Infrastructure - Roads!

Dams, highways, telephone poles... all of these things fall under the huge umbrella we call INFRASTRUCTURE.  But what does all that concrete and copper have to do with government?  More than you might think. Our infrastructure is what gives Americans access to community, communication, and business – it’s a system so complicated it takes dozens of federal administrations and agencies to oversee and regulate it.

In this episode, the first in a sporadic series on American infrastructure, we look specifically at roads. Who pays for them? How do we benefit from roads, even if we aren't the ones driving on them? What the heck is a public-private partnership?   Our guests are Civics 101 Senior Producer Taylor Quimby and Shailen Bhatt, President and CEO of the Intelligent Transportation Society of America. 

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TRANSCRIPT

Virginia Prescott: [00:00:23] This is Civics 101, the podcast refresher course on the basics of how our democracy works. I'm Virginia Prescott and today we're kicking off an occasional series on infrastructure. Infrastructure may sound like a bit of a snoozer. It's something you don't really think about until a sinkhole appears or a storm drain clogs up and floods your street. But before you start falling asleep. Senior Producer Taylor Quimby is here to assure us that it is deeply fascinating.

Taylor Quimby: [00:00:57] That's right. That's right and let me start off with that in mind with a factoid that got me hooked. Which is the very first federal agency dedicated to studying and building roads was called the Office of Road Inquiry and it was founded in 1893 partly because of the growing popularity of the bicycle.

Virginia Prescott: [00:01:15] Not until 1893 though? That's a little surprising.

Taylor Quimby: [00:01:18] Yeah you know, especially if you think about, you know that wasn't that long ago and today the Department of Transportation has, I'm going to list off, these are all agencies that fall under the Department of Transportation: the Federal Aviation Administration, the Federal Highway Administration, the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, the Federal Transit Administration, the Maritime Administration, the National Highway Traffic Safety...

Virginia Prescott: [00:01:41] Stop the fight...

Taylor Quimby: [00:01:41] It's a firehose.

Virginia Prescott: [00:01:44] So in a minute we're going to bring on our guest. But first let's go through some quick themes for this episode.

Taylor Quimby: [00:01:50] The first one is this idea that geography is obviously a huge part of infrastructure in America. We have geography that poses some funky challenges.

Virginia Prescott: [00:01:59] You mean not just a space, there is so much of it, but up, down, water, mountains, all that. Exactly. Although space has a big role to play. So the Highway Act of 1555 was an English law and it was sort of the model for Colonial's as they came in. So in Virginia for example they passed a law in 1632 that was very similar, and it basically said that parishes would be responsible for maintaining highways inside the borders of that parish. So you'd get a couple of people from the parish they would be elected surveyors, they would sort of look at what roads needed to be built for the area, and then shortly after Easter they would make this announcement and say OK we're going to work on this section this year. And everybody in that parish would have to work like four or six days for the entire year to get all that roadwork done. And and that's basically how it started in terms of like we need roads here's how we're going to build it piece by piece parish by parish.

Virginia Prescott: [00:02:55] But the United States is much bigger than England.

Taylor Quimby: [00:02:58] Exactly. So you think about England, sort of all these connected parishes and why that might actually function. But the U.S. in the very beginning, this is pre declaration of independence, we're talking about massive spaces. And it was really complicated and frankly it just didn't sort of do the trick. So layer after layer of this onion has gotten more complicated as we figured out how to build roads to serve our needs.

Virginia Prescott: [00:03:21] OK then who pays for the roads.

Taylor Quimby: [00:03:23] Right. And this is sort of the other biggest theme that I would say is that determining who pays for roads and infrastructure in general is a debate that goes all the way back to the beginning. So you know there's that question: Does everybody pay a little bit or do the people who use the roads the most, should they pay? So in Virginia early on they actually didn't need roads as much as you might see in a place like England is because they had all these waterways. So they were able to use boats to move goods in and travel and do various things like that. But that does mean that they needed ferries. They knew bridges. They needed a different type of infrastructure. And there was a law that basically was passed so that people would be taxed and that tax would help to go pay for ferries and things like that. And then there was a big protest and people said hey I don't live that close to the ferry I never use the ferry. I shouldn't have to pay for the ferry and so instead they basically instituted a toll system in this one area. And so it goes to show you you know even early on there was this question and people getting angry about like why am I paying for a road I don't drive on.

Virginia Prescott: [00:04:29] Right. Even though they may get some benefits from being close to that road or being even far from that road.

Taylor Quimby: [00:04:36] Exactly. And this is another big point. Another big theme which is that there are big economic benefits that are sort of greater than whether or not you specifically drive on a road or use a ferry. And that's because you know goods and services and lots of different things travel on roads that maybe you don't use but um...the wool that is being sold by the wool guy let's say in colonial Virginia...

Virginia Prescott: [00:05:03] The famous wool guy.

Taylor Quimby: [00:05:05] Yeah the wool guy needs to get his stuff to market and if he doesn't have a road to drive on, or if it takes him longer because the road is really bad then maybe that gets passed to you in the form of the cost of the wool.

Virginia Prescott: [00:05:17] OK. And this is just the warm up?

Taylor Quimby: [00:05:20] Yeah I know this is just the warm up. And since we're not going to talk about this last point I really think that it needs to get brought up which is that road infrastructure is all about access right. All right. Access to goods access to community. It's no surprise that the history of infrastructure has been a platform for both wins and losses in the civil rights movement. You know big projects have been built that gave economic freedom to some communities while cutting off or just paving over other communities...

Virginia Prescott: [00:05:45] Right through many of them especially in inner city, you know urban renewal, in the 1950s, 40s, 50s, 60s.

Taylor Quimby: [00:05:52] Exactly. So you know you see some of the same themes how you know the idea that one community is going to benefit while sometimes other communities have really suffered when they get cut off from those same economic goods and disproportionately it's been communities of color. On the other hand you know transportation is all about efficiency. So there's there's been some historical examples where big civil rights battles were fought on and over access to public transportation.

Virginia Prescott: [00:06:14] The bus boycott.

Taylor Quimby: [00:06:15] The bus boycotts. Yeah, Rosa Parks.... I mean so you think infrastructure is boring? Maybe on its face it sounds that way but it's incredibly important to sooo many aspects of our lives and that is why we are covering it on Civics 101.

Virginia Prescott: [00:06:27] Infrastructure. The new thriller.

Taylor Quimby: [00:06:28] I packed the information about like a traffic jam.

Virginia Prescott: [00:06:34] That's what infrastructure is all about! 

[break]

Virginia Prescott: [00:06:43] So to zoom out and tackle the whole complicated onion that is our transportation infrastructure, today we have Shailen Bhatt, the former executive director of Colorado's Department of Transportation, currently president of the Intelligent Transportation Society or  I TS of America. Shailen, welcome to Civics 101.

Shailen Bhatt: [00:07:01] Thank you. Thank you for having me.

Virginia Prescott: [00:07:03] So every four years the American Society of Civil Engineers gives America an infrastructure report card, the latest grade barely passing D +. But infrastructure is such a big umbrella that it's hard to know exactly what we're talking about when we use it. So what fits under that umbrella for transportation?

Shailen Bhatt: [00:07:26] Yeah that that is a very consistent grade that infrastructure receives in America, and I wish my parents were as forgiving if I had brought home a D plus as the American public seems to be in accepting that D plus year over year. You know infrastructure is a big is a big tent. And when we talk about infrastructure, you know, we generally refer to roads and bridges, and even just within transportation people often don't think about things like culverts, or traffic signals, but then you take that to another level, there are dams as part of infrastructure, the power grid is part of the infrastructure, ports... I was recently at the Port of L.A. and  b etween the Port of L.A. and Port of Long Beach 40 percent of American goods come in and then have to be distributed over a transportation system. And lastly, more and more the technology piece, whether it's cellular towers or broadband technologies are becoming more important with this future of connected autonomous vehicles. So it is a pretty big umbrella.

Virginia Prescott: [00:08:28] How did our highways initially get built? So you know you talk about history. You know President Eisenhower had been a part of a convoy in WWI that had gone across the country and it took them you know a few weeks and he saw the, you know that many roads in America at that time were nothing more than dirt roads. Then when he went to Germany in World War II that he saw how the Autobahn, and the infrastructure investments that had been made were helping drive the German economy so he came back, and when he became president he said "let's do that." But the key thing to remember is, is that taxes at that time were much higher. And I know nobody likes to pay taxes. But I think the marginal tax rate in the 1950s was something like 90 percent.

Virginia Prescott: [00:09:13] You mentioned the Port of Los Angeles and to Taylor's point earlier, people often benefit from infrastructure even if they don't think they use it personally. I mean so back that up again. Why is infrastructure important economically speaking even if I'm a relative homebody living in a rural area?

Shailen Bhatt: [00:09:31] And this is the the very persuasive argument that I think that we should be making which is that, you know not only do you get the jobs that are associated with the you know, whether it's a road or a new bridge or repair a failing infrastructure,you get the economic benefit of those goods flowing more smoothly: people being able to get to work. People being able to make investments and not adding costs get passed on. So if it takes a product that comes into the Port of L.A. an extra 30 percent of time time is money to get to market that 30 percent is being passed on to consumers, and it is just friction and a drag on the economy for everybody.

Virginia Prescott: [00:10:09] But if we look at transportation throughout American history it seems like there are cycles of expansion and then maintenance. Do I have that right?

Shailen Bhatt: [00:10:19] I would say that there have been cycles of expansion. We haven't done a lot of expanding of late. So now it's just a lot of maintenance for the most part.

Virginia Prescott: [00:10:29] So that's where we are now in that cycle as a country as a whole.

Shailen Bhatt: [00:10:33] Yeah and I would say that we're not doing a good job of maintaining what we have so I'll just give you an example in Colorado. People always ask me why is traffic so bad in Colorado and I would say because we have a system that was designed in the 50s, built in the 60s for a population of the 1980s that was 3 million. There are six million people in Colorado today. They are going to eight million people in the next 20 years. But the transportation budget is not at all geared towards expanding the system. We are not even investing enough money to maintain what we currently have.

Virginia Prescott: [00:11:04] Who pays for roads and how?

Taylor Quimby: [00:11:07] Well you know there's there's a number of ways that roads get paid for. I think number one obviously with the federal gas tax. Every state that has a state gas tax, but there's a lot of issues with that. I think that one there is always a political issue with raising the gas tax at the federal level it's not been raised since 1992. Most states have not raised their gas taxes. I would say it's incredibly important that whatever the mechanism that we begin to take responsibility for our transportation system.

Virginia Prescott: [00:11:35] Well you hit on something that has been a big argument as people are saying no we don't want to pay more gas tax. Let's have more private investment in the roads. How does that work?

Shailen Bhatt: [00:11:46] It's just like if you were to say hey we need a grocery store in this area. But the government can't afford to build a grocery store. Let's get the private sector, the private... If the government can't afford to do it the private sector can help only if there are customers for that grocery store. And so what is key here is that public private partnerships or P3s are an important tool in the toolbox. But they are a financing piece, which means that the private sector brings their capital in and then the private sector expects a return on that capital.

Virginia Prescott: [00:12:16] Right. How do they get paid back?

Shailen Bhatt: [00:12:18] So it depends on on the way the deal is structured, so you can do things like availability payment. An availability payment says that the government entity was going to pay 20 million dollars a year to maintain this thing whatever it is. And so in lieu of us paying somebody else we'll give it to the private sector, the private sector then brings their money on the front and builds it. Another typical way is through tolling. You build it you maintain it and then you get to keep the revenue. The challenge for us, in Colorado Governor Hickenlooper would talk often about how we need to make sure that all of Colorado is benefiting, but as a DOT director there, it was hard for me to get a company to say, let's put let's expand a road in rural Colorado where there isn't a lot of traffic.

Virginia Prescott: [00:13:03] During the 2016 election then candidate Trump campaigned hard on infrastructure spending even out matching promises by Hillary Clinton his opponent. Recently the White House did release an outline of Trump's administration plan for infrastructure what does it say?

Virginia Prescott: [00:13:19] I think that this administration has been very clear that they want to change the traditional model of transportation funding and I don't see that in a pejorative sense. I mean I think what they're saying is there isn't enough money in transportation but the federal government isn't likely to come to the rescue here. And so what they'd like to do is to leverage state and local investment to make those federal dollars go further. And so this is where you see the president saying things like for a 200 billion dollar federal outlay. We'd like to see a trillion or a trillion five in actual dollars on the road.

Virginia Prescott: [00:14:00] So you said this is a departure... In the past has been the federal government more paying for the roads?

Shailen Bhatt: [00:14:07] Yes so typically you would expect that on a major interstate project or a major system project with national significance. The federal government would partner with you at 80 percent of that project costs and state locals would come up with 20 percent. And now what they're saying is that we want to drive down that federal number because we want to drive up the state and local piece. And I think part of it is political reality and part of it is also ideology around who should be responsible.

Virginia Prescott: [00:14:39] Trump is proposing that the federal government pay about 20 percent of the costs and then local and state governments pay about 80 percent.

Shailen Bhatt: [00:14:46] I don't know if it's I don't think it's flipping from 80 20 to 20 80 but it is certainly driving that number much closer to that.

Virginia Prescott: [00:14:54] Well the Department of Transportation's Office of Road inquiry really in historical terms has not been around that long. Now there are a number of agencies regulating transportation. Do you think that added complexity has helped. Can we feel more safe on the road and feeling that they are being watched in a careful way?

Shailen Bhatt: [00:15:14] Yeah I think it's it's important that we we again have a we always have the appropriate perspective. Nobody likes regulation. Everybody. You know I tell you in my in my time as a leader in transportation areas you just got to cut regulation, cut regulation and unleash the private sector to to do all the great things they do, and then you see some of the tragedies that we've had recently whether it's the bridge in Florida, or the you know issue in in Arizona, and then there's as rush to the other side well why wasn't this being regulated. And so I think what we need to be is thoughtful around the idea that overregulation can stifle innovation and is inefficient. But we also need to appreciate that many of the hardworking public servants that are regulators, We do want them making sure that safety is the number one priority because while a profit is a great thing for folks who want to achieve, public safety can never take a backseat to that. And that's why I believe that it's a healthy balance that's needed not an extreme one way or the other.

Virginia Prescott: [00:16:24] Well there was one time Shailen, where roads were necessary to get you know telephone poles and electricity out to customers in rural areas or just to connect them to the grid. Now we have some alternatives. For example we have cell phones. You don't really need telephone poles. We have drones that could possibly deliver goods to people in far flung areas. So could the argument me made that our road infrastructure like a lot of things that we used to depend upon, may not be as necessary as it once was?

Shailen Bhatt: [00:16:56] I would say that in some parts of the country we are absolutely at Peak Road meaning that you know to get more throughput on our roadways you're not going to be Widing them because technology is going to let us move more vehicles so for example right now we use 2000 vehicles per lane, per hour, is what an interstate will likely move... Well, with connected vehicles that are coming along we can shorten the distance between vehicles and we can maybe get 4000 vehicles per lane, per hour, through those same lanes. So I agree that you know when we say we need to invest in infrastructure. I don't know that we need mass widening of roadways out there but we do need to make an investment.

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Made possible in part by the Corporation for Public Broadcasting.

Foreign Aid

On today's episode: What is foreign aid, and how much money does the U.S. spend on it? Is it purely humanitarian, or is it strategic? And how do we know if foreign aid actually works? Addressing these issues with us is Brian Atwood, senior fellow at Brown University’s Watson Institute and former Administrator of USAID. 

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TRANSCRIPT

Virginia Prescott: [00:00:00] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how democracy works. Before we begin today's episode, a quick reminder for teachers and students. The deadline is fast approaching for our student contest. The winning student or students will coproduce a Civics 101 episode on a topic of their choosing. You can go to Civics 101 podcast dot org slash contest for details. OK, onto the show. Today: Foreign aid.

[00:00:51] The United States spends something to the tune of 40 billion dollars a year to aid other countries. That's more than any other nation spends and while only about 1 percent of the federal budget that's not pocket change. So what exactly are we spending all this money on and why are we doing it. Joining me is Brian Atwood senior fellow at Brown University's Watson Institute. He's a former administrator of the U.S. Agency for International Development commonly called USAID. Brian welcome to Civics 101.

Brian Atwood: [00:01:21] Thank you very much Virginia.

Virginia Prescott: [00:01:22] So what exactly is foreign aid?

Brian Atwood: [00:01:25] Well there are two aspects of it. Perhaps the most important is the long range aspect which is to help others help themselves. It's called development assistance or development cooperation.

[00:01:36] And the other aspect of it is humanitarian relief. Humanitarian relief basically saves lives after earthquakes are natural disasters and or conflict. And so a lot of people sort of conflate the two and say it's all humanitarian and in one sense it is but the development aspect is has a mutual benefit not only for the country we're helping but also for us because it brings stability that brings some degree of prosperity hopefully it solves transnational problems. It contributes to our national security. So there's no question that you can argue that the American taxpayer benefits from our foreign aid program just as the recipients do.

Virginia Prescott: [00:02:23] So there are national security or strategic goals and also humanitarian strategic goals. Have I got that right?

Brian Atwood: [00:02:30] That's right. The humanitarian aspect of course has become much larger in recent years because of the increase in population the increase in natural disasters some of it related to climate change some of it related to human conflict in these poor countries which is one of the aspects of poverty that cannot be denied there. When you are living on the edge the tendency is to to associate with your ethnic group or your religious group and to manifest your concerns by taking it out on someone else. So the preventive aspect of foreign aid by investing in helping these people see a better life where they live also contributes to the prevention of crises that would later involve our military possibly.

Virginia Prescott: [00:03:27] How roughly does that breakdown monetarily, economic development aid and versus security aid?

Brian Atwood: [00:03:34] Well I think the economic development aid is security if you look at it from the longer perspective President Bush was the first to basically announce that we had a 3-D national security policy which means defense diplomacy and development.

[00:03:53] And so to the extent that you're preventing crises in the long term contributing to stability and prosperity you're basically contributing to our national security. So all of it is really can be argued in that sense is national security. The humanitarian side these situations will get much worse if people are in conflict as we now see in Syria. They're bound to want to leave and go to other countries they cross the Mediterranean they come into Europe they destabilize European political systems they create a reaction which is the populist nationalist reaction and the anti immigrant feelings in Europe which don't help anyone.

[00:04:41] And so trying to keep these people happy at home is a very important aspect of national security.

Virginia Prescott: [00:04:48] Which Countries Get foreign aid?

Brian Atwood: [00:04:52] Well mostly the poorest countries. It's the it is true that some of the middle income countries that are now doing well economically still have huge pockets of poverty but they are increasingly able to contribute to development themselves. And this is I think an important aspect for your listeners which is what I would call burden sharing that over the years the United States which took the lead in the Marshall Plan and with the Point Four program that President Truman announced we were the only ones providing foreign aid in the early days mostly in Europe. But nowadays there are some 27 countries 28 countries that are called donors that are contributing to the approximately 150 to 160 billion dollars of official development assistance that's being provided. So these are obligations that the global community feels that it has not only to a more stable and peaceful world but also to the interests of the individual countries.

Virginia Prescott: [00:05:59] Which countries do you get the most aid from the U.S?

Brian Atwood: [00:06:02] Unfortunately it's countries like Afghanistan and Iraq. Israel gets resources as well not as much anymore because their economy is doing very well. These are countries that are not necessarily the poorest but they're the most conflict ridden. And there is a need to move in not only with humanitarian assistance but also to try to stabilize areas after they have after the war is over. And that's not over yet in Afghanistan but to the extent that we can help the Afghan government strengthen itself then maybe we can bring our troops home at some point in time.

Virginia Prescott: [00:06:49] You mentioned the Marshall Plan this was the plan to rebuild Europe and really designed to blunt the rising in France of communism that time. How is the purpose of foreign aid shifted since then?

Brian Atwood: [00:07:02] Well in those days we were basically helping countries that had been democracies that had been successful economies but had been sort of operating within their own borders. And the purpose of the Marshall Plan was to encourage the integration of Europe so that we wouldn't have any more wars. We had two world wars basically started in Europe. And so the idea was to not only provide the resources they needed to get back on their feet but also to insist that they create industries that were broad enough to go across borders and the trade rules and and the rest that would strengthen Europe as a whole and the European Union was one result. NATO is another result.

[00:07:47] But the purpose of foreign aid today is really to look at the poorest countries in the world and this was the idea that President Truman had which came about at the same time as the Marshall Plan. It was the fourth point in his inaugural address which is that Americans have an obligation as a rich country to help poor people. And that was sort of a reflection of American values very much a reflection of the values of small town American by the name of Harry Truman. But it's certainly something that we can be proud of it's part of our so-called soft power. It is. It is. It uses people maybe like yourself Virginia. I know we're involved in some USAID programs but also universities and non-governmental organizations even American corporations and others that that can contribute and have done over the years. It certainly helped the standing of the United States in the world to a very large extent.

Virginia Prescott: [00:08:50] Foreign aid has been a political football tossed back and forth for some time. Now some economists would argue that foreign aid does not actually spur economic development in countries. Others argue that it does. So do we have evidence that the money being spent is really making a difference?

Brian Atwood: [00:09:09] You have to be thinking about the transnational problems that impact on your town for example infectious diseases in the recent weeks here and I'm sure in New Hampshire as well you've had some really bad weather a lot of that is attributable to climate change.

[00:09:24] These are transnational problems and the only way to solve them is to help for example countries that don't have a health care system developed so that they don't have diseases like HIV AIDS and ebola or malaria or dengue disease that actually comes into the United States the largest budget within the U.S. government is the military and increasingly we're using the military. Just think of where we've been using it recently. I mean in Iraq and Afghanistan very poor countries where the situation becomes so dire that there's no other solution. And that cost a lot more money than the less than 1 percent that we spend on foreign aid.

Virginia Prescott: [00:10:07] So what I'm hearing from you Brian is that the effects are not necessarily easy to measure.

Brian Atwood: [00:10:12] They're easy to measure in some fields. We know the number of people that receive at least a primary education we can count the number of people that have been inoculated. It is a lot more difficult to understand what the impact of contributions of foreign aid are to the development of an economy. But if you are basically working on the micro economic systems such as a customs system the tax system the banking system the export import laws of a country you're helping that country develop the systems that it needs to sustain economic growth. And it's more difficult to know whether or not it's because they discovered oil or because they have microeconomic systems that are working and functioning. But clearly there is a benefit to these countries derived from the knowledge and the resources they receive in foreign aid.

Virginia Prescott: [00:11:09] But how do you Brian would think that U.S. aid could be improved in order to make that more effective. Well I'd like to see USAID working in the poorest countries. I do think that it's time now for the middle income countries to carry their own load.

[00:11:27] I I think that we should be working in fragile states that are likely to break apart and go into civil war or to send refugee flows into the Western world that will be terribly would be bad for everyone. So I think the focus should be changed. I I do think that we're working in too many middle income countries that could basically fund their own programs where their tax dollars. And there's a real movement for what they call domestic resource mobilization to help countries develop tax systems that are efficient and non corrupt so that they can use these resources for their own development.

Virginia Prescott: [00:12:13] The Trump administration has suggested cutting foreign aid funding based on support for the U.S. that measured largely by votes in the U.N.. Is there any precedent for this linking U.S. aid to pro quote unquote pro U.S. votes in the U.N?

Brian Atwood: [00:12:33] Oh it's been done. People who really don't understand the purpose of foreign aid or the benefits over time have been tempted to be angry because someone voted the wrong way on a particular issue at the United Nations and this certainly seems to be the case today. President Trump is not known for his knowledge of foreign policy or or development policy. And so it's too tempting to send a tweet out saying well if they're going to vote against us it's. But foreign aid isn't a gift it isn't a gift to another country it's has mutual benefits and we've got to think about it in those terms. It doesn't do any good to get angry and say you know we're going to tie this to your vote so your posture on a particular issue.

Virginia Prescott: [00:13:23] What would slashing aid mean for the U.S. and the countries to which we provide aid?

Brian Atwood: [00:13:30] The one thing one thing it means is that other countries are going to say OK if the United States isn't going to be a leader then we're not going to increase our foreign aid programs. I mean you mentioned before that the United States provides more aid than any other country but we provide less as a percentage of our gross domestic product than any other country by far. If you look at that list of donors that I mentioned earlier we're at zero point one percent whereas the U.N. standard for foreign aid is zero point seven percent of your GDP per capita. So the United States hasn't really been the number one donor given our large economy. And there are so many benefits that I'm not suggesting that we go to zero point seven percent because that would be a 10 fold increase in our foreign aid program. I'm just suggesting that what we do now is adequate and it is adequate to encourage others to share the burden.

[00:14:30] And if the overall amount of money that is being put into official development assistance falls from its current 150 billion dollars to under a hundred or whatever it's going to have a major impact on the seven point five billion people that live on this earth.

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Made possible in part by the Corporation for Public Broadcasting.

The CIA

The Central Intelligence Agency (CIA) is a U.S. foreign intelligence service. It was created in the wake of World War II and Pearl Harbor, at the dawn of the Cold War. But the agency's record and methods are controversial. What is the purpose of the CIA and what is the role of espionage within a democracy? 

Journalist Tim Weiner joins us to trace the inner workings and history of the CIA.  He is the author of Legacy of Ashes: The History of the CIA..

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TRANSCRIPT

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

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

INTRO: [00:00:04] Who is the current speaker of the house? Don't even know. Will they rule in the president's favor  or will they send it to the Supreme Court? You can't refer to a senator directly by their name. Congressional redistricting. Separation of powers. Executive orders. The national security Council. Civics, civics, civics 101.

Virginia Prescott: [00:00:24] This is Civics 101, the podcast refresher course on how democracy works. I'm Virginia Prescott. The CIA, the Central Intelligence Agency, calls itself the nation's eyes, ears, and sometimes its hidden hand. In movies and on TV, the CIA often runs with maximum efficiency with elite operatives trailing terrorists or conducting espionage in foreign cities. The agency's real world legacy is more complicated. With a laundry list of controversial and botched operations from the Bay of Pigs to the agency's use of torture and post 9/11 black site prisons.

Virginia Prescott: [00:01:01] So what is the CIA and what is its role in American democracy? Journalist Tim Weiner schooled us on the FBI. Now he's here as author of Legacy of Ashes: The History of the CIA, to fill us in. In his research for the book Weiner examined more than 50,000 documents and conducted hundreds of interviews with CIA veterans including 10 directors. Tim great to have you back.

Tim Weiner: [00:01:25] My pleasure.

Virginia Prescott: [00:01:27] What is the Central Intelligence Agency for? What's it do?

Tim Weiner: [00:01:31] The CIA is without question the most powerful intelligence service in the world. The CIA was created in 1947 at the dawn of the Cold War. The idea was not so much to fight the Cold War. No one knew how that could be done. But to prevent another Pearl Harbor. To allow the president the information he needed to see over the horizon. At that time America bestrode the world like a Colossus and yet we were afraid because the Soviet Union had pushed westward and taken half of Europe, consolidating its power after the defeat of the Nazis. And there were two schools of thought. One was to contain the Soviets and the other was to push them back to the borders of Russia. In these warring schools of thought was the crucible in which the C.I.A was formed.

Virginia Prescott: [00:02:41] What is central intelligence? I mean what does that actually mean?

Tim Weiner: [00:02:47] The United States had never had a peacetime intelligence service. Now we were new  a t this. The Russians had been at it since Peter the Great. The British, since Queen Elizabeth the first. And the Chinese since Sun Tzu wrote The Art of War 26 centuries ago. But we were new at the game of espionage. And the warring schools of thought within the CIA were: are we going to simply gather intelligence, which means stealing secrets, or are we going to try not just to understand the world but to change the world through covert action, which means secret action essentially designed to change the course of history. The more aggressive "change the world" faction won out.

Virginia Prescott: [00:03:45] Who sets the budget for the CIA?

Tim Weiner: [00:03:47] The president requests and the Congress approves. It has rubber stamped increases in the intelligence budget, what's called the black budget. Which has doubled and tripled and quadrupled since 9/11 to the point where, and this budget is secret by the way, but it currently is an estimated 60 billion dollars a year. Now that's half the size of the entire military and espionage budget of Russia.

Virginia Prescott: [00:04:18] So 1947. Harry Truman is president. This is post-war America. The Soviet Union gaining power and moving westward. There is an argument for needing peacetime intelligence in order to either contain or to push back the Soviet Union. Were there arguments against having what is in effect a secret police agency in the United States?

Tim Weiner: [00:04:45] Well the CIA has no police powers within the United States. It is a foreign intelligence service. That's in its charter. Latterly, it would be discovered that the CIA had been spying on Americans and violating its charter. But the great fear about the CIA was best expressed by the Secretary of State Dean Acheson who said these guys will be up to things that the president will never know about and there will be no way of controlling what they do. They'll be a loose cannon rolling around on the ship of state.

Virginia Prescott: [00:05:19] So double-dealing right from the beginning. Spies, counterspies, double agents, paramilitary launches. What gives the CIA the authority to take this kind of covert action?

Tim Weiner: [00:05:34] The CIA's charter is very short at six pages long. And there's a phrase in its charter that says the CIA could conduct quote "other operations from time to time". OK. And those other operations turned out to be the tail that wagged the dog in the late 1940s and throughout the 1950s President Eisenhower who knew a thing or two about secret military operations - he had after all organized the D Day invasion - tried mightily to get a hold of the CIA. And over the rest of American intelligence operations.

[00:06:12] But the head of the Director of Central Intelligence Allen Dulles did things that he never told the president about. And at the end of Eisenhower's eight years in office he sat down with Dulles and other military and intelligence chiefs and said, I've been trying for eight years to get this operation, American intelligence, under my command and control and I will leave to my successor, who is John Kennedy the president-elect,. I will leave my successor a Legacy of Ashes. Three months later came the Bay of Pigs.

Virginia Prescott: [00:06:48] The Bay of Pigs was far from the only controversial operation. There are cases of American spies disappearing in the Soviet Union, of the Iran Contra affair, for example... The hostages taken in Iran unbeknownst to intelligence services. Why so many missteps?

Tim Weiner: [00:07:06] This tug of war within the CIA--are we going to try and know the world or are we going to try and change the world? - never resolved itself until the Cold War was over. What you have is a series of... For example coups. We overthrew the government of Guatemala and its freely elected leader. We overthrew the government of Iran and its freely elected leader under Eisenhower in the 50s. And these were deemed great successes. And the CIA thought it could successfully change the world. Well those two early successes were not matched as the years went by. The failure of the Bay of Pigs invasion led to attempts to assassinate Fidel Castro, which were wild schemes. An exploding conch shell that would kill him when he was scuba diving. A poisoned cigar. A poisoned ice cream. This led to, you know, well it was just a series of failures.

[00:08:13] Now at the same time the CIA had developed the  U 2 spyplane which looked down on Cuba in 1962 and saw that there was a Soviet military installation with nuclear missiles 90 miles from the American mainland being constructed. And that intelligence derived from technology more than spies basically prevented the threat of World War III. So you have to measure the successes of intelligence versus failures of covert action. And it is a decidedly mixed record. But the point is a superpower with a standing army has to have intelligence. Otherwise you are flying blind.

[00:09:01] On the intelligence gathering front which I would argue is much more important than the covert action front. The great failure during the Cold War was we never really had great spies American spies inside the Soviet Union. So you know in the 1980s as the spy networks fell apart we had to rely on our spy satellites who looked down at the Soviet Union and counted how many missiles they had. But that is not the true measure of strength of a country. Had they looked at the right things, potatoes rotting in the field because there was no gasoline for the trucks to take them to market, they would have seen the Soviet Union was very weak and that is why the collapse took America by surprise. Now in this day and age the CIA doesn't have one big target. One main enemy. It has endless enemies and the agency is spread mightily thin. Trying to know what's going on in the world. You need intelligence.

Virginia Prescott: [00:10:13] The CIA missed the terrorist attacks of September 11th. How did that happen?

Tim Weiner: [00:10:19] Going back to the beginning when the rationale for the CIA was to prevent a second Pearl Harbor. Now came the second Pearl Harbor. An attack on the United States directed by terrorists. The proximate cause of the success of the 9/11 attacks was a failure of the FBI and the CIA to work together. Al Qaeda had people in this country to hijack the planes. Once they were in this country, it largely fell to the FBI to detect their presence and to track them. The impetus behind Al-Qaeda overseas was the responsibility of the CIA. And these two agencies famously in competition since 1947 would not and could not share intelligence and work together. Like Pearl Harbor, the bits and pieces of the puzzle were all there but nobody put them together.

Virginia Prescott: [00:11:21] So what does Gina Haspel being nominated to replace Mike Pompeo as director of the CIA, what does that show you or eveal to you about where you think the CIA is now focusing its operations?

Tim Weiner: [00:11:35] It's important to understand that the CIA has to report to the president. It's the president's secret army. It's the president's intelligence service. And Donald Trump has explicitly endorsed torture. The CIA carried it out on the secret but explicit orders of President George W. Bush. Now in the nomination of Gina Haspel to become head of the Central Intelligence Agency who in the course of a distinguished 30 year career also ran one of the black sites in Thailand where suspected terrorists were tortured and latterly in 2005 presided with her boss over the destruction of videotapes of torture. So presumably she has an open confirmation hearing.

Tim Weiner: [00:12:33] We will for the first time in public seriously address the moral aberration of the CIA on orders from President Bush torturing terror suspects.

Virginia Prescott: [00:12:48] This idea of covert operations, the use of torture, paramilitary forces used to fight on foreign soil in wars not declared by Congress. It's difficult to understand the place of the CIA with in a democracy, within a constitutional framework.

Tim Weiner: [00:13:08] This is the constant tug of war that has been going on since the CIA was created more than 70 years ago. If you're a superpower you need intelligence. If you are a democracy you presumably operate on certain principles. Now what the CIA does overseas is illegal. Espionage is illegal everywhere. OK. It is punishable by imprisonment and sometimes death. You're recruiting people to commit treason. OK. The CIA officer overseas is a species of legal criminal in that what he or she does is authorized by presidential authority. But what is done overseas is a crime and a serious crime. Walking this tightrope has been very difficult for Americans. It goes to who we are. Do we need secrecy and deception to survive in this world? I think that's a settled issue. We do. When intelligence succeeds it can save lives. When intelligence fails people die. We want it to succeed. And we want for example to avoid a third Pearl Harbor. Dwight Eisenhower once called intelligence a distasteful but necessary function of American government. And you know I have studied the CIA for more than 30 years. When I was young I came into it thinking, well the secrecy and democracy are irreconcilable. The problem is we have to reconcile them.

Virginia Prescott: [00:15:08] Tim Weiner. Thank you so much for speaking with us.

Tim Weiner: [00:15:10] My pleasure.

Virginia Prescott: [00:15:19] That is it for Civics 101. This episode was produced by Justin Paradis. Our executive producer is Erica Janik. Music from Broke for Free. If you've got a Civics 101 question top secret or otherwise, give us a call at 202-798-6865. You can find us online at civics101podcast.org and on Twitter @civics101pod. I'm Virginia Prescott. Civics 101 is a production of  N ew Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The Americans with Disabilities Act

On today's episode: How does the government look out for people who use a wheelchair, are deaf or blind, or have other disabilities? What forms of discrimination do people with disabilities face, and what did it take to get protections passed into law? How well are businesses complying with those protections? We spoke with Lennard Davis, professor of English at the University of Illinois at Chicago and author of Enabling Acts: The Hidden Story of How the Americans with Disabilities Act Gave the Largest US Minority Its Rights.

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TRANSCRIPT

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

Civics 101

EP 113: The Americans With Disabilities Act

Virginia Prescott: [00:00:23] This is Civics 101. I'm Virginia Prescott. Nearly three decades ago the Americans With Disabilities Act became law. It was a huge piece of legislation affording protections and accommodations for millions of people. But how did the change life for the disabled in the United States and has it done what advocates hoped it would do. And what are the challenges to the FDA. Joining us today is Lennard Davis. He's a Disability Studies specialist and author of a book on the history of the ADA. Lennard, thank you so much for joining us.

Lennard Davis: [00:00:56] Thank you for having me.

Virginia Prescott: [00:00:58] Broadly, what was the intention of the Americans With Disabilities Act?

Lennard Davis: [00:01:01] Well the intention was to provide the same civil rights that other groups had had attained at that point. People of color, people national origin, ethnicity, and women were already, had were written into the law to have their civil rights laid out and clearly stated. But people with disabilities felt while the now their time had come for such a legislation the feeling was that there was an act was needed to bring to the general public's attention the discrimination that people with disabilities faced.

Virginia Prescott: [00:01:36] As a Civil Rights Act, how does it compare to the 1964 Civil Rights Act?

Lennard Davis: [00:01:42] Yeah that's an interesting question because the '64 act was dramatic and is well-known by everybody because it crossed an important threshold especially for African-Americans in the United States but also for other minorities. And it basically said hey you can't discriminate against people based on their race, national origin, skin color. The interesting thing about that act is it actually was at the time a much less inclusive act, much less broad act than the Americans With Disabilities Act of 1990. So it covered certain areas but certainly not as much and wasn't as grand and sweeping and I think people don't quite realize that the Americans With Disabilities Act was actually the broadest most sweeping civil rights legislation ever passed that covered the most number of people.

Virginia Prescott: [00:02:35] So how does it protect or provide for people with disabilities?

Lennard Davis: [00:02:40] There are several different areas that the Act covers. One is employment. In the area of employment, you can't be discriminated against for being a person with a disability if you're otherwise qualified for the job. In the areas of housing, education and public accommodations you can't be discriminated against. Barriers need to be removed and the world needs to be accessible. That's also true for public transportation as well as private transportation and railroads buses paratransit vehicles even taxis to some degree nowadays. So and then it also covers the area of telecommunications so that that people who are have hearing disability or visual disabilities can have equal access to a means of telecommunication. Those are the main areas that it covers.

Virginia Prescott: [00:03:34] Does the ADA specifically protect against abuses as well as upholding or enforcing protections?

Lennard Davis: [00:03:42] OK. This is an interesting question in terms of the way the law works.So unlike other laws there is no central bureau of disability protection where someone could go and complain about something that happened or didn't happen. And the only way that this law gets activated is by a lawsuit. But it has a cautionary effect. In other words if you're a business if you're a public accommodation owner of a movie theater you know that the building needs to be accessible and not just the building but whatever you, like in the case of a movie theater it needs to be accessible for hearing people, deaf people, or blind people. And if you don't do it you know that you run the risk of being sued. So even though not every single case involves a lawsuit the cautionary effect of the law in general is one that makes people understand that they need to provide accessibility and accommodation.

Virginia Prescott: [00:04:38] Can you give us more examples of that. What was life like for a person with a disability before the act.

Lennard Davis: [00:04:44] Well it depends on the disability but let's say you know for example imagine a world, and that world really existed say in the 1950s and 60s, if you were a wheelchair user for example. You know there were no curb cuts so you would if you were living at home you would have to go around the block maybe five or ten times without being able to cross the street

Virginia Prescott: [00:05:07] Because your chair couldn't. You couldn't go over the curb

Lennard Davis: [00:05:10] You couldn't go over the curb. But let's say you wanted to go to work you couldn't go to work because transportation was not accessible. So you basically couldn't work if you were a deaf person and my parents were both deaf so I remember this very well. There was no telephone service. You there was no way you could communicate with the world or with you. You know I remember as a kid that you know and people wanted to come and visit my parents they had to write a postcard and say when they were coming my parents had to write a postcard back and say okay that time is good. And then you had to wait for the person to show up because you know deaf people couldn't hear the bells. And so life was very limited and very prescribed for many many people with disabilities.

Virginia Prescott: [00:05:56] So tell us a little bit about the origins and who specifically was working to get this passed.

Lennard Davis: [00:06:02] One very important thing is that people who have disabilities in the past didn't necessarily see themselves as allied with other people who had disabilities. So if you were blind you had no natural inclination to team up with people who are a deaf. Or if you were a wheelchair user you didn't necessarily see yourself as linked up with someone who had depression. So what one of the first things that had to happen were the various disability groups had to come together into a meshed political entity that had some power. And that happened gradually over time and I detail it in the book. But probably the most important event were the demonstrations around Section 504 of the rehab Act. And Section 5 0 4 what you just need to know is that it was 44 words that somebody stuck into the bill and nobody knows who it was who stuck it in.

Lennard Davis: [00:06:52] That basically said that no otherwise qualified handicapped person should be discriminated against if they're otherwise qualified. So in doing that there were regulations written up and it took like seven years from Section 504 for the regulations to be passed. People with disabilities became very impatient. They began to protest. They occupied a federal building in San Francisco and other buildings around the country. And at the end of that point the regulations were passed. But it's a kind of watershed moment for disability activism. There was also other activism around transportation and there's a group called ADAPT which were sort of like the Hells Angels of the disability movement. They were you know guys and women would show up and they had you know they were dressed like Hell's Angels they were dressed like hippies they would chained themselves together to block buses that were inaccessible from going forward. And that group had a very big impact because transportation as I said before is a key issue especially if you have a mobility impairment. So there's a lot of political activity around, preceding the idea.

Virginia Prescott: [00:08:08] So there are a lot of movement for it. What were the arguments against the ADA?

Lennard Davis: [00:08:13] It's interesting who opposed it. Unlikely sources. Universities, churches and synagogues, and businesses.

Virginia Prescott: [00:08:22] On what grounds?

Lennard Davis: [00:08:24] Yeah they all had a big stake in keeping buildings the way they were.

Lennard Davis: [00:08:28] You know lots of money are spent with all of those organizations in terms of buildings that the churches wanted to keep the state out of it want to keep the separation between church and state and businesses were really you know annoyed about the fact that they would have to make structural changes and they and then possibly be sued if they didn't. And that was a big issue.

Virginia Prescott: [00:08:52] So structural changes like ramps for wheelchair accessibility bathrooms that accommodated in some cases I'm guessing signs in Braille that kind of thing?

Lennard Davis: [00:09:00] Yeah. And by the way even though the law exists there are still many places in the United States that are inaccessible in universities for example because the law carved out made carved out a remedy for if places had historical value. So I was just on a campus recently and a disabled student was saying she wanted to study chemistry there but couldn't get into the labs.

Virginia Prescott: [00:09:27] Were any special dispensations then made for those groups that oppose like churches synagogues universities?

Lennard Davis: [00:09:34] Yes, churches are carved out from the ADA, it does not apply to them.

Virginia Prescott: [00:09:37] So that's in terms of structure. What does that mean in terms of employment for example?

Lennard Davis: [00:09:42] Everything. They're completely carved out from the idea.

Virginia Prescott: [00:09:46] How did lawmakers at that time define disability, anything you know excluded from the disabilities covered under the act?

Lennard Davis: [00:09:54] Yeah. Those are two questions that are interesting. The definition in the original law turned out to be a big problem in court. So the original definition was what they called the three prong definition and it said that you had to be a person who had an impairment in one or more of life activities. That's how they defined disability, an impairment in one or more life activities. If you were, had a history of that but you no longer have that. And then the third prong is that if you are regarded as as having it.

Lennard Davis: [00:10:24] So let's say you didn't have a disability like if you let's say you were gay and you didn't have disability but you were assumed to have AIDS at the time. That would protect you under the Act. So there's those issues about how that are defined. What was carved out were any disabilities that were morally reprehensible particularly to certain senators like Jesse Helms. So anything to do with drug use, pedophilia, alcoholism any of the things that might be considered disability were not allowed in.

Virginia Prescott: [00:10:57] So the ADA covers both mental and physical disabilities, correct?

Lennard Davis: [00:11:01] That's correct.

Virginia Prescott: [00:11:03] And they don't have to be permanent is what I'm hearing from you.

Lennard Davis: [00:11:06] That's correct.

Virginia Prescott: [00:11:07] So did people with disability experience a change in their daily lives after the ADA passed?

Lennard Davis: [00:11:14] Yes I think so. I mean you know a number of the areas in order to get the bill passed there were lots of compromises made and some of them extended out five years 10 years when things would come into play. But basically the world has changed. I mean you know if you look around most buses and public transportation are accessible now, that was, and that was really fought by Greyhound for example who said that they would go out of business if they had to have lifts on their buses or kneeling buses. So yeah the world definitely has changed. I mean I think people now with disabilities feel confident in referring to referring to the law to provide them with access and accessibility. But you know there's an attitudinal issue that laws can't deal with and that has to do with shunning you know unconscious bias, a conscious bias that's not you know sort of detectable. Those are areas that are, a law can't really touch.

Virginia Prescott: [00:12:15] Well it's funny that you talked about previous legislation being for the handicapped and now we don't use that term anymore. We've changed the way that we talk about people with disabilities mental or physical disabilities. And you you wrote a book called Enforcing Normalcy. So how do you think the ADA has actually changed the way that disabled people are regarded in American culture?

Lennard Davis: [00:12:42] It's hard to say. You know I mean the more that laws are made that subsuste on accessibility the better that is. I mean but there's a backlash. You know I hear all the time people complaining particularly contractors about how they have all these regulations they have to do when they build new housing. Some see it as a good thing other people don't. So there can be resentment. There might be resentment for people who bring their dogs onto airplanes. There is, so some things have changed. I think we're, you know I think that a lot of that work can't be done by the law that it has to be done in the sociocultural context. We need to see more disabled people in important roles in TVs and movies that don't spotlight their disability particularly, they're just there they just happened to be there. You know people on their own need to be more open in terms of the friends that they have and the people that they feel comfortable or not comfortable with. And as I said that's something that a law can't touch.

Virginia Prescott: [00:13:42] All right so contractors having to deal with red tape in their words is one thing but how about for people with disabilities. Any complaints that there are downsides. I mean I've read things about their, say it's harder to get employed because employers think it costs more for example.

Lennard Davis: [00:14:01] That might be the case and then you know then then you would have to go to the EEOC or some agency and say that you believe that that happened, very hard to prove that. I think most people that I know who have disabilities are happy that the ADA is there. They don't see it as a magic bullet. They see it as you know the way some people have put it is look it doesn't change the vast structure of America. It just allows people with disabilities to be exploited in the same way that everybody else is.

Virginia Prescott: [00:14:32] The current administration has been focused on rolling back regulations on a lot of different fronts. Has that conversation touched the ADA and any indication it could be less stringent?

Lennard Davis: [00:14:42] Not only is it a hint a month ago Congress the House passed a bill H.R. 620 I believe which would roll back, what essentially would eviscerate the ADA. And this goes back to the issue about businesses. Businesses have always resented the fact that they could be sued and they've been trying to create a buffer. So that the law says essentially that a person who has been discriminated by a business like a hotel for example that doesn't have ramp would have to wait 120 days for the hotel to fix the problem and then if they didn't fix it they could bring a lawsuit. And this is friendly to the businesses but devastation to the law.

Lennard Davis: [00:15:25] Because remember when I was talking about the cautionary nature of the law which says you can be sued. This essentially is a get out of jail card. You know you now can you can remedy the situation so why bother fixing it. Luckily the Senate isn't going to support that law, but it's a matter of time because businesses do have this gripe about the ADA.

Virginia Prescott: [00:15:46] Lennard Davis pleasure speaking with you thank you very much.

Lennard Davis: [00:15:49] You're welcome.

Virginia Prescott: [00:15:50] Lennard Davis he's a Disability Studies specialist and author of several books including enabling acts the hidden story of how the Americans With Disabilities Act gave the largest U.S. minority rights. You can learn more about the way that the country defines and defends disability by subscribing to extra credit. That's our newsletter at Civics 101 podcast dot org and you can send us an e-mail or a voice memo asking your questions about the way that our democracy works or doesn't. That address again Civics 101 podcast. Org. This episode was produced by Hannah McCarthy. Our staff includes Ben Henry, Nick Capodice, Justine Paradise, Jimmy Gutierrez and Taylor Quimby. Erika Janick is executive producer. Music from Brooke for free. I'm Virginia Prescott. Civics 101 is a production of new Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The Eighth Amendment

On today's episode, the Eighth Amendment grants us the right for protection against excessive bail, fines, or cruel and unusual punishment. But how do we define cruel and unusual? And how has that definition changed over the course of history? Is it still "an eye for an eye" out there? Walking us through everything from unreasonable bail to capital punishment is John Bessler, Associate Professor of Law at the University of Baltimore and Visiting Scholar at Minnesota Law School.

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TRANSCRIPT

Civics 101
Episode 112: The Eighth Amendment

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

Introduction: [00:00:05] Who is the current speaker of the house? Don't even know. Will they rule in the president's favor or take it to the Supreme Court? You can't refer to a senator directly by their name. Congressional redistricting Separation of powers. Executive order. National security council. Civics -- Civics -- Civics 101. 

Virginia Prescott: [00:00:24] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of our democracy. The Eighth Amendment of the Constitution's Bill of Rights forbids excessive bail, fines, or cruel and unusual punishment. But how much is too much? And how has the meaning of those words changed since the days of the stockade, chain gangs and eye-for-an-eye codes of justice. Joining us for a lesson in crime and punishment is John Bessler who teaches at the University of Baltimore and at Georgetown Law. He's a visiting scholar at Minnesota Law School. John thanks so much for joining us. 

John Bessler: [00:00:57] Thank you for having me. 

Virginia Prescott: [00:00:58] What does the Eighth Amendment say? 

John Bessler: [00:01:00] Well the Eighth Amendment is just 16 words, very short but it's generated enormous controversy over the years and it says that excessive bail should not be required nor excessive fines imposed nor cruel and unusual punishments inflicted. So that's the the basic text of the Eighth Amendment. 

Virginia Prescott: [00:01:16] So I think the sticking point here is often defining what cruel and unusual means. But let's start with why both. 

John Bessler: [00:01:24] Well there's a lot of controversy actually about that. Some people view it as a kind of a unitary concept cruel and unusual meaning something sort of inhuman or inhumane. 

[00:01:35] But some scholars say well we should really read them separately and cruel implies kind of a moral concept of cruelty. How do you treat somebody and unusual is defined as it has been long defined in English law as sort of uncommon or rare. And so that has a more of a gaging what's happening right now with particular punishment to see whether or not it's unusual. And actually there's a lot of different variations on this so the U.S. Constitution's Eighth Amendment says that cruel and unusual punishments are prohibited. But some states and actually the Northwest Ordinance refer to cruel or unusual punishment. So it's kind of a conundrum for scholars to decide how to actually read that clause. And jurists and scholars have both made a lot of arguments about what it actually means and there's been a lot of litigation over it. 

Virginia Prescott: [00:02:26] What are some examples are hypotheticals of what is considered a cruel punishment? 

John Bessler: [00:02:31] The cruel unusual punishments prohibition actually comes from the English Bill of Rights which comes from the late 17th century. And at that time -- William Blackstone later refers to this, he's writing in the 18th century he's writing about the English prohibition on cruel and unusual punishments. And he talks about how there is limits to the arbitrariness of the law and that the cruel unusual punishments clause sort of prohibits these wholly arbitrary kinds of punishments. One of the earliest cases in English law was of a person named Titus Oates. Titus Oates was a religious figure and he had provided false testimony perjured testimony that resulted in a number of people being executed. 

[00:03:12] But because he was a member of the clergy at that time he was not subjected to the death penalty and he was ordered to be whipped and to be put in the pillory and to be in prison for life in England. And there was a big controversy in the English Parliament then after his sentence and after the English Bill of Rights went into effect in 1689. That his punishment, that is, Oates' punishment, was unchristian and was cruel and unusual. And so that was the debate at that time about whether somebody who had been put in the pillory, been subjected to whipping for his entire life, should that sentence be set aside essentially. 

Virginia Prescott: [00:03:53] So obviously the standards change over time. You know somebody's being drawn and quartered at the time of the writing of the Constitution or in a stockade or hanging or dragging around chained. Who makes that decision of what is cruel and unusual? 

John Bessler: [00:04:08] Well the in the American legal system the U.S. Supreme Court is the final arbiter of what the U.S. Constitution means and following the adoption and ratification of the 14th Amendment in 1868 that applied the Eighth Amendment against the states. So if the U.S. Supreme Court declares that a punishment is unconstitutional it applies not just against the federal government but also against the states. 

Virginia Prescott: [00:04:30] Why was this amendment put into the Bill of Rights? 

John Bessler: [00:04:34] Well the amendment was put in the Bill of Rights because it was seen as an important constitutional protection for people. So there was a big debate about whether or not the should U.S. even have a bill of rights because people thought well we have all these natural rights do we really need a Bill of Rights? 

[00:04:49] And Jefferson convinced Madison that we needed to have a bill of rights and this was seen as one of the most important protections for people in the United States is to have this protection against excessive bail, excessive fines and against cruel and unusual punishments. 

Virginia Prescott: [00:05:01] We have focused on cruel and unusual punishment so far, but that first part: excessive bail shall not be required nor excessive fines imposed. So bail the purpose of it is to keep you in the system, so you come back for trial. 

John Bessler: [00:05:17] That's right. But not everybody is eligible for bail so it's been ruled by the U.S. Supreme Court that if you're a danger and would pose a danger you may not be eligible for bail so you do see people who are charged with murder for example who are not released on bail. And the Supreme Court says that that's OK because we need to protect the community. Not everybody's eligible for bail. But if you are eligible for bail, the law and the Constitution states it should not be excessive bail. 

Virginia Prescott: [00:05:44] There has been a movement and legislation either proposed or passed just recently in Atlanta to reform the way bail and fines are paid. So what is at issue there? 

John Bessler: [00:05:56] Well I think what's at issue and what we are seeing is really a debate around the country on this issue is that if somebody is charged with a crime and they don't have the financial means to pay bail or to pay a fine then the consequences of that may be that the person remains in the system, remains incarcerated and obviously being incarcerated has a lot of consequences. So, you are unable to keep a job. 

[00:06:20] And so this is a know important debate that's going on right now about bail reform and people I think are paying attention to it and it's been an issue that really hasn't been in the news until very recently. 

Virginia Prescott: [00:06:30] How about for fines, is excessive or unusual based on the price or the actual amount or excessive based on money paid for a crime? 

John Bessler: [00:06:39] The courts are the ones that decide what is excessive and you can imagine it's a very subjective concept to decide what is excessive bail, what is excessive fines, and those are the kinds of decisions that judges have discretion to to set bail to set the level of fine and then ultimately some cases get appealed all the way up the U.S. Supreme Court and the Supreme Court would ultimately determine whether or not there was an excessive amount that was for example charge for up for a fine. 

Virginia Prescott: [00:07:14] Well I'm thinking of things that I've read about you know grossly overcrowded prisons really bad conditions inside of prisons or how prisoners were treated by Sheriff Joe Arpaio and his deputies. The question is do convicted criminals have all constitutional rights? 

John Bessler: [00:07:30] They don't have all constitutional rights obviously you're deprived of your liberty when you're convicted of a crime and you're sent to prison. You can't go out of the prison. You're stuck there. But Justice Kennedy for example has written that there are certain rights that prisoners are not deprived of one of those that he talks about is the right to human dignity. And so human dignity has been described as the touchstone of the Eighth Amendment by the Supreme Court itself. 

[00:07:53] And so when you have you know horrendous prison conditions the Supreme Court does step in sometimes and so for example in a case called Brown versus Plata in California the Supreme Court said that you know California prisons are incredibly overcrowded there's inadequate medical care for people, inadequate psychiatric care for people and for that reason declared that the current state of the prison conditions in California actually violates the the cruel unusual punishments clause. 

Virginia Prescott: [00:08:22] There is in American prisons a disproportionate percentage based on the population of minorities incarcerated. Is this considered an Eighth Amendment issue? 

John Bessler: [00:08:33] Well it is. I mean I think for me it is certainly the U.S. Supreme Court in a death penalty case called McCleskey versus Kemp actually rejected reliance on use of statistics to prove that there was an Eighth Amendment violation and -- or equal protection violation of the Constitution based upon those statistics which showed that those who kill whites are much more likely to be executed than those who kill blacks for example. But the equal protection clause which I should mention is part of the Fourth Amendment -- the 14th Amendment guarantees equal protection of the laws. And from my research I discovered that the 14th Amendment was actually intended to constitutionalize the Civil Rights Act of 1866 and that act required like punishments between blacks and whites and we just simply haven't seen that in the administration of the death penalty certainly we see that there's study after study shows that those who kill whites are much more likely to get the death penalty than those who kill blacks. 

Virginia Prescott: [00:09:30] And the Eighth Amendment is primarily discussed in context of the death penalty. So when we talk about it, and how it affects us and our culture in society today is it really about capital punishment? 

John Bessler: [00:09:42] It's not entirely by capital punishment but that's where I think the public attention has been with respect to the battle over the meaning of the Eighth Amendment but it doesn't say in the Eighth Amendment that it only applied with certain punishment, it applies any kind of punishment. So a legislature can enact a punishment but the punishment cannot be itself cruel and unusual and so we have seen though a lot of litigation over capital punishment and that's really the modern era of capital punishment really begins at least before the U.S. Supreme Court in the 1970s. So in a case called Furman versus Georgia in 1972 the Supreme Court declared in a six sentence per curium opinion by the court that the the use of the death penalty violates the Eighth and 14th Amendment of the Constitution. And what happened then was over 30 states reenacted death penalty statutes and in 1976 the Supreme Court declared that the death penalty was not unconstitutional in Gregg versus Georgia. And so you have a situation now where the Supreme Court has been taking up issues relating to capital punishment but not really getting at the core of whether the penalty itself is unconstitutional so the Supreme Court has declared the death penalty unconstitutional for the insane, for juveniles, for those with intellectual disabilities, for those who played maybe a minor role in a particular crime. And so the Supreme Court is kind of tinkering around the edges with respect to the death penalty but hasn't addressed, again, like it did in the 1970s the core issue of whether the death penalty itself is actually a cruel unusual punishment. 

Virginia Prescott: [00:11:18] When does the Eighth Amendment apply and when doesn't it? 

John Bessler: [00:11:22] The Eighth Amendment Applies in a time that there is a punishment imposed. If it's imposed by the federal government, Eighth Amendment is potentially applicable to judge whether that punishment's unconstitutional. Same thing is true at the state level because of the 14th Amendment applying the eighth Amendment against the states. There are some areas where the Eighth Amendment does not reach. And so there was a case actually the Ingraham case which said that corporal punishment in schools is something that the Eighth Amendment was not designed to deal with. Now that's interesting because the like in South Africa the Constitutional Court there has actually outlawed corporal punishment within schools. So there's a difference in how different courts around the world treat that particular issue. But there's also of course other laws that deal with that issue. And so you know if somebody a school were to use corporal punishment that could be something that they could be sued for. And in court using other kinds of tools other than the Eighth Amendment but the Eighth Amendment applies to review decisions and finds those willing to bail and those relating to punishments in general. 

Virginia Prescott: [00:12:26] John Bessler, Are there any issues that we haven't talked about that you think are going to be litigated in the future perhaps based on Eighth Amendment? 

John Bessler: [00:12:34] Well I think one of the issues that you'll see is the Supreme Court's already declared that the execution of the intellectually disabled to be unconstitutional. I would expect that you might see the court take up a case at some point about those with severe mental illness. Might also be an issue that you might see. 

[00:12:52] I also think that there's going to be a continual sort of evolution on this issue because the standard that the Supreme Court itself has used since 1958 to interpret the Eighth Amendment is what's called the evolving standards of decency of a maturing society. And so as the as the world changes as American culture changes the standard that the court has used for decades actually invites the court to reassess whether or not particular punishments are appropriate. And right now you see Europe is already a death penalty free zone. There's actually two protocols in Europe that bar the use of the death penalty in peacetime and in wartime actually. South Africa's Constitutional Court declared the death penalty unconstitutional back in the mid 90s. And you have countries like Rwanda, Mongolia that have gotten rid of the death penalty. And so the U.S. is really in terms of a highly industrialized Western countries really alone in this. Japan still uses death penalty occasionally but it comes from a different cultural perspective than we do. So the place where we got the cruel unusual punishments clause from England no longer uses the death penalty and as long abandoned the death penalty. And so I think there will be a discussion at some point about whether or not the death penalty is appropriate before the U.S. Supreme Court again. Justice Breyer and Justice Ginsburg have actually asked for a full briefing on that issue. There is simply not enough votes yet to grant cert on that issue. You need four votes on the Supreme Court to grant cert, to grant review of the case. But once those four votes are there I think the court will eventually take up this issue and we'll have another discussion before the U.S. Supreme Court about this. 

[00:14:23] And it will be informed I think by the increasing arbitrariness of the death penalty along with the -- the racial discriminations. Those issues I think are still appropriate and ripe for the Supreme Court to take up again. 

Virginia Prescott: [00:14:37] John Bessler he's associate professor of the University of Baltimore, adjunct professor at Georgetown Law School and visiting scholar at the Minnesota Law School. A lot of credits there and thank you so much for joining us. 

John Bessler: [00:14:49] Thank you. 

Virginia Prescott: [00:14:50] This episode of Civics 101 was produced by Ben Henry and Hannah McCarthy. Executive producer is Erika Janik. Our music is from Broke for Free. If you'd like to know more about unusual punishments from the pillory the ducking stool, check out our Extra Credit newsletter. You can sign up at civics101podcast.org. And that's the place to submit your questions about how our democracy works either by e-mail or send us a voice memo. Again that civics101podcast.org. Civics 101 is a production of New Hampshire Public Radio. 

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Made possible in part by the Corporation for Public Broadcasting.

The Department of Justice

The Justice Department seems to always be in the news - from the White House's public criticism of Attorney General Jeff Sessions, to the President's firing of James Comey - but what's behind the headlines? What exactly does the DOJ do from day-to-day? And what's the agency's relationship between other branches of government? NPR Justice Correspondent Carrie Johnson joins us to help us learn more.

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TRANSCRIPT

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

Civics 101

Episode 111: The DOJ

Virginia Prescott: [00:00:00] I'm Virginia Prescott and this is Civics 101. The podcast refresher course on the basics of how our democracy works. The Department of Justice has been all over the news recently from investigating use of force by police departments, to the president's public criticism of his own attorney general, to the firing of FBI Director James Comey. So we weren't surprised by the multitude of questions we've received about the Department of Justice. Listeners asked, What does the DOJ do from day to day? What falls under the DOJ? And what is its relationship between the DOJ and other branches of government? Well we have just the person to help parse out these questions. CARRIE JOHNSON is Justice correspondent for NPR. So great to have you on civics 101.

Carrie Johnson: [00:01:08] My pleasure. Happy to be here.

Virginia Prescott: [00:01:10] So listener question what does the Justice Department do?

Carrie Johnson: [00:01:14] Actually a lot of things. The Justice Department includes prosecutors it includes a host of agents agents that the FBI, agents at the Drug Enforcement Administration., U.S. marshals, agents at the Bureau of Alcohol Tobacco Firearms and Explosives, and then immigration judges as well. So the DOJ spans a huge huge portfolio about 170000 people total and an annual budget 28 billion billion that's billion with a B.

Virginia Prescott: [00:01:44] Well so all of those agencies under the DOJ purview, what is it, if you were to say its mission? What is it?

Carrie Johnson: [00:01:52] You know since the attacks of September 11 2001 the department's primary priority has been protecting national security. But it also seeks to keep people safe from crime. It seeks to preside over a system of crime and punishment in the U.S. and it also plays a big role in incarceration because the Federal Bureau of Prisons is also part of the Justice Department.

Virginia Prescott: [00:02:18] When and why did the Department of Justice get its start?

Carrie Johnson: [00:02:22] Well, the Justice Department actually got its start properly under the presidency of Ulysses Grant in 1870 and under an act of Congress. But even before that time there was a legislation and there was an attorney general dating back to the 1700s. The attorney general mostly worked on his own but he employed a lot of private lawyers to help do litigation and as the responsibilities of this Justice Department grew bigger and bigger and that roster of private lawyers grew larger and larger. President Grant's administration decided there needed to be some kind of entity inside the auspices of the government to do more of the work. And in those early years that Justice Department did a lot of prosecutions of the KKK and other people after after emancipation who were attacking former slaves.

Virginia Prescott: [00:03:21] Civics 101 did do an episode on the attorney general, the most visible face of the department, but can you remind us of what the A.G. does?

Carrie Johnson: [00:03:30] Sure. We have had 84 attorneys general so far in in the country and at its base the attorney general at least in the modern era after Watergate has been a sort of a public face of the justice system has been in fact a cheerleader for his or her agents around the country and prosecutors and has a big external role in both explaining the justice system and reassuring the public that when federal crimes are committed that his or her Justice Department is going to get to the bottom of them find out who's responsible and punish those people appropriately. Today the attorney general is nominated by the president confirmed by the Senate member of the cabinet.

Virginia Prescott: [00:04:15] What is that relationship between the executive and the attorney general?

Carrie Johnson: [00:04:20] You know this is kind of a complicated thing because we talk about some kind of independence of the Justice Department and the FBI but they really do report to a president. And so the way it's been understood since Watergate which was a very traumatic time for the Justice Department and the FBI as well as the rest of the country since Watergate the norm has been that when it comes to policy issues the Justice Department reports too and consults with the White House and the president. So in this administration in the Trump administration that means a lot of emphasis on violent crime gangs like M.S. 13 and prioritizing immigration enforcement. Those kinds of consultations are not only necessary but considered appropriate. Where people tend to draw the line post-Watergate is when a president or anyone in the White House aside from the top lawyer in the White House the White House counsel wants to be kept abreast of specifics involving ongoing federal law enforcement investigations that has been a no no because of the potential for interference. The potential for political interference with the ongoing operations and investigations of the FBI, the ATF, the DEA, and the like. And that has been deeply frowned upon for generations now and in fact previous White Houses and previous attorneys general have instituted memos limiting the number of people in the White House who can call up anybody inside the Justice Department and ask really nosy questions about investigations.

Virginia Prescott: [00:05:55] Well last fall President Trump ratcheted up calls for the DOJ and FBI to investigate the activities of some of his political rivals Hillary Clinton namely former President Obama. So can he do that? I mean are there established checks and balances between the president and the DOJ?

Carrie Johnson: [00:06:13] While the president has a lot of power and uses it in terms of his bully pulpit on Twitter and in public statements that he makes. But even Republican veterans of the Justice Department have found some of the calls to investigate political opponents like Hillary Clinton and some of her top aides to be un-befitting of the U.S. justice system and un-befitting the system of norms that's cropped up after Watergate. There's also evidence that other people inside the White House aside from the president have been asking the Justice Department and the FBI about specifics of ongoing investigations. That is really not done in the last 40 or 50 years and every time it's happened somehow those kinds of conversations have leaked out into the press. In part I think as our release valve for folks in law enforcement and folks with concerns about this issue and the independence of the department and the FBI to let folks know that something is happening and it may not be quite appropriate.

Virginia Prescott: [00:07:17] Well I want to pick up on that because you're talking about you know the president leaning on the Justice Department to do their bidding on some level but beginning early last year and since the president and his administration have publicly and privately scolded attorney general sessions for recusing himself from the Department of Justice probe on Russian election meddling. I'm wondering since you mentioned Watergate are there any historical precedents for this kind of beef between the executive and the A.G.?

Carrie Johnson: [00:07:47] You know President Bill Clinton was never very happy with his FBI director Louis French. And he really wasn't very happy with his attorney general Janet Reno either in part because Janet Reno repeatedly exercised her authority at the Justice Department to approve the naming of independent counsels to investigate parts of Bill Clinton's White House and cabinet secretaries among other things. So there has been friction. There's been pretty intense friction between White house's and FBI in the past. I'd also point out that during the George W. Bush years folks in the White House particularly then Vice President Dick Cheney were really unhappy with the deputy attorney general. A name you all recognize, Jim Comey who went on to become the FBI director and be fired by President Trump last year. Jim Comey is deputy attorney general approved the appointment of a special prosecutor to investigate the leak of a CIA operative's identity in the George W. Bush administration. Then president President Bush and Vice President Cheney were both interviewed by that special counsel. That investigation really rocked the White House and there was a lot of friction then too. That said the level of animosity coming from the White House directed at the Justice Department and the FBI in the Trump era is something I have never seen and something most people in Washington who have been here 40 or 50 years and followed law enforcement have never seen. This is an unprecedented sustained attack on these two institutions which generally are embraced by Republicans and conservatives in Washington. Instead the figureheads at the Justice Department and the FBI have been repeatedly beaten up by the president and some of his allies. And that attack continues to this day.

Virginia Prescott: [00:09:44] Well how about changes in an administration? How does that affect the DOJ? I'm thinking about the investigations into Chicago, Baltimore other police departments during the Obama administration. Also during that administration cold cases from the civil rights era were picked up again. Did these kind of priorities carry over from one administration to the next?

Carrie Johnson: [00:10:07] Well elections have consequences and oftentimes the Justice Department swings like a pendulum. At least parts of it do when an administration changes. So for instance when he came on board Attorney General Jeff Sessions in the Trump era announced that he and President Trump viewed local law enforcement as allies and they didn't want to be meddling in the business of local law enforcement. While the Attorney General Sessions has gone on to prosecute individual police officers for breaking the law particularly for say abusing people in custody he's announced far fewer investigations of police forces as a whole systemic patterns of abuse. The Civil Rights Division is one of those areas that really swings depending on whether a Republican or a Democrat is in power. Another area like that is the environmental division at the Justice Department and to some extent the antitrust division. What doesn't tend to change that much is the bread and butter criminal law enforcement at DOJ, so too prosecutions of accused terrorists people who are accused of hate crimes and other people who break the law including run of the mill offenses those folks are generally prosecuted by U.S. attorneys around the country and those priorities don't change that much. I would add one complicating factor during the Obama years than Attorney General Eric Holder launched a big initiative to reconsider how drug criminals are punished and charged. And Holder directed his prosecutors to use more discretion in charging people with drug crimes. That memo that guidance was wiped away by Attorney General Jeff Sessions who wants to take a much tougher approach to drug criminals. It's just one year in the Jeff Sessions era a little too soon to say whether prosecutors in the field around the country are adopting those changes. But in a year and a half two years we'll be able to see whether people are going more people are going to prison and for longer terms because of drug crimes.

Virginia Prescott: [00:12:10] Carrie, you detailed some of the last you that unprecedented in decades shifts over at the Department of Justice both in its conduct and I guess priorities. Has that shift changed the role of the DOJ and the attention given to some of the other offices that it oversees because there are many?

Carrie Johnson: [00:12:29] Yeah. The responsibilities of the Justice Department are enormous. Over the last nine months or so and the focus of most media and public attention has been on Jeff Sessions the attorney general and this ongoing investigation of Russian interference in the 2016 election and as a result there's a lot less attention being paid to what's happening in the federal prisons what's happening in the in the civil rights area what's happening in U.S. attorneys offices around the country. Folks aren't spending a lot of time on those issues which is frustrating for people like new FBI director Chris Rea on the Hill this week who said everybody focuses on the two investigations they know we're doing and nobody pays attention to everything else that we're doing to keep the country safe.

Virginia Prescott: [00:13:19] You've been reporting on legal issues, the FBI, high profile trials and now the DOJ for more than a decade. What Carrie do you see here some of the biggest challenges for the DOJ moving forward?

Carrie Johnson: [00:13:33] The Justice Department and the FBI are undergoing the biggest stress tests that I've ever seen. And perhaps the biggest stress test since Watergate. The White House seems poised to continue an attack on at least some figures at the Justice Department and the FBI is basing decisions on political considerations rather than law enforcement considerations. That's something that we haven't seen at this level in decades and decades. So far the institutions have held up. I'm going to be watching to see if we get more of an outflow of people at the Justice Department and the FBI for more lucrative opportunities outside of the government trying to avoid some of these attacks by the Justice Department the Bureau the Federal Bureau of Investigation are sort of top of mind every day and no one knows. Day in and day out what might happen by the end of the day. It's just it's just a very uncertain time over at the Justice Department right now. You go into the building. It's quiet. There aren't a lot of people in the hallways and it seems to be an agency kind of crouched in a defensive position. And what's so remarkable is that they're defending themselves from an attack by their own president.

Virginia Prescott: [00:14:53] CARRIE JOHNSON thorough inside look at the Justice Department. Thank you so much for speaking with us

Carrie Johnson: [00:14:59] My pleasure.

Virginia Prescott: [00:15:00] Carrie Johnson is justice correspondent for NPR at the Washington Desk.

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Made possible in part by the Corporation for Public Broadcasting.

The Hatch Act

Every now and again, reports come out that a public official has violated The Hatch Act - a 1939 law that prevents federal employees from engaging in certain types of political activity and speech.  Today, we'll find out what exactly is and is not allowed under the Hatch Act; who decides when the line has been crossed; and what the penalties are for violations. Our guest is Liz Hempowicz, Director of Public Policy for the Project On Government Oversight.

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TRANSCRIPT

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

Civics 101

Episode 110: The Hatch Act

Virginia Prescott: [00:00:24] I'm Virginia Prescott and this is Civics 101, the podcast refresher course on the basics of how our democracy works. American law makes a distinction inside the government between elected officials and federal employees. The Hatch Act was created to keep employees charged with keeping the government functioning from engaging in the kinds of political calculations and preferences that elected and appointed officials make their careers on. You may have heard of it in the news recently, since presidential adviser Kellyanne Conway was accused of violating it. One of our listeners did:.

Stacy: [00:00:58] Hi this is Stacy calling from Laguna Beach, California. I would be interested in more information on the Hatch Act. For example, is it a criminal or civil offense? And who prosecutes any wrongdoers? What is the potential punishment? Thanks. I really enjoy listening to your show.

Virginia Prescott: [00:01:18] Liz Hempowicz is Director of Public Policy for the Project on Government Oversight, or POGO. And she's back with us. Liz, great to have you.

Liz Hempowicz: [00:01:25] Thanks for having me back.

Virginia Prescott: [00:01:26] What is the Hatch Act?

Liz Hempowicz: [00:01:28] It's a law that restricts certain speech and actions by federal employees and then some state and local employees as well. And and the purpose of it and by the type of activity and speech I'm talking about is political speech.

[00:01:43] And the reason why is because you know the government is meant to work for all the people, the American people, all the taxpayers, not the people of a particular party. And so the optics of having federal employees, especially career employees, who you know are at the government for a long time not depending on who's whose party is in the White House or in Congress. You know, you don't want to have the appearance that those employees are pushing one party over the other.

Virginia Prescott: [00:02:09] It was originally called An Act to Prevent Pernicious Political Activities, which I guess kind of belies its 1939 origins. But what does it specifically forbid?

Virginia Prescott: [00:02:20] So there are two types of restrictions under the Hatch Act, and so that most federal employees fall under the like less restricted category. And then there are some that fall under the more restricted category, so less restricted employees can't run for a for a in a partisan political election. And so my question was when I first read that a while ago was, what is a nonpartisan political action? And that basically is when you're running as a representative of a party. And so there are elections where you're running as an individual and not as a Republican a Democrat or an independent. But it also restricts the use of resources like federal resources to solicit or discourage political activity or contributions and it allows for less less restricted employs a lot of it depends on where you are and what time it is when you're when you're engaging in some of these activities. So so there's a real distinction between when you're at work or using your government computer versus when you're off the clock.

[00:03:24] Now, more restricted employees are further restricted employees can't campaign for candidates regardless of whether they're out work or not at work. Whereas less restricted employees can campaign for for partisan political candidates outside of the office and off off government time.

Virginia Prescott: [00:03:41] How are those not violations of free speech? That you cannot as a citizen, even though you are and you're employed by the federal government, can't say who you want to vote for or can or put a yard sign up or put something up on your Facebook page for example?

Liz Hempowicz: [00:03:56] Yes, so there actually have been two challenges that may be against the constitutionality of the Hatch Act that made their way to the Supreme Court. And in both instances the Supreme Court ruled that there is a significant enough interest in maintaining that impartiality of the federal government and that interest overrides the small limit on on the types of speech and activity that this seeks to regulate. They did look at kind of the rules and regulations, and said that they're not overbroad or vague and that they're easy to understand, that they you know go towards the actual purpose of this and so it was ruled constitutional in both cases.

Virginia Prescott: [00:04:35] It was originally designed to block federal employees in the executive branch. Is it all federal employees now that are under this Hatch Act either in the first or second category?

Liz Hempowicz: [00:04:47] Yeah it is most federal employees that actually also covers some state and local employees. If they're if their salaries are are are paid by by federal funds.

Virginia Prescott: [00:04:57] Then who's exempt from the Hatch Act?

Liz Hempowicz: [00:05:00] The President and the vice president.

Virginia Prescott: [00:05:01] That's it?

Liz Hempowicz: [00:05:02] That's about it.

Virginia Prescott: [00:05:03] So, how about when there is a campaign event for example, you could not have your secretary of state or somebody else who was in your cabinet with you on stage supporting you?

Liz Hempowicz: [00:05:15] So there are certain, there are certain exemptions. But but overall yes, Cabinet officials are subject to the Hatch Act. There are some exemptions there, like very specific instances, but for the most part it's really you know you don't want these people in their official capacities, you know so the secretary of state going out there and saying, you know, "You need to vote for this president again in this upcoming presidential election." And I think we've seen over the last few decades we have seen some cabinet level secretaries, you know findings that they have violated the Hatch Act.

Virginia Prescott: [00:05:47] Well that, that's kind of a thing. I mean, help me understand how big of a deal this is when someone violates it. Is it the kind of thing that happens in every administration, or is it rare? So it's actually not that rare, but but one way of understanding kind of the seriousness of the Hatch Act is, and kind of the variation in seriousness of it, is looking at the penalties. And so a penalty for a Hatch Act violation can be anything from a fine, from a reprimand, to suspension, removal. A downgrade in your grade level as a federal employee. And that actually was updated in 2012. And so this is relatively new. Previously the only two options for penalties were a 30 day suspension, or removal from your position.

[00:06:33] And so I think that update to the law kind of shows that there are that there are really, there's a huge variation in violations of the Hatch Act, and so it could be something like you know, accidentally leaving on a political pin. And when you come into work and it's on your coat. That's technically a violation of the Hatch Act. It's also a violation of the Hatch Act to go on national TV as a representative of the administration and push one political candidate over another. And so if you look at those two instances it wouldn't make sense for the penalties to be exactly the same. And so it's largely up to the Office of Special Counsel who investigates these complaints against individuals and issues findings, and also maybe recommends what penalty they think would make sense.

Virginia Prescott: [00:07:18] You are pointing to what sounds like a recent case of Kellyanne Conway, senior adviser to President Trump. She did work on his campaign. She was on television a great deal. Here's the clip that pushed her over the boundaries of the Hatch Act, according to the Office of Special Counsel:

Kellyanne Conway: [00:07:33] "Doug Jones in Alabama. Folks don't be fooled. He'll be a vote against tax cuts. He's weak on crime, weak on borders, strong on raising your taxes, he's terrible for property owners. So it's doctrinaire liberal which is, why he's not saying anything, and why the media are trying to boost him."

TV Host: [00:07:51] "So vote for Roy Moore?"

Kellyanne Conway: [00:07:52] "I'm telling you that we want the votes in the Senate to get this tax bill..."

Virginia Prescott: [00:07:58] So Liz, where did Kellyanne Conway go over the line there?

Liz Hempowicz: [00:08:02] So the Office of Special Counsel found that there were two two instances in which Kellyanne Conway violated the Hatch Act, in this complaint. One was an implied endorsement of then Senate candidate Roy Moore and then the other was the other violation, was her explicitly advocating for a Senate candidate again, Senate candidate Roy Moore.

Virginia Prescott: [00:08:23] Are there officials that are charged with monitoring for Hatch Act violations, or would this charges more likely come from you know say an opposition party, or maybe an outside watchdog group like yours, Pogo?

Liz Hempowicz: [00:08:34] Yes, so many of them much of the work of the Office of Special Counsel in terms of enforcing the Hatch Act is done based on outside complaints and that could come from you know other federal employees who are witnessing things in their office or not out outside watchdog like the Project on Government Oversight. They are, the Office of Special Counsel, they are allowed to issue their own investigations and launch them on their own. But if you think about the size of the federal workforce versus the size of the Office of Special Counsel, it doesn't really make sense to have them, to hold them to be the sole arbiters of policing this bill.

Virginia Prescott: [00:09:13] It was however the Office of Special Counsel that wrote up the report saying that Kellyanne Conway did violate the Hatch Act, correct?

Liz Hempowicz: [00:09:21] Absolutely, and that was I believe based on an outside complaint.

Virginia Prescott: [00:09:30] So what does the President do now? Can he choose not to act on the OSC report?

Liz Hempowicz: [00:09:37] In one word answer, yes. It is, for employees at the White House, it is up to the president's discretion what form of punishment, if there is any punishment, they would like to see. I think, you know, earlier we saw a Hatch Act violation from Kellyanne Conway where she just received a reprimand, and that is one of the legal penalties under the law for a violation. And so that's that's well in line with it I think. I think it is, there's a growing discontent with civil society groups, and I think individual citizens as well, that that's, you know who view that as not being good enough. I think our organization is one of them. We think this is really this a serious law and it deserves serious enforcement.

Virginia Prescott: [00:10:23] Well you talk a little bit about punishment. I want to get to the other part of Stacey's question is this a criminal or civil offense?

Virginia Prescott: [00:10:30] It's a civil offense.

Virginia Prescott: [00:10:31] And who would prosecute it?

Liz Hempowicz: [00:10:33] So the Office of Special Counsel, for individuals who are outside of the White House right, because we've discussed how the president is in charge of how that is enforced, for most employees when the Office of Special Counsel issues a report and findings of a violation of the Hatch Act, they can file, they file with the Merit Systems Protection Board and then the individual has a right to respond there. And so there is a due process component to this as well.

Virginia Prescott: [00:10:58] I just want to go back to that point that we meant you mentioned about the cases challenging free speech. You know we living in the age where everybody, virtually everybody, spouts off their political opinions on social media. But for federal employees social media posts can be discovered and then suddenly maybe private action feels like a public statement. Do you think the Hatch Act has adequately addressed social media?

Liz Hempowicz: [00:11:27] Well the original law I think was written in like 1939 is when it was passed so, so social media was not was not a thing then. I do think the Office of Special Counsel has done a really good job of issuing guidance for all federal employees that interprets the law in the case of different social media activities. And they've put out you know, a short primer, a longer a deep dive, into you know what is restricted activity and what isn't. And so while the law maybe didn't didn't foresee social media I think the Office of Special Counsel is doing a really good job of making sure that federal employees aren't stuck in this gray area of what is or isn't allowed. And I just want to kind of highlight one thing about the Hatch Act. It's not meant to restrict political activity as, for private citizens. And I understand that federal employees are also private citizens and so a lot of it hinges on whether or not they're in their office using federal resources, in their federal uniforms. It's not a blanket restriction for most employees. So it is pretty narrowly tailored I think to the, to the government's interest in making sure that that it presents itself to the American people as a non partial arbiter of the laws. And of the federal resources.

Virginia Prescott: [00:12:45] I will say we've got a number of questions about the Hatch Act. While government employees may be well aware of these kinds of restrictions and they're given guidelines, about the rest of the American public? Do you think this is something they knew about?

Liz Hempowicz: [00:12:59] Probably not but I'm I'm sure they're probably learning more about it as it's in the news more and more you know. As I mentioned the Office of Special Counsel is put out put out social media guidance, but they also issue advisory opinions when individual federal employees reach out and ask, "is this is this activity restricted under the Hatch Act?" And then they post those proactively on their Web site. And so and that's open to you know everyday citizens, who aren't federal employees, to go in and I recommend that they do if they're interested in learning more about the Hatch Act. There are you know a lot lot of gray areas if you just look at the the bare bones language of the law itself, and the Office of Special Counsel has done a really good job of kind of breaking down and explaining it in a way that's very easily understandable.

Made possible in part by the Corporation for Public Broadcasting.

The Fourth Amendment

When an ordinary citizen interacts with law enforcement, it can be unnerving to realize the amount of power an officer wields: they've got the guns, the handcuffs, and the authority. But the Fourth Amendment places limits on governmental and police power. What exactly are those limits, and have they changed in the 21st century?

Cynthia Lee is a professor at George Washington University Law School and author of Searches and Seizures: The Fourth Amendment.

Correction: Cynthia Lee has written one book on the topic of the Fourth Amendment, not several, as stated in the episode's introduction. 

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TRANSCRIPT

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

Civics 101

Episode 109: The Fourth Amendment

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

[00:00:05] Who is the current speaker of the House? Don't even know. Will they rule in the president's favor or will they send to the Supreme Court? You can't be referred to a senator directly by their name. Congressional redistricting. Separation of powers. Executive orders. The national security council. Civics, civics, civics, 101!

Virginia Prescott: [00:00:21] I'm Virginia Prescott and this is Civics 101. The Constitution protects us against unreasonable search and seizure. but what do those words actually mean, and how did they affect us? Bringing us through it today is Cynthia Lee. She's professor at George Washington University Law School and author of several books on the Fourth Amendment including Searches and Seizures: The Fourth Amendment. Cynthia, welcome.

Cynthia Lee: [00:00:48] Thank you Virginia. Thank you so much for having me.

Virginia Prescott: [00:00:50] So what does the Fourth Amendment say?

Cynthia Lee: [00:00:52] The fourth amendment basically protects people against having the government search their homes and private property without a search warrant issued in advance from a court.

Virginia Prescott: [00:01:02] So why do we have it? Why was this put into the Bill of Rights?

Cynthia Lee: [00:01:06] Well the colonists felt that it was really important to include a specific provision in the Bill of Rights protecting people against having their homes easily searched by government officials because back in the 1700s, the king of England would issue what were called Writs of Assistance which gave government agents really broad discretion to go into people's homes and rummage around searching for evidence of criminal activity and they didn't have to get permission in advance from a neutral party. They didn't have to show any kind of justification in advance.

[00:01:42] So the framers of the Constitution wanted to make sure that the newly formed Federal Government wouldn't be able to just come into people's homes and rummage around through people's papers and effects without having to jump through some hoops in advance. Like getting a warrant, a search warrant, from a judge or a magistrate.

Virginia Prescott: [00:02:03] So search and seizure. Let's focus on those and I know that there are broader definitions that have changed in many ways throughout the years. But could you quickly define each of those and give us an example of what a search or seizure might be.

Cynthia Lee: [00:02:16] Certainly. So let's take searches for starters. The Supreme Court has held that aiming a thermal imager, a device that can sense relative amounts of heat, aiming a thermal imager at a house constitutes a search. It has held that placing a GPS tracking device under someone's vehicle and monitoring that vehicle for 28 days, that constitutes a search within the meaning of the Fourth Amendment. The court has held that bringing a drug detection dog to the front porch of a home, to see if the drug detection dog can smell marijuana, odors of marijuana, emanating from the home. The court has said that constitutes a search within the meaning of the Fourth Amendment. A frisk of a person. That is when the police officers stop someone and does a frisk of the outer clothing to search for weapons. That's an example of a search of a person.

Virginia Prescott: [00:03:15] How about seizure, through the ages and up to now?

Cynthia Lee: [00:03:18] So the court recognizes two kinds of seizures: seizures of property and seizures of persons. A seizure of property, the court says, occurs when the government has meaningfully interfered with one's possessory interests in the property. So for example if the government impounds your car and takes it away from you they've seized your car. A seizure of the person for fourth amendment purposes is a little more complicated than that and the court has said that a seizure of the person occurs when an officer accosts an individual and by means of physical force or show of authority restrains his liberty. So basically the officer has to apply physical force to the person like touch the person or tackle the person or the individual has to submit to the officers show of authority. And the test for a seizure of the person, the court has stated, is whether in view of all the circumstances a reasonable person would have believed he was not free to leave or terminate the encounter with the officer. But on the other hand the court has said that an officer can walk up to anybody on the street, ask him questions, and if a reasonable person in that person's shoes would have felt free to leave, that is not a seizure and the Fourth Amendment is not implicated.

Virginia Prescott: [00:04:48] Those of us who have watched cop shows have seen that moment when the judge throws out all the evidence because the police gathered it improperly. This actually comes from the exclusionary rule of the Fourth Amendment. What is that?

Cynthia Lee: [00:05:01] So the exclusionary rule is a rule of, sort of like a rule of evidence and it basically says if the police violate the Fourth Amendment then any evidence that they find through that violation must be excluded at trial. That's why it's called the exclusionary rule. It's the remedy for a Fourth Amendment violation.

Virginia Prescott: [00:05:22] There have been through history a number of cases that redefined or or were groundbreaking and helping us understand the Fourth Amendment. One of those was called Katz versus the United States, I think 1967, if I have that right. What happened? This reinterpreted the very concept of a search.

Cynthia Lee: [00:05:44] So Charles Katz was a fellow who lived in Los Angeles in the 1960s and he made money by placing bets for interstate gamblers and keeping a share of their winnings. Since interstate gambling was a federal crime Mr. Katz used the public telephone booths to try to avoid detection while he was conducting his business. Nonetheless the FBI became aware of his illegal activities and they somehow were able to identify the three public telephone booths that Mr. Katz tended to use to conduct his business. So the FBI worked with the telephone company to put one of the phone booths out of commission and they put wiretaps or listening devices, electronic listening devices, on the outside of the other two phone booths and listened in to Mr. Katz's conversations and based on incriminating statements that Mr. Katz made during conversations he had while in a public telephone booth that was bugged by the federal government, the government was able to arrest Katz and charge him with transmitting wagering information by the telephone.

Virginia Prescott: [00:06:56] What happened with that case and how did it change the way we think of the Fourth Amendment?

Cynthia Lee: [00:07:01] Mr. Katz complained about his conviction. He appealed his conviction and he appealed it all the way to the Supreme Court. And the Supreme Court not only took his case but ruled in his favor and replaced the trespass doctrine that had been in effect prior to 1967 with something, with a totally different test that relied, that looked to expectations of privacy. And under the trespass doctrine a search would occur only if the government physically intruded upon a constitutionally protected area: a person, house, paper, or affect. The things that are listed in the fourth amendment. So for example if government agents listened in on a telephone conversation by bugging a person's phones but they didn't have to physically intrude upon the person's home or property to do this that would not constitute a search under the trespass doctrine. But in Katz, the court adopted a test that focused on privacy rather than on whether or not there was a trespass.

Cynthia Lee: [00:08:16] And under what's called the reasonable expectation of privacy test, a search within the meaning of the fourth amendment takes place if the defendant manifests an actual or subjective expectation of privacy and that expectation of privacy is one that society is prepared to recognize as reasonable.

Virginia Prescott: [00:08:40] Reasonable I guess is the key word here isn't it?

Cynthia Lee: [00:08:43] Yeah it is.

Virginia Prescott: [00:08:45] So once the Supreme Court decided to protect this reasonable expectation of privacy, what kinds of things now count as searches that would not have before that case?

Cynthia Lee: [00:08:57] So in the example that I used before when discussing the trespass doctrine: if the government wiretaps your phones, your phone lines, and listens into your conversations without physically intruding into your property, your home or your property, that under the trespass doctrine would not constitute a search. But under the Katz expectation, reasonable expectation of privacy test, that would constitute a search and indeed the whole issue in Katz was whether the wiretapping of the public telephone booth that Katz went into and made his phone calls in, whether that constituted a search.

Cynthia Lee: [00:09:37] And the court in Katz said yes. That Mr. Katz when he went into that phone booth and closed the door behind him, had manifested not only an actual expectation of privacy in his phone conversations but that expectation of privacy was one that was legitimate justifiable and reasonable and therefore the government wiretapping of the phonebooth constituted a search.

Virginia Prescott: [00:10:12] What about stop and frisk? This is the tactic used by some police departments, most notably the NYPD, where officers stop someone on the street who they suspect may have or are about to commit a crime and can pat them down to see if they're armed. This is also called a Terry Stop. Why is that allowed under the Fourth Amendment?

Cynthia Lee: [00:10:33] So the Terry stop and frisk doctrine is allowed basically for two reasons. One is officer safety and that's the frisk part of it. The officer under Terry is allowed to do a limited pat-down search of the outer clothing of the person he stopped and it's a search for weapons and that's to protect officer safety. The officer under Terry Stop-and-Frisk is also allowed to briefly detain individuals based on reasonable suspicion that criminal activity is afoot. And that's, the rationale behind that is crime prevention. Giving officers the ability to nip crime in the bud before crime comes to fruition.

Virginia Prescott: [00:11:20] The criticism here of stop-and-frisk is it was used primarily in minority communities or on black and brown men as a tool for racial profiling by police officers. Of course the officers would say for preventing crimes. The case did go to federal court. So in this case how do you parse out: was this a Fourth Amendment case or was this an equal protection clause case?

Cynthia Lee: [00:11:43] You're talking about the Floyd versus City of New York case. And in 2008 there was a class action lawsuit filed against the New York City Police Department claiming that its stop-and-frisk policy violated the rights of black and brown individuals under both the Fourth Amendment and the Equal Protection Clause of the 14th Amendment. And in the course of this lawsuit the interesting thing was that the plaintiffs presented findings from an empirical study by a Columbia law professor Jeffrey Fagan showing that between January 2004 and June 2012 the New York City Police Department conducted over 4.4 million Terry stops and over 80% of these 4.4 Million stops were of blacks or Hispanics. And despite this massive effort contraband was seized in only 1.06% of the stops of black individuals and in only 1.25% percent of the stops of Hispanic individuals.

Virginia Prescott: [00:12:57] How did the attacks of 9/11 change the role of the Fourth Amendment?

Cynthia Lee: [00:13:04] So the attacks on the World Trade Center and the Pentagon on 9/11, September 11, 2001, didn't necessarily change the doctrine surrounding the Fourth Amendment that the Supreme Court had developed prior to 9/11 but it did have an impact on people's willingness to give up privacy for increased national security and likely spurred both legislative and executive actions that curtailed privacy protections in the name of national security. Shortly after 9/11 Congress passed the what is known as the Patriot Act.

[00:13:44] One of its provisions allowed what are called sneak and peek warrants whereby the government can search homes and seize property without giving the person notice of the search until long after the search has taken place, as long as a court finds reasonable cause to believe that providing immediate notification of the search or immediate notification of the execution of the warrant would have an adverse effect.

Virginia Prescott: [00:14:13] Where do protections of the Fourth Amendment not apply? Say, in prisons. Any prisoner can be searched, correct?

Cynthia Lee: [00:14:20] That's correct. The Fourth Amendment only applies if there's been a government search or seizure. So it doesn't apply if there's no government action. It also doesn't apply if what the government did is not considered a search or a seizure. And you're absolutely right that a search of a prison cell is not considered a violation of the Fourth Amendment because the Supreme Court has ruled that prisoners have no reasonable expectation of privacy in their prison cells. So prison guards can search their cells without a warrant, without probable cause, without any reasonable suspicion.

Virginia Prescott: [00:15:01] Professor Lee, we are no longer ducking into phone booths like Charles Katz. Instead we are now heaping massive amounts of personal information and communication records onto our phones. So what are the current rules about searching cell phones? Do police need some kind of warrant as they would say for searching a home?

Cynthia Lee: [00:15:22] So, in 2014, the Supreme Court actually dealt with a case involving the search of a cell phone that was found on the person of a man who had been pulled over for driving with expired license tags and then arrested for being in possession of concealed and loaded firearms. And the government argued that the police officer had the right to search the person of the arrestee and any items found on his person under what's known as the search incident to arrest doctrine.

Cynthia Lee: [00:15:56] So the search incident to arrest doctrine, Or exception to the warrant requirement, says that if an officer makes a lawful custodial arrest he has the right to contemporaneously search the person of the arrestee and the wingspan, or the grabbing area, the area from which the arrestee can grab a weapon or destroy evidence. So in 2014 the court had to decide whether this rule that it had previously established when an officer makes a lawful custodial arrest of a person that he has the right to search, do a full search of the person, including any containers found on the, on the arrestee's person. The Supreme Court had to decide well does this rule apply when the officer finds a cell phone on the person of the arrestee. And in Riley vs. California the Supreme Court, to many court observers' surprise, held that when an officer finds a cell phone they need a warrant. They cannot search that cell phone without getting a warrant first.

Virginia Prescott: [00:17:07] Cynthia Lee, thank you so much for speaking with us.

Cynthia Lee: [00:17:10] Great thank you, Virginia.

Virginia Prescott: [00:17:15] This episode of civics 101 was produced by Ben Henry and Justine Paradis. Executive producer is Erica Janik. Music from Broke for Free. If you'd like to know more about your constitutional rights check out our newsletter. It's called Extra Credit. At civics101podcast.org. Civics 101 is a production of New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The FBI

The FBI is our federal law enforcement agency. And, to enforce the law, it plays the role of secret intelligence agency as well. So how does the FBI protect us against domestic threats? And how far has it been willing to go to uphold the law? Journalist and author Tim Weiner joins us to reveal the inner workings of an agency shrouded in secret.

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TRANSCRIPT

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

Civics 101

Episode 108: The FBI

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

Open: [00:00:04] Who is the current speaker of the house? Don't even now. Will they rule in the president's favor or take it to the Supreme Court? You can't refer to a senator directly by their name. Congressional redistricting. Separation of powers. Executive order. National security council.

Tim Weiner: [00:00:24] I've met Bob Mueller. I've talked to Bob Mueller and if there were ever a person in United States government I would feel comfortable with him handling that amount of power, it's Mueller.

Virginia Prescott: [00:00:36] This is Civics 101. The podcast refresher course on how democracy works. I'm Virginia Prescott the Federal Bureau of Investigation is popularly known as the nation's law enforcement agency. It's a force long associated with tracking down threats and fugitives and with operating under the radar. But in the past year there have been some highly visible changes in leadership in the agency including the firing of FBI Director James Comey and Deputy Director Andrew McCabe who was let go last week. And then of course there's former director Robert Mueller a special counsel investigation into Russian meddling. To get a better read on this agency long shrouded in secrecy, we're talking with Tim Weiner journalist and author of Enemies A History of the FBI. Tim welcome.

Tim Weiner: [00:01:23] Thank you.

Virginia Prescott: [00:01:23] What does the Federal Bureau of Investigations investigate?

Tim Weiner: [00:01:27] From the beginning in 1908 the bureau has been a two headed beast. The first as known to one at all is the federal law enforcement agency.

Tim Weiner: [00:01:38] But the second known to all too few is the FBI as a secret intelligence service. Going after spies terrorists and other people who threaten the well-being of the United States.

Virginia Prescott: [00:01:53] Now people do often call it the nation's police force. Is it?

Tim Weiner: [00:01:58] Yes it is. And by design.

Virginia Prescott: [00:02:01] How did the law enforcement duties of the FBI then differ from those of other federal law enforcement agencies?

Tim Weiner: [00:02:08] The bureau can prosecute anyone for any violation of the Federal Criminal Code a very voluminous document. It also conducts counterespionage counterintelligence and counterterrorist investigations that can span not only the nation but the whole wide world.

Virginia Prescott: [00:02:26] You mentioned 1908. Why was it founded.

Tim Weiner: [00:02:30] President Teddy Roosevelt founded the bureau mostly in secret and by stealth over the opposition of Congress for two reasons. One was to go up against what TR called the malefactors of great wealth, the trusts all oil coal steel whose mega millionaire owners also owned and operated an astonishingly large number of congressmen and senators. And the second was to go after anarchists. An anarchist had murdered President McKinley and made TR president in 1901. And they'd been killing kings and queens and dukes and earls all over Europe from the 1880s onward. He saw the anarchists as a threat that could crush the United States unless they were crushed first.

Virginia Prescott: [00:03:31] Now you said by stealth. Why was it done secretly? Why would creating a domestic investigative agency have to be done under cloak and dagger?

Tim Weiner: [00:03:41] Because the FBI would go up against members of Congress who were corrupt. So Congress wasn't going to pass it in an open bill. TR and his attorney general named Charles Bonaparte, and yes he was the great nephew of the Emperor Napoleon, snuck it into a line item appropriation and created the bureau out of nothing with a paragraph in a spending bill.

Virginia Prescott: [00:04:07] Now this was when Congress had adjourned for the summer. Did I get that right?

Tim Weiner: [00:04:10] Yeah. Summer Recess. Very nice sleight of hand TR.

Virginia Prescott: [00:04:14] So at that point it was called the Bureau of Investigation. When did it become the FBI?

Tim Weiner: [00:04:19] In 1935 after J Edgar Hoover had been running it for 11 years.

Virginia Prescott: [00:04:25] He wielded significant power as head of the agency and a lot of evidence has surfaced since pointing to abusive tactics, intimidation, illegal spying by Hoover and the FBI. Was that how the agency exercised power?

Tim Weiner: [00:04:41] Hoover was the law and he had the power to defy the Supreme Court and defy presidents when he chose. The FBI's power is a secret intelligence service was built on warrantless break-ins warrantless bugging and wiretaps warrantless burglaries, black bag jobs they were called, and in nineteen thirty nine The Supreme Court outlawed illegal wiretaps. Hoover went to President Franklin D Roosevelt and said Mr. President how am I going to do my job if the Supreme Court has unanimously banned warrantless wiretapping and FDR, no slouch at stealth himself, wrote out a one page order and signed it saying essentially, screw the Supreme Court. Hoover kept that in his desk all his life and went on to bug and burglarize at will.

Virginia Prescott: [00:05:41] What were some of his famous targets?

Tim Weiner: [00:05:44] Generally communists and particularly when the Cold War began to eclipse everything else in American public life and American foreign policy after World War II, Hoover became the global face of anti communism in America.

Virginia Prescott: [00:06:01] You said Hoover was the law. But when he died 1972 he remained director until his death. How about now. How powerful is the FBI today?

Tim Weiner: [00:06:15] Hoover's Long Shadow extended throughout the 20th century and it really wasn't until after 9/11 when Robert Mueller, you may have heard of him, ran the FBI. That the FBI began to actually function as an intelligence service under law. And it took a confrontation between Mueller and the acting attorney general Jim Comey face to face with the president of the United States George W. Bush over an illegal program of warrantless eavesdropping conducted by the National Security Agency.

Virginia Prescott: [00:06:55] How does the FBI work with other agencies like the NSA for example or the CIA? Leading up to 9/11 there were a lot of accusations that they did not play well together and therefore missed a lot.

Tim Weiner: [00:07:09] It is safe to say that one of the proximate causes of the success of the 9/11 attacks was the failure of the FBI and the CIA to cooperate on anything. From the beginning Hoover bitterly opposed the CIA only because he wanted to run it. He wanted the international global powers of espionage to be under his control and so they fought from the beginning and continue to fight bitterly until the towers came down.

Virginia Prescott: [00:07:40] You mentioned that the original Bureau of Investigation was founded in stealth. How about now? How has Congress responded to abuses of power or extending power for the FBI?

Tim Weiner: [00:07:56] Back in the 1970s in the wake of Watergate, the Senate held extremely powerful hearings really the first of their kind in the history of the United States looking into what the FBI and the CIA and the NSA had done over the past 25 30 years going back to after World War II.

Tim Weiner: [00:08:17] And they found a long train of abuses in specific the warrantless bugging break ins wiretaps that the FBI had conducted including its round the clock surveillance of Martin Luther King. Now remember in general these operations were authorized by presidents. And the difference was that with Hoover gone, the bureau lay open to a season of investigation by the Senate. Out of that investigation came a chastened FBI, came indictments of senior FBI personnel, and came the Foreign Intelligence Surveillance Court which authorized and continues to authorize national security wiretaps.

Virginia Prescott: [00:09:05] Right, people listeners may have heard of it as the FISA court.

Tim Weiner: [00:09:08] Correct.

Virginia Prescott: [00:09:10] The police forces that we know and have more transparency in our local constituencies, they are constrained by the law and the Constitution. Sounds like the FBI for a long time went pretty far rogue of that. How is it constrained by those laws now?

Tim Weiner: [00:09:28] The FBI is there to protect and defend the Constitution of the United States. And it is true that for decades under Hoover and thereafter the bureau broke the law in the name of the law

Virginia Prescott: [00:09:44] So it protected the constitution by violating the Constitution.

Tim Weiner: [00:09:48] Well this was the great dilemma in the era of the Cold War. And again in the age of terrorism. Civil liberties and national security are often in conflict. We want to be safe and we want to be free but these are opposing forces and there is a tug of war continuous between civil liberties and national security.

Tim Weiner: [00:10:13] The FBI is charged with upholding the both but it finds itself often trapped between these opposing forces which pull in different directions. I think you have to credit Robert Muller and the 12 years he served as FBI director with trying and often succeeding in reconciling these forces and bringing the FBI into the 21st century as a secret intelligence service under law.

Virginia Prescott: [00:10:45] Alright, since you're bringing up Robert Muller I want to clarify something. We do often hear of Robert Mueller's investigation into possible Russian meddling in the 2016 election as an FBI investigation. Is it an FBI investigation?

Tim Weiner: [00:10:59] Mueller has the full force of the bureau at his disposal. He has 16 other very skilled prosecutors working in his office. He also has the full investigative powers of the rest of the federal government notably the Treasury Department. He can read Trump's taxes which is an exciting prospect for some people. He can use treasury's money laundering enforcement unit, which has global reach. And he can use the intelligence powers of the CIA, the eavesdropping NSA, and he can tap into the work of foreign intelligence services as well. He is probably the most powerful special prosecutor in the history going back to the Watergate era.

Virginia Prescott: [00:11:50] Who does he report to?

Tim Weiner: [00:11:52] The Justice Department in the form of the deputy attorney general, the attorney general Jeff Sessions having with good reason recused himself from this case.

Virginia Prescott: [00:12:10] Can an FBI agent arrest you?

Tim Weiner: [00:12:13] Yes.

Virginia Prescott: [00:12:13] What can and can't the FBI do in its investigations?

Tim Weiner: [00:12:17] They can't break the law to uphold the law anymore, and that is in great part due to the reforms instituted in the wake of the Nixon administration. They are not the law anymore as they were in Hoover's day. And they have been told time and time again that they can't break the law in the name of the law. Famously, James Comey when he headed the FBI kept on his desk a copy of the order that Hoover had to institute 24/7 365 surveillance of Martin Luther King as an example of how not to use power. And every graduate of the FBI Academy is schooled in this.

Virginia Prescott: [00:13:03] James Comey by the way who was fired, relieved of his duties in May of 2017 we see new shots and sometimes footage of FBI sweeping in in their blue slickers. You know FBI emblazoned on their back. They all look like white guys. Is it a diverse organization?

Tim Weiner: [00:13:23] No. The bureau is overwhelmingly white and male 95 percent roughly last time I checked.

Virginia Prescott: [00:13:30] How does this composition of the FBI affect the kind of cases it follows and how it follows them.

Tim Weiner: [00:13:38] In principle it should not. In practice it surely does. I would like to say that it's not as racist as J Edgar Hoover himself was. Hoover was a hater. I hope it is the case, with the recent kerfuffle within the bureau over misapprehending what Black Lives Matter is, suggests they've got a long way to go.

Virginia Prescott: [00:14:03] How does the FBI tips process work?

Tim Weiner: [00:14:06] Not well, sometimes. Look at the case of the Parkland School shooting where a bureau a field office in Florida was tipped off that this kid was a threat to show up to school. Often for the bureau to give them their due, it's like trying to get a drink of water from a fire hose. Tips pour in and sometimes the bureau gets lost in the volume of tips they're offered.

Virginia Prescott: [00:14:35] What are some of the greatest hits and greatest misses of the FBI.

Tim Weiner: [00:14:40] Well I think that the bureau would cite the Adam Aspis case as a crucial turning point. I think in more recent days, you can credit the bureau with the and at least one case stopping a potentially catastrophic terrorist attack here in my hometown New York. The bureau has a hard time rooting out wrongdoing in its own ranks and for nearly two decades there was a spy for the Kremlin for Moscow inside the FBI named Robert Hanssen who essentially destroyed the counterintelligence and counterespionage operations of the Bureau for the last two decades of the 20th century before he was identified and arrested.

Virginia Prescott: [00:15:31] So obviously huge job. We're talking about a crime fighting force that has to operate on a global network. And things have changed a lot in how the crimes are conducted and investigated. But would you consider the FBI an efficient organization?

Tim Weiner: [00:15:47] It has become more efficient in the 21st century. It went kicking and screaming into the age of information technology. It took the 9/11 attacks for the FBI to fess up to the fact that it was a 64 kilobyte agency in a gigabyte age. Agents couldn't share JPEG pictures with one another over the Internet. They could barely e-mail one another. It was a pyramid of paper and again several billion dollars had been poured down a rat hole trying to resolve this and it took Bob Mueller to drag the FBI into a modern technological age.

Virginia Prescott: [00:16:36] The FBI has made the case that it has to operate underground remaining pretty obscure to other agencies and people outside of the agency certainly. What do you think, Tim Weiner, is the greatest misconception we in the public have about the FBI.

Tim Weiner: [00:16:53] That it is a police force of cops. It is first and foremost an intelligence agency and never more so than in the post 9/11 era that is charged with rooting out unseen invisible threats to the United States knowing that it has to be right 100 times a day and the bad guys only have to be right once. The refocusing of the bureau's energies into intelligence counterintelligence counterterrorism under Bob Mueller was by and large success at the outset 15 years ago. Mueller said that he wouldn't be the guy who went down in history of whom it was said, Well congratulations you won the war on terror but we lost our civil liberties.

Virginia Prescott: [00:17:50] Tim Weiner thank you so much for speaking with us.

Tim Weiner: [00:17:52] My pleasure.

Virginia Prescott: [00:17:57] Tim Weiner he's a Pulitzer Prize winning journalist and author of Enemies A History of the FBI. His latest book is called One Man Against The World the tragedy of Richard Nixon. You can find more at our Web site civics101podcast.org. This episode was produced by Hannah McCarthy our executive producer is Erica Janik, music from broke for free.

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Made possible in part by the Corporation for Public Broadcasting.

Torture

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

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TRANSCRIPT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

Democratic Norms

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

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TRANSCRIPT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

IRL2: The Flag and the Pledge

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

Activities

Your Rights: Adaptable for Flipgrid, this activity gathers student responses to these decisions

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TRANSCRIPT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: [00:13:44] OK

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

Hannah McCarthy: [00:13:53] Oh

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

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

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

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

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

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

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

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

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

Hannah McCarthy: [00:14:38] OK

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: [00:25:17] Yeah

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

Voting Rights

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

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

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TRANSCRIPT

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

Civics 101

Episode 104: Voting Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

The Fifteenth Amendment

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

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TRANSCRIPT

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

Civics 101

Ep 103: Fifteenth Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

The Fourteenth Amendment

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

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

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TRANSCRIPT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

The Thirteenth Amendment

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

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TRANSCRIPT

Ep 101: Thirteenth Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

DACA

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

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TRANSCRIPT

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

Civics 101

Episode 100: DACA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

First Ladies

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

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

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TRANSCRIPT

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

Civics 101

Episode 99: First Ladies

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

Nuclear Weapons

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

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TRANSCRIPT

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

Civics 101

Episode X:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.