Midterm Edition: State and Local Elections

Midterm elections don't have the glitz or drama of presidential campaigning. They're full of aldermen and comptrollers, state senators and governors. These offices seem meager next to national government. But most of the time, it's state and local officials that have the most immediate and palpable impact on our lives and on our future elections.

In episode two of our five-part series on the midterm elections, we're taking a good look at the state and local offices that have a big-time impact on your life.

Click here for a graphic organizer for students to take notes upon while listening!

Episode Segments

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TRANSCRIPT

Midterm Edition: State and Local Elections

This transcript was created using a combination of machine and human transcribing, so there may be some typos.

Hannah McCarthy: [00:00:00] Nick as you know in our last episode we talked about what midterm elections are and why they matter. You know all the sweeping implications stuff how midterms can affect the country with congressional redistricting and this referendum on the president and potentially flipping the House and the Senate and infusing Congress with all of these new ideas and setting the stage for massive change.

[00:00:23] But today I want to think small.

Nick Capodice: [00:00:28] Small like what kind of small?

Hannah McCarthy: [00:00:30] Small like local small.

[00:00:33] Let's start with the town up north in New Hampshire with about 7000 residents that is small. In August I drove up to Plymouth New Hampshire. It's a little college town in a place called Grafton County really charming. There's a town green with a gazebo and old timey diner Covered Bridge of course got a covered bridge.

[00:00:54] It's very New England and across the street from the town green in what used to be a bookstore is the office of the Plymouth area Democrats.

[00:01:06] So that's the sound of people doing the wave.

Nick Capodice: [00:01:09] Which wave.

Hannah McCarthy: [00:01:09] The blue wave.

[00:01:13] There were campaign signs leading up against the wall they had a life size cutout of Obama.

[00:01:18] There was a potluck party atmosphere in the room and I was there to meet this gentleman.

Jeff Steigler: [00:01:25] My name is Jeff Steigler and I am currently the police chief in Bradford Vermont.

[00:01:30] I am currently campaigning for Grafton County Sheriff.

Hannah McCarthy: [00:01:33] Jeff lives in New Hampshire but works just across the border in Vermont.

Jeff Steigler: [00:01:37] This is the first time I've ever asked the public for their support and obviously for their vote on both the primary and hopefully the general election. Also Franklin

Hannah McCarthy: [00:04:16] This was a Grafton County candidate night. The second one that week and Jeff was there to introduce himself and to convince people to vote for him in the New Hampshire primary and to explain exactly what it is that a sheriff does.

Jeff Steigler: [00:04:29] It's actually a constitutional position stage in the state constitution. But any of your listeners could Google are say one of four and you'll see what the primary functions but at the core of what the sheriff's department has to do.

Nick Capodice: [00:04:40] So did you google it.

Hannah McCarthy: [00:04:41] Of course I googled it.

Nick Capodice: [00:04:42] What did you find out.

Hannah McCarthy: [00:04:43] Well first and foremost in New Hampshire we call laws are essays. It stands for Revised Statutes Annotated and our essays include what amounts to a job description for elected officials. For example how an elected sheriff can and ought to lay down the law. They transport prisoners deputise bailiff's.

Nick Capodice: [00:05:02] Bailiffs like bull in night court.

Hannah McCarthy: [00:05:04] Right okay there you go.

[00:05:05] Yep bull was probably deputized by the sheriff. Until I spoke with Jeff Stigler.

[00:05:10] I really didn't know what a sheriff did or frankly the difference between county sheriff and local police chief. But every time I voted for a sheriff I was voting for someone who has major responsibility and it's the same deal with everything from governor to school board members to comptroller.

Nick Capodice: [00:05:26] What actually is a comptroller by the way?

Hannah McCarthy: [00:05:27] They're kind of like a state's chief financial officer. But the point is that there are a lot of obscure offices on the ballot and they can seem insignificant next to federal candidates like who cares about the railroad commissioner when you've got some flashy Senate race going on.

Nick Capodice: [00:05:41] Oh I have a feeling that we care we care.

Hannah McCarthy: [00:05:43] This is Civics 101 a refresher course on the basics of how our democracy works. I am Hannah McCarthy.

Nick Capodice: [00:05:49] And I'm Nick Capodice.

Hannah McCarthy: [00:05:49] And today we continue our five part series on the inner workings of midterm elections. But a closer look at the local and state offices you'll be voting on this November like Sheriff judge and governor. They may go by different names depending on where you live. But either way state and local offices can have a big time impact on your life.

Cheryl Cook-Kallio: [00:06:08] The issue with midterms is that I think we train people to be very hyper focused on national elections but most elections that are local are closer to the people.

Hannah McCarthy: [00:06:18] That's Cheryl Cook-Kallio, former high school teacher.

Nick Capodice: [00:06:20] For 39 years.

Hannah McCarthy: [00:06:22] And former Councilwoman and former candidate for California's state assembly.

Cheryl Cook-Kallio: [00:06:26] Will our house in California is called the Assembly and there are different names in different states.

[00:06:31] Most of them are House of Representatives but in California it is the Assembly.

Hannah McCarthy: [00:06:35] And she says that yes of course it is important that we have good Congresspeople and good senators.

[00:06:40] But.

Cheryl Cook-Kallio: [00:06:41] But whether or not you get a stop sign at the end of your street is really dependent on the kind of city council you elect county supervisors have control over regional issues that have to do with transportation and maybe even water. And so midterms are often ignored because there is no presidential candidate but they may be even more important because there's such a low voter turnout during a midterm election.

Hannah McCarthy: [00:07:04] So think of it this way. What is more likely to affect you. Nick capital on a daily basis theU.S. defense budget or the road in front of your house.

Nick Capodice: [00:07:11] I'm going to definitely say the road.

Hannah McCarthy: [00:07:13] It's the road the.

Nick Capodice: [00:07:13] It's the road.

Cheryl Cook-Kallio: [00:07:15] One of the things that an individual can do is pay attention to those things are most important to them. In most cases that's local politics your school board your inner city council county supervisors and perhaps your state legislature depending on the size of the state.

Hannah McCarthy: [00:07:29] So many of the people who keep your city or your town running smoothly or possibly not so smoothly get elected during midterms. You've got school boards for instance they can set school policy. Decide how the money gets spent. Even decide whether or not to close a school you've got county commissioners who can be in charge of everything from assuring water quality to collecting property taxes some even control public welfare programs and Nick judges. We vote for the people who are in charge of sentencing people to fines probation even prison in many cases. It is in our hands to decide who gets to make those decisions.

Nick Capodice: [00:08:08] What about something like the Register of Deeds.

Hannah McCarthy: [00:08:11] Yes I was so curious about register.

Nick Capodice: [00:08:13] We've seen signs for that all over the neighborhood.

Hannah McCarthy: [00:08:15] Everywhere.

Cheryl Cook-Kallio: [00:08:15] Oh Register of Deeds. OK. That's probably what we would call the clerk which has to do with all the paperwork in your life that is important your marriage your births the deed to your house those kinds of things are done and usually that's controlled by someone who is elected. So there are things like this that may or may not affect you on a daily basis but they certainly control the legalities of what you do in your everyday life.

Nick Capodice: [00:08:39] Nick what gets me about all of what Cheryl is saying is that you know when we complain about government and inefficiencies and taxes and all that stuff I feel like most of us are directing that complaining that I are at the federal government. You know the whole joke. Thanks Obama.

Nick Capodice: [00:08:56] Yeah.

Hannah McCarthy: [00:08:57] You think we're mad at the president we're mad at the federal Congress. And then there's this vague sense that the people at the very top are the ones who make things good or bad for us. But a lot of the structure in our lives is controlled at the state and local level.

Nick Capodice: [00:09:11] So basically it seems like we should be paying as much attention to these smaller elections in offices as we do to day the presidential election.

Hannah McCarthy: [00:09:19] Yeah I mean powers vary from state to state. But I would say at least as much like take the sheriff candidate Jeff Stigler who we met at the beginning of the episode if he wins the midterm he'll essentially be public he appointed law enforcement for an entire county races like that probably deserve more attention than they get. But there are offices up for election and midterms that do get some real attention like Governor.

Nick Capodice: [00:09:42] But what does a governor actually do.

Hannah McCarthy: [00:09:44] Or a lieutenant governor.

[00:09:45] For that matter.

Bakari Sellers: [00:09:46] This is very difficult for me. You take somebody who just lost the lieutenant governor's race and ask him about his the job that he could have had you know not only is it difficult I want to tell you how sharp that hurt because my lieutenant governor is now governor.

[00:09:57] OK.

Hannah McCarthy: [00:09:57] That did not start well. This is Bakari Sellers, attorney and former state rep of South Carolina he was in office for eight years and ran for lieutenant governor in 2014. He lost but he had some insights on the positions.

Nick Capodice: [00:10:07] Do you think he was really offended by that.

Hannah McCarthy: [00:10:09] I don't think so. If he was you forgive us.

Bakari Sellers: [00:10:11] I know it was tough. Now Lieutenant Governor and Governor. They. They are different in every state. We now have. If I'm not mistaken two African-American lieutenant governors in the country. So we are making progress on that front. Governor of course depending on your state we have a legislative state here in South Carolina meaning that really our legislature is way more powerful than our governor is but in certain states it's the other way around although the governor has a bully pulpit right.

Hannah McCarthy: [00:10:34] So in the same way that the President is Chief Executive Officer and commander in chief of the country the governor plays that role for the state so they can veto bills just like the president appoint judges just like the president. They may be in charge of the state National Guard or have the power to pardon criminal sentences. And just like the president most governors have someone waiting in the wings in case things go south.

Bakari Sellers: [00:10:59] Lieutenant governors a lot like vice president in the most important job they have is to be prepared. And why do I say that they have to be prepared because just like the vice president of the United States the age old saying is you are one heartbeat away from being president.

Nick Capodice: [00:11:13] So governor and lieutenant governor are a little like the president and the vice president. If their powers were limited by state borders.

Hannah McCarthy: [00:11:19] Yeah and Bakari says these are really important roles to watch because the person who you elect governor in this year's midterms they might end up being on a different place on the ballot later on when you have a governor.

Bakari Sellers: [00:11:29] You have to think that your governor has only one election away from running for president the United States. In Massachusetts you've had Mitt Romney run for president the United States.

Nick Capodice: [00:11:37] Lots of presidents were governors before the presidency Thomas Jefferson Teddy Roosevelt Jimmy Carter George W. name a few.

Bakari Sellers: [00:11:43] But you see governors run all the time. You're going to have a series of governors who step out there and run for president the United States and so when you each step up that you take there's another realm of possibility.

Hannah McCarthy: [00:11:53] That's one area of the ballot that we have not touched on yet. Right. State legislators and they are really important. It varies from state to state. Who in your state legislature you get to vote for in every midterm election. But who you're voting for is really important because aside from actually making the laws that govern you at a state level those legislators are in charge of a process that can decide the outcome of elections.

Dylan Scott: [00:12:16] State elections are not only important for your health care and for your education but also 2018 in particular is important in 2020 will be important as well because next decade we're going to draw new congressional districts which will be the opportunity for to outline these new maps for the congressional districts that we'll have for the next 10 years.

Hannah McCarthy: [00:12:35] That's Dylan Scott Vox policy reporter.

Nick Capodice: [00:12:37] Quick aside. Congressional redistricting sometimes called Gerrymandering depending on who you're talking to is one of those key factors that make these 2018 midterms so important.

[00:12:47] And it's something we actually dig into our first episode five things you should know about the midterms so give it a listen.

[00:12:52] Gerrymandering is a party hand picking their voters.

Dylan Scott: [00:12:54] And so which party is in control of the governor's mansion. Which party is in control of the state legislature will be very important for redistricting starting in 2020.

Hannah McCarthy: [00:13:03] You know some states like California they do have a redistricting commission that's either bipartisan or nonpartisan. But for the most part it's the governor and the state legislature that are calling the shots.

Dylan Scott: [00:13:14] And I think any expert whether partisan or not would tell you this. One of the reasons the Republicans have the sizable majority that they do in the House of Representatives right now is that they were in control of redistricting almost 10 years ago. So not only is this important for people's everyday experience with government and whether they are eligible for Medicaid or what kind of schools their kids go to. But when you look at control Congress it's it's not much of a stretch to say as one of my colleagues wrote recently that the next decade of the House of Representatives will be on the ballot in 2018 and 2020.

Hannah McCarthy: [00:13:45] OK we get a pause here for one second. Because what he's saying is huge. He is saying that your vote in this midterm election may end up deciding who you get to vote for for the next 10 years. I mean think of the possible reverberations of that.

Nick Capodice: [00:14:00] It's more than time because the people who put in power stay in power they keep drawing districts for the next 50 elections.

Hannah McCarthy: [00:14:05] Could be the next hundred elections.

[00:14:07] Dylan also made the point that those state legislators have the power to either facilitate or block initiatives that are coming down from the federal level like theU.S. Congress can say jump in a state Congress can either say how high or they can thumb their noses and stick out their tongues at them.

Dylan Scott: [00:14:22] So under the Affordable Care Act it expanded Medicaid eligibility to cover millions more Americans than it did before the ACA was passed. But they were allowed to decide whether or not they wanted to practice debate and that Medicaid expansion in about 20 states have refused to expand Medicaid directly as a result of the Republican controlled state legislatures or or the governorship.

Nick Capodice: [00:14:44] That's some real Tenth Amendment action their 10th Amendment of course being a super complicated amendment about the division of power between the federal government and the states right.

Hannah McCarthy: [00:14:52] So the whole principle of states rights how states are allowed to govern themselves in many ways. That is a big part of what makes the midterm elections so important. Those are elected officials who are close to us who might have obscure sounding jobs. They actually have the power to make a big impact on our daily lives. It's often the state level legislature that maintains this state justice system that regulates state industry that maintains highways implements welfare decides what to teach kids in schools. And it's the state legislature that decides what a sheriff does and we get to decide who that sheriff is.

Jeff Steigler: [00:15:30] If you're looking for change or if you are thinking about keeping things the way that they are the reality of it is if you don't go out and vote don't complain about it.

Hannah McCarthy: [00:15:37] That's Jeff Stigler again our sheriff candidate from the beginning of the episode. He won the nomination in New Hampshire's primary and now it is up to the voters to decide if he will win the office.

Hannah McCarthy: [00:15:47] All right. Nick so what do you think. I mean state and local elections are kind of a big deal right.

Nick Capodice: [00:15:51] In some ways possibly the biggest deal.

Hannah McCarthy: [00:15:55] Now you're talking before we sign off we have another major midterm from the past brought to you by Brady Carlson.

[00:16:01] BRADY used to work here at NHPR as a reporter and on air host. He's now at Wisconsin Public Radio.

[00:16:07] He's also the author of Dead Presidents which is a great book. Check it out. Take it away. BRADY What midterm are we talking about.

Brady Carlson: [00:16:14] I'm talking about the midterm of 1858. The key issue in the 1950s of course was slavery and that's at the root of everything that takes place in the 1858 midterm up until the 1950s.

[00:16:25] There were two parties the Democrats and the Whigs although really there were kind of four parties because each of the two parties had northern and southern wings. And here's why that matters. While the northern states had more population and therefore more representative Congress the proslavery Southern politicians were still powerful enough that they could block candidates block bills block proposals block anything that didn't fit with their view that enslaving people was not only legal and constitutional but it was morally right and had to be protected.

Archival: [00:16:54] All we've got is cotton and slave arrogance.

Brady Carlson: [00:16:57] To the top political figures of the day rightly or wrongly we're trying to keep this very tense compromise in place and as a result of that effort to to keep the slavery debate from boiling over you have this series of weak presidents in the 1950s.

Archival: [00:17:12] Pierce of New Hampshire is what do you say Mr. Pierce or Mr. Preston Pierce just Mr. President.

Brady Carlson: [00:17:16] James Buchanan of Pennsylvania is another. The parties were deliberately choosing people for president that they thought would be very cautious would not rock the boat and that would have worked except by the 50s the boat had kind of already been rocked over and over. Fewer and fewer people were interested in setting aside this debate over slavery for the good of the country and Franklin Pierce understood that firsthand when he signed the bill to allow the citizens of the Kansas Territory to choose whether to allow slavery or not. And I came all the way from Kansas to make sure just for you.

Archival: [00:17:54] And to ensure the freedom of Negroes in this state. What do you do.

Brady Carlson: [00:17:58] And it didn't go well it turned into the violent conflict. We now called bleeding Kansas and that's recognized today as one of the key milestones on the road to the civil war. It also realigned the political parties by signing Kansas bill Pearce had undone this compromise that had stood for decades where there was a geographic line that slavery could exist south of but never north of. Now slavery could be anywhere and Northerners were very very uncomfortable with that. So when Pierce undid this compromise Northern Democrats who had been uncomfortable with the proslavery wing of the party felt like they didn't have a political home anymore.

Archival: [00:18:37] The government cannot endure permanently half slave and half. Free.

Brady Carlson: [00:18:52] The Northern Democrats decided to leave their party and join up with what was left of the old Whig Party and a group of what were known as Free spoilers people who had opposed any expansion of slavery in western territories. They all joined together in a new party called the Republican Party. There's a lot of debate as to where the Republican Party actually started. My state Wisconsin has one of the claims. The state of New Hampshire has the other. The important thing to know is that this is a very exclusively northern party. There weren't any Southern Republicans and that one of the new Republicans who was an unknown at the time of the party's founding wound up being a pretty important guy a lawyer from Illinois who had been a little known member of Congress like a decade before but was so upset about Kansas that he came out of retirement and joined this new political party Abraham Lincoln.

Archival: [00:19:43] You know who I am. Abraham Lincoln.

Brady Carlson: [00:19:50] The party starts in 1854 two years later their presidential candidate John C. Fremont only narrowly lost the presidential election.

[00:20:00] By the mid-term elections of 1858. The party was on an even bigger upswing. The debate over Kansas has flared up again. It was even hotter this time. There had also been a big economic panic the year before and the new President James Buchanan was alienating just about everybody who came in contact with. Suffice to say voters were pretty fired up and so when the votes were in for the 1858 midterm the largest party in the House of Representatives was the Republican Party which had only begun about four years earlier. And one of the most surprising stories that came out of the 1850 and that term was Abraham Lincoln who had run for a high profileU.S. Senate seat in Illinois. It's one he lost to the longtime incumbent Stephen Douglas. But he had turned so many heads with his speeches in his well-thought-out debate points.

Archival: [00:20:53] A house divided against itself cannot stand.

Brady Carlson: [00:20:53] That he became a national political figure in two years.

[00:20:57] This political nobody who belonged to a brand new unknown party would be elected president of the United States.

Hannah McCarthy: [00:21:09] That is it for this episode in our five part series on midterm elections. But stay tuned we've got more coming at you civics 21 one was produced today by me. Hannah McCarthy Nick Capodice and Jacqui Helbert.

Nick Capodice: [00:21:22] Our executive producer Erica Janik. Maureen McMurry is a local gal does good.

Archival: [00:21:26] Music in this episode by Loopez, Blue Dot Sessions, Quincas Moreira and Drew Banga.

Nick Capodice: [00:21:32] In addition to subscribing to our podcast you can give us a visit at Civics 1 0 1 podcast dot org or follow us on Twitter at Civics 101 pod Civics 101 is production of NHPR new Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Special Announcement and IRL2

First off, our next season of Civics 101 will launch this October with a special miniseries on the midterm elections. Each episode will better educate you on what you're voting for in November, and will include a breakdown of the wide-ranging effects of a midterm in US history.

Second, this is a rebroadcast of IRL2, our episode on the history of the American flag and the Pledge of Allegiance, focusing on times these icons were used in protest.

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TRANSCRIPT

Hello Civics listeners. This is Nick Capodice

And Hannah McCarthy

And the more observant of you out there may have realized that we’re taking a pause on producing new episodes

It’s not sloth, it’s industry

We’re developing our next season of Civics 101, which will commence with a five-part series on the midterm elections, featuring the voices of politicians, professors, pages, and civics teachers from across the country.

We’re focusing on things like campaigning and voting, but also the powers of senators, representatives, and all the other people you may see on your midterm ballot.

And each episode will also feature a famous midterm from American history. So don’t miss it. The series will debut on October 2nd, well before you cast your vote. And as for today, here’s an episode we did on the flag and the pledge of allegiance. Enjoy!

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

Civics 101

IRL2: The Flag and the Pledge

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: [00:13:44] OK

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

Hannah McCarthy: [00:13:53] Oh

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

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

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

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

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

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

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

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

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

Hannah McCarthy: [00:14:38] OK

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: [00:25:17] Yeah

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

IRL1: Free Speech in Schools [Rebroadcast]

Today we're digging into four incredibly important Supreme Court cases - four cases that have shaped how we interpret the meaning of free speech in public schools.  Is political protest allowed in class?  Is lewd speech covered by the First Amendment? Can school administrators determine what students can and can't say in the school newspaper? Listen in, and find out how students and schools have gone head to head over how First Amendment rights apply in a public school setting.

Activities

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

You Rule: An activity where the class gets to vote on hypothetical speech cases in schools based on precedent from six real Supreme Court cases.

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TRANSCRIPT

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

Civics 101

1st Amendment in Schools Transcript

Nick Capodice: [00:00:19] This is Civics 101, I'm Nick Capodice. If you've listened to a few episodes of our show you know that we don't have a lot of time. We try to keep these things down to about 15 minutes so they're digestible. And we can't really get into the moments of historical significance that are relevant to our episode topics like landmark Supreme Court cases actual presidential elections all that fun stuff. And that's what we're going to do today. We're calling it Civics 101 IRL. It's the real historical moments relative to our episode topics. So hope you have fun. Stick around. Last week I got this phone call from Dave Alcox

David Alcox: [00:00:54] Hey Nick this is Dave Alcox of Milford high school

Nick Capodice: [00:00:57] Mr. Alcox is a superstar social studies teacher here in New Hampshire, and a professional deejay.

David Alcox: [00:01:03] I've got a wicked great news for you. We're going to have John and Mary Beth Tinker from Tinker vs Des Moines, and Cathy Kuhlmeier from Hazelwood versus Kuhlmeier come visit us at Milford High

Nick Capodice: [00:01:15] And I didn't want to sound like a complete fool when he called me. But the truth is I didn't know who these people were, and when I found out I had to tell someone. So I grabbed producer Hannah McCarthy.

Hannah McCarthy: Yeah!

Nick Capodice: Come in

Hannah McCarthy: Ok

Nick Capodice: Do you have like five minutes?

Hannah McCarthy: I do yeah I have five minutes

Nick Capodice: Yeah, put on those headphones

Nick Capodice: Do you know who John Tinker, Mary Beth Tinker, and Cathy Kuhlmeier are?

Hannah McCarthy: I have no idea

Nick Capodice: Ok, these, it’s ok because I didn’t either, but I can promise you I will go to my grave knowing the names Tinker, Fraser, Kuhlmeier and Frederick

Hannah McCarthy: You gotta tell me who they are then

Nick Capodice: These are four people involved in Supreme Court cases that drastically, drastically change First Amendment rights in schools

Hannah McCarthy: I can’t believe I haven’t heard of this

Nick Capodice: I’m pretty shocked I haven’t heard about it either.

Nick Capodice: [00:02:08] Number one, Tinker versus Des Moines.

Archival Audio: [00:02:12] John F Tinker and Mary Beth Tinker, minors, etc. et al vs Des Moines independent community school district et al.

Nick Capodice: [00:02:21] The Tinkers name being first means that they are the petitioners. And Des Moines being second means they are the respondent.

Hannah McCarthy: [00:02:29] OK so that means that Des Moines is happy.

Nick Capodice: [00:02:32] Yes the original decision they don't want anything else to happen.

Nick Capodice: [00:02:35] Right. The Tinkers lost the previous case and Des Moines won the previous case. They're cool to stand. Mary Beth tinker, great story, Mary Beth Tinker was 13. Her brother John was about 16 I believe when this happened. Their father was a Methodist minister and he was very involved in the civil rights movement. And John and Mary Beth joined some students who were protesting the Vietnam War the Vietnam War and the United States. It's the first time that war is coming to American living rooms.

Hannah McCarthy: [00:03:05] Right through television.

Nick Capodice: [00:03:06] Yes absolutely. The horrors of war. And they were going to protest by joining some students who were wearing black armbands.

Archival Audio: [00:03:13] Specifically the views were that they mourn the dead on both sides, civilian and military in that war and they supported the proposal which would have been made by United States Senator Robert Kennedy. The truce which had been proposed for that war over the Christmas period made it open ended or an indefinite truce.

Nick Capodice: [00:03:33] Totally coincidentally two days before this big protest of wearing black armbands the principal of their school met with a bunch of other principals in Des Moines and passed a rule saying arm bands are forbidden in our school district.

Hannah McCarthy: [00:03:48] So were other kids wearing armbands?

Nick Capodice: [00:03:51] Yeah this was going to, when they heard that the principal heard that this was going to be a thing that happened. They're like look what are we going to do. Kids are going to be wearing armbands in school and it's going to be a disruption.

Hannah McCarthy: [00:04:00] OK so he tried to preempt the whole thing.

Nick Capodice: [00:04:02] Tried to preempt the whole thing but they wore them to school anyways and they were suspended. And immediately after they were suspended they started getting the threats. So yes. People called them a bunch of commies. Someone said they were going to firebomb their house. And one letter one letter that actually Marybeth still has to this day is like you're welcome to wear your armbands just do it on Saturday. You shouldn't be doing it in school. So they got in contact with the ACLU. They got a case together and through appeals it ends up in the Supreme Court and the vote is seven to two in favor of the Tinkers.

Hannah McCarthy: [00:04:40] That is a landslide. Go John and Mary Beth.

Nick Capodice: [00:04:44] John and Mary Beth. The seven justices wrote in the decision that yes their first amendment rights have been violated and they had a right to protest in school. The justice who wrote the decision is Abe Fortas. So when you have a Supreme Court case there's a decision where the majority writes the majority of it and then you can dissent. If you're someone who disagreed you can write in the dissent and Abe Fortas wrote the decision. He said "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Those words are used over and over in other Supreme Court cases further down the line. It's a magnificent decision and it creates this massive blanket precedent called the Tinker Standard which is where you ask was this speech disruptive. And if it's not disruptive then it's protected in schools. John and Mary Beth Tinker case 1969. And to this day John and Mary Beth do what's called the Tinker tour. They travel the country to tell students about their First Amendment rights.

Hannah McCarthy: [00:05:50] That is very cool.

Nick Capodice: [00:05:51] Mary Beth once said, one of my favorite quotes I found of hers, it's a good way of life to speak up. To use your rights. And she says that students are particularly in a position to speak up because students have virility, students are curious, students are the next generation who are is who is going to challenge the way the previous generation had everything all set up. So later on as the years go by the Supreme Court has to decide, are there things besides disruption quote unquote that makes something protected or not in school. So we're going to shift forward in time to 1986 were there.

Hannah McCarthy: [00:06:27] You should play some music.

Nick Capodice: [00:06:28] Oh I'm going to totally play 1986 music for this. It's going to be Cruel Summer.

Hannah McCarthy: [00:06:32] Yeah.

Archival Audio: [00:06:36] It does not say one should not swear in Latin class, the rule says that obscene or profane language is disruptive.

Nick Capodice: [00:06:46] 1986 Bethel v Fraizer.

Archival Audio: [00:06:50] The Facts of this case are that on April 26 1983 Matt Fraser, a 17 year old high school senior, gave a speech to the Associated Student Body.

Nick Capodice: [00:07:00] Gave speech nominating his friend Jeff for student body vice president. It was not full of cuss words.

Archival Audio: [00:07:06] He gave a crude and vulgar speech.

Nick Capodice: [00:07:08] It was very lewd and it was it was short but it was just goofy and it was all lewd and I think I'm not going, I'm not going to say it. So if you want to read it you can just go listen to it.

Hannah McCarthy: [00:07:21] We can't stop you.

Nick Capodice: [00:07:22] We can't stop you from googling it but it to be to be honest Hannah it's like no worse than a lousy Saturday Night Live monologue.

Hannah McCarthy: [00:07:29] Okay.

Nick Capodice: [00:07:30] Yeah except it's way too short. So it's yeah it's not long enough to be about SNL skit but it's just it's just full of sexual innuendo that's all it is. So then he was sent home for that. He went to court. He went to the 9th Circuit 9th Circuit Court of Appeals which ruled in his favor saying that double entendres were protected speech in schools and then the Bethel district brought it up and got up to the highest court in the land. The Supreme Court. Bethel comes first. Bethel v. Fraser because the Bethel school district is the petitioner in the case.

Hannah McCarthy: [00:08:05] I'm a little surprised. In the 80s. That this, that a school would even bother to say no it's our right to send you home when you exhibit lewd behavior.

Nick Capodice: [00:08:19] Because it's about 1960s when Tinker happened, this is a time the height of protest, it's the 60s you know America is learning how to protest in a new way. By the 1980s this is kind of been accepted. You know kids have freedom of speech in schools. Kids are expressing themselves but can it be lewd. It was another 7 - 2 vote. And the answer is no. You cannot say lewd speech in school and it is not protected in school.

Archival Audio: [00:08:46] The Ninth Circuit we believe has misconstrued the extent of the rights a student has under the First Amendment in a public school setting.

Hannah McCarthy: [00:08:55] I was wondering because I know in middle school at least while I was still in school in Massachusetts in a public school system if a kid wore a T-shirt with a lewd slogan or image on it they had to turn it inside out or go home.

Nick Capodice: [00:09:09] Yep same happened to my school particularly in the 1980s something called the coed naked T-shirts which were really hot in 1989 1990. And because they were lewd the school could tell you to turn them inside out or if they had swear words. So they didn't have to just say swear words. But even if they were lewd it couldn't happen in school. One of the quotes from the decision was "the first amendment does not protect speech in school that is vulgar or inconsistent with the fundamental values of public school education." And it kind of makes sense to me even though I'm you know I'm not a crotchety old man but you know you're you can't just go around saying lewd stuff in school.

Hannah McCarthy: [00:09:49] Right. Yeah yeah yeah. The Queen Mab speech is very filthy.

Nick Capodice: [00:09:53] So in the case the dissent and as I've said before the dissent is always kind of my favorite part of Supreme Court cases because it's like the minority coming out being like I still stand for bippity bop. Justice Stevens John Paul Stevens wrote the dissent and he said he just quoted he said "Frankly my dear I don't give a damn. When I was a high school student the use of those words in a public forum shocked the nation. And today Clark Gable's four letter expletive is less offensive than it was then." So he says that what is considered dirty or unprotected as it were in school can change over the years. Yes so let's let it be so let it be kind of like let it be kind of alive.

Hannah McCarthy: [00:10:39] For those of you listening who don't know what that's referencing that's Rhett Butler.

Nick Capodice: [00:10:43] Oh yeah.

Hannah McCarthy: [00:10:43] From uh, um, God,

Nick Capodice: [00:10:45] Gone with the Wind.

Hannah McCarthy: [00:10:47] Yeah.

Nick Capodice: [00:10:48] Two more and they're going to be fast. So that was in 1986 we're going to go forward in time to another case and this is Hazelwood v Kuhlmeier. now so the Tinker case was cited in the Fraser case and tinker and Fraser are cited and Hazel would be Kuhlmeier. And that's what I love is like Supreme Court decisions are living. They build a top each other. Hazelwood v Kuhlmeier decided in 1988. Kathy Kuhlmeier, she worked at a school newspaper called the Spectrum.

Hannah McCarthy: [00:11:20] Alright.

Nick Capodice: [00:11:20] What a fun name this was! What a ROYGBIV name! The Spectrum. And what they did when they wrote the Spectrum newspaper is they gave the proofs of what the paper is gonna be to the principal. He looked it over and said great job kids and printed it. Principal Reynolds got the proofs. It was a May issue. And there were two stories that the principal didn't really care for. One was about teen pregnancy and the other was about divorce. So what he did was he didn't tell anybody he just removed those articles and published the newspaper. Cathy Kuhlmeier and company got their paper the Spectrum opened it up and saw these two big articles were missing and they said what what's up with that. And the principal said that's you know and he gave his reasons for it goes up to the U.S. Supreme Court.

Archival Audio: [00:12:11] Mr. Chief Justice and may it please the court. This case comes before the court to resolve the issue of whether a school sponsored high school newspaper produced and published by a journalism class is a part of the school adopted curriculum under a teacher's supervision and subject to a principal's review. It is a public forum for the purpose of the First Amendment.

Nick Capodice: [00:12:33] Can schools decide what you can and can't put in a school newspaper? So Hazelwood School District v. Kathy Kuhlmeyer. Kuhlmeier got the help of the American Civil Liberties Union. She sued. She won. Then the Hazelwood district appealed it to and went up to the Supreme Court. This vote was 5 3. It's closer than the others and the victor the Hazelwood school district. Schools do have the right to alter to say what you can and can't put in a school newspaper and this was Justice White who delivered the majority decision and he said "the question we addressed and Tinker is different from the question whether the First Amendment requires a school to promote particular student's speech. The former question addresses educators ability to silence a student's personal expression. That happens to occur on school grounds but the latter question concerns educators' authority over school sponsored publications." So this case goes on to say if it's in a newspaper if it's in a school play if it's in a thing the school does, the school has the right to decide what can and can't be done. So you could do a rude play and the school could say we're not going to put that play up and your first amendment rights are not violated. What do you think of that one?

Hannah McCarthy: [00:14:00] I remember being very upset when my school...well in retrospect I get it. We were going to do the King and I and I prepared my audition song and everything from the King and I and and they decided no it's racist we're not doing it. It is racist. They shouldn't have been doing it. But at the moment I just thought like bunch of soft-handed ninnies, like is not is not a good reaction but I don't understand it. I understand that there is an implicit like as though the school is agreeing with whatever is being put in this material because the school's name is on it.

Nick Capodice: [00:14:33] Yeah it's an interesting case and I think because it extends to all sorts of things musical performances, plays I think of all of the possibilities this decision could change and it still stands. I mean Hazelwood v Kuhlmeier stands.

Hannah McCarthy: [00:14:46] Yeah. Especially, well not especially. There's always there's always some tumult in the country. But right now I think you've got a lot of young people who feel very passionately about certain political and racial tensions. And if they want to write a piece about it and you know perhaps cite use of a racial slur or something and they want to print that and talk about that word for example and why that word is wrong and they're going to print it because it's important that you read it as it is something like this you know and the school says we're not publishing that because that's a racial slur.

Hannah McCarthy: [00:15:24] Or maybe not even quite that we're just not even going to really give you a reason beyond use of racial slur. And we're just not printing your piece. I think it couldn't leave room for let's say a hyper conservative principle to just push back on anything that offended his or her ideals.

Nick Capodice: [00:15:41] Yeah. Well I think you might be in the same bailiwick as, this is one of my favorite dissents ever written, Justice William Brennan, "the young men and women of Hazelwood east high expected a civics lesson, but not the one the court teaches them today such unthinking contempt for individual rights is intolerable from any state official. It's particularly insidious from a school principal to whom the public can trust the task of inoculating in its youth an appreciation for the cherished democratic liberties that our Constitution guarantees." You, listener. Go read the whole case. It's a fascinating dissent. It's a lot of fun full of passion.

Nick Capodice: [00:16:23] One extra point that I want to make that Cathy Kuhlmeier made about defending her article staying in the newspaper was that there was so much teen pregnancy at her school that they had their own daycare.

Hannah McCarthy: [00:16:34] Wow. I have never heard of that.

Nick Capodice: [00:16:36] Yes. You're not allowed to write about teen pregnancy but enough students are having sex and having underage children that you have a daycare at your high school.

Hannah McCarthy: [00:16:45] That takes it to a completely different level.

Nick Capodice: [00:16:48] And now we're up to our last one.

Hannah McCarthy: [00:16:49] All right.

Nick Capodice: [00:16:50] And it's never the last one because gosh there's going to be is probably one being argued right now and it's it's 2007 Morse v.. Frederick.

Nick Capodice: [00:17:00] We're going to go all the way up. Juneau what I'm talking about we're going to Juneau Alaska.

Archival Audio: [00:17:04] ...everyone has been waiting for. And here are the first two torchbearers to enter the stadium Dorothy Hamill.

Nick Capodice: [00:17:11] This is during the torch relay for the 2002 Winter Olympics in Salt Lake City Utah. It's so fun. A schoolhouse Supreme Court case that involves the Olympics and our neighbor to the north.

Archival Audio: [00:17:24] Respondent Joseph Frederick Sr. was late to school that day when he arrived. He joined his friends across the street from the school to watch the event as the torchbearers and camera crews passed by. Frederick and his friends unfurled a 14 foot banner bearing the phrase quote "bong hits for Jesus" endquote.

Nick Capodice: [00:17:44] Bong Hits for Jesus. And the four was the number four and it was all capital letters except for the 'i" in hits. BONG HiTS 4 JESUS. So Frederick hung up the bong hits banner and principal Morse, Deborah Morse she took the banner down and Frederick was suspended. How would you rule on this one?

Hannah McCarthy: [00:18:12] It may fall under the lewd category because it will not lewd but generally inappropriate because it's saying drugs.

Nick Capodice: [00:18:23] You have these nine old Supreme Court justices men and women talking about bong hits for Jesus. And one of them kept being like, "it was a cryptic message. Such cryptic. What did he mean in Bong Hits for Jesus?"

Archival Audio: [00:18:38] I mean that's what I actually seriously don't understand suppose the school has the following rule. By the way on our field trips you can carry around 15 foot banners they can say anything except they can't talk about drugs and they can't talk about sex and they can't talk about. I don't know. Or I'd say three things. Would that be constitutional. Well I mean I think I think a school could certainly prohibit the display of banners on a school trip or in a school or some...suppose that this particular person had whispered to his next door neighbor bong hits for Jesus. Suppose that's what had happened.

Nick Capodice: [00:19:16] How are they going to vote?

Hannah McCarthy: [00:19:20] I feel a little nervous.

Nick Capodice: [00:19:20] Is the boy and the banner protected, or is the principal in her in her rights thinking of what you know about Hazelwood v Kuhlmeier, thinking of what you know of the Tinker standard and thinking of what you know about Fraser?

Hannah McCarthy: [00:19:33] I think given what I've learned so far from this lesson. Yeah. The principal is protected.

Nick Capodice: [00:19:39] Really.

Hannah McCarthy: [00:19:41] Yeah. Because we've seen two cases where if there is objectionable material the school is in the right to say no.

Nick Capodice: [00:19:50] The court votes five to four, close one, in favor of principal Morse. You got it on the head. And who wrote the decision was the newest chief justice. Justice Roberts.

Hannah McCarthy: [00:20:02] OK.

Nick Capodice: [00:20:02] It was an early decision of the new of the Roberts, uh, of the Roberts court. He said in his decision he said "Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it's going to disrupt the work of the school. Fraser demonstrates that the constitutional rights of students in public school are not automatically coexisting with the rights of adults in other settings like Fraser. If he had said those rude words outside a school th at would've been fine. But he can't say them in school and then Kuhlmeier acknowledged that schools may regulate some speech even though the government couldn't censor it outside of the school. And finally the concern here is not that Frederick speech was offensive but that it is reasonably viewed as promoting illegal drug use.

Hannah McCarthy: [00:20:54] So my biggest issue with all of this is that all of these Supreme Court judges are saying you know you've got adult rights and then you've got what happens to kids in the school in the public school system.

Hannah McCarthy: [00:21:08] And so it's it's basically saying that they aren't, children do not have the same rights as adults. In this certain.

Nick Capodice: [00:21:16] in this public school setting.

Hannah McCarthy: [00:21:18] Right. So why is it that the public school is this hallowed ground where students are stripped of something.

Nick Capodice: [00:21:25] Well do you think that students should have the right to say whatever they want whenever they want in school?

Hannah McCarthy: [00:21:32] No.

Nick Capodice: [00:21:33] Well let's talk about disruption first of all OK. Can somebody stand up and start screaming in class and disrupt your lessons.

Hannah McCarthy: [00:21:39] People do it.

Nick Capodice: [00:21:40] They do it but should they be allowed to do it?

Hannah McCarthy: [00:21:42] Well they're punished right.

Nick Capodice: [00:21:43] So should they not be punished.

Hannah McCarthy: [00:21:45] No I think they should be punished. I guess the idea is that the learning environment we're trying to teach our youth how to be responsible how to earn those rights as adults. I can yeah I can see that. I can understand that. I was also always a good kid. So it's easy for me to just imagine not to say that these are bad kids who are dissenting. Yeah but I only ever saw that it's entertaining and I never came up against sitting in the principal's office for having started an expletive.

Nick Capodice: [00:22:18] I mean I don't think it's, I'm a dyed in the wool champion of freedom of speech. I always have been. You know but all these cases like both sides make sense to me. You know something in them makes sense to me. So I can understand the court's difficulty in making these decisions. And in the dissent for Morse v Frederick it's Justice John Paul Stevens again, and his dissent by the end of it gets around to the point of basically this whole thing we've been talking about. He starts with this he says "although this case began with his silly nonsensical banner it ends up with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs." And then he says "the Vietnam war is remembered today as an unpopular war. But during the Tinker era during its early stages the dominant opinion that Justice Harlan mentioned in his Tinker dissent regarded opposition to that war as unpatriotic if not treason." So look where we are now. Who knows if feelings about drugs cannot change.

Hannah McCarthy: [00:23:26] We know that they can change we're seeing the marijuana laws change across the country.

Nick Capodice: [00:23:30] Absolutely. So I really like that in his dissent for for this case as he references Tinker and he says guys don't forget you know the Vietnam War. You would be just screamed at for opposing the Vietnam War. You'd get in trouble. People would get into fights with you at bars. I really like that he comes back to Tinker and he comes back in a way that's supportive of this. The Constitution is interpreted and those interpretations change over the years. These four students Tinker Fraser Kuhlmeier, Frederick. Four kids changed the ways our First Amendment rights are interpreted in schools.

Nick Capodice: [00:24:07] Well Mr. Alcox, if you're listening I'm ready now. Send me your Tinkers and your Kuhlmeiers. This episode was produced by me Nick Capodice and Hannah McCarthy. Erika Janik is our executive producer, our staff includes Ben Henry, Jacqui Helbert, Jimmy Gutierrez, Justine Paradis, and Taylor Quimby. Music is by the inimitable Peetie Wheetstraw, 1937. And Matt Oakley. The dulcet tones of Supreme Court justices past and present come from oyez.org, it's a free Law Project from Cornell's Legal Information Institute. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The Death Penalty

On today's episode we're looking into a practice that sets the U.S. aside from all other Western countries: Capital Punishment. So, is the death penalty a part of the Constitution? How has the Supreme Court ruled on the issue? And ultimately, what can we learn about ourselves from the practice?

Our guest today is Carol Steiker, Harvard Law Professor and author of Courting Death: The Supreme Court and Capital Punishment.

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TRANSCRIPT

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

Death Penalty

Nick Capodice: [00:00:00] You're listening to Civics 101.

Hannah McCarthy: [00:00:02] And I'm Hannah McCarthy.

Nick Capodice: [00:00:03] And today we're talking about the death penalty otherwise known as capital punishment.

[00:00:08] Now to more breaking news from Utah where a convicted murderer Ronnie Lee Gardner was shot to death by a firing squad overnight. I want to turn to one of this week's biggest stories in Oklahoma are the execution of Clayton Lockett went horribly wrong.

Hannah McCarthy: [00:00:22] I've heard that we're the only Western nation that still has the death penalty. I want to know if that's true and if it is why.

Nick Capodice: [00:00:33] I want to know how policy towards the death penalty has changed as we've evolved as a nation. This is an issue that doesn't seem just relegated to politics. It could also extend to broader philosophical question can we kill other people because they've done the same. So we wanted to talk to someone who really knew about capital punishment.

Carol Steiker: [00:00:57] My name is Carol Staker. I am the Henry J. Friendly Professor of Law at Harvard Law School where I also am a faculty coach director of the Criminal Justice Policy Program.

Nick Capodice: [00:01:09] So to start do we have a national policy on the death penalty?

Carol Steiker: [00:01:15] No we do not have a national policy on the death penalty because the death penalty is primarily a state by state affair. That's one of the things that makes us different from most other countries is that we give individual states authority over the criminal justice system. So we do have a federal death penalty but the federal government is really a bit player in this field of the 1300 or so executions that have occurred in the last 40 years. Only three of them have been by the federal government.

Hannah McCarthy: [00:01:47] So the Supreme Court has ruled on definitions within the death penalty. But is the death penalty addressed in the Constitution.

Carol Steiker: [00:01:56] Well at the time the Constitution was drafted. Every one of the original 13 colonies had the death penalty and used it and the death penalty is mentioned in the Constitution a number of times. So many people argue that oh well therefore it must be constitutional because it's mentioned in the Constitution. But I think that's a little too simplistic. It's true that at the time the Constitution was drafted there was not any official questioning of the death penalty is permissibility but also mentioned in the Constitution is mutilation. The Fifth Amendment says you can't be held twice in jeopardy of life or limb because there were times in our colonial period where we cut off people's hands or branded them or otherwise mutilated their bodies as punishment. I don't think that many people would argue that because that phrase is in the Constitution that that means that today there's no constitutional problem with say cutting off limbs as punishment. So let's talk about the history. How has our nation's views towards the death penalty changed since the colonial days. Well you know what's really interesting is that when you ask people today why we have the death penalty they come up with a variety of arguments they say well maybe we have to deter other people from committing heinous crimes or maybe we just have it for what are called retributive purposes that is for punishing people in proportion to their dessert. The one thing nobody today would say we have the death penalty for is rehabilitation. I mean you don't rehabilitate someone by killing them. But actually in the colonial era that was the main purpose of capital punishment. That is it was thought at the time that we were overwhelmingly Christian country and people were overwhelmingly believers and they thought that if someone was sentenced to death they could be brought to a state of repentance by the knowledge of their impending execution and therefore their immortal soul could be saved. So the point of sentencing people to death was actually to rehabilitate their souls. I don't think you'd get that argument very often.

Nick Capodice: [00:04:22] Hannah and I are both sitting here with our mouths open. I had no knowledge that the death penalty would have been considered justifiable for religious reasons at that time like you're doing you're doing them a favor. So what's the first legal language about the death penalty the first time maybe the Supreme Court got involved with this death penalty case.

Carol Steiker: [00:04:40] Well that's a really interesting question because it wasn't until the 20th century that the Supreme Court got involved. So let me just tell this story because it's a it's not a well-known one but it's very important to understand how today we understand everyone understands that the Supreme Court is the main player in America's Death Penalty drama. Like I said at the beginning of our country although all the original states had the death penalty although there were people who raised questions about it including some of our founding fathers like Thomas Jefferson and Benjamin Franklin. It was legal and it was practiced pretty much everywhere. But as the 19th century wore on there was a real divergence between the north and the south around the death penalty. That as a number of states in the north and in the Midwest either abolished the death penalty outright. Michigan was the first English speaking jurisdiction in the world to abolish the death penalty in the 1940s and has never had it since then. But in the American South none of the Southern states abolished the death penalty and were very very slow to restrict it in any way because after the Civil War Southern whites were petrified about the possibility of retaliatory violence from the large freed black populations that were in their myths. And they responded with really what was a reign of terror. Again blacks in the south what we now know was a 50 year period of lynching a period in which more than 4000 people were lynched in the United States. Now it wasn't lynching per se that brought the Supreme Court into the death penalty fray. It was the South's response to lynching. So Southern leaders didn't like lynching. It made them look weak. It made them look unable to control the angry mobs who conducted these lynchings in their states. And so they came up with an anti lynching policy that essentially had sheriffs standing on the front steps of courthouses facing down the mob that wanted to lynch a black person charged with a crime against a white person saying don't worry we're going to have a really fast trial and this person this defendant will be hanging by sunset. And that resulted in a kind of quick and dirty. What many people have now call a policy of legal lynching. And this is what brought the Supreme Court into the fray. Now I'm getting to specifically answering your question when did the Supreme Court start to regulate the death penalty under the Constitution. Like I said at the beginning of our country. All the original states had the death penalty although there were people who raised questions about it including some of our founding fathers like Thomas Jefferson and Benjamin Franklin. But the first time that the Supreme Court ever made a rule specific to death penalty cases under theU.S. Constitution was in 1932. In a famous case called Powell versus Alabama which many people today know as the Scottsboro Boys case the Scottsboro Boys case involved nine black boys and they were boys they were ages 12 to 19 who were riding the rails in the South in Alabama and two white women who were also riding the rails accused the nine boys of raping them. We now know that these charges were unfounded. In fact the state of Alabama eventually issued a complete pardon to all of the nine Scottsboro Boys The most recent was in 2013. But at the time they were tried convicted and sentenced to death at least eight of them were the 12 year old was not sentenced to death but eight of the others were sentenced to death after trials that were you know ridiculous incredibly fast and which they were essentially unrepresented by counsel. And the Supreme Court took this case and said For the first time in capital cases you have to have a lawyer. The Constitution requires that.

Hannah McCarthy: [00:09:05] So what have been some other major historic milestones involving the Supreme Court and the death penalty.

Carol Steiker: [00:09:13] Well the biggest was a very famous case in 1972 called Furman versus Georgia where the Supreme Court abolished the death penalty in the United States. Now you might say that's news to me. I thought we still had the death penalty in the United States and we do. And that's because the Supreme Court reversed itself four years later. But I'll get to that. But how did we get to a point in 1972 where the Supreme Court abolished the death penalty in the United States. And the answer is a sort of direct descendant of the Scottsboro Boys case in 1963 almost exactly 30 years after Scottsboro another black man convicted and sentenced to death for raping a white woman in Alabama. As the Supreme Court to take his case. Well there was a liberal justice on the court in the 1960s named Arthur Goldberg who was very much an opponent of capital punishment. He wrote a long what's called dissent from denial of Sir Sharara a dissent from the courts failure to take the case that basically announced to the world his thinking that it was time for the court to consider the constitutionality of capital punishment at least for the crime of rape. And it turns out that that dissent from denial of review caught the attention of the premier civil rights organization in the United States. The NAACP Legal Defense and Education Fund which people everyone calls LDS for short. This was the same organization that had brought and won the Brownvs. Board of Education in 1954 and desegregated America's schools. So it tells you something about the death penalty about its history that in the 1960s in the middle of the civil rights era the nation's preeminent civil rights and racial justice organization would think that the death penalty should become its most important project.

Hannah McCarthy: [00:11:17] So why was the death penalty then reinstated.

Carol Steiker: [00:11:20] That's a very good question. Well it turns out that although LDS won a big victory in 1972 it was a very fragile victory. There are nine justices on the Supreme Court. The decision was 5 to 4 and each of the five justices wrote his own opinion and none of them joined each other so it was kind of hard to know exactly what was wrong with the death penalty in 1972. But the sort of two key swing justices who had rejected such a challenge the year before but changed their minds and accepted it. And Ferman had a kind of narrow view of what was wrong with the death penalty. They said what was wrong was that jurors who did death sentencing in the United States were not given sufficient guidance on how to apply it. They had too wide ranging discretion. The death penalty was widely authorized and there were no standards to help them decide who should get it. So of course states that wanted to keep the death penalty decided to redraft their capital statutes in an attempt to provide the very guidance that these swing justices said were missing. And in 1976 the Supreme Court granted review on five of these new statutes from. And you won't be surprised by this list. Texas Georgia Florida North Carolina and Louisiana. And they upheld a new generation of statutes that provided what the court called guided discretion and the death penalty was back in business.

Hannah McCarthy: [00:12:59] Is the death penalty currently considered an effective deterrent.

Carol Steiker: [00:13:06] I don't think it is. I don't think it is fairly considered to be there. There's been a real cottage industry trying to figure out whether the death penalty deters better than other punishments. You know life without parole or long prison terms. And while other studies that come out on both sides in 2012 a blue ribbon panel of you know the National Institute of Science did a meta analysis of all the studies and concluded that there is no evidence that the death penalty deters. Now they also said there is no evidence that it doesn't deter. In other words the absence of evidence that it deters is not evidence of absence of deterrence. So we're sort of stuck in a who knows situation however just kind of using common sense there about you know 10 to 15000 homicides in the United States every year. Last year we executed around 30 people most people who commit crimes serious homicides have every reason to think that they will not be executed because even the majority of people who have been sentenced to death have not been executed. So just in terms of what you think might contribute to deterrence the way we actually practice the death penalty makes it exceedingly unlikely that it deters.

Nick Capodice: [00:14:38] This may be a strange question but seeing as we have so many people who are on death row in states that have had people on death row for years without executions, what is the justifiable point of keeping the death penalty.

Carol Steiker: [00:14:52] Well it's a really good question. I think in some of the states that keep people on death row for years and years California is case in point. They have you know 700 ish people on death row but between in the last 40 years they've executed only 13 people. I think it's it's kind of a symbolic statement by returning the sentence of death they get to say we take this really seriously but then they don't actually follow through with executions. If you want a really cool analogy to the founding era again occasionally in colonial times people were sentenced to stand at the gallows with the rope around their neck. And often they weren't told that they weren't really going to be hanged. But the actual sentence was you just go to the gallows and they put the rope around your neck. And that was your punishment. And I guess it was a symbolic way of saying what you did was really really bad. And it's enough to make that symbolic statement without actually killing you. And that's what some states I think are doing with the death penalty.

Nick Capodice: [00:16:03] So can you tell me about the arguments moral or legal or civics related against having the death penalty.

Carol Steiker: [00:16:13] Well I think the strongest argument against the death penalty is not so much about what it does to the people who are executed. About whether they deserve it. But what it says about us as a community as a society I often debate the death penalty with people who are very much for it and they always start their debate with an example of some heinous crime. So one person that I debated once started with a description of a crime I'm not even sure that this was a real crime but he described a case in which the defendant had been involved with a woman who broke up with him and he was very angry and he kidnapped her two children from a previous relationship and took those two children and staked them out alive in an alligator patch and let them be eaten by alligators. And he rhetorically said to the audience in our debate how could we think that anything less than death is what this heinous and atrocious murderer deserves. My answer to him is why would we think that a single relatively painless death by lethal injection is what this heinous and atrocious murderer deserves. Why don't we stake him out in an alligator patch and let him get eaten alive by alligators. Always a few people who think well that's a pretty good idea. But most people say no we don't do that. That's uncivilized. And once they admit or acknowledge that there are things that people might be said to deserve because of the heinousness of their own behavior that we don't do because of our civilization humanity. If you want then I think you know you're on my page. If you believe that. And you know I think death should be one of those things that we don't do because that's not what civilized societies do that we have plenty of serious punishments that take seriously wrong doing without taking the awesome step of ending people's lives.

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Made possible in part by the Corporation for Public Broadcasting.

The Equal Rights Amendment

The Equal Rights Amendment (ERA) is a proposed Constitutional amendment that would explicitly guarantee legal equality under U.S. law, regardless of sex. But almost a century after it was first proposed, the ERA has still not been ratified. What's the hold-up?

Lillian Cunningham is a journalist at The Washington Post. She's also host and creator of the podcasts Presidential and Constitutional.

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TRANSCRIPT

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

Civics 101

The ERA

Nick Capodice: [00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting. I'm Nick Capodice.

Hannah McCarthy: [00:00:09] And I'm Hannah McCarthy.

Nick Capodice: [00:00:10] And this is Civics 101. The podcast refresher course on the basics of how our democracy works. The Equal Rights Amendment is a proposed constitutional amendment that would guarantee equality under U.S. law regardless of sex. Huh. Um, shouldn't that already be in there? Is that in there? No? Not really?

Lillian Cunningham: [00:00:32] The Equal Rights Amendment has been the most frequently proposed amendment in all of US history. There have been 11000 proposed amendments over the course of U.S. history and we only have 27 that have actually made it into the Constitution. But out of those 11000 the Equal Rights Amendment or some version of an Equal Rights Amendment is by far the most frequently proposed.

Nick Capodice: [00:01:03] That's today's guest Lillian Cunningham.

Lillian Cunningham: [00:01:05] I'm Lillian Cunningham. I am a journalist at The Washington Post and I'm the host and creator of two podcasts we have, Presidential and Constitutional.

Nick Capodice: [00:01:15] Lillian Cunningham who also goes by Lily is joining us to explain the ERA and why, almost a century after it was first proposed, we're hearing about it again in the news right now.

Archival audio: [00:01:27] You got to hear what I have to say because you know what's going to happen. Women are not given equal rights and protections under federal law.

Nick Capodice: [00:01:49] Alright, let's begin with the most basic question of all. Lily, what is the Equal Rights Amendment?

Lillian Cunningham: [00:01:54] So the Equal Rights Amendment is a proposed amendment or proposed change to the U.S. Constitution. And so the idea is that we would add a line or two to the constitution that would explicitly grant equality under U.S. law to every citizen regardless of their sex. So basically that would mean women would have the same rights and protections as men under the U.S. Constitution. The exact wording I have here in front of me the exact wording is "equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." So you know I think most of us today this sounds pretty straightforward kind of like a no brainer that men and women should have equal protections. But there has actually been a really intense and really long battle that's taking place over about 100 years now in this country over whether we should actually put that language in the Constitution. And that battle is kind of reaching a new climax in the country right now.

Nick Capodice: [00:03:13] So this is a proposed amendment it hasn't been ratified yet. And as Hannah and I know from several different episodes it takes two thirds of all houses three quarters of all states to ratify a constitutional amendment so this is still in the works?

Lillian Cunningham: [00:03:26] So this is where it actually gets very complicated. Right. So what is clear is that it was a proposed amendment and it did at one point pass both houses of Congress with two thirds of the vote. Now what it hasn't done is it hasn't cleared the second hurdle which is that three quarters of states.

Hannah McCarthy: [00:03:51] So Lily you said that this debate has been going on for about a hundred years now. When was this thing proposed and why was it proposed.

Lillian Cunningham: [00:03:59] The backdrop here is in 1920 the country adopts the 19th Amendment which is women's right to vote and kind of on the high from that victory, Alice Paul who's the head of the National Women's Party at the time and a bunch of other female activists, they decide you know OK this is great we have the right to vote now in this country but that's only one piece of what equality looks like. Gender equality looks like. And so really shortly after the adoption of the 19th Amendment Alice Paul and some of her colleagues put forward this idea that we should have an equal rights amendment. Alice Paul is not a congresswoman. She's just a political activist. But she sort of brings this idea to members of Congress and actually at the time in the early 1920s a nephew of Susan B Anthonys was a congressman and he and one of his other colleagues in Congress decide that they are going to actually officially propose this Equal Rights Amendment and they do that in 1923. It doesn't get enough votes though to pass and they try again the next year and the next year and every single year from 1923 onward an Equal Rights Amendment is proposed in Congress. But it just doesn't have enough momentum to get anywhere. Until about 1970 and that's then when the story changes and we suddenly see 50 years after its first proposed we finally see it pass both houses of Congress.

Hannah McCarthy: [00:05:51] So what is going on in the early 1970s why does the story suddenly change after 50 years?

Lillian Cunningham: [00:05:58] So it kind of interestingly it's another moment in the nation's history where we're obviously really debating and trying to reconcile our history of inequality. So Sort of out of racial inequality protesting comes some of these attempts to also fix gender inequality gaps. And so that's why we sort of see this turning point where there's just a lot of political pressure on Congress to pass this equal rights amendment that's been sitting there languishing and it becomes kind of a symbol of the country's commitment to solving these inequality issues.

Nick Capodice: [00:06:44] So it makes it out of committee, miraculously. It gets two thirds of the House two thirds of the Senate. But what happens in the States in 1970?

Lillian Cunningham: [00:06:54] So Congress does something with this amendment that they haven't done with a number of other amendments. And what they do is they pass it but they write that it has a seven year deadline to get those state ratifications. So that means that thirty eight states need to ratify or you know basically sign off and say they want this amendment to be in the Constitution. They need to do that by a deadline of March 22nd, 1979.

Nick Capodice: [00:07:29] So what are the arguments against the ERA. Because with our 2018 glasses on it seems a little strange to have this argument. But were there arguments against it in the 1970s and 80s?

Lillian Cunningham: [00:07:40] There were. There were arguments about it all the way back to the 1920s when it was first proposed you know some people say we don't actually want the same treatment for men and women and it doesn't mean we want worse treatment for women.

Lillian Cunningham: [00:08:00] But you know a lot of the people actually who opposed the Equal Rights Amendment were other women. In the 1920s there were women who had been fighting really hard to get new labor laws passed so that in this like new industrial age where women were joining the workforce in numbers that they hadn't before they were pushing really hard to pass laws where there were limited work hours for women or where you know you could say like if a woman goes on maternity leave she should maybe have different treatment than a man does in the workplace. And then there are of course also some people who are just in the camp of like ah, we already have a 14th Amendment that's sort of more broadly guarantees equal protection for every citizen under the law. And you know we don't really need this amendment.

Nick Capodice: [00:08:54] More on the ERA and the iconic activist who by some accounts is the single reason the ERA didn't pass in the 1970s. That's after the break.

Nick Capodice: [00:09:06] Welcome back to Civics 101. We are here with Lillian Cunningham, journalist for The Washington Post and host and creator of two of their podcasts, Presidential and Constitutional. I'm Nick Capodice here with Hannah McCarthy.

Hannah McCarthy: [00:09:18] So in the 70s and the 80s who was leading the charge against this equal rights amendment?

Lillian Cunningham: [00:09:25] So the main figure is this woman Phyllis Schlafly and she is she is a lawyer and she's also a conservative political activist and she is one of these women who very much felt that women should be treated differently under the law.

Nick Capodice: [00:09:48] Yeah and we've actually dug up some audio here of Phyllis Schlafly speaking about her views on the ERA.

Phyllis Schlafly: [00:09:54] My youngest daughter became 18. And I realized that what these people really wanted was to take my five 5 foot 2 little girl and treat her just like a man and draft her and put her in basic training and teach her to kill and send her out into our country's wars just like the men. Yes I do get emotional about that.

Phyllis Schlafly: [00:10:17] That brought about a very cutthroat censorship of elementary school textbooks, so that they eliminated ego pictures of women in the home and women with babies. Now I believe that strong nations depend upon strong families, and that child care should not be primarily a governmental function.

Archival audio: [00:10:34] Mrs. Schlafly in a well organized and financed campaign has been flying around the country inspiring opposition groups such as this one in Dade County, and the anti amendment mail started coming in.

Lillian Cunningham: [00:10:48] At least in the kind of simple telling of the story she's kind of the main reason why everyone who supported the ERA feels that they weren't able to get the 38 states they needed by the seven year deadline. You know for every pro ERA campaign that was mounted there was Phyllis Schlafly with the anti ERA campaign competing against state and cutting into its momentum.

Nick Capodice: [00:11:19] So I have two questions about where the amendment stands now, and the first is what would be the tangible effects if it were to be ratified?.

Lillian Cunningham: [00:11:28] So there are people who say at this point the ERA is more symbolic than anything else, that it's important for us to put it in the Constitution because it's important for us to acknowledge as a country that we have gender equality, but that in practice you know we've already kind of set up a legal system that can you know account for and protect women so that some people say not much will change.

Lillian Cunningham: [00:11:58] Other people of course the ones who are you know out there right now advocating for it they say it could have an effect on things like equal pay in the workplace for women. It could mean that women or actually men couldn't be charged different insurance premiums, health insurance, car insurance things like that. You know just based on their gender. It could have some kind of future effect on parental leave. So we don't really know all of the ways that it might play out. And that's you know, we won't know even if it does eventually make it into the constitution and we won't have an answer right away of course because all of that sort of thing gets set over time in Supreme Court cases kind of set the precedent for how they're going to how they're going to read that constitutional amendment.

Hannah McCarthy: [00:12:55] It strikes me that it's it's hard to overturn what the Constitution says but it's not quite so hard to overturn what a law says.

Lillian Cunningham: [00:13:06] Absolutely. You know with the exception of prohibition where we put that into the constitution and then repealed it eventually no other constitutional amendment in our history has been repealed. And it is the most permanent way we have of fixing something into you know the governing structure of our country. So it kind of buffers it from the winds of any particular political climate or you know President in office or Congress leaning this way or that way. Absolutely. Yeah that I think is one of the strongest arguments there is for why it would make a difference if we put it in the Constitution.

Nick Capodice: [00:13:55] And I guess the biggest question for me is what's going on right now with equal rights amendment. Why why is it coming into the news as we speak?

Lillian Cunningham: [00:14:03] That's the kind of curious and exciting and interesting thing right now is that the deadline the original deadline Congress set was 1979. And by 1979 35 of the 38 states that needed to ratify it had ratified it. So there were three states away from getting it officially into the Constitution. So Congress decides they're going to extend the deadline by three years until 1982 and give some of these straggler states a chance to ratify it so they can get the three more that's needed which was a controversial move at the time. So that second 82 deadline comes along. There are still 35 states. And it's you know kind of just pronounced dead. Like Congress doesn't extend another deadline. And the idea is that OK if we want an equal rights amendment we now need to go back to square one. It will need to be proposed in Congress again passed by Congress again sent to the states all the states again. So there are people today who say the ERA is actually dead. That's it. It's done. Well. Other people say you know I don't think so I think if we still get three more states we could go to Congress and say hey we have the 38 states we finally need. If Congress had the right to put a deadline on it in the first place and put an extension on the deadline then you have the ability kind of after the fact to go back and say OK we're going to sort of waive that original deadline and we're going to honor the rest of the state ratifications.

Lillian Cunningham: [00:16:00] So there are people who have since 1982 been kind of quietly pushing to get the other three states to ratify it so that we know as a country could then have to sort of force Congress's hand to decide you know what are they going to do. And what's happened is that last year Nevada kind of out of the blue passed it. Or they ratified it. Their state legislature decided to ratify the Equal Rights Amendment. And that meant there were 36 states and then just recently Illinois decided to do the same thing. So that's now 37 states that have said they want this amendment in the Constitution. So there is a huge question mark right now. Like can we get a 38th state? What state would it be. And you know the big question which is what in the world happens if we do get 38 states and Congress then needs to decide whether it's going to honor this. Even though the deadlines expired. So that's where we stand right now. It's a question again without an answer. We have no idea what Congress would do.

Nick Capodice: [00:17:36] Lillian Cunningham is a journalist with The Washington Post and the host and creator of Two sensational podcasts, Presidential and Constitutional. Do yourself a favor and listen to them. Presidential is a podcast about each of our presidents and onstitutional is an in-depth look at the stories of the people who framed and reframed the Constitution and our nation. Today's episode was produced by Justine Paradis with our executive producer Erika Janik. Our staff includes Ben Henry Taylor Quimby Jimmy Gutierrez and Jacqui Helbert and it's hosted by Hannah McCarthy and me Nick Capodice. If you have a question about this grand old American experiment. Send it to us.

Nick Capodice: [00:18:16] You can e-mail us at Civic's 101 at NHP dot org or tweet us at @civics101pod. 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 Affordable Care Act

On today's episode, we tackle a defining law from the Obama administration, the Affordable Care Act -- better known as Obamacare. Some people love it, others hate it, but what did the law really do? Is American health care actually more, you know, affordable? And why is there so much talk of repealing the ACA? Our guide today is Julie Rovner, Washington correspondent for Kaiser Health News. 

This episode was recorded on 6/11/18.

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TRANSCRIPT

Nick Capodice: [00:00:05] I'm Nick Capodice.

Ben Henry: [00:00:06] I'm Ben Henry.

Hannah McCarthy: [00:00:06] I'm Hannah McCarthy.

Nick Capodice: [00:00:07] And today we're talking about the Patient Protection and Affordable Care Act.

Ben Henry: [00:00:12] Otherwise known as Obamacare.

Nick Capodice: [00:00:13] We're talking about Obamacare!

Hannah McCarthy: [00:00:14] Obamacare, yeah that's how I know it.

Ben Henry: [00:00:17] So guys the reason I wanted to talk about this is I saw this graph in The New York Times a couple of weeks ago and I found it shocking. What the graph shows is it lays out the amount of money that the United States spends on healthcare per person compared to our life expectancy. How long we live in general you know is a measure of how healthy we are.

Hannah McCarthy: [00:00:38] Yeah I'm looking at it right now it looks like our life expectancy is like seventy nine.

Ben Henry: [00:00:43] Yeah this graph shows that we spend way more money on health care than other developed nations and we don't live longer because of it compared to those other nations. We're kind of somewhere in the middle of the pack in terms of life expectancy.

Nick Capodice: [00:00:57] But we are way ahead of the pack in terms of how much we spend.

Ben Henry: [00:00:59] Way ahead--we're spending all this money and it's not clear what we're getting out of this. And the reason that this article was crazy to me is because the takeaway from the whole article is that we don't really know why. We're not sure why the cost of health care is so high in this country.

Nick Capodice: [00:01:18] I'm very keen to have Obamacare explained to me because I know sort of what it is but I have no idea how the nuts and bolts bolts all work together for it.

Ben Henry: [00:01:27] So we're talking to Julie Rovner. She's a Washington correspondent for Kaiser Health News and she also hosts a podcast for them and she is a veteran healthcare policy reporter. And guys, no question is too stupid.

Nick Capodice: [00:01:41] Oh good.

Hannah McCarthy: [00:01:42] Thank God.

Ben Henry: [00:01:43] We're going to figure out health care.

Nick Capodice: [00:01:50] Julie welcome to Civics 101.

Julie Rovner: [00:01:53] Thank you for having me.

Nick Capodice: [00:01:54] So set the stage for us it's 2008 Obama comes into office. What are the problems that he and his administration see in the U.S. health care system?

Julie Rovner: [00:02:04] Well there are two big problems in 2008. One was the very large number of people who did not have health insurance and some large percentage which could not get health insurance if you didn't get health insurance through the government or on the job and you had to buy your own. If you had a preexisting condition if you had ever basically used the health care system you might not have been able to even buy health insurance at any price if you could buy it it might have been prohibitively expensive.

[00:02:32] At the same time health care costs were rising rapidly they still are by the way. And there was an effort by basically all of the stakeholders everybody involved in healthcare delivery, purchase, consumption, who wanted to do something about the rising cost of health care.

Hannah McCarthy: [00:02:50] So with the Affordable Care Act what were the major provisions in the act? What were they trying to solve?

Julie Rovner: [00:02:57] The main two pieces of the Affordable Care Act that we tend to talk about were, one, the insurance reforms requiring insurance companies to sell to people with preexisting conditions to sell to them at the same price and to not charge women more.

[00:03:14] But also the requirement for most people to either have health insurance or pay a fine. Those were all the things that sort of went together to try to shore up that individual market where about 20 million people buy their own coverage.

[00:03:27] And the other major piece was the expansion of the Medicaid program. Previously Medicaid was available to people with low incomes. But you had to be low income and something else you had to be low income and a child low income and a pregnant woman low income and someone with a disability or low income and a senior.

[00:03:46] Basically what the Affordable Care Act said was you really just had to have a low income and then you could be eligible. Originally that was a requirement all states were going to have to expand Medicaid. In 2012 the Supreme Court ruled that the Medicaid expansion was coercive to the states and it had to be voluntary. So now we have most of the states doing it because the federal government is paying the vast majority of that cost. But there's still 18 states I think that have not yet decided to opt into that Medicaid expansion.

Nick Capodice: [00:04:17] So how did it do in solving those two problems.

Julie Rovner: [00:04:21] Well I think the consensus is it did better at covering people than it did at lowering costs. And there's a variety of reasons for that. But certainly millions of people have joined Medicaid under the states that did expand the people who were getting help paying for their coverage.

[00:04:39] There are a lot more of those people, some other people for complicated reasons have been priced out of that if they make too much to get help from the government. So it's been sort of a give and take in the individual market but yes many more people overall have coverage than had coverage before the Affordable Care Act was passed on the cost side.

[00:04:59] There were a lot of changes to Medicare and they were all intended to be experiment. So some of them have worked better than others of them. Healthcare spending went down rather dramatically in the years following the enactment of the Affordable Care Act. There was a very lively debate amongst analysts and economists about whether that was because of the law or because of the the the Great Depression the recession that still not clear I think the consensus was it was sort of a combination of the two.

Hannah McCarthy: [00:05:28] So you said that it didn't necessarily lower costs but Affordable Care is built into the name of the act. Are you able to explain in a not too complicated way why it did not lower the costs of the cost of health insurance?

Julie Rovner: [00:05:42] One of the big pieces of the Affordable Care in the Affordable Care Act was helping people who didn't have job based insurance or didn't have government insurance afford private insurance and it has done a very good job at that. Previously if you earned thirty thousand dollars a year and insurance costs two thousand dollars a month that just wasn't going to work for you. But now there are subsidies that will help you know people really with a family of four up to about 90000 dollars. Help them afford insurance.

[00:06:07] So in that sense it did make insurance more affordable for the people who were getting help. What happened was the people who weren't getting help were having to pay increases that were very large.

Nick Capodice: [00:06:20] Can you tell me about some of the major criticisms of Obamacare then when it went through and even up to now?

Julie Rovner: [00:06:25] Well Of course the biggest criticism came from Republicans who voted against it unanimously in the end which is that they just didn't want more government involvement in the health care system. Government is already depending on how you look at it either covering or paying close to half of the nation's health care bill. So there's already a lot of government in the health care system and this was seen as perhaps a step to a fully government paid system ... Obviously Republicans would like more market and less government.

[00:06:59] There was also a concern that particularly the requirement that people have insurance or else pay a fine sort of offended the libertarian streak that runs through many Americans of both parties. I mean that was that was just an ideological line that people didn't want to cross. Interestingly enough that the idea of that individual mandate requiring people to have some responsibility for health care that they were likely to consume whether or not they had insurance was originally a Republican idea. It started in the early 1990s when President Bill Clinton was proposing a much more government focused system. That was the Republican's response. They kind of backed off of it later. But then of course they did do it, the first individual mandate in the United States was in Massachusetts in 2006 under then Republican Governor Mitt Romney.

[00:07:48] So it was always sort of kicking around as a Republican idea. But when the Democrats adopted it the Republicans decided they wanted no part of it and indeed it has traditionally been the least popular part of the Affordable Care Act with the public.

Hannah McCarthy: [00:08:01] Why should there be an imperative against not having health insurance? Why Does the government believe that we should?

Julie Rovner: [00:08:08] Well the argument is that almost everybody's going to use health care regardless of whether they're insured or not. So if you're not insured and you get in an accident and you're taken to the hospital and you're treated that's going to cost a lot of money and without insurance you're probably not going to have enough money to pay for that. What happens. The health care providers have to write that off and therefore raise prices for everybody else. So those people are considered free riders. They're basically getting something for nothing. There is an argument that people should have the responsibility for something that is likely to occur i.e. that you're likely to use health care at some point. That is sort of the the moral and societal argument for it.

[00:08:46] The obvious you know personal argument for it is that if you end up needing health care and you don't have insurance you are likely to go broke. So there is there's something to for yourself to having health insurance. But there are people who just simply don't want it. And that was in the law it said OK if you don't want it you're going to pay this fine. And frankly the fine is still lower than the cost of health insurance in almost every case.

[00:09:10] So the idea was that those people would pay what was referred to sometimes as a free rider penalty they would pay that penalty and it would go to help offset the health care costs of people that didn't still have insurance.

Ben Henry: [00:09:29] There's one other component of the ACA that I'm curious about which is the requirement that all health plans include a certain barebones set of benefits in the plan. Can you talk about why that was part of the ACA and what the idea is there?

Julie Rovner: [00:09:43] Yes this was one of the most difficult parts of the ACA for the people who put it together which was what constitutes adequate health insurance. What does a minimum package of benefits have to look like. And it came from a lot of research that showed many people had insurance but they were under insured that things that were likely to happen were things that they wouldn't be covered for maternity care was a really big one. You know many many families not just women because it's usually a family that's having a baby in terms of the finances. Many individual policies didn't cover maternity was something that people were sometimes expected to pay for themselves these days having a baby costs in the tens of thousands of dollars not an amount that most families can comfortably handle.

[00:10:29] Many insurance policies didn't cover mental health or substance abuse issues something that we know is very common. So this was sort of an effort to try to reach that balance. But that's you know this is a question of what as a government do you want to actually mandate for people to have in terms of health insurance.

Hannah McCarthy: [00:10:49] So why is it so expensive? We were sitting here in the studio right before we called you saying you know we get these bills you know from an MRI for example 200,000 dollars and I only have to pay a portion of that. But why on earth would a quick procedure cost that much money? Is that an accurate representation of what it's costing the hospital or whomever?

Julie Rovner: [00:11:12] Well it depends who you ask and this is the continuing debate. Why does health care costs so much. Actually why does the United States spend so much on money that we think has been pretty definitively answered and I quote the late Uwe Reinhardt, Princeton health economist: "It's the prices, stupid." In the United States, there is no government control of prices for prescription drugs. There is within the Medicare program and within the Medicaid program but in the private sector the government does not control how much health care practitioners and suppliers of healthcare things can charge. And so they basically charge what they can. There are libertarians and market driven Republicans who argue that one of the problems is people with insurance because they don't see the bill so that the insurance company will pay it. The patient has no skin in the game therefore people charge more. It's not entirely clear why prices are so much higher in the United States than in other industrialized nations. But prices are so much higher in the United States than they are in other industrialized nations.

Nick Capodice: [00:12:20] And how do we measure up against other industrialized nations in terms of healthcare and prices?

Julie Rovner: [00:12:25] Not very well. We certainly pay the most, but when you look at outcomes you know how healthy our population is. Americans are less healthy than those in many other advanced nations that's who we tend to compare ourselves to. And that is you know for again it's not just the health care system it has to do with other social supports that other countries have. You know with income and the inequity of income in the United States with to some extent how big we are. But yes we spend the most and don't get that much back for it. That's pretty clear.

Hannah McCarthy: [00:13:04] What happened in terms of public perception of the Affordable Care Act? Because I know it didn't start off so hot but then things seemed to balance out a little bit.

Julie Rovner: [00:13:14] Yeah from the beginning the Affordable Care Act was popular among Democrats and unpopular among Republicans. So the most important determine of whether you like the health law or not was what party you identified with. You know when things went wrong support dipped when things went well support rose in general. It was really only last year when Republicans started you know going after the law in a serious attempt to repeal it that more than half of the public suddenly decided that they liked it. And that had mostly to do with independent voters turning more strongly in favor of the law.

[00:13:48] But indeed there's a famous Jimmy Kimmel's sketch that I tend to show when I go out and talk to people. He asked people on the street did they which did they prefer Obamacare or the Affordable Care Act. And everybody he talked to said Oh they preferred the Affordable Care Act they didn't like Obamacare even though of course they were the same thing. So there is something to the words that you use to describe it.

Hannah McCarthy: [00:14:12] So as someone who has covered health care for so long, what is your personal opinion do you feel that the Affordable Care Act protected patients and made health care more affordable across the board for Americans?

Julie Rovner: [00:14:24] You know one of the things I've seen in my now more than 30 years of covering health policy is what tends to happen is that Congress passes a big law, they see what works and what doesn't and they fix what doesn't work. That really hasn't been able to happen with the Affordable Care Act because the Republicans took over the the house right after it passed before it was implemented by the time it was implemented fully. Republicans were in charge of the House and the Senate so they didn't want to fix anything.

[00:14:53] And of course now Republicans who say they don't like the law are in charge of the House the Senate and the White House. So there really has been no chance to go back and tinker with the things that didn't work so well. Will there be we will have to see.

Nick Capodice: [00:15:07] Are there any other countries you think we could look to for guidance for. Is there a better way to do this that you've seen?

Julie Rovner: [00:15:13] Well everybody every other country is struggling with health care costs. Health care is expensive. It gets more expensive. We have dramatic breakthroughs and the people who create those dramatic breakthroughs want to be you know reimbursed for their intellectual work. And I think most people agree that they should be.

[00:15:32] The question is at some point can society and I'm talking about society in general not just the U.S. not afford these things. And you know so some some countries decide to sort of hold down costs by creating queues as they say making people wait. If it's not you know urgent maybe you'll have to wait longer. Americans don't like to wait.

[00:15:53] There are you know Canada has basically what would be what the U.S. could understand as Medicare for all. It's a government paid system but not a government run system. The United Kingdom has what more like the Veterans Administration year it's both the government paid system and a government run system. But Germany and Switzerland and the Netherlands all have hybrid public private systems with government funding and private insurance. Not that dissimilar from what we have and yet they pay considerably less than we do because they have a much more government structured private market than we do.

Ben Henry: [00:16:29] Julie what do you think we can expect going forward? Are there really viable alternatives to the ACA that people are advocating for? Do we think is it going to go away entirely and we'll just have an open market? I mean what do you expect like might happen in the next couple of years?

Julie Rovner: [00:16:46] Well there's a huge spirited debate in the Democratic Party on whether to try to fix what's wrong with the ACA or whether to scrap it and go to a Medicare for all type single payer plan. And there is growing support for that. But people haven't, we've not really debated what that would mean in terms of tradeoffs in terms of much higher taxes in terms of do you really you know people love Medicare do you really trust the government though to basically handle Medicare for you know 325 million people rather than the 55 million people who are on Medicare that it's hard to know what the result of that debate would be, but I would guess that fewer people would support it than than support it at first blush.

[00:17:27] Republicans would like to get rid of the Affordable Care Act but they don't agree on what to replace it with either some of them would like to just give a chunk of money to the states and let the states figure out what they can do. Some of them would like to go to just an entirely market driven system. Basically people are kind of at loose ends figuring out exactly what they would like to see if not the Affordable Care Act.

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Made possible in part by the Corporation for Public Broadcasting.

Tariffs

Today on Civics 101, Ron Elving takes us through Tariffs. What are they? What are the pros and cons of taxing goods that enter our country? What is the effect on the consumer? And finally, how do trade wars end?

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TRANSCRIPT

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

TARIFFS

Nick Capodice: [00:00:02] I'm Nick Capodice.

Hannah McCarthy: [00:00:02] And I'm Hannah McCarthy.

Nick Capodice: [00:00:03] And today on Civics 101 we answer question for Sara Mottaz of Seattle.

Sara Mottaz: [00:00:08] Well I've been interested in tariffs lately because they've been in the news so much.

Archival audio: [00:00:11] The Foreign Ministry then clarified and confirmed that China in fact did retaliate with its own tariffs... midnight eastern time, the U.S. raised tariffs on 34 billion dollars worth of Chinese goods.

Nick Capodice: [00:00:24] It's one of those things that whenever I used to hear about tariffs. I would just say oh god I'll learn about this later.

Hannah McCarthy: [00:00:29] Right.

Nick Capodice: [00:00:29] I can't learn about this now.

Sara Mottaz: [00:00:31] I know! I know, that's why I asked the question. We've always had tariffs in place but I don't really understand how they came about to begin with and what changes we're making to tariffs now and how they affect our country and the world economy.

Nick Capodice: [00:00:44] To learn about tariffs we interviewed Ron Elving.

Ron Elving: [00:00:47] I am the senior editor and correspondent on The Washington desk at NPR. I'm also part of the faculty of the School of Public Affairs at American University.

Nick Capodice: [00:00:57] It's worth noting we interviewed Ron before the trade war with China. However we did want to know the basics of what is a tariff. Why do we have them.

Hannah McCarthy: [00:01:04] And how does a trade war end? Why don't we start off by defining a tariff.

Ron Elving: [00:01:12] A tariff is simply a tax that is imposed on goods that are being imported into ones country. So if the United States passes tariffs, we tax the goods of other countries as they arrive in the United States and countries impose tariffs on our goods and those taxes have to be paid by the owner of the goods when they enter someone else's country.

Hannah McCarthy: [00:01:34] So it's the person who is providing the goods who is paying the tariff?

Ron Elving: [00:01:38] That's right. It's the manufacturer who is responsible for that particular tax it has to be paid to the government of the country that is governing the docks in the port or the airport where your goods are arriving.

Nick Capodice: [00:01:52] Now is this just a way to make money or is there another reason we've always done this?

Ron Elving: [00:01:57] Oh it's certainly both. It is magnificently a way to make money and for much of American history it was the main way that the United States federal government made money. There was no federal income tax until the 20th century with a brief exception during the Civil War and the federal income tax as we know it today is really a creation of the WWI period. So the big source of income for the United States government and many other governments was taxing goods that came in from other countries. But that was only part of the reason. That's pretty good reason in and of itself of course. And by the way that the first Tariff Act passed by Congress was the second bill that Congress passed. The very first session of Congress in 1789 right after they passed a bill for oaths of office and after they'd gotten that little formality out of the way they started passing tariffs. That is how important and fundamental it was to the original United States government. You could even argue that to some degree the American Revolution and then later a civil war had a lot to do with tariffs and the conflicts between the United States and Great Britain. The conflicts between the regions of the United States were largely tariff driven. So there were a lot of other purposes besides just raising money. For example trying to provide some money so that America in its early days could build up the kind of industries that might eventually compete with Great Britain. And keeping those goods from Great Britain expensive so that new manufacturing enterprises in the United States could make cheaper goods and sell those to their fellow Americans and get a good start in the world of commerce. Otherwise it was difficult to compete with everything that was coming over the Atlantic.

Nick Capodice: [00:03:43] So it's a good way to start. And yet here we are in 2018. Why do we still continue to be raising tariffs and increasing tariffs?

Ron Elving: [00:03:50] At this point. It's a bit of a throwback. What's going on with a Trump administration right now is very much a throwback to another era because the United States after having been a leading protectionist power if you will of high tariffs and other kinds of restrictions and other people's goods all through the 1800's, half of the 20th century, after 1945 after the destruction of Europe by World War II. There was a sense that we needed to help the rest of the world get back on its feet. So of course we had the Marshall Plan in the late 1940s but probably even more important than that, the United States really switched after World War II to being a free trading power. That doesn't mean we had no tariffs.

Ron Elving: [00:04:33] Not by any means but we changed the emphasis in our trade policy and our foreign policy to be not so much isolationist as we had been before World War II as to be a world leader as to be the country that made sure the entire world was working on the same sort of currency system. We largely set the value of currencies under a system that was devised largely by the United States and we were very generous in letting other countries sell their goods into America. China, Japan, certainly the countries of Europe, other countries around the world, got a good deal by selling their goods into the United States and we were far far less protective than we had ever been before. And we had long since turned to other sources of revenue to actually run our federal government. So in 1945 was a huge watershed year. Now more recently as we have seen more trade protectionism grow up around the world this has become more complicated. And Donald Trump feels that we have been progressively taken advantage of over the last several decades and that even when we negotiated what seemed like a kind of fair deal such as the North American Free Trade Agreement known as NAFTA that goes back to 1994. Even when we got something like that done with Canada and Mexico that it was a better deal for Canada and Mexico than for the United States. That is debatable. There are certainly lots of people who defend NAFTA but Donald Trump found a lot of political payoff if you will he found paydirt by arguing that NAFTA was a bad deal for us that the proposed Trans-Pacific Partnership was a bad deal for us and that our relations even with the European Union perhaps our closest economic allies in at least a geo political sense posing them against Russia were also not in our best interest and that we were getting ripped off. In his view.

Hannah McCarthy: [00:06:31] So what is the intent of the tariffs now? Are we trying to make more money or are we trying to protect our industry?

Ron Elving: [00:06:38] It's really to protect our industry and to, I'm going to give an opinion here, but I believe that the real intent here is to some degree to make a show of punishing some of our trade partners who are also our military allies NATO North Atlantic Treaty Organization which is largely the same group of countries as the European Union. President Trump feels that these folks have been taking advantage of us. That Japan for example which we have included under our nuclear umbrella ever since World War II we have protected Japan we have been their military big brother that they have then turned around and profited from selling us their cars, but restricting what we could sell there and that now hour into the same kind of relationship with China although we certainly are not their military ally. We take a lot of their goods and they are more restrictive about what they were let into their country and all of this while it reflects that role that the United States has been playing in the world for the last 70 some years. While it reflects that role, Donald Trump says it's a bad deal for the United States and that our prosperity has actually been lessened by our efforts to increase the prosperity of the global economy. So we get this contrast between America first, we should just be taking care of our own interests and no one else's and the concept of globalism which is that a rising tide lifts all boats and all world economies doing better is better for the United States as well.

Hannah McCarthy: [00:08:12] So what does this mean for the consumer in either country when you've got these retaliatory tariffs going back and forth. Is that just jacking up the price globally?

[00:08:22] Yes it is because some of the money is not going to the company that has the goods to sell, it's going to the governments. The United States government when we impose the tariffs, the governments of China or Japan the governments of the European Union are collecting these taxes and they're coming from the consumer and they pay them at the exact same time they buy the goods. So this has been the great argument against tariffs over the years is that governments should not collect their revenue or get their revenue in this sort of subterranean way or slightly sneaky way by making it be part of the price that you pay for goods. Now in Europe they also have something called a Value Added Tax which does the same thing. Some people have argued for that in this country. But when you charge people more to get their goods into a country where they're going to be bought and sold, you are adding to the cost of the goods, adding to the cost to the consumer without actually giving the consumer any more value and without giving the company producing the goods any more revenue. The government interposes itself. And that's why philosophical libertarians, people who are political libertarians, people who believe in a free market, do not like tariffs; see them as just another form of taxation and see them as a kind of beggar thy neighbour approach to world trade.

Ron Elving: [00:09:46] If you think world trade is the single greatest driver of the rising of the human species from our earliest origins hunting and gathering to agriculture etc etc. including cultural improvement all over the world and eventually greater political understanding, if you see world trade as the key to all that then tariffs are a mortal enemy.

Hannah McCarthy: [00:10:10] We hear about Trump imposing tariffs. Does the president impose the tariffs does Congress impose the tariffs who makes the decision?

Ron Elving: [00:10:17] The Congress can pass tariff acts and impose tariffs. The president can also do it when Congress gives him the authority to do so. And Congress in recent years, particularly in the most recent decade or so, has been quite willing to give the president wide latitude particularly when a particular tariff can be portrayed as being a measure for national security. So for example with the steel and aluminum tariffs that really got this trade war going, this was justified by the Trump administration which did it just by fiat as a national security measure. In other words if we allow our steel and aluminum industries to get smaller and smaller eventually we will not be able to make our own weapons with our own metal here in the United States. And if we can't do that then we can't win a World War II. We can't be a world superpower unless we can make our own weapons with our own metal. And that has to mean a steel and aluminum industry here in the United States that is second to none. All right that's an arguable point. That's certainly something that someone could make a case for.

Ron Elving: [00:11:27] And Congress has basically stood back and said oh gee if it's national security then fine of course the other side the free traders will argue that there's no evidence that our defense capacity has been in any sense diminished. There's no evidence that our current arrangement for some imported steel and aluminium to be part of our defense industry is making us less safe. There's certainly no evidence that Canada is going to deprive us of whatever metals we might need for our national defense assuming of course that we still see ourselves as allies of Canada and we might very well see the North American continent as our true home and military strategic terms. So there could be questions about this national security justification by the current Congress, which is Republican controlled in the House and Senate, is in no mood to challenge President Trump on this particular issue. Now they may at some point rise up and challenge him on some of the other ramifications of this trade war. And there certainly are many people in Congress who are most disturbed at at least the retaliation in the trade war, for example Republican congressmen and senators from farm states. And there are many. The Republicans dominate in the farm states and they have many people on the ballot this fall who are worried because they see for example soybeans suddenly being the subject of tariffs in Asia and Asia eats a lot of our soybeans and we sell a lot of our soybeans to Asia. So if suddenly that trade is inhibited, not necessarily stopped of course but just cut back a little bit, that means a lot of farmers in the United States are going to be stuck with a lot of soybeans they can't sell. They've overproduced. They're going to take a loss. In some cases it may be a highly significant loss. And those Republican members of Congress and senators might just be feeling that even as soon as the midterm elections this fall.

Nick Capodice: [00:13:24] So you use the word trade war several times. How do trade wars end?

Ron Elving: [00:13:29] Trade wars can only end really with new agreements between the participant countries to cut it out. Now this can be done in a multilateral way. We have had over the years a series of meetings that went on not just you know a week or a month but for years where countries had delegations that would go to international locations for example Montevideo Uruguay was the site of some of these negotiations for a number of years it was called the Uruguay round. There was also a round of such negotiations back in the 60s that was known as the Kennedy Round because it had been initiated by John F. Kennedy when he was president and these negotiations work out elaborate and extremely detailed schedules of tariffs between countries. Or they just eliminate those schedules and say we're going to have free trade in this particular commodity, free trade in this particular manufacture. More often they're working out the details of the actual tariff schedules and those can lower tariffs or raise tariffs. And usually you're getting together to agree on lowering tariffs so as to have more trade so as to increase worldwide commerce. That's what these negotiations have been. And there is an organization there is a working document that's known as the General Agreement on Tariffs and Trade. GA T.T. often referred to as GATT and you'll hear people talk about GATT negotiations.

Ron Elving: [00:15:01] So that's how tariffs are lowered over time. That's how they're brought under control. Or you can have free trade agreements such as NAFTA the North American Free Trade Agreement or the Trans-Pacific Partnership that was negotiated with a number of Asian countries, not China. China was not part of the Trans-Pacific Partnership. In fact one could say TPP was intended to oppose Chinese efforts to impose its trade hegemony or its its domination of the economies of Asia and any anyway TPP was negotiated over the last several years and the first thing he did practically within his first week in office was Donald Trump withdrew US from the Trans-Pacific Partnership.

Hannah McCarthy: [00:15:46] Ron thank you so much.

Ron Elving: [00:15:48] Thank you Hannah. Thank you Nick.

Hannah McCarthy: [00:15:49] That was Ron Elving the senior editor and correspondent on The Washington desk at NPR.

Nick Capodice: [00:15:54] If you want to hear more Ron Elving you can check out our episode of the Electoral College at civics101podcast.org. There you can listen to all our old episodes and you can get transcripts.

Hannah McCarthy: [00:16:04] This episode of civics one on one was produced by me Hannah McCarthy.

Nick Capodice: [00:16:06] And me Nick Capodice.

Hannah McCarthy: [00:16:09] Our executive producer is Erika Janik, our team includes Ben Herny, Jimmy Gutierrez, Taylor Quimby Justine Paradiz and Jacqui Helbert. Music In this episode is by Ryan Little.

Nick Capodice: [00:16:18] Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Contest Winner: Unconventional

Presenting the winning submission for our first ever student contest! Adia Samba-Quee wrote, narrated, and cast a mockumentary about the arguments surrounding representation at the Constitutional Convention in 1787. 

Check out some behind-the-scenes shots from our taping at the Springfield Renaissance School.

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TRANSCRIPT

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

Nick Capodice: [00:00:06] Welcome to civics I'm a Nick Capodice.

Hannah McCarthy: [00:00:07] And I'm Hannah McCarthy.

Nick Capodice: [00:00:08] And as some of you may recall this spring we had our first ever student contest.

Hannah McCarthy: [00:00:12] So we asked high school students across the country to submit their idea for a civics radio piece and we got some really cool submissions.

Nick Capodice: [00:00:19] But the winner, Adia Samba-Quee from the Springfield Renaissance School in Springfield Massachusetts.

Hannah McCarthy: [00:00:25] Adia pitch says this radio play. She wrote the script, she cast a bunch of her friends and then we drove down to the Springfield Renaissance School to help her tape it. Couple of things you should know about Adia. First of all she's 15. And not only did she write this incredible script she ended up being a great collaborator and in our estimation would make a great radio producer one day.

Nick Capodice: [00:00:45] We were the lucky ones to be able to work with her. This play takes place in Philadelphia Pennsylvania in 1787 when the Articles of Confederation had been our governing document for about ten years and they had an awful lot of problems. So without further ado Civics 101 is honored to present Unconventional by Adia Samba-Quee.

Adia Samba-Quee: [00:01:05] Civics -- civics - civics -- 101!

Nick Capodice: [00:01:09] Nailed it.

Adia Samba-Quee: [00:01:10] Thanks.

Unconventional

By Adia Samba-Quee

DRAMATIS PERSONAE

NARRATOR: Adia Samba-Quee

KING GEORGE III: ~Aijah Davis~

AMERICAN #1: Brian Vo

AMERICAN #2: Lawrence Thompson

AMERICAN #3: Marcus Jean-Mary

BENJAMIN FRANKLIN: Michelle Santiago

DAVID BREARLY: Breanna Gushman

CHARLES PINCKNEY: Brookyln Jones

JONATHAN LANGDON: Kayla Fontaine

GEORGE WASHINGTON: Karina Rosado

WILLIAM PATTERSON: Jakiya Wearing

JAMES MCHENRY: Karla Rebollo

JAMES MADISON: Maya Senquiz

GUNNING BEDFORD JR: Gianna Colon

LUTHER MARTIN: Diana Asamoah

ALEXANDER HAMILTON: Janae Brown

ROGER SHERMAN: Rashel Vargas

CALEB STRONG: Pamela Ciano

WILLIAM BLOUNT: Erroyln Lord

Narrator: When you've never truly been free, and then you later wage a whole war for the sake of freedom, you're going to need to figure out how to define freedom on paper, and then making sure it applies to each and every imaginable situation you're about to face as a newly-liberated nation. Farmer George didn't take the whole "revolution" thing well.

KING GEORGE III, audibly upset: You're lost without me! Lost!!

NAR: But America didn't immediately become the young, independent nation that don't need no motherland she wanted to be. For example, ahem. The Articles of Confederation.

AMERICAN #1: We don't really have to pay your taxes, only state taxes.

AMERICAN #2: We're about to get into a land war with Indians without your permission.

AMERICAN #3: We're going to make it impossible for anyone to try and fix this document.

NAR, talking directly to Americans: I thought you all hated this document.

AMERICANS, hesitant and not at the same time: Mmyes.

NAR: *sigh* The federal government suffered a decade of this. Fifty-five delegates, the most *high pitched* white and male *normal voice* citizens were cordially invited to indulge in the privilege of re-birthing government right here in the Philadelphia State House. And like actual labor, it was painful. This brings us to Talking Point #1.

BENJAMIN FRANKLIN:   B. Franks in the building!

*cheering from Framers*

*talking head*

Nar: B Franks, is indeed, in the house. Large Benjamin, how would you describe your approach to proposals during the early days of the Convention?

FRANKLIN: What’s with the surveillance device?

NAR: My… camera?

FRANKLIN: Yes, that thing.
NAR: Oh, I’m just recording a little documentary about the beginning of our American Constitution! I thought it’d be sorta neat to archive all the debates and decisions here!

FRANKLIN: You’d rather spend your day listening to a bunch of old jabronis ramble about rules and regs? That’s really sad.

NAR: *dejected sigh, clears throat* How would an old jabroni like you describe your approach to proposals during the early days of the Convention?

FRANKLIN: Obviously, I would describe it as calm, cool, collected. The sorta levelhead   ed wisdom and guidance severely lacking in our current government.

*end talking head*

FRANKLIN: Supermajority? Sucks. One-House Congress? Sucks. The Articles of Confederation? Sucks. How are we going to change the AOC if even the method of amending it sucks?

*silence*

DAVID BREARLEY: We... keep the Articles of Confederation and work hard to improve it?

NAR and FRANKLIN simultaneously: And you are…

*talking head*

BREARLEY: David Brearley of New Jersey. That's spelled B-R-E-A-R-L-E-Y. I believe that… Maintaining a union is going to be difficult, no doubt. But no one guaranteed governing was easy.

*end talking head*

FRANKLIN: Well, David Barley?

BREARLEY: *sigh* Yes?

FRANKLIN: You're incorrect. We burn the Articles of Confederation. And put a new Constitution in its place.

BREARLEY, to self: Burning it seems to be easier than governing.

FRANKLIN: Any questions?

CHARLES PINCKNEY: What if we create a new constitution and it fails?

FRANKLIN: Then I guess I'll see you in another ten years, CHARLES PINCKNEY. Any more questions?

NAR: Jonathan LANGDON of New Hampshire raises his hand.

LANGDON: Where's Rhode Island?

FRANKLIN: Listen, kid. I may but eighty-eight years old, but I know a thing or two. If Rhode Island was afraid of a powerful federal government, let her be a coward in the comfort of her own home! We’ll be the ones with a legacy.

LANGDON: Okay.

*talking head*

NAR: JONATHAN LANGDON, why did you choose to say something so controversial… yet so brave?

LANGDON: Well, what had happened was I… didn’t know what body of water surrounded Rhode Island, and I was concerned the delegates didn’t catch a ferry in time. But I guess it’s a misnomer. No island. *sigh* Just a state. Tell FRANKLIN and I’ll hurt you.

*end talking head*

FRANKLIN: Aight. If we ignore what LANGDON just said, I think we can call it a wrap. All those in favor of revising the Articles of Confederation?

*eight Ayes and four Nays*

 See ya tomorrow.

*tap, tap, tap, snap, snap, clap*

R: Talking Point #2

NAR: While we were gone, George Washington proposed a way to prevent the federal government from acquiring too much power.

*talking head*

GEORGE WASHINGTON: I serve as a general in one war. Just one. And now whenever I walk into a room, those guys address me as sir. Someone called me His Excellency last night. I'm not as excellent as they think I am. Or maybe not as excellent as they think I think I am. Anyway, I'm trying to get three equal branches of government to keep each other in check all the time. Only thing is the executive includes a President. And if those fools elect me, I swear I'm gonna flip.

*end talking head*

WASHINGTON: Do you know how much federal government accomplished under the AoC? That's right, nothing

BREARLEY: But we di-

WASHINGTON: Nothing! Instead of one single stick, we all get three branches- stay with me, stay with me- of government. One branch is the Legislative, who writes up laws of our nation. Once we work out what Congress is actually made up of,those representatives will be responsible for proposing new laws. The executive branch ensures law is being carried out in the country. The *lowers voice* President is the head of this branch, along with his Cabinet. Finally, the judicial branch interprets the law passed by Congress. Each branch has the ability to override the actions of another; no branch is more powerful than the other.

*silence*

VARIOUS FRAMERS: WASHINGTON for President! *clapping and cheering* Nothing but respect for His Excellency! I can’t believe WASHINGTON invented equality!

WASHINGTON, flustered: Stop this right now! Stop this! I just want to rest!

PATTERSON: He’s not excellent.

WASHINGTON: THank you!

PATTERSON: That's a terrible plan. (WASHINGTON: Alright, let’s calm down!) It smells like monarchy.

WASHINGTON: If my plan was so terrible, then why did it just pass eight to four?

PATTERSON: It did? *pauses, counts to self* Ah, damnit.

*transitional sound*

NAR: The delegates also tried? to turn the 9/13 state votes needed to fix the Constitution.

WASHINGTON: If there was supposed to be a takeaway, it died.

NAR: The voice of the People. Did anyone tell you you’d make a good-

WASHINGTON: Knock it off.

NAR: Yessir.

*talking head*

Uh, CHARLES PINCKNEY of South Carolina, what do you hope to accomplish in order to soothe the rocky process of passing laws? *clapping* Hello? PINCKNEY?

PINCKNEY, startled: Huh? What?

NAR: You asked for an interview. I'm giving you an interview.

PINCKNEY: Oh. Yeah. Sorry, I'm a little nervous. *awkward giggling*

NAR: *forced pity laughter* Just answer the question.

PINCKNEY: What was the question?

*silence*

PINCKNEY: We all thought supermajority was a good choice 6 years ago. I was like, "9 out of 13 states? We get along pretty well, this won't be too bad. We'll regularly see at least 9 of us in Congress agree to a law in order for it to pass." And then they were like, "Um, being difficult is so funny, let's do it for 6 whole years." And I was like, "No, don't do that, stop." And they were like, "Whatever loser, that's why no one loves yo…" *clears throat*

NAR: PINCKNEY, you should probably talk to someone about that.

PINCKNEY, sounds zoned out: Probably.

NAR: Can we edit that out?

*end talking head*

PICNKEY: We need to allow laws to pass with a majority vote.

FRANKLIN: Simple majority enough! Get it guys? The majority… bah. All those opposed?

LANGDON: Me!

FRANKLIN: Damnit, Langdon !

LANGDON: Under PINCKNEY dookie proposal, (PICNKEY: JONATHAN, that's not really funny) 51% would be enough to pass a law. What if almost all of us disagree with a law? You expect me to tolerate it because it's a fact of life not everyone is going to agree with me?

PINCKNEY: That would be nice.

LANGDON: *mocks Picnkey's voice* That would be nice. Disgusting. That doesn't ring true with my understanding of freedom.

NAR: Gag.

LANGDON: We will not be ens-

PINCKNEY: LANGDON tried to say the S word!

 *stir of chatter from the delegates*

WASHINGTON: Chill bro, chill chill chill Jon just chill.

FRANKLIN: Do you patronize your wife with that mouth? *retches* Strike that comment from the record, MADISON.

MADISON: *draws line on paper*

WASHINGTON: I am so sorry you all had to hear that.

NAR: Rule number one of the Convention- don't ever say the S word.

Talking Point #3: Making the new constitution easier to amend. Here comes Maryland's JAMES MCHENRY, standing his ground.

MCHENRY: If we don't make this new Constitution into something that can be fixed or change, we're going to find ourselves in the exact same place in a few years. I am not perfect, DAVID BARNEY is not perfect, WILLIAM PATTERSON is a mess, along with the entire state of New Jersey (WILLAIM PATTERSON says "Hey!" in the background), so we are okay with the fact this constitution won't be perfect. I call for the amendment process to be changed!

MADISON: How, exactly.

MCHENRY: I don’t know, JAMES MADISON. Something with fractions, maybe?

JAMES MADISON, scratching quill to parchment: *condescending chuckle* Fractions… based on his oration skills and overall unremarkablilty-ness, I am most certainly the superior JAMES.

NAR: Yes, JAMES MADISON has declined any interviews with me from now until "he's ready" because he wants to take notes for himself about the various delegates. Nerd.

Nar: MADISON rises from his seat. He finally has something to say to me.  

*talking head*

Nar: What kind of things would you want the audience to know about you, M adison?

MADISON: A magician never reveals his secrets.

Nar: …you're not a magician, you're just a Framer.

MADISON: …A framer never reveals hi-

Nar: Listen, are you gonna tell us your proposal or not, because we have plenty of delegates behind you who'll be willing to share.

MADISON: *pause, gets uncomfortably closer to the microphone* Basically-

Nar: You don't have to be this close to the mic.

MADISON, ignoring the NARRATOR: You know how Virginia is the biggest state in the country?

NAR, irritated: Sure.

MADISON: Well, when Congress is voting for legislation to be passed, our votes should count for much more than like, Delaware. Because, well, Delaware.

NAR: Delaware was the first state admitted to the Union.

MADISON: That's their only bragging right.

NAR: (beat.) Fair

MADISON: I simply believe representation in Congress should rely on population alone. Bigger state, bigger voice, bigger choice.

NAR: That'll be, uh, interesting to witness.

*MADISON's footsteps, signifying he left the confessional room, also, end talking head*

The room's reaction was, to say the least, interesting. Here is Talking Point #4.

MADISON: Fellas, I have an idea. Does anyone know how many people Virginia ha-

WASHINGTON: 747,000. Give or take.

MADISON: Right. And how many people live in your state, BEDFORD?

NAR: GUNNING BEDFORD, JR-

BEDFORD: Hi!

NAR: -represents the *hesitation* state of Delaware. He declined to explain his overall goal here at the Constitution, which leads one to assume he has no overall goals here. According to MADISON's notes, that is.

BEDFORD, with difficulty: 58,000.

MADISON, unknowingly being a butt: 58,000 and?

BEDFORD: *mumbles* 94.

MADISON: In what world should we be represented by one single Congressman when we are 12 times larger?

*Agreement from the larger state delegates*

MADISON: I'll tell you what world- England.

*more snaps and contented vocalizations*

MADISON: In *stomps foot* this nation, in this *weird, exaggerated pronunciation* constitution, states should be represented fairly *interrupted by almost-comical reactions from larger states, maybe church-y organ playing behind* which means representatives should reflect state populations.

BEDFORD: What you're trying to say is, Delaware should have one representative-

MADISON: -and we should have twelve.

*The larger states begin to chant ‘we should have 12' about four times, James yells over them and tries to explain that the twelve only applies to Virginia, not the rest of them, yadda yadda yadda*

NAR: This is the most smoothly I've ever seen a decision go down. I'm actually impresse- *WILLIAM PATTERSON jumps out of seat and startles NARRATOR*

*talking head*

Uh, sir, SIR! You interrupted me!

PATTERSON: Permission to speak?

NAR: *sucks teeth* Permission granted, or whatever, I don’t even care anymore.

PATTERSON: Hey hi, it's New Jersey's very own WILLIAM PATTERSON and I'm calling bull. This is not okay? Who thinks this is okay? Like, seriously, is that what chanting does to the Foolish?

Nar: I… can't answer any of those questions.

PATTERSON: I don't expect you to. This is not the spirit of our system. I thought the whole point of us coming together as a union, was that we're all going to be equal parts of our country. I've had enough New Jersey slander.

Nar: Oh, brother.

*end talking head*

PATTERSON: Gentlemen!

Nar: A hush blankets the crowd.

PATTERSON: Virginia only wants representatives to be decided by population size because it means states like them would suddenly have more power. My state of New Jersey is just as important as any other state, as even Delaware! We should have just as much as a say in the government as they do.

BEDFORD: Can- can you all leave Delaware out of this?

MADISON: Yes, you should have just as much a say in the government! But clearly there's something important about my state, so it's sensible for our votes to be prioritized. We're doing something right.

LUTHER MARTIN: Meh.

NAR: That indifferent ‘meh' was Luther Martin of Maryland, recipient of the ‘least rhythmic-sounding name in the English language' award.

MARTIN: Perhaps MADISON is right, MCHENRY. Some of the greatest leaders in our short history- looking at you, General.

WASHINGTON, sheepishly: Oh, stop.

MARTIN: Leaders come from these populated countries. Influence is about status, after all.

MCHENRY: See that door over there, Martin?

MARTIN: It's a finely constructed door.

MCHENRY: Could you show us how it works, please?

MARTIN: Certainly. *gets up to turn door handle* You simply rotate this knob and push *door sounds* open, and then close it and now I'm locked outside the room.

MCHENRY: Now you're locked outside the room, do you know why you're locked outside the room?

MARTIN: *silence*

NAR: *Whispers* For being the dissenting opinion within-

MARTIN: Oh, for being the dissenting opinion within my own group.

MCHENRY: Yes.

*talking head*

MCHENRY: *beat* I only kicked him about because he agreed with the other James.

*end talking head*

NAR: Tensions are at an all-time high.

LANGDON: Excuse me, but as a proud New Hampshirean-

NAR: Hampshirean is not a real word.

LANGDON: -I stand with New Jersey's Plan. If you are from a small state and you are okay with representation based on population, you are willingly giving up your speech in this nation. New Hampshire cannot and will not accept this if the proposal is passed. All the large states are going to do is gut our power and leave us unable to make decisions. In fact, we can become our own country, and not ally with you in any way. So, ha.

HAMILTON, knowingly being a butt: What if that happens?

MCHENRY, PATTERSON, and BEDFORD, JR simultaneously: Come again?

FRANKLIN: Get ‘em, Alex.

WASHINGTON: Why does everyone here enable gross behavior?

NAR: It’s the 80s.

HAMILTON: Perhaps we’re doing this to get rid of the weak links. Natural selection taking its course. To a point where the only states worth listening to are the populous ones. *slow and deliberate* What are you going to do about it?

LANGDON: *whispers to PATTERSON, AND BEDFORD*

What can we do about it?

PATTERSON: I… don't know.

LANGDON: What do you mean you don't know, you're the one who came up with this idea!

PATTERSON: I didn't think I'd get this far!

BEDFORD: We're very much outnumbered. If we do a vote now, there goes our Congressional representation. But, I have an idea. *whispers unintelligibly, accompanied with audible responses from PATTERSON*

PATTERSON: *to rest of Convention, as awkward and uncoordinated as humanly possible* If this proposal passes, our alliance will implode. BOOM. That's the sound of our alliance. All of us small states will leave. Maybe we'll be our own countries. Maybe we'll ally together. But we will not stay a part of a country that does not treat us like equals.

NAR: The room begins to descend into chaos, when, lo and behold.

ROGER SHERMAN: BOTH!

*talking head*

SHERMAN: My name is Roger Sherman and I represent the beautiful state of Connecticut. I was doodling on my parchment because this Constitution stuff gets a little stressful for the old noggin, but I was like, "Why don't we incorporate both ideas."

NAR: You seem excited to announce this compromise.

SHERMAN: It's a Great Compromise. I'm quite proud of it.

*end talking head*

SHERMAN: Let's Make a Compromise! *triumphant sound effect* How about a two-house legislature? One house will follow the Virginia Plan and will give each state a number of representatives based on population size. We can call that the House of Representatives. And then we will have a second legislature called the Senate. That one will allow each state to elect 2 representatives, regardless of size. That means each "house" of Congress will have to vote on a proposal before it becomes a law.

*a collective wave of ahhhs follow*

CALEB STRONG: *passive-aggressive laughter*

*talking head*

NAR: This is CALEB STRONG of Massachusetts. First of all, are you okay, STRONG?

STRONG: No.

NAR: May I ask why?

STRONG: *deep breath* I'm going to have to say the s word.

NAR: Dear lord. Good luck out there.

*end talking head*

STRONG: Excuse me? Uh, hi, thank you for your hard work but I hate this. Are you telling me in the House of Representatives, slav-

NAR: STRONG is cut off by wailing and hollering. I love my job.

BLOUNT: He said the S word! Do not say the S word! That is not okay.

STRONG: But isn't that what y'all do? Partake in the slave tr-

WASHINGTON: Boy, what is wrong with you?

PINCKNEY: Did we not say we weren't going to use the S word? So can someone tell me why I'm hearing the S word?

NAR: STRONG attempted to bring up slavery at the Constitutional Convention. South Carolina has the largest domestic slave market in the United States. You can see the problem now.

PINCKNEY: It's not truly *with great disgust* sla-ver-y per se, it's more of a nonconsensual farming.

*Framers assent to PINCKNEY's synonym for slavery*

STRONG: Are you telling me that in the House of Representatives, *emphasis* slave states *audible wince from few delegates* are going to have a lot of power in the government because they are counting their *more emphasis* slaves as citizens they are representing? They should not be able to control other human beings.

NAR: He's on the right track. We could finally prohibit slavery in America.!

STRONG: Slaves cannot be counted as part of a state's ‘population of citizens, -‘

NAR, anticipation: Caleb, yes!

STRONG: They must be counted as property!

NAR, horror: Caleb, no!

*brief, loud chatter between slave and non-slave states*

BEDFORD, above all the chaos: We're gonna leave again!

*chaos increases in volume ever so slightly*

SHERMAN: Guys. Hey guys! Gu- LISTEN UP YOU DIRTY CHAMBERPOTS!

NAR: Woah.

SHERMAN: *resorts back to sunny disposition*

Let's make a compromise! *distorted, off-key triumphant sound*

*delegates begin to grumble*

I SAID LET'S FLIPPING COMPROMISE!

*pause* Thank you.

BEDFORD, PATTERSON, BREARLY, LANGFORD, I totally get that you're upset. I'd be too. Why don't we agree slave states can count 3/5ths of their slaves towards their population? They can count most of their slaves, but not all of their slaves towards how much power they get in the House of Representatives.

FRANKLIN: I don't see a problem

NAR: Except the whole slavery part but okay.

FRANKLIN: All those in favor?

*Unanimous aye*

NAR: *beat*…Sherman never said all of his compromises were great.

*tap, tap, tap, snap snap clap*

Talking Point #5

*talking head*

NAR: I am sitting here with undoubtedly rookie of the year, in terms of Congressional approval, ALEXANDER HAMILTON. Now HAMILTON, what exactly do you plan to do after this one-hour break?

HAMILTON: I am planning to
propose… a college, of some sort. The electoral college.

Nar: O…kay, whatever that means…
I wish you luck.

*end talking head*

WILLIAM BLOUNT: I don't know who the hell he thinks he is!

Narrator, over WILLIAM's voice:
WILLIAM BLOUNT of North Carolina.

Blount: Bastard sails in from the
Carribean, ‘cuz of some *mockingly* scary wind and water!

N: HAMILTON is getting an ear
chewing from WILLIAM BLOUNT of North Carolina. And it's called a hurricane.

HAMILTON: You really expect your average farmer in the middle of nowhere to be informed enough to always choose the best president?

Nar: He just proposed a barrier between the people and the election of the President. A college of some sort. The electoral college.

BLOUNT: Was it not the judgement of the people to bring us all here to this room to try and figure out what to do about our messed up Constitution? You didn't doubt their wisdom then?

HAMILTON: You're a messed up Constitution.

*grumbles and groans from delegates- improvisation*

Nar: Comeback game is quite strong.

*someone yells comeback game weak under narrator*

NAR: And how do you feel about ALEXANDER HAMILTON, BLOUNT?

BLOUNT: I don’t care for being told what to do by the electoral college.

HAMILTON: All we have to do is use the number we settled on for Congress to see how many electors each state gets. *Booing and jeering from delegates* Don’t boo me, I’m right.

BLOUNT: (to delegates) No he’s not. (to Hamilton) What we need is to trust the will of the people, since that is what it means to be a true democracy.

HAMILTON, increasingly frustrated: No, no no, you're not listening. What if the people choose an immoral, uneducated, or unprepared candidate who would lead this country off a cliff?

BLOUNT, incredulously: If we're lucky enough, maybe we'll elect a man who's all three.

[Pause.]

PINCKNEY: Guys—let's compromise!

NAR: And why are you so eager to offer solutions?

PINCKNEY: I just want to see a real nice country come together. And if compromises are the way to do it, then why not?

BLOUNT: Yes, because the last Compromise went so smoothly.

NAR: Ouch.

PINCKNEY: I hate BLOUNT. He is very mean to me, and I don't like it.

NAR: Welcome to America.

BLOUNT: Electoral college? More like a safety school!

*gasps from delegates, a nice, crisp WORLDSTAR*

HAMILTON: You Yankee. *silence, unsettling shuffle of feet and pens… quills…*

Brearley: Is… is this the opposite of a filibuster?

NAR: Silence? I could live with that.

NAR: 3 whole minutes of silence passed, and I discovered I couldn't live with that. Luckily, neither could they.

HAMILTON: Dad-

WASHINGTON: Wrong!

HAMILTON: Tell Blount I'm going to run a vote and he's going to have to put up with it, and that he's a coward.

WASHINGTON: BLOUNT, HAMILTON-

BLOUNT: I heard. Your Excellency-

WASHINGTON: Gross!

BLOUNT: Tell HAMILTON I'll rest my case as long as he agrees to never look in my direction for as long as he lives.

NAR: It won't be too long.

FRANKLIN: Are you boys done?
Because I'm about ready to secede from this room. Have we come to a decision?

HAMILTON: BLOUNT and I both
believe the electoral college is an integral part of democracy and we would be dunces to let this idea slip between our fingers.

BLOUNT: Hey, wait a-

FRANKLIN: Hope this doesn’t backfire. All those in favor of an electoral college?

*various ayes and nays, one particularly bitter aye from BLOUNT*

FRANKLIN: Oh goodie! I pronounce this Convention- convened! Go forth and be merry.

*chatter and background noise*

NAR: If you had one word to describe this experience, from May to August, what would it be?

HAMILTON: Fulfilling.

BLOUNT: Pathetic.

STRONG: Spicy.

WASHINGTON: Complicated.

MADISON: Exciting.

PATTERSON: Insulting.

MARTIN: Brief.

LANGDON: Mediocre.

BEDFORD, JR: Satisfying.

MCHENRY: Weird.

FRANKLIN: Savory.

ELSWORTH: Disrespectful.

SHERMAN: Cooperative.

PINCKNEY: Stressful.

HOUSTON: Boring.

BREARLEY: *beat* Unconventional.

NAR: Unconventional.

BREARLEY: See, men from div-

NAR: No, thank you, Brearley.

BREARLEY: Oh.

FIN.

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Made possible in part by the Corporation for Public Broadcasting.

The Draft

When you hear 'the draft' you might think about the Vietnam War... but the history of compulsory military service goes all the way back to before the Constitution was written. In this episode, we start from the beginning: How did conscription change over the years? When was the first national draft law? Who was most likely to be drafted? And the big one: Will the draft ever come back?

Answering those questions and more is Jennifer Mittelstadt: professor of history at Rutgers and the Harold K. Johnson Chair of Miltary History at The U.S. Army War College.

Do you believe in the power of an informed citizenry? Click here to support Civics 101 today!

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TRANSCRIPT

Draft Announcer: [00:00:19] September 14th. September 14th, 0 0 1.

Nick : [00:00:21] I'm Nick Capodice.

Hannah: [00:00:22] And I'm Hannah McCarthy.

Nick : [00:00:23] And this is Civics 101, the podcast refresher course on the basics of how democracy works.

Hannah: [00:00:27] And today's episode is:

Nick : [00:00:29] The draft

Hannah: [00:00:30] The draft.

Draft Announcer: [00:00:30] April 24. April 24 is 0 0 2.

Hannah: [00:00:37] What dp we want to know about the draft?

Nick : [00:00:39] I want to know when it started and when it stopped. And what can cause it possibly to reinstate it again.

Hannah: [00:00:44] Yeah and I want to know how you can get out of it if you can't get out of it.

Draft Announcer: [00:00:48] December 30th 0 0 3.

Nick : [00:00:53] Who can say it starts up again? Who can start up the old draft engine again?

Hannah: [00:00:57] Oh yeah, and does it have to be the president?

Nick : [00:00:59] And if we do start it again will women be included?

Hannah: [00:01:04] That's a good question.

Hannah: [00:01:08] So to learn more about the draft we got in touch with Jennifer Mittelstadt, she's a professor of history at Rutgers and the Harold K. Johnson chair of Military History at the U.S. Army War College.

Nick : [00:01:19] And you know what we learned?

Jennifer Mittelstadt: [00:01:20] Yeah I actually I have a chair. They actually gave me a chair, like an engraved chair.

Hannah: [00:01:26] All right so let's get started.

Nick : [00:01:27] So when I turned 18 I did what all males living in the U.S. have to do and this is native born, immigrant, documented and undocumented, which is I went and signed up for the Selective Service. Can you tell me what I did?

Jennifer Mittelstadt: [00:01:41] Yes I can tell you what you did.

Nick : [00:01:44] Ok Good.

Jennifer Mittelstadt: [00:01:44] That it's actually the product of a law passed in 1980 by President Jimmy Carter and the Congress, which sort of reinstituted the Selective Service after the suspension of the draft in 1973. And what that asks young men in the United States 18 to 25 to do is to upon reaching age 18 sign up for the Selective Service. And we do not currently have an active draft but with the Selective Service Act of 1980 does it make sure that there is a plan in case there is a need for a large mobilization that the U.S. government knows where those 18 to 25 year old males are, that they are signed up and they can be mobilized in case of an emergency.

Nick : [00:02:28] OK. And I have so many questions about how we got here. And I have questions about words like conscientious objection, the draft lottery, draft cards, what it means when someone's number comes up. And in my mind those are all tied to the Vietnam War. But to get there I guess you might make sense to take us from the beginning of the draft in America. Could you do that?

Jennifer Mittelstadt: [00:02:49] There's always been some form of compulsory military service even if you go back all the way to the settlement of Jamestown and the Plymouth Colony, eligible able bodied males were required to perform some kind of military service if necessary and they were required to train for that as well. What happens during the Revolutionary War is that for the very first time, with a Declaration of Independence Americans are forced to consider what compulsory military service might mean in the context of a new nation.

[00:03:22] What are the obligations of citizens not sort of to their local fellow citizens. But what does it mean to the nation. And it won't be until the civil war that we really see a national draft law.

Hannah: [00:03:37] What were the compelling factors. I mean I'm presuming simply not enough men to fight. But what did that look like? Why did they make that decision?

Jennifer Mittelstadt: [00:03:46] Well that's right. As a military leader one of the things that you have to think about is how can I best win this conflict and of course having a fully staffed, fully manned army is one important consideration. So in 1862 in the Confederacy they instituted a draft and in 1863 Lincoln did in the north, they were wildly unpopular however.

Nick : [00:04:11] On both sides or just the...?

[00:04:13] On both sides they were wildly unpopular. They were unpopular in the Confederacy and the union for some of the same reasons. And this brings us to one of the other major questions besides what do citizens owe their government that surrounds the draft and that question really is is the draft fair. And so in both the Confederacy and the union in the 1860s you were permitted to buy your way out or purchase a substitute. And much of the fighting fell to those and we might think of as sort of the lower sort. That might have been the term at the time will be today might think of as the working classes agricultural classes...

Nick : [00:04:54] And foreign born as well right?

Jennifer Mittelstadt: [00:04:57] Yes there are still even today being foreign born does not preclude you from military service. Indeed the draft riots which were which took place in New York City in 1863 were some of the most violent episodes in the history of the draft. And there you were actually looking at foreign born Irish and German immigrants to the city whose sentiments against the war and actually against African-Americans had been stoked since 1859 1860 by anti war Democrats in the city when the draft law was passed in 1863 they erupted in riots both against the draft officers but also against African-Americans across the city.

Hannah: [00:05:38] So when people were buying themselves out of the Civil War was it considered at the time unpatriotic to get yourself out of the draft?

Jennifer Mittelstadt: [00:05:46] It was not. I mean if you recall with the founding of the nation only propertied white men were able to vote for many years and it wasn't until the Jacksonian era that the vote was sort of spread out to non property holding white men. So allowing for that out wasn't necessarily considered at that time to be unpatriotic but it was resented by though it was resented nevertheless by by the working and lower classes.

Nick : [00:06:16] So how did things change in World War One, The War To End All Wars?

Jennifer Mittelstadt: [00:06:20] World War One is really when the modern national draft takes form. So in 1917 Woodrow Wilson reluctantly passes what we will call the 1917 Selective Service Act and there are a few things to note about that. So first of all the world draft, the word conscription, the word compulsory, is nowhere really in the title or description and that's by design. The Selective Service Act is meant to sort of bring a national draft but avoid as much political controversy as possible. So what happens, that means there are no more substitutions an d buyouts allowed.

[00:07:03] It means that there will not be the national government or the military making the decisions about who's in and who's out but rather those decisions about who will be drafted or deferred to 4000 local Selective Service boards. So they're looking for men who are of what we would think of as sort of sort of prime fighting age. They are trying to avoid married men. These people need to be able to meet basic health requirements they can't be too sick they can't be disabled they also can't be criminals.

Nick : [00:07:40] But it sounds like it sounds like a mess Jennifer, 4000 different draft boards? Like how on earth can you police that there's fairness going on and each one of these?

Jennifer Mittelstadt: [00:07:48] That's a really good question and I don't know how except for that the members of the board are sworn to uphold the standards of the of the National Selective Service Act. But I think you might be right to wonder about the kind of discretion that might have operated at the local level and that might get us into the territory of people who are openly saying at the local level. I do not wish to serve. So for the very first time in 1917 the law allows for conscientious objection. That basis however is on religious or moral grounds and you have to have a very strong case for it. It can't be on political grounds. It can't be on philosophical grounds.

[00:08:33] So I think there are cases that we could look at at the local level where someone might have presented themselves in one locale and said I object to this war and the local board may have allowed for an exemption on the basis of conscientious objection. That may not have been allowed in another local board.

Hannah: [00:08:54] So were things looking approximately the same come World War II? Was the draft looking the same were these conscientious conscientious objectors looking the same?

Jennifer Mittelstadt: [00:09:03] Yes that law was looking very much the same. But what's really interesting about World War II is that the scope of the mobilization. I mean just the vast need to bring people into military service very very quickly makes that period of time probably the period in which the draft operated in its most fair manner. In fact in which military service operated in its most representative manner... So one thing you might do is just look at the numbers. World War 1 didn't require the same mobilization the Selective Service Act eventually mobilized around 3 million people in World War 1. Well in World War II, 16 million. Of those 16 million 10 million were purely drafted.

Hannah: [00:09:54] Are you saying that that's what made it fair? That there were just fewer conversations about well this guy gets and this guy doesn't get it it's sort of like y'all got to go?

Jennifer Mittelstadt: [00:10:03] Yes. You just couldn't use as much discretion to maybe let out you know the nice kid who was already in college or the kid who is about to take over the family business. Most people were pressed as far as they could into military service because there wasn't the leeway to allow them out./.

Nick : [00:10:24] Who orders the draft? Is it the president, is it the president with the Congress who makes that decision?

Jennifer Mittelstadt: [00:10:29] It's the president with the approval of Congress. Who initiated the Selective Service Act.

Hannah: [00:10:35] Okay this is probably a good time to take a quick break. Civics 101 we'll be right back.

Hannah: [00:10:40] Welcome back to Civics 101. Today we're talking about the draft with Jennifer Mittelstadt.

Nick : [00:11:00] So we started this episode by going back to the beginning of American history and the draft. So let's talk about the era that most people probably associate with the draft. My father was drafted went to Vietnam, Hannah's uncle was drafted to Vietnam. How did the draft operate during the Vietnam War?

Jennifer Mittelstadt: [00:11:17] So the Vietnam draft is the product of the reinstitution of the draft. It went away for a brief year from 1947 at the end of World War II to 1948 when the U.S. decides to reinstitute it because of the advent of the Cold War and concerns that the U.S. might have to mobilize for another war. So during that period the U.S. does need a large standing army but not nearly as large as what it needed in World War II. So the Selective Service Act actually starts to encompass these provisos and limitations on who will actually be drafted and who won't. So it's saying for example if you're in college and you're on your way to becoming an educated citizen who can then go into the workforce or go into education and helped protect national security through educating children well then you might be exempt from the draft. So when the Vietnam war expands during late 1964 and especially 1965, those sort of channeling programs have actually made it so that the people who are most likely to be drafted by that time are those who are not in college.

[00:12:36] Those who have high school diplomas in fact those who are working. Working class jobs. And so that period of the draft in the beginning the first three years of the Vietnam War actually witnesses the kind of reintroduction of a less fair basis of selective service. So in 1968 this all comes to a head. And of course that's an election year. And every single candidate running for office that year comes out in opposition to the draft and as a result what you see upon the eventual election of Richard Nixon in 1968 those exemptions start to fall away and the U.S. turns instead to a basic lottery. You cannot be exempted based on your education based on whether or not you're married. The Vietnam draft really does reach out to those beyond the working class and into the middle classes.

Nick : [00:13:43] Wow. So it seems that in this unpopular war and this unpopular idea of a draft in 1969 we kind of get to the most fair so far?

Jennifer Mittelstadt: [00:13:51] Well I think World War II if we look at the demographics still stands ultimately as the most representative period. But after 1969 with the institution of the lottery those inequities in the overrepresentation of African-Americans and the sort of gross overrepresentation of working class Americans are largely eliminated. Interestingly enough though once the white middle classes realized that they really will not be exempted from this. This is when the serious pressure to end the war is amped up and the war is brought to a close. So it is precisely the thing that makes the draft fairer that makes the war more unpopular than it ever was.

Nick : [00:14:41] Can you tell me about that 1969 lottery? I Remember something was on live TV. How did that work?

Jennifer Mittelstadt: [00:14:47] What they did was more or less pick out of a... I guess it wasn't a hat. I guess it was um...

Nick : [00:14:55] A glass jar, I saw a video of video of blue easter eggs in a glass jar, 366 easter eggs.

Jennifer Mittelstadt: [00:15:02] Little blue balls. Right. And you know much the same way what we now think of of you know money lottery. Right.

Nick : [00:15:12] Or Bingo, yeah.

Jennifer Mittelstadt: [00:15:13] Bingo. Right. They reached in and they picked out a ball and that ball had a date on it. So when someone said their number was up what they meant was either that their birthday had actually been chosen on that initial blue ball or that their birthday was very close to that. And so going in chronological order their birth date would be one of the next ones that would be called in order to fulfill that particular draft need at that particular time.

Nick : [00:15:46] So I'm picturing a truck going to Fort Bragg and everybody's on got the same birthday. Isn't that strange? Think about it.

Jennifer Mittelstadt: [00:15:53] I guess, I guess that might be right.

Hannah: [00:15:57] So where are we today in terms of the draft. As Nick said when he turned 18 he had to register for selective service. Is it lying dormant right now? And what would it take to bring it back?

Jennifer Mittelstadt: [00:16:09] Well the unpopularity of the draft during Vietnam is one of the things that led to the end of the draft in 1973. So Richard Nixon upon election not only sort of gets rid of the exemptions and switches over to a lottery but he also puts the U.S. on the path toward the end of conscription. He creates a commission on what he will call the all volunteer force. And what that commission argues is that a draft force is antithetical to concepts of us liberty and it will be eliminated. And from that point on the U.S. will staff its military fully through recruitment and voluntary enlistments. And so since 1973 that is in fact what the U.S. has had. It was that 1980 law that Jimmy Carter put in place that reinstituted as a backup as a sort of safeguard the selective service in a sort of just in case mode. But at the same time that has never been activated. So Nick might have registered but Nick and no one like him who's registered has ever been called into service since then.

Hannah: [00:17:28] Is there any chance that women would have to be a part of the draft in the future if we entered another huge war?

Jennifer Mittelstadt: [00:17:35] So because the combat exemption has been lifted for women it is likely that women in the not too distant future will be required to register for selective service. Indeed before Trump was elected there was a bill working its way through Congress that was going to require women to do just that. After Trump's election that was pulled. But I believe that there are people who have tried reintroducing it since then and it's an open question as to what will happen.

Nick : [00:18:08] Do you think the draft could ever happen again in America?

Jennifer Mittelstadt: [00:18:12] Well I think historians are really bad predictors of the future. So I'm I'm really not sure what will happen but I would not put it outside of the realm of possibility. If you think back to the beginning of the nation and you think about that debate that sort of went on about whether or not compulsory military service was sort of I guess the essence of citizenship something that in a free society you owe to your country or whether or not it's the kind of opposite and compulsory military service is this sort of tyrannical imposition against the liberty of free citizens. I think for many Americans the switch to the all volunteer force sort of settled that question and the answer was You don't owe anything and there are people who will volunteer. But I think in fact those who are still thinking about national service whether in the military or in the military and in other places are sort of still asking that question saying that perhaps you know one measure of citizenship is the degree to which you serve fellow citizens and the nation itself.

Hannah: [00:19:26] That was Jennifer Mittelstadt a professor of history at Rutgers and the Harold K. Johnson chair of military history at the U.S. Army War College.

Nick : [00:19:34] If you haven't gotten a chance to watch the video of the Vietnam lottery you should. It's pretty wild. It's got some blue easter eggs. We'll post a link in the show notes and at our website Civic's 101 podcast dot org. This episode was produced by Taylor Quimby our executive producer is Eric Janik Our staff includes Jimmy Gutierrez, Justine Paradis, and Jacqui Helbert. Music in this episode by Sara Alfonso and Silicon Transmitter. 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 Federal Register

Today a listener opens up a rabbit hole, and we immediately jump down it. We're learning about the Federal Register, a dense, cryptic document published every single day that records all the activities of the Executive Branch. It's a lot. Joining us is Oliver Potts, the director of the Federal Register, along with Kevin Kosar of the R Street Institute and Nick Bellos of the Regulatory Review.

Show your support for Civics 101. Click here to donate.

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TRANSCRIPT

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

Civics 101

Episode 127: The Federal Register  

Nick Capodice: [00:00:10] Hey, is this Jennifer?

Listener: [00:00:10] Yes!

Nick Capodice: [00:00:11] Hi, this is Nick calling from Civics 101.

Hannah McCarthy: [00:00:14] Hey Jennifer I'm on the line too, this is Hannah.

Nick Capodice: [00:00:18] So Jennifer you sent us an email asking us about a certain civics thing can you tell us what that is?

Listener: [00:00:25] Yeah it's the federal register. And I was wondering, what is the Federal Register, who uses it, how, and why?

Nick Capodice: [00:00:34] So I've done a little research on the Federal Register and I'm still in the dark.

Listener: [00:00:38] I looked at the Web site and it just says, the journal for the government and I don't know what that means. Are they writing down. Oh I saw senator so-and-so talking to senator so-and-so today? What is it?

Nick Capodice: [00:00:54] Do you think there is like an advice column in there. Ask Melania.

[00:01:01] So we're going to try to get to the bottom of this and try to find someone who knows about the Federal Register and maybe somebody who reads it every day.

Listener: [00:08:34] That sounds great.

Ben Henry: [00:08:34] Hey guys. Before we talk about the Federal Register I have a gift for you.

Nick Capodice: [00:08:38] What is it.

Ben Henry: [00:08:38] Why don't you open it up?

Nick Capodice: [00:08:38] It's a slim volume... It's our very own Federal Register! Look at the color of these pages.

Hannah McCarthy: [00:08:38] It's that very thin paper that you should be able to rip out and hand over to a teacher. My goodness what's in it.

[00:08:44] So this thing is printed every single day.

Nick Capodice: [00:08:46] Every day. 30000 subscribers in print but much more on digital. Despite literally holding this thing in my hands, I'm still struggling to figure out what it is and why the government publishes it every day.

Hannah McCarthy: [00:08:56] Yeah I find it totally perplexing.

Nick Capodice: [00:08:58] Now I have a couple of experts who can hopefully illuminate this beautiful document. One of them is Oliver Potts. He just happens to be the director of the Federal Register. He's in charge of the whole shebang. So first off what is this document in my hand?

Oliver Potts: [00:09:11] The Federal Register is a publication in print and digital format and it's the official source for government regulations.

Kevin Kosar: [00:09:19] And it basically tells you what the executive branch of our federal government is doing and what it's planning to do.

Nick Capodice: [00:09:25] That's Kevin Kosar. He's vice president of policy at the R Street Institute, a think tank. And he said any time the executive branch wants to create any kind of new regulation they have to announce it in the Federal Register.

Hannah McCarthy: [00:09:37] Ok so I wonder if we could just take a quick tour through the federal register itself like what's actually in it.

Oliver Potts: [00:09:43] Well I brought one too. So the first documents in it are presidential documents. And so there is a proclamation here. We also have executive orders. You might have read in the news about the president making it easier to fire federal employees. So there's that executive order, the official text of it is also here with the president's signature and the date.

Nick Capodice: [00:10:02] Now this is crucial, presumably, for anyone who's keeping tabs on what exactly the executive branch is up to nowadays. Here's Nick Bellos. He's managing editor of a publication called the Regulatory Review.

Nick Bellos: [00:10:13] When I think there are a lot of headlines about how executive agencies federal agencies are perhaps doing or trying to undo the policy measures by the Obama administration the Federal Register is actually going to show you just how the executive branch is doing that.

Oliver Potts: [00:10:28] And then there are proposed rules and public notices and final rules.

Nick Capodice: [00:10:33] Now here Hannah is the real meat of the Federal Register. These are all the new regulations that the government is thinking about.

Oliver Potts: [00:10:41] The proposed rules are put into the federal register because the federal government is required to let the public have input into the rulemaking that they're doing.

[00:10:50] And so there's a notice and comment process in the Federal Register is an important part of that.

Nick Capodice: [00:10:55] To clarify everything that's in the Federal Register is coming out of the executive branch which is not as I once thought just the president and the vice president.

Hannah McCarthy: [00:11:04] OK. I thought that too.

Nick Capodice: [00:11:05] Yeah the executive branch is also all of the agencies, we're talking the EPA, the USDA, the Department of Education. Those also fall into the executive branch and that's what's in the register.

Hannah McCarthy: [00:11:13] OK. So no wonder it's so long and complicated. It's dealing with all of those agencies

Nick Capodice: [00:11:18] So it's not the Congress and it's not the judicial branch. Those guys have their own records. The next thing I wanted to know from Oliver Potts is who actually reads the Federal Register.

Oliver Potts: [00:11:25] It sort of boils down to lawyers and lobbyists. If you're an attorney practicing before a regulatory agency if you have a business that's regulated by a federal agency then you're very interested in what is being published in the Federal Register. It is however geared towards any citizen being able to participate in the rulemaking process.

Nick Capodice: [00:11:44] Now I know for a fact that our listeners have opinions about the government and yes we read every e-mail that you send to us. The Federal Register is designed for you so that you can comment directly on regulations while they are still being made.

Hannah McCarthy: [00:11:56] Oh that's really cool. Honestly I thought a lot of this was kind of happening in the shadows. So it's really cool to hear that there is this publicly accessible document that allows us to be involved.

Nick Capodice: [00:12:05] Yeah it's like. Well you can complain about something on Twitter or leave a comment on Facebook. You can just comment on this policy that's just about to happen.

Oliver Potts: [00:12:11] I pulled a couple of examples of things where people might want to be involved directly. Here's a notice from the Department of Energy about an open meeting and if you look a little further into the supplementary information there's a bullet list of what they're going to talk about at the meeting. And I just highlighted update on Radioactive Waste Management complex. If I lived in Idaho where this board meets and where it has jurisdiction that's something I might be interested in. This is a hands on direct way that people can avail themselves of their rights.

Kevin Kosar: [00:12:39] And what's wonderful about it is that when you are commentating these comments are being listened to by the people who are making policy. And as part of the process you can see the federal register they will actually respond to your comment.

Nick Capodice: [00:12:51] And can anybody leave a comment. Could I write in and say hey I feel X about this certain thing.

Kevin Kosar: [00:12:55] Yeah. Yeah. So I mean they get 500 people saying the exact same thing which often happens when interest groups or activist groups you know ask people to comment on a rule. They won't list everybody's name and everybody's same comment, they'll lump them together and then they'll respond.

Hannah McCarthy: [00:13:10] Do you think that the Federal Register makes engaging with our federal government much easier than it would be without it? What Would it be like without the Federal Register?

Kevin Kosar: [00:13:19] It would be like life before 1935.

Nick Capodice: [00:13:21] 1930s, FDR is in office. The three R's: relief reform recovery, the new deal on the way in, the Great Depression slowly on the way out. And in the process we passed a lot of new regulations.

Oliver Potts: [00:13:32] And so if you were in a let's say a business that was being regulated by the federal government it was sort of hard to figure out what the current regulation that applied to you was. It certainly was difficult to know what was on its way. They weren't proposed regulations at the time. They could just go into effect so it was required at the time that they be displayed before they were published in the Federal Register. There were people who made their living coming to the Federal Register to the public reading room to actually see what was on display being proposed to go into the Federal Register.

Nick Capodice: [00:14:00] Ever since then the Federal Register has been very quietly chronicling every single teeny little regulation and rule change that the government makes. And this is the whole big thing. Regulation, which is all the minor nuts and bolts that tell us how to follow the laws, that is the foundation for all the big flashy political ideas that we talk about.

Hannah McCarthy: [00:14:17] So these are the kinds of things that lobbying groups and politicians are going to be really interested in because that's their fodder. Right? That's what's guiding what their platforms are and what decisions they're going to make in the future.

Nick Bellos: [00:14:28] Yeah I mean you actually look at the text of these of these bills these laws even though they're really long oftentimes they're not very detailed. Good example is like the clean air act for instance. You know there's a provision in there that says that the EPA must protect public health with an adequate level of safety. Which sounds legalistic and formal but then if you if you think about it like oh well what's the public health with an adequate level of safety. In many ways Congress is pointing to somebody else kind of filling the gap.

Nick Capodice: [00:14:49] And this happens over and over again in our government. Congress punts to the executive branch. So Congress says hey we got this big idea. We think it's a good idea but you all figure out the details.

Nick Bellos: [00:14:59] There are a lot of pros and cons to the way our system is set up where unelected regulators and bureaucrats we have a lot of control of it. On the one hand it's great because we want specialists like technocrats people who actually know what they're doing to set those standards. The criticism would be you know we didn't elect those scientists. How much how much can we trust them. Who's holding them accountable?

Hannah McCarthy: [00:15:14] But I guess in response to that I would say well whoever it is that's ordering the federal register, all these thousands of people are having the Federal Register delivered to them every morning and combing through it online, people like Nick, are the people who are holding them accountable.

[00:15:26] Well that about wraps it up for Civics 101 today. Check out the federal register yourself. Go to Federal Register dot gov. Today's episode of civics on one is produced by the inimitable Ben Henry. Our executive producer is Erika Janik. Our staff includes Justine Paradise, Jimmy Gutierrez, Jacqui Helbert, and Taylor Quimby, Civics 101 is a production of New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

National Institutes of Health (NIH)

Remember the Human Genome Project? The massively complicated international undertaking that aimed to map the entirety of human DNA? It was funded and coordinated in large part by the NIH, or National Institutes of Health.

The NIH is a part of the U.S. Department of Health and Human Services, and is the nation's foremost government funded medical research agency. So how does it work? What do they actually do? Do politics influence their research? To find out, we turn to  Dr. Carrie Wolinetz,  Associate Director for Science Policy at the NIH.

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TRANSCRIPT

Nick: [00:00:16] I'm Nick Capodice.

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

Nick: [00:00:18] This is Civics 101.

Hannah: [00:00:20] Today.

Nick: [00:00:21] Yes.

Hannah: [00:00:21] Our episode is on the NIH.

Nick: [00:00:24] The National Institute of Health.

Hannah: [00:00:25] The National Institutes of Health.

Nick: [00:00:27] The 'tutes'? OK, so what does that mean?

Hannah: [00:00:29] That means that within the NIH there are other institutes that are doing specialized research.

Nick: [00:00:34] OK. And so how and how are they a Civics 101 topic?

Hannah: [00:00:37] Well we pay for the research done by NIH institutions and the institutions that the NIH funds.

Nick: [00:00:46] So who is going to explain it to us?

Dr. Wolinetz: [00:00:48] So my name is Dr. Carrie Wolinetz and I am in the office of the director at the National Institutes of Health, where I serve as both the Associate Director for Science Policy as well as the acting chief of staff to the NIH director.

Hannah: [00:01:01] So why don't we just start very basic... What is the primary role of the NIH in the United States?

Dr. Wolinetz: [00:01:10] So the mission of the National Institutes of Health is to seek fundamental knowledge about the nature and behavior of living systems and then we apply that knowledge in order to enhance health, lengthen life, reduce illness and disability. So essentially we are a research funding agency whose goal is to improve the length and quality of human life and health.

Nick: [00:01:34] And when you say Institutes of Health, Hannah told me that the N IH institutes, not institute. How many institutes comprise the NIH?

Dr. Wolinetz: [00:01:41] So there are 27 institutes and centers which range from institutes that are disease focused, so for example the National Cancer Institute, to institutes that are more focused around organ systems, like the National Heart Lung and Blood Institutes, to institutes that are really about engineering fundamental discovery and the research pipeline itself for example our National Center on Advancing Translational Sciences.

Nick: [00:02:10] And where does the NIH get the money for all these institutes?

Dr. Wolinetz: [00:02:13] So we are a federal agency, so we get appropriations from Congress and the institutes and centers each get their own congressional appropriation and so that funding comes directly from Congress and the American taxpayers.

Nick: [00:02:30] Can you tell me about how much money the bridge gets, year to year?

Dr. Wolinetz: [00:02:34] So our current appropriation is right around 37 billion dollars. But importantly between 1998 and 2003 there was a significant investment in the National Institutes of Health, the budget of the research agency doubled at that time and that was a reflection of a strong bipartisan support in Congress that remains to this day.

Nick: [00:03:00] So when something like an Ebola outbreak happens in the US, you know we did an episode actually on the CDC, and I think of that as the organization that takes care of an infectious outbreak. But it sounds like the NIH is the institution conducting the research, so how does that work? Are you are you guys developing the the vaccines, the medication, the new information?

Dr. Wolinetz: [00:03:24] That's exactly right. So there are a couple of roles and I might play depending on the shape of the outbreak. Certainly we are very involved in working closely with the CDC for the next stage of developing medical countermeasures, and those might be vaccine,s they might be medications, they might be diagnostic technologies. In addition, if it is a emerging virus or or a disease that we don't know much about, for example when S ARS first became a public health issue, NIH might be involved in some of the very fundamental identification and characterizing of whatever that infectious agents or disease causes.

Nick: [00:04:11] So is the head of the NIH appointed, is this a political appointee by the president, like the heads of other agencies?

Dr. Wolinetz: [00:04:18] Yes so NIH has two presidential appointees and only two, the head of the National Institutes of Health is a presidential appointee and so is the head of the National Cancer Institute.

Nick: [00:04:30] I'm also very interested in what extent politics can guide the kind of research that you're doing. Let's take something slightly controversial like stem cell research, or maybe research for the opioid crisis. How do politics play into the kind of funding you get?

Dr. Wolinetz: [00:04:45] I think certainly NIH has been very fortunate in that we are a largely apolitical agency and that we do have this strong bipartisan support. But certainly if you look at how things rise to sort of the level of national consciousness, like the opioids crisis, that can be translated into additional funding for the agency. Sometimes, as in the other example you mentioned stem cells, that becomes a policy conversation where we think about the framework and the terms and conditions we might put on our researchers about the kinds of research that that we fund. But for the most part I would say the NIH tends to stay outside the political fray. And we've been very fortunate to have this widespread support to really focus on our mission of science and improving human health.

Hannah: [00:05:41] So I'm curious how the public does benefit from the research that the NIH funds. Can you point to any specific discoveries or advances in medical science that have come out of NIH funded research?

Dr. Wolinetz: [00:05:55] Oh sure, some of the rapid improvement we've seen in death rates from cardiovascular disease were they're down significantly can be traced back to things like the use of statens for control of cholesterol, which stems directly from NIH supported fundamental research. Recent cancer therapy is like the cutting edge immunotherapies, CAR-T cells are a term you may hear a lot... The antiretroviral therapies that have really transformed HIV-AIDS from a sort of death sentence terminal illness to a chronic condition to which people are living to a normal lifespan... All of those discoveries have the roots in NIH supported research.

Hannah: [00:06:42] We're going to take a quick break. But stay tuned for more NIH. Coming up on civics 101.

Nick: [00:06:52] Welcome back to Civics 101, we're talking to Dr. Carrie Wolinetz about the NIH. So are there any fun new projects that the NIH is working on that we should keep her eyes out for?

Dr. Wolinetz: [00:07:02] Well certainly we're very excited about the new opportunities presented by gene-editing technologies and the ability to create the next generation of gene therapies to cure genetically based diseases. So for example, sickle cell anemia, which was one of the first diseases identified from a molecular level. It's Been a century now that we've known the cause of sickle cell anemia. We are almost at the cusp of actually being able to cure that disease through gene therapy.

[00:07:37] And you know we hope that within the next five maybe 10 years or so we will actually see a cure for sickle cell anemia or other similar diseases that we could potentially approach with a new gene editing technologies.

Nick: [00:07:52] So I'm so curious, when there are all of these research studies going on, and for example with sickle cell anemia you say that you're getting close to a cure, where are these results going? And are private sector institutions accessing these results and then furthering those studies, getting you even closer?

[00:08:10] Yes, so the way it essentially works is most of the money the NIH gets does not actually reside at NIH. So 80 percent of our budget goes out from NIH to research institutions, universities, academic medical centers all over the country. And it really is the best and brightest scientists from all over the United States and all over the world who are using that money to address research questions to help us understand the fundamentals of disease, and how to how to use that knowledge to actually lead to therapies and treatments and cures for those diseases. There is then a often a hands off to the private sector who essentially depends on that federally funded publicly supported research to be able to move the ball forward and develop whether it's vaccines or drugs. A lot of that is facilitated by the research funded by NIH.

Nick: [00:09:15] So who has access to this sort of open source information? Do I, does Hannah? Can we go to a website and see this research?

Dr. Wolinetz: [00:09:22] Yes. So NIH is a very transparent agency. Certainly all of the projects that we fund are available on our website through a site called NIH reporter, and you can get as into the weeds on those projects as you want to get. And some of them are very weedy indeed. In addition we require all of the publications that come out from NIH funded research to be available to the public through our National Library of medicines pub med sites.

Taylor Quimby: [00:09:54] I've got a quick question I'm sort of curious about, do you guys mind if I jump in?

Nick: [00:09:58] Oh go ahead.

Taylor Quimby: [00:09:59] OK. So I just remember a few years ago when then Vice President Joe Biden, he had lost his son and he made this big call for the sort of moonshot of cancer this idea that there is going to maybe be this huge injection of funding. And I read, I think I read an article back then that sort of talked about this grant based-process and that it makes it hard in some ways to maybe have this big coordinated push and I'm just wondering are there any downsides or limitations to that sort of funding model where you're you know you're putting lots of different ideas and projects out there and you're funding lots of different things. But it's maybe a little bit scattershot, right?

Dr. Wolinetz: [00:10:35] So. So the cancer moonshot is still going strong. So let me start with that but you know it's a little bit like managing your investment portfolio. It's making sure that you've got the appropriate balance of both soliciting from kind of the best and brightest scientists across the country, their original ideas on kind of a grant by grant basis, while at the same time as a agency and an institution that has this overarching view, paying attention to when the time is right to put in a big bolus of funds. So it's really making sure we've got this balanced portfolio of sort of big centralized initiatives, like The All of Us research program, like the cancer moonshot, like the brain initiative which we didn't talk about, with that portfolio of really bright individual ideas from scientists across the country.

Nick: [00:11:36] So how important do you think it is this public handoff? How important do you think it is that this is a public biomedical health research institution?

Dr. Wolinetz: [00:11:45] Incredibly important. I think one of the reasons that NIH has been fortunate enough to have such strong public support is because there has been long recognition that the government plays a critical role in supporting basic research discovery and fundamental science that is frankly too high risk for the private sector to necessarily get involved in. Because you don't know where it's going to lead you at the end of the day, although history shows us that in fact that basic research is ultimately what leads us down the road to medical advancements. But it is really a sort of critical government role to be able to support that fundamental research and build that foundation of knowledge that can then be taken by private industry and turns into the next generation of therapies and technologies and approaches to really improve human health.

Hannah: [00:12:51] That was Dr. Carrie Wolinetz, Associate Director for Science Policy at the NIH. Today's episode was produced by Taylor Quinby, our executive producers Erika Janik. Our team includes Jimmy Gutierrez ,Justine Paradis, Ben Henry and Jacqui Helbert music in this episode is from David Hilowitz.

Nick: [00:13:08] We don't have more than one institution but we do have lots of past episodes to check out. They do tend to pop up on the news cycle don't they?

Hannah: [00:13:15] They do don't they.

Nick: [00:13:16] You could set your watch watch to it. So if you're ever feeling especially bamboozled by something you've read the headlines check out our list of previous topics at Civics101podcast.org. Or you can leave us a question and we'll see if we can get to the bottom of it pronto.

Hannah: [00:13:30] I'm Hannah McCarthy.

Nick: [00:13:31] And I'm Nick Capodice.

Hannah: [00:13:32] Civics 101 is a production of new Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Police

Norm Stamper was a past-Chief of Seattle's Police Department and an officer with the San Diego PD. He's also the author of two books including To Protect and Serve: How to fix America's Police. He joins us to talk about the history of modern policing, the role of police today, and how to make sense of controversial police killings.

Support Civics 101 so we can keep learning how our democracy works. Donate here.

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TRANSCRIPT

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

Civics 101

Episode 125: Police

Nick Capodice: [00:00:01] My knowledge of the police growing up in a very white New Hampshire town was that the police were friendly and they came to school and I did DARE. And I would watch Abbott and Costello routines. There were like hey if you're ever in need of need help give me a hand go ask a policeman. They're going to help you out.

Hannah McCarthy: [00:00:16] I know I went to DARE too. But I think that that was my only experience of ever speaking face to face with a cop. I still haven't to this day.

Nick Capodice: [00:00:26] So what do you want to know about the police?

Hannah McCarthy: [00:00:28] I want to know who governs what the police are allowed to do? Are there federal regulations? Are there state regulations? Is it just you know units of policy by municipality who makes these decisions where does the money come from and how has the police force in this country changed over the years?

Nick Capodice: [00:00:53] We're talking today with Norm Stamper. Norm was the past chief of Seattle's police department and an officer in San Diego. He's also the author of two books first To Protect and Serve: How to Fix America's police, and Breaking Rank: A Top Cop's Exposé of The Dark Side of American Policing.

Hannah McCarthy: [00:01:14] So I guess let's start with brass tacks here what is the official role of the police department in the United States?

Norm Stamper: [00:01:23] Well the whole purpose behind policing is to help achieve public safety and neighborhood health so police are identified properly as a crime fighting agency. But they also provide many many other services that are associated with quality of life issues in any given neighborhood.

Hannah McCarthy: [00:01:43] And is a police force constitutionally mandated? How did we decide that we needed to have one?

Nick Capodice: [00:01:52] No there is no mandate for policing anywhere. And in fact one of the interesting phenomenon of American policing as it we have 18,000 law enforcement agencies in this country and each is pretty much a stand alone agency fairly independent from tiny rural police departments to big urban NYPD has got 35,000 police officers. Most police departments have a handful if not just one or two officers and there are no federal regulations that are you know universal amongst all 18,000.

Nick Capodice: [00:02:28] Are they completely on their own?

Norm Stamper: [00:02:31] One of my favorite themes here is as we do have these 18,000 law enforcement agencies but we have one Constitution and every single police officer are nearing 1 million in this country. And all of those agencies are duty bound to abide by the Constitution. And yet we have no national standards very different from the British after whom we model ourselves. But it's it's very problematic I think and if you're looking at Civics 101 approach to policing it's important to point out that each of these police departments operates with its own its own basic policies and procedures.

Nick Capodice: [00:03:11] Well let's go to about how we started. Where did we get this notion of how we run our police departments?

Norm Stamper: [00:03:19] Before industrialization, before the Industrial Revolution, communities, neighborhoods had kind of a hue and cry approach to public safety. Somebody notices that a barn is on fire clangs a bell runs through the dirt roads of a little community and arouses people and gets them out there to help fight that fire or chase down somebody who's rob somebody. And as we moved from from an agrarian and rural environment to an urban industrialized environment we began to organize and the early organizing efforts were fraught. There were there were a lot of problems associated with that and we learned about the British. The British in 1829 through the Metropolitan Police Act created the very first Western democracy organized police force. Representatives from New York and Philadelphia and Boston and other big East Coast cities and Midwest cities traveled to Great Britain to study the Metropolitan Police Act and they came back with you know a skeleton vision really of how to structure a police department. But they failed to include some safeguards that turned out to be a pretty glaring omission that caused from the very beginning of a life of this institution a lot of problems.

Hannah McCarthy: [00:04:50] So what were the safeguards that the United States failed to include in their idea for a police force?

Norm Stamper: [00:04:57] Well Sir Robert Peel who was the home secretary took seven years to convince a reluctant parliament to go along with the idea of an organized police force. During those seven years of political maneuvering the Home Secretary and parliament went back and forth on what we need to do to make sure that our police force doesn't come across as tyrannical as militaristic as aloof or distant from the community. So they built in safeguards to ensure that that would not happen and the Americans essentially were bad students. They think they came back to this country and they created almost overnight a political spoils system where nepotism ruled. If a mayor appointed a police chief and gave that chief the authority to select police officers very often it was brothers or sons or cousins or uncles and so forth and corruption developed almost immediately in most of those big city law enforcement agencies.

Nick Capodice: [00:06:06] Moving into the current day, I'm curious about how we're training officers and there's been a lot of talk about the militarization of police recently. How does the training differ between the military and the police?

Norm Stamper: [00:06:18] I think it's very important that your listeners understand that training does play take place in a classroom of course that takes place in a variety of other settings where we set up mock scenes and do simulations and the like. But it also takes place in the front seat of a police car and it takes place in the locker room. And by far the more powerful form of instruction takes place informally always has been the case probably always will be the case. Military training on the other hand starting with basic training is all about learning how to follow orders and obviously to engage in tactical operations to become familiar with equipment and weapons and the like. But the distinction is so terribly important for an American police officer. The training ostensibly is about helping police officers forge these true partnerships with the community an emphasis on interpersonal communication on listening skills on developing patience and restraint on learning how most effectively to defuse tense situations and particularly when weapons are involved. One of the distinctions we can't draw is that between the military and the police is that the police in our society tragically are surrounded by guns. There are more guns than people in this country. So we have a responsibility to equip our police officers to handle everything from a home invasion robbery to a drive by shooting them one minute and two trying to console parents who have lost a child overnight to a crib death. It's no exaggeration to say that from one minute to the next police officers can go from one very different kind of task duty or responsibility to another.

Nick Capodice: [00:08:17] And are police officers currently trained in the sort of de-escalation tactics?

Norm Stamper: [00:08:22] They are. But I think it's important to point out that a recent study revealed that the average police officer gets about eight hours of what some might call de-escalation training. It could be as simple as interpersonal communication but without the real emphasis on de-escalation. That's a whole body of knowledge. It implies a set of skills. It takes a lot of practice. But they spend much more time firing their weapons and undergoing defensive tactics training. And they do de-escalation. Not that the former is a bad thing. That's a very important necessary thing but it's also vital that we teach police officers how to slow things down how to calm things down when they arrive at a scene. You've probably seen YouTube footage of police officers literally screaming at the top of their lungs sounding like they're out of control. Now what they're trying to do of course ironically is to achieve control is to bring stability to that chaotic scene. But too often they're actually escalating tension and creating a more dangerous situation.

Hannah McCarthy: [00:09:40] Now what kind of culture is cultivated within the police force between this kind of disproportionate type of training that happens and then this schizophrenia on the job experience?

Norm Stamper: [00:09:52] That's a really vital question that police administrators and civic activist and civic leaders and rank and file police officers are all asking especially these days in light of recent events. The culture of American policing as a product I'm convinced of the structure paramilitary bureaucratic top down to many agencies in my view treat their frontline professionals like dependent or delinquent children. The disciplinary system is very primitive and very black and white and oftentimes insulting to police officers who engage in such sensitive and delicate and demanding work. So we need to look at that and we need to understand how this sort of rigid top down communication decision making system within the paramilitary bureaucracy affects attitudes and behavior of police officers. So I look at it this way the structure produces that culture and then the culture gives rise to the behavior. And if we're not happy with the behavior I think we what comes to my mind as the Laquan McDonald shooting in Chicago, the Walter Scott shooting in North Charleston South Carolina, or Philando Castile and Minnesota a number of controversial police incidents typically resulting in death are are... It just seems to me that we need to look at those events study those events investigate certainly those events and draw conclusions and let the chips fall where they may. But we shouldn't just fixate on the individual event. We should ask ourselves where does that behavior come from. Why is it that the police officer is shouting and screaming at an individual whose attention he wants. But who is more likely than not escalating and inflaming passions. And what is it that we can do systemically to produce different kind of behavior.

Nick Capodice: [00:12:05] We wanted to look at one specific incident which was to look at something such as Ferguson what happened with Michael Brown in Ferguson and if you could tell us how did we get there. But it sounds like you're saying we shouldn't be isolating these specific incidents but we should be looking at the culture at large?

Norm Stamper: [00:12:21] I suppose what I'm really saying is yes of course we must look at the individual events but once we've sealed up that investigation has now been completed we need to ask ourselves what led to the tragic outcome what led to in this case an 18 year old young man dying at the hands of police. Is there a way that that could have been prevented. And to my way of thinking almost all almost all controversial police shootings that we've been exposed to in the last several years could have been prevented. Now look at the Michael Brown incident where we have an 18 year old kid who talks back to a police officer who tells him to get up on the sidewalk. Profanities are exchanged. Wasn't just one sided and the officer gets hooked. He's been provoked. So he puts his car in reverse and backs up at a very reckless rate of speed circles around an entraps himself with Michael Brown and his companion standing right next to the door. The driver's side door this police car. And then Darren Wilson tells the grand jury later that he felt that he was trapped and that he felt that he was being assaulted by I think he used the word demon. He said he he looked like the Hulk but he was sitting behind the wheel of his car trapped in his vehicle. He had his gun out. Having not seen a gun but fearing for his life nonetheless because of Michael Brown's menacing demeanor and and his proximity which he the officer had actually brought about felt that as he put it to the grand jury that his life was in danger and the consequence of course was another one of these controversial police killings. One thing we don't look at nearly enough is the tactics that the officers used that set up this fatal outcome. And that's critically important because every time we break down one of these incidents we critique it, we debrief it, we place it into the larger context of our training or supervision and our tactics, we have the opportunity to prevent next one. And I think what we learned in Ferguson was that we had a an entire police department indeed an entire city that was engaged in systemic discrimination. There was raw racism. We saw that and some exchanged e-mails and some notices and so forth that circulated within the organization and city home. And we saw that that police officers were engaged in what's commonly called policing for profit. And the Department of Justice report for anyone interested in this aspect of policing would do well to read the report says that the city manager indeed supported by the City Council was putting pressure on the police department to generate more revenue. How do you how does the police department generate revenue? Tickets and arrests. So that's that's an unholy alliance between the police department and the city fathers and it's also sending exactly the wrong message to police officers.

Hannah McCarthy: [00:16:05] Given the current aggregate climate of the nation's police departments, What do you see as the reasonable foreseeable future?

Norm Stamper: [00:16:14] There are a lot of practical intermediate steps that can be taken and they're still fairly ambitious. One recommendation I've made we need to have a set of unifying standards that will help us answer the question what's a professional law enforcement agency, what's a professional police officer? And on the strength of those standards we ought to certify agencies and license cops. And if you can't or won't play by the rules then you're going to lose your certification or your license. The police officer who shot and killed Tamir Rice in Cleveland Ohio had been fired by the Independence Ohio Police Department 19 minutes away by car a couple of years prior to the time that Cleveland picked him up. And why did they fire him? Because he fell apart on the on the pistol range because he was an emotional wreck. He may have been a nice guy. The deputy chief who wrote up his termination package essentially said we regret that you didn't make it but you're not police material. We can't afford you the community cannot afford you. And so they fired him. And yet Cleveland hired him and then a short time later he shot and killed a lonely 12 year old boy on a snowfield in Cleveland. Those kinds of images ought to haunt us because not only has that 12 year old been denied the rest of his life, not only has his family been torn apart and the community reduced to collective grief, we have a situation in which easily that controversial shooting didn't didn't need to happen could have been prevented. So we need to set the standards and we need to enforce them. And you can't lose a job in Ferguson and get hired in New York or San Diego and hired in Seattle or wherever.

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Made possible in part by the Corporation for Public Broadcasting.

Infrastructure – Water!

Drinking water in the United States is, according to the EPA, among the world's "most reliable and safest supplies." Its delivery involves a complex infrastructure of pipes, treatment facilities, aqueducts, dams, and reservoirs, and it operates on a local, state, and federal level. How did we get here? How is the U.S. public water system legislated? And, how is "potable" actually pronounced?

We spoke with James Salzman, author of Drinking Water: A History. He is also a professor of environmental law at the UCLA School of Law and the Bren School of Environmental Science at UC Santa Barbara.

This episode is part of our occasional series on American infrastructure. Listen to our first installment on roads.

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TRANSCRIPT

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

Nick Capodice: [00:00:08] Is it potable or potable?

James Salzman: [00:00:11] I say potable. .

Hannah McCarthy: [00:00:12] OK So do we. I feel good about that.

Hannah McCarthy: [00:00:14] But I also say potato.

Nick Capodice: [00:00:15] Well, let's just call the whole thing off.

James Salzman: [00:00:20] Touche.

Hannah McCarthy: [00:00:21] you're Listening to Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:00:23] And I'm Nick Capodice.

Hannah McCarthy: [00:00:24] And On today's episode water.

Nick Capodice: [00:00:26] Yes. How and why is the government involved in delivering water in the United States? .

Hannah McCarthy: [00:00:30] What Is the infrastructure involved. What are the policies?

Nick Capodice: [00:00:33] And how did it get that way?

[00:00:38] [Montage: Water is Life! Water is Life! By Diverting the river from its course we have lost the Colorado Delta. Flint still doesn't have clean water.].

Hannah McCarthy: [00:00:42] To Answer these questions. We spoke with James Salzman who wrote the book Drinking Water: A History. .

Nick Capodice: [00:00:53] James Salzman also goes by Jim he's a professor of environmental law at UCLA School of Law and the Bren School of Environmental Studies at UC Santa Barbara and he's on the national drinking water advisory committee under the EPA. All right. All right. Jim welcome to Civics 101. .

James Salzman: [00:01:11] Happy To be here. .

Nick Capodice: [00:01:12] So I guess to start out can you explain to us what is water infrastructure what are we talking about nationally. .

James Salzman: [00:01:19] Sure. Water basically has to has two major major uses that we care about. From an economic perspective and as a third use that's important as well. The first is the drinking water. We need. We need water to survive and so that sort of municipal water generally. And that obviously has to be treated. So it's safe to drink. The second broad category is agriculture.

James Salzman: [00:01:44] In fact about 80 percent of the water that we consume the United States is used for agriculture primarily irrigation 80 percent roughly. Yeah yeah. The last category of water that's important is what's called in stream flow or environmental flows and that's the water actually that we keep in the river. And you asked me water that we use. You know why am I mentioning instream flows. Well if we take out all the water and use all of it then there's no water for the fish and the and the the aquatic ecosystems. So they all they're all part of the same mix. It's the water that we use. And ironically the water we don't use. People talk about the infrastructure crisis with roads and with bridges. It's no different than with drinking water. Let me let me give you some interesting statistic statistics. So there are over a million miles of water pipe in the country. All right there are roughly 240000 line breaks every year. Every day about 42 billion dollars of water is treated and moved around the country. The number is inexact but they think about 6 billion gallons are lost to leaks. All right so the American Waterworks Association AWWA they have basically they come with these estimates for what the investment needed to basically maintain and improve the infrastructure of the next 25 years. And their numbers come close to a trillion dollars. .

Nick Capodice: [00:03:15] Is this because our infrastructure is getting old and breaking. Or is it because. Do we have the technology and the money to just create a new this old infrastructure?

James Salzman: [00:03:24] Well the technology is not that hard it's pipes right. The problem is I mean in D.C. there are some pipes that were laid right after the Civil War. Right. Drinking water is very much out of sight out of mind. .

Hannah McCarthy: [00:03:36] All Right. Is That because it would just be totally unfeasible to place whole systems around a municipality for example?

James Salzman: [00:03:44] Well it depends how much you want to pay. So there are. Get ready for this. One hundred fifty one thousand public water service providers in the country. A small number of those provide the vast majority of the water are those municipal water systems. But the fact is there are you know close to 100000 systems that serve 8 percent of the population. These are very small systems and they're poor in the sense that many of them are in poor areas or they're underfunded. It's a big challenge .

Nick Capodice: [00:04:16] When We're talking about drinking water. We're talking about the water that comes out of our taps. We're talking about water fountains. We're talking about all that stuff and Hannah had a story actually that's sort of related to that I wonder if you could. .

Hannah McCarthy: [00:04:29] Yeah so I was in the hallway filling up my water bottle at the water fountain here at the station and someone walked by .

James Salzman: [00:04:36] Very virtuous

Hannah McCarthy: [00:04:38] right. And he said Well you know you're really brave to be filling it up with the water fountain we've got filtered water in the kitchen. And I thought to myself oh well I thought you know that's ridiculous. The water has to be safe to drink. It has to be potable but then I kind of second guessed myself. I don't know for sure whether or not the government or a municipality is obligated to provide potable drinking water. Are you able to answer whether or not they are?

James Salzman: [00:05:07] I am I am drinking water is my thing. So here's how it works. So there is a law called the Safe Drinking Water Act was passed in 1974. And it's a nationwide law this centrally sets the standards and obligations for how water is provided to any system that essentially serves more than 25 people. So clearly the tap water you were using in essentially the drinking water system we have in the U.S. is sort of triple redundancy. The most of the work is actually done locally by the water treatment plant. They're the ones who actually treat the water make sure it gets to you. They're the ones who are testing the water on a required periodic basis. They're supervised by the state, equivalent to the state EPA who are supposed to look over them and make sure they're actually complying with the laws and the standards so that the Safe Drinking Water Act the federal EPA sort of looks over the shoulder of the state. They said what are called the maximum contaminant levels for roughly 90 different classes of contaminants and those are the standards of local treatment plants need to meet. And so the fact is that I can go anywhere in the United States and drink water from the tap without being concerned about it. That certainly is not the case in many parts of the world and frankly 100 years ago that wasn't the case anywhere. Now I have to add the Flint story is deeply disturbing at a lot of levels because essentially the triple redundancy broke down at every single level.

[00:06:39] The local producer screwed up. The state screwed up and the EPA screwed up. .

Nick Capodice: [00:06:44] What Is what. How could this happen in Flint?

James Salzman: [00:06:47] My view is that essentially the public agencies lost sight of who the public is. It is a very disturbing e-mail that came out from a FOIA request a public records request of the regional EPA where the EPA officials said something along the lines of I'm not sure Flint is the kind of community we want to go out on a limb for. And so it really it's a very disturbing very disturbing episode because as you mentioned earlier in this podcast you don't know that the water coming out of your tap is safe to drink. I'm a drinking water expert and I don't know. You have to trust utility to do the right thing. And in my view you know more than 99 percent of the time that actually happens. I have a lot of faith in the integrity and the performance of public utilities around the country in terms of drinking water. But Flint is a very serious reminder that you have to be vigilant.

Nick Capodice: [00:07:42] Do you have any hope for the future of when Flint will get clean water how that can happen?

James Salzman: [00:07:47] Yeah I mean the government the federal government has pumped in tens of millions of dollars to replace the lead service lines. And there was all kinds of bottled water that was provided as well. It's an infrastructure issue because many parts of the country have lead service lines. In fact the irony is that blood service lines were actually required by law in Flint until the 1980s.

[00:08:08] The challenge is it's going to cost 20 to 30 billion dollars to replace the lead service lines around the country. And this is part of a larger thing you want to talk about which is that you know money is short when it comes to drinking water infrastructure. .

Nick Capodice: [00:08:30] So I guess now will be an OK time to get to. How did we get here in terms of water infrastructure nationally since we were created as a country. How did we get to where we are now?

James Salzman: [00:08:41] Sure so the drinking water issue obviously has been of central importance ever since we've had settled cities that settled communities communities not gonna last very long if people are getting sick all the time. Seriously sick all the time from the water. So the approach basically New York City having tells the best example settled by the Dutch. The English come in and they started basically taking use of some shallow wells in this place called the collect which is about 32nd andt Broadway that got quite polluted. Over time as New York City urbanized. They basically realize that the water was getting polluted and it was insufficient and then the turn of the century you get this crazy story where Aaron Burr and Alexander Hamilton the Broadway stars they team up and they formed something called a Manhattan Company. And Aaron Berg goes up to Albany to the legislature and convinces them to give the Manhattan company monopoly to provide pure and wholesome water to New York City. And the idea is that they're going to pipe water in from the Bronx.

[00:09:46] It turns out that Aaron Burr was a scoundrel as comes out in the musical and he had no intention of getting water from the Bronx he basically just piped water in from this gross place called The Collect. And instead what he did was the charter gave him the authority to raise two million dollars in funds. He wanted to start a bank without the strictures of a bank charter and so he basically raised the two million dollars and then lent it out at interest in this company. Over time became a Chase Manhattan Bank. .

Hannah McCarthy: [00:10:16] So The whole water thing was a construct was a racket in a way he did provide water but it was just a way for him to ultimately create this bank. .

James Salzman: [00:10:25] That's Aaron Burr .

Hannah McCarthy: [00:14:02] He is a scoundrel. .

James Salzman: [00:10:28] And So the basically 1830s the state and city finally step in and have been a public water. And so essentially by the 19th century mid 19th century all of the major cities in the U.S. had public water systems. But even into the early early 1900s, it's not uncommon for people to die of typhoid cholera or other waterborne diseases. And so the big shift is with the chlorination of water. OK. In the early 90s hundreds and that's done through the Interstate Commerce Commission. They basically passed this rule that all interstate common carriers buses trains ferries have to have chlorinated water. And so basically any where any of these transports stopped any of the towns they had to have chlorinated water so they could basically provided for the interstate carriers. And that was sort of the backhanded way that we got water chlorinated in the U.S.

Nick Capodice: [00:11:26] And What about water rights in the West versus East?

James Salzman: [00:11:29] Think of the thing that's that that's key in talking about water on the East Coast where on the west coast is agriculture and big cities. There was enough water for drinking on the west coast but there wasn't enough water for large urbanization and large agriculture. And the story starts essentially in the mining towns in the 1840s, 1850s, where the folks who were doing the mining after the gold rush were practicing something called hydraulic mining where they literally would get these high powered hoses and blast away whole mountainsides. So an East Coast the legal tradition was called riparian rights and what it means is if your own property alongside the river or the body of water you are right period Holder. That gives you the right to use the water that doesn't work with mining camps. You want the right to use the water if you're actually quite distant from the water source and so this new system is basically created in the mining camps it's known as prior appropriation and the basic rule is first in time first in right. And so basically these early sort of agriculture agricultural settings farms districts they used a lot of water. And one of the downsides to prior appropriation is this notion of use it or lose it. So if you stop using as much water for a period of time after several years your water right is reduced and so the system actually encourages inefficient use of water. .

Hannah McCarthy: [00:12:55] Are We currently in that situation?

James Salzman: [00:12:58] We are more or less. You know people say we're running out of water in the West. People who study the issue that's not really what's going on. We have a water crisis in the West but it's a water management crisis. There's enough water to go around. The problem is we don't manage how we move it very well. We're growing alfalfa and cotton in water scarce areas and they do it because they can. .

Hannah McCarthy: [00:13:22] What Do you see as challenges to our water system. Aside from the breakdown of this infrastructure itself in terms of increasing scarcity or maybe the way that we're currently treating water how fracking may influence our water sources what do you see as the the major possible problems?

James Salzman: [00:13:40] Yeah that's it's important it's an important question and I think there are three categories of things we need to be really watchful for are going forward. The first one is what you mentioned which is infrastructure. All right we are under investing in our water infrastructure and we're paying for it. The second concern is contamination of source waters. You mentioned fracking. There are other potential containment sources as well. Fracking is a fairly complicated story and it's regulated S.A. at the state level rather than the federal level. There was a, Dick Cheney lobbied for an amendment in 2005 that prevents the EPA effectively from regulating fracking around drinking water. But it's not just fracking that poses a challenge. There are whole classes and this sort of moves into the third the third category. There are whole classes of contaminants that are in drinking water right so any water you drink whether it's bottled water or or from the tap is going to have 40 to 60 different medications in them. They're extremely low concentrations. Right the equivalent of an eye drop within three or four Olympic swimming pools. But it's there.

[00:14:58] And you know if we as a society do not want to have you know traces of meds in our drinking water we can get them out. But it's expensive. And the question is is that is it worth paying for that. I mean I do want to emphasize that I feel like a lot of my answers are ending with you same kind of Obama don't think that way. Right. The first that we have for drinking water are the United States is a modern marvel. Our drinking water is so much safer than it was just 100 years ago. I mean it really is unprecedented in human history that a population of over 300 million people has access to safe drinking water. I mean very very very very few people get sick or seriously harmed drinking tap water in the United States. And that is a historical achievement. I mean literally historical.

Nick Capodice: [00:15:49] That was Jim Salzman author of Drinking Water: A History. .

Hannah McCarthy: [00:15:57] Music This week comes from broke for free. .

Nick Capodice: [00:15:59] Our Old friend. If you want to learn a little bit more about water and its history in the U.S. You should check out our newsletter, extra credit where we dive every week into the ephemera trivia historic moments. Regular topics. I have a feeling this time it's going to be a lot about the Croton Aqueduct and the Collect Pond, Hannah! Sign up on civics101podcast.org. .

Hannah McCarthy: [00:16:20] This Week's episode was produced by Justine Paradis. Our staff includes Ben Henry, Jimmy Gutierrez, and Taylor Quimby. Erika J anik is our executive producer. Civics 101 is a production of New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Freedom of Information Act

On today's episode: What exactly is the Freedom of Information Act, better known as FOIA? Can anybody use it to get their hands on... any public documents? What kind of government secrets have come to light as a result of FOIA? We talk shop with Jason Leopold, a senior investigative reporter for Buzzfeed News.

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TRANSCRIPT

Nick Capodice: [00:00:08] This  is  Civics  101,  I'm  Nick  Capodice. .

Hannah McCarthy: [00:00:10] And  I'm  Hannah  McCarthy  and  today  we're  talking  FOIA.  .

Nick Capodice: [00:00:13] Now  Hannah,  you  went  to  journalism  school. .

Hannah McCarthy: [00:00:15] I  did  indeed  go  to J-school. .

Nick Capodice: [00:00:17] FOIA  is  something  that  if  you're  not  a  journalist  does  not  probably  feature  into  your  everyday  life.  But  if  you're  a  journalist  it  does? .

Hannah McCarthy: [00:00:24] I  Think  it  does  if  you're  a  certain  kind  of  journalist.  Do  you  know  what  FOIA  stands  for? 

Nick Capodice: [00:00:27] I  Believe  it  stands  for  freedom  of  information  act. .

Hannah McCarthy: [00:00:30] Yes.  Basically  it  allows  you  to  access  federal  documents,  public  documents.

Nick Capodice: [00:00:36] Can  anybody  do  it?

Hannah McCarthy: [00:00:45] Yeah  anybody  can  do  it...  You  want  to  do  it? .

Nick Capodice: [00:00:40] Yeah  let's  do  it...  Okay  government  agency,  let's  do  ATF. .

Hannah McCarthy: [00:00:49] So  this  is  easy  right.  We're  on  FOIA  dot  gov,  F-O-I-A  dot  gov.  So  whose  email  should  we  request? .

Nick Capodice: [00:00:57] Who's  the  head  of  the  ATF...Oh  Here  it  is.  Click  the  button  Hannah...  Success!  "Your  FOIA  request  has  been  created  and  is  being  sent  to  the  Bureau  of  Alcohol  Tobacco  Firearms  and  Explosives."

Hannah McCarthy: [00:01:09] So  we're  going  to  hear  back  in  the  coming  weeks,  all  right.  All  right. .

Nick Capodice: [00:01:14] So  who  we  going  to  talk  to  today  about  FOIA? 

Hannah McCarthy: [00:01:17] Today  Is  Jason  Leopold.  He  is  an  investigative  reporter  for  BuzzFeed,  and  I  hear  he's  like  the  king  of  FOIA.

Nick Capodice: [00:01:25] Oh  I  can't  wait...

Nick Capodice: [00:01:31] Do  you  have  sort  of  a  rough  estimate  of  how  many  FOIA's  you've  done  in  your  time?

Jason Leopold: [00:01:35] Yeah  I'm  at  up  to  a  little  over  3500.  Yeah  it's  a  lot  that's  over  the  course  of  let's  see  about  nine  years.  I've  sued  the  government  about  more  than  50  times. .

Hannah McCarthy: [00:01:50] Can  We  just  start  by  asking  what  the  purpose  of  the  Freedom  of  Information  Act  is? 

Jason Leopold: [00:01:57] Sure.  The  Freedom  of  Information  Act  is  now  a  more  than  half  century  old  law  that  allows  anyone  anywhere  in  the  world  to  petition  the  U.S.  government  various  U.S.  government  agencies  for  documents.  It's  essentially  just  to  keep  a  check  on  the  federal  government  on  what's  going  on  behind  the  scenes.  What's  great  about  the  Freedom  of  Information  Act  is  that  you  can  ask  these  federal  government  agencies  for  any  type  of  record.  They  don't  have  to  give  it  to  you.  But  you  get  to  ask  for  it  and  to  they  have  to  justify  the  withholding  of  some  of  these  records  if  they  decide  not  to  give  it  up  to  the  requester. .

Nick Capodice: [00:02:41] Is  there  one  big  FOIA  office  or  does  every  agency  have  their  own  FOIA  office?

Jason Leopold: [00:02:45] Every  Government  agency  has  its  own  FOIA  office  correct.

Hannah McCarthy: [00:02:49] So  Who  in  the  government  can  be  FOIA'd  and  who  cannot  be  FOIA'd? 

Jason Leopold: [00:02:54] You  Can  pretty  much  FOIA  everyone  who  works  for  the  government.  I  mean  every  agency  will  try  to  get  away  with  you  know  redacting  the  names  of  certain  people.  The  White  House  is  exempt  from  FOIA.  Congress  is  exempt  from  FOIA.  At  The  NSA  and  the  CIA,  there's  something  known  as  the  NSA  Act  and  the  CIA  act  and  that  is  essentially  what  that  means  is  that  those  agencies  are  virtually  exempt  from  FOIA  because  everything  that  they  do  is  classified. .

Hannah McCarthy: [00:03:20] What  is  the  process  on  the  government  side  when  somebody  submits  a  FOIA  request.  What  do  they  do  next?

Jason Leopold: [00:03:27] It's  a  good  question  and  it  was  difficult  to  tell  exactly  what  happens  and  so  it  wasn't  until  I  filed  a  what  I  like  to  refer  to  as  a  meta-FOIA  which  is  filing  for  the  processing  notes.  So  I  wanted  to  know  what  happens  after  you  receive  my  FOIA  request.  And  what  happens  is  is  that  the  you  know  the  analyst  gets  the  FOI  request  they  send  it  out  to  the  appropriate  --  First  they  try  to  interpret  it  right.  They'll  try  to  interpret  and  that  can  be  kind  of  dangerous  if  your  request  is  not  crafted  clearly.  They  will  try  to  figure  out  what  exactly  it  is  you  want  where  those  records  would  be  stored.  Once  they  retrieved  the  records  then  they  have  to  then  review  those  records  to  determine  you  know  if  there's  any  classified  information  or  any  information  that  should  remain  private. .

Nick Capodice: [00:04:17] So  The  burden  of  proof  is  on  the  government  agency  to  prove  that  what  they  would  release  would  endanger  the  nation  as  opposed  to  you  having  to  prove  that? .

Jason Leopold: [00:04:25] It's  essentially  not  the  burden  of  proof  they  can  simply  just  say  it.  The  government  agency  can  say  this  will  interfere  with  law  enforcement  proceedings.  This  will  reveal  sources  and  methods  and  they  don't  have  to  say  anything  else  but  the  requester  can  then  file  an  appeal.  There  is  a  process  by  which  you  know  you  can  go  through  various  steps  you  can  appeal  you  can  you  go  through  the  appeals  you  can  tell  that  the  agency  I  want  you  to  do  another  search  you  know  or  you're  providing  them  with  additional  information  and  essentially  trying  to  get  them  to  ultimately  to  release  those  records. 

[00:04:59] A  real  incident  that  happened  this  week  is  I  got  a  release  of  documents  from  the  Secret  Service  and  in  the  disclosure  letter  the  Secret  Service  said  based  on  your  appeal  we  did  another  search  and  we  found  234  pages  of  additional  documents.  So  it's  a  tedious  process.  I  mean  all  of  these  steps  by  which  a  requester  has  to  take  to  try  and  pry  loose  records  to  keep  a  check  on  the  government  on  actual  government  activity  is  incredibly  difficult  and  painstaking. .

Nick Capodice: [00:05:36] So  Do  you  think  that  the  process  is  sort  of  Byzantine  and  labyrinthine  by  design  as  a  method  to  discourage  people  from  submitting  FOIA?

Jason Leopold: [00:05:45] I  don't  believe  that  you  know  that  any  of  these  agencies  or  any  of  the  people  that  are  involved  in  the  in  the  crafting  of  the  law  were  conscious  of  like  hey  let's  make  it  really  difficult  you  know  to  do  this.  I  do  think  however  one  way  in  which  agencies  on  the  state  level  and  on  the  federal  level  do  make  it  difficult  is  through  fees.  A  real  example  of  that  is  during  the  during  the  protests  in  Ferguson  following  the  shooting  death  of  the  African-American  teenager  Michael  Brown.  I  filed  a  request  with  the  with  police  and  with  local  government  officials  for  e-mails  and  other  records  about  their  discussions  about  Michael  Brown.  And  they  told  me  that  it  would  even  before  they  could  conduct  a  search  I  had  to  give  them  a  deposit  of  about  25  hundred  dollars.  And  we  called  their  bluff  we  said  okay  we'll  give  it  to  you.  We  give  them  twenty  five  hundred  dollars.  They  turned  over  nine,  eight  or  nine  e-mails. 

[00:06:40] You  know  they  didn't  give  me  change  from  that  but  from  that  you  know  from  that  they  justified  why  those  eight  or  nine  e-mails  cause  you  know  cost  that  much  money  so  most  people  just  don't  pay  it.  And  in  some  instances  journalists  you  know  because  this  is  such  a  tedious  process  throw  up  their  hands  and  say  I'm  not  going  to  be  bothered  with  it. .

Hannah McCarthy: [00:06:59] OK  We've  got  to  take  a  quick  break  but  then  we'll  be  back  to  continue  our  conversation  with  Jason  Leopold. .

Nick Capodice: [00:07:13] We're  Back  and  we're  talking  with  Jason  Leopold  investigative  reporter  at  BuzzFeed  News  about  FOIA. .

Hannah McCarthy: [00:07:18] Yeah  so  we  went  onto  FOIA  dot  gov  and  we  submitted  a  FOIA  request  as  we  mentioned.  So  what  we  did  is  we  said  we  want  and  you  can  tell  us  whether  or  not  we  went  about  this  entirely  the  wrong  way  we  wanted  the  deputy  director  of  the  ATF,  Thomas  Branden's,  any  emails  of  his  containing  the  words  New  Hampshire  and  Hennesy. .

Jason Leopold: [00:07:38] Okay  Yeah.  No  that's  great.  Did  you  give  a  timeframe? .

Nick Capodice: [00:07:41] No  We  didn't.  We  didn't  know  what  we're  doing. .

Jason Leopold: [00:07:44] Yeah.  Yeah.  So  normally  putting  or  trying  to  put  in  a  time  frame  is  a  good  way  to  simply  speed  up  the  process  and  that  is  really  key  when  it  comes  to  FOIA  is  that  there  is  a  backlog  and  the  reason  that  there's  a  backlog  obviously  is  that  you  have  a  lot  of  people  filing  requests  not  just  journalists.  And  to  be  clear  journalists  make  up  a  sliver  of  the  hundreds  of  thousands  of  requests  that  are  filed  each  year.  Most  of  those  requests  come  from  commercial  requesters  people  who  take  these  documents  and  resell  them.  You  know  it  could  be  law  firms  corporations  looking  for  info  on  their  competitors.  Journalists  are  truly  just  a  sliver  of  you  know  of  the  requests  that  go  in. 

Nick Capodice: [00:08:30] Could  you  give  me  a  hypothetical  of  one  of  those  corporate  interests--  What  kind  of  thing  would  a  corporation  FOIA  for  profit? 

Jason Leopold: [00:08:39] It  Could  be  information  on  say  S.E.C.  investigations.  The  FCC  actually  gets  a  lot  of  requests  from  people  who  are  looking  for  info  on  other  businesses  investigations  and  reselling  it.  Essentially  it's  it's  become  it's  own  business  in  a  way  for  you  know  for  some  for  some  investigators  researchers  who  will  simply  sell  this  to  you  know  other  corporations  sell  this  information  on  there  you  know  maybe  it's  their  competitors  maybe  it's  on  you  know  the  USDA  the  FDA  often  get  requests  from  commercial  requesters  as  well.  It  really  could  be  about  anything. .

Hannah McCarthy: [00:09:16] Now  I'm  very  curious.  Of  course  these  governmental  entities  are  law  bound  to  provide  information.  Ostensibly  Yes.  Do  you  have  any  sense  as  to  whether  or  not  a  commercial  entity  who  FOIAs  something  may  be  more  likely  to  get  that  in  a  timely  manner  than  somebody  who's  going  to  take  that  information  and  give  it  to  the  public. .

Jason Leopold: [00:09:43] It's  a  good  question.  No  I'm  pretty  confident  that  that  journalists  are  going  to  get  probably  some  precedent.  And  here's  why:  you  can  ask  for  expedited  treatment  of  your  request.  Meaning  that  you  know  dear  agency  I  want  to  get  to  the  top  of  the  pile  and  here's  why  I  have.  There  is  an  urgent  need  to  inform  the  public  about  actual  government  activity.  Commercial  requesters  can't  really  do  that.  They  can't  ask  for  that  because  there's  no  there's  no  one  for  them  to  inform.  No. 

Nick Capodice: [00:10:16] I  pretended  like  I  knew  what  you  were  talking  about--  can  you  explain  to  me  why  you  laughed  when  we  said  that  government  agencies  are  law  bound  to  respond  to  these  requests? .

Jason Leopold: [00:10:24] Because  they  never  ever  adhere  to  the  law  and  the  law  meaning  the  Freedom  of  Information  Act.  Essentially  states  that  you  know  follow  the  law.  Release  these  records.  But  there's  no  deterrent  if  they  don't.  Right.  Nobody's  going  to  be  prosecuted.  Nobody's  going  to  be  fine.  Nobody's  going  to  jail.  So  they  don't  have  to  and  they  don't.  And  you  know  some  of  the  agencies  that  are  so  notorious  for  in  my  personal  opinion  obstructing  the  law  when  it  comes  to  FOIA,  you  know  the  FBI...  The  FBI...  And  the  FBI. .

Nick Capodice: [00:11:01] Why  Is  it  so  important  though  why  is  government  transparency  so  important  to  our  democracy? .

Jason Leopold: [00:11:08] I  can  hold  up  a  number  of  stories  that  I  have  written  as  a  result  of,  thankfully  as  a  result  of  some  of  the  documents  leaked  that  I've  obtained  by  FOIA  you  know  for  example  behind  the  scenes  look  at  how  the  CIA  obtained  the  authority  to  assassinate  a  U.S.  citizen  abroad.  If  you  want  to  see  what  was  happening  behind  the  scenes  at  Guantanamo  which  was  how  detainees  are  treated  how  they're  force  fed  how  their  conditions  of  their  confinement.  It  was  thanks  to  the  Freedom  of  Information  Act.  Prior  to  that  you  know  this  information  was  classified.  How  the  Department  of  Homeland  Security  placed  agents  secretly  into  protests  in  Baltimore  after  the  death  of  Freddie  Gray.  That  was  thanks  to  you  know  the  Freedom  of  Information  Act.  Perhaps  most  notoriously,  it  was  my  Freedom  of  Information  Act  that  forced  the  release  of  Hillary  Clinton's  e-mails--

Hannah McCarthy: [00:12:04] That's  a  big  deal  Jason.

Nick Capodice: [00:12:06] That  was  you?

Jason Leopold: [00:12:07] That  was  me.  Did  you  guys  not  know  that?  Yeah.  Yeah.  That  was  me.  In  2014  November  2014  I  filed  a  Freedom  of  Information  Act  at  the  Department  of  State  requesting  all  of  Hillary  Clinton's  emails  and  other  records  and  I  did  so  because  it  became  clear  that  she  was  going  to  be  the  you  know  the  Democratic  front  runner  for  president.  And  I  felt  that  it  was  important  to  provide  the  public  with  information  about  how  our  nation's  top  diplomat  conducted  foreign  policy.  Unfortunately  the  scandal  over  the  use  of  a  private  e-mail  server  obscured  that.  And  as  such  you  know  never  really  had  that  opportunity  to  show  what  was  in  the  e-mails  and  why  they  were  so  substantive  and  important. .

Nick Capodice: [00:12:56] You're  quite  a  navigator  of  the  FOIA  process.  Do  you  think  that  it  could  be  better.  Do  you  think  that  there's  a  better  way?  Or  do  you  like  this  process?

Jason Leopold: [00:13:05] Oh  there's  always  a  better  way.  You  know  the  better  way  would  be  to  streamline  the  process  right.  It  would  be  to  hire  more  people  you  know  who  could  work  at  these  agencies  processing  these  these  requests.  Another  better  way  is  when  you  want  to  send  a  FOIA  request  to  the  CIA  that  you  don't  have  to  send  it  via  fax.  You  know  the  CIA  you  can  either  mail  it  or  send  it  via  a  fax  now.  Fax  machine!  Sometimes,  by  the  way  their  fax  machine  is  broken  and  you're  stuck  literally  finding  a  stamp  and  mailing  it. 

[00:13:42] So  with  some  of  these  agencies  it's  a  matter  of  just  bringing  them  into  the  21st  century  and  saying  accept  this  request  via  e-mail  process  it  that  way. .

Nick Capodice: [00:13:52] Is  there  anything  that  you  want  the  world  to  know  about  FOIA  that  maybe  we  don't  already?

Jason Leopold: [00:13:57] FOIA  is  an  incredibly  powerful  tool.  It  is  the  way  in  which  we  can  keep  government  agencies  you  know  on  their  toes  and  let  them  know  that  there  is  a  check  on  their  power.  And  I  think  that  more  journalists  more  members  of  the  public  should  utilize  it.  And  it's  critical  to  an  informed  democracy.  That's  my  soapbox  speech  about  it.

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Made possible in part by the Corporation for Public Broadcasting.

NASA

Space is big - like, insanely, incomprehensibly big - so it's understandable that NASA can seem divorced from the world of cabinet secretaries, White House press briefings, and presidential tweets.

Amy Shira Teitel is the host of the YouTube channel Vintage Space and author of Breaking the Chains of Gravity: The Story of Spaceflight Before NASA. In this episode, she explains how despite its lofty aims, NASA is a lot more political than you might think. 

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TRANSCRIPT

Hannah McCarthy: [00:00:27] I'm Hannah McCarthy.

Nick Capodice: [00:00:28] And I'm Nick Capodice.

Hannah McCarthy: [00:00:29] And this is Civics 101.

Nick Capodice: [00:00:30] Today we're talking about NASA. Can you tell me Taylor how is NASA a civics topic?

Taylor Quimby: [00:00:43] Well NASA is a big government agency.

Nick Capodice: It's so strange. I feel like it's divorced from civics. I feel like NASA is a separate thing right.

Hannah McCarthy: [00:00:51] And I think maybe that's because NASA isn't making decisions that have to do with our daily lives right?

Nick Capodice: [00:00:57] Or our, yeah or our democracy, or the way, but I guess maybe it could maybe it is. So to understand all of this stuff we got in touch with Amy Shira Teitel. She's a space flight historian, a YouTuber, and she posts videos about things like 'why haven't we gone back to the moon' and 'why do people eat peanuts at launches'. Her channel is called Vintage space. Please check it out. And we talked to her via Skype. All right, I guess our first question is can you tell us what exactly NASA is?

Amy Shira Teitel: [00:01:36] NASA stands for the National Aeronautics and Space Administration. And it is a civilian agency that what its name says is, kind of the the main body I guess in the country about dealing with all the science and technology around space exploration.

Hannah McCarthy: [00:01:51] So why exactly was NASA founded to begin with?

Amy Shira Teitel: [00:01:56] NASA was founded as a somewhat in direct response to the Soviet Union launching Sputnik on October 4th of 1957. At the time there were a number of different agencies and military groups in the United States that were starting to deal with things that would eventually become spaceflight the U.S. Air Force was starting to play around with human factors the U.S. Army was developing rockets and missiles that could double as rockets for space flight. And then there was the kind of predecessor organization to NASA called the National Advisory Committee for Aeronautics that was starting to kind of look, it was really the established kind of bureaucracy around all things aeronautics. So like, if the Air Force needed a new plane the NACA would have the wind tunnel to test it. So all these things were sort of working towards the same goal but in disparate places. So it was ultimately Eisenhower, President Eisenhower, who realized in 1958 that if America was going to be able to respond in kind to this new Soviet technology in space it would need to bring together all the existing technologies under one umbrella. So that became NASA.

Nick Capodice: [00:03:02] Who does who does NASA answer to specifically? Well the administrator is appointed by the president. So at the end of the day it is only the president I think can make a decree that NASA has to act on it. The most obvious one is President Kennedy saying we're going to go to the moon and NASA saying I guess we're going to the moon.

[00:03:24] But you know at the same time because it is a civilian agency right, Eisenhower establish it as civilian not military because he really did not want space to become a battlefield for a hot incarnation of the Cold War. So it is in a way beholden to taxpayers as well although of course you end up with senators from different states looking to kind of help feed jobs in their areas, so you end up with NASA centers getting funded for different projects because it's the interest of voters in certain areas, but at the end of the day it all comes down to the president.

Hannah McCarthy: [00:03:56] And does NASA have anybody like an attorney general? Do they have somebody some secretary at the top who they have to answer to when the president isn't saying specifically, you know, time to go to Mars or the moon?

Amy Shira Teitel: [00:04:08] I think that would be the administrator or the administrator is the highest position at NASA. Anything the administrator decrees kind of trickles down to all the centers but then all the NASA centers the individual centers also have a director and then their own kind of leadership. Got it.

Taylor Quimby: [00:04:25] Can I jump in for a second?

Hannah McCarthy: [00:04:26] Oh yes of course!

Taylor Quimby: [00:04:27] What are the centers like? Is there like a moon center, Mars center. As fun as it would be if there was a moon center at NASA I know that the centers are some of them actually predate NASA were old NACA sites that were then folded into NASA, but they are the different sites that are all around the country for different kinds of research. So you have like the Kennedy Space Center is a massive site. It is where things are launched and then you have the Johnson Space Center which is another NASA site, which is where all the human missions are run from a mission control is out there. Then you have JPL, the Jet Propulsion Laboratory in Pasadena, California, which is where all the unmanned missions come from. And it actually works in conjunction with Cal Tech. So it's a little bit messier there but ultimately robotic spaceflight there, and then you have centers like the Glenn Research Center, and the Langley Research Center, and the Goddard Space Flight Center which is all earth science stuff. So each one has a piece of the overall NASA puzzle, if that's sort of a clear way to think about it.

Nick Capodice: [00:05:25] Yeah I'm interested actually in sort of how NASA interacts with all these other agencies in our government, because you know I really think it's fascinating that it's kept so separate from the military. But don't they kind of work together though sometimes?

Amy Shira Teitel: [00:05:40] There there is overlap there is definitely overlap. And actually that's one of the reasons that Eisenhower was the one who also declared that the first have asked not to be chosen for military test pilots. One of the rationales for that decision was that they would have some military clearance are ready and even though NASA was civilian there would probably be some secret aspects in the early days of spaceflight especially given that it was an incarnation of the Cold War that would maybe not be, would need to be kept from the public at least in the immediate future.

[00:06:10] So yeah and you know also not to mention the early rockets like the Atlas that is still launching missions today, that came from a missile that was built with the U.S. Air Force and the redstone launch the Merkur missions came from the army as did the Saturn 5. That was an Army group that was brought into NASA. Honestly I sadly can't answer the question of how the centers interact but I'm sure it's a lot of meetings.

Nick Capodice: [00:06:32] So if legislation goes through the public usually has an opinion. This is a great idea! This is a terrible idea. I'm wondering if back in the 60s was there any public opposition to funding something like NASA?

Amy Shira Teitel: [00:06:46] Oh yeah! Huge. People have this idea that NASA was like the golden child of the 60s and that Apollo was like a happy union of everything like, Apollo had a 50 percent approval rating when Apollo 11 launched. Now people don't remembers that this is right when civil rights was getting, like dominating the national conversation. Also women's liberation, also the Vietnam War. I mean the government wasn't doing anything that anybody liked by the late 1960s and there's always this talk that Apollo 8 which was the first mission to the moon, it just orbited didn't land, that it was sort of like, it saved 1968 in a way because everything was kind of the worst. And then these three guys went to the moon and they took a picture of our planet that shows no borders and no war it's just this beautiful oasis floating in space and suddenly lik,e okay this is bigger than all of us. But it's you know it was not something that people necessarily cared about.

[00:07:44] I mean NASA was living in this bubble of crew cuts and skinny black ties and white dress shirts and people were being killed on the streets in protest. I mean it wasn't exactly a great time.

Nick Capodice: [00:07:55] I'm thinking that Gil Scott Heron's song, "Whitey on the Moon".

Amy Shira Teitel: [00:07:59] That sums it up really well.

Nick Capodice: [00:08:01] So I think my follow up question to that is... It's a big one... Which is why? Why? I'm sorry. Why space?

Hannah McCarthy: [00:08:14] Yeah.

Amy Shira Teitel: [00:08:15] I mean, I know it's it's one of those ones that's like weirdly hard to justify I think. I mean why space in the first place like, because it's there. People have always kind of been fascinated with space and I'm saying like way back when and like the eighteen hundreds and 1900's. It's sort of been kind of feeding that curiosity that the more we learn the more we realize that we don't know. And I think a lot of this stuff ultimately comes back to us wanting to understand our own place in space.

Hannah McCarthy: [00:08:44] So all of that sounds so kind of lovely and pure and a blend of Star Treky. But of course in order to do that we need to get politicians to agree to fund this, to make all this happen. How does NASA factor into politics?

Amy Shira Teitel: [00:09:03] I think everyone especially people who love space specifically people who love space would love to pretend that space is free of politics but space is nothing but politics. I had a little an 8 year old girl asked me at a talk in Australia a couple of years ago why they went to the moon.

[00:09:20] And I just thought God, how do you explain international pissing contests an eight year old in a country that doesn't learn about the Cold War? It's all politics. It always comes down to politics. It's really hard I think for people to look at something like putting a rover on Mars and understanding why their lives immediately benefit. It's hard I think for politicians to then sell their constituents on why they should vote for space things. So it's so wrapped up in politics. But it also means that it is so stuck by politics. And the other thing the other thing that that kind of becomes a bit of a mess with NASA and being kind of governed at the very, very top the president and by an administrator appointed by the president, is that every administration has something different that it wants to do. But space doesn't happen in neat little 4 year packets.

Hannah McCarthy: [00:10:10] So how has the budget for NASA shifted over the years, because things like getting to the moon did happen... But obviously, well at least I would guess that the budget a little bit different?

Amy Shira Teitel: [00:10:23] Significantly smaller. Yeah NASA's budget has changed over the years and that it's much much smaller. So at its peak in about 1966 NASA was getting a little over 4 percent of the federal budget. So 4 percent of all of your tax dollars were going to the space agency. The money NASA got started to dwindle towards the end of the decade and it's kind of gone and ups and downs that never reached that high spending again. Currently it's about somewhere around 1 cent on the dollar so for every tax dollar one penny goes to NASA.

[00:11:00] I mean I can't math but that's just a tiny fraction of what it got in its heyday. Yeah. The problem is that you have to have leaders that come in and say they want to see some big thing happen but they don't want to increase NASA's budget. But you can't do something big like go to Mars with a couple cents on the dollar. You need to kind of get that funding.

Nick Capodice: [00:11:19] But you did, you said to us that it feels like that NASA is stuck. Do you have any idea of how to get unstuck?

Amy Shira Teitel: [00:11:27] Yeah I don't I don't know. I mean I think what it what it ultimately takes is someone with vision beyond his or her term as president or administrator because what we ultimately need I mean we can't go to Mars in five years. We can't get to Mars over somebody's term as president. If someone had the vision to do something that was like for the benefit of humanity that somebody couldn't come along and easily cancel I mean. But it's hard to have that kind of vision.

Taylor Quimby: [00:11:54] Or maybe, this is the cynical viewpoint Amy, is that maybe you need another Cold War.

Amy Shira Teitel: [00:12:00] Yeah I mean, that's the that's the one that I don't like to talk about but like it could be that you know if you know if China says we're going to put people on the moon and do this, America might suddenly be like all right here NASA, take 5 percent of the federal budget again and just do it. Make it happen now.

Nick Capodice: [00:12:15] What's what's NASA up to today? What kind of stuff are they doing?

Amy Shira Teitel: [00:12:19] Yeah people have this idea that NASA ceased to exist when it cancelled the shuttle program. That's not the case at all. The most visible thing that NASA is doing that we see is the International Space Station. There's still people up there all the time. There's also a lot of earth science going on missions that are currently mapping things like water level and rising sea level which is super important for us to understand what's actually happening with climate change. And then out of JPL we still have all the deep space robotic missions. The Voyagers that were launched in the 1970s are still sending back data. We've got the Curiosity rover on Mars and that's NASA mission and that's the stuff that's kind of visible. There's always stuff happening that people don't know about.

Hannah McCarthy: [00:13:01] Is there anything else you wish we knew about NASA before we let you go, Amy?

Amy Shira Teitel: [00:13:06] The one thing I try to get everybody to really think about when it comes to NASA is how much the technology that comes out of NASA ends up back on Earth with us because I think if people understood how much NASA really does for us like medically and everything every day, you might change your tune about NASA being a giant waste of money to put fancy smart people in space. You know I mentioned LASIK coming from line of sight over orbital rendezvous but there's like new mammogram technology that's able to detect much smaller cancers came out of not the technology, the technology that keeps your drink hot or cold in a thermos came from NASA. And people don't think about the connection to NASA. But I think if they did you might kind of have a better appreciation for just just how important the space agency actually is in this country

Nick Capodice: [00:13:56] That was Amy Shira Teitel, she runs the YouTube channel "Vintage Space" and she wrote a book about the origins of NASA titled, Breaking the Chains of gravity. We're going to quick break but we'll be right back

Nick Capodice: [00:14:17] So Taylor we recorded this episode a few weeks ago and Hannah is not here today, she's out sick. But one of the main things that stuck with me is how political space is. This place that I thought politics did not exist, suddenly is everything. Space is nothing but politics and there is something you were talking with me recently, which is there's a, is it a new head of NASA?

Taylor Quimby: [00:14:39] The NASA administrator.

Nick Capodice: [00:14:41] Administrator OK. So what does that have to do with anything?

Taylor Quimby: [00:14:43] Well I think a lot of the stuff that Amy talked about about the intersection of politics and NASA and space sort of come together with this confirmation. Jim Bridenstine is a Republican member of Congress from Oklahoma. It's a former Navy pilot and he's actually the first head of NASA who is a congressman and previous administrators have been basically science professional so people who either came up the ranks through NASA or people who are scientists that sort of thing. So this was pretty much the most hotly contested and controversial confirmation of a NASA head in history.

Nick Capodice: [00:15:21] I have known what's going to be like with somebody who hasn't come up through the ranks being at the head of this very scientific organization?

Taylor Quimby: [00:15:27] Well I think for some people, that is the concern is that they just don't quite know what it means. But there's actually something pretty telling that might give us a hint of what Jim Bridnestine is going to be thinking about as the administrator. And that's because in April 2016 he put forth some legislation called the American Space Renaissance Act which he openly admits is less a piece of legitimate legislation that he hoped to pass, so much as I mean it sounds like a resume for what he thinks NASA policy should be. And there's a real emphasis on exploration and and an emphasis with that exploration on security, and some deemphasis on research especially sort of Earth Sciences Research which is a cause for concern for a lot of folks because he has hedged on climate science.

Nick Capodice: [00:16:15] One thing that Amy brought up that I had never considered is if you shift if you shift gears from say Mars to the moon you kind of got to start from scratch. You've been working on all this stuff for so long to change the mission is a huge thing.

Taylor Quimby: [00:16:27] Well well and this I think there's some interesting room for debate here because one of the things that Jim Bridenstine has talked about and that he's proposed is making the NASA administrator have a five year term to create some sense of continuity.

Nick Capodice: [00:16:40] To sort of help influence the next incoming president.

Taylor Quimby: [00:16:42] Right. And potentially to fund NASA under sort of larger multi-year project based stuff. So I think that would that would also maybe ease some of the problems that that Amy talked about of why NASA sometimes gets stuck.

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Made possible in part by the Corporation for Public Broadcasting.

The White House Press Secretary

Mara Liasson, National Political Correspondent for NPR, has reported on White House press briefings for three administrations. She tells us about the role of the Press Secretary, and how the job has changed from president to president.

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TRANSCRIPT

Nick Capodice: [00:00:35] I'm Nick Capodice

Hannah McCarthy: [00:00:37] And I'm Hannah McCarrthy

Nick Capodice: [00:00:37] and this is Civics 101 the podcast refresher course on the basics of our democracy. Today the White House press secretary.

Hannah McCarthy: [00:00:44] I'm really excited for this one.

Nick Capodice: [00:00:46] Our guest has been through myriad press secretaries. It is Mara Liasson national political correspondent for NPR.

Hannah McCarthy: [00:00:53] This is going to be great. Let's do it. All right. Well Mara thank you so much for joining us. Welcome to Civics 101.

Mara Liasson: [00:00:59] Thanks for having me.

Hannah McCarthy: [00:01:00] So I guess let's start with the very brass tacks. What is the job of the press secretary.

Mara Liasson: [00:01:07] The job of the press secretary is to communicate the president's agenda to answer questions from the press. And beyond that every press secretary has defined the job a little bit differently.

Hannah McCarthy: [00:01:19] Have you reported for several different press secretaries?

Mara Liasson: [00:01:22] I have covered three White Houses; Bill Clinton Barack Obama and now Donald Trump. I was the national political correspondent during George W. Bush. So I wasn't at the White House every day or I wasn't part of the White House rotation.

Mara Liasson: [00:01:39] But for those other three presidents I was and every one of the press secretaries for those presidents had a slightly different approach to the job. Mike McCurry who was Bill Clinton's press secretary was famous for saying his job was to be as truthful as possible and as helpful as possible to the press while also trying to communicate his boss's agenda and put it in the best possible light. Other press secretaries have seen their job as more as a combatant as pushing back against the press, demonizing the press, kind of using the press as a foil. And the communication part, the explaining the administration's agenda has been secondary to those press secretaries. So it just depends on the president and the administration.

Nick Capodice: [00:02:27] One thing I'm curious about is if you could describe sort of the scene when you step into a White House press conference because you've been to a couple of these. What's it like when you're sitting around waiting for a while?

Mara Liasson: [00:02:37] Are you talking about a presidential press conference or or just the regular press briefing?

Nick Capodice: [00:02:42] Both. What's the difference between the two of them?

Mara Liasson: [00:02:45] Well there's a couple there's a couple, there's many different ways that the president and the press secretary communicate with the press. The most famous is a presidential press conference where it's formal. The president stands there and takes questions from reporters. Most presidents did a lot of those. Donald Trump has only done one in February of 2017. One formal stand alone solo press conference. However Donald Trump does interact with the press a lot.

Mara Liasson: [00:03:13] He answers questions at what we call pool sprays we're a small group of reporters is ushered into the Cabinet Room or the Oval Office and he's meeting with someone or he's signing something and he answers a few questions on the fly. Or he's going out to the helicopter or he's coming out of Air Force One. So he interacts with the press that way. Then there's the foreign leader press conference which under Trump has become what's known as Two and Two. Each leader takes two questions from their own press corps. So the president answers two questions from American reporters and then the foreign leader calls on two of the traveling press corps that has come with him from his country. Then there's the press briefing which happens every day. That's Sarah Sanders standing in the briefing room. We've had many different press secretaries use the briefing in different ways in past administrations. They stood there until all the questions were finished sometimes it could be as long as an hour. Sarah Sanders keeps it very brief. Sometimes she eats up a lot of time at the top by reading from prepared remarks, making some announcements. But the biggest I guess the biggest sea change for me was when the daily press briefing was televised. There were many press secretaries who have come to regret that because it does lead to grandstanding by some reporters. And it's less useful and more of a confrontation.

Hannah McCarthy: [00:04:42] And in those daily briefings how does the press secretary choose who they're going to call on?

Mara Liasson: [00:04:48] In the press briefing the press secretary can call on whoever she wants. Same thing in the press in a press conference with the president.

Mara Liasson: [00:04:54] But Sarah Sanders generally, not always but generally, does what passed press secretaries have done which is starts with the front row. The wire services sit in the front row. And so do the representatives of the major television networks and cable outlets. I sit in the second row. So the first row is NBC ABC CNN FOX Reuters AP. In the second row is the Washington Post The New York Times NPR Bloomberg CBS radio etc.. So so generally she starts with the first ro but then she calls on whoever she wants.

Hannah McCarthy: [00:05:33] And in terms of that seating is that something that the press secretary decides on

Mara Liasson: [00:05:36] No the seating is determined by the White House Correspondents Association. We actually have assigned seats. My seat has a metal plaque on it that says NPR. And I am not. Let's see. I'm not exactly sure how those decisions get made but I can tell you that NPR used to have a seat farther back, way over on the left.

Nick Capodice: [00:06:01] Congratulations

Mara Liasson: [00:06:01] Yeah but during Clinton somehow or other they moved me up to the second row right in the middle.

Hannah McCarthy: [00:06:06] Not bad.

Mara Liasson: [00:06:07] Not quite sure how that happened. You know sometimes news, news organizations go out of business they lose their seat in the briefing room things get shuffled around.

Hannah McCarthy: [00:06:16] Does the press secretary play favorites at all in terms of who they're doling information out to or who they're calling on?

Mara Liasson: [00:06:22] Well first of all they're doling out information to everybody we're all sitting there it's carried live on TV. But in terms of who they call on yes there's no doubt that sometimes press secretaries will go to what they consider to be a friendly reporter just for some relief, or a reporter who's marginal or is guaranteed to ask a question totally off topic.

Mara Liasson: [00:06:43] Sure there's a strategy to this but don't forget, the press briefing even though it's the most public way that the press secretary and the and the White House interacts with the press because it's televised, is not the most important way that journalists get information from the White House because we're spending all day trying to ask questions of administration officials on background, off the record, away from the cameras.

Nick Capodice: [00:07:10] In terms of the job what kind of qualifications is good for someone to become a press secretary?

Mara Liasson: [00:07:16] An iron stomach. And a thick skin. Somebody who's unflappable. Generally someone who has a pretty even demeanor. I don't think especially for television which rewards cool over hot a hot headed press secretary would do very well. But Sarah Sanders actually has a very good personality to be the press secretary. She's very even.

Nick Capodice: [00:07:50] It seems sometimes the press secretary has a unique role that's kind of getting it from both sides. You know they have to. They're getting it from the press but also from the president. I just was watching the video of Nixon shoving his press secretary of Air Force One.

Mara Liasson: [00:08:04] Well there's no there's no doubt that the press secretary serves to mask. No well there's no doubt that some press secretaries see themselves as serving two masters. Mike McCurry certainly did. He thought he needed to serve the press and serve the president and try mightily never to lie to the press. During the Trump administration, it's a little bit different. The press secretary more or less has an audience of one. That's true of any Trump administration official who goes on television, they're communicating or performing for the president. And the president likes it when the press is excoriated or when the press secretary pushes back against the press. I think the most famous instance of this of course was Sean Spicer's very first press conference where the president literally sent him out to the briefing room to insist that his inauguration was the most heavily attended inauguration in history. Which turns out not to be true. It's important even in this post truth era that we're in with Donald Trump, it is important for the press secretary to retain their credibility and to try as much as possible to be accurate and tell the truth. That's why you hear press secretaries including Sarah Sanders often say, this to the best of my knowledge. Here's this piece of information. Or I haven't spoken to the president about that or you know I haven't asked him that question. I haven't discussed this with him. So better to be ignorant than inaccurate.

Hannah McCarthy: [00:09:31] Yeah. On that does do members of the White House staff ever lie to you or withhold information from the press secretary so that they can be ignorant and don't have to lie to the press about something?

Mara Liasson: [00:09:43] Sure. That's called plausible deniability. Absolutely. Better to be out of the loop than to be saying something that turns out to be false. Why. You know there's so much discussion now. The truth doesn't matter any more objective facts don't matter. That Trump believes that he can pretty much say whatever he wants and it won't matter. But credibility does matter. What happens when the president is asking Americans to sacrifice because of something that he has decided is important to do, he has to have credibility for that. What happens when the president is asking U.S. allies to follow the U.S. in some kind of endeavor or or military action. You know credibility is important and if you are cavalier with the facts there will come a time when nobody will believe you and you'll need them to.

Nick Capodice: [00:10:30] Are there any particularly memorable moments from those briefings in your in your tenure of reporting on them that you would like to share?

Mara Liasson: [00:10:39] Oh boy oh boy. I mean you could you could you could use the most current examples where you know the press secretary denied that the president knew about the payments to Stormy Daniels because because the president himself had denied them. I mean and then those those turned out not to be operative but I can't think of anything really off the top of my head a lot of times these press briefings are soporific and boring. And sometimes that's the goal. Not to make news.

Nick Capodice: [00:11:07] And when you're in there these are these are people with whom you've worked for a long time are you just chit chatting beforehand?

Nick Capodice: [00:11:12] Oh you mean my colleagues from different news organizations? Yes of course. Yes. And we all get along really well. And sometimes the press doesn't do a good job of following up and reinforcing each other's questions. But we try.

Hannah McCarthy: [00:11:24] And how often is the press contradicting what the press secretary is presenting as fact? Does that happen pretty regularly?

Mara Liasson: [00:11:32] Sure. Yes absolutely. It happens all the time. More and more during the Trump administration than than before. When the president says three million people voted illegally and there's no evidence for that? Sure. We will mention that to the press secretary and then he'll she'll generally say something like "Well this is what he believes". She'll find. She'll find some kind of safe lilypad to alight on where she can say something that's technically accurate, because no press secretary wants to flat out lie to the press.

Hannah McCarthy: [00:12:00] And who is giving the press secretary their information. Who briefs them before they brief you?

Mara Liasson: [00:12:05] Oh they go, they go around and they have they have a pre-briefing meeting they go around to different officials in the administration and in the White House to get the best information they can so they can transmit it. That's why it's often the press briefing is late because they're scrambling to put their talking points together.

Hannah McCarthy: [00:12:22] Yeah I think we sort of touched on, I was very curious as to whether or not being a member of the White House press corps was exciting or tended more toward the boring side of things compared to your .

Mara Liasson: [00:12:32] Well you know I used to say I used to say that the exciting part of the job starts when you walk in the gates off of Pennsylvania Avenue and the and it ends when you walk in the door to the White House because a lot of times the the life of a White House correspondent is like an animal in the zoo. You're in a cage and you can't really go anywhere you want to walk around. Occasionally they open the door and they throw in a piece of red meat, a little bit of news they shut the door and then they run like the zookeeper.

Mara Liasson: [00:13:00] But covering the White House is a peculiar kind of beat because you can't roam the halls like you do in Congress. It's more restricted and especially in this White House where they really do see themselves as at war with the press.

Hannah McCarthy: [00:13:14] How easy would it be for the president to revoke a White House press corps reporter's credentials?

Mara Liasson: [00:13:21] Well they certainly could do that. Well what they can do is they can revoke the hard pass that allows you to come into the compound. You can still cover the White House without having access to the briefings or or access to the physical space in the White House. In other words you can't stop someone from covering the White House. There are many reporters who write stories about Donald Trump and never set foot in the briefing room. What he's talking about it sounds like trying to exert some control over reporters who cover the White House and I think that would be difficult. Physically they could do that. They could definitely they could kick the entire press corps out of the West Wing and they've often talked about that in the past kind of moving us over to the Old Executive Office Building across west across Executive Drive. But getting rid of credentials that doesn't mean that the press won't continue to do its job.

Nick Capodice: [00:14:13] That was Mara Liasson. She's the national political correspondent for NPR and she's got the brass plate on the chair in the second row.

Hannah McCarthy: [00:14:19] This episode was produced by Nick Capdoice and Ben Henry. Executive producer is Erica Janik and our team includes Jimmy Gutierrez Justine Paradis and Taylor Quimby. Our music is by Asura.

Nick Capodice: [00:14:31] And you don't have to be a national political correspondent to know what's what when it comes to how American government works we are casting our net far and wide for civics teachers across the country to be guests on our episodes. So if you know a really great teacher or you or the teacher give us a call and tell us what kind of topic you'd like to do with us the numbers 2 0 2 7 9 8 6 8 6 5. Tell us your name where you teach and what kind of topics you'd like to do. Chances are we'll be right back to you.

Hannah McCarthy: [00:14:57] I'm Hannah McCarthy.

Nick Capodice: [00:14:57] I'm Nick Capodice.

Hannah McCarthy: [00:14:57] Civics 101 is a production of New Hampshire Public Radio. 

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Made possible in part by the Corporation for Public Broadcasting.

ICE: U.S. Immigration and Customs Enforcement

ICE, or U.S. Immigration and Customs Enforcement, is one of the nation's youngest law enforcement agencies. It's also become one of the most controversial. So what does ICE actually do? 

Dara Lind, a senior reporter for Vox, walks us through how ICE got its start, some of its responsibilities today, and what we can expect from the agency moving forward.

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TRANSCRIPT

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

Civics 101

Episode 120: ICE

Hannah McCarthy: [00:00:07] Nick, how much do you know about ice?

Nick Capodice: [00:00:09] My knowledge of ice is in the wake of the attacks of September 11 and felt like immigration laws and treatment of the undocumented changed drastically. But I don't know what their practices are and I don't know what their legal boundaries are.

Hannah McCarthy: [00:00:26] Right. I feel like I often hear about controversy around ice. I don't know what they're allowed to do it. They're not allowed to do why that institution was set up exactly as it is. And Jimmy Gutierrez you know him he's a producer on our show. He reached out to this reporter at Vox Dara Lind. And Dara has actually been reporting on immigration I think most of her career. So she is really the person to get in touch with if you want to understand what ICE is why it's doing what it's doing and what it is doing in this country.

Dara Lind: [00:01:08] So ICE as an agency dates back to about 2003 it was created as part of the Department of Homeland Security after 9/11 but the functions that ICE does were before 9/11 done by the Immigration and Naturalization Service that was under the Department of Justice. And it was the one immigration agency that the government really had. So it was responsible for you know getting legal immigrants into the country it was responsible for border patrol. And it also was responsible for in theory apprehending and deporting people who were either in the U.S. without papers or who had violated the terms of their visas. Most of the people who actually got deported at that point were people who had been legal immigrants who had committed crimes so they would get picked up from prisons if INS agents knew they were there in some cases it wasn't a constant thing. But like there were you know maybe several thousand deportations a year.

Hannah McCarthy: [00:02:05] And so why specifically was ice created with this mission in mind?

Dara Lind: [00:02:12] So when the Department of Homeland Security was created there it was both a response to 9/11 and kind of a thing that people had been thinking about for a while. So in the second category of things there. Because you only had the one immigration agency and it had all of these different duties sometimes you know prioritizing one thing could lead to letting another fall off like it's really very difficult to simultaneously make it as easy as possible for people who have legal status to like come into the U.S. and to process those applications. When you're the exact same people who are stopping people at the border if their papers are not in order. So there was an interest in kind of separating that out and having three single function agencies instead of one multi-function agency so that they could better focus on doing their job. The other part of this though is that this was a reaction to 9/11 and one of the big policy problems that had led to the 9/11 attacks was that several of the 9/11 hijackers were here on visas but had overstayed or were violating the terms of their visas. And in theory a more aggressive immigration enforcement system might have caught those violations.

Hannah McCarthy: [00:03:27] When did immigration policy and detainment really get its teeth in the United States?

Dara Lind: [00:03:33] So under President Clinton in 1996 a bunch of laws got passed that were you know kind of moved the needle to the right in policy domestically generally. You know one of those was the Welfare Reform Act. One of those was the EPA dealing with the death penalty. But the one that's kind of most relevant for immigration stuff was called the Illegal Immigration Reform and Immigrant Responsibility Act. Ira Ira and it was a really broad expansion of immigration enforcement that kind of doesn't get credited a lot today but that at the time was a very big you know we're going to be tough on these immigrants move from the Clinton administration and the Democratic Party to make it clear that they were tough on crime and you know weren't and tough on the rule of law. The IRA IRA act built a lot of the kind of legal infrastructure that gets use today for deportation. In particular it builtin in a couple of places the ability for local law enforcement departments to work with the federal government on immigration enforcement. The thing is that the Clinton administration didn't actually use those tools. The director of INS at the time got a bunch of applications from local law enforcement departments that like wanna to get deputized. But what she told me was that she required every community that wanted to start doing that to hold a community meeting and to see whether it really made sense you know to hear from members of the community and see whether it was really the best idea for their police officers to start thinking of themselves as immigration deputies. And she said that no one really got past that point. So it was kind of building the skeleton. When DHS and ICE got created in 03 Congress started giving them the funding that actually allowed them to do that. So they started putting the muscle on that skeleton.

Hannah McCarthy: [00:05:27] So this actual process of deporting somebody it starts with you know finding them and detaining them right. So who makes the decision of who to go after especially when you don't necessarily prioritize someone who's committed a crime?

Dara Lind: [00:05:41] This is an extremely good question and because ice is a law enforcement agency that doesn't like discussing things about how they may quote unquote law enforcement decisions. You don't get a really clear answer about what kinds of processes they have. We do know that the ice has access to a lot of law enforcement and Homeland Security data bases kind of generally we don't know how often it uses that access. That's a very big question for you know people who are concerned about government surveillance as well as immigrant rights. But the question isn't just how they find people but also is there ever a point where someone is identified as an unauthorized immigrant and the ice agent or somebody above the ice agent in the ice office says no you shouldn't go after that person because we need to be doing other things with them with your time. We need to be doing other things with that money. We need to be doing other things with you know detention space that we have so that is really what the black boxes. And if you listen to the public side of this debate it sure sounds like there is nobody telling an ICE agent. No you can't deport that person that it's entirely up to the individual agent. But there have been some cases where after somebody gets detained and the government is preparing to deport them there's been a big media backlash and the government has said OK fine we won't deport you just yet we'll give you some kind of temporary stay. That's not as common as it used to be under the Obama administration. There definitely have been cases where there has been a big public push and like members of Congress have asked them not to deport someone and they've gone ahead and done it. But there have been some cases where they've stepped back which does indicate that some kind of decision up the chain is getting made.

Hannah McCarthy: [00:07:32] And when somebody is picked up by ICE what happens to them next are they sent to a detention facility?

Dara Lind: [00:07:39] That depends. A lot of this process looks a little bit like the typical process for somebody who gets arrested just like someone who gets arrested for a crime you know they might be put into jail or in this case detention or they might be released on bond. They might have an ankle bracelet. The travel administration has been trying to increase detention. But there are certain circumstances under which you know a judge can just say no this person should be released. The key moment between somebody getting arrested and them getting deported is that most immigrants who are caught in the U.S. have a right to hear appear before an immigration judge which is a separate kind of court. It's under the Department of Justice so it's not under ice. But the prosecution in those cases are ICE attorneys so ice kind of represents the federal government saying this person is deportable and is not eligible for some other form of legal status. And it's the immigration judges job to figure out whether or not that is the case. However immigration courts in general been keeping up with these deportations because they're under the Department of Justice. ICE has gotten a ton more resources from Congress over the last 15 years and the Department of Justice's immigration court office hasn't really as much. There have been efforts to give it resources that are a little bit too little too late. So they're currently super overworked. There's a super long backlog. It takes about 700 days for the average case right now to make it through the court. That's not as long for people who get who are being kept in detention the whole time they really do make an effort to kind of cycle those people through and it's harder for them to get lawyers so there it's probably a matter of weeks in most cases and at the end of that process you know either because you don't have papers and you don't have any way to get papers you're ordered deported anyway or you actually successfully make the case that I should get asylum. I should. You know I my country will torture me. There is like a provision in the Geneva Convention Against Torture that I should be able to access that kind of thing. And you can get the judge to give you some kind of really from deportation that's pretty rare. So usually what happens is that people are just waiting for you know a matter of weeks and then they're in court for 10 minutes and then ice picks them up. And you know schedules a flight and puts them on the plane.

Hannah McCarthy: [00:10:04] And is every single one of these immigrants granted a lawyer?

Dara Lind: [00:10:09] Now this is the other thing about immigration court not being like typical court. There is no right to representation in the immigration court at all. And I don't know the percentage of immigrants who end up quote unquote representing themselves. But it's extremely high especially again in cases where they're coming you know there's a courtroom in the detention center and so they're being marched from their detention cell to the court. Those cases go by very quickly and there's very little chance they'll even be able to talk to a lawyer. A lot of pro bono organizations do some work around immigration but they only have so many resources so they tend to pick the cases that they think are the easiest to win. There are some experiments going on at the local level with you know cities giving them money for lawyers to represent everybody who comes through a detention center in immigration court. And those who have been promising and successful but under the Department of Justice there's also a lot of pressure on immigration judges to go through cases more quickly.

Hannah McCarthy: [00:11:10] You'll hear from some politicians that deportation of undocumented immigrants is equated with lowered crime rates. So. So are communities safer because of ICE's aggressive tactics?

Dara Lind: [00:11:25] Aggressive tactics, absolutely not. As a matter of fact even the ice even the current leadership of ice will tell you that they only that they would rather go into jails and do all their arrests. That that's the safest option for them and for immigrants whereas going into the community is riskier because you know there are other people around. But there's absolutely no evidence linking no immigration to crime generally the evidence about unauthorized immigration and crime is slightly less unambiguous is kind of the that's the most generous way I can put it. It still does for the most part indicate that you're not. There isn't evidence that unauthorized immigrants are at least not reliable evidence that unauthorized immigrants are substantially more criminal in nature than anybody else. And deportation is kind of an independent question of that anyway because yeah you're taking some people out of the community but ICE has never been at a point where it could deport even. You know even a noticeable fraction of the immigrant community if you think about it there are 11 million unauthorized immigrants in the U.S. That number basically hasn't budged since the beginning of the Great Recession. And so any you know even during the time when there were 400000 people a year getting deported. That's at best kind of a cup in the ocean. So it's really hard to argue that going in and arresting and deporting people has an effect on crime rates. Unless you're trying to say that somebody would be tempted to commit a crime but if they see that other people are getting deported they won't do it. And even if that were the case the Trump administration isn't targeting people who have committed crimes there. You know kind of undoing that targeting. So it's it's very hard to understand the current administration's policy as an anticrime effort. What kind of gets tied up in that though is that for people who care a lot about the rule of law quote unquote even though being in the U.S. without papers is not a criminal offense. It's a civil offense. Those people still think of it as well you violated U.S. law by being here. So we are making U.S. law means something by deporting you and so by that measure you can say that immigration enforcement protects the rule of law but it's one of those things where protecting the rule of law and protecting people from crime are actually independent.

Hannah McCarthy: [00:13:54] On the flip side of that these activists going as far as calling ICE a modern Gestapo and you know some immigration advocates have championed this motto abolish ice. How do you expect this debate to move forward from here?

Dara Lind: [00:14:10] I think the abolish ice conversation has you know benefited from being a conversation from the party out of power. It's very easy to point to the most obvious manifestations of ice and go we need to abolish this agency but as even Democratic politicians even progressive Democrats like Kamala Harris who have been asked this question have said ICE also does a lot of things that are not politically controversial. V. You know when we've been talking about ice through this whole thing we've really just been talking about the enforcement and removal operations division which is the most visible and is one of the most prominent. But a lot of ice agents are under homeland security investigations. They do longer investigations of like human trafficking drug trafficking that kind of thing. And don't just go after immigrants so you can definitely expect at least for the near future to see Democrats defending the existence of ice as an agency even if they say some of the things that ICE agents are currently doing are beyond the pale what's going to be interesting though is to see where Democrats end up coming down on the question of whether people should be deported because there isn't the low hanging fruit that I was talking about earlier the kind of people who are already coming into contact or who already have criminal records. There's not a ton of that. And the more of it you pick the less of it there is. So you can't have another round of. Well we're going after hundreds of thousands of immigrants a year but all of them have criminal records. Not that that was ever what Obama was actually doing. But he managed to get away with messaging it for a few years. Now that Trump has kind of pulled the curtain back on that you can't really go back to well we're being very aggressive. Everyone we're being aggressive with deserves it. And so I'm not at all sure whether Democrats unless they manage to you know get both Houses of Congress and the presidency and do something that would actually legalize unauthorized immigrants who have been in the U.S. for years. I don't know where the party ends up on saying well the law says that if you don't have papers you can be deported. Most people who don't have papers have been here for over a decade are integrated into their communities. I don't know how those two things get squared in a post Trump Democratic Party and I think that that conversation is going to be one to watch.

Hannah McCarthy: [00:16:33] Dara Lind is a senior reporter at Vox covering immigration.

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Made possible in part by the Corporation for Public Broadcasting.

The National Guard

Miranda Summers Lowe, Military Curator at the Smithsonian and active National Guard soldier, tells us the history of the Guard, the process for calling them out, and what sets them apart from other branches of the USAF.

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TRANSCRIPT

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

Civics 101

Episode 119: THE NATIONAL GUARD

Hannah McCarthy: [00:00:08] What do you know about the National Guard.

Nick Capodice: [00:00:10] I know the National Guard has offices in our city in Concord and they're all across the country. What do you know about the National Guard.

Hannah McCarthy: [00:00:17] I know why I remember commercials that goes something like at the Army National Guard. You can

Nick Capodice: [00:00:24] You can what though. I don't know what they do.

Hannah McCarthy: [00:00:26] I'm not sure what they do. I'm Hannah McCarthy

Nick Capodice: [00:00:30] And I'm Nick Capodice.

Hannah McCarthy: [00:00:31] And this is Civics 101

Hannah McCarthy: [00:00:32] And today we're talking about the Army National Guard. I'm curious what they do and how they train and how they train on weekends.

Hannah McCarthy: [00:00:39] I'm pretty sure they're called in often for natural disasters like evacuating people for hurricanes or things like that

Nick Capodice: [00:00:45] Do they like have an air siren that's like hollering the National Guard.

Hannah McCarthy: [00:00:47] I think I know that it's the kind of thing that can help you pay for school.

Nick Capodice: [00:00:52] I'm also curious as to who authorizes the use. I know the president usually calls in the National Guard.

Hannah McCarthy: [00:00:57] Yes.

Nick Capodice: A lright let's go

Miranda Summers Lowe: [00:01:03] My name is Miranda Summers Lowe. I'm a military history curator for the Smithsonian's National Museum of American history and I am also a member of the D.C. Army National Guard. National Guard history is my favorite and no one ever asks.

Hannah McCarthy: [00:01:22] Ahh, this is perfect

Miranda Summers Lowe: [00:01:24] I was so excited when this came down the pipeline.

Hannah McCarthy: [00:01:26] Oh good we're so excited too. So I guess we can just let's start there go into brass tacks here what is the National Guard

Miranda Summers Lowe: [00:01:35] The National Guard is this really unique organization. Most countries worldwide have a military and they have some kind of reserve component. But we are the only country that has this military organization that can be called out by the state and kind of has this state character and state control. And I think there's just there's something very American about it. When our country was founded there were a lot of feelings that if you had this large standing army it would be really expensive and it wouldn't be responsive to communities or representative of communities so that decision that a bunch of people made in the 17th and 18th century like it still survives and it's turned into this pretty incredible organization where people from all over the country kind of get together and they volunteer to do this amazing thing with their time usually on top of whatever other job that they're doing as their full time employment.

Nick Capodice: [00:02:41] What's a reservist

Miranda Summers Lowe: [00:02:43] A reservist would be anyone in any of the branches of the service who is not full time. So you call that active duty. So those are people where their job every day is to put the uniform on and show up to their place of duty and do that. And the reservists would be someone who only does that when specifically ordered to.

Hannah McCarthy: [00:03:05] And so these are the weekends that you have to do or they just to keep you fresh.

Miranda Summers Lowe: [00:03:11] Sure. So the weekends that you do are to gain that training and then also to get to know the unit that you're in and build that camaraderie and that teamwork.

Nick Capodice: [00:03:22] Does every state have its own National Guard. Or is it just one large organization.

Miranda Summers Lowe: [00:03:27] Every state has its own National Guard and probably the biggest thing that makes the National Guard different than other reserve components would be the state control under state identity. So there are actually 54 National Guards one for each state and then the District of Columbia Puerto Rico the Virgin Islands

Nick Capodice: [00:03:46] Guam?

Miranda Summers Lowe: [00:03:46] Guam, there we go. Thank you.

Hannah McCarthy: [00:03:48] So can you describe for us a little bit what that whole process is like how you sign up and then once you're in it what you're doing.

Miranda Summers Lowe: [00:03:57] You sign up most regular recruiting stations can do it. You know you decide which branch of the service you want to be. And in my case I knew I wanted to join the army. And there are specific National Guard recruiters. There are also some multi component recruiters so you talked to one recruiter and they can help figure out if the best fit for you is to go active duty or Army Reserve or National Guard. You go to the same military entrance processing station that anyone joining the military would, you go through a physical one they look at your your test scores you took a test called the ASVAB.

Hannah McCarthy: [00:04:34] I like that name, ASFAB.

Miranda Summers Lowe: [00:04:35] It does sound good. I know a lot of people take that in high school. You know I hadn't. So when I went in I had to

Nick Capodice: [00:04:44] Is it a written test or a physical test?

Miranda Summers Lowe: [00:04:46] It's a written test like a physical with a doctor. But other than that you don't get a physical test until you get to basic training

Hannah McCarthy: [00:04:54] So you don't have to prove that you're physically fit enough to actually sign up for the National Guard.

Miranda Summers Lowe: [00:05:00] No I think most recruiters will try to get you to do that on your own

Nick Capodice: [00:05:07] And then. So once you're in it. What does that look like. What do you do. Once in the National Guard.

Miranda Summers Lowe: [00:05:14] So everybody who joins the National Guard starts out by going to the initial entry training for their branch of service and their jobs so for me in the army that was Army basic training and that's the same no matter which component you go to. And then you go into your specialty training. My first job was in supply. So I went to the unit supply school.

Hannah McCarthy: [00:05:37] We definitely want to hear more about what it's like to be in the National Guard. But I am so curious as to why we have. Is it like the army that stays in the U.S? Is that why it was founded?

Miranda Summers Lowe: [00:05:49] If you go back to why the National Guard was founded when our country was you know starting to take root Well you know we were building the colonies. There was only a National Guard or militias if you look through really like the first hundred years or so if you look at the roots of the National Guard you have these militias in places like Virginia and Puerto Rico and Florida, long before you have a federalized government. The National Guard says that our founding date is in 1636 even though you know we had how the regular army their founding date is in 1775. So there's this whole heritage of these kind of locally controlled voluntary armies long before we have this kind of larger standing army that stays on active duty.

Nick Capodice: [00:06:39] So Hannah and I both in the context of what is the National Guard do we both the first thing we said was calling out the National Guard like it's this thing that happens. So can you tell us who does that and what happens when you're called out.

Miranda Summers Lowe: [00:06:56] So there are three basic ways. The National Guard can be used. Two of them are state directed. So Title 10 is federalizing National Guard troops. That happens to send them overseas. When you think of you know hearing about maybe a National Guard unit going to Afghanistan

Nick Capodice: [00:07:14] And that's when that's extra people are needed. Like we we need more people in a certain place. So we're going to go to this branch which is usually reserved for America and take them to other places.

Miranda Summers Lowe: [00:07:26] Correct. OK. The other two statuses so state active duty and Title 32. That's when you're under state control. And that is typically used for things like disaster relief.

Hannah McCarthy: [00:07:39] So that would be like if a town were to be flooded they might send in the National Guard to evacuate people or with the National Guard show up after the you know the evacuation had happened.

Miranda Summers Lowe: [00:07:52] This is where you know it is kind of confusing. There's a lot going on with all these different statuses. But in the case of a flood like you mentioned the governor of that state might decide to call out their National Guard on state active duty which is entirely within his or her control for two or three days to help with evacuations and filling sandbags and setting up medical care facilities and all these other things. Then after that flood hits it may become a like a federal emergency management area. And at that point the federal government may decide to keep those same people on federal duty and so they would use the Title 32 status for that

Nick Capodice: [00:08:37] The president can call in the National Guard. The governor can call in the National Guard. Is that the only two positions that can make use of the like the call out.

Miranda Summers Lowe: [00:08:45] Right.

Nick Capodice: [00:08:46] And when you when the National Guard gets called out you're a reservist. How'd you get contacted like what's what happens when the call is made. Did there used to be pagers or did someone just call everybody?

Miranda Summers Lowe: [00:08:58] I do remember the days of phone trees. You know I remember once being in college. And that's how far from just for this practice to see how fast they could get a hold of me like the department secretary knocking on the door of my classroom pulling me out.

Miranda Summers Lowe: [00:09:15] Whoa that's I mean I guess they really got you on this one. Yeah she's in biology class. There's some pretty great automatic system so like I don't know if you've seen this in other areas but where you get those like emergency alert messages on your cell phone. Oh yeah we're kind of like an auto. Right. So within units they can set that up so you get like a robo call a text message and an e-mail all at the same time.

Nick Capodice: [00:09:41] I'm wondering about when that buzzer goes off. You know is there like a little thrill of like Whoa something's happening and we're going to jump in and go do it. Like is it.

Miranda Summers Lowe: [00:09:50] I think everyone has their own personal experience. My time in the National Guard I've always really enjoyed those kinds of disaster response missions. I think that was one of the things that motivated me to go. On the other hand I know for a lot of people you know especially like a serious disaster the responsibility to go report for your National Guard duty means you are probably leaving your family and friends and your home in a rather precarious state. So you're walking away from you know say the tree that is blocking your driveway to go report in and try to help your community and that's a hard situation to be in.

Nick Capodice: [00:10:29] Once you're called out to do some relief work for example, do you stay there until the sort of mission is done. Like you sleep in tents. Is there barracks set up for you folks?

Miranda Summers Lowe: [00:10:39] Sure it all depends on the situation. I live in Washington D.C. So most of the time we can stay in the D.C. Armory and you'll kind of like set up in kind of like a big gym. In some of these kind of larger scale disaster relief events it becomes kind of routine where people can either get back and forth to their own homes or like I spoke with someone who during Hurricane Katrina they were billeted or like they were living in a fraternity house at Tulane University. That was the arrangement that set up.

Nick Capodice: [00:11:15] So when it comes to the history of the National Guard there's all these moments that are just sort of in my mind the National Guard was called out to do X. And I think the one that's most prevalent for me is Kent State. But I know very little about what actually happened at that time. Is it something you could tell me about?

Miranda Summers Lowe: [00:11:32] Sure. There's a law passed in 1878 called the Posse Comitatus Act and that basically

Hannah McCarthy: [00:11:40] That's a great name.

Miranda Summers Lowe: [00:11:41] It's amazing. So I go I actually just looked that up and yes there is a Latin root to Posse Comitatus it basically means to like bring your strength together.

Nick Capodice: [00:11:52] Like you get a posse.

Miranda Summers Lowe: [00:11:55] Exactly. That's where it comes from. And so within the Posse Comitatus Act it basically says that federal troops cannot be used for law enforcement. However State troops can be used for law enforcement.

Hannah McCarthy: [00:12:10] There it is.

Miranda Summers Lowe: [00:12:12] Right. So during the 1960s the National Guard was used quite a bit for civil unrest. You see a lot of National Guard call ups around 1968 at the death of Dr. Martin Luther King specifically here in D.C. and Vietnam protests so the Kent State event, that is an instance of state National Guard the Ohio National Guard being called out in kind of a law enforcement function supporting local law enforcement during a protest. That protest turned violent and is one of those moments where I think the National Guard as an organization kind of stepped back afterwards and looked at our relationship with the communities that we serve. Now the National Guard is still used in that role. You know as recently as this year we have had National Guard troops at the women's march or at the March for our lives.

Miranda Summers Lowe: [00:13:11] And most of the time people appreciate having the National Guard there we tend to be something a presence there where you know you can kind of feel like there's more security there. But you know these are people from your own community.

Hannah McCarthy: [00:13:26] So aside from the Posse Comitatus Act what, what has happened that has changed the way that the National Guard can operate.

Miranda Summers Lowe: [00:13:36] There's always kind of been this evolution of the National Guard before between how much state control you have and how much federal control you have. Until about 1903 state National Guards were funded either through the state or personally, so specifically officers would come in and they'd pay dues. They would raise the regiment. You might have vastly different uniforms or equipment from the unit one town over or especially across states. So the constitution kind of outlines as far as you know having a militia that the state can train it. However it wants to go and select their own officers but it has to be to a certain standard. And so that all really changes in 1903 with the Dick Act. It was named after Major General Charles Dick who was a congressman and a member of the Ohio National Guard. That's kind of the first time that this tradeoff happens where the federal government comes in and says you know we want more oversight of what is happening in the National Guard and then in exchange they pay for more. It isn't until 1903 that the federal government starts paying for some equipment. And at that point you got five paid training days a year.

Nick Capodice: [00:14:56] How many now.

Miranda Summers Lowe: [00:14:58] So now the typical National Guard commitment is 38 days per year.

Nick Capodice: [00:15:02] We were both talking earlier about Little Rock in after the desegregation laws were passed. Can you tell us about that?

Miranda Summers Lowe: [00:15:09] That's another kind of interesting moment in National Guard history. National Guard troops were used all over the country as part of desegregation efforts. Now in Little Rock it happened to be this rare occasion where the governor of that state had actually called up their national guard to keep the African-American students from going to school. It is very rare to be able to use federal troops for law enforcement. And if you look at the pictures that is the case where then the president called in 100 First Airborne to escort those students in. So if you look at the pictures from Little Rock there's state National Guard troops and federal troops there

Hannah McCarthy: [00:15:51] Oh wow. Title 10 is invoked can a governor say no Mr. President my National Guard will not be doing that?

Miranda Summers Lowe: [00:15:58] In no way am I like any kind of constitutional scholar. But essentially the president does get to call out the National Guard and that does outweigh the governor's objection. But that is a question that is constantly in flux. Probably one of the more recent moments where that came up was during Hurricane Katrina. Know we had hundreds of thousands of National Guard soldiers mobilized in Iraq and Afghanistan. So there was kind of a big shortage of National Guard troops for hurricane relief. At that point some of these governors started stepping up and particularly with things like aviation resources like helicopters which are hugely important to disaster relief saying like you know we want more of a discussion when our helicopters leave the state especially in states that are you know say like in the hurricane belt.

Nick Capodice: [00:16:56] Is there anything that you want America to know about the National Guard.

Miranda Summers Lowe: [00:17:00] I think one of the things I find really interesting about the National Guard is how diverse it is over time particularly since 1970 and you know we became a country that doesn't use a draft or conscription anymore. We tend to have these communities that are very military friendly and everyone joins the military and largely those communities are in the Midwest and the south. But then we have the National Guard and that is an organization that by design is spread out equally across all the states and it brings in all kinds of interesting people and because it's not a full time commitment, you bring in all of these people who have other things going on in their life there are teachers, there are doctors, there are lawyers, there are police officers and they kind of come together to do this thing to serve their communities one weekend a month. But you get this huge array of like life experience.

Nick Capodice: [00:18:01] That was Miranda Summers Lowe, military historian for the Smithsonian at the National Museum of American history and a member of the Army National Guard.

Hannah McCarthy: [00:18:09] This episode of Civics 101 was produced by Ben Henry. Our executive producer is Erika Janik and our staff includes Taylor Quimby Jimmy Gutierrez and Justine Paradis. Music in this episode from Jahzzar.

Nick Capodice: [00:18:21] And if you have any civics questions that you'd like Hannah and I to get to the bottom of just drop us a line at civics101podcast.org.

Hannah McCarthy: [00:18:28] Civics 101 is a production of New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Presidential Transitions

On today's episode: what happens when the incumbent president leaves office and the president-elect enters? How is information shared? What laws or guidelines govern the transition of power? We talked with Max Stier, President and CEO of the Partnership for Public Service, on the written and unwritten rules of presidential transitions. We also explore our own transition, as hosting duties for Civics 101 transition from Virginia Prescott to Hannah McCarthy and Nick Capodice.

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TRANSCRIPT

EP 118 - PRESIDENTIAL TRANSITIONS

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

OPEN: [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 church and state. Executive order. And the National Security Council... Civics... Civics... Civics... 101! 

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. Our team here has been working on a transition for the past few weeks as our sitting host namely me prepares to hand the reins over to our newly elected Civics 101 guides, Nick Capodice and Hannah McCarthy. So for this, my last Civics 101 before I take up my new office at Georgia Public Broadcasting, we're going to find out how the mother of all handoffs takes place -- the presidential transition of power. And joining me is Max Stier he's president and CEO of Partnership for Public Service. Max welcome to Civics 101. 

Max Stier: [00:01:03] Thank you very much. 

Virginia Prescott: [00:01:04] OK so say it's election day in the United States a new president gets elected but the old one is still in office. So what's the first thing the incumbent meaning sitting president's team does when the new president is elected. 

Max Stier: [00:01:17] Well you better hope that they've been doing a bunch of things before election day because if you wait until election day to get ready for the transition you've already missed the bus. There are about 70 plus days between the election and a negotiation. And that's not nearly enough to address as you just said a mother of all transitions. 

Virginia Prescott: [00:01:37] So when would that team have started putting together a transition? 

Max Stier: [00:01:41] Well so and you said something really important there which is that there are multiple teams that have to be focused on this so you have the incumbent president that now by law order then focusing on this easily a year pre-election and that includes identifying people in each of the agencies to serve as a transition coordinator and begin the planning process. But for the incoming president they also needed a transition operation and that operation really ought to have begun in earnest at the beginning of that year. So you're looking at you know eight nine months of work really to be ready for Election Day. And it is a huge undertaking you think again we'll all learn about the peaceful transfer of power as being one of the great qualities of our government. But no one tells you that it's peaceful but ugly. And you think about it. It's a 4 trillion dollar organization four million employees when you think about the military and the civilian employees and hundreds of different operating entities. It is just so large and so complicated and so consequential that you need to begin aggressively with a good plan and very early. 

Virginia Prescott: [00:02:53] OK so you said by law -- what are the official laws or rules for the transfer of power? 

Max Stier: [00:03:00] So there are a bunch of new ones which is a good thing because we had a system up until relatively recently that that essentially was Groundhog Day and you would have incoming administrations go through a transition process start from scratch really at best have access to some people who've done it before but really no consequential resource of tools and prior history. 

[00:03:26] And part of what we've done at the Partnership for Public Service is to help get Congress to pass some laws that provide better structure so now it used to be historically that incoming transition teams would only get support for transition planning post the election. And we were able to get a law passed that now provide support immediately after the conventions. And the reason why this is really important is that historically campaigns have understandably viewed job number one as winning. And anything that just distracted from that or might undermine that they would ignore. And they saw transition is that they saw it as a political vulnerability if you started planning for a transition before the election you could be accused of measuring the drapes or celebrating early. And as a result the transition planning was done subscale and generally behind the curtain. And the law that I just described now changes that. So they have political protection. They now have a congressional mandate to begin pre-election. And we saw the results of that for the first time on both sides with the work that then candidate Clinton and then Candidate Trump did in this past election which was quite extensive and public prior to the election. So that is part of the legal framework that has changed that is very important. On the flip side there are now requirements for the incumbent administration to do work prior to the election to prepare for a good handoff to the new president coming in. So there is new law that really does some important things. I don't think we're entirely done yet with what needs to change but there are big improvements. 

Virginia Prescott: [00:05:09] So who comprises this transition team are they people who will go on to be members of the president elect staff or you know campaign staffers that kind of thing? 

Max Stier: [00:05:19] Well it's it's an excellent question. And the answer is you have different responsibilities when you are a campaign person versus doing the transition versus actually governing. And I think one of the real challenges we have in our system today is that there is this huge cohort of political appointments that are made by a new president that is unparalleled by any democracy so a new president typically puts in about 4000 political appointments and of those 1200 plus require Senate confirmation which is a very difficult obstacle course. What that means is that in fact new administrations often do staff government with a lot of people that were serving in the campaign and in the transition in not recognizing that and the skills that you need the capabilities you need are usually very different. 

Virginia Prescott: [00:06:09] So what are those transition team members doing in these days between the election and inauguration their appointments to be made?People starting to prepare for new jobs how do they do it. 

Max Stier: [00:06:20] Yeah the period between the election and inauguration becomes frenetic because you are taking over this phenomenally large organization. You put your finger on the in my view the most important element. You got to have highly qualified people ready to come into these positions and they need to be working well as a team. That's something that is often overlooked. So one big element is getting the right people and having them work effectively together. 

[00:06:45] Another is in preparing to actually implement the promises that the president elect has made on the campaign trail as smart transition operation is really thinking through how they convert those promises to actual action. There's you know usually someone who's coordinating the relationship between Congress and certainly the party that that they come from on the Hill so and that is an area where a lot of transitions under invest they need to really make sure that Congress is on board with the changes that they want to see happening and creating that front and understanding a shared vision and how they're going to work well together is one of the most important investments that a transition team can make. 

Virginia Prescott: [00:07:36] When can the incoming staffers get security clearance? 

Max Stier: [00:07:39] For the very top people it can happen relatively quickly. But if you're thinking about you know general averages there I was just in the meeting today where you know folks were complaining about the fact it could take 700 days to get clearances for some people so I mean that's a very challenging process and a big problem. The law now permits campaigns to actually start the clearance process for key people even pre-election. And so once more smart transitions will have teed up a set of core people that they need cleared and ready for jobs both in the White House and in the agencies. Because if you don't start that early you won't have your team on the ground when the when the game starts. 

Virginia Prescott: [00:08:23] So I'm hearing Max there's a lot of handoff of let's call it soft knowledge you know institutional knowledge about how jobs get done how agencies work projects that are in progress. Have there been examples of you know real antipathy and those kind of handoffs of current people in power in the White House or other agencies. Not necessarily handing off in a graceful way. 

Max Stier: [00:08:48] So you will always find examples where someone didn't do it real well. And there are anecdotes about you know the handoff to you know the Bush team from President Clinton's team where there were allegations that you know W's were removed from keyboards and things like that. I will say that those are truly the exception. Almost everyone who serves in government understands that they are there in order to serve the people and they are remarkably committed to the success of the new team coming in. The challenge is is less antipathy than lack of understanding about how to make that handoff really effective and more often than not it's the team coming in that fails to take advantage of the opportunity to soak up the knowledge from the people leaving. 

Virginia Prescott: [00:09:46] How about the current administration when that's holding power what are they actually required to share with the incoming administration? 

Max Stier: [00:09:55] The incumbent president is required to organize even if they're just in their first term to organize as if a transition might happen. And that means on an annual basis they actually need to bring together representatives the lead transition person for every agency and they need to have somebody who is who has got that responsibility to talk about how they're they will prepare for the transition. And they are by law required to provide information to the incoming potentially incoming successor. So you know at the end of the day the law is important but how it is followed is even more so. 

[00:10:39] And you know I will say that in sort of modern transition planning President Bush did a phenomenal job handing off the responsibility to President Obama and his team. And I think President Obama did a phenomenal job of preparing in and being ready to hand off to President Trump and I hope that that becomes you know the expectation for you know that the President Trumps team and everyone that comes thereafter. And I think you know there is as I say a broad sense even though the you know political appointees that that that they have a responsibility the country that our government is a core asset for the public and not for any party. 

Virginia Prescott: [00:11:24] So nobody glued the doors shut or anything like that. 

Max Stier: [00:11:27] You know and look with enough people you'll find somebody who didn't do it right. But the more important thing is what are the norms and are those norms being followed. And I think we're setting new norms and they are in large measure being followed. We are still at a pretty nascent stage. I would describe around transition planning and making it an effective operation. We're trying to create a learning system and that that's vital because it's such a big job. 

Virginia Prescott: [00:11:56] We're talking about a lot of the practical steps a lot of the operational steps. But we do hear about these meetings between the incumbents and the president elect and about letters. You know George Bush's George H.W. Bush's letter to President Clinton circulated widely I guess was when the transition was going on for the Trump administration. Letters from the sitting president left for the incoming one. What besides the practical does the incumbent president try to share with the president elect. 

Max Stier: [00:12:26] That's a very personal I think question. You know we all see the pictures of the president as they arrive and they leave. And you quite clearly see that it's truly dog years that they've lived and they got the gray hair and the lines. I mean the responsibility is phenomenal. You know no one you know really comes to the job having done it before. And I think that in many ways I think that the most important thing that can be offered is less one time advice than then than a relationship that would enable you know the new person coming in to come back to the incumbent. And I think that's true for the president. It's true for secretaries of agencies. It's true for assistant secretaries of agencies. There ought to be a you know again an understanding that there will be different policy priorities. We have a democratic process to help you know identify what the public wants to see as their vision for us going forward. But in these jobs are so challenging and hard and the opportunity for good and for ill are so large that you really want to make sure there is a community and there is a sense of responsibility for the incumbent to be there for the new person and that the new person knows they can rely on that incumbent for advice. 

[00:13:51] I mean that to me would be the most helpful thing that could be communicated and the new person has to take advantage of it because I think by and large the willingness to be there as a resource is almost inevitably there. 

Virginia Prescott: [00:14:02] There this may be a weird question but I always wondered does the first family sleep at the White House the night before the inauguration or is that night of? 

Max Stier: [00:14:10] Yeah not not. Not the night before. I mean it really is an amazingly you know sort of quick transfer you've got you know 12 o'clock 12 01 the you know the day of the inauguration you've got a new president. And that's true in terms of ownership of the White House and there's a unbelievable operation to move the president out. The new president in to do new paint in the work that's done by the you know career people who are managing this process is really stellar. And it happens in every agency across the entire government as well. You got a new secretary coming in hopefully confirmed. In an ideal world in the world we should live in. You've got more than the secretary but you know a deputy secretary in the key leadership team also ready to walk in on day one. It's actually a flip of a switch. It's not a slow you know you can move in over the next few weeks. You know right away on the White House side the team is unbelievable and the other unusual aspect of the White House is that everyone turns over so and they and the agencies themselves the career workforce will inevitably be way larger and hard to be way larger than the political team. In fact the political team should understand that they can't get their job done without working collaboratively and effectively with the career folks in the White House. It's a different proposition. You don't have pretty much anyone around that can tell you how it was done before how to operate things. 

[00:15:43] It's you're you're starting you're bringing your whole team with you. 

Virginia Prescott: [00:15:46] Max Stier president and CEO of the Partnership for Public Service a nonprofit whose Center for Presidential Transition helps candidates and their transition teams navigate the process of becoming president. Max thank you so much for speaking with us. 

Max Stier: [00:16:01] Hey thank you and congratulations on your contribution to civic education. 

Virginia Prescott: [00:16:05] Thank you so much. 

Hannah McCarthy: [00:16:09] That is it for Civics 101 today. But before we go we're doing a handoff of our own. 

Nick Capodice: [00:16:14] As Virginia mentioned at the top of the show. This is her last episode of Civics 101. She's moving on to Georgia Public Broadcasting where she'll be the host of The Daily News show: On second thought. 

Hannah McCarthy: [00:16:24] I'm Hannah McCarthy. 

Nick Capodice: [00:16:25] And I'm Nick Capodice. 

Hannah McCarthy: [00:16:26] From here on out, Nick and I will be hosting the podcast. 

Virginia Prescott: [00:16:30] Both of you guys are theater. You have theater background you right. 

Hannah McCarthy: [00:16:34] We do indeed. 

Virginia Prescott: [00:16:35] Are you going to do a little song and dance thing. 

Nick Capodice: [00:16:37] We're going to do a civic on one Christmas Carol for sure. 

Hannah McCarthy: [00:16:40] Yes absolutely. 

Nick Capodice: [00:16:41] You did the transitions episode you recorded the transition's interview. What did they say is usually done. I wasn't there you were there. What's usually done when one transitions to the other. 

Hannah McCarthy: [00:16:53] There's a lot of preparation because I think he made a really great point. This is Max Stier. He said nobody's done this before. Nobody has been president before they're president. Unless of course you were elected and then you lost an election and then you won an election. 

Virginia Prescott: [00:17:09] Has that ever happened, by the way? 

Hannah McCarthy: [00:17:09] That's a good question. 

Virginia Prescott: [00:17:13] We should know this. 

Nick Capodice: [00:17:13] It's pretty embarrassing. 

Virginia Prescott: [00:17:14] Well actually we shouldn't know this. That's the wonderful thing about this show that we are not civics scholars. What do you guys want to know anything else. 

Nick Capodice: [00:17:21] Is there any part of the transition that we haven't done yet. 

Virginia Prescott: [00:17:24] I haven't written you a letter on White House stationery letter. 

Nick Capodice: W hat? No letter on White House stationary? 

Virginia Prescott: [00:17:28] I don't have White House stationery. 

Nick Capodice: [00:17:31] On NHPR stationery. 

Hannah McCarthy: [00:17:31] Producers really dropped the ball on that one. 

Virginia Prescott: [00:17:33] Yeah no kidding. 

Nick Capodice: [00:17:35] Well if you can tell us that you would put in that letter you can tell us. 

Virginia Prescott: [00:17:39] I would just say that as a friend of mine Jason Schlender who's a poet who's now passed away said humility will find you. So no matter what you do be humble because you're gonna make mistakes but that's OK. You know that's what makes you sound like a human being. 

Nick Capodice: [00:17:58] Some of the best advice I've ever gotten. 

Hannah McCarthy: [00:18:03] Yeah. 

Hannah McCarthy: [00:18:03] This episode of Civics 101 was produced by me, Hannah McCarthy and Nick Capodice. Our executive producer is Erica Janik and her staff includes Taylor Quimby, Justine Paradis, Jimmy Gutierrez and Ben Henry. Our music is by Broke for Free. 

Nick Capodice: [00:18:16] And if you've got questions about the government and we know you do you know who to call. Hannah and I are on top of it. You can e-mail us at Civic's 101 at NHPR dot org. 

Hannah McCarthy: [00:18:26] Civics 101 is a production of New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Hostages

On today's episode: How does the government respond when an American is taken hostage? Is it true that we don't negotiate with terrorists? Who in the government handles these situations? We talked with Chris Mellon, a policy analyst at New America and coauthor of a paper on whether American hostage policies are effective. 

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TRANSCRIPT

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

Civics 101

Episode 117 - HOSTAGES

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. Hollywood has lodged a phrase in the American vocabulary when it comes to hostages. We don't negotiate with terrorists.

Movie clips: [00:00:38] As you are aware. We do not negotiate with terrorists. We do not negotiate with terrorists. Go to town man, go to town! No. In the meantime and as usual, go beep yourself. No. We don't negotiate with terrorists. This is insane. You cannot negotiate with terrorists.

Virginia Prescott: [00:01:01] But is that true? The U.S. does have specific policies for handling hostage situations. And since 9/11 several hundred Americans have been captured and held hostage. Which is a dramatic increase over the past few decades. So what exactly is U.S. policy on hostage negotiation? My guest is Chris Mellon, he's a policy analyst at New America. That's a nonpartisan think tank. Chris welcome to Civics 101.

Chris Mellon: [00:01:27] Virginia thanks for having me.

Virginia Prescott: [00:01:28] So what is the official U.S. government policy; we don't negotiate with terrorists is that it?

Chris Mellon: [00:01:35] Not quite. The difficulty is that we don't make substantive concessions to terrorists. And as you can imagine that that sometimes has been interpreted as we do not negotiate because it's hard to negotiate if you're not willing to concede anything.

Virginia Prescott: [00:01:46] So what would be an example of concessions, is that like paying ransom?

Chris Mellon: [00:01:50] Yeah that's that's the most common concession that would be demanded. Prisoner exchanges would be another.

Virginia Prescott: [00:01:56] Prisoner exchanges have happened in U.S. history though haven't they?

Chris Mellon: [00:01:59] They have. And notably Bowe Bergdahl, the U.S. Army soldier who was kidnapped by the Taliban, was released in exchange for five Taliban prisoners held at Guantanamo Bay. The U.S. government would contend that is not actually an exception to the policy because it has always been the practice to exchange prisoners in sort of wartime conditions with state and nonstate adversaries.

Virginia Prescott: [00:02:21] So if somebody like you know in the past you know, an executive might have been taken hostage in Colombia or something like that or a ship captain by Somali pirates that would be considered differently than somebody who is in the military.

Chris Mellon: [00:02:34] Yes absolutely. And there's another crucial distinction to be made here which is whether or not the group holding the hostage is a designated foreign terrorist organization as determined by the U.S. State Department. So for example if you were kidnapped by a criminal gang in Mexico for ransom while you were on business and they're demanding that your company pay you know a certain amount of money in order to secure the release, the U.S. government still will not pay that money for you or make any sort of concession directly, but they will help to negotiate and they certainly would not interfere if you're say private security company that your that your family or your employer has engaged wants to make that payment.

Chris Mellon: [00:03:14] Where the U.S. government policy starts to creep into private responses and efforts to release hostages is when the hostage is held by a designated foreign terrorist organization. One of the primary motivating factors behind the no concessions policy is the idea that it deters future kidnappings and that's a pretty simple idea to get your head around that if you reward bad behavior it will be repeated. But there's an additional consideration which is the funding of terrorist groups funding future attacks. And this really came to the fore after 9/11.

Virginia Prescott: [00:03:49] Yeah so how many American hostages are taken every year and how much of a jump was there after 9/11?

Chris Mellon: [00:03:55] After 9/11 it wasn't so much that there was a there was a big jump in the numbers, and the numbers vary enormously based on you know typically local conditions. I mean if you have an area with a lot of aid workers and journalists it's undergoing a crisis it becomes destabilized you tend to see an uptick. And you know when situations become more stable it falls.

Virginia Prescott: [00:04:14] So walk us through what happens in a hostage situation. Say it is a terrorist group calls up the government to make their demands. Who picks up the phone?

Chris Mellon: [00:04:23] So that was actually a big problem prior to 2015 is that there was not a single dedicated body within the United States government to coordinate response to hostage taking. After the deaths of the American hostages held in Syria by ISIS in 2014.

Virginia Prescott: [00:04:41] So you're thinking of maybe like James Foley the the independent journalist from New Hampshire by the way who was captured and beheaded.

Chris Mellon: [00:04:48] There was quite a lot of public pressure after the deaths of those American hostages especially because they were held together literally in the same prison with a large group of European hostages who were released for ransom. So the discrepancy between the outcomes for people following the no concessions policy and people who know countries that are willing to either pay ransoms or allow third parties to pay them became really really apparent and put some pressure on the administration. So they conducted a policy review in 2015. They didn't actually review whether or not to stick with the no concessions policy that was that was a given. But they were trying to find ways to improve their response to these hostage taking incidents and also to engage better with the families. Diane Foley. in fact the Foley family were threatened with prosecution. They were told they might be prosecuted for material support of terrorism if they tried to negotiate a settlement with ISIS to get their loved ones home.

Virginia Prescott: [00:05:46] Has anybody ever actually been prosecuted for paying ransom?

Chris Mellon: [00:05:50] No it has never happened. And it's an interesting point. So one of the things that came out of this policy review was that the government committed that it would not threaten families with prosecution in the future but practically speaking the policy still prohibits private parties from making payments to foreign terrorist organizations because you know it's not the case that a family has the requisite amount of cash available to them and outside the United States to hand over to the hostage takers. There are a lot of other third parties private parties that would have to be involved; private security companies, negotiators, the banks, potentially people donating money, right? Because the average American is not going to have a couple million dollars to pay ransom and none of them are covered by this family exemption.

Chris Mellon: [00:06:39] So practically...it was interpreted by some as being a change a real substantive change to the policy making it easier for the families to privately negotiate. But I don't think that's really accurate.

Virginia Prescott: [00:06:58] So there is a, I think I read about this inter agency office called the Hostage Recovery Fusion Cell, was that one of the Obama era reforms?

Chris Mellon: [00:07:07] Yes. So this is an interagency cell that's comprised of elements from Defense Department from the intelligence community the State Department Department of Justice the FBI all sort of working under one shop to have a real coordinated response to hostage taking incidents.

Virginia Prescott: [00:07:24] Well I've read of cases and seen cases where the families are doing you know online gofundme or some other kind of campaign to raise money to get their loved ones released. Would there be interaction with the hostage recovery fusion cell or other aspects of the government in that kind of case?

Chris Mellon: [00:07:41] Potentially. I mean but but that's a case where again that would have to be in essentially a criminal context. If so if your loved one was taken hostage by al Qaeda for example that sort of crowdfunding would not be permitted and certainly there would be no cooperation from the fusion cell.

Virginia Prescott: [00:07:57] Let's get Chris to the question that you have studied. Does the no concessions policy actually deter hostage taking and what kind of evidence do you have to evaluate it?

Chris Mellon: [00:08:10] Yes it is an extremely thorny question a difficult one because it deals inherently with counterfactuals. The idea of you know deterrence if you if you presume that it is functioning then the really pertinent evidence is all of the cases that never occurred.

Chris Mellon: [00:08:26] So I should start with that I think important caveat. The evidence though has been mounting and there's been a renewal of interest again since 2014 in this issue. There really is no evidence that this policy has any substantial deterrent effect. In fact the U.S. and the U.K. which are really the only major Western countries that pursue a strict no concessions policy have their citizens kidnapped really at very high rates in high numbers. In our data set, we based our research on a set of about twelve hundred cases of Westerners who were taken hostage abroad between 2001 and 2017. The Americans actually were the biggest sample I think 225 at the time we published this paper and the number continues to grow. And the British were you know on par with countries of similar populations that do actually pay ransoms directly. Countries like Italy and France.

Virginia Prescott: [00:09:20] But American hostages I'm reading here more than twice as likely to die in captivity or remain captive as hostages from other Western nations.

Chris Mellon: [00:09:29] That's correct. And and when it comes to jihadist terrorist groups you know eight out of 10 European hostages overall are freed. And it's one in four for the United States and one in three for the United Kingdom.

Virginia Prescott: [00:09:41] So we talked a little bit about the formation of this hostage recovery fusion cell, an Obama era invention around 2015. But did the policy actually change at all with the institution of this cell.

Chris Mellon: [00:09:54] No not this element of the policy. The no concessions policy remains in place.

Virginia Prescott: [00:09:59] Is it though at this point even feasible for the U.S. government to suddenly start paying ransom without it looking like capitulation. You know how committed are, is the U.S. to this no concessions policy?

Chris Mellon: [00:10:13] I mean the U.S. is strongly committed and the primary motivating factor for that is a good one which is that they don't want to be funding terrorist activity with U.S. taxpayer dollars. And actually I would not advocate for the United States government paying directly because you know the deepest pockets of any organization in the world. I mean those negotiations are not going to go well if you're trying to minimize the amount of money going to these dangerous groups which obviously is something we ought to do. It's a separate question to me whether the families should be allowed to make their own arrangements or to handle things privately. There is actually quite an efficient industry built around that, with kidnapping and ransom insurance and profession you know response professionals who are doing this all around the world.

Virginia Prescott: [00:11:02] What do you wish the American public knew about our hostage policies when this issue enters and such a often gruesome way into the public view.

Chris Mellon: [00:11:12] I think there are there are a couple of things that they need to know in order for us to have kind of an honest national conversation about this. One of them being that the deterrent effect of the no concessions policy is really not well-established. It's based on a certain amount of anecdotal evidence that the majority of researchers just don't see when you look at these incidents in the aggregate and it's for a variety of reasons.

Chris Mellon: [00:11:34] One being that you know hostage takers can see things like what we discussed earlier with the Bowe Bergdahl swap and very you know and not and failed to understand that that's from our perspective not a violation of the policy. Also because you know we can't control the muddying of the perception of the policy right now. Theo Padnos for example is an American who was held hostage by al Nusra in Syria and was released after what appears have been a ransom payment by the government of Qatar and their intervention. So it's a policy that we don't we can't even really control or enforce very strictly. So I think having a public airing of the evidence would be really important and valuable.

Virginia Prescott: [00:12:16] One of course the efficacy of a policy like this depends upon people knowing that the United States does have a no concessions policy. I think there may be the perception that well if you want to if you want a high value person go to someone from the U.S. They won't, the government will let that happen.

Virginia Prescott: [00:12:33] Yeah, really the deterrent effect does presume that the kidnappers really understand U.S. policy and that they you know they believe policy statements around hostage taking generally, because even the countries that do pay ransoms do not do so officially. They've made public international commitments at forums like the G8 not to do so. And it's very much under the table. So when everyone is dissembling about their real policy and practices I think it's sort of it clouds perceptions about who is really serious.

Virginia Prescott: [00:13:07] Chris Mellon thank you very much for speaking with us.

Virginia Prescott: [00:13:10] Thanks Virginia.

Virginia Prescott: [00:13:11] Chris Mellon he's a policy analyst at New America and he's part of the future of property rights initiative that is it for Civics 101 today. The show was produced by Ben Henry and our executive producer is Erica Janáček.

[00:13:27] Our staff includes Nick Capodice Hannah McCarthy Jimmy Gutierrez Justine Paradis 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.