that can come when one [00:00:30] leader has far too much of it.

Archival: [00:00:32] The Iranian regime has shut down the internet all across the country as it brutally cracks down on massive protests.

Archival: [00:00:39] Increasingly hardcore autocracy one man rule.

Archival: [00:00:43] Orban successfully transformed Hungary's democracy into an autocracy.

Archival: [00:00:48] The actual framework of governance that Maduro has been able to bend to his will, to be able to stage phony elections like the one that's going to be held this weekend.

Archival: [00:00:56] Unless he's forcibly removed from power. Mr. XI should now [00:01:00] be able to personally choose for how long he will govern.

Archival: [00:01:02] Much of that control now rests in the hands of just one man.

Hannah McCarthy: [00:01:13] Hey, Nick.

Nick Capodice: [00:01:13] Hey there, hannah.

Hannah McCarthy: [00:01:14] This is Civics 101. And this is an episode about something I think a lot of us think we understand terms that we hear a lot, perhaps especially lately. But as with so many things we talk [00:01:30] about on Civics 101, I had to ask myself, do we know what we are talking about? So, per usual, I found someone who for sure knows what she is talking about.

Anne Applebaum: [00:01:44] I'm Anne Applebaum, I'm a staff writer for The Atlantic. I also teach at Johns Hopkins University, and I'm a working historian.

Hannah McCarthy: [00:01:52] I came to Anne with a question. My question was, what is authoritarianism? And right off the bat, [00:02:00] I think I got a better catch all term for the thing we are talking about today.

Anne Applebaum: [00:02:06] So authoritarianism or autocracy is a political system in which one person or one small group of people, or sometimes one political party rule without any checks and balances, without independent courts, without an independent media, without a legitimate opposition. They're able to rule without any anything [00:02:30] hampering them at all. They're not obligated to follow the rule of law, meaning that a legal system in which laws are made by courts and judges separately from whoever is in power. Instead, they operate according to something that we call rule by law. That means the law is whatever the person in charge says it is, so it can change from one day to the next. That's the simplest definition of autocracy.

Nick Capodice: [00:02:55] Autocracy. That word feels both generally [00:03:00] Really nefarious, but also kind of cool and removed, like kind of clinical. It does.

Hannah McCarthy: [00:03:05] And okay, so I think that this will help you. That word comes from both ancient Greek and ancient Latin. It went from meaning, you know, self-power or self-control to being a word used to describe military commanders with a lot of power. And eventually it kind of got smudged into being the word sometimes used to describe the person in charge of everybody [00:03:30] and everything.

Nick Capodice: [00:03:31] All right. Cool. That makes a lot more sense.

Hannah McCarthy: [00:03:33] Moving on. And told me that there are many autocracies on this earth of ours, and they are not identical, but they share three characteristics.

Anne Applebaum: [00:03:45] People don't have guaranteed rights. So you don't have, for example, the right to freedom of speech in any kind. You can be arrested for something that you say, even if it's true or even if it's not important or significant. You [00:04:00] don't have the right to contest power or to affect or change whoever is in power. So you have a single leader or a single political party. They rule and there is no legitimate way to be in opposition to them. There's no way to change your own government. You don't. You can't vote. Or if you can vote, the vote has a significance. Some autocracies do create very elaborate fake essentially systems of voting, kind of pretend voting. But [00:04:30] you don't have any ability to change the regime. You don't have rights in the regime, and you also don't have the ability to, you know, make an argument based in law. You can't say you have taken away my property, and that's illegal according to this particular statute, because the law will change according to what the leadership wants it to be.

Nick Capodice: [00:04:55] So basically you get no say, right? [00:05:00] You have no protections. The rules could change at any minute. One minute you're standing on solid ground and the next thing you know, the floor is lava. Right.

Hannah McCarthy: [00:05:10] But again, these governments vary. So is a dictator, for example, an autocrat? Yes. Is an autocracy a dictatorship? Not necessarily. It's kind of a a square is a rectangle, but a rectangle is not a square situation. [00:05:30]

Anne Applebaum: [00:05:30] There are many different kinds of autocracies. Um, you know, there's Communist China and nationalist Russia and theocratic Iran, and they all have very, very different rules, and some of them have more access to freedom or to other ideas than others. Some are very tightly controlled.

Nick Capodice: [00:05:45] And all of those nations. Hannah, correct me if I'm wrong here. They all kind of work together, right? Like, I know that China and Iran, for example, they support Russia's war on Ukraine.

Hannah McCarthy: [00:05:55] Oh yeah, among many other things, and actually wrote a book about that. It's called [00:06:00] autocracy, Inc. and you should read it. It's not about all of these governments agreeing or thinking the same thing. It's more like this informal way of using your absolute power to keep someone else in absolute power. And then, Nick, there are plenty of governments that have autocracy vibes, so to speak, but aren't, you know, broadly autocratic, at least not yet. They're dabbling pinch of control here, dash of restriction [00:06:30] there. And then there are countries that actually take it even further.

Nick Capodice: [00:06:34] Further than no rights, no say no protections, no consistency.

Anne Applebaum: [00:06:39] There's a further step. We used to speak often about totalitarian systems, and these are systems in which the political leadership really does seek to control everything. So not just politics, but also economics, also social life, also education, culture, everything. And so everybody inside the system is is meant only to read [00:07:00] and listen and think. According to a set of rules, you know, a set of ideas given by the leadership, probably it's fair to say that totalitarianism is hard to achieve. It's hard to really prevent everybody from thinking differently from what the regime says. But the attempt to create it has been real. I mean, there have been there have been a number of very real attempts to create totalitarian systems.

Nick Capodice: [00:07:24] So Anne here is describing utter total control, right. Like [00:07:30] thought police levels of control or something close to that.

Hannah McCarthy: [00:07:34] Yeah. I mean, you know, thought police is kind of impossible. But I think that would be the dream in a system like this. Right. And again, it's not exactly an easy thing to do, but if you give a mouse a cookie, they might just tell you that two plus two equals five.

Nick Capodice: [00:07:46] All right, Hannah, here's what I have to know. How how does a country become something like this? Is it possible, for example, for a democracy to stop [00:08:00] being a democracy or to become an autocracy.

Anne Applebaum: [00:08:04] So I don't know that there's a playbook for creating autocracies. There are some countries where there has never been anything else, so there has never been democracy in China. You can't really speak of there being a playbook to achieve something that is pretty much always been there. There is a path towards authoritarianism that a number of democracies have followed. So democracies do decline. They have been declining since the time of ancient Rome, when the American [00:08:30] founders were writing the Constitution. They had that example in mind.

Hannah McCarthy: [00:08:33] You know, it may come as a surprise, but I actually do think about ancient Rome all the time. What happened there was that a democratic system was dismantled over time by corruption, division and military threats. We can talk about that some other time. It's a long story, but the framers were sure thinking about it when they wrote the Constitution.

Anne Applebaum: [00:08:59] They were thinking about [00:09:00] how to prevent democratic decline, and democratic decline usually involves the rise to power of perhaps an elected, legitimate leader who begins to take apart the institutions I've been talking about. So a leader who seeks to take over state institutions that are meant to belong to everybody and instead make them work for him, either politically or financially, or a leader who seeks to politicize the justice system instead of having justice be something [00:09:30] that is neutral, that is meant to where you know, the courts, you know, the legal system are supposed to abide by the Constitution and by the law. An authoritarian leader will try to change that so that courts are politicized and the courts will respond to whatever, whatever the leader wants. Sometimes the path to authoritarianism also includes attempts to control public conversation or information. So to push hard against independent media to silence critics first, either legally or but maybe [00:10:00] eventually using repression. Not all autocracy involves repression or, you know, jail or violence, but many of them end up doing that because in order to keep control, authoritarian leaders very often wind up relying on violence.

Nick Capodice: [00:10:14] I guess that violence is a pretty direct path to forcing people to give you what you want.

Hannah McCarthy: [00:10:20] Well, if you're trying to undo a system where citizens have power, they might not be super thrilled to just give it to you. So sometimes [00:10:30] it's about taking, and taking is rarely peaceful.

Anne Applebaum: [00:10:35] But in the beginning, the decline of a democracy. And we've seen and this is, by the way, something that can happen either led by movements coming from the left. There's a version of that, for example, that took place in Venezuela over the last couple of decades.

Archival: [00:10:47] In 2013, the then president Hugo Chavez, passed the baton to Maduro after being diagnosed with cancer. His successor promised to continue the socialist revolution, lifting people out of poverty. [00:11:00] But that promise is well and truly broken.

Anne Applebaum: [00:11:03] Or movements coming from the right. And they're the kind of classic modern examples. Probably Hungary, a country whose elected leader slowly took apart the state, removed rights, removed, changed, altered the situation so that rule of law didn't really apply in Hungary.

Archival: [00:11:20] Many Hungarians see their right wing prime minister as this totalitarian. Many people are worried about core democratic values such as free speech or an independent [00:11:30] judiciary. Many members of the EU Parliament say the rule of law in Hungary is being threatened.

Anne Applebaum: [00:11:36] I mean, it can happen pretty fast. Um, Hungary is a very small country, and so it turned out to be very easy for a democratically elected leader who had that idea in his head to capture institutions, to put people in charge of the institutions who would be loyal to him personally and not to the Constitution, for example. He did that fairly quickly over several years. Venezuela. The left wing example is a is [00:12:00] an example of a place where it took longer. There were a series of elections. The Hugo Chavez, who was the original, who led the original assault on the political system, was actually, you know, reelected a couple of times legitimately and really only was later on when he and then his successor, Nicolas Maduro, began to break the law more systematically, that you could really call Venezuela a full autocracy rather than just a messy democracy.

Nick Capodice: [00:12:34] So [00:12:30] there's no one way that this happens. It could be pretty quick under one person, or it can be slower under a series of leaders who have that same goal of breaking the government.

Hannah McCarthy: [00:12:46] Yeah, there are a lot of paths, a lot of tactics that can contribute to the decline of a democracy or some other system of government and the rise of an autocracy. So, Nick, you asked me, is it possible [00:13:00] for a democracy to stop being a democracy? And I told you earlier that it's possible for a country to have autocratic elements without being autocratic. It's also possible to be a democracy while you're losing elements of democracy. So one of the examples that Ann brought up was, you know, when people who follow the law or tell the truth are threatened. I mean.

Anne Applebaum: [00:13:25] This is something that came up after the 2020 election. So Republicans who followed the law [00:13:30] and understood that the election was not stolen, they found that when they spoke the truth, they were assaulted both online and sometimes in real life. And when you have a situation where people are afraid to say true things or afraid to make arguments because they're worried that somebody will murder them in their families, then you already begin to have a situation where people don't feel free. And that began to happen in the United States, very notably after after 2020.

Hannah McCarthy: [00:13:56] And also pointed to the problem of government Becoming [00:14:00] performative. So that's like taking systems that exist to uphold the law and using them basically to put on a show.

Anne Applebaum: [00:14:09] Congressman Jim Jordan ran something called the Weaponization of Government Commission in the last Congress, and took it upon himself to examine the work of people who do research into disinformation, for example, or into patterns of conversation online, and unfairly accused some people who had been researchers who had been academics of being involved in censorship, which they were not involved [00:14:30] in. You know, this then led to a series of court cases. Eventually they made it all the way to the Supreme Court. But the entire time, I mean, both the congressional hearings and the court cases were based on things that hadn't happened. Um, you know, so again, when when lies or untruths become a kind of fundamental basis of political argument and become accepted by, you know, by people within the system, then you're also on a road towards autocracy.

Nick Capodice: [00:15:05] All [00:15:00] right. So I have to ask at this point, are we, Hannah, are we on the road towards autocracy? Is this democracy? American democracy in trouble?

Hannah McCarthy: [00:15:20] Well, we're going to get to that after a quick break.

Nick Capodice: [00:15:23] Oh, come on, for real.

Hannah McCarthy: [00:15:25] But before that break, a quick reminder that Nick and I have a book that covers a whole lot [00:15:30] of the story of this nation. In fact, it is the perfect companion for those moments when you find yourself asking, is this against the law? Is there any precedent for this? Why is this happening? It's called A User's Guide to Democracy, and it is just that. You can get it wherever books are sold.

Nick Capodice: [00:15:59] We are [00:16:00] back. We're talking about autocracy today, what it is, what it looks like and how it happens. And just before the break, Hannah, you decided to make us all wait to hear whether this nation of ours is on an autocratic road.

Hannah McCarthy: [00:16:15] So is it. Well, we can't predict where this is leading, right? We can't predict the future.

Nick Capodice: [00:16:21] You're an artful dodger, McCarthy.

Hannah McCarthy: [00:16:23] But we know what autocracy looks like. Or rather, Anne Applebaum knows. And we [00:16:30] are learning. And Anne says that this democracy, our democracy, has had cracks in the foundation for a while now.

Anne Applebaum: [00:16:38] There have been elements of American democracy that have been broken for a long time, you know, and we all know what they are. The amount of money, including the secret money in politics, the money that people can use to create PACs or to support election campaigns, you know, has led to American elections becoming a kind of circus. I mean, by comparison to elections in other democratic countries, most countries don't spend [00:17:00] millions and millions, you know, hundreds of millions of dollars on their election campaigns. And we do. And I think that's a sign of real decline, the change in the nature of information, the fact that people get information that they receive through algorithms that have been designed to to send people emotive and angry and divisive material. This is how the interweb works more broadly. It's not just about social media. You know, the advertising system rewards people who who have, [00:17:30] you know, angry and divisive conspiracy theories, for example. And by allowing those ideas to dominate the information system and to, you know, and to help divide Americans and to create deep partizanship, those changes have been in the works for a long time, and they precede anything that's happened in the last in the last few years.

Nick Capodice: [00:17:49] Money and information. Isn't that always the way?

Hannah McCarthy: [00:17:53] And not just money. Secret money. Hidden money. And says there are different types of [00:18:00] economies at play here, one that is in the light and another in the shadow.

Anne Applebaum: [00:18:06] We often forget that alongside the normal economy, alongside the economy where you and I pay taxes, and if we have businesses, we are subject to regulation. And if we own a company, our name is on all the documents. There is also another economy where where money is kept offshore, where it flows through shell companies that are held anonymously. Property can be purchased anonymously. And that world, that [00:18:30] kind of offshore world has been hugely beneficial both to the autocratic world and to people inside the democratic world who who want to evade the law or evade taxes or hide, hide their wealth. It's not a subject people know much about, but it's that the growth of it, explosive growth of it, I should say, over the last decade, is another indication that our democracy, not just in the United States, but in Europe as well, is declining because so much money can be taken and hidden secretly and giving people [00:19:00] power and influence secretly that that is impossible to know. I mean, transparency and accountability are marks of democracy, and secrecy is a mark of dictatorship. Okay.

Hannah McCarthy: [00:19:12] Another thing that we need to talk about. Does it matter when our leaders use language that autocrats use?

Anne Applebaum: [00:19:20] I worried a lot during the last election campaign about some of the language that Donald Trump was using, because to me, it was reminiscent of language I had heard in other times [00:19:30] and other places. So when you call your opponents vermin, or you talk about them as enemies of the people,

Archival: [00:19:34] The radical left thugs that live like vermin within the confines of our country, they are truly the enemy of the people they are.

Anne Applebaum: [00:19:42] That's language borrowed from the dictatorships of the past. And you do that if you like Viktor Orban or like Hugo Chavez. If you're somebody who wants to be able to say, I have complete power and authority, my enemies and opponents are vermin. You know, you don't have [00:20:00] to take account of them or they're enemies of the state. They're traitors. That gives you license to begin to take apart the state. Remember that democracy depends on a kind of. You know, it's almost a I mean, it's almost sort of inhuman, a very difficult kind of sense of fair play.

Hannah McCarthy: [00:20:19] And talked about the fact that there are rules, there are systems that we are all supposed to agree on and abide by rules and systems that are designed [00:20:30] to keep this country democratic.

Anne Applebaum: [00:20:33] Once people begin to break that rule or break that bargain, and once the, you know, there's a winner takes all system whereby if you win an election, you get to destroy everything or change everything, then it becomes much, much harder to maintain a democracy. And that language is now part of our system. This idea that one side or the other side is illegitimate and can't be allowed to rule that level of partizanship that we reached in the US is really reminiscent [00:21:00] only of the years leading up to the Civil War in its power and strength, and we've been divided about many things before. Um, is profoundly worrying. I mean, just the language that people use about politics now is very, very different from the language people used a decade ago.

Nick Capodice: [00:21:14] So here's what I need to know. Does Ann think that words matter? I mean, obviously she does. She just said that this language that calls one side illegitimate means a level of division that is profoundly worrying. But [00:21:30] there are those who say who have said that words are just words. Hannah Bach worse than a byte kind of thing.

Anne Applebaum: [00:21:39] What people say and how they say it does have consequences. Words have consequences, and how the language that people use to describe their opponents describe their country. This tells you a lot about them. And so it should be at least at the very least, a kind of warning sign.

Nick Capodice: [00:21:54] Now, we have heard politicians use inflammatory language in this country. I know we're hearing a lot of it right now, [00:22:00] but we have dealt with it before, right?

Anne Applebaum: [00:22:03] The language remains disturbing because if you look at the history of American politics, you know, at least in the 20th and 21st century, you don't hear people talking like that in US politics. I even looked at I went back and read some of the speeches of segregationists from the 1960s, and even they don't talk about their political enemies as vermin. And so I thought that was a I thought that was a real break with tradition. So it's very hard to know how [00:22:30] to talk about someone who's broken with tradition, who's run a campaign that's notably different than anything that's gone in the past, while at the same time, you know, not sounding hysterical or hyperbolic. It's a fine line. And I don't, you know, I'm not sure that I'm not sure that we found it.

Hannah McCarthy: [00:22:48] This hyperbolic thing. I think this is important to think about. How do you talk about hearing words in this country that were used by autocrats in [00:23:00] the past. Ideas and actions in this country that look. Autocratic. If you say, well, that language sounds like language used in countries where. Democracy has eroded, where autocracy rose. And we should worry about that. There are those who. Would say, you need to relax. And Anne says the language you use to talk about this kind of language. That really matters to me.

Anne Applebaum: [00:23:29] I've [00:23:30] actually been very careful about using the word fascist.

Archival: [00:23:32] Donald Trump is lashing out at his former chief of staff for calling him a fascist.

Archival: [00:23:38] We certainly falls into the general definition of fascist for sure.

Anne Applebaum: [00:23:42] I know it was used by General John Kelly, who had worked for Donald Trump. You know, that's his right. Um, partly because it immediately makes people think of Nazi movies. And I don't think that America is going to become a Nazi movie. You know, it's not going to look like that.

Hannah McCarthy: [00:23:59] There's [00:24:00] one last thing I want to get to here. Yes, we are talking about autocracies. We are talking about the kind of words and actions that can guide a democracy into an autocracy. But ultimately, Ann says, the decline of democracy is not just about a politician or an anti-democratic movement.

Anne Applebaum: [00:24:19] Democracies succeed when their citizens are engaged, when people are engaged in politics, when they run for office, when politics [00:24:30] isn't a thing that is done by some kind of separate cast, you know that it's something that belongs to everybody. When people are engaged in political parties, when they join movements, when they express their ideas, when they're part of the system. And one of the things that modern authoritarian propaganda does is it tries to disengage people. One of the effects, for example, I mean this, as you can see in Russia, of a politics where there's a constant stream of lies. You know, when people are lying openly lying about things [00:25:00] that everybody knows is not true. When you see people doing that, that's something that political leaders do because they want to make people exhausted. You know, they're not lying because they think you're going to believe everything that you're lying about. They're lying because they want to make people say, oh, gosh, I have no idea what's true and what's not true. Politics is a dirty business. I better stay home. And so it's very important for ordinary people to not be fazed by that and to seek to remain involved. I mean, really, once democracy loses, it's once people aren't participating, then [00:25:30] it's very easily taken over by cliques or by the very wealthy or by people with ill intent. So staying engaged and being an active citizen is, you know, it's really the responsibility of everybody who lives in a democratic society. As I said again, it's not it's not something that like a special group of elites or fancy people or, you know, do. It's something anyone can do.

Nick Capodice: [00:25:53] I really appreciate that point, Hannah, because we say all the time that staying engaged is the way to keep our democracy [00:26:00] alive. But I'm not always sure that that lands with people. And I'm not even sure it'll land with people now. But here at least we have an historian who knows what it takes for democracy to die, because she's been studying it for a long time. So if you don't take us at our word, maybe you can take Ann at hers.

Hannah McCarthy: [00:26:23] Basically, don't let the people with money and power let you believe that you are not allowed into the club because you don't have money or you don't [00:26:30] have power. Because when we start believing that it's the most straightforward, the best way for us to eventually be banned from the club. And even though autocracies rely on secrecy, lies and hiding things from people, they also have clear tells. So what is an autocracy? It is no one thing, but what does an autocracy do? It keeps the power away from the [00:27:00] people.

Anne Applebaum: [00:27:00] It's important to remember that there are different kinds of authoritarianism. It's not like there's a huge alliance of autocracies and they all think the same thing. Autocracy can take different forms. China is a one party state. It's the Chinese Communist Party is the leadership. And the Chinese Communist Party is a big and complex organization with many different kinds of people in it. By contrast, Russia is really a one man dictatorship. There is no equivalent of the Chinese Communist Party. Iran is run is a theocracy that's run by religious leaders. Venezuela is a kind of [00:27:30] oligarchy run by a group of very wealthy people connected to Nicolas Maduro and his security and army chiefs. The forms of autocracy and the language of autocracy can look different and sound different. But, you know, pay attention to the fundamentals. You know, what kind of rights do people have? How does the legal system work? What kind of information are people allowed to have access to, and what kind of influence to ordinary people have on the way the government works? And that's how you know what level [00:28:00] of autocracy you're talking about.

Hannah McCarthy: [00:28:08] That does it for this episode. It was produced by me, hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Anemoia. AutoHacker, Ambre Jaune, Dylan Sitts, King Sis, Andreas Dahlback, Lennon Hutton and Craig Reever. If you want more Civics 101, we've got [00:28:30] it for you. You can follow us on Bluesky at civics101pod, you can follow us wherever you get your podcasts, and you can go to civics101podcast.org to access everything we have ever made and get in touch with us. Don't forget, if you like us, leave us a review. Nick and I used to be actors, so without feedback, we're kind of at sea. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

How do presidential transitions happen?

In 2018, we did an episode on Presidential Transitions. Now that we have had an election, we decided to revisit it. There are nearly 4,000 positions that a president appoints after their inauguration. How do they do it? How long does it take? And why has Donald Trump repeatedly refused to sign the "memoranda of understanding" regarding the transition from the U.S. General Services Administration?

Our guest is Max Stier, President and CEO of the Partnership for Public Service, which runs the Center for Presidential Transition.

Our show started as an explainer of governmental systems in a transition such as the one we're in now. Send us an email at civics101@nhpr.org if you want us to explain any facet of how our democracy works.  

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Transcript

Nick Capodice: Hey, everyone. Nick here. It's like 522 on November 7th. I'm recording this as I'm walking around, I forgot to account for daylight savings time. It's so dark and I'm wearing a black hoodie, so got to be careful. I'm sure a lot of you out there know the story of how Civics 101 started. If [00:00:30] you don't, I'll just tell you real quick. Shortly after Trump was elected as president, the first time, the CPU, which is the rather unfun initialism for the people who make podcasts at NPR, we're like sitting around and talking about something that was happening involving the Secretary of state. And then somebody bravely said, what is the secretary of State do again? And the room, I'll wait for this truck to go by. It's a big truck. [00:01:00] And the room was silent. Somebody was like, do any of you know what the Secretary of State does? And then Logan. Shannon. Logan. Shannon, thank you for my job. A producer at NPR. Logan Shannon wrote down on a post-it note. Schoolhouse Rock for adults. Question mark. Somebody I don't know who has that post-it note in a frame somewhere. But [00:01:30] that's how the show started. It was explaining how systems worked in a nonpartizan way. After the election of somebody for whom frankly, democratic norms, you know, were not the norm.

Nick Capodice: So, you know, let's just understand how things work. Here we are. And when I say, here we are, here we are again. So the election was a couple days ago. Donald Trump won. And so we're [00:02:00] going to ask you again, what do you want to know? What systems do you think need explaining? Now we can't answer what's going to happen. Nobody knows for anything. Anything at all. But we can do is explain systems that have existed for 250 years, or have evolved to what they are over 250 years. And we can do it by interviewing the people who understand those systems best. So [00:02:30] I hope you'll consider sending us an email. Just send it to Civics 101 at nhpr.org and tell us what you want to know about, and we'll get started right away. All right. Here's presidential transitions. And oh, before before we launch into it, Hannah and I recorded this on Election Day. We were in the studios here at Concord. We were all, [00:03:00] you know, civic stop. So we had no idea what was going to pan out that night, even though the interview I did with Max Dyer was last week. Everything he says still holds true. All right. Drop us a line.

Enjoy the episode. Yeah.

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

Hannah McCarthy: I'm Hannah McCarthy, and.

Nick Capodice: Today we are talking about what happens when one president leaves and [00:03:30] another comes in. We're talking presidential transitions. Hannah, real quick, do you want to tell everyone when we're recording this?

Hannah McCarthy: Yep. We are recording this on Election Day on November 5th, 2024. Nick, did you vote because I voted?

Nick Capodice: I did, I voted this morning. It was great.

Hannah McCarthy: All right, so we are at the studio. There are reporters dashing all around the state, and we just talked to Vermont Public Radio about this year's election. So there's a lot going on. [00:04:00]

Nick Capodice: All this to say, we do not know anything about the election results when we're recording these words that you're hearing now. Future US does know. Maybe you do too, but we are in the dark. Hannah, I'm hesitant to play this. Do you remember this?

Virginia Prescott: Both of you guys are theater. You have theater background? Both of you. Right? We do indeed. Are you going to do a little song and dance thing? We're going to.

Nick Capodice: Do a Civics 101 Christmas carol, for.

Virginia Prescott: Sure. Yes.

Hannah McCarthy: Absolutely. Oh. So green. It's not easy being [00:04:30] green. I was this, like, six years ago.

Nick Capodice: It was just about Civics 101 did an episode on presidential transitions in 2018, and it was the episode where the former host of the show, Virginia Prescott, announced she was leaving and that Hannah, you and I would be the new hosts. Do you remember how it felt when we made that episode?

Hannah McCarthy: I remember feeling like I didn't want to disappoint anybody, because Civics 101 already meant a lot to me, and I already really, really believed in it. And I felt [00:05:00] like this huge responsibility had been handed to me and I desperately wanted to get it right.

Nick Capodice: Yeah, I didn't know what the show was going to be. I didn't know what was going to be like with me and with you together. I was nervous, I think I was just staring at my shoes the whole time. I was terrified, but yet here we are.

Hannah McCarthy: Here we are.

Nick Capodice: Well, we've got a presidential transition that is gonna happen. So I reached out to the same guy we spoke to all those years ago. And here he is. [00:05:30]

Max Stier: My name is Max Stier. I'm the president and CEO of the partnership for Public Service. We are a nonpartisan, nonprofit organization dedicated to a better government and a stronger democracy.

Nick Capodice: And Max's organization is the one that runs the center for Presidential Transition.

Hannah McCarthy: So, Nick, we have talked about the peaceful transfer of power before. Actually, a few times on this show, but this is the actual process of one person leaving the office and another [00:06:00] person coming in. Does the president elect have any powers before they're inaugurated? I mean, I'm assuming the sitting president, you know, continues to be the person with the presidential powers. But I guess I've never actually answered this question for myself.

Max Stier: It's a very, very important point. And that is that after the election, we still have one president, and that one president is the incumbent who got elected four years earlier and is president until January [00:06:30] 20th, until Inauguration Day. And they do their job, their job, meaning that they keep us safe, that they are responsible for those 450 plus departments for our national security, for all the issues that have to be addressed. And sometimes there is confusion in people's minds, including allies and enemies abroad, as to who actually is president. But make no mistake, it's one president at a time, and it continues to be the incumbent until [00:07:00] the new person is actually sworn in.

Nick Capodice: So the term for an outgoing president between Election Day and Inauguration Day, that liminal space is a so-called lame duck. That's an expression that was first used in this way in the 1920s. And it is worth adding here that the lame duck administrations used to be a heck of a lot longer. Inauguration day used to be in March. However, the 20th amendment, ratified in 1933, moved it to January. Now, [00:07:30] I want to make something very clear here, though. Even though a president isn't a president until the inauguration, the work for that transition happens much earlier.

Hannah McCarthy: All right. What is the first step? What is the first thing that an incoming president has to do?

Max Stier: Well, the first thing that has to happen when a new president comes to power is they need to be prepared to take over the most complicated, important organization not just in our country, but on the planet and probably in history. And [00:08:00] when I say that, that means the United States government and the United States government is north of $6 trillion, spend 450 plus organizations, 3.5 million people. When you count the uniformed services and civilians, 4000 political appointees, 1400 of which require Senate confirmation. So it is not. You walk in and you just start on day one by coming into the Oval Office and you're good to go. You've had to do a ton [00:08:30] of planning to be able to actually take over our government in a considered and, and a capable way. And this is about our safety as a country. Uh, you know, no small beans.

Hannah McCarthy: What does Max mean when he says that it's about our safety as a country?

Nick Capodice: Well, picture a restaurant, right? You've got chefs, kitchen staff, front of house staff, maybe including a bartender. You've got a menu, [00:09:00] a reservation system. You got all that. If you were in one night to replace every single person who worked in the restaurant, you put a new coat of paint on the walls, you design a new menu, you change out every computer you empty and refill the walk in, put in a new POS system.

Hannah McCarthy: That is the point of sale system, by the way. It is what waitstaff use to send their orders to the kitchen, and learning a new one can be tricky.

Nick Capodice: Thank you Anna. It's a dangerous initialism. There I was always I was so terrible at the POS. I was not a good waiter. [00:09:30] Surprisingly, I was a terrible waiter. Oh, I was.

Hannah McCarthy: A I got to say, I was a tremendous, tremendous server.

Nick Capodice: Why am I not surprised? If you did all that, I do not think that there is a restaurant in the world that would be ready to open in 24 hours. I don't care if you're Carmy Berzatto. You can't do it, cousin.

Speaker5: 45 minutes to open, chefs. Yes, chef.

Nick Capodice: But America is not a restaurant. It cannot [00:10:00] take a few weeks to get the US Armed Forces and the Treasury Department and the rest of the 3.5 million staff of the executive branch used to new management. It has to be working smoothly. The second the oath of office is taken.

Hannah McCarthy: Heard? Yes, chef. Yes, chef.

Speaker5: Say it back, please, chef.

Hannah McCarthy: And there are 4000 political appointees who have to be appointed when the new president takes office.

Nick Capodice: Yes. And 1200 of them have to be confirmed by the Senate. And that number is [00:10:30] high. But it's not how it used to be. So we used to operate under what was called the spoils system, where the president appointed almost every executive employee.

Max Stier: It was, you know, President Jackson that started the spoils system in the 1820s. And it ended in the assassination of President Garfield by a disgruntled job seeker.

My name is Charles Guiteau. My name I'll never deny.

Speaker6: To leave my.

Hannah McCarthy: Oh, I remember this from another episode. [00:11:00] Charles Guiteau shot President Garfield because Guiteau believed he was unfairly snubbed over an appointment as an ambassador. And long story short, this led to the creation of the civil service, where people are appointed not politically but based on their skills and knowledge, ostensibly.

Nick Capodice: Very well done.

Max Stier: And there was a the progressive movement where Americans appreciated that their government needed to be apolitical and professional. But the political [00:11:30] appointments still continued. People have just accepted a, what I would say, an unhealthy level of political appointees for quite some time. They really haven't appreciated why that is a problem. And the counter-argument is that you want a government that is actually responsive to the democratically elected leaders. The reality is you don't need 4000 people to make that occur. And it is counterproductive, both because it's super difficult to get them in place and because they [00:12:00] are not as expert in understanding how to actually run the system.

Hannah McCarthy: How long does it typically take for these 4000 appointments to happen?

Nick Capodice: I am going to get to that right after a quick break.

Hannah McCarthy: But before that break, if you are someone who wants to know the story of the folk song about Charlie Guiteau, that is the sort of thing that we put in our newsletter. Extra credit. It's fun, it's free, it comes out every two weeks and you can sign up at our website, civics101podcast.org. We're [00:12:30] back. We're talking about presidential transitions. And, Nick, you were about to tell me how long it takes for the 4000 political appointees to be appointed.

Nick Capodice: I was, and I got to start by saying it depends on the job, but more importantly, whether that job needs to be confirmed by the Senate. Here again is Max Stier.

Max Stier: If it's one of those positions that require Senate confirmation, the top jobs in government, if you're the cabinet secretary [00:13:00] or the deputy secretary or the agency head, you then have to have the United States Senate agree that you are the right person, and that requires you to be vetted, to go through a security clearance, to have your financial holdings examined by the Office of Government Ethics for you to have a hearing before the Committee of Jurisdiction in the Senate, and then ultimately, for you to have a vote by the entire Senate, which you have to get a majority of the senators to support you. So it can be a very [00:13:30] lengthy process. Unfortunately, it has become an even more onerous process so that the time it takes, on average, to get confirmed in one of these jobs is now over 191 days, 191 days.

Hannah McCarthy: Yeah.

Nick Capodice: And that is a number that has increased over the last few decades. Hannah. It is double the amount of time that it took during the George W Bush administration.

Max Stier: That means that there are some people, like the cabinet secretaries, that often get in very quickly, and [00:14:00] then there are a lot of people for whom it can take more than a year. And again, imagine what that means for the individual where they are in purgatory, wondering what's going to happen. Very difficult for them to even continue their prior job because they can't create any conflicts for themselves. And the institutions that need running are waiting for someone that isn't there, and they have an acting official who is the, you know, proverbial [00:14:30] substitute teacher and a substitute teacher that's around for a very long period of time. So it is a broken system and it is getting more broken.

Hannah McCarthy: Did Max have an example of a political appointment that he feels maybe should not be political.

Nick Capodice: He certainly did.

Max Stier: And this is particularly true for the kinds of organizations that are operational as opposed to policy in emphasis. So an example of this would be the Veterans Health [00:15:00] Administration. It's a hospital system, the largest one in our country and probably in the world. And you need a hospital administrator running it. That should not be a political job because it's a political and Senate confirmed job. There are large gaps in time and between leaders and the leaders that get appointed, who eventually get in place don't last very long so they can't actually get the job done. Well.

Hannah McCarthy: I'm assuming a lot of these people [00:15:30] who are hired after the transition need security clearance, right?

Nick Capodice: Right. Many of them do. And we have a whole episode on the process and the many levels of clearance.

Hannah McCarthy: What about the president themselves? Do they just get access to all of the top secret stuff when they take office?

Nick Capodice: They pretty much do.

Max Stier: So a president is a little special in multiple ways, and that includes with security clearance. And the president has the right to [00:16:00] access to everything. And they also the security clearance process is really defined by executive action rather than legislative action. So the president has full control over that entire architecture of classified information and how and who is ultimately available to. There are lots of rules and regulations that have been created over time that are quite important. There are certainly places that it can be improved, but it is really [00:16:30] important to respect the process itself and the professionals who are responsible for overseeing it. So the transition support that the federal government gives is extremely important. It provides candidates with access to cyber protection, to office space, and ultimately to information about what is happening in the government that that a president elect and his or her team will need to know [00:17:00] in order to be able to be ready on day one, to run those agencies and think about it, the world is complicated. There's a lot going on. You would want to. And if you're flying the airplane, you need to know not only how to fly an airplane, but what the weather is there, where you're going, all sorts of information. And that's effectively what we hope to have with new leaders inside government agencies. So in this cycle, I think one of the big questions that [00:17:30] has been raised that the law does not really account for is the fact that as of now, the Trump transition team has not entered into the agreements with the governmental entities that run transitions that it needs to do in order to have access to the critical information that will allow a potential, you know, future Trump team to be ready to govern on day one.

Hannah McCarthy: I just want to make sure I have this right. The Harris Walz [00:18:00] campaign agreed to work with the center for Presidential Transitions, but the Trump Vance campaign did not. Correct. I don't actually know why. Why is that?

Max Stier: It appears as if some of the reasons include that they do not want to limit the amount of money that they can solicit from individuals for paying for their transition operation, which would be limited to $5,000 if they signed that agreement. And they have to disclose who those donors [00:18:30] are.

Nick Capodice: Secondly, Donald Trump signed an executive order in 2020 that redesignated 20,000 civil servants to quote at will Employees, this meant they could be fired. Now, President Biden reversed that order, but Donald Trump has vowed to reinstitute and expand it to 50,000 if elected.

Speaker7: First, I will immediately reissue my 2020 executive order restoring the president's authority to remove rogue bureaucrats, [00:19:00] and I will wield that power very aggressively.

Max Stier: There are other requirements that appear to be problematic for them, including that they would need to have an ethics plan that would include a description of how the president, him or herself, would avoid conflicts of interest, financial conflicts of interest. But be that as it may, whatever the ultimate reasons, they have not yet entered into those agreements that were the target. [00:19:30] Dates were September 1st and October 1st. So we are well past the dates in which that should have happened. And the closer we get to the post-election period, the the more and more damaging this can become. We are in uncharted territory here and scary uncharted territory. So, uh, it is it is not the way, um, the transition process was designed to run, and it's not the way to maximize the best handoff of power. [00:20:00] If indeed, uh, former President Trump wins again.

Hannah McCarthy: Regardless of the winner of the election happening right this very second. This is something that will continue to be a struggle. Every 4 or 8 years. You have to turn over that restaurant no matter what, and you have got to do it fast. Um, I'm wondering, you know, is there any way to make transitions simpler, easier? Yeah.

Nick Capodice: Max [00:20:30] had some suggestions, and unsurprisingly, it was his view that we are a healthier democracy if we do not use the spoil system.

Max Stier: First and foremost, we should have many, many, many, many, many fewer Senate confirmed positions. 1300 is crazy. We also, frankly, should have many fewer political appointees. If you look at other democracies, they count their political appointees at most in the tens. You know, maybe you get to 100. And [00:21:00] we are unique amongst democracies and certainly are our peers in having 4000 or even, you know, counting in thousands. It is a vestige of the spoils system, and it's not a good one. And it means that we delay getting leaders in place. It also means that we have fewer people who are concerned about the long term health of the institutions that they're responsible for, and [00:21:30] it means that, frankly, we typically have people who are less qualified in these leadership positions than we could have if we actually had more apolitical, professional choices for those folks.

Nick Capodice: That's it for the episode on presidential transitions. It's not it for presidential transitions, though. This episode is made by me Nick Capodice with Hannah McCarthy. Christina Phillips [00:22:00] is Civics 101 senior producer. Rebecca Lavoie is our executive producer. Music. In this episode from Chris Zabriskie, blue Dot Sessions, and Epidemic Sound. Civics 101 is a production of NPR, New Hampshire Public Radio. And again, we're going back to our roots. If you want to know anything, send us an email Civics 101 at nhpr.org. And I hope you're well.

I really do. All right.

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Made possible in part by the Corporation for Public Broadcasting.

US vs: Healthcare

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

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

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Transcript

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

Hannah McCarthy: I'm Hannah McCarthy.

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

Hannah McCarthy: I can take a guess.

Nick Capodice: Why, sure you can.

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

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

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

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

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

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

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

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

Hannah McCarthy: 41 years. Wow.

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

Hannah McCarthy: Really? What was the question?

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

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

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

Hannah McCarthy: Fascinating.

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

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

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

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

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

Hannah McCarthy: Why is it so much here?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: Absolutely.

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

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

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

Nick Capodice: Yeah, a whole lot.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Speaker7: This up.

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

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

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

Hannah McCarthy: Sure didn't.!

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

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

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

Nick Capodice: Yeah, 10th out of ten.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

Why does corruption matter?

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

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

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

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Transcript

Hannah McCarthy: Hi, I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: Oh, absolutely.

Hannah McCarthy: Really?

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

Hannah McCarthy: Okay, so corruption is giving villain.

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

Hannah McCarthy: I think I know why.

Nick Capodice: All right.

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

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

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

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

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

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

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

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

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

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

Archival: You ladies want to get on.

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

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

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

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

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

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

Nick Capodice: Uh oh. Hannah.

Hannah McCarthy: Why uh oh Nick.

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

VEEP: What else do we need to talk about?

VEEP: Federal lands.

VEEP: They need to be protected.

VEEP: We need more drilling.

VEEP: For drilling purposes.

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

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

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

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

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

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

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

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

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

Hannah McCarthy: Is it really easy to say.

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

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

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

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

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

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

Nick Capodice: It seems so obvious.

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: What did that do?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: Knife to the heart hannah

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

Nick Capodice: Nature.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: It's been done.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

What is "Originalism?"

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

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

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

Click here for our episode on the Second Amendment.

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Transcript

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

Hannah McCarthy: It sure is, Nick.

Nick Capodice: What's that poem about?

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

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

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

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

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

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

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

Hannah McCarthy: I'm Hannah McCarthy.

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

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

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

Nick Capodice: This is Mackenzie Joy Brennan.

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

Hannah McCarthy: Her dad?

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

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

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

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

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

Nick Capodice: Exactly.

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

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

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

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

Hannah McCarthy: Robert Bork.

Nick Capodice: Robert Bork.

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

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

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

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

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

Archival: (Alf)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: Then Senator Joe Biden gave speeches.

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

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

Hannah McCarthy: What?

Nick Capodice: Yeah.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: Wow.

Nick Capodice: Yeah.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

What Does the President DO?

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

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

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

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

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Transcript

What does the President DO?

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

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

Hannah McCarthy: I'm Hannah McCarthy.

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

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

Nick Capodice: We have. A veritable jitterbug.

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

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

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

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

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

Hannah McCarthy: Is that Robert Frost?

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

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

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

Hannah McCarthy: Alright. Lay it on me.

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

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

Hannah McCarthy: All right, that's delightful.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: Did you get all that?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: Precisely.

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

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

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

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

Hannah McCarthy: So what did Washington do?

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

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

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

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

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

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

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

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

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

Hannah McCarthy: I do.

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

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

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

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

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

Hannah McCarthy: Have you read it?

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

Why is the voting age 18?

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

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Transcript

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

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

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

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

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Transcript

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

Christina Phillips: Are we ready?

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

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

Rebecca Lavoie: I'm Rebecca Lavoie

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

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

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

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

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

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

Rebecca Lavoie: Or if it works.

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

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

Rebecca Lavoie: They did.

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

Archive: Read my lips. No new taxes.

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

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

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

Nick Capodice: Yes. Yes, absolutely.

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

Hannah McCarthy: Nonexistent. Sorry.

Rebecca Lavoie: Yeah.

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

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

Christina Phillips: Mhm.

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

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

Christina Phillips: Yes, that is correct. And I think that was more true [00:05:00] pre 2008. There have been studies that have shown that many, many people more than actually qualifies as what we would call middle income, identify as middle income. It is true that it seems like this is where people would like to put themselves and often categorize themselves. I actually tried to find some data on what counts as, quote, middle class. The income brackets was the closest I could get, and this is from the Pew Research Center. So the Pew Research Center defines this middle income [00:05:30] household as those with an income that is two thirds to double that of the median household income after incomes have been adjusted for household size, which is a very weird it's a weird definition. Basically, it's saying that there is a range of income that counts as middle income, and then the other two categories are lower income and An upper income. So the middle income household range in 2018, which was the most recent data I could find, was 48,000 [00:06:00] to $145,000 per household per year. And approximately over the last couple of decades, that is the biggest group. So there will be, you know, at least 50% sometimes all the way up to 65, 70% of people fall into that range. The important distinction is that that range is getting smaller. So that lower income group, which is below that 48,000, and that [00:06:30] upper income group, those two groups are getting bigger. And the amount of wealth in that upper income group is much higher. So that's really the big change. But we are talking about technically the biggest demographic of incomes in America. What about middle America stands out to you?

Nick Capodice: Well, middle America. You know, I actually have no idea. I grew up in I was born in the Midwest. I grew up in New England, but I was born in the Midwest. [00:07:00] It's like, is the Midwest, middle America? Non-coastal non-coastal.

Hannah McCarthy: Yeah, that that's what I think. But it also seems a little silly, a little funny to think that, like, the middle of the country is middle America, but is that literally what we mean?

Rebecca Lavoie: Doesn't it also mean like a regular folks? I mean, there's a non-elite non-coastal. What it evokes for me, like manufacturing jobs, farming, Rust belt, religious values, like slightly more like salt of the earth. [00:07:30] Like there's a there's a like an evocation of imagery that you see, the B-roll that I see when I hear the word middle America, like in a commercial. It's all that stuff.

Archive: It's morning again in America today. More men and women will go to work than ever before in our country's history, with interest rates at about half the record highs of 1980. Nearly 2000 families today will buy new homes, more than at any time in the past four years.

Christina Phillips: Yeah, I think what's interesting is, [00:08:00] like both the vice presidential candidates are trying to capture that in a very like, I think, interesting way. Like J.D. Vance grew up in the Ohio, Kentucky region. He wrote a book, you know, the Hillbilly Elegy, about, you know, this group of white Americans that was seen as ignored, you know, by liberals.

Archive: I grew up in Middletown, Ohio. A small town where people spoke their minds, built with their hands [00:08:30] and loved their God, their family, their community and their country with their whole hearts. But it was also a place that had been cast aside and forgotten by America's ruling class in Washington. When I was in the fourth grade, a career politician by the name of Joe Biden supported NAFTA, a bad trade deal that sent countless good jobs to Mexico.

Christina Phillips: Tim Walz is, if you listen to any of the speeches like he's the football coach. He's from Nebraska, governor [00:09:00] of Minnesota. And Tim Walz is very much defining himself as homegrown, relatable guy.

Archive: Now, I grew up in Butte, Nebraska, a town of 400 people. I had 24 kids in my high school class, and none of them went to Yale. But I'll tell you what. Growing up in a small town like that, you learn how to take care of [00:09:30] each other. That that family down the road, they may not think like you do. They may not pray like you do. They may not love like you do. But they're your neighbors and you look out for them and they look out for you.

Christina Phillips: I think in terms of this election, what stands out to me is that like three of the most important states in the election right now are Wisconsin, Michigan and Pennsylvania. [00:10:00] And I feel like a lot of this middle America conversation comes up around these states that are very, very important for the Electoral College, that kind of thing. Now, I have some questions, and I tried to find a definition of like, what is the most quintessential [00:10:30] middle class middle America? Like what politicians seem to think is the most relatable demographic group. And I found a study called Middletown, USA. Are you familiar with this?

Rebecca Lavoie: No. Okay. I love it. Okay.

Christina Phillips: So this this is a study that was carried out by this cultural anthropologist power couple, Robert and Helen Lynd, in the 20th century, and it examined the people, behavior, and economic conditions of a real city in the United States that they chose because it was, quote, as [00:11:00] representative as possible of contemporary American life. Now contemporary American life being the 1920s 30s 40s. When this study was really active, they called the city Middletown in the study. It is an actual city, and we're going to talk about that. They released their first results in 1925. Follow up results were in 1929. There were also results in the 1930s. And the takeaway was nothing really changes because there wasn't a huge difference in demographics, income level [00:11:30] behavior of people in this city in Middletown, USA.

Rebecca Lavoie: Despite the Great depression.

Christina Phillips: Yes.

Hannah McCarthy: Wow, wait, really?

Hannah McCarthy: There wasn't a shift in in income.

Christina Phillips: There wasn't a significant shift in lifestyle interests and not really an income, employment or what kind of employment you had.

Rebecca Lavoie: That rings true to me, actually. Perception. Not reality. Right? Yes.

Christina Phillips: Yeah, yeah. So the idea that like, nothing really changes. Okay. So there is a huge caveat to this study, which is when they were trying to decide [00:12:00] which city to choose, the lens intentionally picked a city that was nearly racially homogenous, that is mostly white, and they focused only on the change of that white population over time. So all of the results of this study are based on the white population. And in my notes, I literally wrote, well, maybe this isn't the average town then, but, you know, I digress.

Hannah McCarthy: Well, you said that they were trying to pick the city most representative of contemporary American life, and they picked one. That's a far cry [00:12:30] from representative of contemporary American life.

Christina Phillips: Yeah, yeah. And even in the 1920s, like, there's no excuse for it.

Nick Capodice: Well, this study came out like shortly after we banned pretty much all immigration to the United States like, this was a time when we were practicing eugenics in the United States before Hitler did it a little bit later. Like, this is this is a this is a bad dark period in American history.

Christina Phillips: So this first question is, what is the city? [00:13:00] What I'm going to do is I'm going to read some facts about this city. And when you have a guess, shout it out. Okay. Okay. All right. Number one, this is not a state capital. The name of the state the city is in starts with I.

Rebecca Lavoie: Chicago.

Christina Phillips: No. Uh.

Christina Phillips: Um, the capital of this state that the city is in has the name of the state in it.

Rebecca Lavoie: And it was.

Nick Capodice: Stated in Indiana.

Rebecca Lavoie: Yeah. Yes. Is it South Bend?

Christina Phillips: No.

Rebecca Lavoie: Ah. [00:13:30]

Christina Phillips: The city gained the nickname Little Chicago during the prohibition era because it was a hideout for organized crime bosses.

Nick Capodice: Oh, I know this.

Nick Capodice: I was born so close to there. Is it Gary, Indiana? No, not Louisiana, Paris, France, New York or Rome. Okay. I'm still thinking.

Christina Phillips: The city was the location of an encounter with a UFO in a Steven Spielberg movie.

Nick Capodice: It’s got to be Close Encounters…

Nick Capodice: Is it Muncie?

Christina Phillips: It's Muncie.

Christina Phillips: And Muncie. A Muncie gal. Can you beat.

Nick Capodice: That? Have you ever seen. Have you guys ever seen, uh, The Hudsucker Proxy, the Coen brothers film?

Rebecca Lavoie: No.

Christina Phillips: But I do know a lot of films and television shows that are trying to approximate this, like, middle America. Vibe chose Muncie in part because it was like the Middletown study made Muncie. It put it on the map, kind of as like if you're looking for like the corn fed American town, right? Muncie [00:14:30] is it. So the two other facts I have is Bob Ross filmed the Joy of painting in the local PBS studio there, and the city Pawnee in the show. Parks and Recreation was inspired by this city. Wow. So we're talking about Muncie Indiana.

Nick Capodice: Go Eagles. So Eagles is their team.

Christina Phillips: Okay so Nick that's one for you. Okay. So this next set of questions are going to be about the results of the Middletown study from 1925. This is going to be Price is Right style. So I'll get a guess from each of you. The closest without going over wins. Oh. All right. All right. [00:15:00] This study organized people into two classes working class and business class. Working class built things and did manual labor. The business class was defined as people who worked with people, business owners, lawyers, physicians, clergymen, teachers. It also there was a definition that they had to get additional education or training, which I don't love that because like, I'm pretty sure that people who do manual labor also need to get additional training, but they've defined it that way. So the first question is, what percentage of the population in [00:15:30] Middletown of this study were considered working class?

Hannah McCarthy: I'm going to say 38%.

Christina Phillips: Okay. Nick, do you have a guess?

Nick Capodice: All right. Working class I'm going to say 67.

Rebecca Lavoie: Mhm. I was going to be much closer to that too. I'm going to say go one less. I'm going to make it tight. You ready. 74.

Christina Phillips: Whoa. It's 70.

Christina Phillips: You just went over 70%.

Hannah McCarthy: I mean I should because what does it take to run a city? People who make the city, right? Yeah, [00:16:00] yeah yeah, yeah.

Christina Phillips: So that one is one point for Nick. Okay. The next question, what percentage of the working class. So 70% of the community surveyed was not part of a union.

Nick Capodice: So this is the 1920s. Yeah. So it's after I'm just I'm just thinking out loud. It's after the Triangle Shirtwaist fire. Unions are starting to get big. What percentage is not in a union or isn't a union is.

Christina Phillips: Not in a union.

Nick Capodice: I'm going to say 20%. [00:16:30]

Christina Phillips: All right, Rebecca, do you have a guess?

Rebecca Lavoie: I'm going to say 45%.

Speaker9: Okay. Hannah.

Hannah McCarthy: Okay. Uh, Nick, you said 20%. I said 20. We're not in a union. We're not in a union. 50%.

Christina Phillips: 100%.

Nick Capodice: Oh, none of them were in a union.

Christina Phillips: Unions have been driven entirely out of Muncie at the time of the study, which I think is funny, that they're like, this is representative of America, right? And I think you had the highest number, right?

Hannah McCarthy: 50. Yeah.

Christina Phillips: So you get that one.

Nick Capodice: Well done. Yeah.

Hannah McCarthy: For [00:17:00] your one point.

Christina Phillips: What percentage of the population studied lived in a nuclear family. So this is defined as two parents and some children.

Rebecca Lavoie: I'm going to say 85%. Okay.

Hannah McCarthy: I'm going to say 80%.

Christina Phillips: Okay. Wow. Nick.

Nick Capodice: Also, who's not a nuclear family? I'm thinking like grandparents. You know who you know, the kids have moved out or, you know, single men and women. Uh, but Muncie, you said 85.

Rebecca Lavoie: I said 85. You said.

Nick Capodice: 80. [00:17:30] I'm going for broke. I'm going 90%.

Christina Phillips: It's 86. So Rebecca was basically right. Rebecca there. Yeah. Okay, so a couple of other facts about Muncie at this time. The elite class, which was a subgroup of the business class that held government positions, it was entirely Republican.

Rebecca Lavoie: Did airlines like, just steal this terminology for their seating, like straight from the study?

Nick Capodice: Oh my goodness.

Rebecca Lavoie: It's incredible.

Hannah McCarthy: I was thinking the same thing.

Rebecca Lavoie: It's like their point system just came right from this.

Christina Phillips: Yeah, yeah. [00:18:00]

Christina Phillips: So that is Middletown, USA, aka Muncie, Indiana. Wow. Nick, you have two points. Hannah. You have one point. Rebecca. You have one point. Okay, off we go. This [00:18:30] next set of questions is called the Goodfella, and it is about how candidates have attempted to appeal to voters by making themselves seem more relatable. And in doing so, I think they're pretty revealing, intentionally or not, about what they actually think is relatable. Um, to quote the character Henry Hill in Goodfellas, who ran with the Lucchese crime family right after I got here, I ordered some spaghetti with [00:19:00] marinara sauce, and I got egg noodles and ketchup. I'm an average nobody. Okay, so this is actually based on an email from a listener named Haley. So here's what Haley says. I am so tired of candidates referring to the price of gas and eggs specifically.

Nick Capodice: What's interesting, I started carrying in my pocket a little laminated sheet of the price of crude oil around the world, and then the price of gas mirrored over that. And it's exactly the same thing. So, you know, why aren't we getting mad at the president of, you know, Uganda anywhere in the world? Yeah.

Christina Phillips: I [00:19:30] think it's interesting that presidents love to talk about the price of gas as a campaign like stump thing. When your episode is demonstrated, they do not control the price of gas.

Nick Capodice: But they have nothing whatsoever to do with the price of gas.

Christina Phillips: But they know that we think they do.

Archive: More Americans are working, more have health insurance, incomes are rising, poverty is falling, and gas is $2 a gallon.

Archive: I didn't even I. [00:20:00]Thank you for reminding me. Thanks, Obama.

Christina Phillips: Okay, so what I'm going to do is I'm going to read you excerpts from some speeches from people who were eventually elected president. So these are all former presidents and the first person to guess who the president is wins. Okay. So here is the first speech excerpt where I grew up, the town motto was the sky's the limit. And we believed it. There was a restless energy, a basic conviction that with hard work, [00:20:30] anybody could succeed. And everybody deserved a chance. There were dry wells and sandstorms to keep you humble, lifelong friends to take your side, and churches to remind us that every soul is equal in value and equal in need.

Hannah McCarthy: George H.W. Bush.

Christina Phillips: It's not. This president attended Yale and Harvard.

Rebecca Lavoie: George W Bush. Yes it is.

Hannah McCarthy: Oh come on. Technically, they're talking about the same place.

Christina Phillips: Yeah, this [00:21:00] is true. This is true. Yeah. So this is him accepting his presidential nomination at the RNC in 2000. And yeah, as we've said, he's he's the son of a former president. I mean, come on. And also, he attended Phillips Andover in Massachusetts. He went to Yale. He went to Harvard. He started his own oil business in Texas. I don't know, those wells.

Hannah McCarthy: Didn't run dry that. Much.

Christina Phillips: Okay. So that is George Bush trying to appeal to the Americans. All right. The next one. I used to milk cows by hand. I used to plow with a [00:21:30] four horse team instead of a tractor. I used to sow wheat with a drill that had only 12 hoes on it, and I used to cut wheat with a binder that cut eight feet wide. So this is a Democratic president who was born in the 19th century. This president also served as vice president. And this president was one of the architects of NATO.

Nick Capodice: Truman.

Christina Phillips: Yes.

Christina Phillips: Truman was one of the least wealthy presidents in history. So, you know, relating to people in [00:22:00] that way, I think he probably could do it better than a lot of other presidents. But one thing I thought was interesting was that Congress increased the presidential salary while he was in office from 75,000 to 100,000, and also gave the president $50,000 in tax free money. And these inflation calculators that we always see are never accurate, but it's about a salary of $1.2 million today. Do you know the current salary of our president right now?

Rebecca Lavoie: Isn't it 250 thousand or [00:22:30] 75?

Christina Phillips: $400,000 oh.

Rebecca Lavoie: Oh wow. Wow.

Rebecca Lavoie: Big inflation.

Christina Phillips: He is one of those presidents that gained a lot from being a president. Like he walked away from it in a really good position. So here's the next speech. If you can stretch your imaginations back this far. My own college days happen to fall during the Great Depression. I had to work my way through college. As a matter of fact, I had one of the best jobs I've ever had while I was doing [00:23:00] that washing dishes in the girls dormitory. But seriously, those were days when announcements telling people not to leave home looking for work because there was none were made on the radio. Well, when I got my diploma, unemployment was around 25%. Yet here we are, just a half century later, and we Americans are enjoying a standard of living Undreamt of when I was your age.

Nick Capodice: Who would make.

Nick Capodice: A little funny joke about the, you know, washing dishes in a place surrounded by ladies. I'm gonna guess Jimmy Carter. It's not Jimmy. [00:23:30]

Rebecca Lavoie: No. Darn it! It was too. He was too young. Too young? Yeah. Yeah. Because he was actually born after Kennedy. Okay.

Christina Phillips: So here's a hint. Worked as a sports broadcaster. This president also served as the president of the Screen Actors Guild.

Rebecca Lavoie: Ronald Reagan. Reagan. Yeah.

Christina Phillips: Rebecca. You snuck it in there. This was from remarks to students and faculty at Purdue in Indiana in 1987. It was also something he told the story about at a student Q&A in Kansas in 1983. A student Q&A at a high school in Illinois in 1984, and at a fundraiser in Eureka [00:24:00] College in 1986. So, like Kate accused Lizzie of being an out for repeater on the iconic Disney Channel show Lizzie McGuire. I accuse Ronald Reagan of being a speech repeater, which is actually something a lot of candidates do all the time.

Christina Phillips: Yeah. Well, I think it's funny.

Nick Capodice: Like, there's a lot of great videos of Reagan telling America Russia jokes on YouTube, which he had a really good joke delivery.

Rebecca Lavoie: Yeah. He was an.

Nick Capodice: Actor. Nobody tells. Yeah, but nobody tells jokes anymore. And he would just tell funny political jokes. I just missed that.

Archive: The story was an American and a Russian arguing about their two countries. And the Americans [00:24:30] said, look, in my country, I can walk into the Oval Office. I can pound the president's desk and say, Mr. President, I don't like the way you're running our country. And the Russian said, I can do that. The American said, you can. He says, yes, I can go into the Kremlin, to the general secretary's office, pound his desk and say, Mr. General Secretary, I don't like the way President Reagan's running his country.

Christina Phillips: So the score right now is Rebecca has three, Nick has three, and Hannah [00:25:00] has one. Yep.

Rebecca Lavoie: All right. Next two days everybody. Yeah.

Christina Phillips: This category is called again America great make. Which is just make America Great Again in alphabetical order.

Christina Phillips: I will be here all night.

Christina Phillips: This is not for points. But which president? Before Trump made that slogan famous? [00:25:30]

Nick Capodice: This is the Gipper. Ronald Reagan, right?

Christina Phillips: Yes, yes. This was in his Republican nomination acceptance speech in 1980. It was also used by Bill Clinton in speeches in 1992, and of course, Donald Trump in the 2016 and 2020 and now 2024 presidential election.

Archive: We will make America proud again. We will make America safe again. And we will make [00:26:00] America great again. Thank you. Ohio.

Archive: Thank you. Thank you.

Christina Phillips: A lot of listeners asked us to talk about this. So I've got a category that's basically about what does Trump think is the greatest time in America when he says Make America great again. When is he talking about? We actually have an answer from an interview he gave in 2022 to the New York Times. Does anyone have a guess.

Hannah McCarthy: When he thought the greatest [00:26:30] era in America was, yeah, like just after World War two?

Nick Capodice: Yeah. The 50s.

Christina Phillips: Yeah. So he said that it was after World War II was one that was the first period and.

Rebecca Lavoie: Then the 80s, not.

Christina Phillips: The 80s. He said the turn of the 20th century, which Trump said was when, quote, the machine of entrepreneurship was built.

Hannah McCarthy: The entrance into the 20th century.

Christina Phillips: Yeah, yeah.

Hannah McCarthy: Like the Gilded Age.

Hannah McCarthy: The Gilded Age. So, like the height of poverty in cities, you mean? Yeah. You know, it was really bad [00:27:00] for a lot of people.

Nick Capodice: Black lung. Yeah, that was a tough time. Children falling into mills.

Hannah McCarthy: I should say. Height of poverty and height of wealth. Right. Yes, exactly. It was. This was like the same era that Jacob Riis published all of his photographs of what was actually happening while people were throwing balls and like.

Rebecca Lavoie: An age of great disparity.

Hannah McCarthy: Yes, yes. Great disparity.

Nick Capodice: Children throwing stick balls in how the other half lives and rich people throwing balls on Park Avenue.

Rebecca Lavoie: Yeah, it was like the pre-setting for Annie, right? Like, that's how I like to think.

Hannah McCarthy: Yeah, yeah.

Nick Capodice: That's good. Yeah.

Christina Phillips: Okay, so I have [00:27:30] a question for each of you about this turn of the century. So this era that President Trump thinks was one of the greatest. So, Hanna, first question for you in 1900, this titan of the oil industry and the namesake of an oyster dish with breadcrumbs and spinach controlled more than 90% of the nation's oil refineries. Who is it?

Hannah McCarthy: This is not my wheelhouse.

Christina Phillips: Oyster dish with breadcrumbs.

Hannah McCarthy: Yeah, I don't eat shellfish. Oh, God.

Rebecca Lavoie: Okay.

Hannah McCarthy: I might be an East coaster, but. Okay. Yeah, [00:28:00] I know, sorry, guys.

Rebecca Lavoie: Oh, my God.

Nick Capodice: It's a it's a person who's mentioned in one of the greatest songs ever written, sung by Taco Bell and Fred Astaire. Puttin on the Ritz. Also in Young Frankenstein.

Hannah McCarthy: Rockefeller. Yeah. Yes. It's Rockefeller. Oh, okay.

Christina Phillips: Let me give you that.

Hannah McCarthy: Okay. Thank you.

Christina Phillips: Um, Nick, next question for you. This board game allows you to, quote, gossip with other passengers, receive telegrams and collect all five pieces of your personal property to advance from the second class to the first class section of the ship. But watch out, you might get put back in third class or worse [00:28:30] yet, never make it to your lifeboat in time.

Nick Capodice: Oh my gosh. So there is a board game called Titanic. There is. Oh my gosh, when was it made?

Christina Phillips: It was made in 1998 by an uncredited designer. It says it uses the similar system to escape from Colditz. I don't know if you know what that means.

Nick Capodice: I do know escape from Colditz.

Christina Phillips: So you must collect necessary items to make it to a lifeboat before the Titanic sinks. There's also a game that was created in 2022 called deckchairs on the Titanic, where you compete [00:29:00] to earn tips from happy customers whilst the ship sinks. Which, ooh, dark.

Hannah McCarthy: Yeah, yeah.

Nick Capodice: That's a game I would play.

Rebecca Lavoie: Have you seen a Kamala Harris tip that she gave a child for speaking in public? The tip is, if you have a fear of public speaking, think of yourself as being somebody on the Titanic who knows that it's sinking and you are the only person who has that information, and you must convey it because you have the knowledge. So when you're talking to people, even if you're afraid, remember there's something that you know that they don't that you have to tell them. [00:29:30]

Archive: Are you going to worry about how you look.

Archive: And how you sound? No, no, because the thing that's most important is that everyone knows what you know, because.

Archive: They need to know what you know. You see what I'm saying?

Rebecca Lavoie: So I like that a lot. Decent tip. I mean.

Hannah McCarthy: Ideally, you're not like, screaming it. No, I was going to.

Christina Phillips: Say I don't think that I would be a good public speaker if I saw that iceberg.

Nick Capodice: Congratulations on your commencement. Oh, Jesus.

Nick Capodice: I took the road less traveled [00:30:00] by.

Hannah McCarthy: Made all the difference.

Rebecca Lavoie: It was inside myself all along.

Christina Phillips: Okay, Rebecca. This question is for you. At the 1893 World's Fair in Chicago, which showcased marvelous inventions such as the zipper, the Ferris wheel, and Cracker Jacks, it was also the location of a three story mortar hotel for a serial killer [00:30:30] who confessed to killing 27 people. What's the name of the serial killer?

Rebecca Lavoie: Oh, it was the basis of the book devil in the White City.

Nick Capodice: Ah, the last name Rebecca of the serial killer is shared by someone called the greatest fictional detective in the world.

Christina Phillips: Mhm.

Rebecca Lavoie: Oh, is it Holmes? I don't know.

Christina Phillips: H.H. Holmes.

Christina Phillips: And by the way, he's from New Hampshire originally. Great. Wonderful. Find out in the devil in the White City. You will not hear about him for like the first like five chapters. Just get ready. You're going to read a lot about the elevator.

Hannah McCarthy: Teased. It's been teased that girls are disappearing and young men are disappearing. [00:31:00] And so I know something's about to happen.

Christina Phillips: That book is really about the World's Fair and about architecture, which is why I love it. Okay, so the score is four. Rebecca. Four. Nick two. Hannah. All right. By the way, a 2016 New York Times study asked Americans what they thought the greatest era of America was, and they chose before 9/11. That was the era that was chosen.

Rebecca Lavoie: All of that time.

Christina Phillips: Before 9/11. And now we're going to take a quick break. And when we come back, we will talk about elites. [00:31:30] We're back.

Christina Phillips: This is Civics 101. We are doing civics trivia, all about the words that politicians say during a campaign cycle. Right now we're going to move on to something we hear all the [00:32:00] time, and we have an email from a listener about this. And that is the term elites. Elites, the umbrella term. Okay. So here is an email from Josie. Hi Civics 101 team, I saw your most recent emails that you're looking for campaign trail tropes. So I asked my family for suggestions and this is what we came up with. Coastal elites, blah blah blah economy from the bottom up and the middle out. The American people. Extremism. Grassroots. Woke parent [00:32:30] rights. Thanks so much for making Civics 101. All the episodes are really interesting, and it's useful to be able to listen to old episodes about court cases or important documents that I need to know for my AP government class. Josie 15 years Arlington, mass. Thank you so.

Hannah McCarthy: Much. Thank you Josie. Thank you.

Christina Phillips: Yes, I if it's okay with you, Josie would like to take Coastal Elites and broaden it out to just elites, if that's all right, because I think coastal elites are part of that. But elites as a term is interesting because it's been used by [00:33:00] different politicians from different parties over time. We've got, of course, the coastal elites. We've also got the Washington elites, the corporate elites, and then just generally accusations of elitism. The key here is that elite is used as a criticism, which is interesting from a language perspective, because if you think of describing like an athlete or a product as elite, it's a good thing. The elite five blade shaving tool. But when somebody is called elite, it's a bad thing.

Hannah McCarthy: To my understanding. So I grew up just south of Boston. [00:33:30] I went to high school in Boston. I went to college in Vermont in a school that's just like kids sitting around talking about philosophy and dancing.

Rebecca Lavoie: It's elite.

Hannah McCarthy: Right? It's elite. And then. And then I got a second degree in New York City and like. And yet at the same time, like, my car broke down two days ago, and like, I don't have enough money to fix it, right?

Hannah McCarthy: So it's been broken down since I've known you.

Hannah McCarthy: I've been driving a rickety old Honda Civic. Is being an elite an ideological [00:34:00] thing? Is it presumed that given these experiences in life, I feel certain ways about the world? Yes. Because it's like my bank account is not elite.

Rebecca Lavoie: What I hear when I hear this word, and I remember it sort of coming into fashion, Is. I mean, in my lifetime, when I remember coming to fashion, it sort of presumes people who think they're smarter than you. Christina, I'm pointing at you like you're the avatar for, like, the audience for whom this is intended. Right. Like, I am the politician. And the elites believe that they know what's best for [00:34:30] you. But you are not like that. You are regular. Like you are just a person who may or may not go to college. And that's okay. You are just a person who may or may not have read this or done that or you know. And it's like, and that's okay, because we're just regular folk. We're not the elite. But that's what evokes for me.

Nick Capodice: For me, it's interesting, just in the last 20 years or so of hearing the term sort of bandied about, it's that it's usually people who are exceptionally wealthy.

Rebecca Lavoie: And who went to Ivy League schools.

Nick Capodice: Who went to Ivy [00:35:00] League schools because their father did and because their father did. You know, and these accusations of elitism are always sort of anti-intellectual. It's felt to me, as opposed to don't pay attention to the fact that I am literally one of the richest Americans in the country. It always kind of smacked funny to me.

Christina Phillips: Yeah, it's interesting, like as you each have reacted to it, it's sort of like building on this like thesis of elite that I found from a book that was written that was sort of building on this definition of elite that I found that is seen as maybe a seminal definition from [00:35:30] a book called The Power Elite by an American sociologist called C.wright Mills. He wrote this book in 1965, and he wrote it specifically to critique a certain group of people who held a lot of power and wealth. So, Hannah, to your point, like, am I considered part of the elite? To some people, yes. I lived on the coast. I got multiple degrees. And then also the way that politicians talk about elites, even if they are one to the American people to kind of say, like, you shouldn't trust these people because they're not like you. But [00:36:00] then also the people who are using this phrase elite are often part of one elite category, and they're speaking about other people in this elite category. They're using a term that sort of describes themselves.

Rebecca Lavoie: It cuts both ways, right? Because Elizabeth Warren uses it about corporate America. She's a Harvard professor, right? She can be called an elite by the people who look at the intellectual class as elites. And she's using the term to describe, you know, the business minds who think that they know what's best for you [00:36:30] and need to be like anti-monopolist or whatever. So it's very interesting.

Christina Phillips: Yeah. So I'm going to read a quote from Mills when he defines this group. He said the most impersonal problems of the largest and most important institutions are fuzed with the sentiments and worries of small, closed, intimate groups. In such circles, adolescent boys and girls are exposed to the table conversations of decision makers and thus have bred into them the informal skills and pretensions of [00:37:00] decision makers. Without conscious effort, they absorb the aspiration to be, if not the conviction that they are the ones who decide. And he said that there are certain categories that the elites are. They run big corporations. They run the machinery of the state and claim its prerogatives. They direct the military establishment and most importantly, they do not see themselves as elites. Wow. So [00:37:30] I have a very dumb trivia about things that have been called elite and things that politicians have done that have been considered elite. Okay. So I'm going to go around you each will get a question. So Hannah, you first you have to identify this elite object or behavior. Okay. Okay. This peppery tasting green has its origins in the Mediterranean. When I googled the recipe using [00:38:00] this ingredient, the first result was from the New York Times cooking website with over a thousand reviews. It's blanc salad with parmesan arugula. Yes, this is arugula. Now, do you remember which politician was called elite for eating arugula?

Hannah McCarthy: I remember that quote unquote insult, but I don't I don't remember...

Nick Capodice: Were they called arugula munching, Chardonnay sipping? Is it like Al Gore?

Christina Phillips: It's actually a politician who, like, talked about arugula in a speech and [00:38:30] everybody jumped on it. Former President Obama, he once said on the campaign trail, anyone gone into Whole Foods lately and seen what they charge for arugula and the culture lost it. It was called arugula gate.

Rebecca Lavoie: To be fair, a lot of people don't go to Whole Foods to check out the price of anything because, yeah.

Nick Capodice: There goes our Whole Foods sponsor.

Christina Phillips: Yeah. Sorry. He was trying to appeal to this idea of expensive food prices that maybe the president can or cannot control, and he just failed.

Rebecca Lavoie: Perhaps Whole Foods is not the best example. [00:39:00]

Nick Capodice: Okay. He was the president. Couldn't he have lowered the price of arugula?

Speaker9: Just kidding. Getting it.

Hannah McCarthy: Also, the president's not going shopping. That's the other thing that's hilarious about that.

Rebecca Lavoie: They don't carry money.

Christina Phillips: So Nick, this question is for you. Identify the elite object or behavior. This thing was first used on a ten pack of Wrigley's chewing gum in 1974. [00:39:30] It can be used by an employee to speed up transactions, or by people like me, who want to avoid those same employees because they are afraid of being judged in the grocery store line.

Nick Capodice: I think it's the barcode that you scan the UPC code?

Christina Phillips: Yes the grocery store scanner.

Nick Capodice: Did you know that in Norway the boats have UPC codes on the side?

Christina Phillips: That's really smart.

Nick Capodice: So that when you go out you can skandinavian.

Christina Phillips: Oh no, oh no, I fell for your joke.

Hannah McCarthy: Poor Christina. Wow. That's a really good idea. [00:40:00]

Christina Phillips: Okay, so do we know which president was accused of not knowing what a grocery store scanner was or how to use one, and that that was elitist?

Nick Capodice: I have a guess on this. I remember because I was in debate club in eighth grade, and we were fighting about whether or not a president should know how to scan something in. I think it might have been George H.W. Bush. Yeah, it is.

Christina Phillips: So to be fair, he was not actually grocery shopping when this happened. He was at a grocery store [00:40:30] convention in Florida, and he just seemed really impressed by the scanner. And so one New York Times headline was Bush Encounters the Supermarket comma amazed.

Christina Phillips: All right.

Christina Phillips: Rebecca, this is for you. Most often used by mechanics, soccer player Lionel Messi also had one in his apartment building so he could step right out of his car and straight into his living room.

Rebecca Lavoie: Is this a car lift? [00:41:00] Like a jack? Yeah, it's.

Christina Phillips: A car elevator.

Hannah McCarthy: Wow. Yeah.

Christina Phillips: So which presidential candidate was accused of being elitist because he wanted to install one in his house?

Rebecca Lavoie: Mitt Romney?

Christina Phillips: Yes. Good job.

Rebecca Lavoie: Thank you. Thank you very much. I am a student. I am a student of Mitt Romney and Mitt Romney's entire thing, because I worked in the newsroom at NPR during that campaign. I remember all the stories that we get to publish on our website about the wealth, because Mitt Romney also has a huge compound [00:41:30] on Lake Winnipesaukee here in New Hampshire. There's a lot there's a lot of there there.

Christina Phillips: The one that I found, for example, was his beach house in La Jolla in San Diego. He wanted to install a car elevator. So one good headline from this was, what is a car elevator? And why does Mitt need one. From the Atlantic.

Christina Phillips: So there we go. Okay. Um, Rebecca, you have five points. Nick, you have five points. Hannah. You have three points. Okay. I think maybe Hannah. This this will be your category, but I might be wrong.

Hannah McCarthy: We'll see.

Christina Phillips: Okay, [00:42:00] so this last and final category, also about elites, is called the Undead Elites. In 2004, the Republican PAC club for growth took out an attack ad against Democrat Howard Dean, who was the former Governor of Vermont and a candidate in the 2004 presidential primary. And the ad accuses Dean of doing a bunch of things that are elitist, like it stands out in history as like one of the most interesting attack ads, I think. And so I'm going to go around and I'm going to ask [00:42:30] you each if this so-called elitism describes Howard Dean or the most famous and important millennial coastal vampire, Edward Cullen, famously played by Robert Pattinson in the greatest saga.

Hannah McCarthy: Yes.

Nick Capodice: Nice knowing you guys.

Christina Phillips: So that's this coastal vampire played by Robert Pattinson. The greatest saga of our generation, the Twilight Saga. When I tested this trivia with my boyfriend, he was like, you have to say who Edward Cullen is because people might not know. And I was like, I just made you watch all of the Twilight movies. [00:43:00] And he was like, but people might not know. So there you go. That's what we're talking about. Hannah? Yes. Is this an elitist trait of Howard Dean or of Edward Cullen, coastal vampire? Reading the New York Times.

Hannah McCarthy: I'm gonna say Edward Cullen.

Rebecca Lavoie: No, it's Howard Dean, right? He got accused of reading the New York Times.

Christina Phillips: He got accused of reading the New York Times.

Hannah McCarthy: He got accused of reading.

Christina Phillips: In this ad. This ad basically [00:43:30] says, like, Howard Dean You, blah blah, blah, blah, blah, blah, blah, blah, blah, elitist.

Christina Phillips: Ad, to my knowledge, and my deep reading and watching of all the Twilight things. I've never seen him read. He never references the New York Times.

Hannah McCarthy: Okay, okay.

Christina Phillips: Fair enough. Nick, is this an elitist trait of Howard Dean according to this attack ad, or is it a trait of cold and sparkly? Edward Cullen vegetarian.

Nick Capodice: Vegetarian. Now, is doctor Dean a vegetarian? Well, the vampire is not vegetarian if they drink blood. So I'm going to go with doctor Dane. No.

Nick Capodice: How [00:44:00] could a carnivorous undead creature who drinks the blood from living.

Rebecca Lavoie: To prevent himself from drinking the blood of living victims.

Christina Phillips: He only drinks animal blood Nick.

Nick Capodice: Oh, I didn't know that. He's like the Bunnicula of real people.

Christina Phillips: He calls himself a vegetarian. He says we're vegetarians.

Nick Capodice: Okay.

Christina Phillips: Because they only drink animal blood.

Christina Phillips: Well, none for you.

Nick Capodice: Just what you see on the side of the tin, I guess.

Christina Phillips: All right. Rebecca. Elitist Howard Dean or erudite Edward Cullen? Body [00:44:30] piercings.

Rebecca Lavoie: I was really hoping you were going to say something else. Um, Howard Dean.

Speaker9: It is Howard Dean.

Rebecca Lavoie: Earring right?

Christina Phillips: Um, okay, so here's the thing. I had to do a cursed Google image search for Howard Dean piercing, because I was trying to figure out none of his photos show a piercing of any kind. I was, like, zooming in on his ears to see if there were piercings in his lobes, but I could not find a single image where he had an ear piercing. But in this ad they claim that he has a body piercing. [00:45:00]

Rebecca Lavoie: Mhm.

Christina Phillips: So if you've seen it I tell you I'm just like zoom, zoom zoom in on pictures. I'm like I can't see a piercing. So I'm assuming he has one or they just are accusing him of having body piercings.

Rebecca Lavoie: Yeah. Maybe that's what that scream was about. Yeah.

Nick Capodice: We're going to Oregon and Michigan.

Christina Phillips: Uh, Hannah?

Hannah McCarthy: Yes.

Christina Phillips: Redemption.

Hannah McCarthy: I hope so.

Christina Phillips: Is this an elitist trait of Howard Dean or of Edward Cullen? Vegetarian vampire latte drinking?

Hannah McCarthy: I'm gonna say Howard Dean.

Christina Phillips: It is Howard Dean. [00:45:30]

Hannah McCarthy: Yeah, that one's too easy. I don't think vampires can consume food. It makes them sick, right?

Christina Phillips: Yeah, I mean, they they say it just tastes like dirt or ash or something.

Nick Capodice: Somebody especially like lactose, right?

Speaker9: Especially lactose.

Hannah McCarthy: Especially that.

Speaker9: Nick.

Christina Phillips: Howard Dean or Edward Cullen piano playing.

Nick Capodice: Oh, boy. Uh, well, I don't think I can't really see Howard Dean tickling the ivories, you know, because he would have made a song out of it if he had. If he had, I'm going to say Edward Cullen, the vampire. [00:46:00]

Christina Phillips: You are.

Christina Phillips: Correct. Nice job.

Nick Capodice: Well, they call me a Twilight expert, and that's why.

Christina Phillips: Okay. Rebecca.

Speaker9: Volvo driver Edward.

Christina Phillips: Cullen. Okay. This is actually a trick question. It's both. But I'm going to give you the point.

Rebecca Lavoie: Oh, Edward Cullen is famously a Volvo driver. And he's like, has that R type Volvo. And he's like super into it. And it made me think that like the author maybe had like just gotten a Volvo and she was super into it because like there's a lot of description of that car in those books - a lot.

Hannah McCarthy: There is a lot of car talk.

Rebecca Lavoie: Yes.

Rebecca Lavoie: Yeah. [00:46:30]

Christina Phillips: Big Volvo was really in on the Twilight Saga.

Hannah McCarthy: That was the only time I was like, this is so boring.

Christina Phillips: Yeah, I do when I - when I showed Ben all the Twilight movies, he was like, is that a Volvo? When he, like, does his, like famous turn to, like rescue her from the men because he read his.

Rebecca Lavoie: Volvo R type station wagon?

Christina Phillips: It's like it's a real sporty car, guys.

Rebecca Lavoie: So specific, so specific.

Christina Phillips: Okay, so here's the [00:47:00] full quote of this ad. Howard Dean should take his tax hiking, government expanding, latte drinking, sushi eating, Volvo driving, New York Times reading, body piercing, Hollywood loving left wing beep show back to Vermont, where it belongs. The beep is not a swear, but it's a pejorative word that I don't want to say.

Rebecca Lavoie: Oh, okay.

Christina Phillips: So we've reached the end of our trivia. Final score, Hannah. [00:47:30] Four points. Yeah, Nick. Six points. Rebecca seven points.

Nick Capodice: Oh, well done.

Rebecca Lavoie: Rebecca. I don't think I've ever won one of these. This is so exciting.

Nick Capodice: You did very well.

Nick Capodice: This is fantastic. What was your favorite part of you being so smart today?

Rebecca Lavoie: Edward Cullen driving a Volvo.

Rebecca Lavoie: I was like, oh, I was, I was I had my fingers crossed.

Speaker9: Yeah. Yeah.

Rebecca Lavoie: I was like, please, oh please oh please.

Hannah McCarthy: Oh. If you had said multiple degrees, that would have been a good one too. That's right.

Hannah McCarthy: Oh [00:48:00] yeah.

Christina Phillips: That's actually. Yeah, that is a good one.

Christina Phillips: Multiple high school degrees.

Christina Phillips: I can't believe. I can't believe they never go beyond high school in those movies.

Nick Capodice: Oh, can I tell a funny Howard Dean story? Please do. We started. Hannah and I started as co-hosts. Like, what, six years ago or something like that. And one of your first interviews, you were like, well, I'm doing one in presidential campaigns. It was Howard Dean's campaign. His campaign manager. And you were like, should I ask him about The Scream? And I was like, yeah. And then you asked the guy and he was like, do you think I'm not ready to talk about the scream?

Hannah McCarthy: Yeah. Yeah.

Nick Capodice: I'm talking about the scream [00:48:30] until I'm dead. I used to watch You're the Man Now dog videos of, like, heavy metal mash ups of that of The scream. Yeah. Yeah. I miss those days.

Rebecca Lavoie: Yeah. I like the goat mash up. You know the Taylor Swift goat one?

Hannah McCarthy: Oh, yeah. Oh, yeah. Yeah.

Nick Capodice: Trouble when you walked in?

Christina Phillips: Yeah.

Rebecca Lavoie: I will say, I cannot believe that the most gratifying thing for me to learn today is that we have not one, not two, but three Twilight experts working on this team. [00:49:00]

Speaker9: Sorry, Nick. That's all right. I mean, at least you can start anytime. Nick.

Rebecca Lavoie: That makes us elites, right?

Speaker9: I mean, we are elites. We are elites.

Christina Phillips: Unfortunately.

Rebecca Lavoie: Thanks so much, Christina.

Speaker9: All right. Thank you. Christina.

Christina Phillips: This episode was produced by me, Christina Phillips, and edited by our executive producer, Rebecca LaVoy. Music in this episode from Epidemic Sound [00:49:30] and Chris Zabriskie Civics 101 is a production of NPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

So Long, Chevron

The Chevron Doctrine, or Chevron Deference, was an established judicial principle. When the law was ambiguous, the courts would let the agency experts interpret it. After a Supreme Court case called Loper Bright v Raimondo, that is no longer the case. So what does that mean? What exactly has gone away? What happens next?

Our guides to the wonkiest of  the wonk are Robin Kundis Craig and Mustafa Santiago Ali.

---

Transcript

Hannah McCarthy: [00:00:02] Hi, Nick.

Nick Capodice: [00:00:03] Hello, Hannah.

Hannah McCarthy: [00:00:05] This is Civics 101. But today, Nick, we're going to dip a toe into 202.

Nick Capodice: [00:00:13] Oh, boy. All right.

Hannah McCarthy: [00:00:18] Today we are talking about something that is wonky. And by that, I mean it's actually about being wonky. As in preoccupied with [00:00:30] arcane details, especially arcane policy details.

Nick Capodice: [00:00:35] All right. Hannah. Oh.

Hannah McCarthy: [00:00:39] I think we are all going to come out of this one semi understanding something that a lot of us don't understand at all. And Nick, isn't that the point of this show?

Nick Capodice: [00:00:48] Yeah. Hannah. Fine.

Hannah McCarthy: [00:00:50] All right. Let's get to it.

Robin Kundis Craig: [00:00:56] Uh, hi. My name is Robin Kundis Craig. Greg. I am [00:01:00] the Robert H. Schroeder Distinguished Professor at the University of Kansas School of Law. I teach environmental law subjects and write about administrative law and climate change.

Hannah McCarthy: [00:01:16] I called Robin up to talk about something called the Chevron Doctrine. And the reason I wanted to talk about it is because the Supreme Court recently overturned it in a case called Loper Bright Enterprises [00:01:30] v Raimondo.

Nick Capodice: [00:01:32] You mentioned this one before on the episode on the Supreme Court docket. This is the case that's about fisheries.

Hannah McCarthy: [00:01:38] Yes, fisheries and federal regulation. But for the purposes of this episode, here is what I want you to keep in mind two basic principles. One, I.

Robin Kundis Craig: [00:01:50] Mean, there's no question that the courts have the basic authority to interpret statutes. Congress has statutes that's, you know, laid out in article three. It's recognized in the [00:02:00] Federal Administrative Procedure Act.

Hannah McCarthy: [00:02:02] Courts can interpret laws. That's pretty straightforward. All right. And two, the.

Robin Kundis Craig: [00:02:07] Issue that people worry about is the court's expertise. Because in some of these statutes, you're getting into some pretty technical issues.

Hannah McCarthy: [00:02:19] Judges are not experts of all agency minutiae. Now, this one is, I think, a little bit trickier, but on its face should seem [00:02:30] kind of clear. So the Chevron doctrine.

Robin Kundis Craig: [00:02:33] Okay, so the Chevron doctrine came in in a fairly early Clean Air Act case, Chevron versus NRDC.

Hannah McCarthy: [00:02:42] Okay, Nick, I think it is fairly common for the details of a Supreme Court case to feel a little obtuse. You get just below the surface and you find yourself in a sea of legal arcana. But with Chevron, the surface itself is, well, [00:03:00] listen for yourself.

Robin Kundis Craig: [00:03:01] And what was going on in that case was that the EPA had decided that the term stationary source, which is a defined term in the Clean Air Act, but it's defined ambiguously, particularly because it refers to both a facility and a emission source, like a smokestack. So the question was, what if you have a big facility [00:03:30] like a factory that has multiple smokestacks, do you count that as one stationary source, or do you count it as ten stationary sources? And so it was a matter of interpreting the statute to figure out what Congress would have wanted or whether it had left discretion to the EPA.

Nick Capodice: [00:03:51] When Robin says so, the question was, Does she mean? Like the question like this is the question before the Supreme [00:04:00] Court how to define smokestacks? Because when I think about the questions the court is answering, they tend to be a little more straightforward. Like, does the segregation of public education based solely on race violate the Equal Protection Clause of the 14th Amendment? That kind of thing? I can wrap my mind around that.

Hannah McCarthy: [00:04:19] Yeah, I think the trick with Chevron is not letting your eyes glaze over at the details of this case, because it is so inside baseball, which Nick [00:04:30] is actually the point. Congress passed a law that said that states needed a permit for something. The EPA, the Environmental Protection Agency, said, actually, we have a rule based on that law that says you don't. And so the Supreme Court had to decide whether the EPA was allowed to do that.

Nick Capodice: [00:04:52] So, in short, and correct me if I'm wrong here, they had to decide whether a federal agency was allowed to interpret [00:05:00] a federal law.

Hannah McCarthy: [00:05:02] So yeah, Congress says something and the EPA says this something means this. And then Scotus says, okay, EPA, you are allowed to do that. Congress was vague, and the EPA is within its rights to interpret the law that way.

Nick Capodice: [00:05:21] And that is the Chevron doctrine.

Robin Kundis Craig: [00:05:24] What the Supreme Court said in Chevron is that if Congress [00:05:30] has not spoken to an issue, or if it's actually ambiguous, when you try to apply the statute in place, which was the case in Chevron, again, a stationary source could be either the factory or the smokestack. Um, then what we're going to do is defer to the agency that's in charge of fulfilling that statute or in charge of implementing that statute.

Nick Capodice: [00:05:57] Defer to the agency [00:06:00] when Congress hasn't been specific about something.

Hannah McCarthy: [00:06:02] Yes. And we also call the Chevron doctrine the Chevron deference and that deference part that is coming from the judiciary. They are the ones deferring, like when an agency rule is challenged in a court, a court cannot swap out its own interpretation of a federal law for the agency's interpretation if that agency's interpretation seems reasonable. Now, this is law. [00:06:30] So it's a little more complicated than that. But that is the gist.

Robin Kundis Craig: [00:06:34] So the EPA, effectively, when Congress was being ambiguous, got to interpret the Clean Air Act to do what it thought made the most sense or was most logical or whatever.

Nick Capodice: [00:06:46] And we're talking about this because Chevron isn't actually a doctrine anymore, right?

Hannah McCarthy: [00:06:53] That's why.

Archival: [00:06:55] Carl. That's right. This is a sweeping decision by the Supreme Court to overturn what's called the Chevron [00:07:00] precedent here. The reason it's significant is because it has enormous implications for the administrative state in the United States of America and all federal agencies and their ability to interpret the law. What the Chevron precedent.

Robin Kundis Craig: [00:07:12] The problem that developed and that was addressed in Loper Bright is that meant that courts were basically ceding interpretive authority to agencies. And that's what finally led to the Loper bright decision. Now, there were a lot of connections in [00:07:30] between. I won't go into those details unless you want me to.

Hannah McCarthy: [00:07:33] So I think we can skirt around the conniptions for the most part. But here's another gist. Congress makes a law. Something shifts in the world, and that law was made before that shift. Like, I don't know, let's just say the climate changes or we have a global pandemic or something like that. What do you do?

Robin Kundis Craig: [00:07:55] So you get those kinds of issues where a problem Congress [00:08:00] was not thinking about could not have been thinking about because it didn't exist at the time, suddenly lands in the agency's lap and they have to decide, does the statute extend this far or not?

Nick Capodice: [00:08:12] Can I make this kind of silly for a sec?

Hannah McCarthy: [00:08:14] Hannah, please.

Nick Capodice: [00:08:16] All right. Okay. Congress passes a law that says horses must be protected. And then years later, we discover unicorns. And [00:08:30] it's like, oh, nuts. Is a unicorn a horse? Do unicorns fall under the Horse Protection Act? At what point is a horse not a horse anymore?

Hannah McCarthy: [00:08:43] Okay. Incredible. And Robin says the debate about such a question goes a little bit like this, except she used proteins as an example.

Robin Kundis Craig: [00:08:55] The Food and Drug Administration has to decide whether a compound [00:09:00] that has helpful properties is a biologic or a drug.

Hannah McCarthy: [00:09:08] The Horse Protection Agency has to decide whether a unicorn is a horse or something else. And that hinges on horse leanness.

Robin Kundis Craig: [00:09:18] That turns on whether it's a protein or not. Well, I mean, what does Congress know from proteins? Um, uh, so, you know, if you've got a string of amino acids, when does [00:09:30] it switch from being a string of amino acids to being a protein?

Nick Capodice: [00:09:34] When does it switch from horse to magic? Congress doesn't know.

Robin Kundis Craig: [00:09:41] The FDA has to make those kinds of calls. And, um, that actually is defining a term, but it requires some deeper understanding of medicine, of biochemistry, of what Congress [00:10:00] is trying to accomplish, of why we have a distinction between biologics and drugs in the first place.

Hannah McCarthy: [00:10:06] Leave it to the people who know animals versus mythology, Middle Ages, Renaissance writing, and the Bible. Okay. They are the ones equipped to decide when something is a horse and when it just looks like one, but is magic. There's a reason we make the distinction.

Robin Kundis Craig: [00:10:21] And so what people are worried about is when courts are faced with these issues that require some [00:10:30] real expertise there, in a litigation context, the way the American legal system works is each side puts on its own experts, and you have battles of the experts, which can make it sound like it's a fair choice for the court, which experts it wants to go with, and that's not always true. Another thing is that a one wing of the court has really gotten into, quote unquote, plain meaning interpretations [00:11:00] of statutory words, and not every statutory word should be interpreted by its plain meaning, because it is dealing with a technical subject, and it needs a more specialized definition.

Nick Capodice: [00:11:19] No rightly idea what that means, Hannah.

Hannah McCarthy: [00:11:22] All right. The example that Robin gave me was tomatoes. There was once a case about import taxes on vegetables. [00:11:30] Now, Nick, a tomato is a fruit.

Nick Capodice: [00:11:33] Oh. This one? Yeah. By definition, yes. A tomato is a fruit.

Hannah McCarthy: [00:11:38] But.

Nick Capodice: [00:11:39] But most people think and treat a tomato like a vegetable.

Robin Kundis Craig: [00:11:44] And so in that case, the court actually took what's called a purposive approach, looking at what Congress was trying to accomplish, looking at the purpose of the statute. And it said, look, most people in Congress, most people in the United States consider tomatoes [00:12:00] to be vegetables. Therefore they're subject to the import tax. Okay.

Nick Capodice: [00:12:04] So that's a plain meaning interpretation. Like, sure, you can dance around it and say that Congress didn't intend to include tomatoes in the vegetable tax, but come on. Of course they did.

Hannah McCarthy: [00:12:16] Yeah, but proteins are different. I mean, unicorns.

Robin Kundis Craig: [00:12:26] If you look up a simple definition of what a protein is, it'll say a string of [00:12:30] amino acids. Well, yeah. But then a biochemist will tell you, but it's got a fold and it's got to get complex and it's got to be doing something. And and that's the distinction the FDA made in that situation.

Nick Capodice: [00:12:43] A unicorn appears to be a horse with a horn, but actually in a unicorn, expert will tell you that their horn has to have healing properties. When it throws itself off a cliff to escape you, it has to land on that horn and survive, and [00:13:00] that they won't throw themselves off a cliff to escape a virgin.

Hannah McCarthy: [00:13:03] We're not talking about fruit here. We're talking about the distinction between a horse and all of our wildest dreams coming true. One is higher stakes than the other. But what the Supreme Court did in the Loper Bright case is, say, you know what the.

Robin Kundis Craig: [00:13:19] Logic of the Loper Bright decision is? We're not going to engage in Chevron deference because it's not in the APA, the Administrative Procedure Act.

Hannah McCarthy: [00:13:28] The APA says [00:13:30] that when an agency interprets a law and makes a rule, for example, yes, horses must be protected, but a unicorn is not a horse. You do not have to protect unicorns.

Nick Capodice: [00:13:43] Although, I mean, to be fair, you should.

Hannah McCarthy: [00:13:45] Yeah. No, you definitely should. But anyway, that rule can be reviewed by a court. And then that court shall decide, quote all relevant questions of law, interpret constitutional and statutory provisions, and determine [00:14:00] the meaning or applicability of the terms of an agency action.

Nick Capodice: [00:14:04] So a court could say, I don't know, looks kind of like a horse to me.

Hannah McCarthy: [00:14:10] But for the past 40 years, we had the Chevron deference, which required courts to defer to the agency interpretation when a law was ambiguous or left an administrative gap like the protect all Horses law does not say protect all equines. It says protect all horses. And [00:14:30] if the agency interprets that to mean not unicorns, Chevron would have meant, yep, the agency knows best.

Nick Capodice: [00:14:39] But Chevron is over. Now it.

Hannah McCarthy: [00:14:41] Is dunzo. And we're going to talk about what that might mean and what it might not very soon. But first, Nick and I are going to take a little break so that we can think about unicorns. Absolutely.

Nick Capodice: [00:14:52] And before we do that, just a quick reminder that Civics 101 is listener supported. And everything from our unicorn research, our in-depth [00:15:00] unicorn research to our microphones is possible because of you. If you want to join the beautiful community of Civics 101 supporters, you will be our unicorn and we will protect you. You can do that at our website civics101podcast.org.

Hannah McCarthy: [00:15:17] All. Right. We're back.

Hannah McCarthy: [00:15:27] We're talking about the end of the Chevron Doctrine [00:15:30] or deference, a 40 year judicial principle that told courts that they had to leave some things up to the experts. And before the break, I promised that we would try to understand what that means. Now that Chevron is over. We'll hear from Robin again in just a moment. But I want to introduce you to our second guest.

Mustafa Santiago Ali: [00:15:49] Well, I'm glad Robin went over it. I mean, I can go deep on the law, but most folks fall asleep. Um, so this.

Hannah McCarthy: [00:15:55] Is doctor Mustafa Santiago Ali. He's the executive vice president of the National [00:16:00] Wildlife Federation. He has also spent a lot of his life empowering civic voices in many, many communities. And we are going to have a whole other episode about that. But for the purposes of this episode, we talked to Mustafa in part because of his 24 years at the EPA. When I asked him about Chevron, he told me to consider the political climate when it was first established.

Mustafa Santiago Ali: [00:16:26] Yeah. So, you know, you got to understand the moment, right? That was the Reagan [00:16:30] administration. Uh, they were very focused on federal Agencies having the power to make decisions, but at that time they were wanting federal agencies to make decisions around deregulation, and that's why they were so supportive of the Chevron case.

Archival: [00:16:53] Anyone who's ever wrestled with a tax form, or had to make sense out of a complicated bureaucratic regulation knows how costly [00:17:00] and time consuming government overregulation can be. And that brings me back to regulation.

Nick Capodice: [00:17:06] Okay, so when the Chevron deference was established, the hope of the executive branch was that it would lead to deregulation, not more regulation.

Mustafa Santiago Ali: [00:17:16] They did not know that over the years, we would have a country that became more diverse, diverse in ideas, diverse in a number of other ways, and they would no longer have that power to be able to support [00:17:30] business and industry in the way that they saw fit, and that people would be demanding that our federal agencies continue to do a better job in protecting their lives. And that's why going all the way back and understanding those dynamics around the Chevron versus NRDC case is so important.

Hannah McCarthy: [00:17:48] Essentially, Mustafa sees Chevron as having been something that allowed federal agencies to do what they are ostensibly supposed to do protect people and make the country [00:18:00] a safer, healthier place.

Mustafa Santiago Ali: [00:18:02] Well, you know, I'm not old enough to have been there back then, but, you know, I did have the opportunity to have mentors who were there and who appreciated the fact that the expertise that individuals had garnered over years, not just in school, which is important, but also in real life experiences on the ground, being able to understand the laws that folks in Congress were making.

Nick Capodice: [00:18:29] So Mustafa [00:18:30] is saying that the agency experts have spent their whole career in and out of school, understanding the stuff that Congress passes laws about.

Hannah McCarthy: [00:18:38] Right. And Mustafa says that even Congress knows that it doesn't always, or even often really know what it is passing laws about.

Mustafa Santiago Ali: [00:18:48] And even they also said we don't have the expertise to know all the ins and outs, but we will rely on these federal agencies who do have the experience and expertise [00:19:00] to make sure that the regulations that we put in place are going to be the ones that are going to be beneficial to people. So over the years, people really appreciated being able to. One honor the oath that they took and to do the best job that they could, to make sure that the American public had the things that they needed to have safer and healthier lives.

Nick Capodice: [00:19:22] I do just want to jump in quickly here. Hannah, in all seriousness, in all of my years of us working on this show, often talking to people [00:19:30] who are either in federal agencies or used to be in federal agencies. This is definitely the case that they took an oath to well and faithfully discharge their duties. And they take it super seriously because, you know, civil servants were not handpicked as a presidential favor to somebody to just sit in a chair. They are qualified. They want to do their jobs as best as possible because they know who they're doing them for.

Hannah McCarthy: [00:19:56] I totally agree, I am always honestly quite moved [00:20:00] by the amount of good faith, effort and civil servants. Okay, so these civil servants lost a little bit of the judiciary's faith in them, right? Chevron is over.

Mustafa Santiago Ali: [00:20:12] Well, Justice Elena Kagan, she criticized the decision, arguing that it turns judges into de facto policymakers. And what she was really saying in that moment is that, you know, we may have experience in the law, but we do not have the experience of [00:20:30] a scientist, of a toxicologist. Of a biologist. Of a number of these folks who have spent their years in perfecting their craft and then understanding how they could utilize that. So she said, you know, it was never the intention for us to be able to take this power away from the agencies that have to do this work. So that's what she was speaking about in that moment, in her dissent.

Hannah McCarthy: [00:20:56] We actually have to talk about this dissent, Nick. It is not [00:21:00] often that a justice's dissent gets as much news coverage as this one did. Outlets described it as devastating, scathing, even blistering.

Nick Capodice: [00:21:11] Really like for this inside baseball case?

Hannah McCarthy: [00:21:15] Yes, really. Justice Kagan said, quote, as if it did not have enough on its plate. The majority turns itself into the country's administrative czar. She said, quote, a rule of judicial humility gives way to [00:21:30] a rule of judicial hubris. She quotes the Chevron opinion from 1984 which said, quote, judges are not experts in the field and are not part of either political branch of the government. And then she goes on to say, quote, those were the days when we knew what we are not.

Nick Capodice: [00:21:48] Justice Kagan is not pulling any punches there.

Hannah McCarthy: [00:21:52] One of her big points, Nick, was precedent matters in the world of law. It's called stare decisis, [00:22:00] relying on and respecting the rulings and opinions of past judges. Justice Kagan ends her dissent by saying, quote, my own defenses of stare decisis, my own dissents to this court's reversals of settled law by now fill a small volume. Once again, with respect, I dissent.

Nick Capodice: [00:22:23] So she used her dissent in part to say, I keep dissenting, and it's often for the same reason. [00:22:30] And oh, look, I have to do it again. Is it a stretch to say that she sounds tired?

Hannah McCarthy: [00:22:39] I mean, she does. She sounds fully exasperated. And I do think it's important to note, for those out there who don't read Scotus opinions regularly, they often end in something like, respectfully, I dissent. But in the past few sessions we have gotten sign offs. Like with sorrow, we dissent [00:23:00] or with fear for our democracy, I dissent. The justices really don't give interviews. They don't write op eds. This is the closest that we get to that. So that is what Kagan thinks. Here's what Mustafa thinks.

Mustafa Santiago Ali: [00:23:19] Well, I'm an optimist, right? But I'm also an optimist that deals with the reality of the situations that we find ourselves in. And we have made progress over the last 40 years [00:23:30] in relationship to environmental protection because we were able to regulate entities. You know, there was a time in our country when rivers were catching on fire, when in many cities you couldn't look up and see the sky because there was so much air pollution, smog that was there. Now, you said that there are some folks who appreciate the decision. That's true. There are some folks on the business and industry side, usually those who are in the fossil fuel world, but there are many others who have real [00:24:00] concerns with this. Why do they have those concerns? They have concerns because they like to have a stable playing field, if I can say it that way. They like consistency. And this breaks 40 years of consistency, which means it makes it much more difficult for them to plan and to actually have the utilization of their capital resources. So that's one side of the equation.

Nick Capodice: [00:24:25] A stable playing field. And that's an interesting way to put it, because it's [00:24:30] not like Mustafa is saying, you know, regulation is over or regulation is just going to be left up to the courts entirely. He's saying we had a way of doing things that worked well and this throws that off.

Hannah McCarthy: [00:24:44] Yeah, I think I actually asked both Robin and Mustafa, you know, basically like, is the sky falling from the perspective of these federal agencies? And as is so often the case, the sky is almost never falling because the country is a multi-layered and complicated [00:25:00] entity. But Mustafa did add this.

Mustafa Santiago Ali: [00:25:04] The other side of it is that this creates a chaos. There are going to be additional judicial actions that are going to happen. This also, most folks in business and industry and I work with a number of them over the years when I was at EPA. They also understand that this will slow processes down. And one of the things that they have always shared is that we want to have fairness in the decisions that are happening, but we also wanted [00:25:30] to expedite more quickly. So this also presents another set of challenges for those in business and industry. You have to remember, what came out 40 years ago didn't just set precedent for law in relationship to EPA. There were a number of other federal agencies that were also a part of the sets of actions that came out afterwards, that we are literally weakening the protections that the FDA and a number of other places.

Hannah McCarthy: [00:25:56] So we've talked quite a bit about the environment here, because that [00:26:00] is Mustafa's and Robin's area of expertise. But Chevron was cited in over 18,000 cases over the course of its life. There are a lot of federal agencies who have had their rules reviewed and accepted by the judiciary because of Chevron. Mustafa's worry is that the Loper bright decision Will just, generally speaking, make the whole system less efficient.

Mustafa Santiago Ali: [00:26:29] You've also [00:26:30] made it much more difficult for us to have timely sets of responses, because no longer does the agency make final judgments on things. It ends up the courts are the ones who do that. So it just creates this administrative burden. It creates additional cost, and it will probably frustrate many of the folks who are hoping that our federal agencies can be as efficient and effective as possible.

Hannah McCarthy: [00:27:06] And [00:27:00] to those who hear this episode and are thinking, all right, so the courts are in charge of what kinds of rules agencies get to make. Robin told me about this other form of deference that does still exist.

Robin Kundis Craig: [00:27:23] There always have been and always will be a lot of agency decisions that would not have raised [00:27:30] Chevron as an issue to begin with. Then what the court went at great lengths to say was that, hey, we're still going to allow what's known as Skidmore deference. And Skidmore deference means basically whatever the agency's interpreting, it's not formal enough that we're going to give it Chevron deference. But if the agency convinces us they're right, we'll go with the agency. So as [00:28:00] long as the court sticks with that and says, yeah, we will agree to to listen to the agency and, and be persuaded when they're being persuasive. Um, there is still a fair amount of deference room left for the agency.

Nick Capodice: [00:28:15] All right. Hold on a minute. There's basically, like a lesser chevron.

Hannah McCarthy: [00:28:18] There is kind of for now.

Robin Kundis Craig: [00:28:22] Now, why I'm phrasing that the way I'm phrasing it is, is the court made up Skidmore deference just like it made up Chevron [00:28:30] deference?

Hannah McCarthy: [00:28:30] Robin explained that, you know, the Supreme Court said there is the Administrative Procedure Act and Chevron is not in it.

Robin Kundis Craig: [00:28:38] Well, guess what, Skidmore deference isn't in the Administrative Procedure Act, either.

Nick Capodice: [00:28:43] Got it. It isn't impossible to imagine this other deference also going the way of the dodo.

Hannah McCarthy: [00:28:50] Robin did tell me that it would be very strange to not give an agency the chance to explain and defend their thinking, especially when they're being sued [00:29:00] and a judge does not have to use Chevron to say that an agency is allowed to do their thing.

Robin Kundis Craig: [00:29:06] For the lower courts, for the federal district courts, and particularly the federal courts of appeal, which decide way more cases than ever reach the Supreme Court. I think most judges, particularly in highly technical cases, are going to be interested in what the government's position actually is. There's still a general respect for [00:29:30] the federal government. One hopes continues that will lend them to at least listen, at least take seriously whatever it is that the federal agency is saying. If, as I suspect will happen, the majority of lower court judges, district court and court of appeals judges stick to business as usual. Basically, they're just not going to be saying Chevron.

Nick Capodice: [00:29:58] Is it possible, Hannah, [00:30:00] that getting rid of Chevron doesn't change much?

Hannah McCarthy: [00:30:04] It is possible, but it isn't likely. There are states around the country that don't like certain rules, and their chances of successfully challenging those rules just went up. That means more lawsuits against federal agencies. One other thing, Nick. The Administrative Procedure Act, the thing that Scotus based its loper bright decision on. It says that people [00:30:30] have six years to sue an agency over a new rule.

Nick Capodice: [00:30:34] Like the agency makes a rule and a state or a company or what have you has six years to challenge it. And if they don't challenge it in six years, they just can't do it, period. Yeah.

Hannah McCarthy: [00:30:46] Well, on July 1st, 2024, the Supreme Court issued a ruling that says that that six year statute of limitations begins when the plaintiff is quote unquote, injured, not when the agency [00:31:00] makes the rule.

Nick Capodice: [00:31:01] Now, what does that mean?

Hannah McCarthy: [00:31:02] That means that if I open a business selling cupcakes tomorrow, and a federal agency issued a rule about cupcake size in 1954, I am allowed to sue that agency over that rule because it limits how big my cupcakes can be, and I do not like that.

Nick Capodice: [00:31:19] Even though that rule is 70 years old, right?

Hannah McCarthy: [00:31:22] And I have six years to do it. In other words, there's really no such thing as a finalized [00:31:30] rule anymore.

Nick Capodice: [00:31:32] So way more lawsuits then.

Hannah McCarthy: [00:31:40] All of this brings me to a point here in this strange inside baseball of an episode, we've been talking a lot about what this means in terms of process and rules and regulations, but Mustafa brought it all back around to the human beings in those agencies. There was a time [00:32:00] when the courts prioritized what those people had to say, because it was assumed that they knew best. The end of Chevron is probably going to change that.

Mustafa Santiago Ali: [00:32:12] Well, I think the concern is that people feel undervalued. And, you know, almost on every job you want to help people to to know that they're honored and valued and keep morale high. Right. Um, and when you have these types of actions, it sends a message that [00:32:30] you're not as valuable and you're not as needed. And the level of expertise and intelligence that you bring, you know, that is not a priority in the process.

Nick Capodice: [00:32:41] Okay, Hannah, one last question for you about all this. Go for it. We are talking about agencies making rules. Those rules are based on laws. And Chevron said that when the law was unclear or ambiguous or what have you, the agency knows best. [00:33:00] So now that it's over, can Congress just make laws more specific, kind of do a little bit more heavy lifting? Is that the possible answer to this?

Mustafa Santiago Ali: [00:33:11] Again, I'm an optimist. So my answer is yes. But there are also some challenges, right? We now are going to have to have folks on Capitol Hill who are creating much narrower laws. And the problem is that, one, it's hard for people to get anything done on Capitol Hill. Right now, we're asking [00:33:30] folks in a very tough time to be able to create the new sets of actions that are going to be necessary to keep people protected, and that's just going to take work. So we just have to be very mindful of that.

Hannah McCarthy: [00:33:43] So narrower laws. Sure. A horse. And by that we do not mean a unicorn. And for now, and I do mean for now Congress has one other option.

Robin Kundis Craig: [00:33:57] You know, I think one of the important [00:34:00] things for people to understand is that the overruling of Chevron is not yet a constitutional decision. I expect it to be a constitutional decision about the next time where that distinction matters. But it's not yet a constitutional decision, which means technically, Congress still has something to say. So because the court [00:34:30] rested on the Administrative Procedure Act, Congress could go back and rewrite the Administrative Procedure Act to write Chevron back in. It could also put deference into various statutes when it really wants the agency expertise to be listened to. Now, like I said about the time Congress actually decides to do that is about the time I think the court will reach for article three of the [00:35:00] Constitution and make this constitutional ruling, which then Congress can't overrule. But for the moment, Congress could, if it wanted to really start tailing deference in various statutes? Because the Administrative Procedure Act is a default. If a specific statute says do something else, that specific statute governs.

Hannah McCarthy: [00:35:24] But of course, as many of us know, relying on Congress to take action is not always [00:35:30] the best course of action. So instead, I will leave you with this one last thought. It's from Mustafa, who pointed out that, you know, not just because of Chevron, but because of a lot of what's been going on at the Supreme Court. We're all paying a lot more attention.

Mustafa Santiago Ali: [00:35:49] We have a public that is now becoming more aware of how incredibly important it is to understand who our judges are, what they stand [00:36:00] for. And if we should be supporting them. Um, especially if they're elected judges or the individuals who will, you know, place those judges in those respective positions. So that gives me hope. Now, I know that we still have lots of education to do so folks can make the best decisions for themselves, but I'm seeing people starting to pay so much more attention. People stop me in [00:36:30] the airport. We'll have some questions about a number of issues, and this is one of those that, you know, five years ago, folks wouldn't have said, hey, but what do we do about the courts? So I think, you know, it's a beautiful evolutionary moment. I just wish that it also didn't come with the pain of many folks having to deal with these sets of actions that are going on.

Hannah McCarthy: [00:37:05] That [00:37:00] does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca LaVoy is our executive producer. We might have gone a bit above and beyond the basics on this one, but if you are looking for a little more 101in your life, Nick and I have a book. It's called A User's Guide to Democracy, and it's your pocket companion to living in this twisty, twirly nation of ours. You can find it wherever books are sold. [00:37:30] Music in this episode by Jay Vartan. Adeline. Park. Floors. Deuces. Staff and Karlin. Sugoi! Real heroes. Paper twins. Paisley. Pink. Dejana. Beigel and Jon Bjork. As always, you can get more Civics 101 at our website civics101podcast.org. Civics 101 is a production of NPR New Hampshire Public Radio.

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