What happens when enough states want to change the Constitution?

Our Constitution provides for its own changes -- the framers knew that, while they worked hard, the law of the land was neither perfect nor should it be entirely immutable. So they included Article V, which allows either Congress OR the states to amend the Constitution if enough people agree. We've never had a constitutional convention of the states before, but that doesn't mean we won't. There's currently a movement trying to make it happen -- we dig into the why and how of this totally legal but very difficult path to change.


Transcript coming soon.


 
 

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How can the president take over a city's police department?

On Monday, August 11th, Trump announced a takeover of Washington, D.C.'s Metropolitan police. He also deployed National Guard troops and federal agents to the streets, all in the name of cracking down on crime. We called on political scientist and historian Dan Cassino to help us understand what happened, why it's legal and what could happen next.


Nick Capodice: [00:00:05] You're listening to Civics 101 I'm Nick Capodice on August 11th, 2025. President Donald Trump took control of the Metropolitan Police in our nation's capital, Washington, D.C. he also deployed federalized National Guard troops and FBI agents to patrol the streets alongside police officers in the name of cracking down on crime in the city.

 

Archival: [00:00:32] Overnight confrontations in Washington, D.C..

 

Archival: [00:00:36] Are you proud of what you're doing?

 

Archival: [00:00:38] As protesters pushed back against President Trump's move to expand the National Guard and federal officer presence in the nation's capital.

 

Nick Capodice: [00:00:45] Both statistics and statements from D.C. leadership tell us that crime is at a 30 year low in the capital. And still, the president declared a crime emergency in the city using a federal law called the District of Columbia Home Rule Act, which allows the president to seize control of the police under emergency circumstances for up to 30 days. This happened shortly after the 19 year old Edward Kirstein, former staffer of Dodge, who is known by a nickname. I will not say on a podcast that lots of high schoolers listened to, was carjacked earlier this month, and Trump posted his photo to Truth Social, promising to, quote, federalize this city. So since we at Civics 101 do shows on things like the Declaration of Independence or how a bill becomes a law, but we also do shows on things happening right now in our democracy. We wanted to jump into this quickly. We wanted to know how this action is legal. What mechanisms keep this situation in check, and whether this can happen where you live to get to it fast. Hannah McCarthy reached out to one of our most beloved, most trusted and certainly fastest responding guests, Dan Casino of Fairleigh Dickinson University. They talked on Thursday, August 14th. Since then, the Washington, D.C. attorney general has sued the administration, calling Trump's actions a, quote, hostile takeover. So here's Hannah and dance conversation, and we hope it answers your questions. All right, here we go.

 

Dan Cassino: [00:02:24] Yeah. So I'm Doctor Dan Casino. I'm professor of government and politics at Fairleigh Dickinson University in Madison, new Jersey.

 

Hannah McCarthy: [00:02:30] Excellent. Thank you. And, Dan, our listeners are very familiar with you at this point. All right. So we are talking about what is being referred to as President Trump's takeover of D.C..

 

Archival: [00:02:41] As President Trump's takeover of DC.

 

Archival: [00:02:43] Using the Trump administration's takeover of the police.

 

Archival: [00:02:46] Chief to execute a takeover of.

 

Archival: [00:02:48] And also extend his federal takeover of the president. Donald Trump's federal takeover.

 

Hannah McCarthy: [00:02:53] Is the word takeover an accurate one here?

 

Dan Cassino: [00:02:58] So in the case of DC, it actually is isn't accurate one. Dc, remember, is unique in the American federalist system. So generally we have all these other states. The states have their own local governments, and the state governments have power balanced with the federal government as per the constitutional design. Dc is not the same because DC is not a state. Dc is set up by Congress and government by Congress is a creature of the federal government. So the president is, by law, allowed to go into the case of an emergency. And of course, no one really gets to review when the president says something is an emergency, is allowed to have a full blown takeover of the DC police. He can just do that in a way that he couldn't do in other states or any other municipality in the country. So yes, the president is essentially can declare himself to be in charge of the DC police. He's essentially working the way a governor could in a state in sending in the National Guard, except, well, DC's National Guard, the president saying, well, I'm in charge. I can send the military, I consider the National Guard if I want to. And by law, he is allowed to do this in emergency. 48 hours of his own accord. After that, he has to inform Congress that he's doing it. And then he can do it for another 30 days, whether Congress likes it or not. Unless Congress passes a bill saying that he's not going to. Which, of course, will not happen.

 

Hannah McCarthy: [00:04:11] I do want to talk about this idea of the emergency, right. So Trump justified his crime emergency declaration by citing crime statistics. Now, a number of analysts have called these statistics false or misleading or inaccurate. The mayor of D.C. says that violent crime is at a 30 year low. Does a justification for a presidential action have to be true for the president to use it?

 

Dan Cassino: [00:04:38] This is a really interesting question. American constitutional law. So Congress does have all sorts of laws set up with tripwires in it where Congress says, all right, yes, generally we have to do this, but in an emergency you could do something different. We'll give you an out in an emergency. And this really goes actually back to the 1950s, where there was this idea that the world is moving so quick. We think we're in the Cold War. The nukes could start dropping any minute. Congress is all right. We need to let the executive branch do what they need to do. If there's an emergency and then after a couple of days, they can come to us, and then we'll have the sort of consultation proposed to have. Historically, in America, consultations are supposed to happen between the executive branch and the legislative branch, between Congress and the president. But there was a movement starting in the 1950s to make the consultation within the executive branch. So the executive branch has got to talk to itself. Think of what happened to the Cuban Missile Crisis, right. The president talks to all the secretaries, talks to the cabinet, and they all get together and they reach a decision. And it's thought in the case of Cuban Missile Crisis, that worked pretty well.

 

Dan Cassino: [00:05:31] So this is our model going forward. If you have a consultation within the executive branch okay. So we got all the consultation happening with the executive branch. The president is going to issue a statement of an emergency, a proclamation of this emergency. This activates whatever law Congress said you can do in case of emergency. The question is who gets to review that? Who can review this declaration? Does the decorative be factual? Does that be real? The answer is we have assumed that the president would never do something like make up an emergency. The law just assumes that because if he did, he would be poisoning his relationship with Congress. If the president just starts declaring emergencies and usurping all this power, the thought is, well, then Congress is going to start pushing back and the president is going to have real, real trouble passing any bills in the future. And that was essentially supposed to be the check in all of this. Now, if the emergency goes on for long enough, there might be some degree of court review. But the courts in general have been very, very unwilling to actually look at it. Essentially, an emergency is whatever the president says it is.

 

Hannah McCarthy: [00:06:29] Got it. All right. You know, you talked a little bit about how President Trump is allowed to take over the police and use the National Guard. D.c. is not a state. But what law permits the president to take control of the D.C. police?

 

Dan Cassino: [00:06:46] These are a series of laws that go into how Congress actually runs the District of Columbia. So the District of Columbia does have local government. It's got a mayor, it's got a city council. But that is entirely because Congress says they're allowed to have it. This is essentially Congress doesn't want to deal with, you know, traffic laws in D.C. so we'll set up some people to do this. The federal government, Congress in particular, still has ultimate control. The federal government, if they want to, it can go and overrule any law passed by the District of Columbia. They can do whatever they like. They probably wouldn't be allowed to like, remove the mayor because they didn't like her. But outside of that, the Congress and the president can do whatever they like. And it's actually a very similar relationship between a state and a city. You know, cities do not exist as their own legal entities. They are entirely subject to the state. So we've seen this in Florida in recent years where the governor can just say, no, that's he's not allowed to do that. And now you change the city policy. They can remove elected officials, but they can do all sorts of things because it doesn't operate as a separate legal entity. So Congress essentially, given DC some degree of autonomy, and Congress can take it back whenever it wants.

 

Hannah McCarthy: [00:07:51] I mean, this makes so much more sense when you think about DC regularly lobbying for statehood that it's this one city for whom essentially the president and or Congress is the governor. Right. It doesn't have the same thing as any other state in the nation.

 

Dan Cassino: [00:08:04] Exactly right. And they don't have that autonomy. And this is perceived by some people as being racist, that D.C., the district, Columbia is 44% black. And they say, look, we've got a lot of black people and we think we're being treated as second class citizens because we don't get the benefits of federalism. And that is not a phrase we hear a lot in American government. The benefits of federalism and federalism is a problem, but D.C. is looking for that protection. And, you know, D.C. state has been on the agenda for a long time. Democrats have been very skeptical about granting it in the thought that, you know, this could set off some sort of war where Democrats creating states and Republicans create states. And way back in the 1840s, before you know it.

 

Hannah McCarthy: [00:08:42] All right. So going back to what Trump has done in terms of what he is legally permitted to do, has a president ever done this before for DC?

 

Dan Cassino: [00:08:50] Yeah, I believe there was a mobilization of the National Guard into D.C. in response to rioting and in response to, you know, protests that turned violent in the 1960s and 1970s. We haven't really seen that since then. And look, the reason is because, first off, the president, nobody has better things to do than to worry about D.C. and if you're really worried about crime in D.C., you give the government of D.C. more money to hire more police officers. In fact, we should note that Congress and President in recent years have actually done the opposite. They took a bunch of money away from D.C., the district used for law enforcement. So, president, nobody has better things to do. Also, the people who are most upset by this and get the most affected by this are executive branch employees, a lot of whom live in D.C. and they get a little annoyed when they're suddenly, you know, road stops and checks all the time.

 

Hannah McCarthy: [00:09:35] And in terms of the police take over as well. To my knowledge, this is not something that has ever happened.

 

Dan Cassino: [00:09:41] No, the police takeover is not. We've seen mobilization, National Guard. We have not seen the provision allows them to take over the police force if necessary.

 

Hannah McCarthy: [00:09:50] You mentioned the 30 days that the president sort of automatically gets, but Congress can extend it. How long could this last? In your opinion? What are we going to be looking at here?

 

Dan Cassino: [00:10:01] Oh, okay. So again, it's 48 hours after 40 hours. President has to notify Congress doing it. This is actually the same language you see in like if the president attacks a foreign country, he has he has to notify Congress. Then 48 hours and then it is 30 days. And unless Congress acts to say, okay, this is cool and passes a bill to that extent, actually, it's a joint resolution. So Congress passed a joint resolution saying it's okay, in which case the president can extend it indefinitely. If Congress doesn't, then after 30 days, he basically has to stop. Uh, I have to say these laws were not that well written, as in, there is not necessarily a way to for Congress to make the president stop. That is, even if they say, no, you can't do this anymore. The president could the next day declare another emergency. And it's not clear that the Congress can do anything about that. So, you know, if after 30 days, the president says, okay, emergency over, I'm taking everyone home, and six hours later they say, oh, no, there's another emergency and they can do it again. So again, all of this is based on the assumption of goodwill and comity and the idea that even. You don't have to worry about the laws because everything is based on the norms of behavior. And so when you violate the norms of behavior and people are doing things outside the norms, then you know, the system starts to fall apart a little bit. And there's all sorts of little areas of American law, especially constitutional law, where we get the sort of outcome where it's just like, oh, it turns out they just didn't fully think this through because they didn't have to, because the norms were controlling in the past.

 

Hannah McCarthy: [00:11:28] So Trump said that he, quote, doesn't want to call a national emergency, but he will if he has to. But he expects Republicans in Congress to basically give him what he wants, which is an extension of his control of the police.

 

Archival: [00:11:42] We're going to do this very quickly, but we're going to want extensions. I don't want to call a national emergency if I have to, I will, but I think the Republicans in Congress will approve this pretty much unanimously.

 

Hannah McCarthy: [00:11:53] What would be accomplished by declaring a national emergency versus this crime emergency.

 

Dan Cassino: [00:11:59] So if we're declaring a national emergency, that would I think President Trump believes that would give him authority to go in and take over the police departments of other cities. Uh, so as far as a national emergency, what does it do with D.C.? I don't know what President Trump is talking about there, but President Trump has talked about doing the same thing in other cities in New York and Los Angeles and Chicago and taking over their police departments as well.

 

Archival: [00:12:19] We have other cities also that are bad. Very bad. You look at Chicago, how bad it is. You look at Los Angeles, how bad it is. And we have other cities that are very bad. New York has a problem.

 

Dan Cassino: [00:12:31] That would be entirely unconstitutional. There is no legal path for the president to do that again, because federalism. So the president has no legal authority to do that. But I think the idea is under an emergency. Uh, the laws can be suspended, as Abraham Lincoln said, you know, shall we preserve all the laws? But one if we have to break some laws and in order to save the country, then it's Acceptable under the Constitution to break some laws in order to save the country. And so I think the president would be saying, well, we are going to therefore say we're just going to suspend these laws for a little while. And he thinks perhaps a resolution from Congress allowed him to do it. There is, again, no legal way he could go ahead and doing that. But this just assumes everyone's going to follow the norms and rules that have been in place before.

 

Archival: [00:13:13] Hmm.

 

Hannah McCarthy: [00:13:14] So what we know is that that would be entirely unconstitutional. And it also depends on how people behave.

 

Dan Cassino: [00:13:20] Well, we should say there is actually there are ways the president can actually do a lot in terms of law enforcement in those other cities. So the Border Patrol can go into any cities within 100 miles of the border, including waterways. And that's all the cities, right? Unless we're talking about, you know, the middle of Oklahoma. Okay. No, but everywhere else. Yeah. The president could send Border Patrol into New York tomorrow. Fine. Um, the president can also send federal agents, even troops, to protect federal property. So if there's a courthouse that's under assault, he's allowed to send federal troops in there. He's allowed to send the Coast Guard in wherever he wants on any navigable waterway can be sent in, and they actually can do law enforcement activities.

 

Hannah McCarthy: [00:14:00] You know, the president basically authorizes his own control of the D.C. police. Why also include the National Guard? Why also include FBI agents sent on patrol? We know that there are already Ice agents out there. Why? Why basically mobilize all of these other national law enforcement entities alongside this action of taking over the police?

 

Dan Cassino: [00:14:23] So because you need to get more boots on the ground, if your goal is to get more boots on the ground, yeah, you could take over the D.C. police and say, all right, everyone's working two shifts a day now, but you're going to run out of people very, very quickly. And the president does have a whole lot of people working for him. This the whole executive branch. He could put people from the Department of Agriculture out in the street if he wanted to. So those are in direct, direct control of the president. The command and control is clear there. Right. If you want to order around the D.C. police, you've got to go to the police commissioner, order him to do it, and he'll do it. He's got to tell the sergeant he's got where if you just send the National Guard and the FBI, you just tell one guy and they go on doing it. Uh, this is the reason this doesn't happen a lot, honestly, with mobilizing the National Guard and the FBI is because you get burnt out real, real fast. So National Guard, generally, if they are sent out for 30 days, they're on active duty and they get all these active duty benefits.

 

Dan Cassino: [00:15:08] And so the tendency in recent years in America has been to send them out for 29 days or even 29.5 days, so you don't actually have to pay them housing benefits or anything like that, which saves you money. Good. But also really upsets the soldiers, right? Because you get to where you're stationed and they don't give you a housing allowance. They you have soldiers in California are sleeping on the floor of hotels. I mean, it's it gets real bad. And so you wind up burning out your troops and FBI agents. I mean, you spend four years in college and you go to Quantico, and you spend all these years studying, and they've got you walking a beat like a first year cop. Uh, that's real bad for morale. And so. And certainly, if you're an FBI agent, you're not used to standing on the street running a, you know, running a blockade on a on a city street and having people shout at you and boo at you. That's really bad for morale. So you don't want to do that over for too long.

 

Hannah McCarthy: [00:15:57] Yeah, that's something I've been thinking quite a lot about, is that you have all of these agents, these officers who are out on the streets, and you have so many people coming to them and saying, you don't want to be doing this. You don't want to be on the wrong side of history or screaming at them or throwing sandwiches at them. And I wonder, do we know of incidents where in either law enforcement or federal agents have gotten to a point where they say, I'm done, this is too much, I am either overtaxed or I don't agree with what's being done here.

 

Dan Cassino: [00:16:25] So what we do see is we get wildcat labor action essentially is we do get remember, these are all unionized employees. They complain to the union and we get sick outs. And we have seen that in the past. We saw that in California. People say, oh, I'm just sick. And so we get lots and lots of people calling in sick or pretending that they're injured or doing whatever in order to avoid going out, because this isn't pleasant for them. This is not what they train to do. It's not what they want to do. And so yeah, so we do get wildcat labor action, but that's kind of the extent of it because directly saying, oh, I don't want to do this. Well, that's a very quick way to get fired.

 

Hannah McCarthy: [00:17:02] What are the limits to using the military for domestic law enforcement?

 

Dan Cassino: [00:17:07] Okay, so let's talk about the Posse Comitatus Act. So this is post reconstruction. And reconstruction is the whole era Civil war, north winds that go into the south, and the army does not come back north. The army sticks around the south for ten years, basically enforcing civil rights law. Now, this is not because the Republican Party that was running things really cared deeply about civil rights law. Mostly it's because they wanted to win elections. And so what they did is they moved federal troops into the South to make sure that black voters who were disproportionately voting for Republicans because Abraham Lincoln, uh, that they could vote and disenfranchizing white voters, they say if you worked for the Confederacy, you can't vote anymore, which, you know, Confederacy's traitors. So I can see that. But also, it made those voters very upset. Hey, why do I get. Up. So the South starts electing lots of Republicans. Black Republicans likes lots of Republicans, which is good if you're a Republican. You're in Washington DC because you want to win elections. So after ten years, this turns out to be tremendously unpopular. Imagine you're a mother. Your child has been sent out in the Civil War. They're still in Alabama for some reason. You're like, wait, it is 1876 and we're still down there. What? The junk. And it's so unpopular. The Republicans lose the election of 18, the presidential election of 1876 and make a deal with the Democrats and say, all right, we will agree to end reconstruction, pull the northern troops out if you let us steal the presidential election. And so the Democrats agree to it. And then suddenly you find all these voting irregularities and a bunch of southern states that happen to say, it turned out the Republicans actually won the election, and you get President Hayes rather than President Tilden.

 

Dan Cassino: [00:18:40] So now, as part of this deal, how are you going to make sure how are the Democrats going to hold the Republicans to this deal to make sure they're not going to go right back down there to make sure they don't start enforcing civil rights law and making sure black and African voters get to vote. And the answer is the Posse Comitatus Act. And the Posse Comitatus Act makes it illegal for the Army to go down and enforce federal law and enforce any local law. The Army cannot enforce the law. Period. Now you may be saying, oh wait, that sounds like an exception there. It just says the Army. And that's true. The version of the law passed in 1878 only says the Army, but it was later expanded to include the Marine Corps, and the Air Force cannot do it. Now, I will say it doesn't include everybody, because the Posse Comitatus Act actually specifically excludes as rewritten as recently as the Biden administration specifically excludes the Coast Guard, which is actually allowed. They are armed, they are allowed to go in and enforce the law if they need to. So they can be used for domestic law enforcement purposes. No one else can. And I will say the role of the Space Force here is also still up for grabs. So I'm not quite sure if the Space Force can be sent to enforce domestic law. But the Army, the Marines and the Air Force cannot.

 

Hannah McCarthy: [00:19:43] We're going to take a quick break when we return. I talked to Dan about the last time President Trump federalized the National Guard and deployed them in an American city back in June of 2025. Stay tuned. We're back. I'm talking to Dan Cassino, professor of government and politics at Fairleigh Dickinson University and stalwart friend of civics and democracy, about President Trump's recent takeover of the Washington, D.C. police and deployment of federal troops and agents to the streets of D.C.. I asked Dan about another instance of Trump sending troops to American streets when he federalized California's National Guard in response to protests over mass immigration raids. Trump says he did so to protect federal agents and property. California says his actions were illegal, a violation of posse Comitatus. Don't worry, Dan will give you a refresher, and we're waiting to hear how a federal judge will rule on the constitutionality of Trump's actions in California. So this brings me to, you know, There is currently a three day trial going on. If there is a federal judge determining whether or not Trump, when he basically took over the California National Guard and sent them in in response to protests in California, whether or not he violated the Posse Comitatus Act by doing that in terms of, you know, if you're just looking at the Posse Comitatus Act, how it works, does it seem as though the president did violate the Posse Comitatus Act?

 

Dan Cassino: [00:21:15] So this trial is getting a very, very narrow term so that we know the troops can be sent to protect federal buildings. And that's actually what they were doing. So they were stationed on federal buildings, or they were protecting federal workers who were doing stuff. So essentially, Ice agents and Border Patrol agents were arresting people. We called the National Guard to defend them, but they cannot do any domestic law enforcement. They actually can't arrest anybody. It's not clear what they're supposed. They're supposed to stand there to look intimidating. So nobody gets close to them, I guess. And we actually have one incident where it seems like they arrested someone. And this gets into the very weird distinction between detaining someone and arresting them. And essentially we did have soldiers. We have National Guard troops who arrested someone, who detained someone for about 25 minutes because, well, this person was going into restricted area. We told him not to. And then we held him for 25 minutes that letting him leave until the local police could come and pick him up. And the question is whether that's a detention that amounts to an arrest. Because if you say, can I go and the police say, no, congratulations, you're under arrest. Does that amount to a violation of the Posse Comitatus Act? And the question is basically about intent. Were they intending to hold him in, arrest him, or were they just kind of milling about and making him not leave until the local police got there? Is there a distinction? We don't know? Um, it certainly does seem like they were very clearly riding that line. But what they could and could not do because, again, the National Guard, the militarized National Guard. So we should distinguish here. If Governor Newsom had sent the National Guard in to California in order to patrol the streets and enforce the law, they could enforce domestic law all they want. The difference here is that the president Nationalized the National Guard, making them essentially the equivalent of the Army rather than the California National Guard. And that's why the Comitatus Act kicks in.

 

Hannah McCarthy: [00:22:58] Okay. And so this judge is not going to be attempting to determine whether or not those protests qualified as an invasion or a threat of rebellion.

 

Dan Cassino: [00:23:06] No. It's irrelevant. It's irrelevant to this. The question is for the Posse Comitatus Act. Let's take is a given that the troops are there. All right. Troops are there. Fine. What are they allowed to do? Were they not allowed to do? And were they violently attacked by being there at all?

 

Hannah McCarthy: [00:23:21] Okay. Got it. Thank you. So when it comes to how DC might respond to Trump's actions this week, we know that DC is very different. Dc is not a state. Trump is permitted to mobilize the National Guard the way that he has. If DC were to issue any kind of legal challenge, what might it look like?

 

Dan Cassino: [00:23:39] Legal challenge is really tricky here, because the only thing they really could do is try and challenge the declaration of the emergency and say, this is not really an emergency. This was illegitimate. It never should have been allowed. That said, courts are very, very reticent to question the president's declaration of emergency. The thought is, I mean, because Congress does give the president this power. So this falls under what we call the political questions doctrine. I mean, in American constitutionalism, if you think the president has exceeded his power in a way like this, the solution we have is impeachment or removal, and we don't have any other solutions for this in the American system, which is a problem. It has been known to be a problem for, oh, I don't know, 200 years. So we know it's a problem, but that is the only solution here. So this is if he violated this. The solution is for Congress to impeach him and remove him from office. And that's the only solution we have. Um, or Congress, of course, could use the power of the purse and say, hey, we're going to you cannot use any money in this, in this budget to do this thing we don't like you doing. Also possibility. But of course, even that budget power has been cut pretty substantially in recent months.

 

Hannah McCarthy: [00:24:40] And I assume that whatever comes out of the federal judge's ruling with Posse Comitatus will not have any impact on what's going on in D.C., correct?

 

Dan Cassino: [00:24:48] Well, in theory the so first off the plastic contact. Yeah. Is not going to kick in in DC because he's not sending the military in DC. And if you send National Guard troops those National Guard troops are under his control anyway. So it is as if he is the Gavin Newsom in this who can send the National Guard in California if he wants to. He can let the National Guard in DC if he wants to. None of this really kicks in. Um, it could potentially kick in if he actually took the Marine Corps and put the Marine Corps on corners so it wasn't the D.C. National Guard and had them arresting shoplifters. Yeah. Then PCA would kick in. Um, but, you know, I don't see that happening. And and if he did, he always could just use the Coast Guard in the Space Corps.

 

Hannah McCarthy: [00:25:26] So looking at sort of the politics or the PR of this, what are the impacts of the president of the United States saying that the Capitol is essentially a wasteland of crime and bedlam and bloodshed?

 

Archival: [00:25:42] I'm announcing a historic action to rescue our nation's capital from crime, bloodshed, bedlam and squalor.

 

Dan Cassino: [00:25:50] Well, so this goes back to something President Trump has been talking about since his first inaugural address in 2017. We talked about American carnage, that cities are horrifying and unsafe. And so he believes that rhetorically, this works to his advantage, that in times of chaos that people are going to want a strong hand at the wheel. And so if you portray things as being chaotic, that they're going to say, well, we'll put someone in charge who knows what they're doing, who can actually really fix these problems. And of course, it matters that these cities are mostly run by Democrats. And so they're going to say, these Democrats cannot fix this crime problem. We need someone strong to come in and do it so rhetorically among Republicans. It works for him and his. He and his advisers certainly believe that this makes sense to portray cities in democratic states as being hell holes. Now, the data does not back this up. The most dangerous cities in the United States are small to medium sized cities. Many, many in the US South, in New York City, Boston. These are not in the top ten of the most dangerous cities in the United States on a per capita basis. That said, there we have a continuing problem in America, and this has been not just America, which has actually seen this in data from Europe as well over the past 20 years, where there's been a disconnect between people's perceptions of crime and the actual crime rates.

 

Dan Cassino: [00:27:03] And if you go back before about the 1990s, they moved along with each other and crime was up. People thought crime was up, crimes down, people thought crime was down. And since about 2004, 2005, we've seen as those become increasingly disjointed and now people think crime is way up. People think crime is much, much worse than actually is. In fact, there was a big a bit of a spike in crime around 2020 2021 during the pandemic. It's since come down. You know, murder rates, crime rates everywhere in the country are way, way down. Nobody quite knows why. Um, lots of weird theories about why that might be. But murder, crime, you know, all these rates are way, way down. But people are scared. More scared than they used to be. Which is so weird because people's, of course, it doesn't matter what the actual crime rate is. If you think everything is dangerous, you're gonna want someone to somebody protect, you're going to want more police. And so the fact that the crime is actually down almost doesn't really matter.

 

Hannah McCarthy: [00:27:55] Is there anything that we didn't talk about that's really important and should be in this episode?

 

Dan Cassino: [00:28:00] I do think, look, this is supposedly the sort of thing that is consultation between President and Congress. That is the way this is definitely envisioned by the founders, definitely envisioned by the law that was passed by this. But that has fallen apart. I mean, Congress has is not doing its job and has not been doing its job for about 30 years now. And Congress has just stopped doing his job. And when Congress gives up power, that power doesn't just fly away into the ether, it goes somewhere else. And we've seen that power because Congress has given up its power. It's not doing the things it's supposed to do because of that. That power is flowing to the executive branch and to the courts. And so we see the courts and the executive branch getting so much more powerful than the Constitution ever intended for them to be. This is something that we would have never seen in a previous president, because Congress would have stepped in and done something, or Congress would have, or the president would have been scared that the Congress would do something. They would only do it in consultation with the leaders of Congress. And we've seen the leaders in Congress are just saying, you know what? Let the president, whatever the heck he wants. That's the real crisis here, is that we've got this long term crisis of members of Congress just being afraid to actually exert the enormous powers that Congress has under the Constitution.

 

Hannah McCarthy: [00:29:06] To your eye and ear, is the American public paying sufficient attention to the divesting of power in Congress and where it is going?

 

Dan Cassino: [00:29:15] I only when it gets to outcomes. So the public cares deeply about outcomes. The public does not care about process. There's lots of laws. Congress would like to get people like Congress to pass. It doesn't happen and people are upset about that, or a law does get passed that they don't like or the president isn't. They don't like. They care about the outcomes. They don't really care about what's going on there. And honestly, if you ask them, do you want Congress to have more power? There's always going to be no, because no one trusts or likes Congress. Um, and you're not supposed to. I mean, Congress has always been widely despised. People generally like their own member of Congress, and everyone else is terrible. And I live in new Jersey, so we actually also think our own members of Congress are corrupt and terrible. So people don't want Congress to have extra power because they don't trust Congress either. But I'm not sure they like the outcome. So this is why presidential elections and, you know, appointments to Supreme Court appoints judges have gotten so much more fraught because we've just given all the power over to them and all the decisions people from the Supreme Court like or don't like any of these could just be overturned by a law, almost all of them. But Congress isn't willing to do much. They've just given that power over the public cares about outcomes. They don't really care about the process.

 

Hannah McCarthy: [00:30:24] Just a reminder that this episode was taped on Thursday, August 14th and released the following day, so there's almost certainly more to know on the situation, including how Congress votes on an extension of President Trump's federal control of the D.C. police, and how a federal judge will rule in the Posse Comitatus challenge to Trump's federalization of California's National Guard. Stay informed, dear listeners. That does it. For this episode, I warmly recommend you check out Dan Cassino's books, which include Masculinity in American Politics and Fox News and American Politics How One Channel Shapes American Politics and Society. This episode was produced by me, Hannah McCarthy with Nick Capodice. Our senior producer is Christina Phillips, who is leaving the team to become Senior news editor at NPR. And we couldn't be more delighted for her and our news team. Or more bummed for us. We love you, Kristina. We'll miss you. Rebecca Lavoie, Executive Producer don't you go anywhere, Rebecca and Marina Henke, our producer. Same to you. Music in this episode comes from Epidemic Sound. Civics 101 is a production of NHPR, New Hampshire Public Radio.

 


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What's it like being a scientist facing federal funding cuts?

It’s a weird time to be an environmental scientist. The proposed cuts to federal science funding in the United States are profound, and if they come to pass, it’s not clear what American science will look like on the other side. But for many researchers, science is much more than a career: it’s a community, lifestyle, and sometimes even a family business. 

This episode was produced by our fellow NHPR podcast Outside/In. You can check out photos and more related to this episode right here. 



 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Cinema Civics: Mr. Smith Goes to Washington

When Mr. Smith Goes to Washington came out in 1939, it infuriated politicians, the press, and fascist nations. At the same time, it delighted audiences and informed them on the legislative process decades before Schoolhouse Rock

Today we talk about the film, as well as corruption, earnestness, our families, lost causes, and hope.

Listen to our episode of Hannah's visit to the Lincoln Memorial here.


Transcript

Archival: You all think I'm licked? Well, I'm not licked. I'm gonna stay right here and fight for this lost cause. Even if this room gets filled with lies like these

Nick Capodice: You are listening to Civics 101, I am Nick Capodice.

Christina Phillips: I'm Christina Phillips,

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today in our cinema civics series, we are talking about the big one. Mr. Smith goes to Washington.

Archival: What do you know about laws are making laws or what the [00:00:30] people need? I don't pretend to know. Then what are you doing in the Senate?

Nick Capodice: Now, first off, I wanted to tell you, too, that this was not initially my first pick for Cinema Civics. I was going to do network, which is one of my favorite films of all time.

Archival: You have meddled with the primal forces of nature, Mr. Beale.

Nick Capodice: But then I had a conversation with my mom and I said, well, I can't decide if I'm going to do network or Mr. Smith goes to Washington. And she was like, you have to do. Mr. Smith goes to Washington. I said, why? And she [00:01:00] said, because it's a really hard time right now and people need hope. They don't need media cynicism. They need a story about, you know, one person can fight against a problem or a difficulty in the government. So I followed her advice. Before we launch into the movie, Hannah, Christina, the three of us are people who love to be sarcastic and speaking for myself and myself. Only a little bit of a no at all. From time to time it would be easy, and [00:01:30] it would be fun to sort of talk about how corny and propagandist, rah rah rah America and completely naive this movie is. Let's just break that for like one day, or at least for ten minutes of one day. Uh, so I wanted to start just by asking each of you. And I'll start with you, Hannah, if there's anyone in some way or another in your life, in your childhood, or anywhere that resembles Jefferson Smith in terms of a person who, regardless of how [00:02:00] impossible it seems, continues to try to do the right thing. Up against all of the machines.

Hannah McCarthy: My father has worked in housing for 35 years, I believe, and many days of his job include things like trying to tackle the problem of waste in the building, you know, the endlessly piling up garbage, [00:02:30] for example, or believing that he can convince the owner of an apartment to invest more money in the health, safety and function of that apartment than in the way that apartment looks, so that you can charge more money. And he does it every day. He goes back every day, and he does it even if he repeatedly gets pushed back down the hill. You know.

Christina Phillips: This is going to be so navel gazing, but whatever. Um, [00:03:00] I think of some of the journalists and particular friends that I have that are journalists who are reporting on just an avalanche of things. And, and the reporting itself becomes just an act of witnessing. Um, and the like, I think with, with climate coverage, for example, whatever you may define as the lost cause, the outcome of trying is not necessarily that there [00:03:30] is a win. The the outcome of trying is demonstrating that he tried like that, that, that you can try and that will actually that matters to people that you are trying.

Nick Capodice: I feel like it's cheating, Hanna, but mine's also my dad. Uh, as somebody who is perpetually, you know, was perpetually told, you know, stop doing this act. Acts. Quote unquote, more normal, no matter what. He would go to every social situation with like [00:04:00] full on love and full on excitement and attention. Uh, never hurt anybody to the best of his ability. Uh, and he kept getting hit in the head by it over and over and over again, but he just never stopped doing it. Um, and the the line in the movie that made me think of that is when Jefferson Smith is speaking, he says, I wouldn't give $0.02 for all your fancy rules if behind them they didn't have a little bit of plain, ordinary, everyday kindness and a little [00:04:30] looking out for the other fella too. Mhm. And we're a show about rules. So we talk about like what our show is, is talk about the rules about how things operate. And this movie kind of, uh, helped me realize sometimes the rules are there for a really good reason, be it to preserve democracy or to preserve kindness or something like that. And it's easy to get cynical about it, but, uh, just for this, like two hours last night when I watched the movie, I felt that. With [00:05:00] that said, let's launch into it. Mr. Smith goes to Washington. Directed by Frank Capra, starring Jimmy Stewart.

Archival: It's just the blood and bone and sinew of this democracy that some great men handed down to the human race. That's all.

Nick Capodice: Jean Arthur.

Archival: This is no place for you. You're halfway decent. You don't belong here. Now go home.

Nick Capodice: The gentlest actor in the world, Claude Rains.

Archival: You can come here and pull that steamroller stuff. No methods won't do here.

Nick Capodice: The not so gentle Guy Kibbee.

Archival: Oh, my nerves are strained to the breaking point. [00:05:30]

Nick Capodice: Hollywood's resident bullfrog. Eugene Pallette.

Archival: I haven't been able to show him a single monument. Not even one that high.

Nick Capodice: And last but not least, Baby Dumpling.

Archival: Oh, it's a briefcase Jeff

Nick Capodice: So, Hannah, just give me your, like, first impressions of the movie. Like, what did you think?

Hannah McCarthy: I was incredibly moved by it. I was crying by the end of it. I really appreciated the fact that in this film, Washington is pretty much [00:06:00] what we, um, when cynical, think Washington is, that you can have all of your rules and it's such a civics lesson because you've got this man appointed senator who has to be told the very, very basics of things like how to craft a bill, which was a brilliant scene. Um, yes. And he's often being told this information by cynical people who are sort of rolling their eyes at him. And then so you've got these things, you've got the how it's supposed to work. Right, which we're very familiar with here at Civics 101. And [00:06:30] then you have the deep and incredibly effective corruption that has seeped into even Jimmy Stewart's, you know, most revered friend of his father, who's been a senator for decades now, even he has been poisoned and he won't let go of it. And I, I actually, you know, snicker in terms of like, hokey or propaganda or all of that. Sure. But at the same time, to make a movie that is honest about [00:07:00] the deep and almost, uh, inescapably powerful corruption in Washington, I think was pretty honest.

Christina Phillips: I think my couple stray thoughts for this is that it's got a lot of really good physical comedy, and the scenes are nice and long and lingering, which I really found refreshing. Um, and I think it's interesting that the audience learns very on that. Mr. Smith is being set [00:07:30] up to fail. And because it makes me wonder what the experience would be like if we learned with him about the corruption. But we learn, you know, like the first five minutes, there's not a lot of subtext. It's all text. Like he's just they're just saying straight out, we're going to do this and we're going to do this, and we need a guy that will just be a body in the room. And and so we get really clear, like pretty straightforward corruption right on the surface. And then to Hannah's point, this [00:08:00] is a really great civics lesson in so many ways. And so I really loved that. I think that that, you know, we have an episode about how a bill becomes a law. And the way that Saunders laid it out is just a really it's so succinct and fascinating, and it has a little bit of humor to it. At one point, I muttered, everything Saunders says is poetry, and I didn't even realize I'd done it. But my partner was watching it with me was just like cackling. And every time she said something, he'd be like, [00:08:30] was that poetry? Was that poetry? But I stand by it. Everything she says is poetry. It's so good, I agree. So yeah, I think I just yeah, it was it. I didn't walk away feeling cynical at all. I walked away being like, yeah, people know how the government works. And also, uh, look at all these human beings. So that's my takeaway.

Hannah McCarthy: Yeah, I also feel like it was one of the better love stories I've ever seen. Not to give it away that you.

Christina Phillips: Spoiler [00:09:00] alert for 1939.

Hannah McCarthy: You know, you never know. But you have. You have someone falling in love with, um, you know, sort of initially being, uh, I really about someone's naivete and then sort of coming around to realize that it's, it's almost not naivete that it is the, the necessary ingredient in the functioning of a democracy [00:09:30] and a society. And so it's almost like she's not falling in love with the man, or she's falling in love with the man alongside falling in love with what he represents, and it's something that she lost. You know, she said she she came to Washington with blue question marks in her eyes, and now she's got green dollar signs in her eyes. And you can tell she's constantly saying, I want to quit because I'm over all this, this, this is terrible. It's there is no government. It's just business [00:10:00] guys running the world. And then he, she she also sort of falls in love with the fact that he's able to bring her back into a belief, I think, in American democracy, which I found really touching. His editor needs a little work, though. Those are some of the roughest cuts I've seen in a long time. But you know what? I didn't really care.

Christina Phillips: I couldn't tell if they were because of restoration or what, but there were some rough cuts.

Nick Capodice: I'm so glad you mentioned the sort of bad edits and the bad cuts in the movie Hannah, because [00:10:30] Frank Capra was sometimes kind of known for that, for his in delicacy with the camera, uh, later on in life. In an interview, he said undisguised camera tricks are the mark of beginners who fall in love with bizarre camera angles and hand moving camera shots. Wrong. Fall in love with your actors. So yes, that's a little self laudatory.

Hannah McCarthy: I appreciate that, no, I really do.

Nick Capodice: I appreciate the fall in love with your actors. Let me tell you about Frank Capra. We are a nation of immigrants, so I'm going to leave it to one to [00:11:00] tell us about what America stands for. He was born Francesco Rosario Capra, and he comes from the land of the Kapodistrias, which is Sicily, just outside of Palermo in Italy. He came to Los Angeles when he was five. He came in steerage, a 13 day trip with his family to come to America. One moment he remembered, even though he was five, was his father looking at the Statue of Liberty, grabbing his son and pointing to it and saying, look at that. That is the greatest light since the Star [00:11:30] of Bethlehem. That is the light of freedom. And remember that freedom. He was broke. He was penniless in Los Angeles. He went to Caltech for chemical engineering, and he paid for it by waiting on tables and playing the banjo in nightclubs.

Hannah McCarthy: Wow. Man. After your own heart.

Nick Capodice: That's right. My own grandfather played the banjo. So, uh, that really sticks to me. Uh, and he finally. How he got a gig in filmmaking was he lied to a Hollywood producer and said he had experience making movies. And [00:12:00] this producer allowed him to shoot a one reel short film. And step by step, he becomes Frank Capra.

Christina Phillips: Incredible.

Nick Capodice: His career after Mr. Smith goes to Washington is very interesting, and I'm going to talk about it sort of at the very end. But now let's get to the movie itself. Christina, can you sort of tell us, like, how we jump into the scene, like, you know. How does this whole thing begin?

Christina Phillips: Well, a senator has died.

Archival: Senator has died.

Archival: Senator Samuel Foley. Dead? Yeah, yeah. Died a minute ago here at Saint Vincent.

Christina Phillips: A senator from a state [00:12:30] that is not explained. That appears to be Midwestern, based on the Washington of it all. Um, not that I'm really someone who should be speaking with expertise on accents, but, um, and the other senator, the governor, and then the political boss, I guess we'd call him, who seems to be the media press guy, all get together and are like, who do we put in charge of this position? Because we have a very important [00:13:00] vote coming up, and we need a body in a chair to vote. Is that about cover it?

Nick Capodice: That was pretty good for a quick civics 1 to 1 lesson. Do either of you know how we fill a seat? If that senator dies or resigns.

Hannah McCarthy: The film would have us believe that the governor appoints the, uh, senator, I think, to fill the seat until there can be an election. However, I also know that Senate seats sometimes sit vacant.

Nick Capodice: Very good.

Nick Capodice: Hannah, in 35 states, you get a temporary senator who is appointed by the governor, [00:13:30] and then you got a special election to fill that seat the next time your state has an election. So that's what happens in this movie. Governor Hopper. Happy Hopper is in a whole pickle. He needs to pick a senator. But as you mentioned, Kristina, he is entirely in the pocket of the villain of this movie. Or, in my opinion, the villain. Jim Taylor. Uh, Hannah, would you tell us a little about, like, who is Jim Taylor?

Hannah McCarthy: Yeah. So I don't know exactly what his business is, but I know that he [00:14:00] is the person who has a hand in every newspaper and as many businesses as possible and, uh, can move and shake Congress because of all of his many connections and because of his strong arming. But it's specific to the state that Mr. Smith is from, that he's really in control of this state. And in the case of this film, he wants a deal to go through that he will personally financially benefit from.

Nick Capodice: He is [00:14:30] basically a party boss as much as I can find out. Yeah. He owns all the newspapers. He owns all the media in the state. And by the way, when I started to notice that I didn't know what the name of the state was, I became obsessed with it. I would like, look for, like, license plates or billboards or anything to just give me an idea, like, what state are they from? But I think it's in the West. I think it's like some sort of nearest California, just judging by his description of the prairies.

Hannah McCarthy: Right.

Christina Phillips: I so I have a question. I, I sort of once I realized they weren't going to identify the [00:15:00] state, I just assumed they didn't want us to know. And then that made me wonder, do we know what party these people are and are we?

Archival: That was my next question.

Hannah McCarthy: Do not we do not.

Christina Phillips: Good. Yeah.

Hannah McCarthy: No, it's very clever. We have no idea what party they are.

Nick Capodice: There's no indication because we don't know what other kinds of bills they're passing. And we know that it's 1939. So, like, what did Republicans and Democrats stand for in 1939? I actually don't even have the greatest idea, but we didn't know.

Christina Phillips: Yeah, it's a curiously aligned Senate [00:15:30] and that they all seem to agree with each other in the way that they all leave at the same time they come back. I know that's further in the plot, but there seems to be absolutely no, uh, like political parties in this Senate that we're shown.

Nick Capodice: Taylor needs a yes man to push through this dam, because this dam is a big piece of craft. And I was going to ask for one of you to tell me what what graft is. But, Hannah, you kind of just did it, right.

Hannah McCarthy: I don't know, perhaps I did. I always thought of [00:16:00] graft as an action you do for profit. That isn't actually what it seems to be for other people. Does that make sense? Like you're sort of tricking people. Is that correct?

Nick Capodice: Yeah. Well, actually, you said it earlier. The definition of graft is for in politics. It's a politician using their position for personal gain, usually financial gain. Okay. So it's being like a senator or a president and using that power to make yourself some money. Uh, we've done episodes before on like the Emoluments Clause, [00:16:30] which are things that are sort of created to prevent people from doing this. But it still happens a lot, doesn't it?

Christina Phillips: This does make me think, I don't know if, like the literal origin of the word graft is is meant to be taken in the biological sense, where you sort of graft on to things. But, uh, this the fact that this is happening in a, what they call a deficit bill, which seems to be a large bill, is something we see strategically all the time in Congress, where there's a big bill that's [00:17:00] very easy to sell on certain populist policies. And you sneak in things in the text of that bill or in the like, the fine print that seem to be more targeted towards specific policy aims for individual politicians or certain parties.

Nick Capodice: So Jim Taylor tries to appoint a stooge, sort of a chair warmer, to go in and vote through his dam. But the governor, Governor Hoppy, says, uh, no, we can't do that. The people will revolt. The people are demanding this sort of progressive other guy and Jim Taylor's like, [00:17:30] absolutely not. That night at dinner, the governor gets no peace from his children, including Baby Dumplin, who insists that there is one man only who can hold the job of senator for this mystery state. It is a wide eyed lover of nature, head of the Boy Rangers, Jeff Smith.

Archival: He's the greatest American. We got to dad. He can tell you what George Washington said. My heart.

Nick Capodice: The reason it's the Boy Rangers is the Boy Scouts of America refused to be involved in the movie and to have their name used, so they had to [00:18:00] make up the Boy Rangers. So Jefferson Smith's appointed, there's a celebration party, and interestingly, they play old Lang signs.

Hannah McCarthy: Yeah. What was that?

Nick Capodice: It's just like It's a Wonderful Life. Jimmy Stewart just has that song following him around wherever he goes. And at that party, the fellow senator of the Missouri state Senator Payne, who is played by Claude Rains, whom I love so deeply. For anyone out there who doesn't know Claude Rains, he plays Louis Renault in Casablanca.

Archival: I'm shocked. [00:18:30] Shocked to find that gambling is going on in here. You're winning, sir. Oh, thank you very much.

Nick Capodice: So at that party, the corrupt Senator Payne learns that Jefferson Smith's father was a Clayton Smith. Clayton Smith was Senator Payne's best friend back in school. I love the scene where the two of them are taking the train to D.C., and they sort of reminisce about Jefferson Smith's dad, who was a newspaperman who took on a corrupt mining interest and eventually was murdered for [00:19:00] it was shot in the back over his rural top desk, still with his hat on.

Hannah McCarthy: Still with his hat on.

Archival: Still with his hat on.

Christina Phillips: My note watching this was. We are two minutes into this plan and it's already falling apart. That being the plan of getting Jefferson Smith there and that he means nothing because it appears as though he means a lot, as is very deeply connected to the other senator.

Nick Capodice: I would also like to note that it was. I made a little note to myself, [00:19:30] to Christina, two minutes in. And that's the first cry.

Nick Capodice: Yeah.

Nick Capodice: I can't help it. Claude Rains can make anybody cry. So at the end of that train ride, finally, Mr. Smith goes to Washington. And before we get into what happens in Washington, we have got to take a quick break. All [00:20:00] right, we're back. You're listening to Civics 101. We're talking about Frank Capra's Mr. Smith Goes to Washington, 1939, and we are here. We made it to Washington, DC. Hannah, you want to lay out, you know, Jeff Smith's arrival in the wacky, turbulent Capitol.

Hannah McCarthy: So they get off the train, they're being followed around by porters, um, one of whom is carrying Jeff Smith's messenger pigeons that he has brought along with him.

Archival: Pigeons to carry messages back to mall.

Hannah McCarthy: You know, all of the other sort of the handlers, the other senator, the other people, [00:20:30] they just want to get Jeff to his offices. But Jeff wanders off because he sees the Capitol Dome.

Nick Capodice: What'd you think of that part when he was wandering around D.C.? And this is the emotional, emotional musical part of the movie where he wanders around Washington, D.C..

Christina Phillips: So I feel two ways about it. One way I'm like, oh, this is so lovely. And I just kept thinking, audiences of that time, this is maybe the first time you see the [00:21:00] detail of D.C. through the eyes of this person. You know, you get to get a tour yourself. And at the same time, I was sort of like, this is a two hour movie, and we got all four sides of the Lincoln Memorial in this movie. But I really loved it. I was so moved. You know, just seeing him experience these things. And then we've got that long pause for the child to read a line from something in the Lincoln Memorial. And the man [00:21:30] is teaching him how to read. And I was like, ah, yeah, I'll be here forever. This can be five hours. I don't care.

Archival: That we here highly.

Archival: Resolve.

Speaker6: Resolve that these did not have died in vain.

Hannah McCarthy: What was interesting for me is the fact that although it was so terribly cheesy and drawn out and long and and I don't, I don't necessarily think that an audience member who's not like me or perhaps like Christina, someone [00:22:00] who's who's very vulnerable to that sort of thing, would be convinced of it or won over by it. But as someone who has cried in the Lincoln Memorial every single time, including on tape, I was like, yeah, well, you know, I mean, I get it. I totally get what he's feeling. I just don't. I'm not sure about the execution. I have to be totally honest with you. But it still worked on me.

Nick Capodice: Yeah, it worked on me too. It did feel a bit much, but it worked on me. And by the way, listeners were going to put a link in the show notes to the episode where Hannah [00:22:30] cries at the Lincoln Memorial, because that's one of my favorite ones.

Christina Phillips: That's really sweet.

Nick Capodice: Well, Jefferson Smith finally makes it to his office, where he meets his hard nosed, whip smart secretary, Hannah McCarthy. Just kidding, just kidding. Clarissa Saunders, she is cynical. She dates a reporter named diz who keeps asking her to marry him.

Hannah McCarthy: I don't know if she's dating the reporter.

Hannah McCarthy: Be honest with you. I think he's just. I think he's [00:23:00] in her space. He's constantly hitting on her, and he is her closest press connection. She's. He's the one that she's like. She tells what to do. Give me this headline. Do this for me.

Nick Capodice: Hmm. Maybe you're right. Maybe they're not dating. They just go out and eat oysters and steak and drink a lot together. Saunders hates the fact that she has to babysit this idealistic bumpkin, so she decides to quit. She's like, I've had enough of this job, I'm out and she's gonna go out in a blaze of glory. So she's [00:23:30] six. The Washington reporters on Jefferson Smith now is where I'd like to ask you both what you think about the depiction of the media in this film.

Speaker8: Oh, they're utterly corrupt.

Hannah McCarthy: Utterly corrupt. But, you know, it's what's interesting about it to me is that, um, the media are either bought in this movie or they are doing anything to catch someone out and to to get a good headline. Right. But [00:24:00] then at the end.

Archival: Jeff has a paper. They're boy stuff, right? They aren't letting what Jeff says get printed in the state. Now, if I give you a raft of it over the phone right now.

Hannah McCarthy: I thought to myself, well, there's there's little old public radio. You know, like. Just for.

Christina Phillips: Voice.

Archival: Just for periodical.

Nick Capodice: Us, our little public radio station. Just getting run over by Cybertruck. Sorry. That's too hard. Our public radio station is getting run over by a truck. [00:24:30] That is the complete recission of funds already promised to us. Well, eventually Jeff Smith goes to bed and he arrives for his first ever session in the Senate the next day at noon. By the way, the the the the Senate in the movie, that was the largest set that Columbia Pictures had built to that point. Wow. It's a complete replica of the US Senate. Capra had gone to DC and filmed, like, every square foot of it, to make sure he recreated it perfectly. [00:25:00] And when he gets into the Senate, he is shown the ropes by a young Senate page named Richard, who he calls Dick. I love in movies where there's like some person who knows what's up, who's telling the protagonist how everything operates. That's like my favorite trope.

Christina Phillips: There's a lot of that in this movie. There are several characters who do that for him.

Archival: They are not a bad desk either. Daniel Webster used to use it.

Archival: Daniel Webster sat here.

Archival: Give you something to shoot at, Senator. If you figure on doing any talking.

Archival: Hold on.

Archival: I'm just going to sit around and listen.

Archival: That's a way to [00:25:30] get reelected.

Nick Capodice: Then we see the swearing in of Jeff Smith by the very avuncular president of the Senate, played by Harry Carey. Uh, next civics question. Who's the president of the Senate?

Hannah McCarthy: Um, the vice president. Right?

Nick Capodice: Yeah. Do you think this guy was the vice president?

Christina Phillips: Now he's the president pro tem?

Nick Capodice: Yeah, he is the president pro tem.

Hannah McCarthy: He's got to be.

Christina Phillips: Yeah. What I find so interesting about the president pro tem, which is the person who acts to lead the Senate in the absence of the vice [00:26:00] president, is. It's the longest serving senator from the majority party and also third in line of succession.

Nick Capodice: I was going to ask for a definition of president pro tem, but you already got that right.

Christina Phillips: I'm so ready.

Nick Capodice: And after that first day in the Senate, Jefferson Smith finds out all those newspaper men wrote all those horrible, salacious fake articles about them. And then what does he do, Hannah?

Hannah McCarthy: He goes and punches as many reporters as he can find.

Archival: Who will let you in here? Why is she out chasing ambulance? That guy [00:26:30] Smith's punching everybody he meets.

Archival: Just got away from him. Oh, Tarzan.

Christina Phillips: I went through the entire movie assuming that was a dream sequence. I was like, he's just imagining it, but I'm realizing he doesn't actually, like, leave that dream sequence. He just ends up in the bar.

Hannah McCarthy: But now he's, like, totally punches everyone. That's that's real. Yeah.

Christina Phillips: That's so funny.

Nick Capodice: My favorite is when he punches a reporter out and then leaves, and then the reporter shaking his head like.

Nick Capodice: Oh, what just happened? He looks up.

Nick Capodice: And it's a portrait of George Washington [00:27:00] looking smug, like, yeah, you deserve that. Yeah, that's what you get for messing with the stuff that I created. And that is one of my favorite scenes in the movie, when all the press reporters get them together and say, well, what are you doing here, man? Don't you know what an honorary senator actually does?

Archival: When the country needs men up there who know and have courage, as it never did before? He's just going to decorate a chair and get himself honored. What would you vote? Sure. Just like his colleague tells him to. Yes, sir. [00:27:30] Like a Christmas tiger. He'll nods his head and vote. Yes, sir. You're not a senator. You're an honorary stooge. You ought to be shown up.

Nick Capodice: Do either of you know what a Christmas tiger is?

Hannah McCarthy: It's a it's a bobblehead.

Nick Capodice: How did you know that?

Hannah McCarthy: Because I've seen them a million times.

Nick Capodice: In England, they used to call them naughty dogs. You know, Dee Dee, why, you'd put a dog, like, in the back of your car, and it would just kind of be nice. And that's what the Christmas tiger.

Christina Phillips: Wait, so how does that connect to Mr. Smith? [00:28:00]

Nick Capodice: Oh, because what's he actually going to do? He's just going to do what Senator Payne tells him. He's just going to be constantly nodding his head and saying, you're so depressed and powerless. He goes to his fellow senator Joe Payne, who says, look, I gotta do something. I'm not just a Christmas tiger. And Senator Payne has the great idea of just how to keep Jeff Smith busy. He convinces Jefferson Smith to write his very own bill to create a national boys camp in [00:28:30] his nonexistent state. Now we get to the tremendous civics lesson decades before schoolhouse Rock.

Hannah McCarthy: Oh, I loved it.

Archival: Finally, they think it's quite a bill. It goes over to the House of Representatives for debate and a vote, but it has to wait his turn on the calendar. Calendar, huh? Yeah. That's the order of business. Your bill has to stand way back there in line. Unless the steering committee thinks it's important. What?

Archival: The steering committee.

Hannah McCarthy: For me, it was the first moment where I realized that this actress is very, very, very special. [00:29:00] The way that she plays, the line between annoyed and An incredibly patient, was brilliant. And even just like the way she holds her mouth in a straight line was remarkable. And she just delightfully is explaining to him, essentially the fact that what he has just been told to do is sit on his hands and play or play in the sandbox, and then she explains to him that this thing will not happen. [00:29:30]

Archival: Yes, sir. The big day finally arrives and Congress adjourns.

Hannah McCarthy: And he's like, great, let's get started. And she's like, don't you understand that? I've just told you this is a play pretend project that you don't understand. And it was just it was wonderful.

Nick Capodice: One thing that caught me off guard is when she's explaining what committee is, she says, how else are you going to get 96 people to agree on something? And I was like 96. There's 100 people in the Senate. Yeah, what's up with that? And then I realized it was [00:30:00] 20 years before Hawaii and Alaska were added to the United States.

Hannah McCarthy: Yeah. Yeah.

Nick Capodice: So Smith writes his bill with Saunders. But Saunders knows something that he doesn't, which is the site for his proposed national boys camp is where the dam is going to be. Do you remember the dam from so long ago, Jim Taylor's draft. So Smith introduces his bill. Senator Payne runs out all flustered. Jim Taylor and Senator Paine decide they have got to get this damn legislation through. Toot sweet or their scandal is going to be [00:30:30] revealed. So they use Senator Paine's attractive daughter to lure Smith out of the Senate for one day when they propose the bill.

Hannah McCarthy: Wait, may I just say something quickly? Because I know we moved past this fairly fast. Sure. In in the scenes where we're first in the Senate and the very, very basics of the senator being explained to us. I feel like you can feel the movie already telling you everyone in this room is pretending to abide by the rules. They all know the rules. They all [00:31:00] look as though they're following the rules. But as has already been established, this is a place steeped in corruption. And it's almost like these rules are for not until you bring in an individual who doesn't just follow the rules, but he believes in the power and democracy thereof. I just wanted to say.

Nick Capodice: That that's a really good.

Hannah McCarthy: Point. I found that really interesting.

Nick Capodice: Yeah, it's like the senators are doing [00:31:30] nothing but maintaining their reputations. Like that's all they care about. They're not passing legislation, they're not impassioned about anything. They just follow the rules step by step. Um, leading to, you know, back to that quote again. You know, what's the point of rules if there's not some humanity behind them? There's some reason why you have them other than just protocol and reputation.

Hannah McCarthy: Right.

Nick Capodice: So Smith is kept out of the Senate the day that bill is introduced. Do you guys remember what it was called in the movie, this bill with the damn stuff crammed into it.

Christina Phillips: A deficiency bill, right? [00:32:00]

Nick Capodice: A deficiency bill. Have you ever heard of a deficiency bill?

Christina Phillips: I had not.

Hannah McCarthy: I had not, but I. I assume it's some sort of appropriations bill. Perhaps, I don't know.

Nick Capodice: It is. It's even, like, referred to in essays about the movie as just the appropriations bill, but it was called the deficiency Bill, which is a spending bill that asks the government to spend money to make up for some deficiency. Like, you know, Medicaid was budgeted for X billion dollars, but we're a billion short. Can we have that money? We are deficient. And that's a deficiency bill. Got [00:32:30] it. And you may wonder, like how does a building of a dam fit into that? The same way all legislation happens, like you said, omnibus bill, things are just crammed in. So Saunders goes out and gets drunk with diz, eats some oysters and steak. Uh, comes back to the office while inebriated to tell Jeff Smith that he was played by Senator Payne, Senator Payne's daughter, and the big bad Jim Taylor. She spills all the dirt on the dam. And then the next day in the Senate. Jeff Smith makes a bit [00:33:00] of a mistake. He rises and accuses members of the Senate of graft, of being corrupt and in the pocket of Jim Taylor, and he has no idea how the Taylor machine is going to break him down.

Archival: Either he falls in line with us and behaves himself, or I'll break him so wide open they'll never be able to find the pieces. Jim, I won't stand for it. You won't stand for it. I don't want any part of crucifying this boy.

Christina Phillips: What struck me about him [00:33:30] kind of standing up and calling out the corruption, and that being a problem for him is that so often, I think in current politics, like the way that you get attention in a way that advances you seems to be standing up and being like, you're corrupt and you're corrupt, like, um, this ends up backfiring on him in a way that I think a lot of politicians deliberately kind of go after that sort of opportunity to take out their colleagues.

Hannah McCarthy: Well, so this is far more cynical. Um, [00:34:00] I, I, I think that this is pretty close to what actually goes on. Certainly there's, there's a lot of show in Congress lately, and I know that there's, there's not a great deal of, um, getting anything past when it comes to disagreements between the parties. However, I think it's far less likely that individuals are called out for real corruption and more that they are called corrupt. Um, [00:34:30] I have a little bit of a hard time believing that everyone's as much of an angel as the lack of evidence of deep, deep corruption, uh, at least espoused by members of other parties would have us believe. You know, I don't know, they're just people. Um, so I actually felt like, yeah, this is probably how it would go. Like if if someone were being sort of hamstrung by the political machine that got them the job and that keeps them the job, [00:35:00] they would probably be like, fire that guy. You know, if he's revealing that something actual is going on here.

Christina Phillips: Yeah. It's like what you were just saying about how he's like, he's following the rules earnestly. He's like calling out corruption earnestly. And, you know, the rule that happens in the Senate is perhaps more like, no, we're all sort of like assuming these roles that we play. And he's actually coming in and being like, well, wait a minute. No, this is how I understand it to work on the surface.

Hannah McCarthy: Right.

Nick Capodice: So what they do is [00:35:30] they just turn the tables and say, no, you're corrupt. They accuse him of graft. They forged signatures. That was really scary to me. Just this notion of someone who is truly innocent can just, in a blink of an eye, be accused of all sorts of crimes with zero actual evidence. It's just they all, they all fall in line, and.

Hannah McCarthy: It happens every day. Nick.

Archival: I have conclusive evidence to prove that my colleague owns the very land described in his bill. He bought it the day following his appointment to [00:36:00] the Senate, and is holding it using this body in his privileged office for his own personal profit.

Nick Capodice: Smith is then hauled in front of the ethics committee, and he is asked to defend himself, and he runs out without saying a word. So it looks like a lone man cannot fight for a lost cause. The odds are all against him. Hanna. Christina, what's the one way? A man like Jefferson Smith can fight back against the machine a dame.

Hannah McCarthy: Well, it starts [00:36:30] with the dame he has to be. He goes. He goes to cry at the Lincoln Memorial, which don't we all. And, um. And he's planning to head out of town, and Saunders finds him, and she essentially says to him, you know, I was wrong in my understanding of you. Uh. She calls. She hearkens back to, uh, Senator Smith saying it seemed like Lincoln was sitting there waiting for someone, and she says to him, maybe he [00:37:00] was waiting for you. Right? Maybe you're the one. Um. And so he goes back to her place, and, uh, they decided to craft a plan.

Nick Capodice: And, uh, Christina, what is the tool that Saunders teaches him to use the next day?

Christina Phillips: The filibuster?

Archival: And I'll tell you one thing.

Archival: The wild horses aren't gonna drag me off this floor until those people have heard everything I've got to say, even if it takes all winter.

Nick Capodice: Did you ever think [00:37:30] you'd romanticize the filibuster? Which is kind of like that was.

Christina Phillips: The thing is, I was like, oh, man, what a take that the filibuster is done for honor. Um, but then again.

Nick Capodice: Do you one of you want to just we've done episodes on the filibuster, but one of you want to just explain briefly, one on one what it is.

Hannah McCarthy: In certain circumstances. If a senator is granted the floor by the president of the Senate or the president pro tem, then so long as that Senator does not stop speaking, does not sit down, [00:38:00] and does not leave the chambers, and does not yield their time, except in sort of like brief interruptions, that Senator may continue to hold the floor. So what that means is that person could theoretically, although, you know, we are human beings, could talk forever.

Nick Capodice: And, Christina, do you know how we stop a filibuster? How you interrupt it?

Christina Phillips: Doesn't it require two thirds of the Senate to interrupt a filibuster? [00:38:30]

Nick Capodice: Yes. Well, now it's 3/5. But at the time of the movie, it was two thirds of the Senate. They invoke something called cloture. Cloture is, hey, you know, we've had enough of this guy talking. So my question is, these senators all were miserable listening to him talk. Why didn't they just invoke cloture?

Christina Phillips: Yeah.

Hannah McCarthy: However, however, they do maintain a quorum in the Senate at all times.

Archival: And that among.

Archival: These are life, Liberty and the pursuit of. It looks like the night shift is coming on.

Nick Capodice: The [00:39:00] current record for a filibuster in U.S. history is Strom Thurmond, who was filibustering against the passage of the Civil Rights Act of 1957. That was 24 hours and 18 minutes. That record was recently beaten by Cory Booker, but he was not filibustering. This is very important. So the filibuster record is still Strom Thurmond. Cory Booker spoke for 25 hours and five minutes. So the people in the gallery who were, you know, visiting the Senate and watching the filibuster, they're [00:39:30] kind of like they like what he's saying. They're getting behind it, and he's saying a ton of good stuff, great speeches off the cuff and then resorting to, you know, reading the Declaration of Independence or Letters of George Washington or the Constitution slowly, but Jim Taylor is stopping all of the news coming into his state. Unless it is anti Jefferson Smith. So Jim Taylor runs a smear campaign saying that the deficiency bill needs to pass right now or [00:40:00] people will starve.

Hannah McCarthy: Keeping it vague.

Nick Capodice: I don't think a deficiency bill going through is going to be something that, you know, in one day lets people starve.

Hannah McCarthy: But it's of course not about that. It's all about how you sell it. That's the whole point of this, and it's about who has enough power to manipulate people.

Christina Phillips: I did just like how he started to get kind of, um, chippy, you know, like, this is the opportunity.

Hannah McCarthy: For, [00:40:30] like, punchy.

Christina Phillips: Yeah. Like, he gains confidence throughout his filibuster. Whereas before he was so uncertain, it's like now that he's been empowered with the knowledge of how the filibuster works, he starts being like. Is it a question? I guess I'll yield for a question or I'll be like, ah, my favorite text. And and so he starts, you know, actually kind of operating in the language of the Senate in a way.

Nick Capodice: Like we've created a monster. Exactly. Somebody who knows the rules but actually cares about them.

Hannah McCarthy: But he's still he's utterly [00:41:00] reliant on Saunders to give him cues for everything because she knows exactly what to do and when to do it.

Nick Capodice: Yeah, she's like the real hero of this movie, I think. So since Jim Taylor owns the media, nobody in the state hears anything that Smith is saying to defend himself. But then Saunders remembers that Jefferson Smith ran a little paper for the boy Rangers, so she and diz dictate copy over the phone to Smith's mother and these plucky little kids. They write their [00:41:30] own coverage, and they bike and wagon these papers all over the state.

Christina Phillips: Boy stuff?

Nick Capodice: Oh, yeah. Boy stuff.

Hannah McCarthy: Yeah. And then Taylor. Taylor attacks them.

Nick Capodice: Yeah.

Hannah McCarthy: Yeah. He runs. He runs children who are inexplicably driving. It's it's actually kind of shockingly violent. Mhm. That he, he would basically kill people children. And that's I think the point is that it's sort of illustrating. No you don't get how much this guy doesn't care about human beings.

Nick Capodice: And [00:42:00] Taylor is telling the kids you don't get to be a journalist because that's me. I am in charge of what people learn. I'm in charge of the truth. You don't get to share your truth with the people.

Christina Phillips: Yeah.

Nick Capodice: And it was a heartbreaking moment, that scene, I got very emotional when the kids were getting beaten up and knocked off the road and stuff. I like the David versus Goliath man versus machine thing of the little kids with their tiny little press putting a paper together, contrasted and juxtaposed against the spinning [00:42:30] iron wheels of Jim Taylor's press machine. I love it when things like that happen so boys get beaten up. It's very sad. And finally, Jefferson Smith passes out after about 24 hours of filibustering.

Archival: And the Taylors and all their armies come marching into this place.

Archival: Somebody will listen to me.

Nick Capodice: When [00:43:00] Jefferson Smith falls, Senator Payne runs out of the Senate. And this part was always confusing to me. I think to shoot himself. But I don't see a gun. But you hear gunshots?

Hannah McCarthy: Yes, that's my understanding.

Nick Capodice: So he runs in again and shouts that everything Smith has been saying is true and that he, Senator Payne, is the corrupt one. He's not fit to serve. He's not even fit to live.

Archival: Every word about Taylor and me and graft and the rotten political corruption of my [00:43:30] state. Every one of it is true. I'm not fit for office. I'm not fit for any place of honor.

Nick Capodice: And after that, it's pretty much the fastest ending in Hollywood history.

Hannah McCarthy: That's it. Yeah. That's it. You don't even get to see Jeff Smith wake back up.

Nick Capodice: Yeah, that's a really good point.

Hannah McCarthy: He's just he's passed out cold at the end of it. But you know what? I really, really liked that because while you had this turnaround, while you have the crowd is cheering and the [00:44:00] president of the Senate doesn't even try to call order any longer. And, you know, Saunders yells, yippee! Um, he's still passed out cold after completely draining himself in the name of democracy and representation of the people. And I do think we're meant to say to ourselves, look at what it takes. And usually even this is not enough. You know, look at what they make you get.

Nick Capodice: I was just about to say, look what they make you give. So are you too curious how audiences reacted? [00:44:30]

Christina Phillips: Yeah, yeah. Deeply curious.

Nick Capodice: We're gonna talk about it after a quick break. All right. Hannah. How do you think Mr. Smith goes to Washington? Was received.

Hannah McCarthy: I don't have a very good reason as to why I believe this. My guess is that it was initially poorly received and that now people think it's a masterpiece. That's my guess.

Christina Phillips: I'm gonna guess that the public loved it. Because [00:45:00] we love a movie that tells us how to feel. And it's funny and I think it's, uh, accessible. I'm going to guess, and I hope I'm wrong, but I'm going to guess that a lot of politicians and journalists were real grumpy about this one.

Nick Capodice: All right, so here's what went down. The film premiered in the Constitution Hall on October 17th, 1939. This premiere was sponsored by the National Press Club. About 4000 [00:45:30] people came, including 45 of the 96 senators, and this movie was absolutely eviscerated. Oh, gosh. Just like you said, Christina politician said that it showed DC as a bunch of crooks that are rife with corruption. And it was also accused of being communist and socialist propaganda. Now, again, this is coming out. You know, right before our involvement in World War Two. So, [00:46:00] you know, saying, uh, you know, there are problems with America because senators are corrupt. That was considered communist. Yeah. Also, the fact that anybody can stand up and speak their mind about whatever they think, even if it harms the country, is a danger to the United States.

Christina Phillips: Mhm.

Nick Capodice: Send a majority leader. All been Barkley. He called the film quote silly and stupid. Uh he said that the film was, quote, a grotesque distortion of the Senate, as grotesque as [00:46:30] anything ever seen. And the last line of his that I appreciated was, uh. Barclay said the film showed the Senate as the biggest aggregation of nincompoops on the record. In addition, newspaper reporters despised the film. One from The Washington Star said that it showed, quote, the democratic system and our vaunted free press and exactly the colors that Hitler, Mussolini and Stalin like to paint them.

Christina Phillips: Oh my goodness. I'm sorry, [00:47:00] but this this feels a little bit like the Streisand effect, where you just, um, if you make a big deal about a thing about you, it never works. Well.

Nick Capodice: Uh, the biggest complaint from the press at large was that it depict them all as, uh, drinking too much. Really?

Christina Phillips: Yeah. Oh, that's what they're upset about.

Hannah McCarthy: You know, it is interesting. Members of the press are often shown. Well, I guess if you're going to depict the press and you need them to be chatting.

Nick Capodice: In highball drinking?

Hannah McCarthy: Well, yeah. Well, if you need them [00:47:30] to be talking to one another, they need to be at, like a bar in Washington where people rub elbows and they're drinking and smoking. Yeah, you see that a lot, I guess.

Christina Phillips: Yeah. It's much less interesting to see them, like, hunched over their phone or like in a in a corner.

Hannah McCarthy: Yeah, I.

Christina Phillips: Think.

Hannah McCarthy: That all the time I yeah, I often think.

Nick Capodice: Like, real journalism looks like.

Hannah McCarthy: Well, if, if members of the, if they tried to make a movie about what so many of us spend so much of our time doing, it would be, you know, no one would, no one would watch it.

Nick Capodice: So [00:48:00] last thing I want to say is that Frank Capra at the premiere was seated next to a senator from Montana, and Frank Capra said, quote, that night was the worst shellacking of my professional life. Oh, so American politicians despise this movie. Interesting. But you know who else did? Fascist countries. Hitler's Germany, Franco's Spain, Italy. They [00:48:30] all banned this movie because it showed America and democracy in a positive light.

Christina Phillips: Interesting.

Nick Capodice: Isn't that interesting? There was one theater in occupied France during the war. There was. The theater was told it's not allowed to show any American movies whatsoever. So they put on Mr. Smith Goes to Washington for 30 days nonstop until the government shut the movie theater down.

Christina Phillips: I love it.

Nick Capodice: And as to the question of the public, the public loved it. It was nominated for 11 Academy Awards. It made $3.5 [00:49:00] million in the box office, the third highest grossing film of the 1930s, beaten only by Gone with the Wind and Snow White.

Christina Phillips: That's a tough year.

Nick Capodice: What fascinated me most, sort of at the end of this story, is something to do with Frank Capra himself. So he made a lot of movies, he made a lot of money. He was the president of SAG for a while. December 7th, 1941. Bombing of Pearl Harbor. Frank Capra quit [00:49:30] directing entirely. He gave up his SAG presidency. He stopped making films and he enlisted in the US Army. And he wrote. He wrote this line about it. He said, I had a guilty conscience in my films. I championed the cause of the gentle, the poor, the downtrodden. Yet I had begun to live like the Aga Khan. The curse of Hollywood is big money. It comes so fast it breeds and imposes its own mores, not of wealth, [00:50:00] but of ostentation and phony status. He was 44 years old when he enlisted after Pearl Harbor, and he was told, buddy, you know you're too old to fight. Uh, so Chief of Staff General George C Marshall asked Frank Capra to come to the Pentagon for a special meeting. And this general told Capra he was worried about soldiers in the US Army.

Nick Capodice: He was worried about them being unwilling to fight because they're overseas. Right. You're [00:50:30] not at home defending your house or defending your country. You're fighting a war overseas that mainly is dealing with other countries and other people. Frank Capra was asked by this general to make a film that told soldiers and Frank Capra's own words, quote, why the hell they're in uniform? And Frank Capra made a seven film series, a series of documentaries that is titled Why We Fight. Wow. The first one came out. President Franklin Roosevelt said, quote, I want every [00:51:00] American to see this motion picture. Winston Churchill ordered the films to be screened in British theaters and the very last coat of Frank Capra. He was asked in an interview why he made movies to inspire soldiers, and he said, quote, because for two hours you've got him. Hitler can't keep him that long. You eventually reach more people than Roosevelt does on the radio. Do you guys have any last thoughts in the movie? What [00:51:30] was the part that made you cry the most?

Hannah McCarthy: I probably about halfway through. I was just sort of tearful. Um, I think I think that earnestness is important, and I think that in so many ways we have become a nation and a world that looks at earnestness as, um, reflective of a lack of [00:52:00] intelligence or an ability to swan around with other people or, um, or a sign that you don't carry the cultural capital that would make you useful. And I think that's generally Not good for the world. And so to have a character who is not just earnest but quite intelligent, played by someone who can also [00:52:30] make that character very charming and very enigmatic, I think accomplishes a kind of beautiful feat.

Christina Phillips: I think that the moment that made me tear up unexpectedly and then now that I think about it, makes a lot of sense, is after Saunders lays out how a bill does or does not become a law. And Jefferson Smith says, okay, so should we order food first or should we get started? And she [00:53:00] says, I think, let me go get a pencil. And I thought, because I'm cynical, unfortunately.

Hannah McCarthy: That she was gonna.

Christina Phillips: Leave like that. She was gonna.

Hannah McCarthy: Leave. Yeah, I thought so, too.

Christina Phillips: And then. Yeah. And then she comes back. The next scene, you just see her sitting there And also what happens next is that he opens his mouth and he just starts like he's on it, like it's it's like they're like, okay, we're doing it. And then they just start doing it. And like [00:53:30] he's like, here's why this bill matters. Here's like the why, the how, the what. Um, and they just kind of dive in and it feels like that's a moment. I don't know where they both seem to understand the reality of the situation. And they're like, okay, we're here. We're doing it. Uh, and that was like, really touching for me.

Hannah McCarthy: Yeah. Christina, I agree with you. That moment for me was, I guess, and, you know, you know that the bill is supposed to be doomed either [00:54:00] way. But I think also a reminder that you can choose to do something, even if it it's, you know, as you asked at the very beginning, Nick, a quote unquote lost cause. Right. And that I think so often when it comes to American politics, there's a lot of throwing up of hands and saying that will never happen. Uh, and I think that that is really dangerous for things actually happening because if everyone agrees, oh, no, that'll never get done, [00:54:30] then someone has won and it is not the people.


 
 

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The Supreme Court rulings that aren't rulings

Increasingly, some of the most controversial issues are decided not through the tried-and-true method of a hearing in the Supreme Court, but rather through a system called "the shadow docket," orders from the court that are (often) unsigned, inscrutable, and handed down in the middle of the night. Professor Stephen Vladeck takes us through this increasingly common phenomenon.

Listen:

Transcript

Note: The following transcript is machine-generated and may contain errors

Nick Capodice: And the more shows we do, the more it feels that the wheels of government are powerful but slow. So if you want to get something done, the reason perhaps you decided to get involved in politics in the first place, it might be easier to just use a shortcut. You don't want to write a bill cut and paste from another.

 

Hannah McCarthy: One states because I didn't realize just how many copycat bills there are out there right now.

 

Nick Capodice: You don't want to go through the rigamarole of amendments in a House vote. Do it under suspension of the rules. Mr. Speaker, I moved to suspend the rules and pass HR 2663. You want to pass a bill in the Senate without debate, without filibuster? Do it under unanimous consent.

 

Speaker3: I ask unanimous consent that the Senate consider the following nomination calendar numbers.

 

Nick Capodice: Five 3434. Oh, you're the president and you just don't want to involve Congress at all. Just sign an executive order. I'm on executive order, and I pretty much just happen. But the one entity that was, to my knowledge, unable to use shortcuts was the one which determines how the Constitution applies to us. America's final arbiter, the Supreme Court.

 

Hannah McCarthy: And let me guess how wrong that you were.

 

Nick Capodice: How wrong was I?

 

Speaker4: Hi again, everyone. It's 5:00 in New York following the Supreme Court's refusal to block Texas's new law that all but bans abortion in the state. There's been a barrage of criticism and harsh scrutiny over the Supreme Court's shadow docket.

 

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

 

Hannah McCarthy: I'm Hannah McCarthy.

 

Nick Capodice: And today we're talking about the shadow docket, Supreme Court decisions that we know very little about.

 

Stephen Vladeck: Justice Amy Coney Barrett gave a speech in April at the Ronald Reagan Presidential Library where she said, you know, you guys think we're all partizan hacks, but like, don't just read the media, like, read our opinions, you know, decide for yourselves.

 

Hannah McCarthy: It's also perfectly fair game to say that the court got it wrong. But I think if you're going to make the latter claim that the court got it wrong, you have to engage with the Court's reasoning first. And I think you should read the opinion and see, well, does this read like something that was.

 

Stephen Vladeck: Purely to which my response is great. What if there's no opinion to read?

 

Nick Capodice: This is Steven Vladeck. He holds the Charles Allen Wright chair in federal courts at University of Texas School of Law. He has a book on the shadow docket coming out spring of 2023. He has also testified before the Senate Judiciary Committee on the shadow docket.

 

Hannah McCarthy: And this is quite the introduction.

 

Nick Capodice: I promise it's worth it. And he has argued in front of the Supreme Court three times.

 

Hannah McCarthy: How'd he.

 

Stephen Vladeck: Do?

 

Nick Capodice: 043043. Quick, funny. Civics aside, the first time he was in the Supreme Court, Justice Anthony Kennedy threw him the heaviest curveball ever. Do you think Marbury versus Madison is right? But particularly as to.

 

Hannah McCarthy: That is a hilarious and impossible question to answer before the Supreme Court. And the reason it's hilarious is because Marbury versus Madison is the case where the Supreme Court gave itself the power to rule on constitutionality. So it's like the case that defined what the Supreme Court is. Okay, but let's get back to the shadow docket. What does this term mean?

 

Stephen Vladeck: The term was actually coined in 2015 by a professor in Chicago named Will Bode. And it's not meant to be nefarious. It's really an umbrella term that's supposed to cover basically all of the stuff that the US Supreme Court does. Other than the big fancy merits rulings that it hands down every year. So we spend a lot of time every May and June talking about big rulings on affirmative action, abortion, same sex marriage, guns, campaign finance. You know, pick your favorite socially divisive issue.

 

Hannah McCarthy: We've done, what, like 15 episodes on socially divisive Supreme Court decisions?

 

Nick Capodice: Yeah, like more maybe from Dred Scott to Roe to Tinker to Citizens United. These massive decisions that affect our daily lives. And we love learning about those. We love talking about those. And as each spring comes to a close, as May turns into June, the nation waits with bated breath to see those new rulings come down.

 

Speaker4: We have breaking news from the Supreme Court. It is a landmark decision for the LGBTQ community. The justices ruling that it is illegal for workers to be dismissed from.

 

Stephen Vladeck: And the reality is that those 60 to 70 rulings are a tiny fraction of the Supreme Court's total workload, that most of the work the court does is through unsigned, unexplained summary orders that are public. So it's not like they're inaccessible, but they're inscrutable. I mean, you know, even with a law degree, it's hard to figure out what to make of them. And, you know, when Professor Bode coined the term in 2015, he wasn't trying to suggest that anything especially nefarious was afoot. Rather, his point was just that we ought to be paying more attention to that side of the court's work.

 

Hannah McCarthy: So when we use the term shadow docket, we're talking about work that the Supreme Court does. That's not the tried and true ruling on an opinion.

 

Nick Capodice: Yeah, and Supreme Court justices have been doing this work since the beginning of our nation. And just to be clear, I want to put air quotes around the term shadow docket. Not everybody uses that term. Justice Samuel Alito has actively criticized it, saying the term insinuates something sinister.

 

Hannah McCarthy: But it is a relatively new term because I haven't heard of it before. Why are we suddenly talking about this now?

 

Nick Capodice: Right. So the court has stepped in to decide things on an emergency basis for a long time. I've got some famous examples. In 1953, the court stepped in to halt the execution of Ethel and Julius Rosenberg, who were convicted of espionage and then allowed it to continue the next day. Likewise, Justice Stephen Douglas ordered a halt of bombing in Cambodia in 1973, but then he was soon overruled by the whole court. These were both shadow docket orders. But to your question, we're talking about it a lot more now because there has been a big increase in orders of the court that are political in nature, not just sort of run of the mill procedural stuff.

 

Hannah McCarthy: Well, how does that look? How does shadow docket decisions differ from the ones that we've talked about before.

 

Nick Capodice: The kinds of cases that we watch out for and talk about on the show? Those are called merits cases. And just to juxtapose the difference between that and the shadow docket. Let's go through the journey of a Merritt's case. Hannah, you broke the law.

 

Hannah McCarthy: What did they do?

 

Nick Capodice: You know what you did. You did something you shouldn't have, and you were fine.

 

Hannah McCarthy: I did something I shouldn't have.

 

Nick Capodice: Hypotheticals are very difficult. You argue that the thing you did is speech. It's protected by the First Amendment and that the law you broke is unconstitutional. So it goes to one of the 94 federal district courts. Lawyers do research. Your case is argued, you lose. But you're a fighter, Hannah. You don't give up so easy. You appeal it up to the circuit court and hear lawyers write briefs, wonderful, succinct documents outlining their legal reasoning. Three judges read those briefs. They have lawyers in. They ask him some questions, and then they affirm the lower court's decision. They say, Yeah, that law is legit and constitutional. Hannah, you shouldn't have done what you did, and you deserve that. Fine. But you don't take that sitting down and your lawyer petitions for a writ of certiorari, asking the Supreme Court to hear your case. Now they get about 8000 cert petitions every year. They only pick about 60. The odds are not in your favor. But lo and behold, four out of nine justices agree. Yeah, we need to weigh in on that McCarthy case. It's scheduled to be heard in the highest court of the land. You've got more briefs. You've got Amichai Friends of the court brought in to testify. There's an hour long argument. Justices deliberate. And then when May finally rolls around, they read their opinion. You see how each justice voted. And the whole thing took a couple of years.

 

The court will now read its opinion in the case of McCarthy of Braintree, the question of determining speech actions, especially related to those who host public radio podcasts, is complex and worth lengthy consideration.

 

Nick Capodice: By contrast, what we call a shadow docket ruling would be that a party could skip that entire process by appealing directly to the Supreme Court to issue an emergency order. No arguments, no opinion, no signatures, just an order sent late at night.

 

Hannah McCarthy: Like it actually happens late at night.

 

Nick Capodice: Not always, but often. Yeah.

 

Stephen Vladeck: There was this pattern, especially, gosh, in 2020, 2021, where we had like 10 p.m., 11 p.m., 11:58 p.m., 2:17 a.m.. I don't think that's, you know, to me that's not the hill to die on. Like, yes, they come out late at night if everything else was fine about them. The fact that come out late at night would not be a problem. But I think it reinforces how much of a departure it is from the court's normal operating procedure to be handing down orders like this outside of that flow. So the the joke about the book is that, you know, if I'm really being faithful to everything, the book will be one inscrutable page handed down at 11:58 p.m. on a Friday night, but I don't think my publisher is going to go for that gag.

 

Hannah McCarthy: What sorts of cases do they decide this way?

 

Nick Capodice: Stephen gave me a few recent examples. Yeah.

 

Stephen Vladeck: I mean, so, you know, last September, when the Supreme Court refused to block Texas's controversial six week abortion ban, that was on the shadow docket, you know, in January, when the court blocked the Biden administration's OSHA rule to require large employers to have a vaccinator test requirement that was on the shadow docket in February when the court put back into effect congressional district maps in Alabama that two different lower courts had held to violate the Voting Rights Act. That was on the shadow docket. So, you know, we're just seeing so many more of these decisions that are producing immediate, massive, real world effects that the justices are handing down. You know, not always without explanation, but with far less explanation, with far more truncated explanations, and in context in which at least historically, they weren't supposed to issue relief, they weren't supposed to upset the apple cart unless particular things were true. That don't appear to be true. So we're seeing just this. It's no one thing by itself. It's the rise of so many more of these rulings, having so many so much broader effects in context that are both inconsistent and increasingly in seeming defiance of the court's own rules for what it's doing.

 

Nick Capodice: And we're going to get into what people see as problems with the shadow docket, as well as some numbers on how much more prevalent these decisions have been in the last few years right after the break.

 

Hannah McCarthy: But first, Nick and I just want to tell you that civics one on one is listener supported. If you like our show and our mission to simplify the tangles of governmental systems, make a donation at our website civics101podcast.org. We don't mind if you do it late at night. All right, we're back. And we're talking about the shadow docket. So, Nick, you said these sorts of emergency decisions have been happening for hundreds of years, but lately there has been a big increase. Like, how big are we talking.

 

Nick Capodice: During the George W Bush and Barack Obama administrations combined? We're talking about 16 years total. There was a grand total of eight cases where the federal government appealed directly to the Supreme Court for emergency relief. But in the Trump administration.

 

Stephen Vladeck: In four years, the Trump administration went to the Supreme Court 41 times. Now, folks disagree about whether that's because lower courts were out to get Trump or because Trump's policies were terrible. Right. Shockingly, that tends to break down on how you feel about President Trump. But what no one can dispute is how much that turbo charges stems and how much that really sort of ratcheted up the pressure on the shadow docket when the federal government, the most common influential player in the Supreme Court. Right, is going back to the well over and over again, asking the justices for this kind of relief.

 

Hannah McCarthy: You know, one of the most controversial decisions that Stephen mentioned was the court's refusal to block Texas's six week abortion ban.

 

Nick Capodice: Making news out of the Supreme Court. The Supreme Court has issued an opinion on that major abortion case out of Texas. The justices by a conservative majority have decided to allow that law in Texas, which effectively bans nearly all abortions in that state to remain.

 

Hannah McCarthy: But to me, there's a major difference here, because that's not the court doing something. That's the court not doing something. Can we consider inaction the same as action when it comes to the shadow docket?

 

Stephen Vladeck: The problem is, is that if the court had not spent the previous year reaching out over and over again to block California and New York COVID restrictions in context in which historically the court had sat on its hands right then. I think the SB eight rule and the Texas abortion ruling from September would be a lot more defensible. But when the court says over here, we're going to intervene over and over and over again in context where we never have before, and the context in which we probably aren't even allowed to. But over here we're not going to intervene because our hands are tied by the same things that we weren't bound by in those other cases.

 

Hannah McCarthy: You know, when we talk about members of the Supreme Court doing things that fall in line with one party or another, I'm reminded of a quote that you used in your episode on the judicial branch. It was said by Chief Justice Roberts, quote, We do not have Obama judges or Trump judges that we have an independent judiciary.

 

Stephen Vladeck: Well, and the irony is and Chief Justice John Roberts line about how there are no Obama judges and there are no Trump judges. Was in a case the court resolved through a shadow docket order.

 

Nick Capodice: But regardless, I'm very glad you brought up Roberts, because one of the arguments made in favor of these shadow docket decisions is, hey, you're just angry because we have a conservative majority court, right? If it was five four the other way, progressives would totally be fine with it. But Roberts demonstrates that isn't necessarily true.

 

Stephen Vladeck: I actually think the chief justice is a really remarkable figure here, because John Roberts, who is no one's idea of a liberal. Right, who is a dyed in the wool establishment Washington conservative, has been this fascinating player as the court's center of gravity has shifted. So when Anthony Kennedy was still on the court and Kennedy was the median vote. Roberts We very rarely saw Roberts as the key player in a shadow docket ruling.

 

Nick Capodice: But once Justice Kennedy retired in 2018, Roberts became that median vote. And where he went, so too did the court.

 

Stephen Vladeck: And what that meant was that in the early part of the COVID cases, where there were these claims for, you know, religious liberty challenges to COVID restrictions, Roberts Was the key vote in joining the liberals and not allowing those challenges. And what he kept saying over and over again, it's not that I. Roberts am unsympathetic to these claims. It's that these are this is not the context for vindicating them that we should not be using emergency orders to reach these hard, difficult, challenging questions. You know, those should be merits cases.

 

Nick Capodice: And as a result, those challenges did not go through. They just weren't successful. But in September of 2020, Justice Ruth Bader Ginsburg passed away, intends to pick this woman as his Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg. Her name is Amy Coney Barrett. She met with the president at the White House Monday.

 

Stephen Vladeck: So when Justice Barrett is confirmed to replace Justice Ginsburg, Roberts is no longer the median vote. And as early as one month into Barrett's tenure, we see Roberts joining the liberals. In the case after case, what we're seeing on the chief do, he's writing separately and he's saying, I'm sympathetic to this challenge. I don't like what the state is doing. I have problems with this, but not this. The shadow docket is not where we should block it. We saw this again in February in the Alabama redistricting case where John Roberts, no fan of the Voting Rights Act. Right. He wrote the majority opinion in Shelby County that tore a big hole in the Voting Rights Act. Roberts says, You know, I think we might want to revisit our interpretation of this provision of the Voting Rights Act, but the shadow docket is no place to do it.

 

Nick Capodice: Roberts was then on the losing side of five four shadow docket decisions seven times.

 

Hannah McCarthy: These five four decisions are the justices pretty much voting along ideological lines.

 

Nick Capodice: And all the shadow docket decisions Stephen talked about. It was the same five in the majority Justices Barrett, Alito, Kavanaugh, Gorsuch and Thomas.

 

Stephen Vladeck: And then finally in this Clean Water Act case in early April, right for the first time, he doesn't just dissent in one of these cases, but he actually joins Justice Kagan, who has been repeatedly criticized in the majority for, in her terms, abusing the shadow docket. Now, we finally have John Roberts endorsing that critique. And I just you know, I don't know how you look at John Roberts and and his now criticism of the shadow docket and say that this is ideological. Right. Because if if John Roberts, who actually is sympathetic to these religious liberty claims, is sympathetic to the voting rights claims, doesn't like abortion. Right. Is with the other conservatives on the merits in all of these cases and keeps dissenting because he thinks they're taking shortcuts. If that's not a message about how broken this is, I don't know what is. And, you know, I don't think it's enough of an answer, as I think so many conservatives are want to do, to say, oh, well, Roberts is a squish. You know, no, he's been clear that he's with them on the merits. He just said there's a right way and a wrong way to do it.

 

Hannah McCarthy: Hang on. What does Squish?

 

Nick Capodice: Squish is a term that goes back to the Reagan administration. Politicians use it to describe members of their own party who sort of hem and haw who can't be counted on to back controversial initiatives.

 

Hannah McCarthy: Can we just stop here for a minute? Because my big question is, if we make the assumption that the same five justices vote one way and the same for the other, couldn't we just say that the shadow docket is speeding up the inevitable? Like, sure, we don't know for certain how a justice is ever going to vote, but if it's about a big social issue like abortion, we've got a pretty good idea. So what does Steven think is the biggest problem with decisions made this way?

 

Stephen Vladeck: It starts with a basic proposition, which is that what makes a court, a court is its ability to defend itself, is its ability to provide a rationale for its decision.

 

Hannah McCarthy: In other words, the reason the Supreme Court can be the Supreme Court is that it lays out its reasoning for its decisions.

 

Nick Capodice: Yes. And that is Stephen's first problem.

 

Stephen Vladeck: So, you know, problem number one is that the absence of any rationale deprives the public of the opportunity to access the principles to assess them not not necessarily for agreement or disagreement, but for whether we think the court is doing legal, judicial things. Problem number two is, the less the court writes, the easier it is for to be inconsistent. When the court at time one rules for one party one way and writes 50 pages as to why it's very easy for a different party at type two to say, look what you wrote in that case, right? We're now in the same situation. We should therefore win. Well, if the court has written nothing that it's not bound by what it didn't write at time. One.

 

Hannah McCarthy: So if these shadow docket decisions are happening with the same five justices in the majority, how will it end? Will decisions made outside of merits cases continue to be more and more common?

 

Nick Capodice: Maybe there's just no way of knowing how this will change as justices enter and leave the court. And Steven told me that for those who are critical of this uptick in shadow docket decisions, there are three steps that could result in it changing.

 

Stephen Vladeck: So I think step one is getting folks to realize that this really is a big deal and that it's not strictly partizan or ideological, that there are entirely neutral reasons to be deeply concerned with how the Supreme Court is behaving. Step two is more self awareness on the part of the courts. And then if neither of those succeeds, step three is Congress really ought to start thinking seriously about how it relates right to the core as an institution and why, when we talk about Supreme Court reform, we shouldn't be distracted by the big ticket, but never going to happen. Items like Adams's to the court or term limits. We really should be focused on the far more important, palatable and possible technical reforms that actually might reallocate some of these dynamics.

 

Hannah McCarthy: Nicky started with the wheels of government to bring this back to the wheel, to the big, powerful, slow wheel of government. I can understand people wanting to dodge that wheel to get things done quickly.

 

Nick Capodice: I can, too. But if everybody's dodging the wheel, why do we have a wheel in the first place? All right. Well, you can't tell by listening to it, but in honor of this episode, I'm recording these credits late at night. After everyone's asleep, you can maybe hear my washing machine in the background, and that'll do it for this episode. And the shadow docket. I tried to put in a midnight judges joke, but I just couldn't figure out how to do it. This episode was written and produced by me. Nick Capodice with Hannah McCarthy. Our staff includes Jackie Fulton. Christina Phillips is our senior producer and Rebecca Lavoy, our executive producer. Music In this episode by the old greats Blue Dot Sessions, Ezra, Peter Sandberg, Apollo, the New Fools, Christian Anderson, Halston, Cisco, Juanita's, Ari De Niro, Jesse Gallagher and the Man Who Never Missed the Swiss Missed Christmas List, Chris Zabriskie. Civics one on one is a production of HPR New Hampshire Public Radio shadow.

 



 
 

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This podcast is a production of New Hampshire Public Radio.

Is it possible for a president to serve a third term?

Is there a way President Trump (or any president) can serve a third (or fourth) term in office? Maybe there is. 

Most people assume the 22nd Amendment limits a president to two terms, period. What happens when the president, or legal scholars, challenge that assumption?  

Joining us to talk about that is Bruce Peabody of Fairleigh Dickinson University



Transcript

Christina Phillips: [00:00:00] This is Civics 101. I'm Christina Phillips, filling in for Hannah McCarthy.

 

Nick Capodice: [00:00:03] And I'm Nick Capodice.

 

Christina Phillips: [00:00:05] Hi, Nick.

 

Nick Capodice: [00:00:06] Hi, Christina.

 

Christina Phillips: [00:00:07] So today I want to tell you a story.

 

Nick Capodice: [00:00:10] All right.

 

Christina Phillips: [00:00:12] This story begins in the late 90s. We've got Clinton as the president. We've got Newt Gingrich's bopping around. Okay.

 

Nick Capodice: [00:00:21] Oh, yeah. This is about the the the Republican takeover.

 

Christina Phillips: [00:00:24] Not really. Okay. It's not. But it's just what I think of when I think of the 90s.

 

Nick Capodice: [00:00:30] So what's the story about?

 

Christina Phillips: [00:00:32] So this is a story about two friends named Bruce and Scott, who love thinking about and talking about the Constitution. And one day back in the 90s, they find themselves like two friends debating the finale of severance, discussing the meaning of one constitutional amendment in particular. This is the amendment that sets term limits for the president, aka the 22nd amendment.

 

Bruce Peabody: [00:00:58] It may not shock you to hear that I'm a little bit of a constitutional nerd, and I have friends who are constitutional nerds, so a friend and I were just talking, and I think, truth be told, he came up with the idea.

 

Christina Phillips: [00:01:11] This is Bruce Peabody. He is a professor of government and politics at Fairleigh Dickinson University in New Jersey. So Bruce's friend in the story is Scott Gant. He's an attorney in Washington, D.C.. Nick, will you do me the honor of reading the main clause of the 22nd amendment?

 

Nick Capodice: [00:01:27] Absolutely. And I do not have this one memorized. Here we go. No person shall be elected to the office of the president more than twice. And no person who has held the office of president or acted as president for more than two years of a term to which some other person was elected president, shall be elected to the office of the president more than once. I do have to say, Christina, this amendment. Its meaning seems pretty straightforward.

 

Christina Phillips: [00:01:54] Yeah. I don't disagree with you there. A little context. It was passed in 1951 after President Franklin Roosevelt was reelected three times during World War Two, even though the norm since George Washington had been for presidents to only serve two terms. So it seemed like a good idea at the time to get that norm codified into law. And I think it's safe to say that you, me and most of the public see this amendment and the norm. It codifies as pretty cut and dry. Serve two terms as president, if you're lucky and you're done. But Bruce and Scott's idea was to push on that collective understanding just a little bit.

 

Bruce Peabody: [00:02:36] I mean, the basic argument is just that the 22nd amendment to the Constitution, passed after Franklin Roosevelt served an unprecedented four terms, seems to leave open some doors for a twice elected president to serve once again.

 

Christina Phillips: [00:02:53] Now, this is something that's been pondered before. For example, Eisenhower once alluded to possibly returning to office as vice president. But since the amendment was passed, most people seem to have settled around the idea that two terms is all you get.

 

Nick Capodice: [00:03:09] So I don't remember the 90s too well politically because I was so young. But was there some reason that Bruce and Scott were talking about term limits in the 90s?

 

Christina Phillips: [00:03:19] Yeah, there was.

 

Bruce Peabody: [00:03:20] I suppose the nominal prompt was the end of the Clinton administration. So his second term was coming to an end. He was quite young, he was seemingly ambitious, and he was relatively popular as a as a figure in the, well, certainly the late 20th century and definitely popular by the standards of the 21st.

 

Christina Phillips: [00:03:41] What if he stayed in politics and maybe got a job that put him in the line of succession? Does the 22nd amendment hold up in that scenario? What if, for example, someone wants Clinton to be their vice president.

 

Nick Capodice: [00:03:56] Yeah, we've never had a scenario like that strain show Designated Survivor. But even if Bill Clinton was like, you know, Secretary of Agriculture, he would be in that list, like he'd be in that order. It would be possible.

 

Christina Phillips: [00:04:07] Mhm. Exactly.

 

Nick Capodice: [00:04:08] And anyone out there who wants to know the order of succession, we have a whole episode on it. We got a link to it in the show notes.

 

Christina Phillips: [00:04:14] So in 1999, Bruce Peabody and Scott Gantt published a legal article called The Twice and Future President in the Minnesota Law Review. That article laid out an argument for how a president could potentially serve more than two terms in office. And they supported this argument by looking at the origins of the 22nd amendment, how the specific language of the amendment came to be, and how term limits had been talked about since its passage.

 

Nick Capodice: [00:04:41] So what was the reaction amongst the public when this article came out in the law review?

 

Christina Phillips: [00:04:46] Well, I will say it's funny because this comes out in a legal journal. So the public reaction is not really that there really isn't a huge public reaction.

 

Nick Capodice: [00:04:56] Really read law review, right?

 

Christina Phillips: [00:04:58] Yeah, and but it does get the attention of a lot of people in the legal community, right? So some scholars responded directly to their article. Some refuted their claims, some built on those claims and offered other critiques using other parts of the Constitution. So it sort of lives in the scholarship around term limits and the 22nd amendment constitutional interpretation. Now, in 2016, Bruce and Scott wrote a follow up article, Twice in Future Presidents Revisited. They address some of those responses to their first article. They looked at presidents who had been in office since the article came out. And ultimately they came to the same conclusions as they did in the first article, which is that there are pathways for somebody to serve more than two terms in office.

 

Nick Capodice: [00:05:45] And that revisiting of the article, I assume, happened before President Donald Trump was elected.

 

Christina Phillips: [00:05:51] It did. And now we've reached the final chapter of this story. Do you know what happens next?

 

Nick Capodice: [00:05:58] Well, I lack a skill of augury. Christine, I don't know what's going to happen next, but I do know that the current president, Donald Trump, has made overtures to thinking about running for a third term as president.

 

Archive: [00:06:13] People are asking me to run, and there's a whole story about running for a third term. I don't know, I never looked into it. They do say there's a way you can do it, but I don't know about that. Should I run again? You tell me. This. There's your controversy right there. This year we want Trump in 28.

 

Christina Phillips: [00:06:36] President Trump has not yet, nor have any of his staff provided their legal justification for how he could do this. He has just said that he could. And in fact, since he made those initial statements, this was after he was elected and in the early months of 2025, he has walked them back, and he has said that he planned to be a two term president.

 

Archive: [00:07:01] But it's something that, to the best of my knowledge, you're not allowed to do. I don't know if that's constitutional, that they're not allowing you to do it or anything else, but there are many people selling the 2028 hat. But this is not something I'm looking to do. I'm looking to have four. Great.

 

Christina Phillips: [00:07:17] Nonetheless, this caused a little bit of chaos in the news cycle when he first started saying this, right. I think we can't count out the fact that his election was a very emotional one for a lot of people. We live in a very partizan environment in which the temperature is very high. And so when he starts speaking about doing something that most people have understood, a president cannot and should not do. It generates a lot of attention, right? Journalists like us try to figure out what reasons he's alluding to. They try to answer the question, could he do this? Or if he tried, what would happen? And the way that journalists often do this is that we consult constitutional scholars and political scientists. And I kept seeing Bruce's name and this article from 1999 being cited over and over and over everywhere by all kinds of publications, from NPR to the Daily Mail to Axios to the Wall Street Journal to the National Constitution Center. They even do a write up of his argument and put it in position with other arguments about the 22nd amendment.

 

Nick Capodice: [00:08:30] Has Bruce talked to President Trump? Like, do we know that their paper is what Trump is talking about?

 

Christina Phillips: [00:08:37] Have you been, as anyone in the Trump administration reached out to you, or have you had any communication with them?

 

Bruce Peabody: [00:08:42] No communication with Trump administration.

 

Christina Phillips: [00:08:46] Yeah. So I, I was curious about Bruce's argument for sure, and what he thought about how Trump was talking about term limits. But also, I was really curious about what it's like when essentially you have your research go viral. And not only that, it's research that you did many years ago, and it's on a legal theory that has not yet been tested. Right.

 

Bruce Peabody: [00:09:13] So what happens in part is you start getting inquiries right, which is gratifying, I suppose, but also more generally, it does maybe shift that earlier conversation from it being more of a scholarly exercise to to thinking about both the general public conversation and then thinking through some of the policy implications. But the basic argument shouldn't change, right? So people are generally interested in these questions with specific Scenarios and people in mind that shouldn't change the analysis, right? If the if the legal arguments are sound in 1999, they should remain sound in 2025 regardless of the person seeking the office.

 

Nick Capodice: [00:09:57] I just think it's so interesting in the work that we do. Christina. We keep running into these old legal articles that were sort of like, you know, philosophical what if's that are now playing out in the public marketplace of ideas every day.

 

Christina Phillips: [00:10:11] I agree with you. And I think what was nice about talking to him is that he is having the experience himself, where he has spent a lot of time thinking about this theoretically, and then somebody is coming to him and saying, this person is saying they're going to do this is what you're saying, how they would do it. And he's having to work through that himself.

 

Bruce Peabody: [00:10:30] These issues have a number of different strands, right. There's what's the best reading of this provision of the Constitution and the Constitution as a whole. And then there's the political question of what are the implications for this. And those are intertwined. But but also separable. Right. You could have a legal conclusion about the 22nd amendment but also fervently believe it should be reformed. Or you could think this is the right interpretation, but still fret about future scenarios where the country is the country doesn't agree or is uncertain and and something that's supposedly a strength the kind of continuity of executive leadership is as compromise.

 

Christina Phillips: [00:11:09] So I think the point of this episode is not to tell you whether the president can serve more than two terms or not, though hopefully you'll leave with more information to decide how you feel about it. The truth is, no president has seriously tried this since the amendment was ratified in 1951, and that includes President Trump. If he does try to pursue options to stay in office or serve a third term, we don't know what that would look like yet. And we don't know what the public or Congress or the courts would do.

 

Nick Capodice: [00:11:38] Right? Well, regardless of how it makes us all feel. Let's get into the words.

 

Christina Phillips: [00:11:43] We will do that right after a break.

 

Nick Capodice: [00:11:45] All right. But before that break, just a reminder. You can listen to any of our hundreds of episodes on myriad topics and see a whole bunch of other stuff that we've got for teachers and the public alike at our website, civics101podcast.org. We're back here listening to Civics 101. We're talking about the 22nd amendment. And Christina, let's get into what it says.

 

Christina Phillips: [00:12:19] Yes. Let's start with the basics. Nick. You quoted it a little bit earlier, but would you just read the first clause for me again?

 

Nick Capodice: [00:12:26] Absolutely. Quote. No person shall be elected to the office of president more than twice.

 

Christina Phillips: [00:12:32] It's that word elected. No person shall be elected to the office are.

 

Bruce Peabody: [00:12:40] So most people assume that the 22nd amendment bars a present from serving again. And that's not exactly what it says, right? It just says no person shall be elected to the office of president more than twice. And then it has some other language which basically says that if somebody else serves for more than two years of a term, somebody else began, you know, think maybe like a vice president taking over for president, that counts as one elected term for the purposes of the 22nd amendment. So on some level, you might say, well, what's the big difference, right? Isn't that the same thing? But for the reasons we spelled out, it's really not the same thing. And it's it's an interesting choice that the words are focusing on election, which is obviously an important I think we can probably stipulate the most important way to become president, but not the only way. So a deeper dive into the surrounding language. A deeper dive into the kind of history surrounding the debates around the 22nd amendment, and a closer look at our history, suggested to us that the best reading was that this choice really did leave open the door to to other options.

 

Christina Phillips: [00:13:52] The article spent some time discussing how people settled on the exact wording of the amendment. That is important to this argument. At one point, there was this idea that the amendment should say something like no person shall serve rather than be elected. Which of course would probably be more clear. And the article goes into the history of why they ultimately went with the word elected.

 

Nick Capodice: [00:14:16] Right. So I'm guessing that one scenario would be a person is a president for two terms, and then they get nominated as someone else's vice president. Can that happen?

 

Christina Phillips: [00:14:28] That's a good question. Bruce and Scott's article argue that it could potentially.

 

Nick Capodice: [00:14:33] And if they are vice president, there is the possibility that the current president dies and that vice president could be president again.

 

Christina Phillips: [00:14:40] Yeah, that's one idea they talk about. There are a few other scenarios they explored. I'll go through a couple of them. One is if a former two term president ascends to the presidency through some other means, like being the speaker of the House or another person in the line of succession, like you had said, the designated survivor. In some scenario like that, the second option could be a contingent election where nobody wins 270 electoral votes. In that case, the House would choose the president and the Senate would choose the vice president. In that scenario, could the chosen president be somebody who has already been president for two terms? This is something that Bruce and Scott talk about in their article as potentially being possible.

 

Nick Capodice: [00:15:22] Because they weren't elected.

 

Christina Phillips: [00:15:24] Yeah, they just, you know, maybe the house was just like, let's just, you know, bring back the other guy. He seems good. So ultimately, their conclusion is that the 22nd Amendment's language leaves the possibility open for someone to come back into office after two full terms.

 

Nick Capodice: [00:15:48] But it seems like there is a general consensus on one thing, which is that the 22nd amendment bars a person from being reelected for a third time. Also, I think it's worth pointing out that in all of these scenarios you laid out, an actual presidential election still happens in the first place.

 

Christina Phillips: [00:16:08] Yeah, it's safe to say that this is operating under the assumption that someone isn't going to violate the Constitution by canceling the election.

 

Nick Capodice: [00:16:16] A quick question I wanted to ask earlier, Christina, can somebody be elected vice president if they've already been a president two times? Like, isn't this something laid out in the 12th amendment or something like that?

 

Christina Phillips: [00:16:30] Yeah. You're thinking of the Ineligibility Clause of the 12th Amendment, which says, quote, but no person constitutionally ineligible to the office of president shall be eligible to that of Vice president of the United States. And that is an example of a counterargument made by other scholars in response to Bruce and Scott's paper. Oh, okay. The 12th amendment says that someone must be qualified to be president in order to be vice president. So the reasoning goes, you can't become vice president if you've already been elected for two terms, because that would disqualify you. And one of the people who made this argument is Akhil Amar, who is a constitutional scholar that we've had on the show a bunch of times before.

 

Nick Capodice: [00:17:15] Amar is wonderful. By the way, everyone out there, you should listen to his amazing podcast, America's Constitution. It's like civics 275 instead of 101494.

 

Nick Capodice: [00:17:27] He's great.

 

Nick Capodice: [00:17:32] Real quick, back to the 12th Amendment. This is the amendment that ended the practice, which I find kind of hilarious, where the person who lost the election became the vice president. Uh, which is, if you can imagine, that happening in 2025, meaning that from then on, candidates pick their own running mates.

 

Christina Phillips: [00:17:50] Yeah. Imagine the bipartisanship that would have to.

 

Speaker4: [00:17:52] Happen.

 

Nick Capodice: [00:17:52] Or the lack of the lack of bipartisanship.

 

Christina Phillips: [00:18:02] And by the way, Bruce thinks that these counterarguments, including Achilles, are a big reason why this article that he wrote is valuable in the first place.

 

Bruce Peabody: [00:18:11] A lot of people disagree with our analysis, but that's okay. Right. It's kind of fun and helpful to have smart critics, and we're still convinced we're right.

 

Christina Phillips: [00:18:20] And I have to admit, Nick, I asked Bruce what I always worry. Sounds like a rude question, but genuinely comes from a place of curiosity, which is why do this? Why analyze the Constitution, spend hours doing research and studying case law, and combing through transcripts from Congress all for something that gets published in a legal journal. It's not being used, at least not yet, to defend somebody in court or to make an argument in court. It's not necessarily going to be used to write policy. So what's the point?

 

Bruce Peabody: [00:18:55] I have an interest. I'll just speak for myself. I have an interest in talking to a community of peers. They're interesting. People are curious about ideas. We try to test our arguments against one another. There's various forms of peer review. So that's, you know, intellectually stimulating and kind of what my profession does. Second, there is this interest in talking to a wider public right. The constitutions are supreme law. We should be educated about it. It's longevity and good health requires a literate and critical citizenry. So. Many of these kinds of issues are great moments of constitutional literacy and. Kind of reflection.

 

Nick Capodice: [00:19:34] And when Bruce says these kinds of issues, does he mean when our president starts talking about his. Interpretation of term limits and that the public gets more interested too?

 

Christina Phillips: [00:19:47] Yeah, exactly.

 

Bruce Peabody: [00:19:48] At least one third possibility is almost a kind of constitutional policy perspective. Is this really what we have as the best reading of the law? Is this something we're comfortable as a nation having as a, as a, as a set of options? Or alternatively, is there something kind of screwy about this that we need to fix through whatever means it might be?

 

Nick Capodice: [00:20:10] You mentioned earlier that Bruce and Scott, his coauthor. They wrote an update to the paper in 2016.

 

Christina Phillips: [00:20:16] They did.

 

Bruce Peabody: [00:20:17] I didn't fundamentally change our point of view or our basic conclusions, but certainly the piece updated things historically. Right? It brought in this, well, this 21st century set of candidates, including Clinton and Obama, and kind of where they stood. And it discussed some of these episodes where their names have been floated as potential running mates, or did the 22nd amendment apply to them? And then another part of the analysis was just to consider, and, I hope, refute or at least engage some of these critiques and questions. You know, scholars over the years have taken this argument seriously. Great, but offered different arguments as to why, in their judgment, some or all of the scenarios we laid out whereby a twice elected president could again serve. I did not I did not change the position, but I guess it's a long winded way of saying I try to take my critics seriously.

 

Nick Capodice: [00:21:15] So I do want to talk about the politics around this. Just because the law might suggest you could do something that doesn't necessarily mean you should do it, or that the people want you to do it. Um, historically, at least, we like as a nation, we like having term limits. We don't want kings.

 

Christina Phillips: [00:21:36] Yeah. And for scholars, this can feel a little tricky, especially when people are asking you to explain to them how a law could permit something that maybe they don't like. This made me think about a story on NPR that Hansi Lo Wang wrote about President Trump's comments. The article quotes Bruce and quotes another scholar, a guy named Steven Geller's, who is a law professor at NYU, who talks about a potentially feasible hypothetical scenario where Trump could make a deal with Vice President Vance. So if Vance ran for president, Trump could run on the VP ticket and then become president. Okay, so he explains this in this article. And then he says, quote, I want to make it very clear that I'm identifying an argument that Trump could make in order to get back into the white House. I'm not endorsing it.

 

Nick Capodice: [00:22:39] And like we see over and over again, like we talked about in our framing episode. All it takes is somebody saying, you know, one potential argument for it to be turned into a defense of that behavior.

 

Christina Phillips: [00:22:51] Right? Whether you like it or not. And everybody does this right.

 

Nick Capodice: [00:22:54] And then, you know, these headlines could be top legal scholar says, well, this is good. This is you know, this legal scholar said, it's a it's a way to do it, and therefore it's gold and it's gold forever on.

 

Christina Phillips: [00:23:04] Yeah, yeah. So I asked Bruce about this about about how he approaches this.

 

Bruce Peabody: [00:23:08] People will often ask me for kind of policy prescriptions or can I, you know, do I really believe this, uh, in the age of of Trump? Are a kind of apologist for centralizing power. And I think I generally try to, you know, separate my roles as a, as a Partizan or a voter from my roles as a constitutional interpreter. But I want people to take the argument seriously. This is an old idea. The Federalist Papers famously signed their documents. Publius, rather than leaning into, you know, Hamilton, Madison or J. Because in part, they don't want people to dismiss their arguments for their specific political or Partizan goals.

 

Nick Capodice: [00:23:54] When that first article came out, did Bruce share it with politicians or interest groups or any of that stuff? Like, did he contact Bill Clinton's people and say, hey, you should check this out?

 

Christina Phillips: [00:24:04] Yeah he did.

 

Bruce Peabody: [00:24:05] Oh, we did send the piece to William Jefferson Clinton. And he gave back a very nice response. So that was that was gratifying and fun. And Mr. Bush. The second President Bush was was another twice elected president after the time of our article. He didn't have the same popularity as, I think, Clinton or maybe Obama. So the issue didn't come up quite in the same way with him. But there was some chatter with Mr. Obama. He went to Ethiopia and gave some remarks before the African Union and said, I'm pretty popular. If I had been able to run for a third term, I could have won.

 

Archive: [00:24:45] But under our Constitution, I cannot run again. I can't run again. I actually think I'm a pretty good president. I think if I ran, I could win, but I can't.

 

Bruce Peabody: [00:25:02] At one point, Secretary and Senator Clinton Hillary Clinton said that she had thought about making Bill her vice president. So that was interesting and then said that on closer reflection, she had decided he was not able to to serve in that capacity.

 

Archive: [00:25:20] He has served his two terms, and I think the argument would be as vice president, it would not be possible for him to ever succeed to the position. At least that's what I've been told. So you know it. It has crossed my mind.

 

Nick Capodice: [00:25:34] Considering all this, did Bruce share with you his thoughts on what Trump has said about serving a third term?

 

Christina Phillips: [00:25:42] So in one of the articles Bruce had been interviewed for, he says, quote, we've already seen, to put it lightly, unusual legal arguments from the Trump administration, end quote. And I wanted to know what he meant by that, because I think so much coverage of the Trump administration lately has felt like it's about how he does things differently, or how his presidency feels different on a policy and a public experience level. But for someone who thinks about constitutional interpretation, what counts as unusual. And why does that matter?

 

Bruce Peabody: [00:26:14] I think it's fair to say instinctively to say, well, this is a little loopy. Everybody knows that the Constitution bar is a present from service in more than two terms. So to advance an argument, especially an argument about whether a person could serve in a third term, you have to win legal arguments. But presumably you also have to win the political argument. So I think the point in using the word unusual there is to say this might be a president and might be an administration that doesn't care, right, that they're willing to say, hey, there is a conventional wisdom on what it means under the 14th amendment to be a citizen, and we're going to challenge that, right? There's conventional wisdom about when one might issue executive orders and the role of Congress. And we're we're not going to be bound by that. So if you've got that backdrop of a kind of iconoclast or a somebody willing to be a norm breaker on these other areas, then then we should take seriously the prospect that the 22nd amendment might be pursued in the same way. The other ingredient I would add to that is, again, not only a partizan environment, but a particular kind of partizan environment where people tend to see their opponents as dangerous. Right? As not just as not just policy disagree ears or people promoting different candidates, but as purported threats to the health of the Republic. So yeah, I think that's a that is a different model than certainly we've lived with for much of our history and, and certainly a different model than some of the framers envisioned. But but it's where we are now.

 

Nick Capodice: [00:28:00] We're back here listening to Civics 101. We're talking about the 22nd amendment. So, Christina, all of this makes me think about something we haven't talked about yet, which is amending the Constitution. We can do it. You know, it's a living document, whether it comes from President Trump proposing an amendment that eliminates two term limits or, you know, potentially revisiting the language of the 22nd amendment. Hey, this isn't clear enough. Now, I do know it's really hard, like the idea of even proposing a constitutional amendment seems pretty tough right now, considering you need two thirds of both chambers of Congress to even propose it in the first place. Never mind the staggering consensus you need for ratification, which is three fourths of all the states, right?

 

Christina Phillips: [00:28:48] And for what it's worth, House Democrat Dan Goldman of New York introduced a resolution after Trump made these initial statements saying that the the term limits do apply to Trump. And House Republican Andrew Ogles from Tennessee, introduced an amendment proposal that would extend term limits. Both were just introduced. They're, you know, just kind of sitting there right now. But there is interest in both directions for this.

 

Bruce Peabody: [00:29:13] What do you do about the problem of constitutional change? Uh, George Washington was very clear that our Constitution was imperfect, as he put it, that our Constitution would need regular updates. Jefferson famously said, every generation or every 19 years, we needed to reboot the whole thing and start over. So there's a tension between a constitution that clearly anticipates itself as needing to change is imperfect. That has to be adapted for the generations to come. And the reality that in the 21st century, at least so far, it's extremely unlikely that we'll get a formal constitutional amendment right. It's very hard. It's very hard, as a general matter, to change our Constitution. And that's independent of kind of our current environment, where we have closely divided parties and perspectives. And those Those groups are very unlikely to cooperate right now. How are we going to get the two thirds votes to propose an amendment and the three quarters votes to to ratify them when we can't get even ordinary legislation passed?

 

Christina Phillips: [00:30:25] So there's something I want to leave us with, Nick, that I hope you and me and our listeners can use when our understanding of how our democracy works is challenge, whether by a president, by a person in our life, or by something happening in the news. I asked Bruce how to approach these moments when you go. I thought I understood what this said, and now I'm not so sure. Given that he's a professor and he teaches people about our government all the time.

 

Bruce Peabody: [00:30:52] One answer is read the text right. Go back to the basics. The framers believed the Constitution and the law it creates. It was was different from the law of Created in statutes or the law found in the cases issued by different judges and justices. They thought it was basically accessible by by ordinary citizens. To start with the original text, that's a good place to to begin. I guess another aspect of this is, of course, to to push your partizan priors. So if you if one has a strong reaction to this or any other argument about constitutional meaning, try it out on your for sure most preferred candidate or political figure or or party. But then also say, could you live with this reading? If your political opponent or the person you think is most dangerous were to to take advantage of it? And that's not a foolproof test, but but is a good one. For example, in a field like impeachment. Right. So what is the meaning of of impeachment? What counts as a high crime or misdemeanor? I think that's a really good exercise for a question like that to say, you know, if I'm going to dismiss a particular impeachment charge, would I really feel the same way. If it were my my Partizan opponents.

 

Nick Capodice: [00:32:05] Yeah. This is an exercise that you hear played out every single day in Washington. Right. Well, if we get away with it, they're gonna get away with it next time. And you hear this from both sides. And it leads me to reiterate, the one true thing that I've learned since working on the show is that hypocrisy doesn't matter just because one side does one thing in a scenario and then does the opposite in another. The argument, hey, you did the opposite last time, or you said the opposite back when we were in charge. That doesn't hold any water and it never gets anyone anywhere.

 

Christina Phillips: [00:32:38] But do you still think it's useful if you are like, how do I feel about impeachment? Like it? Do I think that this person should be impeached, that I hate? And then you say, well, what if it was my the person that I loved who was in office? Do you feel like that's helpful for the public?

 

Nick Capodice: [00:32:55] Well, it's helpful for you and me. It's helpful for the public, but nobody in Congress does it. It's true.

 

Christina Phillips: [00:33:01] Yeah.

 

Nick Capodice: [00:33:02] Yeah. But, you know, you see this all the time. People say, I swear I will not do this if when I'm in charge. And then they do it when they're in charge. This happens over and over again from both sides. So I do think it's helpful for you and I to think that way because that's a human way. Right to. It's the golden rule, right? Do unto others as you would have them do unto you.

 

Christina Phillips: [00:33:23] Mhm.

 

Christina Phillips: [00:33:24] Yeah. And I always think about when we talk about policy, every time that you change it, when you are in charge that sticks around. Right. So this is I think something that's been happening over many decades is that the party in charge will in Congress give the president more power. And then the president, the next president continues to have that much power, and then maybe they get a little bit more, and then maybe they get a little bit more, and maybe they get a little bit more. I think it's helpful for us to think about as people, but I wish I saw a little bit more of that, or at least news coverage about it. Maybe it's happening, but I don't read about it very much, about thinking about the implications beyond this current administration, because there will be a future like we do have to live with what we do now, in the future, and how will that play out and who's going to be happy about it?

 

Nick Capodice: [00:34:14] This is so good.

 

Nick Capodice: [00:34:15] It's depressing, but it's a good it's good.

 

Christina Phillips: [00:34:17] Yeah. This episode was produced by me, Christina Phillips, with help from Nick Capodice. It was edited by Rebecca Lavoie. Our team includes host Hannah McCarthy and producer Marina Henke. Music in this episode from Epidemic Sound and Chris Zabriskie, Civics 101 is a production of NHPR, New Hampshire Public Radio.

 

Nick Capodice: [00:34:52] I'm always dehydrated. I hate.

 

Nick Capodice: [00:34:54] Water.

 

Christina Phillips: [00:34:55] Do you need water?

 

Nick Capodice: [00:34:56] Sound like Marlon Brando doing his dawn. Did you see.

 

Nick Capodice: [00:35:00] The Godfather movies?

 

Christina Phillips: [00:35:01] No. Oh, I've never seen that.

 

Nick Capodice: [00:35:03] I knew it.

 

Nick Capodice: [00:35:03] The second I made that. I was like, wait a minute.

 

Christina Phillips: [00:35:06] Yeah, I don't, I've not.

 

Nick Capodice: [00:35:08] What if I told you they're really phenomenal?

 

Christina Phillips: [00:35:10] I believe you. I just, um.

 

Nick Capodice: [00:35:13] Just the first one. Here's the problem.

 

Nick Capodice: [00:35:14] I know their boyfriend films. Like, I know every like. Oh my God.

 

Christina Phillips: [00:35:17] Your girlfriend is such a boyfriend.

 

Christina Phillips: [00:35:19] Film that they're a Barbie reference.

 

Speaker4: [00:35:21] Oh, really? Oh, yeah.

 

Christina Phillips: [00:35:22] So you haven't seen Barbie? Well.

 

Nick Capodice: [00:35:24] Yeah.

 

Christina Phillips: [00:35:25] I consider Barbie the godfather of 21st century.

 

 
 

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A country with no kings

As subjects of the British king, the very idea of criticizing monarchy -- or King George III himself -- was a dangerous one. So how did we become a country where "no kings" is a guiding principle? Something we take for granted? 

Holly Brewer is our guide to the resistance, risk and eventual revolution that transformed a British colony into a democratic country that would have no king. 


Transcript

Holly Brewer: [00:00:03] I'm just going to start in a strange place.

Hannah McCarthy: [00:00:05] This is Holly Brewer.

Holly Brewer: [00:00:07] Hi, I'm Holly Brewer. I'm a professor of [00:00:10] history at the University of Maryland, College Park, and I work on early modern debates about justice and power.

Hannah McCarthy: [00:00:18] I called Holly up a couple [00:00:20] of weeks ago, because I've been thinking a lot about this principle that we have tended to agree on here in the United States.

Holly Brewer: [00:00:27] We're public. We have no kings.

Hannah McCarthy: [00:00:30] We [00:00:30] have no kings. And I wanted to know how that started. I mean, I know we had a Declaration of independence. I know we fought a long and brutal Revolutionary [00:00:40] war to secure that independence, those blessings of liberty. And I know that we wrote and then rewrote a constitution that cemented that principle. [00:00:50] But when and how did that become something that we ostensibly agreed on? All right, so let's start in a [00:01:00] strange place.

Holly Brewer: [00:01:04] It's with an image that we think was written by Benjamin Franklin's grandmother. [00:01:10] So sometime in the middle of the 17th century, which includes the words no church, no kings, and connecting the hierarchies of [00:01:20] the Church of England to the power of monarchy. And a pretty radical thing. But it's it's scribbled in a letter on an unpublished letter. It's [00:01:30] not published. And I begin with that to illustrate the problems of trying to measure anti [00:01:40] anti monarchical sentiment in early America.

Hannah McCarthy: [00:01:45] This is Civics 101 I'm Hannah McCarthy.

Nick Capodice: [00:01:48] I'm Nick Capodice.

Hannah McCarthy: [00:01:49] And today [00:01:50] how we became the land of no kings. Because remember we used to have one.

Holly Brewer: [00:01:59] It [00:02:00] was seditious to even criticize a royal policy, but it was literally treason to criticize monarchy or the king directly. I mean, [00:02:10] he depended on what you said, and he said it to us, but you wouldn't want to put anything in print. It was bad enough to try to criticize the [00:02:20] Prime Minister or great lords or anybody else. And even then you would want to. If you look at colonial newspapers from the mid to late 18th century, for example, [00:02:30] there'll be criticism during the stamp out crisis of, say, Lord North, but they will write it out dash dash D. And [00:02:40] dash dash dash eight. So you have to guess right. So there's a little bit of plausible deniability.

Hannah McCarthy: [00:02:48] Nick I actually told Holly that [00:02:50] more than once during the conversation I had with her, I had butterflies in my stomach because she does the kind of work that, at least for me, makes the past a little less [00:03:00] hazy. She finds the humanity in the thousands of documents that are clues to our history. And when it comes to understanding how colonists felt about monarchy. [00:03:10] That takes a lot of effort.

Holly Brewer: [00:03:13] You certainly wouldn't want to criticize the King directly, because it could get you in all kinds of trouble, and usually it would just be in the form of a fine [00:03:20] or something like that. They weren't trotting out the full punishment for treason for these things, but you did have to be incredibly careful. And so when we find [00:03:30] things, it's evidence like this that's written into a letter or on a, you know, scribbled in a manuscript, it's not usually in the published press because it's [00:03:40] just stupid and dangerous to say something like that directly.

Nick Capodice: [00:03:46] So for Holly to really understand how some people in the colonies [00:03:50] felt about having a king, while we still very much had a king, she has to hunt for clues to read between the lines.

Hannah McCarthy: [00:03:59] Yeah. [00:04:00] When you're a subject of the king, even if you don't like what he's doing, you still don't want to be caught giving him a bad review. You have to be a little sneaky. [00:04:10]

Nick Capodice: [00:04:12] Wait, Hannah. That letter Holly mentioned. The one probably from Benjamin Franklin's grandmother. That was from the 1600s. [00:04:20] Isn't that a little bit early for being anti-monarchy? Even if you're being sneaky?

Hannah McCarthy: [00:04:26] Well, there was a little something called the English Civil War.

Holly Brewer: [00:04:29] In [00:04:30] England in the 17th century. In the first century of the colonies, there were two revolutions, both of which involved displacing [00:04:40] a king and in the first case, King Charles the first. After seven years of civil war, he was put on trial by Parliament and tried [00:04:50] and executed, and he kept repeating. During his trial he refused to defend himself except by saying that they had no right to try him, that he was [00:05:00] above the law, that God only could sit in judgment on him, and that he was appointed by God, and that therefore they had no capacity to judge him. And that's [00:05:10] probably when that that manuscript drawing from Franklin's grandmother originated.

Nick Capodice: [00:05:15] Oh, so there were colonists observing this thing from afar and [00:05:20] quietly supporting it.

Hannah McCarthy: [00:05:22] Well, it's complicated. The colonies were pretty new. Many of them loyal to the Crown, specifically the king's son, Charles II, who was an exile. But [00:05:30] some were less than thrilled with their deposed king.

Holly Brewer: [00:05:34] You know, you can find all kinds of other evidence from around then, too, especially in New England, where they were less [00:05:40] sympathetic to monarchy, partly because especially Charles the First, partly because of their perceptions that he was intolerant of their [00:05:50] Puritan religious beliefs.

Hannah McCarthy: [00:05:52] Holly told me about this guy, Samuel Maverick. He lived in the Massachusetts Bay colony, And he wrote this letter when the restoration happened. [00:06:00]

Nick Capodice: [00:06:00] The restoration, that is, when Charles II was basically invited to just come on back and be king again. He was restored to the throne.

Hannah McCarthy: [00:06:09] Right. [00:06:10] So Samuel Maverick, who did not get along so well with the Puritan leadership in Massachusetts, is describing the colony in this letter.

Holly Brewer: [00:06:18] And he wrote this letter and [00:06:20] reported on just how terrible they were in Massachusetts and how much they didn't like monarchy. He says there's a tavern right at the main wharf coming [00:06:30] into Boston, and it used to be called the King's Arms.

Hannah McCarthy: [00:06:34] The King's Arms, by the way, refers to the royal coat of arms, the one with the unicorn and the lion. It symbolizes divine [00:06:40] right and power. It also was, and is a pretty common name for inns and taverns in Massachusetts.

Holly Brewer: [00:06:47] In Boston. They renamed the [00:06:50] tavern from the King's Arms to the King's Head. And the reason that this was so dramatic is, of course, the Kings had, [00:07:00] after the execution of Charles the first would have been a bloody head. Right? This was an incredibly radical thing to do for them to rename the King's [00:07:10] Arms, which celebrated monarchy, to the King's head.

Nick Capodice: [00:07:13] Wow. So this tavern was saying something without saying something. Essentially, it's that plausible [00:07:20] deniability thing again, right?

Hannah McCarthy: [00:07:22] And clearly Samuel Maverick knew what they meant. He's saying, look at these terrible British subjects. Now, of course, you cannot prove [00:07:30] that they are opposed to the king. It's just a name. So here's the thing. The English monarchy is restored in 1660. There are still over 300 years until [00:07:40] the Declaration of Independence. And there was a lot going on in North America, British colonies trying to establish themselves amidst resistance from tribal nations and threats from pirates [00:07:50] and competing foreign nations. There were also Nick rebellions.

Nick Capodice: [00:07:54] Oh, yeah, I know about this. Colonists rebelling against royal governors [00:08:00] and also against English law. Right.

Hannah McCarthy: [00:08:04] Right. There were these English laws that basically said the colonists could only send trade goods on English ships. [00:08:10] Some of them could only be shipped to England. And some of the stuff going to the colonies had to go through England first so it could be taxed. And even if these policies did not mean a [00:08:20] huge financial cost for the colonies, they were politically unpopular. In North Carolina, Nick, in part because of the trade laws, colonists even seized control of the government, [00:08:30] arrested officials, and created their own government for two years.

Nick Capodice: [00:08:36] This smacks of self-governance. Hannah.

Hannah McCarthy: [00:08:39] Yeah, it sure [00:08:40] does. By the way, the guy who led that rebellion, John Culpeper, had to go to England. He was tried for treason, and then he was acquitted.

Nick Capodice: [00:08:48] Wait, seriously?

Hannah McCarthy: [00:08:49] Yeah. Because the English [00:08:50] lords feared what would happen in the colonies if he were convicted. He came home a hero. But the reason I'm telling you all of this is to say that things were tumultuous. [00:09:00] In the 100 years before the revolution. The colonists were resistant to taxation without representation, to governance being imposed on them in ways that felt unfair. [00:09:10] America, in short, was developing a vibe.

Nick Capodice: [00:09:14] All right. What about the term that we hear a lot in this era? Salutary neglect that was going [00:09:20] on, too, right?

Hannah McCarthy: [00:09:21] Yeah. We talked about this in our episode on the Declaration of Independence. There was this unofficial policy of not enforcing English laws, specifically trade laws in the American [00:09:30] colonies, which helped the colonies to thrive. But part of the reason England was a little lax on laws is the fact that they were distracted. [00:09:40]

Nick Capodice: [00:09:40] Well, there was essentially a world war going on.

Hannah McCarthy: [00:09:43] There was the Seven Years War, a massive global conflict that came to the North American theater in the form of the French [00:09:50] and Indian War.

Nick Capodice: [00:09:51] Which Britain won.

Hannah McCarthy: [00:09:52] Indeed it did. It all wrapped up in 1763. But you see, even if you win a war, you still have to pay the piper. England [00:10:00] was in a ton of debt, and now it had all this time on its hands. And hey, they protected the colonies. So the colonies need to foot part [00:10:10] of the bill.

Nick Capodice: [00:10:10] Yes. Taxes.

Hannah McCarthy: [00:10:15] Taxes and not just taxes. England knew that tribal nations were not [00:10:20] going to take defeat sitting down. So they kept troops in North America. They also wanted to manage their newly acquired territories to the west. That's the stuff they took from France. So [00:10:30] colonists were forbidden from settling west of the Alleghenies. People like George Washington, for example, had fought in the French and Indian War. They'd been promised [00:10:40] land in return, or they'd been planning for decades to grab that land whenever they could.

Nick Capodice: [00:10:45] So westward expansion was an American obsession. From very early on.

Hannah McCarthy: [00:10:49] An [00:10:50] English interference with this plan was not welcome. So we have England telling us we cannot have the land. We want English troops roaming around who, by the way, [00:11:00] the colonists were required to house and give supplies to.

Nick Capodice: [00:11:05] Wait, wait, hold on a second. Is this why we have the Third Amendment, our most neglected [00:11:10] amendment? Yes. This story keeps getting better and better.

Hannah McCarthy: [00:11:13] And of course, as you mentioned, we have taxes. Oh the taxes. And we're gonna get to that after [00:11:20] a quick break.

Nick Capodice: [00:11:21] But before that break, if you want to learn more about what went into cementing a country without kings, we have a whole series on our foundational documents. [00:11:30] You can check out the whole shebang on our website, civics101podcast.org, or wherever you get your podcasts.

Hannah McCarthy: [00:11:51] We're [00:11:50] back. We're asking how we agreed to be a country without kings. And before the break, the French and Indian War had just ended and England was really [00:12:00] starting to grind colonial gears, quartering soldiers, forbidding expansion and taxes.

Nick Capodice: [00:12:06] And I know we got to have a gentle touch on the historical details [00:12:10] on this one, because otherwise we're going to be here all night.

Speaker4: [00:12:13] All week, all week.

Nick Capodice: [00:12:15] But I think basically what people need to know here is that the colonies had developed [00:12:20] a sense of independence. They had their own methods, their own plans. And now. Now the mother country was yanking them back in certain ways. [00:12:30]

Hannah McCarthy: [00:12:30] Right. And all of this without representation in British Parliament. Still, this didn't yet mean we were anti-monarchy, at least not out loud. Early on in this [00:12:40] episode, our guest Holly Brewer explained the danger of critiquing the crown itself. It was treason in the early days of the colonies, and remained treason in the years before the [00:12:50] Revolutionary War.

Holly Brewer: [00:12:51] One of the things that really fascinates me is there's been some scholarship that has said people didn't really criticize the monarchy, and therefore [00:13:00] people approved of the monarchy in colonial America. But when you realize that it's dangerous to do so, and you can find examples of people being thrown in jail for saying, [00:13:10] God damn the King in a tavern, for example, in North Carolina in the 1750s or something like that, you realize that people learn [00:13:20] to be careful. I mean, not that you might not think things, but you're not going to put it in print. So you have to be suspicious of just looking at what's in the newspapers [00:13:30] and assuming that represents what people really thought about monarchy. And so it was normal in the lead up to the revolution, to blame the king's ministers [00:13:40] for the policies and the problems and not the king himself, because that was a safer thing to do. But people might really be realizing [00:13:50] or probably were really realizing this is the Kings bad choices about prime ministers because he chose the prime ministers. And so that was creating all [00:14:00] kinds of problems.

Nick Capodice: [00:14:04] So even though the safest way to critique your government was to avoid the guy at the top, [00:14:10] people were aware of the fact that the guy at the top was ultimately responsible for the things they didn't like.

Hannah McCarthy: [00:14:17] Yeah, it makes me think about the fact that Americans [00:14:20] today often blame the president before they'll blame whatever cabinet member made, whatever decision, we go straight to the top. But back to the colonies. Tensions are [00:14:30] building amidst taxes and policies and conflict with British troops. Real quick, Nick. Do you know who Oliver Cromwell is?

Nick Capodice: [00:14:38] So Cromwell was the guy who took over. [00:14:40] Way back when Charles the First was executed. He was the Lord protector of the Commonwealth of England. Controversial guy. Some people say he was [00:14:50] a military dictator. Some people say he was a hero.

Hannah McCarthy: [00:14:55] And a true loyalist to the Crown would be anti Cromwell. He [00:15:00] helped to overthrow the English monarchy. So in 1765, the very unpopular Stamp Act imposed a direct tax on the American colonies. [00:15:10] That same year, a clandestine resistance group launched in Boston, Massachusetts, to protest taxation without representation.

Nick Capodice: [00:15:23] I [00:15:20] was hoping we'd get to these guys. The Sons of Liberty.

Holly Brewer: [00:15:26] The Sons of Liberty were meeting at a place called the [00:15:30] Green Dragon in what they did to make sure that only people that agreed with them could come in as they took. They had a painting like a sign [00:15:40] of the Lord protector, Oliver Cromwell, who was the one who defeated Charles first and was in charge of the Commonwealth earlier. And they put it [00:15:50] halfway down the door. So imagine like a doorway and they take the sign and they put it halfway down. So that to walk through the doorway you have to bow [00:16:00] low and then walk underneath this picture. And so their logic was, if someone is willing to bow to the Lord protector, they can come in and be part of the Sons [00:16:10] of Liberty meeting. But if they're not, this is a good way of making people choose their allegiance.

Nick Capodice: [00:16:20] So, [00:16:20] Hannah, look, I know this is all leading towards a long, deadly war, but this kind of thing is just funny. It's clever, you know, it's [00:16:30] good marketing. It is both serious and tongue in cheek. If you bow before the guy who helped to overthrow the king over 100 years ago. You're one of us. [00:16:40] And if you can't bring yourself to do that, we got your number right.

Hannah McCarthy: [00:16:44] And the Sons of Liberty were not the first resistance effort in the years after the French and Indian War, but [00:16:50] their riots, boycotts and propaganda fueled the sentiment of liberty all building up to the shot heard round the world. April 19th, 1775, [00:17:00] at the Battle of Lexington and Concord between British troops and the American colonial resistance, and still still the [00:17:10] battle against monarchy itself. The war against a king that took a little common sense.

Holly Brewer: [00:17:19] Well, what [00:17:20] most historians say, and I think this is right, is the first example of directly criticizing the king is Thomas Paine's Common Sense. [00:17:30] Paine was actually from England, was from a Quaker family. Benjamin Franklin met him in London in 1773 or [00:17:40] 1774 and said, you should come. He liked his ideas, said you should come, and helped him. Anonymously published this pamphlet called Common Sense, which we all know [00:17:50] there were thousands of copies, probably one for every ten people in early America in early American, given that many people couldn't read, and [00:18:00] we know it was at taverns and people were reading it out loud, this was incredibly widely distributed. And it appeared in January of 1776.

Nick Capodice: [00:18:09] As in six [00:18:10] months before we declared independence.

Holly Brewer: [00:18:12] And not only did it directly criticize the king that King George the Third, but it also [00:18:20] criticized monarchy in general. The idea of hereditary power, given the way that you're supposed to talk about monarchy as divine in a world where [00:18:30] the king is the head of the church and called God's anointed servant, which is part of the routine church services that people are supposed to be attending. This is pretty radical [00:18:40] talk. Talk that people laughed at, people listened to. And as he pointed out in great [00:18:50] detail. Choosing your king on the basis of whoever happens to be born to the king before he might be a good person, but will [00:19:00] the child be good? Especially because princes are likely to be spoiled and not grow up among the common people. They really won't understand things. So it's [00:19:10] a really deliberate and sustained attack on monarchy, for which he knew he was potentially in great trouble because it was a really dangerous thing, too, right? And [00:19:20] of course, all the early editions were published without his name on it.

Hannah McCarthy: [00:19:25] Now, Holly told me this was a major moment in the colonies, this barrier that had prevented [00:19:30] so many people from criticizing the king out loud had cracked. And King George the third, of course, played a role in that as well. In more ways.

Speaker5: [00:19:39] Than one. [00:19:40]

Hannah McCarthy: [00:19:40] We're going to get to that after a quick break. We're back. We're talking about the long and winding [00:19:50] road that led to our country being without a king. And a big part of that was being able to criticize the king and the idea of monarchy itself out loud before [00:20:00] the break. Our guest, Holly Brewer, told us about Thomas Paine's Common Sense, a pamphlet that was published in the colonies in January of 1776. [00:20:10] It targeted both King George the Third and the problem of monarchy itself, and it got the colonists talking. But Nick, it was [00:20:20] still immensely controversial.

Nick Capodice: [00:20:23] Wait. But at this point, we were already fighting, weren't we? The Battle of Lexington and Concord [00:20:30] had happened. The revolution had begun. So if that's the case, why was Thomas Paine's Common Sense so controversial?

Hannah McCarthy: [00:20:39] Okay, this might be familiar [00:20:40] to anyone who has seen the musical Hamilton or studied this period in history closely. Yes, the fighting had already begun. And yes, we talk [00:20:50] about the shot heard round the world as the beginning of the Revolutionary War changed the world as we know it. Except Nick. The Continental Congress [00:21:00] tried to end the fighting after just a few months.

Nick Capodice: [00:21:04] Oh, yes, that's right. This is the Olive branch petition.

Hannah McCarthy: [00:21:07] Yeah. Congress signed this thing on July 5th, 1775. [00:21:10] That's a year minus a day before the Dunlop broadside of the declaration was printed in Philadelphia. But do you know what the Olive branch petition [00:21:20] actually says?

Nick Capodice: [00:21:24] No, uncle. Truce? No. Backsies.

Hannah McCarthy: [00:21:28] It begins, quote, [00:21:30] to the King's most excellent Majesty. Most gracious sovereign. We, your Majesty's faithful subjects of the colonies.

Nick Capodice: [00:21:39] Wow, [00:21:40] that is some serious groveling Hannah.

Hannah McCarthy: [00:21:42] Oh, yeah. It goes on to say, essentially. Hey, Your Majesty, we love you. We're loyal to you. Great Britain is amazing, [00:21:50] but we have had some issues with your ministers. And yes, things got out of hand. Please, please, please stop the fighting and let's just work something out together.

Nick Capodice: [00:21:59] And what [00:22:00] did George think of that?

Hannah McCarthy: [00:22:01] He refused to read it. He gave a speech to Parliament, said the colonies were rebelling and Britain was going to squash it, and [00:22:10] then eventually denounced the colonies. Unfortunately for him, common sense was about to hit the shelves.

Holly Brewer: [00:22:19] It [00:22:20] was also a timing issue. So I think this probably arrived in the colonies in about January, about the same month, and was reported in the newspapers where the king got so angry [00:22:30] about what had happened in terms of the battle at Lexington and Concord and the emerging war that he declared that the colonies [00:22:40] were outside of his protection, that they were no longer subjects, that they were. He rejected them. And so it made it, you know, arguably safer because [00:22:50] he said they were outside of his protection. Then all of a sudden he had said, I'm not your king anymore. Right. So they felt like there was a certain space [00:23:00] there, but it was still something they were scared about.

Nick Capodice: [00:23:07] Something I can't stop thinking about. It is [00:23:10] amazing to me, Hannah, how long and how much it took for us to say publicly. All right, George, you're the problem. [00:23:20]

Hannah McCarthy: [00:23:20] Which, of course, we finally did. The Declaration of Independence, [00:23:30] which included a laundry list of grievances against the king, was approved on July 2nd and signed by many of the framers two months later. Holly told me [00:23:40] about this letter that one of the framers, Benjamin Rush, sent to John Adams, and now he sent this about 35 years after the declaration was signed.

Holly Brewer: [00:23:50] And [00:23:50] do you recollect your memorable speech upon the day on which the vote was taken? Do you recollect the pensive and awful silence which pervaded the house when we were called up one after [00:24:00] another to the table of the president of Congress, to what was believed by many at that time to be our own death warrants, the silence and the gloom of the morning [00:24:10] were interrupted, and I well recollect only for a moment by Colonel Harrison in Virginia, he said to Mr. Jerry at the table, quote, I shall have a great advantage [00:24:20] over you, Mr. Jerry, when we are all hung for what we are now doing, from the size and weight of my body, I shall die in a few minutes. But from the lightness of your body you will dance in the air for [00:24:30] an hour or two before you are dead. End quote. The speech procured a transient smile, but it was soon succeeded by the solemnity with which the whole business [00:24:40] was conducted.

Nick Capodice: [00:24:41] It is a literal gallows humor joke.

Hannah McCarthy: [00:24:45] I know. I appreciate this letter so much. Like the way it gives this deep sense of dread. [00:24:50] You know, you hear your name called. You walk up to the table. You put your signature on a document that could condemn you to death. And then some guy [00:25:00] tells a joke, right? But it, like, barely lightens the mood.

Holly Brewer: [00:25:03] But it does give you a sense of just how terrified they're all were. And some of those who wrote the [00:25:10] declaration, Livingston, who was one of the five Committee of Five who helped to drop the declaration. He didn't sign it in the end. And there's others [00:25:20] who were there originally who weren't there for the signature phase. So some did chicken out. And for most of them, it turned out okay. But it was scary. [00:25:30] And I think understanding that is really important, that it's hard to measure popular sentiment against monarchy [00:25:40] when it was so dangerous to speak up Gab openly. Now, of course, after the declaration is signed and people are openly at war. It's it's a it's [00:25:50] a much more complicated business, right.

Nick Capodice: [00:26:02] So [00:26:00] is this it, Hannah? Like, is this when it really and truly started the era of an America that [00:26:10] was against kings?

Hannah McCarthy: [00:26:11] Well, plenty of people were still loyalists and plenty more claimed to be loyalists when they had a red coat staring them down. The Declaration of Independence self [00:26:20] proclaimed unanimity of the 13 states. But not everybody wanted out of the monarchy. The gloves were off, though, for those who did. Holly [00:26:30] talked about a moment when she was going through all of these revolutionary era summonses from the King.

Holly Brewer: [00:26:36] In the fall of 1776, in Frederick County, [00:26:40] Virginia. When I was going through those files, one of those summons. Somebody had clearly the sheriff or some official who was delivering it had [00:26:50] crossed out. They'd kept the part about Georgia third, but they crossed out defender of the Faith and King by the grace of God. And and they put in just two words [00:27:00] the devil. So, so. So there really was a sense [00:27:10] in which the revolution was deliberately against the king and really angry about him.

Nick Capodice: [00:27:17] And is this around about the time when the former colonies started to [00:27:20] write their own constitutions?

Hannah McCarthy: [00:27:22] Yeah. And they certainly looked to the monarchy for inspiration for what not to do.

Holly Brewer: [00:27:27] So you have, throughout these new constitutions, [00:27:30] um, processes of electing everybody in every position of making sure that people had their jobs, usually during good behavior [00:27:40] and not at the pleasure of the governor. And you had efforts to make sure that everybody in all positions [00:27:50] were accountable if they did things wrong. Um, so processes of impeachment and removal, frequent elections, language [00:28:00] that people who serve in such positions are the servants of the people and not vice versa. So there was a real effort to subvert. [00:28:10] Even though they have some of the same structures of power, the authority structure, from being something that was top down towards something that was [00:28:20] more bottom up.

Hannah McCarthy: [00:28:25] And then, of course, Nick, we know how this particular story ends. The United States [00:28:30] won the war against this ancient, powerful monarchy, against monarchy itself. And the framers had to decide what the new nation would [00:28:40] look like. And who would be the leader at the top. Would it be one person? Would it be three? How would they be elected? How long would they serve? And even the most [00:28:50] extreme proposals were a far, far cry from monarchy. And then they had to convince the rest of the new country.

Holly Brewer: [00:28:59] One of the things [00:29:00] that's really striking about that is there's nobody at those ratifying conventions or in the newspapers who's saying the president is [00:29:10] too weak? Nobody. I mean, in a highly fractured ideological landscape, you would have expected somebody to [00:29:20] say something like that. Even in a newspaper, if they really thought it. And maybe the ones who really thought something like that. I mean, of course they left the country. They'd stayed [00:29:30] loyalists or they weren't speaking up at that point. But at least you don't see things like that in the newspapers at all. What you see are worries that there might be [00:29:40] a way for the president to become a dictator, even with all these restraints that are put on him. And you see a lot of emphasis in the discussions [00:29:50] on, oh, no, no. He's going to be responsible before the law. He's going to be accountable. He can be impeached without any punishment, then removal, [00:30:00] and then he can be tried by the courts of common law. If he does something seriously wrong. So there's constant reassurances in these debates that, yes, this is [00:30:10] this person is not a king.

Nick Capodice: [00:30:17] You know, Hannah, over the course of this whole conversation, [00:30:20] I just kept thinking about that one line from the Declaration of Independence. We hold these truths to be self-evident. [00:30:30] Right. The framers thought monarchy was unnatural. That absolute power over others, power that does not [00:30:40] answer to anybody was a violation of our innate human rights. Even if that power was used for good, it is inherently wrong. And [00:30:50] they knew what they were talking about. They lived it. It was their system. They were born into it. They suffered under it, and they broke free. It [00:31:00] wasn't about taxes. It was about humanity versus inhumanity.

Hannah McCarthy: [00:31:06] Yeah. You know, there's one thing that Holly said that I keep turning over in [00:31:10] my mind because the framers created a country where people have come to take democracy for granted. You know, maybe that's a good thing. Maybe it's because [00:31:20] democracy is truth is human is based on what is self-evident. Or maybe we take it for granted, or even grow to dislike it, [00:31:30] because we've stopped thinking about why we made it in the first place.

Holly Brewer: [00:31:35] And we are in a very, very difficult time right now because so many [00:31:40] norms are being ignored and overturned, but it's all the more important. I would suggest that we do think about [00:31:50] fundamental principles and how the world should work, and raise our voices about that. There's a line in the Virginia Declaration of Rights, [00:32:00] and I'll read it to you that no free government or the blessings of liberty can be preserved to any people, but by a firm adherence to justice, moderation, [00:32:10] temperance, frugality, and virtue, and by frequent recurrence to fundamental principles. And there's something about that recurrence [00:32:20] to fundamental principles that I think is so important that it gives us a grounding. We should be thinking about what we want our fundamental principles to be, and then we [00:32:30] should adhere to them, because, frankly, a chaotic world where the rules are always changing is not good for anyone. Not even oligarchs, [00:32:40] Not even big business people need rules that they. They can follow norms. I have my own ideas about what their should be, which [00:32:50] look like some sort of real democracy, right? But regardless, people should always be thinking about what those fundamental principles are.

Hannah McCarthy: [00:33:04] Last [00:33:00] thing, Nick Hawley told me that in the early days of the United States, there was this concerted effort [00:33:10] to figure out what our laws would be. We had federal and state constitutions and legislatures, but they weren't starting from scratch.

Holly Brewer: [00:33:19] In early America, [00:33:20] before the revolution. A lot of the laws, a lot of how justice functioned, was not based on laws passed in the colonies. It was based on these common law guidebooks [00:33:30] that that local justices of the peace would use, or justices even on the High Court to understand how the law worked. But after the revolution, a lot of it changed. [00:33:40] And so there was a considered effort to to understand how the law was changing in a republic. If you're going to have these principles about government [00:33:50] based on the consent of the government. What parts of the common law had to be adopted?

Hannah McCarthy: [00:33:55] We kept a lot of the English common laws, definitions of crimes, contracts, property, [00:34:00] but some we used as examples of what the United States absolutely could not and would not be a country where one person [00:34:10] held all of the power, an unnatural country, a country with a king.

Holly Brewer: [00:34:18] One of the most important legal [00:34:20] justices and legal commentators of the New Republic was a man named Saint George Tucker, who was a judge in Virginia, and he [00:34:30] published um Commentaries on William Blackstone's Guide to the Common Law from earlier in the century that was English. And when [00:34:40] he got to the section about the Kings prerogatives, he kept them so, as he put it, so people could see the evils of monarchy, that, you know, this is what we don't want. But he he has all these footnotes. [00:34:50] He says none of this applies here. We're a republic. We have no kings. Our executive have no prerogatives. They are subject to the law just like any [00:35:00] other.

Hannah McCarthy: [00:35:28] That [00:35:20] does it for this episode. It was [00:35:30] produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer, Marina Henke is our producer, and Rebecca LaVoy is our executive producer. You can check out Holly Brewer's [00:35:40] book By Birth or Consent Children, law, and the Anglo-American Revolution in Authority. For more on her work on the origins of democratic ideas across the British Empire, [00:35:50] and stay tuned for her upcoming book that will examine the origins of American slavery in larger political and ideological debates. Music. In this episode by Luba Hillman, Hannah Eckstrom, [00:36:00] Anna Dagher, Joe and Jeannie Loving caliber Beigel Lenin. Hutton, Laura metcalfe, Otto. Hacker, Timothy, Infinite Mind Server Unlimited, Alex Lane, and [00:36:10] Chris Zabriskie. There's a lot more to the story of American democracy, and we have made hundreds of episodes trying to tell it. You can find them all at our website, civics101podcast.org. [00:36:20] Civics 101 is a production of NPR, New Hampshire Public Radio.


 
 

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This podcast is a production of New Hampshire Public Radio.

Civics lessons from Karen Read's retrial

The team delves into some of the many civics lessons the public got while watching Karen Read’s retrial, which ended with her acquittal on all major charges in June. Topics include the First Amendment, judicial discretion, courtroom tactics, and more. Our expert for this episode is Colin Miller, blogger, podcaster, and professor at University of South Carolina School of Law. 


Transcript

civ101-readfinalpod.mp3

Rebecca Lavoie: I'm Rebecca Lavoie.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Rebecca Lavoie: And this is Civics 101.

Archive: I'm Vinny Bolton. The subject of my investigation is the death of Boston police officer John O'Keefe and the dramatic retrial of his girlfriend, Karen Reed.

Rebecca Lavoie: So today, we're going to be talking about a high profile trial.

Archive: Defendant not guilty or guilty. So say you, Mr. Foreman. So say you all.

Rebecca Lavoie: Apologize in advance for listeners who might be tired of hearing about this topic, but I promise it will be relevant to this show. Nick. Yeah. What do you know about the Karen retrial?

Nick Capodice: Rebecca I know so little about the Karen retrial. I do know it involves the police, and it happened in Massachusetts, and it's kind of bonkers, like stuff just all over the place? Yes. And it just kind of happened, didn't it?

Rebecca Lavoie: It just kind of happened. Yes. Karen Reed was just acquitted on most of the charges against her just a couple weeks ago in June. What do you know, Hannah?

Hannah McCarthy: I know more. Okay. I know that Karen Reed was accused of killing. Perhaps inadvertently. Perhaps not. I don't I don't know the details of that. Her boyfriend, John O'Keefe, by hitting him with her car. I know that he was found outside in the snow, that her taillight had been broken. And I also know that her defense claims that this was a police cover up, that she was framed, and that he was actually either wounded or killed in a fight at a party with other police officers and was bitten by a dog and left outside in a snowstorm to die.

Rebecca Lavoie: Okay, you're actually pretty close. So I feel like first I should give a little bit of a A disclaimer about me. Rebecca Lavoie. So I work on Civics 101 by day here at NPR. But outside of work, I also host a true crime media review podcast where we look at the journalism around true crime. And I became really interested in the Karen Reed case a little more than a year ago, and I have since become like a commentator on the case and like court TV and stuff. So I do have a point of view about this, and I'm not going to get too much into my point of view. You might get a hint of it, but it's part of why I find this case interesting. So do you want to hear the story?

Nick Capodice: Yes, absolutely.

Rebecca Lavoie: Okay, so the reason this case is important is, first of all, this was a retrial. Her first trial ended with a mistrial in 2024. For second, the Karen Reed case drew outsized public attention for reasons we will talk about, and maybe the first highly publicized trial in a very long time where the majority of the public was rooting for the accused.

Archive: Karen Reed's second trial. Tapping into a common thread beyond the utter conviction by the free Karen Reed movement that she is innocent.

Rebecca Lavoie: Also, this trial, in my opinion, has imparted more civics lessons than any criminal case I can think of in recent years. And we will talk about some of those, but not all of them. In this episode. I want to acknowledge something really important. We're going to be talking about a case, and at the center of that is a woman, a woman defendant, Karen Reed. But the reason the case happened was because a human being died really tragically. Everybody agrees that this was a tragedy. No matter what you might think about the trial, about the outcome. Officer John O'Keefe is the victim at the center of this. But today, we're not going to be talking about O'Keefe. And I just wanted to acknowledge that we're going to be talking about the trial itself. The person who was accused of killing John O'Keefe, the person who was later acquitted of killing John O'Keefe, and some of the things that happened during these high profile trials around this person, Karen Reed. So here is the story. In the early morning of January 29th, 2022, Karen Reed's boyfriend, Boston Police Officer John O'Keefe, was found on the front lawn of 34 Fairview Road in Canton, Massachusetts. That home was owned by a police officer who had been hosting a post night out party.

Rebecca Lavoie: Reed was arrested on February 2nd, 2022, just a couple days later, and was arraigned. And after that arraignment, her lawyer got a tip and the tipster said that John O'Keefe had actually been killed inside the home where he was found and then put outside. Karen Reed was eventually indicted and tried for a lot of charges, but the main ones were second degree murder, manslaughter and leaving the scene of a death. And those charges had some sub charges. And in trial two, the defense successfully argued to allow the jury to vote on one particular charge. Operating under the influence of alcohol, which did not affect other charges, and that is the only charge she was convicted of this past June. Wow. So over time, public sentiment swayed where most people believe. Now, if you poll them that John O'Keefe was not killed, the way the police say he was killed in Karen Reed's case. This is fed by the fact, in part, that his right arm does appear to be covered with wounds from a dog attack. And people believe a lot of the evidence in the scene, including pieces of the taillight, as you mentioned, were planted by a police officer who was, by the way, later fired for ethical misconduct around this very case.

Archive: In the case, a major blow, in fact, to the prosecution in the case of Karen Reed and the retrial. The jury will hear that lead investigator Trooper Michael Proctor has been fired following a three day police trial board review over three months stemming from testimony about drinking on the job and sending inappropriate messages about defendant Karen Reed.

Hannah McCarthy: Wow. Yeah.

Nick Capodice: Can I ask a quick question? Sure. Do you know? How can somebody be charged with manslaughter and second degree murder?

Rebecca Lavoie: That's a very interesting question. And that's a good civics lesson. So prosecutors very often up charge people a common way to get people to plea out. If people believe they are guilty or they want a quick conviction is to pile charges on top of charges. But you can absolutely charge people with both things. And the jury can then decide whether they're guilty of both one or neither. By the way, I'm not the only person who was deeply interested in this case. Millions of people are obviously. But one person who was tweeting and blogging about the case was somebody I really admired. His name's Collin Miller.

Nick Capodice: Ah, he was our guest on the episode determining whether or not Santa Claus as a criminal.

Rebecca Lavoie: That's right.

Nick Capodice: I love Colin. He's great.

Rebecca Lavoie: Yeah. He's incredible. He's a law professor at the University of South Carolina School of Law. He's a blogger. He's a podcaster who's helped a lot of people get out of prison after wrongful convictions or overcharging and so forth. And I asked him why he was so interested in Karen Reed's retrial.

Colin Miller: I think the main reason is that I've done a lot of research about Retrials and the research all points toward the prosecution faring better at a retrial than the defense. And the reasoning is usually the defense knows a lot more about the state's case at trial one. And the prosecution knows less about the defense case, which then helps the prosecution in trial two. What we've seen in this case, though, was I think the defense, to me at least, seems to have learned more from trial one than the prosecution. Namely, it seemed that jurors at trial one weren't willing to accept the third party liability that the people at Fairview might have been responsible. And so, at trial two, the defense is focused much more on a there claim that there was no collision, but b this was shoddy police work rather than pointing the finger at any particular alternate suspect.

Archive: But the story you'll hear is about an investigation that was riddled with errors from the beginning a rush to judgment, conflicted and corrupted from the start, corrupted by bias, corrupted by incompetence, and corrupted by deceit.

Rebecca Lavoie: So here's why I got interested in this case. It was long before the second trial. It was just before the first trial in 2024. I learned that in spring of 2023, the FBI, working under orders from the DOJ, the Department of Justice, were conducting their own investigation into the circumstances of John O'Keeffe's death.

Hannah McCarthy: Rebecca, what triggers a federal jurisdiction in a case? I know that, like going over state lines is one example. Yes. And that being somehow involved with a federal agent or anything like that is another. But how? How is this case within federal jurisdiction?

Rebecca Lavoie: That's a very interesting question. And the answer to that isn't completely clear. However, federal jurisdiction applies to civil rights. Any matters concerning federal law, the Constitution, disputes between states, etc.. The Department of Justice has a public integrity unit and a civil rights jurisdiction. So there is a theory, and I think it's actually not a bad one, that the FBI and DOJ were looking into a pattern of misconduct around police who were involved in this investigation, or in the Norfolk County District Attorney's office run by Michael Morrisey, who's held that office for like 36 years. There's a theory that that is why they're involved now. It's important to note that in February of 2025, President Trump ordered the DOJ to stop investigations into civil rights cases and subsequently to stop investigations into cases involving police. In March of 2025, the prosecutor prosecuting the Karen Reed case announced that he had been told the federal investigation was, quote, over. But that is actually unclear. And what interested me in the case was that the DOJ, in August of 2023, sent the district attorney, Michael Morrissey, in Norfolk County a letter saying that they had come to a very different conclusion about John O'Keefe's death, in essence, that he was not hit by a car. And you would think that that would prompt the Da to take a second look. But no, they doubled down and went forward with trial one, despite the fact that they knew the FBI had looked at the case and come to a different conclusion. So, as I mentioned, Karen Reed's first trial in 2024 ended with a hung jury on all the charges. But interestingly, in a stunning turn, several jurors proactively contacted both the Da and Karen Reed's defense team after the trial, saying that they had actually all agreed on two of the charges, two of the major charges, and they were only hung on one of them. This happened, they said, because of a confusing jury form and because the judge in the case never pulled the jury when they announced the deadlock. Nor did she give the defense the chance to object and ask for a poll of the jury.

Archive: To continue to deliberate would be futile and only serve to force us to compromise these deeply held beliefs. I'm not going to do that to you, folks. Your service is complete. I'm declaring a mistrial in this case.

Hannah McCarthy: So, like multiple members of the jury say we had reached a decision. Your form was just confusing.

Rebecca Lavoie: That's right. And the Reed defense actually took this to the courts, including federal courts. It went all the way up to the Supreme Court after judges kept ruling in the judge and Karen Reed's case forever, saying she hadn't done anything improper. And then the Supreme Court declined to take up the case.

Nick Capodice: In the Supreme Supreme court.

Rebecca Lavoie: Yes.

Nick Capodice: They filed a petition for a writ of circuit to be like, here are the Karen Reed.

Rebecca Lavoie: Yes.

Nick Capodice: I didn't know about that. I have a question, Rebecca. Yes? If a jury can't make up its mind if it's a hung jury, is that a mistrial?

Rebecca Lavoie: Yes. And then the prosecutor has the choice to either let it go, drop the charges, not retry, or to have a second trial, which is what happened in this case. So how does a judge actually decide if a jury is deadlocked or not?

Colin Miller: So the answer is this actually originated in Massachusetts before it went to the Supreme Court. We have what's known as an Allen charge. And so if the jury sends the judge a note saying we're deadlocked, the judge is allowed to give what's known as an Allen charge or an Allen instruction. And that tells the jurors the goal of our justice system is consensus. Please consider the opinions of opposing jurors and see if you can reach consensus. If the jury comes back again and says we're still deadlocked. The judge can give a second Allen charge or Allen instruction under Massachusetts law. Beyond that second instruction, if the jury says they're deadlocked, pretty much that's going to be a hung jury and a mistrial. There's some possibility we could have the judge instructing them to continue deliberating. But usually if there is a deadlock after that second Allen charge, that would be grounds for a hung jury and a mistrial.

Rebecca Lavoie: Interestingly, that Allen charge sometimes called the dynamite charge, basically saying, kids, get back there.

Nick Capodice: And figure this out.

Rebecca Lavoie: And figure this out. So another reason I became super interested in this case is because it's somewhat of a whodunit, right? And thanks to a very controversial but extremely popular blogger known as Turtleboy. His real name is Aidan Kearney, and he's named Turtleboy after his statue in his hometown in Worcester, Massachusetts. Thanks to his reporting, getting tips from the defense team, etc., the public learned about potential alternate suspects and theories and really began to pay attention to the story. It went like a little bit viral in Massachusetts. Now, I know you're familiar with Turtleboy, right? He's a very unconventional and sometimes unpopular methods.

Nick Capodice: Sure, I hear him a lot on sort of like he's on the radio all the time. Howie Carr yeah, we got Turtleboy on this afternoon.

Archive: Turtle boy, thanks for being with us. First of all.

Archive: Thanks for having me, Howie.

Nick Capodice: But yeah, I know Turtleboy. Also. I know Turtleboy because he reports on what's going on here in New Hampshire. Like in Concord. I follow what he writes because it's real local, local, local news.

Rebecca Lavoie: It is. And it definitely got me intrigued about the state of journalism, what I who I saw not covering this case and who I saw covering this case and the power and freedom of the press. So Kearney Aidan Kearney may not have used all the traditional methods of reporting. He doesn't have an editor. He does do some fact checking, but maybe not the same process as everyone else. And he for sure seemed to be on to something in this case and people paid attention.

Nick Capodice: One thing I want to know, Rebecca, how is it determined if someone is a member of the press?

Rebecca Lavoie: Well, that used to be a much more narrow definition before the internet. Nick.

Nick Capodice: Do you have to have credentials? Do we have credentials?

Rebecca Lavoie: We can get credentials if we want to get into a specific event like.

Hannah McCarthy: The Supreme.

Hannah McCarthy: Court. Right. You got credentials for that?

Hannah McCarthy: Apply for credentials. I had to prove that I worked for a media outlet. Yes.

Rebecca Lavoie: That is not the case everywhere. For instance, in this trial. Aiden Kearney, Turtleboy and other bloggers did apply for press credentials to get into this very tiny courtroom. And they got them. And they got them in large part because they were doing most of the coverage of this case for a very long time. So this talk about journalism, it reminds me of a certain amendment that we've discussed a bunch on this show, an amendment of the Constitution. And we'll talk about that. I know you know what it is when we return after a quick break. We're back. This is Civics 101 and I'm Rebecca Lavoie, the EP of this show and our resident true crime expert. I think that's fair to say. And I'm here with Hannah McCarthy and Nick Capodice.

Rebecca Lavoie: Hi, guys.

Hannah McCarthy: Hi.

Nick Capodice: Hi.

Rebecca Lavoie: So before the break, I mentioned we'd be talking about the ways the Karen Reed case raised issues around a certain constitutional amendment. And since we're talking about journalism, any guesses as to which constitutional amendment I'm talking about?

Hannah McCarthy: The first.

Rebecca Lavoie: That's right. Who wants to tell me what the First Amendment says?

Nick Capodice: I got this one.

Rebecca Lavoie: All right.

Nick Capodice: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Rebecca Lavoie: All right. There have been so many First Amendment related issues in the Karen Reed case. I'm going to tell you about just a few of them, because we could be here all day if we talked about all of them. The blogger we were talking about before the break, Turtleboy. He didn't just cover the Karen Reed case. He has written literally more than 500 stories about it, plus broadcast on his regular nightly YouTube show. He's very active social media. He was in court for both trials reporting on it, but he also played other roles. And he admits this. He is somewhat of an entertainer and he's very much an activist. He convened rallies for the so-called Free Karen Reed movement, for instance.

Rebecca Lavoie: What's going on, everyone? So we're here to peacefully protest. So this is the home somewhere here. Hey. What's happening?

Rebecca Lavoie: So you'd think that all of this. Well, not the sort of straight journalism that we're used to consuming and making that this would all be protected by the First Amendment, right?

Nick Capodice: Sure.

Speaker16: Yeah.

Rebecca Lavoie: Yeah, well, get a load of this. Aidan Kearney, Turtleboy, and several of the people who protested about what they believe to be the truth, Karen Reed's innocence. They became targets for law enforcement during this case. What happened was they began to protest in various ways, including, you know, rallies holding signs and based on something that Karen reads, defense attorney said, if it walks like a duck and talks like a duck, it's a duck. They started leaving these little rubber duckies around canton, Massachusetts. Okay.

Nick Capodice: Were they busted for littering?

Rebecca Lavoie: Some of them were, and some of them were arrested and charged with felonies under the Massachusetts Witness Intimidation statute.

Hannah McCarthy: I remember reading that at least Turtleboy had been accused. I didn't know it was formerly of witness intimidation.

Rebecca Lavoie: That's right. He was facing several felonies for this, the concept being that the witness intimidation statute in Massachusetts says it includes this provision of not trying to influence the testimony of witnesses or intimidating witnesses. And the police and prosecution were arguing in Aidan Kearney's case that because he was covering the case and talking about these alternate suspects on YouTube and creating this sort of movement on social media, that he was actually harassing these witnesses.

Archive: The man behind the online blog known as Turtleboy, Aidan Kearney, outside the Stoughton Courthouse where he had faced a judge moments earlier, arraigned on nine charges of intimidating witnesses in a different case, the Dedham murder trial of Karen Reed. This latest twist had him shouting.

Archive: And I will not be intimidated. I will not be silenced. And we will continue on our journey for justice, for John O'Keefe and for Karen.

Archive: His followers.

Rebecca Lavoie: One of the people who was arrested was this local canton business owner, a guy named Richard Schiffer. He used the sign outside of his company, Canton Fence, to display a pro care and read message, and he had been leaving little rubber duckies with stickers on them that he had made around town. Schiffer became the target of a six month police investigation. It included things like the investigation, pulling the location data from his car, pulling his trash and going through his trash, reviewing surveillance footage, etc.. He was charged with felony witness intimidation and littering. And the judge in these cases dismissed all of them, citing the First Amendment. So the First Amendment. Let's stay on that for a minute. The judge, by the way, is named Beverly Cannone. In this case, she presided over both trials. But for trial two, she instituted a strict and broad buffer zone outside the courthouse in order to keep protesters and Karen Reed supporters away from the building, and the order included things like not being allowed to wear certain attire.

Hannah McCarthy: Well, is it like a shirt with Karen Reed's face on it? That kind of thing?

Rebecca Lavoie: Anything sort of directing court officials, witnesses, jurors to do a specific thing. She banned people from being able to wear in this buffer zone.

Nick Capodice: Quick question.

Rebecca Lavoie: Yep.

Nick Capodice: What's the zone of the buffer we're talking about?

Rebecca Lavoie: It is surprisingly large. How familiar are you with Dedham, Massachusetts?

Hannah McCarthy: A little bit.

Rebecca Lavoie: All right. So I drove to Dedham, Massachusetts, while the jury had the case in their hands, and I drove to the courthouse. And as you're approaching the downtown after you pass, the Welcome to Dedham sign is the beginning of the buffer zone. Before you've approached the courthouse, before you've turned the street to the courthouse. It's huge. It's really big.

Nick Capodice: So I know the restrictions on the First Amendment, specifically when it comes to protest using something called time, place and manner. And I think because it's a courthouse, there's kind of a you can be pretty loosey goosey about how far around the courthouse can someone be restricted or allowed to protest. But like the whole town, that seems a little.

Rebecca Lavoie: Pretty much the whole downtown sort of surrounding the courthouse. Yes. It is notable that a couple of people were actually arrested for violating this buffer zone, and they went to court, and a federal judge almost immediately deemed Judge Beverly Cannon's buffer zone at least partially unconstitutional.

Hannah McCarthy: Wow.

Rebecca Lavoie: All of this stuff, it raised a question for me. Judges especially like district court judges, you know, overseeing murder cases. How much discretion do they have?

Colin Miller: The judge has to comply with the Constitution. The judge has to comply with the rules of evidence or the guide to evidence that exists in Massachusetts. And so that reins in the judge a good deal. On the other hand, Rule of Evidence 611 says the court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to make those procedures effective for determining the truth. And so rule 611 really gives a good deal of discretion to the judge within the confines of the Constitution, the rules of evidence, to kind of do what they want in conducting a trial. And so that gives pretty broad discretion to the judge in how the trial is actually conducted.

Rebecca Lavoie: So judges can do.

Nick Capodice: Whatever.

Rebecca Lavoie: They want. Yeah.

Hannah McCarthy: Given how proliferated this case was in the media, how many people know so much about it, have so many opinions? How do you select a jury? You can't select an impartial jury. You can't be guaranteed that you can.

Nick Capodice: At least I think it's really hard. I mean, I just think of that Saturday Night Live skit about them trying to find jurors for the OJ Simpson trial. And just like that, there's nobody in the nation who hasn't heard of it.

Hannah McCarthy: That's such a good comparison.

Archive: Juror number one. How is it possible that you've never heard of O.J. Simpson?

Archive: Well, as I explained, I just awoke from a 22 year coma and was driven directly from the hospital to this courthouse.

Archive: Very well.

Rebecca Lavoie: There's actually a legal answer to this question of whether or not it's possible to get a fair trial when your community or your whole country is paying attention to it.

Colin Miller: Yes. According to the Supreme Court, in 1961, in Irwin versus dad, the Supreme Court says even if members of the jury had preexisting knowledge of the facts of the case, generally, as long as they say they can put aside that preexisting knowledge, be unbiased, decide the case based upon the facts, they're qualified to be fair and impartial jurors. Now, back in 1961, we're primarily talking about people hearing things in the community, getting little snippets of information. The question is, in 2025, when we have the 24 over seven news cycle, we have social media. We have so much information and misinformation out there about the case. Does that precedent still hold? Or should the Supreme Court reexamine that ruling in 2025?

Rebecca Lavoie: What do you think?

Hannah McCarthy: I would have to guess that reexamining it is not something a court would want to do, because you need to have a jury. That's part of the procedure. What are you going to do except come to the same conclusion, which is we just got to take them at their word. Right. Because you have to have them like.

Nick Capodice: Yeah. And I don't know if I would let's say it was a super high profile case. Like it was really big. Do you want jurors who don't know anything about the news? You know, like who just don't know a single thing.

Rebecca Lavoie: That's an interesting question. In this case in particular, they had a pool of more than 2000 people to choose from. And you know how a jury is selected right here? Correct. So there were voir dire questions that both sides agreed to, and whether or not you've heard of the case was certainly one of them. But that was not a disqualifying question. It was all about have you formed an opinion about this case that became the qualifying question? And remember, both sides have strikes. They're allowed to say no to certain jurors for reasons, and they're allowed to say no to a limited number of jurors for no reason. You know, those kinds of strikes are called they're called peremptory strikes.

Nick Capodice: Oh, strikes. Yeah.

Rebecca Lavoie: This leads me to a larger question. You know, we're talking about fair trial around juries. But there actually is a definition of what a fair trial is. I want to hear it.

Hannah McCarthy: Yeah.

Colin Miller: First, we have the right to a competent and impartial judge. Second, the right to a competent and impartial jury that is drawn from a fair cross-section of the community of which the defendant is a member. The defendant has the right to be there in the courtroom for all critical elements of the trial. The defendant has the right to a public trial where members of the press, the public, the media are able to attend. A defendant has the absolute right to confront the witnesses against them. That is the Confrontation Clause. They have the right to cross-examine and probe the testimony of the witnesses against them. A defendant has the constitutional right to testify. Most defendants do not testify in their own defense. They have that absolute right. A defendant, as might be pertinent here, has the protection of double jeopardy. Once jeopardy is triggered by a jury being impaneled in their trial. If that jury finds them not guilty of a particular crime, they can't be prosecuted for that crime again.

Hannah McCarthy: The public trial element of that was the judge's giant barrier around the courthouse in any way, a violation of that public trial element.

Rebecca Lavoie: The public trial element actually refers more to the courtroom itself. Who is allowed to come in? Are you going to bar any members of the public from coming in? Now? That would be a big deal. So in this case, interestingly, the Karen Reed trial courtroom was tiny by design. Well, it's a question as to whether or not it's a by design or whether or not this is the courtroom that this judge prefers. It was a tiny, tiny courtroom. It had room for Karen Reed's family, close friends. It had room for John O'Keefe's family friends and room for ten members of the media. And then, like, a couple more spots. And that was it. It was a tiny, tiny courtroom.

Nick Capodice: Just a shout out. Hannah and I never tire of saying this on our show. You listener are allowed to go watch any trials you want. You can just go down to the courthouse.

Hannah McCarthy: You can try.

Nick Capodice: If they let you in.

Hannah McCarthy: They'll let you in. If there's space.

Nick Capodice: Yeah, yeah, they'll let you in. If there's space.

Hannah McCarthy: Including the Supreme Court, by the way, you can try.

Nick Capodice: You can.

Rebecca Lavoie: Try. Mhm.

Rebecca Lavoie: We just heard Colin talk about witnesses confronting witnesses, questioning witnesses, cross-examining witnesses. In this case. Witnesses were very important. There were witnesses who were first responders at the scene who said they saw and heard certain things. There were expert witnesses. And the judge issued some pretty broad discretion about what witnesses and what experts she would allow in and what specifically she would allow certain experts to say and not say.

Archive: So the defense needs to provide. I'd suggest you listen. The defense needs to provide what chronological data Mr. Varney relied upon and exactly what his opinion is. All right. By the close of business tomorrow, that's fine.

Rebecca Lavoie: So this raised a question for me. What are witnesses actually allowed to do? Because if I only watch this case, I would think, well, that's up to the judge. But that's not necessarily true.

Colin Miller: So we have two types of witnesses. We have lay witnesses. Your regular average Jane or Joe. And we have expert witnesses. We have your doctors, we have your scientists, etc.. In terms of lay witnesses, we have rule of evidence 602, which says a witness needs to have personal knowledge. If my friend tells me about a murder, I can't testify. If I saw the murder, I can testify. Rule of evidence 701 says if I'm offering opinions, I need to be basing my opinions on things that I observed. And my conclusions have to be irrational. If I'm in a cafe and there's a blurry window and I see people opening umbrellas. I could offer my opinion. I think it was raining outside. That would make sense if I were to offer the conclusion. I think it was sunny and not raining. That wouldn't make sense and my opinion would be inadmissible. In terms of experts, we have rule of evidence 702. The expert, first of all, has to be qualified based upon some combination of their experience, their training, their education, etc. and then in terms of the methodology of the expert, this is tested by at the federal level. And in Massachusetts, the Supreme Court case called Daubert Daubert is essentially asking, has this expert reliably applied a reliable technique or technology to the case at hand? In this case, did an accident reconstructionist reliably apply principles accepted in their field to the case at hand?

Colin Miller: And then, in terms of the expert in their conclusions, rule of evidence 704 says an expert is allowed to testify about ultimate factual issues, but cannot offer ultimate legal conclusions that force feed an answer to the jury. So we could have an accident reconstructionist saying in my conclusion, this Honda Accord was following too closely when it rammed this Toyota Camry at the red light. The expert would not be able to conclude this driver was acting negligently. That would speak to the ultimate legal issue in the case.

Hannah McCarthy: Okay, so I've always wondered about expert witnesses. They're paid sometimes staggering sums by law firms to come and offer their testimony. I presume that if a law firm hires an expert witness, they tell that expert witness. This is our position in this case. Can you provide us essentially the scientific or academic or whatever. Evidence of that somehow.

Rebecca Lavoie: Interestingly, you just accidentally perhaps hit on one of the core reasons why people were so engaged with, obsessed with, and angry while watching this trial. And we're going to talk about that after a quick break.

Rebecca Lavoie: We're back, and we're talking about the civics lessons within a high profile trial. And in this case, it's the Karen Reed case. So before the break, Hannah, you asked a question about expert witnesses. What they are allowed to say, whether or not they are just being paid to basically repeat what it is the prosecution or defense wants them to say. Now, a lot of interesting things happen in this case around expert witnesses. I cannot recap the whole trial in this episode. It included more than 30 days of testimony, which, by the way, I did watch Gavel to Gavel. It was streamed on YouTube. Speaking of public access to the trials, many expert witnesses, primarily offered up by the defense, were excluded from being able to testify in this trial by Judge Cannon, including a former FBI agent who planned to talk about the deficits in the police investigation into the case. For instance, one of the first responders in the case, after John O'Keefe's body was found, used a leaf blower to blow around the snow to look for evidence. They gathered evidence of snow and blood in solo cups and put them in grocery store bags, that kind of thing. They never looked for ring footage in the neighborhood, or they say they never looked for ring footage in the neighborhood. That may or may not have captured something happening outside. That expert excluded by Judge Cannon.

Hannah McCarthy: An expert witness. It's I mean, as Colin said, does have to be qualified. And it sounds like this person was exceptionally qualified.

Rebecca Lavoie: Yes.

Nick Capodice: What was the justification of the judge for not allowing this evidence, these witnesses?

Rebecca Lavoie: Well, the FBI guy who's going to testify about whether or not the investigation was proper, Judge Beverley Cannon, said in a ruling, a controversial ruling that the jury would just know essentially what a proper investigation was.

Hannah McCarthy: What I don't know what a proper investigation is.

Rebecca Lavoie: A lot of people don't. Hannah.

Nick Capodice: Have you ever seen the wonderful Sidney Lumet film The Verdict with Paul Newman? Yes. There's a great sort of thing in there where an expert witness is called up, and then James Mason is like.

Nick Capodice: Is it not true that you have been paid to appear here to give evidence? I just wanted to do my James Mason.

Rebecca Lavoie: I appreciate that. And by the way, there is nothing wrong with paying experts for their time.

Nick Capodice: Yeah, it happens every day.

Hannah McCarthy: I totally agree.

Rebecca Lavoie: With you conduct testing for travel for their time in court, etc..

Hannah McCarthy: My question is is just is that witness expected by the law firm to stick to a very narrow parameter?

Rebecca Lavoie: That's a very relevant question for this case, because the defense will tell you that they sent their experts. Basically the whole case file and their experts were able to make of it what they want. The prosecution, by the way, says the same thing, but the defense had kind of an ace up their sleeve for this. Their accident reconstruction experts were actually hired by the FBI during the federal investigation before the first trial. So they're experts in the crash reconstruction side. When they first got this information, it did not come from the defense at all.

Hannah McCarthy: Okay.

Hannah McCarthy: Is that allowed?

Rebecca Lavoie: Yes. In this case, it was allowed, although those witnesses were very heavily voir dired.

Hannah McCarthy: I would imagine if you were involved in the prior investigation, but also what a witness to get right if that's allowed. Like, yeah, that's who you want.

Rebecca Lavoie: They're a firm called ARCCA and they're like the preeminent accident reconstruction and vehicle safety firm. And it was pretty clear the prosecution did not want them to be able to testify in this case.

Archive: I don't care about their opinions, but I care that it's unfair, imbalanced and hidden.

Rebecca Lavoie: Now, on the prosecution side, there were also some crash, reconstruction and car data experts. And in a moment that became a landmark moment in this trial, one of the men from that accident reconstruction company, it came out in court that he had falsified his CV and LinkedIn page, claiming he had graduated from college when he had not.

Nick Capodice: Oh.

Archive: And in fact, as you sit here today, you do not possess any bachelor degree.

Archive: Correct.

Rebecca Lavoie: Other notable things that happen in this trial. There were two motions by the defense for a mistrial with prejudice.

Archive: Your honor, the defense moves for a mistrial with prejudice based upon intentional misconduct that just occurred before the court and for the jury.

Rebecca Lavoie: A mistrial with prejudice is a mistrial is called by the judge, and it cannot be retried because it is so tainted by whatever it is the prosecution is alleged to have done. This happened notably in the Alec Baldwin case, when he was being prosecuted for that shooting that happened on the set of the film he was making. The prosecutor withheld very important, potentially exculpatory evidence from the defense, and that came out mid trial.

Hannah McCarthy: That sounds like prosecutorial misconduct.

Rebecca Lavoie: Interestingly, in that case, the judge actually allowed the defense to question the prosecutor on the stand about when she had learned a thing, how she got the information. And that was when the mistrial was called.

Hannah McCarthy: Wow, that is so dramatic. I mean, I know it's like the law and all that, but that's so dramatic.

Rebecca Lavoie: Yeah.

Rebecca Lavoie: So at the end of all of this, there were closing arguments, our closing arguments. Evidence?

Hannah McCarthy: No, no.

Nick Capodice: They are a summation by the attorneys present. This is what we've talked about. And of course, it's, you know, putting their side in the best light. It's just like a recap.

Hannah McCarthy: Yeah. Isn't it? It's also like. And so I urge you, ladies and gentlemen of the jury, to assert what you know to be true, which is that my client is not guilty.

Rebecca Lavoie: Right. In most cases, the closing argument is designed so that the lawyer who's giving it can tell a story to the jury about the circumstances, about the evidence. This is what we think happened or this is what didn't happen. And in this case, the defense kept it very simple. They had experts who they say proved there was no collision.

Archive: There was no collision. There was no collision. There was no collision.

Rebecca Lavoie: They also did a chart of reasonable doubt. Do you know what reasonable doubt is?

Nick Capodice: They have to be guilty beyond reasonable doubt. That's what the jury is told, right.

Rebecca Lavoie: But what is reasonable doubt?

Hannah McCarthy: I would say that many public radio listeners were introduced to that notion with the first season of serial, where at the end, Sarah Koenig says, I don't know if Adnan had committed a crime here. However, he cannot be proven guilty beyond a reasonable doubt. So Sarah essentially says this was a miscarriage of justice.

Nick Capodice: One thing I think is interesting about reasonable doubt is that it's personal and subjective. There can be different reasonable doubts in a room of 12 people.

Rebecca Lavoie: Reasonable doubt includes all the way up to if I think they probably did it. That's reasonable doubt. Mhm. If I think they might have done it that's reasonable doubt. I think that they did it but I don't see any evidence for it here. That's reasonable doubt. What the defense did was they had a chart which was like a piece of paper. And they had these graphics of post-it notes going on to the piece of paper. And during their hour and 20 minute long closing, they talked about all the issues with the investigation, all the evidence that they had presented, and every time they presented an issue, such as the cop who was later fired for misconduct, they would have a post-it sticky note graphically fly up and stick to that piece of paper. And at the end of the closing, he was allowed to say, look at that giant pile of notes. There's your pile of reasonable doubt right there.

Archive: As you mentally sift through those cards, realize that every one of them is a massive hole in the Commonwealth's case. Every single one of the note cards represents a hole in the Commonwealth's case. If you're holding mentally even one of those cards, you're holding reasonable doubt, folks.

Hannah McCarthy: That's a smart thing to do.

Rebecca Lavoie: Yeah, it's very actually common in murder trials, especially for defense attorneys to do what's like the tree or the chart of reasonable doubt, because you really do have to explain it to a jury. A lot of people have been convicted based on things like their affect in court, based on gut feeling, based on a better story being told by the prosecution. Who bears like the burden of most of the work in a trial? We obviously know that defense attorneys get paid a lot of money. They can hire their own experts. But who bears the burden to do the heavy lifting?

Hannah McCarthy: Do you mean the prosecution because you're trying to prove something?

Rebecca Lavoie: Yeah. So the state bears the entire burden. You're correct. And it is very important for a jury to understand that jurors are given instructions before they deliberate. In this case, the instructions took between an hour and two hours to read. They're very lengthy. They're about how to consider and weigh each charge, what needs to be proven and how they are supposed to deliberate. And then the judge can offer suggestions. In this case, Judge Cannon said, I urge you to not take an immediate poll and see where you all are. Now, I served on a jury once. I was the foreman. That was exactly what I did.

Nick Capodice: Yeah, that's what we did.

Nick Capodice: It's like in the movies. This is what you're supposed to do.

Rebecca Lavoie: Right? And in my case, in my jury, we were all not guilty. So I was like, oh, they just sent in sandwiches. Should we eat these and then go back anyway? Karen Reed was eventually acquitted of almost everything except for the operating under the influence charge, and the prosecutor had shown a clip of her in an interview that she gave to a television reporter, saying, I had had a few drinks and then I drove.

Archive: The 45 year old says she's not guilty of hitting her boyfriend with her SUV and leaving him to die in the snow after a night of drinking.

Archive: Has no life in it, he said. Just get get a shot and mix it yourself.

Archive: The prosecution showed jurors.

Nick Capodice: So she did incriminate herself.

Rebecca Lavoie: She kind of did. Also, the two jurors who have come forward to talk, what they say they did was that they weighed every single charge on that slip. They went through every bit of 31 days of evidence and tried to find evidence to support each of those charges, pointing to guilt, and they couldn't find any. Does it surprise you that this jury would be only influenced by what they saw in court?

Hannah McCarthy: Yes.

Rebecca Lavoie: You're not alone in saying that. By the way, a lot of people have called this a rare jury, especially smart jury and a very literal jury, that they took the judge's instructions and followed them to the letter, which is not what happens all the time.

Nick Capodice: Yeah. But I will say there is something about, I don't want to call it the wisdom of crowds, but one person can be really thorough in a jury and can make everybody be like, hey everybody, let's do it this way. And that person can be very effective at controlling how it is done in those deliberation chambers.

Hannah McCarthy: I think the foreman, if the foreman is like they're put in a position of power relative to the other members of the jury.

Rebecca Lavoie: How to deliberate, etc..

Hannah McCarthy: If that person says this is the way I think we should do it, you're looking for guidance. You're going to go with the person who appears to be the voice of reason.

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

Nick Capodice: Yeah.

Rebecca Lavoie: Hey, do you regret not following this story at all?

Speaker9: I really do.

Nick Capodice: I also regret that I have to make an episode this afternoon, and I can't just binge read every single thing on the internet about this trial.

Rebecca Lavoie: Yeah, I will post some links to some really good reporting on this trial from outlets like Vanity Fair. I'll put those in the show notes if folks want to learn more. There is an epilog here. Karen Reed was acquitted of all the major charges. She's not spending any time in prison. She got probation for the charge, which is the standard punishment in the for the first offense in Massachusetts. However, the O'Keefe family John O'Keefe's family is suing Karen Reed in civil court. Along with the two restaurants that served all these people before. Whatever may or may not have happened that night. So civil case, legal experts also watching that one very carefully.

Hannah McCarthy: What are they suing her for?

Rebecca Lavoie: They're suing her for a wrongful death. And that is separate from the criminal proceeding in the O.J. Simpson case. The family sued him after he was acquitted in court, and they won. So legal experts are watching this, in large part because the rules of civil cases and how you can collect evidence and interviews are very different than in criminal cases. There are many fewer limits for the kinds of evidence you can bring in, and generally, civil cases are a lot easier to win than criminal cases. But a lot of people are watching this because they know what was left out of the criminal proceeding that would have benefited Karen Reed. And they want to see if it's going to come out in the civil case.

Nick Capodice: Wow.

Hannah McCarthy: I have a question about this, because you have laid out a lot of really interesting civics elements here. So we're talking about a white woman who can hire a high powered, obviously highly competent.

Speaker9: Four high powered, highly competent lawyers.

Hannah McCarthy: Go ahead. Okay. So that that requires an immense amount of money.

Rebecca Lavoie: Yes.

Hannah McCarthy: She's a white woman of means. Right. And so we see that, and we're like, well, what's going on here? And we're going to be curious about that in a way that we are often not curious about cases that do not involve a white woman of means. Right. Yes. My question is like, would a lawyer say stuff like this is going on all the time? We are just only paying attention to this one because of that element, or is this an exceptional case?

Rebecca Lavoie: This is an exceptional case, and it's also an important case for exactly the reason that you mentioned. One of the things that fascinates me about the Karen Reed case is the crossing of political lines of protesters and pro Karen Reed people you see people saying in interviews, I have never believed that the police could do anything like this before, but I believe it now and I'll believe it in the future. So what this case has actually done? Yes, this happens to marginalized people, people of color, people without means all the time. But with this case has done, I believe is open the eyes of people who weren't necessarily looking at that. And now they are. So here the so-called thin blue line is being questioned. You know, the backing of the police non questioning their authority. So is the criminal legal system in the state of Massachusetts. And that's pretty new. It's pretty new for this community. And I think that a lot of people Bull are going to be looking at this system with a new view, because in this case, and I think that benefits all defendants.

Nick Capodice: The word conspiracy when used it has a real derogatory nature. So I hesitate to say it. But please, when you when you hear me say it, know that I don't mean it that way. I sometimes wonder is is our conspiracy theories against state or government institutions? Is that going to be the answer to civil discourse? Is that how we're all going to be able to speak again? Is that going to. Is that what's going to end? Ultimate polarization is conspiracy against the man.

Rebecca Lavoie: You know what's interesting? I actually interviewed Turtleboy a few days ago along with my podcast partner, Mel Barrett, and she talked to him about this very thing. She said, I am very different from you, meaning turtle boy. However, we have a thing in common, which is we both are now afraid of this institution. I've always been afraid of it seems like you have because of your reporting. Can we build on this. And the answer was a resounding, resounding yes. That we don't have to agree on aspects of what's going on in the world, on politics, on discourse, but we can agree that we should all be looking at and being critical of the same system. And I believe that is a very big place to start.

Hannah McCarthy: I agree with that. For a long time, I guess I call it a common enemy, but what I really mean is a common concern and like a deep concern that you share with someone else, regardless of your vast differences, is absolutely vital to coming together and making change. If that is something that is important for a community.

Nick Capodice: There's that expression only connect and that goes back a long time, which is that is that is the solution. And it's been staring us in the face the whole time is what can we find that is a connection between us to care about together. We're going to both stave off this guy with a sword over there.

Rebecca Lavoie: Yeah, yeah. We're going to gather in groups of thousands and in protest outside a courthouse together.

Nick Capodice: Fascinating. The things these people must have learned about each other, that they didn't know.

Rebecca Lavoie: About each other, about the government, about how our legal system works. A lot of civics lessons in the Karen Reed case.

This episode of Civics 101 was written and produced by me, Rebecca Lavoie. With a lot of help from our hosts, Nick Capodice and Hannah McCarthy, our team also includes our senior producer, Kristina Phillips. Music in this episode is from Epidemic Sound and by Chris Zabriskie. For more reading on the Karen Read case and all of the issues around it, check out the links in the show. Notes. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Forget hypotheticals: How are tariffs affecting American businesses?

Today on Civics 101, we answer listener questions about tariffs. And then, we look at how they've affected one American Industry. It's not a game, but these companies do make them, and they've been hit hard by President Trump's ever-changing tariff policies. 


Transcript

Nick Capodice: Uh, what's the sort of thing we can say to, like, indicate that we're playing an 1800?

Hannah McCarthy: You always get the cheap boxes first.

Hannah McCarthy: I always forget about the cheap boxes.

Nick Capodice: It makes it so you don't have to use artisans, but you can use workers to get.

Hannah McCarthy: I know what it does.

Nick Capodice: Goods. They're just general.

Hannah McCarthy: Goods. I know this game like the back of my hand. That's the only thing I forget. Every time you need the boxes to win the game, you need the boxes for everything.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And we have explained tariffs on the show recently. Please listen to our 101 on what tariffs are and how they work. If you haven't. I got a link down there in the show notes. Does anyone click on the links in the show notes.

Archive: Does anyone still wear a hat?

Archive: I'll drink to that.

Nick Capodice: We say it all the time.

Hannah McCarthy: Yeah, we say it in almost every episode.

Nick Capodice: I don't even know what the word show notes meant. Everyone. It's the little thing. It's like the information about this episode. We call that the show notes. Now you're an insider.

Hannah McCarthy: If you didn't know what it meant.

Nick Capodice: How does all our audience know? Anyways, yeah we are talking about tariffs again because they're changing all the time and we have gotten several listener questions about them since our recent tariffs episode. So first Hannah I'm going to answer some listener questions. And then we'll do a deep dive into how the recent tariffs are affecting one industry in particular, an industry we both love. Sound good.

Hannah McCarthy: Sound good. Is this going to be like a price of milk kind of episode?

Nick Capodice: Oh yeah. It's gonna be one of those.

Hannah McCarthy: Okay.

Nick Capodice: Okay. Cool. The price of milk. All right. Hannah, what do we got in the old question? Hopper? The old question. Basket.

Hannah McCarthy: Okay, first one, how much money has been raised by the tariffs since Donald Trump took office? And I think this one means, like, how much money have the tariffs provided to the United States?

Nick Capodice: Excellent. Yes, absolutely. Um, it's good to have a question that's got a nice firm pat answer from January 1st, 2025 to July 1st, 2025, and that's when we're taping this episode. The United States has collected $97 billion from tariffs. This is according to the US Treasury Department's daily Treasury statements. This money was paid to the US government by American businesses that bought things from outside the country.

Hannah McCarthy: And is that a lot? It sounds like a lot, but we have had tariffs for as long as we've been a nation. So how does that 97 billion compare to other years?

Nick Capodice: Yeah, to compare the same stretch of time last year, 2024, during the Biden administration, the US had collected $58.3 billion in tariffs.

Hannah McCarthy: Okay, so is 97 billion. Is that like breaking a record?

Nick Capodice: Yeah, not yet, but we're on track to break it. The current record is 2022 during the Joe Biden administration. We took in $102 billion over the whole year. So we're only halfway through the year, so we're probably going to break it. By the way, another thing in the show notes there is a wonderful tariff history tracker courtesy of the Federal Reserve Bank of Saint Louis.

Hannah McCarthy: That's actually fascinating.

Nick Capodice: Yeah, you can like, see what we charged every year. It goes back to 1930. That year we took about half $1 billion redos. All right, give me the next one.

Hannah McCarthy: All right, here we go. Where does the tariff money go once the government gets it? Originally in the 1700s, the money funded the government. Who decided where that money went? Is it the same now? Does it bypass Congress? Lots of good questions there.

Nick Capodice: Yeah. All in one email. Very thoughtful, very thoughtful. Uh, another pretty simple answer to this one, albeit with a nebulous caveat at the end. Hannah, the answer to where does this tariff money go is exactly the same as it's been since the 18th century. And I'm so glad our listener brought up the 1700s. And you know, why don't you, Hannah? I think I do have to be careful, Hannah. That's two carriage drops in one month. The tariff of 1789 was our very first piece of legislation as a country.

Hannah McCarthy: Oh, don't I know it. Nick. And with good reason. We had just won a war. We were pretty much broke, and we owed money all over town. And by town, I mean the world.

Nick Capodice: France was basically chasing the US like Sallie Mae. Chase me for my student loans. Live at the Comedy Cellar. Did I ever tell you the bit that my best friend and I used to fantasize about, like, a revolution era stand up comedy routine? I'd wear, like, a tricorn hat. Where are you from, sir? Oh, Fredericton. I hear there's a lot of taxation down in Fredericton, but not a lot of representation. Am I right, folks? Anyways, what's the deal with the food served on carriages these days?

Hannah McCarthy: Where's Fredericton?

Nick Capodice: I don't know, it's one of the ten oldest towns in America. But seriously, folks. The tariff of 1789 was a sweeping $0.50 per ton of goods that came to America on foreign ships, and $0.06 per ton on goods that came on American owned ships. There were a few exceptions. There's one fun, one tied to a certain trade. Good, near and dear to your neck of the woods, Hannah. Very low taxes on a certain good that you might say, flooded the Boston economy.

Hannah McCarthy: Oh, Nick. Is that a great molasses flood joke? People died!

Nick Capodice: So long ago. It was a sweet death.

Hannah McCarthy: Oh.

Hannah McCarthy: No no no, no.

Hannah McCarthy: Uh, but, yeah, we did need a lot of molasses in early America. It was not just for baked beans.

Nick Capodice: Yeah, it was for rum. And that is how the country funded itself. 80 to 90% of our federal revenue until the 1860s came from tariffs. But back to our listener question. Where does that money go? It goes to the US Treasury's general fund. It is the same place our federal income taxes go. And once it's there, it can be spent as Congress decides.

Hannah McCarthy: Just to clarify, Congress spends the money from that fund.

Nick Capodice: They do. Article one, section eight of the Constitution. This is the taxing and spending clause.

Hannah McCarthy: And what was the caveat that you mentioned earlier?

Nick Capodice: Yeah, the caveat is, is as we're taping this, the Senate is debating and voting on a massive budget bill which may have passed in the time between taping and putting this out. I think it might have passed a couple hours ago. Wow. Yeah. So I can't say where the money is going specifically until I read the bill. It's 900 some odd pages, but I got a pretty good idea. Hannah.

Hannah McCarthy: All right, one last question here. Who collects the tariffs?

Nick Capodice: I love this one, Hannah. Let me lay out how the money gets into that treasury fund. Refund. So the business or person or company in the United States that is importing that good from the other country is called the importer of record. When we buy that thing and it's put on a cargo ship in another country and it's shipped here, when it arrives at that port in America, the person can't get it until they pay the tariff to the CBP. Cbp that stands for the US Customs and Border Protection Agency.

Hannah McCarthy: Do they have like a a book that tells them how much money to charge someone before that thing goes away? I'm sure they're not keeping the numbers in their head.

Nick Capodice: Yeah, they use something called the Harmonized Tariff Schedule. The CBP says to the importer you bought hand-cut lace from China, and they look at the chart and they see what extra percentage is owed as a tariff.

Hannah McCarthy: All right. But I imagine this can get a little tricky, right? The tariff percentages on different goods from different countries have vacillated wildly in the last few months.

Nick Capodice: I think that's a bit of an understatement.

Archive: We saw a spike earlier today in markets, for example, based on a rumor and unfounded rumor, apparently, that Trump was going to potentially pause those tariffs. And then the administration said, never mind, we're not doing that. So you're seeing markets just like incredibly jumpy.

Nick Capodice: I also want to add, in April, after several changes to the tariffs, there was a glitch in the system, which meant that for a short period of time, nobody knew the correct amount of tax and no taxes were collected at all. When this glitch happened, I saw an interview on CNBC. Jared Marinelli, he's the vice president of a US sales and logistics firm. He said this, quote, social media posts are not law on the pause and increase in tariffs. With the constant changes to the regulations, all customs brokers in our industry have a difficult task ahead of them.

Hannah McCarthy: What if you buy something, it gets put on the boat and then the tariff changes while the ship is making its way here.

Nick Capodice: Yeah, that is a great question. Once the good leaves the factory or wherever it's made in the other country, the tariff rate is set right then. And this is specifically to prevent the cost going up or down while it's in transit. This is called an on the water clause.

Hannah McCarthy: One last thing. When you are at the port and paying the tariff, do you do you just write the customs person a check like, no, seriously.

Nick Capodice: Yeah, yeah, I'm good for it, I swear.

Hannah McCarthy: No, no, not an IOU.

Speaker6: I'm marker.

Nick Capodice: My marker is good in this town. Most of the time. Hannah, you get this all set before the good ships. And when the goods are at the port, people usually do a bank transfer, and they want you to do it quick. Uh, they don't want these ports clogged up with stuff like a storage unit in Weehawken. Now we've got the logistics out of the way. Time to talk about what these recent tariffs are actually doing when it comes to American businesses. One kind of business in particular. But first we got to take a quick break.

Hannah McCarthy: But before that break, if you like us, leave us a review. Uh, you can do it pretty much on whatever app you are listening to this current episode on. It is a tremendous way to let other people know that our show exists, and ideally that you like it, and it helps us out a lot. Thank you. We're back. You're listening to Civics 101 and today we are talking tariffs again.

Nick Capodice: Again.

Nick Capodice: Our last tariff episode was before they had been enacted. So this time I wanted a real nuts and bolts example of how tariffs affect an industry, one industry in particular, dollars and cents, how much money the US government is collecting and what the new tariffs are doing to American companies. So I decided to ask someone who makes just about my favorite product in the world.

Hannah McCarthy: Black licorice. You shouldn't eat too much, Nick. It's not good for you.

Nick Capodice: It's not good for the ticker.

Hannah McCarthy: This is not. This is not a sugar comment, everybody. Chris can be rough on the heart.

Nick Capodice: Uh, the good we were talking about is something near and dear to both Hannah and my hearts.

Jason Matthews: Kevin gave me a little bit of your background, so that's exciting. But, um. What what's what sort of gamer are you, actually?

Nick Capodice: This is Jason Matthews.

Jason Matthews: Hi. My name is Jason Matthews. I'm a game designer. I design Twilight Struggle. I work with Ford Circle games as well as a number of other publishers.

Hannah McCarthy: Oh, Twilight struggle.

Nick Capodice: Yeah.

Hannah McCarthy: That ranked number one on a little website called Board Game Geek for years.

Nick Capodice: Years.

Nick Capodice: And Jason also made a game called 1960 The Making of a president, where one player is Nixon and the other is JFK. Do you remember that one?

Hannah McCarthy: I remember that very well. Uh, I remember you were playing Nixon, and I, I don't I don't think I have ever gotten so anxious playing a board game.

Nick Capodice: Yeah, it's a wonderful game. It is a stressful game. So I was tired of hypothetical cost of things in our episodes. So I wanted to get a dollar by dollar breakdown. So I called Jason up because he has been speaking publicly about the recent tariffs and their effect on the board game industry.

Hannah McCarthy: And when did you talk to him?

Nick Capodice: This was May 6th, 2025.

Hannah McCarthy: Oh, okay. So this is when the tariffs specifically on anything coming from China were to my memory fairly significant.

Nick Capodice: Yeah.

Archive: Absolutely David. These numbers just keep changing as you know. And what we've just confirmed from the white House is that the new total rate against China is now 145% tariffs so far.

Hannah McCarthy: And just to make it clear, if I am buying sneakers made in China to sell in my local Boston store, and there is a 145% tariff on all goods from China as there was in May. If those sneakers cost me $5,000. Now I would have to pay $7,250 to acquire them.

Nick Capodice: Absolutely. And it's up to you, Hannah. It's up to you how you want to make up all that extra cash. Maybe you could, I don't know, raise the cost of shoes at your store.

Hannah McCarthy: All right. But the tariffs on goods from China are not 145% right now. Right? What are they?

Nick Capodice: Okay, here we go. What are. And what were the tariffs on goods? Cue that jangly piano. February 1st, President Trump signed an executive order putting 10% tariffs on all goods from China, 25% on all goods from Canada and Mexico. Two days later, he issued a 30 day pause on the Canada Mexico 1st March fourth. That pause ended. He doubled China to 20%. I'm skipping a bunch of these because there is a lot. Uh, March 24th, he announces a 25% tariff on any imports from countries that buy oil or gas from Venezuela, which we in America do, by the way. Uh, April 2nd, he announces the, quote, reciprocal tariffs. This is a 10% baseline on every country in the world. And then more depending on a formula, with the exception of 11 nations, including the aforesaid Canada and Mexico, because they have their own situation, but also Russia, North Korea, the Vatican, Cuba and others. China then raises its tariffs and then Trump raises them back. And by April 10th, the US has a 145% tariff on anything coming from China. Uh, the next day, Donald Trump announces there is an exception for electronics and electronics only. Not sneakers, not board games. I then interview Jason. Six days later, the president announces there is a 90 day pause on those tariffs. And that is maybe half of what happened. I didn't even get into automobiles or Madagascar vanilla, or European wine or American whiskey. And I'm going to take a deep breath. Here we go.

Hannah McCarthy: I thought that was pretty well done.

Nick Capodice: Thank you.

Hannah McCarthy: But you didn't say what the tariffs are right now.

Nick Capodice: I didn't.

Hannah McCarthy: Know.

Nick Capodice: Sorry. The most up to date figure that I could find today was from a website called China briefing.com. They have a quote on their website that says trade relations between the US and China are, quote, highly complex, shaped by a tangled web of tariffs that have been imposed, adjusted, revoked and reinstated going back to 2018. End quote. This website lists the current tariff on goods from China at 55%. This is from the 10% baseline tariff, and then a 20% fentanyl tariff and an additional 25% tariff on most goods made in China.

Hannah McCarthy: Can you clarify what is meant by a fentanyl tariff?

Nick Capodice: Yeah, I'm going to just quote what a white House official said. Uh, this additional 20% is because of punitive measures that President Trump has imposed on China, Mexico and Canada. Uh, associated with President Trump's accusation that those three countries facilitate the flow of fentanyl into the United States.

Hannah McCarthy: All right.

Nick Capodice: Okay.

Hannah McCarthy: And again, we're talking about a 55% tariff. But that number could change again.

Nick Capodice: It could change while we're recording these words.

Hannah McCarthy: All right. So back to board games. How are the tariffs affecting them. That industry specifically.

Nick Capodice: All right. Here is Jason again.

Jason Matthews: The way of board game publishing works is that there are basically two models. Uh one is direct sales. So if I for instance, the company I work with for circle, most of their games are direct sales. They sell through their website. People go directly to them. So there's no middleman, but the vast majority are going through the retail sales process. So that means right off the top, you can lop 40% off of whatever a board games MSRP. The the standard price is real quick.

Hannah McCarthy: What is MSRP?

Nick Capodice: That is the manufacturer's suggested retail price. Stores can charge more or less than the MSRP, but it is a very good guide to go off of.

Hannah McCarthy: Okay, so the retailer, let's say a local board game store, they take about 40% of what the person purchasing the game pays them for it, 40% of the money.

Nick Capodice: Yes.

Jason Matthews: And then inside the rest of that, the publisher has to pay an artist, a designer, possibly a developer. And absolutely the person making the game, the company that makes the game, usually a production cost is somewhere between 13 and 17% of the MSRP. So it's a significant portion of the cost of a board game, but it's nowhere close to the majority. It's not where most of the money is made, but it is. You know, it's noticeable when you've taken that 13% and doubled it, or 250% increase of that cost. Suddenly now it doesn't really make very much sense to publish a board game.

Hannah McCarthy: I'm still a little shaky on the numbers here.

Nick Capodice: I was to, so I figured the best way to wrap our brains around this was to imagine that we made a game.

Hannah McCarthy: We could do it.

Nick Capodice: We could. I think we could. And just to make it simple, let's say we designed a game called Civics 101 win, win a win.

Hannah McCarthy: I don't know about winning when it comes to civics, you know, unless it's like a win win situation. Um, maybe it's a cooperative game.

Nick Capodice: Yeah, yeah, we.

Nick Capodice: All win.

Nick Capodice: Civics one.

Nick Capodice: We all win.

Hannah McCarthy: But carry on.

Nick Capodice: Okay. Okay. So, Hannah, you and I come up with the idea, but we need a for real game designer to do the rules and design the board and all that stuff. And we are going to sell it in stores.

Hannah McCarthy: How many do we make? Like, how many games?

Jason Matthews: Normally, I kind of a middling print run would be about 20,000, 20,000 copies.

Hannah McCarthy: All right.

Nick Capodice: Yeah. So first off, Hannah, nobody's going to buy this game unless it looks pretty cool. So we have to hire an artist.

Jason Matthews: So we're doing a 20,000 print run for our game, and it's going to cost us somewhere, let's say around $3,000 up front for the art. And then you might pay an upfront kind of signing bonus for the game designer to kind of help pay for the prototyping and whatnot. And that'll usually be somewhere in the neighborhood of $5,000. So upfront costs, you're somewhere in that $7,000 range.

Hannah McCarthy: As in you and I have to pay seven grand just to get started.

Nick Capodice: Just to get started. And we have a long way to go.

Jason Matthews: And then you have to contract with your printing house. This is going to run somewhere short of 20% of the MSRP. The more components, the larger the game. Obviously the more expensive that all of that gets.

Hannah McCarthy: In the printing of the game. That happens in China.

Nick Capodice: Yes. And more on that later, I promise. I do imagine some of her listeners are like, why don't people print the games in other countries of the US? I swear I'm going to get to that.

Hannah McCarthy: Can we give a hypothetical MSRP for this game so we know how much we are going to make?

Nick Capodice: Sure. I suggested 49.95. I was going to make it 50. But you know pricey game.

Speaker10: What what?

Nick Capodice: But 49.95 is what somebody pays to buy Civics 101 in a store.

Jason Matthews: So at 49.95 we can say that this is going to cost probably about $7.50 a game to make after you have made it. Then you have to ship it back to the United States, and that will be an additional cost. Uh, normally if you're in a game of this size where you've got 20,000 units, you're going to be able to get a container. These days, you can get partial containers also. So at this very second, because of the trade interruption between the United States and China, containers are a bit cheaper than they were previously. So let's say you can do that for $10,000 or thereabouts with 20,000 units. You also have to pay for storage. You're obviously not just putting these in your garage, so you have to ship to a warehouse. Costs for shipping to a warehouse or additional to the cost to get it from China to the United States.

Hannah McCarthy: All right. So you mentioned that customs doesn't want things lying around at ports waiting to be collected. This is why it's got to go from the port to a warehouse.

Nick Capodice: Exactly.

Jason Matthews: Normally you're going to try and pick a central location at the warehouse so that you're shipping to individual retailers or to individual customers is less expensive. So a lot of these are located in Tennessee and whatnot. If you go the retail and distribution route, then you'll have a bunch of copies of the game sent directly to the distributor, and he will handle your retail outlet shipping and whatnot. After all of that, if you're going through retail, you get to lop off 40% of the cost for the retail and, uh, distribution percentage. And now, finally, you try and make some profit out of whatever you've done. I'm guessing you're going to get about $15 out of that, if you're lucky.

Hannah McCarthy: $15. That's what we get for a $50 game.

Nick Capodice: Yep. And that was in the pre tariff world. When I interviewed Jason there was a trade battle going on between the US and China where a game publisher would pay twice as much to get it to the United States.

Jason Matthews: And so now your $15 profit on your $49 game is down to $7.50. Now, if you are a capitalist and you're interested in making money, is that a rate of return that you're really interested in? Can you make money a lot more money a lot easier without all of these risks and uncertainties? Absolutely. So now what are you doing? Like what? What's the point?

Nick Capodice: And look, we know a lot of board game designers. I think it's safe for me to say that nobody really gets super rich from making board games. I mean, of course, yes, there are a handful of outliers, some really successful games, but it's it's just not something people do only for the money. It is not a get rich quick scheme.

Hannah McCarthy: So what is stopping game publishers from moving production somewhere besides China?

Jason Matthews: It's a very hard business case to make for anybody, so why are they going to do it? Which is not to say no one is going to do it. I'm just saying that you're you have to have a business model that overcomes these kind of questions. And if you're already a printer and a successful printer, then maybe relocating a factory to a place with a lower tariff rate for the United States makes perfect sense. Or you can expand your existing facility in Poland or Germany or wherever you are. But the idea that you are going to plop down a new board game making facility in Wisconsin very, very unlikely.

Nick Capodice: Jason told me a story about some companies that had tried to print in the United States, and it was not profitable, and the quality was nowhere near as good. The US and China have a rich production history going back decades when it comes to board games. More years for other things. Factories do this tremendously well. According to board game publishers. It's not about paying workers less in another country, it is about maintaining a long developed production ecosystem.

Jason Matthews: I don't know if you haven't ever played a war game. Most of them come with counters with all these detailed little bits of information on them. Well, printing that precisely on a counter turns out to be a technical expertise that a lot of people don't have, including some European printers who, you know, do board games. Otherwise the Chinese have mastered it. And it's not it's not a question of the Chinese being cheaper. It's not a labor question. It's a technical expertise coupled with, of course, this kind of investment in manufacturing equipment, printing equipment that most American printers just haven't made.

Hannah McCarthy: So what is all of this actually doing to the board game industry?

Nick Capodice: Since I had this conversation with Jason. Several prominent board game publishers have folded. One of the largest online board game retailers Board land. They also closed up shop. In addition, a handful of other board game publishers have filed a lawsuit they are suing. The exact name of the case is Princess Awesome and Stoneware Games, et al. Versus customs, which has been filed in the Court of International Trade. So to answer your question, I asked Jason, what could all of this do to the industry we love so much?

Jason Matthews: The industry? Well, first of all, of course it's being damaged. Some people are in marginal positions in the first place and they simply don't have the capital to make the adjustments quickly enough to save themselves. American distribution was already in trouble. Some retail is already in trouble. There's practically a new announcement every day and has been since the tariffs have come out. And then we get back into this. Okay. I'm a capitalist. I'm trying to make money. Am I going to invest multi-millions of dollars into printing presses made in Germany for an industry with low margins in the first place? Who? I can't tell if the tariffs that are being enacted today are still going to be around three years from now, when I might be able to recover the cost of buying these machines. It just puts all of this negative pressure on doing the exact thing that the president suggests that he wants to do, which is bring back manufacturing to the United States. Uh.

Nick Capodice: Your turn.

Nick Capodice: Hannah.

Nick Capodice: Take those bicycles. Put them on that boat.

Hannah McCarthy: What am I supposed to do without the boxes?

Nick Capodice: That is, tariffs and specifically tariffs and board games. This episode is made by me. Nick Capodice with you, Hannah McCarthy. What a joy. Thank you. Uh, Kristina Phillips is our senior producer, Marina Henke, our producer, and Rebecca LaVoy, our executive producer. While we were recording this, we were playing Anno 1800, the board game designed by Martin Wallace and published by Kosmos Games, didn't pay us anything to say that. They didn't give us a free game. We just love it. And it's about making stuff and trading it on ships. So I thought it was apropos, right? Right. Music in this episode by Epidemic Sound and the artist who I hope never puts a tariff on his crunchy beats, Chris Zabriskie Civics 101 is a production of NPR, New Hampshire Public Radio.


 
 

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Cinematic Civics: Independence Day

Is there a civics lesson in the 1996 film Independence Day? We think so. 

Join the Civics 101 team for a conversation about the film, its politics, and what it says about the United States and its place in the world. 

There's even a fire-jumping dog!


Transcript

Cinematic Civics: Independence Day

Archive: Mr. president, our intelligence tells us the object has settled into a stationary orbit. Part of it is broken off into nearly three dozen other pieces. Smaller than the whole, sir. Yet over 15 miles in width themselves.

Archive: Where are they heading?

Archive: They should be entering our atmosphere within the next 25 minutes.

Christina Phillips: I'm Christina Philips, this is Civics 101, and I am here in the studio with.

Rebecca Lavoie: Rebecca Lavoie,

Hannah McCarthy: Hannah McCarthy.

Nick Capodice: And Nick Capodice.

Christina Phillips: So this is another installment of our ongoing series, Cinematic Civics. Is that what we're calling it? Cinematic civics?

Rebecca Lavoie: Sure. Civics, cinema, cinematic civics, civics on the screen, whatever you like.

Christina Phillips: We'll go with cinematic civics. I like the alliteration there. What I'm talking about is where we talk about our favorite movies that have to do with the government, politics, etc., etc.. And what movie did I make you guys watch this weekend?

Hannah McCarthy: Star Wars Episode ten. Aka Independence Day.

Archive: It is confirmed the unexplained phenomenon is headed for Moscow.

Archive: It's like in chess. First there position on your pieces using this one signal to synchronize their efforts.

Archive: And then what?

Archive: Checkmate.

Christina Phillips: So we are talking about the 1996 film Independence Day, directed by Roland Emmerich, about a giant alien invasion bent on destroying humans and harvesting all of Earth's resources. And the president, President Whitmore, played by Bill Pullman, where he data scientist David, played by Jeff Goldblum, and slick fighter pilot Steven Hiller, played by Will Smith, who team up to bring these aliens down.

Archive: Something you want to add to this briefing, Captain Hiller?

Archive: No, sir. Just a little anxious to get up there and whoop ET's, that's all.

Christina Phillips: I chose this movie for several reasons. One, because it's one of the first movies I saw in theaters when I was five years old, and I loved it. Two aliens three. Because it is a goofy artifact of American patriotism that's about as subtle as being the first country to land on the moon and then immediately planting your flag there, which is also the first scene of this movie. And for because this movie deals a lot with the military might of the United States and the role of the U.S. in geopolitical warfare. Now, one reason I didn't choose this movie is because of the United States decision to drop bombs on nuclear sites in Iran a few days ago, thereby demonstrating this military might.

Archive: With a post online and then an address to the nation. President Trump announced the United States attacked Iran's three most important nuclear sites overnight, marking a major escalation in the violence in the Middle East.

Archive: Iran's nuclear enrichment facility.

Christina Phillips: So we're taping this on Monday, June 23rd, which is two days after the United States drop bombs on three different nuclear sites in Iran. But it just so happens to be extremely, extremely relevant. More than I could have anticipated. So relevant, in fact, that the aircraft carrying the nuclear bomb that the United States drops on Houston in the movie Independence Day is the same kind of aircraft, the B-2, that the United States used to carry the 30,000 pound ground penetrating bombs that were dropped on Iran. So, in the words of our president, Donald Trump, quote, there is not another military in the world who could have done this. All this to say, it's true that this movie both does a really good job representing the geopolitical position of the United States in the 90s, but it's also about telepathic aliens. Will Smith flying a spaceship into another spaceship so Jeff Goldblum can upload a virus to the spaceship's computers. Question mark. Question mark if you've never seen it. Spoilers abound. I don't think spoilers will ruin your experience of this movie. If you have not seen it in a while, I recommend checking it out again. It's kind of fun, but that's just my opinion. So I'm curious and I'll start with you, Rebecca. What did you think watching this movie?

Rebecca Lavoie: Well, I was not five when it came out. I was 24 or something like that when it came out. I was born in 1973. I think that this movie is a peak 90s film. Uh, 90s. The 90s had this entire genre of action movies and political intrigue and all sorts of like, psychological thrillers. And this movie combines a lot of those elements. And you have Will Smith punching an alien in the face.

Archive: That's what you get. Ha ha. Look at you, all banged up. Who's the man? Ha! Who's the man? Why did I get another play?

Hannah McCarthy: So I first watched this film during a party my parents were throwing. I think it was a 4th of July party. If I had to guess, it was on cable. And I just remember thinking, I can't believe I'm getting away with this. All the grown ups.

Hannah McCarthy: During the other room, and I'm getting to watch this movie. That's deeply disturbing to me. I enjoyed watching it as an adult, seeing as it's been so very long. One of the things that struck me the most is that the CGI kind of holds up. I think they were really smart about the CGI. It's often behind smoke or it's like seen through another screen. I do wonder, like, was this one of the first movies in which Will Smith is our dependable, definitely going to save us all guy? How well established was he at that point?

Christina Phillips: I will just say this movie does put him on the map.

Rebecca Lavoie: Fresh Prince of Bel Air actually ended in 1996 when this movie came out. So he had like a continuous career like Fresh Prince of Bel-Air ended. And then this movie came out, which is why he's kind of never had a gap in his fame, for better or worse, since then.

Hannah McCarthy: Yeah, but this is the one that launched him as the action hero.

Archive: I've been waiting for this my whole life.

Hannah McCarthy: In terms of the actual civics of it. There were a lot of moments where I thought like, oh, come on. Like, there doesn't check out at all. But it was delightful nonetheless. And I was moved by the president's Independence Day speech.

Christina Phillips: Okay, Nick, what did you think?

Nick Capodice: Well, I saw it. And when it came out in theaters in 96, and I was telling Hannah, the one thing I remembered most about this movie is not just me, but the whole audience laughing at the amount of product placement that was going on particular. When Will Smith hugs his girlfriend's son? There's a giant Reebok hat scene. The entire audience exploded in laughter when the emotional highlight of the movie had a big old Reebok right there, as big as the cinema itself. But as to the movie, I got emotional. I was, you know, I was prepared to be really cynical and snide the whole way through. And of course, I was wracked with tears at certain moments. You know I do. I do that one thing that matters a lot to me. The movie opens on July 2nd, which is actually our Independence Day. So they got that right. That's not the 4th of July. The 2nd of July was when the Continental Congress approved Virginia's resolution to become an independent nation. So hooray for that. John Adams would have been thrilled.

Christina Phillips: Does someone want to sort of break down what happens? The aliens show up on Earth, and then the United States does what? And kind of what is the main climax that brings everybody together?

Rebecca Lavoie: Well, I think when it becomes clear that it's a worldwide disaster, that everybody is facing the same thing, the United States comes up with a plan that they say is impossible, but they figure out how to do it in like 45 minutes. And then they put out the Aquaman signal to all of the other heads of state and militaries around the world who were able to somehow coordinate within, just like a five minute window, when they are going to be able to drop the shields of these giant ships that are floating all over the world, and they're all going to simultaneously be able to blow them up. And it takes a lot of coordination. But of course, we pulled it off from deep inside of a mountain because that's how we are.

Archive: What the hell is he saying? It seems they're getting a signal. Old Morse code.

Nick Capodice: There was a lot of like, well, we can't understand each other because we all speak different languages, even though we're all citizens of the world. But then it's like Morse code is going to solve all the problems. It's still English in Morse code. It's not like Farsi, but Morse code. It's English. Fire the missiles now. Yeah, buddy.

Christina Phillips: Exactly. Morse code is not. It has never been a universally. Every single country in the world has used it. And there are different forms of Morse code. So that is definitely like a hand-wavy thing. I do think that's a really good example of a like, well, we'll just do this. And if you poke that hole just a little bit, you're like, nah, I don't think that'll work.

Rebecca Lavoie: I think the whole point, though, was that they were using the cables under the ocean instead of like, signals over the air, presumably.

Hannah McCarthy: Well, just this idea that, like, it's Morse code, it's echoing Jeff Goldblum being like, I'll just make a virus that will infiltrate. This highly evolved technology that we've already been told by Brant Spiner that their bodies are like ours in terms of vulnerability, but their technology is way more advanced.

Archive: No no no no no. We know tons about all, but but the neatest stuff, the neatest stuff has only happened in the last few days. See, we can't duplicate their type of power, so we've never been able to experiment. But since these guys started showing up, all the little gizmos inside turned on.

Hannah McCarthy: But it was the 90s. So computer virus, you know.

Nick Capodice: Well, it's a nod to, uh, War of the worlds. Yeah, it's. Yeah, the aliens die from a virus in that.

Hannah McCarthy: I know, I thought that was great, but it's also silly.

Christina Phillips: Yeah. And to be clear, Brant Spiner, that is the actor playing Doctor Brackish Ocean, who is the scientist, the sort of eccentric scientist who has been studying these aliens for the past 15 years, presumably.

Nick Capodice: At area 51.

Christina Phillips: At area 51, which we will talk about. The big thing that really stuck out to me, that I want to talk about first, is the fact that the climax of this movie is about the United States solving this problem, as we've said, and saving the world and doing so by creating a worldwide alliance which includes countries such as Russia, Israel, Saudi Arabia and Iraq all launching their own weapons at the same time. This was a national sensation. It was also a global sensation. This was the biggest blockbuster globally since Jurassic Park, which, like this movie, was about reptilian super beasts and Jeff Goldblum telling us we don't know what we've gotten ourselves into. So, I mean, maybe it's just the Jeff Goldblum of it all. He was not in Titanic, which was the movie that beat the record a year later, but it seems as though he's got something that's really successful. But also, I think that one of the reasons this movie was so appealing is because it hits on the sentiments of the time about the United States, both within the country and outside of it, alongside being super entertaining and bombastic and aliens and excitement. If we think about the 90s, when this movie came out, if we were to imagine a scenario set up in the movie where our world is invaded by aliens, would you say in the 90s that the United States is the one best prepared to respond to that attack?

Rebecca Lavoie: Yeah. I mean, we just come off of Desert Storm Like we had practice.

Hannah McCarthy: We're fresh off the Cold War. And I think the United States would have prided itself on being the sort of victor of the Cold War. Right? Like, look, we came out super powerful. You guys didn't get us. And now here's a movie about nukes.

Christina Phillips: All of that. Exactly. Right. So building up towards the 90s, the United States for at least a century had the world's strongest economy. So we were already the economic superpower. By the 1990s, the United States and the Soviet Union were the two main military superpowers, far and away. No other countries were close. And then, as you said in 1991, we have the dissolution of the Soviet Union and your right hand, the United States played a major role. And I think this is a pretty good example of soft power in that George H.W. Bush was lending his support and essentially saying that if there were parts of the Soviet Union that wanted to seek independence as long as they were doing it in a way that matched the democratic ideals of of the United States, that the US would lend them aid. And so there was like sort of this tightrope that the United States is walking. And I think it's a really great example of the soft power that it's using into effect, in part because we have a lot of actual power, meaning weapons. So that is one side of it. So we have the dissolution of the USSR, and then the US is now the global superpower, right? We are the one that is left.

Rebecca Lavoie: Also, I believe I remember this correctly, that when the Soviet Union broke up and they began looking at all the nuclear sites in the Soviet Union, they hadn't really been maintained very well. So it turned out that we'd been maintaining our arsenal and it was ready to go. And the Soviet Union's was kind of rusty. Mhm.

Hannah McCarthy: Given that fact, this movie presumes that all of these other nations have semi comparable nuclear power to ours in terms of size of arsenal. We see how many nukes it takes to bring down a ship, right?

Christina Phillips: My assumption is that the nuclear weapon is only used first on Houston and then on the mothership. Agreed that all of the other weaponry is just bombs of different kinds.

Hannah McCarthy: Random missiles. Oh, gotcha.

Archive: Can I confirm that the target was destroyed?

Archive: You can take me online. I want confirmation the target was destroyed. Yes, sir. Red arrow, Alpha niner.

Christina Phillips: Houston is the one place where they try it first and it fails. And then they're like, well, we have to get down this force field. And the idea is that if you can get into the ship, you can take down the force field. We'll use the one nuclear bomb on the mothership, which is way bigger than the other ones, even though it really doesn't look that way because you don't see it in scaled to anything else. And then all the other countries will use all of their missiles to take down the other ships, presumably using the method that Russell Case, aka Randy Quaid uses by flying straight up into the solar beam and blowing up the ship.

Archive: I told you I wouldn't let you down. Just keep those guys off me for a few more seconds, will ya? Okay.

Archive: Echo niner, echo seven, take flanking positions. I want you to look after this guy. Okay?

Nick Capodice: Just wondering when is an okay time to talk about Randy Quaid. Rebecca. I think he might know what I'm talking about.

Rebecca Lavoie: Right? Yes. Yes.

Christina Phillips: I didn't mention him in the intro, but he is just some real color in this movie.

Rebecca Lavoie: I mean, Randy Quaid in this movie plays a crop duster who's a former Vietnam era pilot who claims to have been abducted by aliens at some point, which everybody thinks makes him bananas. And that kind of parallels some of Randy Quaid real life trajectory. You know, he's a mainstream actor in the 80s and 90s, and then over time, he has become this kind of outside Hollywood figure.

Nick Capodice: He tried to become a refugee to Canada and was refused entry. And, he was convinced, made public statements that actor deaths such as Heath ledger and then somebody else after that who I don't remember, those were due to somebody who was killing celebrities, and he was convinced that he was next on the list.

Christina Phillips: What's his arc in this movie? How are we supposed to feel about him by the end of this movie?

Rebecca Lavoie: Redemption. He got redemption for being a bad dad by saving the kids.

Christina Phillips: Also by he gets redemption for being presumed to have been making it up right. And then he's like, no, no, I was actually abducted by aliens. It's not clear if it's these aliens or what. Civics 101. We'll be back after a quick break. We're back. This is Civics 101. We are talking about the 1996 film Independence Day, directed by Roland Emmerich. There is one other thing that I think is really important to this time period, which we've already alluded to. What President Whitmore's job was before he was elected. So what was President Whitmore doing before he became the president?

Nick Capodice: Wasn't he a pilot in the Air Force?

Christina Phillips: Yes. In what war?

Rebecca Lavoie: Desert storm?

Nick Capodice: Yes. You mean Desert Shield or Desert Storm?

Rebecca Lavoie: Yeah. I was actually looking this up, and they. And they've kind of co-branded everything together now. The Gulf War, Desert shield, Desert Storm, freedom, like, they've sort of said, put it all under one big umbrella on all of the military history websites.

Christina Phillips: And Desert Shield is the first part and Desert Storm is the second part. And this all took place over seven months. This was a military campaign. So I'm just going to lay out very briefly what happened. Iraq under Saddam Hussein invaded Kuwait, and this was part of a long, complex history in this region of the world. The important thing to know for today is that the United States was already deeply embedded in the politics of this region. It would be a disservice, I think, for me to try to condense any of that down into a few sentences.

Nick Capodice: I just want to give a shout out to another podcast out there. If anybody wants to know the whole history of our embeddedness, specifically in the Middle East. The blowback podcast is a phenomenal exploration of this season, one in particular.

Christina Phillips: What you should know is that post-World War Two, or even starting in World War Two, is that the US, considered the Middle East one of the most strategically important regions in the world? In large part, but not completely, because of oil and petroleum? The US government was involved in the formation of Israel in 1948, the 1949 Syrian coup, the overthrow of the Iranian Prime minister in 1953, and the first Iran-Iraq War in the 1980s. So what happened in the early 90s is that in order to stop the Iraqi invasion of Kuwait. The US and 41 other coalition countries launched a major military campaign that involved massive land battles and massive air campaigns. And they ultimately succeeded in stopping the invasion, ending the invasion of Kuwait. But it created this major humanitarian crisis in Iraq, and it further destabilized the region. But the U.S. comes to call this the Good War because it was an example of a success, if you will. Hannah, I remember you said that you had a lot of thoughts about all of this. What were you thinking when you were watching this movie?

Hannah McCarthy: Okay, so here's like one thing. And this is what often just like baffles me about alien invasion movies. It presumes that an entire planet can overcome infighting completely, get together as a planet and go invade another planet. Like the notion that there are species out there who can coordinate a planetary effort is, like baffling. And if we are to be extraordinarily generous with Independence Day, perhaps that's kind of what's going on when it comes to a full planet coordination in defense of another planet attacking us. But it is a a bridge that is very, very far away, as I'm concerned, because, I mean, we know our species is evolved. We don't know how highly evolved because we don't know what to compare to except for other species on this planet. But like we are having our real hard time with planetary coordination.

Nick Capodice: Why is there no United Nations in this, in this alien planet?

Rebecca Lavoie: They're living John Lennon's Imagine on their planet, right? No borders, no countries, no nothing. And I think these movies are a fantasy. Like if there's an existential threat to everyone, we will come together. And I think that we've proven that that's not true. Given the climate change situation. There is an existential threat to everyone, and yet we are not able to come together and agree to fight it together.

Christina Phillips: So, I mean, I will say that Roland Emmerich, one of his next movies, is The Day After Tomorrow, in which presumably there is a massive climate disaster. We're heading into the next ice age, and that plays a little bit more with the geopolitical situation, in that there is a very obvious, like 1 to 1 to Vice President Dick Cheney in that film. But yeah, to your point, Hannah, if I find one thing about this movie is that it's like very smug. It's extremely smug about the ability of the United States in particular, but also our world to create this kind of unified response to this alien invasion, as though we are all one and they are the enemy. The person who does that gets a lot of, you know, he gets a lot of time to sort of be human and to presumably be the one who can help bring all of these things together. Which is why I really want to talk about President Whitmore.

Archive: Regardless of what you may have read in the tabloids. There have never been any spacecraft recovered by our government.

Christina Phillips: So I would like to spend just a little time laying out what we know about him as a person heading into this invasion. And this is specifically things we learned essentially in the first five minutes of this movie. You know, him waking up and seeing his daughter and hearing the news in the background. What do we learn about him as a person and what people think of him?

Hannah McCarthy: We know that he's awake when he gets the phone call, even though the line immediately preceding it is wake him. But it's like, no, he's already up. He's already watching the news. We know that he loves his wife very much, right? Laura Roslin. I have a feeling that Mary McConnell, starring as President Laura Roslin in Battlestar Galactica is her way of making up for all of the wild space inaccuracies in this movie. Because BSG is known for being pretty good at that.

Archive: I will use every cannon, every bomb, every bullet, every weapon I have down to my own eye teeth to end you. I swear it.

Hannah McCarthy: But yeah. So we know that he's just an all around All-American. Sweetie. Sweetie, sweetie. Right.

Rebecca Lavoie: He gets over his wife pretty quick, though. Just saying.

Hannah McCarthy: Yeah, he sure does.

Christina Phillips: Yeah, he sure does.

Archive: Perhaps if we'd gotten to her earlier.

Archive: Wait a minute. What are you saying?

Archive: We can't stop the bleeding if we can. There's nothing we can do for her.

Hannah McCarthy: A doctor will not walk out of her room where someone is bleeding out. Be it internally or externally and say, ah, we couldn't stop. That doctor will work on you until you die. I mean, unless there's a doctor out there who's like, no, I do it all the time. But like, to my understanding, that's not what we do when someone is bleeding out.

Christina Phillips: I love that you draw the line not at telepathic alien speaking English, but at doctor leaving the hospital room when. When someone is bleeding out. But yes, you're right. That's ridiculous. What else do we know about this president as far as how he's doing his job up to this point?

Nick Capodice: Oh, yeah, he's a PR disaster, isn't he?

Hannah McCarthy: Mhm.

Nick Capodice: His PR person is also like mouthing the words to his speech that he's giving at the beginning of the movie. Yeah. It implies that his press secretary also writes all of his speeches for him. He's not doing well in the polls. He needs a boost. He's under constant supervision by the press secretary, who happens to be Jeff Goldblum's former wife.

Christina Phillips: Mhm. Yes. Connie.

Nick Capodice: But later in the movie, when he speaks from the heart, his own words, they rallied the world together.

Christina Phillips: One of the things that you hear sort of in the news that's coming up and in his conversations with his press secretary, is that he was a fighter pilot in the Gulf War. Right. So he's presumably fresh off this war. He's very young. He's 39 years old. And that young ness helped him win the presidency. But now it's also seen as a weakness. He is getting mired down in politics at one point. It's too much politics, too much compromise. So at this point in the movie, he's seen as a very weak president.

Archive: They're not attacking your policies. They're attacking your age, addressing Congress. What more seems less like the president and more like the orphan child? Oliver asking. Please, sir, I'd like some more.

Christina Phillips: But if you look at how he performed with audiences, a number of studies and polls have found that he is one of the most beloved fictional presidents in pop culture, alongside President Bartlet from The West Wing and President Marshall from Air Force One. The first was played by Martin Sheen, of course, in the second by Harrison Ford. Why do you think he's so popular? And you alluded to this a little bit, but I'm curious, like, what do you think this says about what we value in a leader if we're using this movie as a frame of reference for American audiences?

Hannah McCarthy: I don't think we actually value, like, experience and being a good dad the way we might pretend to saurus means loving one's wife a great deal. But my point is, while these polls might say that he's our favorite, and maybe it has to do with the fact that he ends up like redeeming himself and saving the world, maybe. I think we like people who are loving fathers and husbands in fiction, but in terms of a leader, does that really matter to us once they're actually in power? I'm not so sure.

Nick Capodice: I think one of the reasons he's so beloved as a fictional president is because he is fictional, because he doesn't have a party as long, as far as I can tell. Uh, isn't that interesting? Uh, we don't know where he stands on any issues that are sort of hot button political issues. He doesn't have any policy at all. A crime bill, that's the most generic thing in the world. We just know that he's good at fighting aliens, and he can speak with sort of a paraphrased Dylan Thomas poem and get everyone all rallied up.

Christina Phillips: Rebecca, do you have thoughts about him?

Rebecca Lavoie: Pullman. That's all I'm going to say about it. Okay. Very appealing.

Hannah McCarthy: He's handsome.

Rebecca Lavoie: He's just appealing. He's like, I mean, when the attack is first happening or first imminent, he's going to stay behind in the white House, like he's going to be with the ship, right? He's going to be the captain. Oh my God, those poor second helicopter people. They always get destroyed in these kinds of movies. Like never get on the second helicopter when you're escaping the white House. That is my advice. If I've learned anything, it's that if I'm at the white House when disaster happens. Get on that first helicopter with the president and randomly the press secretary and other people who are there, because the second one is always a goner. Always.

Nick Capodice: Yeah. The first helicopter also always has the evil guy who's going to keep saying do the wrong thing. And that actor, I don't know his name, the actor who plays the evil, uh, secretary of defense, do you know his name?

Christina Phillips: Anybody know the name of the secretary? This is the secretary of defense, Albert Nims. He's named for, I believe, a producer that Roland Emmerich didn't like. He's played by James Horn.

Nick Capodice: James Horn has been that role in about 7000 movies. And he's always like, no, no, we gotta bomb everything.

Archive: Moved as many of our forces away from our bases as possible, but we've already sustained heavy losses.

Archive: I spoke with the Joint Chiefs when they arrived at Neurath. They agree we must launch a counteroffensive with a full nuclear strike.

Archive: Over American soil.

Christina Phillips: Yeah, yeah, I think that that is hitting on something that really stands out to me, which is that at every opportunity, this is a president who is approaching things from as peaceful a perspective as possible. So they send out that helicopter is called the Welcome Wagon. They're they're like, we're sending out the welcome wagon to like, flash some lights and see if they'll communicate with us.

Archive: No, they will not.

Christina Phillips: Yeah, but even when he's in front of an alien itself, he's like, can we strike a deal? Let's communicate.

Archive: I know there is much we can learn from each other. If we can negotiate a truce, we can find a way to coexist. Can there be a peace between us? Peace.

Archive: No peace.

Christina Phillips: And it's like the alien is like. No! We're gonna kill you. You know, it's only once the alien has telepathically communicated the future in which they take over all of Earth's resources, that he's like, all right. It's time. We have to attack them. But I think he's he's situated throughout this entire movie as Responding to attack rather than initiating attack in order to prevent harm, which at least to me, seems very different from the way the United States has been engaging in political warfare and regular warfare for much of the 20th century. Yeah, and that we have been taking active military action. And even, by the way, today, in order to prevent what we presume as a threat or prevent some sort of action in the future.

Nick Capodice: I freaking love movies like Starman and Close Encounters of the Third Kind, and any movie where an alien comes to Earth and people keep wanting to kill it. And it turns out this may be the savior of humanity. All of those movies are referenced in this one. Will Smith punches the alien in the face and says, now that's what I call a close encounter. And the helicopter that's flashing lights like.

Archive: Doo doo doo doo doo.

Nick Capodice: Just gets blown to hell. So it's it's it's sort of a slap in the face to this notion that people from other planets are welcome and they might help us save ourselves. We need it.

Rebecca Lavoie: Now. They're worse than us because they want to use all of our resources even faster than we're using all of our resources.

Nick Capodice: Yes. Yeah.

Christina Phillips: How dare you do it.

Speaker22: Better than others?

Nick Capodice: Yeah, we're the ones who do that. We strip everything.

Christina Phillips: I would like to listen to the speech that the president, President Whitmore, makes on the morning in which they are going to begin this mission, to send Will Smith and Jeff Goldblum up to plant the virus somehow and wave at that and lower the defenses of all of these alien spaceships that have gathered around the world and allow us to attack.

Archive: We're fighting for our right to live, to exist. And should we win the day? The 4th of July will no longer be known as an American holiday, but as the day when the world declared in one voice, we will not go quietly into the night. We will not vanish without a fight. We're going to live on. We're going to survive. Today we celebrate our Independence Day.

Nick Capodice: I would love it if there was a holiday that celebrated everybody as a citizen of the world. And we're all together on this roller coaster. I don't love the idea that, hey, our independence, they're not independent from anything like from these aliens. We're already independent of the aliens. How on earth is that a celebration of independence?

Hannah McCarthy: Do you know what it is?

Nick Capodice: What is.

Hannah McCarthy: It? It's American democracy. See finally triumphing worldwide, which is the thing we tell everyone we're doing when we engage in war activities.

Christina Phillips: So we will come back to the president when we talk about aliens and area 51, which is what we're going to talk about next, about all of the things that this movie references, all of the government agencies, all of the secrets that are referenced in this movie and not really explained and oftentimes miss referenced when we come back from a break. So stick around for that. We're back. This is Civics 101. We are talking about the movie Independence Day, which came out in 1996. We've talked about the geopolitical climate. We've talked about how the US is the hero of this movie and what that says about how we feel about our country. Now we're going to talk about aliens and whether or not our government knows anything about them. I want to start with a moment where David, aka Jeff Goldblum and his father are on Air Force One.

Rebecca Lavoie: David's father is the one who invokes the idea of area 51.

Archive: None of you did anything to prevent this. There's nothing we could do. We were totally unprepared for this. Ah, don't give me unprepared. Come on. It was, what, in the 1950s or whatever.You had that spaceship.

Archive: Dad?

Archive: Yeah.

Archive: That thing that you found in New Mexico. Dad, what was that? No, no, not the spaceship. Roswell. Roswell. New Mexico. Yeah. No, you had the spaceship and you had the bodies. They were all locked up in a in a bunker. David, I don't know. Area 51. Right. Area 51. You knew then and you did nothing.

Rebecca Lavoie: And that the U.S. has encountered aliens before, and the president's like, no, we haven't. And then his people are like, yes, we have. We just wanted to give you plausible deniability, thereby putting plausible deniability in the lexicon for American English forever.

Nick Capodice: Thank you, Independence Day.

Christina Phillips: Let's talk about this plausible deniability thing. Right. So the idea is that the president does not know about a secret military base that maybe has aliens. Is it a good look that the president doesn't know what the government is doing? Or is it a good look if the president does know and is part of the scheme to hide it? What do you guys make of that?

Hannah McCarthy: The president is an elected civilian, the highest ranking civilian in the country, right. But the idea is like the president is like us, which we know that this is not true. But so the idea that someone who doesn't have the cohesive training that many people at various levels of the government have would be given a bunch of information that they almost certainly cannot understand or know what to do with. That should be a little frightening, right? Like it should the idea that the president knows everything without the tools to parse it is a bit concerning. So I can understand the concept of just. He doesn't need to know this.

Nick Capodice: I'm with you on this one, Hannah, because, you know, the president is given the nuclear codes right there, given the, the the football and the biscuit, and then they're not the president. Right. And they're not president forever. It's eight years at the most. You know, you can't take the knowledge of aliens away from the president once they're no longer the president. So, you know, I think that's kind of in keeping with the framers intent.

Christina Phillips: I do think it's interesting that once he knows, he's able to make a lot of decisions about it, once he sees the facility, he's like, okay, this is what we're going to do. We're going to do this. We're going to do this. So it's almost like he gets to demonstrate the fact that he's a problem solver or whatever. But before we even get to area 51, David's father, Julius, accuses the government of having found aliens before, and he references a place known as Roswell, New Mexico. What is the significance of Roswell, New Mexico? Because he's alluding to something that actually is a part of our history. What is he talking about here?

Rebecca Lavoie: Roswell, New Mexico, is the site of an alleged flying saucer crash. And basically, Roswell has branded its entire town around this, which is super interesting. There's a lot of debate about whether or not it was a weather balloon, and there's a lot of really fun fake videos of the alien autopsy that happened after the Roswell, New Mexico incident. They're totally fake. People try to pass them off as real, but it definitely fed Roswell fed into this law that, you know, we are being surveyed, and it was very much a response to the growing power of the Soviet Union and things being up in the air that we don't know what they are. But yes, Roswell certainly took on the most legendary status of UFO incidents in the United States. It was even a television show called Roswell with Katherine Heigl in it.

Hannah McCarthy: In 1996. Was the existence of area 51 not particularly well known? We didn't have Google Maps. We didn't have a super robust internet. What was the status of the generalized knowledge that area 51 does actually exist?

Christina Phillips: The government did not officially confirm the existence of a research facility in Nevada, known as area 51, until 1998. In fact, Roland Emmerich, the director and his producer have said they originally had permission to film on military bases for this film. When the Department of Defense saw the script and saw references to area 51 and Roland Emmerich refused to take them out, the US government pulled that offer of filming locations and material. Roswell, New Mexico What the government has said is a military research balloon that crashed in 1947, in Roswell, New Mexico. The reason it was in New Mexico is because New Mexico is a place where the federal government does a lot of top secret research. This is borne out of a few things. Geography it's hard to access. There's the kind of topography that you can do a lot of tests and, you know, you have lots of space for runways also. Oppenheimer chose to build the Manhattan Project in New Mexico. And and that sort of laid the groundwork for further research facilities in that region. There's also a lot of research facilities in Colorado, Utah and Nevada in particular. So the fact that Roswell becomes important is, is honestly, because that's where the government was testing things that would go up high enough to monitor communications, especially communications and transmissions from Russia. There was also a lot of scientific research just to gather information about the planet. So once that weather balloon crashed in Roswell. The government was very secretive about it.

Christina Phillips: There were actually people who witnessed what looked like body bags when the government went to recover it, and that led to the assumption that there were aliens. It was actually, as far as the government claims, they were transportation bags for the equipment to keep the equipment safe. All of these things sort of led to these theories of aliens, when in fact it was the federal government trying to hide its own defense research capabilities. And it is true that area 51 is a place that was known to people, in part because of former military and former government officials who left the government and then would say, hey, I worked on an alien spaceship when I was at area 51. It was sort of known in popular culture, and it was also known pretty widely that there was a black box, if you will, in Nevada that was near Las Vegas. That was about 23 miles wide and 25 miles wide in the other direction. That was a no fly zone, a no fly zone, and that was the location of area 51. It was known as the Groom Box. And so there is this knowledge that there is something there that nobody is allowed to get near. And there's also this idea that we've seen these weird flying things in the sky, and it turns out that many of those things are actually researched weapons, their weapons development happening in that place. Nick, do you want to tell me your factoid about area 51?

Nick Capodice: You can go online and see people who have federal criminal records. You can see their file one day, a person who was, you know, a journalist, sort of stumbled into area 51 and was looking around and trying to take photographs and now has a file, now has a government file. And that man who walked in that day. Later on became a radio personality. And now you know the rest of the story.

Rebecca Lavoie: Wow.

Nick Capodice: Paul Harvey, ladies and gentlemen, Paul Harvey.

Nick Capodice: Paul Harvey.

Rebecca Lavoie: When did the government figure out that the UFO theories were actually good for them? Because they were. Because I remember when the stealth bomber first was unveiled. Right. And everybody in, like, Nevada or whatever was like, oh, we've seen that. We thought it was aliens this whole time.

Christina Phillips: There's lots of communications that you can see declassified information in part where the government is kind of like, people know about this place and like we know that they're seeing the military weaponry, the military aircraft that we're testing, and they're assuming it's UFOs. And like, what do we do? Should we confirm that this is, in fact a military training ground or it's a testing facility? Like, what do we do? And there were conversations about that. I think it is one of those things where the the government is like, maybe this is a better thing for you to think we're doing here than what we're actually doing, which is developing weapons and stealth reconnaissance abilities and testing nuclear bombs, which is another thing that was happening in Nevada. There was actually a civil lawsuit against the federal government in 1996 by some government contractors who were like, you're not disposing of nuclear materials properly in this area, and it's causing a lot of environmental issues and health issues.

Hannah McCarthy: There are still communities deeply affected by this who are just.

Christina Phillips: Yes.

Hannah McCarthy: Who still want some sort of help or retribution.

Christina Phillips: And it's yeah, it's been confirmed that over 700 of the over 900 nuclear tests have been done in this region. So this is just a a concentration of weapons development and weapons testing that happens In this part of the country. We have had some things declassified, but it's still like the development of weapons and the development of different kinds of infrastructure. Military infrastructure is still not very well known. Do you know of some of the things that have come out of area 51? What sort of stuff has been developed.

Rebecca Lavoie: Besides stealth technology for planes? Because isn't that area 51 stuff?

Christina Phillips: That is the correct answer. Yeah. So the first is the U-2 and then later the A-12. Now these are military aircraft, surveillance aircraft that can fly way higher than most aircraft, presumably outside of the range of Soviet missiles that can pick up on radio transmissions and monitor and take photographs. The U-2 and the A-12. For a while, they were like, yes, these cannot be shot down. And then the Soviet Union did shoot them down in 1960. They shot down one. And and in order to negotiate, in order to get the pilot back, the US government had to admit that they had developed these spy planes. So these came out of area 51. There is also something known as the F-117, which is the first stealth bomber developed in the United States. Now, if you look at the alien spaceship in Independence Day.

Rebecca Lavoie: The ones they fly around. Yeah.

Christina Phillips: Yeah, yeah. The one that Will Smith flies that if you look at the F-117 or the B-2, which is the same aircraft that was used to drop the ground penetrating bombs that were dropped on Iran this past weekend. They look very, very similar, which I think gets to your point, Rebecca, that people were seeing these being tested and they began to associate them with aliens, when in fact these are government weapons. One of the features of these Hollywood patriotic movies is that the United States is our military hero, right? This film, it does make attempts to make humanity important here, but it's pretty easy to watch a movie like this and sort of get the impression that the United States is all good. The United States is being presented as all good in this film. Until you remember that the reason we have all of these super powerful weapons in the first place is not to defend ourselves from outer space, but to use these weapons against one another and use these weapons against human beings. So I feel like this movie is really relevant in our current moment, because we are holding these two things right next to each other. These weapons are used to save humanity in this movie. They're now being used very similar weapons, in some cases the same aircraft to carry out campaigns against other people and other countries. So that's sort of where I ended up ending my feelings about this. And I'm wondering what else you guys thought about. If you have any final thoughts.

Rebecca Lavoie: I thought a lot about Jeff Goldblum's character and sort of the, you know, the before the rise of tech bro culture. You know, there were just in pop culture, especially computer guys were always portrayed as like sitting in dark rooms alone. He obviously couldn't maintain his marriage and all that stuff. Right? But he's kind of the hero, right? The guy who figured it out, the computer guy, the quote, nerdy guy who can see the code, who can interpret the code, and everybody listens to the tech guy. And it just occurred to me that, like, that seemed very much like a fantasy. Like at the time, like, you know, the smart guy in the corner who no one talked to in high school is all of a sudden the hero. Same thing with wargames, same thing, you know, with lots of these, like, 80s and 90s films. And today it's the tech guys who are running the world like they see themselves that way. Like, we're not they're not portrayed in pop culture that way anymore. They're are villains in pop culture. But they see themselves as saving the world in real life.

Nick Capodice: It's because those tech guys started making those movies in the 60s, 70s, 80s, and 90s. Or they could. Be the hero. And then, you know, two generations later, they run the world.

Rebecca Lavoie: Hmm.

Hannah McCarthy: What's so strange to me about this movie is that it doesn't have a moment of the deeply selfish character who's supposed to be representative of all of the deeply selfish people who, in a moment like this, would get on a spacecraft and leave Earth. And we know that there are people who have the ability to do that privately, right, in certain ways. I mean, I know I'm stretching it a little bit, but I would have appreciated like one guy trying to get to Florida so that he could just get off the planet and then somehow he's foiled or the aliens get him or something. But there was none of that. Nobody even suggests leaving the Earth and not staying in fighting. And I have one other thought, which is that, as I hinted at the beginning of this episode, Will Smith is so Luke Skywalker coded? It's ridiculous. It is so silly.

Rebecca Lavoie: Hero's journey.

Hannah McCarthy: Hero's journey. He is someone who wants to have an adventure in space, but is mostly getting his training in an arid climate in a canyon. He performs beautifully, and then later on, he uses that exact same skill that he displays when he is in a giant, destructive structure in space after getting it ready to be blown up. It's so Star.

Nick Capodice: Wars. Oh, that's a good yeah. Just like Beggar's Canyon back home, huh? I had a thing that I thought was interesting, that I just sort of realized is that there's a scene in this movie that's kind of the reason we're all here making this show. Bill Pullman turns to his weaselly, weaselly secretary of defense and says, you know, you're fired. And the secretary of defense says, I don't think he can do that. You can't do that. He can't do that. And then the white House press secretary says, yeah, I think he just did. This notion of, can the president do this? Well, he did it. That's it. That it just got done. That's that's something we talk about a lot on our show. And that is it's part of our genesis as a show. So thank you Independence Day.

Christina Phillips: Thank you Independence Day.

Nick Capodice: Also, there's a scene where the dog jumps through a ball of fire. Before that scene happened and like the dog was in the tunnel, I was I jokingly said to Hannah, I was like, man, it'd be really cool if the dog, like, jumped through a ball of fire to get out. And we laughed really hard. And then it happened exactly like that. Yeah. 90s baby.

Christina Phillips: This episode of Civics 101 was written by me, Christina Phillips, and produced and edited by Rebecca Lavoie. A big thank you to our hosts, Nick Capodice and Hannah McCarthy. Our team includes producer Marina Henke. Music in this episode from Epidemic Sound and Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.


 
 

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This podcast is a production of New Hampshire Public Radio.

What does the Senate Parliamentarian do?

The Senate Parliamentarian is many things. A nonpartisan referee, an appointed official, and at some times one of the most powerful people in our government.

This week, Senate Parliamentarian Elizabeth MacDonough found several provisions in the currently debated budget appropriations bill violated something called the "Byrd Rule."

Today we explore this complicated and often-unseen role with Sarah Binder, professor at George Washington University, and a person who spent over thirty years in the office, former Senate Parliamentarian Alan Frumin.


Transcript

Archival: Is it the contention of the Chair that under the rules of the Senate, I am not allowed to accurately describe public views of Senator Sessions.

Nick Capodice: Hannah, I want to play this clip from February of 2017.

Hannah McCarthy: Sure. Go ahead.

Nick Capodice: Senator Elizabeth Warren is found in violation of Senate Rule 19 and is being cautioned by the chair.

Archival: The chair has not made a ruling as respect to the senator's comments. The senator is following process [00:00:30] and tradition by reminding the center of Massachusetts of the rule.

Nick Capodice: Standard procedural stuff. Right. But I cut something out. This is what it really sounded like.

Archival: The chair has not made a ruling as respect to the Senator's comments.

Archival: Following process and tradition.

Archival: The Senator is following process and tradition.

Archival: Reminding the Senator from.

Archival: By reminding this.

Hannah McCarthy: Wait, someone is just feeding him lines. This is happening in the Senate?

Nick Capodice: It happens every day [00:01:00] in the Senate.

Nick Capodice: So I've read a few articles about you, and people tend to refer to you in sports metaphors like you're a referee or an umpire. Is that accurate? Is it like that?

Alan Frumin: Yes. Yes, it's like that.

Hannah McCarthy: Who's that?

Nick Capodice: That is Alan Frumin. I know we've had a lot of guests over the years who know an awful lot about how things work in Washington. But when it comes to the Senate, Allen beats [00:01:30] them all. And he would never say that he is a humble man. But it's true because knowing the intricacies of the Senate was his job for 35 years.

Hannah McCarthy: What was his job?

Archival: JWell, we've got breaking news tonight. The Senate parliamentarian has denied Senate Democrats attempt to include a $15 an hour minimum wage..

Archival: Senate needs to step up override the parliamentarian. The parliamentarian is not elected.

Archival: Big [00:02:00] news and it is big news, the Senate parliamentarian says. Only one new budget resolution and one reconciliation package. That's it.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we're talking about a position that has been referred to as, "the most powerful person in Washington," the Senate parliamentarian.

Hannah McCarthy: Are you trying to tell me that the person whispering in the chair's ear is more powerful than the speaker of the House [00:02:30] or the Senate majority leader or the president? Are you serious?

Nick Capodice: Maybe I'm being a bit hyperbolic. That line was from a Politico article about the current Senate parliamentarian Elizabeth McDonough. And I will get into why McDonough has claimed to hold so much power right now a little bit later.

Hannah McCarthy: All right. First off, can you tell me what the Senate parliamentarian does.

Alan Frumin: At the risk of sounding conceited? The Senate parliamentarian is the de facto presiding officer of the Senate.

Nick Capodice: The [00:03:00] presiding officer is the person who sits in the chair of the Senate and rules on everything, who can speak, who can interrupt somebody speaking, what someone speaking can and cannot say. They rule on every point of order. Points of order are basically objections to what someone else is saying or doing.

Hannah McCarthy: Oh wait. I thought that the Vice President was the presiding officer in the Senate.

Nick Capodice: Yes, technically they are. But when the veep is not around, which is pretty much all the time, the most senior member of [00:03:30] the majority sits in the chair. And Alan told me most of the time Senators don't want to be in the chair ruling on things. They want to be down there doing senator stuff. Now, to be clear, the parliamentarian doesn't sit in the chair, but they tell the person in the chair what they should do.

Sarah Binder: They make decisions. They give advice based on past episodes of confusion.

Nick Capodice: This is Sarah Binder. She's a professor of political science at George Washington University.

Sarah Binder: I teach [00:04:00] Congress. It's the only thing I know anything about. So if you look at the Constitution, it says Article one, Section five. The House and Senate will make their own rules if you have the power to make your rules. You also have the power to apply your rules. And that's the point at which the parliamentarians in the House and the Senate come to play a role. They are supposed to be the non partisan, neutral [00:04:30] expert arbiter of how to apply the rules. And it sounds like, well, that's not hard. However, if you look at the rules of the House and you look at the rules of the Senate, they don't actually tell you what to do and how to apply them in every single circumstance.

Hannah McCarthy: The House has a parliamentarian too?

Nick Capodice: It does. And while I am focusing on the Senate parliamentarian for this episode, the parliamentarians in both chambers of Congress are the ones who know the rules and they advise [00:05:00] the Presiding Officer on what to do in any given situation. Now, Hannah, do you know what dictates the rules of the Senate?

Hannah McCarthy: I'm pretty sure it's something that people use in like student council and community meetings. It's Robert's Rules of Order, right?

Nick Capodice: Yeah, I thought so too. But I was wrong and don't feel bad. Even some senators thought the same thing.

Alan Frumin: Laypeople assume and one or two senators elect had assumed that the Senate used Robert's Rules of Order. And I would suggest to people that, [00:05:30] okay, if you are familiar with Roberts Rules of Order, you probably know that Colonel Robert first published him, I believe, in 1876, which would then beg the question, how did the Senate muddle through from 1789 until 1876, before Colonel Roberts saved them, which he didn't do, of course?

Hannah McCarthy: If they don't use Robert's Rules of Order, what do they use?

Nick Capodice: They use their own rules. They make them and they update them every few years. [00:06:00] The most recent rules and manual of the Senate is from 2013 and comprises 44 rules.

Alan Frumin: Point being that the Senate is a self-governing body that operates by its own rules and precedents. Nobody is familiar with them coming into the Senate. And smart senators recognize right away that the rules of the road in the Senate are unique to the body, and some of them will set out in various ways to become knowledgeable. [00:06:30]

Hannah McCarthy: How complicated are those 44 rules?

Nick Capodice: Fairly complicated. I tried to read it. You're looking at basically a dense 80 pages of procedure. Honestly, I would have a really tough time learning them if I was to spend a day in the Senate. But those 80 pages are the absolute tip of the iceberg.

Sarah Binder: So here's the thing. There were what we call precedents. So the House might decide something or Senate might decide something, and some of them might have scratched it down on a piece of paper. And there might there was a clerk at [00:07:00] the front on the dais, and they usually reported to the speaker or to the presiding officer. But basically there was no written, right? There are no really compilations of precedents. So neither the House or Senate really knew the members didn't know what to do in any new circumstance. So there were lots of appeals, lots of points of order. Hey, stop. I raise a point of order. That's not how this works.

Archival: For what purpose does the gentleman from New York or Mr. Speaker, I rise to a point of order. A gentleman [00:07:30] will state his point of order. Speaker, I object to consideration of this bill because it. violates rule.

Sarah Binder: And they'd arbitrate. There'll be lots of votes on the floor.

Nick Capodice: But those decades of precedents, often written on little slips of paper, have been collected and compiled into an official manual. Allen helped edit it. It's called Redux, Senate Procedure, Precedents and Practices, and that's 1608 pages.

Hannah McCarthy: So the parliamentarian is the one who knows all of this stuff. They [00:08:00] advise whomever is the presiding officer in the Senate.

Nick Capodice: Right.

Hannah McCarthy: How did they do that physically, though?

Nick Capodice: Well, to explain this, Alan showed me a photo of where everyone on the Senate dais sits.

Alan Frumin: There's the Senate floor. Unfortunately, my fat head is in the way. There are four chairs across the secretaries desk, journal clerk, parliamentarian, legislative clerk and bill clerk. There are other chairs behind. There is a chair for the Secretary of the Senate. There's a chair for the sergeant at arms. So. So [00:08:30] this is the parliamentarian's battle station. It's a swivel chair. It's a swivel chair that rocks. I have seen it go over once, before television. That was quite a scene. And in essence, what the parliamentarian does is she swivels and speaks to the presiding officer up here. The presiding officer's mic has a mute switch. It's a spring activated mute switch. The parliamentarian can press and hold if she wants to mute the microphone so [00:09:00] that the conversation between the parliamentarian and presiding officer is not public.

Nick Capodice: I asked Alan if the parliamentarian is just swiveling back and forth all day, and he said that was pretty accurate.

Hannah McCarthy: Is this job anywhere in the Constitution?

Nick Capodice: No, it is not. The job was created in 1935 during FDR's New Deal Era.

Alan Frumin: when Roosevelt and his administration became a little more proactive legislatively. And Roosevelt's vice president [00:09:30] had other things to do than sit on the dais of the Senate and preside. And so the Senate decided that they needed somebody to be the repository of the various interpretations of the Senate's rules. And they selected a man named Charles Watkins who had first come to the Senate in 1904.

Nick Capodice: Charles Watkins. He started out as a stenographer in 1904 in the Senate. He moved up to a journal clerk. That's the person who takes the minutes [00:10:00] of what happens all day, every day in the Senate. And the job of parliamentarian was created for him in 1935, and he was good at it. He had a remarkable memory. He was considered completely non partial to either party. And before the microphone mute button existed, Watkins would spin around in his chair and whisper to the presiding officer hundreds of times a day, and as a result, a newspaper called him, quote, the Senate's ventriloquist. And he held [00:10:30] the job until he retired in 1964.

Hannah McCarthy: So 60 years.

Nick Capodice: 60 years! And the next parliamentarian, he had worked with Watkins.

Sarah Binder: My daughter once asked me like, how do you get to become the Senate parliamentarian? And I somewhat flippantly said, Well, first you have to be the assistant parliamentarian, but it turns out to be generally true that they hire from within.

Nick Capodice: Allen came in this way. He had been the assistant parliamentarian.

Sarah Binder: Why is that [00:11:00] important? It helps to limit the partisanship, right? Because they they get first of all, they get socialized into the practice of being the parliamentarian. And it's a source of expertise.

Alan Frumin: It's always been the model and it's the only appropriate model.

Nick Capodice: Alan told me in the office of the parliamentarian, you want to have assistants spaced out generationally. So when someone leaves office, the next person can be there a long time. And to this date there have been six [00:11:30] and only six Senate parliamentarians.

Hannah McCarthy: And Sarah says the job requires limited partisanship, which honestly is something that feels nearly impossible here in 2022. Can a parliamentarian be truly nonpartisan?

Nick Capodice: From what I can gather, parliamentarians just might be among the most nonpartisan people in Washington, D.C. And I say that because their rulings help both sides and they [00:12:00] take heat from both sides as a result. And let me give you an example. One parliamentarian, Robert Dove, was dismissed by Democratic Majority Leader Robert Byrd and was replaced by Alan Frumin. And then Robert Dove was reappointed again a few years later and then fired and replaced by Alan again, but this time by Republican Senate Majority Leader Trent Lott.

Hannah McCarthy: What did Dove do that caused so much controversy?

Nick Capodice: Well, that is related to the powers of the Senate parliamentarian that we haven't gotten [00:12:30] into. The reason why they have been named the most powerful people in America, so powerful that at one point Alan and his family received death threats. And all that's coming up after the break here on Civics 101.

Hannah McCarthy: But first, when Nick was researching for this episode, he sent me this list. It was the 56 things that they don't teach you at parliamentary school that Alan had sent him. And he promises he will include selections of that list in next week's [00:13:00] newsletter. And you can subscribe to get that free and fun newsletter that comes out every two weeks at the top of our website, civics101podcast.org.

Hannah McCarthy: We're back. We're talking about the Senate parliamentarian. Let's get into why this job is so powerful.

Nick Capodice: Yeah, this is maybe the reason why we've gotten so many requests from listeners to do an episode on this. Two specific facets of the position [00:13:30] that result in some senators getting very, very frustrated. Number one committee assignments. Here's Sarah Binder again.

Sarah Binder: This one's a little less noticed about the parliamentarian, but the bulk of the work is actually deciding when a bill is introduced which committee gets the bill. That's a power of the speaker and it's a power of the presiding officer and the rules. But [00:14:00] a norm of practice is that the parliamentarian makes those decisions and those decisions can be pretty consequential.

Hannah McCarthy: So even though deciding which committee gets a bill is technically the power of the presiding officer of the Senate, the parliamentarian is the one really making the call.

Nick Capodice: Yeah. Every time. And since most bills die in committee, senators care a great deal about which committee they go to. You can work on a bill for months in advance before [00:14:30] you write it, meeting with members of a committee beforehand to make sure it goes through and at the last minute find out it's going to go somewhere else. Here is former parliamentarian Alan Frumin again.

Alan Frumin: You can have a thousand page bill dealing with environmental remediation, all of this material in the jurisdiction of the Environment and Public Works Committee. If, however, there is a provision in there that affects revenues, that bill is supposed to go to the Finance Committee. Suffice to say that [00:15:00] the staff of the Environment Committee doesn't like that. The staff of all the other committees do not like that if they have a provision that might be scored is affecting revenues. They don't necessarily put a star, put stars around it. They'll let the parliamentarian find it if she's willing to spend the four or 5 hours going through every page in line.

Hannah McCarthy: Wow, so how many bills does a parliamentarian have to go through line by line?

Nick Capodice: A lot.

Alan Frumin: All [00:15:30] in all, the parliamentarian is responsible for referring probably 10 to 12000 items in any particular Congress. And virtually all of that plays out without any evidence on on the floor of the Senate. My point being silent killer, nobody sees that job being done. The committees are always jealous of their jurisdictions.

Nick Capodice: And finally, the reason why Alan Frumin was in the media spotlight a lot and dubbed the most powerful person [00:16:00] in Washington. The reason why law enforcement was sent to his house to protect him and his family in 2010. We've got a first talk about that uniquely senatorial action, the filibuster.

Hannah McCarthy: I thought that was coming.

Nick Capodice: Hannah. You want to break down the filibuster for everyone?

Hannah McCarthy: I'll take a swing at it. Bills that come to the floor of the Senate for a vote require only a majority to pass. However, a bill can be debated endlessly until what is called cloture [00:16:30] is invoked by 3/5 of the Senate, which means that, in essence, a bill does not pass unless it has the support of 60 people in the Senate.

Nick Capodice: Yep! Well done. It's rule 22 in the Senate rules and nowadays you don't even see a bill get to the floor without that support, without those 60 votes. And senators rarely stand and talk for hours like Jimmy Stewart and Mr. Smith goes to Washington anymore.

Archival: Somebody will listen to me. Somebody!

Nick Capodice: And [00:17:00] as a result, very, very few bills get through the Senate. But. There is a special kind of bill, a bill that is not subject to the filibuster. It's called a reconciliation bill. It is a bill that deals with [00:17:30] policies that change spending or revenues in the budget. So the budget bill can't be filibustered and neither can reconciliation bills that alter that budget.

Hannah McCarthy: Okay. Well, if I were a senator who really wanted something passed, I would try to squeeze things into those reconciliation bills that maybe weren't related. So what stops a senator from doing that?

Nick Capodice: Something called the Byrd Rule, named after Senator Robert Byrd in the 1980s. Things in those reconciliation [00:18:00] bills and proposed amendments to them can’t be what’s called “extraneous” . They have to be about the budget. And if they're not about the budget, they have to be removed or that bill will be subject to the filibuster and probably won't pass. And guess who decides what is and is not allowed.

Hannah McCarthy: Now I'm going to guess it's the Senate parliamentarian.

Nick Capodice: Yeah, you got it. Alan told me that extraneous material removed from reconciliation bills under the advice of the parliamentarian is lovingly referred to as "Byrd droppings." Seriously.

Alan Frumin: Determined Senate majorities over the years of both parties [00:18:30] have always pushed the limits of what could be done in reconciliation bills because they recognize that these bills can be filibustered and that a simple majority is all that's needed to pass a reconciliation bill.

Archival: Last night's ruling was extremely disappointing. It saddened me. It frustrated me. It angered me because so many lives are at stake. Senate Democrats have prepared alternative proposals, will be holding additional meetings with the parliamentarian [00:19:00] in the coming days.

Nick Capodice: That was Senate Majority Leader Chuck Schumer in 2021. There was a massive spending bill, and a component of that bill would have provided a path to citizenship for Dreamers.

Hannah McCarthy: Dreamers being young, undocumented immigrants who were brought to the United States as children who currently have little to no pathway to citizenship.

Nick Capodice: Absolutely. But Senate parliamentarian Elizabeth McDonough decided that part of the bill was not germane, meaning the Democrats had to take it out or the bill was going to be [00:19:30] subject to a filibuster and not pass. And so the Democrats removed that Dreamers part.

Alan Frumin: And in the middle of all of this is the dear parliamentarian who has always been a career civil servant, whose entire career is dedicated to serve the Senate in a non partisan capacity, who in essence is required to talk truth to power. Every decision the Senate parliamentarian makes, every consequential decision will anger some very [00:20:00] powerful person every single time. And the parliamentarian is just doing her job.

Hannah McCarthy: Can we go back to something you said earlier? What was the ruling that Alan made that resulted in those death threats?

Nick Capodice: Yeah, it was related to the passage of the Affordable Care Act in 2010. The bill had gone through the House, it was in the Senate, and the GOP tried many procedural methods to kill that bill or make alterations to it because that would force it to go back to [00:20:30] the House for another vote. Alan ruled against those. He was in newspapers and blogs everywhere, and the sergeant at arms informed him that as a result, members of the Tea Party had posted they were going to his house.

Hannah McCarthy: It sounds like a really difficult and unique job.

Nick Capodice: Yeah, it is. Alan said it's not for everybody. These people aren't looking to get advancement to a more powerful role. They're not going to run for higher office or recorded by lobbying firms to make seven figure [00:21:00] salaries. When they leave Congress, they make $172,000 a year. Their job is taxing, quiet and mostly unseen until they make a decision that drags them into the spotlight.

Nick Capodice: Last thing, I can't let this episode end without an anecdote. Indeed, Alan did share a list of dozens of strange and wonderful and terrifying things he saw in his long tenure in the Senate, but none more bizarre than the porta potty [00:21:30] incident.

Hannah McCarthy: All right, I'll bite. What's the porta potty incident?

Nick Capodice: Senator Lowell Weicker from Connecticut was on the floor.

Archival: a..I'll correct my language, an historic occasion.

Nick Capodice: And Senator Jesse Helms wanted him off the floor. And it's hard to get someone off the floor. You can't do that unless Weicker yielded and Weicker didn't yield.

Alan Frumin: Senator Helms kept coming to the desk wondering if Weicker had violated this rule or that rule. Blah, [00:22:00] blah, blah, blah, blah. And finally, Helms looked at me and said, Well, eventually he's going to need to he's going to need to go to the bathroom. And naturally, Weicker and his allies knew that as well.

Nick Capodice: But there is a small provision in the rules that senators could have, quote, mechanical devices on the floor of the Senate. And Wicker's ally, New Jersey Senator Bill Bradley, knew about this provision.

Alan Frumin: Senator Bradley came up to me and said, well, mechanical devices, Alan, what do you think of a porta potty? [00:22:30] You know, if we can provide Weicker with some relief, so to speak, does that qualify under this provision? And I thought he was kidding. Bradley was about six, five or six, six, and he stood over me and said, Alan, I mean, it would I decided to do was pass the buck. And I've decided that that's up to the Senate Sergeant at arms.

Nick Capodice: The sergeant at arms was duly summoned. He went up to Senator Bradley and just said no.

Hannah McCarthy: This whole thing is ridiculous.

Nick Capodice: It's not [00:23:00] over yet.

Alan Frumin: Bradley wasn't deterred. He came and asked me about a can of tennis balls. I just said no.

Hannah McCarthy: I never thought that civics 101 would be a show where we talk about peeing in a tennis ball can, but things can go anywhere when it comes to American government. There you go.

Nick Capodice: Like I said, the parliamentarian has a pretty unique job.

Nick Capodice: That'll [00:23:30] do it for Senate Parliamentarian. Point of order, Hannah. We got to get out of here. pretty funny, isn't it? Motion to adjourn. Alan, if you're hearing this, thank you so much. And I hope it didn't get anything wrong. This episode was made by me. Nick Capodice with you, Hannah McCarthy. Thank you.

Hannah McCarthy: Thank you. Our staff includes Jacqui Fulton. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer.

Nick Capodice: Music in this episode by a lot of the old favorites we know and love. [00:24:00] Kevin McCloud, Konrad OldMoney, Lobo Loco, Scott Holmes, Myeden, ProletR, Rachel Collier and the Greatest of All Time Chris Zabriskie.

Hannah McCarthy: Civics 101 is a production of NHPR New Hampshire Public Radio.


 
 

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This podcast is a production of New Hampshire Public Radio.

How political “framing” shapes our thoughts

We know why we feel the way we do about certain political issues, don't we? Don't we??

It turns out that politicians, political strategists, and the media are working every day to alter what we think about something before we know we're thinking about it. And the way this is done is through "framing."

So what is framing? How long have people been doing it? And most importantly, how can we push back against it? Taking us through the Frame Wars is Dr. Jennifer Mercieca, professor of communication and author of Demagogue for President: The Rhetorical Genius of Donald Trump.

For those who want to know more, check out our episode on Propaganda, as well as Jen's article on Frame Warfare.


Transcript

Jennifer Mercieca: One of the things that I have been thinking about for the last little while is the the, the bastardization of hamlet. Right? So nothing is either good nor bad, but framing makes it so.

Archival: It's crunch time in Congress, where Senate Republicans have released their latest version of the president's so-called big beautiful.

Archival: Bill could have on Medicaid and food assistance.

Archival: 23% are opposed, have an unfavorable rating of the [00:00:30] big beautiful bill. Now, to put that in some for some perspective, Donald Trump's unfavorable rating with the GOP is 9%. So this is more than double.

Archival: Big beautiful bill if it becomes law is going to fundamentally impact every American. If you're hearing my voice and you're watching this on TV, this is going to impact you.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about something that has a profound impact on our understanding of politics, something that is invisible, Effective [00:01:00] and everywhere, all at once framing.

Jennifer Mercieca: Basically any concept, any word, any choice or policy that we might make can be shaped for us to understand it, and the way that politicians and propagandists try to shape our reality, and the way that we understand reality is called framing.

Nick Capodice: This is Jennifer Mercieca. [00:01:30]

Jennifer Mercieca: I'm a professor of communication and journalism. I teach argumentation, political communication and propaganda. And I'm the author of demagogue for President The Rhetorical Genius of Donald Trump.

Hannah McCarthy: I remember Jennifer, she was in our episode on propaganda. She talked about how propaganda is a kind of force.

Nick Capodice: Yeah, like a card force magician says, pick a card, any card, but then forces you to take one card in particular. Jen is a scholar of rhetoric, and she studied it for years. [00:02:00] And I want to point out real quick. These are her opinions based on that research. And they are not representative of her university.

Hannah McCarthy: Right. Totally understood. And, Nick, you've been telling me that you wanted to do this episode for a long time because you saw a tweet or something, right?

Nick Capodice: Yeah, it was on blue Sky, not Twitter. So it's technically not a tweet. I think some people call them Skeets. I don't know. Basically, she wrote that people who were opposed to President Trump's tax bill should stop calling it the, [00:02:30] quote, big, beautiful bill. And then she wrote, these are the frame wars. You're in them.

Nick Capodice: You're in them. You better stop believing in frame wars, Ms. McCarthy.

Hannah McCarthy: But the people who are opposed to that bill, they say it with air quotes and an eye roll. They say it ironically.

Nick Capodice: Yeah. They'll start with a qualifier. Trump's so-called big, beautiful Bill. But while [00:03:00] their intention is abundantly clear, they do not consider the bill. Big and beautiful. They are echoing the president's framing, and they're doing it unintentionally.

Jennifer Mercieca: It's what we call in persuasion theory as an indirect route to persuasion, meaning that it's not something that your brain immediately recognizes as an attempt to persuade you. Right. If I call something a stinky bill, you [00:03:30] might notice that that's weird. That it. You know, stinky isn't normally a way that we would refer to a bill. But if I call it a big bill or a big, beautiful bill or something like that, um, your brain also might not recognize that it's an indirect route to persuasion, meaning that your brain isn't on high alert for for being Persuaded instead. [00:04:00] You're just receiving information in a sort of uncritical way. And as you do that, you'll start to think of the bill as stinky or as big and beautiful. Whether you realize that you're thinking in those terms or not.

Hannah McCarthy: Uh, Nick, this bothers me.

Nick Capodice: Bothers me too. Hannah.

Hannah McCarthy: I love irony. Irony made me. Nick. Actually. No sarcasm. Sarcasm made me what I am today.

Nick Capodice: It breaks my heart. Hannah. [00:04:30] But Jen said, if you're a politician, you should never use irony.

Jennifer Mercieca: Irony is poison to a democracy. It is cynicism. Saying two things at once means that we don't trust you. Instead of directly making a point, you say it in your ironic words where you use their language but use a tone that is meant to indicate that you don't agree. Which means that yes, you are repeating their language, which is bad for [00:05:00] the framing and the stickiness and the repetition. But it also means that you are not taking ownership of what you actually think. You are using the distancing strategy of irony so that you can't be held accountable. Be earnest, my friend.

Nick Capodice: So one idea we came up with was to imagine that you're hearing a robot say something without any intonation whatsoever, and then to say, who benefits from this phrase? Like someone who was not a fan of President Joe Biden's policy, saying another [00:05:30] brilliant move by Dark Brandon, or likewise a critic of President Donald Trump referring to him as a, quote, very stable genius.

Robot: Looks like Dark.Brandon is totally knocking.It out of the.Park today.

Robot: Ha ha ha. I guess the very stable genius is playing four dimensional chess.

Hannah McCarthy: Did Jen tell you why, though? Why are we like this? Why are humans like this?

Jennifer Mercieca: Our brains are essentially lazy. Where? What is called [00:06:00] a cognitive miser. We don't like to think about things if we don't have to. Because our brain, frankly, is doing other stuff. Our brains main job is homeostasis. It's to check in on all the bits and pieces of our body and make sure that our temperature is right and our heart is beating in the right way. Things that we don't think about and probably we don't even want to know about. A smaller part of your brain is devoted to scanning for threats, and so your brain is constantly looking for like, [00:06:30] oh, is there a bear? And do I need to like, prime the body to react? Flood it with stress hormones and, you know, put it in the fight or flight response anyway, so your brain is busy doing all this stuff that you are not aware of, and then it's doing a little bit of stuff that you are aware of. Right? So that's the conscious mind.

Hannah McCarthy: A little bit of stuff.

Nick Capodice: Yeah. Yeah. The slow, plodding, deliberative thought process. I am sitting on a rock [00:07:00] by the sea and I am thinking these things. Now we may feel that is the lion's share of our brains work, but it is such a teensy little fraction.

Jennifer Mercieca: And so framing works precognitive on our lazy brain, the one that's working really fast but doesn't want to do a lot of hard work thinking about stuff. So the more I repeat Stinky Bill's stinky Bill, stinky Bill, the more journalists repeat that frame, the more, uh, [00:07:30] propagandists or supporters or detractors or whoever circulate that frame, the more your brain will uncritically accept the frame and you will begin to think within the frame. Stinky bill.

Nick Capodice: So the scariest part of this, to me at least, is something expressed by George Lakoff. Lakoff is the preeminent thinker on framing and linguistics and politics. He says that the frame is hard, if not impossible, to beat. So I'm linking [00:08:00] to Jen's article on Lakoff and all of this stuff in the show notes. But the money line from it is this quote you can't fight a dominant frame with evidence. Your brains frames don't care about other frames facts with their feelings. It rejects anything that doesn't conform with its existing frame structures.

Hannah McCarthy: I think this is something that may just be difficult for a lot of people to accept. We don't want to believe that there's some kind of influence making us think in a certain way and reject [00:08:30] other thoughts. This is huge, Nick.

Nick Capodice: It is.

Hannah McCarthy: Do you have some examples of this?

Nick Capodice: Oh, Hannah, I could spend days looking at framing examples. I'm gonna keep it to just a few for this episode, but let's start with something that is one of the most hotly debated issues in the country. How do we frame what is happening at the southern border of the United States?

Jennifer Mercieca: One side of the controversy would try to frame it as a humanitarian crisis.

Archival: Begin with new numbers from Customs and Border Protection [00:09:00] on the humanitarian crisis here in Arizona.

Archival: A pregnant woman seen with her children tells us she's been living on the banks of the Rio Grande for several days without food or water.

Jennifer Mercieca: And if you hear those words, there is a humanitarian crisis on the border or at the border, then it conjures up very specific images in your mind. There are humans involved that are in need, and we ought to bring care. And so that means a policy [00:09:30] position that would include things like bringing tents and water and diapers and baby formula and providing care and assistance to people who are in need. Okay, so that's one frame. A different side of the issue would say that there is an invasion at the border.

Archival: This massive invasion from from our southern border was intentional, and it was done in a systematic way, [00:10:00] and I think it was done by elements of the left that truly hate this country.

Archival: And I'm going to call it an invasion. Like it or not.

Archival: If you use the term, it's an invasion. That's not anti-hispanic, it's a fact.

Jennifer Mercieca: And if there is an invasion at the border that conjures up entirely different, uh, frames and policies and feelings. And so if you hear repeatedly that it is an invasion, then you think we ought to bring violence to the border, right? [00:10:30] We ought to stop the invasion. We ought to bring weapons and barbed wire and build a wall. Right. Like an army should be deployed to stop an invasion. And so those frames are incompatible.

Hannah McCarthy: What happens when you have incompatible frames?

Nick Capodice: You just won't be able to easily understand any policy passed by the other side. So if you've heard invasion over and over and over again, [00:11:00] the very notion of sending water and diapers to the southern border would be puzzling.

Jennifer Mercieca: Likewise, if you are someone who has always heard humanitarian crisis humans in need, and they say, we have to bring the army and the barbed wire, you think that they are inhumane, right? That they're vicious and it's nonsense.

Hannah McCarthy: This brings to mind for me a term we hear a lot. It's one that really came to the fore after the 2024 election, [00:11:30] messaging specifically that the Democratic Party has a, quote, messaging problem. Now, I have not in my own life just anecdotally heard, I think anyone say that the Republican Party has a messaging problem.

Nick Capodice: Yeah. And to that point, Hannah, if you look up the Democratic Party messaging problem, you're going to see a ton of articles on that topic. The linguist I mentioned earlier, George Lakoff. He studied the writings of a GOP [00:12:00] pollster and messaging mastermind named Frank Luntz. Luntz writes a memo to Republicans each year called The New American Lexicon with words you should never say and what words to say instead.

Hannah McCarthy: Wow. Okay, so give me some examples.

Nick Capodice: All right. We can make a game out of this. Hannah. I'm going to say the term a Republican is told never to say. And you try to guess the replacement.

Hannah McCarthy: All right, I'm in.

Nick Capodice: All right. First one is state tax. [00:12:30]

Hannah McCarthy: This one's easy for me. Death tax.

Nick Capodice: Very good. An estate tax sounds like something a rich person deals with. Death tax sounds more like something terribly unfair that your family has to pay just because you died. All right, next one. Government.

Hannah McCarthy: I don't know them. Yeah.

Nick Capodice: The others.

Hannah McCarthy: I don't know.

Nick Capodice: The others from the back of the plane. Like when you're being critical, you don't say the government needs to [00:13:00] get its act together because the government fixes our streets and it funds our troops. Instead you say.

Hannah McCarthy: Oh. Washington

Nick Capodice: Washington, the fat cats in Washington can smoke their Cuban cigars.

Archival: In outside Warshington. This is a contract with Americans for America.

Nick Capodice: Luntz also suggested replacing undocumented worker with illegal alien, replacing oil drilling with exploring for energy. [00:13:30] And he also coined the term tax relief. Can you hear the implicit framing in that term?

Hannah McCarthy: Oh, yeah. If you're constantly talking about tax relief, you're implying that taxes are a burden, that they are something that puts undue pressure on a person.

Nick Capodice: Yeah. And how on earth do you run against that?

Nick Capodice: My opponent is offering tax relief. But I desperately want you to know these taxes pay for things you need.

Nick Capodice: And [00:14:00] then members of the Democratic Party started using the term tax relief as well. The public also. And this frame stuck. All right, Hannah, I got one more framing example, as well as Jenn's recommendations for how we can all push back against the frames assigned to us. But first we got to take a quick break.

Hannah McCarthy: But before that break. A reminder that if you want to pick us up and carry us around in a non audio format, check out the book that Nick and I wrote. It is called A User's Guide to Democracy How America [00:14:30] Works.

Nick Capodice: We're back. You're listening to Civics 101, and today we are talking about framing how politicians and consultants use language to make you think certain things without knowing you're thinking it. And our guest, Jen Recchia, gave a classic example I want to share with you, Hannah. Now, we talked a little bit about this in our propaganda episode, but not this part specifically. The earliest and most successful [00:15:00] framing war in our country's history.

Hannah McCarthy: I have a guess about this one. You do? Might it have to do something about trying to convince a newly formed nation that the answer to all of their problems is in a four page document that a bunch of guys haggled over one hot summer in Philadelphia?

Jennifer Mercieca: People like me who study, you know, democracy and communication. I will look at the Federalist Papers and the whole Federalist agenda in [00:15:30] 1787 and say, that was really good public relations work.

Jennifer Mercieca: They did. Right. They named and branded themselves as the Federalist Party when they were actually arguing for the opposite. They were arguing for what was known at the time as a consolidated government, a national government. Federalist meant that the confederated states would remain unique and separate.

Hannah McCarthy: Nick, I did an entire episode on federalism. [00:16:00] We talk about the Federalist Papers all the time. I love thinking about federalism, and I never made this connection. I am sorry, listeners. I should have. The people who called themselves Federalists were not in the true sense of the word Federalists. An actual Federalist would want individual states to be powerful and semi-independent and have a weaker central government. But a capital F Federalist, as in the Federalist Party, they argued for the opposite [00:16:30]of that.

Nick Capodice: And it's like a double trick. Like, not only did they frame themselves as the opposite of what they actually were. That then forced the other guys to call themselves anti federalists as an anti what they actually believed. Wheels within wheels.

Jennifer Mercieca: So the the dudes who went to the Constitutional Convention, um, they tended to support a consolidated national government, but they didn't use those words. [00:17:00] No, they did not. They sure did it. And so the Anti-Federalists were like, hey, what is? They have taken our words from us. Well, it's so confusing.

Hannah McCarthy: All right. Nick. So framing or the frame wars. This has been around for quite some time.

Nick Capodice: Thousands and thousands of years, Hannah, and we are getting better at it every [00:17:30] day.

Hannah McCarthy: So is there anything that we can do about it? Even just we, the individual? You know what I mean? If it is as pernicious and prevalent as you say, might there be a way to fight it? I mean, can we resist the iron hand of the frame?

Nick Capodice: We have, as of this moment, along with every single person listening to these words begun. The first step is simply to recognize that frames exist and then to push back against [00:18:00] them.

Jennifer Mercieca: So you have to contest the premise of the frame. And it's an old strategy, right? So we teach our students to analyze the points of stasis, which I think is traced back to Quintilian. But like, we don't actually know for sure.

Hannah McCarthy: I don't think I've heard of Quintilian.

Nick Capodice: Yeah, I thought it was the number initially. He was a famed rhetorician in ancient Rome, taught Pliny the Younger.

Hannah McCarthy: All right. Well, I know Pliny the Younger. Um, okay. So points of stasis. [00:18:30]

Nick Capodice: Yeah. These are the lines of argument in any controversy. Four steps, four points, one after the other, that you must go through to come to an agreement of what's going on. That's the stasis part. Stasis means stopping.

Jennifer Mercieca: And so the first point of stasis is. What is it? Right. So describe what happened. What are the facts? The second point of stasis is what do we call it? And that's the frame. That's the framework. The [00:19:00] third point of stasis is is it good or bad? And the fourth is what do we do about it? And if you think about any persuasive speech, if you think about, you know, a legal brief in a court of law, they go through the points of stasis very carefully and very clearly. They lead you through that kind of analysis and assessment.

Nick Capodice: Now, the points of stasis, Hannah, are a little clearer. If we're talking about a dead body on the floor and a man standing over it with a bloody dagger [00:19:30] one. Did he do it? This is like the facts of the case. So let's say we agree on that. Yeah, he did it. So then we can go to number two. What are we going to call it? Murder. Manslaughter. An act of self-defense, a crime of passion. And once we do that, we can go to three. Is this a good or a bad thing? And finally for how is he to be punished?

Jennifer Mercieca: Clear thinking right is very persuasive [00:20:00] thinking most of the time in public discourse, we're not going through the points of stasis in order. We're not describing the facts. And what do we call it? And is it good or bad? And, you know. Right. We move right on to policy. And so we assume that point of stasis that is crucial, which is the second one. What do we call it? Do we call it a coup? Do we call it an insurrection? Do we call [00:20:30] it a peaceful protest? And so we adopt these words that then trigger entire constellations of emotions and policy. And so, breezing through the second point of stasis without considering it carefully. We go all the way to the third and fourth point. But we're not really well prepared to debate those issues, because until you decide what we should call it, [00:21:00] you can't really decide if it's good or bad, right? You're going to decide something very different. If it's a peaceful protest versus it's an insurrection. And so what we do is we rely on heuristics.

Hannah McCarthy: Oh, because our minds are kind of lazy.

Nick Capodice: Yeah. It's not their fault. They need a break. They're busy and overtaxed and telling you to drink a damn glass of water every now and then. So they use any shortcut they can.

Jennifer Mercieca: There are important differences for scholars of, you know, political violence [00:21:30] between a coup and an insurrection and a peaceful protest. And so so instead of doing that work, right, because we're not scholars of political violence, we just do the lazy job and the lazy work of adopting whatever frame gets repeated the most gets repeated by people we respect gets repeated by our party, right? Um, and so what we hear becomes our reality because we don't think about it.

Nick Capodice: So [00:22:00] I got one last arrow in the quiver to fight the frame wars.

Hannah McCarthy: Hannah, you realize that you're doing it right now. What? You are framing. Framing.

Nick Capodice: Framing. I'm framing. Me. This is ridiculous.

Hannah McCarthy: I mean, you're calling it a war. Uh, Nick, you're using a weapon metaphor.

Nick Capodice: Okay, so I am. This is like some post-modern meta framing of the frame. I'm okay with it. Uh, but seriously, something Jen does with [00:22:30] her students each day just to recognize the frames is to first put up the homepage of the Associated Press morning wire.

Jennifer Mercieca: Because the AP morning wire, as I tell them, is a neutral source of information that provides the backbone for all other News that gets distributed throughout the United States. It's not outrage bait. So we look at that every day, and then we compare what we see in the AP morning wire to CNN and MSNBC [00:23:00] and Fox News in The New York Times and the Washington Post and Yahoo! And when you do that, you'll see very clearly that the stories are given different priority, that the headlines use emotive language, very emotionally triggering language in some of those new sources, whereas they do not in others, that the imagery is very different. In some cases you will see. Um, Donald Trump always looks like a hero. [00:23:30] He always looks young and tough and strong and, you know, energetic. And in others he's always making a funny face. And he looks goofy and he looks old and he looks weak, right? You would have seen the same thing with Joe Biden, right? But in reverse, of course. Different news sources. And so you can see based on the imagery. Who is a hero in that news organizations narrative of the world. Right. And that's really important because once you know who is a hero, then of course you can tell who the villains [00:24:00] are to. And news organizations shouldn't be narrating a world of heroes and villains, right? They should let the audience decide who the heroes are and who the villains are. I find that if you if you do that exercise for a few weeks, then you can figure out which news organization you think is best representing reality to you.

Hannah McCarthy: Nick, do you think we could do a points of stasis on framing?

Nick Capodice: Oh, that would [00:24:30] be fantastic.

Hannah McCarthy: Okay, one. What is going on? Politicians and the media are using carefully designed language to make us feel, one way or another about issues. And they try to do that without our even noticing it?

Nick Capodice: That is good. And to be honest, Hannah, if I'd heard just that, I would be tempted to leap to the.

Speaker15: Well, what can I do about this? Won't somebody think of the children step?

Nick Capodice: Uh, but we're going to do this step by step. Continue. [00:25:00]

Hannah McCarthy: All right. Step two. What do we call it? We've already called it the frame wars today repeatedly meaning that it's something that involves conflict or fighting.

Nick Capodice: Yeah. And that might even be the title of this episode. Uh, you never know until it's up there.

Hannah McCarthy: But we could have called it the framing trap, which makes you think of maybe defense, of being careful, of protecting yourself from something or frame mystery, something we have to solve by looking for clues and putting the pieces together. [00:25:30]

Nick Capodice: Yeah, like a BBC mystery with an inspector. With a name like Thurlow. Trowbridge. Trowbridge investigates the deadly frame. But I think we can stick with frame wars.

Hannah McCarthy: All right, got that? Okay. Step three. Nick, is it good or bad. Well, we're calling it a war. Now, some people would say that's a bad thing.

Nick Capodice: And now, Hannah, now that we've done all three of those, we can ask the final question. What [00:26:00] are we going to do about it?


 
 

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Cinema Civics: The Manchurian Candidate (1962)

The Civics 101 team delves into the 1962 film The Manchurian Candidate, a political satire and thriller that is more than relevant in today’s political climate. 

Note: this episode contains spoilers for the film.


Transcript

Archive: Raymond Shaw, please.

 

Hannah McCarthy: Hi, I'm Hannah McCarthy. This is Civics 101. This is the first in what will be a semi-regular series wherein our team takes a look at our favorite movies and shows about the US government or perhaps other governments as well. Space governments, for example, and finds the Civics 101 of it all within them.

 

Archive: There will be no covering up, sir. No covering up.

 

Hannah McCarthy: And today we are going to talk about a movie that I very much love, and I am definitely going to spoil it for people who have not seen it. So if you have not seen the 1962 Manchurian Candidate, I recommend waiting to listen to this episode until you have watched it, and I do recommend watching it. It is rated PG 13 by the way, if that is relevant to you. And I am joined today by three lovely coworkers and friends who have seen this movie first Nick Capodice.

 

Nick Capodice: Hello, Hannah. I'm very glad to be talking about this movie.

 

Hannah McCarthy: Me too. Christina Phillips.

 

Christina Phillips: Hi, Hannah. I'm very happy to be talking about the Cold War.

 

Hannah McCarthy: Oh, lovely. And Rebecca Lavoie.

 

Rebecca Lavoie: I can't be more excited to talk about a movie and the strange accents therein than I am to talk about this movie. Yeah. And the strange accents therein.

 

Hannah McCarthy: And so before we start the brainwashed fever dream, that is the true history behind what is happening in this movie. I just want to know, without actually touching on the plot, did you all like it? I will start with the two people who had not seen it prior to what? This past weekend, right? Yes. Rebecca. Did you like it?

 

Rebecca Lavoie: Frank Sinatra, Angela Lansbury. What's not to like? Hannah McCarthy.

 

Hannah McCarthy: I couldn't agree.

 

Rebecca Lavoie: More. I did, I did.

 

Hannah McCarthy: Christina. How'd you feel about it?

 

Christina Phillips: I liked it, I found it very funny, and I was like, I'm not sure if that's me or if that's current context, but I was delighted. I thought it was great.

 

Hannah McCarthy: And Nick, how do you feel about The Manchurian Candidate?

 

Nick Capodice: Yeah, well, I saw this movie when I was too young the first time, and I watched it maybe ten times since then. I am in love with this movie. One actor in particular, and the most recent watching it, was just like the first watching in the last four years. It's still hits home, it's still slaps. It's still relevant to everything going on today.

 

Hannah McCarthy: Very good. So The Manchurian Candidate, it is based on the book of the same name written by Richard Condon. It stars Frank Sinatra, as we said, and Angela Lansbury, among others.

 

Nick Capodice: Yes, it includes Janet Leigh and Laurence Harvey.

 

Hannah McCarthy: With the more actor names you say, the more likely people are to tune out.

 

Nick Capodice: And do you really think people hearing the name John Mcgiver in this movie is gonna make people tune out? I gotta say, everybody, John Mcgiver is very special. He's the, uh, salesman at Tiffany's in Breakfast at Tiffany's. Yeah, he's a he's a wonderful character.

 

Christina Phillips: Which character is he in this?

 

Rebecca Lavoie: He's Senator Jordan.

 

Archive: I think of John. Iceland were a paid Soviet agent. He could not do more to harm this country than he's doing now.

 

Christina Phillips: Okay, Senator Jordan.

 

Rebecca Lavoie: Got it. He's Angela Lansbury's nemesis.

 

Nick Capodice: I will block you.

 

Rebecca Lavoie: Yes.

 

Hannah McCarthy: Pictured, there's a scene where you see his face just in front of a giant golden bald eagle. So we know what we're supposed to think about him. A lot of, like, imagery that tells you exactly what to feel in this movie.

 

Nick Capodice: And a quick public service announcement to anyone out there, please, in my opinion, do not bother with the 2004 version of this film.

 

Hannah McCarthy: It is Denzel Washington and Meryl Streep, both of whom are incredibly talented people, so you might want to bother with it. Nick and I love the 1962 one. That is the one we recommend. Guess who did not love the 1962 The Manchurian Candidate? Any guesses?

 

Rebecca Lavoie: Any of the Kennedys?

 

Christina Phillips: With McCarthy still alive.

 

Hannah McCarthy: Mccarthy was not still alive. Audiences in 1962.

 

Christina Phillips: Oh.

 

Hannah McCarthy: So this movie was kind of a flop. United artists, the production company that produced this movie, pretty much pulled it out of most mainstream theaters two years into its run.

 

Rebecca Lavoie: Just like It's a Wonderful Life, right? Like which was also a flop, really.

 

Archive: I'm gonna build airfields. I'm gonna build skyscrapers a hundred stories high. I'm gonna build bridges a mile long. Where are you going? To throw a rock.

 

Nick Capodice: Yeah, that was a flop. The only reason it's popular. Because it accidentally fell in the public domain. So every TV station snagged it. And, like, let's play it at Christmas.

 

Hannah McCarthy: Like, um, Wizard of Oz. Like it was a total flop.

 

Archive: I thought you said she was dead.

 

Archive: That was her sister, the Wicked Witch of the East. This is the Wicked Witch of the West.

 

Hannah McCarthy: All right. But what I really want to start with is the term Manchurian Candidate. It is a term that has come to mean someone who's harmful or disloyal to their nation or their party because they are under the control of another nation or party. But the term does come from this book. And then this movie. So I just want to ask you all, what is Manchuria?

 

Christina Phillips: I believe Manchuria is an important location during the Chinese Revolution. Right.

 

Nick Capodice: I thought it was northern China near Mongolia, northeastern China.

 

Hannah McCarthy: That is true. And it is significant. Often throughout history, there is a long and rich, complex history of what is called Manchuria. By the way, a very controversial name for a contested place. That name comes from colonizers, right? Not from the Chinese who lived there. I'm not going to get into this whole history of Manchuria because it is. There's a lot, and I recommend people look into it on their own. What I need you to know about it today is that it was very important during the Korean War, the Chinese People's Liberation Army had an important base in what is called Manchuria. Yes, Communist China fought in the Korean War, as did covertly the Soviet Union, as did United Nations member states, including the United States. Does anybody know why all of these nations and states were involved in the Korean War?

 

Christina Phillips: Christina I guess I'll start with the United States. So this is post World War Two, and this was during the rise of the Truman era of containment, which is part of the Truman Doctrine, which is essentially this idea that there was encroaching communism. And the United States adopted a policy of preventing the spread of communism in other countries. There's also this massive decolonization happening. So the United States gets involved because they see this threat of communism entering South Korea.

 

Hannah McCarthy: You're right. But what happens way before that? Why is there a North Korea and a South Korea?

 

Nick Capodice: Yeah, I mean, it was Korea. And then like a chunk of it broke off specifically around World War two.

 

Hannah McCarthy: Yes. What happened was Japan had annexed and colonized Korea. So 1910 to 1945, Japan is occupying Korea after Japan's surrender. The United States and the Soviet Union allies really in name only. They have to transition this nation into its independence, right? So what do they decide to do with this country? They decide to split it up along the 38th parallel. The Soviet Union is going to manage the northern part of the nation, and the United States is going to manage the southern part of the nation. And the idea is this is temporary. Eventually, this military government occupation is going to just step away and leave it to Korea to figure out. However, there's an important, as you were talking about, Christina, ideological difference between these two occupying forces. Right. The northern occupiers believe in communism. Communism. And these southern occupiers believe in democracy, anti-communism, capitalism. Right. So basically, what ends up happening and I'm going to grossly oversimplify this because we are talking about a movie and not world history necessarily, although it's all kind of the same thing. You know, tensions are building up, building up, building up. Communist, anti-communist. Eventually North Korea invaded South Korea. And we are not going to declare a war, of course, because we just came out of a war. However, the United Nations authorizes police action, and the United States is permitted to get involved in this war, which was a proxy war, really, between anti-communists and communists as well as North Korea and South Korea. And this is all around the same time that we are really entering the Cold War, which was what, Rebecca? What was the Cold War?

 

Rebecca Lavoie: You mean the nuclear standoff between the two most powerful nations on Earth, the Cold War, where we were all afraid we were going to blow each other up. That thing.

 

Hannah McCarthy: That thing? Yeah.

 

Archive: If you're on the playground, run for shelter. If you're in the schoolyard, get into the building. Move quickly, but in good order.

 

Rebecca Lavoie: We should mention that this movie is not perfect. It's a little bit problematic. And there are no actual Koreans playing Koreans in this film.

 

Nick Capodice: I'm glad you brought that up, Rebecca. In particular, the Korean spy at the very beginning. I have no idea where this man is really from new Jersey.

 

Rebecca Lavoie: That's where he's.

 

Nick Capodice: From. He's from new Jersey.

 

Rebecca Lavoie: And Frank Silva, who plays the allegedly Korean man who ends up coming to New York, is Italian. So, yeah, we should just throw that out there. This is a thing that we know about this film.

 

Hannah McCarthy: Yeah, I totally agree. And I'm very glad you brought that up, Rebecca, because I would argue that The Manchurian Candidate is not just set during the Cold War. It is a two hour tribute to Cold War paranoia and fear. It is both a critique and a product of the panic that still gripped the United States when it was released in 1962. It is not historical fiction, but there is a lot of historical truth within it. I think the movie itself is a reflection of extremism and racism and sentiments about certain elements during the Cold War, because we were still in it, and setting this movie during the Korean War kind of sets this all up, right? We're not fighting the communists, but we are fighting the communists. And the United States was partially responsible for the Korean War because of that division at the 38th parallel. That's where we find ourselves at the very beginning of The Manchurian Candidate. American troops patrolling somewhere in Korea. And what, Christina happens to those troops?

 

Christina Phillips: They're betrayed by their scout.

 

Rebecca Lavoie: Their Italian scout.

 

Nick Capodice: The Italian.

 

Rebecca Lavoie: Scout.

 

Christina Phillips: The Italian. Yes, they're betrayed by the Italian scout.

 

Rebecca Lavoie: Yeah.

 

Christina Phillips: But, yeah. So they're basically. They're a staff sergeant. They establish that he is not very popular, and then they get captured by, we assume Russians, I assume, or Soviets.

 

Hannah McCarthy: But let me just ask you, Christina and Rebecca, having watched this, we already sort of touched on it. Did you know right off the bat who they were being captured by? Was it immediately clear to you?

 

Rebecca Lavoie: No, no, it's not clear, a because the actors are not played by people of any distinct ethnicity other than Americans, and because the setting of their brainwashing sessions is this like hotel lobby with a surgical theater audience around it. And the audience. That's the fake garden club audience that they're doing these demonstrations for all look, American. And I want to say, look, American. I mean, they speak English like Americans, and they're dressed like Americans from that time. So it's a little bit hazy.

 

Archive: Many years ago, when I was traveling about the country, I noticed magnificent hydrangeas on the hills.

 

Nick Capodice: I said before that, like, there's one scene that stands out to me. I think every character who was kidnaped, having a memory of that brainwashing that happened to them, is one of my favorite things in cinematic history. Like, I'm nuts about it because depending on who is having the memory, everybody who is in the scene is are portrayed by completely different people. So when there is a black actor who is remembering being brainwashed, he is a group of older black women talking at a garden club. And when it's a British guy, he's like remembering white British people talking. But when you see the real scene, those are people that look like they're from around the world. Like there's a guy with a thick sort of Hungarian accent. There are people from all over who are at this brainwashing demonstration when they're kidnaped in Korea. Even when I was a kid, and even until like the last time I saw that movie, it was like, well, who's doing who's actually kidnaping these people? No, I'm in the exact same boat.

 

Rebecca Lavoie: That's who. Them. Them. The big.

 

Hannah McCarthy: Scary they.

 

Rebecca Lavoie: Yeah. The body snatchers. Just like an invasion of the body snatchers. It's just them. Them. Them, them.

 

Hannah McCarthy: Rebecca. Exactly.

 

Archive: It's got no detail, no character. It's unformed.

 

Archive: All of a sudden, they're growing like parasites. Is it contagious? People are being duplicated.

 

Archive: How do you know my name?

 

Hannah McCarthy: Fear of capture was a very deep one. Of course, it's a deep one in any war. But in particular, during the Korean War, American soldiers captured by North Korean and Chinese soldiers could expect absolutely horrifying conditions, which, again, I am not saying is unique to the Korean War, but we do know this about the Korean War. According to the Korean War Legacy Foundation, 43% of American prisoners of war died in captivity during the Korean War, which is a huge number. Those who survived, for the most part, returned home traumatized if they returned home at all. But in this movie, they do return home, and what is waiting for them when they return home? Nick.

 

Nick Capodice: Uh, Raymond Shaw Raymond Shaw is a returning to a hero's welcome when he comes back from whatever happened over there. Uh, there's balloons and there's a parade. And Angela Lansbury and her husband, Senator Tom Iceland, are there. Excited to bring John.

 

Hannah McCarthy: Medal of honor.

 

Nick Capodice: Medal. Congressional medal of honor. That's right.

 

Hannah McCarthy: Nick, does Raymond like his mom?

 

Nick Capodice: Does Raymond Shaw like his mother? No, no. Raymond Shaw hates his mother, portrayed by Angela Lansbury and hates her politics as well as her.

 

Archive: What is it, mother?

 

Archive: A sort of a greeting is that at 330 in the morning.

 

Archive: It's a 2:45. And what do you want?

 

Archive: I want to talk to you, Raymond.

 

Archive: About what?

 

Archive: I want to talk to you about that communist.

 

Archive: Shut up with that mother. Shut up!

 

Hannah McCarthy: And we, the audience, are also meant to probably not like Senator Iceland and Mrs. Iceland. Right? Also, I don't think it's an accident that it's spelled I e l I n, but pronounced Iceland. Right? Cold. Not good.

 

Nick Capodice: Cold war.

 

Hannah McCarthy: So I would say it's pretty obvious that Senator Jon Iceland is a proxy, if you will, is a pretty obvious knockoff and critique of a certain real American historical figure. Who might that be?

 

Christina Phillips: Oh, I would guess maybe Senator Joseph McCarthy perhaps.

 

Hannah McCarthy: That is exactly right. Long before I understood what Joseph McCarthy had gotten up to, I used to say like, hi, my name is Hannah McCarthy. No relation, assuming people would know exactly what I meant. But like, I didn't know what I meant. Um, Rebecca, why might I have enough wherewithal without even knowing who the guy was to say no relation to Senator Joseph McCarthy. What did I mean?

 

Rebecca Lavoie: Because McCarthyism, which is like the expression that was born sort of like Manchurian Candidate after his era, just became a placeholder set of words for oppression of thought. And so you didn't want to be associated with that, I'm guessing. Hannah McCarthy.

 

Hannah McCarthy: That's right. I like us all to think all we want.

 

Christina Phillips: So the Korean War was 1950 to 1953, correct? And McCarthy was really in his heyday throughout the 1950s. And then this movie comes out in 1962. The movie was probably being made as he was still alive. His legacy is very much present, right?

 

Nick Capodice: James Gregory does a pretty good impression of, I believe, of Tailgunner Joe McCarthy.

 

Archive: I am United States Senator John Yerkes, Iceland, and I have here a list of the names of 207 persons who are known by the Secretary of Defense as being members of the Communist Party. What?

 

Hannah McCarthy: So just to clarify, you know, we talked about the fact that Senator Joseph McCarthy was sort of a thought police kind of guy. Specifically, he was fueling the flames of anti-Communist sentiment to an outrageous degree in the United States. He made accusations left and right, mostly left, that people were communists. They were card carrying communists. And he assured us that they were here on U.S. soil. They were infiltrating everything, including the government. And, Nick, I just want to ask you, what is one real simple, easy to remember number of communists in the State Department?

 

Nick Capodice: That's a really good joke. So for those of you who haven't seen the movie, Senator Iceland keeps putting out fake numbers about how many communists there are in the State Department. He's like 147. And he says to Angela Lansbury, can't you pick one simple, easy number? It shows him banging on a Heinz ketchup bottle and he says 57. There are no fewer than 57 because everybody loved Heinz, 57 at the time.

 

Rebecca Lavoie: One thing that I think is worth mentioning, though, is the reason she gives him for the varying numbers to be advantageous are that now everyone is talking about how many communists there are in the State Department, and not whether there are communists there.

 

Hannah McCarthy: That was the exact same tactic used by Senator Joseph McCarthy. That is why they have John Iceland doing that.

 

Christina Phillips: I think this is also the moment we realize that he is essentially everything he's saying is coming from the mind of Angela Lansbury, like he is sort of a puppet of her greater aims. So I thought that was fascinating like that. That conversation is so funny where he's just like squirting the ketchup and she's sitting there like, just do what I say.

 

Hannah McCarthy: Yeah, yeah. Because, like, communists are scary, but nothing's more terrifying than an older woman with power, right? That's the scary. I mean, like, that's.

 

Rebecca Lavoie: Very feminist, very ahead of.

 

Hannah McCarthy: Its time. Yeah, yeah. So, John, Iceland is supposed to be Joseph McCarthy. He's portrayed as a total buffoon, right? He's the puppet of his commander wife. That wife is going to use paranoia, false accusations, and the absolutely drama thirsty media to get her husband to the vice presidency, basically. Right. Just put propaganda out there and rely on the lie so that people are talking about the lie as though the lie is simply the case. And then let's try to understand what's going on around this lie. And then in terms of how he's actually portrayed, he drinks to excess, right? His home is scattered with images of Abraham Lincoln. He in fact, dresses as Abraham Lincoln during a costume party. This, I think, is an unambiguous eye roll at Joseph McCarthy. By 1962, when this movie came out, the late Senator Joseph McCarthy had more than fallen from grace. He had been exposed. Mccarthyism had been exposed for what it was it a largely baseless hunt for an invisible threat in our own nation, for the disloyal turncoats planted on our precious soil. Mccarthy had died three years prior to this movie coming out, some say from complications related to alcoholism.

 

Hannah McCarthy: He was one of the few senators to have ever been censured by the Senate. Really? Big deal. And seven years before this movie came out was when McCarthy made the first public claim about communists in the government. It was during a speech to the Republican Women's Club of Wheeling, West Virginia. He brandished a piece of paper and claimed to have a list of the communists infesting the State Department. And when he gave this speech, it was Lincoln Day, and he referenced Abraham Lincoln in this speech as a way to sort of link himself to Lincoln and enhance his own Own credibility in his Communist hunt. Linking that to Lincoln's legacy of unity. So I just think there are so many ways in which Frankenheimer, the director of this movie, is hammering it home. Like Iceland is Joseph McCarthy, and he's a buffoon, and we need to throw him away. And America pretty much had at the point that this movie had come out. And speaking of women's clubs, Christina, I think you know where I am going with this.

 

Christina Phillips: Hydrangeas.

 

Hannah McCarthy: Yeah, hydrangeas. That's right. And we are going to get to that after a quick break. We are back. We are taking a civics look at the fictional 1962 film The Manchurian Candidate and its real world foundations. And before that break, we were just about to get into a major driving force in this Cold War era film, something that we have already talked about quite a bit in this conversation. Brainwashing. Just a reminder spoilers abound in this episode. Okay, so Nick, I know this is one of your favorite scenes. You've talked about this quite a bit. We're talking about a garden club. What is the deal with the garden club when I say that, what is that referencing in The Manchurian Candidate?

 

Nick Capodice: Well, this is a scene when, uh, all of the captured soldiers are remembering a demonstration of how they have been brainwashed at the time of the demonstration to sort of the, quote unquote, axis of evil, all the evil people sitting in a room just waiting to see how these men, these American soldiers, have been brainwashed, they've all been hypnotized, and specifically, they've been hypnotized to believe they're at a presentation of a ladies garden club about how to keep and grow hydrangeas.

 

Archive: Another modern discovery, which we owe to the hydrangea, concerns the influence of air drainage upon plant climate.

 

Nick Capodice: Oh, and they're also smoking, uh, yak poop instead of cigarettes. They've been hypnotized to believe it tastes good.

 

Hannah McCarthy: Let me just ask. The group, is brainwashing real?

 

Rebecca Lavoie: Yes. Anybody who's watched a documentary about cults knows that brainwashing is real.

 

Archive: Tyndall gave us the tools to brainwash ourselves, literally wash out our humanness from our brains.

 

Hannah McCarthy: I want to acknowledge, like, first and foremost, brainwashing has become a term that we all use to mean something. So like to Rebecca's point, we use it to mean coercive conditioning tactics, often involving manipulation, deceit, and various trauma in order to change someone's perception of the world, alter their behavior away from what they might have done prior to your conditioning them right. Brainwashing is a term that many psychologists are wary of, and they're like, maybe let's not use the term brainwashing when what we mean is the thing that we think of that a cult might do to an individual, which is coerce abuse condition. And I think that that is in part because of the origins of the public use of the term, especially in the United States, which I'm about to get into because they talk about conditioning in The Manchurian Candidate. Right. There was this like, call it a moral panic, if you will. It was just a panic. There was a panic about brainwashing in the United States. I have a whole thing about this, Nick, with hypnosis, because you and I talked about this earlier. And generally, psychologists will say that hypnosis is a voluntary state that someone essentially in, in some way or another is agreeing to hypnosis itself, and that the implications of brainwashing are that it is not voluntary. Right? It is entirely, entirely against somebody's will. And so also for all those listeners who are like, this fool hasn't heard of MKUltra. I have like, you know, there are a lot of reasons. Yes. No, I have. Trust me, I have. The term brainwashing rolls off of the American tongue. It's a term I have no idea when I first heard it, but I have probably used it many, many times in my life. And we impart have an individual named Edward Hunter to thank for that. Has anyone here ever heard of Edward Hunter?

 

Nick Capodice: If I'm not mistaken, I thought he wrote the book Budwing or Mr. Budwing.

 

Hannah McCarthy: That's Evan Hunter. Um, he is a writer. He is a writer. However, Edward Hunter was a journalist, maybe, who ended up working with the United States Army and the Office of Strategic Services, which you can basically think of as the CIA. It was the CIA prior to the CIA. Some scholars think that the whole journalist thing was just a front, and that he was just an OSS agent, a CIA agent. Not everyone agrees on that. However. In 1959, Hunter testified before a Senate subcommittee, and this is what he had to say about this thing that he was calling brainwashing. And Nick, there is some outdated and inflammatory language in this quote. I just want to flag that for our listeners. But can I have you read what Edward Hunter said to the Senate?

 

Nick Capodice: Absolutely. Okay. So our Mr. Hunter said this thing called brainwashing could, quote, change a mind radically so that its owner becomes a living puppet, a human robot, without the atrocity being visible from the outside. The aim is to create a mechanism in flesh and blood, with new beliefs and new thought processes inserted into a captive body. What that amounts to is the search for a slave race that, unlike the slaves of olden times, can be trusted never to revolt, always amenable to orders like an insect to its instincts.

 

Hannah McCarthy: Wow.

 

Nick Capodice: End quote. Wow.

 

Rebecca Lavoie: This is so funny. Have any of you watched the show The Americans?

 

Hannah McCarthy: A little bit.

 

Christina Phillips: A little.

 

Rebecca Lavoie: Bit. Okay. It is, in my opinion, the best show in in my lifetime in the history of television. And it's about a couple who are from the Soviet Union who have been sent over. They weren't really a couple. They were put together as Soviet spies in the United States. And this is based on a real program that existed where they would train young Soviet people to be American and send them here.

 

Archive: This work can be too much for people.

 

Archive: They tell us what to do and we do it. That's how it works.

 

Archive: Philip and Elizabeth Jennings are not Russian spies. What happened? It's hard.

 

Rebecca Lavoie: It's such a wonderful show because I remember growing up and hearing that communists were brainwashed. Right? And the show shows the perspective of somebody who grew up in the Soviet Union who thinks Americans are brainwashed by capitalism. So it's just a very interesting, like, Cold War kind of thing that I certainly remember people talking about when I was growing up.

 

Hannah McCarthy: No, it's very much a thing. Part of the propaganda war between communism and anti-communism or communism and capitalism or communism and democracy was this notion, especially in the United States, of American exceptionalism. And it was very important that we talked about the fear of communism and the threat of communism, and what communists could do to us without allowing for the possibility that the American individual was corruptible. And I think this is very important. And forgive me if I say this again later, because it's important that Americans are safe and secure in their democratic ideals. Right? That is powerful. That is our important propaganda tool. So what what do we need to ensure that we're afraid of communism? We rally support. Opposed to communism, there has to be some sort of almost mystical tool that can hack into your mind. That is not the same thing as social influence. It's very important that we cannot be socially influenced into communism, but we can be brainwashed with something, can pierce our perfect American skulls and get in there. And that's what we're fighting against.

 

Nick Capodice: Part of the reason I love this movie is the whole movie is instances of people unwittingly demonstrating their lack of understanding or feel fealty or patriotism towards the United States. You know, you've got this blatantly horrible character of the senator who's based on Joe McCarthy, who is, you know, making lies and false accusations and the constant portrayal of a drunk Abraham Lincoln. Like, these are all we are lying to ourselves. It doesn't it doesn't need to be some creepy person in a helicopter who brainwashes us. We're doing it already. That's why I like it.

 

Hannah McCarthy: All right, so getting back to Hunter and also like, by the way, that quote you just read, Nick, like, sound like a movie you just watched. Like that's what supposedly is happening to these men when they return, right? They have been hacked.

 

Nick Capodice: Hannah. Ah. Did you say that this is like the first instance of the use of the term brainwashed.

 

Hannah McCarthy: So Hunter reportedly claimed that he was the first person to ever say this term out loud in American English. Okay. He claimed that it came from a Chinese word meaning wash brain. Now, there's a notion in Chinese philosophy about wash heart or wash brain that has to do with getting toward enlightenment. And this term is actually about like a combination of Western and Eastern philosophies and like, you know, improving oneself. It has nothing to do with the government hacking into your mind. Right. He was just pulling this term also seems highly unlikely that he was the first person to use this term. There are documents that indicate that the OSS was already using the term brainwashing in internal communications prior to Hunter getting up there and saying this. And a lot of scholars believe that Edward Hunter was just a Super effective propagandist employed by the OSS to put ideas out there into the American mind. It doesn't really matter if this is purely propaganda. It doesn't really matter that Edward Hunter is making these outrageous claims or introducing this word that doesn't make a lot of sense, and that the Chinese probably weren't using the way that he was using it, because we were super afraid of communism. And this was a really an excuse that made a lot of sense to us. Right? Like, this is how bad things can happen. And also J. Edgar Hoover had earlier published a book talking about the quote unquote, communist thought control machine. So this was in the air also, Rebecca, by the way, just for our listeners, who's J. Edgar Hoover?

 

Rebecca Lavoie: Oh, he was the director of the FBI. And he, like, had files on all sorts of Americans. And he was, by all accounts, not a great guy.

 

Nick Capodice: Yeah. That's the I've.

 

Nick Capodice: Heard a lot of understatements in my day. Hoover being not a great guy. It's kind of up there.

 

Christina Phillips: I do think it is interesting worth acknowledging here that the use of saying that this is a Chinese word and that we have translated, have translated this from a Chinese word. There's a great deal of racism and this threat of invasion that is happening in this moment like that is like a very important context to that. And the idea that there is an infiltration within the United States of some foreign, scary nonwhite mind control, I think is like sort of wrapped around all of this.

 

Rebecca Lavoie: Right. I do think, though, that the Soviet Union became the I mean, granted, it was a huge, powerful country, but I also think they became sort of the symbol of the communist threat because to white Americans, they looked like them. And there had to be something wrong with people who believed in a philosophy that was anti-capitalist. There must be something wrong. They must have been programed. They must have been coerced or something. Because why would anybody not want to be like us?

 

Hannah McCarthy: Yeah. And I think that's a really an important point, this idea that like communism equals bad, full stop, no conversations about it. We are not going to even think about it. Just bad evil.

 

Rebecca Lavoie: And if people want to learn more about communism, we do have an episode on communism and fascism.

 

Nick Capodice: I believe it's socialism, communism, fascism.

 

Rebecca Lavoie: Yes. And that's one you should definitely listen to in the civics 101 catalog.

 

Hannah McCarthy: Absolutely. All right, so getting back to brainwashing, getting back to The Manchurian Candidate. So I mentioned American prisoners of war in Korea. I told you that many of those who survived POW camps returned home traumatized, but that not all of them did return home. And I'm not talking about those who died in captivity. Okay, so something unimaginable to the Cold War American mind happened during the Korean War, captured American soldiers started confessing falsely, according to the US government, to war crimes. So they told their captors they had poisoned Korean civilians with anthrax and plague. This absolutely horrified Americans back home. Even more horrifying, POWs also started petitioning the US government to end the war. Unimaginable, right? That can't be done. Yes! Gasp! And then finally, when the war came to an end and the surviving POWs were told they could go home, an American delegation comes to Korea and and is going to get those soldiers back home. 21 of them chose not to go back home. Any theories as to why?

 

Rebecca Lavoie: I mean, what did they say at the time? I mean, I have theories as to why that or, you know, kind of contemporary, but like, what do they say at the time?

 

Hannah McCarthy: At the time, it had to be brainwashing, right? It had to be. There's only one reason. Over time, these soldiers who did return home were evaluated by psychologists who were saying, these are not sleeper agents, these are not people who have been quote unquote brainwashed. This idea that they have basically been turned into puppets by Communist China, these are people who have been horribly traumatized. That is the explanation. And that is a very complex state to be within. That can mean that someone behaves in a way that you do not expect them to behave. But it was protracted. It was so much abuse over a very long period of time. But again, brainwashing worked better for us, propaganda wise, right? By the way, we were trying to invent brainwashing in the United States. We were trying to do this. We wanted it. Mkultra, the super illegal super secret OSS, and then CIA human experimentation program that did many terrible things to many people, was trying to invent mind control. They used a lot of tactics, including, you know, dosing people without their consent and interrogations and abuse. And they treated Americans differently than they treated other people who they experimented on. Of course, you know, if someone without your knowledge gives you like 20 times the quote unquote recommended dose of LSD and then interrogates you for four hours, something might happen to you, you know? Right. That wasn't the only thing that came out of MKUltra, although we did not invent mind control the way that we wanted to. Anyone have any ideas of what we started to figure out during the MKUltra program?

 

Christina Phillips: Torture.

 

Hannah McCarthy: Yeah. Enhanced interrogation. And. Yeah, yeah. A lot of scholars agree that it was in the MKUltra program, that we figured out that abuse can maybe get us something that we want, even though a lot of people say torture does not actually work.

 

Nick Capodice: There are so many movies in the 70s with this sort of brainwashing thing. Yeah, I love it in those movies. It's a trope that it just like scares me to my absolute core. So when I see it, it means an awful lot to me. And I think it's cool and terrifying, you know?

 

Hannah McCarthy: Yeah. Well, and again, for those listeners who are like, it is real. I'm not saying that torment toward coercion and control isn't real. I'm not saying that at all. I'm not saying that experimenting on people and lying to people and all of that doesn't then change them. I'm just saying, if we think about the origins of the term brainwashing, I think it's important to note that brainwashing was a a more magical, impossible thing than the actual tactics used that the United States itself then started adopting toward manipulating people. Getting back to The Manchurian Candidate. You know, the story of soldiers who were successfully brainwashed by communists in a matter of days. Men who were it not for brainwashing, could never have betrayed their country. Because that's impossible. One man in particular, who is referred to as a quote unquote mechanism, a quote unquote weapon who can be triggered to murder even those he loves with a single phrase and a pack of cards.

 

Archive: Raymond Moylan to pass the time by playing a little solitaire.

 

Hannah McCarthy: This is something that in Cold War America was not beyond the realm of possibility. It was pretty reasonable, especially given what we've been told about brainwashing, given all of the anti-communist propaganda that we were consuming in the United States. The communists were and are real, and espionage and torture that was happening, and both sides were trying to create mind control. That's all true. So a movie wherein this, in fact, is the explanation for what happens to captured soldiers is totally on brand and totally believable. It makes a lot of sense. So do you remember that I told you that audiences in 1962 did not love this movie?

 

Rebecca Lavoie: Yes.

 

Hannah McCarthy: So we don't know why exactly. It did not make Bank basically when it was released. Right? It just it was not widely loved. There were some positive reviews, some negative reviews, but it was just generally what you would call a flop. You know, it also, it is a movie about politics and propaganda and influence and showing the United States in a state of panic to a United States that was still in a state of panic. I think it's not dissimilar from, for example. You know, maybe not all of us want to watch a movie about pandemics during a pandemic. That kind of thing. Right. And some of us do. But, you know, some of us, maybe not so much. I could have had something to do with that. That is me speculating. It was banned in certain communist controlled Eastern European countries because of its depiction of communists. It depicts the assassination of a political figure. Yes. So United Artists, the company that produced it, was worried that the movie might inspire a real life copycat. And Frank Sinatra reportedly asked his buddy, President John F Kennedy, for approval before the movie was released. They were, you know, real life friends. And apparently Kennedy was like, yeah, I love this movie. This is great.

 

Rebecca Lavoie: Wow. But John F Kennedy was, as far as we know, more than three years younger than his mother. Right? Like the actor who plays Raymond Shaw and Angela Lansbury, real life were three years apart.

 

Hannah McCarthy: That's baffling to me.

 

Hannah McCarthy: Wow.

 

Rebecca Lavoie: Frank Sinatra is great in this movie. I just want to defend Old Blue Eyes for a second. He is so good in this movie. He has top billing in the movie, which is funny. I'm sure that was because of the contractual studio system. Or maybe somebody had a horse head left in their bed or whatever. He is super duper good in this, even though it has all the weird tropes of like, there's like some 30s movie tropes in it, like him meeting the lady on the train and then instantly falling in love kind of situation.

 

Archive: Are you married?

 

Archive: No.

 

Archive: You know.

 

Rebecca Lavoie: Frank Sinatra's great. I stand by it. Stand by it.

 

Nick Capodice: Yeah. I love him so much in this movie. He's so humble and he is a wreck. He's a disaster.

 

Archive: We're busting up the joint. We're tearing out all the wires. We're busting it up so good. All the Queen's horses and all the Queen's men. Will never put old Raymond back together again. You don't work anymore. That's an order.

 

Christina Phillips: I do think it's funny. I was taking like stray notes in this and so many times I was like, is this not a conflict of interest? Also like, it seems like he is the only person and they're just like, yeah, you can try that. You can try that. Frank Sinatra's character, I don't know, it was such a strange like depiction of what existed as like, intelligence in those days because it's almost absent bureaucracy that it's very much like, I don't know, why don't you try this? And like, we have this little group and we're bringing in the FBI and the CIA like it. Just if you imagine the way those things look now, it's so bureaucratic.

 

Nick Capodice: I love that, like, the top intelligence agency in the world is just just a bunch of guys sitting around smoking, coming up with ideas.

 

Christina Phillips: Yeah.

 

Hannah McCarthy: A year after The Manchurian Candidate premiered, President John F Kennedy was assassinated by Lee Harvey Oswald. Now, a man named John Logan wrote a book called Oswald's Trigger Films, and he concluded that Oswald, who by the way, had lived in the Soviet Union for three years and was married to a Russian woman. I'm just saying had almost definitely seen The Manchurian Candidate. Robert Condon, the guy who wrote the book The Manchurian Candidate, got a call from a reporter as soon as JFK was assassinated asking if he felt responsible for the assassination. And Condon was like, no. And Condon's reasoning was, why would any assassin imitate that guy in that movie, someone who's controlled by communist handlers? Why would any American want to be that right? I read an article that was interesting that was like, perhaps we shouldn't be asking whether or not Oswald was inspired by The Manchurian Candidate, but whether or not Oswald's handlers were inspired by The Manchurian Candidate.

 

Rebecca Lavoie: So interesting. That's really interesting. I really want the sequel, which is the Angela Lansbury character backstory. Like, how did she become compromised? Right?

 

Hannah McCarthy: Yeah. And again, this is spoilery enough, but like, the spoiler about Angela Lansbury is, of course, that she was working for the communists. So she's going to try to facilitate a communist takeover of the United States. But then really, what she's going to do is be the one in charge.

 

Rebecca Lavoie: Power. Power. It's all about power.

 

Nick Capodice: That's what I love, too, is that power is the ultimate enemy in this movie, and this notion of a character who will do anything against their country, against America, of all places, just to get power. That is an interesting message, specifically one for the paranoia loving audiences of the 60s and 70s.

 

Hannah McCarthy: Or of 2025.

 

Nick Capodice: Or of 2025. Yeah.

 

Christina Phillips: On that note, I think it is worth pointing out that the end of the Korean War, it was not successful. So the United States is coming back from a war that ended in armistice. We are sort of walking back with our tails between our legs, because general MacArthur had this mission of not just containing, but overthrowing communism in Korea and was ultimately unsuccessful. And so the idea that it's kind of a whiplash from World War two, which birthed this idea that we are a superpower, our next big conflict is one in which we failed essentially, to do anything more than reestablish a not so great system that we had created and then was not working with this 38th parallel and Russia implementing communism in US and implementing anti-communism like the United States is not exactly a super confident and super successful in this moment.

 

Hannah McCarthy: And I think it's also this like, how could we, the great preservers of democracy worldwide, not be having an incredible success in this new era where our former allies are all of a sudden having a completely different idea than our idea. I find this to be sort of chilling little factoid. John Frankenheimer, the director of this movie, was close friends with Robert F Kennedy, and he was the person who drove him to the Ambassador Hotel on the night he was assassinated.

 

Rebecca Lavoie: Wow.

 

Hannah McCarthy: I'm not saying there's any link at all. I'm just saying. World. Small world. World. Very, very strange. In 1972, Frank Sinatra bought the rights to this film. And then he pulled it from circulation in 74. And then it was rereleased to much acclaim in 1987 and 88. Nearly the end of the Cold War. Take that as you will. So here are my final thoughts on this movie, The Manchurian Candidate. I told you that I thought of it as a time capsule. It's like Cold War paranoia bottled up for our viewing pleasure. It is also clearly a fairly scathing liberal critique of McCarthyism, extremism, scapegoating the American political system broadly. In the end, it turns out that anti-communist propaganda is itself communist propaganda that widely broadcast lies are themselves brainwashing. Quote unquote. That power can be handed to whomever yells loudly enough at the most television cameras. And it also tells us that we shouldn't trust the one woman in the movie who controls men instead of doting on them, which I find pretty interesting because the other women don't. They love and Angela Lansbury is out for herself. But I think that the absolutism of the communists in this movie, the way they are portrayed, the way they are cast, the utter lack of humanity and machine like operations and way of thinking. That, to me, smacks of propaganda. Even if the movie is satire, which it is, I think it can be both satire and a bit of propaganda itself. The communists are barely people, right? They are archetypes. Meanwhile, Frank Sinatra, Nick, as you pointed out, is very much a person, right? He's sweating. He's shaking. He he can't hold literally hold his glass. Right. Doesn't he drop his glass at some point? Like he is such a fallible person. He is also a red blooded American because despite having been brainwashed, Frank Sinatra figures it out, wiggles out of it, and then he has to go to Laurence Harvey, who plays Raymond Shaw. Raymond Shaw is not a super likable character, even though everyone's brainwashed to say that he's great.

 

Archive: Raymond Shaw is the kindest, bravest, warmest, most wonderful human being I've ever known in my life.

 

Hannah McCarthy: To me, this is just me. I feel like we're meant to feel like he's not the red blooded American who can avoid communist control.

 

Rebecca Lavoie: Is that why he has a British accent? Is that why they cast a guy with a British accent in this role?

 

Hannah McCarthy: Yeah. Why does he? I feel like I watched it with Nick and I asked you the same question. Like, why is he British?

 

Archive: I was like, there's some backstory.

 

Nick Capodice: Maybe Angela Lansbury's former husband was British and she.

 

Nick Capodice: Didn't say much in there. You just. Yeah, she just made something up. She's like, what's that word?

 

Nick Capodice: Mid-atlantic.

 

Rebecca Lavoie: In Star Wars, all of the Empire people were British. And, you know, everyone in the rebellion was American. Like, yeah, yeah, it's pretty wild.

 

Nick Capodice: I have an answer to it, Hannah. I know why. When he was a child, Angela Lansbury spoke like Mrs. Potts.

 

Speaker8: I'll be bubbling. I'll be brewing.

 

Hannah McCarthy: Taylor's all the time. I really think that this movie is both a very effective and often funny exploitation of the era in which it was made, and also very much a product of the era in which it was made.

 

Christina Phillips: If you go into this movie having no idea what communism is, you come out of this movie with no greater understanding of what communism is.

 

Nick Capodice: That's a great point.

 

Hannah McCarthy: That does it for this episode. Thank you all for listening. Thank you to Rebecca Lavoie, our executive producer. Thank you to Christina Phillips, our senior producer. Thank you to Nick Capodice, my co-host. Music in this episode is from Epidemic Sound. You can find everything we have ever made, including our episode on communism, fascism and propaganda at our website, civics101podcast.org. Civics 101 is a production of New Hampshire Public Radio.

 

Rebecca Lavoie: Or is it?

 

Speaker24: Or is it? I showed up five minutes late, I don't know.

 

Rebecca Lavoie: Do you want to hear something related to this that I find hysterical? On General Hospital, there's a long going storyline that one of the Quartermaine kids who was heretofore unknown to the Quartermaines because he was like a secret twin that got spirited away or whatever, had been programed by Helena Cassadine to be an assassin, and the trigger to turn him on is a Queen of hearts.

 

Hannah McCarthy: Oh that's great.

 

Rebecca Lavoie: And now that character in the show, Drew Quartermaine, is a US senator.

 

Christina Phillips: Mhm.

 

Hannah McCarthy: Oh.

 

Rebecca Lavoie: Take that.

 

Hannah McCarthy: That's so good.

 



 
 

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This podcast is a production of New Hampshire Public Radio.

How is the Alien Enemies Act being used right now?

Now that we have explored what the Alien Enemies Act is, we dive in to how it's being used to shape deportation policy under President Donald Trump. If you haven’t listened to the first part, do that before you listen to this one!

Helping us out is Liza Goitein. She is the senior director of the Brennan Center’s Liberty and National Security Program. 

Additional reading:


Transcript

Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy.

Christina Phillips: I'm Christina Phillips, and today we are talking about the Trump administration's use of the Alien Enemies Act. Last week, we did an episode on what the Alien Enemies Act is and how it's been used throughout history. And if you haven't listened to that one, please go back and listen to it before listening to this episode, because it lays the groundwork for what we're talking about today. And of course, I have linked it in the show notes.

Hannah McCarthy: But to give us a quick recap, the Alien Enemies Act is a wartime law that was passed in 1798. It allows the president, during war, invasion, or predatory incursion by an enemy nation to detain and deport anyone 14 years of age or older from that enemy nation who is not a US citizen. Predatory incursion, by the way, is not defined by that act, but it is a term that was used during that era to describe, for example, a raid on Virginia by super infamous defector Benedict Arnold. And this act, Christina, has not been invoked all that much.

Christina Phillips: No it hasn't. It's only been invoked four times in the War of 1812, World Wars one and two. And now in 2025, through a proclamation by President Donald Trump in March.

Hannah McCarthy: Now we know the Alien Enemies Act does not give the president the right to detain or deport anyone who is a non-citizen. It has to apply to people from a specific country, specifically those countries engaging in war, invasion or predatory incursion, like we said. So, Christina, who are those people in this case?

Christina Phillips: So the Trump administration is using the Alien Enemies Act to deport Venezuelan citizens and nationals in the United States who the administration claims are members of Tren de Aragua, a gang also known as TDA.

Archive: You'll see crime all over the country dry up. Essentially, that's what Venezuela and other countries are doing. They're getting rid of their criminals and putting them into the United States of America. And they're crying.

Christina Phillips: And actually, I think we should just read part of the executive order, which is called the invocation of the Alien Enemies Act, regarding the invasion of the United States. By trend. Aragua. So here's what it says. I find and declare that TDA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. Tda is undertaking hostile actions and conducting irregular warfare against the territory of the United States, both directly and at the direction clandestine or otherwise, of the Maduro regime in Venezuela. I make these findings using the full extent of my authority to conduct the nation's foreign affairs under the Constitution.

Hannah McCarthy: All right, let's pause here for a second. So it's not just that Trump says that TDA is invading the United States. He also says TDA is working with the Maduro regime, aka President Nicolas Maduro's government, which is often described as an authoritarian dictatorship. But it is the Venezuelan government which makes Venezuela the enemy nation in this case. Right?

Christina Phillips: Right. And here's a little bit more of this executive order based on these findings, and by the authority vested in me by the Constitution and the laws of the United States of America, including 50 U.S.C. 21. Now, that's referring specifically to the Alien Enemies Act, including the section we read in the last episode. I proclaim that all Venezuelan citizens 14 years of age or older who are members of TDA are within the United States and are not actually naturalized or lawful. Permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as alien enemies.

Hannah McCarthy: I noticed, Christina, that this proclamation is specifically targeting people who are part of TDA. Not all Venezuelan citizens.

Christina Phillips: Yeah, so the Alien Enemies Act doesn't require proof that someone is involved in some kind of criminal activity, or deliberately working with the enemy nation or even a terrorist in order to justify detention and deportation. But this proclamation does state that additional requirement, and the Trump administration says that this justifies immediate detention and deportation.

Archive: Do you think you have the authority, the power to round up people, deport them, and then you're under no obligation to a court to show the evidence against them?

Archive: Well, that's what the law says, and that's what our country needs, because we were unfortunately, they allowed.

Hannah McCarthy: But even if someone is being deported, even under the Alien Enemies Act, they still have some rights under the Constitution. You know, we established that in our last episode. Even if you are a non-citizen, even if you're in the country without legal status, even if you are an alleged terrorist, you still have a right to due process, meaning everything from being told when and why you are being deported, to being given access to legal counsel and the opportunity to challenge the claims against you in court.

Christina Phillips: So the short answer is yes. The longer answer gets into what proper due process looks like.

Liza Goitein: So what the Supreme Court has said is that Alien Enemies Act detainees must receive notice that they are subject to removal. Under the act, the notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

Christina Phillips: This is Liza Goitein. She's the senior director of the Liberty and National Security Program at the Brennan Center for justice. A habeas petition, by the way, is actually a habeas corpus petition. And habeas corpus is a legal principle. That means that someone has a right to challenge the legality of their detention in a court of law. She's talking about a ruling that came out shortly after the Trump administration began deporting people under the Alien Enemies Act. Deportations that the courts pointed out violated people's right to due process.

Liza Goitein: Courts have been very concerned about the lack of due process. Certainly in the beginning when the administration stealthily or at least tried to do this, stealthily whisked people away on a plane without any notice or any opportunity for those people to to try to seek judicial review or try to somehow stop this from happening.

Hannah McCarthy: All right. So the stakes are high here. If you deport someone before they have a chance to exercise those rights, that's kind of the end of the line, right? You can't really undo that decision because the person is no longer in the United States.

Christina Phillips: Yeah, exactly. So let's talk about what that deportation process looked like in the beginning.

Archive: The Trump administration has deported some 250 people it claims are gang members from Venezuela. But the people were not returned to Venezuela. They were flown to El Salvador. Salvadoran officials have imprisoned them.

Christina Phillips: The announcement that Trump had signed the Alien Enemies Act proclamation came out around 4 p.m. on Saturday, March 15th. And within 90 minutes of that announcement, the first plane believed to be holding deportees flew out of Texas, crossed the border and was bound for El Salvador.

Hannah McCarthy: 90 minutes. That seems to suggest to me that people were being rounded up and detained prior to this proclamation.

Christina Phillips: Oh yeah, we know that the administration was already detaining some Venezuelans and other migrants under other policies and provisions prior to this proclamation. So over the rest of that day, March 15th, several more planes containing deportees left the United States, also bound for El Salvador. That same day, a district court judge ordered a temporary halt to any imminent deportations under the Alien Enemies Act after the ACLU filed a lawsuit on behalf of five people, and the ACLU was claiming that the administration was not giving them enough time to exercise their due process rights before they were being deported out of the country. Now, by Monday the following Monday, at about 5:00 pm, the administration announced that at least 137 people had been deported under the Alien Enemies Act.

Hannah McCarthy: Was this around the time that a judge ordered the administration to turn the planes around?

Christina Phillips: Yeah, that was that same judge in that district court.

Hannah McCarthy: Okay.

Archive: The US district judge issued the order after lawyers said two planes were already in the air at the time of the ruling.

Christina Phillips: Part of the issue for that judge was that he had a right to judicial review, but he lost that power. If these people had already left the country before he could evaluate the legal process the administration was using.

Liza Goitein: What exploiting a wartime power allows the administration to do, or what they believe it allows them to do, is to bypass any kind of hearing or any kind of process like that, which fundamentally means that people will be deported erroneously, you know, without hearings, to actually weigh the evidence, without giving people an opportunity to contest the evidence against them and to prove that they are not members of this criminal gang. Mistakes will be made and mistakes have been made.

Archive: But today, CBS news has obtained a list of people deported. Hundreds of alleged gang members sent this past week to El Salvador. But on that list was a Venezuelan migrant living and working in Dallas with no criminal record.

Archive: Through government documents and interviews with lawyers and families, we found that at least three of the deported men, including Elvis, had been carefully vetted to come to the U.S. under the refugee resettlement program, a process for people fleeing war and persecution.

Christina Phillips: And eventually this escalated to the Supreme Court, which temporarily halted the deportations.

Hannah McCarthy: Didn't this happen in the middle of the night or something?

Christina Phillips: Yeah, around 1 a.m.. And actually, this is pretty extraordinary for the Supreme Court to step in like this. The court said, quote, the government is directed not to remove any member of the putative class of detainees from the United States until further order of this court, and that is referring specifically to a group of detainees in Texas. But elsewhere in the country, the administration was continuing deportations.

Archive: From Denver to Chicago to Newark. Immigration officials say Ice agents made 956 arrests on Sunday alone. And while New York City immigration officials say they've seen after.

Liza Goitein: The Supreme Court held Old, that the administration had to provide reasonable notice and a meaningful opportunity to seek judicial review through habeas petitions. The administration interpreted that requirement in a way that simply did not comply with the spirit of what they were asked to do. The written notice that people received was an English only, regardless of whether those people spoke English. Nothing in that notice mentioned that they had a right to review. It just said you are being deported under the Alien Enemies Act. The notice was not provided to people's attorneys, even when they were represented by attorneys, and they were given 12 hours, even if they were given this notice, you know, 7 p.m., 8 p.m. at night, they had 12 hours to state their intent to file a habeas petition, and if they didn't do that within 12 hours, they could be deported. The courts have that have looked at this have had uniformly said that is not due process.

Christina Phillips: And then we get another decision from the Supreme Court in May which said, quote, notice roughly 24 hours before removal. Devoid of information about how to exercise due process, rights to contest that removal surely does not pass muster. End quote. And by the way, that was signed by seven justices, with Alito and Thomas dissenting.

Hannah McCarthy: All right. What does pass muster?

Christina Phillips: Yeah. So we don't know yet. And until that question is answered, these deportations across the board have been suspended.

Liza Goitein: The courts are coalescing around a 21 day notice requirement, with the notice provided in Spanish or in the language that the person speaks. At least one court has said that it has to include something about the right to review. The notice has to be provided to attorneys. The courts are coalescing around a much more fulsome notice and opportunity for review than what the administration was trying to do.

Hannah McCarthy: All right. I have another question about this. Have the courts talked at all about whether or not the use of the Alien Enemies Act is justified, because Trump's proclamation says that the United States is experiencing an invasion or predatory incursion from Venezuela. And I'm just wondering what counts as an invasion or predatory incursion. And is that up to the courts to decide?

Christina Phillips: Yes. So this is being challenged in court, and we will talk about that right after a break.

Hannah McCarthy: But before that break, just remember you can always go to Civics101podcast.org to ask us your questions about what is or is not going on in the United States of America. We might just answer your question with an episode. We're back. This is Civics 101 and Christina. You were about to tell me about how the administration is justifying the use of the alien enemies act. Mainly the claim that Venezuela is coordinating with the gang Ndaragwa to orchestrate an invasion of the United States, and that this invasion justifies the use of the Alien Enemies Act.

Christina Phillips: Yes. The administration has been sued in court over this reasoning. This is Liza Goitein. Again.

Liza Goitein: The sticking point in terms of whether the president's actions are authorized under the Alien Enemies Act has been whether or not there is an invasion or a predatory incursion. On the question of whether or not the invasion or predatory incursion is being perpetrated by a foreign government or foreign nation. There's no question about what those terms mean. If you look at the history of the Alien Enemies Act, there is no question that these terms invasion and predatory incursion were meant to address acts of war. In the case of invasion, it would be something like a full scale ground assault that had occurred maybe before Congress had actually declared war. So at that point, it's an invasion, but not a declared war. If you look at predatory incursion and you want to get a sense of what that was referring to right before the start of the quasi war, John Adams told Congress that he thought the Atlantic Ocean insulated us from invasion, but that major seaports such as New York City were navally undefended and were subject to predatory incursion. So that's what they were talking about there. It was still acts of war, but it was acts of war short of an actual full scale ground assault on the United States.

Liza Goitein: So that's what was meant originally. Now, in some of the cases that have been bubbling up. The administration's main argument is that the alien enemies act really isn't a war power, in the sense that it does not require an act of war. The government has argued in court that an invasion can include any hostile entrance or hostile encroachment, while a predatory incursion encompasses an entry into the United States for purposes contrary to the interests or law of the United States. That is an incredibly broad definition. It would seem to cover anyone who enters the country without documentation, and that person can then be called an enemy alien. What we are hearing now from the from the government is, well, if this involves a foreign terrorist organization, then we can use this war power. That is not an argument that's been made before. And it's also not consistent with the way foreign terrorist immigrations are treated under the law. Um, there is a law that provides special rules and procedures for the deportation of people who are members of foreign terrorist organizations. That is a part of immigration law.

Hannah McCarthy: Have the courts had anything to say about this?

Christina Phillips: With the exception of one decision in Pennsylvania, the federal courts have rejected the Trump administration's definition of invasion or predatory incursion. Two of the more recent cases, for example, were in New York and in Texas.

Hannah McCarthy: And has the Supreme Court had anything to say about this?

Christina Phillips: So, no, they have not taken up the question of whether the administration's claims about TDA and Venezuela meet the threshold of invasion or predatory incursion. In fact, they made it really clear that they were not making that decision, and they gestured to this important separation of powers balance when it comes to the courts, the Constitution and the interests of the federal government. Quote, we did not. On April 19th and do not now address the underlying merits of the party's claims regarding the legality of removals under the ACA. We recognize the significance of the government's national security interests, as well as the necessity that such interests be pursued in a manner consistent with the Constitution. In light of the foregoing, lower courts should address ACA cases expeditiously.

Hannah McCarthy: But this could still go back to the Supreme Court.

Christina Phillips: It could. Even Justice Kavanaugh suggested that it will. At one point he wrote, quote, the circumstances call for a prompt and final resolution, which likely can be provided only by this court.

Hannah McCarthy: And also, none of these decisions are addressing the question of whether Venezuela is actually invading the United States with or through TDA.

Christina Phillips: Yeah, and by the way, the administration doesn't even seem to agree on this, even though Trump says this is an invasion.

Hannah McCarthy: Or predatory incursion.

Christina Phillips: Yeah, one or the other. Either way, connected to the Venezuelan government, which is important, right? It's what makes the alien enemies act potentially justifiable here. But the the Office of National Intelligence said they didn't find substantial evidence connecting TDA to the Venezuelan government.

Archive: A newly declassified memo drafted by U.S. intelligence agencies seems to contradict when a president Trumps reasons for one of his controversial immigration policies deporting migrants to a prison in El Salvador. Now, the memo disputes the Trump administration's claims that the Venezuelan government is working with a notorious gang.

Christina Phillips: One memo from that office said, quote, While Venezuela's permissive environment enables TDA to operate, the Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States.

Hannah McCarthy: So some of the people in the federal government who helped the president figure out what is and is not a threat from a foreign government are saying that they cannot find evidence that this foreign government, Venezuela, is actually threatening the US.

Christina Phillips: Yeah. And after that, by the way, the director of National Intelligence, Tulsi Gabbard, fired the two officials that released these reports, and her office told the press they were fired for their opposition to the president. And we only know what those officials had to say because of a Freedom of Information Act request by the press.

Hannah McCarthy: But it does sound like they were fired for sharing information that contradicted the president.

Christina Phillips: I think that's safe to say. Yeah.

Hannah McCarthy: Now, has this been challenged in court and what role do the courts have here.

Liza Goitein: Whether trend Aragua is acting as a part of or at the direction of a foreign government or foreign nation? On that point, the courts have simply deferred to the administration's litigation position. And and President Trump's statement in his proclamation that trend Aragua is acting at the direction of the Venezuelan government, despite the fact that Trump's own intelligence community has issued two different reports concluding that that is not the case even in cases that ultimately ruled against the administration. There's been an unwillingness for judges to probe whether the factual assertions made by the Trump administration are true. So, in other words, the courts have said, you know, here is the conduct that is required in order to meet this definition of a predatory incursion. We will now accept whatever President Trump's characterization of Uruguay's conduct is, and then we will compare that, that description to our definition. And so there's been really complete difference to the how President Trump describes the conduct. Generally speaking, this kind of determination gets a lot of deference. It courts often consider this to be a political question, the kind of thing that the President or Congress needs to decide and that courts should not be deciding.

Hannah McCarthy: All right. This brings us back to what the Supreme Court said about national security concerns versus what the courts can or should say, because there's this principle of giving the executive branch some deference, because the executive branch knows some things and has some expertise that the courts potentially do not. Especially when it comes to intelligence and national security. And that it would be impractical and unwise for the courts to make decisions about these things, which are the expertise of the executive branch.

Christina Phillips: Yeah, this is called the political question doctrine. And it's a major factor when the courts are looking at what the executive branch is doing and why. And so far, federal courts have not pierced that doctrine.

Hannah McCarthy: What about Congress, by the way, where is Congress in all of this?

Christina Phillips: So first of all, Congress has not declared war on Venezuela. But Congress has also not challenged the administration's use of wartime powers, such as the Alien Enemies Act. They could try to limit those powers through a vote, but that would require some political consensus and political will. Congress could also use the power of the purse, including the $80 billion in funding the administration is requesting for immigration law enforcement in the current spending bill. Congress could also repeal the act if they wanted to. Democratic legislators have introduced a bill in the House to repeal the act, and past Congresses have tried to repeal it before, so far unsuccessfully. And Liza does point out that there are more modern laws on the books that deal with the issues the Alien Enemies Act was created for. Back when we basically had no law enforcement of any kind.

Liza Goitein: We have ample other means of addressing threats that we face national security threats during wartime, not during wartime. The president has ample authority to deport people who are actually members of Trento, Aragua, under immigration law.

Hannah McCarthy: Okay, so there may be other laws to use, but this law is still on the books and the president is currently trying to use it.

Christina Phillips: Yeah. And just to zoom out for a second to the larger strategy of the administration when it comes to immigration and deportation. Alongside the use of the Alien Enemies Act, the administration has increased the presence of Ice across the country. That's the federal law enforcement entity that is overseeing immigration, and the administration has begun detaining people who are showing up for their mandatory immigration court appointments. It's also announced its plan to revoke temporary protected status from hundreds of thousands of Venezuelans in the United States, which the Supreme Court has said the administration has permission to do.

Hannah McCarthy: And when we say temporary protected status, this is basically protection from deportation because it would be unsafe for you to be deported for any number of reasons.

Christina Phillips: Yeah. And I think we should also pay attention to how the administration has been responding to the courts and all the legal decisions we've seen, which have so far slowed down the administration's ability to deport people in huge numbers, which is something President Trump promised he would do.

Archive: Judges are interfering, supposedly based on due process. But how can you give due process to people who came into our country illegally? They want to give them due process. I don't know.

Archive: You know.

Liza Goitein: Spokespersons for the administration have basically said that they will be watching the courts to make sure the courts do the right thing in these Alien Enemies Act cases. And if they don't do the right thing, then the president will have to suspend habeas corpus.

Archive: Well, the Constitution is clear. And that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So it's an option we're actively looking at. Look, a lot of it depends on whether the courts do the right thing or not. At the end of the day, Congress passed a body of law known as the Immigration and Nationality Act, which stripped article three courts. That's the judicial branch of jurisdiction over immigration cases.

Liza Goitein: President Trump has for a very long time referred to unlawful immigration as an invasion. And, you know, originally that seemed to just be rhetorical. Now he's trying to imbue it with legal significance. Alien Enemies Act is one example of that. But he also issued an executive order in which he purported to suspend, essentially, the laws that provide protection against removal various protections against removal, including the right to seek asylum. And so, based in part on this claim of an invasion, Trump, in one of his executive orders, claimed the right to basically suspend asylum law. Now, part of the problem that President Trump is running into is it turns out that even these laws, even these really even the pretty draconian powers given to the president under the Constitution in some cases and under various statutes. During an invasion. Do not authorize him to pick and choose what statutes the government is going to comply with, and it does not authorize him to suspend constitutional rights such as due process. And that is why we are we are now hearing talk about the president suspending habeas corpus, because if your goal is to just detain people, deport people with no judicial review and no other impediment, right, just without impediment, just detain people because because you say you can detain them, deport them because you say you can deport them. The closest the president can get to that is through the suspension of habeas corpus.

Christina Phillips: So can the president suspend habeas corpus. You find the grounds for suspension in the suspension clause of the Constitution. Most legal scholars agree that habeas corpus cannot be suspended without the approval of Congress, and indeed, all four times habeas corpus was suspended was with congressional approval. In fact, Justice Amy Coney Barrett, before she was a justice, wrote that the suspension Clause quote does not specify which branch of government has the authority to suspend the privilege of writ. But most agree that only Congress can do it. End quote.

Hannah McCarthy: But there is always a chance that Congress does get on board and says, yeah, you can suspend habeas corpus.

Christina Phillips: Yeah. Or President Trump could declare that he's going to do it without Congress. And I think the question there is, if he does, will Congress use their mechanisms for checking the president to stop him from doing so?

Hannah McCarthy: And I would assume that the courts would probably have something to say about that as well.

Christina Phillips: Yeah, I think based on everything we know, if a president were to try to suspend a constitutional right, people would sue the administration. But we're not there yet. So I asked Liza what we should be paying attention to going forward.

Liza Goitein: Right. So we have these decisions that are binding in the jurisdictions where they have been issued. You know, we haven't yet heard the administration say that they're not binding or that they're not going to comply with them. So at some point, this will probably get up to the Supreme Court. And let's say the Supreme Court rules in a way that the administration disagrees with and maybe says that the Alien Enemies Act does not authorize what President Trump is trying to do here. Then the next question will be, does the president try to unilaterally suspend habeas corpus in violation of the Constitution? If he were to do that, the Supreme Court would then say, that's a violation of the Constitution. I feel pretty confident that that's what the Supreme Court would say, that the president doesn't have that authority. At that point, then we have the courts ruling the wrong way, as the administration has sort of described it with the with the Alien Enemies Act cases. What happens then?

Christina Phillips: And in the meantime, I'll say this to anyone who is trying to wrap their head around this. Start with the text. Don't start with how someone else describes the law to you. And that includes us. That includes the president. That includes the Supreme Court. Read the law yourself. And I know I'm saying that after spending two episodes breaking down these laws. But before you try to hear what other people say the law means, at least have some sense of what you think you understand and what you don't. This episode was written and produced by me, Christina Phillips, with help from Hannah McCarthy and Rebecca Lavoie. Our team includes producer Marina Henke and host Nick Capodice. And Nick, I know you've been out for a couple weeks, but I wanted to thank you for letting me step into the MC mic chair and also say you're welcome, because I'm not using music with marimba in it, even though you're not here to stop me. On that note, music in this episode from Epidemic Sound and Chris Zabriskie - Civics 101 is a production of New Hampshire Public Radio.

Hannah McCarthy: I'm sorry. Let me just drink some water. And I'm sorry for the swallowing sounds on this tape.

Christina Phillips: Oh, I don't even hear Rebecca. Oh, yeah. Sorry, Rebecca.

Hannah McCarthy: You will?

Christina Phillips: Yeah. This is called the political question. In light of the foregoing.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What is the Alien Enemies Act?

The Alien Enemies Act is a war power granted to the president that has only been used four times in US history since its creation in 1798. It allows the president to order the detention and deportation of noncitizens from "enemy" nations during war, invasion, or predatory incursion. When it was created, the US had a very different understanding of Constitutional rights, including due process, than we do today. We talk about how the Alien Enemies Act has been used throughout history, and how Constitutional law has evolved since 1798. 

Check out our follow up episode, all about Trump’s invocation of the AEA.

Helping us out is Liza Goitein. She is the senior director of the Brennan Center’s Liberty and National Security Program. 

Additional reading:


Transcript

Hannah McCarthy: [00:00:03] Did you hear that?

Christina Phillips: [00:00:05] I hear it. Oh. It's spooky.

Hannah McCarthy: [00:00:09] The thunder is [00:00:10] back, so.

Christina Phillips: [00:00:11] Oh, great.

Hannah McCarthy: [00:00:12] Oh.

Christina Phillips: [00:00:13] No, I like it, I like it. I think it's good.

Hannah McCarthy: [00:00:16] All right, all right. You know what I can say? That I [00:00:20] am so frustrating.

Christina Phillips: [00:00:24] I like the thunder. It's a nice effect.

Hannah McCarthy: [00:00:27] Okay.

Christina Phillips: [00:00:28] Also, for what it's worth, I'm wearing two sets of headphones [00:00:30] right now. All right. Hello, Hannah.

Hannah McCarthy: [00:00:36] Hello, Christina.

Christina Phillips: [00:00:38] This is Civics 101, and today [00:00:40] we are talking about the Alien Enemies Act.

Archival: [00:00:43] President will invoke a 227 year old wartime law.

Archival: [00:00:47] And we have learned that it appears he could be invoking [00:00:50] the Alien Enemies Act of 1798.

Archival: [00:00:53] You must leave to the federal agencies this duty of handling all questions [00:01:00] Actions concerning aliens. This will prevent injustice.

Christina Phillips: [00:01:05] And so we are just talking about the Alien Enemies Act today, because [00:01:10] I think it's pretty fascinating to talk about a law that has only been used during the War of 1812. World War one, World War two, and now [00:01:20] in 2025.

Hannah McCarthy: [00:01:22] And I assume you are referring to the Trump administration's invocation of this act?

Christina Phillips: [00:01:28] Yes, I am, and our next episode [00:01:30] will be all about that. But for today, I just want to establish what the Alien Enemies act is, why it exists in the first place, and [00:01:40] how it's been used. So we don't usually read the text of a law on this show [00:01:50] because laws are rarely easy to read, much less listen to someone read. But I want to do that today because we've been hearing over and over from our guests that we should just start with the text. [00:02:00] So, are you ready? Pause for thunder.

Hannah McCarthy: [00:02:06] I'm just letting Mother Nature speak. I [00:02:10] am ready. I also feel like we have to jump in here and say that alien right is a legal term for non-citizens. And even though this term has [00:02:20] been around for a long time and it comes from Latin, it is also a word that people debate and they say dehumanizes non-citizens, which, given [00:02:30] the other common definition of alien. Yeah, that makes sense.

Christina Phillips: [00:02:35] It does indeed. And for what it's worth, prior administrations and other organizations [00:02:40] had or have tried to move away from using the word alien and replacing it with non-citizen. But you're right. The word alien has been used in case law for longer than [00:02:50] the United States has existed, and is being used in case law today. Okay. So the text we're going to read, the first part of the Alien Enemies Act, known as section 21, because that [00:03:00] is the meaty part and I'm just going to read the first few sentences, but please read the whole thing if you can. It's actually not that long. Whenever there is a [00:03:10] declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted [00:03:20] or threatened against the territory of the United States by any foreign nation or government, and the president makes public proclamation of the event [00:03:30] all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of 14 years and upward, who shall be [00:03:40] within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed [00:03:50] as alien enemies.

Hannah McCarthy: [00:03:53] Wait a minute. You say shawl?

Christina Phillips: [00:03:56] Shawl?

Hannah McCarthy: [00:03:58] That's so. Wait. That's so [00:04:00] British of you.

Christina Phillips: [00:04:01] Is it Chow?

Hannah McCarthy: [00:04:02] Well, I think it must just be like a New Hampshire thing.

Christina Phillips: [00:04:06] Oh, no. I think that's a I listen to a lot of audiobooks.

Hannah McCarthy: [00:04:11] Oh, [00:04:10] no, I honestly, I love it, I love it. I think you should leave it.

Christina Phillips: [00:04:16] Okay. Shawl. I want to call it a couple things here. [00:04:20] So the conditions that have to be met is that we're in a declared war or an invasion by a foreign country or nation, or the threat of an invasion [00:04:30] or predatory incursion by that nation.

Hannah McCarthy: [00:04:33] And in that circumstance, people in the US who are not naturalized, meaning they are not US citizens [00:04:40] who are aged 14 years or older can be apprehended, restrained, secured and removed.

Christina Phillips: [00:04:47] Yes, exactly. And it's important to point [00:04:50] out that the act doesn't specifically say that the president or the administration must uphold these non-citizens rights to due process [00:05:00] or habeas corpus, or any other individual rights found in the Constitution.

Hannah McCarthy: [00:05:06] But it also doesn't say that the president can disregard the [00:05:10] Constitution. Right?

Christina Phillips: [00:05:12] Right. And that becomes important as the legal understanding of who is guaranteed constitutional rights. And what those rights [00:05:20] entail gets more expansive over time after this act is passed.

Hannah McCarthy: [00:05:24] Okay, so reading this, I'm seeing a lot of what seems to me like ambiguity. And [00:05:30] also, this does seem like a lot of power to give a president. So what was going on in 1798 that led Congress to pass this law in the first place? [00:05:40]

Christina Phillips: [00:05:43] We will talk about that right after a little break. And also, this is just a shameless ask I have for people [00:05:50] listening to this. I would like to talk to people who know something about the Office of Personnel Management and the Office of Management and Budget, and I'm also looking for anyone who has been an inspector [00:06:00] general or worked for an inspector general's office in the federal government. So if any of those things is you, send us an email to Civics 101 at nhpr.org. I'm going [00:06:10] to try this out and see if it actually helps me find some people, because we've never tried it before. I don't think.

Hannah McCarthy: [00:06:15] That is brilliant. I'm going to start doing that. We're [00:06:30] back. We are talking about the Alien Enemies Act. And Christina, just before the break, I [00:06:40] asked you what was going on in 1798 that led Congress to pass this act. So what was going on?

Christina Phillips: [00:06:49] Okay, [00:06:50] 1798. We are still pretty fresh off the end of the Revolutionary War. We still have a bunch of war debts to other countries who helped us out like [00:07:00] France. And after a few years, the government sort of stopped paying those debts.

Hannah McCarthy: [00:07:07] Okay, so not very Lannister of us. That's not a [00:07:10] not great.

Christina Phillips: [00:07:11] How dare you invoke the Game of Thrones?

Tyrion Lannister: [00:07:15] Lannister always pays his debts.

Christina Phillips: [00:07:19] So this [00:07:20] lands us in what is called the quasi war, which was never an actual declared war. But at one point, France sees some US [00:07:30] ships, and then French privateers were attacking US merchant vessels, mostly in the Atlantic Ocean and the Caribbean and the US, which doesn't have a ton of money and doesn't [00:07:40] really have a strong organized navy, is kind of scrambling a little bit.

Liza Goitein: [00:07:45] Well, so the fear was that there might be people during wartime who were loyal [00:07:50] to the enemy nations and could sort of be a fifth column within the United States.

Christina Phillips: [00:07:55] This is Liza Goitein. She is the senior director of the Liberty and National Security [00:08:00] Program at the Brennan Center for justice.

Liza Goitein: [00:08:06] And a really important point is that at the time, there really wasn't [00:08:10] an alternative in either the criminal law or immigration law to deal with people inside the country that were national security threats. And certainly [00:08:20] in terms of having sort of federal law enforcement resources, even to sort of detect and respond to national security threats within the United States that [00:08:30] just wasn't there in any significant respect.

Christina Phillips: [00:08:33] And the US Marshals Service was the first federal law enforcement department. But we only got that in 1789, right? [00:08:40]

Hannah McCarthy: [00:08:40] There's no like Department of Homeland Security, for example.

Christina Phillips: [00:08:43] Yeah, we barely had an organized military, much less a national security team, a national intelligence team. And [00:08:50] when it comes to immigration law, we've got the first naturalization acts of 1790 and 1795 and not much else. And [00:09:00] for what it's worth, the Naturalization Act provided a pathway to citizenship for free white people who had lived in the United States for five years and had good moral character. [00:09:10] So other than naturalization at that time, there was no asylum process. There was no green cards, no work visas. There's no immigration courts. None of that. [00:09:20]

Liza Goitein: [00:09:20] And at the same time, you know, we didn't have the same conceptions of constitutional rights. And even the law of war was was in a very different place back then. So you had this combination [00:09:30] of not having the same rights and also not having the same ability to ferret out national security threats. And so what they came up with was this very blunt [00:09:40] hammer, where people who were natives of or born in an enemy nation during wartime could just summarily be detained or deported without any [00:09:50] sort of evidence or inquiry, even into whether they were disloyal to the United States.

Hannah McCarthy: [00:09:55] So this was like.

Hannah McCarthy: [00:09:56] A giant panic button that cast a wide [00:10:00] net because we hadn't come up with any other processes yet, or invented the law enforcement jobs that could do the way, more nuanced work of actually figuring [00:10:10] out who might be a legitimate threat.

Christina Phillips: [00:10:16] Yeah, and we're still licking our wounds from one war in the midst [00:10:20] of another war that wasn't a war. And we're in debt and still very, very new as a country. So we're worried about France and French people in the US. And [00:10:30] we pass four laws known as the Alien and Sedition Acts, which.

Liza Goitein: [00:10:35] Was a very controversial legislative package even at the time. Uh, and the Alien [00:10:40] Enemies Act is is the only one that actually remains. The Alien Enemies Act was the authority that would apply if this undeclared naval conflict with France escalated [00:10:50] into a perfect or total war. That was the terminology through a congressional declaration of war or through a French ground assault. [00:11:00] So it was sort of contingency planning for if this naval conflict turned into something bigger. At the same time, Congress also enacted the [00:11:10] Alien Friends Act, which was the peacetime counterpart, basically, for if the conflict did not escalate in that way. And [00:11:20] in fact, it did not escalate in that way. And so the alien enemies act didn't end up being used at the time, but it was very clear that this was sort of the wartime version of [00:11:30] how the president could treat non-U.S. citizens in a situation that, you know, for the Alien Enemies Act rose to the level of actual [00:11:40] war or otherwise it would go through the Alien Friends Act.

Christina Phillips: [00:11:44] And then there was the Sedition Act, which criminalized false or malicious statements about the government and a new Naturalization [00:11:50] Act that changed residency requirements for naturalized citizens. And it upped it from five years to 14. And as Liza said, everything but the Alien [00:12:00] Enemies Act was repealed or it expired by 1802.

Hannah McCarthy: [00:12:04] But the Alien Enemies Act still stands. So how has it been used since? [00:12:10]

Archival: [00:12:12] Neither the army nor the War Relocation Authority relished the idea of taking men, women and children from their homes, their shops and their farms. [00:12:20] So the military and civilian agencies alike, determined to do the job as a democracy, should, with real consideration for the people involved.

Christina Phillips: [00:12:30] Okay, [00:12:30] we've got the War of 1812 where President James Madison targeted British nationals. We don't exactly know how many people were detained or deported [00:12:40] from that one. And then we've got World War One. President Woodrow Wilson imposed the act first on male German nationals, and then expanded [00:12:50] it to include German Austrians and women of both nationalities. It was enacted in World War Two in order to detain Japanese, [00:13:00] German and Italian nationals.

Archival: [00:13:02] Our west coast became a potential combat zone. Living in that zone were more than 100,000 persons of Japanese [00:13:10] ancestry, two thirds of them American citizens, one third aliens.

Liza Goitein: [00:13:15] The people who were interned under the Alien Enemies Act were basically [00:13:20] 30,000 non-U.S. citizens of Japanese, German, and Italian descent. The internment of Japanese Americans during World [00:13:30] War Two was not under the Alien Enemies Act that was under an executive order, basically a claim of inherent constitutional power by President Roosevelt. It's actually generally [00:13:40] referred to as incarceration. The incarceration of Japanese Americans during World War Two was not done under the Alien Enemies Act, because the Alien Enemies Act only applies to people who [00:13:50] are not citizens of the United States.

Christina Phillips: [00:13:52] And actually, I found out that there was a few thousand additional people from Latin American countries who were actually deported into the United States [00:14:00] so that they could be detained. So other countries were sending their Japanese, Italian or German nationals to the United States for detention. And then Liza [00:14:10] pointed out that in the years since the law was passed, our legal understanding of how people can be treated specifically in wartime and more broadly, anyone within the United States [00:14:20] is different than it was in 1798 or even during these three previous wars. And this comes down to due process.

Hannah McCarthy: [00:14:29] To be clear, when [00:14:30] we're talking about due process, we're talking about giving a person the opportunity after they have been detained to know the charges against them and file a petition to the court asking [00:14:40] the court to review those charges, question law enforcement, determine if their detention or deportation is lawful.

Christina Phillips: [00:14:48] Yes, exactly.

Liza Goitein: [00:14:49] This really goes [00:14:50] to the question of what rights people in this country have in wartime. In 1798, so-called enemy aliens really had no rights whatsoever. So there wasn't even a lot of pushback [00:15:00] on that score when the Alien Enemies Act was enacted. We have a very different conception of rights in wartime today. Congress has passed several [00:15:10] laws providing reparations and apologies for people who were interned under the Alien Enemies Act. During that time period, and also since [00:15:20] World War II, there's been a revolution in our understanding of the rights that are guaranteed by the Constitution. Courts have now made clear that due process and equal protection apply even [00:15:30] in wartime, and the modern concepts of these rights are much broader and more robust than they were 80 years ago.

Hannah McCarthy: [00:15:49] I [00:15:40] mean, [00:15:50] this makes a lot of sense. Christina. We are in a really substantially different legal landscape today than we were in 1798 98 or during World War one, even [00:16:00] during World War two. Right. We are just in a country that has different, more robust, more complex laws pertaining to non-citizens.

Christina Phillips: [00:16:09] I was thinking about [00:16:10] this when I was thinking about what things were like in 1798. As far as who is included in constitutional protections. People who were enslaved were not granted [00:16:20] constitutional protections. In many cases, women were not granted many constitutional rights. So even on in that level, like our understanding of who gets constitutional [00:16:30] rights has evolved quite a bit. And that includes people who are not US citizens. So there's a case in 1903 known as the Japanese [00:16:40] immigrant case, where the Supreme Court said that if someone entered the United States lawfully and then was subject to deportation, they had a right to challenge that deportation in court. [00:16:50] And then over the course of the 20th century, there have been a number of cases that extended those constitutional rights to people without lawful status.

Hannah McCarthy: [00:16:59] So [00:17:00] bringing it back around to wartime. You said the Alien Enemies Act had not been used since World War Two. But you mean not until now? [00:17:10]

Christina Phillips: [00:17:11] Yes.

Liza Goitein: [00:17:15] I mean, I would say this law had been confined to the dustbin of history [00:17:20] before President Trump, um, you know, dusted it off and and revitalized it.

Christina Phillips: [00:17:37] In [00:17:30] March, President Trump officially invoked the [00:17:40] Alien Enemies Act via presidential proclamation. We're going to talk about how Trump has revitalized the act in 2025, what he's doing with it, how he's interpreting [00:17:50] it, and what the courts have said about it. That's all coming up in part two, which will drop in your podcast feed soon, or depending on when you listen to this, it might already be there. This [00:18:20] episode was produced by [00:18:30] me, Christina Phillips and edited by Hannah McCarthy. Our team includes Rebecca LaVoie, our executive producer, Marina Henke, our producer and host, nick Capodice. Civics [00:18:40] 101 is a production of NHPR New Hampshire Public Radio.


 
 

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This podcast is a production of New Hampshire Public Radio.

How President Trump is trying to change elections

In March, President Trump signed an executive order that promises to preserve and protect the integrity of American elections. The data shows the integrity of our election system is intact despite the claims of many politicians and the perception of many voters. So what is the president trying to change about a system that isn't broken? Who will it affect and how much will it cost them? Finally, while Congress and the States are constitutionally-empowered to make election law, the president is not. So... can he?

Our guide to this executive order is Jason Carter of the Carter Center.


Transcript

Hannah McCarthy: [00:00:01] Hannah McCarthy here.

Nick Capodice: [00:00:03] Nick Capodice there.

Hannah McCarthy: [00:00:05] Civics 101 everywhere. We've [00:00:10] got an executive order episode for you today, my friends. This is not the first. Probably won't be the last. And I'll tell you what. This one is a real "can [00:00:20] the president do that" doozy.

President Trump: [00:00:22] Election fraud. You've heard the term. We'll end it. Hopefully. At least this [00:00:30] will go a long way toward ending it. There are other steps that we will be taking in the next in the coming weeks, and we think we'll be able to end up getting fair elections. [00:00:40]

Hannah McCarthy: [00:00:40] This order Preserving and Protecting the integrity of American elections was issued March 25th.

Nick Capodice: [00:00:46] I'm just going to jump in here and say, you should go back and listen [00:00:50] to our episode on the save act, if you haven't already. It's called fixing a problem that doesn't exist.

Hannah McCarthy: [00:00:56] It sure is. Before we get into the details of this executive order, I'd like [00:01:00] to introduce or reintroduce you to Jason Carter?

Jason Carter: [00:01:03] Sure. So my name is Jason Carter. I am a lawyer in Atlanta, and I'm also the chair of the Carter Center [00:01:10] Board of Trustees.

Nick Capodice: [00:01:11] For those of you who don't know or didn't listen to our Save Act episode, Jason Carter, is that Carter? Late President Jimmy Carter's grandson. [00:01:20] The Carter Center does a lot of international humanitarian work, including observing and offering feedback on democratic elections. And recently [00:01:30] they started to look at our country's election system. Two.

Hannah McCarthy: [00:01:33] Yeah. Speaking of integrity, that is something that Jason says the Carter Center is working on. Not so much the integrity of American [00:01:40] elections, which he says we already have more like the integrity of our democracy. Democracy requires trust. So they're working on that.

Jason Carter: [00:01:49] One of the [00:01:50] things that we have found is you have to have trusted messengers on all sides, right? And so one of the things that the Carter Center has spent some real time doing is building [00:02:00] out Its network of individuals from across Partizan lines, from across geographic lines, to talk to folks in their communities. Right. One of [00:02:10] the things that the Carter Center has always been good at, and that my grandparents believed in their hearts, is that neighbors talking to neighbors is going to be more effective than folks [00:02:20] talking on TV or elsewise, right? I mean, that's where trust really comes from, is these communities of care that we all exist in, in our normal lives.

Nick Capodice: [00:02:28] Hang on, what does Jason [00:02:30] mean when he says building a network of people talking in communities?

Jason Carter: [00:02:34] Sometimes they're politicians, but sometimes they're not, right? Sometimes they are just individual community [00:02:40] leaders. You know, there's a good reason, as a former politician myself, that that people don't trust politicians because they feel like they're in the system and in the system in [00:02:50] order to win. Um, but there's a lot of other people who care about that system and have the ability to convey messages that don't necessarily have to be that some of them are journalists. We've done a lot with [00:03:00] lawyers to make sure that they understand what people's rights are and how to approach these things in court without sort of, you know, damning the system and continuing to build trust. And so [00:03:10] that's that's where we are. There's a large network of people out there that have the ability to really affect this and, and to rebuild the trust that we're missing.

Hannah McCarthy: [00:03:18] So Jason calls these democracy [00:03:20] resilience networks.

Nick Capodice: [00:03:22] Hannah, you must know what this reminds me of.

Hannah McCarthy: [00:03:25] Actually I do. I told Jason about it.

Nick Capodice: [00:03:28] Well, I'm gonna just open this mindmeld [00:03:30] up to the listener. Uh, everyone, what I'm reminded of here are the four Minutemen during World War One, the CPI, the Committee on Public Information.

Hannah McCarthy: [00:03:39] Aka the government's [00:03:40] wartime propaganda office.

Nick Capodice: [00:03:41] Right. The CPI organized volunteers in states across the country to stand up at movie theaters, churches, labor [00:03:50] union meetings, you name it, to give short speeches encouraging their fellow Americans to get behind the war effort.

Hannah McCarthy: [00:03:57] Right. You know, there were people in the community. They were trusted. [00:04:00] They were speaking on behalf of America. The difference here being, of course, that this is an attempt to get people behind democracy itself, get them to believe in it, trust [00:04:10] it by hearing from the people who know it well or even work within it. Okay, so that is in part what the Carter Center is doing. Why are they doing that? [00:04:20] Because trust in the system has eroded, due in part to people suggesting it cannot be trusted in its current state. And this brings me to the subject of our episode [00:04:30] President Trump's new executive order preserving and protecting the integrity of American elections.

Jason Carter: [00:04:41] In [00:04:40] this instance, you have the president of the United States making his own view and taking his own power to say, this is how I want this election [00:04:50] run. That is a problem, isn't that?

Nick Capodice: [00:04:53] I mean, Hannah, the Constitution leaves elections up to the states and a little bit to Congress, [00:05:00] not the president.

Hannah McCarthy: [00:05:02] Yeah, we're gonna get to that. So this executive order comes with a pretty long preamble, if you will. It starts off with, quote, [00:05:10] despite pioneering self-government, the United States now fails to enforce basic and necessary election protections employed by modern developed nations as well [00:05:20] as those still developing.

Nick Capodice: [00:05:22] If I may translate.

Hannah McCarthy: [00:05:23] Sure.

Nick Capodice: [00:05:24] Pioneering self-government. So that's basically saying we did democracy earlier [00:05:30] than other countries. The United States now fails. And this one is interesting because, he says now, implying that in the past we were not failing to enforce basic [00:05:40] and necessary election protections. That kind of feels like he's saying this should be obvious and easy. People employed by modern developed nations as [00:05:50] well as those still developing. So basically other people are doing it and we're not. And that's bad. I am also glad to see the president use the term developing [00:06:00] nations as opposed to other ones he's used in the past because we do not swear on this show.

Hannah McCarthy: [00:06:05] Yeah, so I did think it was interesting, to say the least, that this order references [00:06:10] other countries and it does so by name. Trump brings up election protocol in India, Germany, Sweden and a handful of other nations. [00:06:20] I asked Jason about this. Like why kick it off this way?

Jason Carter: [00:06:25] It says to me that the president was nervous about what he was doing. [00:06:30] It says to me that the president didn't feel comfortable just saying, I can do this. And so he he cited Sweden, he cited Germany. And what he did is he picked the most restrictive aspects [00:06:40] of those those democracies ability to to count votes and what they do right, to make it the most restrictive possible.

Nick Capodice: [00:06:48] Wait, like what?

Hannah McCarthy: [00:06:49] Aspects like [00:06:50] how India uses a centralized biometric database to verify voter registration eligibility.

Speaker5: [00:06:56] Whoa. Wait. What?

Hannah McCarthy: [00:06:59] Fingerprints and [00:07:00] iris scans.

Nick Capodice: [00:07:01] To prove you are who you say you are.

Hannah McCarthy: [00:07:04] Yeah. Trump references how Sweden limits mail in voting to people who are abroad or aboard [00:07:10] a ship in foreign waters. And in either case, you need two witnesses.

Nick Capodice: [00:07:14] Witnesses to watch you vote.

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

Jason Carter: [00:07:17] And really, the scary thing about that is that we're not [00:07:20] looking at Sweden in terms of a balance of how the election is run.

Nick Capodice: [00:07:25] So in other words, we're not looking at Sweden for ideas on how to make elections more fair, for example, [00:07:30] or more democratic.

Hannah McCarthy: [00:07:32] Right. And to be clear, Sweden regularly rates among the most democratic nations on the planet [00:07:40] for everything from civil liberties to political rights. Its elections are considered broadly free and fair. To cite Sweden for a voting [00:07:50] restriction, as opposed to what makes it a healthier democracy than the United States might just be telling. Jason sees this executive [00:08:00] orders references to things like this as a way to justify what's coming next.

Nick Capodice: [00:08:06] I almost don't want to ask this. Hanna, what is [00:08:10] coming next?

Hannah McCarthy: [00:08:10] All right. This executive order says the following. Ready?

Nick Capodice: [00:08:15] Almost never. But this is my job.

Hannah McCarthy: [00:08:19] One major [00:08:20] thing is that this order is trying to change the federal voting form to require documentary proof of citizenship.

Nick Capodice: [00:08:27] Huh? Isn't that what the Save [00:08:30] act is trying to do?

Hannah McCarthy: [00:08:31] Yes and no. The save act again. Listen to our episode on it to learn more. Would require proof of citizenship to register [00:08:40] to vote. Full stop. It's Congress's attempt to change an election rule in the US, which they are constitutionally empowered to do. This executive order is [00:08:50] commanding an independent federal agency called the EAC, the Election Assistance Commission, to change a mail voter registration form. The big difference [00:09:00] here is that the president is not explicitly constitutionally empowered to do that, which is part of the reason. A federal judge blocked this part of the [00:09:10] order. That same judge blocked another part of the order that tells the federal voter registration agencies to assess the citizenship of people enrolled in public assistance [00:09:20] programs before they give them a registration form. That judge's reasoning was that this is an overreach of presidential powers. Now, [00:09:30] this order packs in a lot more than that, so I'm going to keep going. It orders the EAC to re certify voting systems.

Nick Capodice: [00:09:38] And what does that mean?

Hannah McCarthy: [00:09:40] Okay. [00:09:40] In some states and some listeners will be very familiar with this. You vote using a touch screen and then get a paper printout of your vote. Now that piece of paper has a [00:09:50] QR code or a barcode on it. And that code is then scanned and your vote is counted.

Nick Capodice: [00:09:56] And Trump wants the machines that do this to be recertified. [00:10:00] So is he just telling the EAC to give them all a checkup.

Hannah McCarthy: [00:10:04] Nope. We have voluntary voting system guidelines in the US. Keep [00:10:10] voluntary in mind. We are going to come back to that. Trump is ordering the EAC to change those guidelines, specifically to say that states cannot use [00:10:20] the barcode thing anymore, except for accessibility purposes.

Nick Capodice: [00:10:24] Then how can the EAC recertify those machines?

Hannah McCarthy: [00:10:27] They can't. Not as they are right [00:10:30] now.

Nick Capodice: [00:10:30] Aha! What am I missing here?

Hannah McCarthy: [00:10:33] The states or counties that use barcodes either have to update their machines or replace them. In Georgia, [00:10:40] for example, where Jason Carter is from, and I promise we will hear from him again soon. The whole state uses this system. The cost to change that system is estimated at around $66 [00:10:50] million. Georgia's Senate, by the way, had already voted to ban their QR code system, but they did not allocate money for it.

Nick Capodice: [00:10:59] But why exactly? [00:11:00] Like, what is wrong with the barcodes.

Hannah McCarthy: [00:11:03] This barcode system has had naysayers across the political spectrum. But in 2020, conspiracy [00:11:10] theorists claimed without evidence, that these barcodes had been manipulated. The idea is that the machine itself is hacked and the vote will go [00:11:20] to another candidate.

Nick Capodice: [00:11:21] You know, you could have just said 2020 and left it at that.

Hannah McCarthy: [00:11:23] Anna, election officials say that the system is secure, accurate and they regularly test it. But [00:11:30] a lot of those same officials want the barcodes gone because so many voters don't trust them.

Nick Capodice: [00:11:36] And this executive order forces that action. [00:11:40]

Hannah McCarthy: [00:11:40] Forces that action. And in no way indicates that the federal government will help pay for it.

Nick Capodice: [00:11:44] And reinforces the idea that this system is not secure.

Hannah McCarthy: [00:11:49] Yes. There's [00:11:50] more. This order does not say the government will help pay for these changes. Election stuff is expensive for states. They often [00:12:00] rely on grants from the federal government to help them pay for it. And this order. Nick tells the government to prioritize states who comply when they're passing [00:12:10] out grants. In other words, no money to help you comply and the threat of no money if you don't.

Nick Capodice: [00:12:16] So states don't absolutely have to comply.

Hannah McCarthy: [00:12:19] This is more [00:12:20] like a guidelines than an actual rule situation. It's voluntary remember. And how do you get states to do something voluntarily?

Nick Capodice: [00:12:28] Anna you asked them if they [00:12:30] want all that pretty, pretty money.

Hannah McCarthy: [00:12:32] Yeah. I'm going to bring Jason back in for a moment here.

Jason Carter: [00:12:35] There's only a certain number of ways that the president has to enforce that [00:12:40] executive order. And so what the president is saying is I'm actually intent on executing on this order. The power that he has is the power of the purse [00:12:50] at this point. And so he wants to use that power and bring it to bear to get to change the rules of the game.

Nick Capodice: [00:12:55] But the president doesn't have the power of the purse.

Hannah McCarthy: [00:12:58] That's what I said. And [00:13:00] Jason knows that. He's more referencing the fact that this order firmly suggests withholding federal funds for states that do not comply with it. Now, [00:13:10] is the president allowed to say who does or does not get money?

Jason Carter: [00:13:14] So, I mean, that's a good question, right? I mean, constitutionally speaking, the Supreme Court has to say whether the president [00:13:20] can do this or not. So, you know, in my view, the Constitution requires the elections to be run by the states. There is some role for the federal government, as we've already discussed, because the federal [00:13:30] government stepped in, for example, with the Voting Rights Act of 1965, Nvra other other rules that the federal government has helped to expand and make it easier for people [00:13:40] to vote. Can the president do this without Congress? I don't think so. Because of what you described in terms of whether Congress has the ability to Congress, [00:13:50] in fact, to your point, holds the purse strings under the Constitution.

Hannah McCarthy: [00:13:53] So basically we'll see. All right. Moving on. This order tells the Department of Homeland Security and the Department of Government [00:14:00] Efficiency, aka Doge administrator, aka Elon Musk, to review voter files and voter list maintenance records alongside immigration databases.

Nick Capodice: [00:14:10] Is [00:14:10] it boring if I keep asking why it isn't?

Hannah McCarthy: [00:14:13] But I am going to give us all a quick break just in case it is.

Nick Capodice: [00:14:19] Before that [00:14:20] break, unless the listeners think me capable of a single boring act can never happen. A reminder that Hannah and I wrote a book, and that book is there to tell you all [00:14:30] about how things are supposed to happen. It is called A User's Guide to Democracy How America Works, and it is a reminder of what democracy is. Isn't that something? [00:14:40] You can get it wherever books are sold.

Hannah McCarthy: [00:14:56] We're [00:14:50] back. Nick, before the break, you were asking why? [00:15:00] Why would Trump want Homeland Security and Elon Musk to review voter lists and immigration databases.

Nick Capodice: [00:15:06] I mean, I can guess Hannah.

Hannah McCarthy: [00:15:08] Together with the attorney general, [00:15:10] it is all about finding and stopping noncitizen registration and voting. Listen to the Save Act episode for more on that. I'm not going to get into it all now. All right. [00:15:20] Moving on. The order says states that count ballots received after Election Day will be penalized. Basically, we'll have funds withheld.

Nick Capodice: [00:15:28] Isn't this something that happens all the [00:15:30] time? Hannah, this is why we can't know the final ballot tally on election Day. Mail in ballots have to be postmarked by Election day, but it takes the Postal Service a while [00:15:40] to deliver them because they haven't invented teleportation yet.

Hannah McCarthy: [00:15:43] 18 states currently allow for counting mail in ballots if they arrive after Election Day, as long as they are postmarked [00:15:50] by Election Day. Now, the order says, quote, this is like allowing persons who arrive three days after Election Day, perhaps after a winner has been declared [00:16:00] to vote in person at a former voting precinct, which would be absurd, Served, unquote.

Nick Capodice: [00:16:05] Well, that would be absurd. Uh, but mail in ballots aren't like that at [00:16:10] all.

Hannah McCarthy: [00:16:10] They are not at all. All right, here we go. The order asks the attorney general to create information [00:16:20] sharing agreements with state election officials. The idea is to alert the DOJ to all suspected violations of election laws.

Nick Capodice: [00:16:29] If I've learned one [00:16:30] thing from police procedurals, it's that state law enforcement tends to say something snarky when the feds show up.

Hannah McCarthy: [00:16:36] I'll be honest, I am nowhere near an expert on the machinations and legality [00:16:40] of state federal information sharing, especially when it comes to criminal investigations. But I do know that this kind of information sharing is often largely voluntary, especially if [00:16:50] we are talking about quote unquote, suspected violations before we know whether a federal crime has actually been committed. I also know that states push back against this kind of thing on [00:17:00] the grounds of privacy concerns and resisting government coercion.

Nick Capodice: [00:17:04] It's federalism, baby.

Hannah McCarthy: [00:17:05] Yeah, and this is another one where Trump tells the AG to consider withholding funds. If [00:17:10] a state says no way, no how. Okay. The order also bans non-citizens from being involved in administering federal elections.

Nick Capodice: [00:17:18] To non-citizens [00:17:20] administer elections.

Hannah McCarthy: [00:17:21] Most states already have laws prohibiting anyone who isn't a qualified, aka citizen voter from being involved. This part of the order [00:17:30] says that non-citizens cannot access election equipment, ballots, or any other relevant materials used in the conduct of any federal election. So on its face, that means [00:17:40] non-citizens cannot be poll workers or work for election agencies. But pro-democracy groups are already raising concerns about non-citizens who, for example, [00:17:50] work at companies that make election materials or who work in buildings that become polling places on election day. We're talking schools or city halls. Does [00:18:00] physical proximity to polling places count? Unclear. Last thing the [00:18:10] order tells the AG and the Treasury to prioritize prosecuting foreign nationals who donate to campaigns.

Nick Capodice: [00:18:16] Isn't that already illegal?

Hannah McCarthy: [00:18:18] Yep.

Nick Capodice: [00:18:18] All right.

Hannah McCarthy: [00:18:19] All right, [00:18:20] back to Jason Carter. So Jason looks at the save act again. Go check out that episode to understand what I'm talking about. And then he looks at this executive order and he's thinking about [00:18:30] democracy. And here is how he sees it.

Jason Carter: [00:18:33] It's one thing to have the federal government do a power grab over our election system. It is an entirely different [00:18:40] thing to have a single human being who's the current leader of the country, making a direct power grab around the elections when the president of the United States, and this is [00:18:50] true in any country, when they start to say I, as the president, have the right to change or address these rules without the input from Congress, without taking [00:19:00] it to the states, that's very scary.

Nick Capodice: [00:19:02] Now, Hannah, I'm curious about whether this has happened before. Have any other presidents signed executive orders on elections [00:19:10] before?

Hannah McCarthy: [00:19:10] I did a little research on this one in recent history. Bill Clinton signed an order to help with the implementation of the National Voter Registration Act. That is the act [00:19:20] that lets us register to vote when we get our license and tell states they have to accept mail in ballots. Barack Obama had an order establishing the Presidential Commission on Election Administration. [00:19:30] It was temporary. It assessed our then system and made recommendations to improve online registration, poll access, outdated machines. Biden had [00:19:40] an order. Trump got rid of it to facilitate voter registration and education.

Nick Capodice: [00:19:44] Did you find anything like this, though?

Hannah McCarthy: [00:19:47] It did not. So [00:19:50] look, I already told you that a judge blocked some parts of this order, but many parts of it remain [00:20:00] up in the air. Can the president order all these executive agencies to target non-citizens, withhold federal funding, decertify voting [00:20:10] machines, create new standards and high costs for states. Well he did. Will election officials comply? That remains [00:20:20] to be seen. What I do know is that we have an elections clause in the Constitution. I know it leaves the time, place and [00:20:30] manner of elections up to the states. I know it gives Congress the power to make and change federal elections regulations. And I know [00:20:40] that the president is not in the elections clause at all.

Nick Capodice: [00:20:45] I'm an executive order, and I pretty much just happen. [00:20:50]

Hannah McCarthy: [00:20:50] All the more reason to pay attention.

Nick Capodice: [00:20:52] Is that it, Hannah?

Hannah McCarthy: [00:20:53] Till it isn't. That [00:21:10] does it for this episode. It was made by me. Hannah McCarthy with Nick Capodice. Rebecca LaVoie is our executive producer, Christina Phillips is our [00:21:20] senior producer, and Marina Henke is our producer. Special thanks to Taylor Quimby for his edits on this episode. He is the executive producer of another NPR podcast. It's wonderful. It's called [00:21:30] Outside/In. Go check it out. Music in this episode from Epidemic Sound. You can find everything we have ever made at our website, civics101podcast.org. And while you're there, [00:21:40] you can ask us a question. We might just make an episode in reply. Civics 101 is a production of NHPR New Hampshire Public Radio.


 
 

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Fixing a problem that doesn't exist

The SAVE Act passed the House in April, 2025. As it awaits consideration in Congress, we spoke with Jason Carter from the Carter Center. Yes, like that Carter. Jason is asking why Congress is working on a vanishingly rare problem: noncitizen voting. The SAVE Act, if it becomes law, will require additional proof of citizenship for all Americans seeking to register -- or reregister -- to vote. The goal? To stop all noncitizens from voting -- which rarely happens.


Transcript

Hannah McCarthy: [00:00:00] This is Civics 101. I'm Hannah McCarthy.

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

Hannah McCarthy: [00:00:03] Nick, you know what i've been singing to myself a lot lately?

Nick Capodice: [00:00:11] Oh, [00:00:10] well, uh, it could be any number of things. Hannah. Uh, is it Stephen Sondheim?

Hannah McCarthy: [00:00:17] It's not always Sondheim, Nick.

Nick Capodice: [00:00:19] It usually [00:00:20] is.

Hannah McCarthy: [00:00:20] What I have been singing a lot lately is I have confidence from The Sound of Music, and I'm not sure if I'm allowed to sing it here for copyright reasons. However, [00:00:30] the line that keeps coming to me is, uh, all I trust I leave my heart to all I trust becomes my own. I have confidence [00:00:40] in confidence alone.

Nick Capodice: [00:00:43] I wish you could sing it. I really do, uh, that Julie Andrews is a treasure.

Hannah McCarthy: [00:00:48] She is. Uh. But you know what [00:00:50] I think it is for me, Nick, we know that a lot of people say they have lost trust. They have lost confidence in the whole lot [00:01:00] of it. The whole system, all the people, be they sitting on Capitol Hill or down the street from us. And to that I say phooey. Where did you get that one from?

Nick Capodice: [00:01:09] Experience? [00:01:10]

Hannah McCarthy: [00:01:10] Yeah. Well, sure. Um. But, Nick, what if that experience isn't what we think it is? What if that mistrust is misplaced? [00:01:20] What if. Nick, we had confidence that spring will come again? Maybe it's even spring right now.

Nick Capodice: [00:01:28] It's literally spring right now, Hannah. [00:01:30]

Maria: [00:01:30] Oh, let's see if I can make it easier.

Hannah McCarthy: [00:01:37] Here's Jason Carter.

Jason Carter: [00:01:38] In the United States [00:01:40] and everywhere around the world. Democracy depends on trust.

Nick Capodice: [00:01:42] Jason Carter, as in Carter. Carter.

Hannah McCarthy: [00:01:46] As in Carter. Carter, the grandson of the late President [00:01:50] Jimmy Carter. Jason is a lawyer and the chair of the Carter Center.

Jason Carter: [00:01:54] Since it was founded, the Carter Center has done work in over 80 countries. And that work has been both [00:02:00] in terms of peace building, a lot of which is democracy and human rights, rule of law, conflict resolution, and also in health, which is a disease eradication [00:02:10] health system, strengthening, doing the work on the ground in these places that we believe builds up people, alleviates human suffering and and draws [00:02:20] people closer together. We've also observed over 120 elections in more than 40 countries.

Nick Capodice: [00:02:27] Okay. The disease eradication thing is pretty straightforward. [00:02:30] I mean, it's a gargantuan goal, but I understand it. I'm not sure what observing elections means.

Hannah McCarthy: [00:02:37] Right. Okay. So observing elections, [00:02:40] people from the Carter Center get invited to watch the election process in other countries. The idea is they will check out voter registration, election law, the [00:02:50] election itself. And then they offer feedback for nations that are trying to do democracy. Right. Why? Because the Carter Center can be neutral about it. [00:03:00] Basically, they are not invested in the results, but in the process. And because they come from the United States, a successful democracy. [00:03:10]

Nick Capodice: [00:03:10] Uh.

Hannah McCarthy: [00:03:11] Way ahead of you.

Nick Capodice: [00:03:12] All right.

Jason Carter: [00:03:13] We realized that as we go out and talk about democracy as an American organization, um, we have to do [00:03:20] that with real credibility. And we were looking around both at the way the world was looking at American democracy, the way that American democracy was projecting itself [00:03:30] out into the world. And we realized that both we needed to get involved. For the Carter Center's own credibility.

Hannah McCarthy: [00:03:38] The Carter Center spends a lot of its time observing [00:03:40] other countries elections, not observing the United States elections until now. We started with trust, right? [00:03:50] That is what I am thinking about right now. So is Jason.

Jason Carter: [00:03:54] There's a variety of things that have happened over the course of the last several decades in the United States [00:04:00] that have eroded that trust in the election system. And democracy depends on trust.

Nick Capodice: [00:04:08] Right. I mean, when you're living in a country [00:04:10] where there is a nationwide call to stop the steal, a belief that elections are fraudulent, full of bad actors and lawbreakers, not actually [00:04:20] the democratic process they purport to be.

Hannah McCarthy: [00:04:23] And we are living in that country.

Nick Capodice: [00:04:24] We are. This is a big part of the reason people say democracy is in trouble because [00:04:30] people don't believe in it.

Hannah McCarthy: [00:04:32] Yeah. Here's how I'm looking at it. America is never Neverland. Democracy is fairies. And every time you say you don't [00:04:40] believe in fairies, a fairy dies. Where did we get the idea that fairies don't exist? A whole bunch of Captain Hook's who grew up stopped believing in [00:04:50] the thing that makes this world beautiful, and want to convince all of us to stop believing in it, to start clapping.

Nick Capodice: [00:04:56] I do believe in fairies. I do, I do.

Hannah McCarthy: [00:04:59] Belief [00:05:00] shapes reality, right? So the Carter Center is looking for ways to bring trust and confidence back. I'm mixing metaphors, a mix of movies, but I don't [00:05:10] care.

Jason Carter: [00:05:10] And so we are looking at a variety of different ways to to both reach out to people that are alienated from the system and also use the leaders that exist now to help increase [00:05:20] that trust. And that's our focus. What is it that we have? What are the principles for trusted elections, and what are the ways that we can get those principles out into the United States to to make sure [00:05:30] that we're doing things right, you have to do things correctly, and you also have to be seen to do them correctly. Right? The fact that we have a strong election system, the fact that [00:05:40] we have a very decentralized election system in the United States, essentially run by the 50 states and some territories, you know, the fact that in Georgia, for example, [00:05:50] where I live, you know, we have a county election boards, it makes it very difficult, very difficult to steal an election, for election, for example, it makes it almost impossible [00:06:00] to have any significant fraud that can affect the outcome of an election, right? That can thwart the will of the people.

Hannah McCarthy: [00:06:07] One useful tactic in making sure that [00:06:10] we do not believe in democracy can actually be pretending that what you are doing is protecting democracy. Like Captain Hook double crossing Peter Pan, for [00:06:20] example, you write a law that you say will make our elections safer.

Archival: [00:06:25] I rise in support of the Save act. The [00:06:30] American people are done messing around with a weak kneed system.

Archival: [00:06:34] The Save act would cripple American election.

Archival: [00:06:36] The Save act is required if we're going to have election integrity. [00:06:40]

Archival: [00:06:40] I rise today in strong opposition.

Archival: [00:06:42] I rise in support of the Safeguard American Voter Eligibility Act.

Jason Carter: [00:06:46] You know, an election law like the Save act will come in. [00:06:50] And the purpose of it is from the beginning is based on something that that is solving a problem that doesn't really exist.

Nick Capodice: [00:06:58] All right, the save act. I have heard [00:07:00] about this one. This is the thing that passed the house in April.

Hannah McCarthy: [00:07:03] Yeah. And it's now waiting on Senate consideration. We're recording this episode in May 2025, and it was about a month [00:07:10] ago that the House of Representatives passed the Safeguard American Voter Eligibility Act.

Jason Carter: [00:07:16] The Save act, in essence, is something that purports [00:07:20] to address, uh, different types of election fraud, most particularly fraud by voting by non-citizens.

Hannah McCarthy: [00:07:27] I'll tell you what the Save act will require of voters in [00:07:30] just a moment. We will also have a whole episode on President Trump's executive order about elections. But first, a reminder that noncitizen voting in American elections is already illegal. [00:07:40] It is also incredibly rare. I decided to look at the data published by one of the think tanks that has actively lobbied for the Save act, the Heritage Foundation.

Donald Trump: [00:07:49] Thank [00:07:50] you to the Heritage Foundation.

Hannah McCarthy: [00:07:52] They say their database contains many confirmed instances of noncitizen non-citizen voters. It contains 79 [00:08:00] people who have done so, 79 people over four decades, in everything from school board elections to presidential. And [00:08:10] I know this because I read every report.

Jason Carter: [00:08:14] Those people get prosecuted. There it is. It is. You know, they're punished with both crimes and imprisonment. And [00:08:20] so it is we have a very robust system of laws that address what happens when someone is caught with voter fraud. And we also have an enormous [00:08:30] number of people who are out there looking to find this type of voter fraud, right? I mean, folks are out in a variety of contexts. You [00:08:40] know, we have very, very good surveillance.

Nick Capodice: [00:08:42] We should also point out here that if you're caught voting as a non-citizen, you could face deportation.

Hannah McCarthy: [00:08:48] Yes. So I was trying to [00:08:50] think of something comparable to this. Like, what's another federal crime that is nonviolent? But if it's committed by many people, can have a serious impact on the democratic system. [00:09:00] So a thought about the tens of billions of dollars we miss out on every year because of tax evasion.

Nick Capodice: [00:09:06] How many people commit that crime?

Hannah McCarthy: [00:09:08] That data was a little more elusive. [00:09:10] But the IRS estimates about a million people.

Nick Capodice: [00:09:13] A million per year.

Hannah McCarthy: [00:09:16] Per year. So we have laws about taxes [00:09:20] and tax evasion. We prosecute people for tax evasion. Not nearly as many, relatively speaking, as we do for noncitizen voting. Collecting taxes is absolutely essential [00:09:30] to a functioning government that sustains a functioning democracy. And look, I'm not naive. The current Congress has expressed more interest in weakening the Internal Revenue Service, [00:09:40] the agency that monitors tax evasion, than it has in strengthening it. They've rescinded tens of billions of dollars in funding. There's even a proposed bill to abolish it, [00:09:50] along with income taxes.

Nick Capodice: [00:09:52] Yeah. The current Congress doesn't seem to be such a big fan of taxes.

Hannah McCarthy: [00:09:56] But my point is, there is a federal crime that is way [00:10:00] more widespread than noncitizen voting, and it's the kind that could be addressed in a law. But a law like that one that beefs up the IRS, for example, is incredibly [00:10:10] difficult to pass. So how and why did the House manage to pass a law about something that barely happens?

Jason Carter: [00:10:19] One of the [00:10:20] keys that we look at when we're talking about, does this election law help or hurt? Does this election law build trust or or undermine trust? You know, an election law [00:10:30] like the Save act will come in. And the purpose of it is from the beginning is based on something that that is solving a problem that doesn't really exist. [00:10:40] So you have very little of this type of voter fraud at all and is currently being addressed in significant ways. And so when you pass [00:10:50] a law that purports to fix a problem that doesn't exist, it Increases the, uh, sort of the idea that this, that this is necessary, [00:11:00] um, when it's not. And so that's a, that's a significant problem right off the bat.

Nick Capodice: [00:11:04] All right. But what exactly, Hannah, does the save act say? Like, if it becomes a law, what's [00:11:10] going to happen?

Hannah McCarthy: [00:11:11] I'll get into all that after a quick break.

Nick Capodice: [00:11:15] But before that break, a loving reminder that we wrote a book. We did, [00:11:20] uh, it's called A User's Guide to Democracy How America Works. And it is your friend. It is your companion. It is your warm and reassuring hug when you need it. It is [00:11:30] a reminder of how far you've come and how powerful you are. And if that sounds nice, you can get it wherever books are sold.

Hannah McCarthy: [00:11:57] We're [00:11:50] back. We're talking with Jason Carter from the Carter Center, [00:12:00] a nonprofit that does a lot of work in the world, including globally, supporting democratic elections and human rights. And before the break, Nick, you asked me what the Save act says [00:12:10] and what will happen if it becomes law. So if it does, you will need a valid US passport or birth certificate in order to register or reregister to [00:12:20] vote. And there are a bunch of other accepted documents for certain people, certain classifications, but for most voters, we're talking passport or birth [00:12:30] certificate. Some states already do this, by the way.

Nick Capodice: [00:12:33] Yeah. New Hampshire does this.

Hannah McCarthy: [00:12:34] Yep. The state where Nick votes rolled this out this year, 2025. Now, here's [00:12:40] one big concern that opponents of this bill keep bringing up.

Jason Carter: [00:12:43] If you are a married woman whose name no longer matches the name on her birth certificate, um, then you may [00:12:50] have a problem getting registered to vote.

Nick Capodice: [00:12:52] Now, I've heard about this, Hannah. If you took your spouse's name when you got married, then your legal name doesn't match what's on your birth certificate. [00:13:00]

Hannah McCarthy: [00:13:00] Yeah. In that case, you would need a passport or one of the many other documents listed for people who are, for example, tribal citizens or military personnel. Now, Save [00:13:10] act supporters say don't worry about it, because the Save act requires states to decide what they are going to do about that. Like what kinds of documents they will ask [00:13:20] for for extra proof of citizenship.

Nick Capodice: [00:13:22] What kinds of documents will they ask for?

Hannah McCarthy: [00:13:25] That is up to the states. A marriage certificate, maybe, if you can find it. But [00:13:30] you brought up New Hampshire, Nick, where married women did get turned away this year, sometimes multiple times because of this issue. Some of them came back, some of them didn't. There [00:13:40] was one story of a woman who had been married three times, but still had her first husband's last name. Her first marriage certificate had been lost to history for a while [00:13:50] at that point. And you can always order a copy for a fee, but that doesn't help when it comes to same day registration.

Nick Capodice: [00:13:57] Okay, so if this act passes [00:14:00] and becomes a nationwide thing, there are going to be people who need to do some serious administrative work.

Jason Carter: [00:14:07] There's some estimates that it would be 20 something million [00:14:10] Americans who would have a hard time finding the documents that they need in order to register or reregister to vote under this act.

Hannah McCarthy: [00:14:18] So you heard Jason ask some questions [00:14:20] about this proposed law. Number one, does it help or hurt? What do you think about that one, Nick?

Nick Capodice: [00:14:28] Oh, well, uh, it [00:14:30] was proposed to prevent a very rare form of voter fraud that we already have laws for. And because laws tend not to be 100% effective, I suppose [00:14:40] the Save act could get the numbers down a little more.

Hannah McCarthy: [00:14:44] The numbers I have seen are between 0.0001 [00:14:50] and 0.0008% of votes are from non-citizens.

Nick Capodice: [00:14:56] Maybe they're just going after another zero after that decimal, I guess.

Hannah McCarthy: [00:14:59] Okay, [00:15:00] so that is the help. Here's where Jason sees a hurt.

Jason Carter: [00:15:04] When you look at a change in election laws, if there are winners and losers, you have to assess who [00:15:10] it is that's benefiting from this law. Right. And when you say you have to have a passport in order to vote, the kinds of people who have passports are the ones that take foreign trips, right? And so [00:15:20] you're talking about a group of people that are going to be per se, wealthier. You're going to the kind of folks who have all of the documents that they need for a variety of other things. [00:15:30] You know, the folks that are least likely to have these documents are folks that are that are poorer, frankly, and don't have that that kind of access to things like a birth certificate, [00:15:40] they have to go. And a lot of states you have to pay to to get one right or to get a copy of it. And so you're talking about increasing burdens on people's right to vote that make [00:15:50] it more difficult for people to vote. If you create an undue burden on the right to vote. Then there's going to be the people who feel that burden and the folks who are least likely to handle that. Um, [00:16:00] you know, tend to be less able to to, you know, you know, they're the ones who don't have the kind of resources that others have. And so when you're burdening the right to vote, you're basically burdening the right to vote of poor people [00:16:10] more than you are of rich people.

Hannah McCarthy: [00:16:14] Now, the other question Jason asked is, does this law build trust or undermine trust? [00:16:20] Now, I can tell you that proponents of the Save act say it will restore trust in American elections. Here's what Jason says.

Jason Carter: [00:16:28] It's an act that does a variety of things, but [00:16:30] it is also one that fundamentally, I think, sort of continues this idea that undermines the trust in the system rather than increases the trust.

Nick Capodice: [00:16:39] All right. I [00:16:40] want to go a little deeper on this one. How would this change make us trust the system less?

Jason Carter: [00:16:46] Number one, you know, you're telling people that the federal government should have a [00:16:50] bigger role. Uh, and that, I think, undermines some of the trust that people have in the system today. I think, number two, it because there is that [00:17:00] is solving, quote, purporting to solve a problem that doesn't really exist. You're perpetuating this idea that we have major, major problems in our election system when we don't. And I think that [00:17:10] continues to build this mistrust.

Nick Capodice: [00:17:12] So we do have this decentralized system in the United States today. The Constitution tells us that states are in charge [00:17:20] of the place and manner of elections, which is why some states have already passed what is essentially their own version of the Save act. But if the federal government [00:17:30] steps in and passes federal legislation, it's basically overriding states that chose not to.

Jason Carter: [00:17:37] By the way, this is not just a Republican versus Democratic issue. [00:17:40] The Democrats have made a variety of efforts to take over some election aspects from the states and give them to the federal government. And I think in general, when [00:17:50] we do that, we have to really assess everything through that lens of is this increasing trust or is this reducing trust in the system? And I think that people generally tend [00:18:00] to to like their local election officials more than they like the federal government. They tend to have more trust. And so I think when you move election rules and regulations away [00:18:10] from the trusted locals and the trusted states to the federal government, it's a it's a downgrade.

Hannah McCarthy: [00:18:15] The federal government has, by the way, in the past, done some sweeping intervention when it comes [00:18:20] to elections and voters in modern history. The 1965 Voting Rights Act was passed to stop race based disenfranchisement in states across the country. Prior [00:18:30] to that, there were amendments to the constitution to allow women and people of color to vote and changes to laws that prevented tribal people, or even, in one case, pretty much any nonwhite [00:18:40] person at all from voting. But these changes were about expanding rights. Jason says the Save act is not that.

Jason Carter: [00:18:49] Why [00:18:50] do you want to make it harder for people to vote. And the answer, I think in this instance cannot be that there is some fraud issue. It has to be there's some Partizan power grab. [00:19:00] And so there are good reasons, and there are bad reasons for the federal government to get involved. But what our job is as as observers of the process, is to figure out how we can bring people [00:19:10] together to do things to solve the real problems in our system without making this partizan enough that it that it again, continues to undermine that valuable trust. [00:19:20]

Nick Capodice: [00:19:20] So, Hannah, I'm thinking about the way you started this conversation, that you have confidence. You have faith. But Jason started this conversation by telling us [00:19:30] that several decades worth of stuff has eroded trust. And I know that studies and polls are showing a frightening lack of trust [00:19:40] in the system and in other people in general. And without that confidence, democracy cannot exist. So where'd [00:19:50] you get it? Huh? Hannah, what makes you so special?

Hannah McCarthy: [00:19:53] Okay. When I don't think that I am all that special, I think that there are a lot of others like me. But [00:20:00] to answer your question, research and second opinions.

Nick Capodice: [00:20:03] Half of our listeners just tuned out.

Hannah McCarthy: [00:20:06] All right, let me put it another way. A [00:20:10] mechanic walks by my car and is like, whoa, big problem. Your car is supposed to have five wheels. This is an emergency. You need to pay me to fix [00:20:20] it right now. Now, the first thing I'm going to think to myself is. Wait a minute. That has never been a problem before. My car is running great. The second thing I'm going to [00:20:30] do is check my manual, which will tell me four wheels are the correct number of wheels. The third thing I'm going to do is talk to my regular mechanic, who I trust, and ask him [00:20:40] if this is really a problem. He will tell me no. I will go on with my life.

Nick Capodice: [00:20:44] So are you saying that everyone who lost their trust got scammed by the government version of the old five [00:20:50] wheel myth?

Hannah McCarthy: [00:20:51] What I'm trying to get at is that it's pretty freaky when someone who is supposed to know things tells you something is broken when you thought it was okay. [00:21:00] Now, my car might not be the smoothest ride in town. It could probably be better. It requires maintenance. I have to file paperwork, but it does what [00:21:10] it is supposed to do. Scammers nick cause extra work for all of us. They make us doubt. They make us check the manual. They make [00:21:20] us double check with people we do trust. This is an extremely annoying thing, not to mention extremely time consuming.

Nick Capodice: [00:21:28] Yeah, but if you didn't do it, [00:21:30] you'd get hit with a $1,000 wheel mod bill that you didn't need.

Hannah McCarthy: [00:21:33] Or I would always wonder. I would start to doubt. I'd worry. There were other things wrong with my car. I'd think the car designers [00:21:40] were maybe wrong all along. Maybe they're the ones scamming me. Every small inconvenience, every oil change would start to feel like proof that this car is a lemon. [00:21:50] I would spiral. It is hard to get yourself out of a spiral.

Jason Carter: [00:21:56] One of the things that we have learned across the world in many, many dozens [00:22:00] and dozens of countries, more than 100 elections, is that once people lose faith in the system, it's hard to build it back, because it's always easy to point out there was [00:22:10] this problem or there was that problem. And and I think the key is that students and everyone else need to get the facts about what the law is, right? It is dramatically [00:22:20] illegal to commit voter fraud. It is dramatically illegal to vote as a non-citizen. And we enforce those laws really well in this country. And so if we are [00:22:30] doing that, and if people hear an anecdote or a story about a problem here or a problem there, make sure that people are putting it into context and saying, you know, maybe you [00:22:40] don't like the outcome of this election, but really it's not because the system is broken, it's because, you know, we've we've done a variety of things to to lose an election.

Nick Capodice: [00:22:50] Wow. [00:22:50] Yeah. You know, we don't say that enough, Hannah. People lose elections, right? For a lot of reasons. They just do.

Jason Carter: [00:22:59] Lots [00:23:00] of people have lost elections in a variety of contexts. And the key to me is just make sure that people understand the facts. Make sure that people understand what we have and what safeguards [00:23:10] are in place, and then not be sore losers. I have won elections and I have lost elections, right? I've served in the state legislature in [00:23:20] my state. I ran for governor ten years ago, 11 years ago now, and I lost. Now I just feel like we all have [00:23:30] to understand that something has happened in our country where there's folks who can't talk to their parents because of Partizan politics. There's folks who have uncles [00:23:40] that they used to love that they can't talk to anymore because of Partizan politics. And we have to figure out a way to break that down. We have to figure out a way to [00:23:50] have people be opponents without being enemies. And if we can't do that in our own families, then how are we going to ask people to do that more broadly? And I just think the polarization [00:24:00] has become alienation in some ways. And so for me, the great thing about being out of Partizan politics in some ways and I still support folks, [00:24:10] I still campaign for folks, I still do the things that I want to do within my political party, but I no longer say that the other side is like an enemy, just per se. [00:24:20] We can't do that. We have to find ways to come back together and to say, hey, I listen to you. I want you to listen to me. Let's have this conversation. And I frankly think [00:24:30] that we're getting back to that, that that pendulum is swinging a little bit, even if it doesn't seem like it out there in the in the realm of the hecklers.

Hannah McCarthy: [00:24:48] We [00:24:40] do not have to let [00:24:50] myths and scams drive us apart. We do not have to be miserable. We do not have to stew in paranoia. We do [00:25:00] have to ask who is making us miserable and why. Who is telling us that people with different opinions are our enemies? [00:25:10] Who is telling us that gentle breeze is a hurricane? Confidence is hard. Anyone who has been a teenager can [00:25:20] tell you that. And I am working really, really hard at it. If democracy is stressed is confidence, then [00:25:30] I have confidence in confidence alone. This is my system. This is your system. And it is not the system that is broken. [00:25:40] I can tell you that much. So I am giving my whole heart to it.

Nick Capodice: [00:25:44] When you wake up, wake up. It's healthy.

Hannah McCarthy: [00:26:01] That [00:26:00] does it for this episode. It was made by me. Hannah McCarthy with Nick Capodice Marina Henke is our producer. Christina Phillips is our senior producer. Rebecca Lavoie is our executive [00:26:10] producer. Music in this episode comes from Epidemic Sound. The Carter Center is doing a lot of work on democracy and trust building. We did not have time to get to it all in this episode, but if you want to learn more, [00:26:20] which is totally up to you, you can check out their website Cartercenter.org. Ask us questions if you've got them at our website civics101podcast.org. Civics 101 is [00:26:30] a production of NPR, New Hampshire Public Radio.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

How can Congress check the president?

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

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

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

Referenced in this episode:

Our Starter Kit series.

Our episode on impeachment from 2019.


Transcript

C101_Congress check presideent.mp3

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

Hannah McCarthy: I'm Hannah McCarthy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: Number two, political appointments.

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

Nick Capodice: Number three is investigations.

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

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

Hannah McCarthy: Uh, you mean impeachment?

Nick Capodice: Sure do.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: But they didn't.

Nick Capodice: They didn't.

Hannah McCarthy: So what stopped them?

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

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

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

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

Eric Schickler: So I think the public.

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

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

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


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

Who pays for public media?

Public media funding makes up less than 0.001% of the federal budget, and calls to defund it have existed essentially since the creation of the CBP in 1967. However, the history of public media is much longer, and more complicated, than the creation of Sesame Street or NPR. 

We revisit our episode from last year about how the government funds public media, through the Corporation for Public Broadcasting, and how that money is spent. We also talk about free press, and the firewall that prevents politicians and the government from controlling the flow of public information and educational programming. 


Transcript

Christina Phillips: Hi, Christina from Civics 101 here - I just wanted to drop in to give you a little about this episode, which is about the Corporation of Public Broadcasting - specifically, we wanted to answer the questions “Why does the federal government set aside taxpayer dollars for public media, and what is public media, in the first place?”Here’s what has changed since that episode came out: President Trump has re-entered office, and has taken a number of steps to discredit and disassemble the free press, including public media. Now, calls to defund public media are nothing new, and they’ve been around since practically the creation of a funding model to direct taxpayer dollars to public media through the CPB more than four decades ago. However, I want to mention a few things that President Trump is doing that are new and that we do not address specifically in that episode. First,  Trump has called for the FCC, that’s the federal communications commission, to investigate NPR and other public media organizations for their use of corporate support. He also recently announced that he had fired three members of the CPB’s five-member board, something the CPB has said he does not have the authority to do, in a lawsuit they filed against his administration. And finally, alongside calling for Congress to defund the CPB, he issued an executive order telling the CPB to halt all funding to public media, which, as you’ll learn more about in the episode, is the kind of political directive that the CPB was created to prevent in the first place.Thanks for listening.

Christina Phillips: Go for it.

Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy, I'm.

Nick Capodice: I'm Nick Capodice

Rebecca Lavoie: I am Rebecca Lavoie.

Christina Phillips: And I'm Christina Phillips.

Hannah McCarthy: And we're doing something a little different today instead of Hannah Mansplains senior producer Christina Phillips is going to explain stuff to us today.

Rebecca Lavoie: A Philaplain.

Nick Capodice: A what Splain,

Rebecca Lavoie: Philaplain, Christina Phillips. She's gonna Philsplain Splain.

Christina Phillips: I don't know how I feel about that. Doesn't work. Mhm.

Hannah McCarthy: We'll keep working. We'll work it out.

Nick Capodice: Yeah. It sounds like something like a waterway. Like a spill. Get it by the Phil Splain.

Hannah McCarthy: Uh, Christina, why did you gather all of us here today?

Christina Phillips: Um, well, as you remember, we were recently in Washington, DC, and while we were there, I decided to go talk to some people who are, I would say, our closest connection to the federal government. And I say our meaning, this podcast, the radio station we work at, which is to say that I went to the offices of the Corporation for Public Broadcasting. Yes, they distribute government funding to public media organizations like ours. And there are several reasons I did this interview. One, the Corporation for Public Broadcasting was created by the federal government, which naturally makes it a civics topic. Two its history and function are embedded in this very democratic idea of a free press that, to quote the Supreme Court in 1971, serves the governed, not the governors. And three, because the idea of the government using taxpayer dollars to fund public media is a political issue.

Hannah McCarthy: It is. Yeah, it's super political. I mean, there are plenty of politicians and voters alike who do not necessarily think that the government should give taxpayer dollars to public media organizations, especially if those organizations are not covering certain issues the way that perhaps they feel those issues should be covered.

Christina Phillips: Usually with an episode that I work on, I'll interview people, I'll write a script for you to record. And this time I wanted to break the format, because I feel like it's worth talking through this as a group because unlike other topics, we're going to be talking about ourselves. And I think that it would be weird to do a traditional episode where we explain a subject that is essentially about our work without acknowledging that.

Nick Capodice: To that end, can we start with just sort of a big old disclaimer? Christina. Okay, everybody. Hi, I'm Nick. Uh Civics 101 is a show made at a public media organization, NPR, New Hampshire Public Radio. And to be clear, NHPR gets money from the federal government through the Corporation for Public Broadcasting.

Rebecca Lavoie: A small amount of money.

Hannah McCarthy: So basically, like what Nick is saying is that some tax dollars go to helping our station run, and we receive those dollars in the form of a grant.

Nick Capodice: And to be very clear, when Civics 101 first started way back in 2017, we got an additional grant on top of, like NHPR's station grant from the CPB to fund the creation of this, this show. And then we got another grant, I think a year later or two years later to continue funding the show. But that was a while back.

Rebecca Lavoie: And we're no longer running on CPB money with this show as of today. So we're no longer a grant-funded show from the CPB, to be clear. Except for the grant that our station gets - the tiny portion of our budget.

Hannah McCarthy: And we're here to talk about the government's role in public media, specifically in relation to the Corporation for Public Broadcasting. Right. I think it would be disingenuous to imply that we do not have some professional stake in government policies having to do with public media, like, do all of us here love and value public media and want to keep our jobs and want our work to be trusted and useful for our listeners? Yes we do. Like so that is our perspective.

Christina Phillips: Yeah. And and also the perspective of the person I talked to for this episode from the Corporation for Public Broadcasting.

Anne Brachman: Maybe one day with technology.

Christina Phillips: This is Anne Brachman. She's the senior vice president of external affairs at the CPB. And basically her job is to spend every day on the Hill talking to legislators about how public media works and why it matters.

Anne Brachman: We try to get to the Hill every single day to talk to members or their staff, and we really bring in a couple pieces of paper. One is the amount of money from CPB to all the stations in their state or district. And then we have what we call a state story. So here's all the things that CPB support enables services wise or content creation in the state. So they can really see the value of the appropriation locally serving their constituents. Okay.

Christina Phillips: So I'm wondering, um, does this sound like any other kind of job that you're familiar with?

Nick Capodice: Yeah. So my question was, is she registered as a lobbyist or is that is it not lobbying? What she's doing?

Christina Phillips: Yeah. Do you want to just define what a lobbyist is? And then I can tell you why she's not.

Nick Capodice: Oh, fascinating. Of course. So a lobbyist is somebody who spends a certain amount of time, and I think also a certain amount of money talking to people in Washington, DC, talking to politicians to not necessarily convince them to do what they want, but just to provide them with as much information as possible to benefit their industry that they represent. One thing that kind of shocked me from another episode that I did is that lobbyists don't change your mind. They just provide information. They help you write a bill. They help you get something through legislation that usually never happens. So a lot of members of Congress really depend on lobbyists. And lobbyists will tell you that they are right to lobby is enshrined in the Constitution in the First Amendment. Yeah. So lobbyists are fascinating, but I'm desperate to know why she's not a lobbyist even though that's what she's doing.

Christina Phillips: Yeah. So the difference here is that so her salary and the salary of her colleague who go to the Hill that comes out of CPB funding and that funding comes from the government, they are not paid by any sort of outside interest. They, like our station, couldn't donate a bunch of money to the CPB to help the CPB advocate on our behalf or on behalf of public media.

Anne Brachman: Sometimes we'll go up and we'll host briefings with congressional caucuses. There's a Congressional Public Broadcasting Caucus, the Congressional Rural Caucus, the Congressional Fire Fighting Caucus, public safety caucuses, because public media touches all these different aspects of our nation. And so it's a lot of educating. We are allowed to do technical advice. So sometimes a committee, when they're writing or drafting legislation, they will reach out to CPB and say, how would this impact public broadcasting or CPB. And in that regard, we do have a statutory recognized role to engage with and provide feedback.

Christina Phillips: And I do feel like we've been saying this phrase, public media, public broadcasting a lot. And that definition didn't really come from nowhere. And so we're going to talk about all the things a station would have to do to get the CPB funding later. But is there any sort of definition, like how would you guys define the difference between public media and, say, commercial media?

Rebecca Lavoie: Well, for one, public media is, generally speaking, a not-for-profit organization that isn't funded by commercial interests, nor does it exist to make a profit at the end of the year on its balance sheet. So that's a big, important component of it. And public media has to abide by certain federal communications guidelines in order to retain its status as, quote, public media. So those are those are some of the fundamentals. Yeah.

Christina Phillips: I think the the key thing here is that public media is not serving any sort of investors or stakeholders. I think there are three words that I see kind of all over government regulation that I want you to keep in mind when we talk about public media. And those are noncommercial, informational and educational. And that you see a lot, especially in regulations from the FCC, which is the Federal Communications Commission, which is the agency that regulates radio, television, wire, satellite and now cable communications. And despite the fact that the FCC was created in the 1930s, Congress didn't actually establish the CPB until 1967, which I think is kind of interesting. And I want to talk a little bit about the history of how we got from there to here. And so I think the first thing that stood out to me is that the FCC decided back in the 1940s to reserve certain frequencies on radio broadcast for this public programming. So specifically, you're listening to an FM radio, you know, you can usually find a public radio station in like the lower end.

Rebecca Lavoie: Or down at the top.

Christina Phillips: Yeah. Yeah, exactly.

Hannah McCarthy: Most people who are listening to this are going to hear ads.

Christina Phillips: Yeah.

Rebecca Lavoie: Right. Yeah.

Hannah McCarthy: So we I think we have to talk about why Civics 101 and tons of other public media podcasts do run commercial ads. We have to talk about it.

Rebecca Lavoie: Not all public radio podcasts run ads. To be clear, it's a choice that we've made here at New Hampshire Public Radio as part of our business model. What you hear on public radio stations, when you hear companies mentioned, those are not advertisements. It's called corporate underwriting. And essentially the difference between those messages and advertisements is that they are not allowed to have, quote, calls to action, and they're not allowed to have value statements in them, such as so and so. Law firm is the very best law firm at doing wills and estates or whatever. They're not allowed to have those kinds of value statements, and they're not allowed to say things like, go to our website in order to get a sale on blank. So those that would be a call to action. Those ads are not allowed to do that. Well, you hear instead is so and so. Law firm is proud to support this public radio station and its journalism since 1985. Uh, for more information go to so and so law firm.com.

Nick Capodice: That is if you want - you know you don't have to.

Rebecca Lavoie: It's not a value statement and it's not a call to action. So that is what is allowed. And it's basically um, it's being sold to the company as you are supporting our work and your brand is associated with our work. So it's sort of being sold like an ad, but it does not present like an ad. That's an FCC rule on demand. Audio made by public radio stations is not bound by the same FCC rules as our broadcast. So we are allowed to monetize our on-demand or podcast audio with ads. We're allowed to and it does not fall within those guidelines. So here at NPR and at some other stations, we have made the decision that in order to be able to do what we do, we are operating in a commercial podcast space, that we should participate in an economy that allows us to make a little bit of money just to fund some of what we do through commercial advertisements. So that's why you hear ads on our podcast.

Christina Phillips: Okay, so that's commercials not okay on public radio or television broadcast unless they're following those rules you just laid out, Rebecca. And one other thing I'll mention is that on broadcast and on-demand, we do not endorse political candidates or run any political advertising of any kind. Now, back to the history the FCC has codified into law the difference between public broadcasting and commercial media, and it has set aside space on the radio dial for public broadcasting, specifically that noncommercial, educational informational programming. And then a little thing called television came along.

Archive: The Tonight Show Starring Johnny Carson.

Christina Phillips: By the 1950s, more than half of Americans have TVs in their home. We've got I Love Lucy, Bonanza, The Tonight Show. We've got commercials.

Archive: Salads tastes so much better with Best Foods, real mayonnaise because of best foods, superb ingredients.

Christina Phillips: And we've got the chair of the FCC, Newton Minow, calling the television landscape a vast wasteland.

Archive: Keep your eyes blue to that set until the station signs off. I can assure you that what you will observe is a vast wasteland. You will see a procession of game shows, formula comedies about totally unbelievable families, blood and thunder, mayhem, violence, sadism, murder.

Christina Phillips: Then in 1952, the FCC sets aside certain television channels for noncommercial educational television. And one thing that Anne talked a lot about was the idea was to have television channels that children could watch, that families could watch, like there's something that you can kind of set on and not worry about it.

Anne Brachman: And Chairman Minow at the time was instrumental in really pushing and advocating for educational television. In 1962, Congress recognized educational television. But we're still five years before the Public Broadcasting Act came along. But they said, yeah, there should be this thing for expanding educational television. So they set aside about $32 million in matching funds to really help construct these new stations across America. They more than doubled the number of educational stations from about 80 to about 190.

Christina Phillips: And this is when we start seeing the kind of programming that defines public media. Today. We've got the documentaries, the national educational shows, including the first American broadcasting of Mister Rogers Neighborhood, the kind of programs that you think of when you think of PBS nowadays.

Rebecca Lavoie: These are a lot of local programming, a ton of local like puppet programming and like local hosts doing like interactive stuff with kids and stuff like that. Right?

Christina Phillips: Yeah, yeah. And I'm actually this is just a random trivia question. Do any of, you know, the longest continually running television show in America? It is not public media, is it?

Rebecca Lavoie: General Hospital?

Nick Capodice: Is it a soap opera or is it like.

Christina Phillips: It's not a soap opera? It's not.

Nick Capodice: But it's not public media.

Christina Phillips: No, it's not public media.

Hannah McCarthy: Is it that weird show?

Christina Phillips: Probably not.

Hannah McCarthy: Okay. Never mind. Okay.

Nick Capodice: A news show, like 60 minutes.

Christina Phillips: It's Meet the Press. It's not C-Span, it's. It's Meet the Press on NBC.

Archive: Welcome to Sunday. It's Meet the Press. From NBC News in Washington, the longest-running show in television history. This is Meet the Press with Kristen Welker.

Christina Phillips: That was started in 1947, and CBS Evening News was a close second in 1948. But that has like over 16,000 episodes, whereas Meet the Press only has 3600. So eventually we get to 1967. This is when the federal government passed the Public Broadcasting Act, which establishes this government appropriation for public broadcasting.

Anne Brachman: So specifically, the Public Broadcasting Act authorized the creation of the Corporation for Public Broadcasting. And we are a private, nonprofit, nonpartisan corporation. And our purpose really is to facilitate the development of a public telecommunications system, providing universal access to programs of high quality diversity, creativity, excellence, innovation, um, but also with a really strict adherence to objectivity and balance.

Christina Phillips: And shortly after the CPB was created, it established NPR and PBS, National Public Radio and the Public Broadcasting Service. These are independent nonprofit media organizations that are not in any way owned or operated by the government. Um, they have their own newsrooms. They make their own national programming that then can be purchased and distributed by local public media stations. And NPR and PBS are not the only nationally focused public media organizations that do this. But I do think of this as kind of like the consolidation and rebranding of some of those big existing national public media institutions that were already in place before the CPB was created.

Rebecca Lavoie: But they don't exclusively get their funding from the CPB anymore, right? No. They also raise money through philanthropy, other grants. Yes.

Christina Phillips: NPR, for example, they say that they get less than 1% of their operational funding from CPB. It's a little bit more complicated. We'll talk about that. So I asked Anne how much money the CPB gets and how that money is spent, how it's distributed among stations. And this is what she said.

Anne Brachman: Currently in fiscal year 2024, our appropriation is $525 million. CPB is capped at 5% for our administrative costs, which is our building rent or salaries. Um, just basic, you know, operational expenses. Uh, Congress says we have to spend at least 6% on system support, and in that we pay for all the music, royalties, copyright, licensing fees, research on behalf of the system. Most of our funding, more than 70% of our funds go right out the door to all the stations across the country 1500 locally owned and operated, and so stations can decide how best to use them to support their community. Um, that could be local content creation, educational outreach, local journalism and news, or to buy national content as well. Congress does provide CPB with a separate appropriation $60 million each year to provide for the satellites, the fiber and the ground to distribute all this content. Our stations also most people don't know are part of our nation's public alert and warning system. Um, and so when a alert, you know, we think about it, we get it on our cell phones today. But how did that alert get to your cell phone? And it's through public media's, um, satellites in the sky and the transmitters on the ground as well, sending that to your local service provider. We've also been major investors in early childhood education programs, both for the broadcast, but all the streaming and the games and where kids are these days and those shows, I would say they're not inexpensive to make.

Christina Phillips: I think this is something that's really important. There was a lot of debate about the government's role in this media that it was now funding. There's a difference between government run media and public media, which we alluded to earlier. There's there's this idea that like, if you're funding this media, like will you have ownership of it? Um, so I'm wondering, can can someone give me a definition of government-run media?

Hannah McCarthy: So government-run media, I think pretty broadly, you could say is considered any media that is owned and operated by or extraordinarily influenced and controlled by the federal government. I think that the sort of insidious, scary embedded element of that is government run media is almost de facto propaganda. Government-run media is basically a government arm, right. And the government's going to represent itself within its best interests. Right?

Nick Capodice: So when we did our episode on Is America the freest, you know, the freest country in the world? We talked about the freedom of the press. I learned about some countries that do have state-controlled or government-controlled media. And what's interesting is it's always the radio. The radio is the form of media that the government always tries to control, because it's free and because it's cheap and it's most accessible. Like you can be working and listening to a radio. You can't be working maybe in watching a TV at the same time.

Anne Brachman: CPB has no role in content or editorial decision making. And Congress was very clear, and it was a big, intense debate during the making of the Public Broadcasting Act. You know, someone asked during the 67 debate, how can the federal government provide a source of funds to pay part of the cost of educational broadcasting and not control the final product? And their answer to that was CPB. Congress said that one of the fundamental reasons for establishing the corporation is to remove the programming activity from governmental supervision. So CPB was set up to be that heat shield, that firewall. We do have the objectivity and balance requirements within the act, but at the same time, we are told we cannot get involved in any editorial decision-making or control of stations or content. So there's tension between those two requirements.

Christina Phillips: Now, just because CPB does not get involved in any editorial decision-making, that doesn't mean it has no oversight on what kind of programming IT funds at all. The CPB is required to maintain this objectivity and balance requirement that Anne referenced, which basically means that it sets strategic goals for public media and lays out the kind of projects it will fund, and keeps an eye on how public media organizations that get funding are living up to those goals. And those goals are set and overseen by CPB management and a board of nine people appointed by the president, approved by Congress. That's required to have no more than five people from the same political party. They're made up of people who work in public media or have some sort of media background. And Anne gave me a summary of some of those strategic goals right now.

Anne Brachman: They came up working with CPB management with the Three D's Digital Diversity and Dialog, and the Three D's Guide. CPB's investments in all of our grant-making and digital is the innovation, making sure we're reaching Americans on every platform and how they want to consume content and, um, just being more cutting edge, diversity, age, geographic viewpoint, gender, ability, disability, race, ethnicity and then dialog. How are we engaging with our community?

Christina Phillips: Thoughts?

Nick Capodice: Can I relate to you all? You know, the process from which our show got started? Absolutely. I would love that. Yeah. So I was one of three people who went to Washington, D.C. to talk about Civics 101. And this was in order to like, secure further funding to make sure the show could exist. The people from the CPB that I met with and two others met with, they did say, you know, this is the kind of thing that would get support. You know, this is the kind of program, but you have to defend it. You have to like, say what you're going to do as a show, and then we will decide whether or not that meets all our criteria. But initially you can say there's no, you know, editorial process. But we were advised like, this is what's going to fly and this is what's not. But once that was done to a much broader point, since I've started working on the show, I have not once for a second had anybody communicate with me to be like, hey, you're still doing X, y, Z, or like, you know, are you following up with blah blah blah? Like, it's our show, we make it and nobody tells us anything, right?

Hannah McCarthy: Yeah. And I like I want to talk about this a little bit if I may like. So this idea of okay, so the CPB is being described as like this firewall between the government and the public radio station. And I think also like there is a firewall between the CPB and the radio station itself. Right. So the like the driving force of that is the understanding that the proliferation of information to the American people is a very powerful thing, and that if the government is allowed to control that, that is not the free flow of information, truth and the press. Right. And so what I think is kind of remarkable about the creation of the CPB is that it's one of these instances of American history in which it's like there's something very ideological about it, writing down a law that, yes, we're going to support the free press because the free flow of information that is not influenced by the government, by anyone in charge is really, really important. Because, Nick, you know, you're describing this experience of not being influenced, not being told what to say and what not to say.

Hannah McCarthy: The whole democratic project. Right? Like what keeps happening in America is that the government tells us we have something. And so we say we have this, this is ours, right? You told us we have it. And like I defy you to show me a journalist who does not firmly believe in that. Right. Like there's nobody on staff here. There's no like. And I know Rebecca, our executive producer, stands behind this very much like the protection that the media yields over the ability to find the truth and report the truth without anyone telling them they can't. That's right, is so vital to us that the stink that we would make, right? Yeah. Like, yeah. Like the you would hear about it because we're reporters. Like it would be in the news and you do on occasion come across a story where reporters like, I didn't like this and I'm going to put it in the news, you know, like I'm going to make sure the American people know if anyone tries to influence me.

Christina Phillips: This is a conversation that's literally happening around us right now. We have an NPR media reporter who shared, like recently, David Folkenflik, about an experience he had with an executive at The Washington Post who was trying to pressure him to not do a story that would make him look bad. And David Folkenflik is like, okay, no, this happened to me. This is an experience I had, um, where this person was compromising the ethics of journalism, and I'm not okay with it.

Archive: So you're saying that in a conversation that wasn't off the record, he made a quid pro quo offer to you. Drop your story that I don't like, and I will give you a story, an exclusive interview that I do like. Is that it?

Archive: To misquote The Godfather, he gave me an offer I had to refuse. Okay.

Archive: And you did refuse this. You went ahead with the...

Nick Capodice: Can you even imagine if any journalist that we know and work with, like, got an email from the Corporation for Public Broadcasting was like, hey, can you make sure to cover this story? Like, it would be like Watergate? Like nobody would shut up about it.

Christina Phillips: Well, actually, I do have an example of a time when the CPB did try to weaken that firewall or sort of stepped over that firewall. Is anyone familiar with this? It was in the early 2000.

Rebecca Lavoie: Rang a bell. Keep going.

Christina Phillips: Okay, so Kenneth Tomlinson was the chairman of the CPB board in the early 2000. He was appointed in 2003 by George W Bush. And he was pretty outspoken about the fact that he found certain programming on NPR and PBS, uh, to be too liberal. And so without permission, he used over $10,000 in CPB funds to commission a conservative consultant to write reports about Partizan bias on public media programs, including a show called now with Bill Moyers on PBS and The Diane Rehm Show, which was a public radio program. And one thing that this consultant was doing was tracking things like how often the president was criticized on the show, for example. And then the other thing he did is that he pushed for Counter-programming to Bill Moyers on PBS in the form of a talk show with conservative columnists from The Wall Street Journal. So two big problems here. He used CPB funds without permission to hire a consultant with a political agenda to study programs to determine whether or not they had political agendas. And then he tried to have an editorial role in PBS by telling them what kind of programs they should have, down to the specific hosts he wanted in the seats. And he did end up resigning from the board after he was investigated by CPB's inspector general. So that is one example of how the idea of nonpartisanship and a strict firewall isn't always impervious to political influence, and then how that played out. And after a quick break, we're going to talk about what stations like ours must do to get funding from the federal government and how that money is used. We'll also talk about the difference between us and NPR, because yes, we are different.

Hannah McCarthy: All right, we're back. This is Civics 101 from New Hampshire Public Radio. I am Hannah McCarthy. I'm here in the studio today with Nick Capodice, Rebecca Lavoie, Christina Phillips, of course, and Catherine Hurley, who is joining us for the summer. And we are delighted to have. And Christina, you are walking us right now through how public media works, and you're going to tell us what a place like us, like NPR needs to do to receive government money.

Christina Phillips: Yeah. And first, I want to answer one of the biggest questions any of us gets at any time. Um, when we say we work at NPR, which is are we NPR? Do you work for NPR? Do you know Terry Gross?

Rebecca Lavoie: Terry Gross doesn't work for NPR?

Nick Capodice: No, no, WHYY.

Christina Phillips: Another member station, is anyone does anyone want to take a crack at the like what is NHPR compared to NPR? How are we connected?

Rebecca Lavoie: Yeah, I answer this question all the time. Okay. Uh, so NPR is essentially a big vendor of ours. I mean, that's the best way to describe it. They're not like a parent company. We are an independent nonprofit. We buy programming from NPR to license and play on our airwaves. So basically we are buying programming from NPR, All Things Considered, uh, Morning Edition, you know, other programs, and we sort of have a co-branding agreement with them, a licensing co-branding agreement, but we pay them for that. Like we pay them a big pile of change for that. So they're basically like a giant vendor for us. It's sort of how it works. And we have a like a loose relationship with them. And, you know, station leadership, our station leader is not at this point in this position, but station heads like ours are actually on the board of NPR. So they actually have a little bit of control of like how NPR operates and so forth. But yeah, now we're actually independent but associated with buy content. Yeah.

Christina Phillips: And I will say that the big thing there is that we have our own newsroom, we've got our own journalists, we make our own stuff, and we can also purchase programming from other affiliate stations like ours. They're called member stations.

Rebecca Lavoie: And other networks. We purchase programming from APM, PRX, which is another independent nonprofit. There's other organizations like that from which you can buy programming. Wdiy distributes Fresh Air. There's other distributors, other networks that actually sell stuff to stations like ours as well.

Rebecca Lavoie: Music swell. Next topic.

Christina Phillips: I want to talk through some of the things that you need to do in order to qualify for CPB funding. So you could be a public media organization and still not qualify for CPB funding. There's like an additional layer of things you need to do in order to like get that money. And so there are half a dozen big ones. We already set a couple, which you have to be a nonprofit or affiliated with a university school or even a local government. And then another thing that we alluded to is that we cannot run political advertisements or endorse political candidates. So unlike, you know, The New York Times being like, we have endorsed whoever for president, none of that. And we will never run like a political ad, right?

Nick Capodice: It's so weird when I listen to other radio stations, you just driving around and all of a sudden it's like a presidential candidate being like, vote for me, Donald Trump. Like what? This doesn't happen on the radio. Yeah sure does.

Christina Phillips: It says a lot about your listening habits that you're like, wait a minute.

Anne Brachman: You also have to have a certain number of employees. You have to have for certain stations, a community advisory board in your community.

Christina Phillips: It has to report its finances transparently to the public, in our case, our nonprofit 990. Like there's other forms that we share basically saying like, here's where all our money is going. You can look at those all the time. I love looking at nonprofit 990. So like one of my favorite things, um, it has to be overseen by a board of directors that are invested in the community that the programming is serving and don't own or profit from their board service. So NPR's board has a mix of people who are living in New Hampshire. The board is beholden to the public that this station is serving. And then the other thing that I thought was interesting is that in order to get CPB funding, you have to have money in the bank already.

Panel: Hmm mhm hmm hmm hmm hmm.

Anne Brachman: For a public television station, for example, you have to have at least $800,000 in private, non, um, federal support, which means viewers like you, it means local foundations, local businesses, maybe state support, because CPB is determined over the years that you need at least $800,000 to offer a really strong public broadcasting service for public television, um, public radio. We also have certain minimums you have to have financially. So the most is $300,000 if you're a larger station, if you're a rural station minority station, it's $100,000.

Christina Phillips: The CPB is not just going to go out and be like, I think there should be a public radio station here. We're just going to dump a bunch of money and hire people. Like, there has to be somebody in a place with some capital saying, we want to start a station or we're already a station. We're doing all these things you need us to do.

Nick Capodice: That makes sense. You know, you don't want to back a bad pony. That's right, that's right. Yeah, yeah.

Christina Phillips: As I had mentioned earlier, NPR has reported that it only gets about 1% of its budget from the CPB. But that's also acknowledging that NPR, a lot of its budget comes from money that stations like ours spend to purchase NPR programming. So NPR would not get a lot of its money if there weren't stations like us who get funding from the government to buy NPR. programming is sort of the circle. And it's also worth pointing out that there are a lot of incentives and tax breaks on the federal, state and local level for public broadcasting, public media. I say that because the idea of public media only existing because of this government funding through the CPB, it's not a complete picture. And the idea of the government creating a space for public broadcasting has existed for a really long time, way before the government was like, okay, we're allocating this money to these stations, right?

Rebecca Lavoie: Can I just clarify something? So what you just basically said is NPR claims don't get less than 1% of its funding from the CPB. However, a station like ours that gives hundreds of thousands of dollars to NPR every year, no small portion of that is from the grant we get from the CPB. So we're essentially giving the money we got from the CPB back to NPR. So they actually get a lot of CPB funding just from other stations.

Christina Phillips: Yes. And this I think, is relevant when we talk about some of the legislation that has been proposed to defund CPB or defund NPR.

Rebecca Lavoie: Got it.

Nick Capodice: Let me just ask. A station like ours. NHPR. What percentage of our budget is money that comes from the CPB?

Christina Phillips: Do you guys have a guess?

Hannah McCarthy: I've looked it up.

Christina Phillips: Okay, so it's 6.3% for the fiscal year of 2023.

Hannah McCarthy: Yeah, it's like surprisingly low.

Christina Phillips: Yeah. And if you wanted to by the way, go to Nhpr.org. Or you can just Google NHPR 990. You can look at our 990 and it will break down how much money we got from federal grants.

Rebecca Lavoie: So it's it's more than half a million dollars. And I know that that's about what we pay NPR for our programming?

Christina Phillips: Yeah. Yeah. I mean I could look it up and do a it's a pretty close match. Like it's it's a lot.

Christina Phillips: Hello Christina from the future breaking in here. So listen I went back and looked this up. And in the last fiscal year that's July 2022 through June 2023, we actually spent more money buying content from NPR than we got from the CPB. I'm rounding here for simplicity's sake, but we got $580,000 from the CPB. That's money from taxpayers, the federal government through the CPB, and we spent around $739,000 on NPR programming. Overall, we spent about $900,000 on what's called affiliate program acquisition fees. That includes the NPR programming and then also programming we purchased from other public media organizations. But yeah, most of the money we spent acquiring national programming went directly to NPR, and it was more money than we got from the CPB. And that programming includes national and international news that you hear in the morning, in the evening, throughout the day, from shows like Morning Edition, All Things Considered and Weekend Edition.

Christina Phillips: The other thing is, I'll say is I asked Anne. The average public television station gets 18% of its funding from the CPB. The average public radio station gets about 8%, but rural stations, including tribal stations, might get 80, 90, 100% of their budget from the CPB. In the last thing is that a public media organization does not have to be affiliated with NPR or PBS in order to get funding from the CPB.

Anne Brachman: You know, people think that to get CPB money, you have to be a PBS member. You have to be a PBS NPR member. And that's not the case. There's nothing in the Public Broadcasting Act that says CPB can only give dollars to those stations who belong. We have about a handful of public television stations. I call them hyperlocal, meaning they're not PBS members, but they do independent programming, local programming. And on the NPR side, about a third of our stations are not, you know, NPR member stations, but they're doing music and content, you know, music programming and jazz and classical and local talk. Some tribal stations are keeping their local native languages alive. We have one tribal station that's 100%, and it's also a soul soul service station, meaning there's no other broadcaster within a 50 mile radius of that station. And so rural stations, typically, um, are about 19% of a rural station's budget and more than half of all of our rural grantees, which is about 135 stations, rely on CPB for at least 25% of their revenue. And we have 50 rural stations, many on Native American reservations, who rely on CPB funding for at least 50% of their revenue. And rural stations have more challenges as well. I mean, they have more infrastructure to maintain and operate over a larger geographic area with fewer viewers or listeners there to help financially support the station. And if it weren't for CPB and the federal investment, those Americans would not have access to news or informational educational content or even cultural programming.

Christina Phillips: So now we need to get to the thing. The political thing. Are you ready for the political thing? Yeah. Okay.

Archive: From 480 million to 0, that's the Trump administration's budget proposal for the Corporation for Public Broadcasting, the organization behind the GOP.

Archive: Sponsor of the bill says a government trillions of dollars in debt should not pay for non-essential services. Indiana Congressman Jim Banks, among a growing list of conservative lawmakers to push to defund NPR with a new bill that would outright block federal funding for the news organization, accusing Congress of spending taxpayer money on, quote, low-grade propaganda.

Christina Phillips: So there was a piece of legislation that was introduced from Representative Jim Banks. He's a Republican from Indiana called the defund NPR act. And.

Rebecca Lavoie: Okay.

Christina Phillips: And so this is, I think, interesting because it gets back to that idea of like NPR only getting quote unquote, 1% or less from the CPB, but then actually getting a lot of money from stations like ours that use the money that we earn and get in grants to buy their programming. The demand in that bil is that no federal funds may directly or indirectly be made available to use or support an organization named in subsection B. In subsection B, it was NPR, um, including the payment of dues or the purchase of programming from such an organization by a public broadcast station using federal funds received by such station. So that's a little bit confusing. Essentially, what they're saying is that NPR cannot get funding from the federal government, and anyone that gets money from the federal government is not allowed to use federal funds to buy NPR programming.

Rebecca Lavoie: Wow.

Nick Capodice: Yeah. You know what's interesting, I've heard in my whole life, ever since I was a kid, this call to defund NPR and PBS, too, at times, what I think is kind of funny is that everybody who is in the camp of let's defund it always says the same thing, which is, well, we can't because they're just going to say, you're going after Cookie Monster and Big Bird and wow, we can't do that. You know that some people look at the acquisition and creation of Sesame Street as like, a nefarious way to make sure that you never lose funding from the government.

Archive: Bernie Madoff, Ken Lay, Dennis Kozlowski, criminals, gluttons of greed, and the evil genius who towered over them. One man has the guts to speak his name. Big bird. Big bird, big bird. It's me, big bird. Big yellow, a menace to our economy. Mitt Romney knows it's not Wall Street you have to worry about. It's Sesame Street. I'm going to stop the subsidy to PBS. Mitt Romney taking on our enemies no matter where they nest.

Christina Phillips: And I will say, I did go and look through the funding history of the CPB, like over years. And there are certainly years where you see the funding appropriation, like, not go up for a while or maybe go down a little bit and it is apportioned. Is that the word like appropriated appropriated um two years in advance. So CPB funding for, you know, 2026 I guess would be decided in the 2024 year. The CPB has never been defunded, but there have been fluctuations that you can kind of trace across eras of Congress, most typically when there is a Republican-led Congress. That just seems to be how it is.

Rebecca Lavoie: So one thing that I've always heard is that one of the reasons why these bills ultimately fail is that even conservative lawmakers ultimately, who come from very rural districts, know that their constituency would be very upset if public media were to go away, because in some places that's the media, like public media is the TV because there's no broadband, there's no other stuff. That's the media. So that that's something that I have heard every time this conversation happens.

Christina Phillips: Yeah, I don't have a straight answer on that. But one thing I will say I think is interesting and maybe it's just my gut instinct, um, is that public media is sort of super entrenched already. Uh, for example, the CPB works with FEMA and has received funding from FEMA to help implement emergency broadcast infrastructure across the United States, which, if you've seen the news lately, about 911 systems going down for several hours in Massachusetts or patchy emergency service communications all over the country in the past few years, this is an essential service, and the CPB is essential in helping to build and maintain that kind of infrastructure. Now, that bill that Jim Banks proposed wouldn't necessarily impact that kind of funding, but it's still a good reminder that federal funding for public broadcasting goes far beyond funding individual media organizations like NPR and all of those individual public stations. The 1500 plus out there, with the exception of just a few, don't get most or even half or even a quarter of their money from the federal government.

Hannah McCarthy: Okay. But very, very importantly, right. If we go back to the reason that NPR exists, if we think about the original idea behind the Corporation for Public Broadcasting, behind National Public Radio, the idea is to bring in that firewalled like closest thing to the truth that you can national news to all of these communities around the country. Right. And so if you say you can no longer acquire and not only can you no longer acquire, but like the institution does not exist, that has the most money, has bureaus all around the world, is able to pay for reporters absolutely everywhere and gather national and international news in a way that a local radio station is not capable of doing. What that would mean is that these communities no longer have access to this noncommercial, national and international news. You know, I know that there are a lot of people out there who want something different, right? And who are in total support of that. I'm just saying that that's what it means, right? Like that you lose that access.

Rebecca Lavoie: Hmm.

Nick Capodice: Quick question, Christina, how much money does the CPB get every year? Like how much of my taxes are going towards the CPB?

Anne Brachman: Funding for CPB each year is less than a cup of black, a large cup of black coffee at McDonald's per person per year. And I think a lot of Americans, they will say, oh my gosh, we're paying so much money for our nation's public media service. I'm like, actually, if you go to McDonald's, you get a better bargain with all the services you're getting from CPB.

Nick Capodice: I have final thoughts, but I've talked too much lately, so I'll let someone else talk.

Christina Phillips: So I don't have any final...you can.

Rebecca Lavoie: You can sum it up.

Nick Capodice: Yeah, yeah. Let me just say to anybody out there we, you know, the five of us in this room work at a public radio station. So trust me when I say this in terms of, like, what is objective? Christina, before you worked with us, what show did you work on?

Christina Phillips: The Exchange.

Nick Capodice: What's the Exchange?

Christina Phillips: It was a live call-in news talk program.

Nick Capodice: Okay. And you worked on that show for a while, and you helped book guests on that show? Um, let me just give you a hypothetical. Let's say you had a guest on in the morning who was going to talk about climate change and how, like, a glacier is melting and people are going to what, someone's going to come up to you and say, who should the other guest be on the show?

Christina Phillips: Yeah. If we were, it would be, you know, well, what other perspectives do we need to bring in? And if it's not going to be the expert in the room, we have open phones.

Nick Capodice: Yeah. So we at public radio stations, more than anyone self-police to try to find objectivity, to make sure that we're giving it a fair shake. I think sometimes to a fault.

Rebecca Lavoie: That's right. And I will say working with the two of you, sometimes you worry too much about the perception of bias when you're just telling the truth.

Nick Capodice: Yeah.

Rebecca Lavoie: And this is a kind of editorial conversation we have all the time. And I'm like, guys, just let your truth flag fly.

Nick Capodice: Oh, did you have to use a flag?

Hannah McCarthy: And I also I just want to say really quick because like this conversation about like objectivity versus subjectivity. And I will just I am speaking only for myself. Hannah McCarthy, the individual, not for Civics 101 and like not for this station. Objectivity does not exist like no human being is capable of it. Like that would be so interesting if we were like, I would love to do a story about. I'll just say for me, what I am doing on a daily basis is genuinely trying to find the closest thing to the truth, which, by the way, is a lot harder than it seems because we talked to a lot of people who have different perspectives, who are scholars, who are politicians, etc., who are like either intentionally or not, representing their own bias, their own subjectivity. And so sometimes we try to triangulate or sometimes we just like, read everything we possibly can. Often the closest thing we can get to the truth is like finding the law and like saying like, okay, so like the law says this, and if that person says this and it conflicts with the law, then we like we know which one is true because one thing is like written down, right? Um, by Congress. But my point is just like it's it's less that we believe that we are like, like wholly capable of presenting objectivity. I don't think it's possible, but every single day of our lives is committed fully to trying not to listen to the parts of ourselves that are subjective, and trying to seek out the closest thing to the truth and give that to people. Because, like, my subjectivity doesn't help you. Like my personal perspective does not help you at all. The truth will help you do what you will with the truth. Apply your subjectivity to the to the truth. I will just try to find it and give it to you.

Rebecca Lavoie: I think it's important to understand too, that you don't always like the truth, right?

Hannah McCarthy: No you don't.

Rebecca Lavoie: And I would say we love getting part of our funding from an organization that, you know, doesn't interfere, but we also would do what we would do without it. Let's be real.

Christina Phillips: Yeah. And to Hannah's point about trying every day to get as close to the truth as we possibly can, um, I'll just say there's absolutely an argument that the federal government should not give money to public media organizations. You listener may feel that way. You may have felt that way before you listened to this episode. And whether you come down on the side of yes, the federal government should pay for public media or no, it shouldn't. If this episode helped you feel more informed in that opinion. If you learn something, then I've kind of done my job right.

Hannah McCarthy: That is it, right?

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

Christina Phillips: Hey, it's me again. Just me and this good 'ol microphone alone by myself. Here are our credits.

Christina Phillips: This episode was produced by me, Christina Phillips, and edited by our executive producer Rebecca Lavoie, with help from our host Nick Capodice and Hannah McCarthy and our summer intern, Catherine Hurley. Catherine, we are so happy to have you here. And, uh, by the way, since we recorded this episode, originally, there has been more legislation introduced to defund the Corporation for Public Broadcasting. You can find links to more information about all of this legislation in our show. Notes. Music in this episode from Epidemic Sound and Chris Zabriskie Civics 101 is a production of NHPR, New Hampshire Public radio.


 
 

Follow Civics 101 on Apple Podcasts, Spotify, or wherever you get your podcasts.

This podcast is a production of New Hampshire Public Radio.

What happens when we don't trust democracy?

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

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


Transcript

whathappenswhenwedonttrustdemocracy.mp3

Hannah McCarthy: Nick, I have a confession to make.

Nick Capodice: I knew you ate those plums, Hannah. No, I was saving them for breakfast.

Hannah McCarthy: You know it's not the plums. It is worse than the plums.

Nick Capodice: Worse than the plums.

Hannah McCarthy: All right, here we go. Before I was a journalist, I never, and I mean never did any research before [00:00:30] I voted.

Nick Capodice: All right. Grand scheme of things, Hannah.

Hannah McCarthy: There's more.

Nick Capodice: Uh oh.

Hannah McCarthy: The chances of my knowing who my congressional representatives were at any given time was quite slim. I could not have told you the real difference between the House and the Senate. If the president was writing executive orders. I wouldn't have known, Nick. I probably could have told you two out of the 27 amendments. The amendments. [00:01:00] Nick.

Nick Capodice: It's a grim picture, Hannah I'm not gonna lie, but we, as in, you know, you and I, we do have an outsized investment in these things. You're a different person now.

Hannah McCarthy: I am. And, Nick, the reason I call this a confession, it's not just because I'm the host of a civics podcast. I feel genuinely vulnerable, admitting how vulnerable I once was, because now I've got my armor. I [00:01:30] know what is going on around here. I know when something goes wrong around here, I know what I can do about it. That is protection. That's strength. And why should I be safer and stronger than other people? Why should I know where I am, what I am capable of, what I have the power to do while other people don't?

Nick Capodice: Yeah, that doesn't make a lick of sense.

Hannah McCarthy: Mccarthy I agree, The stuff that I know. Nick, that isn't an [00:02:00] indulgence. It's the safety and security and strength that we all need. And I'm not the only one who thinks so.

Brandice Canes-Wrone: We need to commit to every American citizen, starting at a young age, to understand our system of democracy.

Josh Ober: Give them a sense of what is the positive value of democracy, and then what is the alternative? We need to teach you about what it is to live under a tyrant.

Mya Baker: You need to have an informed [00:02:30] group of citizens so that they can actually contribute to their democracy. Right? And so that way they can make decisions about what policies and what type of leaders they want to represent them.

Emma Humphries: We need state legislatures to prioritize civic education, to pass laws and course requirements for more instructional time.

Spencer Cox: We need an educated public, and it has to start young, and we haven't done a great job of that over the past 30 or 40 years.

Kristen Campbell: I think we need to do more to help people realize that democracy is larger than politics, and politics [00:03:00] is larger than our partisanship.

Aaron Dorfman: We need to teach the practice of civics and the practice of democracy anew to every generation.

Raj Vinnakota: We need your voice. We need your engagement. We need your willingness to work across difference to empathize and understand different perspectives.

Louise Dube: We need more people on this boat, and we need to be organized. We need to be all in one direction, and we need to elevate the power of this movement.

Hannah McCarthy: So who are all of these people, you may be wondering?

Nick Capodice: And [00:03:30] that's not even all the people, by the way.

Hannah McCarthy: It is not. In March, Nick and I went to California, specifically to Stanford University, where the Civic Learning Week National forum was on the West Coast for the first time.

Nick Capodice: A bunch of educators and policy makers and leaders from all these organizations, all there to talk about civics education, all these people agreeing on one Thing, and that thing is that we need it and we need more of it.

Hannah McCarthy: And Nick and I [00:04:00] sat upstairs in a small conference room waiting.

Ambient: Is that better or worse?

Nick Capodice: It's better, but it just needs a touch more because it's not really having any effect all the way over there. And we weren't alone. We were there with our friends from Icivics, partnering up with a pretty simple goal to ask government leaders, heads of foundations, teachers, even a former secretary of state what they thought, what they believed needed to be done. We interviewed over 30 people.

Hannah McCarthy: We did. And you will not be hearing from [00:04:30] all of them today because that would be a little much. And the thing is, everyone we spoke to said versions of the same thing. We need civics education. We don't have enough of it. And very troubling things are happening because of that.

Nick Capodice: Despite the best efforts of teachers across the country.

Hannah McCarthy: Oh yeah. The fact that I was a sorry excuse for a civic student. That was not the fault of my teachers. I had spectacular teachers throughout my years in school, but [00:05:00] that armor that I have now, knowing what this country is, how it works, what I can do and have in it. It just wasn't on the curriculum docket in the way that it could have been.

Donna Phillips: The challenge we're facing now is that we now have more than a generation of people who did not get strong civic education.

Hannah McCarthy: This is Donna Phillips.

Donna Phillips: I'm the president and CEO at the center for Civic Education.

Hannah McCarthy: The center for Civic Education, by the way, is there to help students learn the [00:05:30] skills they need to be meaningful members of our citizenry.

Nick Capodice: The exact thing Donna is saying a lot of adults never learned.

Donna Phillips: The first thing that I think gets lost is our empathy and our our caring about our civic health. If you don't understand your country, your government and your role in it, you can't care about it, nor can you understand when things could be better or how to make things better.

Hannah McCarthy: I love this point because this was me. [00:06:00] You know, I might have said, yeah, of course I care about my country, but did I? You have to understand something to really care about it. There was a time when I didn't know where and when I needed to show up. What I could have done if I did show up, how I could talk about what matters with other people. It's one thing to say you care. It's quite another to understand what you care about and how you can safeguard it.

Donna Phillips: If [00:06:30] you don't have civic education, then you don't have that empathy. Democracy is active, so you don't have that knowledge for how to continue to be part of the active process of democracy.

Brandice Canes-Wrone: So here's where we are in the United States.

Hannah McCarthy: This is Brandice Canes-Wrone

Brandice Canes-Wrone: I'm the director of the center for Revitalizing American Institutions at the Hoover Institution. I'm a senior fellow here at the Hoover Institution. I'm also a professor of political science here at Stanford.

Nick Capodice: The [00:07:00] Hoover Institution, by the way, is where we were doing all these interviews. But to be clear, we were not partnered with them.

Hannah McCarthy: Right. They are a public policy think tank. And, you know, every time I say the words think tank on this show, I am reminded that we need to make an episode explaining what they are. But for now, all you got to know is they do research and make policy recommendations. So back to where we are in the United States.

Brandice Canes-Wrone: We have very low trust in the federal government. It's very hard to trust something you don't understand and [00:07:30] you don't know that much about. We have higher and higher what you might call affective polarization, which is a term that scholars use, but basically just means what you think of the other party of members of the other party. And basically, we Americans think less and less. So it's not simply that they just disagree. They actually have very negative feelings towards those individuals, which is quite a different thing than simply saying I like that individual, but [00:08:00] we disagree on some things. Um, and in fact we have, I think, even the most disturbing, although those are disturbing enough, we have an increasing number of people who do not have trust in the system of democracy itself. And that's particularly the case among younger adults, which is the most concerning trend. So it's this sort of lack of trust is increasing with generations.

Hannah McCarthy: You know what's really tricky, Nick telling [00:08:30] people they should trust something that they already do not trust, and not just that, that it is vitally important. They trust the thing they do not trust.

Nick Capodice: Because then they might be like, well, now I don't trust you either, you toady.

Hannah McCarthy: So let's zoom out. The path here is education to understanding, to care, to trust. So, Nick, what's trust? [00:09:00]

Nick Capodice: Oh. Ah. I feel that trust means you believe in other person will do what they say they're going to do. It means they care about you. They have your interests at heart. They will protect you.

Hannah McCarthy: I would take that even further. I would say trust is all of those things. I agree with that. I think it's also about reliance, relying on the faithfulness of something, relying on the fact that [00:09:30] it cares for you. So when we trust in a system, when we trust in democracy itself, it means we will do what we can and in fact, what we are empowered to do by that system, to keep that system functioning. Why? Because that system is designed to keep us in power to ensure that we have choices. That system lets us make our own lives better [00:10:00] if we so choose.

Brandice Canes-Wrone: Well, then you're going to have citizens who are able to hold their leaders accountable, who aren't going to be as susceptible to the claims of the sorts of people who would be tyrants. You're going to have citizens who are more engaged. Right. And who are participating. And you're also going to have citizens who understand how government functions.

Nick Capodice: Yeah. Real quick, while we're all here, I wonder if we could just remind everyone how this all started.

Brandice Canes-Wrone: Okay. [00:10:30]

Brandice Canes-Wrone: The framers saw civic education as essential for a well-functioning democracy, and particularly as a protection against tyranny. So if you think what was the big risk that the founders were worried about? Well, they were worried that very quickly we'd go back to having some form of, if not a monarchy, some sort of dictatorial system, because that was the system that was the natural system. And, you know, to most societies around the world or if not natural, the, the in [00:11:00] fact, system by force. They were also worried about populism, which you could consider a twin threat, but they were most worried about tyranny. And so I'm going to not have it exactly verbatim. But James Madison, for instance, quoted in a letter around the time of the founding and of course, he's the architect of our Constitution, that having that one needed to arm oneself. And he uses that word arm. That is a direct quote with knowledge that this is what [00:11:30] a democracy needed, and that if you had popular government but not popular knowledge, you were at risk of a farce or tragedy, or perhaps both. First three words we.

Kimberly Huffman: The people, we are the ones who are responsible. So if you don't know what's in the Constitution, you are not doing your due diligence to being a safeguard to our constitutional duty to prolong our country's democratic spirit.

Hannah McCarthy: This is Kimberly Huffman.

Kimberly Huffman: I am a government teacher at the Wayne County Schools Career Center. Um, it is a county career tech [00:12:00] school that feeds from ten public schools, three private home schooled students. I am also the social Studies department chair. I also teach political science for a local community college. I'm the student leadership advisor, and I had there's about 120 students that I serve yearly.

Hannah McCarthy: Kimberly, also, by the way, belongs to a bunch of civics and teacher organizations.

Nick Capodice: You know, the next time I think I don't have time to do something, I shall think of Kimberly.

Kimberly Huffman: In my beginning years of teaching, [00:12:30] they came with a certain knowledge base. They knew the three branches of government, the four levels of government. I think everybody would understand that. That is a need to know. I am finding that since they've removed in Ohio testing for social studies out of the elementary, that is no longer the case. So the last time that they've had a civic class is probably eighth grade. They take American history their freshman year, and they take world history their sophomore year. And they have basically forgotten the period of the constitutional framework time zone. And so it's like starting [00:13:00] over. And they don't they come to me without that basic knowledge.

Hannah McCarthy: For Kimberley, civics is way more than the basics.

Kimberly Huffman: So it starts with having citizens who read, who understand, who can think, who can be activated into good causes and in community as well, not just for your individual own vice or your ego or what it would profit you, but it's a virtue that is for the betterment of your entire community. So if you have a nation that is thriving, you have a state that is thriving, and then your [00:13:30] communities can thrive. And then the people, if you're eating, you know, basic nutritional, you're thinking you're sleeping, then you can concentrate on how to expand that and how to make your neighbors make sure that they're fed. Make sure that they're safe, and make sure that they're educated, that they can read and they can think, um, and all those things help you reflect on what you want in your government, and then that helps promote democracy and keeps our country growing the way it's supposed to.

Nick Capodice: You know, I really appreciated this, Hannah, because I think [00:14:00] a lot of people hear the words civics or curriculum and they maybe just tune out.

Hannah McCarthy: Education department community engagement standards. It reminds me of that episode of Parks and Recreation, where they're trying to get fluoride in the drinking water, so they rebrand fluoride to dazzle, and it works. Maybe we need that to talk to civics people.

Nick Capodice: Yeah, like maybe call it National Guard or something. [00:14:30] Well, okay. Not that. But anyway, Kimberly's point about people who are fed safe, who can read, who can think that that that is what leads to helping other people and then to asking our government to take care of us. So you talked about civics knowledge as a kind of armor, Hanna, a safety and a strength. And it literally is when you think about how that leads to physical and emotional safety [00:15:00] and strength.

Kimberly Huffman: One of the things why I'm so passionate about teaching students about the Constitution, about what the Constitution says, I believe that if they know what the Constitution says, like we can agree what we want the government to do, but we should be able to focus on what the Constitution says they can do. And there's a lot of misinformation and there's a lot of information that is just false, that is out there, and people no longer look to the truth, or the truth is in our Constitution. And I always tell my students, you have to know this [00:15:30] stuff because you don't know your rights are being violated if you don't know where your rights are listed. You don't know if the president has the power to do it, unless you see the power to do it in the Constitution. And if you allow the government to do these things in which they don't have the power to do, and you let them do it, they continue to do it. And before long, it's like the frog in the boiling water. It is dead. And you look back and you're like, how did that happen? Well, you incrementally let it happen.

Hannah McCarthy: You know, Nick, I [00:16:00] do not see this as a depressing sentiment. I see it as an empowering one. What a wonderful thing it is to know that democracy will only die on our watch, or lack thereof. So we need to keep our eyes open and stay in charge of the water temperature.

Nick Capodice: Democracy only takes a break if we let it. Speaking of, we're going to take a quick break.

Hannah McCarthy: Nice transition. We'll be right back. We're [00:16:30] back. We're talking about the state of things in the United States. We're talking about what makes us a United States, what is straining those United States, and what we need to do to keep us strong. And we have not come up with the t dazzle version of civics. So civics [00:17:00] is the word.

Dame Louise Richardson: There has been a complete collapse in civic education in this country, and the polling is frankly frightening students, um, a lack of knowledge, but b lack of trust in our institutions and in our democracy is something we we worry about.

Hannah McCarthy: This is Dame Louise Richardson.

Dame Louise Richardson: I'm the president of the Carnegie Corporation of New York.

Nick Capodice: I do believe. Hannah, this is the first time we have ever interviewed a dame.

Hannah McCarthy: Did you know that only [00:17:30] knights get dubbed with the sword? Like the sword tap on their shoulders. Dames do not get the sword. Tap.

Nick Capodice: I wish we had asked Louise what she thought about that.

Hannah McCarthy: Well, we had other things to talk about.

Dame Louise Richardson: And now we're looking around us and see that this decline of trust in institutions has got to be linked to the decline in knowledge. So it is part of our general approach to trying to mitigate the political polarization of this country, that we want to invest in civic education in our schools. I would add that I'm [00:18:00] a naturalized American, so I had to take a citizenship test in order to become an American. So I would have thought at an absolute minimum, to graduate from high school, one should have to pass the same test as we require our immigrants to pass. But there's so much more to it than than simply passing a test. It's about understanding community, participating in one's community. Understanding how democracy works and what the alternatives are [00:18:30] and how ideally how it is such a better system than the alternatives, but that it only works if people participate in it.

Nick Capodice: And we should add that about a third of high school students in the United States do have to pass the citizenship test to graduate. And, you know, I've read a lot of criticism about that test. People who say, well, that's just memorization. It doesn't mean anything. But to Louise's [00:19:00] point, she's looking at a test as the absolute bare minimum. Pass the test, sure, but also genuinely understand what it means to be in this country.

Dame Louise Richardson: The democracy at the moment is is under severe strain. And when you look at polling for trust in institutions and democracy depends on functioning institutions, that's really quite frightening. So our interest in civics education is part of a broader interest in trying to redress [00:19:30] this polarization. So we're also very keen on national service initiatives, for example, and we see those as being quite closely linked to civics. I mean, a kid who understands their community is more likely to want to contribute to it. Somebody who has contributed to their community is more likely to want to engage in in making it better, engage in, in the politics that are required to, to make this country work.

Hannah McCarthy: You know what kept coming up [00:20:00] in so many conversations we had that day? Younger people who are not invested in democracy one way or another. And Louise, as she said, is an immigrant herself. And she basically said, you know, think about all of the people who are trying to get in to this country. Why do you think that is?

Dame Louise Richardson: Well, the first thing is that students have to understand what democracy is and what the alternatives are and what the great benefits, individual benefits in terms of one's [00:20:30] rights are as a citizen of a democracy as opposed to any of the alternatives. That's why it's so enormously attractive. That's why we have so many people from around the world wanting to be here, wanting to escape the autocracies, monarchies and assorted other forms of of government under which they live.

Nick Capodice: You know what really stood out to me in the conversation we had with Louise was that she said, even if we do have that understanding, even if we do know, there [00:21:00] are still going to be people who are dissatisfied with this country, and rightfully so.

Dame Louise Richardson: You know, our young people are not stupid. It isn't just because they're uneducated that they don't like democracy. They have seen the spiraling growth of inequality. They have seen they've witnessed the inadequacies of, um, of our government and how it has failed many, many parts of this country. And that, I think, is what's breeding their cynicism. They see [00:21:30] the the devastation wrought by the financial crisis and how the cost of that was disproportionately borne by those by the most vulnerable. They've seen how how globalization was welcomed and celebrated by elites like me. And yet people in various parts of this country paid a heavy cost for that globalization, because those benefiting from it didn't think through what the broader implications were. So there's a reason for the distrust of democracy. And [00:22:00] it's not just that they need to be better educated.

Raj Vinnakota: If you think about the age group that I work with, which is 10 to 24 year olds, what have they experienced all their life? What they are seeing is fundamental existential issues in front of them, right from climate change to gun control to what does even the economy look like in the future?

Hannah McCarthy: This is Raj Vinnakota. If you're a Civics 101 regular, then you already [00:22:30] know him.

Raj Vinnakota: I'm president at the Institute for Citizens and Scholars.

Hannah McCarthy: All right, so the path to we the people, the path to our strength, to our safety, to having choices requires trust. Raj says we need to look at what, beyond lack of civics education is contributing to mistrust.

Raj Vinnakota: And what they see is a government that is unwilling and unable to be able to actually develop solutions for these existential problems [00:23:00] that are hanging over their head. And so we shouldn't be surprised when young people say, do you believe in democracy? And every example that they look at is demonstrating a democracy that doesn't actually solve the problems that they see.

Nick Capodice: It really is a grim picture, Hannah.

Hannah McCarthy: Yeah, but we won't get anywhere if we just stand here and look at it.

Raj Vinnakota: Now, the translation of that to me, is to then turn to young people and say, come on in. It's now your responsibility along with us to actually make sure that democracy [00:23:30] works effectively. We need your voice. We need your engagement. We need your willingness to work across difference, to empathize and understand different perspectives and help us solve these common existential problems. Now, that's an easy thing to say. It's hard to do because what you're asking is people to take that first step and trust us. And so that's where working locally becomes so important, right. So start doing the work in your school, in your college, in your communities, [00:24:00] with your family. Start working in very simple ways that demonstrate, yes, this can work. And that'll start to build up the trust and get people to engage in bigger and bigger issues.

Hannah McCarthy: Okay, I want to end this episode with the conversation we had with Louise Dubé, who is the CEO of Icivics. And again, we partnered with Icivics to try to get some answers. Where are [00:24:30] we now? Are we strong? Are we capable? Are we protected? How do we ensure that there is a we the people now and for generations to come?

Louise Dube: We have to recognize that it's a two way street. If we are to teach civics in a competent way and try to explain how this system has delivered for 250 years, we also have to acknowledge that the system itself needs to be revitalized [00:25:00] so that it is responsive to young people, but also to every American in this country, so that when there are problems to solve, common problems to solve, we have institutions that actually do something, because I think that's why people are frustrated, right?

Nick Capodice: The idea is to teach civics while acknowledging that things don't necessarily work the way they're supposed to, which is all the more reason for people to understand these systems [00:25:30] and join together to repair them.

Hannah McCarthy: So you and I know, Nick, that civics education and the need for it, you know, it's not just a nonpartisan issue. It is something that tons of people actually agree on. And yet here we are in a world where even someone with a great education with committed teachers may still be disengaged from or disinterested in the remarkable system they exist within. [00:26:00] And we know that it is because of a lack of the very thing so many of us agree on.

Louise Dube: Adults overwhelmingly They agree. We have done polling ourselves. You've never seen numbers like this 70, 80, 90% support across political partizan views. That's unusual. The problem with civics is that it's a long term investment.

Nick Capodice: It's not an easy pitch, Hannah. I think that's the thing. Long [00:26:30] term means money. It means plans. It means consistency. And not just in schools like we've been talking about, but out there in the world. We need to wake up every day and keep learning, keep talking, show respect, engage in our communities. This is not a problem that can be solved with a magic bullet.

Hannah McCarthy: Yeah, but you know what, Nick? Anyone who promises a magic bullet is lying to you, including politicians. [00:27:00] And if you know how your government works, you know that. And if you know that, you know not to elect those politicians, you know, to elect the person who says this will take time and effort, and I'm going to give you that time and that effort because that is how this country works. That is the only way it works.

Louise Dube: It's impossible to do this work if [00:27:30] we don't have the conditions in K-12 classroom, in higher ed, in civil society to actually teach. So if educators are not trained. So we have a simple policy menu that talks about first we need time in the classroom. We need requirements at the middle and high school level. We need a civil society to pick up the same pluralistic message, to teach adults, to teach young children, [00:28:00] to teach in boys and girls clubs everywhere, pre-K to grade. So we need that and we need a recognition program. We need civic seals, and we need educators that are trained to do this work. So we have a plan. So we need more people on this boat, and we need to be organized, and we need to be all in one direction. And we need to elevate the power of this movement at this particular time. As I said this morning, this is a fluorescent civic moment. It [00:28:30] is absolutely our duty to use the crisis to make a lot of progress. Now.

Hannah McCarthy: That [00:29:00] does it for this episode, but that most certainly does not do it for civics or democracy. If you want to learn more about our nation itself and what you can do to strengthen your armor and the armor of those around you, head to Civics101podcast.org to find everything we have ever made or visions for everything they make, including their plans to make civics strong in the US. This episode was produced by me, Hannah McCarthy with Nick [00:29:30] Capodice. Rebecca LaVoy is our executive producer. Kristina Phillips is our senior producer. Music. In this episode by Alex Laine, Pharrell Wooten, Tommy Tsunami, gridded Kakeru, just normal, Jon Runefelt and Bambi Hayes. Civics 101 is a production of NPR, New Hampshire Public Radio.


 
 

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