Why do we pay income taxes, again?

Paying income taxes is a civic responsibility... but it hasn't always been. Where did it start, and where is it now?

We revisit our explainers on why our tax system is the way it is, and how to comply with it, just in time for tax day.  

We haven't always had a federal income tax, and in the beginning, it only applied to the very richest Americans. So how did we end up with the permanent income tax we have today, with all its complicated rules about everything from pre-tax income to deductions and credits? And what does it actually pay for?  

Listen:

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This transcript is computer-generated, and may contain errors.

Hannah McCarthy: [00:00:00] Hi, this is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:00:02] And I'm Nick Capodice. And I guess we're just jumping in. No warm up, no archival, just going right into this.

Hannah McCarthy: [00:00:09] Well, I do have a question for you, but it sounds a lot like a question we might ask at the beginning of an ad, which this is not. This is a real show. We are not trying to sell you on anything, but we are going to talk about something that you're probably hearing a lot of ads about right now, and that is taxes.

Nick Capodice: [00:00:32] Oh dear.

Archival Sound: [00:00:33] They say everybody's got different problems. Well, maybe so, but I've got a song about one problem that every one of us have and that's taxes.

Hannah McCarthy: [00:00:44] So I solemnly swear I'm not about to sell you a tax service. But I do want to ask to any of these questions sound familiar to you? How many kids do you have? Do you work from home? Did you save for retirement? Did you pay tuition? How about student loans? Did you get money from an inheritance? Did you buy an electric vehicle? Did you donate to a charity? Did you buy a house? Sell a house? How big is your office?

Nick Capodice: [00:01:04] Yeah, I'm familiar with all those questions, Hannah, because I answer them when I file my taxes.

Hannah McCarthy: [00:01:09] And, Nick, if you don't mind me asking, how did you do your taxes last year?

Nick Capodice: [00:01:15] Well, after I put them off, I used an accountant.

Hannah McCarthy: [00:01:19] Right. Like you, most Americans need help figuring out how much money we owe the government. Each year, about 90% of people use technology like TurboTax or hire a human tax preparer to do their tax return. Tax season requires an enormous amount of time, money, and resources, not only from the government, but from us, the taxpayers.

Nick Capodice: [00:01:41] It is pretty confounding, Hannah, that we live in a country where you basically need a degree in accounting, or the money to pay for someone with a degree or computer software just to comply with the law. It's hard to understand how that's a good thing.

Hannah McCarthy: [00:01:56] You raise a good point. So I want to introduce you to someone named Beverly Moran. She's a professor of law and sociology at Vanderbilt University, where she focuses on federal income taxation. She's testified before Congress and written extensively about the complexity of our income tax system.

Beverly Moran: [00:02:12] I mean, what people talk about being able to have a tax return on a postcard, that was basically the amount of information you had to put on a return for most people. But the problem is, as the tax started to filter to the whole country, there was another sort of movement going on which caused the return to become much more frightening. And what that was was that we started to bud a lot of things into the tax system. There really weren't about taxes in preparation for, um, talking to you. I reached out to several friends of mine who had, like, you know, decades of experience, you know, were tax preparers, right? They know the taxpayer side and they know the government side. They were all saying to me, like, how can you say any of it is good? How could you come up with a story like and I'm saying, well, I want to say this and that. And they were like, well, good for you that you can come up with this story because it's not good. It's horrible.

Hannah McCarthy: [00:03:26] So today on Civics 101, we're going to talk about why our income tax system is the way it is full of complexity, difficult to navigate and extremely personal, where circumstances like who you work for, what kind of resources you have and how you spend your money are directly connected to how much you owe the government each year and what the government provides for you in return.

Nick Capodice: [00:03:52] Just to clarify, you said federal income taxes, so we're leaving states out of it. We're not talking about state local sales tax, anything like that. Right.

Hannah McCarthy: [00:04:01] Because that's a whole other subject entirely. Every state and many municipalities have their own tax system, and they vary widely. We're focused today on federal income taxes, specifically those taxes that individuals like you and me pay every year out of the money we earn. And to start, I think we should get a better sense of how much income taxes matter.

Eric Toder: [00:04:27] So the federal income tax is our largest single source of revenue for the federal government. It raises roughly 50% of of federal receipts.

Hannah McCarthy: [00:04:37] This is Eric Toder. He's an institute fellow at the Urban-brookings Tax Policy Center. He worked in tax policy for the Treasury Department, at the IRS and in the Congressional Budget Office. He also worked as a consultant for the New Zealand Treasury.

Eric Toder: [00:04:52] But there are other big taxes. The second biggest tax is the payroll tax, which people may feel is similar to an income tax because it also comes out of their paycheck. And for most people in this country, the payroll tax is a bigger tax than the income tax. The income tax is a very progressive tax. It rises steeply as a rate of tax with your income, whereas the payroll tax is a flat rate tax.

Hannah McCarthy: [00:05:19] The payroll tax is a flat tax set at 15.3%. Your employer pays half and you pay half, right.

Nick Capodice: [00:05:27] But Eric said that income tax is a progressive tax. So can you clarify for me the difference between a flat rate tax and a progressive tax?

Hannah McCarthy: [00:05:35] A flat rate tax is one that applies to everyone in the same amount, regardless of how much money they make, like Social Security. If you made anywhere from $0 to $160,000, you pay 6.2% of your income to Social Security, and your employer also pays 6.2%. If you're self-employed, you pay the full 12.4%. What makes our income tax progressive is that the more income you earn, the higher the tax rate is on that income.

Eric Toder: [00:06:07] The third biggest source, which is significantly smaller, is the corporate income tax. But that's an important part of our tax system because without a tax on corporate income, people could avoid the income tax by accumulating income within corporations. So the corporation income tax, even though it raises only about 10% of federal revenues, is an important part of our our tax system. There are other taxes, excise taxes, estate taxes, customs duties. They're they're smaller.

Nick Capodice: [00:06:38] Where does that revenue go? What kind of things does it pay for?

Hannah McCarthy: [00:06:42] It pays for the cost of running the government. It pays for all kinds of government programs, with social services being the biggest chunk, followed by defense and things like education, scientific research, infrastructure and natural resources.

Nick Capodice: [00:06:56] So I want to go back to how we got to this place. Did the framers mention this at all in the Constitution? Like, have we always had an income tax?

Hannah McCarthy: [00:07:04] We have not. The Constitution says that Congress can set taxes to, quote, pay for the debts and provide for the common defense and general welfare of the United States. But the framers favored indirect taxes like sales taxes and tariffs more than direct taxes on income.

Nick Capodice: [00:07:24] So indirect meaning like a tax on something that you're paying for and theoretically could choose to pay for rather than tax, that automatically comes out of your paycheck.

Hannah McCarthy: [00:07:33] Correct.

Nick Capodice: [00:07:34] All right. So what changed? When did we finally get a permanent income tax?

Hannah McCarthy: [00:07:39] That happened in 1913 when we ratified the 16th amendment. This amendment says the federal government has the right to impose income taxes, and, more importantly, that the federal government does not have to distribute or apportion that revenue to states based on population size.

Joe Thorndike: [00:07:57] Now, in the beginning, the tax is really narrow, only applies to a relative handful of Americans. And that's true, you know, up until the World War one. And then it gets broader and bigger. And then but it's still it's pretty minor tax. It's a rich man's burden basically. Right.

Beverly Moran: [00:08:11] Originally, and even now to some extent it's a fantasy.

Hannah McCarthy: [00:08:15] Again, this is Beverly Moran.

Beverly Moran: [00:08:17] And the fantasy that it was selling between 1913 and the 1940s was that this was a way of having some sort of income redistribution.

Hannah McCarthy: [00:08:30] But the income tax wasn't just added to the already existing taxes. The government also lowered tariffs, which are taxes on imported and exported goods. Tariffs had been a main source of revenue after the Civil War and the rise of industrialization. But with that industrialization came business owners and investors who accumulated vast sums of wealth. People who used that wealth to exploit workers, monopolize industries, raise prices, and manipulate the markets for their own gain. So in an effort to lower tariffs and redistribute wealth without making big cuts to the government's budget, Congress shifted more of the tax burden directly onto the wealthiest Americans.

Beverly Moran: [00:09:15] The taps that were only like 3% of the population even had to file. Only about 1% of the population had to pay.

Hannah McCarthy: [00:09:24] But even so, the stock market crashed in 1929, which led.

Nick Capodice: [00:09:28] To the Great Depression.

Hannah McCarthy: [00:09:29] It did indeed.

Archival Sound: [00:09:30] Prosperity is just around the corner, say the hopeful headlines. But around the corners wind, the lengthening bread lines and a whole new class of citizens appears in American society the new poor.

Hannah McCarthy: [00:09:46] Businesses failed, industries crashed. And when President Franklin Roosevelt was elected in 1933, he wasn't shy about using income tax to pay for economic recovery.

Archival Sound: [00:09:57] My friends, I still believe in ideals. I am not for a return to that definition of liberty, under which for many years a free people were being gradually regimented into the service of the privileged few.

Hannah McCarthy: [00:10:18] For example, Roosevelt introduced the Revenue Act of 1935, which was targeted specifically at the wealthiest Americans with tax rates that were as high as 75%. Wow. This helped fund the relatively new Social Security Administration, one of the New Deal welfare programs Roosevelt created after the Great Depression.

Nick Capodice: [00:10:38] And I am just trying to imagine something like a 75% income tax happening today. And I just cannot.

Hannah McCarthy: [00:10:44] By the way, at one point, the highest tax bracket only had one person, John D Rockefeller. But at the same time that the federal government was heavily taxing the wealthy, it was also creating exceptions, asterisks, things that allowed people to get out of paying taxes on their entire income. Here's Joe Thorndike.

Joe Thorndike: [00:11:07] There was one moment where where FDR says to his Treasury secretary, I'd like a list of the top 50 taxpayers in, you know, 1942. I can't remember which year it was, but roughly around then no names, of course. And then they give them a they give them a memo, which includes all the names. Roosevelt was famous for a lot of sort of anti loophole anti-tax avoidance crackdowns. And in 1937, I mean he had the Treasury write him this memo. Again. There were two versions, one that had the names and one that didn't, but they made sure that those names made their way into the public sphere and that these guys were called out for using, you know, special little loopholes to try to avoid their taxes.

Eric Toder: [00:11:48] Well, we've always had certain exceptions in the income tax system.

Hannah McCarthy: [00:11:53] This is Eric Toder again.

Eric Toder: [00:11:54] Modern federal income tax started in 1913. We had a capital gains preference in introduced in 1921. We had um, mortgage interest deductions. From the beginning, that wasn't very important because not very many people paid income tax and not very many people owned homes. The federal income tax started, but it became important later.

Hannah McCarthy: [00:12:18] It became more important when our income taxes went from something that only affected a small group of people to something that applied to nearly everyone.

Nick Capodice: [00:12:27] I'm going to go with the episode trend so far, Hannah and guests that a war had something to do with this.

Hannah McCarthy: [00:12:33] It did indeed. Once again, war.

Archival Sound: [00:12:35] No matter how long it may take us to overcome this premeditated invasion, the American people in their righteous might, will win through to absolute victory.

Hannah McCarthy: [00:12:54] Specifically World War Two, and the need to pay for it led to a major shift in our tax policy.

Eric Toder: [00:13:02] Big government really dates from the Second World War, and that was when we introduced a mass income tax that applied to the majority of Americans.

Beverly Moran: [00:13:13] And again, the income tax becomes a way of communicating certain ideas like this is like a victory garden or this is like not wearing nylons, you know, we're all in it for the war effort.

Archival Sound: [00:13:27] I paid my income tax today. I'm only one of millions more whose income never was taxed before. Art tax. I'm very glad to pay Victory Gardens.

Nick Capodice: [00:13:41] Like. That's where the government encouraged people to grow their own food to help reduce the demand needed to feed soldiers.

Hannah McCarthy: [00:13:47] Yeah, taxes were pitched in the same way. The propaganda around income taxes, like the song by Irving Berlin that you're hearing right now, were all about showing your support for the war effort by paying taxes.

Nick Capodice: [00:14:00] I got to say, it's a pretty jaunty little tune.

Joe Thorndike: [00:14:03] When the number of taxpayers increases, like sevenfold in a few years, millions of new people start paying the tax. They. The saying is that it went from being a class tax to a mass tax, and that's when the Bureau of Internal Revenue became a fact of life for regular Americans, for middle class Americans in particular.

Hannah McCarthy: [00:14:25] Like the previous income tax, the expanded mass income tax was a progressive graduated tax. The higher your income, the higher your income tax rate.

Nick Capodice: [00:14:36] All right. So how did the Bureau handle this huge new tax base? Well, it.

Hannah McCarthy: [00:14:40] Got help from the Social Security Administration which introduced Social Security numbers. So the Bureau of Internal Revenue could keep track of people's identities and income. And Congress also made it possible for the Bureau of Internal Revenue to collect those taxes from someone's check before payday.

Beverly Moran: [00:14:59] I think every kid has this experience, right. You get a job, you're told you're going to get paid $100. You get the check. The check is $80. Like, where did that $20 go? But it's withholding. So, you know, when you think about it, when all this is going on, there are no computers. There's, um, you know, there's no internet, right? They're barely like telephones. So withholding serves a lot of purposes. One of which, from the government point of view, is fewer people to deal with. If I can deal with Smith's Grocery. That represents 20 people. That's much easier for me than dealing with all the 20 people who work in Smith's Grocery. And so the whole thing was pretty easy to do. All right, so.

Nick Capodice: [00:15:47] This sounds pretty basic. Most people paid an income tax, but a lot of times it just came right out of their paycheck. So how do we go from that to what we have now, where a tax return has all of these components in it?

Archival Sound: [00:16:01] The total amount of income is not taxed. However, as each person is allowed certain deductions, you can deduct portions of medical and dental expenses.

Eric Toder: [00:16:10] One reason it's complicated and isn't as complicated in some other other countries is we've tried to use the tax system for many different things other than raising revenue.

Archival Sound: [00:16:20] Charitable contributions, interest payments, certain taxes, and so on.

Eric Toder: [00:16:24] The federal government has decided it wants to encourage certain activities, wants to help people save for retirement. It wants to encourage them to give money to charities. Some of these programs could have been done by appropriations, but instead they're done through forgiving tax.

Nick Capodice: [00:16:42] What does he mean by that? Can you give me like an example?

Hannah McCarthy: [00:16:44] Let's start with World War Two. In 1942, Congress gave President Roosevelt the power to freeze wages, and he introduced a maximum wage of $25,000.

Archival Sound: [00:16:57] Taxation is the only practical way of preventing the incomes and profits of individuals and corporations from getting too high.

Hannah McCarthy: [00:17:05] Essentially, any income you made over $25,000 was taxed at nearly 100%.

Archival Sound: [00:17:13] The nation must have more money to run the war. People must stop spending for luxuries. Our country needs a far greater share of our income.

Hannah McCarthy: [00:17:27] But and here's where things get interesting. That wage cap applied to pay salary commissions, bonuses, but it did not apply to other kinds of compensation like insurance and pension benefits.

Eric Toder: [00:17:44] When wages were capped, employers, in order to compensate their employees, started introducing health benefits. Retirement benefits. The federal government wanted to encourage these things, so the amount of income you get in the form of employer contributions to health insurance is exempt from federal income tax.

Hannah McCarthy: [00:18:07] Especially because the employer also did not have to pay taxes on any income they spent on those kinds of programs.

Eric Toder: [00:18:16] Which encourages employers to provide health insurance to their employees.

Nick Capodice: [00:18:22] Is this unique to the United States? I mean, employer provided health care is one of those things that's now kind of the norm and the backbone of our health care system. And saving for retirement through work is, for most people, the only way they're able to retire. But I know that's not the case elsewhere. So what's different about our tax policy than other countries?

Eric Toder: [00:18:44] Okay, so there are some very big differences. One is we don't have a national sales tax at the federal level. And we generally even including states, we rely a lot less on consumption taxes than than other countries. That means our tax system probably overall is a little bit more progressive than the tax systems in Europe.

Hannah McCarthy: [00:19:08] One way to think of this as more progressive is if there is a high sales tax on something, no matter how much money you earn, you pay that sales tax. Whereas theoretically the burden of the income tax is higher if you make more money.

Eric Toder: [00:19:24] But oddly enough, our fiscal system is less progressive. The reason I say this is they have these value added taxes, but they have much more generous social benefits, health benefits and so forth. So in a sense, we rely more on taxes for redistribution. They rely more on spending programs.

Hannah McCarthy: [00:19:45] So even though other countries may charge greater taxes on consumption, they also often spend more on programs that save people money or reduce their expenses. For example, the cost of health care.

Eric Toder: [00:19:58] All the systems use some tax expenditures. I think, you know, our exemption of employer premiums is probably unique to our system because in other other systems, they have more public funding of health care. So you don't need to have this encouragement of the employer system.

Hannah McCarthy: [00:20:19] So it's hard to compare income taxes across countries. But people in Denmark pay almost half of their income in taxes. And Denmark also has some of the highest consumption taxes, taxes that you pay when you buy something or go out to eat, which the United States has kept relatively low. High consumption taxes are also the norm in countries like Germany, Finland, Sweden, Norway.

Beverly Moran: [00:20:42] So how can it be that you have people who aren't making very much money, are paying a very high tax rate and are paying taxes that, um, in the United States, we say are taxes that hurt the poor. Well, the reason is that they are actually providing tremendous benefits to their people outside of the tax system. Anybody who's a resident of Germany can go to college for free in, um, Scandinavia. You can get you are on health care for free. You're able to have a maternity leave you I mean all sorts of things that in the United States it's all like it's on you, right? Your retirement is on you. Are you saving for it or are you not saving for it? You know, your maternity leave is between you and your employer. It's all fragmented. And in those countries they can do their taxes in less than two hours. Some of them don't do it at all, right? They just get like a letter from the government. This is what you owe. This is what you paid. Here's a check for the difference. Thank you very much. The reason why it's so complicated in the United States is because certain people are advantaged by the fact that it's complicated.

Hannah McCarthy: [00:22:11] We'll be right back after this break.

Nick Capodice: [00:22:14] But real quick, if you like our show, or even if you don't do Hannah and I a favor and leave us a review on Apple Podcasts or wherever you listen to your podcasts, it helps make our show better. It helps other people see our show and see what it's about. And we read every single one, truly. Every single one. So do it. It means a lot to us and thank you.

Hannah McCarthy: [00:22:33] And if you want to learn more about the IRS and how to successfully file your taxes for all of those procrastinators out there, check out that podcast feed because we have got a whole podcast on it. We dropped it the same day as this little guy.

Nick Capodice: [00:22:48] So we've been talking about why our income taxes here in the US are so complicated. And so far we have heard about how the government started using the tax code to shift behavior without passing laws like incentivizing employers to provide health insurance and retirement plans. So what are some of the other carrots that the federal government has added to the tax code?

Hannah McCarthy: [00:23:09] Hannah, there are two main kinds of incentives deductions and credits. We're going to talk about deductions. First, here's Eric Toder.

Eric Toder: [00:23:19] Deductions reduce the amount of income on which you pay tax. So if I have 50,000 of income and then I get 10,000 of deductions, that reduces the amount of income I have to report to 40,000. So there are certain items that, for example, uh, home mortgage interest or state and local income taxes or charitable contributions, which are the biggest, which you can claim as a deduction or subtract that from the income which is subject to tax.

Nick Capodice: [00:23:51] So every year you have to figure out which deductions you might qualify for, and then find out how much of a deduction it would be and send all of that information to the IRS.

Hannah McCarthy: [00:24:02] If you go the itemized deduction route. Yes. But there is another option.

Eric Toder: [00:24:08] However, you can also claim a standard deduction. So depending on your marital status you can deduct a certain amount in lieu of taking itemized deductions. So what you want to do is figure out whether your itemized deductions total up to more than the standard deduction. And if they do, you itemize. And if you don't, you take the standard deduction.

Hannah McCarthy: [00:24:30] Sometimes that itemized deduction is going to be more than a standard deduction, especially if you say own multiple properties or give to multiple charities. Or if you have set up a charitable foundation in your name.

Eric Toder: [00:24:45] Most people take the standard deduction. Most high income people use itemized deductions.

Hannah McCarthy: [00:24:53] Unlike deductions, which lower your taxable income credits lower your tax bill. That's the amount you have to pay after deductions are factored in.

Eric Toder: [00:25:01] If I were paying $500 of tax and I get a tax credit of $150, that would reduce my tax to 350. So it just comes right off of the tax.

Hannah McCarthy: [00:25:13] And many times that credit ends up showing up as a refund after you file your taxes. Basically, the government says you overpaid this year. Here's some money back.

Nick Capodice: [00:25:22] Is it possible to earn more in tax credits than you paid in taxes?

Hannah McCarthy: [00:25:26] Okay, this is where tax credits get a little sticky. The answer is sometimes some credits are refundable, meaning that if the value of the tax credit is more than you owe in taxes, you have a negative tax bill.

Nick Capodice: [00:25:40] In other words, you get money instead of paying money.

Hannah McCarthy: [00:25:42] That's it. So if your tax bill was $500 and you had $600 in refundable tax credits, you would not owe any taxes and you would get $100. One of the main tax credits that is refundable is the earned income Tax Credit, which is specifically for people with lower incomes. But you have to have actually earned an income to qualify.

Nick Capodice: [00:26:03] But not all credits are refundable, right?

Hannah McCarthy: [00:26:05] Many of them are not, for example, the tax credit for buying an electric vehicle. If you bought certain new electric cars in 2022, you could qualify for a $7,500 tax credit. But if your tax bill is only five grand, you only get five grand credited toward your tax bill.

Nick Capodice: [00:26:23] So the government is trying to encourage me to buy an electric car, but I'm not really getting a $7,500 discount on that electric car unless I owe $7,500 or more in taxes. I think I've got it. So how did these tax credits even end up in our tax policy? They seem complicated, like with that earned income tax credit, why not just lower the tax rate for people who make under a certain amount?

Hannah McCarthy: [00:26:52] The answer is simple politics.

Eric Toder: [00:26:55] So we all have different views of what public benefits uh, the government should supply. We all have different views of how big the government should be. Your purchase of public goods through taxes is mandatory. So this is the one place where the government is taking something from you, as well as supplying you with something. So naturally, the question is who should it take from? How should that burden be shared upon those? Those are basically political questions.

Hannah McCarthy: [00:27:26] And with that earned income tax credit and other tax credits designed to help people with lower incomes, in particular, the politics have shifted a lot in the last couple of decades.

Nick Capodice: [00:27:37] How so?

Hannah McCarthy: [00:27:38] Well, remember how we talked about the New Deal ushering in all of these government programs to help support people while the country recovered from the Great Depression? Yeah.

Archival Sound: [00:27:48] The remaining costs of government may be considered under general welfare. Social security programs provide retirement income for the elderly, financial support for widows, children, and others who've lost their means of support, as well as aid to the disabled and unemployed.

Hannah McCarthy: [00:28:04] In the last 30 years or so, a lot of these programs have transitioned from government expenditures to tax incentives instead. The 1980s were the era of Reaganomics, when the Reagan administration proposed streamlining the tax system by removing a lot of incentives while also cutting taxes across the board.

Archival Sound: [00:28:26] When I signed this bill into law. America will have the lowest marginal tax rates and the most modern tax code among major industrialized nations.

Hannah McCarthy: [00:28:36] But especially for businesses and the wealthiest Americans.

Archival Sound: [00:28:40] One that encourages risk taking innovation and that old American spirit of enterprise.

Nick Capodice: [00:28:46] All right. So this is the so-called trickle down economics.

Hannah McCarthy: [00:28:49] Yep. This was also called supply side economics. And the theory was that if you cut taxes for businesses and for people with wealth to invest, they would invest that money back into the US economy rather than pocketing it. And after a lot of this reform and these massive tax cuts, as we're coming out of the 80s, the political debate about how big the government should be and what it should pay for was centered on the value and logistics of welfare programs.

Archival Sound: [00:29:18] More must be done to reduce poverty and dependency. And believe me, nothing is more important than welfare reform.

Speaker7: [00:29:24] One is the whole issue of welfare reform, and more broadly, how we help people to lift themselves out of poverty and dependance. It's time to.

Speaker8: [00:29:31] Make welfare what it should be a second chance, not a way of life.

Hannah McCarthy: [00:29:36] President Bill Clinton ran on a policy of welfare reform when he was elected in 1992.

Eric Toder: [00:29:41] The incentives for retirement saving were greatly expanded. The earned income credit was introduced and then greatly expanded. The child credit was introduced. That was at the same time where aid for families with dependent children was repealed, and welfare reform in 1996. So our system really moved more toward using the tax system for spending like programs.

Hannah McCarthy: [00:30:07] And Eric worked in the Clinton administration on some of the new policies that focused on taxes.

Eric Toder: [00:30:13] When I was in the Clinton administration, and we decided for political reasons, we had to have a middle class tax cut. Well, I think the main view was essentially government spending has a bad name, and politicians wanted to keep what the public perceived to be the size of of the government low and to provide more tax cuts, middle class tax cuts, other kinds of tax cuts. And so the way you could do this while still providing government social benefits was to provide, uh, credits and so forth through the tax system. So if we lowered rates a little bit, it just cost too much money. You couldn't you couldn't lower rates across the board. So that said, we had to give some kind of credits or some benefits. So people had talked about a child credit. And the number that Republicans had race was $500. So we said, well, we have to have $500. It can't be less than $500.

Hannah McCarthy: [00:31:19] He's talking about the Balanced Budget Act of 1993. The way that worked is that families could get a $500 tax credit for every child they had under the age of 17. So when you filled out your taxes, if you had a kid under age 17, you'd have 500 bucks taken off your tax bill.

Eric Toder: [00:31:36] Well, how do we save money if it's $500? Well, we have to phase it out. If people's income is above a certain amount and maybe we want to limit it instead of with personal exemptions, which was 18, maybe we ought to limit it to people under 17. And you get the picture. You go through one contortion after another to hit these various targets for how you're changing the system. And those things just stay in there.

Nick Capodice: [00:32:11] I'm beginning to see how we ended up with such a complicated system. Hanna.

Hannah McCarthy: [00:32:15] And this changed the experience of people who used these programs, in part because for both deductions and tax credits, there's a responsibility on you, the taxpayer, to make sure you fill out the right paperwork and get those incentives.

Beverly Moran: [00:32:29] When the Clinton administration decided that it was going to kill welfare as we know it, right, that was one of the phrases to get rid of welfare as we know it.

Archival Sound: [00:32:40] I have a plan to end welfare as we know it, to break the cycle of welfare dependency.

Beverly Moran: [00:32:44] So you don't really have welfare offices anymore. People don't really use the word welfare. That all seems to have disappeared. But the money is still flowing to people. But now it's flowing to people through the tax system. If you hide it in the tax system, what you're doing is you're replacing social workers with H&R block.

Hannah McCarthy: [00:33:11] Like Eric said before, many of the things treated as apportionment, that is, the government sets up programs and funds them directly were now offered as relief from your tax bill instead. And all of these things just keep being added to the tax code to make it work.

Eric Toder: [00:33:28] The system is much more complicated than it needs to be and could use an overhaul. Uh, I mean, there are, you know, when you look at something like retirement plans, there are multiple different ways you can contribute. And for the average person to figure out how to navigate through these systems, even the the programs for low income people like the education credits, many people just don't use them because they can't figure out how to navigate them in order to fine tune things. We make things way more complicated than it needs to be.

Beverly Moran: [00:34:02] For a lot of people. It's terrifying. You know, they they don't have the time. They don't have access to the things that they would need, even if they have access to the things that they would need, the things that they would need are crazy complicated. The IRS produces all these, um, instruction booklets, right? That could take their like, war and peace. They use all sorts of of language that makes sense to tax insiders, but doesn't necessarily make sense to anyone else. And so either you're going to like, engage in that system and get the money that the government wants you to have. Right. Or you're going to, like, not engage with that system and maybe end up in prison.

Nick Capodice: [00:35:02] Well, that's enough.

Nick Capodice: [00:35:03] Death and taxes today. This episode was written and produced by Christina Phillips with me, Nick Capodice and Hannah McCarthy. Our staff includes Jackie Fulton and Rebecca LaVoy is our executive producer. Music. In this episode by the guy who wrote God Bless America, Irving Berlin, Jesse Gallagher, Raymond Gross, Gridded Blue Dot sessions, César Lee, Rosevere Lobo, loco Nicodum, pictures of a Floating World, Proleter, Scott McCloud, Cooper Canal, Balla and the Tax Free Musical Stylings of Chris Zabriskie. Civics 101 is produced by that station, who I hope is kicking in there. 6.2%, NPR, New Hampshire Public Radio. I'm just kidding. Of course they are.

Promises, Promises: What Biden and Trump are saying they'll do if elected

Forget the rhetoric and hysterical political ads! Host Hannah McCarthy did the research, and she runs down all of the *actual* campaign promises being made by President Joe Biden and Donald Trump as they both make a second run for the White House. 

The economy. Healthcare. Gun violence.  Policing. Education. And...firing lots of people.  In this edition of Civics 101, find out what the two presumptive nominees for President of the United States are telling voters they will do if elected.  

Listen:

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TranscripT:

Note: This transcript was AI-generated and may contain errors

Hannah McCarthy: All right. Hello, everyone.

Nick Capodice: Hey, Hannah.

Rebecca Lavoie: Hello.

Christina Phillips: Hi.

Hannah McCarthy: It's so good to have you all here. This is Civics 101. I'm Hannah McCarthy.

Christina Phillips: I'm Christina Phillips.

Nick Capodice: I'm Nick Capodice,

Rebecca Lavoie: And I'm Rebecca Lavoie.

Hannah McCarthy: And today we're doing a little something different. We're doing a little round table here that I am calling promises, promises.

Archive: I promise you this. Give me a chance. I'll go to the white House and I'll fight for your family.

Archive: And I will address this issue. If you elect me president, I promise you, I will address this issue.

Archive: And as your president, I promise you'll have a champion for life in the Oval Office.

Archive: I make you this promise as your president, and nobody else can say it. I will restore peace through strength. And yes, I am the only one that will prevent World War three because we are very close to World War Three. But I promise you, I give you my word as a Biden. I'm going to bring everybody along this time.

Hannah McCarthy: We often hear at Civics 101 say, you know, it's really, really important that you do all this research before you vote, right? Because you want to know who and what you're actually voting for. But we can't do that research for you because there are hundreds of candidates across the country. And then I realized in the upcoming election, actually, we can do that research for you. And specifically, I wanted to know what the two candidates. Now, these are the presumptive nominees, but they have both secured enough delegates. So the nominees are promising for 2024.

Rebecca Lavoie: You mean the presidential candidates?

Hannah McCarthy: Yeah, we're talking about President Joe Biden and former President Donald Trump. One is the incumbent, and one would be going for a second term in the presidency. Actually, they're both going for a second term in the presidency. Right. And, you know, candidates do make hard promises that this is not to say that they keep those promises or that it even matters what those promises are, but they make them. And so I did that research for you today. So what we're going to do is I'm going to run through the major campaign promises for 2024 for Biden and Trump. And I just want to make a note here that Biden's action is going to take a little longer, because a lot of his 2024 promises are just continuations of the 2020 promises, right? It's like the stuff he campaigned on and where he's at in terms of actually fulfilling that or whether he failed. Totally.

Nick Capodice: Can I ask a quick.Question, please?

Hannah McCarthy: Nick?

Nick Capodice: It's not a given that these are going to be the two nominees right now. I had a friend of mine asked me that this morning. Like, is it possible that at the conventions, a completely new candidates will be proffered up? That is possible, but not possible, but not.

Rebecca Lavoie: Probable, right? Not probable. Or someone could drop out.

Nick Capodice: Some could drop...

Hannah McCarthy: Somebody could drop out. Somebody could.

Rebecca Lavoie: Anyway, I have another question, please. Rebecca, it occurs to me that recently in presidential elections, we actually aren't getting promises anymore. So much in ads. Right. We're getting vibes. Mhm. We're getting like this is how America should feel. Yeah. We're not getting this is what I am going to do. And that's because I think political culture is turning to a culture of winning more so than doing lately. Or at least that's how it seems.

Archive: Freedom. Personal freedom is fundamental to who we are as Americans. There's nothing more important, nothing more sacred. That's been the work of my first term to fight for our democracy. This shouldn't be a red or blue issue.

Archive: We can all see Joe Biden's weakness. If Biden wins, can he even survive till 2029? The real question is, can we make America great again?

Rebecca Lavoie: So you're going to be giving us some stuff that like, we're not even going to get on TV yet.

Hannah McCarthy: Exactly. And I want to sort of check in on your vibes feel before I make it a little more solid. But the thing I want to make clear also is that Biden can go, you know, less on vibes like Biden's got a whole administration underneath him when he gets up and says, I'm going to keep doing this or I'm going to do this in the future, or this failed in the past, I need this to happen. Like that's got more solid ground underneath it. Trump can be super vibesy, and his promises can be a lot like buzzwords and stuff like that. So that's what you're going to hear. But Trump has said, like, I'm going to get this done. This is going to happen. I want to do this right. So that's what I'm putting into the promises bucket. So shall we jump in?

Rebecca Lavoie: Let's do it.

Hannah McCarthy: Let's do it okay. Let's do it. So I'm thinking like Biden sort of in the catbird seat, right in the position of advantage, even though not really. Actually when you think about an election as a referendum. But the catbird seat is this idea that like, you've got the sweet spot, right? And then I'm typing this out and I'm like, what is catbird like my favorite jewelry brand? What is catbird? Nick, who is credited with having come up with the phrase in the catbird seat.

Nick Capodice: He's sitting in the catbird seat now, Red Barber and I would not be my father's son without knowing who Red Barber is. I believe Red Barber came up with the idea of the catbird seat. Red Barber was an announcer. I forget for what team, but a baseball announcer. And he was very famous for saying things like, it ain't over til it's over. I think that might have been Red Barber.

Hannah McCarthy: He had this phrase that I wrote down that's like the bases are FOB, which means full of Brooklyn's all right for the Dodgers. Right? Like it's like the murderer's row. He would also say, oh, doctor.

Nick Capodice: Oh that's it, that's the one. That's what I knew. Oh, doctor, we got an amazing game today.

Nick Capodice: He's parodied a lot in The Simpsons. Yeah.

Hannah McCarthy: Yeah. Wow. Turns out the catbird thing might have actually been, like, something that a writer pretended that he said. And then he stole it from that writer. Isn't that fascinating? Yeah. He might not have come up with that.

Rebecca Lavoie: A cover of a cover.

Hannah McCarthy: Yeah, exactly. All right. I like wicked digress. We're going back. Okay. I'm starting with Biden. What are Biden's promises? He's in the white House when it comes to an incumbent campaign. The successes and failures of the past three years, some odd months, they do matter. And a lot of Biden's promises or priorities come from way back in 2020. So I'm gonna ask you all when we think about climate, Biden has a climate promise. What's your vibe? What's Biden's climate promise? Do you actually know what he has said?

Rebecca Lavoie: I don't know what he has said, but my vibe would be something along the lines of America and our industries will take steps toward becoming carbon neutral by some random date.

Nick Capodice: This is good.

Hannah McCarthy: Actually. This is really, really good. So Biden is considered to have been actually pretty successful on his climate promises. He's done a couple of things. So I will say in terms of the carbon neutral thing, Rebecca, he signed something called the Inflation Reduction Act into law, which is basically like the only really toothy climate policy that we have here in the United States. And it's going to help us meet global goals, including getting us on track for net zero emissions by 2050, 2050.

Rebecca Lavoie: That seems arbitrary.

Nick Capodice: Is this a nice round number?

Hannah McCarthy: If we're still around.

Nick Capodice: Would you have to say 50?

Rebecca Lavoie: 2054?

Hannah McCarthy: He also said no more drilling on federal lands, but he broke that promise. So last year in Alaska, the Drilling project was greenlit. The administration got a little bit of land back from that, but we're drilling in Alaska. However, Biden did prohibit drilling in some of the Alaskan National Petroleum Reserve, which I didn't know. We had a national petroleum reserve up in Alaska. And he was like, don't touch it. And then he canceled all drilling in the Arctic National Wildlife Refuge, which is part of Alaska.

Nick Capodice: Was there drilling going on there?

Hannah McCarthy: There were drilling leases on that land. And he was like, no, that's done.

Christina Phillips: I think that the other thing was that he is really pushing that more sustainable climate solutions will create more jobs. There's like this real big emphasis on climate jobs, like we're going to do these new energy policies, but they're all going to create jobs, which I guess could also be part of the economy thing.

Hannah McCarthy: That's why I'm actually glad you brought that up, because that's part of the Inflation Reduction Act that I mentioned, right? That it was sort of like a way to get this through was to create jobs within this climate. All right, moving on. The economy. What does Biden have to say about the economy?

Christina Phillips: Okay, the big thing is taxes. The wealthy and corporations are going to pay their taxes, like recouping the loss in tax money, getting all that money back that corporations and the wealthiest Americans have not.

Hannah McCarthy: Yeah. So Biden, this is actually going forward. He wants a 25% billionaire tax. And he's got a slightly higher tax on corporate entities right on businesses. So that is a big part of the economy thing.

Rebecca Lavoie: Good luck with that one.

Hannah McCarthy: Yeah. Good luck with that. Well I mean good luck truly because we'll see what someone else has to say about that. Yeah. But the big part of the economy for Biden was I'm going to make this bipartisan. That didn't go so hot. Right. So he passed the American Rescue Plan with zero votes from Republicans. This was a coronavirus and economic relief bill. He did get a super wide ranging many billions of dollars infrastructure bill through with bipartisan support. This is good for the economy because it means jobs. And it also means, you know, America's roads, bridges and tunnels are completely crumbling, and this many billions of dollars is supposed to infuse the economy and fix our ground, basically. Yeah. So that was successful ish. But neither Republicans nor Democrats made it easy and it hasn't been fully satisfied. So there are still you know, there's this tax idea on the billionaires. Good luck with that. And there's still waiting to see exactly how much Republicans are going to push back on future plans to infuse the economy with more jobs and more taxes. Next one here. Immigration. What is Biden's big priority? What is he putting at the top of his promises list?

Nick Capodice: Yeah, unless I'm wrong, Biden has done a bit of a 180 on immigration in terms of the new proposed bipartisan crisis at the border, immigration reform that he was trying to do before. He wasn't really about that. And now it seems like he's really like, uh, if you'll forgive me for saying so, a bit draconian about keeping people out of the United States. Hawkish. That's better than draconian, I think. Bit of a martinet about keeping people out of the United States is that was that is that what he's been doing.

Hannah McCarthy: That's pretty that's pretty good there, Nick. So really what happened was when Biden was campaigning back in 2020, he was like, my opponent, Trump is totally demonizing immigrants. He's anti-immigration. I am going to make the pathway to citizenship easier. I am going to make the pathway for refugees easier for asylum seekers easier. He did it with the refugees. Everything else? Not so much. So immigration at the US-Mexico border has been a big issue for Biden.

Nick Capodice: I just read the other day that the current waitlist for asylum seekers is an average of six years, and that kind of blew my mind.

Hannah McCarthy: Yeah. So I will tell you. So day one in office, Biden marches in and he signs the end of the national emergency declaration that Trump had used to get resources for the border wall. So remember the border wall?

Nick Capodice: Oh, yeah.

Hannah McCarthy: How's it doing, by the way? Yeah. Well, at first Biden was like, no more building the border wall. No more money for that. And then, as Nick mentioned, Biden, it sort of seems like essentially realized how much of a problem the flow of people attempting to come into the United States is for the government. They don't know how to deal with it. So sections of border barriers essentially have been constructed in Texas since. Right? Right. And, you know, he also promised a moratorium on deportations for a little while. He promised protection for sanctuary cities. He criticized Trump for his approach to asylum seekers and pathways to citizenship and all of this. However, what you're pointing out, Nick, the most recent border bill that has come across Congress, right? This is Biden's sort of new promise is to get stricter on what's happening at the border. So this border bill had stricter immigration and stricter asylum provisions in it, and Republicans canned it. It seems pretty likely that they did this because Trump said, don't let that pass right. We are not letting that through. Right. Policing. What did Biden have to say about policing when he was campaigning in 2020? Do we remember that? I mean.

Rebecca Lavoie: There was certainly a push toward police accountability in 2020, right? And he talked a lot about body cameras. He talked a lot about money for community policing programs. And he talked a lot about not defunding the police, but sort of reforming police culture. Right? Yeah.

Hannah McCarthy: That he did. Yeah. Biden promised a national commission on policing that he was going to form, and he was going to bring in police officers and community leaders and all sorts of representatives who could swirl around the idea of policing in the United States. That totally stalled out, right?

Christina Phillips: Which I have to say is like the first step that every corporation, state, city, there were so many commissions in 2020 that it's like you lose track. I remember we were talking about a commission in New Hampshire.

Rebecca Lavoie: Yeah, there was a commission.

Christina Phillips: Yeah. The idea of a commission that's often just, you know, a meeting or maybe a group of people who gather around and maybe write a report. So if people want to know what that means, that's basically what it is.

Rebecca Lavoie: And then they come up with ideas the legislature says we can't fund that, right?

Christina Phillips: Exactly, exactly.

Hannah McCarthy: Exactly. Inexpedient. Yeah. Let's think about the fact that Biden can't get a lot of stuff done because the Congress he has cannot legislate, right? So what Biden did instead, he did sign an executive order limiting chokeholds unless deadly force is authorized, also limits no knock warrants, also requires body cameras to be worn during arrests and searches. And now this should be important. Creates a national database on police misconduct. But here's the deal an executive order, at least this one only applies to federal officers. Most of us are interacting with city and state and local officers every day. This doesn't apply to them. Only about a third of police precincts even bother to check the database when they're hiring officers. Wow. So misconduct doesn't really factor in. So federal legislation on police reform has thus far been unsuccessful. Biden has not abandoned it. But it's really it's not at the top of the list. So don't look around for that. Here comes student loan debt. Here it is. Biden was saying, what was his big promise that young people in particular salivated at?

Christina Phillips: He would cancel it. He would basically eliminate student loan debt. Importantly for me and you and everyone else. Basically, basically a life changing amount of debt would disappear for some of the people who are struggling the most to succeed and to have any sort of income.

Rebecca Lavoie: With a caveat for those who had never refinanced their student loans into private lenders.

Hannah McCarthy: But the idea was for, all right, all who fall under that provision, we might all remember the Supreme Court was like, you want $400 billion in loan forgiveness. No, that is not happening. So forget it. That's not happening. Move on. The Biden administration did get $139 billion worth of forgiveness through the administration. Set up a new payment plan. The Save plan means basically a lot of people don't have to pay interest on their loans, and a lot of people's monthly payment is $0 and made changes to the Public Service Loan Forgiveness program, which matters for people who work in services like public radio or teaching.

Rebecca Lavoie: As long as they haven't refinanced their loans into private lending.

Hannah McCarthy: Thank you for that caveat, Rebecca.

Nick Capodice: And as long as they've been making payments for a period of time, right.

Hannah McCarthy: Yeah, exactly. But basically the student loan thing, it is still ongoing. There are still conversations about this. Biden will probably bring it up going into 2024. But, you know, we'll see if Christina and I are free of crushing student loan debt anytime soon.

Christina Phillips: Which I will say, this is like a perfect example of the difference between a promise and then the next step, which is actually doing it, and then the next step, which is it actually happening? I had been trying to transfer into the student loan program that, like the lender that allows forgiveness. I've been trying to do that since I was hired in 2016, and I just now was able to transfer into the right company, the Mola, which is now apparently changing. I have Mola again, so the Save program on the federal student loan website, there's always a little disclaimer at the top that says there's a backlog. And so the idea of student loans being forgiven, you may hear it and then you may not see a change, or you may just kind of sit around, make calls and wait. And that might not actually happen for a really long time. So it's like, and I think this is true of a lot of presidents is that they promise things and maybe those things come to fruition, but they may be far out of office by then. Right. Or there's always a chance that someone comes in and undoes it. Right?

Hannah McCarthy: Health care. What did Biden say? What did he promise he was going to do for health care in the United States?

Christina Phillips: Drug prices?

Hannah McCarthy: That is part of it. Drug prices. His big thing, though, was I am going to make Obamacare come back with a vengeance. Like it's going to be bigger and better and more wide reaching. It's going to be improved by me. I love Obamacare, let's just get it going. Affordable Care Act all the way right. And part of that is expanding subsidies and also, yes, reducing prescription drug prices, basically putting a limit on that. And this is something that Biden promised and he got done. This is actually considered to have been promise fulfilled. You did what you said you were going to do. The furthest reaching elements of this promise, though, have been blocked by Republican lawmakers. So like, once again, yes, you want health care to be this like stars in the eyes thing. But we're not going to let you have it all the way. But generally we can sort of say like job done accomplished, right? Gun violence.

Nick Capodice: I remember something about closing the loophole for gun sales from like, gun shows and like vendors. There was something about some loopholes he was closing involving unauthorized gun vendors. Was that a thing?

Hannah McCarthy: That was an attempted thing. So the big message from Biden, the selling point, the promise was Ar15s are going to be off the streets, right? AR15s are definitely still on the streets. Yes, they are very much available. Incidentally, Congress did pass the most sweeping gun legislation that we've had in three decades. It is not doing much, but it is the most sweeping that we have had in three decades. It beefed up background checks, makes it harder to get guns very easily, and it makes it easier for people providing gun licenses to prevent domestic abusers and people who may commit violence. You know, even that in and of itself is difficult to figure out. But past violent crimes or, you know, signifiers that they may commit a violent crime, it makes it easier to prevent those people from obtaining guns.

Nick Capodice: These are called red flag laws, if I'm not mistaken.

Hannah McCarthy: Yeah. Okay. Yeah. He also set up the first executive office to prevent gun violence. So there's now an office to prevent gun violence. But his big thing what Biden keeps saying is like, I'm still working on gun violence, but I can't do anything with Congress blocking me like the executive orders I'm going to write. Can't do much for you. All right, so we've just run down all of President Joe Biden's big campaign promises before I move on. Is there something any of you think I missed?

Nick Capodice: I think you're missing the junk, Hannah. Getting rid of the junk. How many? How often you open up a big bill, and you see at the end there's a bunch of junk.

Hannah McCarthy: Oh, that extra piece of paper. With all this stuff. Oh, oh, the fees. So junk fees. Gotcha, gotcha, gotcha.

Nick Capodice: Yeah. It's not junk mail. It's. So he's getting rid of junk fees. He's been. I mean, that's like the only thing I've heard him promise.

Rebecca Lavoie: Across industries, right? Yeah.

Nick Capodice: Just getting rid of all the junk.

Archive: Look, one of the key things I've asked the council to tackle are the unfair fees, known as junk fees. Those hidden charges that companies sneak into your bill to make you pay more because they can. Just simply because they can.

Nick Capodice: Like, just service charges, service fees or convenience fees.

Rebecca Lavoie: Yeah.

Hannah McCarthy: I mean, that's an example of like the sort of promise that a president's like, you know, what would be good? All right. I'm gonna run quickly through some sort of, like, half baked sort of promises that he's sort of, kind of did equity. Biden promised investment in historically black colleges. He got a little less than half of the way there. So he sent a little less than half of what he promised to historically black colleges in terms of financial investment. Biden promised he promised to study. Does anyone here remember what study he promised in 2020? This has to do. You could say with equity, maybe.

Nick Capodice: Is this a DEI study?

Hannah McCarthy: No.

Rebecca Lavoie: What's the study?

Hannah McCarthy: A study on reparations. Oh, no, did not happen. Here's a stall. Biden promised expanded child care for children and the elderly. It's stalled in Congress, so he supplemented it with an executive order to make care a little more accessible. So like when you actually attempt to get care for your kid or for anyone in your home who needs additional care, this executive order makes it a little bit easier. Biden really wanted to codify Roe v Wade. Yeah, and that doesn't mean it's not going to happen. He's still saying he's saying to the American people, if you give me the Congress I need, I will give you Roe v Wade codified. Now, of course, like it would mean something completely different. It would actually mean the codification of the right to abortion access for women. Right. Like there's what the Supreme Court says there was what they ruled, constitutional or not. And then there's codification of a law. Right? Right. Those are two completely different things.

Rebecca Lavoie: But, Hannah, whenever I hear this kind of promise, you give me the Congress I need, that to me, absolutely rings empty because the President is not the constituency of my congressman. Right. And if I, say, elect a Democratic congressman from a traditionally conservative place, they're still going to lean toward what's going to win them the seat the next time and not toward necessarily what the president wants them to do. So it's an interesting way of framing that promise.

Hannah McCarthy: A few more quickie quick things. This is new promise to codify in vitro fertilization access for all people. Biden is trying to get tax credits for families under a certain income, through child tax credits at a higher level, mortgage credits for first time buyers. He's saying he's going to give public school teachers a raise. That got him a big cheer during the state of the Union.

Archive: I want the public school teachers a raise.

Hannah McCarthy: He's calling for passage of the Voting Rights Act. Oh, yeah, the John Lewis Voting Rights Act. And he wants that 25% billionaire tax. And of course, he's really hoping for that two state solution in the Middle East. And also says that he will keep working with Israel and find ways to get humanitarian help into Gaza. And he called on Congress to support Ukraine's efforts to defend itself. That's Biden in a nutshell. Right. I'm trying to give our listeners a sense of like, what's the balance ball he's sitting on as he's campaigning? I'm overall like, what do you think.

Nick Capodice: It's about how different it is if you're running for reelection, if you're an incumbent versus you're the person coming who's not the incumbent, you have to defend what you've just been doing versus being able to just come in and say, all I'm going to do is blow everything up. Watch me. Right.

Hannah McCarthy: And that is a perfect transition to what we're going to get into right after the break. Welcome back to Civics 101. We're talking about campaign promises. And right before the break, Nick mentioned the fact that when you're the incumbent, there's a lot of stuff you're defending. A lot of stuff has sort of gotten stuck in the sludge. And then there's the other candidate who just sort of like rolls in with the blunt kind of, I'm just gonna do this right.

Rebecca Lavoie: The Kool-Aid man through that wall.

Hannah McCarthy: Is it just bursting through the wall? Which is why, when it comes to Trump's promises. And by this, I mean the stuff that Trump has just sort of said he's going to do, be it in like a speech or in an interview or wherever he might be. Right. These are the things that he has said to his constituency he's going to do for them. All right. I'm gonna go in the same order as I did with Biden. Same basic subjects, right? Because I wanted to see where each person stands on each of these. Climate. Where does Trump stand on the climate?

Rebecca Lavoie: We are going to open everything for drilling and make the United States like the leader in the exportation and providing our own United States, going to be the leader in the production of fossil fuels, right?

Hannah McCarthy: Yeah. So Trump's catchphrase is drill, baby, drill.

Nick Capodice: Still, that's been around a while. Drill. Who was the first person who did? Wasn't that like John McCain or something?

Rebecca Lavoie: I think I heard Sarah Palin say Sarah Palin during the during that campaign. Yes.

Archive: Yeah, we will drill here and drill now. And now is when you chant drill, baby, drill.

Hannah McCarthy: And if you juxtapose that against Biden's policies, which have been about really, you know, pulling drilling back, Trump is saying drill all the way, he is trying to get the lowest cost energy of any nation in the world for the United States. Right. We are going to have so much of our own energy that it will be the cheapest. So he's going to ramp up drilling. He's going to offer tax breaks to oil, gas and coal producers. He's going to squash pollution limits. Don't worry about those pollution limits. Just keep producing that energy. He's going to discourage electric cars. Biden I didn't mention this, but Biden has been encouraging legislation and other infrastructure to support electric cars, like having places to plug them in all over the country. Trump says none of that. And Trump says he's going to exit the Paris Accords again. Well, you might remember Trump exited them and then Biden went right back in. Right? Right. Taxes.

Nick Capodice: Well, this is interesting to me because when Trump first ran for president in 2016, he did promise, if I'm not mistaken, to raise taxes on wealthy. And then he didn't do that. He did the opposite. He lowered taxes for the uber wealthy. I actually don't know what he is saying he's going to do right now.

Christina Phillips: Yeah. So my understanding is that Trump really pushed this idea that like people's tax situations will improve. And there was a perception that people's tax situations did improve. I've heard that anecdotally from people.

Rebecca Lavoie: You don't hear it anecdotally from people who have a lot of deductions on their tax return, because those have become severely limited. You can no longer deduct your mortgage interest. You can no longer deduct all these things that we used to deduct. Yeah. So he promising to expand his tax policy.

Hannah McCarthy: He is focusing mostly on big tax cuts like promising his constituents the quote biggest ones under what he's calling the Trump economic boom. But he's not being specific about that. So the thing on the line right now is the 2017 Tax Cuts and Jobs Act that Trump signed. Part of that expires in 2025. This law was a permanent corporate tax cut and a temporary individual tax cut. So it lowered taxes overall for everybody. But it also increased national debt. So like the corporate tax cuts add about $1 billion of debt a year. So it's a really expensive plan. Also the idea was lower taxes for corporations and their investments are going to pay for the tax plan and benefit the middle class. The middle class did get like an average bump of 750 bucks in income. But the administration had promised, you know, 4 to $6000. That did not happen. So the question is, you know, is this temporary individual tax cut going to be extended? What other provisions might Trump actually get through? Like he wants to lower the corporate tax rate even further. And a lot of experts say that, you know, lowering the corporate rate is not the way to benefit the economy overall because of our debt. So that really remains to be seen. But yeah, the big messaging is he's going to cut taxes. He's just going to cut taxes. That's, you know, that's messaging that people like and raise taxes on imported goods.

Archive: We're going to put a 100% tariff on every single car that comes across the line, and you're not going to be able to sell those guys if I get elected.

Hannah McCarthy: Now, pretty much every economist agrees that this is going to raise the prices of goods in the United States. If you have a tax on goods. The idea behind it is that if we raise the tax on goods coming in, we'll just make our own.

Rebecca Lavoie: How?

Nick Capodice: Yeah, how I.

Christina Phillips: I Mean, this is like..

Hannah McCarthy: I'm not the candidate.

Christina Phillips: The American exceptionalism that I think is very in line with the climate policy is that we make it all here. We do it all here. And that will boost the economy. It will also, you know, it'll make us really desirable to other countries. They want our stuff. We will make money off of giving them our stuff, but also we will basically do it all and succeed. Right? That it feels very in line with the climate policy too.

Hannah McCarthy: All right. Moving on. Immigration. What is Trump saying he'll do?

Rebecca Lavoie: Finish the wall.

Nick Capodice: Yeah. Finish the wall. And like I think it's not just stopping more people from coming in. It is deporting every single undocumented immigrant in the United States. And that is all that anybody is talking about on the radio.

Hannah McCarthy: Yes, Trump is promising the single largest deportation effort in American history, period. And what is he going to do with the border right now? The thing that he's touting is moving troops who are stationed overseas to the border and redirecting DEA, FBI, and a number of other federal agents to the border. And he plans to reinstate his travel ban on people from Muslim majority countries. So the idea here is to get some people out and then keep some people out, right? Right. That is the goal overall for immigration and Trump. All right. Policing. Trump has actually said the little bit about keeping the nation safer, like the domestic issue here with policing. So what has he said?

Rebecca Lavoie: There is right now a very big media campaign around, quote, increasing crime rates in American urban areas. Right. And there are very cherry-picked news stories used to demonstrate that in political rhetoric.

Archive: Following some breaking news out of Athens, Georgia.

Archive: Two colleges have canceled classes today as police look for a murderer.

Archive: Lincoln Riley was described as a shining light.

Archive: The Dean's List nursing student police.

Archive: Arrested 26 year old Jose Antonio.

Archive: Ibarra. Ibarra crossed into Texas illegally.

Rebecca Lavoie: So isn't it about refunding and equipping police to tamp down the alleged insurgent fear that people have of now being attacked in their homes and in their communities?

Hannah McCarthy: Right. So a big thing in terms of these very violent places in America, as so deemed by at least Trump in this case. Right. So Trump says Chicago is dangerous. What's Trump going to do? He's going to send the National Guard to Chicago to enforce the law to keep it safe. Um, he plans to invest, like you said, Rebecca, more money in hiring police officers, strengthen protections for those officers. Officers have something called qualified immunity, which means that they are essentially not held accountable for violating constitutional rights. So Trump wants to really shore that up, and then he wants to require law enforcement agencies that receive Justice Department funding to use measures like stop and frisk. You want government money, you better use stop and frisk. He has also stated that shoplifters should be shot as they're leaving a store. You should be expected to be shot as you're walking out. In terms of student loan debt, I'm just going to say Trump's thing is like, good for the Supreme Court for preventing Biden from forgiving student loan debt. Think of all those people who did the right thing and paid them off. That wouldn't be fair to them. Uh, healthcare. What's his big healthcare thing?

Rebecca Lavoie: Are we gonna say abolish Obamacare again? Because that didn't work last time. And it seems like the longer we get away from the passage of Obamacare, the less likely it is to be abolished. Because at the time, I remember very clearly people saying, even on the right side of the aisle, that if we pass this, we won't be able to repeal it because people will like it. And that does seem to be exactly what has transpired.

Hannah McCarthy: Correct. He is promising to repeal Obamacare. Okay, he's back on it. Trump says that America has the worst health care in the world, and that he's going to fix it. And he promises to reinstate an executive order that would mandate that the US pay the same for drugs as other developed nations. So Biden's actually done a lot of work on the cost of prescription drugs. This is just what Trump thinks is the way to cover the cost of prescription drugs. Gun violence.

Nick Capodice: Isn't it? We need more people to have more guns to prevent violence. That every person with a gun is stopped by a better person with a better gun.

Hannah McCarthy: Yeah. Trump vows to undo Biden's gun ownership restrictions. He promises supporters that nobody will lay a hand on their guns. And in terms of preventing gun violence in schools, Trump is saying that he wants to allow trained teachers to carry concealed firearms and hire armed school guards from the Pool of America's veterans and retired police officers.

Rebecca Lavoie: This is fascinating. This has always been fascinating to me. And this is, I think, a, you know, widely known party difference, right? Is the basic, effective messaging of Trump's platform really echoes a trend that we've seen. You know, no one is going to take your guns. None of the Biden promises on guns say, we're going to take your guns. That has not been on the table for a long time. You know, there hasn't been a gun buyback program. There hasn't been a gun confiscation program. The simple, clear language of taking your guns, coming for your guns. It's very effective as a writer. You know, these promises are written very clearly, and I see why they resonate, I really do, yeah.

Hannah McCarthy: I mean, honestly, just like saying it out loud and doing the research on it. The Biden promises felt more convoluted, harder to wrap your mind around. Wonky, yes. And the Trump promises are just like an aphorism, 1 or 2 lines, just like this is the truth, and I'm just going to stand by the truth and that's it. And that, like, that is solid, strong, compelling messaging. Now I'm just going to quickly run through Trump's the rest. Right. So here's the other stuff that he's promising. And the Department of Education give additional funds to grade schools.

Rebecca Lavoie: That's under your the rest...

Hannah McCarthy: I know.

Hannah McCarthy: Okay.

Rebecca Lavoie: Sorry, I didn't mean to interrupt you there.

Hannah McCarthy: No, it's totally fine, but yes. And the Department of Education. What is the idea here? The idea here is give the education power to the states. Take the federal government out of it and to the parents...

Nick Capodice: You know, this is a big thing. It's give it to the parents. Parents should be able to tell the kids what to read.

Rebecca Lavoie: Give it to some of the parents..

Nick Capodice: Some of the parents. Right. Give it to the. Yeah. Thank you. Rebecca.

Hannah McCarthy: Yes, yes. Speaking of power to the parents. Uh, more funding for schools who elect their principals.

Nick Capodice: Oh, interesting.

Rebecca Lavoie: Hello.

Nick Capodice: Yeah. Didn't know.

Hannah McCarthy: That. Also, more funding to schools who cut certain administrators, like administrators working on Dei efforts and elimination of tenure for teachers. If you do that, you'll get more funding. Trump also plans to cut funding for schools that teaches what he calls critical race theory, which we've talked about before on the show. Public schools do not teach that right. High-level law schools teach that. And what he calls gender ideology, which is just the way that Trump is putting it, gender ideology, which roles really naturally into the gender front. I don't know if any of you have heard about what Trump pretty clearly said he's going to do about gender.

Rebecca Lavoie: What has he clearly said he's going to do about gender?

Hannah McCarthy: Pass a law that recognizes only two genders as assigned at birth. In the United States, you are one gender or the other that is assigned at birth, and that, by law, is what you are. Under the same umbrella. Trump plans to stop funding to hospitals that provide gender-affirming care and label those hospitals as not meeting federal health and safety standards. And he intends to get a law passed that prohibits hormonal and surgical interventions for minors in the US. Trump promises to, quote, take back our city streets from the homeless, the drug addicted and the mentally ill. He's going to do this by banning urban camping. First of all, violators have a choice. One of the choices - there are two - is jail and the other one Trump is calling treatment. So where will these people actually go? They will be sent to tent cities established on inexpensive land outside of the city where this unhoused person is. And supposedly these tent cities will be staffed with doctors, psychiatrists, social workers and drug rehab specialists.

Christina Phillips: Which is another example of something that's already happened in cities and states. I mean, there have been policies where cities and states have banned homelessness. I think mostly cities and towns have banned homelessness. Oftentimes this looks like enforced busing outside of city limits. So this would be a more national scale effort or funding or support towards cities and states that are adopting these kinds of policies. Right.

Hannah McCarthy: So when I say that Trump promises to obliterate the deep state.

Nick Capodice: Oh, this is the big one.

Hannah McCarthy: We know how he's going to obliterate the deep.

Rebecca Lavoie: What is the deep state in this case?

Nick Capodice: It's you, rebecca.

Rebecca Lavoie: I bet know something about this. Considering your media habits.

Nick Capodice: There's a name to obliterate the deep state. He is going to fire everybody on day one. Now, when I say everybody, I don't mean like the professional everybody. But I mean a lot of people.

Hannah McCarthy: So has anyone heard of schedule F before? Because we have seen it before. I'm not sure what the F stands for. I would assume...

Nick Capodice: Fire firing.

Hannah McCarthy: But schedule F was an executive order that Trump signed at the end of his presidency. It did not go into full effect. What this does is it reclassifies government employees. It removes their civil service protections. It essentially makes them at-will employees and an at-will employee can just be fired, full stop. Trump has promised that he will remove, quote, rogue bureaucrats and use that power, quote, very aggressively. So all of this will be done under schedule F, essentially a massive firing to obliterate the deep state. This is pretty much interpreted to mean anyone who Trump doesn't feel as a supporter of his ideals, his measures, needs to leave.

Christina Phillips: Which the federal government is a massive employer, and many of these people serve as employees of the government over many, many administrations. So they have different sort of protections and contracts and rights. Then somebody who maybe is only going to be there while the president is in office is maybe coming with the candidate or the elected president. So this would sort of eliminate some of the protections for people who have jobs that extend across administrations. Is that what you're saying?

Hannah McCarthy: Yeah, I mean, the civil service protection is there to protect these employees from the shifts of political wills. Right. And Trump is essentially saying, I'm going to get rid of those civil service protections, which, you know, we can take that a step further to allow for the force of my political will.

Rebecca Lavoie: That's right. So this could go as far as I will fire any IRS agent who audits anybody that I don't think should be audited. I will fire anybody who has ever sent an email with a political cartoon featuring me in it. I will fire, you know, it's like it really is sweeping. I mean, this is like we're talking some dark stuff here.

Nick Capodice: So the name of this and I was trying to remember it earlier is project 2025. You know, and that's a big umbrella term for all the things that Trump promises to do. But that big part, Rebecca, that you were saying, this is some dark, scary stuff where anybody can be fired for political thoughts that they had had and they were protected from that previously.

Hannah McCarthy: One last little thing. Um, Trump says that he's going to solve the Ukraine-Russia war conflict, maybe even before his inauguration. Just solve it.

Archive: If I were president and I say this, I will end that war in one day. It'll take 24 hours and.

Hannah McCarthy: Then plans to stand with Israel against Hamas. You know, these are major conflicts. We have to know where each candidate stands. Trump has used fairly blunt language to talk about where he stands there.

Hannah McCarthy: That's it.

Hannah McCarthy: Those are the promises, the platforms, the beliefs, the things that these candidates are saying they're going to do or have failed to do or will try to do. That is the playing field. There's a lot more, but if you want to learn about that, you should just listen to your candidates and see what they're telling you. But this should give you a sense of who you're voting for when you vote.

Nick Capodice: What I'm really interested in is to hear how these promises become sort of amalgamated into planks, because, you know, the platform, the planks of the platform, because the conventions are where the planks of the platform are revealed dramatically to everybody. Right.

Hannah McCarthy: I fail to say this earlier, I did not mention the platforms, and I didn't do that on purpose. I'm basically saying, like, there are the promises, there's what a candidate says they're going to do, and then there's the platform. Basically, like candidates and presidents have long ignored the platform entirely. Nick, you're correct. This is something that is voted on during the national conventions. It's what the party believes. But often politicians, representatives, presidents do not adhere to, quote, what the party believes they adhere to, what's going to keep them in power in terms of what their constituents want. And the Republican Party has not voted on a platform since 2016. So the planks of the platform, they could be found in this hodgepodge of promises but no promises.

Nick Capodice: Yeah. You know what Robert Service said about promises, right? A promise made is a debt unpaid.

Hannah McCarthy: You say that like once a week.

Nick Capodice: That's a pie crust promise. Easily made, easily broken.

Nick Capodice: I do say that a lot.

Nick Capodice: Sorry. Everyone who knows me.

Hannah McCarthy: That does it for this episode of Civics 101. It was produced by executive producer Rebecca Lavoi and me, Hannah McCarthy. My co-host is Nick Capodice. Our senior producer is Christina Phillips. Music in this episode by Adeline Paik, P.O.W. arc de Soleil, Victor Lundberg, Keza Kirk Osymyso, Dirk Taylor, Chris Zabriskie, Marxist Arrow, and Eden Avery. If you want more Civics 101, we've got a lot of it at our website, civics101podcast.org. While you're there, you can also subscribe to our newsletter to get Civics 101 in your inbox and read it at your own pace. Civics 101 is a production of NHPR, New Hampshire Public Radio.

How did Lochner v. New York end up on the naughty list?

Lochner v New York, a 1905 Supreme Court case about working hours and contracts, is considered anti-canon. Right up there with Dred Scott, Plessy and Korematsu. The question is, how did it get there? Why do people think it's so bad? And what does this decision, and the era that followed, say about politics and the Supreme Court?

Our guides to this case and what came after are Rebecca Brown, Rader Family Trustee Chair in Law at USC Gould School of Law and Matthew Lindsay, Associate Professor of Law at University of Baltimore School of Law.

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Transcript

Hannah McCarthy: [00:00:00] Nick. When I say anti cannon does it does it mean anything to you.

Nick Capodice: [00:00:05] Yeah like Supreme Court anti cannon.

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

Nick Capodice: [00:00:10] I always think these are the cases that aren't just sort of bad. They were decided badly and so badly they can't be used by any future cases as precedent. Right, right.

Hannah McCarthy: [00:00:21] Exactly. The decisions wherein the court got something so wrong that they cannot be considered precedent. Right? The court can't reference [00:00:30] back to them. Don't build a future opinion on the opinions there. And the list is typically as follows. Dred Scott versus Plessy v Ferguson. Lochner v New York and Korematsu v US. And you know, not all legal scholars agree that all of these cases are bad jurisprudence, as we call it. I just want to make that clear. But we here at Civics 101 are calling them anti canon, and we have [00:01:00] made episodes about every case on this list except for.

Nick Capodice: [00:01:03] One, except for one. Hannah. It's the one I know nothing about.

Hannah McCarthy: [00:01:09] Well, aren't you Nick Capodice lucky to be here and aren't I? Hannah McCarthy, this is Civics 101. Today we are taking on the case, of course, of Lochner v New York. Nick, why do you think we have not dug into Lochner?

Nick Capodice: [00:01:25] Huh? Honestly, um, it's it's like it's not [00:01:30] shouting ill will from the page like the others, as far as I can tell.

Hannah McCarthy: [00:01:34] Like it doesn't feel evil in the same way. It doesn't make you balk.

Nick Capodice: [00:01:37] Honestly. It's like not shouting ill will from the page. Like at least as far as I can tell. Come on, Dred Scott. People of African descent, though they actually mean black people in America, cannot be citizens ever. And then you've got Plessy v Ferguson, uh, which basically upholds the long standing tradition that racial segregation is okay. [00:02:00] And then Korematsu, you can imprison Americans of Japanese ancestry without due process, full stop. But Lochner. Lochner is about bakers right with the be like the people who make bread.

Hannah McCarthy: [00:02:20] No disrespect to bakers. We love bread, we love bread.

Nick Capodice: [00:02:23] Bread is the staff of life.

Hannah McCarthy: [00:02:25] One of these days, we will treat our listeners to a rousing round of bread or stairs. Which came first? [00:02:30]

Nick Capodice: [00:02:30] Bread, by the way, it is stairs.

Hannah McCarthy: [00:02:33] Good. This is my hill to die on. These are my stairs to die on.

Nick Capodice: [00:02:38] This is my bread to choke on. You're wrong. By the way, Hannah, it is bread. But we do digress.

Hannah McCarthy: [00:02:44] I'm not. And we do. Lochner v New York, 1905. About bakers. Yes, but more importantly, it is about economic regulation and unenumerated meaning not explicitly stated in the Constitution. Rights. [00:03:00]

Nick Capodice: [00:03:01] Okay. Uh, well, you do have my attention here, Hannah. Great.

Hannah McCarthy: [00:03:05] So my two big questions going into Lochner were what actually happened here, you know, like the facts of the case, that sort of thing. And then what makes this anti cannon what puts this Baker case alongside Dred, Plessy and Korematsu.

Nick Capodice: [00:03:26] Hannah, can we answer the first question in the broadest terms first? [00:03:30]

Hannah McCarthy: [00:03:30] Uh, well, you know, I can do my best. I like the details. So it's 1899. Joseph Lochner owns a bakery in Utica, New York, and he is accused and convicted of violating the Bake Shop Act.

Nick Capodice: [00:03:45] The bake shop act. Now, what does that say?

Hannah McCarthy: [00:03:47] Let's bring in somebody who knows a lot more than me.

Matthew Lindsay: [00:03:50] The adoption of the Bake Shop Act, and this is in 1895, followed a very public exposé of just the appallingly unsanitary conditions [00:04:00] in New York bakeries.

Hannah McCarthy: [00:04:02] This is Matthew Lindsay.

Matthew Lindsay: [00:04:03] I'm a professor of law at the University of Baltimore School of Law. I teach constitutional law and American legal history, among other subjects.

Hannah McCarthy: [00:04:13] Matthew says that the unsanitary conditions, those were the main point of the Bake Shop Act.

Matthew Lindsay: [00:04:20] Open sewage drains, rat infestations, domestic cats hanging around to catch the vermin sleeping on the bread, bakers sleeping all night in bakeries, often [00:04:30] in filth, coal dust covering everything, including the bakers and the bread itself because the ovens were coal fired. And so, to address these problems, the acts sanitary provisions did some pretty uncontroversial things that weren't subject to any meaningful legal challenge things like requiring that sewage drains be closed in pipes, or that domestic animals not be kept there, requiring that the floors be made of concrete or tile rather than dirt. For example, prohibiting people from sleeping there, uh, providing [00:05:00] for periodic inspections by by state inspectors.

Nick Capodice: [00:05:04] Okay, bake shops are super gross, and that's not okay. Fix it.

Hannah McCarthy: [00:05:09] Straightforward enough. And nobody had an issue with the whole bake shops or gross evaluation workers aside. And I will get to that in a moment. Nobody wants to eat bread covered in cat hair and rat poop and maybe trace sewage. And because pretty much everybody does eat bread, those regulations make a lot of sense.

Nick Capodice: [00:05:28] Are the halcyon [00:05:30] days before carbs became a four letter word.

Hannah McCarthy: [00:05:33] The part of the Bake Shop act that people did have a problem with.

Matthew Lindsay: [00:05:38] The act also included a provision that was added late in the process at the behest of the bakers union, limiting work in bakeries to ten hours per day or 60 hours per week.

Nick Capodice: [00:05:50] So the bakers union wanted this hours thing passed. Well, I'll put it.

Hannah McCarthy: [00:05:53] Like this unions were not powerful enough at the time to get this law passed. For that, we can [00:06:00] really thank reformers who were powerful enough to call for business regulation. But the unions would have been pretty happy about this. And not only the unions, the bosses to wait.

Nick Capodice: [00:06:13] The bosses and the unions on the same side. That dog don't hunt McCarthy.

Matthew Lindsay: [00:06:24] The bacon industry in the in the late 19th century, particularly in a more urbanized state like New York, [00:06:30] was divided between these larger, more modern factory style bakeries that were mostly unionized, uh, and smaller kind of old fashioned, typically ununionized bakeries. And those bakeries in that second category were often located in the basements of tenement buildings, and they were often staffed by German, Jewish and Italian immigrants. And unlike the modern unionized bakeries, which organized work into specific shifts, basement bakeries typically paid workers [00:07:00] by the week, and the employer could demand virtually unlimited number of hours within that week, and the pay itself didn't change during some particularly busy periods. For example, bake shop owners either required that workers be on call 24 hours a day.

Hannah McCarthy: [00:07:17] Big union shops are they're big. They can manage shifts. Workers can do ten, you know, maybe even eight hours a day. Small, non-unionized mom and pop shops [00:07:30] cannot pull that off. They've got like three employees. They got to work all the time. So, Nick, if the Union bakeries can meet, the minimum hours can meet the minimum hours regulations, but the nonunion bakeries cannot.

Nick Capodice: [00:07:47] Less competition for the union shops making the union happy, because that means employment. And the boss is happy because that means business keeps trucking. Mom and pop take the hit. [00:08:00]

Hannah McCarthy: [00:08:00] Correct? Also, by the way, unions tended to be all white, all male and anti-immigrant. Uh, those small shops tended to be immigrant run German and Jewish bakeries. Fun fact unions had a tendency to support regulation for women's working hours and conditions as well. And guess what? It wasn't out of the goodness of their hearts. All right, so back to the German run bake shop at the center of this case.

Rebecca Brown: [00:08:25] We're talking a criminal punishment for a bakery to employ bakers for [00:08:30] more than ten hours a day, or more than 60 hours total. So Joseph Lochner was an immigrant from Germany who owned a small bakery, and it was so small that he had only a single shift of bakers. And those bakers had to work all night in order to prepare the bread for, say, in the morning for the people to buy.

Hannah McCarthy: [00:08:51] I'm bringing in another brilliant soul here. This is Rebecca Brown.

Rebecca Brown: [00:08:54] I'm a professor of constitutional law at the USC Gould School of Law. [00:09:00]

Hannah McCarthy: [00:09:00] Rebecca says, you know, no matter how bad you consider Lochner, maybe we can have a little sympathy for those big shop owners who could only survive if their bakers baked round the clock. So Lochner gets convicted, he's fined $25, and his response is, uh uh, this is fundamentally wrong. This hours thing is a violation of an American right?

Rebecca Brown: [00:09:23] And he took his appeal all the way to the US Supreme Court, and he argued that this law interfered with his liberty, specifically [00:09:30] his right to enter into contracts with his employees as an owner of a small business on whatever terms they two consensually agree to. That's what he says, that this is a natural right of people. It's not specifically listed in the Constitution, but he said it's incorporated into the word liberty. And you can't take away my liberty without due process. And due process means you have to have a good reason, right? That it can't be arbitrary. So that was his argument, [00:10:00] and the court ended up siding with Lochner. It agreed that the right to make contracts was a fundamental liberty that could only be restricted for a good reason.

Nick Capodice: [00:10:15] Wait, I just have to ask, what exactly is a contract? You know, does it have to be on a piece of paper and signed and everything?

Hannah McCarthy: [00:10:26] No. Uh, so a contract in this case is [00:10:30] presumed to be a voluntary agreement between two parties. And then, you know, specifically in Lochner related to the sale and purchase of labor. Now, real quick, the word contract is actually in the Constitution. It's in article one where it is stated that a state cannot pass a law that impairs the obligation of contracts. Oh, but that article is not actually cited in Lochner, since [00:11:00] the justices are relying on that 14th amendment due process idea, they are leaning on that connection between liberty and liberty of contract.

Nick Capodice: [00:11:10] Okay, so the court says, yeah, you're right. You do have a fundamental right to enter into contracts without the government mucking about. But hang on here, Hannah, Rebecca said due process means you have to have a good reason. I thought it meant you had to give someone a fair and speedy [00:11:30] trial, or explain to them what they're accused of doing, that sort of thing. I thought that's kind of what due process meant.

Hannah McCarthy: [00:11:36] Yeah. So Matthew walked me through this one.

Matthew Lindsay: [00:11:39] There were a couple big innovations in Lochner. One, as I said, is this idea of liberty, of contract, right, that there exists a substantive right to to liberty that includes the right to purchase and sell labor. But the second really important thing that Lochner did was to attach that new substantive right to a provision of the Constitution [00:12:00] that traditionally had been understood to guarantee a fair process. The due Process Clause says that a state can't make or enforce a law that deprives any person of life, liberty, or property without due process of law. Now, that doesn't mean that a state can't deprive somebody of life, liberty or property. It just means that in order for it to do that, it has to provide due process.

Hannah McCarthy: [00:12:22] Here's what you need to know here. There are two kinds of due process. Procedural due process [00:12:30] says the government must follow the proper procedures when it takes away life, liberty and or property.

Nick Capodice: [00:12:38] Right. That's the speedy trial thing.

Hannah McCarthy: [00:12:40] Yeah, but substantive due process. It kind of comes before that. It's more essential before the government ever got to the procedural part. Did they take a fundamental right away and did they do it for a good reason?

Matthew Lindsay: [00:12:58] The theory of substantive [00:13:00] due process was legally innovative because it protects non enumerated substantive rights. In other words, rights that aren't found in the Constitution's text. And it does that by attaching those rights to a provision of the Constitution, the due Process Clause that was designed to guarantee a fair process. So, for example, Joseph Lochner in Lochner v New York, isn't claiming that the legislature that enacted the law or the governor that signed it, or [00:13:30] the public officials that enforced the Bakeshop Act against him somehow failed to adhere to the proper procedures. Instead, he's arguing that the act itself, and specifically the maximum hours provision, deprives him of his substantive right to freedom of contract.

Nick Capodice: [00:13:45] So the law itself was a constitutional violation, not the way they enforced the law.

Hannah McCarthy: [00:13:51] You got it. Joseph Lochner wasn't saying the government deprived me of procedural due process, like they didn't let me appeal this or they didn't [00:14:00] tell me what I was accused of. He is saying the law that got him into trouble is itself a violation of his constitutional right.

Nick Capodice: [00:14:11] But I'm still wondering about the quote unquote good reason. Part of all, this wasn't the reason for the hours provision, basically, that it's not good for people to work endless hours.

Hannah McCarthy: [00:14:23] No, not the people. Bakers, here's Rebecca again.

Rebecca Brown: [00:14:28] And that good reason has to [00:14:30] be something about protecting the public, right? Protecting the health and safety of the public, which is the core power that a state enjoys. They call it the police powers, that it's the power to regulate for the common good, for all the good of all. And unless you could justify your restriction by saying it needs to be done for the common good, that it would be considered a violation of due process. And that's exactly what the court found. They did not think that there was a good enough justification. [00:15:00] They didn't think it had much to do with public health, and they didn't think it had much to do with public safety.

Nick Capodice: [00:15:07] But weren't bakers getting white lung or whatever it's called from working long hours in clouds of flour?

Hannah McCarthy: [00:15:14] Yes. By the way, Nick, did you know that white lung is still a thing? It is also called Baker's asthma and it is a leading cause of occupational asthma. This is completely different, by the way, from this thing people were calling white lung pneumonia in 2023. [00:15:30] That's actually a misnomer.

Nick Capodice: [00:15:32] The things you never think you'll learn in a civics 101 episode and then whoop, there it is.

Hannah McCarthy: [00:15:37] But to your point, the healthfulness of the baking industry did come up in Lochner, and the court was like, look, we actually upheld an hour's limit, with exceptions for miners and smelters back in 1898, and it had to do with their health.

Nick Capodice: [00:15:54] Wait, miners like mine's right in caves, not miners like, [00:16:00] you know, kids. Yeah.

Hannah McCarthy: [00:16:02] Um, no. Fair enough. Question. Since child labor was a huge problem at the time. But I do mean miners like mines. The majority's point in this case was, look, those people were in mines. Lung issues aside, a bakery is not a mine. Baking is not sufficiently dangerous for the legislature to interfere with a bakery worker's freedom of. Contract, they said, and I quote, [00:16:30] there must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty, unquote. Basically, if we let this slide with bakers, what's next, bank clerks?

Nick Capodice: [00:16:47] Did the opinion actually say that?

Hannah McCarthy: [00:16:49] Yeah, I'm gonna I'm paraphrasing, but it did actually say that. And and Nick, I think you're gonna love this. Rufus Peckman writing for the majority was like, you know, clerks often work by artificial daylight. [00:17:00] Sometimes they don't see the sun all day. And you're gonna tell me the legislature should be allowed to say that's unhealthy. So no long hours for clerks.

Nick Capodice: [00:17:08] Oh, but who is gonna who? Whoever will think of the suffering bank clerks? This will be a smorgasbord of regulation.

Hannah McCarthy: [00:17:16] Doctors, lawyers, scientists, all professional men as well as athletes and artisans could be forbidden to fatigue their brains and bodies by prolonged hours of exercise. And I quote that is in the majority opinion. [00:17:30] And then, of course, the health question in this case, who is the state protecting? They're only talking about bakers.

Rebecca Brown: [00:17:39] The court said that's not the public protecting us. Small segment of that is that's paternalistic. That's not regulating for the common good. The common good means that you'd have to show that if bakers work long hours, they produce less healthy bread that would endanger the public. That's not shown here. So we think the health justification is missing. So [00:18:00] not good enough to restrict a fundamental liberty under the due process clause.

Nick Capodice: [00:18:05] Wow. Okay, so that's Lochner. People have a fundamental liberty of contract, and New York didn't have a good enough reason for depriving them of that. Right. So, um, I feel like that brings us to your second big question about Lochner. Hannah. What makes this case anti cannon. Like when did people, especially the Supreme Court, [00:18:30] look at this whole thing and say, yikes, this is so, so, so wrong?

Hannah McCarthy: [00:18:37] Well, at least one person on the court said it right away. And we're going to get to that after the break. But before we do break, dear listener, guess how long I spent trying to figure out how to explain the due process thing without taking 30 minutes of your precious time. Way more than 30 minutes of my precious time. But [00:19:00] there is still so much for you to know. And not just about that, but about everything to do with American government. Luckily, we have a place where we put all of that other stuff. It's called extra credit. It's a newsletter, and you can read it at your leisure. Subscribe to get all the stuff that doesn't fit in an episode at our website, civics101podcast.org.

Nick Capodice: [00:19:30] We [00:19:30] are back. You're listening to Civics 101. We are talking about the infamous, the lowly, the to be honest, not so completely evil seeming. Lochner v New York. And just before the break, Hannah, you promised to explain to me how this case about bakers and working hours got itself on the naughty list.

Hannah McCarthy: [00:19:50] I did, and it all started with Justice Holmes. Here's Rebecca Brown.

Rebecca Brown: [00:19:56] Oliver Wendell Holmes disagreed, and he wrote this very famous [00:20:00] dissent. He thought that the court was just imposing its own policy preferences at that time, the prevailing policy preference among especially people on the court, kind of a conservative philosophy was that you don't you leave people alone. You don't regulate states, don't interfere in private economic affairs. There was a time for that in economics called laissez faire, just meaning leave it alone, stay out. And that's how we flourish as America libertarians, you don't regulate. [00:20:30] And he thought that they had that they came to the case with that predisposition. And they kind of planted that view on top of the Constitution and said, it's not in the Constitution. That's your preference. But our job as the court is to read the Constitution, not to impose our policy preferences. You know, if you don't like it, vote against the law or whatever. But don't you can't strike down what the people in New York chose to have in their law on this because it's not objective.

Hannah McCarthy: [00:20:56] And here is Matthew Lindsay.

Matthew Lindsay: [00:20:58] Holmes's dissent [00:21:00] just became immediately famous and remarkably influential. So holds offers instead. This this classic statement of judicial restraint, of allowing legislatures to enact dominant opinion into law so long as that law doesn't offend some core constitutional principle. So Holmes is saying to the majority, basically, you may believe that unbridled competition in the survival of the fittest is good economic policy. You might even believe that it's the natural state of society, [00:21:30] but that doesn't mean that legislation to the contrary is unconstitutional. So? So Holmes's opinion immediately became this rallying cry for opponents of of constitutional liberty of contract.

Hannah McCarthy: [00:21:43] So Holmes's opinion is still relevant today. Basically, the court went too far and brought their own policy views into their interpretation of the Constitution. That is why some people say Lochner is capital B bad [00:22:00] wait.

Nick Capodice: [00:22:00] But to get on that anti cannon list, doesn't pretty much everyone have to believe a case is capital B bad?

Hannah McCarthy: [00:22:06] Yeah, and pretty much everyone does believe that, but not for the same reason. Buckle up. First you got to know what happens after Lochner in what people came to call the Lochner era. And it might have been the Lochner era behind the grand doors of the Supreme Court. But outside those doors [00:22:30] it was a different era altogether.

Nick Capodice: [00:22:32] Wait, wait, wait, when was Lochner handed down Hannah?

Hannah McCarthy: [00:22:37] 1905.

Nick Capodice: [00:22:38] The early 20th century in America. Hannah, this is the Progressive era.

Hannah McCarthy: [00:22:43] It sure is.

Nick Capodice: [00:22:44] Like this is the era that was all about social and political reforms. This is like Jacob Reece and Upton Sinclair and Ida Tarbell exposing the sins of the Industrial Revolution and the Gilded Age. This is trust busting. This is government regulation and [00:23:00] the middle class. So where does Lochner fit into all of this?

Rebecca Brown: [00:23:04] Change has to sort of be considered right. This pressure is building because all of these problems were just, I guess, proliferating and increasing over time, but all protected for regulation by the Supreme Court's decision in Lochner. So this is what we call the Lochner era. One by one, they struck down minimum wage hours, maximum hours, certain safety protections. They upheld some if they really thought there was a public health justification. [00:23:30] But mostly they didn't. And then we had the economic crisis in the country of the depression, the Great Depression, starting with late 1920s and into the 30s. And there was no safety net, there was no social safety net, because the court was telling us that economic regulations by the state were illegitimate, were violations of liberty, and it kept states basically out of the economic relationships that were the sort of heart of our economy at that time, our growing market economy, this whole [00:24:00] new idea of a big sort of national market.

Hannah McCarthy: [00:24:02] Now, I want to be fair here because we call it the Lochner era. And when we say that, we are broadly saying that the court is siding with this idea that business regulation is unconstitutional. But actually that wasn't happening across the board. The court was not striking down all regulation.

Matthew Lindsay: [00:24:22] The locker area is sometimes characterized as this period of laissez faire constitutionalism, in which a [00:24:30] court sought to protect the private marketplace, maybe even protect capitalism itself from this newly emboldened activist state. But in reality, the court during this period was not as uniformly hostile to economic regulation as termed Lochner era or laissez faire constitutionalism suggests. In fact, the court rejected the vast majority of constitutional challenges to economic regulations, including challenges to some labor regulations. [00:25:00] And in fact, economic regulation expanded dramatically throughout the entire so-called Lochner era. Now, that said, the court really did in more discreet ways impede both state and federal efforts to to regulate labor relations and to provide workers with at least some measure of protection and the bargaining power in relation to to their employers. And that was especially true in the 1920s and 1930s, when the Great Depression [00:25:30] really pushed the question of wages and working conditions to the forefront of political and legal debate. I think it is accurate to say that that jurisprudence limited the early New Deal, and it truly did constrain what the Roosevelt administration could do between the time it first took office in 1933 and this period of time in 1937, when the court really shifted gears and began upholding [00:26:00] economic regulation.

Nick Capodice: [00:26:02] What happened in 1937?

Rebecca Brown: [00:26:04] The bottom line is, in 1937, a new case is decided. It's called West Coast Hotel versus parish, and it is a case where the that someone's challenging a minimum wage once again and Locutor would say strike it down. Right. Minimum wage. Just like the hours provision in Lochner, it's a product of a contract relationship. This time the court takes a different approach and it says, [00:26:30] yes, sure. This is there is a liberty here, but the restriction is justified because the common good now demands it. Maybe the common good has changed because our country has changed. They don't say exactly why, but they do say why should states have to subsidize employers who don't pay a living wage if they're if the full time workers are starving on the streets, the state now, which it didn't used to now as sort of an obligation to step in and provide subsistence for people or take care of children who can't be supported.

Nick Capodice: [00:26:59] Did this case [00:27:00] West Coast hotel versus parish overrule Lochner?

Rebecca Brown: [00:27:04] Did they own Lochner? They did not explicitly, but they took the reverse position on the constitutional question. No longer will liberty of contract be considered a fundamental right, and no longer will the state's ability to regulate that be skewed in such narrow terms. They will look at the common good and the regulatory interest more broadly. So it's interesting because they sort of acknowledge that we're all [00:27:30] interdependent now as a society, much more so than we were in 1905. We need more things. We need more interventions in a society that now looks like this crowded and working for other people and factors and dangerous and all of that. We need more order to protect everybody.

Hannah McCarthy: [00:27:47] Okay, so when Rebecca started talking about this 1937 shift and the way the court starts taking a different tack, I was like, okay, all right. Because essentially she's saying that there was a different [00:28:00] perception on the bench based ostensibly upon the giant pickle America found itself in. And I got really excited. And I will come back to that later, I promise. But what's going on is these nine justices are asking, okay, given this unholy mess, what role should the state be playing here? And they decided it should be a big one. [00:28:30]

Nick Capodice: [00:28:30] And so just like that, Lochner is a bad word.

Hannah McCarthy: [00:28:36] So I don't know if you remember, but I told you at the beginning of this episode that even though a lot of people agree that Lochner is anti cannon, people do not agree on why.

Matthew Lindsay: [00:28:47] Well, I think it depends who you ask. With the exception of a relatively small handful of modern day libertarians who gone out of the way to defend Lochner. Um, most people are willing to say that it was bad law, but for different [00:29:00] reasons. Progressives tend to think that Lochner was a terrible decision, because it really engrafted this idea of liberty, of contract onto the Constitution, and that immediately became a weapon that opponents of economic regulation, particularly labor regulation, could use, could take to court to challenge those regulations. And when there's talk about the Supreme Court striking down some progressive piece of economic legislation, think, for example, [00:29:30] about the Affordable Care Act. You often hear progressives accusing the court, or at least the challengers of the act of Lochner Rising, which means enacting their own ideological preferences, their their laissez faire ideology into constitutional law.

Hannah McCarthy: [00:29:46] In other words, the moment you saw the freedom of contract in the Constitution, Scotus, we were in trouble, you know? But that doesn't mean you shouldn't see other freedoms in their freedoms, like privacy, [00:30:00] the.

Rebecca Brown: [00:30:01] Sort of more liberal strand of argument, which is they just protected the wrong rights, you know, like the privacy, right? They like where we wade and they think that's an appropriate use of substantive due process, that there is such a thing that liberty means something. And we going back to the Magna Carta that had substantive content and they just protected this right to contract, which really is shouldn't be a fundamental right, because, you know, the progressive agenda [00:30:30] is to regulate for common good, you know, to protect workers and to protect people from dangerous. Machinery to protect children. So they think that the economic workplace is not the place to recognize rights, but that there is substantive content and it's appropriately recognized in privacy.

Hannah McCarthy: [00:30:52] And by the way, there is an incredibly important, to me at least, arc from Lochner to a case called Griswold [00:31:00] v Connecticut to a case called Roe v Wade, to a case called Dobbs v Jackson Womens Health Organization, I made episodes about all of those other cases. You can give them a listen. You will see another unenumerated right. Privacy rears its head in the Constitution in 1965. You should also ask yourself, by the way, when you listen to those episodes, why, to some people, Lochner seems to threaten to live again in the Dobbs decision. But okay, [00:31:30] so that is part of the liberal strand of argument against Lochner.

Matthew Lindsay: [00:31:34] When conservatives talk about the problem of Lochner, they tend to worry less about the laissez faire implications of the decision itself, and instead to be thinking in terms of judicial overreach, of judicial activism, of legislating from the bench, of the court, acting as a kind of super legislature that fails to stay within its proper parameters.

Nick Capodice: [00:31:58] So this sounds like it's in line with [00:32:00] a pretty common modern conservative ideology about leaving decisions to the states, not regulating from on high. We're talking small federal government states rights. That whole line of thinking.

Hannah McCarthy: [00:32:13] Yeah. And then there's another conservative view.

Rebecca Brown: [00:32:18] Justice Scalia was one of these. And Justice Thomas is still saying this on the court. His view is the problem with Lochner is that there is no substantive content [00:32:30] to liberty. All you get from the due Process Clause is like a hearing. If you're going to be locked up in jail or notice or things like we call procedures. Justice Scalia called substantive due process. He called that an oxymoron. You can't have substantive and process in the same place. So he looked at the fundamental error of Lochner as giving content to liberty, right, by saying, liberty includes this freedom to contract. And then Griswold says, oh, it also includes this freedom [00:33:00] of privacy.

Nick Capodice: [00:33:01] Okay. Very basically, I would call this a textualist view, right? The Constitution doesn't say contract anywhere. You know, it isn't there.

Rebecca Brown: [00:33:11] There's another view that is voiced by some sort of also conservative academics, but with a different point of view. They believe in rights. They believe the substantive due process concept that liberty does contain rights for us, protects us from some things, but they object to [00:33:30] the way it's been applied. Some of them disagree with making a difference. When economic rights on the one hand, and personal rights on the other. We should either protect all of them or none of them. So it goes with the conservative philosophy that they think economic rights should be better protected. And there are some academics who take that position.

Nick Capodice: [00:33:50] Wow. Okay. Uh, so that's what, half a dozen complaints against Lochner?

Hannah McCarthy: [00:33:57] Yeah, thereabouts.

Nick Capodice: [00:33:58] So no one glaring [00:34:00] reason why Lochner is anti cannon.

Hannah McCarthy: [00:34:03] Yeah. The only reason that people agree on is that Lochner is not to be looked at or referenced for precedent for a helping hand in a new opinion. Now, before we go, I promised you I would come back to something. Something I got kind of excited about. And to clarify, for listeners who don't know me, I get excited about things that people do and do not like, that I do and do not like. So [00:34:30] this idea that in 1937, the court had a change of heart or less romantically, a change of perspective. The country had changed and it had made itself clear. It made itself clear through suffering, through political strong arming, through public disapproval of the court, through activism, through state law. So the court changed its perspective. [00:35:00] And so I had to ask, given the way we look at the Supreme Court today, the way people see it as politicking and love it for that or politicking and hate it for that. What is the difference between politics and perspective when it comes to the Supreme Court?

Nick Capodice: [00:35:20] Did Rebecca and Matthew have answers?

Hannah McCarthy: [00:35:23] Uh, sort of. I mean, there isn't any one answer to that, but their [00:35:30] perspectives are certainly more nuanced than mine.

Rebecca Brown: [00:35:45] I think there's a difference between Partizan and political, in a way, is how you're asking someone for whom. This is a very agonizing question, because when I was young and I clerked with Marshall and I, even the justices on the court that I disagreed with or [00:36:00] he disagreed with on outcomes or theories, I believe they all acted according to their own best understanding of what they thought the Constitution was. I do believe that. I did believe it. I still believe it. And so when I taught those cases to my students, I would always try to teach them that even if you were to critique the outcome, you know they're acting on their conception of what they think the Constitution needs and what it stands for and what it how it needs to be applied. It's harder to say [00:36:30] than I think.

Matthew Lindsay: [00:36:30] It's hard for most people, regardless of how you feel about it, to look at a decision like like Dobbs that overturned 50 years of settled law and not understand that as the culmination of 50 years of nomination fights. Right. And basically the Republican Party just getting a lot better at vetting nominees than it was in the 70s and 80s. So and that's.

Rebecca Brown: [00:36:54] Hard because you do believe, I believe, as a constitutional scholar tries not to be political, [00:37:00] but I believe the Constitution does have principles in it. I don't think it's just a blank slate that they make what I want it to be. I think it's principled. And I think our job as teachers, as judges, is to try to make it the best it can be by how we understand it to be. And I think that is what I would wish that the court would engage.

Matthew Lindsay: [00:37:23] On the other hand, I also try to resist the idea that law is just politics. Constitutional [00:37:30] law is nothing but politics, that it's just political preference and dressed up in legal doctrine. I point to examples of justices reaching conclusions with it, with which they almost surely disagree as a matter of policy. And it's not it's not hard to do that. I point to, uh, lower court decisions in which which, after all, is 99% of of federal adjudication, where lower court judges routinely apply precedents [00:38:00] that they they don't agree with. Sometimes I talk about my own experience clerking for a federal judge, a kind of renowned, you know, member of the progressive legal community, the civil rights community, and yet applied plenty of precedents with which I'm quite certain he disagreed. So, you know, is politics part of constitutional law? Absolutely. Is it more so today than in the past? That's probably a matter of debate. You know, it depends what side of the fence you're on. But is is it [00:38:30] only politics? I don't think so.

Hannah McCarthy: [00:38:54] That does it for this episode. You heard me mention a few other anti cannon cases earlier, [00:39:00] and we have covered all of that here on Civics 101. You can find those and all other episodes at civics101podcast.org. And while you're there, if this and other episodes of Civics 101 do something for you. If you believe that, you know, knowing how this country is supposed to work and how it often does not is an important part of preserving American democracy, please consider making a donation to the show. We are, [00:39:30] after all, listener supported public radio. This episode was produced by me, Hannah McCarthy with Nick Capodice. Rebecca LaVoie is our executive producer. Christina Phillips is our senior producer. Music. In this episode by Duke Herrington, John Runefeld, Jerry Lacy, HATAMI TSUNAMI, Eden Avery, Guustavv Sora, LM Stiles, Holizna Co, John Abbott, Grooovy Trap, Amoeba, and Chris Zabriskie. Civics 101 is a production of NPR [00:40:00] New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

How Can The Government Ban TikTok?

TikTok - an app with around 170 Million American users - is under intense scrutiny by the U.S. government, including a bill passed by the House of Representatives which issues a threat: "sell or be banned." But how and why can the government do that? 

What does this kind of business restriction look like? We talked to Steven Balla of George Washington University to get the low down on regulations and bans in the United States. TLDR: 

This episode goes beyond the current legislation, but it's updated from an earlier version which dropped in April, 2023.

Listen:

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TranscripT:

Note: This transcript was AI-generated and may contain errors

Hannah McCarthy: Nick, we've been hearing the word ban an awful lot lately. We sure have, because the government is threatening to ban a wildly popular social media app.

Nick Capodice: You know, I've never been on it myself, Hannah. I don't know.

Hannah McCarthy: If we should advertise that. Well, it could.

Archive: Be the beginning of the end for TikTok. Today, the House of Representatives passed a bill that could ban the popular app. Members of Congress, on both sides of the aisle worry that TikTok poses a national security threat because it's owned by a company based in China.

Archive: But TikTok this is not an attempt to ban TikTok. It's an attempt to make TikTok better. Tic tac toe.

Archive: A winner, a winner to silence this large, massive voice is, frankly, un-American.

Hannah McCarthy: And every time I hear that word ban, I think to myself, what would that even look like? How does something like that happen? Is the government even allowed to do it, and what are the different ways they could get it done?

Steven Balla: So bans could be theoretically enacted by any number of government actors. So you could have Congress through the legislative process, take statutory action. You could also have the executive branch take action. And that would be typically through the president issuing an executive order or an agency of the federal government, like the Environmental Protection Agency or the Federal Communications Commission or the Department of Transportation issuing a regulation. So you have legislation from Congress, executive orders, regulations from the executive branch. And then the third possibility is action by a judge, by a court.

Nick Capodice: All right. So in other words, you can ban stuff.

Hannah McCarthy: This is Civics 101 I'm Hannah McCarthy, I'm Nick Capodice. And today we are talking about how and why the government can ban something. And in this episode, because everyone's thinking it. I'm just saying it. We're going to be looking at TikTok. Oh, and that person who knows what he's talking about, that's Steve.

Steven Balla: I'm Steve Balla, professor of political science and co-director of the Regulatory Studies Center at George Washington University in Washington, DC.

Hannah McCarthy: We talked to Steve for an earlier version of this episode back in April of 2023 when, just like right now, lawmakers were accusing without evidence the Chinese government of collecting data via TikTok for some nefarious purpose because TikTok is owned by a Chinese company. Now, last week, the House of Representatives passed a bill that aims to force TikTok to get sold from that Chinese company, ostensibly in the name of privacy and national security. And if they don't, the app could get banned in the US.

Nick Capodice: Okay, so now that we've established that bans can in fact occur, what does it actually mean? Like with TikTok? What I just like try to open the app and it wouldn't be there.

Hannah McCarthy: Well, Steve brought up China as an example actually, because many other apps that we use all the time are banned over there.

Steven Balla: In the Chinese context, many of our social media apps are banned by the Chinese government. Like literally, Google is told, you know, if you're going to have this product available on the Chinese internet, you have to follow certain rules. Google says, well, we're not going to follow those rules. Well, then it's wiped off if we think about it. Even on the Chinese side, there are plenty of Chinese users of Facebook and Twitter. They of course will use VPNs and all of that. And there of course, there are hundreds of millions of Chinese who don't scale the Great Firewall, but plenty do. And so you can imagine, whatever the instrument might be, that, you know, some entity in the United States government might use to ban a social media platform, that they're still going to be a lot of interest if it's popular among users, to find a way to have access to it.

Hannah McCarthy: Up. A VPN, by the way, is a virtual private network. It encrypts your internet use and basically disguises you online, including your location. So in the event of a ban, people could try to use one to access things banned in their location. So there are a few things the US could do. And what congressional lawmakers are trying to do right now is force a sale of TikTok to a US company. That is what the version of the TikTok ban bill that just passed in the House of Representatives demands. And if that doesn't happen, TikTok would be banned. This could mean it would be removed from app stores. No more downloads, no more updates. Eventually the app just becomes really difficult to use and access. Also, they cannot force all Americans to delete TikTok from their phones, but the government can criminalize its usage.

Nick Capodice: But even though it's criminalized, people could still use it, albeit sneakily.

Hannah McCarthy: Life, uh, finds a way, in this case via VPN.

Nick Capodice: And can we establish why this ban is hanging over TikTok's head right now?

Steven Balla: Anytime you mention China in the current political environment, there's definitely, uh, a fear associated with the threat that China might pose militarily, economically, politically to the United States, to the Western world order, all of that. And so it's a really interesting, uh, tightrope for elected officials to walk between, on the one hand, a very popular platform. And on the other hand, the fact that it's, you know, emanated from a country that many feel is the primary threat to the United States and its view of the world order. So it's a real balancing act for members of Congress.

Nick Capodice: So TikTok, being an app that's owned by a Chinese company, is seen as a threat.

Hannah McCarthy: Congress has pretty much insisted that TikTok is sharing user data with China. Tiktok says it is not that it has protocols in place to protect user data.

Nick Capodice: What allows the US to take action like this, be it Congress or the executive branch or the judicial system?

Hannah McCarthy: Well, a ban is a business restriction, right? But it can't be arbitrary. It has to relate to regulation and regulation. Sounds like a catch all terms. But actually Steve says it is highly specific.

Steven Balla: A regulation is something that's actually defined in a statute called the Administrative Procedure Act of 1946 that defines what a regulation is. In government speak. There's like a specific definition of what a regulation is that separates it from any other instrument of policymaking. Regulations tend to have general impact. So that is a regulation would generally limit a company's discretion to pollute in this way or to sell a product in that way. But a regulation generally has a it's a general future applicability okay.

Nick Capodice: General future applicability. So like don't pollute but we won't get too specific here.

Hannah McCarthy: Yeah. And then there comes the enforcement like say company X is polluting. Well luckily we have this higher level rule that already took care of that possibility. So the government has the power to do something.

Steven Balla: You know, enforcement action has to come out of some preexisting authority. So just like when an agency writes a regulation, it has to have an underlying legislative authority. When an agency takes some kind of enforcement action, it has to be on the basis of some kind of higher level policymaking authority. It could be regulatory authority, it could be legislative authority, because there are cases where Congress writes a law specifically enough so that we know what our obligations are under the law. What unites all of this is the enforcement actions that are taken have to have some prior general policy making authority, either from regulation or legislation, right, or some court decision. So the underlying authority could come from any of the three branches when we think about it.

Nick Capodice: And once you've got that legislation in place, something like a ban could follow or even be a part of that legislation.

Steven Balla: So we could almost have a hierarchy here where you have a law that's the broadest statement of policy coming out of Congress, but leaves a lot unsaid. The authority, then, to say the next step of things is delegated to an agency. They write a regulation that's much more specific than the law, but still has very general applicability. And then once that regulation is in place, it needs to be enforced or implemented. And so if there's a regulation on the books that says a facility can't use this technology to emit pollution into the air, then that's the general statement. The ban or the enforcement action or the sanction is the action that is taken against a particular firm or a facility. That's by virtue of inspection or something else found to be in violation of the regulation. And so like when I. So when I hear words like ban or sanction or enforcement, I tend to think of that's if we're nesting the, uh, dolls here, that's like your legislation regulation and then enforcement and bans and sanctions, penalties, fines, those would all be manifestations of how a regulation would be applied in the context of a specific facility or firm or what have you.

Hannah McCarthy: Of course, that's not the only place rules, regulations and even bans can come from. We'll have that after the break.

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Hannah McCarthy: You're listening to Civics 101, and we're talking about how something like a ban, say, on your favorite social media app, can happen in the United States.

Nick Capodice: So, Anna, I've got that regulation and restrictions and things like bans have many layers with a hierarchy of rules and institutions establishing and enforcing them. But what about something like an executive order when the president unilaterally says, this is just what's happening and it's happening now, because those do pretty much just happen. Can the president simply just institute a ban.

Hannah McCarthy: If a bill doesn't pass in Congress? Technically, yes, he could, but that doesn't mean an executive order won't need justification.

Steven Balla: Say it's an executive order that President Biden says, I think immediately upon it being signed, some, you know, interested party that's hurt by the action will take legal action in the courts. And so then that will start to wind its way through the judicial system. The exact legal nature that that dispute will take will be a function, of course, of what's the rationale that the administration uses to justify the ban? And you know, how that might be open to legal conflict? Okay.

Nick Capodice: And I also suppose there's the fact that executive orders don't have much staying power, like if TikTok were banned by an executive order, that same order could just be unwound, overturned by another president, or even the current one.

Hannah McCarthy: Bingo. Or by the courts. Former President Donald Trump actually signed an executive order in 2020 that would have banned TikTok if it weren't purchased by an American company. That order was challenged in a federal court and never took effect. Now Trump, by the way, reversed his position on TikTok in mid-March 2024. This year, this could be an appeal to TikTok users in an election year. It could be related to Trump having just met with a billionaire conservative donor who is part owner of the app's parent company. Or it could be some other reason. And by the way, it's not just an executive order regulation that could be challenged.

Steven Balla: Oftentimes. If we talk about the context of agencies taking regulatory actions, it will be whether they have the authority in the first place to take that action. So years ago, decades ago, the FDA issued a regulation banning certain advertising and sales practices of cigarettes, especially in the vicinity of schools. And that was immediately met with a legal challenge. That said, irrespective of the underlying merits of, you know, protecting children from nicotine and its addictive properties or whatever, irrespective of all that, the FDA doesn't have the authority to enact that kind of regulation because Congress never gave it the authority. So in that case, the FDA, in justifying its authority, said, well, you know, they basically referenced their statute that, you know, Congress had legislated decades prior and said on this broad charge in this decades-old statute, in effect, we have the authority to take this action.

Nick Capodice: So no matter who bans a social media app, there's a chance that ban will be challenged by whomever it affects.

Hannah McCarthy: And when you've got about 170 million users in the US, many of whom are young people who consume their news on the platform, create content as a business and whom advertisers want to target through social media. The potential for being affected is high. Which brings me to one giant consideration in all of this. The government does care what people think, and it really cares about the economy. So while we're hearing all of this posturing as these bills about forcing TikTok to sell itself to an American tech company or even a straight-up ban are debated in the Capitol, some of it is, you know, just posturing, putting on a show because those lawmakers have other stakeholders, too.

Steven Balla: And we live in a democracy. And, of course, Congress, members of Congress are paying attention to what their constituents are asking for, what they're excited about, what they're fearful of. And so that might drive some of what happens in the policymaking arena. The other thing is we can think about business is maybe a particularly important constituency, because so much of how politicians are evaluated depends on the performance of the economy.

Hannah McCarthy: Something that I found really revealing about this regulation conversation, Nick, is the Venn diagram of consideration going on when the government goes after a company. In the TikTok case, there's the perceived security threat, the generalized fear of Chinese influence. There's broadcasting to this other nation that we will literally ban their access to the American people. And then there are the American people. And where those two meet, that is where law, regulation and yes, bans happen.

Steven Balla: There is a process and a structure to a government actor taking an enforcement action against some company. But that doesn't mean that we still don't live in a democratic political system where officials are elected to enact particular agendas. And so that's certainly the case. So it's a real dichotomy in that on the one hand, you know, the this is a legal administrative process, and the enforcement actions really have to pay homage to the underlying law and administrative regulations. But on the other hand, we this still is all occurring in a political system where actors have specific constituencies they're trying to satisfy, they have their own personal objectives. And so oftentimes, the language of the law, you know, statute regulation can be used in a political way. And so I think we would like to really have a simple separation that there's politics over here. And then there's the administration of law and policy over here. And reality, those two things are totally interchangeable and impossible to separate. So even though there's underlying processes and authorities, they're certainly still subject to political impulses.

Hannah McCarthy: Speaking of politics, just one last thought here. Tiktok is many things to many people, but importantly, the app has functioned as a tool for organizing around social justice and as a venue to talk about things that might be hard to talk about at home, especially among younger people. So when we talk about banning it, there's certainly something at stake here beyond viral dances. Oh, and by the way, this episode has been all about the federal government. But I would be remiss if I didn't tell you that states can do and are doing their own thing with social media. Say it with me. People. State and local government is where it happens. Pay attention. All right, that's it. Thanks for listening.

Hannah McCarthy: This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer. Music in this episode by rhymed clang. Soundtracks. Dirk Delor Kirk, Osimo, Anna moya, modern Monster and Simon Matthewson. If you've got a question about civics government just generally want to know what on earth is going on around here, do not hesitate to reach out. You can submit your questions at civics101podcast.org. Either we'll try to find the answer, or we'll find somebody who knows way better than us to answer it for you. Civics 101 is a production of NHPR, New Hampshire Public Radio.

Can the Supreme Court save us from ourselves?

When the Supreme Court says something is or isn't constitutional, what does that really mean? What are the effects, or lack thereof, of their decisions? And what do we do if we don't agree with what they say?

Today Linda Monk, author of The Bill of Rights: A User's Guide, walks us through four times in US History that the Supreme Court was not the be-all-end-all decision maker.

Here are some links to shows we reference in the episode:

Dred Scott v Sandford

Brown vs. Board of Education of Topeka

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Transcript

Nick Capodice: All right, here we go. Check check check check check.

Hannah McCarthy: All right, let's do it.

Archival: The Supreme Court has reached a decision on the landmark Roe v Wade case. The ruling is on a case called Dobbs v Jackson Womens Health Organization.

Archival: Supreme court decision legalizing same sex marriage across the court's.

Archival: Conservative majority ruled today that a public high school football coach in Washington state [00:00:30] has the right to pray on the 50 yard line.

Archival: The nine Supreme Court justices ruled racial segregation in publicly supported schools to be unconstitutional, declaring that it denied equal opportunity.

Nick Capodice: Hannah let me ask you this. In our six years of making this show, how many episodes do you think we have done that center on the Supreme Court?

Hannah McCarthy: Wow, uh, a lot. A whole lot [00:01:00] of episodes. At least two dozen on landmark Supreme Court cases. And we've done some on precedent, several on the court's interpretation of laws and amendments. Uh, we did the shadow docket, right. And not to mention a whole bunch of shows on just how stuff works on the court. .

Nick Capodice: Yeah we give them a lot of airtime. And of course we do. Right?

Hannah McCarthy: Of course we do. They are the ones who interpret the Constitution.

Nick Capodice: And we care deeply about what they say. We track their calendar, we refresh [00:01:30] websites on days. They hand down decisions. As an example, right now, this first week of March 2020, for the whole nation was waiting to hear how the court would rule in Trump v Anderson. This is the case that decided whether the state of Colorado could determine Donald Trump's eligibility to be on the ballot in Colorado in light of potential disqualification under the 14th amendment.

Hannah McCarthy: And to catch anyone up who missed the verdict. On March 4th, the court ruled in a per curiam opinion that's an [00:02:00] unsigned opinion by the court as a whole, not one justice that states did not have the power to declare a candidate ineligible, that only Congress has that power. But, Nick, what does this have to do with this episode? What are we talking about?

Nick Capodice: Well, um, we're talking about this. So the whole nation was waiting to hear how this decision was going to come down. And when it came down, some people were overjoyed and some people were furious. But here's the question what [00:02:30] really happens when the Supreme Court rules on something? What are the limits of their power, of their decisions? And why is it that Americans who have strong opinions on how a court should rule, just give up if it doesn't go their way?

Linda Monk: When we have these intense issues of disagreement among Americans at large, a lot of times it's easier to let the court take the, um, the [00:03:00] hit. You know, it's like, well, you know, of course we disagree about the Supreme Court has ruled. And so we must obey sometimes. Yes. Sometimes no.

Hannah McCarthy: I know that voice.

Nick Capodice: You do indeed. That is the Constitution lady, constitutional scholar, JD, author of many books, including the required Reading for Civics 101 listeners, the Bill of rights, A User's Guide. This is Linda Monk. And unlike most episodes, where we email scholars [00:03:30] to ask if they'll talk about a certain topic, she wrote us with a question.

Linda Monk: The idea that I submitted to you for this show was that throughout American history, particularly in the areas where we had the most fundamental disagreement, it's never been a Supreme Court ruling that actually made the change.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are answering Linda Monk's question. In [00:04:00] short, can the Supreme Court save us from ourselves?

Hannah McCarthy: All right. How are we going to do this?

Nick Capodice: We're going to do this in four acts, hannah. Linda told me about four moments in history where bad laws were on the books. And I mean unequivocally bad laws. There aren't, like, two sides to consider in any of these cases. But we're talking about four problems today. And in each one, we're going to see how the Supreme Court was or was not involved in fixing them.

Hannah McCarthy: And [00:04:30] how far back are we starting here?

Nick Capodice: we're going to start in 1798 with the Alien and Sedition Acts. You know about these?

Hannah McCarthy: I do a little bit. These were passed during the John Adams administration, right?

Nick Capodice: Yes, they were indeed. And they were a set of four acts.

Linda Monk: The alien part or the alien act gave more power to regulate immigration. That's a debate we're still having today. The more controversial part of it, the Sedition Act, basically made it a crime to criticize the government. [00:05:00]

Nick Capodice: The fourth act, the Sedition Act, said, quote, writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, end quote, could be punishable by a $2,000 fine and two years in jail.

Hannah McCarthy: Did anyone actually go to jail for this?

Nick Capodice: They did. Some did go to jail. More people were fined than went to jail. Uh, lots of newspaper owners in particular. President John Adams was a Federalist and his veep was Thomas Jefferson, [00:05:30] who was not a Federalist. He was a Democratic-Republican. And this new sedition law was designed to punish pro Jefferson newspapers that criticized the Adams administration.

Hannah McCarthy: The Federalists also had their own newspapers, right?

Nick Capodice: Yeah, they did. And funnily enough, the Sedition Act extended to criticism of the president or either Chamber of Congress, but not the vice president. You are allowed to scandalize and say bad stuff about T-Jeff all the livelong day, but you say something about [00:06:00] Adams, you are gonna get it. One guy in particular got fined. He was drunk at a parade in Newark, new Jersey, and a cannon went off and he shouted, and I'm going to paraphrase here, I hope it hits Adams in his backside.

Hannah McCarthy: How much was he fined?

Nick Capodice: He was fined 100 bucks.

Hannah McCarthy: All right, that's a funny story and all. But this is I mean, to me, it's a blatant violation of the First Amendment, is it not?

Nick Capodice: Yeah. You'll get no disagreement from me on that one Hannah. And the American people [00:06:30] thought the same thing.

Linda Monk: And it was a sitting member of Congress who was jailed under the Sedition Act as a newspaper editor. When you think of anything that goes contrary to what we think of as the First Amendment today to jail a newspaper editor for criticizing the president, and while he's a sitting member of Congress, he's in jail. Um, that's that's pretty extreme. And yet that was what, uh, the law was passed seven years after the First Amendment had been ratified. So if [00:07:00] we want to think about, well, what did the Founding Fathers think about free speech and free press? Well, we don't as long as you agree with us, you're fine.

Hannah McCarthy: That sounds like a tough pill for originalists to swallow.

Nick Capodice: Yeah, like they were there when it was written in the first place. And I'd like to think that if Congress passed an act like that today, it would be deemed unconstitutional in a heartbeat.

Hannah McCarthy: Is that what happened back then? How did the Supreme Court rule on it?

Linda Monk: Actually, [00:07:30] the court didn't rule at all that that's what was so controversial about it. That's why it was such a test, because you had one political party, even though George Washington had said, beware of the baneful effects of the spirit of party, uh, he pretty clearly lined up with what became the Federalists. Jefferson and Madison, with what became the Democratic Republicans. And when you had the presidency, the Congress and the Supreme Court, all [00:08:00] dominated by one party, the Federalist Party. And then the Congress passed the Alien and Sedition Acts with the express purpose of curtailing dissent and power amongst the opposition party. Who are you going to call?

Hannah McCarthy: Who are you going to call? Who can you turn to when something is not fair and the Supreme Court is entirely dominated by your political enemies?

Nick Capodice: Well, [00:08:30] you can go local instead of federal. Virginia and Kentucky passed state resolutions criticizing the acts. These resolutions, by the way, were secretly written by Jefferson and Madison. But that is not what kills this unconstitutional law.

Linda Monk: But the ultimate remedy, again, was the election, the election of 1800. What many people say the second American Revolution, um, where the people voted clearly for um, [00:09:00] Jefferson and therefore Madison's point of view.

Nick Capodice: This was the campaign issue of 1800. And because of it, Adams ends up being a one time president.

Hannah McCarthy: Okay. One down. This is a point for the people since the court did not get involved. What's number two?

Nick Capodice: Number two does involve the Supreme Court, and it involves the Cherokee people in 1830. Now, these are people who had been here for thousands of years, [00:09:30] and at this time they were an independent nation in the US.

Hannah McCarthy: Okay. This is the concept of tribal sovereignty. Indigenous nations govern themselves.

Nick Capodice: Yes. And as we see over and over and over and over and over again in US history, that does not stop the government from taking their lands.

Linda Monk: And that's been done by treaty, by conquest, often unfairly and in total disrespect of human rights. Under the legal system that we have today, though, [00:10:00] Congress is the only one that can regulate relations with the Indian nations. And in 1830, um, you had Georgia, which really was just this little bitty speck of land, uh, along the Atlantic, but it claimed everything to the Mississippi River, and that included Cherokee land and Chickasaw land and Choctaw land. And, um, and so Georgia is saying, hey, you know, Massachusetts got to run out all the Native Americans who live there, [00:10:30] who talks about the Delaware anymore. They were once the greatest tribe. Um, so now it's our turn. You know, we're just doing what Massachusetts did.

Nick Capodice: Georgia tries to force the Cherokee to move. And the Cherokee people, under the leadership of Chief John Ross, get a case to the Supreme Court. And their argument is, Georgia, you cannot tell us to move. You're a state.

Linda Monk: You're not the federal government. The Constitution protects us, makes it to the Supreme Court twice. Ultimately, the [00:11:00] Supreme Court rules that no, Georgia does not have the authority to try and regulate the Cherokee possession of the land. But who does? Congress? That doesn't mean Congress can't act. Congress passes the Indian Removal Act that says, okay, we're going to make all these provisions for removing the, uh, Native American tribes that will agree by treaty to do it. How does that affect Cherokees? Well, they have [00:11:30] a there's a fraudulent treaty and the Treaty of New Echota. And under that fraudulent treaty, which Congress quickly or the Senate quickly ratifies. It's okay. Well, we've got our treaty. See this little piece of paper? And even though John Ross, the chief of the Cherokees, has a petition, you can see it at the Native American Museum. 15,000 signatures from cheer. This almost the entire Cherokee Nation that [00:12:00] have signed saying no, no, no, no, no, these were unlawful people that claimed to be representing the Cherokee Nation, but they're not.

Hannah McCarthy: Just to clarify, this treaty, which was fraudulent, was Congress's legal justification for the forced removal of Native Americans for the Trail of Tears. Yeah.

Nick Capodice: And Linda wanted to make it clear this was controversial. A lot of people in Congress were opposed to this.

Linda Monk: Just so people know, we tend to look at these things as like fait accompli, like, [00:12:30] oh, you know, well, everybody was so racist way back when as opposed to today. And of course, we would have done it differently. Well, I hope so. But even at the time in the debate over that fraudulent treaty, there were senators who were saying, this is fraudulent. It didn't. It passed, but just barely. So it wasn't this uniform. Oh, well, white supremacy, although that certainly was part of it. But there were definitely [00:13:00] senators on the other side saying this is a fraudulent treaty. We can't do this.

Hannah McCarthy: In this case. The Supreme Court ruled the right way. They said that the Cherokee people were sovereign and Georgia could not force them to move. Yeah.

Nick Capodice: And then President Andrew Jackson and Congress said, well. Actually, no.

Nick Capodice: We are [00:13:30] going to take a quick break before our last two explorations of Supreme Court powers and limitations. But just a quick note if you're a fan of Civics 101, we are made at a public radio station, and that means we rely on the public to exist and the public is You. Please consider donation and whatever amount you wish at our website civics101podcast.org.

Hannah McCarthy: We're back. You're [00:14:00] listening to Civics 101, and today we are talking with Linda monk about the ramifications, or lack thereof, of Supreme Court decisions.

Nick Capodice: We are indeed Hannah. And this third example certainly does have ramifications. Uh, quite possibly the most dire ramifications in US history. This is viewed by many as the worst decision the Supreme Court ever made.

Hannah McCarthy: If this is the case, I think it is.

Nick Capodice: it is, it's Dred Scott v Sandford.

Hannah McCarthy: We have a whole episode on this case link in the show notes. For anyone who wants a [00:14:30] deep dive, I really recommend you check it out.

Nick Capodice: And the thing Linda wanted to point out when it comes to this case is that there was an actual person who was begging, beseeching the Supreme Court to save us all from ourselves, and that person was President James Buchanan.

Linda Monk: I really credit the book, 1857, here for, for, um, doing the historical research and the primary source documents to show that the sitting president of the United States [00:15:00] was writing letters to Supreme Court justices saying, fix this for us. You know, fix this for us. Slavery is going to divide the country. He knew we were on the verge of a civil war. Just fix it for us. Eventually they do fix it. And boy, do they fix it. They fix it so bad that they declare the compromise of 1820 totally unconstitutional.

Nick Capodice: The 1820 compromise. It's also called the Missouri Compromise. [00:15:30] That was the legislation that determined whether new states added to the Union were going to allow the practice of slavery or not, and that compromise was completely nullified in the wake of the Dred Scott decision.

Linda Monk: What the holding is there is that slaveholders have property wherever they go, wherever they want to go. And there's nothing Congress can do to take that away, ever, uh, which totally upsets the political applecart then, because [00:16:00] then there is essentially no such thing as a slave or free state if it's come beyond the 13 original.

Nick Capodice: The justice who wrote the opinion, Roger Taney, ended it by saying that no human being of African descent was or could ever be a citizen of the United States.

Linda Monk: Never, ever. So not only did they not solve the Civil War, avert a civil war, they created a civil war because there was no political compromise left.

Nick Capodice: Dred [00:16:30] Scott, one of the worst Supreme Court decisions in US history. I would like to wrap up our exploration today with one of the most lauded good decisions in US history, and it's another one we've done an episode on Brown v Board of Education, 1954. This is the decision that ended racial segregation in schools.

Linda Monk: You know, the Supreme Court did a unanimous decision. Um, [00:17:00] we tend to celebrate that. There's also evidence that the reason it was done at that time was because of the Cold War, and we didn't want to look bad compared to Russia. And so it's, you know, it's like, well, how did this magically happen? Did the did suddenly nine white men suddenly had a revelation? Well, kind of, um, maybe not. Um, so it's important that, that we see those decisions for [00:17:30] what they are, but not more than what they are. Remember the the response to Brown versus Board of Education in the state of Virginia was massive resistance, announced massive resistance. And it took and still takes. I mean, that's that's my point is it doesn't stop, um, doesn't stop those values, um, still have to be reinforced. And frankly, white parents have abandoned public schools. The public schools today are [00:18:00] more segregated than they were at the time of Brown v board.

Hannah McCarthy: I remember hearing that a school district in Mississippi finally received orders to desegregate in 2016.

Nick Capodice: Yeah, the decision in Brown v Board was to desegregate, "with all deliberate speed". And each school district did indeed get there on its own schedule.

Linda Monk: I'm a child of the desegregation decisions, and as a white [00:18:30] child, it was the best thing that ever happened to me, because I wouldn't have been allowed in any other way to get to know my African American neighbors and fellow students, and it changed me. It changed what I had taught, been taught. It changed what I believed. And I'm a better person because of. But it didn't come because of the Supreme Court. You know, it started because of the Supreme Court, but it came because people like Representative [00:19:00] John Lewis, who put himself physically. I mean, when you talk about a warrior who physically puts himself in the way of a police baton as given multiple concussions, that kind of moral integrity.

Hannah McCarthy: So Nick, Linda wrote in and asked to explore whether the Supreme Court can save us from ourselves. [00:19:30] So what does she think cannot? No.

Linda Monk: No, a resounding no. It never has saved us from ourselves. It may have pushed us along a certain trajectory. Uh, in some cases, we would support other cases. I mean, there's there's no question that Dred Scott directly caused the Civil War. Not that we wouldn't have gotten there anyway, but that decision [00:20:00] by itself made the Civil War inevitable, made it despite a president lobbying for Congress to just fix it for us.

Nick Capodice: And to be clear here, Linda is not saying, let's get rid of the Supreme Court. She's a doctor of law. But what she is saying, to the best of my understanding, is that nine people deciding whether something is or is not constitutional has no bearing on what is actually in our hearts, right or wrong. And [00:20:30] a Supreme Court decision is not this perfect adamantine thing that can never be changed in the future.

Linda Monk: Let's go back to Chief Justice John Roberts. He likes to refer to the Supreme Court and the justices as umpires. All right, well, let's take that metaphor of an umpire. The umpire makes a ruling that's good for that game, but doesn't mean you never come back and play another game. It doesn't mean, uh, that you think they were right or [00:21:00] that they were wrong. It just that was the ruling.

Hannah McCarthy: Does Linda suggest anything for people who disagree with a ruling? Like if we don't go to the court for a remedy, where do we go?

Linda Monk: You know, my point is that the Constitution itself solves that problem through the amendment process. If the people disagree with what the court has ruled, they can. If it's a question of constitutional power, they can pass an amendment to the Constitution, which has happened [00:21:30] several times specifically to overturn Supreme Court decisions. All right.

Hannah McCarthy: But people don't really propose amendments. Congress does.

Nick Capodice: I asked Linda about that, and she reminded me of something I think that I sometimes take for granted. Hannah, she wrote to me, quote, the people are presumed to act through their elected leaders, which is how we got the current 27 amendments. But who persuades the legislators, if not we the people?

Hannah McCarthy: I [00:22:00] mean, I do suppose that is the hope, right? That's the ostensible role. They are our representatives. It's in their name. They represent us.

Nick Capodice: Yeah. They do. Maybe that's one of the lessons for today, right? Don't wait for the courts to decide something. Contact your local representative. Tell them what you want. Last thing I want to add in today. It's been about five years, Hannah, since you and I first interviewed Linda monk about the Constitution. And when she finished talking with me this week, she [00:22:30] ended by saying a refrain of the exact same thing she said all those years earlier. And I'm going to end with that today.

Linda Monk: My fundamental belief is the same as Judge Learned Hand, that we place our hopes too much in laws and courts and constitutions. These are false hopes. Believe me, these are false hopes. Liberty lies in the hearts of men and women. And when it dies, there no constitution, no law, no court can save [00:23:00] it. And I think that's fundamentally the the lesson of our history. And frankly, that gives me hope because it means that we ultimately can change things.

Nick Capodice: Well, that is enough for today. I guess that's enough. I guess that's enough. Thank you, Linda, for, [00:23:30] amongst other things, always being our friend. This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you. As always, our staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Blue Dot Sessions, Ikimashu Aoi, HoliznaCCO, Konrad Oldmoney, Baegel, Christina Anderson, Lennon Hutton, Fabian Tell, The New Fools, Spring Gang, and the Brooklyn Composer who has saved me from myself, Chris Zabriskie. Civics [00:24:00] 101 is and of right ought to be a production of NHPR, New Hampshire Public Radio. Josiah Bartlett, New Hampshire, says yay!

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Made possible in part by the Corporation for Public Broadcasting.

Amending the Constitution

The process is pretty straightforward. Plenty of people want to make some change. And yet? We've only done it 27 times. So what does it take to amend the U.S. Constitution and why does it barely ever happen?

Robinson Woodward Burns, Associate Professor of Political Science at Howard University, is our guide.

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Transcript

Archival: [00:00:01] Mr. president remains my sincere hope that the Senate will have the opportunity to consider the flag amendment today. June 14th National Flag Day.

Archival: [00:00:09] An amendment to be as an amendment to be. And I'm hoping that they'll ratify me.

Archival: [00:00:16] Amendment imposing term limits on Capitol Hill.

Archival: [00:00:20] Constitutional amendment to try to reverse Citizens United.

Archival: [00:00:23] A constitutional amendment that mandates a balanced budget and forces the federal government to live within its means. [00:00:30] Oh, yeah.

Nick Capodice: [00:00:33] You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:00:35] I'm Hannah McCarthy.

Nick Capodice: [00:00:36] And today we are talking about amendments. Not any amendment in particular, but how they happen. The process for amending the Constitution.

Hannah McCarthy: [00:00:46] I'm really glad that we're talking about this, Nick, because we talk so much about our supreme law of the land, what it says and what it means. But this is another thing entirely. This is how we [00:01:00] change the Constitution and not to bury the lead, as we say in the journalism business. But this is pretty hard to do, isn't it, by the way?

Nick Capodice: [00:01:08] Hannah, do you know why lead as in like the introductory section of a story, uh, is spelled led e in journalism?

Hannah McCarthy: [00:01:17] I don't think I do know. I figured it was for the same nonsense reason we spell Graf Graf.

Nick Capodice: [00:01:24] Well, apparently it's so. It wouldn't be confused with the word lead, which meant a strip of metal that would [00:01:30] separate different lines of type.

Hannah McCarthy: [00:01:31] That's that's fascinating. And speaking of burying the lead, Nick, you're doing it right now.

Nick Capodice: [00:01:38] I sure am. Where were we? The Constitution is very difficult to amend.

Robinson Woodward Burns: [00:01:43] The US Constitution is the hardest constitution to amend, not only out of any national constitution in the world that's operative, but out of any that's ever been ratified or promulgated. So it's really, really hard to amend the national constitution.

Nick Capodice: [00:01:57] This is Robinson Woodward Burns.

Robinson Woodward Burns: [00:01:59] My [00:02:00] name is Robinson Woodward Burns, and I'm an associate professor of political science at Howard University.

Nick Capodice: [00:02:05] Robinson has talked with us a few times. He's the author of Hidden Laws How State Constitutions Stabilize American Politics Now, he said the framers were kind of in the dark when it came to altering the Constitution, uh, as they were in the dark about a lot of things. It was all pretty darn new.

Robinson Woodward Burns: [00:02:24] The process to amend the US Constitution was a novel process. The US Constitution [00:02:30] is the world's oldest national constitution to inhere in a single document. And so the framers of the Constitution didn't have any other national constitutions as models from which to work. There were a handful of state constitutions, uh, the oldest of them, though, was only 11 years old. And because there was relatively little model for how Constitution should be amended, either from other national constitutions or from state constitutions, the framers of the US Constitution came up with fairly arbitrary cutoff points.

Nick Capodice: [00:02:59] And I'll get to those [00:03:00] arbitrary cutoff points in a second. But I just want to throw in one line from James Madison's Federalist 43, where he talks about the need for an amendment process. He wrote, quote, the useful alterations will be suggested by experience could not, but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided.

Hannah McCarthy: [00:03:21] As in even we who shall come to be known as brilliant, perfect people who came up with this Constitution cannot predict everything. [00:03:30]

Nick Capodice: [00:03:30] Pobody's nerfect. Hannah.

Hannah McCarthy: [00:03:33] Okay, Nick, I understand that it's hard to amend the Constitution. It has only happened 27 times so far. But can we just talk about how it happens? Can we talk about where in the Constitution the amendment process is laid out?

Nick Capodice: [00:03:47] It is in article five. Hannah, I was trying to come up with a mnemonic device for this, and I like pictured James Madison saying, and if any of this doesn't work out, we'll just amend it later. And giving Alexander Hamilton a high five. [00:04:00]

Hannah McCarthy: [00:04:00] Like the freeze frame at the end of some 80s after school special.

Nick Capodice: [00:04:04] Yeah. And like fades out and music comes up and the credits roll. Alexander's like nice work Jimmy. I think a lot about that summer that we wrote the Constitution and then later those 85 essays we wrote supporting its ratification. I didn't know until years later those would be the most important days in my life. Anyways. Article five.

Robinson Woodward Burns: [00:04:27] So article five of the US Constitution [00:04:30] establishes the amendment process, and what it says is there's a two step path to amending the US Constitution. First, an amendment has to pass either two thirds of both houses of Congress or a convention called by two thirds of the states on a petition to Congress. The second stage was the ratification stage. Either three quarters of the states in their legislatures or in special conventions have to ratify or approve an amendment, [00:05:00] and then the amendment is enrolled as part of the Constitution. So it's.

Hannah McCarthy: [00:05:04] A two step process.

Nick Capodice: [00:05:05] Right? But there has been a new step. I'll actually call it a norm instead of a step, which is that the amendment then has to be certified.

Robinson Woodward Burns: [00:05:14] Specifically, it's the national archivist who's responsible for for certifying the amendment. That's a relatively new step. Now, there are other parts that aren't part of article five, like the Supreme Court has affirmed for about 100 years that Congress can specify an amendment has to pass within a certain period of time, usually [00:05:30] seven years. But the actual text of article five only includes those two steps the proposal step and the ratification step.

Hannah McCarthy: [00:05:37] Just to recap, the proposal step requires two thirds of both the Senate and the House of Representatives to agree and say we should have this amendment, and then if they do agree, it goes to the states for ratification, where three quarters of the states need to do the same thing.

Nick Capodice: [00:05:54] Exactly.

Hannah McCarthy: [00:05:56] Uh, real quick, what is three quarters of 50?

Nick Capodice: [00:05:59] It's [00:06:00] 37.5.

Hannah McCarthy: [00:06:01] Do they round it down or up? Well, they.

Nick Capodice: [00:06:03] Round it up. It needs to be at least three quarters of the states. So it is 38 okay.

Hannah McCarthy: [00:06:08] Got it. Now, Robinson said there was another way to do the proposal step that instead of Congress doing it, two thirds of the states can get together and propose an amendment.

Nick Capodice: [00:06:21] They can. And I'm way ahead of you here. Mccarthy two thirds of 50 is 33.33. So we round it up to 34.

Hannah McCarthy: [00:06:29] Now, I [00:06:30] know that a lot like a lot of amendments have been proposed over the years.

Nick Capodice: [00:06:35] I'm going to get to that.

Hannah McCarthy: [00:06:37] But how many have actually technically been proposed as in sent to the states for ratification?

Nick Capodice: [00:06:44] Yeah. It's like this tough linguistic thing like you hear all the time, Senator. So and so has proposed an amendment to do something or other, but for an amendment to really be quote unquote proposed, it needs that two thirds majority in both houses or the states. So here is the final [00:07:00] tally so far of amendments that made it past that first step that went to the states for ratification, first, by the method of two thirds of both houses, 33 times, okay.

Hannah McCarthy: [00:07:13] And by two thirds of the states.

Nick Capodice: [00:07:15] The grand total of state proposed federal amendments. Is that dangerous idea, Hanna?

Hannah McCarthy: [00:07:20] Zero zero.

Nick Capodice: [00:07:23] Zilch. It has never happened.

Robinson Woodward Burns: [00:07:25] There's never been a convention of the states organized to propose [00:07:30] amendments. And there have been attempts to do this over time. The most recent attempts, one in the 1960s when the Supreme Court made the states reapportion or rewrite their state legislative and congressional legislative districts, there was real backlash from the states, in part because a lot of legislators would have lost their jobs at the state level. And so they started petitioning Congress to call a convention to overrule the Supreme Court. Now, ultimately, they fall short of that two thirds supermajority. [00:08:00] You need 34 states to do that.

Nick Capodice: [00:08:02] Another attempt happened in the 1980s during the height of fiscal conservatism. Some states got together to push for a balanced budget amendment. There were a lot of big budgets at this time in history, especially for military and defense spending.

Robinson Woodward Burns: [00:08:16] What was actually happening is they were asking for a statute. And so people will say, we actually came close to a balanced budget amendment to that 34 state threshold. But according to historian who surveyed those records, David Kyvig dancers, probably not. We actually probably didn't [00:08:30] get that close. So at no point in history have we actually successfully called a convention to amend the US Constitution.

Hannah McCarthy: [00:08:40] All right. If 33 amendments went to the states for ratification and we only have 27, what were the six that didn't make the cut?

Nick Capodice: [00:08:49] I will talk about one of the six after a quick break, but the rest will go into extra credit.

Hannah McCarthy: [00:08:53] And what is extra credit, you ask?

Nick Capodice: [00:08:56] I can just hear him asking Hannah.

Hannah McCarthy: [00:08:58] Why it is our free, [00:09:00] silly, trivia filled newsletter that we put out every other week. You can and you should sign up at our website civics101podcast.org. We're back. We're talking about how we amend the US Constitution. And, Nick, you were on the verge of telling me about one of the six amendments that [00:09:30] made it to the ratification step, but did not cross the finish line.

Nick Capodice: [00:09:33] I was indeed, this is an amendment that has been argued about for over a hundred years, the Equal Rights Amendment.

Hannah McCarthy: [00:09:40] As a quick aside, Nick and I did an episode on the Equal Rights Amendment many, many years ago.

Nick Capodice: [00:09:46] Six years ago. Can you believe it?

Hannah McCarthy: [00:09:48] Six, six years? Uh, be that as it may, there is a link to it in the show notes.

Nick Capodice: [00:09:53] Yeah, and it needs updating. Uh, thank you, Hannah. And here to tell us about the long journey of the era again is Robinson. [00:10:00] Woodward. Burns.

Robinson Woodward Burns: [00:10:01] There have been patterns in kind of amendment proposal around the Equal Rights Amendment going back to 1923. That was when the first Equal Rights Amendment was proposed, on the heels of the 19th amendment, which guaranteed female suffrage, the Equal Rights Amendment, just as the female suffrage amendment forbade, uh, disenfranchisement on the basis of sex, the Equal Rights Amendment forbade denial of equal treatment under the law on the basis of sex.

Nick Capodice: [00:10:25] The phrasing of this amendment varied over the years. It was reintroduced in [00:10:30] every single Congress, but it just never made it out. Labor unions opposed it initially. Working women supported it, and we don't see a shift until 50 years later.

Robinson Woodward Burns: [00:10:41] By the 1970s, the feminist movement and the labor movement had coalesced around the era. And in 1973, you actually see a movement on the heels of the Rowe case, in which Congress passes the amendment and sends it to the states, and it comes really close. It actually comes only three states short. So you need three quarters of the states [00:11:00] to ratify an amendment. And it got to 35.

Nick Capodice: [00:11:04] But the ERA hit its deadline in 1979. And then there were hearings in Congress to extend the deadline. And those came up against fierce opposition.

Robinson Woodward Burns: [00:11:12] There was actually a lot of backlash from some conservative feminists, like Phyllis Schlafly, who thought that it would force women into gender neutral bathrooms, for example, or that it might allow same sex marriage or access to abortion.

Phyllis Schlafly: [00:11:26] And I think it's a very interesting that these women who who try to tell the world [00:11:30] that they're self-reliant and independent and as capable as men, uh, look to the federal government to solve all the problem.

Robinson Woodward Burns: [00:11:37] And so the backlash to it, it almost killed the amendment.

Nick Capodice: [00:11:42] However, in the 20 tens, there was a revival of interest in the Equal Rights Amendment, in part due to the growing MeToo movement. And some new scholarship came to light that the amendment never actually had a deadline in its literal text.

Robinson Woodward Burns: [00:11:57] So the amendment was, according to these scholars, still live. [00:12:00] The remaining three states actually ratified it. Virginia was the last. But what was tricky is that it happened during the Trump administration. And so the amendment then went to the national archivist, who kind of had this tricky choice of whether to figure out whether these final three ratifications were valid. And the Trump administration, the Department of Justice sent a memo to the archivist, uh, Quigley, saying that, no, you can't ratify the amendment. Now, I argued in a piece in The Atlantic that because the archivist actually answers to Congress, the Trump administration couldn't [00:12:30] do this. But politically, at that point, the issue was dead. Now, maybe had Virginia waited a year until the Biden administration, we'd have had a different outcome. But ultimately, it looks like politically, the Equal Rights Amendment is dead.

Hannah McCarthy: [00:12:43] Okay, last thing here, Nick. What about the other ones, the other amendments that were proposed but never made it out of Congress? How many have there been?

Robinson Woodward Burns: [00:12:53] There have been, as of 2021, 11,970 amendments proposed to the Constitution, and only 27 [00:13:00] of those have been ratified. That's a 0.002% success rate.

Hannah McCarthy: [00:13:04] 11,970.

Nick Capodice: [00:13:08] Yep.

Hannah McCarthy: [00:13:10] We what have these been about? I mean, there's a lot. But like what do people try to get amended everything.

Nick Capodice: [00:13:17] Hannah. Uh, to establish every American's right to a home, to ban flag burning, to make the president's terme eight years and the representatives for to prohibit abortion, to allow abortion, to prohibit school prayer, to mandate [00:13:30] school prayer. 700 of these are about prayer, uh, to prohibit public drunkenness, to ban dueling. To put God in the preamble, I downloaded a spreadsheet of all of them, and I spent entirely too long reading it.

Robinson Woodward Burns: [00:13:43] There was an amendment, for example, 100 years ago, to rename the United States of America, the United States of the world, speaking to the colonial ambitions of the United States at the time.

Hannah McCarthy: [00:13:53] Who who.

Hannah McCarthy: [00:13:55] Proposed that?

Nick Capodice: [00:13:56] I'm glad you asked Lucas Miller of Wisconsin, who [00:14:00] proposed it in his first terms in 1893, and he said, quote, it is possible for this republic to grow through the admission of new states until every nation on earth has become part of it. Miller did not get elected to a second time.

Hannah McCarthy: [00:14:14] Well, this brings me to a really big question, and I guess I could guess. The answer based on the proposal of a lot of bills that never get passed. But why do members of Congress propose these amendments, knowing that there is pretty much no chance whatsoever that they will pass? [00:14:30]

Robinson Woodward Burns: [00:14:30] It's a timely question. After Ron DeSantis dropped out of the Republican primary, the first thing he did was propose four amendments to the Constitution. Now, Ron DeSantis didn't seriously think these amendments were going to pass, right? Every amendment that's proposed is almost certainly doomed, especially in today's really polarized Congress, where we have very narrow majorities of only 1 or 2 seats in any given chamber, far short of the two thirds super majorities necessary to propose an amendment. Why do members of Congress, or why did Ron DeSantis propose [00:15:00] amendments? Um, it's what we call in political science position taking. If a legislator or a lawmaker wants to put themselves out in front of the public, they can do that through amendments by proposing amendments. Because amendments are low risk, there's actually pretty low chance it will pass. And so they can just put out throwaway amendments, and an amendment might actually look like it's a pretty serious or significant measure to the public. And after all, it's a proposal to change the basic law of the country. So if you want [00:15:30] to seem like you're doing something serious or important with pretty low risk or low cost, one way to do that is to propose an amendment. It's a way to stay in the public's eye. If you feel like you may be less and less relevant. And that's exactly why Ron DeSantis threw out these kind of four throwaway amendments to the Constitution.

Hannah McCarthy: [00:15:58] What's interesting to me [00:16:00] is that right now, in February of 2024, we're in a record setting moment of government inaction, if you will, right? The current Congress, the 118th, passed 27 bills total in 2023, the fewest in modern history. So if you're not legislating and you don't want to get into trouble by proposing a controversial bill, this amendment signaling, what is it? Maybe all you have. Yeah.

Nick Capodice: [00:16:27] And to further that point, actual amendments [00:16:30] that make it through the process, they haven't happened for a long, long time. Our most recent one, the 27th amendment, which is about the rather humdrum notion of not changing Congress's salary mid-session. Yeah, it was ratified in 1992, but it was written in 1789. It was one of the 12 to be included in the Bill of rights, and it was just recently revisited. It's not new.

Robinson Woodward Burns: [00:16:54] No amendment proposed by Congress has actually cleared ratification since the early 1970s. And so we're in this period of [00:17:00] of real decline of national amendment. And what I remind my students is that, again, there's a live tradition of amendment at the state level. There are almost two dozen states that allow voters to propose revision of their their laws, either through statutes or in either 18 or 19 cases, depending on whether you count Mississippi, uh, revision of laws through constitutional amendment. And so, you know, because we see so much stasis and gridlock at the national level, I encourage, you know, my students or people interested in reform [00:17:30] to look at their state constitutions and local laws and statutes.

Nick Capodice: [00:17:35] We say it so much, Hannah, you have to think at some point people will start to do it.

Hannah McCarthy: [00:17:41] Yeah, it's just not as fun. If you want change, you got to think local. This episode was produced by Nick Capodice and Me, Hannah McCarthy. Music in this episode by Bomull, A P O L L O, baegel, Kevin [00:18:00] MacLeod and Dusty Decks. If you like us, please, please, please let us know. Deep down, we are still those theater kids eagerly awaiting notes at the end of tech. Leave us a rating on Apple Podcasts, Spotify, or wherever you get your podcasts. We're here for you. As long as we are all trying to keep this Republic. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Extra Credit: How to Argue Against Disinformation; Trump Trials Update

When the cats are away...well...you know. 

In this special episode, Executive Producer Rebecca Lavoie and Senior Producer Christina Phillips follow up on some recent discussions sparked by our newsletter Extra Credit. How do you have a legitimate discussion with someone who has the facts wrong? And what's going on with all of these different trials involving former President Donald Trump?

Click here to read Nick's essay on responding to someone who's wrong.

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Extra Credit: How to argue against disinformation; Trump trials update

Note: This transcript was machine-generated and may contain errors.

Rebecca Lavoie: Christina Phillips.

Christina Phillips: Rebecca Lavoie.

Rebecca Lavoie: You know the expression, when the cat's away, the mice will play.

Christina Phillips: Of course I do.I have two cats.

Rebecca Lavoie: I guess you can say this podcast kind of has cats, too, and they're named Nick and Hannah.

Christina Phillips: I think Nick would resent being called a cat, probably.

Rebecca Lavoie: I mean, he's more like a puppy, but Nick and Hannah, they are not here this week. So I'm Rebecca Lavoie

Christina Phillips: And I'm Christina Phillips.

Rebecca Lavoie: And this is a special edition of Civics 101 where we, the executive and senior producers of the show, normally behind the scenes, are taking over the mics. Christina, what exactly are we doing here today?

Christina Phillips: Well, this is a little bit of a format breaker. As you know, we have a newsletter extra credit.

Rebecca Lavoie: It comes out every other week.

Christina Phillips: Yes. And that newsletter is usually a follow up or a supplement to an episode we released. But this edition of Civics 101, we've decided to flip that.

Rebecca Lavoie: That's right. We're making an episode of the podcast to follow up on some newsletter business, so I'm not going to call this a bonus episode per se, but an extra credit episode. Later in the show, we'll be following up on a newsletter you wrote as a sort of follow up to a recent episode we dropped on presidential pardons. That's sort of what your newsletter was about, because it was about Donald Trump's current trial. So we're going to be talking about all of that, right?

Christina Phillips: And, uh, Trump is involved in a lot of court cases, and they're all pretty confusing. So I'm going to walk you through some of them, not all of them, but some of them where they stand, whether or not they could lead to potential self pardons if that reelection happens and what could happen next?

Rebecca Lavoie: You know, I think I'm one of those people who thinks they understand what's going on with all of this, but probably need someone to explain it to me. So I'm really looking forward to that. But first, there's something I was hoping to do on this show today, if that's okay with you.

Christina Phillips: Yes.

Rebecca Lavoie: So I want to talk about a couple of listener responses. We got to an extra credit newsletter. Our regular host, Nick Capodice sent out a couple of weeks ago.

Christina Phillips: And by the way, this is a good time to remind everyone that they can and should sign up for extra credit. Again, that's our free newsletter at Civics101podcast.org.

Rebecca Lavoie: Yes, and we'll also link to that in our show notes on this very episode. Anyway, a couple of weeks ago, we released an episode of the podcast hosted and produced by Nick about Federalist ten. Now that's the Federalist paper written by James Madison. That raises this big concern that Madison had that factions could pose a severe threat to our democracy, which is pretty timely, right? I mean, you could say that.

Christina Phillips: Yeah.

Rebecca Lavoie: So we got a listener email in response to that episode and particular to this bit of it, where Nick and his guest, Jeffrey Rosen, they talk about whether Madison's fears are bearing out right now.

Nick Capodice: So Jeff opened his conversation with me talking about Shays Rebellion. So I had to end it by asking about the modern political climate. Maybe Madison wouldn't call our two parties factions, but what about the far edges of a party? Like, what about the recent example of an armed insurrection on the nation's capitol?

News archive: We had a breach of the Capitol, breach of the Capitol, requesting additional resources on the East side as they've broken into that window and they're trying to kick it in, will not.

News archive: Be kept out of this chamber by thugs, mobs or threats.

Jeff Rosen: Whatever a faction is armed mobs representing a minority of the population that are threatening the rule of law and trying to subvert the Constitution, are it? That's exactly what the Constitution is designed to avoid. By any measure, an armed insurrection against the processes of government is a faction, and Madison would have tried to resist it at all costs.

Christina Phillips: Oh, I remember this is that listener email we talked about on slack all morning. They were angry that we'd said that what happened on January 6th was an armed insurrection, specifically that we'd use that word armed in particular.

Rebecca Lavoie: Right. So this listener asserted that that was just inaccurate. And it is a fact that it was an armed insurrection. There are court documents, photos, there are confessions of people, statements who were charged and convicted, who say that they were armed. There's plenty to back up the fact that there were, in fact, weapons present at the Capitol on January 6th.

Christina Phillips: Sure. And there's lots of misinformation about that out there, too, claiming that there weren't guns or weapons there and that it was simply a very peaceful protest. Again, this is an opportunity to remind listeners, you should check out our episode on misinformation and disinformation to find out how all that works, how these things even sort of gain traction in the first place.

Rebecca Lavoie: Yeah, honestly, that's one of, I think our best civics 101 episodes, one of my all time favorites. So anyway, back to Nick. I think it's fair to be transparent and say that Nick is a thoughtful guy. He is a sensitive guy, and he cares about his job hosting this podcast a lot. Yes, and he could not stop thinking about this email and how to respond to this listener. And I should say, we do respond to just about every email we get here at the podcast. The exceptions are rare. Those are the spam emails, the truly insulting emails that just say things about, like our voices or Nick's music choices or whatever. But really, we respond to just about all of them. And it was super important to Nick to respond to this one. He wanted to do it, but he wanted to do it right.

Christina Phillips: Yeah, I remember him talking through how to approach his response with all of us. He was asking, how about this? How about that? And he sent you a couple of drafts to edit, right?

Rebecca Lavoie: He did. And then he wrote about that whole process of thinking about it in a kind of essay for the extra credit newsletter. So I'll link to that edition of the newsletter in our show notes so that everyone can read it. And this essay, I'll just call it that, because that's what it was, an essay. It was called how should we Respond to Someone Who's Wrong?

Christina Phillips: I love that bold title.

Rebecca Lavoie: Yeah, it was an accurate title. And again, full transparency. I edited it and I approved that title because it was accurate. So anyway, I'm going to read you a couple of excerpts of what Nick wrote in that essay. Today's newsletter is not to drag someone for being wrong. It's about me telling you how I struggled with what to say in response to this listener, which I do every time I'm confronted with someone who's sharing misinformation. My first instinct was to find as many articles as I could, from as many sources as possible, and send them to the writer inner. I then put those news sources into media bias fact check to see where they stood in terms of bias as well as accuracy. So I could assure the writer in her that I was sending them a range of journalism that they could review, maybe even trust. My second instinct, and I'm not proud of this, was just to ignore the complaint altogether. So finally, Nick continues, our EP simply suggested that I respond with proof of the facts. What I didn't do, Nick writes, was what I too often do give in to temptation to become Errol Morris and write a ten page long email with a hundred links, like my dad used to send me when I was in college. I didn't get snarky, and I didn't talk about watching the insurrection happen in real time on my friend's couch.

Christina Phillips: I so like, understand deeply this instinct that Nick has. And yeah. And I can't even tell you how many Google docs I have that are just like very long responses that I've written out and them being like, I can't send that.

Rebecca Lavoie: Email, you have to.

Christina Phillips: Send this. Yeah. And then in typical Nick fashion, he included some advice from the late Carl Sagan. Right?

Rebecca Lavoie: He did. And I don't want to spoil that. I'll just say it has to do with fire breathing dragons. And again, make sure to click the link in the show notes for this episode and read Nick's essay for yourself, because it's it's pretty great.

Christina Phillips: So then what happened?

Rebecca Lavoie: Well, Nick did email the listener back, and while they weren't fully swayed by Nick's response, ultimately they did come to some sort of middle ground, and it was incredibly respectful and civil. And I think, Christina, that we should agree that in 2024, respectful and civil is kind of its own big deal in terms of these kind of conversations.

Christina Phillips: Yeah, I would agree. And I think it's something that we're so hungry for. And when we get it, it's like, yes, okay, this is what we want. Yeah.

Rebecca Lavoie: You know what happened then I.

Christina Phillips: Do, but tell me anyway.

Rebecca Lavoie: So we started to hear from other listeners, a whole bunch of them. We probably got more emails about this newsletter than any newsletter we've ever sent out. And even most podcast episodes we've put out. I want to share a couple of those responses with you because they're pretty awesome. Do you want to hear them?

Christina Phillips: Of course I do.

Rebecca Lavoie: Okay. This one was from Charles Cook. He's a retired US Army command sergeant major and was an armor soldier with 32 years of active duty. He told me he was on tanks and in tanks the entire time he was in the service, which is pretty amazing. And by the way, he wrote some amazing details about what a command sergeant major is and does, and I really encourage everyone to look that up. So Charles talked about his job in the military and then wrote, yes, I have had the opportunity to tell people that they are wrong when they were unaware of the fact it can be consuming or fun, depending on how much personality that person has.

Christina Phillips: I too enjoy telling people when they are wrong. I relate to this.

Rebecca Lavoie: You relate to it being fun?

Christina Phillips: Yeah. Sometimes. Yes. Wow.

Rebecca Lavoie: Okay, well, wait for it because Charles continues. Did you understand that it was your mission to be at location X at time Y to perform task Z? A yes or no question, Charles says the person invariably responds with an excuse that does not contain either the word yes or no. I think Charles is equating that to not containing the facts. Right? So I then restate the question. The person probably figures it out by then, but if not, I will restate the question a second time, indicating that this is the second restating of the question. If I get the excuse, i.e. the things that aren't facts, the third time I stop the person and tell them clearly that I will give them ample opportunity to describe their lack of understanding after the yes or no question receives an answer of yes or no. Sometimes Charles says, this goes on far too long. Those are the interesting ones. When a soldier answers correctly on the first time, I ask for any reasons for the lack of performance. And then seriously, it is learning time. But the ones who cannot answer a yes or no question with a yes or a no, those are the fun ones. I think what Charles is saying here is that when you're talking to somebody who either doesn't know the facts or won't state the facts, or can't admit that they aren't speaking about facts, that the inability to just say yes or no is an indicator of that. And, you know, he kind of enjoys having that conversation because it's just binary for him. Right. And so I just think that's a very interesting way of thinking about this kind of conversation. I'm not sure I would think it's as fun as he does. And you do. But anyway, it's one way to handle it. So I do think we should introduce Charles to Nick. I think they would probably have a very interesting conversation.

Christina Phillips: Yeah for sure. And you said we got a lot of emails, so can I hear another one?

Rebecca Lavoie: Yes, I'll read one more. And I love this one because this is from another amazing listener, Kim Barben. She teaches AP, US Government and Politics and honors an academic, a government and civics at Great Valley High School in Malvern, Pennsylvania. And yes, she uses our show in her classroom.

Christina Phillips: I love that.

Rebecca Lavoie: So Kim's email also included some of her experience and some practical advice for dealing with misinformation and how to argue. She wrote in AP government in my introduction unit, I do three key lessons to set the tone for the year one dissent as an American value and how to respond to dissent. Two media literacy I co-teach this with our school librarian over the course of five days. We cover misinformation and disinformation. What are the types of media biases and how to recognize them? How to check the reputation and accuracy of sources using media bias. Org which we love and all sides, as well as Wikipedia and the impact of extremism polarization due to the echo chambers and biased media. Three civil dialog constitutional conversations using materials from the National Constitution Center and Bill of Rights Institute, I teach my students to focus on constitutional questions and not political questions. The students create their own class norms for how to have discussions in the class and how to dissent respectfully. And then Kim ends with these lessons need to be taught to adults too. So, Christina, what do you think of Kim's advice? Would it work on adults?

Christina Phillips: I mean, I have to hope so. This to me, sounds like a better way to have a discussion than what I learned in school. And teachers, I feel they really make you believe that anything could be possible. They really are the best.

Rebecca Lavoie: They really are. And I think that teenagers sometimes make you feel that way too.

Christina Phillips: Oh yeah. All the time.

Rebecca Lavoie: Christina, we're going to take a quick break. And when we come back, you're going to help me clear up some of my confusion about a particular topic, something you addressed in a recent newsletter. What is up with these court cases around former President Donald Trump? That's when our extra credit episode returns, after a couple of words from our sponsors. But first, I just want to remind you that while this show does have a couple of ads in our break, they don't come close to covering the cost of the work that Nick and Hannah and Christina and our whole team does each and every day to bring you this podcast week after week. Please consider supporting the show. If you value that work, we will put a link in the show notes. If you want to make a donation to support Civics 101, either a one time gift or a monthly gift, it all matters so, so much and we are so grateful for your help. We'll be right back.

BREAK

Rebecca Lavoie: We're back. And this is a special takeover edition of Civics 101 Extra Credit Edition. I'm executive producer Rebecca LaVoy.

Christina Phillips: And I'm senior producer Christina Phillips.

Rebecca Lavoie: And now we're going to take a bit of a turn. Christina, before the break, we talked about an edition of our extra credit newsletter that our esteemed host Nick Capodice recently sent out, but you also pinned an extra credit. Last week, as a follow-up to the episode, we dropped on pardons and I thought, yeah, so we need to talk more about that. So again, Christina, why are we here? 

Christina Phillips: Well we're here because there's so much noise around these cases involving former President Donald Trump that I know I'm starting to lose track of how we ended up here in the first place. And with every new update, it feels like, wait, which one is this again? Why should I care?

Rebecca Lavoie: Yeah, I think at this point, you know, with all these like, news alerts coming in on our phones and headlines going across the TV screens, many people feel this case fatigue or this case confusion around this. And this is a really, really good question.

Christina Phillips: And when I was working on this episode on presidential pardons, the big question for that episode and many episodes that we've done recently, has been, what can a president do with their power and what should they do and who holds them accountable? I think specifically for that episode, it was can a president pardon themselves? Like, do they have the power? Should they use that power? It feels like it's sort of underlining everything that we've talked about recently on the show. Yeah.

Rebecca Lavoie: And after your pardons episode dropped, we got some emails from listeners who were just like, I don't understand why how why what? Yeah, yeah. And it just it's a question that everybody seems to have, like it seems like it should be a simple answer, but it's not necessarily a simple answer. So yeah, it's certainly something that's on everyone's minds.

Christina Phillips: Yeah. So here's what I want to try to do. I want to go through the legal cases that have to do specifically with presidential power and privilege. I want to remind us what laws Trump is accused of violating while in office and where these cases are now. And we're not talking about the defamation, fraud or hush money cases in New York, because those don't directly deal with Trump's time as president. And there's enough there. I think already with the three cases I do want to talk about, and I should say we're taping this on Friday, February 16th. So things may have changed by the time this comes out. I'm taking a line from the NPR politics podcast.

Rebecca Lavoie: That's right. Maybe we should say we're taping this on Friday, February 16th at 3:06 p.m.. Yes.

Christina Phillips: And things may have changed since then.

Rebecca Lavoie: Okay. So we are talking about cases again that could intersect with future pardons or Donald Trump pardoning himself. That's why we've picked these ones, right? Yeah.

Christina Phillips: Or they could have to do with Trump and the election. And if Trump is reelected, it's all about this presidential powers thing and him as president potentially.

Rebecca Lavoie: So can you give me the elevator pitch kind of a summary for, for lack of a better word, dummies for each one of these cases?

Christina Phillips: Yeah. I'm approaching this with the friends episode naming scheme.

Friends clip: Hey, how are you doing?

Christina Phillips: We've got the one with the fake electors. The one with the phone call where Trump asks the Georgia Secretary of State to, quote, find 11,780 votes and the one with the classified documents allegedly stored in a bathroom. All right.

Rebecca Lavoie: Let's start with the one with the fake electors.

Christina Phillips: Okay. This is United States versus Donald J. Trump, aka the election interference case. There is another election interference case, the one in Georgia, which we'll talk about in a minute. This one is specifically centered on that time between November 2020, the election, and January 6th, 2021.

Rebecca Lavoie: What are the charges in this case?

Christina Phillips: So there are four charges conspiracy to defraud the United States, conspiracy to obstruct an official government proceeding, conspiracy to deprive people of civil rights, and attempting to obstruct an official proceeding. That would be the certification of the election results in Congress that was interrupted by the January 6th riots. So, in other words, Trump is charged with allegedly pressuring state election officials to change their electoral votes, creating a scheme of fake electors in several states, spreading election conspiracy theories and pressuring his vice president to delay the certification of the election. And this is all against the warnings and advice of his own staff and the Justice Department. There were people who were telling him, you shouldn't do this. This doesn't make sense throughout the whole thing, and that is a really important part of the case.

Rebecca Lavoie: So this is the case that's most closely related to January 6th. Those proceedings were the certification of the electoral votes in Congress on January 6th. And so this is what people think of as like the big one.

Christina Phillips: Yeah. And what stands out to me about this case is that there's a limited window between Election Day and the inauguration, where an outgoing president is supposed to be wrapping things up, preparing for the new administration, etc.. And the indictment lays out pages and pages. Ages of alleged behavior, including phone calls, meetings, emails that are devoted exclusively to the outcome of the election. I can't guess how much time Trump would spend planning for the peaceful transition of power, or on his other remaining duties as president, but this indictment paints a picture of the amount of resources he allegedly used in disputing or altering election results.

Rebecca Lavoie: So what are the potential consequences of all of this?

Christina Phillips: Prison time is on the table, potentially. But also, if Trump becomes a convicted felon, he could be restricted from voting, but he could still run for and be elected president.

Rebecca Lavoie: Where does this case stand now as of this taping?

Christina Phillips: Well, the trial hasn't started yet because Trump has filed a motion to dismiss the case on the grounds that he had presidential immunity during this time. And therefore, even if he did all of this stuff, he could because he was president.

Rebecca Lavoie: So that's the case, that immunity issue that's in front of the Supreme Court right now, right?

Christina Phillips: Yeah. So Trump filed a motion to dismiss this case on those presidential immunity grounds, basically saying this shouldn't even happen. Let's throw it out. The judge said no. He appealed. The higher court said no. He appealed to the Supreme Court. And what he did is he asked them to delay the trial while this appeals process is continuing. And so now we're waiting to see if the Supreme Court will take up this question of presidential immunity, or if they're going to let the decision in the lower court stand. And then if the grounds of presidential immunity are dismissed, he could go to trial. As of right now, the judge in that case canceled the original March 4th start date and has not rescheduled it. So it's essentially on pause.

Rebecca Lavoie: So what's.next?

Christina Phillips: Okay, so next we've got the one where Trump allegedly asked the Georgia secretary of state to, quote, find 11,780 votes.

Rebecca Lavoie: All right. This one I know a little bit about this is a state case rather than a federal case.

Christina Phillips: Yes. And Trump is charged in Fulton County, Georgia, with racketeering under the Rico act. Shout out to our episode on that right with 18 other people for conspiracy to steal the 2020 election. And this is a sprawling case. There's a lot of allegations in here against many different people, including attempts to gain access to secure voting equipment, threatening and coercing state election officials, soliciting election officials to violate their oaths, and impersonating a public officer. And Trump is accused in both overseeing and participating in these alleged schemes. And this case also includes those allegations of fake electors that we saw in the federal case. But I sort of see this as the bigger, more sweeping and comprehensive version of that case.

Rebecca Lavoie: Right. So while I say that people view the other case as the big one, this is the one that I think pundits and people who've really been watching things actually have been saying is the one to watch, the one with potentially the most consequences for the most people.

Christina Phillips: Yeah, the federal case feels like it's it's very specific and targeted towards federal violations. And this one has so much in it.

Rebecca Lavoie: All right. So where does this one stand right now.

Christina Phillips: Well this one is delayed. And if you've been watching the.news. For the past couple of. days, it's because Trump's legal team accused the Fulton County District attorney, Fani Willis, who is leading the prosecution, of having an improper relationship with a special prosecutor who worked on the case. So there have been hearings over the last few days, and a judge could decide to potentially remove her and her office from this case if the judge agrees, which would mean that Fulton County and the state of Georgia would need to appoint another prosecutorial team if they even want to move this thing forward.

Rebecca Lavoie: Yeah, this case was very much born in Fani Willis's office, and I have been watching coverage of those hearings, and it's really been something to see. So if Willis is removed from this case, is it possible this case could just end up going away?

Christina Phillips: Yeah for sure. I mean, the state of Georgia could appoint this new prosecutorial team. They could also decide not to. And that team, even if a new team is put in place, could totally change the course of the the charges, how they investigate. And so I do think it's interesting. This is kind of a pattern with Trump's team throughout many of these cases, including the ones we haven't talked about before, things even go to trial. There have been a number of appeals and motions filed by Trump's team to delay or dismiss, on the grounds that the investigation or the charges have no merit, or there's some problem with the prosecution. And that's sort of similar to what we're seeing with the presidential immunity case we just talked about.

Rebecca Lavoie: Okay, so tell me about the one with the classified documents. Those documents in the bathroom that we've seen those photos of?

Christina Phillips: Yeah. Okay, so this is a federal case charging Trump with 40 criminal counts, including conspiracy to obstruct justice, corruptly concealing a document or record, and concealing a document in a federal investigation, among other things. And all this is related to classified documents and sensitive national security information belonging to the government that Trump allegedly took from the white House to his home at Mar a Lago, where he allegedly stored them in hallways, in the bathroom, on an empty stage. And then the.

Rebecca Lavoie: National Archives tried to get them back, and he allegedly hid some of them and didn't tell the truth about having them, and asked staffers to move them around and lie about having them and all of that. Right?

Christina Phillips: Yeah. And at one point, he also claimed that he had the power to declassify them in his head with his mind. But even so, it remains that even if he had declassified these documents, they still are the property of the United States. They are not his private property. So he, as an individual, a private citizen, could not take them from the office when he left. And many presidents have had classified information turn up in their private homes after they leave office. When they dig into their old file cabinets, they're talking to biographers or ghostwriters. But the allegations here are that Trump went to enormous efforts to hide those documents, to lie, and to stop the federal government from getting them back.

Rebecca Lavoie: I do think that people don't understand that, like even your, you know, your notes from phone calls belong to the American people. When you're the president of the United States, your phone messages do your anything you write down, anything you type, your emails, your. It's really incredible. So what is the potential punishment for this one?

Christina Phillips: Well, some of the charges fall under the Espionage Act and are punishable with prison time. He could still run for president if he's elected. He could potentially try to pardon himself. I think the location is a little confusing. So I do want to clarify that that's a federal case. But the trial would happen in the federal district in Florida, where Mar-A-Lago is located, because that's where the alleged crimes happen.

Rebecca Lavoie: All right. So I have to ask you a question, because I know that some listeners will be wondering it. And it's also been in the news. What about President Joe Biden and his connection to classified documents after he left his office, serving under Obama as vice president? Yeah.

Christina Phillips: So Biden was accused of mishandling classified documents during his vice presidency. There was an investigation, and there was a report released earlier this week from the Justice Department, and that was written by special counsel Robert Hur. And ultimately, he said that there wasn't enough evidence to warrant criminal charges. But it did say some things about Biden's mental capacities and age, and that's been getting a lot of news. It sure.

Rebecca Lavoie: Has. But, you know, these cases aren't exactly the same. 

Christina Phillips: Yeah And, um, Robert Hur actually spoke directly to this. I think the big difference here is the obstruction of justice thing. When he was contrasting the two cases, Herr said that Trump, quote, not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then lie about it. And then Herr says that Biden, quote, turned in classified documents and that he, quote, cooperated with the investigation.

Rebecca Lavoie: All right. So where does this documents case stand?

Christina Phillips: Well, originally it was scheduled to start May of 2024, but the judge in charge, Judge Cannon, recently set a hearing for March 1st to see if it should be pushed out. So it hasn't started yet. It might start in the spring, but it might also get delayed.

Rebecca Lavoie: I see a pattern here, so all three of these cases have not reached the trial stage yet, right?

Christina Phillips: We are still in the pretrial stage, and if Trump is reelected in the fall, there is the possibility that he will try to pardon himself in the two federal cases if he were already convicted. But if the cases are still ongoing, which is probably more likely, and he was elected, he could just have a newly appointed attorney general withdraw the charges and end the cases right then and there. And so I think this is where I kind of want to get on a soapbox for a minute, if you don't mind.

Rebecca Lavoie: Oh, absolutely. Christina, I mean, that's why we're here.

Christina Phillips: Okay. So these cases and the other ones we didn't even talk about have sucked up a lot of oxygen right now, which, as someone who has been watching the hearings and reading the legal documents, I am one of those heavy consumers of this news. And I feel a little torn because it's fascinating. The stakes are high, but we're talking about what a president does in office, and this could have repercussions in the short and the long term for what that office is, what the role of the president is. But it's so abstract when it comes to, like you and me, our lives, what we expect our government to do to serve us. So I would like to encourage people to be a little selfish right now when you're thinking about the election, when you're thinking about voting, I think that we should think more about what we. Need from our president. And if you're not sure, think about what you need from those elected officials that are closer to you, both physically and logistically. What government policies directly affect you and who is responsible for them? What can you do as a voter, as a participant in our democracy, to make the government work for you? I don't want that to get lost in all this coverage with these trials, which oftentimes you read the coverage and you need to read for a few paragraphs before you even sort of understand, you know, what are we doing here? Again, what is the point of this case? So so that's sort of my message to people.

Rebecca Lavoie: Are you saying, Christina, that we can also search for accountability much closer to home when it comes to our democracy?

Christina Phillips: Yes, that is exactly what I'm saying.

Rebecca Lavoie: This episode of Civics 101 was produced by me, Rebecca Lavoie, and senior producer Christina Phillips, and a special nod to host Nick Capodice and Hannah McCarthy for the incredible work they do on this show every week. You might not know this fair listener, but Nick and Hannah. They're not just hosts. They are interviewers, script writers, sound designers, editors, audio mixers. They literally do it all, and they so deserve the vacation that they took. And we are so glad that we had the opportunity to take over because they got some rest.

Christina Phillips: Yes, I'm so happy that they took a vacation.

Rebecca Lavoie: Music in this episode includes tracks by Blue Dot sessions, Chris Zabriskie, Ketsa, and Shaolin Dub. Civics 101 is a production of NHPR - New Hampshire Public Radio.

What are Presidential Pardons?

The president has the power to release someone from prison, restore their voting rights, or stop a federal criminal investigation with little more than the wave of a hand. How did the president get this power, and are there any limitations? What would it mean for a president to pardon themselves? 

Brian Kalt, constitutional law professor at Michigan State University, helps answer these questions.

---

Nick Capodice: [00:00:02] So Hannah. We always like to end our episodes with kind of a so what? You know, like an idea to chew on based on everything we've learned over the course of the episode. And I'd like to do things a little differently this time. I want to start this episode with a big existential thought.

Hannah McCarthy: [00:00:25] Any particular reason?

Nick Capodice: [00:00:27] Well, uh, we're talking about presidential pardons this week. What they are, how they work, and whether a president can pardon themselves because as of right now, Donald Trump, who has 44 federal felony charges against him between two federal cases, is running for reelection. So pardons aren't just a legal question. They are a campaign issue. Would I vote for a candidate who, if elected, could potentially shut down a criminal investigation of himself or any of his friends who could use his presidency to supersede his own Justice Department?

Hannah McCarthy: [00:01:05] Or they might not really be wondering that at all, because selecting a candidate at the polls these days is a nuanced thing. But, I mean, I personally am on the edge of my seat in this era of testing the system. So go on.

Nick Capodice: [00:01:21] Okay, so yes, this is a topic that is extremely relevant to one particular presidential candidate right now at a very divisive time in our history. But, Hannah, I'd argue we would be doing our listeners a disservice if we limited our conversation to just that one person, because it has consequences well beyond one party or one election.

Brian Kalt: [00:01:44] I think it's important to distinguish between what presidents can do and what presidents should do. It's the same constitution, whether you like the president or not. The president's powers are supposed to be the same.

Nick Capodice: [00:01:58] This is Brian Kalt, constitutional law professor at Michigan State University College of Law. He studies the presidency and has written numerous legal papers on pardons and impeachment.

Brian Kalt: [00:02:07] If you really think that the president can do this, would you be okay with a president you don't like doing this? Would you still think that the president can do this? And if you think that the president can't do this because you don't like the president, well, what if it was a president you did like?

Nick Capodice: [00:02:26] So with that, this is Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:02:30] I'm Hannah McCarthy.

Nick Capodice: [00:02:31] Today we are talking about the power a president has to reduce or even eliminate punishment for federal crimes.

Archival - Trump: [00:02:38] I said the last thing I'd ever do is give myself a pardon. I could have given myself a pardon. Don't ask me about what I would do. I could have the last day I could have.

Hannah McCarthy: [00:02:47] Does the Constitution mention pardons? Specifically?

Brian Kalt: [00:02:52] The president, in Article 2 of the Constitution, is given the power to grant pardons and reprieves for offenses against the United States. So basically what that means is if someone is facing or might face some sort of consequences under federal criminal law, the president can make those go away.

Hannah McCarthy: [00:03:13] What does Brian mean when he says that the president could make consequences go away?

Nick Capodice: [00:03:19] Well, there's a terme for this: clemency, which means leniency, basically reducing or eliminating the legal consequences of a crime. Now, if the president grants a full pardon, they wipe away all legal punishment for a federal crime, like prison time, fines, or restrictions on civil rights. A president could also reduce the punishment, you know, allow someone convicted of a felony the right to vote, shorten the length of their prison sentence, things like that. And I should add, pardons cannot be granted for civil liability.

Hannah McCarthy: [00:03:53] Civil liability? Like if someone sued for damages.

Nick Capodice: [00:03:56] Yeah, exactly.

Hannah McCarthy: [00:03:58] Is accepting a pardon admitting guilt?

Nick Capodice: [00:04:01] Brian says that this is a common misconception.

Brian Kalt: [00:04:07] The classic version of a pardon is that it is forgiving something, taking something that someone has done and saying, well, you know, you don't deserve all that much punishment for it. Let's reduce or eliminate that. But it can also be used and has also been used not to declare people guilty of things, but worthy of forgiveness, but instead to exonerate them and to say that they never should have been convicted in the first place. There's a common notion that a pardon is a declaration of guilt, that accepting a pardon is an admission of guilt 99% of the time. Pardons are for forgiving guilty people, but there is that other 1%, and there is no automatic legal requirement that when you pardon someone, you're declaring them guilty, or when you accept a pardon that you're admitting that you're guilty.

Hannah McCarthy: [00:04:58] All right. Can the president pardon anyone at all for any kind of crime?

Nick Capodice: [00:05:03] Uh, we'll get to the anyone part in just a bit, because that has been an open question for many, many years. But in terms of the types of crimes, no, there are definitely restrictions. First, the president can only pardon someone for a federal crime, not charges or convictions in state or county courts. So you'll note that earlier when we referenced the two federal cases against Donald Trump, we did not mention his other criminal cases in New York and Georgia because those are state crimes. Now, it varies from state to state, but usually pardons for state crimes can only be made by the governor of a state or a pardoning board. And the second thing.

Brian Kalt: [00:05:44] Second, they're only for crimes. So that excludes civil liability. But it also excludes impeachment. And the Constitution makes this clear. It says, except in cases of impeachment. And that that doesn't mean that, as some people took it during the Trump impeachment, that if you're being impeached for something, then you can't be pardoned for the underlying criminal charges. It just means that the impeachment process is separate from the criminal process, and pardons only apply to the criminal process. So president can't stop or undo the impeachment process.

Hannah McCarthy: [00:06:21] Okay, I've been assuming that a pardon is something that only happens after a conviction, but Brian just said that a pardon cannot stop an impeachment. So just wondering, could a pardon stop a criminal trial before it has finished?

Nick Capodice: [00:06:40] Oh, it certainly could. And it could do more than that.

Brian Kalt: [00:06:43] The president doesn't need to wait until someone has been convicted to issue a pardon. He doesn't even have to wait until they've been charged. Most famously, President Ford pardoned President Nixon for anything he might have done while he was in office. And Nixon hadn't been charged with anything, let alone convicted.

Archival - Ford: [00:07:03] Have granted, and by these presents do grant a full, free and absolute pardon onto Richard Nixon for all offenses against the United States, which he, Richard Nixon, has committed or may have committed or taken part in during the period from July 20th, 1969 through August 9th. 1970.

Hannah McCarthy: [00:07:37] So in that instance, President Nixon was going to be impeached. He then resigned when it was made apparent that the Senate had the votes to potentially remove him. But the Justice Department could still have charged him with federal crimes. And then President Ford came in and granted Nixon a pardon for any crimes he may or may not have committed during the Watergate scandal.

Nick Capodice: [00:08:01] Yeah, and that ended any momentum for a Justice Department investigation. But even though this pardon ended any future convictions, it was for crimes that had theoretically already been committed. A president cannot pardon someone for something that they haven't done yet, like a crime that someone might commit tomorrow or next year.

Brian Kalt: [00:08:23] A pardon has to be for something that you've already done. You can't pardon someone in advance that's not specified in the Constitution, but it's sort of inherent in the definition of what a pardon is. That wouldn't be a pardon. It would be a suspension of the law right in advance.

Hannah McCarthy: [00:08:41] Right. Makes sense. You can't pardon someone for something they haven't done yet. Just like you can't convict someone for something they haven't done yet because we don't live in the Minority Report universe. Listen to our episode on the algorithm for more on that. But what does that have to do with whether or not a president can pardon themselves?

Nick Capodice: [00:09:00] Well, think about other circumstances where you can't hold yourself legally accountable.

Brian Kalt: [00:09:06] You can't be, uh, the judge in your own case. You can't be on your own jury. You can't be your own prosecutor.

Nick Capodice: [00:09:12] So following that logic, people have made the argument that a president cannot be their own partner.

Hannah McCarthy: [00:09:20] Yeah, okay, I get that.

Brian Kalt: [00:09:21] But even looking at the Constitution itself, looking at the text of it, you could say it's inherent in the definition of a pardon, that it's a bilateral thing. It's something you give to someone else. You can't pardon yourself. It doesn't make sense. Uh, you know, just to take a silly example, right? You, uh, burp. Uh, there's no one else around. You say. Pardon me, you don't pardon yourself for lack of anyone else to do it. Uh, you're asking someone else to do it. That's what a pardon is. You can't condone your own actions. It doesn't make sense. So the argument would go. You can't pardon yourself. It doesn't make sense.

Nick Capodice: [00:09:55] But on the other hand, there is what's not written in the Constitution.

Brian Kalt: [00:10:02] The argument that he can pardon himself is that, well, it doesn't say that he can't.

Hannah McCarthy: [00:10:07] So the Constitution does say that a president cannot use a pardon for an impeachment and can only pardon for federal crimes.

Nick Capodice: [00:10:16] Yeah, it actually says this. I'll read the quote. He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, end quote. And this is where the line is. There is not a clear restriction that says a president cannot pardon themselves. But if we look at this specific power as a matter of justice, based on what every other person can't do when they're charged with a crime, like be their own judge and jury, a self pardon just doesn't make a ton of sense. However, I will add, the president can do things in office that nobody else in the country can when it comes to policy.

Brian Kalt: [00:10:55] There's a long standing debate about whether a pardon is just an act of mercy, or whether it's a policy decision, because if it's an act of mercy, uh, then that has very different implications for, um, things. Well, things like self pardons, uh, if you want mercy, you need to get it from someone else. Uh, if it's a policy decision. Okay. Well, maybe the president can do that because it's like so many other things. It's up to him. He makes policy decisions. This is one of them.

Nick Capodice: [00:11:27] By the way, Brian wrote a whole paper about this all the way back in the 1990s.

Hannah McCarthy: [00:11:32] So he was thinking about this long before Donald Trump became President Trump.

Nick Capodice: [00:11:37] Way before.

Brian Kalt: [00:11:39] I was in my criminal procedure class, and we were talking about presidential pardons, which are not a big part of criminal procedure at all. I would venture to guess that my professor was unusual for even talking about them at all. Other stuff that I wrote about around the same time was, can you impeach someone after they've left office? Right. I wrote about that. That ended up happening. Can you prosecute a sitting president? And, you know, it's just sort of testing the margins. And I think what's interesting to me about these things is not just the thing itself, like, oh, if a president pardoned himself, that would be kind of interesting. Well, yeah, it would be. But by examining this, it forces us to come up with a deeper understanding of what the whole pardon power is all about.

Hannah McCarthy: [00:12:21] All right. Pause. So Brian was testing the margins in the 90s, as he says, but those margins are now very much becoming a reality. I'm just curious. Let's just get to the fundamental question here. How did this all come to be, this presidential pardon thing? Why does it exist? And honestly, Nick, will understanding that get us any closer to figuring out what it means if a president chooses to absolve themselves of criminal responsibility?

Nick Capodice: [00:12:51] Well, I'll tell you about that right after this quick break.

Hannah McCarthy: [00:12:57] But before the break, just a reminder that we are public radio. Public radio is sustained by and the property of the public. That's you. What keeps us going is contributions from our listeners. If you believe in us, if you like what we do, if you want us to keep the lights on, consider making a contribution at Civics101podcast.org. It's quick, it's easy, and there is civics swag to be had. All right, that's it.

Nick Capodice: [00:13:27] We're back. And, Hannah, you just asked me why we have a presidential pardon in the first place.  All right, here is Brian Kalt again.

Brian Kalt: [00:13:36] There's two questions there. One is why give anyone that power? And then if we're giving anyone that power, why the president. So the idea of giving someone that power is based on the idea that the criminal justice system doesn't always get it right. If we're going to administer it effectively, efficiently, we need to have some clear, easy to apply rules. The problem with clear, easy to apply rules is they don't give you that nuance. They over punish people. And so we need a safety valve. We need to temper the efficiency of the system with some sort of case by case sensitivity to justice.

Hannah McCarthy: [00:14:15] And to do that we give that ability to the most powerful person in the country...

Brian Kalt: [00:14:21] Why give it to the president? Well, um, the president is politically accountable. He's the only nationally politically accountable official there is, and he's one person. So one thing that they talked about during the ratification process was, what if there is a big rebellion, and the way to shut down the rebellion is to say, look, we know that you're unhappy about these things, but we want you to put down your arms. If you do, we'll pardon you. So it gives the president the ability to use that as a as a negotiating tool. They thought about shutting down rebellions as an important thing. And in fact, the very first pardons issued were by George Washington pardoning the participants in the Whiskey Rebellion.

Hannah McCarthy: [00:15:11] Oh, I know the Whiskey Rebellion. This was a massive, violent protest in the 1790s where a bunch of distillers refused to pay a new tax on alcohol and in one instance, attacked the home of a tax inspector. Yeah.

Nick Capodice: [00:15:24] And President Washington was praised for how he handled it without causing too much bloodshed. So he called in the federal troops to quell the rebellion. But then he also ended up giving a blanket pardon to a bunch of the people involved. And after the two leaders were convicted of treason, he pardoned them, too.

Hannah McCarthy: [00:15:43] So the president can use their pardoning power as leverage. And in the case of George Washington, it was for the sake of protecting this, you know, brand new democracy the framers had created.

Nick Capodice: [00:15:54] Theoretically. Yeah. That's like a really nice, clear, simple example that you might find in your history textbook. Rebellion threatens our country. Stop the rebellion and minimize the repercussions of that rebellion. But the vast majority of pardons throughout presidential history have not been as consequential.

Brian Kalt: [00:16:13] The pardon power for most of the history of the presidency was not overly controversial. Uh, not used all that much. It was run of the mill, you know, people just approaching the president saying, well, I'd love to have a pardon. He's the one who can do it. Uh, at a certain point, it became annoying for presidents to have all these people coming in and asking for them. So they farmed it out to the Department of Justice, which now has the office of the Pardon Attorney.

Nick Capodice: [00:16:41] Real quick, the Pardon Attorney is an office in the Justice Department that basically reads through all the pardon requests and makes recommendations for the president, but the president is the only one who can make the final decisions and do the actual pardoning.

Brian Kalt: [00:16:56] And so most pardons, 99% of the time, it's someone that no one's ever heard of. They go through the office of the pardon attorney. They have a set of criteria that are pretty strict. It's for people who have already served their sentence. They show remorse. They're deserving in some way. That is 99%. But the ones that get 99% of the publicity are the ones that don't go through that process, because that's just for the president's convenience. He can still pardon whoever he wants, and he doesn't have to follow those criteria, those limitations. So some of the more important ones were after the Civil War, there was a lot of clemency granted to former Confederates. We had the Vietnam era draft evader, amnesty presidents Ford and Carter did a lot with that.

Archival - Ford: [00:17:47] I announced my intention to give these young people a chance to earn their return to the mainstream of American society so that they can, if they choose, contribute, even though belatedly.

Brian Kalt: [00:18:02] More recently, we've had the controversial ones with George H.W. Bush pardoning the Iran-Contra defendants. We had Bill Clinton pardoning Marc Rich, his own brother.

Archival Congressional Hearing: [00:18:14] A few weeks ago, on his last day in office, President Clinton pardoned 140 people. Some of these pardons were probably meritorious. Others.

Nick Capodice: [00:18:25] We think we're not. President Obama granted clemency to over 1900 people, which was more than triple his predecessors, going all the way back to the 1980s.

Brian Kalt: [00:18:36] He did use it pretty aggressively to reduce the sentences for people convicted of drug crimes, for which, going forward, we had said, oh, these sentences are too high, let's reduce them. And so he sort of went back and did that retroactively.

Archival - Obama: [00:18:50] But I believe that at its heart, America is a nation of second chances, and I believe these folks deserve their second chance.

Nick Capodice: [00:19:02] And then there is Donald Trump. He granted clemency 237 times while in office. And he went about it a bit differently.

Brian Kalt: [00:19:10] There's a long tradition of questionable cronyism and the pardon process, but President Trump definitely used his power to go outside the office of the pardon attorney process to just sort of grant it at his own whim.

Archival - News Coverage: [00:19:28] President Trump is hardly the first to make a controversial pardon, but the number of high profile names who have ties to the president's inner circle, and who have made some pretty big donations to his campaign, is raising eyebrows here this morning.

Nick Capodice: [00:19:40] The president doesn't need to consult the pardon attorney, but most people who apply for pardons submit an application through that office. Trump was unique because he often pardoned people who appealed directly to him, and the majority of those people were his friends and political allies, including some folks who were convicted of crimes that had to do directly with their work for him.

Archival - News Coverage: [00:20:02] Let's tick through these Paul Manafort and Roger Stone, they were indicted by special counsel Robert Mueller, went to trial, convicted by juries of multiple crimes. Investigators say Manafort broke the cooperation agreement by lying to them. Roger Stone never cooperated after lying to Congress to protect the president and has never shown remorse. So now both men are being rewarded by the president for their loyalty.

Brian Kalt: [00:20:26] The president I think in a way, the president is not supposed to be like a king under our system, but the pardon power is the lowest kingly of the president's powers. Kings had the power to pardon. Presidents are limited in other ways, but when they're exercising the pardon power, it's really the most monarchical. So think about all the things that presidents try to do. They want legislation passed. Well, Congress has to pass it. They can only sign off on that. They can propose things, but they can't pass it on their own. They can nominate people to office, but the Senate has to sign off on that. They can negotiate treaties. The Senate has to sign off on that, too. Even things that they can do through purely executive action, they require members of the executive branch to implement those for them. So you can declare that you're going to build a wall using your just executive authority, but you can't just snap your fingers and make that happen. The pardon power is an exception to that. The pardon power doesn't go through. Congress doesn't require Senate confirmation. There's no judicial review, really. So someone's not going to be able to sue the president, say, oh, well, you you shouldn't have granted this pardon. No, he he gets the last word. Basically he does just snap his fingers and then that person walks out of prison.

Hannah McCarthy: [00:21:53] Don't a lot of these pardons happen right before a president leaves office?

Nick Capodice: [00:21:57] They do. Indeed. Some of the most controversial pardons in history came during the lame duck period, which is that sort of awkward period of time after a successor has been chosen. But the president hasn't left office yet. For example, when George H.W. Bush pardoned the Reagan administration officials who were charged in the Iran-Contra affair, and when Bill Clinton pardoned heiress turned bank robber Patty Hearst, and then when Bill Clinton pardoned his own brother, Roger Clinton, for drug charges, he'd already served a sentence for a decade earlier.

Hannah McCarthy: [00:22:28] And they're doing this during the lame duck period, basically because they're not worried about reelection.

Nick Capodice: [00:22:33] Yeah. Which is interesting because elections are a check on the pardoning power. But when a president is set to leave office, that check doesn't really exist.

Brian Kalt: [00:22:43] So the voters are the ones who, at the end of the day, are holding the president accountable, even if the president himself is not up for reelection, there's the possibility of punishing his chosen successor or his party president. Ford, when he pardoned President Nixon, probably lost the election in 1976 because of it. And that's the way it's supposed to be. That's the voters holding the president accountable. They didn't think he should have pardoned Nixon, so they threw him out of office.

Archival - Ford: [00:23:16] Finally, I feel that Richard Nixon and his loved ones have suffered enough and will continue to suffer no matter what I do, no matter what we, as a great and good nation can do together to make his goal of peace come true.

Hannah McCarthy: [00:23:41] Are there other layers of accountability like impeachment?

Nick Capodice: [00:23:45] Yeah, and a president cannot pardon an impeachment. However.

Brian Kalt: [00:23:51] The main check on it impeachment as we've seen, isn't really realistic. It's hard to get 67 votes when we're in a political situation where the parties are so polarized and they don't agree on anything, and anything that unites, one party is going to unite the other party on the other side.

Nick Capodice: [00:24:11] Of course, there is also the option of a constitutional amendment which, given that it requires two thirds of either Congress or the states to even propose an amendment and then ratification by three quarters of the states is pretty darn unlikely.

Hannah McCarthy: [00:24:24] What about the courts? Could the Supreme Court rule that a pardon is a violation of the Constitution?

Nick Capodice: [00:24:30] Honestly, there isn't any real precedent for that. The Supreme Court has also said that someone pardoned for a federal crime could also be charged in state court, and that a person has the right to refuse a pardon. But so far, Scotus has not commented on whether a president can pardon themselves.

Hannah McCarthy: [00:24:49] Does that mean that we're just back to the voters.

Brian Kalt: [00:24:52] In an odd sort of way, President Trump campaigning on the idea that he will pardon the January 6th convicts and defendants, that he would pardon himself if he wins the election. That is basically the voters saying, yeah, you know, we're okay with that. So you can argue about the wisdom or the legitimacy or the deservingness of these folks. For parties, you can say maybe doesn't have the power to pardon himself, but he definitely could pardon all those other people. And if the voters approve it, that is legitimizing it in a way that pardons on your last day on your way out of office aren't. So it's it's kind of in a weird way more appropriate.

Hannah McCarthy: [00:25:39] It seems like Brian is kind of saying that when it comes to pardoning power, it really is up to voters to decide whether they think a president has the right to pardon someone. It's a political question rather than a legal one, at least as of right now.

Nick Capodice: [00:25:59] Yeah. And Brian is a constitutional scholar. He deals in legal interpretation. And he made a point to separate the legal interpretation from the political one, even when it comes to his own opinions.

Brian Kalt: [00:26:13] So thinking about presidents pardoning criminals who were convicted of basically supporting them too aggressively as a policy matter, I have a problem with that. I don't personally support pardoning duly convicted January 6th defendants, but I don't deny that the president has the power to do that. I wouldn't say that the pardons are invalid. I would say that it's a political question and people should respond politically to that.

Nick Capodice: [00:26:47] And on that note, I do want to take a second to talk about precedent. Whatever future presidents decide to do with their pardoning power will inform what subsequent future presidents do. Which brings us back to the first thing Brian said at the beginning of the show. Do you think the president should be able to pardon themselves, if you like that precedent? And is the answer the same if you don't?

Hannah McCarthy: [00:27:26] This episode was produced by Christina Phillips with help from me, Hannah McCarthy. Nick Capodice is my co-host and Rebecca Lavoie is our executive producer. Music in this episode by Chris Zabriskie. El Flaco Collective Ooh-ah. Ceza, Danial. Fadel, Matt large, rambutan, Zoro, Spring Gang, Volante, Mind Me, Hara, Noda and Apollo. You can get more at Civics 101. Yes it's true, we've got a website civics101podcast.org. And there you can find all of the rest of our episodes, transcripts, links to stuff, a means to contact us, and the place to sign up for our truly delightful newsletter. That's Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

How Should We Govern the Algorithm?

Machine learning is being used in police precincts, schools, courts and elsewhere across the country to help us make decisions. Using data about us, algorithms can do almost instantly what it would take human beings both time and money to do.  Cheaper, faster, more efficient and potentially more accurate -- but should we be doing it? How should we be using it? And what about our privacy and our rights?

Aziz Huq,  Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School, is our guide to the new world order.

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Transcript

Hannah McCarthy: [00:00:02] Civics 101. It's Hannah here.

Nick Capodice: [00:00:04] It's Nick here.

Hannah McCarthy: [00:00:05] And for now at least, you are listening to our actual human voices and not the machine that learned how to sound like us. For now.

Nick Capodice: [00:00:15] Hannah, that's too scary.

Hannah McCarthy: [00:00:18] Nick. We are one predictive algorithm from being out of a job, my friend.

Nick Capodice: [00:00:23] Well, I'd like to see a machine engage in the kind of chaos I'm capable of. Mccarthy. You think a machine could [00:00:30] sing the score of The Music Man in a Scottish accent?

Hannah McCarthy: [00:00:34] You might just see the day.

Nick Capodice: [00:00:36] Oh, my friends, how can any pool table ever hope to compete with a gold trombone?

Hannah McCarthy: [00:00:40] All right, so today we are asking what the machines are up to and why that matters in America.

[00:00:48]

News Archival: [00:00:52] Artificial intelligence is now everywhere from schools to work. But now the highest court in the land is suggesting it could play a role [00:01:00] even in our criminal justice system.

News Archival: [00:01:01] Board of Police Commissioners is weighing in on the controversial facial recognition software at the center of a recent lawsuit.

News Archival: [00:01:07] A number of software programs used in hospitals across the country are powered by algorithms with racial biases.

News Archival: [00:01:14] England, Wales and Northern Ireland have all announced that A level and GCSE results will now be based on teacher assessments, rather than grades generated by computer modeling.

News Archival: [00:01:24] Employers are then using AI software to analyze candidates facial expressions in their. In their recorded [00:01:30] answers. A candidate who looks off up into the distance might have a propensity to lie, or somebody who smiles a lot during an interview might be somebody who'd be good in a customer facing.

[00:01:40] Role and computer.

Aziz Huq: [00:01:49] My interest in AI was sparked by my work as a lawyer pro bono for the ACLU of Illinois.

Hannah McCarthy: [00:01:58] This is a Zies Hucke professor [00:02:00] of law at the University of Chicago School of Law. We have had him on the show before. He knows a lot. Aziz was working on a case about stop and frisk in Chicago, and.

Nick Capodice: [00:02:12] It's a turn most people know, I think. But just in case, stop and frisk is when a cop stops you for questioning and pats you down. It's super controversial for a lot of reasons.

Hannah McCarthy: [00:02:22] Primarily because it tends to disproportionately target Black and Latino people. And in Chicago, the city was using a machine learning [00:02:30] tool, which, by the way, is a distinction that Aziz makes. It's basically a subset of AI. And this tool was a strategic subjects list that a computer came up with based on data about welfare and criminal behavior. The list essentially predicted who should be stopped.

Aziz Huq: [00:02:49] And digging into that tool, what roughly can be called AI. And it's important to note that that terms [00:03:00] pretty vague and different people mean different things by it. But what roughly could be called I was starting to be used in criminal justice, and that led me to thinking about how it gets used by government and how it's regulated.

Nick Capodice: [00:03:16] Okay, it's my understanding, Hannah, that the answer is it's not not really regulated at all, at least not a lot. So how is the law meeting the digital road?

Aziz Huq: [00:03:27] I think that it's useful to answer your question in two parts. [00:03:30] What is it that we're seeing being adopted in terms of technologies? And then second to ask, well, how is the technology that's being adopted putting strain on the ways that people, including lawyers and judges, have traditionally understood individual rights?

Hannah McCarthy: [00:03:50] Worth noting, Nick, that when we talk about AI, we are not talking about some supercomputer that is eerily person like and about to become the secret shadow [00:04:00] governor of the United States of AI.

Nick Capodice: [00:04:03] So I know this comes up more than it maybe should. And I know the Precogs aren't machines.

Hannah McCarthy: [00:04:09] Okay, now I'm gonna stop you right there. The answer is that we are not talking about Minority Report. As of right now. The future is not. Three mega psychics lying in goop shouting premonitions at the government.

Minority Report: [00:04:20] I'm sure you all understand the legalistic drawback to Pre-crime methodology. Here we go again. Look, I'm not with the ACLU on this, Jeff, but let's not kid ourselves. We arresting individuals who have broken no [00:04:30] law. But they will. The commission of the crime.

Minority Report: [00:04:32] Itself is absolute metaphysics. The precogs see the future, and they're never wrong.

Minority Report: [00:04:35] But it's not the future if you stop it. Isn't that a fundamental paradox? Yes it is. You're talking about predetermination, which happens all the time.

Nick Capodice: [00:04:44] Has anybody else seen that movie or is it just us?

Hannah McCarthy: [00:04:47] I mean, it's it's a Spielberg movie, so.

Nick Capodice: [00:04:50] Okay. Fair point. Uh, based on a Philip K Dick novel, by the way, did you know that he's the sci fi guy who was always warning [00:05:00] us about authoritarian government and its threat to autonomy?

Hannah McCarthy: [00:05:03] Talk about a precog.

Aziz Huq: [00:05:14] Um, the technology that's being adopted is not, uh, what's sometimes called general AI. It's not, uh, some multi-purpose, very, very capable program that responds in human type ways. More broadly, [00:05:30] what we're seeing adopt being adopted are machine learning tools. These are, to be sure, very, very complex algorithms trained upon big pools of data that essentially solve prediction problems. They essentially take one set of data and say, given what we know about the world and triangulating that with what we know about this person, we think X or Y is likely to be the case. So these are these are prediction tools.

Nick Capodice: [00:05:58] Prediction tools sound kind of out of [00:06:00] place in the context of government and law enforcement because, I mean, predicting how people are going to act and making decisions on that instead of making decisions based on how they are actually acting or have been acting okay.

Hannah McCarthy: [00:06:14] In machine learning's defense, though, this is a huge part of what the government already does. It says based on current and past events, this is what we think the future will be. And so here are the laws that we're going to pass and the policies we're going to engage in, and [00:06:30] the things we're going to provide or deny in anticipation of that. Also, Nick, most of us already interact with prediction algorithms all the time.

Aziz Huq: [00:06:41] They're encountered by everybody on a day to day basis who interacts with online retailers, who offer recommendations, who interacts with platforms online, where there are recommendations of things to read or friends to contact, etc..

Nick Capodice: [00:06:57] Like Instagram, which someone [00:07:00] in this room maybe seems to open a lot.

Hannah McCarthy: [00:07:04] Too bad we can't predict whom. Um, too.

Nick Capodice: [00:07:07] Bad, so sad.

Hannah McCarthy: [00:07:09] But yeah, like Instagram and the images, content creators and most importantly ads. It feeds you based on all of the data it collects on you, which is a lot of data.

Nick Capodice: [00:07:21] Yeah, but it's also like how Netflix knows what movies or shows to recommend.

Hannah McCarthy: [00:07:26] Yes. And it's also like Facebook. And it's also [00:07:30] like TikTok. They know where we are, they know what we like and they are selling us something. And by the way, they are also selling us, as in our data, to other people. But anyway, the point is, predictive algorithms are already a part of our lives. It's just different when it's used by the government.

Aziz Huq: [00:07:51] The reason that these tools, when they're used by the state in particular, pose challenges, [00:08:00] is that many important rights that I think most Americans would take for granted have at their bottom a model of human behavior on the side of the state. And when you move from the frontline actor being a human to a frontline actor being a machine that can introduce a whole cluster of [00:08:30] difficulties in. Figuring out whether the right has been violated and figuring out what kind of interests are really being protected or not protected by the right.

Hannah McCarthy: [00:08:46] In other words, our rights are about, enforced by, violated by, etc. human behavior. So what happens when you take the quote unquote frontline human and replace it with a frontline machine? [00:09:00]

Aziz Huq: [00:09:00] The adoption of these tools scrambles the ordinary logic of constitutional law. So the first is, uh, in the context of deciding whether to grant or deny people bail, it is increasingly common for state courts to use a prediction tool.

Hannah McCarthy: [00:09:22] This tool predicts whether or not someone is likely to commit an act of violence while they are awaiting trial, based on a set of data [00:09:30] about people who have or have not committed violence while awaiting trial.

Aziz Huq: [00:09:39] The tool is offering a prediction in the sense that the thing itself hasn't happened. That data has many characteristics about each of those people, and the art of the algorithm is building a mathematical model that links traits to outcomes in the historic data. [00:10:00] Once that model, linking traits to outcomes using historical data is built, it is ported over and applied to a new criminal defendant.

Nick Capodice: [00:10:10] I just want to make sure I understand this. Data points that apply to people who have committed violence are applied to people to decide whether they will commit violence in the future, and then the state makes a decision based on that.

Hannah McCarthy: [00:10:24] Yeah, it's done around the country and was scrutinized in Wisconsin in particular. The claim [00:10:30] against the state was a due process. One, essentially, if a judge relies on this tool first that is inconsistent with due process.

News Archival: [00:10:39] Is this minority report?

News Archival: [00:10:41] That's a great question.

News Archival: [00:10:42] Lynette McNeely is a member of the Elmhurst Chaney Advocacy Board, which worries the state relies on a software program it doesn't fully understand.

News Archival: [00:10:50] We don't know what it's considering.

News Archival: [00:10:52] It's called Compas, and it's owned by a private company. So its calculations to assess risk are secret. But the questionnaire it uses [00:11:00] as the basis of that calculus includes questions like, did a parent ever have a drug or alcohol problem? How often do you have trouble paying bills? How often have you moved in the last 12 months? The questionnaire never asks a defendant's race, but McNeely worries it has a racial impact.

News Archival: [00:11:16] Where they live or other people who've lived in that area and what they've done. I mean, is that being considered as part of my risk assessment?

Aziz Huq: [00:11:24] And the Wisconsin Supreme Court said it's fine for the judge to rely on this tool, [00:11:30] provided that the tool, the interface has a warning that says, no, this is just a recommendation. You've got to use your own judgment.

Hannah McCarthy: [00:11:38] The Wisconsin Supreme Court says this tool is fine as long as you then apply your human judgment. But if you have already seen what the computer has to say, what does that do to your human judgment?

Nick Capodice: [00:11:54] Does the algorithm suggestion shift what a judge might decide?

Aziz Huq: [00:11:58] There's a debate about whether [00:12:00] if you give a warning like that, the judge is actually going to reflect and make a decision based upon their impressions as well as the data before them, or whether there is what social scientists call automation bias, where the judge is so heavily prompted by the machine that, in effect, what's happening is defendants are being detained or not detained based upon the machine prediction.

Hannah McCarthy: [00:12:29] Now, there [00:12:30] are a whole bunch of implications when it comes to the fairness of this kind of algorithm as well, especially when it comes to the balance between white and black defendants and how they're classified. The people who created it assure everyone that it is mathematically fair. But ProPublica looked into it and realized that black defendants were treated more harshly by the courts. And that has to do with how many black versus white defendants are predicted to be a risk by the algorithm. [00:13:00]

Nick Capodice: [00:13:00] So I might be making a leap here, but does this mean that AI has the potential to lead to equal protection violations?

Hannah McCarthy: [00:13:08] That's a pretty reasonable concern. The issue there is that equal protections claims are notoriously difficult to prove in court. Humans have been violating that clause for as long as it has existed. An AI is made by humans. It has been shown to have both a race and gender issue, in part because it tends to be made fed data by [00:13:30] and tested on white men, and in part because. Asking people based on data alone will result in racial bias, because the world itself is racially biased in terms of access to wealth and health and so many other measures of life. But let me give you another example.

Aziz Huq: [00:13:48] The second example is is a lot simpler, but it nicely brings up both a different sense of the word prediction and a different way in which these dynamics unfold in terms [00:14:00] of institutions. One of the things that has happened since the overruling of Roe v Wade is that there is increased activity on the part of states that want to restrict abortion, are attempting to regulate childbearing, and in some instances, impose criminal penalties on the people who are pregnant and who may be seeking to end the pregnancy. And one way [00:14:30] in which that has played out impinges upon what's generally understood as a right to privacy, which is I have certain information. I'm it's up to me to decide whether to give that information up or not. I have a certain sphere that involves my body and my house that the state can't set right. Ordinarily, those words shield a person who is pregnant from revealing that fact to the state.

Nick Capodice: [00:14:58] Wait, is pregnancy not [00:15:00] private information?

Hannah McCarthy: [00:15:02] Well, okay. Your employer, for example, cannot ask if you are pregnant and it would definitely be a legal issue if someone without a search warrant went through your trash, or hacked into your medical records or your email to try and determine if you were pregnant. But the thing is, machines don't need to do that in order to figure out who is probably pregnant.

Aziz Huq: [00:15:29] About [00:15:30] 10 or 15 years ago, the retailer target got into trouble because they were using a predictive algorithm on their consumer data, their customer data that identified people who they predicted, customers who they predicted were pregnant, and sending them coupons for prenatal vitamins and the like. And they sent this with respect to a person who is the father of a teenager. The father protests loudly that there's nobody pregnant in our family. [00:16:00] Predictably, the next day the daughter turns around and says, well, actually, I'm pregnant.

Nick Capodice: [00:16:05] So the machine got it right somehow, and it had real world repercussions.

Hannah McCarthy: [00:16:10] Yeah, the New York Times looked into it, and it turns out that this dad marched into target and was like, you're sending my daughter ads and coupons for maternity clothing and nursery furniture and things like that. Are you trying to encourage her to get pregnant? And the manager was like, no, sorry. So sorry about that. And then the manager [00:16:30] called to apologize again, and that dad picks up the phone and goes, actually, my daughter's due in August. I owe you an apology.

Nick Capodice: [00:16:39] Wait, wait. Hang on. Does he owe target an apology? Though they were predicting that his daughter was pregnant using an algorithm and marketing based on that likelihood, even though she never actually asked for it. And isn't it a violation of privacy to tip someone's family off, [00:17:00] inadvertently or not, when they might not have been planning on revealing that information?

Hannah McCarthy: [00:17:05] Isn't that an interesting question? Because, see, the thing is that target says they were not breaking any privacy laws, but they do acknowledge they were making people uncomfortable to fix it. They started advertising wineglasses, you know, like next to cribs. So it didn't necessarily mean like they were targeting a pregnant person, but they were still sending the mailer [00:17:30] to people who were predicted to be pregnant. It turns out those women would use the coupons, as long as it didn't seem like they were being spied on.

Nick Capodice: [00:17:40] But they were essentially being spied on. And that's legal.

Hannah McCarthy: [00:17:47] All right. So I mentioned that your employer cannot ask you if you're pregnant. They also cannot discriminate against you because of a pregnancy. Now that is because of protections in title seven of the Civil Rights Act and other [00:18:00] more specific federal and state laws. These privacy related laws also apply to other protected demographics.

Nick Capodice: [00:18:08] Such as race, sexual orientation, gender identity, religious affiliation, stuff like that. Yeah.

Hannah McCarthy: [00:18:15] Personal data about you, right? There are lots of federal laws that pertain to those data points. Hipaa, the Health Insurance Portability and Accountability Act, for example, is the thing that allows doctors to say and mean that you can tell them [00:18:30] anything about your physical and mental health, and they are not allowed to tell anyone else, and you're not allowed to be discriminated against because of that data. But major, major. But, Nick, these federal laws mostly do not cover consumer data.

Nick Capodice: [00:18:48] Like if I am buying prenatal vitamins, for example.

Hannah McCarthy: [00:18:52] Or even trickier, whether you're buying unscented lotion and big purses that could potentially double as a diaper bag which, by the way, were [00:19:00] two of the metrics that target checked when it came to predicting who was pregnant. And to be clear, algorithms are used to market certain brands or products all the time. It just becomes a clearer issue when that marketing reveals something private about you. Only 12 states in the US have comprehensive data protection laws, and even within those laws, companies are still allowed to collect and sell your data. Now they can sell that data to other companies. Sure, that's one thing. [00:19:30] It's more ads, basically, right? But they can also sell that data to someone else.

Aziz Huq: [00:19:36] Exactly. That same tool is available to states, but it's available not directly, but through third party firms called data brokers. Indeed, in the wake of the Dobbs opinion, there was a spate of data brokers that started offering lists of people who had [00:20:00] engaged in behavior that made it likely that they were both pregnant and seeking to terminate a pregnancy in states where that was now unlawful.

Nick Capodice: [00:20:10] So I guess the potential here is that those states could use that data to track people who may be attempting to obtain an abortion in a state where that abortion is not legal.

Hannah McCarthy: [00:20:21] Which is something states are already doing. In a way, this would just make it a lot easier to know whom to target. So why does [00:20:30] this example matter when it comes to AI and states generally?

Aziz Huq: [00:20:34] And now that's a useful example for for our purposes for I think three reasons. The first is that here we have a right of privacy over information that's being end run through what we might call AI. That's the first thing I think that's interesting.

Hannah McCarthy: [00:20:52] The most recent Pew Research poll on Americans and data privacy, this is from 2019, tells us that nearly two [00:21:00] thirds of Americans polled understand little to nothing about the privacy laws protecting their data. And even though a lot of us agree to privacy notices on apps and websites, not all of us actually read it. And even if we do read it, do we understand it?

Nick Capodice: [00:21:19] Speaking purely anecdotally and just for myself, I'm going to go with no same.

Hannah McCarthy: [00:21:25] And by the way, these notices that we agree to, they're basically [00:21:30] us giving permission for companies to share our data. They are not informing us of our rights or anything like that. So the reason I point this out is that our rights extend only as far as they are enforced, and not knowing what your rights are. Now, that is a really good way for them to be violated without repercussion.

Aziz Huq: [00:21:52] The second thing that's interesting is, is notice that it's a different kind of prediction. It's not a prediction about what's happening in [00:22:00] the future. It's what a social scientist would call an out-of-sample prediction. I know X and Y about this person. I don't know Z, but given that I know x and y, I can make a pretty good guess at Z, right? Z is true now. It's not something that happens in the future. That's a kind of prediction, and it might be a really important kind of prediction as the abortion criminalization context suggests.

Nick Capodice: [00:22:25] So basically, there's a difference between predicting what is true right now and predicting what [00:22:30] might be true in the future. Yeah.

Hannah McCarthy: [00:22:31] So let's say that your state has a law that says if you own a yellow hat, you must wear that yellow hat at all times. You're not allowed to take it off. And let's say your state has access. To an algorithm that can basically predict for the state who has a yellow hat right now. Now, you could see possibly that the state could use the information about who has a yellow hat to make sure that they are always wearing their yellow [00:23:00] hats and punish them if they take those hats off. An algorithm that simply predicted who might acquire a yellow hat that's less efficient, that isn't as useful. It's not telling the state what is going on right now. So there are certain applications for algorithms that predict what's going on right now, and certain applications for algorithms that predict what might happen in the future, like in those bail hearings.

Aziz Huq: [00:23:25] The third way in which I think this is telling what we see here, is the state [00:23:30] relying or intertwining itself with firms, with actors in the private sector to achieve a goal that we think of as being distinctively something the state does punish people. So one of the things that I think we're seeing, and I think that's not fully appreciated, is the advent of AI in its sheer usefulness, is leading to [00:24:00] new ways of braiding together public and private behavior.

Nick Capodice: [00:24:05] Which I guess we already do a bit right. Like we contract third parties for military and defense stuff all the time.

Hannah McCarthy: [00:24:13] That's true.

Nick Capodice: [00:24:13] We do. So looking to outside tech and services. That's typical for our government. It's just that this AI is more likely to interact with us. You know, you and me and other quote unquote normal people on a daily basis. [00:24:30]

Hannah McCarthy: [00:24:30] I mean, normal is a stretch. But yeah, basic people like we folk.

Nick Capodice: [00:24:34] So how sure are we that this is something we actually need to worry about? Hannah. Is it really imminent?

Aziz Huq: [00:24:42] The first thing is that I is is being adopted in narrow but important sectors of the private economy and is widely understood to have scale related efficiencies in those areas. Second, either [00:25:00] the companies that are creating I or subsidiaries or competitors are serial contractors with the government and are aggressively selling, uh, I tools. This is particularly true in the policing and in the military context. And then I think the third factor is there's a couple of my examples have pointed to one of the reasons that I [00:25:30] is useful from the perspective of the governmental actor is that it dramatically lowers the cost.

Hannah McCarthy: [00:25:42] For example, if you can get a week's worth of someone's location data from their cell phone provider, that is way cheaper than physically trailing them for a week, the state can do way more with way less. Also, last thing is, he's mentioned other countries [00:26:00] are doing it.

Aziz Huq: [00:26:01] The other thing that I would just flag is our geopolitical moment, which is a moment in which there is perceived and some actual conflict with China in particular, and where the relative military power of the United States and China in part depends upon technologies. So in that world where I is dual use, where its adoption is going to be driven [00:26:30] first in the military sector, then we'll see spillovers in other sectors. Again, it's a reason for thinking that it's really unlikely that AI is going to linger on the sidelines.

Nick Capodice: [00:26:42] Okay, so the private sector's already doing it. They're selling it to the government aggressively. It's cheaper and faster and other countries are doing it. And we've got to keep up with the Joneses. So if it's happening, Hannah, how are we dealing with the legal implications? [00:27:00] Has the Supreme Court said, whoa there. We need to adjust our rules here.

Hannah McCarthy: [00:27:05] We're going to talk about that after the break.

Nick Capodice: [00:27:08] But before we do the break, how's this for data collection? In exchange for your email, we'll send you a newsletter every other week so that you can learn that much more about American democracy. Or sometimes it's just Hannah ranting about a movie or a TV show or a long buried but albeit interesting moment from her childhood. And that's okay too. I kind of like that better, to be honest. We promise [00:27:30] to never, ever sell your data. We'll just send you the fun newsletter. And yes, the occasional fundraising plea, because that is how we keep the lights on. Okay. That's it.

Hannah McCarthy: [00:27:55] We're back. You're listening to Civics 101 and Hannah.

Nick Capodice: [00:27:58] Just before the break, you promised we'd [00:28:00] talk about what courts are doing when it comes to Westworld getting a little closer to being reality. So how are the courts dealing with all this new tech?

Hannah McCarthy: [00:28:09] Here's Aziz Huq again, professor at the University of Chicago School of Law.

Aziz Huq: [00:28:13] In the United States. We have federal courts, at least, that are historically minded and are generally, but not always, resistant to recognize and account for new technologies. I think it would not be accurate to say that courts [00:28:30] don't ever account for new technologies in the context of privacy. Under the Fourth Amendment, the court has, in piecemeal and small but not inconsequential ways, expanded the notion of what counts as an interference by the state in line with changing technologies.

Hannah McCarthy: [00:28:52] So basically, technologies have been drastically changing the legal landscape in the United States for two centuries. [00:29:00] But the courts themselves have not always, shall we say, kept up with the times. On occasion, however, they'll look at some development and say to themselves, okay, whoa, this actually changes how things work and we need to make a decision about it.

Aziz Huq: [00:29:18] And so I think the best example of this is a case from I think it was 2012 called Carpenter, in which the court said, well, a person is searched by the government [00:29:30] when the government asks a cell phone provider for a week long record of their locational data, now under the traditional long standing Fourth Amendment doctrine that would not have counted as a search regulated by the Fourth Amendment and the court, it really interestingly for a court that generally styles itself as being small c conservative and originalist, says, well, but in practice this [00:30:00] is the same as as following the person for a week.

Nick Capodice: [00:30:03] Should just jump in here quickly and affirm that, yes, over the course of its long history, the US court system has been predominantly conservative. But anyway, okay, the government says give us the location data of this person's cell phone for the past week. And the court says, well, otherwise in the before times, you could really only get that data by following that person. Yeah.

Hannah McCarthy: [00:30:29] And in this case, [00:30:30] Carpenter v United States, the Supreme Court ruled that police must obtain a search warrant to access these records. Following someone, by the way, does not require that warrant, so long as that person is in plain view, like walking or driving in public.

Aziz Huq: [00:30:46] And we should be more worried about this because it's so much cheaper. To acquire the locational data than it is to set a team of agents on a person and to follow them for a week. The fact [00:31:00] you can get efficiencies is marvelous if you're McKinsey. It's arguably deeply worrying if you're a right holder, confronted by a state that's able to leverage the scale effects of AI.

Nick Capodice: [00:31:14] Mckinsey, one.

Hannah McCarthy: [00:31:15] Of the three largest management consultancies in the.

Nick Capodice: [00:31:18] World. What does it mean when they say they're a management consultancy?

Hannah McCarthy: [00:31:22] Yeah, they take a good look at their clients. And by clients I mean giant corporations and whole countries. And they tell them how to spend their [00:31:30] money and how to operate. So like using AI to look at huge amounts of data about consumers or maybe the population of a country that is potentially very useful to McKinsey. But we are not McKinsey, right? We are not trying to figure out how to better help the authoritarian regime get its stuff done.

Nick Capodice: [00:31:52] Wait. Like for real?

Hannah McCarthy: [00:31:53] Oh yeah. For real. That thing we are worried about here is our rights.

Nick Capodice: [00:31:57] And are people saying to the courts, hey, [00:32:00] this AI over here violated my rights.

Hannah McCarthy: [00:32:03] Well, they're trying, but so far it's been pretty piecemeal.

Aziz Huq: [00:32:07] There was a state in which disability benefits were being allocated on the basis of predictions of fraud or not, and that was challenged in Michigan. There was a lawsuit challenging their unemployment insurance allocation system called Midas, which turned out to have an extraordinarily high rate of errors. There was a challenge in Houston [00:32:30] to the use of a machine learning prediction tool for evaluating teachers on the basis of the likelihood of the prospect that teachers were improving students standardized test performance. There's a series of cases that are before the Supreme Court now, which are not quite on point, but are in different ways about whether and how the state can regulate the recommender and content moderation tools used by social media platforms. So that's [00:33:00] not a suit challenging what the state can do. It suits challenging the state's power here in Florida and Texas's power in particular, to regulate how private actors use machine learning tools in constructing a public sphere.

Hannah McCarthy: [00:33:17] And of course, we already heard about the case with the bail question. Was that algorithm ordered to be better regulated? No. The court said the algorithm was fine as long as the people [00:33:30] using it apply their own judgment.

Nick Capodice: [00:33:32] Yeah, but a person's judgment isn't exactly a slam dunk all the time.

Hannah McCarthy: [00:33:36] Yeah. That brings me to this very interesting example.

Aziz Huq: [00:33:41] There's a well-known case in which police officers in, I think it was New York City, had a piece of footage from a store camera, looked at the footage, said, hey, we think this guy looks like an actor. And they said, the person looks like ex.

Hannah McCarthy: [00:33:57] Woody Harrelson, to be exact.

Aziz Huq: [00:33:59] They call incorrect [00:34:00] matches.

News Archival: [00:34:01] Cops say a suspect stole beer from a CVS in New York City, and when they ran his face through their database, nobody popped up as a match. But a detective noticed the guy kind of looked like actor Woody Harrelson. So they tried running Harrelson's picture through their facial recognition system, and they got a few matches, and it even led to an arrest. Now, while the Georgetown University report shows that facial recognition has helped the NYPD crack about 2900 cases in more than five years, it also points to the possibility for [00:34:30] mistakes, saying using wrong data increases room for error. The NYPD also uses a technique which involves replacing facial Woody Harrelson.

Hannah McCarthy: [00:34:38] The cops were using facial recognition software to track someone down who stole some beer. The image in the security footage was too pixelated. No problem, the cop said. We think that this guy looks like Woody Harrelson, so instead of using this hard to see image, we will just run the software to [00:35:00] match people to Woody Harrelson.

Nick Capodice: [00:35:04] Was Woody really stealing that beer? Hannah.

Hannah McCarthy: [00:35:06] No. And in fact, the cops did make an arrest using one of the matches they got out of this machine, but they also received other incorrect matches of people who looked like Woody Harrelson.

Aziz Huq: [00:35:19] That is not a problem about facial recognition technologies, technical capacity or its specification. [00:35:30] It's a problem about how it's used. And we could multiply the flawed ways in which a technology was used, or catalog of flawed ways is probably limited only by our imagination about how stupid people can be.

Nick Capodice: [00:35:46] So I take it we need really good broad rules for people. Using this technology because people are going to do foolish things, and we need to anticipate that as best we can.

Hannah McCarthy: [00:35:58] Yeah, we're not just not [00:36:00] angels, Nick. We're also really not geniuses.

Nick Capodice: [00:36:04] Hey, Hannah.

Hannah McCarthy: [00:36:05] Yannick.

Nick Capodice: [00:36:07] Is anything sacred?

Hannah McCarthy: [00:36:10] Tell me about.

Nick Capodice: [00:36:10] It. I know, but but I do mean that in this case, like, is anything, any decision, something that should not come across machine eyes or whatever. Machine analysis.

Hannah McCarthy: [00:36:23] Well, Aziz did make the point that machine decision making is less variable than human judgment [00:36:30] and probably going to be more accurate. But that doesn't mean that we are going to always want a machine's help.

Aziz Huq: [00:36:37] You can imagine a world in which humans are good at making some subset of judgments, and those subset of judgments are really important. I don't know whether this is true in the world, but you can imagine. Um, you have a violence prediction tool. The violence prediction tool works really well for 90% of the population, but it turns out to work really badly, let's say for women [00:37:00] who are in situations of domestic violence. Right. And you might say, well, look, you know, because that tool has this blind spot and the blind spot is really important and we can't section off the blind spot because we don't know in advance who those people are going to be. We don't use the tool at all. So there might be there might be kind of practical reasons why you wouldn't use a tool because of something about the nature or the distribution of the errors it makes.

Nick Capodice: [00:37:26] Can I just ask one more human version of this question? [00:37:30]

Hannah McCarthy: [00:37:30] Yeah, go for it.

Nick Capodice: [00:37:32] Are there any decisions, regardless of how much more accurately they might be assessed by machines that should only be left up to human minds?

Aziz Huq: [00:37:45] The other thing is, is that maybe there are some decisions that you just never want to be made by a machine. Judges will often say, well, there are just decisions about what counts as the law and what doesn't count as the law, and that those are necessarily human decisions. [00:38:00]

Nick Capodice: [00:38:00] The Supreme Court would most definitely assert that claim.

Hannah McCarthy: [00:38:03] Yeah, but Aziz actually pushed this question a little. He basically said, you know, that he understands what they mean there when they say that deciding what is law is necessarily human.

Aziz Huq: [00:38:17] However, I recognize the force of those arguments, but I have a really hard time figuring out what I think of them, and here's why. One of the early conversations I had about [00:38:30] when do you have a right to have a human making decisions was with a colleague who's a woman who's from a non-Western background. And the colleague said to me, you know, while 30 years ago the person I would have married would have been selected by my parents and through through matchmakers. And today matchmaking happens through an algorithm, it happens through Bumble or whatever. Uh oh my gosh, I'm [00:39:00] so glad that we've moved from a world of human matchmakers to machine matchmakers, because that gives me a kind of agency that I didn't have before. I can see that. And I understand that there are arguments against not Bumble in particular, but online dating.

Hannah McCarthy: [00:39:18] Aziz makes the point that picking a life partner is one of the most profoundly intimate decisions that you can make. And the first couple of steps finding, connecting with, and interacting [00:39:30] with that person is often left up to a machine. Now, the whole process, but the screening process.

Aziz Huq: [00:39:40] And if you're willing to trust the question of who will be your intimate life partner to a predictive machine, what exactly is the core of decision making that you cannot trust to a machine? I give the example because I think it illustrates to me how hard the question is, but I genuinely [00:40:00] do not know the answer. And it's not a question that you kind of it's a moral question. It's not an empirical question. It's a question where I think I continue to think I have some of the resources necessary to think it through, but I don't have all of it, and I don't really know what the answer is.

Nick Capodice: [00:40:20] A moral question about what? We're going to let machines decide who. All right, one [00:40:30] last question, Hannah. There are the one off court cases, the cops and Woody Harrelson's the administrators who want to do more with less. But is anybody actually taking in the bigger picture? Is the Constitution being interpreted anew for this new world order?

Aziz Huq: [00:40:50] I think we're seeing most of the important legal action occurring, not at the level of constitutions, but at the level of new statutes or similar [00:41:00] regulatory frameworks. The most crisp examples of those are in Europe, which has a pending what's called AI act. China actually has a really dense and interesting set of regulations that at once aims to shore up Communist Party control, but at the same time is genuinely focused and genuinely makes strides on issues such as the use of deepfakes, which I think is a [00:41:30] serious and gravely harmful phenomenon, and does so better than probably anything that you'll see in the United States in the near tum. So you have two regulatory models of regulation, neither of which are constitutional in Europe and in China. I think those are going to be more and more influential around the world. They'll kind of indirectly shape what Americans experience because many products are made for global markets.

Nick Capodice: [00:41:53] This comes back to the like the whole world doing it thing, right. Like like the whole world will be [00:42:00] trying to access similar or the same technologies. And so the companies making it will probably, I guess, make tech that works with Chinese restrictions or European restrictions, and we'll buy it too, though I will say the US sure does have a track record of having its own special version of stuff.

Hannah McCarthy: [00:42:21] Yeah, but it also has a track record of states stepping in where the federal government does not.

Aziz Huq: [00:42:27] Maybe states will start to fill in the [00:42:30] gap. Maybe in particular California. California has been very aggressive on data privacy. Interestingly, since you'd imagine that the presence of big data hungry firms in California would lead the state to air in the other direction. But California seems to be pretty aggressive as a regulatory state. But I expect we'll see more state level responses to these problems. I expect we'll see, for example, more efforts to push bans on [00:43:00] facial recognition technology. I think that we'll see efforts to introduce due process rights, rights to a human decision in certain contexts. I think that we'll see more and more efforts to allow people to control their own data, particularly biometric data. But we'll see a patchwork in the US, and we'll see these spillovers from Europe and from China, leading to a very complicated and uneven [00:43:30] pattern of legal protections.

Hannah McCarthy: [00:43:35] All right, one last thing I do want to add, because of course, we know here at Civics 101 that there is one super quick route to rule making that evades Congress entirely. In October 2023, President Joe Biden signed the executive order on the safe, secure and trustworthy development and use of artificial Intelligence. He established eight guiding principles for AI policy one. [00:44:00] It must be safe and secure. And this provision, by the way, promises to essentially label things as AI generated so the public knows when they're consuming AI. Two the government will promote responsible innovation, competition and collaboration because, hello, capitalism, it's not going anywhere. Three workers will be supported.

Nick Capodice: [00:44:23] Uhhuh. Okay.

Hannah McCarthy: [00:44:23] But even Biden wrote the words collective bargaining in that section, aka unions, which seems [00:44:30] pretty serious. He also says that I should not undermine rights, worsen job quality, encourage undue worker surveillance.

Nick Capodice: [00:44:40] Oh, man, that's that's kind of spooky.

Hannah McCarthy: [00:44:42] Uh, it should not lessen market competition, introduce new health and safety risks, or cause harmful labor force disruptions. Countries are still full of people, Nick, and people are constituents, and constituents are political power. So yeah, we got to think about people. All right. Four [00:45:00] AI policies have to be consistent with the Biden administration's dedication to equity and civil rights. Basically, I cannot be used to further denial of equal opportunity and justice. Five consumers who use and interact with AI need to be protected against fraud, bias, discrimination, and privacy violations.

Nick Capodice: [00:45:19] Yeah, honestly, that one seems like the one that could be the most pervasive. Hannah.

Hannah McCarthy: [00:45:23] Um uh six Biden doubles down despite AI, we need to protect privacy and [00:45:30] civil liberties. The government, this order says, will make sure that data gathering is legal essentially. Seven this one is so interesting as the government uses AI, which it will. It will hire and train people the right way to make sure that AI is safe and understood. And eight USA number one, go on. Biden said, quote, the federal government should lead the way to global societal, economic and technological progress as [00:46:00] the United States has in previous eras of disruptive innovation and change, unquote. To him, this means being ahead of the curve and promoting AI's regulation around the world.

Nick Capodice: [00:46:12] Just keep on spreading that democratic promise, I suppose.

Hannah McCarthy: [00:46:17] So yep. That's it. Of course, that's an executive order. And what's that thing about executive orders, Nick?

Nick Capodice: [00:46:26] They just go away when a new president doesn't want them.

Hannah McCarthy: [00:46:30] Bingo. [00:46:30] So stick around. We'll be here watching and waiting and telling you what the machines are doing and whether we are doing anything about it. This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Wave Saver, Christoffer Moe Ditlevsen, Yi Natiro, Christian Nanzell, William Benckert, Rolla [00:47:00] Coasta, Oomiee, Lexica, HiP CoLouR, Eight Bits and Quarter Roll. You can find everything. We are at our website civics101podcast.org. That's transcripts, all of our episodes, how to connect with us, everything. Civics 101 is a production of NHPR New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

What is Federalist 10?

Federalist 10 was one of the Federalist Papers, a collection of 85 essays that were published in New York to encourage ratification of the newly drafted Constitution. This essay is taught in classrooms across the country and often referred to as the most important. So what's it about?

Taking us through the ideas of faction, republicanism, and Madison's inability to predict Facebook are Jeffrey Rosen, President of the National Constitution Center,  Alison LaCroix, Professor of Law at the University of Chicago Law School, and our dear friend Ryan Werenka, AP Government and Politics teacher at Troy High School in Michigan. 

Click here to listen to our episode on the Federalist and Antifederalist Papers.

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Transcript

Nick Capodice: I just wanted to tell you I was talking to my sister and she asked, you know, hey, what episode are you working on? And I was like, I'm kind of working on this one about Federalist ten, you know? You know what that is? And she was like, um, I imagine it continues the thoughts espoused in Federalist nine.

Hannah McCarthy: I mean, that's not the worst guess.

Nick Capodice: Everyone in New York was like, man, I thought nine was going to be the last one. How many more of these are they going to do? 76 [00:00:30]? You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today, yes, we are talking about Federalist ten, the essay that is considered by many, not all, to be the most significant of the Federalist Papers.

Hannah McCarthy: Okay, so we've done an episode on the Federalist Papers and the Anti-Federalist papers. There's a link in the show notes for anyone who's curious. Can we just do a super quick summary of what these are? Absolutely.

Jeffrey Rosen: The [00:01:00] Federalist Papers were written to defend the ratification of the Constitution, the constitutions proposed in Philadelphia on September 17th, 1787. And then it comes time for the people to decide whether or not to ratify it.

Alison LaCroix: They were essays, newspaper pieces written by James Madison, Alexander Hamilton, and John Jay, and their purpose was to convince New York electors, New York delegates, and sort of the New York reading public more broadly to vote for Pro-constitution [00:01:30] delegates to the New York ratification convention.

Jeffrey Rosen: I'm Jeffrey Rosen, and I'm the president and CEO of the National Constitution Center.

Alison LaCroix: I'm Alison Lacroix, and I'm a professor of law at the University of Chicago.

Nick Capodice: The Constitution was proposed. It required nine of the 13 states to ratify it, for it to become the law of the land. And New York. New York was a big state. It was an influential state, and people weren't sure which way it was going to go.

Jeffrey Rosen: New York is a swing state. It [00:02:00] wasn't obvious that it was going to ratify the Constitution. It split between the Hamiltonian Federalists and Anti-Federalists led by Governor George Clinton. Aaron Burr is among those as well. So Hamilton has a really important job, which is to persuade the New York ratifying convention actually to ratify it. And unless he succeeds, the Constitution may not go into effect. They are op eds. They're they're they're thoughtful. They're they're definitely deliberative and deep defenses of the Constitution. [00:02:30] But Hamilton and Madison are writing to persuade, and that's what makes it so exciting to read The Federalist Papers.

Hannah McCarthy: So often on this show, we're talking about the intent of the framers, why they set things up the way they did. And these are 85 essays that do just that, which is why we recommend them heartily. Right. But what is so special about Federalist ten? Even before I had read The Federalist Papers, I'm pretty sure that I had heard that fed ten [00:03:00] was like the important one for some reason.

Nick Capodice: Yeah, of all the papers, it is the one most often included in middle school and high school syllabi. Not to mention it being on the list of required docs for AP gov. But before we jump into Federalist ten specifically, which was one of the 29 essays written by James Madison, Hamilton did the rest. John Jay did five. I want to quickly bring up some stuff about how we refer to the collection as a whole.

Alison LaCroix: You really see people starting to call the whole collection The Federalist [00:03:30] Papers. Around the middle of the 20th century, um, Clinton Rossiter was one of the editors of a very influential edition that got published then. So historians tend to call them The Federalist or The Federalist essays.

Hannah McCarthy: So we call them The Federalist Papers. But that's a relatively new phenomenon. Yeah.

Nick Capodice: In 1961, Clinton Rossiter, historian, published the collection and titled it The Federalist Papers. And the name Stuck and Why The Federalist Papers? So, yeah, the Federalist [00:04:00] Party officially hadn't started yet, but this name, Federalist, implied a coalition of people who supported ratification of the Constitution and generally generally supported a stronger federal government, as opposed to the states doing everything.

Alison LaCroix: So I think you had people in the broader public in the middle of the 20th century reading these and talking about them, and kind of an invigorated sense of interest in the essays or the papers as they were called. And then I think Federalist ten really kind [00:04:30] of captured where some political thinkers and sort of social scientists were, because it seemed like it was about what we would now call interest group pluralism.

Hannah McCarthy: What does Allison mean by interest group pluralism?

Nick Capodice: Well, pluralism is the idea that people with different opinions and of different backgrounds can all participate in a society together. And interest group pluralism is basically when you've got a bunch of people in a country, they all want different things, right. [00:05:00] And what's going to happen is people are going to get together with other people who want the same thing, and they're going to work together and debate and bargain as a group, an interest group, to make that thing happen. And this grouping up is what Federalist ten is all about. It's all about one magic word.

Hannah McCarthy: What's the magic word?

Jeffrey Rosen: The central warning of Federalist ten is the danger of faction faction [00:05:30] factions. Faction factions are what the framers most fear.

Nick Capodice: And to understand what they are, let's hear the words of the man who wrote the essay.

Jeffrey Rosen: This is James Madison in Federalist ten by a faction. I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion or of interest, adverse to [00:06:00] the rights of other citizens, or to the permanent and aggregate interests of the community.

Hannah McCarthy: All right, let me see if I can say that another way. Madison believes a faction is a group of people who have a shared interest, and that interest specifically violates the rights of other people or goes against the better good of the community.

Nick Capodice: That's a pretty darn good paraphrase, Hannah.

Hannah McCarthy: Just to double check here. Factions are not the same things as parties, [00:06:30]

Nick Capodice: Alison says no.

Alison LaCroix: I mean, he meant groups in society, but I don't think he meant the way. Again, in the modern era, we tend to think like, oh, factions. So that's Republicans and Democrats or that's people who live in cities or that's women or Southerners or, you know, African Americans. I think his notion was that they are sort of any group that, in his view, was. Is kind of splitting up the citizenry. [00:07:00]

Nick Capodice: However, we didn't have any political parties when we got started, but they did happen almost immediately. And pretty soon the Federalists are saying the Jeffersonian Republicans are a faction, and the Jeffersonians are saying, I know you are, but what am I? You guys are the faction.

Jeffrey Rosen: So there's a big dispute about whether or not parties are factions or not. And each side says the other guy is a faction. And that sets in motion this series of question about whether or not parties are good ways of aggregating [00:07:30] common interests and serving the good as a whole, or whether they represent, um, forms of faction. The Federalist paper doesn't answer those question, but it does tell us that whatever factions are there, the main threat to the Union. And what's so significant about Federalist ten is that at the end of their lives, all the main framers are concerned about whether or not the Republic will survive because they fear that factions may overtake the Union.

Hannah McCarthy: So if he wasn't talking about parties initially, [00:08:00] what kinds of groups did Madison think were splitting up the citizenry? What did he think would theoretically take over the union?

Jeffrey Rosen: Well, let's ask what what did the framers have in mind when they talked about factions and they had in mind something called Shays Rebellion? So just before the Constitutional Convention meets in western Massachusetts, armed mobs of debtors who can't pay their debts because the inflation that followed the Revolutionary [00:08:30] War are mobbing the courthouses and closing down the system of justice. And this vision of armed, violent mobs who are fighting the rule of law is so threatening to the framers that they determined to call the Constitution to avoid precisely that danger.

Hannah McCarthy: All right, Shays Rebellion, I know about this one. We talked about it in our Articles of Confederation episode. Since the articles created a very small federal government and left everything up to the [00:09:00] states to decide for themselves, some states made the themselves decision to not pay taxes, so there was no money to pay soldiers who had fought in the Revolutionary War. And the whole thing was just a real mess.

Nick Capodice: It certainly was.

Hannah McCarthy: And that fits Madison's notion of factions, because it was an armed mob shutting down the government. Shays and others feel it is in their best interest, but opposes the interests of the much larger community. Yeah, so this [00:09:30] essay is about factions, and it says that they are a problem. Does Madison think we can prevent them in any way?

Nick Capodice: Um, not really. No. Madison says that factions are, quote, sown in the nature of man, end quote. So they're going to happen. People are going to get together and try to make changes that benefit them. We are humans. We want things.

Hannah McCarthy: All right. So what do we do?

Nick Capodice: Well, Madison lists two remedies to the ailment of faction. And I'll read his words here. Quote the one by destroying [00:10:00] the liberty which is essential to its existence, the other by giving every citizen the same opinions, same passions, and the same interests.

Hannah McCarthy: That's not going to fly.

Nick Capodice: No, it certainly will not. But then he goes on to say, okay, I think we're going to have him. Nothing we can do. But you know what? Maybe, just maybe, that's not a problem.

Hannah McCarthy: Nick, why are you playing corporate inspo music under this?

Nick Capodice: Just maybe this system we're [00:10:30] making right here is kind of the only one that can handle factions. And this. This is why Federalist ten is so important. It outlines why the proposed democratic republic in which we now live just might outlast all the others. And I'm going to tell you why right after this break.

Hannah McCarthy: But before that break, I just want to remind our listeners that it is our podcast fundraiser right now, and you can support our endless quest to educate the American public. And that includes [00:11:00] us about how things work in this country. You can get a Civics 101 hat. That's right. And Nhpr.org Merino wool socks with a $10 a month donation. Check it out at our website, civics101podcast.org. And thank you, thank you thank.

Hannah McCarthy: We're back. We're talking Federalist ten. And Nick, we were just at the part where you [00:11:30] tell me why Madison thinks the Constitution is just so great.

Nick Capodice: I was, I was and to talk about that, we've got to talk about the people who did not think the Constitution was all that.

Ryan Werenka: I like to use Federalist ten as a counterpoint to Brutus number one.

Hannah McCarthy: Wait, is that Ryan?

Nick Capodice: It is indeed. This is Ryan Werenka. He's a dear friend of the show. He's an AP govt teacher at Troy High School in Michigan. He was in our episode helping students prep for the AP gov exam and he mentioned Brutus. [00:12:00] Brutus one is an Anti-Federalist essay Brutus was written by, it is believed, Robert Yates, also of New York, and his essays Against the Constitution came out before the Federalist Papers so Madison could respond to his arguments. And they all used pseudonyms. By the way, Madison, Hamilton and Jay went under the pen name Publius, and there were a host of names for the Anti-Federalists like Brutus or Cato Sentinel.

Hannah McCarthy: I think my favorite name is a [00:12:30] Maryland farmer.

Nick Capodice: A Maryland farmer.

Nick Capodice: You know, he thought the president and the Senate should serve for life.

Hannah McCarthy: Oh, okay. Well, never judge a book by its cover, I guess.

Nick Capodice: Anyways, back to Brutus one.

Ryan Werenka: Brutus has numerous objections to the Constitution that it's going to create a large centralized republic, and the states would suffer the state legislatures and the state, you know, courts are going to be powerless and meaningless. And that the, you know, large republic is just too far away from [00:13:00] the public to really, truly represent it. Madison argues that the large republic is actually better. Um, and it would start to move all the states in the same direction. And because of the size of the Republic, it's going to require openness and cooperation across state lines and regional lines.

Hannah McCarthy: So, in other words, because we are so big, if we're ever going to get anything done, we have to all work together.

Nick Capodice: Exactly. And Ryan says in his class, he equates Federalist [00:13:30] ten with the last rap battle in eight mile. Have you seen it here?

Eminem: Tell these people something they don't know about me.

Hannah McCarthy: Like where Eminem is basically saying, you know, like all that stuff you're saying about me is true and I'm proud of it.

Nick Capodice: Yeah. And Madison is the Eminem in this story. He sort of flips the script on Brutus. Brutus says the federal government will be too far from the people. Okay, maybe that's true, but we have representatives. They are going to be close to the people. And then all those representatives come together from their different states and they hash [00:14:00] everything out. And also speaking of size, our large size as a nation will take care of factions as well. Here is Jeff Rosen again.

Jeffrey Rosen: Madison says, in fact, and, um, a large republic is better in this regard because in a very large republic, it'll be hard for factions to discover each other, and by the time they do, they'll get tired and go home. So the difficulty of having factions be able to coordinate when you've got a really big territory like America is [00:14:30] actually a great way of dissipating the passions of factions and having a cooling mechanism and letting people have sober. Second thoughts. Isn't that amazing? That's, uh, these two crucial things allow for a republic in a big territory. First representation. And second, the fact that the large size just makes it hard for passionate factions to organize and discover each other, and therefore will ensure the rule of reason rather than passion. [00:15:00]

Hannah McCarthy: I mean, Madison didn't know that Facebook would happen. Nick.

Nick Capodice: I promise you I will get back to that Hannah.

Hannah McCarthy: You better. So Madison is saying will be a representative democracy, not a direct democracy, and we will be a federal republic. And that is why it will work.

Nick Capodice: And we've all got to be republicans.

Hannah McCarthy: Small r Republicans, as in the political philosophy that goes back to Athens. I mean, I imagine you're not talking about modern day GOP Republicans.

Nick Capodice: Here [00:15:30] is Alison Lacroix again.

Alison LaCroix: And so republicanism for Madison, as for lots of other people in that founding generation, smaller republicanism. And it's an idea. It's an ideology that has this content and it's content about the public good virtue that people have to be selfless. Now it's realist in that Madison and lots of others recognize that that was going to be hard, that people were would want to be off, you know, making money or doing whatever they wanted to do for their sort of private gain. But republicanism was [00:16:00] about and this is part of why they invoked so many of those classical authors and texts, was this notion that one would sort of put the public good above one's own individual good?

Hannah McCarthy: Nick.

Nick Capodice: What Hannah.

Hannah McCarthy: Um. All right. It sounds really good. Small are republicanism is great on paper. You know, civic virtue. Everybody working toward the common good, respect for the rule of law, all of those [00:16:30] lovely ideas. And don't get me wrong, the Federalist Papers were persuasive. New York ended up ratifying the Constitution, and here we are in a studio talking about it. But these ideas have a couple of gaps in them. After 250 years, the idea that a faction cannot pick up steam because people are far away has a rather large internet sized hole in it.

Nick Capodice: It does.

Jeffrey Rosen: Discord and Twitter or whatever it's called now. X [00:17:00] and Instagram represent Madison's nightmare. His entire vision for avoiding the dangers of faction is speed bumps and roadblocks that will allow reason slowly to disseminate across the land. And in particular, he has in mind a class of enlightened journalists that he calls the literati. People like himself and Hamilton, who write these long, complicated essays in the newspapers and allow people to deliberate with their [00:17:30] representatives in coffeehouses and ensure slow, thoughtful deliberation over time. Social media is the opposite of that. In fact, it's it's it's literally a dystopian vision that Madison would have hoped to avoid.

Nick Capodice: So Jeff opened his conversation with me talking about Shays Rebellion. So I had to end it by asking about the modern political climate. Maybe Madison wouldn't call our two parties factions, but what about the far [00:18:00] edges of a party? Like, what about the recent example of an armed insurrection on the nation's Capitol?

Archival: Breach of the Capitol, breach of the Capitol, requesting additional resources on the East side as they've broken into that window and they're trying to kick it in, will not be kept out of this chamber by thugs, mobs or threats.

Jeffrey Rosen: Whatever a faction is armed mobs representing a minority [00:18:30] of the population that are threatening the rule of law and trying to subvert the Constitution, are it? That's exactly what the Constitution is designed to avoid. By any measure, an armed insurrection against the processes of government is a faction, and Madison would have tried to resist it at all costs.

Nick Capodice: Jeff says the fringes of today's parties are arguably in the thralls of faction in a way that Madison feared. But Ryan told [00:19:00] me that even though a faction can be created on discord in five minutes, he still teaches. Federalists tend to his students, and he still feels it stands the test of time.

Ryan Werenka: I think in a modern context, fed ten really does still kind of hold up. Um, especially when you're looking at, you know, the, the internet being used to create factions, uh, across state lines on social media platforms and things like that. Um, but in a way, Federalists ten Madison's proving his point. These factions could be created or are being created, [00:19:30] but you're ending up seeing them out in the open and across regional lines. So really, Madison's argument in Federalist ten proved to be pretty accurate.

Hannah McCarthy: I think one of my favorite things about The Federalist Papers and the Anti-Federalist papers is that they're a debate in writing. Nobody got everything they wanted. Hamilton and Madison admitted imperfections. They acknowledged that every other [00:20:00] republic before us failed. Eventually, they were honest about their fears of what could happen to this new nation. They knew that people make mistakes.

Alison LaCroix: I mean, one could see that as an argument for again, today, we would think of it as democracy in the broadest possible sense, right, that it's not the case that what the maximum number of voters at any one time might say is right. That doesn't necessarily mean it's the public good. But, you know, if [00:20:30] we don't have true representation, we know that that's much farther from the public good. So that might be one thing to take away that he thinks, um, you know, they're always going to be these passions and interests, but that there might be structures that can mediate them. I mean, I find that. Somewhat comforting to the idea that it's not like the founders were operating in a world where everybody was this virtuous, public minded person. They weren't. They knew people weren't. So they were saying [00:21:00] things that were their sort of best educated guesses, not maxims handed down from the mountaintop. But they were also realists. And I think that's a hopeful vision.

Nick Capodice: Well, that is a gentle touch of Federalist ten, though there is a whole lot more for you to explore. I couldn't even get into the people who think that it's not such a big deal. I'll [00:21:30] do that another time if you want. This episode is made by me Nick Capodice with You Hannah McCarthy. Thank you. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer. music in this episode by Blue Dot Sessions, Scott Holmes, Ikimashoo Aoi, Howard Harper Barnes, Timothy Infinite, Spring Gang, Francis Wells, Bio Unit, Asura, and that Brooklyn Farmer, Chris Zabriskie. Civics 101 is a quartet, not a faction, and it's a production of NHPR, New Hampshire Public Radio. [00:22:00]

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Made possible in part by the Corporation for Public Broadcasting.

Election 2024: What Is Happening?

Primaries, caucuses, conventions, court cases -- oh, it's a lot. Hannah and Nick have the most important dates and some crucial context for your calendar this election year. Buckle up, 2024 is already underway.

Check out our recommended listening for more helpful info!

Primaries and Caucuses

Conventions

Stranglehold: Make Room (for context on New Hampshire and its hold on the first in the nation Primary)

By the way, it isn't too late to snag a Civics 101 baseball hat! Donate now and show the world you know what's going on.

PSA: Shortly after this episode dropped, Donald Trump won the New Hampshire primary. Though Nikki Haley is still running, many reporters, analysts and the RNC itself see this as a sign that Trump is the presumptive Republican Presidential nominee.

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Transcript

Hannah McCarthy: [00:00:01] It's 2024, Nick.

Nick Capodice: [00:00:03] 2024 I'm still right in 1998 on my checks, Hannah.

Hannah McCarthy: [00:00:10] And you know, Nick, I have more than a little anxiety going into this year. I think my uncle put it best at my cousin's baby shower the other day when he said, "talking politics used to be fun. Now I get kicked out of bars."

Nick Capodice: [00:00:23] Sure. Yeah.

Hannah McCarthy: [00:00:25] Now the hole in my day things were obscurely better is a common [00:00:30] refrain. I find myself making it already. At some point. Millennials got old and I am one of them. And now I spend every day talking about Jordan Catalano. Uh, but I digress because I think my uncle had a point. Yeah, maybe.

Nick Capodice: [00:00:45] Not the whole kicked out of places thing.

Hannah McCarthy: [00:00:48] But the having fun talking politics thing, right? Most of this year will be politics because spoiler alert, there is a general election on November 5th. And [00:01:00] spoiler alert my birthday is the day right after that.

Nick Capodice: [00:01:03] So what could be more political than that?

Hannah McCarthy: [00:01:06] So without further ado, this is Civics 101. I'm Hannah McCarthy, I'm Nick Capodice. And as we look ahead into 2024, I'm going to give you the fun option. And that is being the person who knows when things are happening. Because actually, this is a year when knowing when things are happening, as in elections, debates, court cases [00:01:30] means that you will be someone who is truly paying attention to the potential future of the place where you live. At the very least, you won't be blindsided when what comes to pass comes to pass. If all else fails and you don't find this fun, we can, like, make birthday costumes together.

Nick Capodice: [00:01:51] Hey, what's a birthday costume, Hannah?

Hannah McCarthy: [00:01:53] Theme dependent Nick.

Nick Capodice: [00:01:54] And onto the episode.

Hannah McCarthy: [00:02:04] All [00:02:00] right, 2024. Here we go. Right now it is January. I wanted to wait a beat to release this episode so that I could at least tell you one thing that I do know for sure about 2024, and that is that former President Donald Trump won the Republican Iowa caucus. He set a record, in fact.

Nick Capodice: [00:02:23] Oh he did.

Hannah McCarthy: [00:02:23] Yeah, nearly 30 percentage points, smashing the previous record held by Bob Dole in 1988 [00:02:30] by a lot.

News Archival: [00:02:31] What are we to make of the results in Iowa? What do they tell us about the Republican Party? If only a third of the Republicans in Iowa participate in the caucuses? And what does the fact that most party members don't participate in the nominating contests tell us about the voting process to help us think about.

[00:02:45] And it kicked off our caucus and primary season, which I presume in this election is mostly of interest to Republicans and independents.

Hannah McCarthy: [00:02:53] Well, that is where the real contest lies, probably.

Nick Capodice: [00:02:57] As in, this is a reelection [00:03:00] year, meaning the Democrats are, for the most part trying to keep their president in office. The Republicans are trying to unseat him. By contrast, in years where presidents time is up like 2016, the primary is a big deal for both parties, correct?

Hannah McCarthy: [00:03:16] Okay, so Joe Biden is running against two what you might call longshot candidates. That's Marianne Williamson, a self-help author, and Dean Phillips, a US representative. Donald Trump is running against former South Carolina Governor Nikki [00:03:30] Haley. Florida Governor Ron DeSantis, who was trying to get that nomination recently, dropped out of the race. Now, depending on the state, you might call Haley less of a long shot than Biden's challengers. And then there are three independent candidates professor and activist Cornel West, doctor and activist Jill Stein, and lawyer and activist Robert F Kennedy Jr, who, by the way, had been running as a Democrat but switched to independent.

Nick Capodice: [00:03:58] Actually worth mentioning. Hanna, I [00:04:00] heard that RFK Jr is attempting to establish new political parties in some states instead of registering as an independent.

Hannah McCarthy: [00:04:08] Okay, wait. Hang on. Uh. More, please.

Nick Capodice: [00:04:11] Well, it turns out if you run unaffiliated aka independent, you need way more signatures to get on the ballot. So if he runs under a registered party, he needs fewer signatures. And of course, those states have to accept his applications for brand new parties.

Hannah McCarthy: [00:04:27] Okay, you see, this year is [00:04:30] wild. There is so much to know. But really, either way, it is the Republican caucus and primary season that is getting the most attention. So what is even happening this year? Well, for one thing, go listen to our episode on primaries and caucuses. We will put a link in the show notes for you. Those are the elections that will help parties determine their nominees and.

Nick Capodice: [00:04:52] How they help varies state to state, but basically whomever wins the most votes gets the most delegates at [00:05:00] the nomination.

Hannah McCarthy: [00:05:01] Basically, you need 1215 delegates to win that nomination. Trump currently has 20 as of the Iowa caucuses, DeSantis has nine, Haley has eight.

Nick Capodice: [00:05:14] So what's going to happen there?

Hannah McCarthy: [00:05:16] What do I look like?

Nick Capodice: [00:05:17] Allan Lichtman a little bit?

Hannah McCarthy: [00:05:19] Allan Lichtman, by the way, the guy who has accurately predicted every presidential winner since 1982, also a professor of history at American University.

News Archival: [00:05:29] You got right [00:05:30] every time except 2000. I didn't oh, I'm kidding, Florida did. That's right. It was a stolen election, right? I wrote the report for the US Commission on Civil...

Hannah McCarthy: [00:05:41] Anyway, I am not going to make any predictions because I really don't have the ability to do that.

Nick Capodice: [00:05:46] Anna, do you think that once AI reaches Minority Report levels, we're not even going to have to have an election anymore? We just say, well, the precogs say everyone is going to vote for this person, so don't bother.

Hannah McCarthy: [00:05:57] I do not think that, Nick, mostly because [00:06:00] we love spectacle more than we love maybe anything in America. So basically, what is going to happen on the Republican side is that we're all going to watch, and many of us are going to vote, and we'll see if basically life is difficult or relatively easy for the Trump campaign.

Nick Capodice: [00:06:16] Because he is the most likely nominee.

Hannah McCarthy: [00:06:18] Bingo. And that can change. It's early days yet. No, wait, real quick.

Nick Capodice: [00:06:24] Did the Democrats have an Iowa caucus this year, too?

Hannah McCarthy: [00:06:27] I'm glad you asked this, because I think what happened [00:06:30] for the Democrats in Iowa highlights that each state is very different in terms of the year to come, and each party is very different. The Dems did have a caucus, but they just used it to do business. And by the way, the good people of Iowa can mail in their nominee votes now through March 5th and March 5th is a big date. Nick, do you know why?

Nick Capodice: [00:06:52] Oh, okay, I think I know why this is.

Hannah McCarthy: [00:06:55] I think you do. Why is it?

Nick Capodice: [00:06:57] Well, the DNC, [00:07:00] the Democratic National Committee made a change that bothered. Two states in particular. And that change was sorry everybody. We're moving the first in the nation caucus primary state to South Carolina.

News Archival: [00:07:14] States with predominantly white voters just simply didn't reflect the diverse Democratic base. Now, the party's new presidential primary calendar, slated to start next February in South Carolina, followed by Nevada, New Hampshire days later, Georgia a week [00:07:30] after that, and Michigan at month's end.

Nick Capodice: [00:07:32] And I'm pretty sure Iowa complied, but I know for a fact who did not comply.

Hannah McCarthy: [00:07:38] All right, go on then, New Hampshire. Sure didn't. And depending on when you are listening to this episode, their noncompliance may have already happened. January 23rd, the New Hampshire primary.

News Archival: [00:07:50] Political junkies, buckle up. New Hampshire just picked a major fight with the Democratic National Committee just a short time ago, scheduling its primary for January 23rd, [00:08:00] 2024. It's being seen as an so...

Nick Capodice: [00:08:03] Really quick the DNC said, hey, uh, South Carolina is more diverse. It's more representative of the nation. So guess what? They get to go first now. But also the thing is, Biden lost in both Iowa and New Hampshire in 2020 before turning things around in South Carolina. And a lot of people say that is the reason the primary was moved. By the way, our colleagues made a whole podcast about New Hampshire and the primary called stranglehold. [00:08:30] And the last episode of that series covers exactly this. We highly recommend a listen.

Hannah McCarthy: [00:08:34] Speaking of listening, at least to the Democratic National Committee, in this case, New Hampshire is not the first in the nation. Primary is in their Constitution, they say, and that is that. And the DNC says, fine, but your primary will be meaningless to us. Biden isn't even registered in New Hampshire, and the DNC pledges not to seat New Hampshire delegates at the convention in the summer. [00:09:00] But it's worth mentioning this has happened in the past. In 2008, both Michigan and Florida held their primaries earlier than the rules allowed, and by the Democratic National Convention, the DNC had caved and allowed their delegation to vote anyway. Either way, New Hampshire Democrats are conducting a rioting campaign because whoever gets these still largely symbolic Democratic win in New Hampshire will still matter. In terms of optics.

Nick Capodice: [00:09:25] Are the court of public opinion.

News Archival: [00:09:27] That write in campaign will mean thousands of votes need to [00:09:30] be hand counted on primary night, but election officials say it's not going to delay the results. It would definitely be more complicated if there were a lot of...

Hannah McCarthy: [00:09:37] So the 23rd, the day this year episode appears in your feed, will be the day we find out how the Republican candidates fare in a state that still garners a ton of attention in the primary season. It is also the day we will see how this strange write in campaign goes for the Democrats. So I don't know, definitely worth national attention, which [00:10:00] keeps New Hampshire right where it wants to be.

Nick Capodice: [00:10:02] All right, so those are the especially early states in this nail biter of a 2024, one of which the DNC is pretending doesn't exist, like a kid who is continuing to misbehave and you just ignore it pre 2000 parenting style. Yeah. All right. So what happens after that?

Hannah McCarthy: [00:10:21] I'm going to get to what happens right after that and February after the break.

Nick Capodice: [00:10:25] But before that break it is our podcast fundraiser. You know these [00:10:30] fundraisers don't come along every day and we've got some really cool swag for you. We've got a hat and we have some fine merino wool socks crafted right here in New Hampshire. You can get both the hat and the socks for a $10 a month donation at our website, civics101podcast.org, or just click the link in the show notes.

Hannah McCarthy: [00:10:55] All right, we're back. And, Nick, right before the break, you asked me what happens after [00:11:00] the January 23rd New Hampshire primary. Well, after that comes February, during which South Carolina, Nevada and Michigan say hello, South Carolina.

Nick Capodice: [00:11:11] The one who the DNC says is the actual first in the nation primary.

Hannah McCarthy: [00:11:15] Correct. And then Nick comes March.

Nick Capodice: [00:11:19] Are the Ides of March. This is Super Tuesday, am I right? Yep.

Hannah McCarthy: [00:11:23] March 5th has a ton of primaries, 16 states this year, and.

Nick Capodice: [00:11:28] Super Tuesday is [00:11:30] a thing.

Hannah McCarthy: [00:11:31] Why? Uh, partially tradition. We have had some version of it since the 1970s and partially politics. Duh. Having a large block of states, especially in a region of the country, or to cast their votes on the same day, means a candidate who doesn't do so hot in an early state gets a chance to win big soon thereafter.

Nick Capodice: [00:11:52] And Super Tuesday is usually a clarifying day, right? Basically, a lot of delegates are won on this day and give a better indication [00:12:00] of who will get that final nomination, especially in a year where there is a non-incumbent running. Super Tuesday is when a lot of candidates drop out, and the delegate thing itself is really complicated.

Hannah McCarthy: [00:12:14] Oh yeah. Again, please listen to our episode on primaries and caucuses because it is complicated and some delegates are pledged or bound and some are not. And it's just like, I don't know, Nick. Like basically, I think those people who fully understand the math here and build strategies [00:12:30] on it are amazing and frightening, like people who start successful businesses or people who can paint their fingernails on their dominant hand without messing up.

Nick Capodice: [00:12:39] Just like that. Hannah. Uh, but also, I happen to know that two states, Colorado and Maine, will also be holding primaries on March 5th, and both of them have barred Trump from the ballot.

Hannah McCarthy: [00:12:52] Ah, yes. Just when we thought it was a straight shot from here to Election Day. So Trump is still on the ballot in Colorado and Maine, and we are going [00:13:00] to have to wait and see what the Supreme Court has to say about that. Massachusetts and Illinois are also moving forward with Trump ballot objections. So the.

Nick Capodice: [00:13:09] Supreme Court is ruling on this as of.

Hannah McCarthy: [00:13:11] January 5th. They agreed to take on the Colorado question. They also know that it has to be done quickly. So they're going to have arguments on February 8th.

Nick Capodice: [00:13:20] So there could, in theory, be other states that do not have a presidential hopeful on the ballot.

Hannah McCarthy: [00:13:26] Other states like New Hampshire. Right. But the difference between this and the New [00:13:30] Hampshire DNC debacle is that people can actually write in Biden's name on their ballots in New Hampshire, and the votes will be counted, even if the DNC says those delegates will not. If people write in Trump's name, in states where the court affirms that he is barred, those write ins will be thrown out.

Nick Capodice: [00:13:46] Is that the most that the Supreme Court has been involved in a presidential election since Bush v Gore? When the court, in a super narrow opinion, settled a Florida general election recount and George Bush was awarded the presidency.

Hannah McCarthy: [00:13:59] That is what folks are saying. [00:14:00]

News Archival: [00:14:00] You and I had a conversation yesterday and Bush v Gore came up and you were comparing this to that. Can you talk a little bit about that for us?

News Archival: [00:14:11] Yeah. I mean, um, not to be flip about it, but Bush v Gore was, uh, you know, nursery school compared to this. Um, that was a very narrow case.

Hannah McCarthy: [00:14:23] So anyway, Scotus has been urged to please issue an opinion by March 5th, which is so fast, [00:14:30] by the way.

Nick Capodice: [00:14:31] Wow. By Super Tuesday. And while we're here, I know there was another case the Supreme Court was asked to take up and fast track another case involving Trump.

Hannah McCarthy: [00:14:41] Yeah, this is relevant. The immunity case. In other words, does former President Trump have, as he and his lawyers claim, immunity from prosecution for charges against him, those charges being that he plotted to overturn the 2020 election.

Nick Capodice: [00:14:57] And the immunity being because he [00:15:00] was president at the time of the actions for which he's being charged. Yeah.

Hannah McCarthy: [00:15:04] Now, the Supreme Court declined to fast track this case. So it was heard by a D.C. circuit Court of appeals on January 9th. This appeal is about a couple of things. A lower court said Trump does not have absolute immunity. So the appeal is asking the circuit court to determine whether Trump is, in fact, immune. The judges seemed really skeptical of the immunity claim at this trial. This [00:15:30] is also about delaying the trial that will happen if this Circuit Court of Appeals agrees with the lower court and determines that Trump is not immune. The court could also, by the way, just say that Trump has no standing in the appeals court at this point in litigation, and the trial will just go forward anyway. But no matter what happens, this is probably eventually going to be appealed up to the Supreme Court. And. Time is a wastin. So that circuit court is probably going to issue a ruling soon. Uh, maybe it has even happened [00:16:00] by the time you're listening to this. I will add it to the show notes when it does.

Nick Capodice: [00:16:03] And this is one of several cases Trump is facing this election year. Right.

Hannah McCarthy: [00:16:08] Which and this gets to the relevant part, could definitely affect Trump's ability to campaign and debate, although only one of those trials is actually set in stone. It started on January 16th. E Jean Carroll seeking damages for defamation. Now, this case was actually just recently delayed due to a sick juror, but it will continue on. An earlier [00:16:30] case found Trump guilty of sexual abuse against Carol, and Trump lost a series of appeals following that decision. And this current case is about Carol suing over statements Trump made about her when he was no longer president. But in terms of votes, Nick, an NPR PBS NewsHour Marist poll, found that two thirds of Republican voters would still vote for Trump if he is convicted of a crime.

Nick Capodice: [00:16:54] The next two months, Hannah. My goodness.

Hannah McCarthy: [00:16:58] Yeah, we shall see. So [00:17:00] even though Super Tuesday is major, primaries will continue through March, April and May right into June 4th, that is the last major block when the District of Columbia votes along with Montana, new Jersey, New Mexico and South Dakota. The US Virgin Islands and Guam have Democratic caucuses on the 8th of June. Their Republican caucuses are earlier.

Nick Capodice: [00:17:22] And neither of those territories have electoral votes in the presidential election.

Hannah McCarthy: [00:17:26] That's right. Nor do the Northern Mariana Islands or Puerto Rico [00:17:30] who vote in March and April, respectively. But the way a candidate fares in all territories still matters prior to the nomination, because they do get to send delegates to the conventions. And by the way, people born in these territories are US citizens, and if they want to vote in a general election, they can, but they have to reside in one of the 50 US states in order to do it. And by the way, that general election happens. Drum roll please. [00:18:00]

Nick Capodice: [00:18:00] I don't have a drum. Wait, I have a melodica.

Hannah McCarthy: [00:18:03] Yeah. Yeah. Okay.

Nick Capodice: [00:18:09] How was that?

Hannah McCarthy: [00:18:11] That was so much better than I could have hoped for. Okay. Thank you so much. Uh, July 15th through 18th for the GOP and August 19th through 22nd for the Democratic Party, which will be right after one of my best friends gets married.

Nick Capodice: [00:18:26] Anna, this episode's supposed to be about the 2024 election, and I kind [00:18:30] of feel like you're really making it about yourself. No offense. No.

Hannah McCarthy: [00:18:33] None taken. So then there are the scheduled presidential debates after that.

Nick Capodice: [00:18:37] After that, as in, after we know whether it'll be Biden versus Trump or Biden versus Haley.

Hannah McCarthy: [00:18:42] Barring something very unusual. Yes. So the Commission on Presidential Debates picked September 16th for the first presidential debate. Then there will be a vice presidential debate on September 25th, then October 1st and ninth debates, and then that's it. And [00:19:00] that is also right before another one of my best friends gets married. Uh, speaking of, I've got another national committee fight for you.

Nick Capodice: [00:19:08] You're speaking of the other wedding or the.

Hannah McCarthy: [00:19:10] Rnc has beef with the Commission on Presidential Debates. You can learn all about them in our episode on presidential debates. Yet another link down there in the show notes for you. The RNC claims that this organization is biased, even though they're nonpartisan, and has said that they might make Republican candidates sign a pledge not to participate in their events.

Nick Capodice: [00:19:28] Wow. Is [00:19:30] it just me, Hannah? Or is there more political fighting than there was, you know, a decade ago? Are you.

Hannah McCarthy: [00:19:35] Just, um, noticing this.

Nick Capodice: [00:19:36] Now? I was making a joke.

Hannah McCarthy: [00:19:38] Okay. Very good. I'll tell my uncle. Uh, either way, Trump promises to debate Biden if given the chance, which he certainly believes he will have.

Nick Capodice: [00:19:47] And then Hannah then comes November.

Hannah McCarthy: [00:19:51] Righto. The general election, the first Tuesday in November. That is when we pick a president.

Nick Capodice: [00:20:00] You [00:20:00] know, it feels both very far away and desperately imminent.

Hannah McCarthy: [00:20:06] Indeed. I think it's both.

Nick Capodice: [00:20:07] So okay. I guess we can just say this is going to be quite a year.

Hannah McCarthy: [00:20:16] But at least now listeners have the option of pulling out their phone or datebook or Palm Pilot or whatever, and merely listing off the dates of major political events in case of a contentious bar conversation.

Nick Capodice: [00:20:28] Well, nothing allows cooler heads to prevail [00:20:30] better than cold, hard dates.

Hannah McCarthy: [00:20:33] You never know. It could be true. You can throw niche podcast hosts birthday in there if you want to have some real fun. I mean, Nick, it is not nothing that I was born on an election day.

Nick Capodice: [00:20:46] Here we go.

Hannah McCarthy: [00:20:46] Doesn't that seem like fate to you? I think it's fate.

Nick Capodice: [00:20:49] Well, you know what the man says, Hannah, right?

Hannah McCarthy: [00:20:52] What's that?

Nick Capodice: [00:20:52] If it be now, tis not to come. If it be not to come, it will be now. If it be not now, [00:21:00] yet it will come. The readiness is all. You know what's funny? It's that in Hamlet. It's the readiness. And in King Lear it's the ripeness, you know, which means maybe King Lear is like a little more. He's, you know, had a little time to think about it. He's had a lot of time to think about. Well, he's older. Yeah. He's older.

Hannah McCarthy: [00:21:17] He's a lot older.

Nick Capodice: [00:21:18] Yeah. And his uh. Oh yeah. And his and his daughter's like okay, that's she says a whole lot of nothing. That's what she says.

Hannah McCarthy: [00:21:27] That's good.

Nick Capodice: [00:21:28] Did you ever hear so much talk [00:21:30] about nothing. Yeah. That's enough chatter right okay.

Hannah McCarthy: [00:21:50] That does it for this episode. And do keep in mind that whenever you listen to this, some of the things that we're talking about may have changed like a lot. [00:22:00] Know your dates. Pay attention this year, people. So much is happening. And I don't just mean my dear friends' nuptials. Oh, but also one of my best buds just had a baby like three days before the Iowa caucus. What a year. You know, what a year for me, but also for you. This this is an important year for you. Okay. This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music. In this episode by [00:22:30] Duke Herrington, spring gang, OTE, Andreas Dahlback and El Flaco Collective. You can get the transcript for this episode, as well as listen to all of our other episodes at our website, civics101podcast.org. And while you're there, you can ask us any question you please, especially in such a year as this. I mean, come on again, that's Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

How much do government employees get paid?

Government salaries vary an awful lot; from $100 a year to $11.5 million. So who makes what? 

Today we divide the issue of taxpayer-funded salaries in two. How much officials make, and then how much they really make. Why do so many politicians make money once they leave office? How much can you get from speaking at events? And how do lobbyists affect not only policy, but their career trajectory? 

Our guest is Anna Massoglia from Open Secrets, the "nation's premier research group tracking money in U.S. politics."

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Transcript

Nick Capodice: Hannah you've ever played the game Life

Hannah McCarthy: Oh, yeah. That game makes me kind of nervous for some reason.

Nick Capodice: If anyone out there hasn't played Life, it is kind of a game where you spin a little wheel and you move your car around. You go to college, make money, inherit your aunt's skunk farm and have babies.

Hannah McCarthy: Yeah, that's I would say that's a pretty decent summary. Uh, you know, it's kind of a bleak game when you think about it. It's basically [00:00:30] make as much money as you can and you win at life.

Nick Capodice: Do you remember what the best paying jobs were in life?

Hannah McCarthy: I think so I actually played a few years ago, so I know that they have updated the game. I'm pretty sure it was doctor and lawyer.

Nick Capodice: Yep those were the top earners for me too. And I bring it up, Hannah, because you'll notice that president, member of Congress, Chief justice, those weren't options in the game of Life.

Hannah McCarthy: They sure weren't, Nick.

Nick Capodice: They weren't.

Hannah McCarthy: I [00:01:00] know it changes every few years, but how much money do those people make in the real world?

Nick Capodice: Well, this is a big old hairy Gordian knot, Hannah. So I'm gonna cut it in two. You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah Mccarthy.

Nick Capodice: And today we're talking about how much money government employees make. And, yeah, I'm going to do a part A and a part B. Part A is going to be me pretty much rattling off salaries of various government officials. And part B [00:01:30] is where we'll talk about how much they really make, as in money outside of their law determined salary.

Hannah McCarthy: Okay, let's do it. All right. So let's just get right down to it. Who is the highest paid government employee?

Nick Capodice: State or federal.

Hannah McCarthy: Let's do federal. Is it the president? Because it kind of feels like it maybe should be the president.

Nick Capodice: It's not the president, but we will start there. Article two, section one says that Congress determines the salary of the president and that it cannot be increased [00:02:00] or decreased during their terms. And right now, that salary is where it's been since 2001, $400,000 a year.

Hannah McCarthy: I mean, that's pretty good. Like, I, I would love that, frankly. Um, how much were our earlier presidents paid?

Nick Capodice: Interestingly, George Washington tried to refuse payment for serving as president, but Congress was like, let's pull out the old contract, George. I think that's our decision. And they made him take 25,000 bucks. And [00:02:30] I know there's no accurate way to say what that means in today's dollars. It's like a pet bugaboo of historians. But I will say, if you just punch it into an inflation calculator, it comes out to $729,000. Whew. But you should also know Washington didn't need it. He was a very wealthy landowner and slaver, distiller. That salary was a drop in the bucket. By the way, Hannah, do you know the story about Babe Ruth and Herbert Hoover?

Hannah McCarthy: Actually, I don't.

Nick Capodice: In [00:03:00] 1929, Babe Ruth made $80,000, and a reporter asked him why he made more than President Hoover, who made 75,000. And the Babe said, well, I had a better year than he did.

Hannah McCarthy: In 1929 was not a great year for Hoover. That is true. Yeah.

Nick Capodice: Stock market crash and the Great Depression, all that stuff.

Hannah McCarthy: Uh, but back to my question. Who does have the highest salary in the federal government?

Nick Capodice: Well, as these jobs change over the years, the salary changes. So I'm going to tell you, the record holder, [00:03:30] the record holder for federal government salary is none other than former head of the National Institutes of Health, doctor Anthony Fauci.

Hannah McCarthy: Really? How much?

Nick Capodice: Before he left his position, he was paid $434,000 a year, and he now receives a yearly pension of $350,000. And he's not alone. If you look at the top 100 paid federal employees right now, the NIH holds the first four slots and then the other 96 are medical officers in [00:04:00] the Veterans Health Administration.

Hannah McCarthy: Well, that makes sense. They're doctors. I mean, they're called medical officers, but they did go to medical school.

Nick Capodice: Yeah. And doctors in the private sector have a massive range of salaries, depending on their specialties and myriad other factors. But government employee doctors might have to give up on those jobs in the private sector, which are far more lucrative, and their salaries are not a matter of public record. But back to the list. Once we get past all the medical government positions, we [00:04:30] get to members of Congress.

Hannah McCarthy: And members of Congress decide how much they will make right. And I know they can't raise or lower their own salaries until an election of representatives has happened, because that's what it says in the 27th amendment.

Nick Capodice: Very good, Hannah. So let's jump into a breakdown of modern day congressional pay. All members of Congress, I'm talking senators and representatives make $174,000 a year. Now, there are a few notable bonuses. The vice president, who, [00:05:00] lest we forget, is the president of the Senate, makes $255,800. President pro tempore of the Senate, which is the longest serving member of the Senate of the party in power. They make $193,400, as do the Senate majority and minority leaders and the House majority and minority leaders. The last exception is the speaker of the House, the People's Chamber. They make $223,500 a year.

Hannah McCarthy: All right. And last federal employee that we really should cover, [00:05:30] Nick and I ask because it was in the news recently Supreme court justices.

Archival: A new ProPublica report says Supreme Court Justice Clarence Thomas privately pushed for a higher salary and to let justices take speaking fees.

Nick Capodice: The New York Times and ProPublica reported a memo from 2000 where Justice Clarence Thomas threatened to resign if the Scotus salary was not increased, and it has increased quite a bit since then. Thomas was making 173,000. [00:06:00] The year in 2000, and now he and all the other associate justices make $285,400 a year. And don't forget the chief. Chief Justice Roberts makes a little more 298,500.

Hannah McCarthy: And I'm going to imagine our listeners have had just about enough of the numbers by now. But I do want to touch on the States.

Nick Capodice: All right. Pop quiz hotshot. Who are the highest paid state employees?

Hannah McCarthy: I actually [00:06:30] know this. Public university football coaches.

Nick Capodice: Mccarthy makes the point.

Nick Capodice: Is that what they say, like the point is good.

Hannah McCarthy: You..you've never seen football, have you?

Nick Capodice: I did play a lot of Madden at one strange point in my life.

Nick as John Madden: He was looking to go over there and he ran right into those coverage guys.

Hannah McCarthy: Okay, let's have those numbers.

Nick Capodice: In 40 out of the 50 states. Yes. Public university football coaches are far and away the highest paid government [00:07:00] employees. Now, the reason they are government employees is because public universities receive state funds, which can contribute to the coach's salary. But the reason they're so high is that there are many other sources for their salaries outside of the government, and as a result, they make a lot more than the president, many, many times more. The highest paid Hanna is William Dabo Swinney. He's the coach at Clemson in South Carolina. His current salary is $11.5 million [00:07:30] a year. Yep. And you're not going to see a salary anywhere near that in any state for non-sporting related jobs. You know, you've got some medical officials and state college presidents and professors who make around 500 K, but that is pretty rare.

Hannah McCarthy: And what about state legislatures? I know that those salaries vary a lot.

Nick Capodice: They sure do. California's state reps make the most at $110,000 a year. And I don't need to tell you, Hannah, which state's representatives make the least, now do [00:08:00] I?

Hannah McCarthy: No, you do not. That would be New Hampshire, the Granite State. Live free or die. Here in New Hampshire, we pay our state reps 100 bucks a year. But to be fair, there are 400 of them. All right, Nick, I think we got most of it, right.

Nick Capodice: Yeah, we got most of the utterly irrelevant stuff out of the way. Because when it comes to politicians, the salary is just the tip of the iceberg. And I've got someone from the most informed organization on this topic in the country. But first we got to take a quick [00:08:30] break.

Hannah McCarthy: But before the break, we are in the midst of our podcast fundraiser and we have a hat and we have socks. Very, very fine. NHPR Merino wool socks made in New Hampshire. Warm toes might not be a right protected by an amendment, but maybe it should be. Nick wrote this. You can get the hat and the socks by making a $10 a month gift right now at civics101podcast.org.

Hannah McCarthy: We're [00:09:00] back. We're talking about money and politics. How and how much. And, Nick, we were about to get into the real money.

Nick Capodice: The real money indeed. Hannah. And here is someone who knows where all that money comes from.

Anna Massoglia: My name is Anna Massoglia, I'm the editorial and investigations manager at Open Secrets.

Hannah McCarthy: Oh, Open secrets. We use them all the time when we research episodes, so we should probably tell everyone what they do.

Anna Massoglia: So Open secrets is a nonpartisan nonprofit that tracks money in politics in the United States. We look at things like lobbying, campaign [00:09:30] finances at the state, as well as the federal level. We have both a research and journalism arm, so we do some of our own reporting, but primarily we exist to provide research to provide nonpartisan, completely unbiased data to journalists, to academics, to students, to the average person who wants to contact us and better understand who their representative is, who's funding them, or anything else about money in politics.

Nick Capodice: So any money somebody makes while they're in office has to be reported. You're not allowed to make what's called outside earned income [00:10:00] over 15% of your salary. So that's about $27,000.

Hannah McCarthy: Earned income.

Nick Capodice: Earned income. You heard the magic word.

Hannah McCarthy: So is there an income that counts as unearned?

Nick Capodice: There is; bonds, investments, stocks, rent. And if you're married, lots of that income can be generated from your spouse.

Hannah McCarthy: I mean, politicians cannot take money directly into their bank account from lobbyists, but they can receive contributions to their campaigns, right?

Nick Capodice: They can. And the cap is $6,600 [00:10:30] per individual, and then sometimes another 6600 for that individual and their family. And that may sound like small potatoes, but all those individual gifts add up. Uh, former speaker of the House Kevin McCarthy. His 2024 campaign made $886,000 from lobbyists and their families alone.

Hannah McCarthy: We should also mention here it does take a lot of money to run for the House of Representatives, and it's never over. The second [00:11:00] you start the job, you're campaigning for the next election.

Nick Capodice: Constantly, constantly campaigning. But Anna told me it's not just how much people make while they're in office or towards their campaign, it's what they make after.

Anna Massoglia: There's a number of different avenues for members of Congress to make money, both while they are in office, and those opportunities multiply after they are able to leave that service as well. So during that time in office, oftentimes you'll see things like book deals show up in their personal financial disclosures, [00:11:30] which are legally required to be disclosed every year. Um, once members of Congress may leave after that, they're much more open to not just these things like book deals, but also speaking fees.

Nick Capodice: Speaking fees are huge, and these happen before or after your time in office. You can't do it while you're in office. Uh, just to use some people who are currently running for President Joe Biden, uh, Joe Biden, when he was out of office, made about $200,000 for speaking at events, Nikki Haley, also [00:12:00] $200,000 per event. And Mike Pence, who, yes, is no longer running, 100,000.

Hannah McCarthy: So you're saying the day you leave office, you can start to rake in the big bucks?

Nick Capodice: Not like that day. You have to wait a little bit.

Anna Massoglia: After what's called a cooling off period. So the period right after they leave the government where they are subject to additional restrictions on things like lobbying, uh, after that period is open, there are even more opportunities to make money as a revolving door lobbyist, being able to go back and even push and advocate for policies with their old colleagues. [00:12:30]

Hannah McCarthy: What does Anna mean by revolving door lobbyist.

Anna Massoglia: The revolving door is when a government official, such as a member of Congress, a congressional staffer, or someone working in a different government agency, or even the president can leave office and go into a private sector position. This could be a variety of things, whether it's a consultancy for a business or explicitly registering as a lobbyist. And in that position in particular as a lobbyist. This former government official now has gone through a revolving [00:13:00] door. The revolving door government official will then be able to go back to former colleagues to, uh, in some cases, even their subordinates, and lobby them down the road and sometimes on the same issues they may have worked on while they were in government positions.

Hannah McCarthy: So the quote unquote, revolving door is a metaphor for returning to government and using their influence as a former elected official and their understanding of how the system works for personal gain. Right. Um, okay. So I want to know how much money [00:13:30] a former member of Congress can make working as a lobbyist versus how much they made as a congressperson.

Anna Massoglia: So after members leave Congress, they don't really have to file the same personal financial disclosures. So we don't necessarily know how much they're making down the road. Uh, but just looking at average salaries for firms, looking at average, even for non-former members of Congress, you're seeing jumps to hundreds of thousands of dollars a month in some cases.

Hannah McCarthy: Hundreds of thousands of dollars a [00:14:00] month.

Nick Capodice: Yep. We're in state football coach territory.

Anna Massoglia: And the thing about the revolving door is, of course, it can spin. Many times you may see them after going to that private sector position, going back to a government position and kind of bouncing back and forth. And the more you see them bouncing back and forth, you kind of start to see these trends of, oh, these are the issues that matter to them both in and out of government, which really builds this portfolio, which makes them all the more marketable to different special interests that are trying to [00:14:30] influence government changes.

Hannah McCarthy: So there's this cooling off period between being an elected official and becoming a lobbyist. But a former elected official who eventually becomes a lobbyist can just jump into the race and run for office again with no cooling off period.

Nick Capodice: They can. And there is indeed no secondary cooling off period for that. You can just go round and round.

Hannah McCarthy: There is something that we have talked about before when it comes to lobbying. You know, we touched on it in our episode on who writes bills [00:15:00] and that is that it's not as though the gun lobby or the milk lobby is giving a politician money. The lobbies are talking to them. They're getting to know them, helping them out with information.

Nick Capodice: Yeah. Anna said that congressional staffers work really hard and they get paid very little. So if they're tasked with helping to write a piece of milk centric legislation, say the milk lobby might come along and say, oh, that's really complicated. Let me just help you out with that.

Anna Massoglia: I think that's a [00:15:30] common misconception among Americans, that lobbyists are just going in with bags of cash and giving them to politicians in order to pass a different types of resolutions or legislation. And in reality, it's much more complicated than that. You'll oftentimes see things like nice dinners, events on taking politicians out to different sporting events, games, whatever. There are restrictions on that as well. There is a limit on gifts given to members of Congress. So I think it's like something like $50 where you can't really go over this very low amount for giving [00:16:00] them a dinner like a one on one type of thing. However, there's so many different loopholes to this where you can have publicly accessible events and have these amazing feasts for staffers and members of Congress and putting them in the same room as lobbyists and other advocates who are trying to push these policies. You also, of course, have longer time relationships built between these lobbyists and members of Congress as well as with their staff.

Hannah McCarthy: So lobbyists spend a lot, like a lot of money.

Nick Capodice: Yeah they do. [00:16:30] Some lobbies spend hundreds of millions of dollars each year.

Hannah McCarthy: Did Anna say what they get in return for that?

Nick Capodice: She did. Uh, one reason that companies will lobby Congress is to try to get contracts, to say we're the right people for the job. We're the right people to build this building or missile or hydroelectric dam.

Anna Massoglia: And so when, for example, government contractors, defense contractors in particular, were able to track how much they're spending on lobbying every year and then how much they get in terms of government contracts [00:17:00] and the amount that they're spending in lobbying is, of course, huge millions of dollars. It's nothing that I mean, the average person can really even comprehend having at their fingertips. And then you look at how much they got back and it's even it's substantially more, in the billions at that point.

Hannah McCarthy: There's an infographic we've talked about before, Nick, from the website Represent.us, which said a savings account that a regular ol anybody like you and me can get at a bank has a 1% return. [00:17:30] A stock market investment has about a 7% return. But the most powerful lobbies get corporations a 76,000% return.

Nick Capodice: Yep. Though I will add, I told that stat once to an actual lobbyist, and he gave me a very incredulous "Well, I don't know about that." So I am going to keep looking.

Hannah McCarthy: And it's not as though one party does this more than another party does, right? It's both [00:18:00] parties doing this all the time.

Nick Capodice: Yeah right down the middle, Republicans and Democrats. And it is not just on the federal level.

Anna Massoglia: We're also seeing this at state houses as well, where we're seeing lobbyists going and pushing for different state legislation. And so if you have, for example, lobbyists for big business, they might be pushing the same thing in different states across the country, effectively copy pasting legislation and and pushing. That's why you see a lot of very similar laws in different states. For companies, that's very desirable because they don't have to figure out and navigate the different regulatory [00:18:30] systems.

Nick Capodice: Last thing, Hannah, Anna said that there is an issue that has come up more and more recently, which is members of Congress making a lot of money in the stock market. Oh, which.

Hannah McCarthy: They're allowed to do because that is unearned income.

Nick Capodice: Right

Anna Massoglia: Members of Congress are limited with what information they can use. They can't engage in insider trading. But because they are in these meetings oftentimes where they get information before the American public, it puts them in a position where they may be better [00:19:00] situated to know what stocks to trade ahead of the average American, which can in some cases veer into insider trading territory. And so there started to be pushes to ban stock trading by members of Congress entirely or to increase disclosure. And that's something else. That has been another interesting trend of looking at ways different politicians and government officials are able to make money.

Archival: And some of our elected representatives in Congress appear quite skilled at making these predictions, a few even outperforming [00:19:30] Wall Street's most seasoned traders. Abc's Jay O'Brien introduces us..

Nick Capodice: The thing is, it's hard to demonstrate a member of Congress's net worth after they leave office versus before they got the job. Because once they leave office, it's no longer public information. But we do have data estimates on presidents. So, for example, when George W Bush entered office, his net worth was 20 million and now 50 million. When Bill [00:20:00] and Hillary Clinton entered the white House, their net worth was 1.3 million. And now 120 million. People tend to make money when they leave office.

Hannah McCarthy: So now we know all this, but what are we supposed to do about it? Is there anything to do at all? Money and politics have gone hand in hand since the invention of money and politics. Is there anything we should do?

Nick Capodice: Yeah. Um, [00:20:30] first off, everyone out there should look up their reps and their senators and see how much money they've received and from whom. Uh, see what committees they've worked on. You can even look up the terms. Members of Congress, stock trades. And you can see in real time what stocks your elected officials are buying and selling right now. And most importantly of all, sure, you can protest and you can petition and hold up cardboard signs at the statehouse and call your senator day in and [00:21:00] day out. Please, please do not stop doing that. But if you want to make a change and you got the dough, you should consider hiring yourself a lobbyist.

Hannah McCarthy: Well, now, how much does a lobbyist go for these days?

Nick Capodice: Well it varies. Uh, you're looking at 5000 to $25,000 a month with a one year minimum contract.

Hannah McCarthy: So for now at least, we are stuck with markers and cardboard.

Nick Capodice: You said it McCarthy. And I don't think I'd have it any other way.

Nick Capodice: Well, [00:21:30] that is the single greatest number of numbers I've ever said in an episode. This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer. Music. In this episode by Blue Dot Sessions, DivKid, ProletR, HoliznaCCO Fabian Tell Mary Riddle, Dajana, Martin Klem, Nico Rengifo, Tigran Viken, Bio Unit, and you think I'm going to get through an episode without Chris Zabriskie? You've [00:22:00] got another think coming. 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.

Rumors and Lies, the American Version

The truth is out there.

In this double feature of two of our favorite episodes we cover misinformation, disinformation and propaganda - three tricky truth-benders that come at you from every angle in American life. Our guides include Samantha Lai of the Brookings Institute, Peter Adams of the News Literacy Project, John Maxwell Hamilton (professor and author of Manipulating the Masses: Woodrow Wilson and the Birth of American Propaganda and Jennifer Mercieca, professor and author of Demagogue for President: The Rhetorical Genius of Donald Trump.

If you want more episodes about voting and the electoral process, check out our 2024 Election Toolkit.

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Made possible in part by the Corporation for Public Broadcasting.

Expulsion from Congress

Expulsion from Congress is extremely rare. Nevertheless, NY Congressman George Santos was expelled on December 1, 2023. So how did that happen?

Today on Civics 101 we are guided by Carlos Algara, who lays out the history of expulsion in both chambers, the process, the Ethics Committee, censure, and how Congress fills an empty seat after somebody is expelled.

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Transcript

Hannah McCarthy: Nick, what are you doing?

Nick Capodice: Uh. Square breathing.

Hannah McCarthy: Square breathing.

Nick Capodice: Square breathing. It's a it's a technique I heard the Navy Seals do sort of calm down a little. Keep their head straight. You breathe in four seconds, hold four, out for, hold four, etc., okay?

Hannah McCarthy: Like. Like a square. [00:00:30]

Nick Capodice: Like a square? Yeah, like a square.

Hannah McCarthy: Now, why are we talking about square breathing?

Nick Capodice: Uh, so usually, Hannah, when I start an episode, I find some, like, relative news clips, and I put some bompin music underneath it, and then we say, I'm Nick Capodice, I'm Hannah McCarthy. But the sheer firehose amount of soundbites for this one...

Archival: , this Burberry.Scarf, Botox treatment..At Hermes and Ferragamo.

And what's in those soundbites? It's pretty bonkers.

Archival: Organized a [00:01:00] fundraiser for his dying service dog back in 2016, only to pocket the money himself. I actually went to school on, uh, on a volleyball scholarship.

Nick Capodice: Like, kind of all over the place. Like maybe it's performance art level. Bonkers.

Archival: When asked if the baby was his, Jorge Santos responded, not yet. The next time he tries to accost me with the child in my.Hand, I want him out of here.

Nick Capodice: Honky tonk bazonker zonk, Hannah

Archival: what could we do to get you to go away? Stop inviting me [00:01:30] to your gigs.

Nick Capodice: Okay. We're cool. We're going to keep it about systems and procedures because that's what we do on this show. You are listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about expulsion from Congress. We're also going to talk about the Ethics committee, censure and how a congressional seat is filled when somebody is expelled.

Hannah McCarthy: And, Nick, I imagine the reason we are doing this episode right now [00:02:00] is because we have just had an expulsion. And to fill anyone in who may have missed it. On December 1st, 2023, the House voted 311 to 114 to expel Congressman Jorge Santos for, um. Wait, did the House say which of the charges against him merited expulsion?

Nick Capodice: Yeah, it was kind of like an amalgamation of all of the charges. House resolution 878, which everybody out there should read. By the way, [00:02:30] just look up H.R. 878 on Congress.gov. It lists several pages of charges, including campaign finance violations, identity theft, sexual harassment, and Santos enriching himself through a fraudulent contribution scheme. I might have missed a few.

Hannah McCarthy: Okay. Uh, so to start, like, how often does an expulsion happen?

Carlos Algara: Um, long story short, not that often. And there's a couple reasons why.

Nick Capodice: This is Carlos Algara, professor [00:03:00] of political science at Claremont Graduate University and formerly in the employ of the US Senate.

Hannah McCarthy: Oh, wow. So he worked on Capitol Hill.

Nick Capodice: He did. He worked in the office of Senator Jeff Merkley. He has been inside the machines we talk about every day from afar. Um, but yes, Carlos is right. Expulsion from Congress is as rare as to use a favorite expression of my father hen's teeth and horse's toes.

Carlos Algara: Most cases of expulsion, if you look at the historical record, occurred during the Civil War, [00:03:30] right. In both chambers. Um, so we've had members of Congress expelled during the Civil War under a clause called disloyalty to the Union. And that's where the bulk of the cases come from.

Hannah McCarthy: How many House representatives were expelled during the Civil War?

Nick Capodice: Three.

Hannah McCarthy: Wow. And after that.

Carlos Algara: There have been two expulsions during the postwar period. The first is James Traficant. Um, in 2002, he was expelled due to, um, I believe it was some sort of, uh, bribery scandal. [00:04:00] Uh, and then there was another congressman, uh, Michael Myers from Pennsylvania, who was also expelled. He was part of the Abscam scandal. And so those are the two most recent members, um, since the Civil War, actually the House of Representatives.

Hannah McCarthy: Wow. So George Santos is the sixth in US history?

Nick Capodice: Yep. Lucky number six.

Hannah McCarthy: How about the Senate? Is it more or less common?

Carlos Algara: The Senate's a little bit different, right? The Senate, whether it's because of norms or whether it's because of sort of the nature of the upper chamber, [00:04:30] we've noticed that senators generally resign, right? You know, I don't know if it's because, um, as a senator, you're in the spotlight more and it's harder to commit crimes while you're in office. Senate races are statewide. They're much more high profile. Um, so we have strong selection effects here, right. Um, but, you know, John Ensign, so this was a Nevada Republican senator. He ends up using official funds. It was payments to to a mistress. Um, that was not disclosed on campaign finance. Right. [00:05:00] Obviously very illegal. Something you shouldn't do. When the expulsion proceedings were beginning in 2011, he resigns, right? He puts out a statement. He says he doesn't want to put his family through this and he leaves the chamber. So on the Senate side, we see a lot less drama.

Nick Capodice: There was one expulsion from the Senate back in 1797. William Blount, who was charged with treason for inciting the Creek and Cherokee nations to invade Spain's Florida territory, a topic for another day, but the next ones [00:05:30] after that. We got a wash of 14 senators being expelled during the Civil War, but literally none after that whatsoever. Like Carlos said, they usually resigned or they were exonerated for their crimes. And that's why in this episode I'm pretty much focusing on house expulsion.

Hannah McCarthy: All right. So it's a big deal. I get how rare this is, but I want to know about the process. Our expulsions in the Constitution.

Nick Capodice: They [00:06:00] are indeed, article one, section five, clause two. "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two thirds, expel a member."

Hannah McCarthy: Oh, it takes a two thirds majority.

Nick Capodice: Yeah it does, but Congress can in certain circumstances choose to not allow an elected representative or senator to be a member of Congress before the Terme even starts.

Carlos Algara: The Constitution gives both chambers of Congress the authority and the power [00:06:30] to decide its own members. Should. So even before getting to expulsion. Um, Congress can decide whether or not to seat a member elect. That requires a simple majority vote. So, you know, there have been course, there have been some instances in history, um, where members elect have actually committed crimes and they have not been seated. Right. And so that takes that's similar to expulsion. That takes a majority.

Hannah McCarthy: Just a simple majority. And Congress can say, yeah, you were elected, but we're not letting you in.

Nick Capodice: Yeah. And it may seem [00:07:00] that this power could be ruthlessly abused by the majority party, just, you know, refusing to seat anyone from the other party. But it is exceptionally rare. And the Supreme Court ruled in pal v McCormick in 1969 that Congress must seat someone if they were elected, unless they violate the necessary qualifications of being a member of Congress in Article one. So this has only happened a handful of times.

Hannah McCarthy: So I'm in Congress. I've done some [00:07:30] bad things. How does this ball get rolling?

Nick Capodice: Well, I will tell you how. And it involves one of the least desirable committee appointments you can get right after this break.

Hannah McCarthy: But before the break, you know what Nick and I did after making hundreds of episodes about the government?

Nick Capodice: What do we do?

Hannah McCarthy: We wrote a dang book about it. It's called A User's Guide to Democracy How America Works. It's illustrated by the brilliant and hilarious Tom Toro, and it crams as much approachable [00:08:00] civics content as possible into one handy vessel. I love it, you're gonna love it. Check it out.

Hannah McCarthy: We're back. We're talking expulsion from Congress. And Nick, you were about to get to the process.

Nick Capodice: Absolutely. Here's Carlos Algara.

Carlos Algara: Generally, how it goes is a member is confronted with an ethics complaint and that gets referred [00:08:30] just like any resolution, just like any piece of legislation that gets referred to a committee. Right. Um, and so that gets referred to the ethics committee, who then does an investigation.

Nick Capodice: The ethics committee. Now, this committee is different from all the others. Hannah, unlike the rest of the committees, which have party members proportional to their majority in the House, there are equal numbers of Democrats and Republicans on the Ethics Committee.

Hannah McCarthy: So it is a truly bipartisan committee.

Nick Capodice: As bipartisan [00:09:00] as it can get in Washington, DC, ten members, five Democrats, five Republicans. And their job is to conduct investigations into any alleged violations by members of the House or their staff.

Hannah McCarthy: Now, have we always had a House Committee on ethics?

Nick Capodice: Uh, no. There were other committees that did similar work, but the modern iteration is relatively new.

Carlos Algara: What happens is in 2008, uh, you know, Congress creates the Office of Congressional Ethics, right? So this is an outgrowth [00:09:30] of the scandals that we saw in 2005 and 2006. Right. The Tom Delay scandals, um, the Jack Abramoff scandal, which takes down a couple members of Congress, the Mark Foley scandal. Right. So those Congresses were very much scandal ridden. Um, and so Congress, under a Democratic majority, uh, makes this office right, which is nonpartisan, which is independent, and which reviews the allegations of misconduct. And so these are nonpartisan committee staff members that are actually doing the [00:10:00] work of investigating these allegations. You know, and I think to their credit, um, the ethics committee on both sides, they yield to these nonpartisan staffs. So if you look at the Ethics committee, uh, the final ethics report around Congressman Santos, clearly there was no attempt by the majority, um, to shield or to water down any of the findings.

Hannah McCarthy: I remember in your episode on committees, you intimated that being on the ethics committee is how do I put this? Not [00:10:30] the most coveted position.

Nick Capodice: I think that's a fine way to put it. Hannah.

Carlos Algara: Uh, you know, I think that's I think that's the correct perception on the hill. Right? It's a very thankless task. You're not creating policy. You're investigating your colleagues when they are accused of doing something wrong. So, you know, this is something that that is not a desirable committee assignment, like, say, the Appropriations Committee or that Ways and Means Committee, where you're actually able to influence policy. And, you know, if you're in the majority side, you're able to ram through legislation [00:11:00] over the minority. The ethics committee is very different. And you're also doing a lot of delegating to staff.

Nick Capodice: Now, if anyone out there who serves on the ethics committee thinks I'm being unfair and you're happier there than you would be on the Appropriations Committee, please email me and I will make a correction.

Hannah McCarthy: All right, so the committee investigates, the staff gathers evidence. What happens when the investigation is done?

Nick Capodice: Well, in this most recent instance, Hannah, things went a little differently than normal.

Carlos Algara: Congressman [00:11:30] Santos, there were efforts to expel him from Congress prior to the grant vote. Right. And his argument was that they needed to wait for the ethics committee to come, you know, to complete their investigation. And generally speaking, what happens is the Ethics committee will investigate and we'll put out a report. And generally speaking, they make a recommendation. Um, sometimes they'll recommend to do nothing. Sometimes they recommend expulsion, which is very rare. Uh, most of the time, [00:12:00] you know, they, they sort of put out a report that says, um, you know, we found wrongdoing. Um, but, you know, there's that doesn't rise to the level of an expulsion or even a censure. And so in this case, it was really interesting because the committee essentially found that these allegations of misuse of campaign funds was credible against Congressman Santos, but didn't make a recommendation. Right. There was no recommendation to expel.

Hannah McCarthy: Wait. So they believed these allegations against Jorge Santos were credible, an ethics violation. [00:12:30] But they didn't do the last step where they say, therefore he should be expelled.

Nick Capodice: Exactly.

Hannah McCarthy: So how did he get expelled?

Carlos Algara: What happens was in in a point of personal privilege, some Republican partizans from New York forced the issue onto the floor, um, through a procedural maneuver. And they were able to, uh, you know, to, to get the votes, ultimately to expel Congressman Santos. There are some procedural tricks that are able to be used in, in cases like this. [00:13:00] Um, generally the way that it works is, uh, you know, there's something called a point of personal privilege where a member can, can try to sort of force a vote, uh, you know, just very simply force a vote on on a resolution on the floor.

Nick Capodice: A point of personal privilege. It's a way a member of the House can get certain things to the floor for a vote, against the wishes of the party in the majority. And that's really hard to do. Uh, as we have mentioned in other episodes, if the speaker of the House doesn't [00:13:30] want a bill to pass, they can just let it die in committee, never bring it to the floor. But since this wasn't a bill, this wasn't a piece of legislation that changes the tax on wheat or whatever. The Republican chairman of the Ethics Committee, Congressman Michael Guest, was able to get it to the floor for a vote. And there you have it. They did have the votes to expel Congressman Santos, even though the speaker of the House and almost every other member of leadership voted against his expulsion on this vote. [00:14:00]

Archival: The yeas are 311, the nays are 114, with two recorded as present, two thirds voting in the affirmative. The resolution is adopted and a motion to reconsider is laid upon the table. Under clause five D of rule 20, the chair announces to the House that in light of the expulsion of the gentleman from New York, Mr. Santos, the whole number of the house is now 434.

Hannah McCarthy: Real quick. Earlier, [00:14:30] Carlos mentioned potential censure of Jorge Santos. What is the difference between censure and expulsion?

Nick Capodice: Censure is like a letter from the teacher in your backpack.

Carlos Algara: Um, center is pretty much, uh, you could think about it as I don't want people in the in in the pundit world, I think call it a slap on the wrist. You know, it's essentially a condemnation of the, uh, members actions. You know, that takes a simple majority vote. You know, it's essentially just letting the member know that as a chamber, [00:15:00] we do not agree with what you did. Right. So, Congressman Bowman, for example, um, just got censured by the House breaking news.

Archival: The House of Representatives just voted to censure New York Democrat Jamaal Bowman. The vote stemming from this incident. You see here where Bowman pulls a fire alarm while the chamber was in session discussing a bill to avoid a shutdown deadline.

Carlos Algara: Congressman Adam Schiff, um, got censured for, uh, I believe his role, um, [00:15:30] chairing the Intelligence Committee in the last Congress, right.

Archival: Laid on the table, house will be in order...And you probably heard it there in the background...You heard the Democratic lawmakers chanting the word shame.

Carlos Algara: Uh, so these censures are much more common. Um, they've gotten very much partisan. Right. So generally, they used to be these motions where, you know, you would do something and, um, you know, maybe a member's conduct doesn't rise to the level of, of expulsion, [00:16:00] but you want to signal your disapproval. Um, you would you would censure that member. So, you know, it's definitely a mechanism, um, where the Congress can let itself be known. And unlike an expulsion, there's really no way behind it, if that makes sense.

Nick Capodice: And it's not just members of Congress. 12 sitting presidents have been censured. Uh, and to my knowledge, those censures really had no tangible effect.

Hannah McCarthy: All right, so Santos has been expelled. [00:16:30] There's now an empty seat in the house. How and when will that seat get filled?

Carlos Algara: It looks like Governor Hochul from New York has called a special election, uh, which is going to be early, um, in the New year. And the part unlike, uh, the general way that it works in New York, where they have Partizan primaries, um, here the party leaders are going to choose the candidates. And so the Democrats have, um, they're going to nominate, um, Congressman Tom Suozzi, who was a congressman [00:17:00] before Congressman Santos. He retired in 2022, which allowed Congressman Santos to flip his seat. He actually defeated Jorge Santos in 2020, and he ran for governor in 2022 and lost the primary. So, um, they are nominating him, and I believe the Republicans in the district have decided to nominate a first time candidate.

Nick Capodice: Now, when there are vacancies in the Senate, the governor of the state can usually just appoint a new sitting senator until the next general election. But if we're talking the House, we're talking the People's Chamber. [00:17:30] Those people have got a vote. And that vote is scheduled for February 13th, 2024.

Hannah McCarthy: And George Santos, he he can't run in that election, can he?

Nick Capodice: Oh, he most certainly can. Hannah. Uh, interestingly, the most recent member of Congress that was expelled, James Traficant, he ran for the same seat while he was in a federal penitentiary. I mean, he did not win. No, but he got 15% [00:18:00] of the vote.

Carlos Algara: So, yeah, I mean, you know, there's nothing precluding them from running. Uh, obviously they're not going to be successful. Um, but, you know, in the in the event that they are there are other mechanisms in place to keep them from entering Congress. So Congressman Santos can run in 2024 and he might even. Well, obviously, it's not going to win. But, um, you know, if he were to win, um, there are mechanisms to keep him out of Congress.

Hannah McCarthy: Mechanisms like the one Carlos mentioned in the beginning, like Congress refusing to seat someone.

Nick Capodice: Exactly. [00:18:30] But I will add, when Santos was asked if he'd run again, he said, quote, I'm not ruling it out, end quote.

Hannah McCarthy: What is it?

Nick Capodice: I just thought of, like, the George Santos version of square breathing. You know, like in two years. Wait, two years out, ten back in again. Who knows? It's very calming. Hannah. You should try it.

Hannah McCarthy: Yeah, okay.

Nick Capodice: Well, that is expulsion [00:19:00] from Congress. This episode was written and produced by George Santos. I can't make those jokes. Can I make those jokes? Kind of low hanging fruit? Uh, but yeah, this episode was made by me. Nick Capodice with You Hannah McCarthy. Our senior producer is Christina Phillips. Our executive producer is Rebecca Lavoie. Music in this episode by Scanglobe, Dyalla, Lobo Loco, Lofive, The New Fools, Fabian Tell, Dusty Decks, Pandaraps, Nekozilla, Bio Unit, ProletR who just released a great album but it's not in the creative commons so we can't use it, and the one who is never expelled from my episodes Chris Zabriskie. Civics [00:19:30] 101 is a production of NHPR, New Hampshire Public Radio.

Speaker14: Expelliarmus.

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Made possible in part by the Corporation for Public Broadcasting.